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# Summary of Public Comments and Responses for Commercial and Industrial Solid Waste Incineration Units:

Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste:

Final Rule Volume 1: CISWI` December 2012



## Summary of Public Comments and Responses for Commercial and Industrial Solid Waste Incineration Units:
Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste: Final Rule Volume 1: CISWI

U. S. Environmental Protection Agency
Office of Quality Performance Standards
Sector Policies and Program Division (MD E143-03)

Research Triangle Park, NCv FOREWORD

These documents provide EPA’s responses to public comment s on EPA’s Proposed Commercial and Industrial Solid Waste Incineration (CISW I) Rule and Non-Hazardous Secondary Materials That Are Solid Waste (NHSM) Rule.

EPA published a notice of reconsideration and proposed amendme nts of the standards applicable to CISWI units in the Federal Register on Dece mber 23, 2011 (76 FR 80452). EPA received comments on these proposed rules via mail, e-ma il, and facsimile. Copies of all comments submitted are available at the EPA Docket Cente r Public Reading Room and are also available electronically through http://www.regulations.gov by searching Docket ID EPA-HQOAR-2003-0119 and EPA-HQ-RCRA-2008-0329. This document is divided into tw o volumes, volume one responds to public comments received on the C ISWI reconsideration proposal and volume two responds to public comments received on the NHSM amendment proposal. Each section of these documents provides the verbatim text o f comments extracted from the original letter. For each comment, the name and affiliation o f the commenter, the document control number (DCN) assigned to the comment letter, and the nu mber of the comment excerpt is provided. In some cases the same comment excerpt was submi tted by two or more commenters either by submittal of a form letter prepared by an organi zation or by the commenter incorporating by reference the comments in another comme nt letter. Rather than repeat these comment excerpts for each commenter, EPA has listed t he comment excerpt only once and provided a list of all the commenters who submitted the sa me form letter or otherwise incorporated the comments by reference in table(s) at the end of the document. EPA’s responses to comments are generally provided immediately following ea ch comment excerpt. However, in instances where several commenters raised similar or r elated issues, EPA has provided a single response after the first comment excerpt in the group and referenced this response in the other comment excerpts. In some cases, EPA provided responses t o specific comments or groups of similar comments in the preamble to the final rulemaking. Rather than repeating those responses in this document, EPA has included tables in this document t hat list the commenters that submitted comments on issues responded to in the preamble.vi

The primary contacts regarding questions or comments on t his document are:

Amy Hambrick (919) 541-0964

U. S. Environmental Protection Agency

Office of Quality Performance Standards

Sector Policies and Program Division (MD E143-03)

Research Triangle Park, NC

Toni Jones (919) 541-0316

U. S. Environmental Protection Agency

Office of Quality Performance Standards

Sector Policies and Program Division (MD E143-03)

Research Triangle Park, NCvii 

### TABLE OF CONTENTS

Section Page 2A. Revision of Subcategories-General...................

................................................... ................... 1 2B01. ERU Inventory ....................................

................................................... ............................ 8 2B02. ERU Pollutants subcategorized ....................

................................................... ...................16

2B03. ERU emission limits ............................

................................................... ...........................18 2B04. ERUs Designed to Burn Non-Coal Solid Materials ....

................................................... .....26 2C01. Waste-Burning Kiln Inventory..........................

................................................... ..............32 2C02. Waste-Burning Kiln Pollutants subcategorized ...........

................................................... ....38 2C03. Waste-Burning Kiln emission limits ..................

................................................... .............39 2D. Establishment of Limitations on Fuel Switching Provisi ons ................................................ ..47 2E01. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment Units, Laboratory Analysis Units, and Space Heaters from CISWI Subcategori es ................................................ .71 2E02. Specific definition comments - cyclonic burn barrels .

................................................... .....76 2E03. Specific definition comments - Burn-off ovens ......

................................................... .........79 2E04. Specific definition comments - Soil treatment units .

................................................... .......85 2E05. Specific definition comments - Laboratory analysis units............................................... ....85 2E06. Specific definition comments - Space heaters .......

................................................... ..........86 2E07. Establishing a Definition of "Homogeneous Waste" ....

................................................... ...89 2E08. Definitions - Foundry Sand Thermal Reclamation Unit .

................................................... ..94

2E09. Definitions - "Contained Gaseous Material".........

................................................... ...........97 2E10. Definitions - "Chemical Recovery Unit" ...........

................................................... ............ 106 2E11. Definition of Municipal Solid Waste.................

................................................... ............ 108 2F. Providing an affirmative defense for malfunction eve nts ............................................ ....... 114 2G01. Revisions to the CO Monitoring Requirements .........

................................................... .... 160 2G02. Optional CO CEMS provisions ......................

................................................... .............. 161 2H. Establshing a Full-load Stack Test Requirement for CO Coupled with Continuous Oxygen Monitoring .........................................

................................................... ................................. 170 2J. Incorporating Fuel Variability Into Emission Limit C alculations ....................................... ... 178 2K. Review of D/F Data and Non-Detect Methodology Using T hree Times Detection Level ..... 187 2L. Providing an Option for Sources to use Emissions Averag ing to Demonstrate Compliance .. 194 2N. Allowances for Using Feed Stream Analysis or Other Supplemental Information to Demonstrate Compliance .............................

................................................... ....................... 199 2O. Providing Percent Reduction Alternative Standards ....

................................................... ...... 208TABLE OF CONTENTS (Continued)

Section Page

viii 2P. Providing Parametric Monitoring Provisions for Additiona l Control Devices ....................... 212 2Q. Revisions to the Continuous Monitoring Provisions for L arge ERUs ................................... 221 2S01. Extending Compliance Dates ......................

................................................... .................. 231 2S02. Small remote incinerator compliance dates ........

................................................... ........... 246 2S03. Applicability date for new and existing units .........

................................................... ........ 247 7J. Ingredients are not combusted in cement kilns. .......

................................................... ........... 262 7R. Waste coal, legacy coal combustion units and associat ed recordkeeping for units that burn materials with non-waste determinations (categorical or non) ............................................. .... 274 12D. Operating parameter limits comments (OPL) .........

................................................... ........ 286 2T. Miscellaneous Typographical Errors and Rule Language Correc tions .................................. 295

2Z. Unaddressed comment claims ........................

................................................... ................... 305 3A. Costs: Control Technology Cost Assumptions .......

................................................... ........... 306 3E. Economic Impacts ................................

................................................... ............................ 308 3G. Secondary Impacts ................................

................................................... ........................... 308

3Z. Other ..........................................

................................................... ...................................... 310 5F. Regulatory Flexibility Act as Amended by the Small Bu siness Regulatory Enforcement Fairness Act (RFA) of 1996 SBREFA), 5 U.S.C. 601 et Seq. .. ............................................... 311 7A. Applicability/Regulated Entities ...................

................................................... .................... 312 7B. Applicability of CISWI to marine vessel or outer con tinental shelf units (Denied Petition issue)..............................................

................................................... ..................................... 312 7C. Applicability to gasification or pyrolysis units .....

................................................... ............. 313

7F. Portable incinerators are not accounted for in the rule or data (Denied Petition issue) .......... 315 7G. Provide "temporary use" exemption ..................

................................................... ............... 315

7H. De-minimis Size or Waste Amount Thresholds .....

................................................... ........... 316 7L. Requests for extension of comment period............

................................................... ............ 324 7P. Expansion of startup, shutdown and malfunction periods - work practice standards for SSM (Denied Petition issue) ..........................

................................................... ...................... 326 7Q. CISWI does not satisfy CAA 112(c)(6) requirements (Denie d Petition issue) ...................... 338

7Z. Other ..........................................

................................................... ...................................... 339 8A. Methodology: General Approach (Denied Petition issue) .

................................................... 343 8B. Non-detect approach (Denied Petition issue) ..........

................................................... .......... 366

8C. Small remote incinerator emission limits/achievabili ty/costs/impacts on wildlife (Denied Petition issue) ....................................

................................................... .................................. 368 9A. General comments on beyond-the-floor analysis (Deni ed Petition issue) ............................. 376 12A. Testing and Monitoring ............................

................................................... ...................... 377TABLE OF CONTENTS (Continued)

Section Page

ix 12B. Testing too frequent (Denied Petition issue) ...........

................................................... ........ 380 12E. Missing CEMS data provisions (Denied Petition issue)....

.................................................. 382 14A. Data reporting requirements .......................

................................................... .................... 384

14B. Records that must be retained .....................

................................................... .................... 385 14C. Electronic Reporting Mechanism .....................

................................................... ............... 386

15A. Other ..........................................

................................................... .................................... 387

TABLE 1. COMMENTERS THAT HAVE SUBMITTED COMMENTS ON TOPICS ADDRESSED IN SECTION II.E OF THE PREAMBLE.......... .............................. 389

APPENDIX A ........................................

................................................... ................................... 1

1A. Non-Hazardous Solid Waste Definition ................

................................................... ............... 1 1C. Boiler Major Source .............................

................................................... ............................... 4 1D. Boiler - Undesignated .............................

................................................... ...........................36

1E. Boiler Area Source ..............................

................................................... ...............................57

1Z. Other ..........................................

................................................... ........................................581



### 2A. Revision of Subcategories-General

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 36

Comment: We Support the Additional Breakout of Coal and Biomass ERU Sub categories for PM, Cd, Pb, and Dioxin / Furan

The June 2010 proposed CISWI Rule provided sub-categories for 1) Incinerators, 2) Energy Recovery Units (ERUs), 3) Waste Burning Kilns, 4) Small, R emote Incinerators, and 5) BurnOff Ovens. Emission limits for all ERU were the same , with no differentiation by unit design or primary fuel type.

Response: This statement requires no response..

Commenter Name: Gretchen Brewer Commenter Affiliation: PT AirWatchers Document Control Number: EPA-HQ-OAR-2003-0119-2648-A1 Comment Excerpt Number: 2

Comment: CISWI rules need to be harmonized in this regard: it is r idiculous to have different rules for the same burner and the same fuel depending on whether it was purposely brought to burn, either for heat or power ("not waste") or just b rought to burn ("waste"). Again, it's all the same when they are burned and the pollution goes up and out o f the stack. If a lower emissions limit can be met if what is being burned is considered wa ste, then it can also be achieved if what is being burned is not considered waste, and vice versa. The limits should be set at the lower of the two.

Response: CAA section 129 requires the Agency to establish standa rds applicable to solid waste incineration units and units that meet the definition of a solid waste incineration unit may not be subject to standards established pursuant to CAA section 112. See CAA section 129(h)(2). For this reason, EPA may not subject solid waste incinerati on units to standards established under section 112 and units that are not solid waste incineration units may not be subject to standards under CAA section 129. EPA has complied with the statute in establishing subcategories in the CISWI rule and in establishing standards for units in the d ifferent CISWI subcategories.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 22

Comment: All of EPA’s subcategories are unlawful and arbitrary for the reasons given in the 2010 Comments and the Petition. 2010 Comments, Ex. 1, at 9–10; Pe tition, Ex. 2, at 5–6. In the proposed reconsidered CISWI Rule, EPA compounds the errors made in the final rule with respect to subcategories, for example for treating coal and biomass ERUs separately for a larger number pollutants.

Section 129(a)(2) of the Clean Air Act allows EPA to “d istinguish among classes, types (including mass-burn, refuse-derived fuel, modular and other t ypes of units), and sizes of units within a category in establishing such [emissions] standar ds.” 42 U.S.C. § 7429(a)(2). The decision to subcategorize can significantly affect MACT floor determinations, which then greatly impacts the overall stringency of emissions standards. S ince manipulation of subcategories can severely weaken MACT standards, the agency must careful ly show that each proposed subcategory is necessary and well supported by the record. The Agency must offer a reasoned justification for the subcategories it has chosen. See, e.g.

, Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 947–50 (D.C. Cir. 2004) (remanding a decision to subcategori ze in setting MACT standards because the Agency had not properly justified its subcategorization scheme). CISWI units are not of a different “class, t ype, or size” merely because they are allegedly “designed to burn” a type of fuel. In reality, t hese units (1) are otherwise the same as or closely similar to units that are allegedly “designed to burn” another type of fuel; (b) do in fact burn more than one type of fuel; and (c) may actually b urn a majority of fuel that is not the type they are allegedly “designed to burn.” Indeed, EPA freely admits that sources can “switch categories” based on the fuel they choose to burn at any given time. Revised MACT Floor Analysis for the Major Source Boiler Rule (2011), Ex. 5, at 5. Because such units are not of a different “class, type, or size,” EPA lacks authority to set separate emission standards for them and any claim that they are of a different class type or size is arbitrary. If the fuel mixes of the subcategories EPA has defined did reliably differ, EPA’s subc ategories would still be unlawful. By defining the subcategories on the basis of fuel mix a nd emissions profile, EPA sets up disincentives to meet the MACT standard through switching t o cleaner fuels. MACT standards must be set to reflect the performance actually achieve d by the best performers, however that performance is achieved, including through a change in inputs suc h as fuel. See Cement Kiln Recycling Coalition v. EPA , 255 F.3d 855, 861 (D.C. Cir. 2001) (addressing similar MACT requirements in § 112 of the Act and focusing on emission r eductions achieved). Defining subcategories based on fuel inputs thus contravenes the Cle an Air Act. Moreover, EPA must actually set its MACT floors on the basis of the subc ategories it has defined, as it has defined them. Assuming arguendo that EPA’s subcategories are valid and can be maintained, the Agency’s standards for each one must actually reflect th e emission level achieved by the relevant best performing sources in each one. Because EPA has cho sen to base floors not on the best performers in its chosen subcategories but instead on a group within the category that is using a certain type of fuel or mix of fuels, EPA’s standards co ntravene that requirement. The unlawfulness and arbitrariness of EPA’s subcategories is e xacerbated by the Agency’s approach to establishing the statutory minimum stringencies (“floors ”) for its standards. In order to ensure that top performers in each subcategory meet MACT emis sion standards almost all the time, EPA employs a statistical approach that makes predictio ns about emissions variability. 1 This statistical approach is based in part on the number of t est runs for which EPA has data in each subcategory: the fewer the data points, the greater the upward adjustment in the limit. But EPA collected data first and defined its many subcategories late r, with the result that EPA has very small quantities of emissions data for some of the subc ategories. This means that EPA’s3

subcategorization spree produces MACT floors that are far too lax. It is unlawful and arbitrary for EPA to create subcategories for which its lack of emi ssions data will produce lax emissions standards under its statistical approach.

[Footnotes]

(1) As explained below, EPA’s approach to variability is also unlawful and arbitrary per se.

Response: EPA notes that it has only opened for public comment in the proposed amendments to the CISWI rule the subcategories EPA specifically indic ated that it was reconsidering. EPA does not agree with the commenter that the proposed subc ategorization is not well founded for the reasons set forth in the proposed rule and this final action. Further, EPA responded to similar comments about the Agency’s authority to establish subca tegories under section 129 when we issued the March 21, 2011 final CISWI rule (76 FR 15732).

EPA disagrees that the rationale for subcategorizing ER Us based on unit design is inconsistent with the Clean Air Act. The commenter first claims that units designed to burn different fuels are in fact “the same as or closely similar to” eac h other. As explained in the preamble to today’s action, that is not the case. Different provi sions for fuel handling and preparation, fuel combustion, heat recovery, among other things, are ne eded when burning different fuels. In addition, ERU systems can encounter operational problems if operated on a different fuel than specified for that boiler design. The commenter provides no specific characteristics that support its assertion that ERUs burning different fuels are in f act the same. Further, section 129(a)(2) provides EPA with broad discretion to subcategorize based on class, size, or type. For example, differences between given types of units can lead to corre sponding differences in the nature of emissions and the technical feasibility of applying emis sion control techniques (76 FR 15733). It is certainly possible that ERUs can have some similar characteristics, but still be of sufficiently different classes, sizes, or types to warrant placing th em in different subcategories.

In section II.E of the preamble to the final rule, we provide our rationale for the subcategorization of solid ERUs and waste burning kilns. Our de cision to subcategorize is based on the fuels that the units are designed to burn. EPA ma intains that units are designed to combust certain types of fuel and that when burning those fuels the units function most effectively. However, units designed to burn one type of fuel may, in certain circumstances, be able to burn other types of fuel. Contrary to commenters assertions, this is a valid exercise of the Agency’s authority to subcategorize (76 FR 15733). The commen ter claims that it is “unlawful and arbitrary” to create different subcategories for units that are capable of burning more than one fuel or a mixture of fuels because such units are no t of different classes, sizes, or types. EPA disagrees with the commenter. Given the broad statut ory discretion to create subcategories, and the fact that some boilers do burn different fuels or a mixture of fuels at certain times, it is reasonable for EPA to establish criteria to distinguish a mong the different types of boilers, including boilers that combust different or a mixture of f uels at certain times. EPA did not, as the commenter suggests, subcategorize based on fuel type, however, the commenter is incorrect in stating that subcategorizing based on material inputs is not consistent with the CAA. Nothing in the statute prohibits EPA from subcategorizing based on material inputs. See Sierra Club v. Costle , 657 F.2d 298, 318-19 (D.C. Cir. 1981) (differing pollutant content of input material can justify a different standard based on subcategorization authority to “distinguish among classes,4

types and sizes within categories of new sources”). EPA maintains that, had Congress intended to prohibit subcategorization based on material inputs, it would have clearly stated that prohibition in the statute. The Agency does believe, how ever, that it could decline to exercise its subcategorization authority even if the potential result would be the prohibition of use of certain materials if the circumstances warranted.

ERUs use heat to convert water into steam for a variety of applications. Steam flow rates and operating conditions (e.g., temperature and pressure) are th e principal design considerations. The primary fuel has perhaps the most significant impact on the ERU configuration and design. When fossil or biomass fuels are burned, widely differing provisions are made to account for differences in fuel handling and preparation, fuel combusti on, heat recovery, fouling of heat transfer surfaces, corrosion of materials, and emissi on controls. For example, in a natural gasfired boiler, only a small furnace (i.e., combustion c hamber) is needed for combustion and closely spaced heat transfer surfaces may be used because of a lack of ash deposits (fouling). For units firing a solid fuel such as coal (which can cont ain a significant amount of noncombustible ash), the systems must include a much la rger furnace, more widely spaced heat transfer surfaces, and an ash removal system. The fuel and the combustion system define the design geometry of the furnace. The furnace volume is set to allow complete fuel combustion. Adequate clearances are specified to prevent flame impingem ent on the furnace surfaces, which could overheat the tubes and cause tube failures. 1

ERU systems are also generally designed for specific f uel types and will frequently encounter combustion, slagging, fouling, or ash handling problems if a f uel with characteristics other than those originally specified is fired. 2 For example, the fuel feed rate for wood for a given hea t input is about twice that of coal on a weight basis, and mo re than four times that of coal on a volume basis. Also, a combination of wood and coal firing often produces worse slagging and fouling conditions than coal firing alone. Wood combustion r equires more excess air and more overfire air than coal combustion. 3 The National Energy Technology Laboratory of the D epartment of Energy has recommended when co-firing with coal, biomass or other co-firing materials should be limited to 10 percent on a weight basis to reduce or eli minate operation problems. (National Energy Technology Laboratory, 2009) The fuel has a major i mpact on ERU design due to fouling and erosion characteristics of the flyash and hea t transfer properties of the fuel gas (including moisture content). Biomass requires significa ntly different combustion systems than coal, oil, or gas and can also result in different ER U corrosion characteristics. Changes to the fuel type would generally require extensive changes to the f uel handling and feeding system (e.g., a stoker using wood as fuel would need to be redesigned to han dle fuel oil or gaseous fuel). Additionally, the burners, combustion chamber, and combus tion air system (i.e., fans) would need to be redesigned and modified to handle different fuel types and account for increases or decreases in the fuel volume. In some cases, the change s may reduce the capacity and efficiency of the ERU. An additional effect of these changes wo uld be extensive retrofitting needed to operate using a different fuel.

1 Steam/its generation and use, Edition 41, The Babcock & Wilc ox Company, a McDermott Company
2 Steam/its generation and use, Edition 41, page 19-4, The Babc ock & Wilcox Company, a McDermott Company
3 Lessons Learned from Existing Biomass Power Plants, G, Wiltsee, Appel Consultants, Inc., Prepared for Nationa l Renewable Energy Laboratory, Department of Energy.5

The design of the ERU, which is dependent in part on the type of fuel being burned, also impacts the degree of combustion. ERUs emit a number of differ ent types of emissions. Carbon monoxide and dioxins/furans are formed from incomplete comb ustion and are influenced by the design and operation of the unit. NOx formation likewise is primarily influenced by the design and operation of the unit. The degree of combustion may be greatly influenced by three general factors: time, turbulence, and temperature. In any energ y application the combustion unit is designed to make the best use of time, turbulence, and tem perature. All three of these aspects relate directly to the properties of the fuel to be used ( moisture content, particle size, ash content, and heat value). On the other hand, the formation of f uel-dependent pollutants (metals, mercury, SO 2 and HCl) is dependent upon the composition of the fuel. These fuel-dependent pollutant emissions generally can be controlled by either changing the fuel property before combustion or by removing the pollutant from the flue gas after combustion

.

We first examined the emissions results to determine if subcategorization by unit design type was warranted. We concluded that the data were sufficien t for determining that a distinguishable difference in performance exists based on unit design type between liquid, solid-coal and solidbiomass ERUs. Therefore, because different types of unit s have different emission characteristics which may influence the feasibility and effectiveness o f emission control, they should be regulated separately ( i.e., subcategorized). Accordingly, we subcategorized ERUs bas ed on unit design in order to account for these differences in em issions and applicable controls.

For example, differences between given types of units c an lead to corresponding differences in the nature of emissions and the technical feasibility of applying emission control techniques. The design, operating, and emissions information that EPA ha s reviewed indicates differences in unit design that distinguish different types of ERUs. Data i ndicate that there are significant design and operational differences between units that burn coa l, biomass, and liquid fuels.

The commenter also provides comments on the MACT floor and variability methods used to establish emission limits, which have not been opened fo r reconsideration. Therefore, we are not responding to comments regarding emission limit methodolo gy. Furthermore, it appears that the commenter is providing the same comments on the CISWI r ule as it provided for the Major Source Boiler NESHAP. The commenters direct refere nce to that rule, the focus on and reference to boiler units instead of ERUs, and its refer ence to the many subcategories (CISWI establishes 7 subcategories, and only three for ERUs) all cause us to reach this conclusion

. Notwithstanding this fact, we have attempted to respond to the comments to the extent they can be addressed in the context of the CISWI rule.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 7

Comment: Under EPA’s current and proposed procedures, creating lar ger numbers of subcategories usually leads to higher MACT floors in two way s. First, if a small number of the6

best performers (e.g., fuel cells) can be culled from a larger group into its own subcategory, the MACT floor for the larger group (the wood-fired boilers) w ill rise. Second, because the small group will have a small number of tests, the statistica l variability of the small group will also increase, leading to MACT floor increases for both the larger group and the smaller group. EPA’s decision to create separate subcategories for PM emissions based on the design of the combustion chamber creates a situation where a unit wit h highly variable emissions is classified as a top performer, based on EPA’s inappropriate definitio n of best performing unit. Since that unit has many more test results than others in the group, EPA’s pooled UPL process causes that unit to dominate and results in a limit that is technica lly invalid. The resulting proposed limits are often substantially higher than the highest emittin g unit. See Chart 1. [See submittal for chart provided by commenter.] EPA has the means to objectively evaluate requests for subcategories and should do so for all subcategories incorporated in its rule. It should determine through the use of statistical techniques, such as a T-test of signifi cance, that the emissions performance of each proposed subcategory is in fact significantly differ ent from the broader category or subcategory of which it is a member. If a significant diff erence is shown, EPA should determine whether the difference is a function of the design of the combustion unit itself or is related to the prevalence of post-combustion controls that can be em ployed throughout the category. Where EPA determines that the emissions performance of the pr oposed subcategory is, in fact, significantly different from the broader category and is associated with the design of the combustion chamber itself, rather than post-combustio n controls, EPA should compute the arithmetic average of the best performing unit(s). However, unless the proposed subcategory has sufficient data (nominally 50 data points) upon which to de termine the variability of performance, EPA should apply the variability factor fro m the broader category to the arithmetic average of the best source(s) in the new subcategory. Where EPA did not collect emissions data from a representative sample of all units within a pro posed subcategory, EPA has no basis to assume that any particular unit is in the top 12 percent o f that subcategory. It is therefore insufficient to establish a subcategory on the basis th at a particular unit’s emissions are greater than the top 12 percent of the broader category.

Response: As with the previous comment, it appears that these co mments were written in response to the Major Source Boiler NESHAP and sent to the CISWI docket as well.

EPA does not agree that the commenter’s suggested approach f or determining subcategories is appropriate and the Agency maintains that it has complie d with the statute in establishing the subcategories in the final CISWI rule. In section II.E of the preamble to the final rule, we further discuss why subcategorization of solid ERUs and was te burning kilns is appropriate.

EPA did not propose to revise its statistical approach to setting MACT floors under section 129 in the reconsideration proposal, and we do not change th e statistical approach in the reconsideration proposal. Therefore, we are not respon ding to comments regarding emission limit methodology.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 47

Comment: EPA should establish a separate ERU subcategory for units loc ated in water and wastewater restricted areas so emission standards refle ct the air pollution control (APC) technologies available to those units.

Solid/Biomass ERUs are subject to an unprecedented hydrogen ch loride standard, 0.5 ppmdv @ 7%O 2 , up to 99% or more control for ERUs combusting biomass wast es or combinations of biomass fuels and wastes. The standard, if achievable at a ll, would require installation and operation of high efficiency wet scrubbers necessitating a large water supply for scrubbing and evaporative loss makeup, and wastewater treatment and disc harge capacity for scrubber loop blow down. ERC members operate biomass-to-energy units loc ated in California’s agricultural Central Valley 4 where water supply and wastewater treatment capacity is severely limited. In fact some facilities are already equipped with higher cost air -cooled condensers instead of wet cooling towers because of these restrictions.

EPA should create a separate subcategory for ERUs locat ed in areas where water is scarce and waste water treatment restricted, areas like the Cali fornia Central Valley. The driving factor for the ability of a unit to meet emission limits is the a vailability of air pollution control (APC) technologies on which the limit is based. The APC nee ded to meet the hydrogen chloride standard is not available in California’s Central Valle y and other water and wastewater treatment restricted areas. Creation of a separate subcategory bas ed on availability is consistent with EPA’s separate MACT subcategory for small Hospital, Medical , and Infectious Waste Incinerators located in rural areas based on limited availability of a lternative medical waste treatment.

Without a separate subcategory to set standards for units t hat cannot operate wet scrubbing technology, facilities in water-restricted areas wil l not be able to achieve the hydrogen chloride limit and will have no choice but to either cease com busting waste biomass (switch fuels), or shut down.

[Footnote: 4 Units include CAChineseStation, CACovantaDelano Unit 1, CACovantaDelano Unit 2, and CACovantaMendota.]
Response: The limit for existing biomass ERUs for HCl is 0.2ppmdv @ 7% O2, which is slightly more stringent than the ERU solid limit in t he March 2011 rule. We discuss rationale for ERU subcategorization in the preamble to the March 2011 rule (76 FR 15732). We have further included all pollutants in the subcategorization of units desig ned to burn biomass and coal in this final rule, as discussed in section II.E of the preambl e to the final rule. In any case, we do not agree that the availability of water alone would warra nt the creation of a subcategory for these units nor that the HCl limit that would be applicable to t hese units can only be met with water intensive controls (for example, careful selection o f fuels or a dry sorbent system). The commenter has not provided information that indicates HCl control for their units requires wet scrubber control. In addition, the commenter has not pro vided information to demonstrate that the emissions characteristics of these units are differ ent such that a subcategory would be warranted.

Regarding the units that the commenter mentions in their comment, these do not appear to be within the current CISWI inventory and we have no informat ion suggesting that these units combust solid waste as that term is defined in the NHSM final rule because the commenter does8

not explain how the biomass it combusts is a waste. Please contact the Agency to determine if in fact these units would likely be subject to the CISWI regu lation once implemented.



### 2B01. ERU Inventory

Commenter Name: Stephen R. Gossett, Senior Environmental Associate Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2569-A2 Comment Excerpt Number: 1

Comment: The Combination Boiler #2 at Packaging Corporation of Am erica’s (PCA) located in Counts, Tennessee does not burn solid waste and should be moved out of the CISWI database.

In Eastman’s petition for reconsideration, Eastman reques ted that several boilers be removed from the CISWI dataset. In response, EPA did mo ve four of the requested units, but did not move PCA’s boiler even though Eastman pointed out t hat the secondary materials burned in the unit, tire-derived fuel (TDF) and old corrugated container s (OCC) rejects, are not solid waste as determined from a review of the final Non-Hazardous Sec ondary Materials that are Solid Wastes Rule (NHSW rule). Eastman has found nothing in the record to the reconsideration proposal to explain EPA’s rationale in refusing to move this boiler out of the CISWI database. Therefore, Eastman offers the following discussion to add more detail to its request:

First, regarding TDF, the NHSM final rule states that s crap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs are not solid wastes (see 40 CFR 241.3(b)(2)(i)). S ince PCA’s practice of burning TDF meets this exemption, Eastman assumes this is not the reason PCA’s boiler remains in the CISWI database, leaving only the practice of burning OCC rejects th at could possibly be the reason.

The following excerpt from the preamble to the final rul e supports Eastman’s position are that OCC rejects burned in PCA’s Combination Boiler #2 are not solid wastes.

Discussion on OCC Rejects 54 Federal Register 15486

Comment: Comments argued that OCC rejects, also known in the industry as ``recycling process residuals,'' are never discarded, and therefore, s hould be considered a traditional fuel because they do not leave the plant, but are usually burne d on-site as a fuel. In some cases, however, they do leave the plant to be burned in municipal or commercial energy facilities or employed as a fuel pellet ingredient.

In addition, while some commenters argued that they did n ot believe OCC rejects are ever discarded, they provided information on how OCC rejects ar e sufficiently processed to remove contaminants if they are determined to be discarded. For example, strings, wires, rags, and heavy objects are removed using manual and centrifuga l force, while plastic and non-recyclable paper fibers are removed through screens. C ommenters also stated that OCC rejects meet the legitimacy criterion for contaminan ts as they have lower contaminants than traditional fuels. One comment provided data from 10 samples of OCC rejects from one company and 16 samples of coal (of unknown type or origin) t o substantiate that claim (see9

Table 2). [See submittal for data table 5.2 provided by comment er showing --Comparison of Contaminant Concentrations in Samples of Coal and OCC Rejects] 52

Commenters also claimed that OCC rejects meet the le gitimacy criterion for being managed as a valuable commodity, as they are managed in the sam e manner as analogous fuels--bark. Prior to burning, this material is co-mingled with bark on the bark pile.

Furthermore, commenters stated that OCC rejects pass t he legitimacy criterion for having a meaningful heating value. For example, a commenter submitt ed data that indicated that, on a dry basis, OCC rejects have a heating value of 9,100 Btu/lb , while, as fired, they have a heating value of 3,700 Btu/lb. 53 Another commenter submitted ten tests at plants from o ne company that found that the heating value of OCC rejects ranged from 8,700-13,600 Btu/lb on a dry basis. 54

Another commenter submitted a study by the National Counci l for Air and Stream Improvement to demonstrate that air emissions from burning O CC rejects are comparable to burning wood. In this study, emissions results were provided fro m three plants that burned 4.4-30% OCC rejects with 70%-95.6% wood and compared it to emiss ions from the same three plants when they only burned wood. Emissions were te sted for total particulate matter (TPM), SO 2 , NO X , CO, and HCl. The results found that burning OCC rejects did not result in increased emissions of TPM, SO 2 , NO X , or CO, but occasionally resulted in a small increase in HCl emissions. 55

EPA's Response: We do not agree with the commenters that OCC rejects should be considered a traditional fuel or alternative fuel since this non-hazardous secondary material, consisting of recycled paper and paper products, has not hist orically been managed as a fuel- -that is, the recycling of OCC and the subsequent use of OCC rejects is a relatively recent activity, nor is it made from virgin materials. However , we believe that these materials are not discarded when used within the control of the generator , such as at pulp and paper mills, since these non-hazardous secondary materials are part o f the industrial process.

The data submitted during the comment period would seem to sugges t that it would or could meet the legitimacy criteria. For example, the data received indicated that OCC rejects have contaminant concentrations that are comparable to, if not less than, coal, wood, and bark, which are all traditional fuels used at pulp and paper mills. While the meaningful heating value of the OCC rejects is lower than 5,000 Btu/lb, as f ired, it can still meet this criterion if it can be demonstrated that the unit can cost-effective ly recover energy from a nonhazardous secondary material. The information submitted a lso demonstrates that OCC rejects are managed as a valuable commodity as they are managed in the same manner as the analogous fuel--bark.

This discussion by EPA would seem to be justification f or concluding the OCC rejects burned by PCA are not solid wastes. However, to explore the i ssue further, we have extracted data for PCA’s OCC rejects from EPA’s CISWI database and shown it in the table below. [See submittal for data table by commenter showing the PCA OCC Rejects Fuel Data]

First, the OCC rejects burned by PCA definitely have me aningful heating value. Second, the OCC rejects are generated on-site from old corrugated co ntainers purchased by the mill from10

retail establishments that are processed to recover and r euse the fibers in the mill production
process.
The rejects are not discarded but are processed to dewater and remove ferrous materials, preparing them for burning as a fuel in the boiler. This oper ation has been in place for many years. Third, PCA’s Combination Boiler #2 burns both coal and bark. Therefore, when making a legitimacy determination, even under the March 21, 2011, NHS M final rule, the OCC rejects can be compared to either of these traditional fuels. When doing so, the only conclusion that can be drawn is that PCA’s OCC rejects contain contaminants at levels comparable to or lower than the traditional fuels the boiler is designed to burn.

This conclusion is further verified when considering EPA’ s proposed reconsideration. Here, EPA clarifies in the proposed rule language that “persons can use ranges of traditional fuel contaminant levels compiled from national surveys, as well as contaminant level data from the specific traditional fuel being replaced.” EPA also place d in the docket a document to assist with this comparison titled “Contaminant Concentrations in Tr aditional Fuels: Tables for Comparison”. When using these tables, it is even more eviden t the PCA OCC rejects meet the legitimacy criteria.

Footnotes: (52) Source: EPA-HQ-RCRA-2008-0329-0774; Since the legitimacy cri terion for contaminants compares concentrations per mass of the material (not per the heating value of the material), all concentrations reported in pounds per billion Btu (lb/billion B tu) were converted into parts per million (ppm) with the assumption that OCC rejects ha ve a heating value of 3,700 Btu/lb (as fired) and that sub-bituminous and bituminous coal (the m ost common types of coal to be utilized in combustion units) have a heating value of 8,500-14, 000 Btu/lb (per Preliminary Characterization Study Prepared In Support of the Proposed R ulemaking--Identification of Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA-HQ-RCRA-2008-0329-0461.21).

(53) Source: EPA-HQ-RCRA-2008-0329-0871.1.

(54) Source: EPA-HQ-RCRA-2008-0329-0774.1.

(55) National Council for Air and Stream Improvement, In c. Technical Bulletin (TB) 906, ``Alternative Fuels Used in the Forest Products Industry : Their Composition and Impact on Emissions.'' September 2005.

Response: In separate comments, the Packaging Corporation of A merica (the operator of the unit discussed in this comment), provided information supporting a claim that the OCC rejects used at its facility are not a solid waste, and, for th is reason, we have removed this unit from the CISWI inventory.

Commenter Name: Richard Holland Commenter Affiliation: Packaging Corporation of America (PCA)11

Document Control Number: EPA-HQ-OAR-2003-0119-2585-A2 Comment Excerpt Number: 1

Comment:

PCA offers these comments in support of moving the Combinat ion Boiler #2 at this facility from the CISWI category to the Industrial and Commercial Bo ilers category.

The December 23, 2011 Federal Register, Part II "NHSM Propo sed Revisions" discusses "Revisions to the Contaminant Legitimacy Criterion for NHSM Used as Fuels" (in Section D.2.c of the preamble). This Boiler fires biomass fuel, coal, TDF, OCC rejects and natural gas. EPA has determined that biomass, coal and TDF are traditiona l fuels. It has not made a similar determination for OCC rejects but will allow a determina tion to be made under the legitimacy criterion.

In preparation for the original Boiler MACT regulation, PCA conducted testing of the OCC rejects being fired. In the current proposal (page 80480, Dece mber 23, 2011 FR) EPA stated that "To meet the contaminant legitimacy criterion, persons must compare contaminants in the NHSM they wish to burn to contaminants in the traditio nal fuel the unit is designed to burn". EPA referenced a document "Contaminant Concentrations in Traditional Fuels: Tables for Commparison" in the proposed regulation. PCA has compared an alytical data for OCC rejects and the values listed in the EPA table as summarized be low:

Parameter OCC Sample

(Average) OAQPS Average

Coal OAQPS Average

Biomass

Cl 370 * 992 259 Hg 0.012 0.09 0.03
As 1.035 8.2 6.3
Be 0.075 1.9 0.3
Cd 0.13 ** 0.6 0.6
Cr 1.87 13.4 5.9
Pb 2.01 8.7 4.5
Mn 31.0 26.2 302
Ni 0.50 21.5 2.8
Se 0.85 3.4 1.1

*Average of 6 samples; one sample at 7310 eliminated as out lier

**Average of 6 samples; one sample at 7.1 eliminated as ou tlier12

PCA’s Combination Boiler #2 burns both coal and biomass. Therefore, when making a legitimacy determination, even under the March 21, 2011 NHSM final rule, the OCC rejects can be compared to either of these traditional fuels. When doing so, the only conclusion that can be drawn is that PCA’s OCC rejects contain contaminants at levels comparable to or lower than the traditional fuels the boiler is designed to burn. Therefo re, PCA believes that this unit should be properly classified in the Boiler MACT category. When t he initial notification is required, PCA intends to make such notification showing this unit to be subject to the Boiler MACT requirements rather than the CISWI requirements.

I call your attention to comments being submitted by the A merican Forest & Paper Association (AF&PA). Section V.B.1 of their comments provides a dis cussion that OCC rejects (also known as Recycling Process Residuals) that are burned for ener gy are not solid wastes. AF&PA provides a compelling argument that EPA cannot determine und er RCRA that these materials are wastes. EPA should accept the information provided in the AF&PA comments and agree that OCC rejects are a legitimate fuel. When EPA makes t his determination, the Combination Boiler

#2 at PCA-Counce will definitely not be in the CISWI ca tegory.

Response: Considering the commenter’s claim and supporting informat ion, we have removed this unit from the CISWI inventory.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 8

Comment: EPA Should Correct the CISWI Data Base for Energy Recovery Un its

WTI noted that EPA had made adjustments to the CISWI ERUs population based on supplemental data submitted by the Biomass Power Associati on. This data set identified Wheelabrator Shasta Energy Company as a possible CISWI facility based on the plant’s past combustion of small amounts of creosote treated wood. As result of this outdated information, EPA moved the Wheelabrator Shasta Energy units from th e Boiler MACT to CISWI unit population. We respectfully request that EPA remedy this e rror. The Wheelabrator Shasta Energy facility no longer combusts any non hazardous sec ondary materials (NHSM) that may now be considered solid waste under NHSM rule and has not d one so for the past two years. This facility will continue to combust non waste materials and therefore will not be subject to final CISWI rules.

Response: These three Wheelabrator units have been removed from the CISWI inventory, and emissions data associated with the units were not incor porated in the development of the revised standards.

Commenter Name: Stephen R. Gossett, Senior Environmental Associate Commenter Affiliation: Eastman Chemical Company13

Document Control Number: EPA-HQ-OAR-2003-0119-2569-A2 Comment Excerpt Number: 2

Comment: Test results from units burning less than 90 percent coal should not be used in the floor setting for the coal-fired subcategory.

In the event EPA disagrees with our comment that the P CA Combination Boiler #2 is not a CISWI unit, we believe the test data from this unit shoul d not be used in setting floors for the coal ERU subcategory. There are not stack test data for this unit in EPA’s database where the unit was burning more than 90 percent coal. For the same rea sons as EPA determined for the Boiler MACT (see November 2011 Revised MACT Floor memo, page 4), test data should not be used unless the unit was firing the minimum threshold of 90 perce nt for a particular subcategory. Response: As we discuss in response to excerpt 1 from this comme nter, we have removed the PCA unit from the CISWI inventory.

Regarding the issue of excluding test results for units bur ning less than 90 percent coal, we noted that the March 2011 final rule was establishing subcategories for energy recovery units (ERUs) designed to combust solid wastes (ERU solids) and units desi gned to burn liquid wastes with liquid or gaseous fuel (ERU liquid/gas). The ERU solids sub category was further subcategorized into units designed to burn coal and units designed to burn bio mass for CO, NOx, and SO2 (76 FR 15733). As we discuss in the March 2011 rule (76 FR 15733), we we re aware that some ERUs burn a combination of fuel types, but ERUs are desig ned based on the primary fuel type and can encounter operational problems if another fuel ty pe that was not considered in its design is fired at more than 10 percent of the heat input of the unit. We therefore subcategorized units that burn at least 10 percent coal as being in the solid f uel/coal subcategory, with the remainder of the units being in the biomass subcategory for ERUs. I n doing so, we have acknowledged that combinations of fuels and wastes are acceptable and likely w ithin the types of units found in the CISWI ERU population. The commenter argues that we shoul d exclude data from units that burn less than 90% coal at the time of testing in setting em ission limits for the coal ERU subcategory, which is not consistent with the definition of units wit hin the ERU coal subcategory as discussed above. The commenter states that this approach was used in the boiler NESHAP, and should therefore be used in CISWI as well. We disagree, howev er, and think the commenter has not accounted for the waste burning aspects of CISWI ERUs. U nlike boilers, which have subcategories for the various traditional fuels, CISWI unit s encompass a wide variety of units burning various types of waste in addition to traditional fue ls. To exclude the less than 90% coal emission tests as the commenter recommends would there fore not address the variability in ERU waste and fuel feed combinations in which the affected CIS WI ERU units operate.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 1414

Comment: When a source combusts only one type of fuel at al l times, determining which emission limit to apply is straightforward. However, m any sources combust different types of fuels at different times and a substantial number of sourc es combust different mixtures of these fuels at different times. In developing its Model Permit Guidance, 35 NACAA attempted to address this issue by examining test results where only one t ype of fuel is employed to set the recommended range of suggested limits. It was anticipated t hat state and local permitting authorities would then determine the appropriate procedure fo r establishing permit limits on a case-by-case basis, either by applying the limit that was the most stringent at all times, by determining the weighted average of relevant limits or by requiring a compliance demonstration based on full utilization of one fuel. EPA has taken a di fferent approach. It has adopted a “designed to combust” test and a hierarchical scheme for determining the fuel category of a source. [Footnote: 35 See http://www.4cleanair.org/Documents/RHAP.pdf.]

Response: As we discuss in the March 2011 rule (76 FR 15733), we were aw are that some ERUs burn a combination of fuel types, but ERUs are desig ned based on the primary fuel type and can encounter operational problems if another fuel ty pe that was not considered in its design is fired at more than 10 percent of the heat input of the unit. We therefore subcategorized units that burn at least 10 percent coal as being in the solid f uel/coal subcategory, with the remainder of the units being in the biomass subcategory for ERUs. In doing so, we have acknowledged that combinations of fuels and wastes are acceptable and likely w ithin the types of units found in the CISWI ERU population. The current population of CISWI units in this final rule is based on our knowledge of the final NHSM rule. The emission limits a re based on data collected for units in the CISWI population. The methodology for establishing emis sion limits has been discussed in prior notices, and is not being reconsidered in this final rule. By analyzing the performance of the units in the CISWI inventory, we are accounting for the v ariety in fuel and waste feeds represented by these units. We disagree that the commente r’s suggested approach must be adopted. EPA must establish standards for CISWI units bas ed on the information available to it and EPA cannot delay the promulgation of the standards to co llect the data suggested by the
commenter..

Commenter Name: Stephen R. Gossett, Senior Environmental Associate Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2569-A2 Comment Excerpt Number: 3

Comment: Test results from tests conducted with no solid waste ( as determined using EPA’s proposed clarifications) burning during the test should be remo ved from EPA’s floor determinations.

Discussion: From our review of EPA’s database and ICR s urvey and test reports, we have identified several test results used in EPA’s MACT floor determinations (see Appendices B and C to the MACT Floor Memo) during which no solid waste was being combusted. Such test data should be removed from EPA’s MACT floor analysis.

Our determinations of secondary materials as solid wast e were made using EPA’s preamble discussion (see pages 80746-80482 of the December 23, 2011, Federal Regi ster) along with the15

document EPA placed in the docket and referenced with footnote 45 on page 80481 (Contaminant Concentrations in Traditional Fuels: Ta bles for Comparison). This discussion includes use of comparisons to the upper end of a statistic al range and comparing to any traditional fuel a unit is designed to burn (even if it is n ot permitted to burn) and having an appropriate feed mechanism.

[See submittal for data table showing the test results t hat appear to be non-representative of CISWI units and should be excluded].

Response: The current population of CISWI units is based on our kno wledge of the final NHSM rule. EPA has determined that it is only appropriat e to remove units from the CISWI inventory if the commenter provides information showing th at the unit(s) in question are combusting categorical non-waste material and/or tradit ional fuel, or if the owner of a unit establishes that the secondary materials combusted in t heir unit are legitimate alternative fuels generated on site. If a unit in the CISWI database meet s the definition of a solid waste incineration unit, the units data may be used in establishing th e standards, unless the information in the test report indicates that the data was generat ed when the unit was not combusting solid waste at the time of the test. In this case, we woul d remove the data from emission limit calculations for CISWI units.

Furthermore, we have acknowledged in this rulemaking that units in the ERU and waste burning kilns subcategories may start and stop combusting solid was te, and we have accounted for that fact by including in the definition of CISWI unit a requirem ent that units remain subject to CISWI for 6 months after adding solid waste to the combust ion unit. The rule does not require that waste be burned at all times and we understand that units will often operate without any solid waste inputs.

For compliance purposes, EPA maintains that data generate d by a solid waste incineration unit is valid even if no solid waste is combusted during the test b ecause sources must comply with the standards at all time. We have acknowledged in this rule making that units in the ERU and waste burning kilns subcategories may start and stop combusting solid w aste, and we have accounted for that fact by including in the definition of CISWI unit a requirement that units remain subject to CISWI for 6 months after adding solid waste to the co mbustion unit. The rule does not require that waste be burned at all times and we understan d that units will often operate without any solid waste inputs. Absent the use of all data in det ermining compliance for CISWI units, it would be very difficult to assure compliance with the fi nal rule, particularly for standards that are complied with using continuous emissions or parameter monito ring.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 1

Comment: The universe of units to be regulated as CISWI is based o n a proposed rule “Identification of Non-Hazardous Secondary Materials (N HSM) That Are Solid Wastes,” which is included in the same Federal Register notice as the pro posed changes to the CISWI rules. Although EPA has proposed several changes that reduce the uni verse of regulated units from that16

previously contemplated under the 2010 proposed rule, comments being submitted on the two proposed rules by several parties demonstrate that some o f the units EPA is still proposing to regulate under the CISWI rule do not in fact burn solid was te. Many of the NHSM that EPA presumes to be solid waste are in fact fuels. As EPA has not yet finalized the changes to the NHSM rule, we do not know how EPA can properly determine what units to include in the CISWI analysis. In fact, we suspect that EPA arbitraril y classified sources burning NHSM as CISWI if the sources indicated on their Information Co llection Request (ICR) survey response that they would continue using the units to burn the NHS M for any materials that were determined to be solid waste, but would stop using them as b oilers for any NHSM that were determined to be waste. Nonetheless, further changes are needed to the proposed CISWI rules to ensure the standards reflect what units will actually be abl e to achieve.

Response: The commenter appears to confuse the manner in which EP A determined whether units are included in the CISWI inventory with the manner in which the Agency establishes the standards.

For CISWI, the regulated community has the potential to s hift due to changes in inputs, but EPA must establish standards based on the information available at the time of the rulemaking. Operators had ample opportunity to review the units EPA include d in the CISWI inventory and correct any errors in the record, as many did. EPA inc luded in the CISWI inventory units that indicated in the ICR that they combust solid waste as t hat term is defined in the NHSM rule. If a source provided information in the comment period that cl early demonstrated that the unit was combusting only non-waste material, we removed the unit f rom the CISWI inventory. Otherwise, the unit was included in the inventory.

The current population of CISWI units is based on our knowle dge of the final NHSM rule, as clarified in this final rule, and on the data and other inf ormation provided by the regulated community. As noted in response to EPA-HQ-OAR-2003-0119-2628-A2, e xcerpt 8, some sources have indicated their units no longer burn a mater ial that could be a solid waste and we have therefore removed them from the CISWI population and their data was not considered in establishing the final CISWI standards.

Based on the units identified, EPA established standards at l evels that have been achieved in practice by the best performing source or sources using data from those sources. We maintain that the final standards are established consistent with the statute as described in the rule making record. See “CISWI Emission Limit Calcuations for E xisting and New Sources for the Reconsideration Final Rule” memo dated November 16, 2012 in th e CISWI docket.



### 2B02. ERU Pollutants subcategorized

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 1917

Comment: EPA is taking comment on the proposed revisions to the subcategorization of ERUs, including whether HCl and Hg should be subcategorized. 76 Fed. R eg. 80458. Fuel flexibility is an important factor in the operation of many industrial facilities, and fuel cost is usually one of the top three costs of doing business. Many facilities h ave committed to a single solid fuel, such as coal, but other facilities burn a mixture of fuels. E PA should set limits for HCl and Hg for solid fuel-fired units that ensure the maximum number of sources can achieve the limits and that do not disadvantage users of any one particular fuel. EPA has the discretion and should include a fuel variability factor in the MACT floor analysis fo r the solid fuel subcategory HCl and Hg limits so fuel pollutant content variability among the t op performers is adequately considered. This approach would make achievability of these standards mor e viable, while reflecting the real world operational and fuel variability that boilers experi ence.
Response: EPA maintains that it has adequately accounted for vari ability in establishing final standards that are achieveable for sources in the differ ent subcategories, and we note that we have not opened in this reconsideration proposal the meth odology the Agency uses to establish the MACT floor level of control, including the variabili ty analysis. The commenter has provided no data to indicate that sources will be unable to meet the standards in the final rule.

In the final rule, we have subcategorized coal and bioma ss ERUs for all 9 CAA section 129 pollutants, including Hg and HCl. For the comment response s to our decision to subcategorize all pollutants between coal and biomass-fired units, we re fer to section II.E of the preamble to the final rule. As we discuss elsewhere in this comme nt response document, we are not incorporating a fuel variability factor into our emission li mit calculations for CISWI.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 7

Comment: EPA should establish a separate a SO 2 limit for an Energy Recovery Unit (ERU) subcategory that combusts biomass and tires.

WTI operates the Wheelabrator Ridge Energy Facility (WRE F) in Polk County Florida. The facility began operation in 1994 and consists of a 630 MMBtu/h r multi

‐ fuel stoker fired boiler providing steam to a 50 MW generator for sale of electricit y to the local utility. The boiler is fueled by a mixture of municipal solid waste including yard waste and tires, non

‐ municipal biomass including clean cellulosic biomass (agricultural w aste and forest debris), biomass derived solid waste, and landfill gas. The facility typi cally combusts between 30,000

‐ 40,000 tons of tires annually. Tires are received whole and chipped on site (belts are not removed) or as direct deliveries of chipped tires. Tires may or may not b e derived from tire collection programs. Chipped tires are fired simultaneously with the biomass fue ls to ensure optimum combustion and boiler heat input. Tire combustion is limited by the ai r permit to 18,505 lbs/hr or approximately 40% of total boiler heat input. The boiler is equipped with selective non

‐ catalytic reduction (SNCR) for NO X

control, a lime slurry spray dryer absorber (SDA) for SO 2 or acid gas control and a fabric filter. The SDA was designed for the cont rol of SO 2 associated with combustion of tires. WTI conducted a variability analysis of the SO 2 hourly data to determine an achievable SO 2 emission limit for combustion of tires and biomass f uels. The findings are summarized18

below. WTI compiled hourly average CEM SO 2 outlet data in ppm @7%O 2 for the period of January 1, 2011 to June 6, 2011. Three different types of average s were used for variability analysis—30

‐ day rolling averages, 24

‐ hour block averages, and 3

‐ hour rolling averages. The averaging times were based on the on the following: 1) us e of 30 day rolling average SO 2 CEM compliance option in CSIWI rule, 2) 24 hour block average co nsistent with MACT CEM based limit for MWCs and 3) 3

‐ hour rolling average provides variability associated with runni ng 3

‐ 1 hour stack tests to demonstrate compliance. The 99% upper co nfidence limit (UL) was calculated for three different averages in accordance with the fo llowing equation: [See submittal for following equation provided by commenter]. Results of the av eraging time variability analyses and 99% UL are summarized in the table below: [See submitt al for data table provided by commenter]. Despite being equipped with a high efficiency S DA the variability analysis demonstrates the revised solid fuel ERU SO 2 limit of 7.3 ppm 7% O 2 is not achievable even using the alternative 30 day average provided in the revised r ule.

An achievable SO 2 limit for the subcategory of solid Fuel ERUs combusting tires and biomass derived fuel based on the 99% UL would be 48 ppm 7% O2 using the 30 day rolling average alternative. This proposed revised limit is an order of magnitude below 650 ppm limit allowed for coal fired solid fuel ERUs. The fa cility meets or exceeds all other limits for solid fuel fired ERUs. We believe incorporating a sepa rate SO 2 limit for a solid fuel subcategory for ERUs co

‐ combusting tires and biomass derive fuels is consistent w ith EPA’s intent for granting reconsideration of the sub

‐ categorization approach.

Response: We have not established a subcategory for biomass and t ire-derived fuel energy recovery unit as the commenter suggests, as we do not have sufficient information to conclude that the unit in question meets the definition of a CISW I unit. To begin with, the fuel mix described by the commenter, and the facility name, would s eem to indicate this unit would more likely be characterized as a waste-to-energy facility than a CISWI, which would be regulated under either the large or small municipal waste combustor (MWC) rules (40 CFR 60 subparts AAAA, BBBB, Eb, or Cb). Therefore, we have not list ed this unit in the CISWI inventory. We encourage the commenter to review applicability of CISWI, MWC rules and the boiler NESHAPs with respect to their combustion unit and, if appl icability questions persist, consult the implementing agency in requesting an applicability dete rmination from the Administrator.



### 2B03. ERU emission limits

Commenter Name: Edward J. Wilusz Commenter Affiliation: Wisconsin Paper Council Document Control Number: EPA-HQ-OAR-2003-0119-2582-A2 Comment Excerpt Number: 1

Comment: Although the manufacturing sector nationally is showi ng signs of life, much of the pulp and paper industry remains challenged by global competiti on and fundamental shifts in the marketplace. While we strongly believe that environmenta l and economic progress are compatible goals, the proposed standards are simply not ac hievable. The agency has projected that only two units out of 95 existing units will meet the pr oposed limits.19

Response: EPA established the standards consistent with the stat ute, we did not change the methodology between the 2011 Final CISWI rule and the recon sideration proposal, and we did not open the methodology for comment in the reconsidera tion proposal. We note that the fact that most facilities cannot presently achieve all of the nine pollutant limits does not mean that the standards are not achievable, and only shows that plants will need to reduce their emissions of certain pollutants to meet standards reflecting the aver age of best industry performers for that pollutant. The idea is to set limits that, as an initia l matter, require all sources in a category to at least clean up their emissions to the level that their best performing peers have achieved. See CAA section 129(a)(2). With the appropriate control techno logies in place, we maintain that these standards are achievable by the sources in the CISWI subcategories.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 13

Comment: The December 2011 CISWI reproposal contains the followi ng limits for biomass, coal and solid fuel CISWI units, some of which we believe are extremely problematic, in that the limits may not be achievable even with the most robust pol lution control technologies available. [See submittal for tables of limits provided by commenter.]

Response: We do not agree the commenter that the standards are n ot achievable, and the commenter has not provided information or data that suppo rt the claim. We believe that there are controls available that will achieve the final sta ndards.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 14

Comment: The biomass CISWI limit for SO 2 of 7.3 ppmv was derived from 3 tests (3 runs each) corresponding to 3 biomass boilers (ALIPRiverdale , MEHuberEngineeredWoodLLC, OKIPValliant). Generally, when essentially 100% biomass with perhaps small amounts of extraneous sources of sulfur are burned in a boiler, the SO 2 emissions are expected to be minimal, as was the case for these 3 boilers. Howeve r, when NHSM containing sulfur are mixed in with the biomass, even accounting for the “in-situ” s ulfur capture that is inherent for most biomass/bark-fired boilers, low levels of SO 2 , in the range of 50 to 100 ppm, could result in the boiler exit before any secondary control is applied. For such low, uncontrolled levels, it would be very difficult even for a very efficient SO 2 scrubber (such as a spray dryer absorber) to reduce the SO 2 -laden gases down to levels below 10 ppm. In other words, it is not too difficult to reduce the SO 2 levels in a coal-fired boiler flue gas from about 500 or 1000 ppm down to 50 or 100 ppm (>90% removal), but the same level of control efficien cy would be very difficult to obtain if the uncontrolled levels drop below about 100 ppm. We recommend th at a common limit for SO 2 be applied to coal and biomass CISWI units, since ultimately t he level of control is dictated by technological limitations of flue gas SO 2 control.20

Response: We have discussed the rationale for subcategorization in section II.E of the preamble to the final rule. The SO 2 emission limits were subcategorized in the March 2011 fina l rule, and the calculated emission limits are based on an analys is of the data from the best performing units within the subcategory. EPA established the final standards consistent with the requirements of the CAA and sources must determine whether to install co ntrols to comply with the final standards, cease combusting solid waste and comply with a ny otherwise applicable section 112 standards, or cease operations. We further believe that t here are controls available that will achieve the final standards, and we have accounted for the costs of such controls where it appears necessary in our costing analysis. While there are several biomass boilers that meet the SO2 limit, there are a few units that we estimate may require a combination spray dryer absorber/ fabric filter (aka DIFF in costing analyses) coupled with a polishing wet scrubber. The removal efficiencies of these control should be adequate to meet the final emission limits. See the “Final Reconsideration Compliance Cost Analyses fo r CISWI Units” dated November 26, 2012 in the CISWI docket.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 16

Comment: The biomass and coal (solid fuel) CISWI limit for HCl of 0.5 ppmv was derived from 4 tests (3 runs each) corresponding to 4 boilers (A LIPRiverdale, TXInternationalPaper QueenCity, WALongviewFPP, WINSPWAshland). All four were bi omass-fired boilers.

The discussion provided above for SO 2 emissions and control at low levels of SO 2 also applies to HCl, although with HCl being a stronger acid, the level o f control achievable is generally much higher. Nevertheless, maintaining HCl emissions at leve ls below 0.5 ppm would be both a technological challenge in terms of control and an an alytical challenge in terms of measurement. Unless great care is taken, the detection limits for HC l could easily approach the 0.5 ppm level. Further, when the uncontrolled emission levels of HCl are on the order of 10 to 20 ppm, installing a scrubber for HCl emissions control is an ec onomically infeasible option. In-duct HCl control by injection of lime or dolomite may not cons istently yield results of HCl levels in the stack below 0.5 ppm. We suggest that the HCl limit be set a t a level above the measurement (lab + stack) quantitative limit for HCl and above levels that can be met consistently by injection of trona or other alkaline absorbents into the flue gas duct s treams.
Response: We have discussed the rationale for subcategorization in section II.E of the preamble to the final rule. EPA established the final standards co nsistent with the requirements of the CAA and sources must determine whether to install controls to comply with the final standards, cease combusting solid waste and comply with any otherwise applicable section 112 standards, or cease operations. We further believe that there are controls available that will achieve the final standards, and have accounted for possible control combinati ons sources may consider using in our cost analysis. As we discuss in response in excerpt 14 from this commenter above, some units may require combinations of DIFF controls coupled with polishing wet scrubbers or caustic scrubbers to meet the limit. The removal efficiencies of these control should be adequate to meet21

the final emission limits. See the “Final Reconsidera tion Compliance Cost Analyses for CISWI Units” dated November 26, 2012 in the CISWI docket.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 2

Comment: A comparison of the CISWI MACT ERU standards with Boiler MA CT standards shows that the CISWI standards are irrational and bias ed against ERUs that recover renewable energy from biomass wastes. EPA should exa mine its CISWI MACT standards and identify and resolve irrational outcomes, includ ing the bias against units that recover energy from waste.

A comparison of CISWI MACT ERU emission standards with Boiler MACT standards reveals a clear bias against CISWI ERUs. Consider a stoker-fired bo iler unit burning coal and biomass. Table 1 shows the applicable proposed standards; Boiler MAC T standards apply when the unit burns coal or biomass fuel and CISWI ERU MACT standards a pply when the unit burns any amount of biomass waste [see submittal for comparison ta ble provided by commenter]. The table presents emission limits in uniform concentration units which allow direct comparison (see table footnotes). As can be seen CISWI MACT standards are in nearly all cases more stringent, more than 30 times more stringent in the case of hydrogen chlor ide. 2

These comparisons show EPA’s rules clearly disadvanta ge units that combust biomass wastes to recover renewable energy as compared to those that burn fossil fuel and virgin biomass. Other than CO, which is related to fuel combustion properties, t he differences in standards are irrational. MACT standards are based on technology, an d the technology of the boiler unit in question is identical whether burning fuel biomass or waste biomass. Biomass contaminant levels could be a factor, but if they were the conta minant levels would be expected to be greater in waste than in fuel 3 and therefore the CISWI MACT limits for a given techno logy, if different at all, should be higher than Boiler MACT limits since the air pollution control device would typically work on a first order kinetic (percent remova l) principle. The obvious conclusion is that these standards are inconsistent with logical expectat ions.

EPA should examine these dramatically different standar ds and revise them to remove the bias against CISWI ERUs. EPA should not blindly apply its meth odology to produce standards that are irrational and contrary to sound public policy. EPA cann ot say that the law requires individual numerical standards to be more stringent for CIS WI units; both Sections 112 and 129 apply the same requirements -- standards based on the em issions limitations achieved by the best 12% performers.

[Footnotes:

2 Even distillate fuel oil combustion generates hydrogen chl oride emissions 20 times higher than the proposed CISWI ERU Solids/Biomass limit. (State of Maryland DNR, “Hydrogen Chloride Emissionsfrom Maryland Utility Boilers”, PPRP-118, June 1999. )22

3 The NHSM Rule (inappropriately) links the definition of “discard” to the levels of contaminants, so it is logical to expect NHSM that is solid waste would contain higher levels of contaminants than traditional or non-waste fuels.]

Response: We do not agree with the commenter. The commenter fi rst incorrectly implies that EPA may set the same standards for similar existing units subject to section 112 and section 129. The statutory provisions require the Agency to set st andards for existing sources based on actual data from existing sources in the given category or subcategory. See CAA sections 112(d)(3) and 129(a)(2). The commenter also states that units i n the subcategory cannot meet the standards, but the standards are based on actual data submitt ed by the facility owners and operators. EPA used all the available data from the best performing source or sources in establishing the MACT floor levels of control as the s tatute requires. To the extend we received additional data during the public comment period, we incorpora ted that data into the calculations for the final standards, which were established using the sa me methodology used in the 2011 CISWI rule. It is expected that a considerable majority of existing sources will have to take some steps to comply with MACT standards because the standar ds are based on the best performing 12 percent of sources in each category or subcategory.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 1

Comment: To the best of our current knowledge, the Dow energy recovery unit that will be subject to this rule currently and without retrofit can me et all of the emission standards with the exception of the NO X

standard. Although retrofit cost for this unit has not b een estimated, manufacturing personnel expect that the cost of retrofitting this unit with NO X control would be very high. The credit received for the steam the unit generates cannot overcome the expected retrofit cost and the long-term increased operational co sts (operation of NO X control, annual performances tests, etc.). It is also unknown if a re trofit would reach the 76 ppmv required level since the unit burns a solid waste that contains organic-b ound nitrogen. Therefore as the emission standards currently stand, the Dow energy recov ery unit likely will be forced to shut down.

The manufacturing facility that operates the energy rec overy unit also generates the solid waste that is burned in it but will most likely continue to ope rate and generate the same solid waste that contains organic-bound nitrogen. Without the energy recover y unit, the solid waste will be diverted to a different type of unit which also has no capa bility to recover energy. Dow believes that such an outcome is contrary to government policies that encourage energy conservation. It is also troubling that EPA stated in the proposed rule of Ju ne 4, 2010, (75 FR 31956) that the agency fully expected most CISWI to cease operation under the proposed emission standards. In the final CISWI rule, the emission standard for NO X actually decreased from 130 ppmv to 76 ppmv, thereby bearing to fruition EPA’s expectation speci fically for Dow’s energy recovery unit.

In particular, with respect to NO X (75 FR 31957; June 4, 2010), EPA described that selective noncatalytic reduction technology is effective in reduc ing NO X by 30-50%, and that further23

reductions might require changes in combustion controls. However, EPA neglects to mention that much published literature admits that such combustion co ntrols can increase carbon monoxide emissions, also a CISWI pollutant. For a unit th at happens to burn a solid waste that contains organic-bound nitrogen, such reductions are dubious at b est and may not reach the 76 ppmv level in the March 21, 2011 rule without aggravating carb on monoxide emissions and requiring even more add-on control.

For example, for a burner to successfully manage an orga nic-bound nitrogen material, the burner must be specifically designed for that purpose. Typicall y, such burners will combust the fuel in an oxygen starved chamber to minimize the oxygen available f or NO X formation. However, this operation leads to very high CO levels. Subsequently, the combustion product is injected with additional air and steam in order to complete the combus tion process, but without bound nitrogen and with combustion temperatures low enough to avoid forma tion of thermal NO X . This operation cannot be accomplished by simply modifying burner design but by modifying the entire combustion chamber as well as the air injectio n points and the control system. It will also require a much larger chamber in order to insure adequate des truction at the reduced temperatures. All of these changes would be a significant capital investment, assuming space is available for the additional equipment.

Then to follow the redesigned burner chamber and to full y reach some performance below the 76 ppmv level using selective, non-catalytic reduction technolo gy, there has to be sufficient residence time at the appropriate temperature to allow the SNCR chemistry to work. For a small unit such as Dow’s 24 MM BTU/hr unit, there would be insuffic ient time after the boiler section to allow the reaction to complete. The solution is to a dd stack or an additional chamber to allow time for the chemistry to work, assuming the space is av ailable for an existing unit. These changes would also require a significant capital investm ent, and would not really address the elevated CO caused by the burner modification described in the previous paragraph. Ultimately, EPA’s solution in the NO X discussion in the proposed rule is not useful.

Response: EPA established the final standards consistent with the requirements of the CAA and sources must determine whether to install controls to com ply with the final standards, cease combusting solid waste and comply with any otherwise ap plicable section 112 standards, or cease operations. CAA 129 requires that the EPA determine minimum standards (i.e. MACT floor limit) for each pollutant without regard for cost. The commenter has not demonstrated that the final standards are unachievable, instead focusing on th e costs of compliance and specific issues pertaining to SNCR with respect to their combustion uni t. We note that the discussion of SNCR is our estimate of controls that may be used for units in our analysis and inventory, but is not a prescription of the controls sources must install . The commenter may consider other controls, such as SCR, may be better suited for their particular application. Regarding the inverse relationship between CO and NO X with regard to combustion control, it is incumbent upon the CISWI facility to determine whether combustion conditions can be adjusted to meet both standards and, if not, install add-on NO X controls as necessary.

To the extent the commenter is suggesting we consider fuel variability, we address the fuel variability issue in the proposed rule and requested specific emissions information if commenters wanted EPA to consider fuel variability. See 76 FR 80462. The commenter has not provided the type of data that would allow the Agency to consider fuel variability in establishing the MACT floors for the pollutants of concern to the commenter

.24

Commenter Name: Roger Martella Commenter Affiliation: National Alliance of Forest Owners (NAFO) Document Control Number: EPA-HQ-OAR-2003-0119-2595-A1 Comment Excerpt Number: 4

Comment: With respect to the remaining emissions limits include d in the proposed Major Source (and CISWI) rule, NAFO urges EPA to consider both the necessity of imposing stringent emissions limits on biomass boilers from a public healt h perspective as well as the impact that expensive control technology will have in discouraging the use of this clean, renewable, and climate-beneficial energy source. While EPA’s proposed em issions limits represent in some cases an improvement over current standards, they do not go far enough in correcting the flaws in the current rule.

NAFO supports EPA’s proposal to impose less stringent emis sions standards on new biomass boilers. This proposal remains consistent with EPA’s l egal obligations under section 112 of the Clean Air Act, while removing compliance-based barriers to bioenergy development. With the exception of mercury, which is discussed above, the propos ed emissions limits for new boilers represent a marked improvement over current standards and, at a minimum, we urge EPA to adopt these standards.

Response: To the extent these comments address the CAA sectio n 112 standards applicable to boilers and process heaters, we need not respond in this document. In this final CISWI action, EPA is establishing standards for solid waste incineratio n units located at commercial and industrial facilities. EPA must establish standards for uni ts combusting biomass material that is solid waste consistent with CAA section 129, and those s tandards must reflect the MACT level of control. See CAA section 129 (a).

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 15

Comment: The biomass CISWI limit for Cd of 0.00078 mg/dscm was deriv ed from 3 tests (3 runs each) corresponding to 3 biomass boilers (CAWheelab ratorShasta, LAIPMansfield, MEHuberEngineered WoodLLC). The biomass CISWI limit for Pb of 0.0019 mg/dscm was also derived from 3 tests (3 runs each) corresponding to 3 biomass boilers (ALIPRiverdale, CAWheelabratorShasta, MEHuberEngineered WoodLLC).

Figures 1 and 2 show the levels of Cd and Pb measured in the stack gases of 31 pulp mill boilers (from a total of 33) that were initially deemed to be CISW I units following the ICR effort [see submittal for graphs containing Cd and Pb emissions data provide d by commenter]. These figures show that the majority of the boilers could no t have met the current proposed limits of 0.00078 mg/dscm for Cd and 0.0019 mg/dscm for Pb.

Cd and Pb are HAP metals that are present in the fuel burned in a boiler. As such, their concentrations could vary significantly across all kinds of biomass or NHSM from across the U.S that could be burned in a boiler. The boilers with the lowest Cd or Pb emissions are also the25

boilers having the lowest levels of Cd or Pb or both in the fuels burned, rather than the highest level of PM emissions control. The addition of a fuel variability factor, similar to that used in the Industrial Boiler MACT floor analysis, would help take t he effect of fuel pollutant content into account and improve achievability.

Response: CAWheelabratoShasta units’ data were removed from the ERU inventory and MACT floor analyses re-run for biomass ERUs. The revis ed limits for Cd and Pb are 0.014 mg/dscm and 0.0014 mg/dscm, respectively. Changes to the emissi on limits for Cd and Pb are discussed in Section II.C. of the preamble to the final rule (“Summary of Significant Changes Since Proposal”). We address the fuel variability iss ue in the proposed rule and requested specific emissions information if commenters wanted EP A to consider fuel variability. See 76 FR 80462. The commenter has not provided the type of data tha t would allow the Agency to consider fuel variability in establishing the MACT floors for these pollutants.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 19

Comment: New and modified sources subject to section 165 of the CAA must install “the best available control technology” (BACT) for a number of criteria pollutants regulated under the CAA, including, as relevant here, CO, sulfur dioxide (“SO 2 ,”), nitrogen oxide (“NO X ”) and mercury. In the proposed rules EPA is setting limits for certain pollutants based on the application of “the maximum achievable control technolog y.” There is nothing in the plain text of the CAA or its legislative history that suggests that Congress intended MACT, which applies to emissions of highly toxic and carcinogenic pollutants, to be less stringent than BACT, which applies to criteria pollutants. Indeed, for new sources it is clear that Congress intended MACT 39 to be at least as stringent as the lowest achievable em ission rate (LAER), which is generally recognized as being more stringent than BACT. Regulatory authorities are to consider costs when establishing both BACT and MACT limitations that a re more stringent than the MACT floor. There is nothing in the CAA that speaks to how E PA and permitting authorities must weigh costs against other considerations in establishing BA CT. However, there has been a substantial body of precedent that speaks to this issue. In contrast, in establishing a requirement for a MACT floor, Congress effectively set a floor o n what should be considered reasonable costs for MACT control technologies. Since MACT may be no less stringent than the performance level of the best-performing 12 percent, the co sts to those sources of achieving that level of performance (including the worst-performing unit within a subcategory) must be within what was considered to be appropriate for MACT sources i n that subcategory. This is of particular relevance to the set of rules under conside ration, where the cost of control for similarly situated units is essentially the same but the calculate d MACT floors are substantially different. In its MACT determinations EPA needs to explain how an em ission limit imposed for a unit subject to section 129 (and therefore presumably meeting the r easonable cost test for MACT) is not reasonable for an identical unit subject to section 112. If the PM and mercury limits remain roughly as proposed for existing sources, 40 few sources will desire to be regulated under section 129. Most sources will argue that they get a "meaningful" c ontribution to the overall combustion process from what they burn. This will increase the leve l of disagreement over whether a26

material is a waste and may result in fewer sources b urning waste materials. Some sources (with low CO levels) might find it in their interests to as sert that they are incinerators rather than energy recovery units. Thus, the definitions of "solid waste" and "incinerator" may matter to a number of sources.

[Footnotes:

39 The MACT floor definition is essentially the same a s the definition of LAER, which applies to new and modified sources in nonattainment areas.

40 NOx and SO2 limitations under section 129 may also discour age combustion of solid waste. This issue can be addressed by EPA when it adopts emissio n limitations for large industrial units under Phase II of its Transport Rules.]

Response: We have subcategorized units to the extent we determi ned appropriate within the CISWI population, to reflect similar design consideratio ns as subcategories for non-CISWI units. In addition, the fact that certain solid waste inciner ation units are similar to units regulated pursuant to section 112 does not authorize EPA to set simila r or the same existing source standards for such units under CAA section 112 and section 129. W ith respect to cost, although EPA is required to consider cost when evaluating whether standards should be more stringent than the MACT floors, EPA is prohibited from considerin g costs when determining the MACT floor emission limits. The MACT floor limits are bas ed solely on actual test data from the best performing units within each subcategory for each pollutant. The commenter’s assertions that the CISWI limits are somehow flawed if they do not meet or exceed BACT or LAER limits applicable to criteria pollutants is without merit.

Commenter Name: Vickie Woods, Administrative Assistant Commenter Affiliation: NC Division of Air Quality (NC DAQ), North Carolina D epartment of Environment and Natural Resources (NCDENR) Document Control Number: EPA-HQ-OAR-2003-0119-2631-A2 Comment Excerpt Number: 2

Comment: Change the basis of the ERU standards from exhaust conc entration (e.g., ppmv) to emissions per unit of heat input (e.g., lb/MMBtu). These sources have traditionally been subject to standards based on heat input and the ERU standards shoul d be consistent with this historical approach.

Response: As we discussed in the preamble to the March 2011 final rule (76 FR 15735), CAA section 129 solid waste incineration rules, including the 2000 CISWI standards, have consistently presented numeric limits in stack gas conc entration bases. We are maintaining in the final CISWI standards emission limits based on stack gas concentrations.



### 2B04. ERUs Designed to Burn Non-Coal Solid Materials

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)27

Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 20

Comment: The definitions of coal and biomass ERU subcategories shou ld be revised. EPA should reconcile the definitions of units designed to burn coal in Boiler MACT and CISWI. In the preambles to both the Boiler MACT and CISWI rules, E PA recognizes and discusses that boilers and energy recovery units may switch back and fo rth between Boiler MACT and CISWI as a result of waste to- non-waste fuel or non-waste -fuel-to-waste switches. 76 Fed. Reg. 80501, 80655. Being able to switch between CISWI and Boiler MACT wi ll help provide sources with flexibility in their selection of materials they chos e to combust for energy recovery. In the reconsideration proposals for Boiler MACT and CISWI E PA provides definitions for units designed to burn coal and units designed to burn biomass. Howev er the definitions differ substantially and will create confusion and lead to achievabil ity issues if multi-fuel units are treated as biomass units under one rule and coal units unde r the other. In the CISWI reconsideration proposal, EPA defines energy recovery units designed to burn coal and energy recovery units designed to burn biomass at §60.2265 (76 Fed. Reg. 80501) and §60.2875 as follows (76 Fed. Reg. 80521):

Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that burns solid waste, biomass, and non-coal solid materials but less than 10 percent coal, on a heat input basis on an annual average, either alone or in combinat ion with liquid waste, liquid fuel or gaseous fuels.

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that burns solid waste and at least 10 percent coal on a heat input ba sis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuel s.

The CISWI definitions differ from the definitions in Boiler MACT at §63.7575 (76 Fed. Reg.80650):

Unit designed to burn biomass/biobased solid subcategory includes any boiler or process heater that burns at least 10 percent biomass or bio-based solids on an annual heat input basis in combination with solid fossil fuels, liquid fuels, or gaseo us fuels.

Unit designed to burn coal/solid fossil fuel subcategory includes any boiler or process heater that burns any coal or other solid fossil fuel alone or at le ast 10 percent coal or other solid fossil fuel on an annual heat input basis in combination with liquid f uels, gaseous fuels, or less than 10 percent biomass and bio-based solids on an annual heat input basis.

Therefore, a combination unit burning equal amounts of coal a nd biomass would be regulated as a biomass boiler under the Boiler MACT but would be regula ted as a coal ERU under the CISWI rules if it also burned some solid waste. A combination unit burning significant amounts of biomass but more than 10 percent coal will not be able to comply with CISWI CO emission limits set using data for coal units. Conversely, a unit burning TDF would be regulated as a coal unit under Boiler MACT but would be regulated as a biomass unit under the CISWI rules if it also burned some solid waste. A unit burning TDF will not be able to comply with CISWI 7.3 ppm SO 2 limit set based on biomass units. Units that are categoriz ed as biomass units under Boiler MACT need to be considered biomass units under CISWI , and units that are categorized28

as coal units under Boiler MACT need to be considered coa l units under CISWI. Therefore, we propose the following revised definitions under the CISWI r ule:

Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that burns solid waste, biomass, and non-fossil solid materia ls on a heat input basis on an annual average, either alone or in combination with coal or oth er solid fossil fuel, liquid waste, liquid fuel, or gaseous fuels.

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that burns solid waste and at least 10 percent coal or other solid fo ssil fuel on a heat input basis on an annual average, either alone or in combination with liqui d waste, liquid fuel or gaseous fuels, or less than 10 percent biomass and bio-based solids on an ann ual heat input basis. EPA should also provide definitions in the CISWI rules for “biomass” and “solid fossil fuel” that are the same as those definitions in the Boiler MACT.

Response: As we discuss in the March 2011 rule (76 FR 15733), we were aware that some ERUs burn a combination of fuel types, but ERUs are desig ned based on the primary fuel type and can encounter operational problems if another fuel ty pe that was not considered in its design is fired at more than 10 percent of the heat input of the unit. We therefore subcategorized units that burn at least 10 percent coal as being in the solid f uel/coal subcategory, with the remainder of the units being in the biomass subcategory for ERUs. We have finalized the definition of energy recovery unit designed to burn coal as proposed an d in the March 2011 rule. We have revised the definition for energy recovery unit designed t o burn biomass to clarify that these units combust waste, biomass, and non-coal solid material s, but this is a clarification and does not affect our rationale and intent of our ERU subcateg ories. The definition in the final rule is as follows:

Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that burns solid waste, biomass, and non-coal solid materials but less than 10 percent coal, on a heat input basis on an annual average, either alone or in combinat ion with liquid waste, liquid fuel or gaseous fuels.

The rationale for subcategories of boiler units may be f ound in the regulatory record for the Boiler NESHAP Docket #OAR-2002-0058.

The commenter is correct that sources are allowed to switch fuels and therefore switch between Boiler NESHAP and CISWI applicability if the unit combus ts solid wastes or not. We require that sources provide, in their notification of a wast e-to-fuel switch, the currently applicable subcategory under CISWI, and any 40 CFR part 63 subpart and subcat egory that will be applicable after the CISWI unit ceases combusting solid waste ( § 60.2145(a) and § 60.2710(a)). This measure ensures that there is no confusion or misun derstanding between regulated entities and implementing agencies as to which regulatory requirem ents apply to units before and after a waste-to-fuel switch.

We disagree with the commenter’s position that the sub categories must be the same for the two rules. CAA sections 112 and 129 are distinct statutory provis ions with differing requirements. While both require MACT standards for regulated pollutants, s ection 112 requires regulation of29

HAP emissions while section 129 requires numerical emissi on limits for a combination of 9 identified HAP and criteria pollutant emissions. See CAA section 129(a)(4). Section 129(a)(2) authorizes EPA to subcategorize sources within a source ca tegory based on a difference in class, type, or size of units (similar to section 112(d)(1). The language of both provisions is broad and provides EPA with considerable discretion to decide whether and how to subcategorize sources within a source category. The EPA maintains that, nor mally, a difference in class, type, or size must also be related to an effect on the regulated pollutan ts that results from that difference in the units before subcategorization is appropriate. See 76 FR 25036-25037. Therefore, when evaluating whether to establish subcategories, and how t o do so, EPA looks to the information and other emissions data in the record. For CISWI, E PA determined that the data supported the subcategories that were established, and we have no data that suggests the standards are unachievable for sources in the subcategories. The Agency made a similar evaluation of the data in the record when establishing subcategories for the NE SHAP applicable to industrial boilers.

A key difference in these two rulemakings is that each s ection of the Act requires EPA to establish emissions standards for different pollutants. Spe cifically, EPA must establish emission limits for NOx and SO 2 under section 129, but is not required to do so under section 112. In addition, EPA must set numeric emissions limits for CO and dioxins and furans in the CISWI rule, but, under the boiler NESHAP, CO is regulated only as a surrogate for organic HAP emissions. Thus, in CISWI, EPA must consider emission s data for CO, NOx and SO 2 , along with emissions data for six other pollutants, when determ ining which subcategories to establish in the rulemaking . Certain pollutants for which standar ds are not established under the NESHAP (i.e. NOx and SO 2 ) may affect the subcategorization approach the Agency adopts. For example, as certain commenters noted, the inter -relationship between CO and NOx, where controls used to reduce CO emissions could inversely impact NOx, must be considered when establishing subcategories for CISWI units because EPA mus t establish a numeric emissions limit for each pollutant. In the CISWI record, data s how that CO for coal ERUs averages around 60 ppm, with a NOx average of about 307 ppm. For ERU biomass u nits, however, the best performers have CO emission concentrations in the 150 ppm range, with NOx values around 100 ppm. In addition, EPA must consider SO 2 emissions when establishing subcategories for ERUs. Sulfur dioxide formation in an ERU is dependent upon the level of sulfur in the fuel. Units designed to burn coal generally have far greater emissio ns of sulfur than units designed to burn biomass, and those emissions must be considered in establ ishing the CISWI standards. In the final rule, biomass ERUs are subject to a SO 2 limit of 7.3 ppmv and coal ERUs are subject to a SO 2 limit of 650 ppmv. In sum, EPA considered all the availa ble data in establishing the CISWI subcategory definitions, and the data show that the sources in the different subcategories have different emissions characteristics that, when coupled w ith the differences in unit types, support the CISWI subcategories.

We also disagree that units will not be able to achieve certain CISWI standards if they move from the industrial boiler NESHAP to CISWI applicability due to a change in fuels and the commenters have provided no data to support their claim to the contrary. Operators will have to evaluate the implications of a switch in fuels that ca uses a source to change applicability between the industrial boiler NESHAP and the CISWI rule, but t hat would have been the case even if the subcategorization schemes in the two rules aligned perfec tly. If, as the commenter suggests, an operator determines that a change in applicability will cause a source to be out of compliance with the newly applicable standard, the operator will ha ve to adjust the inputs to assure30

compliance. Such a result is not unreasonable as the commenter suggest. Conversely, it would arguably be unreasonable for EPA to establish subcategories that are identical when the data in the relevant records do not support such an approach.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 38

Comment: Definitions of Coal and Biomass ERU Subcategories Should Be Re vised

EPA should reconcile the definitions of units designed to b urn coal in Boiler MACT and CISWI. In the preamble to both the Boiler MACT and CISWI rules , EPA recognizes and discusses that boilers and energy recovery units maybe switching back and forth between Boiler MACT and CISWI as a result of waste-to-non-waste fuel or non-w aste-fuel-to-waste switches. Being able to switch between CISWI and Boiler MACT will help provide s ources with flexibility in their selection of materials they chose to combust for ene rgy recovery.
In the reconsideration proposals for Boiler MACT and C ISWI, EPA provides definitions for units designed to burn coal and units designed to burn biomass. However, the definitions differ substantially and will create confusion and lead to achievabil ity issues if multi-fuel units are treated as biomass units under one rule and coal units unde r the other.

In the CISWI reconsideration proposal, EPA defines ener gy recovery units designed to burn coal and energy recovery units designed to burn biomass at §60.2265 and §60.2875 as follows:

“Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that burns solid waste, biomass, and non-coal solid materials but less than 10 percent coal, on a heat input basis on an annual average, either alone or in combinat ion with liquid waste, liquid fuel or gaseous fuels.

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that burns solid waste and at least 10 percent coal on a heat input ba sis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuel s.”

The CISWI definitions differ from the definitions in Boiler MACT at §63.7575:

“Unit designed to burn biomass/biobased solid subcategory includes any boiler or process heater that burns at least 10 percent biomass or bio-based solids on an annual heat input basis in combination with solid fossil fuels, liquid fuels, or gaseo us fuels.

Unit designed to burn coal/solid fossil fuel subcategory includes any boiler or process heater that burns any coal or other solid fossil fuel alone or at le ast 10 percent coal or other solid fossil fuel on an annual heat input basis in combination with liquid f uels, gaseous fuels, or less than 10 percent biomass and bio-based solids on an annual heat input basis.”

Therefore, a combination unit burning equal amounts of coal a nd biomass would be regulated as a biomass boiler under the Boiler MACT, but would be regul ated as a coal ERU under the31

CISWI rules if it also burned some solid waste. A combi nation unit burning significant amounts of biomass but more than 10 percent coal will not be able to comply with CISWI CO emission limits set using data for coal units. Conversely, a unit burning TDF would be regulated as a coal unit under Boiler MACT, but would be regulated as a biomass unit under the CISWI rules if it also burned some solid waste. A unit burning TDF will not be able to comply with CISWI 7.3 ppm SO 2 limit set based on biomass units. Units that are categori zed as biomass units under Boiler MACT need to be considered biomass units under CISWI , and units that are categorized as coal units under Boiler MACT need to be considered coa l units under CISWI.

We propose the following revised definitions under the CISWI rule:

Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that burns solid waste and at least 10 percent biomass and non- fossil solid materials on a heat input basis on an annual average, either alone or in combinati on with coal or other solid fossil fuel, liquid waste, liquid fuel, or gaseous fuels.

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that burns solid waste and coal or other solid fossil fuel on a hea t input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuels, or less than 10 percent biomass and non-fossil solid materials on an annual heat input basis.

EPA should also provide definitions in the CISWI rules f or “biomass” and “solid fossil fuel” that are the same as those definitions in the Boiler MACT

. Response: Please refer to the response to comment EPA-HQ-OAR-2003 -0119-2605-A1, above.

Commenter Name: Annabeth Reitter Commenter Affiliation: NewPage Corporation Document Control Number: EPA-HQ-OAR-2003-0119-2645-A2 Comment Excerpt Number: 2

Comment: In the reconsideration proposals for Boiler MACT an d CISWI EPA provides definitions for units designed to burn coal. However the de finitions differ substantially and will create confusion and lead to achievability issues if mult i-fuel units are treated as coal units under one rule and as biomass units under the other. In the CIS WI reconsideration proposal, EPA defines an Energy recovery unit designed to bum coal at §60 .2265 and §60.2875 as follows:

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that bums solid waste and at least 10 percent coal on a heat input ba sis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuels. This CIS WI definition differs from the definition of a unit designed to bum coal in Bo iler MACT at §63.7575:

Unit designed to burn coal/solid fossil fuel subcategory includes any boiler or process heater that bums any coal or other solid fossil fuel alone or at least 10 percent coal or other solid fossil fuel on an annual heat input basis in combination with liqu id fuels, gaseous fuels, or less than 10 percent biomass and bio-based solids on an annual heat input basis. In the Boiler MACT reconsideration proposal (Industrial, Commercial, and I nstitutional Boilers and Process Heaters; 76 Fed. Reg. 80598, December 23, 2012) definition of a unit designed to bum coal EPA uses the32

phrase "10 percent coal or other solid fossil fuel". NewPa ge requests EPA revise the CISWI definition for an Energy recovery unit designed to bum co al to also include the phrase "10 percent coal or other solid fossil fuel". As a result t he CISWI definition is revised as follows to incorporate the bolded language:

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that bums solid waste and at least 10 percent coal or other solid fossil fuel on a heat input basis on an annual average, either alone or in combination with liqui d waste, liquid fuel or gaseous fuels. NewPage is requesting this revision so that EPA does not c reate situations where a multi-fuel unit is considered to be a "coal" unit under Boiler MACT b ut then decides to bum a solid "waste" material and finds it is not a "coal" unit unde r CISWI but is a "biomass" unit. For instance, on an annual heat input basis a unit is burning 8% c oal and greater then 3 %of other solid fossil fuel (such as TDF) and less than 10% of cle an biomass material. Under Boiler MACT this unit would be considered to be a coal unit. Once this unit begins to combust the solid "waste" material and continues to bum 8% coal and gr eater than 3% other solid fossil fuel and biomass, under CISWI this unit would be considered to be a biomass unit because it is not burning at least 10% coal. A unit burning coal and other solid f ossil fuels such as TDF will not be able to comply with the CIS WI subpart DDDD biomass energy recovery unit S02 emission standard of7.3 ppmdv. The definition of a coal unit under CI S WI should be revised to include the phrase "1 0 percent coal or other solid fossil fuel" so units that are categorized as coal units under Boiler MACT will be considered coal units under CIS WI. In the CIS WI rules, EPA should also provide definitions for "biomass" and "solid fo ssil fuel" that are the same as those definitions in the Boiler MACT.

Response: Please refer to the response to comment EPA-HQ-OAR-2003 -0119-2605-A1, above.

Commenter Name: Stuart A. Clark Commenter Affiliation: State of Washington Department of Ecology Document Control Number: EPA-HQ-OAR-2003-0119-2636-A2 Comment Excerpt Number: 4

Comment: We are pleased that EPA proposed to segregate coal fired energy recovery units from other non- hazardous waste, biomass based energy re covery units under the CISWI rule. This segregation will provide much more appropriate alignment of hazardous air pollutant emission limits with the type of fuel.

Response: We are finalizing separate emission limits for all pol lutants for coal fired ERUs and biomass burning ERUs.



### 2C01. Waste-Burning Kiln Inventory

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2652 Comment Excerpt Number: 133

Comment: Prior to the final NHSM and CISWI rules promulgated o n March 21, 2011, in the summer of 2009, EPA OAQPS submitted ICR (information collec tion request) letters to various cement kiln operators/owners, including units determined by EPA-OAQPS to be waste-burning kilns. The information that was requested was split betwe en two separate "Phases". The Phase 1 information request asked for details of the facility, whi ch included information on the fuels burned in the kiln, including any materials burned that may b e considered "solid waste". EPAOAQPS based their determination of CISWI units on the Adv anced Noticed of Proposed Rulemaking (ANPR) defining solid waste under RCRA. This ANPR under RCRA was presumably through EPA-OSWER. Note that the ANPR definitio n of solid waste has changed in the final NHSM rule. For example, tires (whole or chi pped) were expected to be solid waste in the ANPR but the current NHSM rule allows tires to be n on-waste fuel. EPA-OSWER has developed specific criteria to identify secondary materia ls that are not solid waste (see 40 CFR 241).

The Phase II information was for information that incl uded required stack testing to develop emissions data for each kiln system in the Phase II r equest. The request implied that some kiln systems receiving the request were considered a "waste-bur ning kiln" and required kiln operators to conduct specific air emissions testing using EPA-OAQPS me thods. However, the ICR did not specify that the operator must burn a specific type of fue l or secondary material while conducting the required tests even though it was these fuels and/or se condary materials that identified the kilns as a CISWI unit. Additionally, the letter did not plac e any requirements on the operator, or provide any guidance of conditions related to the input of t he materials/fuels while testing (e.g., fuel/feed input rates, material/fuel blending limitations, input location (front or back end on kiln), operating temperatures, pre-testing input conditions, etc). I n addition to the Phase II request, review of questions from operators and stack testing companies that were submitted to EPAOAQPS in response to Phase II testing requests, it is appa rent that the EPA-OAQPS did not require emissions testing be conducted while burning a specif ic type or amount of secondary material or "solid waste". Understandably, EPA-OAQPS di d not have a final NHSM rule to guide such a request. The testing information that was gath ered from each facility during Phase II was then compiled on the EPA's website 4

. Ultimately, the information from the Phase I and Phas e II was used by EPA-OAQPS to determine the CISWI MACT floor. Per requirements of the Clean Air Act, the emissions data were ranked. The EPA ranked within subcategories {e.g., wast e-burning kilns, incinerators, etc.} from lowest emissions to highest emission and then the numerical average of the emissions data from the best performing 12 percent of sources was determine d. For example, the final ranking for particulate matter emissions from "waste-burning" ki lns is as follows: [See submittal for table provided by commenter.]

The three highlighted facilities, as highlighted in yellow , produced the lowest emissions and were among the best performing 12 percent of the sources. D ata from these kilns were then utilized to determine the CISWI MACT floor value (for e xisting kilns, 9.2 mg/dscm @ 7% O2).

In review of the data, it was discovered that the EPA-O AQPS used emissions data to compile the rankings and determine the CISWI MACT floor that were fr om kilns that are specifically identified in the EPA docket to have only burned fuels that are clearly defined as traditional fuels (40 CFR 241 – both versions, March 21, 2011 and proposed revisions, December 23, 2011)34

during the test period. This includes fuels such as coal, pet coke and natural gas and not fuels that are identified as solid waste.

Specific examples of such occurrences include:

TXAshGroveMidlothian- Kiln 3, tested on August 15, 1996 and burne d coal and coke

TXAshGroveMidlothian- Kiln 1, tested on July 1, 2003 and burne d bituminous coal, petroleum coke and whole tires

FLCemexMiami, tested on August 7, 2009 and burned coal

Consequently, the emissions data from some kilns that we re burning only traditional fuels were used by EPA-OAQPS to determine the CISWI MACT floor, whic h is for waste-burning kilns. These emissions data are clearly not applicable for dete rmining the CISWI MACT floor.

[Footnotes]

(2) See D.C. Court decision 12/9/2011, page 10, reference to - " raised with reasonable specificity during the period for public comment." 42 U.S.c. § 7607(d)(7)(B).5

(4) http://www.epa.gov/ttn/atw/129/ciwi/ciwipg.html. CISW I Reconsideration Proposal Technical Support Documents, Dec 2011 Raw Facility Data

Response: EPA established the CISWI standards based on data that w as generated by sources that we determined based on all available information are solid waste incineration units, i.e. units that burn solid waste as that term is defined pursuant to R CRA. EPA removed from the CISWI inventory any units that we determined, based on information obtained or identified since proposal, are not solid waste incineration units; and we a dded units that we determined are solid waste incineration units. We have not revised the invento ry based on the commenter's preliminary assessment that the secondary materials co mbusted in these units meet the non-waste fuel criteria of the final NHSM rule. We have, howeve r, removed the one test for the FLCemex facility where it appears that only coal has been com busted from our emission limit calculations. Except during this particular test, this facility appears t o combust solid waste materials, so the unit and other test data for this unit remain in the CISW I database. Furthermore, EPA does not agree that the data generated by a solid waste incineratio n unit is invalid for compliance purposes if no solid waste was combusted during the test. We have acknowledged in this rulemaking that units in the ERU and waste burning kilns subcategories may st art and stop combusting solid waste, and we have accounted for that fact by including in the definition of CISWI unit a requirement that units remain subject to CISWI for 6 mon ths after adding solid waste to the combustion unit. The rule does not require that waste b e burned at all times and we understand that units will often operate without any solid waste input s.

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2652 Comment Excerpt Number: 235

Comment: Potential mis-identifications (per 40 CFR 241) apply to allthe units the EPAOAQPS used to determine the MACT floor for CISWI, Portl and Cement NESHAP, and the Boiler MACT because all of the emission limits were de termined from pools of emissions units that may or may not burn secondary materials that are identified as solid waste per 40 CFR 241.

These few examples are not the only cases in question, however it should not be the burden of the public to determine whether any or all of the emission s data that were used to determine the CISWI MACT floor were from units that were burning materi als identified as solid waste per 40 CFR 241.

Response: EPA established the CISWI standards based on data that w as generated by sources that we determined based on all available information are solid waste incineration units, i.e. units that burn solid waste as that term is defined pursuant to R CRA. EPA removed from the CISWI inventory any units that we determined, based on information obtained or identified since proposal, are not solid waste incineration units; and we a dded units that we determined are solid waste incineration units.

The commenter is incorrect that the Agency cannot rely on the information provided by the regulated community in response to the CISWI ICR. EPA us ed that industry provided information to determine whether sources are solid wast e incineration units and in establishing the standards, and, if the submitter of data or other inf ormation provided incorrect or incomplete information, it was their responsibility to correct that information in the record. In this case, where the ICR was several years ago, the industry submit ters have no basis to complain for failing to correct incorrect or incomplete submissions.

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2652 Comment Excerpt Number: 3

Comment: The emissions data used in the MACT floor of kilns th at burned materials that presumably were identified as solid waste by EPA-OAQPS (e .g., plastics, seed corn) may be not be solid waste per 40 CFR 241.

Response: EPA established the CISWI standards based on data that w as generated by sources that we determined based on all available information are solid waste incineration units, i.e. units that burn solid waste as that term is defined pursuant to R CRA. EPA removed from the CISWI inventory any units that we determined, based on information obtained or identified since proposal, are not solid waste incineration units; and we a dded units that we determined are solid waste incineration units.

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2652 Comment Excerpt Number: 436

Comment: The docket information is clearly missing a detailed eva luation of the methodology that was applied by EPA-OAQPS to determine which kilns wer e supposedly waste-burning kilns and what materials constituted NHSM. A memo dated April 25, 2011 from Keith Barnett with EPA-OAQPS to the Portland Cement Project Team, entit led "Revised Floors without Kilns that Would have been CISWI Kilns Had the Solid Waste Definitio n Applied" briefly discusses that EPA has made determinations based on the proposed NHSM rule but does not specify how these determinations were made. This commenter believes that E PA-OAQPS inaccurately identified kilns to be "waste-burning kilns" at the time of requiring i nformation and testing in 2009 and subsequently during determination of the CISWI MACT floor. A fter EPA-OAQPS gathered the testing data required by the ICR in 2009, EPA-OSWER developed th e NHSM rule which was eventually published March 21, 2011. The criteria applied by EPA- OAQPS to identify kilns as waste-burning kilns does not appear to be the same criteria as that of the NHSM rule which was developed separately by EPA-OSWER. Given that EPA-OAQPS could not have known how the

EPA RCRA group would define "solid waste," the kilns used to det ermine the CISWI MACT floor are very likley not applicable. Effectively the emissions data used to determine the MACT floor are incorrect if the data applied were not from waste-burning kilns. EPA cannot enforce rules using inapplicable data. It appears that the EPA divisi ons of OAQPS and RCRA have made separate determinations of "solid waste" that do not coi ncide.

The recent D.C. Court of Appeals decision on December 9, 2011 states relevant comments:

Because EPA did not yet know what shape the CISWI rule would take, howe ver, EPA said it would continue to assume no kilns were CISWI sources "until the solid waste definition

. . . is promulgated." 74 Fed. Reg. 21,136, 21,138 (May 6, 2009). These statements left open a couple of possibilities. First, the re-sorting of some kilns into CISWI was, while likely, not inevitable. Id. ("EPA therefore cannot reliably determine at this time if the secondary materials combusted by cement kilns are to be classified as solid wastes."); see also Office of Air Qualit y Planning and Standards, Development of the MACT Floors for the Proposed NESHAP for Por tland Cement 4 (Apr. 15, 2009) ("Pending the outcome of other rule makings, there is a possibility that some of the kilns currently in the Portland Cement NESHAP source category w ill at some point become subject to the [CISWI] regulation, and thus no longer subject to this regulation.") (emphasesadded). Second, EPA's conditional language-"until the solid waste defini tion . . . is promulgated -suggested that, should any kilns ultimately fall under the CISWI definition, EPA would adjust the NESHAP rule accordingly. In none of EPA's proposals, final rules, or briefs in this Court has EPA attempted to defend the principle that, in the face o f a final and promulgated CISWI definition, data from CISWI kilns could now be considered in setti ng NESHAP standards. And rightly so: it would certainly be arbitrary, as well as a violation of the CAA itself, for EPA to set one standard based on data already placed in another source category in light of the mutual exclusivity of the standards themselves. See North Carolina v. EPA, 531 F.3d 896, 930 (O.c. Cir. 2008) (noting that it is "entirely arbitrary" to base standards on "irrelevant factors#); 42 U.S.c. § 7412 (d)(l), (d)(3) (requiring EPA to set NESHAP standards bas ed on emissions reductions achieved by similar sources within the same NESHAP category ).

Basing its decision on a premise the agency itself has already planned to disrupt is arbitrary and capricious. Reasoned decision making requires an agency to "examine the relev ant data and articulate a satisfactory explanation for its action[sj. Motor Vehicle s Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The impending definition of an undeniably related37

source category is clearly a "relevant factor[] or an "important aspect of the problem that must be considered. Id. Indeed, EPA stated as much in its proposed rule, desc ribing the CISWI rulemaking as "relevant to the NESHAP proceeding. 74 Fed. Reg. 21,136,21,138 (May 6,2009).

[Footnotes]

(5) (D.C. court case decision) Case No. 10-1358

Response: EPA established the CISWI standards based on data that w as generated by sources that we determined based on all available information, in cluding the NHSM rule, are solid waste incineration units, i.e. units that burn solid waste as tha t term is defined pursuant to RCRA. EPA removed from the CISWI inventory any units that we determ ined, based on information obtained or identified since proposal, are not solid waste incinerat ion units; and we added units that we determined are solid waste incineration units. We do not agre e with the commenter that we have misidentified units in the CISWI inventory based on the i nformation available to the Agency, and we have not received information demonstrating that th e current inventory is incorrect.

The commenter is also incorrect in its reliance on th e D.C. Circuits decision in its review of the Portland cement NESHAP. In that case, the Agency determ ined that all kilns should be classified as non-waste burning kilns until the Agency iss ued the final NHSM rule. In this case, the Agency did not assume any units were CISWI kilns, ins tead, as stated above, the Agency used the information provided by industry to determine whether t he kilns combust waste as the term is defined in the NHSM rule. Only those kilns tha t were determined to combust solid waste as defined were included in the CISWI database.

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2652 Comment Excerpt Number: 5

Comment: We find it necessary that:

1) EPA identify what secondary materials these kilns ( at a minimum) combusted or input to the systems that identified them as "waste-burning kilns" durin g the specific air emissions testing applied to the CISWI MACT floor,

2) EPA apply the criteria of the NHSM rule (i.e., crit eria of processing and applicability of the legitimacy criteria per 40 CFR 241) and ensure that these ki lns were "waste-burning" at the time of the air emissions data that is used for the CISWI M ACT floor.

3) EPA make these determinations of these secondary mat erials in accordance with the currently applicable 40 CFR 241 rule (issued March 21, 2011). If 40 CFR 241 is mo dified by this current proposed revision, EPA must re-address these determinations for the secondary materials these 3 kilns (at a minimum) combusted or input to the systems th at identified them as "waste-burning kilns" during the specific air emissions test data applie d to the CISWI MACT floor,

4) these determinations must remain valid for as long as these CISWI emission limits are based on the current MACT floor analysis, and38

5) EPA make these determinations in items 1-4 above for oth er "waste" burning units for which CISWI MACT floor determinations have been completed. Thes e determinations may impact other MACT floors which should be accordingly revised.

6) Alternatively, in 2000 EPA correctly determined that if materials resulting from commercial or industrial activities are used for energy recovery, t hen the CISWI rules are not triggered.

Consistent with the 2000 version of the CISWI rules, EP A should simply clarify that materials used for energy recovery are not waste.

Response: We do not agree with the commenter that these action s must be taken and, as noted above, we identified the CISWI kilns based on the best information available and we do not have data that clearly demonstrates that any of the units we identified as waste-burning kilns are not in fact waste burning kilns. Under the final rule, a unit is a CISWI unit if it combusted solid waste within the previous 6 months, thus, we do not agree that unit s must be combusting waste at the time of compliance testing in order for the unit to be c onsidered a solid waste incineration unit. As we noted in response excerpt 1 from this commenter, t hough, we have removed data from consideration in establishing emission limits where the unit was solely combusting non-waste materials.

Finally, the commenter’s assertion that EPA should ma intain the 2000 CISWI rule exemption for energy recovery units is in direct conflict with NRDC v. EPA , 489 F.3d 1250, 1257-58 (D.C. Cir. 2004) (rejecting EPA’s CISWI definitions rule exempting ener gy recovery units burning solid waste under Chevron step 1 because CAA section 129 defines solid waste incinerat ion unit to include any unit burning any solid waste, subject to 4 specific sta tutory exemptions). To the extent the commenter is suggesting that we define under RCR A materials that are used for energy recovery as non-waste, that issue is addressed i n the context of the NHSM rule, not CISWI.



### 2C02. Waste-Burning Kiln Pollutants subcategorized

Commenter Name: Michael D. Stevens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2596-A1 Comment Excerpt Number: 5

Comment: National Cement supports EPA's proposal to create a subc ategory for long kilns for the CO emissions limitation, as this recognizes the inher ent differences between the combustion conditions and resulting emissions of the long and shor t kilns.

Response: EPA has included separate CO emission limits for long k ilns and preheater/precalciner kilns in the final rule.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association39

Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 18

Comment: PCA endorses the subcategory for CO for long kilns: P CA supports EPA's proposal to create a subcategory for long kilns for the CO emissio ns limitation, as this recognizes the inherent differences between the combustion conditions a nd resulting emissions of the long and short kilns.

Response: EPA has included separate CO emission limits for long k ilns and preheater/precalciner kilns in the final rule.

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2642-A2 Comment Excerpt Number: 1

Comment: We note that the limits proposed for CISWI cement ki lns are very close to those established in the Portland Cement MACT rule. Universal h as recently completed the arduous process of permitting a new cement plant including Portl and Cement MACT limits and conditions, and have witnessed the almost paralyzing ef fect that complexity and continuous change has on the permitting process. We respectfully que stion the need for further subcategorization of cement kilns. The additional CISWI su bcategory increases complexity and uncertainty while achieving no improvement in environmental s tewardship. We suggest that a better approach would be to return cement kilns that use soli d waste fuels to regulation under Portland Cement MACT.

Response: The CAA requires EPA to set standards for solid waste incineration units, as that term is defined under RCRA, and EPA may not subject solid w aste incineration units to standards issued pursuant to section 112. See CAA section 129(h) (2); see also NRDC v. EPA

, 489 F.3d 1250, 1257-58 (D.C. Cir. 2004) (rejecting EPA’s CISWI definitio ns rule exempting energy recovery units burning solid waste under Chevron step 1 because CAA section 129 defines solid waste incineration unit to include any unit burning a ny solid waste, subject to 4 specific statutory exemptions). Therefore, EPA may no t regulate kilns combusting solid waste under CAA section 112.



### 2C03. Waste-Burning Kiln emission limits

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2642-A2 Comment Excerpt Number: 7

Comment: 60.2145(j)(3) indicates that the demonstration of initial compliance with the mercury limit be performed while the raw mill is on and while it is off. In Table 7 to Subpart40

CCCC of Part 60 the mercury limit is stated as a 30 day h ourly rolling average. It is not clear that these requirements are congruent.

It is our understanding that the 30 day hourly rolling avera ge limit for mercury is a health based limit that also takes into account the natural fluctuati ons of mercury emissions when the raw mill is shut down. Applying this limit to a shorter time period whi le the raw mill is down is not appropriate and is not supported by the data used to set the l imit. EPA should make clear that the limit is not to be imposed on a specific mode of operat ion, but rather on the 30 day period.

Response: The initial test will be run over a 30 day period and w ill result in an average of the running total over the 30 day period. During this time, we expec t that the raw mill will be off at least once. Therefore, we have revised the language in 60. 2145(j)(3) and 60.2710(j)(3) to read as follows:

(3) The owner or operator of a waste-burning kiln must dem onstrate initial compliance by operating a mercury CEMS while the raw mill of the in-l ine kiln/raw mill is operating under normal conditions and including at least one period when the raw mill is off.

We note that commenter is not correct in its asserti on that the limit for mercury is a health based limit. The MACT standards promulgated in the final CISW I rule are technology based standards. EPA will considers residual risk for CISWI unit s consistent with CAA section 129(h)(3).

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 26

Comment: PCA supports the equation for Particulate Matter in a related NESHAP Rulemaking : PCA supports flexibility in laying out an equation for the PM standard under Sec. 129. In the context of the NESHAP rulemaking, stakeholders and EPA di scussed the equation used to compute a site-specific PM emission limit for those fa cilities that commingle cooler and kiln gases. At issue was how to modify the equation to address those facilities that also commingle other (primarily coal mill) gases with cooler and kilns ga ses. EPA agreed that it makes sense to modify the equation to account for PM contributions fro m all sources contributing to particulate matter kiln emissions. PCA recommends that the equations below also be employed in the CISWI rule for waste burning kilns. PCA believes the flexib ility proposed for NESHAP should also apply to CISWI.

PM alt = 0.004 x 1.65 x Qs/7000 (Eq. I)

PM alt= 0.004 x 1.65 x (Qs + Qb)/7000 (Eq. 2)

Where: 0.004 is the PM exhaust concentration (gr/dscf) equi valent to 0.04 lb per ton clinker where clinker cooler and kiln exhaust gas are not combined.

1.65 is the conversion factor of lb feed per lb clinker41

Qs = Qk + Qc + Qm + Qb (inputs to the equation based on plant's gas flow configuration vented to the main kiln stack, reflecting maximum kiln production)

Qb is the exhaust flow from an alkali bypass stack (dscf/ ton raw feed)

Qk is the exhaust flow of the kiln (dscf/ton raw feed)

Qc is the exhaust flow of the clinker cooler (dscf/ton ra w feed)

Qm is the exhaust flow of the coal mill (dscf/ton raw feed).

Equation 2 would be used by those plants equipped with a separat e alkali bypass stack.

Response: We are not including the commenter’s suggested equations i n the final rule as this approach is not consistent with the concentration-based emissions standard established for PM emissions in the final CISWI rule. However, to the e xtent the commenter is concerned about alkali bypass emissions, we do want to clarify that an alkali bypass stack that vents to the atmosphere is considered a CISWI unit vent and, as specifi ed in 60.2105(a) and 60.2760(a), must meet the emission limitations for the CISWI unit. To the extent the commenter believes an alternative protocol for demonstrating compliance with t he CISWI standards is appropriate for their source, the commenter can seek an alternative me thod pursuant to 40 CFR 60.8.

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA-HQ-OAR-2003-0119-2573-A2 Comment Excerpt Number: 3

Comment: EPA granted reconsideration and approval to PC MACT as it related to PM, the NSPS for PM as applied to modified sources, and the alterna tive PM compliance alternative for sources that commingle certain internal exhaust gas stre ams. Reference B.6 excerpt (below) from the May 17, 2011 Federal Register, page 28325:

"6. Alternative PM Limit. Some kilns combine kiln exhaust gas with exhaust gas from other unit operations, including the clinker cooler. See 75 FR at 54988. Th e final cement NESHAPS seeks to accommodate these situations by providing for a site spec ific PM limit for commingled flows from the kiln and clinker cooler. Section 63.1343(b)(2). PCA po ints out, however, that other flows can be commingled as well. PCA Petition Exhibit 1 ( referring to coal mill exhaust and exhaust from an alkali by-pass as instances of additional flows). Without an allowance for these additional flows, the site specific PM limit could be s tricter than EPA intended (since the PM concentration will be divided by a lower number in the i mplementing equation), and could penalize the environmentally beneficial practice of comm ingling these flows, a practice resulting in significant energy savings. 75 FR at 54988. The EPA therefo re grants reconsideration on this issue."

Request: There is no operational difference between a kil n burning solid waste under CISWI or PC MACT. We believe this omission of commingled gas s treams is one of an oversight by EPA and request the same site specific calcul ation accounting for commingled flows (to a single control device) be included for CISWI cem ent kiln sources.42

Response: EPA limited comment in the reconsideration proposal t o a specific set of issues and we did not take comment on this issue. In any case, the commenter did not suggest an approach for addressing this issue and we do not believe it is appropria te to establish provisions addressing this issue in the final rule. However, we do want to c larify that an alkali bypass stack that vents to the atmosphere is considered a CISWI unit vent and, as specified in 60.2105(a) and 60.2760(a), must meet the emission limitations for the CIS WI unit. If the commenter believes an alternative approach for commingled gas streams is consi stent with the regulations, similar to the comment of EPA-HQ-OAR-2003-0119-2603-A1 excerpt 26, it may seek an a lternative method pursuant to 40 CFR 60.8.

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA-HQ-OAR-2003-0119-2573-A2 Comment Excerpt Number: 4

Comment: §60.2670 ...Table 8; Carbon Monoxide. — 410 ppm for kilns with preheater/ precalciners

The purpose of establishing two populations of cement kilns, o ne burning alternate solid waste fuels and the second burning fossil fuels, assumes those bur ning alternate fuels would have a different emissions profile than those burning fossil fuel s. In reality, emissions are defined by the combustion in the calciner while emissions produced in th e preheater are due to progressive heating of raw materials with incomplete oxidation of c arbon. The resulting CO is more related to site specific meal chemistry than combustion of al ternate fuels in the kiln.

It does not appear that EPA has considered the emission s resulting from raw materials in distinguishing between kilns burning alternate fuels and other kilns burning fossil fuels. The Argos (formerly Lafarge Corporation) cement plant located in Harleyville (Dorchester County), SC, processes marl limestone with high levels of natura lly occurring kerogen (organic) material. The plant typically fires 20% — 25% of alternate solid wa ste materials to meet its combustion requirements. CO emissions attributed to preheater emiss ions are a result of stripping the organics out of the (marl) meal and are on the order of 1,000 ppm - 2,000 ppm. A more appropriate definition of emissions from burning alternate fuels should consider the emissions in process gases between the calciner and the point in the pr eheater where carbon monoxide is formed from the incomplete combustion of organic species contained in the raw meal.

EPA has set a precedent for this approach in determining c ompliance with emission limits for hazardous waste burning kilns by allowing the measurement of ga s composition in the kiln between the fuel combustion zone and the kiln exit in de termining compliance with that carbon monoxide limit. Reference Boiler and Industrial Furnaces requirements for the Lafarge Paulding plant located in Paulding, Ohio.

As it should, EPA wants to ensure good combustion of alter nate solid waste fuels in a kiln. As proposed and totally unrelated to the combustion of alte rnate solid waste fuels, some kilns cannot and will never be able to meet the proposed CO limit sole ly due to higher levels of organics in their raw materials. Clearly, a one size fits all s hould not be the basis for this proposed rule.43

Request: Argos request that the rule be modified to allow an alte rnate method of demonstrating compliance via a Continuous Emission Monitor with the 410 ppm emission limit for preheater/precalciner kilns in which emissions occurring f rom the preheating of meal results would otherwise result in non-compliance with the propo sed standard. (Note: It is surprising, if not disappointing, that no data from this plant was consi dered in setting the CO standard. Hence, we are requesting the alternate means to demonstrate com pliance for CO emissions when combusting alternate solid waste fuel in the riser of t he precalciner where the solid waste materials are actually combusted.)

Response: First, we note that the CO limit for existing cement kilns has changed from 410 to 790 ppmvd @ 7% oxygen, based on revisions to the kiln inventory , emissions data, and span adjustment methodology. The methodology for adjusting CO emission test run data to reflect the limitations from the instrument span used at testing is desc ribed in the “CISWI Emission Limit Calculations for Existing and New Sources for the Recon sideration Final Rule" memorandum in the CISWI docket. Please see sections II.C.1 and II.C.5 of the preamble to the final rule for further discussion.

Regarding alternate compliance method for accounting for pre-heating of meal, we do not agree that such an approach should be included in the final rule . If the commenter believes the alternative approach is consistent with the regulations , it may seek an alternative method pursuant to 40 C.F.R. 60.8.

Commenter Name: Michael L. Krancer Commenter Affiliation: Pennsylvania Department of Environmental Protection Document Control Number: EPA-HQ-OAR-2003-0119-2591-A1 Comment Excerpt Number: 2

Comment: The EPA is soliciting comments on whether waste-burni ng kiln emission limits should be expressed on a production basis (e.g., pounds per mil lion tons clinker produced) instead of, or in addition to, concentration-based limit s. The DEP recommends that all of the emission limits be established on both a concentratio n-basis and a production basis and that the owners and operators be allowed to demonstrate complian ce either on a concentration basis or a production basis. The DEP believes that emission limits should be expressed in both fashions to provide an additional opportunity to owners and operators of th ose facilities that opt to engineer their systems to operate in an energy efficient manner

. Response: We thank the commenter for their input. As we discu ssed in the preamble to the March 2011 rule (76 FR 15735), CAA section 129 solid waste incinerat ion rules, including the 2000 CISWI standards, have consistently included numeric limi ts in stack gas concentration bases. We are maintaining in the final CISWI rule emis sion limits presented as stack gas concentrations. However, emission limits for PM, NOx , SO2, and Hg are also provided on a production basis to facilitate comparison to emission l imits contained within the Portland cement NESHAP and NSPS. We further note that even in the NESH AP, not all emission standards are in production based format. These are presented in Table 4 of the preamble. To the extent the commenter believes an alternative protocol for demonstr ating compliance with the CISWI standards is appropriate for their source, the commenter can seek an alternative method pursuant to 40 CFR 60.8.44

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA-HQ-OAR-2003-0119-2615-A1 Comment Excerpt Number: 4

Comment: Cement kilns may periodically operate under either CIS WI or NESHAP standards. EPA has recognized this and has requested comment on whethe r waste-burning kiln emission limits should be expressed on a production (e.g., lb per mil lion tons clinker produced) basis instead of, or in addition to concentration based limits . 76 Fed. Reg. 80458. Lafarge appreciates EPA’s consideration of this issue but proposes a third op tion, that waste-burning kilns be given the option of demonstrating compliance on a production ba sis or a concentration basis. Lafarge proposes the third option based on the fact that some so urces may choose to operate as CISWI units for a period of time and as NESHAP units for the re mainder of time. Switching back and forth between different compliance units can be cumbers ome and create a greater possibility of calculation errors. Lafarge opposes the option of adop ting dual limits for waste-burning kilns. Duplicity of these standards is unnecessary and only cre ates added regulatory burden to the cement companies. If EPA does not grant Lafarge’s proposed approach of allowing the source to choose which units to be regulated under, Lafarge would prefer that EPA leave the CISWI limits as a concentration basis.

Response: The final CISWI standards are concentration based sta ndards. Please see the response to EPA-HQ-OAR-2003-0119-2591-A1 excerpt 2 above.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 13

Comment: EPA has improperly used hydrochloride (HCl) emissions dat a when setting the HCL Limit : PCA urges EPA to confine standard setting for HCI only to those test methods accepted by the agency, and to continue to reject methodolog ies that EPA has previously disallowed (76 Fed. Reg. at 80458). With respect to HCl limits , a PCA member has stated that the 3 ppm limit was set without HCl CEMS data (using only short-term FTIR data). Therefore, there is no correspondence between limit and monitoring method. Furthermore, HCl results obtained vary dependent upon the monitoring method employe d at low HCl concentrations, and hence may get a finding of non-compliance even if the f acility is actua1ly in compliance. We understand from CEMS vendors that 3 ppm is the detection li mit of HCl monitoring devices. It is illogical then to set a limit of detection at 3 ppm. Ot her observations from PCA members include the following:

The HCl limit is corrected to 7% O2, whereas actual O2 concentration in exhaust gases may be 10% (and occasionally higher). This would have the effect of reducing the limit below, 3 ppm, which cannot be measured. In practice, some emission va lues will be above the limit and others below the limit. If the limit is at the detection l imit, values below the limit will not be measurable and the source will be deemed to be out of com pliance. This presents additional compliance concerns for those cement kilns equipped with in line raw mills.45

Response: We disagree with the commenter’s claims. We have l imited our data set to only HCl data obtained using Method 321 for the waste-burning kiln subcat egory. We note that the MACT floor limit setting methodology is not open for co mment, and we have discussed how we arrived at the 3 ppmvd limit for HCl in supporting memoranda f or the December 2011 proposed rule. See the “CISWI Emission Limit Calculations fo r Existing and New Sources for Reconsideration Proposal” memo (November 3, 2011) for furt her details. We are confirming here that the 3 ppm limit is an adjusted value and is dry, at 7% oxygen.

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2642-A2 Comment Excerpt Number: 5

Comment: 60.2105 sets a limit on CO emissions but not THC emissio ns. EPA has more than 20 years of data on cement kilns that demonstrate that CO i s not a good indicator of combustion conditions in cement kilns and cannot be used as a surrogat e for organic HAPs. In fact neither CO nor THC is an indicator of combustion conditions in the kiln but are impacted directly by the organics in the raw materials. Both the Hazardous Waste Combustor MACT rule and the Portland Cement MACT rule have acknowledged this fact by s etting limits on THC instead of CO, since THC is a clear surrogate for organic HAPs. In order to be consistent in its approach to setting MACT limits on cement kilns (regardless of the MACT category), EPA should set a limit on THC rather than CO, just has been done in the Portl and Cement MACT rule.

60.2105 establishes limits on lead and cadmium emissions. In a system with relatively high exit gas temperatures (such as many incinerator systems), these metals may be volatile enough to escape from the system. In a cement kiln, however, the se metals condense in the lower temperature regions of the system and are emitted in the form of particulate.

It is likely that EPA has sufficient data, gathered in t he context of the Portland cement MACT and hazardous waste combustor MACT rules, to demonstrate t hat emissions of these metals are correlated with particulate emissions and are independen t of the type of fuel being used. For this reason, the same logic used for nonvolatile metals in this rule (and used in promulgating the PC MACT rule) that allows the use of particulate as a surr ogate for metal HAPs (other than mercury) can be applied to lead and cadmium for cement ki lns regardless of the type of fuel used.

60.2105 sets limits on HCl. We question whether EPA has auth ority to set limits on HCl for kilns that are area sources.

Response: CAA section 129 requires the Agency to establish numeri cal emission limits for 9 identified pollutants. See CAA section 129(a)(4). CO is o ne of the nine pollutants for which CAA section 129 requires emissions standards. Similarly, Cd and Pb are also among the nine pollutants the Agency is required to set numerical limits for under CAA section 129(a)(4), regardless of whether or not particulate matter is used a s a surrogate for metal HAPs under NESHAP standards (PM is also one of the nine pollutants).46

In addition, CAA section 129 requires the Agency to establis h MACT standards for all solid waste incineration units and there are no provisions allo wing different treatment for area/minor sources under section 129. See CAA section 129(a)(2). In addition, EPA is required to establish numerical emission limits for HCl because it is one of the nine pollutants listed in CAA section 129(a)(4).

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 20

Comment: EPA should also consider its proposed MACT rules in light of BACT determinations for similarly situated units and explain why emission limitations deemed “available” as BACT are orders of magnitude more stringent than the (“maximum achievable”) MACT standards. A review of EPA’s RACT/BACT/LAER clear inghouse reveals a number of BACT decisions for cement kilns that are far more strin gent than EPA’s proposed limits. 41 In addition, EPA’s control technologies guidelines for cem ent kilns, 42 published under section 108 of the CAA, document the existence of cost-effective r etrofit technologies available for control of SO 2 and NO X

in cement kilns. EPA seems to assume either that the re are no cost-effective controls for these pollutants at cement kilns or that the CAA does not require MACT limits to be based on these controls. EPA should explain its ratio nale in greater detail and set forth a basis for any final decision it makes. EPA should review each of it s proposed MACT limits to ensure that they reflect the application of maximum achievable techn ology, not merely the MACT floor. In addition, it would seem that MACT should be more stringe nt than either GACT or BACT. Accordingly, MACT limits for cement kilns for SO 2 and NO X should be at least as stringent as BACT limits for such units. Moreover, the performance de monstrated by the best performing units suggests that existing sources, if equipped with MACT leve l technology, would be capable of far better performance than suggested by EPA’s rules. S imilarly, we note the very significant differences in the MACT limit that EPA applies to sma ller units at area sources compared to similar units at major sources. Since the MACT limits f or those units are presumed to meet the statutory effectiveness tests for MACT controls, unle ss the cost per ton for similar units at area sources is substantially different it would seem that the test is met at those sources as well.

[Footnotes:

41 Many of these decisions are for new units, but are based o n technologies suitable for retrofit (albeit at somewhat greater cost).

42 See, http://www.epa.gov/ttn/catc/dir1/cement_updt_1107.pdf See al so additional studies by Northeast States for Coordinated Air Use Management (NE SCAUM) http://www.nescaum.org/documents/ici-boilers-20081118- final.pdf/; http://www.nescaum.org/documents/hg-control-and-measuremen t-techs-at-us-pps_201007.pdf/.]

Response: EPA established the standards in the final rule consi stent with the requirements of CAA section 129. MACT standards are technology based standa rds that are established based on emissions data from existing sources and EPA is not required as the commenter suggests to set standards that are at least as stringent as the BACT l evel of control. Furthermore, under CAA47

section 129, EPA is required to establish MACT standards for area/minor sources and may not set standards at the GACT level of control. We also not e that beyond-the-floor levels of control are considered in this rulemaking for any MACT floor where the final rule emission limits are less stringent than those in the March 2011 final rule. See “Final Reconsideration Beyond-theMACT-Floor Analysis for CISWI Units” dated December 17, 2012 in the CISWI docket. We are relying on the beyond-the-floor analyses included in t he March 2011 final rule for any standard that remained the same or became more stringen t pursuant to this reconsideration action.

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA-HQ-OAR-2003-0119-2615-A1 Comment Excerpt Number: 3

Comment: EPA has proposed revised emission limits for waste-bur ning kilns that reflect updated inventories and additional data. The revision result s in emission limits that, not surprisingly, are very closely aligned with the CAA Sect ion 111 NSPS Subpart F and Section 112 NESHAP Subpart LLL limits. In proposing the revised emis sion limits, EPA states that it “performed an analysis of the materials being combusted in the entire inventory of Portland cement kilns in light of the final NHSM rule” , and “added 11 more kilns to the inventory of waste-burning kilns” . 76 Fed. Reg. 80458. However, EPA is coincidentally proposing changes to “the final NHSM rule” that will likely change again the inventory of waste- burning kilns and potentially result in different calculated emission li mits. Why must EPA continue to go down a path of creating emission limits based on “close-enough” data? EPA appears to be making a leap-of-faith that it can identify waste-burning kilns th at combust solid waste without yet completing “the final NHSM rule” . This approach would imply that EPA has pre-determined the final NHSM rule and is forgoing any possible revisions asso ciated with public comments (see discussion in Section II above). EPA has not justified why it must rush to establish the revised emission limits at this time. Lafarge believes that E PA should wait until the NHSM re-proposed rule is finalized, then conduct the analysis it claimed it completed after the March 2011 NHSM final rule and only then propose revised emission limits f or waste-burning kilns.

Response: EPA considered the final NHSM rule in developing the inv entory of units for inclusion in the CISWI floors. To the extent informati on available to the Agency demonstrated that a unit was improperly characterized, we removed the uni t from the CISWI inventory (or added it as appropriate). Commenter’s assertion that an a ppropriate analysis of the information cannot be conducted until after the NHSM rule is signed and final is not correct.



### 2D. Establishment of Limitations on Fuel Switching Provisi ons

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 1548

Comment: 60.2265 – The term “CISWI” should not rely on the actual combustion of solid waste within the preceding 6 months, but should instead rel y on the intent to combust solid waste. A source should be allowed to elect to comply wit h the CISWI provisions as long as it has declared the intent to operate in accordance with the CIS WI provisions. The definition is flawed for a number of reasons, but does not recognize the fact that certain solid waste fuels may not be available to a source for more than 6 months for market related reasons. The source may also be idle for extended periods due to economic conditions. The se circumstances would change the applicable requirements and imposes unnecessary uncertainty on the source that could easily be remedied with a revision to the definitions.

Response: As discussed at 76 FR 15714 and 80459 and codified at 60.2145(a)(2), th e regulations allow facilities to opt to remain subject t o CISWI beyond 6 months after the last time solid waste is added to the unit. We believe that this pro vides the flexibility that the commenter has requested where, at their own discretion, a source determines that continued compliance with CISWI is appropriate because the source intends to combust solid waste in the future

.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 2

Comment: 60.2145(a)(2) - The term “cease” appears to be defined within this paragraph as “when solid waste is not in the combustion chamber” and presumes that a fuel switch has occurred if solid waste is not combusted for more than 6 months. Paragraph (a)(3) then goes on to state that you must be in compliance with any newly applicable standards on the effective date of the waste-to-fuel switch (6 months after ceasing to combust solid waste). The definition of “cease” in the context of a waste-to fuel switch must be revised to be activated by both the cessation of waste fuel use and the expressed intent to no longer combust solid waste. While this may not be important for some sources, cement kilns util ize a wide variety of fuels that are dependent upon availability and economics with respect to the cost of other fuels. A source should retain the option to operate under the CISWI provis ions as long it retains the ability and intent to feed solid waste derived fuels (or potentially , ingredients).

Response: Please see the response to EPA-HQ-OAR-2003-0119-2576-A1 excerpt 15 above.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 3

Comment: 60.2145(a) – These provisions do not appear to account for exten ded idling of a unit due to economic conditions. Cement kilns have experienced i dle periods extending many months in the most recent economic downturn. If a source has been idled for an extended period, solid waste fuels may not be introduced for some time after st artup. Sources with the intent to continue as CISWI units should not be recategorized as non-CISWI units simply because they have been49

idle for more than 6 month. Sources should remain design ated as CISWI units unless/until notification of intent to stop utilizing solid waste fue ls (or ingredients).

Response: Please see the response to EPA-HQ-OAR-2003-0119-2576-A1 excerpt 15 above.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 13

Comment: 60.2230(b) – The discontinuation of solid waste combustio n in kilns with multiple fuel sources should not trigger notifications or reports a s if the unit has permanently ceased using solid waste fuels, but rather should hinge on the intent of the source to continue as a CISWI.

Response: As discussed at 76 FR 15714 and 80459 and codified at 60.2145(a)(2), th e regulations allow facilities to opt to remain subject t o CISWI beyond 6 months after the last time solid waste is added to the unit. We believe that this pro vides the flexibility that the commenter has requested where, at their own discretion, a source determines that continued compliance with CISWI is appropriate because the source intends to combust solid waste in the future

. EPA does not agree with the commenter that the notificat ions and reports required in the rule should be changed. EPA believes it is important to know t he current applicability of CAA regulations and the notifications and reports associated with fuel switching provide the necessary information. Therefore, the reporting required under 60.2230 or 60.2790 are required after each waste-to-fuel switch.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 4

Comment: 60.2145 - The required annual performance testing schedule sho uld also be considered as part of the previous suggested revision. An idle d source should not be required to come out of moth balled or idle state simply to conduct a performance test, but rather the period for performance testing should be extended for a period m atching the length of the idle period.

Response: The rule already allows a time frame of 11-13 months f rom the previous test to provide operational flexibility. If a source will shut d own for an extended period of time, beyond that window, the source should work with their delegated au thority to establish a schedule for conducting the annual performance test, similar to provisio ns set forth in §60.8(a).

Commenter Name: Michael L. Krancer Commenter Affiliation: Pennsylvania Department of Environmental Protection Document Control Number: EPA-HQ-OAR-2003-0119-2591-A1 Comment Excerpt Number: 350

Comment: The EPA is soliciting comments on the fuel switching pr ovisions included in the final CISWI rule, particularly whether the provisions should include further clarification on the timeline and regulatory requirements of a fuel switch. Add itionally, EPA is soliciting comments on an alternative time period for switching frequency (e.g. , 12 months). Under the final rule promulgated in March 2011, an owner or operator that ceases combustion of solid waste can opt to remain subject to the CISWI requirements. In light of this discretion, the DEP believes that the fuel switching provisions included in the final rule are adequate and should not be revised.

Response: The EPA is finalizing the fuel switching provisions as prop osed.,

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 6

Comment: EPA Should Amend its Definition of CISWI Unit and its A pplication of CISWI Requirements to Units that Cease Burning Solid Waste
The CISWI Reconsideration Rule preamble at (76 FR 80459) stat es – “For sources that cease burning solid waste, the effective date for the waste

‐ to

‐ fuel switch is a date that is at least 6 months after the last date on which solid waste is added to the combustion unit.” The effect of this provision is to require a combustion unit to comply wit h CISWI for six months after the conditions triggering CISWI applicability cease to exist. W e believe this is an inappropriate application of Section 129 requirements to units that have ceased to meet the fundamental premise for the CAA’s regulation of solid waste

‐ burning units – that they are actually burning solid waste. We have not seen such a requirement in othe r Section 129 standards for MSW or hazardous waste incinerators. The Agency is provided ample a dvance notice of the fuel switch with the requirement that a source must submit an advance d notification of the date of the
waste

‐ to

‐ fuel switch. Further, sources anticipating a fuel switch must remain in continuous compliance with CISWI until the effective date of the switch from waste

‐ to fuel. Both of these provisions provide abundant safeguards that units burning solid w aste will be subject to protective environmental requirements designed for such units. Given the stringent requirements of the CISWI Reconsideration Rule, units are highly unlike ly to engage in frequent fuel

‐ switching without first obtaining a comfort letter or other Agency determination that the material they intend to burn is considered a legitimate fuel. We respectfully recommend that the Agency strike the clause “or has combusted in the preced ing 6 months” from the CISWI definition in parts 60.2265 and 60.2875. We further recommend that a t part 60.2710 (a)(2) the Agency strike “you are subject to the requirements of this subpart at least 6 months following the last date of solid waste combustion.”

Response : For the reasons stated in the 2011 CISWI rule, we are not revising the definition of commercial and industrial solid waste incineration unit in the 2011 CISWI rule. 76 FR 15714. We believe that providing a framework for compliance for units which switch between burning fuel and waste is necessary for both the regulated entit ies and the Agency (or delegated authority). Providing such a framework ensures continued co mpliance, while minimizing the burden of testing necessary to assure continuous complianc e with the applicable standards..51

We also note that we do not believe the comparison of the definition in CISWI to municipal solid waste combustors (MWC) is appropriate. We are not awar e of any MWC units that start and cease combusting solid waste as is the case with CISWI units. We believe this is the case because such units are in our understanding designed and operat ed for the purpose of combusting solid waste, often times without energy recovery. Th e MWC situation is similar to the situation in the 2000 CISWI rule in which the Agency only regulated unit s whose purpose was the destruction of waste. We maintain that the approach ta ken in the CISWI rule is appropriate for these sources and consistent with the statute.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1 Comment Excerpt Number: 9

Comment: The EPA should allow a co-fired unit to opt between the C ISWI rule and the Boiler MACT Rule

The NAM supports the EPA’s proposal to allow a co-fired u nit to opt out of the CISWI rule and into the Boiler MACT rule, or vise versa. This will pr ovide a beneficial measure of flexibility to operators. However, the EPA should eliminate the arbitr ary restriction in the proposal that would limit a facility from moving from being regulated under CISW I to being regulated under Boiler MACT for a six month period after it had stopped burning soli d waste. As a policy matter, forcing operators to remain regulated under the one standar d when there are reasons to switch would needlessly penalize them with little to no benefit gained.

Response: For the reasons stated in the 2011 CISWI rule, we are n ot revising the definition of commercial and industrial solid waste incineration unit in the 2011 CISWI rule. 76 FR 15714. We believe that providing a framework for compliance for units which switch between burning fuel and waste is necessary for both the regulated entit ies and the Agency (or delegated authority). Providing such a framework ensures continued co mpliance, while minimizing the burden of testing necessary to assure continuous complianc e with the applicable standards..

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 3

Comment: 1. EPA must clarify the interplay between the CIS WI and NESHAP/NSPS rules. PCA does not support EPA's fuel switching requirements, and thus does not agree with the 6- month waiting period established in the proposed rule: EPA offers no reasonable basis for establishing a 6-month waiting time as a fuel switching requi rement. It would be more appropriate to allow sources to switch as soon as they document compliance with the NESHAP. The following provides examples of potential problematic im pacts of including the waiting period requirement as proposed. a. An automatic 6-month dela y in the switch could result in a source that has ceased burning solid waste and is in the 6-m onth waiting period and their52

performance test for CISWI is due within the 6-month windo w. If the facility performs the test, the test is without purpose since the facility is switching to the different regime under the NESHAP. Also, if the facility performs the test using solid waste (since there is no other purpose of the test under CISWI), this event will result in ex tending the time for the switch to 6 months from the test date. In essence, the 6-month delay will result in the test data no longer being valuable for future compliance under NESHAP. b. For a pro posed facility modification to a kiln system related to cement production needs, the change coul d trigger the "new source" requirements under CISWI for a change that in actuality has nothing to do with CISWI. The requirement to wait 6 months may prevent the facility f rom reacting quickly to manufacturing or market trends or to develop additional production capacity in a timely manner to react to increased demand. To address the first example, PCA reco mmends an approach whereby the facility can switch to NESHAP without a waiting period. The facility would continue to be subject to CISWI requirements for any calendar day that a fa cility feeds NHSM to the kiln for any portion of the day. However, for the next full cal endar day when NHSM is not utilized, the source will have the option of switching to and being subje ct to the Portland cement NESHAP. The approach has been in place for almost a decade for hazardous waste burning kilns under the HWC NESHAP 40 C.F.R. part 63, subpart EEE), whereby the fac ility can switch to the otherwise applicable requirements and standards of the PC NESHAP without a waiting period. In addition, during the time period when not using hazardous was te fuel, the facility has the regulatory option of following an alternate (non-hazardous ) compliance regime. EPA should note, however, that this is one option. In the alte rnative, a facility could (and should be permitted to) continue to be subject to the CISWI rules both during the burning of solid waste and in anticipation of future burning of solid waste. Should that be the facility's choice. Using the PCA suggested described CISWI/PC NESHAP approach, the 30-day rolli ng averages would be calculated separately. When operating as a CISWI source, the 30-day average would be the average of the last 30 days when NHSM was utilized. When s witching to PC NESHAP, or in the alternate mode (e.g. NESHAP option), the 30- day average would be based upon the full days that NHSM was not utilized. In other words, the source c ould switch fuel and transfer to NESHAP compliance without a complicating waiting period. And, the source could also have the option for two operating modes with alternate compl iance requirements, as described. PCA contends that in order to run a manufacturing facility to meet market demands, facilities will continue to need the flexibility to change and modify oper ations within the regulatory requirements and without excessive burden. Both the PC NES HAP and the CISWI rules reflect similar environmental controls; thus, there is no addit ional impact to the environment from removing the fuel-switching waiting period.

Response : We disagree with the commenter that EPA does not ha ve a basis for its definition of CISWI unit, and for the reasons stated in the 2011 CISWI r ule, we maintaining the definition of CISWI unit in the 2011 CISIWI rule. 76 FR 15714. We believe that providing a framework for compliance for units which switch between burning fuel and waste is necessary for both the regulated entities and the Agency (or delegated authority) . Providing such a framework ensures continued compliance, while minimizing the burden of testin g necessary to assure continuous compliance with the applicable standards.

For compliance purposes, EPA maintains that data generate d by a solid waste incineration unit is valid even if no solid waste is combusted during the test b ecause sources must comply with the standards at all time. We have acknowledged in this rule making that units in the ERU and waste53

burning kilns subcategories may start and stop combusting solid w aste, and we have accounted for that fact by including in the definition of CISWI unit a requirement that units remain subject to CISWI for 6 months after adding solid waste to the co mbustion unit. The rule does not require that waste be burned at all times and we understan d that units will often operate without any solid waste inputs. Absent the use of all data in det ermining compliance for CISWI units, it would be very difficult to assure compliance with the fi nal rule, particularly for standards that are complied with using continuous emissions or parameter monito ring.

We also disagree with the commenter that the HWC appro ach should be adopted. In that case, sources are switching between two standards promulgated pursuant to section 112. But in this case sources are switching between sections 112 and 129, and the pollutants regulated under the two provisions are different (i.e. section 112 regulates onl y HAP emissions and section 129 regulates a combination of HAP and criteria emissions)

Regarding the commenter’s issues of applicability and tri ggering new source requirements, we refer to responses to a separate comment submitted by this organization later in this document (see EPA-HQ-OAR-2003-0119-2606-A1, excerpt 1).

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 2

Comment: Some ACC members operate units that intermittingly co mbust a solid waste generated on-site from manufacturing operations. These units switch between burning solely a traditional fuel and burning both traditional fuel and non-haza rdous solid waste fuel as needed. ACC appreciates EPA’s attempt to address fuel-switching and we acknowledge that it presents some unique regulatory challenges as these units move from being regulated under § 129 as CISWI to being regulated under § 112 as boilers, and vice vers a. Id. at 80458–60. However, we believe that the approach EPA has chosen to address such fuel switching is contrary to the plain language of § 129 and therefore unlawful.

EPA’s proposed approach is that “[u]nits that cease combus ting solid waste remain subject to CISWI for at least six months after solid waste is adde d to the combustion chamber. After six months, sources must either comply with any applicable se ction 112 standards or, if they intend to combust solid waste in the unit in the future, opt to remain subject to CISWI.” Id. at 80501 (to be codified at 40 C.F.R. § 60.2265). The proposed definition of CISWI unit in § 60.2265 reads in relevant part “any distinct operating unit of any comm ercial or industrial facility that combusts, or has combusted in the preceding 6 months , any solid waste.” (Emphasis added). The requirement that sources remain subject to CISWI for s ix months after their last combustion of solid waste is unlawful. Section 129(g)(1) defines solid was te incineration unit, in relevant part, as “a distinct operating unit of any facility which combusts any solid waste material.” (Emphasis added). Congress did not say “which combusts, or has combusted in the preceding 6 months

, any solid waste,” or more generally, “which recently combusted any solid waste material.” Instead, Congress chose the present tense “combust” to express its clear intent to regulate only units currently combusting solid waste. EPA must “give ef fect to the unambiguously expressed54

intent of Congress” under step 1 of the Chevron test. See Chevron USA v. NRDC , 467 U.S. 837, 842-43 (1984). Since Congress was clear in its intent to only regulate solid waste incineration units currently combusting waste, EPA’s expansion of the definition of C ISWI to regulate units that have burned waste in the past but have stopped is impermissible.

Response: We do not agree that the definition of CISWI unit is inc onsistent with the statute as the commenter suggests. The statute is ambiguous as to ho w long a unit is a solid waste incineration unit after it combusts solid waste and the Age ncy has established a reasonable time as explained in the preamble to the 2011 CISWI rule. 76 FR 15714. We believe that providing a framework for compliance for units which switch between burning fuel and waste is necessary for both the regulated entities and the Agency (or dele gated authority). Providing such a framework ensures continued compliance, while minimizing t he burden of testing necessary to assure continuous compliance with the applicable standards.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 4

Comment: EPA’s six month requirement could also subject units that no longer burn solid waste to § 112 and 129 standards simultaneously. Under § 129(h)(2), Congress limited EPA’s authority to regulate CISWI units by stating that “no solid waste incineration unit subject to performance standards under [CISWI – sections 111 and 129] sha ll be subject to standards under [NESHAP – section 112].” The recent ruling from the D.C. C ircuit Court of Appeals highlighted the mutual exclusivity of § 112 and § 129. In Portland Cement Ass’n v. EPA , 2011 U.S. App. LEXIS 24577, at *12 n.2 (D.C. Cir. Dec. 9, 2011) the court notes that some cement kilns would be regulated under NESHAP and other cement kilns combusting solid waste “...would be subject to standards under the CISWI rules rather than under the NESHAP rules, since the two regimes are mutually exclusive. See also, NRDC v. EPA ,489 F.3d 1250, 1256 (D.C. Cir. 2007). The reconsidered CISWI proposal would subject some units that should be subject to regulation under § 112 (e.g., boilers), when and because they are comb usting traditional fuels, to both §section 129 and § section 112 emission limits because of their intermitt ent combustion of solid
waste.
For example, the Boiler MACT rule applies to an indust rial, commercial, or institutional boiler or process heater, as defined in 40 C.F.R. § 63.7575, that is a major source of hazardous air pollutants. 40 C.F.R. § 63.7485. The Boiler MACT states i n § 63.7575 that a unit “combusting solid waste...is not a boiler.” In other words, as soon as a major source unit subject to § 129 regulation stops burning solid waste, it would be a combusti on unit regulated by the Boiler MACT § 112 standards. But under EPA’s fuel-switching approach, t he unit would continue to be a “solid waste incinerator,” subject to § 129 standards fo r at least 6 months after the unit stops burning waste. This 6-month overlap between the start of Boiler MACT applicability and the end of CISWI applicability is impermissible because it would subject a unit to both § 129 and § 112 standards in violation of those sections of the CAA an d D.C. Circuit case law.55

Response: Sources are not subject to both CISWI and the Boiler NESH AP (or any NESHAP) simultaneously. A unit that meets the definition of a CISWI unit in the final rule is not subject to standards issued pursuant to section 112 pursuant to section 112(h)( 2).

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 49

Comment: EPA has proposed a mechanism for sources to move betwee n the boiler and CISWI rules, but sources must wait 6 months after cessation o f solid waste burning to move back under Boiler MACT and must provide 30 day notice of intent to re -commence combustion of solid waste [see 40 CFR 60.2145(a)(2) and 40 CFR 63.7545(g)]. EPA appears to h ave arbitrarily chosen 6 months, as we can find no justification for t his time period in the record. With the extensive monitoring and testing required under both rules an d the fact that any facility’s Title V permit will include extensive compliance assurance provision s, facilities will be able to adequately ensure compliance under either rule without bei ng restricted on the frequency of fuel switching. Sources should be allowed to make the switch b etween waste and fuel as often as operational concerns require provided they keep adequate reco rds.

Allowing more flexible fuel to waste switching would also s erve to address the unachievability of certain CISWI standards during startup. If an ERU is no t burning solid waste during startup, it should be regulated as a boiler and therefore subject to w ork practice standards. Our comments on the Boiler MACT rule provide justification on why wor k practice standards are appropriate for periods of startup and shutdown and provide feedback on the proposed definitions of startup and shutdown under that rule.

EPA has no authority to regulate a unit that is not burning a ny solid waste as a CISWI.

Response: We do not agree that the definition of CISWI unit is inc onsistent with the statute as the commenter suggests. The statute is ambiguous as to ho w long a unit is a solid waste incineration unit after it combusts solid waste and the Age ncy has established a reasonable time as explained in the preamble to the 2011 CISWI rule. 76 FR 15714. The Agency selected a six month time frame to ensure initial and continuance compl iance by coinciding the initial performance test requirement to conduct a performance test within 180 of initial startup, or in the case of an existing source within 180 days of the complianc e date. Allowing a switch on a shorter time frame could result in the situation wher e a unit switches between section 112 and 129 applicability without ever “hitting” the requirement to conduct a performance test. We specifically reject the notion that a unit should be con sidered a boiler when it starts up and then, after startup, combust solid waste and become a solid wa ste incineration unit and comply with the CISWI standards thereafter. We believe that this proposed approach would be unreasonable and arbitrary in that it would circumvent section 129, beca use that provision does not authorize work practice standards for solid waste incineration unit s. In essence, the commenter is suggesting that CISWI units never startup if they use tradit ional fuels during that period, even if the unit operators fully intend to combust solid waste imm ediately after startup.56

Commenter Name: Bart Sponseller Commenter Affiliation: Wisconsin DNR Document Control Number: EPA-HQ-OAR-2003-0119-2612-A1 Comment Excerpt Number: 2

Comment: Currently, Wisconsin does not have any incinerators or boilers subject to the CISWI rule. Several boilers or sources could become subject to CISWI if certain materials are designated as NHSM. However, these sources have also i ndicated that they would discontinue firing these fuels in lieu of becoming subject to CISWI ru les. As previously noted, discontinuing the firing of certain materials is not necessarily th e best outcome. Although applicability to Wisconsin sources is limited, the Department has identif ied the following areas that EPA should consider further or clarify under the rule. The CISWI rule proposes that sources can, if starting or stopping the firing of solid waste, move back and forth betw een the CISWI and boiler MACT rules. The emission and compliance requirements betwee n the two rules are significantly different and the Department supports that a source shoul d be able to comply with the appropriate rule based on the fired fuel. However, the CI SWI rule requires that a source be subject to CISWI requirements for six months after stoppin g the firing of solid waste. The Department feels this is a prolonged and unjustified period. B ecause emission rates and parametric monitoring are based on 30-day rolling averages unde r the MACT, 30 days is the appropriate timeframe for switching between the two rules . If EPA is concerned with a source going back and forth multiple times between regulations, a different approach should be pursued. The source needs to demonstrate compliance for each in terim period of fuel or solid waste firing. If changing fuels somehow negates the basis for demonstr ating compliance, such as the original stack test and parametric parameters, then new stack tes ting should be performed to re-establish the necessary correlations. We anticipate that this t ype of event would occur only if switching to a fuel which has not been fired before at the source. Therefore, this concern may be best addressed separately under the boiler MACT emission monit oring requirements by requiring a new stack test based on a change in fuel or equipment.

Response: We are not revising the final rule in response to this co mment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as exp lained in the preamble to the 2011 CISWI rule. 76 FR 15714. The Agency selected a six month ti me frame to ensure initial and continuance compliance by coinciding the initial perform ance test requirement to conduct a performance test within 180 of initial startup, or in the c ase of an existing source within 180 days of the compliance. Allowing a switch on a shorter t ime frame could result in the situation where a unit switches between section 112 and 129 applicability witho ut ever “hitting” the requirement to performance test. While the approach suggested by the com menter has its merits, we believe that it creates an undue burden on the source where frequen t switching may occur. Such a program would require frequent performance testing, or submi ttal of requests for waivers, some of which could not be completed within the actual time o f a waste to fuel switch. For these reasons, we believe that a 6 month period provides operat ional flexibility, while ensuring continuous compliance with the standards.

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America57

Document Control Number: EPA-HQ-OAR-2003-0119-2615-A1 Comment Excerpt Number: 5

Comment: EPA has proposed an arbitrary 6-month period to opt out of CISWI applicability. EPA has stated that the 6-month period is needed to ensure that frequent switching does not impede their ability to determine continuous compliance and create undue permitting and testing burdens on sources. 76 Fed. Reg. 80459. A 6-month transition peri od is unnecessary for continuous compliance demonstrations for waste-burning kil ns for either the CISWI or applicable NESHAP standards. EPA has proposed to allow cem ent kilns to remain CISWI units during periods when solid waste is not combusted if they in tend to combust solid waste in the future. Therefore, cement kilns that select this option do not have to separate their emissions during different operating periods. However, a kiln that wi shes to be regulated under the NESHAP standards when not combusting a solid waste shoul d be allowed to move back and forth between CISWI and NESHAP compliance with no unnec essary time delay. Cement kilns have only three regulated pollutants that overlap between the two programs (and their standards, as proposed, are nearly identical): mercury (Hg), hydrochl oric acid (HCl) and total particulate matter (PM). Mercury and PM emissions are required under both programs to be monitored with continuous emission monitoring systems (CEMS). HCl emis sions are required under both programs to be monitored with a CEMS or measured during a pe rformance test. Limits for pollutants that use CEMS are based on 30-day rolling average s. Therefore, any day (or part thereof) that a cement kiln combusts a solid waste co uld be categorized as a CISWI day and all operating hours for that day could be used to calculate the value for that 30-day compliance period. Any day when no solid waste is combusted could be de signated a NESHAP day and would be included to calculate the 30-day average for NESHAP co mpliance. If HCl compliance is demonstrated with a performance test, the testing woul d need to be conducted under both operating conditions (with and without solid waste combust ion). The remaining CISWI pollutants are not regulated under NESHAP, and THC (regulated un der the NESHAP program) is not regulated under CISWI. Therefore, performance test ing for the remaining CISWI pollutants would be completed only under conditions when solid waste was being combusted and THC would be continuously monitored only during periods when the cement kiln was subject to NESHAP.

Response: We are not revising the final rule in response to this co mment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as exp lained in the preamble to the 2011 CISWI rule. 76 FR 15714.

For compliance purposes, EPA maintains that data generate d by a solid waste incineration unit is valid even if no solid waste is combusted during the test b ecause sources must comply with the standards at all time. We have acknowledged in this rule making that units in the ERU and waste burning kilns subcategories may start and stop combusting solid w aste, and we have accounted for that fact by including in the definition of CISWI unit a requirement that units remain subject to CISWI for 6 months after adding solid waste to the co mbustion unit. The rule does not require that waste be burned at all times and we understan d that units will often operate without any solid waste inputs. Absent the use of all data in det ermining compliance for CISWI units, it58

would be very difficult to assure compliance with the fi nal rule, particularly for standards that are complied with using continuous emissions or parameter monito ring.

Commenter Name: Mark Calmes Commenter Affiliation: Archer Daniels Midland Company Document Control Number: EPA-HQ-OAR-2003-0119-2618-A2 Comment Excerpt Number: 4

Comment: The CISWI regulations were meant to control hazardous and toxic pollutants which are generated by combustion of municipal solid waste. Faci lities burning traditional or non-waste fuels should not be required to remain under the CISWI re gulations for an arbitrary period of time ; they instead should be able to switch back and forth betwe en appropriate standards based on the fuel combusted at any particular time

. Because facilities are already required to keep extensive fuel and emission records, we believe these records can be used to verify compliance with the appropriate standard during times of combustion of materials classified as wastes, and those classified as fuels, or any combination thereof. We therefore support the removal of any requirement that is arbitrarily limited and instead support requirements that are driven by fue l type. We believe that this supported regulatory construct is more appropriate and will not cause additional regulatory burdens on the agency or the regulat ed community.

Response: We do not agree with the commenter’s assertion that th e CISWI regulations are meant to control emissions from units combusting munici pal solid waste, as section 129(a)(1) requires regulations applicable to such units that are separ ate and apart from the regulations applicable to CISWI units. Concerning the time sources rema in CISWI units after combusting solid waste, we are not revising the final rule in respons e to this comment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as exp lained in the preamble to the 2011 CISWI rule. 76 FR 15714.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2 Comment Excerpt Number: 18

Comment: CEMEX feels strongly that the imposition of a 6-mon th waiting period after ceasing to utilize “solid wastes” as fuels is arbitrary and unne cessary. Kilns should be able to switch to being regulated by the PC NESHAP as soon as they can demons trate compliance with that regulation. CEMEX supports PCA’s comments on this issue as well as PCA’s proposed alternatives.

Response: We do not agree that the time frame is arbitrary and unne cessary and we are not revising the final rule in response to this comment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts s olid waste and the Agency has established a reasonable time as explained in the preamble to the 2011 CISWI rule. 76 FR 15714.59

Commenter Name: Michael D. Stevens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2596-A1 Comment Excerpt Number: 1

Comment: EPA should create a mechanism under 40 CFR Part 60 Subpar t DDDD for the operator of an existing cement kiln to notify both the appro priate state or local air permitting authority and EPA of a kiln's status relative to this rule . This is needed so that a kiln operator can inform these agencies that the kiln is subject to this pro vision and, therefore, not subject to the Portland Cement Manufacturing NESHAP (PC NESHAP).

Response : EPA has finalized provisions that address units that st art and stop combusting solid waste. Furthermore, the sources will be required to submit a final control plan by the date established in the state plan (see Table 1 to 40 CFR 60 subpart DDDD). This requirement alerts implementing agencies of the source’s intent to comply w ith the CISWI standards and how the source intends to do so.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 16

Comment: EPA Should Create a Mechanism to clarify CISWI status : PCA asks that EPA add to the rule create a mechanism to declare a kiln to be co vered by CISWI and clarify that status applies until the kiln under 40 CFR Part 60 Subpart DDDD fo r the operator takes actions of an existing cement kiln to notify the agency that it is subje ct to the NESHAP limits in the alternative. Specifically, the rule should both the a ppropriate state that a kiln owner at any time can notify EPA and the agency with delegated or local air permitting authority for CISWI implementation that a kiln is and EPA of a kiln's status relative to this rule. This is needed so that a kiln operator can inform these agencies that the kil n is subject to this provision and, therefore, not subject to the CISWI rules and the facility owner ca n rely upon that notification and designation until such time as EPA and the agency with del egation are notified otherwise that the facility owner has determined that NESHAP will apply an d that the owner no longer wants to be covered solely by the CISWI provisions. (In that circu mstance, the owner may exercise the option that NESHAP apply intermittent when solid was te is not burned or continuously when solid waste burning is discontinued. cement kiln NESHAP.

Response: EPA has finalized provisions that address units that start a nd stop combusting solid
waste.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 660

Comment: EPA should waive the six month minimum CISWI applicability and six month waste-to-non-waste fuel switch notification requirements i n situations where combustion of waste was unintentional. EPA should also address practical mat erial handling issues in its provisions.

It is appropriate for EPA to reconsider fuel switching pro vision limitations. The current structure and implementation of these limitations presents legal questions and legitimate compliance and economic concerns. First, we question EPA’s authority u nder the Clean Air Act to require units which do not burn wastes to meet regulations pertaining to unit s that do burn waste. EPA should justify its authority to do something that seems so intui tively contrary to the law.

Response: The Agency believes that the source is best suited to deve loping site specific material handling procedures. If a source believes that it has inad vertently combusted solid waste in its fuel burning unit, it should work with the delegated authority t o ensure compliance with the appropriate standard. The statute is ambiguous as to how lo ng a unit is a solid waste incineration unit after it combusts solid waste and the Agency has est ablished a reasonable time as explained in the preamble to the 2011 CISWI rule. 76 FR 15714

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 7

Comment: The minimum six-month CISWI applicability period and s ix-month notification period requirements present catastrophic economic consequenc es in the event a boiler operator inadvertently combusts even a tiny amount of waste or r etrospectively gains knowledge that what he reasonably believed was non-waste fuel was in fa ct solid waste. Consider, for example, the combustion unit operating as a biomass boiler under Maj or Source Boiler MACT which cannot meet the stringent Solids/Biomass ERU CISWI emi ssion limitations. Suppose the unit received and combusted an NHSM such as processed constructi on and demolition (C&D) material which the operator has legitimate reason to b elieve was a fuel on the basis of applicable criteria in the NHSM rule, only to find out after-the-fa ct from either the processed C&D supplier or a regulatory agency that some portion of material he believed to be fuel was actually waste. Under the current fuel switching limitations the operator would have no choice given this retrospective knowledge but to shut down the unit for a ful l six months and along with employees bear the tremendous economic consequences of an idle facility. These consequences are extremely harsh. Circumstances like these warran t more reasoned treatment.

Given the vagaries of both the current and proposed NHS M rule, this type of circumstance is not so unlikely. Despite EPA’s assurances of flexibility and “reasonable methodologies” characterizing NHSM as fuel, the NHSM rule presumes NHS Ms are solid waste and the rule’s language remains unclear with respect to implementation o f the contaminant legitimacy criterion, making operators’ self-determinations using these criteria subject to challenge by an agency or 3rd party. With the six month fuel switching provisions even a single successful challenge could jeopardize the operator’s economic viability.61

The combustion unit operators, and not generators or proc essors, bear all regulatory responsibility, penalties and damages for inadvertent was te combustion. Operators have recourse through contracts, but the recovery of damages under breach of contract, while significant, would not rise to the level of damages incurred by an idle faci lity. The loss is uninsurable since business interruption insurance only covers interruptions due to proper ty damage. In short, the operator bears a unique and disproportionate penalty for even a singul ar event of inadvertent waste combustion.

We are not opposed to a provision requiring boilers operati ng under Boiler MACT rules to report inadvertent combustion of wastes and be subject to reas onable penalties for noncompliance. But we strongly object to EPA’s disproportionate penalty of the six month unit shutdown. We propose that EPA waive the six month minimum CISWI des ignation and notification requirements in instances where an operator gains retros pective knowledge that the combusted material he thought was fuel was actually waste, so long as the operator takes reasonable actions to cease combusting waste, reports the event, and implem ents reasonable steps to prevent

recurrence.

Response: As stated previously in response to EPA-HQ-OAR-2003-0119-2599-A1 excer pt 6, if a source believes that it has inadvertently combusted solid waste in a fuel burning unit, they should work with the delegated authority to ensure complianc e with the appropriate standards.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 8

Comment: There is a practical material handling issue associat ed with the proposed fuel switching limitations. Most biomass plants stack biomass in large piles. Fuel is taken from the piles with a re-claimer and fed to the boilers. By des ign, there is an oversupply of fuel that is returned back to the fuel piles and restacked. With all thi s stacking, reclaiming, and restacking materials are mixed and there is no practical way to know exactly when a particular material source would be completely combusted. EPA should account for the reality of this operational situation in its fuel switching provisions.

Response: The rules do not prescribe specific material handling proc edures, in order to provide maximum operational flexibility for the source. Howeve r, a source has the obligation to manage its feed to know when a unit is combusting solid waste and when it is combusting fuel, such that compliance with the appropriate standard can be ascerta ined.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 962

Comment: CIBO opposes EPA’s prescriptive approach to boiler or incinerator status, for the reasons discussed in relation to treatment of CISWI unit s during SSM periods. These units do routinely switch fuels following startup and prior to shutdow n, and there should be no barrier to the units complying with the standard that governs other unit s burning similar fuels. EPA’s constrained approach is not necessary to ensure complianc e with the applicable standards. Instead, the constraints result in EPA governing economi c decisions related to supply and demand, and deny regulated sources the flexibility to make s ound economic decisions related to their operations.

Response : We reject the notion that a unit should be considere d a section 112 source when it starts up and then, after startup, when it combusts solid waste it becomes a solid waste incineration unit subject to the CISWI standards until shutdo wn when it stops burning solid waste. We believe that this proposed approach would be unrea sonable and arbitrary in that it would circumvent section 129, because that provision require s numerical emissions limits for the 9 regulated pollutants. In essence, the commenter is sugges ting that CISWI units never startup or shutdown if they use traditional fuels during those peri ods.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 10

Comment: The practical effects of the regulation are far-rea ching. For example, if a facility burns a waste /fuel mix, which is typical, and is operati ng under the CISWI regulations, if for some reason the waste component of their fuel supply becomes unavailable, solid fuel boilers (e.g., coal) would not be able to meet the emission requ irements under CISWI (e.g. sulfur dioxide) and would have to shut down operations (or find an alternate source of energy) until they are permitted to switch back to an appropriate standa rd for their solid fuel. Many waste streams are not available year round and their supply is dependent upon production schedules at other entities. Also, a facility may inadvertently bur n a material that is a waste or later becomes classified as a waste, and might be forced to shut down or operate under the CISWI regulations for six months during periods while no waste is being burne d. This presents an additional and significant risk to attempting to burn alternative fuels. Another complication is that many units do not fire solid waste until the unit is started up and at steady state.

Response : We are not revising the final rule in response to thi s comment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as exp lained in the preamble to the 2011 CISWI rule. 76 FR 15714. The commenter has not adequately explained why a source wo uld be unable to continue to meet the CISWI standards after ceasi ng burning solid waste and we can think of no reason why the pollution control equipment woul d be less effective when the source is operating on non-solid waste fuels. As we discuss e lsewhere, we have subcategorized all emission limits based on the unit’s design to burn coal or biomass. There are sources in these subcategories that are meeting the limits, and the comme nter has not provided information that shows they cannot.63

Furthermore, for compliance purposes, EPA maintains that data generated by a solid waste incineration unit is valid even if no solid waste is combus ted during the test because sources must comply with the standards at all time. We have a cknowledged in this rulemaking that units in the ERU and waste burning kilns subcategories may start and stop combusting solid waste, and we have accounted for that fact by including in the defi nition of CISWI unit a requirement that units remain subject to CISWI for 6 months after a dding solid waste to the combustion unit. The rule does not require that waste be burned at all tim es and we understand that units will often operate without any solid waste inputs. Absent the use of all data in determining compliance for CISWI units, it would be very difficult to assure complia nce with the final rule, particularly for standards that are complied with using continuous emissions or parameter monitoring.

Commenter Name: Mark Calmes Commenter Affiliation: Archer Daniels Midland Company Document Control Number: EPA-HQ-OAR-2003-0119-2618-A2 Comment Excerpt Number: 2

Comment: The decision to switch a fuel or a fuel mix is generally dictated by supply and demand or boiler operating requirements

. Therefore, any environmental regulatory constraints related to fuel switching decisions must take into account

, and be as flexible as changes in fuel markets and operating conditions

. EPA should not insert itself into economic decisions r elated to supply and demand and should instead focus on appropriate environmental regulatory matters while allowing the regulated community the flexibility to make sound economic decisions related to its operation.

For example, if a facility burns a waste /fuel mix, which is typical, and is operating under the CISWI regulations, if for some reason the waste component of their fuel supply becomes unavailable, solid fuel boilers (e.g

. , coal boile r s) would likely not be able to meet the emission requirements under CISWI (e .g., sulfur dioxide, PM filterable and HCl).

Response : We are not revising the final rule in response to this comment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as exp lained in the preamble to the 2011 CISWI rule. 76 FR 15714. The commenter has not adequately exp lained why a source would be unable to continue to meet the CISWI standards after ceasi ng burning solid waste and we can think of no reason why the pollution control equipment woul d be less effective when the source is operating on non-solid waste fuels.

We do point out elsewhere and in section II.E of the preamble that we have revised the subcategories of ERUs in the final rule, including some inven tory adjustments, that have changed some of the resulting emission limits in the f inal rule. Several units within these subcategories have demonstrated that they can meet the final rule emission limits under their current control configuration.

Commenter Name: Mark Calmes Commenter Affiliation: Archer Daniels Midland Company64

Document Control Number: EPA-HQ-OAR-2003-0119-2618-A2 Comment Excerpt Number: 3

Comment: If a boiler owner is not operating under CISWI and wishes to take advantage of a favorable "waste" material market, they would be required to give thirty days' notice

, and then remain under CISWI regulations for a minimum of six mon ths during which time the market and availability of the material may change considerably

. Once under the CISWI, as mentioned above, this operator would have trouble meeting the CISWI emission requirements and would have to shut down operations (or find an alternate source of suitable energy) for a minimum of six months until it was permitted to switch back to an appropriate standard for its traditional solid fuel source. Many waste streams are not available year round and their supply is dependent upon production schedules out of the control of the ultimate fuel user. Also, a facility may inadvertently burn a material that is a waste or later becomes classified as a waste, and might be forced to shut down or operate under the CISWI regulation s for six months during periods when no waste is actually being combusted. These and many other operational examples present additional, significant and unintended risks related to attem pting to burn alternative fuels.

Response: We are not revising the final rule in response to this co mment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as exp lained in the preamble to the 2011 CISWI rule. 76 FR 15714. The commenter has not explained why a source would be unable to continue to meet the CISWI standards after ceasing burning so lid waste and we can think of no reason why the pollution control equipment would be less effective when the source is operating on non-solid waste fuels. Further, if a source inadver tently combusted solid waste in a fuel burning unit, it should work with the delegated authority to en sure compliance with the appropriate standards

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 11

Comment: To remedy these damaging effects, a provision should b e added that allows a facility to elect to either (1) comply with CISWI at all times or (2) comply with CISWI while burning solid waste but comply with otherwise applicable standards under section 112 of the Clean Air Act while not burning solid waste. This approach would be cons istent with the approach recommended for SSM periods. The Hazardous Waste Combustor MACT (see 40 CFR 63.1206(b)(1)(ii) and 63.1209(q)) provides a helpful referent. This wi ll also alleviate another problem caused by the EPA’s decision that work practice s tandards are not adequate for the regulation of sources during their startup and shutdown peri ods. Because EPA has stated it cannot use work practice standards during periods of startup a nd shutdown, compliance with CO emission limits along with other parameters such as sor bent loading in spray dryer absorbers will be very problematic. EPA should resolve this problem by a llowing sources that encounter these issues to elect to comply with section 112 standards during a ll times that solid waste are not being combusted or, alternatively, during just the startup an d shutdown periods. If a source elects one of these options, it would have to conduct all necess ary performance testing and establish65

continuous compliance monitoring systems and recordkeeping s ystems to comply with both the section 129 (CISWI) and the section 112 rules. Facilities c an easily document which mode of operation they are in (by tracking solid waste feed rate s) and readily show compliance with the applicable standard. There are no compliance assurance is sues with allowing this flexibility, as sources are able to demonstrate during what periods solid wast e is in the combustor.

Response: We are not revising the final rule in response to this co mment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as exp lained in the preamble to the 2011 CISWI rule. 76 FR 15714. Regarding the commenter’s concerns on CEMS data during startup and shutdown and operating parameter limits, these are disc ussed elsewhere in this response to comments document.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 5

Comment: Fortunately, there is precedent for a fuel switching provi sion that is both lawful and workable, and would assure that a combustion unit is subjec t to either the CISWI or the Boiler MACT rule requirements at all times, but not to both simu ltaneously. The fuel switching provisions in the 2005 NESHAP for Hazardous Waste Combustor s (“HWC MACT”) have been in place for many years and are operating successfully. See 40 C.F.R. §§ 63.1200 et seq., 63.1206(b)(ii) & 63.1209(q). The HWC MACT allows units that inte rmittently combust hazardous waste to comply with either Subpart EEE at al l times or with Subpart EEE while hazardous waste is in the combustion chamber and, some other applicable subpart promulgated under § 112 or § 129, when no hazardous waste is in the combust ion chamber 40 C.F.R. § 63.1206(b)(ii). 1 In relevant part, the emission standards and operating r equirements set forth in the HWC MACT do not apply “when hazardous waste is not in the combustion cham ber” and the unit’s compliance with other § 112 or 129 requirements h as been documented. Id.

The HWC MACT requires that if the unit is going to operat e under different modes of operation, the owner/operator must establish operating parameter li mits for each mode. Additionally, the owner/operator must document in the operating record when the unit changes a mode of operation and begins complying with the operating limits f or an alternative mode of operation. In order to operate under otherwise applicable requirements prom ulgated under §§ 112 or 129, the owner/operator must specify the otherwise applicable require ments as a mode of operation in its Documentation of Compliance; its Notification of Com pliance; and its Title V permit application. These requirements include the otherwise app licable requirements governing emission standards, monitoring and compliance, notification , reporting and recordkeeping. See 63.1209(q)(1). ACC recognizes that hazardous waste combustion u nits, unlike solid waste combustion units, are exempted from the definition of “ solid waste incineration unit” in § 129(g) so EPA is not required to regulate these units under § 129. Nonetheless, if EPA ca n offer regulatory flexibility for units that intermittently com bust hazardous waste, it should certainly do the same for units that intermittently combust non-hazardous solid waste. The regulatory approach taken in the HWC MACT could easily be adapted and a pplied permissibly under § 129.66

This would ensure that when combusting a solid waste the unit is regulated under § 129, and when combusting a traditional fuel it is regulated under § 112. One of these strict regulatory regimes would be applicable at all times, there would be no regulatory gaps and no confusion as to which set of requirements apply and the burden would be on the owner/operator to ensure that it is in compliance with one of these regulatory regim es at all times. Since EPA has stated it cannot use work practice standards during periods of startup a nd shutdown, compliance with CO emission limits along with other parameters such as sor bent loading in spray dryer absorbers will be very problematic. EPA should resolve this problem by allowing sources that encounter these issues to elect to comply with §112 standards during all times that solid waste is not being combusted or, alternatively, during just the startup and s hutdown periods. The proposed procedure to remain subject to §129 for six months after sh utting off waste feed would not allow this flexibility, which we believe will be required for som e units, even top performers, to comply with the rule. [Footnote:

1 When hazardous waste is not in the combustion chamber (i.e., the hazardous waste feed to the combustor has been cut off for a period of time not le ss than the hazardous waste residence time) and you have documented in the operating record that you are complying with all otherwise applicable requirements and standards promulgated under authori ty of sections 112 (e.g., 40 CFR part 63, subparts LLL, DDDDD, and NNNNN) or 129 of the Clean Air Act in lieu of the emission standards under §§ 63.1203, 63.1204, 63.1205, 63.1215, 63.1216, 63.1217, 63.1218, 63.1219, 63.1220, and 63.1221; the monitoring and compliance standards of thi s section and §§ 63.1207 through 63.1209, except the modes of operation requirements of § 63.1209(q); and the notification, reporting, and recordkeeping requirements of §§ 63.1210 through 63.1212.]

Response: We disagree with the commenter that the HWC approach s hould be adopted. In that case, sources are switching between two standards promulgat ed pursuant to section 112. But in this case sources are switching between sections 112 and 129, and the pollutants regulated under the two provisions are different (i.e. section 112 regulat es only HAP emissions and section 129 regulates a combination of HAP and criteria emissions. We maintain the approach adopted in the final rule is reasonable and consistent with the s tatute as explained elsewhere in the record. Regarding the commenter’s concerns on CEMS data during s tartup and shutdown and operating parameter limits, these issues are discussed elsewhere in this later in this document. elsewhere in this response to comments document.

Commenter Name: Stephen R. Gossett Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2640-A2 Comment Excerpt Number: 6

Comment: A provision should be added that allows a facility to ele ct to either (1) comply with CISWI at all times or (2) comply with CISWI while bur ning solid waste but comply with otherwise applicable standards under section 112 of the Clean Air Act while not burning solid
waste.
A provision similar to that provided in the Hazardous Wast e Combustor MACT (see 40 CFR 63.1206(b)(1)(ii) and 63.1209(q)) is needed in the CISWI rule. For example, Eastman operates67

coal-fired boilers that periodically run in an operatin g mode where a wastewater treatment sludge is co-fired with the coal. During this mode of operation, NO X emissions drop significantly. Section 129 of the Clean Air Act requires EPA to set emis sion standards for sulfur dioxide and NO X under CISWI and such standards are not required under the Boiler and Process Heater MACT. Depending on the stringency of the CISWI NO X emission standard, it may not be possible to comply with the NO X standard while operating in the coal-only mode without installing emission controls that are not otherwise autho rized under the Clean Air Act. There will likely be other situations where burning solid waste results in lower emissions than burning 100 percent fuel and facilities should not be penalized for th ese circumstances. Another complication is that many units do not fire solid waste until the unit i s started up and at steady state. Facilities can easily document which mode of operation they are in (by tracking solid waste feed rates) and readily show compliance with the applicable standard.

Also, as commented as elsewhere, since EPA has stated it cannot use work practice standards during periods of startup and shutdown, compliance with CO e mission limits along with other parameters such as sorbent loading in spray dryer absorbe rs will be very problematic. EPA should resolve this problem by allowing sources that encount er these issues to elect to comply with section 112 standards during all times that solid waste are not being combusted or, alternatively, during just the startup and shutdown periods.

If a source elects one of these options, it would have to conduct all necessary performance testing and establish continuous compliance monitoring sys tems and recordkeeping systems to comply with both the 129 and the 112 rules. We see no compl iance assurance issues with allowing this flexibility as we are able to demonstrate dur ing what periods solid waste is in the combustor.

Response: We disagree with the commenter that the HWC approach s hould be adopted. In that case, sources are switching between two standards promulgat ed pursuant to section 112. But in this case sources are switching between sections 112 and 129, and the pollutants regulated under the two provisions are different (i.e. section 112 regulat es only HAP emissions and section 129 regulates a combination of HAP and criteria emissions). We maintain the approach adopted in the final rule is reasonable and consistent with the s tatute as explained elsewhere in the record. Regarding the commenter’s concerns on CEMS data during s tartup and shutdown and operating parameter limits, these are discussed elsewhere in thi s elsewhere in this response to comments document.

Commenter Name: Michael D. Stevens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2596-A1 Comment Excerpt Number: 2

Comment: National Cement supports EPA's proposal that allows a kiln operator to retain the applicability of the CISWI standards, until notice is fi led, even if solid waste is not being used on a continuing basis. Because we are continually looking for opportunities to utilize new materials as fuel and we do not want to be forced into switching compl iance efforts between the CISWI limits and the NESHAP limits, this proposal is crucial to our operations.68

Response: We are finalizing this aspect of the rule as proposed.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 22

Comment: EPA should adopt specific substantive criteria for ret esting when a waste use changes: EPA should establish a practical set of crit eria for when retesting to demonstrate compliance under either Subpart CCCC or DDDD is requir ed. For example, retesting should only be required if:

1. A new class of material that is deemed to be solid wa ste goes into use,

ii. The use level of the new class of material is l ikely to be significant (more than 10% of the total fuel used over the first year of its use), and

iii. The kiln operator should have at least 6 months to de termine compliance from the date of the new class of materials first commercial use. (Short term testing of materials for production viability should not trigger that clock.)

Response: In the final rule, we have further clarified what cons titutes a “process change” that would require retesting as required under §60.2155(a)(2) and §60.2720(a)( 2). We have not changed the provisions that require retesting within 60 days o f a process change, however, and we believe that 60 days is adequate time to allow for a per formance test to be conducted.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 27

Comment: EPA should Clarify Initial Performance Testing Require ments: Section 60.2145(d) requires that a CISWI facility operator demonstrate con tinuous compliance with the emission standards. The rule also stipulates the initial complia nce be established when a facility is combusting a known type of solid waste or waste streams. The rule is ambiguous as to whether a CISWI facility will then be bound to only burn the type s of wastes combusted during the initial performance test. If so, this will be very difficult for waste burning kilns that are capable of burning many classes of solid wastes (including wastes that may not have been available at the time of performance testing.) To avoid an unnecessary ab undance of performing testing when changing waste streams, PCA recommends that compliance be premised on burning waste from classes of categories, such as, for example, organic li quids, refuse derived fuels, scrap plastic.

Response: As noted in response to EPA-HQ-OAR-2003-0119-2603-A1 excerpt 22, we have further clarified what constitutes a “process change” that would require retesting as required under §60.2155(a)(2) and §60.2720(a)(2). In this clarification, one o perational change to the CISWI unit where a new type of non-hazardous secondary ma terial is being combusted may be69

considered to constitute a “process change.” The “new ty pe of non-hazardous secondary material” refers to a type of material that was not be ing combusted during the most recent performance test. In this regard, we interpret “type” t o have the same meaning as the commenter’s “class” with respect to materials. As an example, a waste-burning kiln burning coal and scrap plastic during the performance test, but th en switching suppliers of scrap plastic, generally would not necessitate a retest. However, if the same unit then decided to also burn organic liquid wastes along with coal and scrap plastic, t hen the organic liquid would be a new “type” of waste and that would constitute a “process chan ge.” The provision at issue further applies to energy recovery units because such units are de fined by the type of fuel a unit is designed to burn. For example, a coal-fired ERU cannot b urn only liquid oil during the performance test.

Furthermore, for compliance purposes, EPA maintains t hat data generated by a solid waste incineration unit is valid even if no solid waste is combus ted during the test because sources must comply with the standards at all time. We have a cknowledged in this rulemaking that units in the ERU and waste burning kilns subcategories may start and stop combusting solid waste, and we have accounted for that fact by including in the defi nition of CISWI unit a requirement that units remain subject to CISWI for 6 months after a dding solid waste to the combustion unit. The rule does not require that waste be burned at all tim es and we understand that units will often operate without any solid waste inputs. Absent the use of all data in determining compliance for CISWI units, it would be very difficult to assure complia nce with the final rule, particularly for standards that are complied with using continuous emissions or parameter monitoring.

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA-HQ-OAR-2003-0119-2573-A2 Comment Excerpt Number: 7

Comment: We note and are sure that EPA recognizes that there a ny number of non hazardous solids waste materials that might be suitable for fi ring as an alternate fuel material. In a strict reading, a CISWI kiln could be required to retest when a different company supplies off specification wrapping paper. Clearly, this is not the int ent. We suggest that each CISWI kiln be able to identify its waste streams and either group or cat egorize them into similar categories (i.e. plastics, carpet, wood, paper, etc.). Similar to what ha s already been accepted for PC MACT, if there is a substantive change in the type of fuel (i.e. categorical waste streams) being processed that could affect emissions, then the company has the obl igations to retest and recertify compliance.

Request: Provide a statement that allows for the "categorizing" of similar waste streams. This approach would lessen the confusion with regard for a faci lity needing to re-permit or stack test as a result of new and similar materials coming from d ifferent suppliers.

Response: Consistent with the preamble to the proposed rule (76 FR 80459, December 23, 2011), an existing source will not be considered a new source solely due to the combustion of solid waste. Existing sources that begin combusting solid waste within six months of the compliance date of the emissions guidelines, such that th ey are solid waste incineration units on70

the compliance date of the emissions guidelines, or afte r the compliance date of the emissions guidelines are considered existing sources for purposes of CI SWI. Such units must then demonstrate compliance with CISWI and establish operatin g parameters for the CISWI unit consistent with the applicable performance testing and co mpliance assurance provisions. Solid waste incineration units are designed to combust solid was te and CISWI does not require sources to combust or not combust any particular solid waste mat erial. In certain cases, as with waste burning kilns and ERUs, solid waste may constitute all or a part of the fuel stream for the source and a change to the constituents of the solid waste does not constitute a change in the fuel. Accordingly, for such units a change in the mix of soli d wastes cannot reasonably be seen as a change in the method of operation and therefore, a cha nge in solid waste inputs alone will not trigger the modification provisions of the emissions guidel ines, though sources must continue to comply with the applicable emissions standards.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 3

Comment: Similar reasoning applies to EPA’s proposal in § 60.2145(a)(4 ) that a CISWI unit give EPA 30- days’ notice prior to the effective date of a fuel switch from a waste to a non-waste fuel. This prior notice requirement also subjects a unit to continued regulation under § 129 after it has ceased burning waste. For example, a unit that sto ps combusting waste on January 1st and notifies EPA of its waste-to-fuel switch on that same date would continue to be regulated as a CISWI until January 31st. As stated above, this is an impermissible expansion of § 129 requirements for a unit not combusting waste material. See Chevron , 467 U.S. at 842-43.

Response: For the reasons set forth above in response to other comments on this issue, we disagree with the commenter.

Commenter Name: Stuart A. Clark Commenter Affiliation: State of Washington Department of Ecology Document Control Number: EPA-HQ-OAR-2003-0119-2636-A2 Comment Excerpt Number: 5

Comment: We are disappointed that EPA did not harmonize the CISWI and Major Source Boiler MACT requirements as they apply to units that m ay operate periodically as part of its final rule. Washington State appreciates the complexity inv olved in establishing NESHAP standards over the varied range of source types and sizes addressed by these proposed rules. EPA’s efforts to gather additional data, carefully cons ider that data and public comments is apparent. These efforts have resulted in a set of rules that reduce the burden on industry, clarify and streamline the rules to facilitate smoother impleme ntation and still maintain public health protection.71

Response : EPA maintains that the subcategory definitions in the C ISWI rule and the Boiler NESHAP are appropriate for the respective regulations. T he commenter has not explained a specific problem caused by the definitions and we therefor e decline to make any changes. Regarding “harmony” of the CISWI and Major Source Boiler MACT, we believe that the waste to fuel switching requirements provide the flexibility needed for sources that burn both solid and non-solid waste.

Commenter Name: Annabeth Reitter Commenter Affiliation: NewPage Corporation Document Control Number: EPA-HQ-OAR-2003-0119-2645-A2 Comment Excerpt Number: 1

Comment: EPA should reconcile the definitions of units designed to burn coal in Boiler MACT and CISWI. In the preamble and rule language for both Boi ler MACT and CISWI, EPA recognizes and discusses that boilers and energy recover y units may be switching back and forth between Boiler MACT and CISWI as a result of waste-t o-non-waste fuel or non-waste fuel to waste switches. Being able to switch between CISWI and Boiler MACT will help provide sources with flexibility in their selection of materia ls they chose to combust for energy recovery.

Response: EPA maintains that the subcategory definitions in the CI SWI rule and the Boiler NESHAP are appropriate for the respective regulations. T he commenter has not explained a specific problem caused by the definitions and we therefor e decline to make any changes.



### 2E01. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment Units, Laboratory Analysis Units, and Space Heaters from C ISWI Subcategories

Commenter Name: Michael L. Krancer Commenter Affiliation: Pennsylvania Department of Environmental Protection Document Control Number: EPA-HQ-OAR-2003-0119-2591-A1 Comment Excerpt Number: 4

Comment: The EPA is soliciting comments in regard to cyclonic b um barrels, bum-off ovens, soil treatment units, laboratory analysis units, and spac e heaters and their definitions as set forth in the final rule. These definitions were not proposed f or public review and comment prior to final rulemaking. EPA is seeking comments on the definiti ons promulgated in the March 2011 final rule to comply with the Administrative Procedure Act, 5 U.S.C. 553, which requires the agency to provide an opportunity for public review and comment. As proposed, EPA is clarifying in the definitions of cyclonic burn barrels, burn -off ovens, soil treatment units, laboratory analysis units, and space heaters in the final rule that these units are not incinerators, waste-burning kilns, energy recovery units or small, remo te incinerators for purposes of Subpart CCCC. While the DEP believes that these units are inciner ators, an exemption for purposes of this subpart is appropriate because of the limited data av ailable at this time.72

Response: EPA is finalizing the definitions of these units as propo sed.

Commenter Name: Richard G. Stoll, Foley & Lardner LLP Commenter Affiliation: Reusable Industrial Packaging Association (RIPA) Document Control Number: EPA-HQ-OAR-2003-0119-2583-A2 Comment Excerpt Number: 1

Comment: EPA initially proposed its CISWI rule on June 4, 2010. 75 FR 31938. RIPA filed comments on August 23, 2010. A copy of RIPA’s comments is att ached hereto (Exhibit A). [see DCN EPA-HQ-OAR-2003-0119-2583-A3 for attachments provided by commenter ] In its August 23, 2010 comments, RIPA explained why EPA’s CISWI prop osal incorrectly placed drum reclamation units (DRUs) in the “burn

‐ off oven” category that EPA was proposing to regulate. RIPA also explained that EPA had no data whate ver in its record on which to base any CISWI standards for DRUs, and urged EPA not to regulate DRUs under its CISWI rules unless and until EPA had obtained sufficient data on which it co uld base standards.

EPA issued its final CISWI rule on March 21, 2011. 76 FR 15704. I n its final CISWI rule, EPA correctly ruled that it had inadequate data upon which to base standards for any of the types of sources it had considered under the burn

‐ off oven category. EPA also confirmed that it had “no data from drum reclamation units.” 76 FR 15734.

Pursuant to a “reconsideration” of the CISWI rule that EPA announced on the same day it issued the final rule (76 FR 15266), EPA has recently proposed amendm ents to its CISWI rule, 76 FR 80452, December 23, 2011.

In the preamble to its new proposed rule, EPA states tha t it still has no data to support the development of CISWI standards for the types of units it had included in the burn

‐ off oven category (such as DRUs), and “therefore, we are not pro posing standards” for such types of units. 76 FR 80460. EPA also proposed to clarify the definition of “burn

‐ off oven” by adding the italicized sentence as follows: Burn

‐ off oven means any rack reclamation unit, part reclamati on

unit, or drum reclamation unit. A burn

‐ off oven is not an incinerator, waste

‐ burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.

Proposed §60.2265, §60.2875, emphasis added.

EPA solicits comments in its preamble on (1) its deter mination not to propose standards for any of the burn

‐ off oven subcategories and (2) the revised definition of burn

‐ off oven. 76 FR 80460. RIPA hereby submits comments on these two issues.

(1) Determination not to propose standards

RIPA fully supports EPA’s determination. For all the rea sons stated in RIPA’s comments of August 23, 2010, and for the reasons EPA has stated in its final rule of June 4, 2011 and its new proposed rule of December 23, 2011, EPA simply does not have t he data on which it could develop any proposed standards for the subcategories EPA has des ignated within the burn

‐ off oven category, including DRUs.73

Response: EPA is finalizing the definition of "burn-off oven" as proposed.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 6

Comment: EPA discusses the definition of several types of units: cyclonic burn barrels, burnoff ovens, soil treatment units, laboratory analysis units, space heaters, foundry sand thermal reclamation units, and chemical recovery units. EPA has also included a definition of chemical recovery unit in the Proposed Rule that more properly a ddresses sulfuric acid recovery units (SARUs) as well as other types of chemical recovery uni ts. 76 Fed. Reg. 80460-80464.

Additionally, EPA discusses that each of these types of units are excluded from being classified as regulated CISWI units by definition. The revised definiti ons for these types of units are provided at §60.2265 and §60.2875. ACC supports the revised definitions and agrees with EPA that these units should not be regulated under CISWI.

Response: EPA is finalizing the definitions of these units as propo sed.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 6

Comment: EPA has appropriately determined that various types of unit s do not need to be regulated at this time. These include chemical recovery u nits, cyclonic burn barrels, burn-off ovens (including foundry sand reclamation units), soil treat ment units, laboratory analysis units, and space heaters. We support EPA’s decision not to regulate these units as CISWI for the many reasons laid out in our comments on the June 2010 proposed r ule.

Response: EPA is finalizing the definitions of these units as propo sed.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 17

Comment: Preamble Section I.C.3 [76 Fed. Reg. 80460] describes several types of units that will not be covered by this rule: cyclonic burn barrels, burn-off ovens, soil treatment units, laboratory analysis units, and space heaters. EPA explai ns that these units are distinguishable from the units that are covered by the rule and that, by and large, the Agency does not have adequate data at this time to set standards for them. [76 F ed. Reg. at 80460]. Similarly, EPA proposes a definition of foundry sand thermal reclamati on units and explains that such units are a subset of burn-off ovens that will not be regulated at thi s time due to lack of sufficient emissions74

information. Id . at 80463. The revised definitions for these types of units are provided at §60.2265 and §60.2875.

We agree with the revised definitions of each of these types of units and agree that they should not be regulated at this time. Our comments on the June 2010 proposed rules (see for example AF&PA comments at EPA-HQ-OAR-2003-0119-1951) provided detailed justifi cation for this approach. We incorporate by reference those comments.

Response: EPA is finalizing the definitions of these units as propo sed.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 3

Comment: THE EXEMPTIONS FROM THE CISWI RULE ARE UNLAWFUL AND ARBITRARY.

EPA has failed to set standards for cyclonic burn barrels , burn-off ovens (including foundry sand thermal reclamation units, 76 Fed. Reg. at 80463/2, and other pa rts reclamation units), chemical recovery units, soil treatment units, laboratory analysi s units, and space heaters. EPA now admits that these exempt sources are far more numerous than previously recognized. 76 Fed. Reg. at 80460/1 (“there may be many more cyclonic burn barrels than those we have identified”); id. at 80460/2 (“there may be 15,000 more unit in the burn-off oven sub category than we had identified”); id. (“the Agency had significantly underestimated the number of [soil treatment] units currently in operation”). EPA’s failure violates Cl ean Air Act section 129 and 112(c) and the Order in Sierra Club v. EPA , No. 01-1537, and is arbitrary. Section 129(a) directs EPA t o set standards for “each category of solid waste incineration units.” Section 112(c)(6) requires emissions standards for sources accounting for 90% of th e enumerated pollutants, which sources include CISWI. The Order in Sierra Club v. EPA , No. 01-1537, provides, “No later than December 15, 2007, EPA shall promulgate emission standards as suring that source categories accounting for not less than ninety percent of the aggregate emissions of each of the hazardous air pollutants enumerated in Section 112(c)(6) are subject t o emission standards under Section 112(d)(2) or (d)(4).” There is no dispute that cyclonic burn ba rrels, burn-off ovens, soil treatment units, and space heaters are within the CISWI source cate gory. They fit squarely within the statutory and regulatory definitions. 42 U.S.C. § 7429(g)(1); 40 C.F.R. § 60.2265; Natural Res. Def. Council v. E.P.A. , 489 F.3d 1250, 1257-58 (D.C. Cir. 2007) (“[Section 129] unambiguously include[s] among the incineration units subject to its stan dards any facility that combusts any commercial or industrial solid waste material at all[ .]”). They do not fall within any exemption. See 42 U.S.C. § 7429(g)(1); 40 C.F.R. § 60.2020. EPA is therefore under an obligation to set standards applicable to these sources. Instead, EPA has r edefined the subcategories subject to standards to exclude these sources. 76 Fed. Reg. at 80460. EPA’s reasons for passing over these CISWI—to the extent they can be called reasons at all— are unlawful and arbitrary. First, EPA claims that it has determined that it does not need to re gulate these sources to comply with 112(c)(6). This determination is unlawful, because Clean Air Act section 112(c)(9) specifies the circumstances required for deletion of sources from the 112(c)(6) list. Section 112(c)(9) permits75

deletion of a source category only when the pollutant for which it was listed is determined not to be harmful. See New Jersey v. EPA , 517 F.3d 574, 582 (D.C. Cir. 2008) (EPA could not avoid delisting requirements of § 112(c)(9) just because a source c ategory was listed under § 112(n)(1) instead of § 112(c)(1)). Because EPA has made no such determi nation for the pollutants for which the CISWI categories were included in the final 112(c)( 6) list, EPA may not subdivide the CISWI category and remove certain subcategories from th e final list. The 112(c)(6) obligation to regulate all CISWI therefore remains fully applicable. In addition, even if EPA were permitted to remove sources from the list upon a determination that t hey are no longer required to reach ninety percent, EPA never explains how it was able to dete rmine that such is the case for these sources given that it admits it has little or no data for them and lacks even a rough idea of how many units comprise each group. Moreover, even if EPA ha d lawfully removed these CISWI units from the 112(c)(6) list, that would have no effect on the obligation under section 129 to regulate all CISWI units. Second, EPA claims that it la cks data to promulgate standards for these subcategories. EPA’s reliance on the lack of data is arbi trary because the lack of data is EPA’s own fault. EPA states only that it has not received dat a, not that it has made any effort to obtain the data it needs. See 76 Fed. Reg. at 80460/2 (“We have not received any new emission data for cyclonic burn barrels”); id . (“we have not received data that would allow us to esta blish standards for the various burn-off oven subcategories”). It is also unlawful: EPA’s statutory obligations are in no way conditional upon whether it h as enough data to comply with them. Third, EPA suggests that the abundance of these units and th e fact that industry has requested that they be further subcategorized excuses the failure to set standards. These considerations are completely irrelevant to EPA’s obligation to set standa rds for all CISWI. EPA should not further subdivide these subcategories, but if that were the cor rect approach, EPA would be under an obligation to do so and promulgate standards for each new su bcategory, not merely throw up its hands because the task is complicated. EPA’s justifica tions for its failure to promulgate standards for laboratory analysis units are similarly unlawful a nd arbitrary. EPA first suggests that laboratory analysis units are not CISWI because their purpo se is not the disposal of material. But neither the statute nor the regulation limits CISWI t o units that have the primary purpose of disposing of material. If a unit burns waste in accordance with the applicable definitions, it is a CISWI unit and must be subject to standards. Second, EPA sta tes that it “believe[s] . . . based on the information available . . . that the material tha t is combusted in such units is likely not a solid waste[.]” 76 Fed. Reg. at 80460/3. This is arbitrary. The CISW I definitions already exclude units that do not burn waste. There is no justification for an additional and potentially overbroad exclusion for a class of units on the basis that they may not burn waste. Moreover, for EPA categorically to exclude these units from regulation, it must actually determine, based on record evidence, that they do not burn any waste, not speculate th at they “likely” do not. As the D.C. Circuit has made clear, EPA must set § 129 emission stan dards for any unit that burns any solid
waste.

Response: The commenter is incorrect in its assertion that EPA violated its CAA section 112(c)(6) requirement when issuing the final CISWI rule with out standards applicable to cyclonic burn barrels, burn-off ovens (including foundry san d thermal reclamation units and other parts reclamation units), chemical recovery units, soil treatment units, laboratory analysis units, and space heaters. The commenter’s argument hinges on its assertion that these units were listed pursuant to section 112(c)(6). This assertion is simp ly false. EPA did not list any of these units among the units necessary to satisfy the section 112( c)(6) requirement, and the Agency did76

not list CISWI units generally. Instead, EPA determined t hat units in the ERU and waste burning kilns subcategories were subject to the section 112(c)(6) deadline because such units were initially identified as industrial boilers and process heaters and cement kilns, respectively, and such units were listed for regulation. Because the so urces were never listed, the commenter is incorrect in its assertion that EPA must comply with 112(c)(6) to justify not issuing standards for such units in the final CISWI rule.

Concerning EPA’s responsibility to establish standards for these units notwithstanding section 112(c)(6), EPA reiterates that it had no data upon which to establish standards and there was not sufficient time available prior to the court-ordered deadl ine to collect sufficient data to establish such standards.

As for laboratory analysis units, the Agency maintains t hat the information available indicates that these units do not combust solid waste. The comme nter takes issue with the Agency’s conclusion but it provides no mechanism for the Agency to identify the waste burning laboratory analysis units it presumes exist. Absent information o n such units burning waste, we are unable to collect information on which to establish section 129 sta ndards.



### 2E02. Specific definition comments - cyclonic burn barrels

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 3

Comment: Although Dow does not currently use cyclonic burn barre ls, Dow supports the conclusions that EPA reached in the March 21, 2011 final ru le in adding the clarifying language
at § 60.2265 (Subpart CCCC) and § 60.2875 (Subpart DDDD) that "a cyclonic burn barrel is not an incinerator, waste-burning kiln, an energy recovery unit or a small, r emote incinerator under this subpart" (76 FR 80460). Dow requests that this clarifying language be adopted as written in the March 21, 2011 final rule and as proposed in this reconsi deration proposal for both subparts.

Response: EPA is finalizing the definition of these units as propo sed.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 36

Comment: The definition of cyclonic burn barrels and the decisio n to separate them from traditional incinerators is logical. They are difficult units to test and EPA is justified in not establishing standards as there is no emission data for t hem.

Response: EPA is finalizing the definition of these units as propo sed.77

Commenter Name: Michael Colton, President Commenter Affiliation: Manufacturing Systems Corporation (MSC) Document Control Number: EPA-HQ-OAR-2003-0119-2566-A2 Comment Excerpt Number: 1

Comment: The definition of cyclonic burn barrels should be revis ed further to include open cyclonic fireboxes operating under the same principles a s cyclonic burn barrels.

MSC's Firebrand Cyclonic Firebox is a mobile device for combustion of waste. It is constructed with a steel framework, consisting of four primary corn er posts and two bottom side rails, two top side rails, two or more bottom cross members, fron t enclosed and insulated lockable mechanical room, insulated panels and insulated locking re ar doors with header. Its interior geometry is markedly different from other firebox conf igurations, with interior walls angled to provide optimum reflection of heat and repeated rapid deflec tion of air in a cyclonic manner to enhance the mixing of waste and air.

The cyclonic firebox operates under the same thermodynam ic principles as cyclonic burn barrels, using forced air introduced by a high velocity fan at a spe cific angle through a plenum located above one side of the upper firebox structure to create a horizontal cyclonic wind/circulation in the combustion chamber for maximum combustion efficiency of waste material. The high velocity forced air creates a boundary layer that acts as a ceiling or lid similar in principle to cyclonic burn barrels, causing re-circulation of particul ates over and over in the hottest part of the firebox at temperatures between 18000F and 2500oF. Because particulates remain in the cyclonic firebox for an extended period of time under int ense internal heat, almost all pollutants are dissipated on a molecular level before exiting into t he atmosphere.

Studies on combustion of vegetative waste using standard a ir curtain technology have shown visible opacity well under 10 on the Ringelmann scale. This compares to open burning, which typically can result in opacity of 80 to 100 on the Ringe lmann scale. 1

Also, the cyclonic action of air and intense heat crea ted inside the cyclonic firebox causes almost complete consumption of waste resulting in a residual benign sterile ash after the combustion process is complete. When combustion is complete, wa ste is reduced 94% or more by weight and 80 % or more by volume. The high efficiency combustion of the cyclonic firebox is fashioned after the same basic fundamental principles of airflo w perfected by Babcock and Wilcox in 1942 with the cyclone burner, except on a larger scale and m ore refined fashion in an open refractory/ceramic lined firebox application. These ar e the same principles used by cyclonic burn barrels for combustion of waste, with the only diffe rence that the cyclonic burn barrel's action is vertical, while the action of the cyclonic firebox is horizontal.

In its original proposed CISWI rule, the EPA included cy clonic burn barrels within the definition for incinerators. However, based on the information rec eived during the comment period, the EPA determined that cyclonic burn barrels and traditional incinerators should be separate subcategories. The EPA noted a cyclonic burn barrel is not an incinerator, waste-burning kiln, an ERU or a small, remote incinerator under subparts CCCC or DODD.

The EPA further noted that information it had obtained s ince the CISWI rule was proposed indicates that there may be many more cyclonic burn ba rrels than those it had identified and the78

EPA had almost no emission data on which to set emissio ns standards for cyclonic burn barrels. The EPA had received information that it is difficult, if not impossible, to test cyclonic burn barrels for the CAA section 129 pollutants using available t est methods. For these reasons, the EPA concluded in the final rules that cyclonic burn barrel s were not incinerators and that it could not establish standards for such units at the time it is sued the final rules. It further determined in the final rule that it did not need to regulate cyclonic burn barrels to comply with section 112(c)(6) of the Clean Air Act for the reasons set fort h in the preamble to the final rule.

[Footnotes]

(1)CA. Miller and P. Lemieux, 2007, Emissions from Burning of Vegetative Debris in Air Curtain Destructors,

J. AWMA, 57,959-967.

Response: We are not revising the definition of “cyclonic burn b arrels” as the commenter suggests. We do not have sufficient information on the unit in question to make a definitive assessment at this time as to whether the “cyclonic f irebox” unit should be captured under the “cyclonic burn barrel definition.” In fact, based on th e brief description of the cyclonic firebox provided by the commenter, we offer that this type of unit may be more appropriately considered to be an air curtain incinerator. We point out that pro visions for air curtain incinerators, including descriptions of such units, are found in §60.2245 and §60.2810 of the NSPS and EG, respectively. If questions remain regarding applicability of CISWI to these units, we would encourage the commenter to work with the implementing a gency to submit a request for an applicability determination to the appropriate authority.

Commenter Name: William C. Allison Commenter Affiliation: Air Pollution Control Division Document Control Number: EPA-HQ-OAR-2003-0119-2601-A1 Comment Excerpt Number: 1

Comment: The State recommends that the EPA amend the Other Solid Waste Incinerators (“OSWI”) rules, located in 40 C.F.R. Part 60, Subparts EEEE and FFFF, to include the definition of cyclonic burn barrel as proposed to be included in the C ISWI rules. The CISWI Reconsideration specifies that a “cyclonic burn barrel is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under” the CISWI rules, including NSPS CCCC and DDDD.[ 76 Fed.Reg.80501 and 80522 ,§§60.2265and60.2875] In the preamble to the proposed rule, the EPA based the exclusion of cyclonic b urn barrels from the CIWSI rules on the minimal emissions data available and the inability to te st cyclonic burn barrels for Clean Air Act (“CAA”) Section 129 pollutants using currently available test methods. Instead, the EPA concluded that cyclonic burn barrels are not incinerators. If cyclonic burn barrels are not considered incinerators under the CISWI rules, then they should also be excluded from the definition of incinerator under the OSWI rules.

Response: This particular comment concerns provisions in the OSWI regulation, not the CISWI rule provisions which this document pertains to.79



### 2E03. Specific definition comments - Burn-off ovens

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 2

Comment: It is common practice in industry (such as plastics or latex manufacturers, plastics or latex processors, polymer production facilities, as wel l as others) to use on-site ovens (electric or gas-fired) to clean solidified material off of small me tal parts (extrusion dies, screen packs, extrusion screws, filters, gears, etc.) during maintena nce so these parts can be reassembled properly after the maintenance is completed. Most of t hese units do not use incineration or combustion processes. Rather, they use lower temperat ure processes such as melting or pyrolysis to melt/decompose materials such as plastic or polymer. Some of these ovens are specifically designed to avoid flaming conditions which would damage the parts being cleaned. After loading, the oven is turned on and the temperature starts to rise to the optimum cleaning temperature. As the temperature rises, the initial cleani ng is accomplished by melting the material and the molten material is collected in a pan or separate chamber. At some point, the conditions are such that the physical change (melting) i s replaced by a chemical change (pyrolysis) to any remaining material. A number of these units have water spray controls to prevent flames and to keep the materials on the parts fro m burning and increasing the temperature on the part. In many cases, the on-site units may be no larger than a residential or commercial self-cleaning oven and will have fossil fuel BTU ratings of 1MM BTU/HR or less. CRWI does not believe these units should be considered as CISWI units since no solid waste is being combusted.

Response: EPA is finalizing the definition of "burn-off oven" as proposed. As the final rule does not establish standards for these units, we need not a ddress whether the units the commenter discusses actually combust solid waste.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 4

Comment: Dow supports the conclusions that EPA reached in the Ma rch 21, 2011 final rule in adding the clarifying language at § 60.2265 (Subpart CCCC) and § 60.2875 (Subpart DDDD) that "a burn-off oven is not an incinerator, waste-burning kiln, an energy recove ry unit or a small, remote incinerator under this subpart" (76 FR 80460). In addition to the reasons EPA gave for reaching this conclusion, Dow briefly refers to comments w e made on the proposed CISWI amendments (June 4, 2010). These comments provided additional reasons for not regulating burn-off ovens under CAA section 129 that EPA has not menti oned in this reconsideration proposal. Dow provided comments that burn-off ovens (or a t least those operated by Dow) do not practice the combustion of solid waste and are opera ted at temperatures low enough to repurpose metal articles without damage so that they can be reused, and that operating conditions80

are designed to prevent combustion so that damage to the m etal articles does not occur. In addition, should EPA have disagreed with Dow’s claim of not practicing combustion in these ovens, Dow also commented that CAA section 129.g.1 state s that the term, "solid waste incineration unit" does not include materials recovery faci lities which combust waste for the primary purpose of recovering metals. The primary purpose of Dow’s ovens is indeed to recover metals, although the metals are recovered in the intac t form of a metal article. Dow believes that the CAA section 129.g.1 language could accommodate this practic e. Dow appreciates the clarifying language of the March 21, 2011 final rule and requests t hat it be adopted as proposed in this reconsideration proposal for both subparts.

Response: EPA is finalizing the definition of "burn-off oven" as proposed. As the final rule does not establish standards for these units, we need not a ddress whether the units the commenter discusses actually combust solid waste.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 1

Comment: In the March 21, 2011, final rule, EPA modified the defini tion of burn-off ovens to preclude them from being regulated as CISWI units. In the pre amble of this proposed rule (76 Fed. Reg. at 80,460), the Agency states that they made that decision "based on the comments, the lack of data, and our determination that we did not need to regulate burn-off ovens to comply with our CAA section 112(c)(6) obligation." CRWI supports that decision.

Response: EPA is finalizing the definition of "burn-off oven" as proposed.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 3

Comment: Section 129 of the Clean Air Act requires EPA to set n umerical standards for solid waste incineration units. Congress defines a "solid waste incineration unit" as "a distinct operating unit of any facility which combusts any solid was te material..." Congress did not define "combust" or "pyrolysis." Combustion or burning is t he sequence of exothermic chemical reactions between a fuel and an oxidant accompanied by the production of heat and conversion of chemical species. In combustion, the release of hea t can result in the production of light in the form of either glowing or a flame. Pyrolysis is the chemical decomposition of condensed substances by heating that occurs spontaneously at certai n temperatures, or a chemical change or degradation of material brought about by the action of he at. Melting is a physical change brought on by heat. In fact, the prevention of combustion is particularly desired in a burn-off oven so as not to damage the metals parts being cleaned. CRWI believe s these units should not be included in this rule since they practice pyrolysis of solids, a re purposely designed and operated to avoid combustion, and are already appropriately addressed under va rious state mechanisms due to the81

nature of the small potential for emissions. We belie ve that these units were appropriately excluded in the original CISWI rule and that they should continue to be excluded.

Even if EPA were to disagree with the claim that burn-o ff ovens do not employ combustion, section 129(g)(1) clearly identifies certain units that ar e not solid waste incineration units under the act. One such unit is a materials recovery facili ty which combusts waste for the primary purpose of recovering metals. These ovens definitely have a primary purpose to recover metals even though the metals they are recovering are intact metal articles.

Response: EPA is finalizing the definition of "burn-off oven" as proposed. As the final rule does not establish standards for these units, we need not a ddress whether the units the commenter discusses actually combust solid waste or whether they qualify as materials recovery facilities under section 112(g)(1)(A).

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 4

Comment: Many burn-off ovens are not equipped with stacks because o f the small size of the units. The small units may only have a vent of 2-3 inches i n diameter, which cannot accommodate the methods requirements for sampling (Meth od 1 requires a minimum stack diameter of 12 inches – Part 60, Appendix A). In addition, these units (both small and large) are batch operated and many run on short cycles. For exampl e, the cycle can consist of 2 hours of heat-up, followed by 2-3 hours of pyrolysis, and finally by 2-3 hours of cool down. The sampling methods for a number of the regulated pollutants require a sample time of three or more hours which can easily exceed the pyrolysis time of the units . Thus, it may be impossible for these units to use approved testing methods to conduct their initial tests or to show future compliance.

Response: EPA is finalizing the definition of "burn-off oven" as proposed.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 5

Comment: If included in the CISWI rule, it would actually be a d isincentive to reuse parts, especially small parts. This appears to be in conflict wit h resource recovery objectives and may show that these standards do not adequately consider cost a nd environmental impact necessary to promulgate standards under section 111. If the added expense of cleaning can be justified, facilities will need to ship these small metal parts to l arger commercial units and will be forced to keep more spare parts on hand (a prohibitively large expense for many specialized machined parts). Of course, such shipment assumes even the larger ovens can comply, which is not certain since EPA expected most of these ovens to shut down (75 F ed. Reg. 31,956, June 4, 2010). CRWI believes that the transportation emissions would dw arf the emissions from these small units.82

In many cases, industry began to use burn-off ovens becaus e the previous option of chemical cleaning of these parts involved chlorinated solvents, caustic solutions or other means that were much more environmentally unfriendly, resulting in greater potential for exposure to employees and generating a great deal more waste. Abrasive cleaning is not a viable option for machined parts since abrasion can damage the parts rendering them us eless for further process use. If the Agency were to regulate burn-off ovens, EPA will be hinder ing a superior cleaning method. EPA’s expectation that industry will transition to oth er methods ignores the fact that the other cleaning methods are environmentally and physically inferior

. Response: EPA is finalizing the definition of "burn-off oven" as proposed.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 6

Comment: Some, if not most, states already realize that the potential for emissions from these units is inconsequential because of the small amount of material that they remove and the small amount of emissions that these units could conceivably pro duce. The vendor for one of the units advertises in their literature that many states have l ong recognized that regulating the emissions from these units is a somewhat useless activity. The ve ndor lists the states of Alabama, Connecticut, Georgia, Hawaii, Iowa, Kansas, Maine, Minnes ota, Montana, Nevada, North Carolina, Oklahoma, South Dakota, Tennessee, Texas, and Wisconsin as having various mechanisms for addressing this miniscule concern (exempti ons based on amount of emissions, exemptions based BTU release rate, exemptions based on solids capacity, permits by rule with only minimal requirements, etc.). To include these units as CISWI regulated units would force these states, and likely others not listed, to regulate s omething that they have long known to be a useless activity.

Response: EPA is finalizing the definition of "burn-off oven" as proposed.

Commenter Name: Richard G. Stoll, Foley & Lardner LLP Commenter Affiliation: Reusable Industrial Packaging Association (RIPA) Document Control Number: EPA-HQ-OAR-2003-0119-2583-A2 Comment Excerpt Number: 2

Comment: EPA solicits comments in its preamble on (1) its det ermination not to propose standards for any of the burn

‐ off oven subcategories and (2) the revised definition of burn

‐ off oven. 76 FR 80460. RIPA hereby submits comments on these two i ssues.
(2) Revised definition

With respect to the first sentence (which is from the current final CISWI rule), we have already demonstrated in our comments of August 23, 2010 that DRUs are n ot burn

‐ off ovens. There are major and legally significant distinctions. At this poi nt, the inclusion of DRUs within the burn

‐ off definition is not harmful, since EPA is not propos ing CISWI standards for units it83

defines as burn

‐ off ovens. In the future, however, should EPA choose to develop CISWI standards applicable to DRUs, then for all the reasons e xplained in our August 23, 2010 comments, EPA should place DRUs in a separate and dis tinct category or sub

‐ category from burn

‐ off ovens.

We support the proposed new second sentence of the definit ion and encourage EPA to include it in the final CISWI rule. It is important to clarify tha t any unit that is now defined as a burn

‐ off oven by the CISWI rule (such as DRUs) could not erroneous ly be considered as a regulated unit in one of the other CISWI categories.

Response: EPA is finalizing the definition of "burn-off oven" as proposed.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1 Comment Excerpt Number: 3

Comment: The NAM agrees with the EPA’s decision not to apply t he proposed incinerator MACT standards to small "burn-off ovens." 76 Fed. Reg. 80,460. In addition to the reasons identified by the EPA, it is not appropriate to categoriz e burn-off ovens as incinerators, as most burn-off ovens are not actually combusting material. Ins tead they use lower temperature processes such as melting or pyrolysis and are specificall y designed to avoid flaming conditions, which would damage the parts being cleaned.

Response: EPA is finalizing the definition of "burn-off oven" as proposed. As the final rule does not establish standards for these units, we need not a ddress whether the units the commenter discusses actually combust solid waste.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 37

Comment: EPA is also justified in not establishing standards for burn-off ovens. With several different types of units and a lack of data, it is not feasible to regulate these units under one set of standards.

Response: EPA is finalizing the definition of "burn-off oven" as proposed.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 7

Comment: In many applications, the material being removed is fo od grade material or other materials directly used by consumers (e.g., polyethylene, polypropylene, latex etc.). As such,84

these materials would not be expected to contain or gen erate most of the Section 129 substances of concern (sulfur, chloride, lead, cadmium, and mercury) . Because of the lower pyrolysis temperatures and the low potential for chloride content, t he potential to generate dioxins and furans is likewise low. Even if EPA believes they must regulate these units, there should be ample opportunity for EPA to limit any emission standards t o those constituents that might be expected instead of the full Section 129 list.

Response: EPA is finalizing the definition of "burn-off oven" as proposed. We note however, that CAA section 129 directs EPA to establish numerical standards for nine pollutants from solid waste incineration units. See CAA section 129(a)(4). As the final rule does not establish standards for these units, we need not address whether th e units the commenter discusses actually combust solid waste.

Commenter Name: Frederick Fedri Commenter Affiliation: Occidental Chemical Corporation (OCC) Document Control Number: EPA-HQ-OAR-2003-0119-2594-A1 Comment Excerpt Number: 1

Comment: EPA presented reasons for its decision not to finalize s tandards for burn-off ovens at this time based on (1) the realization that there may be over 15,000 more units than what was originally identified, (2) the lack of data on these units, and (3) the determination that the EPA did not need to regulate burn-off ovens to comply with CAA section 112(c)(6) obligations.

Comment: OCC agrees with EPA’s position that these unit s should not be regulated under the CISWI regulation. OCC supports the proposed revised definit ion of burn-off oven, with a further clarification to the definition.

The current rule definition states: "Burn-off oven means any rack reclamation unit, part reclamation unit, or drum reclamation unit. A burn-off ove n is not an incinerator, waste burning kiln, an energy recovery unit, or small remote incin erator under this subpart."

EPA Fact Sheet from the Office of Air Quality Planning a nd Standards, Sector Policies and Programs Division, Natural Resources and Commerce Group des cribed burn-off ovens as ovens that combust residual material off racks, parts, drums, or hooks so those items can be re-used in various production processes. In keeping with the Fact Shee t description, OCC suggests that the EPA amend the definition to the following: "Burn-off ove n means any rack reclamation unit, part reclamation unit, or drum reclamation unit that utilizes combustion for the burn-off of residual material. A burn-off oven is not an incinerator, waste burning kiln, an energy recovery unit or small remote incinerator under this subpart."

This recommended change would provide a comprehensive definiti on and clarify that material in these types of units is burned off, as opposed to other oven operations that may, as an example, involve oven curing of coated parts.

Response: EPA is finalizing the definition of "burn-off oven" as proposed. We do not believe the commenter’s suggested change to the definition is necess ary to define the category.85



### 2E04. Specific definition comments - Soil treatment units

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 5

Comment: Although Dow does not currently use soil treatment unit s, Dow supports the conclusions that EPA reached in the March 21, 2011 final ru le and adding the clarifying language at § 60.2265 (Subpart CCCC) and § 60.2875 (Subpart DDDD) that "a soil treatment unit is not an incinerator, waste-burning kiln, an energy recovery unit or a sm all, remote incinerator under this subpart" (76 FR 80460). Dow requests that this clarifying language be adopted as written in the March 21, 2011 final rule and as proposed in thi s reconsideration proposal for both subparts.

Response: EPA is finalizing the definition of "soil treatment uni t" as proposed.



### 2E05. Specific definition comments - Laboratory analysis uni ts

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 38

Comment: CIBO supports the exclusion of laboratory analysis units from the rule, on the basis of a lack of data and on the characteristics of these units. These are highly specialized units not likely to burn solid waste and too small and diverse to just ify development of standards.

Response: EPA is finalizing the definition of "laboratory analysi s unit" as proposed.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 6

Comment: Dow supports the conclusions that EPA reached in the Ma rch 21, 2011 final rule in adding the definition of laboratory analysis unit and the clarifying language at § 60.2265 (Subpart CCCC) and § 60.2875 (Subpart DDDD) that "a laboratory analysis unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote inciner ator under this subpart" (76 FR 80460). Dow appreciates EPA’s recognition that samples used in laboratory analysis units have a separate purpose from the disposal of materi al. Dow also briefly refers to comments we made on the proposed CISWI amendments (June 4, 2010) that laboratory analysis units are usually very small pieces of equipment that would be dif ficult, if not impossible, to sample for CAA section 129 pollutants using available test methods. Dow r equests that this clarifying86

language be adopted as written in the March 21, 2011 final rule and as proposed in this reconsideration proposal for both subparts.

Response: EPA is finalizing the definition of "laboratory analysi s unit" as proposed.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 8

Comment: In the March 21, 2011, final rule, EPA modified the defini tion of laboratory analysis units to preclude them from being regulated as CISWI units. In the preamble of this proposed rule (76 Fed. Reg. at 80,460), the Agency states that they have concluded that samples used in laboratory analysis units "have a purpose separate from th e disposal of material" and as such are not a solid waste. We agree with that logic and decisio n. Materials being combusted for laboratory analysis units are not being abandoned, discar ded, recycled, disposed of, inherently waste like, or thrown away. See e.g ., 40 CFR § 261.2. While these materials are destroyed in th e process of making the analysis, the purpose is not destruct ion but analysis. We agree with the Agency that destruction of material in laboratory instru ments should not be considered as discard and as a result, the materials combusted are not solid w aste and laboratory analysis units should not be included in the CISWI rule. Thus, we support EPA’s cur rent definition of laboratory analysis units.

Response: EPA is finalizing the definition of "laboratory analysi s unit" as proposed.



### 2E06. Specific definition comments - Space heaters

Commenter Name: Susan Bodine Commenter Affiliation: Used Oil Management Association (UOMA) Document Control Number: EPA-HQ-OAR-2003-0119-2610-A1 Comment Excerpt Number: 1

Comment: The final CISWI rule that was published on March 21, 2011, incl uded a definition of the term "space heater." See Standards of Performance for New Stationary Sources an d Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units, published at 76 Fed. Reg. 15704 (Mar. 21, 2011) (CISWI Rule) and 40 C.F. R. 60.2265 and 40 C.F.R. 60.2875. According to the preamble to the CISWI Rule, the purpose of that definition is to exempt space heaters from the standards promulgated in t he CISWI Rule. 76 Fed. Reg. at 15713. UOMA greatly appreciates the space heater exemption in the final CISWI Rule. In developing that rule, EPA did not consider space heaters. S pace heaters are not mentioned in the June 2010 CISWI or NHSM proposed rules. See Identification of Non-Hazardous Secondary Materials That Are Solid Waste, 75 Fed. Reg. 31844 (Jun. 4, 2010 ) (NHSM Proposal) and Proposed Standards of Performance for New Stationary So urces and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste I ncinerators, 75 Fed. Reg. 31938 (June 4, 2010) (CISWI Proposal).87

In comments filed on the NHSM Proposal and the CISWI Proposal, UOMA brought to EPA’s attention the impact of these rules on space heaters s pecifically and used oil management generally and expressed concern over the adverse environmen tal consequences that would arise if EPA established barriers to used oil recycling. One such barrier would have been the de facto prohibition on the use of space heaters that would have re sulted if space heaters were subject to the CISWI Rule. In particular, UOMA raised the concer n that imposing CISWI standards on space heaters would likely have eviscerated the existing used oil collection system, leaving do-ityour-self oil changers with few options for the environm entally protective management of used oil. Comments of the Used Oil Management Association on the Identification of Non-Hazardous Secondary Materials That Are Solid Waste, 75 Fed. Reg. 31844 ( Jun. 4, 2010) Docket ID No. EPA-HQ-RCRA-2008-0329-1686, at 11-12.

In response to these concerns, EPA promulgated a space he ater exemption from the CISWI Rule. EPA explained this exemption in the preamble to the "Ident ification of Non-Hazardous Secondary Materials That Are Solid Waste," final rule, published at 76 Fed. Reg. 15456 (Mar. 21, 2011) (NHSM Rule):

[ ] EPA is specifically clarifying in this final rule tha t used oil combusted in an oil-fired space heater that meets the provisions of 40 CFR 279.23 need not be tested to establish whether or not such oil is on or off-spec. ..... This is because the CISWI regulations promulgated elsewhere in the Federal Register today do not establish emissions limits for such units, an d therefore the concerns of the commenters that such units would have to c omply with CAA Section 129 standards have been addressed for this population of combusti on units." 76 Fed. Reg. at 15502, 15504, 15506.

EPA also provided an explanation of its intent in the "Frequent Questions" document accompanying that rule (available at http://www.epa.gov/epawaste/nonhaz/define/faq-final.htm ). The NHSM Rule Frequent Questions state:

Today’s final rules do not impact the regulation of used oi l burned in space heaters. Specifically, EPA is clarifying that regulation of used oil combusted in oil fired space heaters that meets the provisions of 40 CFR 279.23 would not in any way change the curre nt regulatory scheme or operations for burning of used oil in space heaters. . . . This is because the CISWI regulations promulgated under the Clean Air Act do not establish emiss ions limits for such units.

UOMA strongly supports the space heater exemption, but of fers these comments to ensure that this exemption is implemented as intended by EPA.

Response: EPA has clarified in the final rule definition of "spa ce heater" that this type of unit meets the requirements of 40 CFR 279.23, and that space heater s are not incinerators, wasteburning kilns, energy recovery units, or small, remote incine rators. To the extent the comment addresses the NHSM rule, we need not respond to it in this document.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 788

Comment: Dow supports the conclusions that EPA reached in adding th e definition of space heater in the March 21, 2011 final rule and in proposing the clarifying language at § 60.2265 (Subpart CCCC) and § 60.2875 (Subpart DDDD) that "a space heater is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote inciner ator under this subpart" (76 FR 80460). Dow requests that this clarifying language be adopted as proposed in both subparts.

Response: EPA is finalizing the proposed definition with a small c larification. See the response to EPA-HQ-OAR-2003-0119-2610-A1 excerpt 1.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 19

Comment: 60.2265 - We support the exclusion of space heaters from th e definition of incinerator, waste-burning kiln, energy recovery unit and s mall remote incinerator unit.

Response: EPA is finalizing the proposed definition with a small c larification. See the response to EPA-HQ-OAR-2003-0119-2610-A1 excerpt 1.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 39

Comment: EPA lacked data on space heaters and noted that they wer e not needed to meet EPA’s section 112(c)(6) obligation, and therefore did not i nclude them in the rule. CIBO supports that outcome based also on their very insignifica nt emissions would not justify the effort to inventory and develop standards for these units.

Response: EPA is finalizing the proposed definition with a small c larification. See the response to EPA-HQ-OAR-2003-0119-2610-A1 excerpt 1.

Commenter Name: Susan Bodine Commenter Affiliation: Used Oil Management Association (UOMA) Document Control Number: EPA-HQ-OAR-2003-0119-2610-A1 Comment Excerpt Number: 2

Comment: In both the preamble to the NHSM Rule, and in its "Fre quent Questions" document, EPA clearly states that it intends the space heater e xemption to apply to space heaters that meet the requirements of 40 C.F.R. 279.23. That is, space heaters that:

(1) only burn used oil generated by the owner or operated of t he space heater or received from household do-it-yourself oil generators,89

(2) have a maximum capacity of not more than 0.5 million Btu per hour, and

(3) are vented to the ambient air.

However, rather than repeating or referencing this defini tion, in the CISWI Rule EPA defined space heaters as: "a usually portable appliance for heati ng a relatively small area." EPA does not provide a definition of "usually portable" or "relatively small area." Thus, the space heater definition in the CISWI Rule is subjective and could lea ve space heater operators vulnerable to conflicting interpretations by enforcement officials. In fact, despite EPA’s stated intent to exempt space heaters that meet the requirements of 279.23 from th e CISWI Rule, this definition could be considered inconsistent with those requirements. In parti cular, an inspector could decide that a unit that is vented to the outside is not portable becaus e the vent would have to be detached before the unit could be moved.

In the CISWI Reconsideration Rule, EPA is now taking comment on the definition of "space heater." To give effect to EPA’s intent to exempt space heaters from the CISWI Rule, UOMA strongly urges EPA to clarify this definition. Specifical ly, we respectfully request that EPA revise the definition of "space heater" to expressly inc lude units that meet the requirements of 40 C.F.R. 279.23 As revised, the definitions at 40 C.F.R. 60.2265 an d 60.2875 could read as follows:

Space heater means a unit that meets the requirements of 40 C.F.R. 279.23. A space heater is not an incinerator, waste-burning kiln, an energy recovery unit, o r a small, remote incinerator under this subpart.

In this revised definition, the limitations on the source of the oil imposed by Part 279 serves to ensure that the exemption serves the environmental purpose o f encouraging proper management of used oil. The limitation on the capacity of the unit ensures that only very small oil-fired units are eligible for the exemption. The requirement that the unit be vented to the outdoors ensures that health is protected. In addition to these environment al and human health protections, this definition provides a clear and objective standard that is well known to regulators, space heater manufacturers, and space heater operators, reducing regulatory uncertainty for all of these entities.

Response: EPA is finalizing the proposed definition with a small clarification. See the response to EPA-HQ-OAR-2003-0119-2610-A1 excerpt 1.



### 2E07. Establishing a Definition of "Homogeneous Waste"

Commenter Name: Traylor Champion Commenter Affiliation: Georgia-Pacific LLC (GP) Document Control Number: EPA-HQ-OAR-2003-0119-2581-A1 Comment Excerpt Number: 6

Comment: We note that the conditions EPA has proposed to place on mixtures of two homogeneous wastes are not only inconsistent with the sta tutory language, as discussed above, but also are inconsistent with the NHSM Rule. The CI SWI Reconsideration preamble language90

says a mixture of two homogeneous wastes must be “condit ioned or processed.” Does EPA intend the term “processed” to have the same meaning as in the NHSM Rule? Under the NSHM Rule, a material that is processed and meets the NHSM legitimacy criteria is not a waste and therefore need not meet the homogeneous waste definition. However, the definition of homogeneous waste could be relevant to a secondary mater ial that does not meet the legitimacy criteria. In such a case, what level of processing is c ontemplated?

Response:

The EPA included in the final 2011 CISWI Rule a definition o f homogenous waste and a process for evaluating claims that a particular waste stream i s homogenous. The definition was added to the 2011 CISWI rule in response to comment. Because the dete rmination of homogeneity of a waste stream is relevant to applicability of CAA secti on 129 to qualifying small power producers and qualifying cogeneration facilities, we determined it was reasonable to include a definition of “homogenous waste” and a process by which sources could obta in a determination that a waste stream is homogenous from the EPA.

In the 2011 CISWI Rule, the EPA stated that a determinati on concerning whether a waste is homogeneous is made on a case-by-case basis. The EPA added provisions to the CISWI final rule that require source owners or operators seeking the ex emption to submit a request for a homogeneous waste determination to the EPA, and that they support their request with information describing the materials to be combusted and why they believe the waste is homogeneous. The 2011 CISWI rule also stated that the determ ination of what constitutes a homogeneous waste is not delegable to the state or local a gencies. In the December 23, 2011, reconsideration proposal, we proposed for comment the definition of “homogeneous waste” and the provisions for making homogeneous waste determinations t hat were included in the 2011 CISWI rule.

Commenters generally did not agree with the proposed defi nition and provisions for making a homogeneous waste determination, arguing that the definitio n and provisions introduced ambiguities and stipulations that would prevent classifica tion of many materials (including fossil fuels) as being “homogeneous.” We reevaluated the definition and provisions in light of the comments and determined that the definition and provisions could be interpreted in a manner that would be unduly restrictive; however, we also determined th at commenters proposed alternative definitions and provisions were equally problematic. Theref ore, the final rule does not include a definition of “homogeneous waste”. We are also removing the requirement that qualifying small power producers and qualifying cogeneration facilities that co mbust solid waste obtain a determination from EPA that such waste is homogenous. B ecause the final rule does not include a homogenous waste definition or a process to obtain a determination from EPA, we believe that it is appropriate for owners and operators to inform the EP A when a unit qualifies as a small power generator or cogeneration facility that is combustin g homogeneous waste. Therefore, the final rule requires qualifying small power producers and qualifying cogeneration facilities that combust solid waste to notify the EPA that they are ex empt from section 129 because the solid waste is homogeneous. (40 CFR 60.2020 and 40 CFR 60.2555).

Section 129 states, in part, that the term “solid waste incineration unit” does not include:91

...qualifying small power production facilities, as defined in se ction 796 (17)(C) of title 16, or qualifying cogeneration facilities, as defined in section 796 ( 18)(B) of title 16, which burn homogeneous waste (such as units which burn tires or used o il, but not including refuse-derived fuel) for the production of electric energy or in the c ase of qualifying cogeneration facilities which burn homogeneous waste for the production of electri c energy and steam or forms of useful energy (such as heat) which are used for industrial , commercial, heating or cooling
purposes...
CAA Section 129(g)(1)(B) (emphasis added)

We believe that the parenthetical contained in the e xemption that prohibits refuse derived fuel, which is made from municipal solid waste, from qualif ying as homogenous waste and allows tires and used oil to qualify as homogenous wastes pr ovides guidance on what constitutes a homogenous waste. We do not accept industry’s assertion that any waste from a common source is homogeneous, or that in all cases combining two homogeneous wastes results in a homogeneous waste, as doing so could result in almost any waste stream being homogenous. We do not believe that is consistent with the statute. Instead, we believe Congress intended this exemption to apply only when the waste stream has a con sistent makeup that allows the source and the enforcement authority to predict the range of emis sions from the combustion of the waste on an ongoing basis.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 22

Comment: We note that the conditions that EPA has proposed to place on mixtures of two homogeneous wastes are not only inconsistent with the sta tutory language, as discussed above, but also are inconsistent with the NHSM Rule. The CI SWI Reconsideration preamble language says a mixture of two homogeneous wastes must be “condit ioned or processed.” Does EPA intend the term “processed” to have the same meaning as in the NHSM Rule? Under the NSHM Rule, a material that is processed and meets the NHSM legitimacy criteria is not a waste and therefore need not meet the homogeneous waste definition. However, the definition of homogeneous waste could be relevant to a secondary mater ial that does not meet the legitimacy criteria. In such a case, what level of processing is c ontemplated?

Response: See the response to EPA-HQ-OAR-2003-0119-2581-A1 excerpt 6.

Commenter Name: Mark Calmes Commenter Affiliation: Archer Daniels Midland Company Document Control Number: EPA-HQ-OAR-2003-0119-2618-A2 Comment Excerpt Number: 892

Comment: ADM also objects to the preamble language that places additio nal conditions on mixtures of homogeneous wastes such as their being "conditioned or processed." This language creates some confusion and may conflict with the NHSM Rule, which states that sufficiently processed materials which meet the legitimacy criteria are not wastes at all. If a material is indeed classified as a homogenous " waste", any requirement for its further processing is inappropriate and should instead be determined by operating crite ria of the specific combustion device (shredding or sizing). Therefore, ADM requests that its concern over this language be addressed in any subsequent preamble or modifications to the definition of homogenous waste.

Response: See the response to EPA-HQ-OAR-2003-0119-2581-A1 excerpt 6.

Commenter Name: Traylor Champion Commenter Affiliation: Georgia-Pacific LLC (GP) Document Control Number: EPA-HQ-OAR-2003-0119-2581-A1 Comment Excerpt Number: 7

Comment: We ask EPA to clarify the relationship between gasifica tion and the definition of homogeneous wastes. As EPA recognized in the NHSM Rule, synthesis gas produced from a gasification process that meets EPA’s legitimacy crit eria is not a waste. 76 Fed. Reg. at 15538 (noting that synthesis gas is processed). In addition, as discussed above, unless contained in a container, synthesis gas cannot be considered a waste. However, the preamble to the March 21, 2011, CISWI rule included troubling language that implied that synt hesis gas would have to meet EPA’s definition of “homogeneous waste.” 76 Fed. Re g. at 15715 (“Gasification processes that incorporate clean up technologies in the production of synthesis gas would generally result in a homogeneous product, however, a consistent waste in put would still be necessary to ensure a consistent emissions profile of the synthesis gas.”) T his language is not included in the preamble to the December 23, 2011, CISWI reconsideration rule. Please confirm that synthesis gas, and indeed any gas not contained in a container, is not a waste and does not need to meet any criteria applied to homogeneous waste.

Response: As stated in the preamble to the final rule, we are f inalizing the proposed definition of "contained gaseous material." Under that definition, only gaseous material that are in a container when the container is combusted are consid ered contained gaseous materials for purposes of CISWI.

Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1 Comment Excerpt Number: 10

Comment: We also ask EPA to clarify the relationship between gasi fication and the definition of homogeneous wastes. EPA has reaffirmed that gaseous f uels are not solid wastes. However, the preamble to the March 21, 2011, CISWI rule included troubling lan guage that implied that synthesis gas would have to meet EPA’s definition of "hom ogeneous waste." 76 Fed. Reg. at 15715 ("Gasification processes that incorporate clean up tech nologies in the production of synthesis gas would generally result in a homogeneous product , however a consistent waste input93

would still be necessary to ensure a consistent emissi ons profile of the synthesis gas."). This language is not included in the preamble to the December 23, 2011, CISWI Reconsideration Proposal. Please confirm that synthesis gas is not a waste and does not need to meet any criteria applied to homogeneous waste.

Response: As stated in the preamble to the final rule, we are f inalizing the proposed definition of "contained gaseous material." Under that definition, only gaseous material that are in a container when the container is combusted are consid ered contained gaseous materials.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 17

Comment: EPA should remove the added requirement included in this r evision for small power producers and qualifying co-generation facilities to submit a re quest to EPA to combust homogenous waste under the 129 exemption [40 C.F.R. 60.2020 (e) 3 a nd f (3)]. This request is not necessary and duplicative of the existing requirement for these facilities to notify EPA that they are operating under the 129 exemption [40 C.F.R. 60.2555 (e) 3 and f (3)]. If indeed EPA will not remove this duplicative requirement, differentia ted in its form as a request, rather than a notice, we suggest that the notice provision be dropped and the request provision include a mandatory response from EPA within thirty (30) days of rec eipt or the request is automatically deemed as approved.

Response: See the response to EPA-HQ-OAR-2003-0119-2581-A1 excerpt 6.

Commenter Name: Mark Calmes Commenter Affiliation: Archer Daniels Midland Company Document Control Number: EPA-HQ-OAR-2003-0119-2618-A2 Comment Excerpt Number: 9

Comment: Finally, ADM requests EPA to remove the added requirement included in this revision for qualifying co-generation facilities to submit a request to the USEPA to combust homogenous waste under the 129 exemption [40 C.F

. R.60.2020 (e) 3 and f(3)]. This request is not necessary and is duplicative of the existing require ment for these facilities to notify the US EPA that they are operating under the 129 exemption [40 C.F. R. 60.2555 (e) 3 and f (3)]. If indeed the EPA will not remove this duplicative requirement, differentiated onl y in its designation as a request rather than a notice, ADM sugges ts that the notice provision be dropped and the request provision include a mandatory response from US EPA within thirty (30) days of receipt or the request is automatically deemed as approved.

Response: See the response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 17.94



### 2E08. Definitions - Foundry Sand Thermal Reclamation Unit

Commenter Name: Jerry Call Commenter Affiliation: American Foundry Society (AFS) Document Control Number: EPA-HQ-OAR-2003-0119-2624-A2 Comment Excerpt Number: 1

Comment: In this reconsideration and proposed amendments for the CISWI rule, EPA proposed a definition of the term, “foundry sand thermal reclama tion unit.” Specifically, the unit is defined as “a type of part reclamation unit that removes coatin gs that are on foundry sand. A foundry sand reclamation unit is not an incinerator, waste-burning kiln, an energy recovery unit, or a small, remote incinerator under this subpart.” Proposed 40 CFR §§ 60.2265 and 60.2875. With this definition EPA is confirming that foundry sand thermal reclamation units are not subject to CISWI standards. EPA’s proposed action is appropriate because these units are not incinerators and EPA never considered or evaluated them as being potentia lly subject to CISWI standards. AFS supports the proposed definition and EPA’s position that foundry sand thermal reclamation units are not subject to CISWI standards. The thermal reclamation of foundry sand provides significant environmental benefits, in addition to producin g a higher quality casting. Simply reclaiming and reusing foundry sand in the metalcasting proces s provides numerous environmental benefits. Thermal sand reclamation also al lows for the prolonged use of foundry sand, so less virgin sand is needed at the foundry. This m eans that less sand needs to be mined. In addition, by allowing more reuse of the foundry sand in the metalcasting process, less foundry sand needs to be disposed in landfills, thereby saving limi ted landfill space. As a result, when foundries buy less virgin sand and dispose less sand, the transportation of these materials is significantly reduced as well as the amount of fuel used a nd the potential emissions associated with the transportation. The savings associated with th ermal sand reclamation can be substantial. One foundry indicates that with its thermal sand recla mation unit, it only needs to add new sand about once every three months. Without thermal sand re clamation, the facility would need to add new sand and dispose of sand approximately once a week. In addition, the thermal sand reclamation process alters the physical structure of the sand so that less binder is generally needed for the metalcasting process. Using less binder re sults in lower emissions in other processes that may be associated with the binders and les s transportation needed for deliveries of binders. EPA has estimated that the reuse of foundry sand c an reduce the amount of greenhouse gas emissions generated and reduces the overall carbon fo otprint of the metalcasting industry. Thermal sand reclamation clearly makes sense from a pr oduction and product quality point of view, but also results in substantially direct and indir ect environmental benefits and should, therefore, be encouraged rather than discouraged by uninten ded, unnecessary, and burdensome regulatory requirements.

Response: EPA is finalizing the definition of foundry sand reclamati on unit as proposed.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 1495

Comment: In the preamble to the final NHSM Rule, EPA asserted, for the first time, that it considered foundry sand recycled on-site using a thermal san d reclamation (“TSR”) unit and reused in the same process loop a “solid waste,” thereby making TSR units subject to CAA Section 129’s emission standards. See CISWI and NHSM Rules , 76 Fed. Reg. at 15,519. This statement was the first instance in a publicly available document where EPA suggested that TSR units could become subject to the CISWI Rule as “solid w aste.” In its petition for reconsideration and subsequent comments, AIF commented that EPA’s statem ent was arbitrary and contradictory to the CAA, and urged EPA to reconsider and revise it. AIF explained that, under EPA’s line of reasoning, a host of processes not previously contemplate d by EPA could become regulated under the CISWI Rule. EPA’s statement, likewise, runs c ontrary not only to the purposes of the CAA as set forth in Section 101(c),36 AIF explained, but a lso to EPA’s policy to promote reducing, reusing and recycling, see 74 Fed. Reg. 41, 46 (Jan. 2, 2009). AIF articulated that EPA’s line of reasoning would promote increased sand mining, th e purchase of virgin sands for the casting industry, and require the disposal, in landfil ls, of huge volumes of foundry sand, rather than its recycling and reuse. Accordingly, AIF r equested EPA to reconsider its determination and clarify that (1) foundry sand being recyc led is not a “solid waste” and (2) TSR units are not solid waste incineration units subject to th e requirements in the CISWI Rule (either 2000 version or 2011 version). In the proposal, EPA concludes that TSR units are parts reclamation units as defined in the 2000 CISWI Rule (“unit[s] that burn coatings off parts (e.g., tools, equipment) so that parts can be reconditioned and r eused”) because TSR units are “parts reclamation units” that are on foundry sand, which allows re-use of the sand. CISWI and NHSM Rules Reconsideration Proposal , 76 Fed. Reg. at 80,463. EPA solicits comment on the propos ed definition of TSR units, see id, and elects not to propose standards for TSR units on the ba sis that it does not currently have emissions data for TSR units an d regulation of such units is not required to comply with its CAA § 112(c)(6) obligation. See id. EPA proposes to define “foundry sand thermal reclamation unit” as: a type of pa rt reclamation unit that removes coatings that are on foundry sand, [and] not an incinerator, waste -burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. Id. at 80,502. EPA then proposes to define a “burn-off oven” as: any rack reclamation unit, part recla mation unit, or drum reclamation unit. A burn-off oven is not an incinerator, waste-burning kiln, a n energy recovery unit or a small, remote incinerator under this subpart. Id. Based on these definitions, then, TSR units would not be regulated under the CISWI Rule because EPA has determine d that it will not regulate burn-off ovens under the regulation.37 See, e.g., id. at 80,460. While AIF does not believe that TSR units qualify as CISWI units more generally, it also agrees tha t TSR units should not be subject to CISWI requirements because they significantly reduce l andfill through reuse, such units are numerous and there are a lack of emissions data available for them. Just like burn-off ovens, these are activities that EPA should create policies to encourage, rather than discourage by regulating them under CISWI.38 Accordingly, consistent w ith its prior submittals on this issue, AIF supports both EPA’s clarification that TSR units are not incinerators and its proposed definition of “foundry sand thermal reclamation unit” i n that it results in TSR units not being subjected to the CISWI rule requirements.39

[Footnotes]
(36) “A primary goal of this chapter is to encourage or othe rwise promote reasonable Federal, State, and local government actions, consistent with t he provisions of this chapter, for pollution prevention.” CAA § 101(c); 42 U.S.C. § 7401(c).96

(37) In fact, TSR units have never been contemplated as falling within the CISWI program since its inception. The purpose of a TSR unit is neither to “com bust” the sand, nor to reduce the volume of the sand, nor to generate heat for reuse. The purpose is simply to reuse the sand in the making of new sand cores and molds. EPA never intended to in clude these types of processes in the CISWI Rule.

(38) EPA also noted it was not required to include such units to comply with their Section 112(c)(6) obligations to identify categories of sources of poll utants to assure that sources accounting for not less than 90 percent of the aggregate emi ssions of each such pollutant are subject to Section 112 standards. See CISWI Rule, 76 Fed. Reg. at 15,708, 15,734. To the extent Section 112(c)(6) is relevant, the same rationale applie s to TSR units.

(39) For the reasons explained in its petitions for rulema king and reconsideration, AIF does not agree that TSR units are incinerators even should they no t fall within the definition of parts reclamation units and our support for the proposed definitio n should not be interpreted as conceding this point. However, since its members would no t be affected by the rule given the proposed definition, AIF supports the exclusion (albeit on different grounds).

Response: EPA is finalizing the definition of foundry sand reclamati on unit as proposed.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 40

Comment: In the Proposed Reconsidered NHSM rule, EPA proposes an amended approach to thermal sand reclamation, with the result that therm al sand reclamation units will not be regulated as incinerators under CISWI. 76 Fed. Reg. 80,463. CIBO supports this outcome for the reasons noted in its Petition for Reconsideration and c omments.

Response: EPA is finalizing the definition of foundry sand reclamati on unit as proposed.

Commenter Name: Jerry Call Commenter Affiliation: American Foundry Society (AFS) Document Control Number: EPA-HQ-OAR-2003-0119-2624-A2 Comment Excerpt Number: 2 Comment: While AFS supports EPA’s proposed definition clarifying tha t foundry sand thermal reclamation units are not subject to CISWI standards, AFS remains concerned that EPA has not corrected its position regarding foundry sand thermal rec lamation units in the preamble to the March 21, 2011 NHSM final rule. Consistent with its propose d action in this rulemaking and the comments below, EPA should correct this interpretation by clarifying that thermal reclamation of foundry sand for reuse in the metalcasting process is no t waste management. Foundry sand is used to make molds for pouring molten metal to form castings. The sand is reclaimed for reuse in the foundry as part of the metalc asting process by both mechanical and thermal reclamation. In the preamble to the NHSM rule, EPA reaffirmed its position that mechanically reclaiming foundry sand is not waste manageme nt. Conversely, EPA in the97

preamble to the NHSM rule stated for the first time tha t processing foundry sand in a thermal reclamation unit for reuse in the foundry was “burning for di scard,” and therefore, subject to waste management requirements. 76 Fed. Reg. 15456, 15519 (2011). EPA’s position in the preamble to the NHSM rule regardin g thermal reclamation of foundry sand is not consistent with RCRA and applicable case law be cause thermally reclaimed sand is not discarded. Accordingly, it cannot be subject to waste m anagement standards. Furthermore, EPA should not distinguish between mechanic al and thermal reclamation of foundry sand. Both processes separate materials from th e foundry sand so the sand can be reused in the metalcasting process. Again, the foundry sand is no t discarded in either case and cannot be regulated as a waste. Finally, regulation of foundry sand thermal reclamation units pursuant to RCRA is not necessary to protect human health and the environment. These units are already subject to applicable federal, state, and local air permitting requirements. A s a result, regulation of these units pursuant to RCRA is not only unlawful, but it is also unnece ssary to protect human health and the environment. In fact as discussed below, thermal re clamation of foundry sand provides many environmental benefits. These comments are consistent with the positions tha t AFS has taken in previous documents submitted to EPA regarding the NHSM and CISWI rules, includi ng: 1) August 3, 2010, comments on EPA’s proposed Identification of Non-Hazardo us Secondary Materials that Are Solid Waste rule; 2) May 18, 2011, Petition for Administrati ve Reconsideration, Stay and Amendment of CISWI Rules; and 3) July 15, 2011, comments on the reconsideration of Standards and Performance for New Sources and Emission G uidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units. For the reasons stated above, EPA should correct its interpretation in the preamble of the NHSM rule that thermal reclamation of foundry sand is waste management. By clarifying that thermal reclamation of foundry sand (like mechanical reclamation of foundry sand) is not waste management, EPA would be consistent with its action in this proposed rulemaking, its statutory authority under RCRA, and applicable case law.

Response : The commenter primarily discussed issues that have be en previously dealt with within the Identification of Non-Hazardous Secondary Mat erials That Are Solid Waste rulemaking (NHSM). See Docket ID: EPA-HQ-RCRA-2008-0329. How ever, EPA is finalizing the definition of foundry sand reclamation unit as propos ed.



### 2E09. Definitions - "Contained Gaseous Material"

Commenter Name: Edward Repa Commenter Affiliation: National Solid Wastes Management Association (NSWMA ) Document Control Number: EPA-HQ-OAR-2003-0119-2609-A1 Comment Excerpt Number: 4

Comment: EPA should not define landfill gas as a waste or the management of a solid waste. Landfill gas is collected because it is a valuable mater ial when combusted for heat or to generate98

electricity, no differently than natural gas. The combust ion of landfill gas is not different than natural gas and should not be regulated differently. In fac t, landfill gas is derived from biomass rather than fossil fuel and the combustion of landfill gas burns cleaner.

Response: EPA is not defining solid waste in the CISWI rulemaking , but we have added a definition of solid waste in the final rule that refer ences the NHSM rule at 40 CFR part 241.

Commenter Name: Angela D. Marconi Commenter Affiliation: Delaware Solid Waste Authority (DSWA) Document Control Number: EPA-HQ-OAR-2003-0119-2617-A2 Comment Excerpt Number: 2

Comment: The confusion associated with the removal of the defi nition for "contained gaseous material," discussed above, largely originated from the r esponse to the comments document for the NHSM rulemaking. Comments 3b-I3-2 and 3b-I3-4 retracted t he previous definition for "contained gaseous materials," and suggested the LFG in a p ipeline should be considered a solid waste. The EPA subsequently affirmed, via the August 5, 2011 letter to Sue Briggum of Waste Management, which the removal of the definition of "co ntained gaseous material" was not done with the intent to change any of the Agency's previous stat ements and interpretations concerning LFG. The letter further states, "EPA did not solicit comment on landfill gas in the NHSM proposal, and did not analyze or address it in the preambl e to the final rule because the Agency did not intend to issue a different interpretation tha n it had in the past." DSWA requests that the originally accepted definition of "contained gaseous mater ial" (included above) be incorporated into the final NHSM rule. We also request that clear language clarifying the EPA's position be incorporated into the final NHSM rule.

Response: As noted in the preamble to the final rule, we have i ncluded the definition of "contained gaseous material" from the 2000 CISWI rule in thi s final rule. We are also adding a definition of solid waste in the final rule that refer ences the NHSM rule at 40 CFR part 241. EPA's proposed reconsideration rule referred to the definit ion of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commer cial and industrial solid waste incineration unit”, “energy recovery unit”, and “waste-bur ning kiln”), but we did not include a stand-alone definition of the term. We believe it is a ppropriate to include a definition for solid waste because only units combusting solid waste are subjec t to standards issued pursuant to section 129.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 1

Comment: EPA must clarify that the CISWI Rule does not apply to the combustion of landfill gas, either when combusted for control (as in an e nclosed flare) or combusted as a fuel (as in a boiler). WM’s Petition for Reconsideration of the final CISWI Rule promulgated in March of 20112 focused on EPA’s removal of the definition o f “contained gaseous material” from the final CISWI Rule, and the significant change t hat action made to EPA’s established99

interpretation of the scope of Section 129 of the CAA, a s it relates to the definition of “solid waste” under the Resource Conservation and Recovery Act (RCRA). EPA’s statements in a related rulemaking record suggested that EPA’s final CISWI rule departed significantly from EPA’s established interpretation of Section 129 of the CA A. Specifically, in its Response to Comments for the NHSM Rule, EPA cast significant doub t on the continued vitality of its past interpretation of “contained gaseous materials” that ma y be considered solid waste, and suggested that the combustion of gaseous emission streams f or pollution control may constitute the combustion of solid waste subject to the CISWI Rule. Further, EPA suggested that landfill gas may constitute “solid waste” simply because landfi ll gas is extracted from a waste mass, and if used as fuel may be subject to a demonstration of legit imacy under the NHSM Rule. Docket Id. EPA

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‐ 214. Taken together, these two Agency actions signaled a significant change in policy and regulat ory precedent and were made without any prior notice to regulated entities, and without opportunity for comment. For over twenty years, EPA has developed a comprehensive regulatory structure to govern the collection, control and treatment of landfill gas under the CAA —a structure based on the correct determination that landfill gas is not a solid waste under RCRA. EPA’s dele tion of the definition of contained gaseous material from CISWI and statements in the NHSM rulemaking record threaten to undercut the existing regulatory scheme established under the C AA by potentially subjecting landfill gas combustion to the CISWI Rule. Regulation of landfill gas as a solid waste also threatens to undermine the market for landfill gas as a f uel, in direct contradiction to the stated goals of EPA’s Landfill Methane Outreach Program and the administration’s broader goals to encourage domestic, renewable energy sources. Notwithstand ing these actions, it is clear from a review of the CISWI rulemaking record that the Agency di d not contemplate the possibility that landfill gas combustion units may be subject to CISWI. EPA’s evaluation of regulatory impacts did not identify massive costs associated with applicati on of the rule to thousands of landfill gas combustion sources. Regulation of landfill gas under S ection 129 of the CAA would dramatically affect the cost of capture and control of landfill gas and neither these costs nor these units were addressed. Likewise, CISWI did not include a subca tegory that would apply to combustion units primarily utilizing landfill gas as fuel. WM provided cost estimates to EPA on July 15, 2011 to assist the Agency in its reconsideration of CISWI. See Docket Id. EPA

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‐ 3355. We provided estimates of both capital expenditures for new control equipment and annual operations and maintenance c osts associated with possible regulation of landfill gas capture and control as solid w aste incineration. As an initial matter, WM anticipated that current third party users of landfill gas would discontinue using landfill gas when faced with strict emission limits. Without an en d market for the sale or transfer of gas, WM and other landfill owners /operators would be left with greater quantities of landfill gas to control. For example, landfill gas flares (which are approved pollution control devices under the Landfill NSPS and Landfill MACT) would need to be replac ed with thermal oxidizers to meet Section 129 emission limits. For WM alone, we estimate d our capital costs for installation of thermal oxidizers (about $412 million) to exceed the total EPA estimated costs identified in the CISWI Rule for all its intended sources. Based on EPA’s estimated annual costs of compliance for each facility ($186,000), we estimated WM’s annual compli ance costs would exceed $50 million per year. Such costs would be a significant finan cial burden for WM, and would be ruinous to the many local governments that own and operat e MSW landfills and combust landfill gas for control or as fuel.100

[Footnotes] 2 Standards of Performance for New Stationar y Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Wast e Incineration Units, 76 Fed. Reg. 15704 (March 21, 2011)

Response: As noted in the preamble to the final rule, we have i ncluded the definition of "contained gaseous material" from the 2000 CISWI rule in thi s final rule. We are also adding a definition of solid waste in the final rule that refer ences the NHSM rule at 40 CFR part 241. EPA's proposed reconsideration rule referred to the definit ion of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commer cial and industrial solid waste incineration unit”, “energy recovery unit”, and “waste-bur ning kiln”), but we did not include a stand-alone definition of the term. We believe it is a ppropriate to include a definition for solid waste because only units combusting solid waste are subjec t to standards issued pursuant to section 129. Refer to section II.E. of the preamble to th e final rule for further discussion on comments on “contained gaseous material” and landfill ga s.

Commenter Name: Richard G. Stoll Commenter Affiliation: Foley & Lardner LLP Document Control Number: EPA-HQ-OAR-2003-0119-2657-A1 Comment Excerpt Number: 1

Comment: Since 2000, in several subparts of 40 C.F.R. part 60, EPA’s regulations have provided: “Contained gaseous material means gases that are in a container when that container is combusted.” In the March, 2011 CISWI final rule, however, EPA inexplicably (and without notice) deleted this long-standing definition from two subpa rts of part 60 (subparts CCCC and DDDD). 76 FR 15704 et seq., March 21, 2011. While EPA deleted this def inition from subparts CCCC and DDDD, EPA retained the definition in other subpa rts. As I am sure you are aware, this deletion has created massive confusion in the regulat ed community, and regulated parties and the agency have expended enormous effort in followup co rrespondence and meetings in efforts to clarify the situation.

Lafarge has been particularly active in this regard. On June 17, 2011, Lafarge filed a “Petition for New Rulemaking” with Administrator Jackson [see EP A-HQ-OAR-2003-0119-2657-A2 for Lafarge petition letter]. Lafarge explained that it uses landfill gas as fuel at two of its portland cement manufacturing facilities, and that use of such f uel (as a direct replacement for coal) results in an overall reduction in air emissions, incl uding greenhouse gas emissions. Lafarge urged EPA to reinstate its long-standing definition of cont ained gaseous material.

On August 29, 2011, Lafarge sent followup letters to each of yo u [see EPA-HQ-OAR-2003- 0119-2657-A3 and EPA-HQ-OAR-2003-0119-2657-A4 for Lafarge follow-up letters]. In those letters, Lafarge included additional points explaini ng why EPA’s long-standing regulatory language was the correct construction of the statutory phrase “contained gaseous material” and why any change in direction in the current procedural cont ext would be legally vulnerable.

We assumed that this issue had been properly resolved when EPA published its new proposed CISWI rule on December 23, 2011. In the preamble, EPA explained that it never intended to change its long-standing interpretation, and th at: “Accordingly, the proposed CISWI101

reconsideration rule includes the same definition of ‘c ontained gaseous material’ that was removed from the final CISWI rule.” 76 FR at 80463.

EPA’s December 23, 2011 proposal was fully consistent with Lafarge’s petition and supplemental filings, and in Lafarge’s rulemaking comments of February 21, 2012, we strongly supported this proposal. Moreover, our word-search review of the Regulations.gov dockets for the December 23, 2011 CISWI and NHSM rulemakings indicates th ere were no public comments in opposition to EPA’s proposal to reinstate it s long-standing definition.

We have recently learned, however, that there still may be some confusion and/or equivocation among EPA personnel regarding this issue. An example of this situation is explained in a June 8, 2012 letter to Mr. Stanislaus from numerous trade associati ons and companies [see EPA-HQOAR-2003-0119-2657-A4 for letter). We fully endorse the concerns and conclusions expressed in that letter.

For the reasons set forth in our August 29, 2011 letters to ea ch of you, we believe reinstatement of the long-standing regulatory language – just as EPA prop osed to do on December23, 2011 – is the only legally supportable course for EPA to follow at t his point. Thank you for your attention to this important issue.

Response: As noted in the preamble to the final rule, we have i ncluded the definition of "contained gaseous material" from the 2000 CISWI rule in thi s final rule. We are also adding a definition of solid waste in the final rule that refer ences the NHSM rule at 40 CFR part 241. EPA's proposed reconsideration rule referred to the definit ion of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commer cial and industrial solid waste incineration unit”, “energy recovery unit”, and “waste-bur ning kiln”), but we did not include a stand-alone definition of the term. We believe it is a ppropriate to include a definition for solid waste because only units combusting solid waste are subjec t to standards issued pursuant to section 129.

Commenter Name: Richard G. Stoll Commenter Affiliation: Foley & Lardner LLP Document Control Number: EPA-HQ-OAR-2003-0119-2657-A2 Comment Excerpt Number: 1

Comment: We recently learned that EPA is refusing to advise st ate regulators that gases that are not contained in a container are not solid wastes, notwit hstanding the Agency’s long-standing position that such gases are not solid wastes; the April 13, 2011, letter from Suzanne Rudzinski, Director, Office of Resource Conservation and Recover y to Tim Hunt, American Forest & Paper Association; and the preamble discussion of this issue in the December 23, 2011, Reconsideration and Proposed Amendments to the Commerci al and Industrial Solid Waste Incineration (CISWI) Rule and the Non-Hazardous Secondar y Materials (NHSM) Rule.

EPA created confusion over the regulatory status of gases t hat are not contained in a container in a response to comments document accompanying the March 2011 NH SM Rule. Realizing its mistake, EPA clarified the status of such gases in both th e April 13, 2011 letter and the December 23, 2011, preamble. In these documents, EPA affirma tively states that the “burning of102

gaseous material, such as in fume incinerators (as well as other combustion units, including air pollution control devices that may combust gaseous materi al) does not involve treatment or other management of a solid waste (as defined in RCRA section 1004(27).”

Following release of the April 13, 2011 letter, the regulated community thought the issue of what is a contained gas was settled. However, we now learn that it may not be. Notwithstanding this letter, it is our understanding that EPA has refused to cl arify to North Carolina air pollution control regulators that the burning of gaseous fuel derived f rom landfill gas and the combustion of gases in flares is not the burning of a solid waste. A s a result, North Carolina has determined that such burning may be the combustion of a solid waste, suggesting that a flare would have to meet CISWI standards and a gaseous fuel would have to meet th e processing and legitimacy criteria of the NHSM Rule.

For example, in addition to confusion over permits for landfills, we are aware of one title V permit application for a flare in North Carolina that has been halted over this issue. The subject permit application is for temporary short-term inciner ation of HVLC gases (2-3 weeks). Without an alternative source of control during this one-time main tenance event, the facility would have to cease operation and the cost of lost production reven ue could be as much as $6 million. Add to that the repercussions of potential loss of customers l ooking elsewhere for product when the manufacturing facility is down and the effects could be pe rmanent. Further, if the state extends its new interpretation of “contained gaseous materials” to the primary units that control these types of gases, then facilities all over the state ma y have to shut down. Finally, if this state and others apply the same interpretation to all combustion o f gases, the implications across all manufacturing sectors will be enormous.

North Carolina relies on both an August 5, 2011, letter fr om Suzanne Rudzinski to Sue Briggum of Waste Management, as well as the response to comm ents document accompanying the March 21, 2011 Non-Hazardous Secondary Materials Rule to reach the conclusion that gases that are not contained in a container may still be solid wastes . The documents highlight the importance of clarifying that all gases are not solid wastes unless comb usted while in a container. EPA needs to clarify that this is the position of the Agency not only under the Clean Air Act, but also under RCRA.

Please be aware that EPA’s unwillingness to provide cla rification to state regulators regarding the RCRA status of gaseous materials is an issue that go es far beyond landfill gas. As demonstrated by the reaction of North Carolina regulators , discussed above, a statement by EPA that one gas that is not contained in a container is a solid waste brings into question the status of all such gases, and the regulatory status of the units in which they are combusted.

It is our understanding that some at EPA have attempted t o distinguish landfill gas from other uncontained gases by referencing the attached March 6, 1986, le tter from Marcia Williams, Director, Office of Solid Waste, to Mr. Lanier Hickman , Executive Director, Governmental Refuse Collection and Disposal Association. However, that letter provides no basis for an EPA determination that landfill gas is a solid waste when combusted. In fact, in Volume U of the RCRA Definition of Solid Waste Compendium, this lette r is included in the subtopic “uncontained gases” so it is clear that EPA has not inte rpreted this letter as authority for determining that landfill gas is solid waste.103

Instead, the 1986 letter responds to a question regarding the r egulation of gaseous emissions from both hazardous and non-hazardous waste landfills. Th e letter asserts the authority to regulate such emissions, relying on 3004(n) and 4004(a) of RCRA.

Section 3004(n) is stand-alone authority for EPA to promulga te regulations controlling air emissions from hazardous waste treatment, storage, and d isposal (TSD) facilities. This section of RCRA does not identify such emissions as solid wastes a nd the authority granted under this section of the statute is completely independent of EP A’s authority over solid wastes. EPA regulations promulgated under this authority do not purport to i dentify gases as solid wastes. Section 4004(a) is stand-alone authority for EPA to promulga te regulations establishing criteria for sanitary landfills. This section of RCRA does not dis cuss gaseous emissions, much less identify them as solid wastes. EPA regulations promulgated un der this section of RCRA require the control of explosive gases and compliance with the C lean Air Act. They do not purport to identify gases as solid wastes. If EPA now believes tha t this section of RCRA represents a determination that gases generated in landfills are soli d wastes, then landfills would have to cease flaring methane gas, unless the flares comply with the 2000 CISIW Rule.

This issue has enormous consequences for the undersigned se ctors of our nation’s economy. Thousands of facilities are operating today based on EPA ’s interpretation of the definition of contained gaseous material in the April 13, 2011, letter to T im Hunt. This interpretation is now being called into question and EPA cannot let the present am biguity continue. Should EPA define a gas that is not in a container a solid waste, t hen EPA will shut down significant portions of the manufacturing sector, disrupt the management of sa nitary landfills and wastewater treatment plants, and potentially eliminate the future abil ity of communities and facilities to derive energy from landfill gas as well as biogas gene rated during wastewater treatment. The same consequences will result from EPA inaction and re fusal to clarify what constitutes a contained gas.

Given the fact that this issue is impacting pending permit applications, we respectfully urge you to immediately make it clear to state regulators and the regulated community in the forthcoming CISWI and NHSM rules that, for all gases, neither a c ombustion device nor a conveyance such as a pipe or duct that delivers gas to a combustion device c onstitutes a container, and that a gas that is not contained in a container cannot be conside red a solid waste under RCRA and is not subject to regulation under the Clean Air Act Section 129 in cinerator rules when combusted.

Response: As noted in the preamble to the final rule, we have i ncluded the definition of "contained gaseous material" from the 2000 CISWI rule in thi s final rule. We are also adding a definition of solid waste in the final rule that refer ences the NHSM rule at 40 CFR part 241. EPA's proposed reconsideration rule referred to the definit ion of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commer cial and industrial solid waste incineration unit”, “energy recovery unit”, and “waste-bur ning kiln”), but we did not include a stand-alone definition of the term. We believe it is a ppropriate to include a definition for solid waste because only units combusting solid waste are subjec t to standards issued pursuant to section 129.104

Commenter Name: Erika H. Frank Commenter Affiliation: Calgon Carbon Corporation Document Control Number: EPA-HQ-OAR-2003-0119-2633-A2 Comment Excerpt Number: 1

Comment: EPA should retain the definition of "contained gaseous material" in the CISWI Rule and add it to the NHSM Rule, as well as confirm that off gas and process gas are not "contained gaseous material" when combusted. EPA should retain a de finition of "contained gaseous material" in the CISWI Rule and add it to the NHSM Rul e because it is of central relevance to both rules. "Contained gaseous material" describes a cate gory of material that, when combusted, can subject a unit to CISWI standards by virtue of the solid waste definition at 40 C.F.R. 241, the NHSM Rule (incorporating by reference the definition of " solid waste" in 40 C.F.R. § 258.2, which defines solid waste in relevant part as "discarded ma terial, including solid, liquid, semisolid, or contained gaseous material"). Thus, whether a combusted gas is a "contained gaseous material" significantly affects the applicability of th e CISWI Rule, by virtue of the NHSM Rule. Calgon Carbon's handling of process offgas illustrates thi s point. As with many companies, Calgon Carbon's principal operating units generate offgas that is then transmitted through pipes to separate combustion units, such as afterburners, locate d at the same facility. These combustion units serve primarily as pollution control devices. At no point in this system is the offgas containerized. Calgon Carbon appreciates that EPA has r eaffirmed its longstanding position that "contained gaseous material" includes only those gases that are in a container when that container is combusted. In EPA's May 2011 letter to the A merican Forest and Paper Association (AFPA), EPA clarified its approach to regulating containe d gases and indicated that "burning of gaseous material, such as in fume incinerators (as well as other combustion units, including air pollution control devices that may combust gaseous materi al) does not involve treatment or other management of a solid waste (as defined in RCRA section 1004(27))." EPA's overall response to AFPA suggests that the CISWI Rule cannot apply to an operat ing unit which combusts offgas for pollution control, because such offgas is not a "contai ned gaseous material" and therefore not a "solid waste." Because offgas combusted in Calgon Carbon's air pollution control device is not considered a "contained gaseous material," it is not a " solid waste" under the NHSM Rule. Accordingly, this combustion device is not subject to the CISWI Rule. Please confirm that gaseous emission streams like Calgon Carbon's process gase s are not "contained gaseous material." To promote further clarity, please also add t he following definition of "contained gaseous material" to both the CISWI Rule and the NHSM R ule: Contained gaseous material means gases that are in a container when that containe r is combusted. Offgas and process gas in pipes, vents, or ductwork which is thereafter combusted is not contained gaseous material. Finally, please ensure that this definition is inserted dir ectly into the regulatory text of the rules. EPA indicated in the preamble for the December 2011 propose d revisions to the CISWI Rule that the proposed rule includes a definition of "contained ga seous material," but this is not actually reflected in the proposed revisions to the CISWI Rule.

Response: As noted in the preamble to the final rule, we have i ncluded the definition of "contained gaseous material" from the 2000 CISWI rule in thi s final rule. We do not believe the addition of “offgas” and “process gas” to the definition o f “contained gaseous material” is necessary given that according to commenters assertion s it is clear that the gas is not in a container when the container is combusted. We are a lso adding a definition of solid waste in the final rule that references the NHSM rule at 40 CFR par t 241. EPA's proposed reconsideration105

rule referred to the definition of solid waste in the NH SM rule in multiple CISWI definitions (e.g. definitions of “commercial and industrial solid was te incineration unit”, “energy recovery unit”, and “waste-burning kiln”), but we did not include a stand-a lone definition of the term. We believe it is appropriate to include a definition for solid waste because only units combusting solid waste are subject to standards issued pursuant to section 129.

Commenter Name: Robert L. Greene Commenter Affiliation: INGENCO Document Control Number: EPA-HQ-OAR-2003-0119-2637-A1 Comment Excerpt Number : 2

Comment: The definition of a CISWI unit in 40 CFR §60.2265 previously excl uded combustion turbines and reciprocating internal combustion engines from the definition of CISWI units. The revised definition appears to have removed this e xclusion, however, the EPA does not appear to have considered these in the new rule. INGENCO believes that the exclusion should be

re
‐ instated as a minimum for combustion turbines and recipro cating internal combustion engines in landfill gas service. The CISWI rule does not appear to contemplate turbines or RICE in either the discussed CISWI devices or emissions standards. It sho uld also be noted that the estimated number of CISWI units does not include the almost 600 renewabl e energy landfill gas projects.

Response: Any unit at a commercial or industrial facility that combusts solid waste for energy recovery is a CISWI unit. The commenter should determine based on this final rule and the NHSM rule whether it is combusting solid waste and, if so , whether EPA promulgated standards for its unit.

Commenter Name: Robert L. Greene Commenter Affiliation: INGENCO Document Control Number: EPA-HQ-OAR-2003-0119-2637-A1 Comment Excerpt Number: 3

Comment: INGENCO believes that landfill gas generated by biolo gical activity from municipal solid wastes should not be classified as a solid waste. Landfill gas handling and treatment is covered under the NSPS (40 CFR §60 Subpart WWW) which requires for landfills of a certain size destruction of the gas in an open flare, enclosed f lare or by treatment for subsequent sale or use. The NSPS contains NMOC destruction standards for en closed flares. Combustion devices using treated landfill gas are covered by a number of perm itting and emissions standards.

Response: EPA is not defining solid waste in the CISWI rule, ins tead the Agency is defining what is solid waste in the NHSM rule. Any unit at a c ommercial or industrial facility that combusts solid waste for energy recovery is a CISWI unit. The commenter should determine based on this final rule and the NHSM rule whether it is combusting solid waste and, if so, whether EPA promulgated standards for its unit.106



### 2E10. Definitions - "Chemical Recovery Unit"

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 24

Comment: Preamble Section I.C.11c [76 Fed. Reg. 80463-4] discusses anot her type of potentially regulated combustion unit: chemical recovery units. Identified units have been burning sulfur-bearing compounds that are classified as non-ha zardous waste. These units do not fit into the existing four sub-categories for CISWI units. EPA therefore revised the definition of chemical recovery units and has decided not to regulate them at this time.

The definition of chemical recovery unit in both Subparts CCCC and DDDD is the same:

“Chemical recovery unit means combustion units burning materials to recove r chemical constituents or to produce chemical compounds where there is an existing com mercial market for such recovered chemical constituents or compounds. A chemical recov ery unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, r emote incinerator under this subpart. The following seven types of units are considered chemical recovery units: (1) Units burning only pulping liquors (i.e., black liquor) that are reclaimed in a pulpi ng liquor recovery process and reused in the pulping process. (2) Units burning only spent sulfuric acid used to produce virgin sulfuric acid. (3) Units burning only wood or coal feedstock for the production of charcoal. (4) Units burning only manufacturing byproduct streams/residue containing catalyst metals which are reclaimed and reused as catalysts or used to produce comm ercial grade catalysts. (5) Units burning only coke to produce purified carbon monoxide that is used as an intermediate in the production of other chemical compounds. (6) Units burning onl y hydrocarbon liquids or solids to produce hydrogen, carbon monoxide, synthesis gas, or other gases for use in other manufacturing processes. (7) Units burning only photographi c film to recover silver.” [CCCC §60.2265 at 76 Fed. Reg. 80501 and DDDD §60.2875 at 76 Fe d. Reg. 80522].

We agree with the revised definition of a “chemical reco very unit” and agree that such units should be not be regulated at this time.

Response: EPA included the proposed definition of "chemical recover y unit" in the final CISWI rule.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 8

Comment: Dow supports the conclusions that EPA reached in the Ma rch 21, 2011 final rule in adding the definition of chemical recovery unit and in now adding new clarifying language at both § 60.2265 (Subpart CCCC) and § 60.2875 (Subpart DDDD) that "a chemical recovery unit is107

not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart" (76 FR 80463). Dow’s particular interest in this definition r elates to sulfuric acid recovery units, which are included in the definition a s a type of chemical recovery unit. Dow requests that this clarifying language be adopted as propos ed in both subparts.

Response: EPA included the proposed definition of "chemical recover y unit" in the final CISWI rule.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 24

Comment: CRWI supports the conclusions that EPA reached in the March 21, 2011, final rule in adding the definition of chemical recovery unit and in now adding new clarifying language at § 60.2265 (Subpart CCCC) and § 60.2875 (Subpart DDDD) that "a chemical recovery unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, r emote incinerator under this subpart" (76 FR 80463). CRWI’s particular interest in this definition re lates to sulfuric acid recovery units, which are included in the definition as a t ype of chemical recovery unit. CRWI requests that this clarifying language be adopted as proposed in both subparts.

Response: EPA included the proposed definition of "chemical recover y unit" in the final CISWI rule.

Commenter Name: Seyfarth Shaw LLP Commenter Affiliation: Rhodia Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2579-A1 Comment Excerpt Number: 1

Comment: Rhodia operates sulfuric acid recovery units (SARUs) t hat combust spent sulfuric acid, other sulfur-bearing materials, and fuels to make virgi n sulfuric acid. The 2000 CISWI rule exempted "units burning only spent sulfuric acid to produce virgin sulfuric acid" as one of seven "chemical recovery units." 65 Fed. Reg. 75,337 (Dec. 1, 2000). Aft er the publication of the original CISWI regulations, Rhodia asked the Agency to cla rify that SARUs are exempt even though SARUs combust more than simply spent sulfuric ac id to produce virgin sulfuric acid. In response, the EPA wrote to Rhodia on August 27, 2004, explaining t hat the exemption in the 2000 CISWI rule covered Rhodia's SARUs and was based on the Agency's understanding that Rhodia's SARUs combust "spent sulfuric acid, air, an addit ional sulfur source (molten sulfur, hydrogen sulfide, disulfide oil, other sources), and fuel (n atural gas, fuel oil, alternative nonhazardous fuels)."

The 2010 proposed CISWI rules (75 Fed. Reg. 31,938) eliminated the e xplicit exemption for chemical recovery units. Without the exemption, and beca use some non-hazardous sulfurbearing materials and fuels burned in SARUs appeared to mee t the definition of non-hazardous108

"solid waste" under the proposed NHSM rule (7 5 Fed. Reg. 31 ,844 ), it appeared that the EPA intended to regulate SARUs as CISWI units.

Rhodia's comments on the 2009 ANPR and the 2010 proposed CISWI rule asked the EPA to reincorporate the explicit exemption for chemical recover y units (including SARUs). Rhodia described various types of secondary materials combusted in SARUs, explaining that: Rhodia's sulfuric acid manufacturing process does not rely solely o n virgin sulfur. Instead sulfur is derived from a variety of sources, including spent sulfuric acid and other sulfur-bearing materials. Other sulfur-bearing materials are processed in the same manne r as spent sulfuric acid in the production of virgin sulfuric acid.

Rhodia further commented that if the types of material s combusted in SARU s constituted nonhazardous secondary materials that are solid wastes, th ereby subjecting SARUs to regulation as CISWI units, then the CISWI rule was unclear as to which category of regulated CISWI units would include SARUs. The EPA has addressed Rhodia's comments in the proposed revisions to the CISWI and NHSM rules published in the Federal Registe r on December 23, 2011. The proposed CISWI rule contains a definition of "chemical r ecovery unit" that specifically includes "units burning only spent sulfuric acid used to produce virgin sulfuric acid." 76 Fed. Reg. 80,454, 80,501 (Dec. 23, 2011). The proposed rule on reconsideratio n specifically excludes chemical recovery units from the definition of the fo ur CISWI categories subject to regulation under the CISWI rule. The EPA also notes in the Federa l Register preamble that SARUs "may be burning sulfur-bearing compounds which are classified as non-h azardous waste at facilities that are non-RCRA part B permitted SARUs." 76 Fed. Reg. at 80,463. By including identical language in the December 23, 2011 proposed rule to what was in t he original CISWI rule, the Agency clearly intends to interpret the definition of a "chemical recovery unit" consistently with the 2004 guidance. As discussed above, the 2004 guidance clarifi ed that Rhodia's SARUs are chemical recovery units. For these reasons, Rhodia suppo rts the Agency's proposed revision to the definition of "chemical recovery unit" and exclusio n of chemical recovery units (including Rhodia's SARUs) from regulation as CISWI units. Rhodia believes that these revisions are consistent with the Agency's intent with respect to S ARUs from the beginning.

Response: EPA included the proposed definition of "chemical recove ry unit" in the final CISWI rule.



### 2E11. Definition of Municipal Solid Waste

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 5

Comment: In the CISWI Reconsideration Rule proposal, EPA ide ntifies the proposed addition of the definition of “municipal solid waste” to the CISW I rule definition as a “technical correction” that would “further clarify applicability fo r MWC owners who question whether109

CISWI or MWC rules are applicable to their solid waste combustion unit.” 76 Fed. Reg. at 80465. As an initial matter, the Reconsideration proposal r ule text does not include a definition of “municipal solid waste” and therefore the proposed tech nical correction creates an ambiguity within the rule and does not provide an opportunity for revie w of the proposed revision. Further, addition of the “municipal solid waste” definition, with out additional clarification relating to the scope of CISWI relative to other CAA Section 129 standards, does not provide clarity to the regulated community.

Specifically, EPA should clarify that CISWI does not apply t o any municipal solid waste combustion unit that is regulated under any of the municip al waste combustor standards, including OSWI. Further, EPA should clarify that CISWI doe s not apply to any combustion unit that is otherwise exempt from the muni cipal waste combustion standards because it is subject to a federally enforceable permit condition limiting the combustion of municipal solid waste to less than 30% of the total fuel in put by weight. WM suggests that EPA clarify these concepts through the following revisio n to 40 CFR §60.2020: (c) Municipal Solid Waste Combustion Units. The following municipal solid waste combustion units are exempt from this subpart:

(1) Combustion units that are subject to subpart Ea of this part (Standards of Performance for Municipal Waste Combustors); subpart Eb of this part (Stan dards of Performance for Large Municipal Waste Combustors); subpart Cb of this part (Emis sion Guidelines and Compliances Time for Large Municipal Waste Combustors); subpart AAAA o f this part (Standards of Performance for Small Municipal Waste Combustion Units ); subpart BBBB of this part (Emission Guidelines for Small Municipal Waste Combusti on Units); subpart EEEE of this part (Standards of Performance for Other Solid Waste Incinera tion Units); or subpart FFFF of this part (Emission Guidelines and Compliance Times for Othe r Solid Waste Incineration Units).

(2) Any combustion unit that is exempt from the standards identified in paragraph (c)(1) above on the basis that it is subject to a federally enforce able permit condition limiting the combustion of municipal solid waste to 30% of the total fuel input by we ight. In addition to the above

‐ referenced revision to 40 CFR §60.2020, WM suggests that EPA revise the definition of “commercial and industrial solid waste incineration unit” to include the following clarifications:

“ The definition of CISWI unit does not include municipal solid waste combustion units identified within 40 CFR §60.2020(c), and does not include internal combustion engines, gas turbines or other combustion devices that combust landfill gases collected by landfill gas collection systems .” WM believes these changes will further clarify the scope of CISWI relative to the CAA Section 129 municipal solid waste combustion standards. Additionally, the clarification with respect to landfill gas fired combustion units is co nsistent with existing CAA Section 129 municipal waste combustion unit standards, and will appropria tely reflect EPA’s long

‐ standing interpretation with respect to the regulation of landfi ll gas as an uncontained gaseous material rather than as a solid waste.

Response: As stated in the reconsideration proposal, EPA inten ded to include a regulatory definition of municipal solid waste in CISWI to provide the clarity to the regulated community concerning applicability of the various CAA section 129 stan dards; however, the amendatory text for the proposed rule did not include a definition for municipal solid waste. We have corrected this oversight in the final rule by including t he definition of "municipal solid waste" as defined in 40 CFR part 60, subpart AAAA applicable to small MWC s. We are also including in110

sections 60.2020 and 60.2555 of the final rule, as the commenter suggests, an exemption from CISWI for solid waste incineration units subject to OSWI. EPA has consistently exempted solid waste incineration units subject to other section 129 emis sions standards from CISWI, and the lack of an exemption for OSWI units from the CISWI stan dards was an oversight. We do not agree with the commenter that the exemption for OSWI units should be included in the exemption for units subject to section 129 standards specific to municipal waste combustion units because OSWI regulates units that are not municipal was te combustion units in addition to regulating very small municipal waste combustion units. For this reason, we are including an exemption specific to OSWI in this final rule.

Regarding the commenter’s request that CISWI not apply to uni ts combusting less than 30% municipal solid waste (MSW) that are exempt from municipa l waste combustion standards, this exemption was removed from the CISWI rule in the June 4, 2010 proposal, consistent with the D.C. Circuit’s decision that any unit burning any solid was te is subject to standards issued pursuant to CAA section 129, unless such unit is exempted pursuant to one of the four statutory exemptions. See Natural Resources Defense Council v. EPA , 489 F.3d 1250, 1257-58 (D.C. Cir. 2007) (NRDC Decision). The exemption for units burning less 30% or less of MSW was not consistent with the NRDC Decision because units at co mmercial or industrial facilities that are combusting MSW are still combusting solid waste. The s tatutory exemption from the definition of “municipal solid waste” simply provides that units burning MSW at those levels are not deemed to be combusting MSW such that the units should be subj ect to section 129 standards as municipal waste combustion units. EPA did not re-open this issue in the reconsideration of the CISWI rule, and we are not revising the rule in response to this comment.

Landfill gas and contained gaseous material are discussed e lsewhere within this document.

Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1 Comment Excerpt Number: 11

Comment: EPA states that it is providing a definition of "municipal solid waste" in the CISWI rule. 76 Fed. Reg. at 80465. However, no such definition appears in the regulatory language. We agree that such a definition would be helpful in determining what units are subject to CISWI and what are subject to the municipal waste combustor rule a nd request EPA to include such a definition in the final rule.

Response: As stated in the reconsideration proposal, EPA inten ded to include a regulatory definition of municipal solid waste in CISWI to provide the clarity to the regulated community concerning applicability of the various CAA section 129 stan dards; however, the amendatory text for the proposed rule did not include a definition for municipal solid waste. We have corrected this oversight in the final rule by including t he definition of "municipal solid waste" as defined in 40 CFR part 60, subpart AAAA applicable to small MWC s.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM)111

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 4

Comment: EPA Should Clarify the Provisions of CISWI that Reference Mu nicipal Solid Waste Combustion

WM requests that EPA clarify the extent to which CISWI may apply to municipal solid waste combustion units. In this context, WM notes that both the final rule and the Reconsideration proposal include changes that are confusing and potentially incons istent with respect to CISWI applicability for municipal waste combustors. By way of background, EPA has promulgated a series of regulations under Section 129 of the Clean Air A ct, 42 U.S.C. §7429 (“CAA Section 129”) that would seem to cover the universe of sources that may be regulated as municipal waste combustion units. See, for example, 40 CFR Part 60 Subpar t Ea, Standards of Performance for Municipal Waste Combustors for Which Construction is Com menced After December 20, 1989 and on or before September 20, 1994; 40 CFR part 60 Subpart Eb, St andards of Performance for Large Municipal Waste Combustors for Which Construction i s Commenced After September 20, 1994 or for Which Modification or Reconstruction is Comme nced After June 19, 1996; 40 CFR Part 60, Subpart AAAA Standards of Performance for Small Municipal Waste Combustion Units for Which Construction is Commenced After August 30, 1999 or for Which Modification or Reconstruction is Commenced After June 6, 2001; and 40 CFR Pa rt 60, Subpart EEEE Standards of Performance for Other Solid Waste Incineration Units for Which Construction is Commenced After December 9, 2004, or for Which Modification or Recon struction is Commenced on or After June 16, 2006 (“OSWI”). 4 Under the current regulations identified above, large, sm all and very small municipal waste combustors would be regulated unde r CAA Section 129 standards. Note, however, that all of the above standards, includi ng OSWI, exempt units that are subject to a federally enforceable limitation restricting the combust ion of municipal solid waste to less than 30% of the total fuel input by weight, consistent with the language in CAA Section 129(g)(5). See e.g. 40 CFR §60.2887(b). As originally promulgated, 5 CISWI contained a provision in 40 CFR §60.2020(c) that exempted municipal waste combustion units t hat were either (1) regulated under existing municipal waste combustor standards (at that time, Subparts Ea, Eb, and AAAA and their Emission Guidelines counterparts), or (2) that combust greater than 30% municipal solid waste or refusederived fuel, and had the capacity to burn less than 35 tons per day of municipal solid waste. Subsequently, EPA promulgated the OSW I standards, which regulated very small municipal waste combustion units (those with the capacity to combust less than 35 tons per day of municipal solid waste or refuse

‐ derived fuel). In the currently effective CISWI rule, promulgated on March 21, 2011 (76 Fed. Reg. 15704), section 60.2020( c) was revised to remove the second part of the exemption that previously a pplied to municipal waste combustion units combusting greater than 30% municipal solid waste and w ith the capacity to combust less than 35 tons per day of municipal solid waste (which are no w regulated under OSWI). The removal of this provision created some confusion within C ISWI with respect to the scope of CISWI relative to other CAA Section 129 standards governing m unicipal solid waste combustion, because section 60.2020(c) does not reference O SWI, and it does not expressly maintain the 30% municipal solid waste exemption.

[Footnotes]112

(4) Note that EPA has also promulgated Emission Guideline s for certain categories of municipal waste combustors at 40 CFR Part 60, Subparts Cb, BBBB and FFFF.

(5) CISWI was originally promulgated on December 1, 2000 at 65 Fed. Reg. 75350

. Response: As stated in the response to EPA-HQ-OAR-2003-0119-2628-A2, excer pt 5, EPA is including in the final rule an exemption for units subject to O SWI and a definition of “municipal solid waste.”

Commenter Name: William C. Allison Commenter Affiliation: Air Pollution Control Division Document Control Number: EPA-HQ-OAR-2003-0119-2601-A1 Comment Excerpt Number: 2

Comment: The State suggests that the definition of small, remote incinerators (“SRI”), as proposed in the CISWI Reconsideration, be revised to all ow those SRI that also meet the definition of very small municipal waste combustion units (“VSMWC units”), as defined in the OSWI rules, to be excluded under the CISWI rules and subje ct only to the requirements of the OSWI rules.

In the CISWI Reconsideration, the EPA defines SRI as “ an incinerator that combusts solid waste ... and combusts 3 tons per day or less solid waste and is m ore than 25 miles driving distance to the nearest municipal solid waste landfill.”[ 76 Fed.Reg.80502 and 80523 ,§§60.2265and60.2875] The EPA defines solid waste as “any garbage, or refuse ... and other discarded material ... resulting from industrial, commercial, mining, and agricul tural operations ...”[40 C.F.R.§258.2] Similarly, the EPA defines VSMWC units under the OSWI r ules as “any municipal waste combustion unit that has the capacity to combust less than 35 tons per day of municipal solid waste or refuse-derived fuel.”[40 C.F.R.§§60.2977and60.2875] The EPA defi nes municipal solid

waste as “refuse and refuse derived fuel collected from the gene ral public and from residential, commercial, institutional and industrial sources consisting o f paper, wood, yard wastes, etc. ...” [40 C.F.R.§§60.2977and60.2875]

There is an overlap in these definitions where a wast e could be considered both municipal solid

waste as defined in the OSWI rules and solid waste as defined in the CISWI rules, and therefore an incinerator could qualify as both a SRI and a VSMWC unit. B ecause the CISWI rules preempt the OSWI rules, those units qualifying as SRI would be subject to the CISWI rules alone [40 C.F.R. §60.2887(d)]. In these situations, the Stat e would instead prefer that the EPA regulate such small emission units under the OSWI rules as VSMWC units.

Response: As stated above, EPA is excluding from CISWI solid was te incineration units that are subject to OSWI. Based on this revision, units that me et the definition of an OSWI unit would not also be subject to CISWI. We understand that it i s possible that units in the small remote incinerator unit (SRI) subcategory would be subject to OSWI instead of CISWI if they combust MSW and that MSW accounts for more than 30 % of the inputs for the unit. EPA does not have information at this time to determine whether any units in the SRI subcategory are very small MWCs subject to OSWI instead of CISWI and the comm enter has not provided information to allow us to make such a determination. O wners and operators of units in the SRI113

subcategory that believe they meet the definition of a ve ry small MWC should seek an applicability determination from EPA to determine the appr opriate section 129 standards applicable to their units.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 16

Comment: EPA Should Clarify that Secondary Material Fuels May be Proce ssed from Municipal Solid Waste

The NHSM Rule is clear on its face that secondary ma terials that have been discarded may be processed into legitimate non

‐ hazardous secondary material fuels. See 40 CFR §241.3(b)(4). Because the definition of “secondary materials” is bro ad in scope, the NHSM Rule provides an opportunity for meaningful and innovative materials recov ery and management. However, the rulemaking record indicates that the Agency has responde d to questions and comments expressing concerns that the NHSM Rule would allow for t he combustion of “solid waste” in contravention of CAA Section 129. In responding to comme nts about the application of the NHSM Rule to municipal solid waste streams, EPA has loo ked to the language of CAA Section 129 to underpin its responses. EPA has stated that Sectio n 129 of the CAA does not define “solid waste,” but instead provides under 129(g)(6) that the definition and scope of “solid waste” will be established by the Administrator under RCRA. EPA has c learly promulgated the NHSM Rule precisely for the purpose of defining solid waste, and for providing a rigorous framework under which solid wastes may be sufficiently processed, manage d as valuable commodities, and have comparable contaminant levels to those of traditional f uels, to be considered legitimate

non
‐ waste fuels. EPA has not applied the framework differentl y to various components of the solid waste stream. The Agency has established a framewor k in which the Agency maintains strict control and oversight over the use of secondary materials as fuels so that it may prevent sham recycling or combustion for the sake of disposal. A s companies continue to work to recover value from spent materials that would otherwise be disposed, they will focus on all aspects of the solid waste stream as sources of valuabl e feedstock. These material streams will likely include components of the post

‐ consumer municipal solid waste stream that are difficult to recycle, as well as pre

‐ consumer industrial, commercial and other sorted waste m aterials. As part of its mission to support materials management and sustainabil ity efforts of the public and private sectors, EPA should clarify that municipal solid waste, like any other solid waste fuel feedstock, is eligible for evaluation under the NHSM Rul e legitimacy framework. WM has appended a legal analysis at Attachment B to assist in this effort.

Response: As we discussed in the December 2011 proposed CISWI rule, t he definition of municipal solid waste is being included in the CISWI rule to clarify applicability for MWC owners who question whether CISWI or MWC rules are appl icable to their solid waste combustion unit (76 FR 80465). The applicability section of t he CISWI rule provides further clarification that sources subject to other CAA section 129 requirements are not subject to the CISWI standards. We have noted the oversight of not i ncluding amendatory language in the proposal that would include the definition of "municipal soli d waste" into the CISWI rule. We114

have corrected this oversight in the final rule and, a s we intended, have included the definition of "municipal solid waste" as defined in the MWC rule subparts

. The commenter primarily discussed issues that are being de alt with within the Identification of Non-Hazardous Secondary Materials That Are Solid Waste r ulemaking (NHSM). To the extent that the commenter has provided these comments to that r ulemaking, they will be addressed there.



### 2F. Providing an affirmative defense for malfunction events

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 11

Comment: EPA states in the final CISWI rule that, “consiste nt with” the holding in Sierra Club v. EPA , 551 F. 3d 1019 (D.C. Cir. 2008), cert. denied , 130 S. Ct. 1735 (2010) (“ Sierra Club ”), it has established emission standards that apply at all time s, even during a period of malfunction. 76 Fed. Reg. at 15737-38. There are a number of flaws in this statement and in EPA’s approach to malfunctions experienced by CISWI units, rendering it c ontrary to the requirements of § 111 and § 129 of the Clean Air Act. More specifically: EPA mi sinterprets both the relevance and the holding of Sierra Club.

EPA failed to consider malfunctions in establishing CISW I numeric emission standards. EPA failed to present any rationale or justification for i ts decision to apply the same numeric emission standard established for normal operations during an abnormal event, i.e., a malfunction. The Clean Air Act gives EPA an appropriate tool for setting e mission standards that apply during malfunctions: a “design, equipment, work practice or o perational standard”. EPA’s inclusion of an affirmative defense is not a substitute for establishi ng a § 111 and § 129-compliant standard for malfunction events. EPA’s affirmative defense requir ements are potentially unconstitutional, but certainly unreasonable and not consistent with §§ 111 an d 129.

Response: The EPA disagrees that the EPA must consider malfunc tions in establishing CISWI standards. As EPA has noted previously, malfunctions are not part of normal operations, and there is nothing in CAA section 111 or 129 that directs the Agency to consider malfunctions when setting emission standards. Moreover, while the E PA accounts for variability in setting emissions standards consistent with the CAA section 111 case law, nothing in that case law requires the Agency to consider malfunctions as part of t hat analysis. CAA section 111 does not require that emissions that occur during periods of malfunc tion be factored into development of CAA section 111 standards. This equates to the commenter ask ing that the EPA determine the likelihood, frequency, duration, and nature of a failure at t he facility when setting the standard. Such an approach is not required under section 111 or 129.

As explained above, the EPA has determined that CAA sect ions 111 and 129 do not require that emissions that occur during periods of malfunction be fac tored into development of CAA section 129 standards.115

The EPA disagrees that we failed to present any ration ale to apply the same numeric standards to malfunctions as apply during normal operating periods. The E PA has provided a detailed justification for its approach to malfunctions in the pr eamble to the proposed rule (See 75 FR 31964), the reconsideration proposal (See 76 FR 80461), and in the preamble to this final rule. As we explained in the preamble to the proposed rule, we r ecognize that even equipment that is properly designed and maintained can fail and that such failur e can cause an exceedance of the relevant emission standard. We are including an affirmati ve defense in the final rule as we have in other recent section 111, 112 and 129 rules so as to balanc e the tension, inherent in many types of air regulation, to ensure adequate compliance whil e simultaneously recognizing that despite the most diligent of efforts, emission limits may be exceeded under circumstances beyond the control of the source. Mont. Sulphur & Chem. Co. v. United States EPA, 2012 U.S. App. LEXIS 1056 (Jan 19, 2012) (rejecting argument that reliance on the affirmative defense was not adequate). EPA must establish emission standards tha t “limit the quantity, rate, or concentration of emissions of air pollutants on a conti nuous basis.” 42 U.S.C. § 7602(k)(defining “emission limitation and emission standard”). See generally Sierra Club v. EPA , 551 F.3d 1019, 1021 (D.C. Cir. 2008) (emissions limitations under CAA sectio n 112 must both continuously apply and meet section 112’s minimum stringency requireme nts, even during periods of startup, shutdown and malfunction). Thus, we are required to ensure t hat section 111 and 129 emissions limitations are continuous. As EPA further explained in those preambles, the EPA has determined that CAA sections 111 and 129 do not require that emis sions that occur during periods of malfunction be factored into development of CA A section 111 and 129 standards. As the EPA further explained, accounting for malfunctions w ould be difficult, if not impossible, given the myriad different types of malfunctions that can occur across all sources in the category and given the difficulties associated with predicting or accounting for the frequency, degree, and duration of various malfunctions that might occur.

As to whether the tenets of Sierra Club v. EPA only apply to section 112 standards, we disagree. The EPA believes the reasoning in the D.C. Circuit’s decision in Sierra Club v. EPA applies equally to section 111 and 129 rules. The EPA’s proposed approach to SSM periods has been used consistently in CAA section 112, CAA section 111, and CA A section 129 rulemaking actions since the D.C. Circuit’s decision in Sierra Club v. EPA , 551 F.3d 1019 (D.C. Cir. 2008) vacated the SSM exemption contained in CFR 63.6(f)(1) and 40 CFR 63.6(h)(1). (See, e.g., National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry and Standards of Performance for P ortland Cement Plants, 75 FR 54970 (September 9, 2010); Standards of Performance for New Stati onary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units; Final Rule, 76 FR 15372 (March 21, 2011); National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-fired Electric Utility Steam Generating Units and S tandards of Performance for Fossil-FuelFired Electric Utility, Industrial-Commercial-Instituti onal, and Small Industrial-CommercialInstitutional Steam Generating Units; Final Rule,77 FR 9304 (February 16, 2012).

The CAA section 129 does not authorize the EPA to promulgat ed work practice standards under section 129. Section 129 requires numeric emission standards for the pollutants specified in Section 129(a)(4). Thus, EPA does not agree with commente r’s suggestion that EPA apply work practices for malfunction events.116

The EPA’s view is that an affirmative defense to civil penalties for exceedances of applicable emission standards during periods of malfunction appropriate ly balances competing concerns. On the one hand, citizen enforcers are concerned about additional complications in their enforcement actions. On the other hand, industrial sourc es are concerned about being penalized for violations caused by malfunctions that could not have b een prevented and were otherwise appropriately handled (as reflected in the affirmative defense criteria). The EPA has utilized its Section 301(a)(1) authority to issue regulations necessary t o carry out the Act in a manner that appropriately balances these competing concerns.EPA mai ntains that it has sufficiently explained the legal authority for the affirmative defense requireme nts and why the approach is reasonable in the rulemaking record, including within this response to comments document.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 12

Comment: EPA states that it is requiring that sources meet nu meric emission standards established for normal operations at all times, including dur ing a malfunction event, “[c]onsistent with Sierra Club v. EPA .” 76 Fed. Reg. at 15738. The D.C. Circuit’s Sierra Club decision does not, however, compel or even support EPA’s position that the same numeric standards established for normal operations must also apply during a ma lfunction event. As an initial matter, the Sierra Club decision interpreted § 112, not § 129 (which incorporates by re ference § 111 and is mutually exclusive of § 112). This is not a mere technic al distinction.

The D.C. Circuit Court considered certain statutory la nguage dispositive in interpreting EPA’s standards-setting authority under § 112. Specifically, the st atement in the definition of “emission limitation” and “emission standard”, i.e., that it “lim its the quantity, rate, or concentration of emissions of air pollutants on a continuous basis”. Thi s statement has been in the statute since 1977. Throughout that time, EPA has exempted emissions durin g SSM events from compliance with NSPS under CAA § 111. See , 40 C.F.R. 60.8(c). In fact, Congress enacted the “cont inuous basis” language in § 302(k) knowing that EPA’s emissions stan dards under § 111 exempted SSM periods. There is nothing in the legislative history of the 1977 amendments to the CAA that suggests Congress intended to overturn that practice. 5 Moreover, court decisions both before and after the Clean Air Act Amendments of 1977, some of whic h are cited below, have affirmed the appropriateness of including an SSM exemption in standards i ssued under § 111. Although EPA claims that by requiring that the CISWI standards be met at all times, thereby ignoring or assuming away a malfunction, it is acting “consistent with Sierra Club ,” that claim really does nothing to justify EPA’s actions in this proposed reconside ration since the Sierra Club decision relates to a different type of action (exempting emissi ons from any § 112 standard) under a different statutory provision (§ 112). Even if Sierra Club were relevant to and binding upon EPA’s promulgation of performance standards for CISWI uni ts under §§ 111 and 129, however, it would not preclude EPA from establishing distinct requiremen ts applicable during a malfunction. The Sierra Club ruling vacated the exemption for excess emissions during pe riods of SSM contained in the General Provisions, 40 C.F.R. pa rt 63 subpart A, for emission standards for hazardous air pollutants regulated under § 112. At issue wa s EPA’s determination that excess emissions during periods of SSM experienced by major sources are not violations as long117

as the owner/operator has prepared a SSM plan and complies with a “general duty” to minimize emissions. The court concluded that the “general duty” wa s not a “section 112-compliant standard.” However, the court did not imply much less s tate that the same emission limits that EPA establishes for normal operations must apply during SSM events. In fact, the court clearly indicated that § 302(k)’s “inclusion of [the] broad phrase” “ any requirement relating to the operation or maintenance of a source to assure continuous emission reduction” in the definition of “emission standard” suggests that EPA can establish MA CT standards consistent with § 112 “without necessarily continuously applying a single standar d.” 551 F.3d 1019, 1021. The court accepted that “continuous” for purposes of § 302(k) “does not mean unchanging....” Id. at 1021. The court also highlighted the fact that Congress recogniz ed that it might not be feasible in all cases to prescribe or enforce a numeric emission standar d. Congress therefore provided in § 112(h) for the establishment of a “work practice” or “oper ational standard.” Id. at 1028. EPA is now soliciting comments on its determination in the final rule that CISWI units must meet the numeric emission standards established for steady-state o perations at all times, including periods of malfunction, and that the only enforcement relief t hat may be available in the event of a malfunction is an “affirmative defense” to civil penalt ies. EPA is completely silent on why it is not exercising the discretion and authority provided by Congr ess in § 111(h) to address CISWI unit malfunctions; in fact, it does not even mention th at statutory authority in discussing malfunctions. If EPA wants to act “consistent with” t he court’s decision in Sierra Club, it should promulgate standards for periods of malfunction pursuant to its § 111(h) authority. If EPA chooses to reject the flexibility that Congress clearl y intended the Agency to use when it is not feasible to prescribe or enforce a numeric emission stan dard, it needs to explain its legal authority for these affirmative defense requirements a nd why each of the requirements is reasonable and justified, taking into consideration alterna tive solutions. [Footnote: 5 Rather, the “continuous basis” language related to a debate in Congress about whether sources should be allowed to use temporary or intermittent pollution contr ol technologies, as the Sierra Club court recognized. See 551 F.3d at 1027, citing Kamp v. Hernandez, 752 F.2d 1444, 1452 (9th Cir.1985). It had nothing to do with limitations applied duri ng startup, shutdown, or malfunction, nor with EPA’s established practice of exempting excess e missions during SSM events from its performance standards.]

Response: With respect to meeting the same numeric emission s tandard during malfunctions, please see the response to comment EPA-HQ-OAR-2003-0119-2606-A1 ex cerpt 11.

With respect to our approach to providing the basis for affi rmative defense, please see the response to comment EPA-HQ-OAR-2003-0119-2606-A1 excerpt 15.

As to whether the tenets of Sierra Club v. EPA only apply to section 112 standards, we disagree. The EPA believes the reasoning in the D.C. Circuit’s decision in Sierra Club v. EPA applies equally to section 111 and 129 rules. The EPA’s proposed approach to SSM periods has been used consistently in CAA section 112, CAA section 111, and CA A section 129 rulemaking actions since the D.C. Circuit’s decision in Sierra Club v. EPA , 551 F.3d 1019 (D.C. Cir. 2008) vacated the SSM exemption contained in CFR 63.6(f)(1) and 40 CFR 63.6(h)(1). (See, e.g., National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry and Standards of Performance for P ortland Cement Plants, 75 FR 54970 (September 9, 2010); Standards of Performance for New Stati onary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units; Final Rule, 76 FR 15372118

(March 21, 2011); National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-fired Electric Utility Steam Generating Units and S tandards of Performance for Fossil-FuelFired Electric Utility, Industrial-Commercial-Instituti onal, and Small Industrial-CommercialInstitutional Steam Generating Units; Final Rule,77 FR 9304 (February 16, 2012).

As explained in the preamble to the proposed rule and this final rule, the EPA has determined that CAA sections 112 and 129 do not require that emissions that occur during periods of malfunction be factored into development of standards unde r any subsection of section 112 and 129. Section 129 of the CAA does not authorize the EPA to pro mulgate work practice standards under section 129. Section 129 requires numeric emission st andards for the pollutants specified in Section 129(a)(4). Even if commenters were correct t hat section 111(h) authoirzes work practice standards, setting work practice standards present s the same issues as setting numerical emission limits givne the varied nature of malfunctions. EPA has maintained in this and prior rule makings, accounting for malfunctions on a category -wide, 112 or 129-wide basis would be unreasonable given the myriad different types of malfunc tions that can occur across all sources in the category, or even and individual source.

EPA does not claim that the Sierra Club case constrains its authority to prescribe unique standards for SSM periods or directly addresses the legality of SSM exemptions for section 129 standards. EPA‘s view is that the reasoning of the Sierra Club decision calls into question the legality of source category-specific SSM exemptions in rules promulgated pursuant to section 129. EPA also disagrees with the commenter that contends that the Sierra Club decision addresses in any way EPA‘s current approach to malfunction s. Consistent with Sierra Club , we have issued standards that apply at all times, including dur ing malfunctions.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 16

Comment: The affirmative defense regulatory language in § 63.2120 and § 63. 2685 opens with the words: “In response to an action to enforce the standa rds set forth in...” and repeats this thought in paragraph (a) of the section: “To establish t he affirmative defense in any action to enforce such a limit...” (emphasis added). This opening language le aves a regulated party to believe that if any action is taken against that party t o enforce an emission limit exceeded during a malfunction, the party may avail itself of an affi rmative defense if it meets various criteria. However, this is not the way EPA’s affirmative defense would play out.

In § 63.2120(b), 9 EPA establishes strict notification requirements that must be followed for the owner/operator to be able even to raise an affirmative de fense if and when an enforcement action is brought. First, the owner/operator must notify EPA by phone or FAX as soon as possible, but no later than two business days after the “initial oc currence of the malfunction.” Then, within 45 days of the “initial occurrence of the exceedance of t he standard,” the owner/operator must submit a written report accompanied by all necessary supporti ng documentation to show that it has met each and every requirement set forth in paragra ph (a) of §63.2120. The regulations further state that these reports must be made if the so urce operator “wishes to avail itself of” the119

affirmative defense, § 63.2120(b), and “to establish the affi rmative defense” the operator “must timely meet the notification requirements in paragraph ( b),” §60.2120(a). Because of the short time frames prescribed for reporting, the reality is th at EPA is requiring the facility to present its entire detailed defense in writing to EPA before the Age ncy has even decided whether to take any enforcement action. To require a party to lay out its entire defense to a potential future enforcement action before that action may be taken is wholly inappropriate and unacceptable.

EPA has cited no legal authority for its use of affirma tive defense requirements that inappropriately and unlawfully shift the burden to the facili ty to prove by a preponderance of the evidence that any excess emissions were caused by a true mal function and that the facility meets all of the other specified factors in § 63.2120. EPA’s affir mative defense places the facility in the position of proving its innocence, rather than EPA or other regulatory authority bearing the burden of proving that the facility violated the CAA.

EPA states that the affirmative defense may be raised t o a “claim for civil penalties” but does not define “civil penalties”. For example, are these meant to include a “civil administrative penalty” imposed by EPA under § 113(d) of the Clean Air Act? A “non compliance” penalty sought under § 120 of the Act? A “civil penalty” imposed by a court?

It is also unclear how the affirmative defense would appl y to enforcement actions by state and local governments, or to private citizen enforcement act ions brought under § 304 of the CAA. While in no way endorsing EPA’s affirmative defense provi sion, ACC believes that if retained by the Agency after reconsideration, the provision should clearly state that it is applicable to any enforcement action.

Section 63.2120 states: “The affirmative defense shall not be available for claims for injunctive relief.” The preamble is silent as to why the affirma tive defense would not apply to injunctive relief. If the facility meets the requirements of t he affirmative defense provision, why may it not be raised as a defense to a claim for injunctive relief ? EPA’s assertion to the contrary is unsupported by any explanation.

Turning to the individual requirements in § 63.2120(a)(1) through ( 9) that a facility must meet to be allowed to raise an affirmative defense, a number o f these requirements are not relevant to whether a malfunction, as defined in 40 CFR 63.2 occurred.

Malfunction means any sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipm ent, or a process to operate in a normal or usual manner which causes, or has the potential to cause, the emission limitations in an applicable standard to be exceeded. Failures that are cause d in part by poor maintenance or careless operation are not malfunctions. Most of the co nditions for establishing an affirmative defense in § 63.2120 may be relevant to determining whether th e facility undertook appropriate and necessary measures to mitigate any excess emissions resulting from the specific malfunction, but do not in any way inform a determination of whether a piece of equipment has met the definition of a malfunction. For example, § 63.2120(a)(2) requires that “off-shift and overtime labor, to the extent practicable” were used to make the r epairs needed. ACC does not understand how this requirement relevant to determining whether a pie ce of equipment has “malfunctioned”. See also (a)(3), (a)(5), (a)(6), (a)(7). (a)(8) and (a) (9). A number of the requirements are extremely subjective and fail to allow for considerati on of reasonableness or cost-effectiveness.120

For example, § 63,2120(a)(1)(ii) requires the owner/operator to show that the malfunction could not have been prevented through “careful planning,” “proper design” or “better operation and maintenance practices.” This subjective requirement lea ves open the possibility that an enforcement official could always find actions that “cou ld” have been taken without any consideration of costs, resources or feasibility. Mor eover, it fails to consider that an owner/operator may have chosen to redesign a process or equi pment configuration, or make other adjustments to achieve the emission reductions nece ssary to comply with the standard. In so doing, the owner/operator would have evaluated various options to determine which one was the most cost-effective approach to achieve the emissio n standard, keeping in mind that costeffectiveness would include long-term safe and proper operati on of the equipment or process. If a malfunction were to occur, it could be difficult if not impossible for the owner/operator to prove that the malfunction “could not have been prevent ed” if cost and resources were never an issue. Another subjective and particularly problematic requ irement is (a)(8) which requires that: “At all times, the facility was operated in a manner c onsistent with good practices for minimizing emissions.” ACC strongly objects to EPA reaching beyon d the equipment that malfunctioned to require a party to prove by a preponderance of the evidence t hat “at all times, the facility was operated in a manner consistent with good practices for minimizing emissions.” (Emphasis added.) First, EPA does not define “facility” or “affected facility” in the final CISWI rule; common usage of the term “facility” suggests that it mea ns the entire plant. 10 Second, and more importantly, EPA is requiring a party to comply with a r equirement that is ambiguous, highly subjective, and impossible to meet. This is not reasoned decision-making. We note that in its proposed reconsideration of various provisions of the Chem ical Manufacturing Area Source Rule (“CMAS”), 77 Fed. Reg. 4522 (January 30, 2012) EPA revised this requir ement and changed the word “facility” to “affected source.” If the affirmati ve defense provision is included in the final reconsidered CISWI rule, EPA should follow an approach similar to what it has done in CMAS and change “facility” to “incineration unit.” Requirement (a)(4) would disallow the affirmative defense if a malfunction involved bypassing control equipmen t or a process, and the bypass was not taken “to prevent loss of life, severe personal i njury, or severe property damage.” This language is both unyielding and subjective. It is unyielding in that it fails to allow any consideration of the fact that bypassing the control equ ipment or the process may have been an appropriate exercise of good air pollution control practice s. For example, a bypass can constitute the best air pollution control practice in response to an upset in order to prevent excess emissions, e.g., to avoid fouling of pollution control equ ipment media that in turn would result in reduced pollution control equipment efficiency or increas ed pollution control equipment downtime. Additionally, in some cases the air emissio ns from a venting event are lower than if the facility had an uncontrolled shutdown to avoid venting. An uncontrolled shutdown could also impact other media, e.g., a wastewater dump from scr ubbers, solid waste, etc. And, a shutdown would necessitate additional startup emissions. Ar guably, venting for a short period due to malfunction could result in less emissions than a non-orderly shutdown and subsequent restart. Yet, as worded, this requirement would discourage an owner/operator from taking the less-impactful option because it would mean that he coul d not avail himself of an affirmative defense for the malfunction.

This requirement is subjective in its use of the word “s evere.” Reasonable minds could disagree on what constitutes “severe” property damage, or “severe ” personal injury. Lastly, this requirement is not supported by any explanation as to why “bypa ssing” control equipment or a process is absolutely unacceptable except when an owner/o perator is faced with these dire121

consequences. Requirement (a)(5) demands that a party pro ve that: “All possible steps were taken to minimize the impact of the excess emissions o n ambient air quality, the environment and human health.” Again, the subjectivity of “all possi ble steps” is problematic in that it establishes a potentially unattainable standard with no cl ear direction as to how a party is to meet it. Requirement (a)(9) is problematic in that it requir es a party to prepare a “written root cause analysis to determine, correct and eliminate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at iss ue.” This directive assumes that the cause of any and all malfunctions can be determined, corrected and el iminated. If a malfunction by definition is unavoidable, unforeseeable, and not reasonabl y preventable, it may be that the first time it happens its primary cause cannot be determined. If the cause cannot be determined, it cannot be corrected. So unless a party can figure out why som ething malfunctioned, it cannot claim to have had a “malfunction.” Not only is this no nsensical, it is a significant departure in EPA policy with no justification provided. For example, in the General Provisions applicable to NSPS, EPA recognizes that the cause of a malfunction c annot always be known. See 40 CFR 60.7(b)(2) which requires that written reports of excess e missions include the “nature and cause of any malfunction, if known ....” (Emphasis added.) Lastly, requiring a party to eliminat e the primary causes of the malfunction, without regard to “t aking into consideration the cost of achieving such” elimination and the “non-air quality health an d environmental impacts and energy requirements” associated with its elimination i s unreasonable and entirely inconsistent with the criteria for standards established under § 129(a) o f the CAA. 11

Turning to the 2-day notification requirement in § 63.2120(b), A CC notes that EPA recently proposed almost identical affirmative defense requireme nts in the CMAS proposed reconsideration but omitted the 2-day notification. It is ACC’s understanding that the Agency has been persuaded by comments submitted by ACC and others tha t the 2-day notification requirement is onerous and unworkable. We also understand t hat EPA may be revisiting some of the other requirements in the affirmative defense provi sions in order to further reduce the burden on facilities. We therefore request that in its recon sideration EPA abandon the 2-day notification requirement in the final provisions for CISWI units. Unlik e the 2-day notification which is triggered by the “initial occurrence of the malfunction,” the 45-day period for submitting a written report demonstrating that the party qualifies for the affirmative defense commences on the date of “the initial occurrence of the exceedance o f the standards.” Complying with this timeframe presents several challenges, specifically becau se most of the content of the report may not be able to be created until the malfunction has ended, which in some cases could be a number of days. While there is an opportunity for requesting and obt aining an extension of the reporting deadline of up to 30 additional days, the owner/operator mus t comply with the original 45-day requirement unless and until he hears back from EPA that t he extension request is approved. However, there is no requirement for EPA to act timel y in granting or denying an extension request. At a minimum, the rule should provide a timeframe within which EPA must act on a request and if it fails to do so, the request would be consi dered granted. For all of the reasons above, and in keeping with the court’s holding in Sierra Club , we strongly encourage the Agency to abandon its affirmative defense approach as an appropri ate and legal way to address excess emissions during a malfunction. We believe that the Age ncy instead should use its authority under § 111(h) and 302(k) to establish a management practice, work pr actice or operational standard to address a malfunction event that may be experi enced by a CISWI unit.

Footnotes:122

9 The language of the affirmative defense provision in the gu idelines for existing sources, 40 C.F.R. 63.2685, is virtually identical to that for new and m odified sources in § 63.2120. The remainder of these comments therefore will refer only t o the latter section, although the comments apply equally to § 63.2685.

10 The term “affected facility” is used in NSPS and is defi ned in the NSPS General Provisions at 40 CFR 60.2, but the CISWI standards apply to “new incineration units.” NESHAPs in Part 63 use the term “affected source,” and the definition of aff ected source in 40 CFR 63.2 states: “Affected source may be defined differently for part 63 tha n affected facility and stationary source in parts 60 and 61, respectively.”

11 For example, it might be theoretically possible to eli minate the excess emissions associated with the malfunction by installing totally redundant polluti on control equipment, or pollution control equipment with far more capacity than needed fo r normal operations. But this would not reflect the performance of the best performers on which §129(a) standards are to be based, nor would it appear to take cost and non-air quality health and environmental impacts and energy requirements into consideration as the statute requires . Moreover, the proposed requirement to eliminate “the primary causes of the malfunction” and not just to eliminate “the excess emissions resulting from the malfunction event” lies entirely outside of EPA’s authority under the CAA, which is limited to establishing and enforcing emission limita tions, not dictating plant operations.

Response: The criteria required to establish an affirmative defens e are intended to ensure that the affirmative defense is available only where the event that causes the violation of the emission limit meets the narrow definition of malfunction, and w here the source owner or operator has taken action to correct the malfunction and minimize emissions. In order to establish the affirmative defense and prove by a preponderance of evidence that the event meets the definition of malfunction, you must meet the root cause analysis a nd reporting requirements.

The commenter expresses concern with the timeframe f or reporting requirements in sections 60.2010(a)(9) and (b) and 60.2685(a)(9) and (b), and asserts that th e facility must present its entire detailed defense in writing before the Agency has dec ided to take any enforcement action. EPA believes the reporting requirements are reasonable in nature, timing, and scope.

EPA has reconsidered the timing of the report. The EPA is revising the 45-day deadline to allow sources to submit the report and the necessary supporting doc umentation in the first periodic compliance report, deviation report or excess emission r eport otherwise required after the initial occurrence of the violation of the relevant standard. I f such compliance report, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the next per iodic report due after the initial occurrence of the violation of the relevant standard. T his change provides sources with sufficient time to demonstrate that they have met the required aff irmative defense criteria. The EPA does not agree that the affirmative defense provision require s a facility to prove its innocence or that the provision changes the enforcement authority's burden to prove a violation of the CAA. The affirmative defense provisions do not change the burden of pr oof with respect to establishing a violation. The affirmative defense applies to penalties and thus is only utilized where a violation has been established. The burden of proof remains with the plaintiff in an enforcement action. See, e.g., 40 C.F.R. 22.24. If a violation has been establ ished and a source wishes to assert the123

affirmative defense with respect to penalties, the sour ce does bear the burden of establishing that the elements of the affirmative defense have been met. This burden-shifting is appropriate because the source is in a better position to determine the facts required to establish the defense. See, e.g., Arizona Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1120, 1129 -30 (10th Cir. 2009) (rejecting industry challenge to the EPA’s use of an aff irmative defense to address excess emissions during malfunction events). Further, it is at the source owner or operator's discretion whether they wish to claim this affirmative defense.

The affirmative defense applies to claims for civil pena lties as part of a judicial or administrative enforcement proceeding, but does not apply to injunctive relie f or criminal penalties. The civil penalties in question therefore may be administrative o r imposed by a court. The affirmative defense is available in any action to enforce the standar ds set forth in this rule, whether such action is brought by EPA, a state or local authority or a citizen. There is nothing in the language of the regulatory text establishing the affirmative defens e that suggests that the affirmative defense is limited to EPA enforcement actions. EPA is not extending the affirmative defense to injunctive relief. The EPA is required to ensure that em issions limitations are continuous. The affirmative defense for malfunction events meets this requirement by ensuring that even where there is a malfunction, the emission limitation is still enforceable through injunctive relief. Further, injunctive relief may be necessary to improve facility operations and improve the environmental performance of the facility, and these are viewed as critical steps in resolving a violation. If the affirmative defense applied to injunctiv e relief, as the commenter suggests, neither EPA nor the court could require a facility to cor rect failures at the facility that lead to excess emissions of air pollution.

The commenter observes that a number of the affirma tive defense criteria address how the exceedance was resolved, and objects that these are not relevant to whether a malfunction has occurred. The EPA believes that a demonstration of cor rective action is a critical component of the affirmative defense. The regulation requires that to e stablish the affirmative defense the owner must prove by a preponderance of the evidence that re pairs were made as expeditiously as possible when a violation occurs. In light of the above comment, we have re-evaluated the language concerning the use of off-shift and overtime labor to the extent practicable and believe that the language is not necessary. Although we believe that use of off-shift or overtime labor could be cited as evidence that the owner or operator exped ited repairs, we do not believe this level of detail is necessary in the regulatory text. The commenter expresses concern that the criteria require actions to be taken that are costly o r infeasible, use subjective words that create too onerous of a showing to meet, and that it is not poss ible to show that "all possible steps were taken minimize the impact of the excess emissions..." The EPA disagrees with comments that criticize the affirmative defense criteria as being ar bitrary, capricious and overly vague or unduly restrictive and complex. The EPA believes that courts an d administrative enforcement proceedings are well equipped and often do evaluate and apply t he type of criteria set forth in the affirmative defense. Many of the conditions were model ed after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several St ates have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Exc essive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emis sions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not h ave any indication that parties to enforcement proceedings have had any significant difficult ies applying the terms of these SIP affirmative defenses, and the commenters have provided no information to suggest that124

application of the SIP based affirmative defense provisi ons are unreasonable or difficult to apply. In addition, the EPA’s view is that use of consistent t erms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.

The EPA has defined affirmative defense such that the mer its of the affirmative defense are independently and objectively evaluated in a judicial or admin istrative proceeding. The criteria proposed by EPA impose reasonable and attainable showings, and include language restricting their scope to safe operation, careful planning, and proper design. In response to commenter's question, the reference to "facility" in the affirmati ve defense pertains to the regulated CISWI unit.

The commenter suggests that bypassing control equipment sh ould be allowed as an affirmative defense to a malfunction if the bypass avoids fouling of air pollution control equipment, or avoids a plant shutdown that would cause more environmenta l harm than the excess emissions from the malfunction.

The commenter also indicates that the restrictive by pass provisions may result in a non-orderly shutdown, which could result in higher excess emissions th an a control device bypass. The EPA disagrees that a non-orderly shutdown is a necessary r esponse to avoiding a bypass. A well operated facility has an orderly procedure that they are capable of following in shutdowns, and EPA has determined that the emission standards can be at tained during startup and shutdown. Nonetheless the EPA cannot pre-judge the validity of any justification for asserting affirmative defense beyond the guidance provided in the rule.

The commenter also objects to the use of the word "seve re" in the bypass provisions. In response, EPA notes that "severe" property damage is only one in a list of several reasons why control equipment may have been bypassed. The word "seve re" is not attached to the personal injury portion of the affirmative defense language.

The EPA is revising the root cause analysis requirement to clarify that the purpose of the root cause analysis is to determine, correct, and eliminate th e primary cause of the malfunction and that the root cause analysis itself does not necessaril y require that the cause be determined, corrected or eliminated. However, in most cases, EPA believes that a properly conducted root cause analysis will have such results. Such an analysi s is beneficial in resolving or preventing violations and excess emissions whether the source seeks to assert the affirmative defense or not. A root cause analysis is one example of what constitutes good air pollution control practices to minimize emissions. Costs and impacts associated with c omplying with the emissions standards have been considered by EPA consistent with section 129. Owners and operators are expected to make repairs that enable them to meet the emission sta ndards. Further, a root cause analysis is not mandatory and is only required if a source seeks to ass ert an affirmative defense. Regarding the commenter's concern about the two day notificatio n requirement, EPA has removed the requirement to notify EPA within two days of a violation in order for sources to avail themselves of the affirmative defense.

The commenter is also concerned that longer malfunctio ns would require more time to report than is allowed under the proposed rule. As indicated, EP A is revising the reporting deadline to coincide with the next periodic compliance report. If the next report is due less than 45 days125

after the initial occurrence of the violation, the aff irmative defense report may be included in the next compliance, deviation, or excess emission report. Regarding the commenter's concern that 45 days may be insufficient time for a long, multiday ma lfunction, the commenter is reminded that timely resolution of the malfunction is one of t he criteria for asserting an affirmative defense. Therefore it is not expected that a qualifying ma lfunction would be of such a long duration that it would impede with the drafting of the repor t.
Section 129 requires numeric emission standards for the po llutants specified in Section 129(a)(4). Even if commenters were correct that work prac tice standards are permissible under section 129, setting work practice standards presents the sa me issues as setting numerical emission limits given the varied nature of malfunctions

. In summary, the EPA has determined that CAA sections 112 and 129 does not require that emissions that occur during periods of malfunction be fac tored into development of standards under any subsection of section 112 and 129. Section 129 of the C AA does not authorize the EPA to promulgate work practice standards under section 129. S ection 129 requires numeric emission standards for the pollutants specified in Sectio n 129(a)(4).

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 15

Comment: EPA’s proposed rule establishes an "affirmative defense" in place of the historic provisions for start-ups, shutdowns and malfunctions. Dow recognizes that this is not unique to CISWI; EPA is proposing the same in other rules. Howeve r, the "affirmative defense" as currently written imposes such onerous requirements that the defense will be entirely useless as a practical matter. EPA should programmatically (including i n this rule) revise the affirmative defense so that it is meaningful.

Dow has the following recommendations that we believe w ill improve this section of the rule.

1. There is sufficient connection between Section 129 an d Section 111 of the statute that the provisions of Section 111(h) could be used in areas where it is not feasible to prescribe or enforce a standard of performance, particularly in areas where it is not practicable. For malfunctions that result in only small levels of exce ss emissions of Section 129(a)(4) substances or mixtures of concern, instead of requiring the regulat ed entity to establish and prove an affirmative defense, EPA should establish a work practic e requirement that requires the owner/operator to stop the emissions, stop the malfunctio n, and to return to normal operations as soon as practical. For example, in cases involving the ma lfunction of a CISWI unit (caused by a variety of reasons such as loss of scrubber water pr essure or a power failure), the process control computer could quickly shut off all solid waste feeds to the CISWI unit to prevent excess emissions. Again, these are the types of examples wher e a "malfunction" of an air pollution control or monitoring device would result in very low le vels of excess emissions and in some cases no measurable levels of excess emissions.126

2. The immediate notification (within 2 working days) requi rement as a pre-requisite for asserting the affirmative defense should be eliminated in §60.2120(b) of subpart CCCC and §60.2685(b) of subpart DDDD for at least the following reaso ns and replaced with a semi-annual reporting requirement:

• It is burdensome and duplicative of emergency response repor ting requirements under SARA/CERCLA/EPCRA and many state regulations for larger excess emission events.

• This new requirement will contradict many existing reportin g rules by requiring the reporting of emission quantities well below CERCLA/SARA/ State Agency Reportable Quantities. Thus, agencies will be flooded with reports of very small excess emissions.

• The rule structure encourages reporting to the agency even if the owner/operator is not sure if an exceedance of an emission limit has occurred f or fear of not being able to claim the affirmative defense. Thus, agency reporting systems wil l become "clogged" with insignificant reports further complicating the ability o f all resources to respond to a larger
event.

• The rule is not clear to whom the reports should be submitted (e.g., the EPA Regional Office, State or Local Agency, LEPC).

3. In Section §60.2120(a) of subpart CCCC and Section §60.2685(a), E PA proposes that nine requirements be met in order for a facility to claim an affirmative defense for a malfunction. Some of these requirements are unreasonable, difficult to demonstrate, and subject to varying interpretation.

Response: The commenter suggests that EPA impose a design, work practice, or operational standard consistent with Section 111(h) as a means of addr essing malfunctions. The EPA’s rationale for its approach to malfunctions is discusse d in the preambles to the proposed rule and this final action. As explained in the preamble to the pr oposed rule and this final rule, the EPA has determined that CAA sections 112 and 129 does not require th at emissions that occur during periods of malfunction be factored into development of st andards under any subsection of section 112 and 129. Section 129 of the CAA does not authorize the EPA to promulgate work practice standards under section 129. Section 129 requires num eric emission standards for the pollutants specified in Section 129(a)(4). Even if comment ers were correct that work practice standards are permissible under section 129, setting work prac tice standards presents the same issues as setting numerical emission limits given the varied nature of malfunctions. The EPA has maintained in this and prior rule makings that even if the EPA saw merit, accounting for malfunctions on a category-wide, or 112 or 129-wide basis would be difficult, if not impossible given the myriad different types of malfunctions that can occur across all sources in the category, and in the NESHAP and 129 programs.

The EPA disagrees that affirmative defense will be en tirely “useless.” The EPA believes that courts and administrative enforcement proceedings are wel l equipped and often do evaluate and apply the type of criteria set forth in the affirmati ve defense. Many of the conditions were modeled after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several States have adopted into their SIPs. (See, e.g. , State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Mai ntenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to enforce ment proceedings have had any127

significant difficulties applying the terms of these SIP affirmative defenses, and the commenters have provided no information to suggest that application of t he SIP based affirmative defense provisions are unreasonable or difficult to apply. In addit ion, the EPA’s view is that use of consistent terms in establishing affirmative defense regula tions and policies across various CAA programs will promote consistent implementation of th ose rules and policies.. .

EPA has reconsidered the reporting requirements for th e affirmative defense and has eliminated the two day notification. The rule language states that the report must be submitted to the Administrator. Administrator is defined in section 60.2 wi th the following ”the Administrator of the Environmental Protection Agency or his authorized repres entative.” Since the reports are due on a regular scheduled basis with otherwise required reports , we do not anticipate the work load issue suggested by the commenter. While certain malfunctio ns may cause violations that are reported under the other statues cited by the commenter, the EPA does not consider this reporting in conflict in need of resolution.

.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 10

Comment: While we prefer EPA use a rebuttable presumption, should the Agency keep the affirmative defense concept, CRWI suggests the following m odifications to the language to make it more usable. CRWI understands that most of the pr ovisions EPA has proposed for the affirmative defense comes from earlier guidance memos. While these provisions were in guidance, the Agency did not need to be careful of the w ording since they were only guidance and did not have the weight of regulation. However, if the Agency wants to codify this guidance into regulatory language, several changes are needed. For example, EPA should drop the reference to "any" activity in this paragraph. There are also several references to "All" that would make it difficult to satisfy the requirements of an a ffirmative defense. In addition, the language in the provision is contradictory. In paragraph (a), the phrase "preponderance of evidence" is used while later in that paragraph (iii), the language refe rs to "any activity" meaning that more than preponderance of evidence is needed. This same trend occ urs in paragraphs (5) – "All possible," (6) "All," (7) "All of the actions," and (8) "A t all times." While "all" would include "preponderance," "preponderance" does not mean all of the time. CRWI suggests that the phrase "preponderance of evidence" is adequate and the references to "all" and "any" in the later paragraphs should be modified.

To many engineers, the term "root cause analysis" implie s a specific formal process. For many malfunctions, the cause is immediately obvious and a for mal process for determining the cause is not needed. When a malfunction occurs, the expectation is that the facility will correct the problem as quickly as possible and return to their operating window. A formal root cause analysis is typically limited to very significant even ts or repeat events. For example, if a thermocouple fails, the most likely cause is a bad the rmocouple. The first response is to simply replace the thermocouple. However, if a second thermoc ouple fails within a short period of time, then something else may be causing that event to happen an d a more detailed analysis may be128

needed. It may take several failures before the real ca use is identified. Here a formal root cause analysis may be needed, but it certainly is not needed to replace the first failed thermocouple. The proposed language assumes that all malfunctions are equally significant and need an identical degree of investigation. For example, a missing da ta point due to a malfunction of the data acquisition system is not as significant as a power failure or a catastrophic event such as a fire or explosion. CRWI believes that a formal root caus e analysis should only be used when other reasonable methods fail to show what caused the ma lfunction or when the serious nature of an event might make such an analysis necessary. Moreov er, other tools may be more appropriate (e.g., failure mode and effect, fault tree, etc.) or mor e powerful tools may be introduced in the future. The facility is the only one that can and should decide what tool to use to determine the cause of the malfunction.

Part of this problem may be in communications. To some c ompanies and potentially to some local regulators, the term "root cause analysis" implie s a specific formal process. There are several techniques that may be called "root cause analysis, " depending on the author and industry. If EPA intends for the facility to investigate and fix the source of the malfunction so that it is less likely to recur, CRWI supports that conc ept but suggests that the Agency use an alternative term that does not carry a specific meaning. However, if the Agency envisions a formal process for determining the root cause for every ma lfunction, no matter how simple, CRWI believes this is unnecessary and would result in ex cess efforts with no environmental gains.

In a recently proposed rule (77 Fed. Reg. 4,522, 4,538, January 30, 2012) , EPA proposed dropping the immediate notification process and simply re quiring a written report within 45 days of the malfunction. CRWI suggests that the Agency adopt th e same change in this regulation. If the Agency keeps the immediate notification requirement , faxing is an obsolete technology. EPA should allow notification by e-mail or other electronic means. As facilities and EPA move toward electronic recordkeeping, it makes no sense to require keeping a "properly signed, contemporaneous operating logs" as a requirement for an a ffirmative defense. There are a number of electronic methods for maintaining records curren tly available (and more will likely be available in the future). As such, we suggest modifying t his provision. In addition, it is impossible to eliminate the causes for certain malfuncti ons (e.g., lightning strikes).

Finally, CRWI notes that EPA does not allow facilities to assert an affirmative defense for the exceedance of an emission limit during malfunctions if E PA is seeking to enforce that emission limit through injunctive relief. Apparently the Agency ta kes that position based on a memorandum, State Implementation Plans: Policy Regard ing Excessive Emissions During Malfunctions, Startup, and Shutdown at 2 (Sept. 20, 1999). (S IP SSM Memo) CRWI asserts that this policy is wrong. The type of legal action or relief should have no bearing on the availability of this defense. A malfunction "is a sudden, infrequent, n ot reasonably preventable failure of air pollution control equipment, process equipment, or a proce ss to operate in a normal or usual manner." 40 CFR § 60.2. It is not affected by the type of enfo rcement action EPA may eventually bring. Indeed, because a malfunction is not r easonably preventable, enforcement actions, regardless of type, have no deterrent effect on them. Therefore, the type of legal action EPA uses to enforce a violation of its emission limits is simply irrelevant to whether the violation should be excused because of circumstances beyond the fac ilities control.129

Consequently, CRWI believes that not allowing an affirmat ive defense in an action for injunctive relief is arbitrary and capricious. As the D.C. Circuit Court stated in Essex Chem. Corp. v. Ruckelshaus , 486 F.2d 427. 433 (D.C. Cir. 1973) a case reviewing a §111 rule, the cour t held that startup, shutdown, or malfunction ("SSM") provisio ns are "necessary to preserve the reasonableness of the standards as a whole." The D.C. Circuit Court of Appeals has also noted that "[a] technology-based standard discards its fundam ental premise when it ignores the limits inherent in the technology." NRDC v. EPA , 859 F.2d 156, 208 (D.C. Cir. 1988). Therefore, EPA should not apply a policy drafted to "ensure that SIPs provide for attainment and maintenance of the national ambient air quality standards ("NAAQS") an d protection of prevention of significant deterioration (PSD) increments" and other risk-based progr ams, SIP SSM Memo at 2, to the CAA § 129 technology-based program.

CRWI suggests that EPA consider making the following modif ications to the regulatory language in §§ 60.2120 and 60.2685 to address the concerns mentioned abo ve and to make an affirmative defense a more useful tool (using strikeout to show text deleted and underline to show text added).

§ 60.2120 Affirmative Defense for Exceedance of an Emission Limit During Malfunction.

In response to an action to enforce the standards set forth in paragraph § 60.2105, you may assert an affirmative defense to a claim for civil penalties fo r exceedances of such standards that are caused by malfunction, as defined at 40 CFR 60.2. Appropriate pen alties may be assessed, however, if you fail to meet your burden of proving all of t he requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief.

(a) To establish the affirmative defense in any action to enforce such a limit, you must timely meet the notification requirements in paragraph (b) of t his section, and must prove by a preponderance of evidence that:

(1) The excess emissions:

(i) Were caused by a sudden, infrequent, and unavoidable failure o f air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner; and

(ii) Could not have been reasonably prevented through careful planning, proper design or better operation and maintenance practices; and

(iii) Did not stem from any activity or event that could have been reasonably foreseen and avoided, or planned for; and

(iv) Were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and

(2) Repairs were made as expeditiously as possible when th e applicable emission limitations were being exceeded. Off-shift and overtime labor were used, to the extent practicable to make these repairs; and130

(3) The frequency, amount and duration of the excess emis sions (including any bypass) were minimized to the maximum extent practicable during periods o f such emissions; and

(4) If the excess emissions resulted from a bypass of co ntrol equipment or a process, then the bypass was unavoidable to prevent loss of life, personal i njury, or severe property damage; and

(5) All possible Reasonable steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health; and

(6) All e E missions and/or parameter monitoring and systems, as well as control systems, were kept in operation if at all possible, consistent with s afety and good air pollution control practices; and

(7) All of the a A ctions in response to the excess emissions were document ed by properly signed, contemporaneous operating logs ; and

(8) At all times, t T he facility was operated in a manner consistent with goo d practices for minimizing emissions; and

(9) A written root cause analysis report has been prepared, the purpose of which is to determine, correct, and eliminate mitigate the primary causes of the malfunction and the excess e missions resulting from the malfunction event at issue. Facility personnel will determine the appropriate type of analysis required (may include but not limited to root cause analysis, failure mode and effect, fault tree, etc.) to identify the cause of the malfunction. The analysis report shall also specify, using best monitoring methods and engineering judgment , the amount of excess emissions that were the result of the malfunction.

(b) Notification. The owner or operator of the facili ty experiencing an exceedance of its emission limit(s) during a malfunction shall notify the Administ rator by telephone or facsimile (FAX) transmission as soon as possible, but no later than two business days after the initial occurrence of the malfuncti on, if it wishes to avail itself of an affirmative defense to civil penal ties for that malfunction. The owner or operator seeking to assert an affirmative de fense shall also submit a written report to the Administrator within 45 days of the initial occurrence of the exceedance of the standard in § 60.2105 to demonstrate, with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. The owner or operator may seek an extension of this deadline for up to 30 additional days by submitting a written request to the Administrator before the expiration of the 45 day period. Until a request for an extension has been approved by the Administrator, the owner or operato r is subject to the requirement to submit such report within 45 days of the initial occurrence o f the exceedance.

§ 60.2685 Affirmative Defense for Exceedance of an Emission Limit During Malfunction.

In response to an action to enforce the standards set forth in paragraph § 60.2670 you may assert an affirmative defense to a claim for civil penalties fo r exceedances of such standards that are caused by malfunction, as defined at § 60.2. Appropriate penalti es may be assessed, however, if you fail to meet your burden of proving all of the requirem ents in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief.131

(a) To establish the affirmative defense in any action to enforce such a limit, you must timely meet the notification requirements in paragraph (b) of t his section, and must prove by a preponderance of evidence that:

(1) The excess emissions:

(i) Were caused by a sudden, infrequent, and unavoidable failure o f air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner; and

(ii) Could not have been reasonably prevented through careful planning, proper design or better operation and maintenance practices; and

(iii) Did not stem from any activity or event that could have been reasonably foreseen and avoided, or planned for; and

(iv) Were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and

(2) Repairs were made as expeditiously as possible when th e applicable emission limitations were being exceeded. Off-shift and overtime labor were used, to the extent practicable to make these repairs; and

(3) The frequency, amount and duration of the excess emis sions (including any bypass) were minimized to the maximum extent practicable during periods o f such emissions; and

(4) If the excess emissions resulted from a bypass of co ntrol equipment or a process, then the bypass was unavoidable to prevent loss of life, personal i njury, or severe property damage; and

(5) All possible Reasonable steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health; and

(6) All e E missions and/or parameter monitoring and systems, as well as control systems, were kept in operation if at all possible, consistent with s afety and good air pollution control practices;

(7) All of the a A ctions in response to the excess emissions were document ed by properly signed, contemporaneous operating logs ;
(8) At all times, t T he facility was operated in a manner consistent with goo d practices for minimizing emissions; and

(9) A written root cause analysis report has been prepared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfun ction and the excess emissions resulting from the malfunction event at issue. Facility personne l will determine the appropriate type of analysis required (may include but not limited to root cause analysis, failur e mode and effect, fault tree, etc.) to identify the cause of the malfun ction. The analysis report shall also specify, using best monitoring methods and engineering judgment, the amount of excess emissions that were the result of the malfunction.132

(b) Notification. The owner or operator of the facility experiencing an exceedance of its emission limit(s) during a malfunction shall notify the Administ rator by telephone or facsimile (FAX) transmission as soon as possible, but no later than two business days after the initial occurrence of the malfunction, if it wishes to avail itself of an affirmative defense to civil penal ties f or that malfunction. The owner or operator seeking to assert an affirmative de fense shall also submit a written report to the Administrator within 45 days of the initial occurrence of the exceedance of the standard in § 60.2670 to demonstrate, with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. The owner or operator may seek an extension of this deadline for up to 30 additional days by submitting a written request to the Administrator before the expiration of the 45-day period. Until a request for an extension has been approved by the Administrator, the owner or operato r is subject to the requirement to submit such report within 45 days of the initial occurrence o f the exceedances.

Response: The EPA has revised some provisions of the affirmative defens e language since proposal and describes the basis for those changes in the preamble to the final rule. Overall, the changes have resulted in reducing the reporting requiremen ts and clarifying some elements of the affirmative defense regulatory language. We believe the l anguage is clear, not contradictory in nature, and provides an owner or operator a systematic and thorough approach for establishing an affirmative defense in the event of a malfunction that results in a violation of a standard. Many of the conditions were modeled after the conditio ns of the affirmative defense in the EPA’s SIP SSM policy, which several states have adopt ed into their SIPs. We do not have any indication that parties to enforcement proceedings have h ad any significant difficulties applying the terms of these SIP affirmative defenses. (See, e .g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Mai ntenance, and Malfunctions (Feb. 15, 1983)). Other conditions were modeled after a Federal Imple mentation promulgated by EPA. ((40 CFR 50.1312). The EPA’s view is that use of consistent t erms in establishing affirmative defense regulations and policies across various CAA progra ms will promote consistent implementation of those rules and policies.

The commenter suggests EPA remove references to "any" and "all" in the affirmative defense language and rely on the phrase "preponderance of evidence" n oting that preponderance does not mean all the time. In response, EPA believes that t he waiver of penalties is only appropriate in situations where, among other things, the source owner or operator is able to identify that all possible steps are taken to minimize the impact of excess emissions, all emissions and systems are operated consistent with safety and good air pollution c ontrol practices, all actions in response to excess emissions were documented, and the fac ility is operated in a manner consistent with good practices for minimizing emissions at all times. This language does not require that impossible actions be taken, in contrast to one concern expressed by the commenter, but rather, all possible actions. The EPA requires proof by a preponderance of evidence that these objectives are met. The EPA does not agree that requiring a preponderance of evidence means that the criteria for the defense are intended to apply less frequently, or only some of the time. The EPA agrees that the cause of malfunctions vary in scope and necessary corrective action. The EPA does not agree that a root cause analysi s is unnecessary for events that are simpler to address. The EPA's reference to root cause ana lysis is described simply as a process the purpose of which is to determine, correct, and eliminat e the primary cause of the malfunction event. The tool the company decides to use to determine th e root cause of the malfunction needs133

to be detailed enough to serve the purpose of accurately i dentifying the problem, the correction, and eliminate the primary causes of the malfunction and excess emissions. If the company wishes to avail itself of the affirmative defense, EPA expects the company to perform an analysis that meets this purpose. The analysis shall also specify , using best monitoring methods and engineering judgment, the amount of excess emissions that resulted due to the malfunction.

The term “root cause analysis” was used generically to imp ly an analysis of sufficient depth and complexity to indicate whether a malfunction did indeed cause a failure to meet a standard, provide sufficient information on the nature and causes of a malfunction to determine whether the source had a malfunction that met the definition o f a malfunction, and whether civil penalties are an appropriate sanction for the violation, if one o ccurred. The term “root cause analysis” is not defined in subparts A (the General Provisions of 111 or 112) . The EPA did not intend to prescribe a specific methodology, given that “root cause analysis” is not a defined term in the applicable subparts. Other analytical techniques that det ermine the root cause of a malfunction may be acceptable. . The EPA has evaluated the notification deadlines, and i s revising both the immediate notification and 45-day malfunction report. Ins tead, the final rule allows owners or operators seeking to assert an affirmative defense to demo nstrate, with all necessary supporting documentation (as was required under the proposed 45-day repor t), that it has met the affirmative defense criteria by submittal of the affirmative defense report in the first periodic compliance report, deviation report or excess emission report otherwis e required after the initial occurrence of the violation of the relevant standard. If such comp liance report, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second c ompliance report, deviation report or excess emission report due after the initial occurrence of the violation of the relevant standard. The EPA is forgoing the two day notification.

As an alternative to the signed operating logs, the EPA accepts electronically signed operating logs where the format and method of submission meets th e regulatory criteria and are compatible with the EPA and the delegated authorities’ electronic s ubmission systems. Any source submitting records electronically should exercise due dili gence to assure receipt by the EPA and the delegated authority.

The case law cited by commenter does not undermine the va lidity of EPA’s affirmative defense. The relevance of Essex Chem Corp. is questionable in light of subsequent ca se law and the 1977 amendments to the Clean Air Act‘s definition of emission standa rd requiring that such standards be continuous. Further, the NRDC case interprets provisions of the Clean Wa ter Act that are different in nature than provisions governing standards under section 129 of the Clean Ai r Act and the discussion of technology-based standards is dicta..

In any event, EPA‘s overall approach to malfunction events in this ru le, including the promulgation of an affirmative defense, is consistent with an approach cited favora bly in Essex Chemical in that EPA‘s approach today “impart a construction of "reasonableness" t o the standards as a whole and adopts a more flexible system of regulation than can be had by a sys tem devoid of "give." Portland Cement at 399. Essex criticized EPA regulations that contained no specific provisions to address malfunctions and EPA‘s assertion that malfunctions would be dea lt with by the informal exercise of discretion in the Agency‘s enforcement activities. EPA‘s approach to malfunctions goes further than reliance on the informal exercise of enforcement discretion in that it includes regulatory provisions establishing an affirmative defense to civil penalties for exce edances of emission limits that are134

caused by malfunctions. Those decisions did not require EPA to ext end its affirmative defense to injunctive relief.

By not extending the affirmative defense to injunctive relief, EPA ensures that even where there is a malfunction, the emission limit is still enforc eable through injunctive relief. In light of the Sierra Club v. EPA, 551 F.3d 1019 (DC Cir.2008) decision, EPA proposed that sources be in continuous compliance with emissions limits at all ti mes, even during startup, shutdown, and malfunction. 75 FR 31964. The affirmative defense provisions give EPA the flexibility to both ensure that its emission standards are “continuous” as re quired by 42 U.S.C. § 7602(k) by allowing for enforcement, and account for unplanned upsets and thus support the reasonableness of the standard as a whole. Further, injunctive relief m ay be necessary to improve facility operations and improve the environmental performance of th e facility, and these are viewed as critical steps in resolving a violation.

The EPA is not directly applying a SIP policy to the sect ion 129 program as the commenter indicates, but rather builds on a well articulated and lo ng implemented set of criteria presented in that policy. The EPA does not agree that not allowing an affirmative defense for injunctive relief is arbitrary and capricious. The EPA believes that cour ts as well as administrative proceedings are well equipped and often do evaluate and apply the type of criteria set forth in the affirmative defense. The EPA’s view is that use of consistent term s in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 10

Comment: If despite our objection EPA proceeds with affirmative defense concept, it should model its design after the State of New Jersey’s affi rmative defense provisions or adopt an approach consistent with Title V emergency condition a nd 40 CFR 60 NSPS malfunction provisions.

EPA’s affirmative defense provisions are unnecessarily b urdensome on operators. Eligibility criteria terms like “unpreventable” and “could not have been foreseen” are unreasonable and make malfunctions of a similar type or cause occurring ev en years later fodder for agency action or citizen suits.

EPA should model its affirmative defense provisions afte r the State of New Jersey system under N.J.S.A. 26:2C-19.2 through 26:2C-19.5. The New Jersey program off ers a reasonable approach and has been working for many years. New Jersey’s syste m relies on the concept of “due care” which is a more appropriate standard.

Table 2 compares key elements of New Jersey and proposed EPA affirmative defense provisions [see submittal for table provided by commenter].

Another alternative approach to the affirmative defense concept that is consistent with the Title V emergency condition provisions and current NSPS malfun ction definition would be:135

“To establish that an exceedance of an emission limit or operating standard was the result of a malfunction and therefore not a deviation you must timel y meet the notification requirements in paragraph (b) of this section and demonstrate that: (1) th e malfunction: (i) Was not caused by a sudden infrequent and unavoidable failure of air pollution con trol equipment or a process to operate in a normal or usual manner (ii) was not caused by operator error or careless operation (iii) was not caused by improperly designed equipment or la ck of preventative maintenance; and (2) corrective actions were taken immediately to minimiz e the duration and amount of excess emissions; and (3) all emission monitoring and control s ystems were kept in operation if possible in a manner consistent with safety requirements and good air pollution control practices; and (4) preventive measures were implemented to address the cause of the malfunction; and (5) the root cause analysis and actions in response to the excess em ission event were documented in signed contemporaneous log. (b)...” We believe the notification requirements should be streamlined as EPA has asked for comment on in the Boiler MACT rule. The initial 2-day notification should include telephone, facsimile or e-mail. Facsimiles are all but nonexistent in this day and email notifications are simple and direct, and can be tracked easily and archived for recordkeeping purposes. ERC recommends that the initial 2-day notificatio n should include a brief summary of the nature of the malfunction and corrective action ta ken. Often the initial notification will include enough information for the regulators to confirm a mal function meets the criteria. For example, a lightning strike on a utility interconnect tra nsformer that causes a temporary facility power outage would be easily discernible as a malfunction . Following 30 days a full written report is prepared which includes a root cause analysis. If the agency needs more information, a request could be sent to the facility to provide a full re port in 45 days or to include a full report in the next semiannual compliance report. Such streamlined re quirements for malfunction events would be consistent with several states’ requirements a nd would ensure ample regulatory oversight.

Response: The EPA does not agree that the affirmative defense pr ovisions are unnecessarily burdensome. These provisions only apply in the event of a violation and when the source wishes to raise the defense. The EPA does not agree that the affirmative defense criteria are unreasonable, difficult to demonstrate, and subject to vary ing interpretations. The EPA believes that courts and the Administrator are well equipped and o ften do evaluate and apply the type of criteria set forth is the affirmative defense. Many o f the affirmative defense conditions were modeled after the conditions of the affirmative defense in EPA’s SIP SSM policy, which several states have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shut down (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to enforcement proceedings have had any significant difficulties applying the terms of these SIP affirmativ e defenses. In addition, EPA’s view is that use of consistent terms in establishing affirmative defe nse regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.

The EPA does not agree that affirmative defense provision s will provide inappropriate fodder for future agency action or citizen suits due to future malfun ctions of a similar type. These provisions are optional and provide an opportunity to the so urce for penalties to be waived for bonafide malfunctions meeting the specified criteria. Similar malfunctions would be reduced in future years if the root cause analysis and corrective act ions of the affirmative defense provisions are properly implemented, thereby reducing the likelihood of similar violations in the future.136

The EPA appreciates the examples provided by the commenter of affirmative defense provisions from the State of New Jersey and the sample affirmat ive defense language. The EPA notes the absence of burden of proof provisions in both examples. If a violation has been established and a source wishes to assert the affirmative defense with re spect to penalties, EPA believes the source bears the burden of establishing that the elements of the affirmative defense have been met. This is appropriate because the source is in a better positio n to determine the facts required to establish the defense. See, e.g., Arizona Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1120, 1129-30 (10th Cir. 2009) (rejecting industry challenge to the EPA’s us e of an affirmative defense to address excess emissions during malfunction events). Regardi ng the examples for malfunction events and response criteria, the EPA proposed criteria are more specific than the Title V emergency provisions (see § 70.6(g) and provide a more detailed e xplanation as to what steps and practices are eligible or acceptable. The EPA's propo sed malfunction event provisions, which refer to the exceedence being unpreventable by better O&M and not the result of a recurring pattern from inadequate maintenance, are also mo re specific than the referenced "due care" equipment maintenance provision. The EPA believe s providing specific criteria assists in the evaluation of whether an affirmative defense applies

. As explained above, upon further consideration, EPA has removed the requirement to notify EPA within two days of the violation in order for the source to avail itself of an affirmat ive defense claim.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 16

Comment: Dow suggests the following revisions to the proposed regulat ory text and provides supporting rationale for these revisions below. Double under lined text is Dow’s suggested language, while strikethrough text is Dow’s requested deletion :
Suggested Revisions to §60.2120(a) of subpart CCCC and §60.2685(a) of subp art DDDD
(a)(2) Repairs were made as expeditiously as practical pos sible when the applicable emission limitations were being exceeded. Off shift and overtime labor were used, to the extent practical to make these repairs ; and

Dow Comment on (a)(2): Responding to malfunctions is ma ny times a case-by-case situation depending on the specifics of the malfunction and equipmen t to be repaired, and the language regarding off-shift and overtime labor is unnecessary and confusing. The use of overtime or offshift labor is only one consideration in how to address a malfunction event. If EPA wants to point out that the use of overtime or off-shift labor must be considered, then this language is best included in the preamble rather than the rule itself.

(a)(7) All of the actions in response to the excess em issions were documented by properly signed, contemporaneous oper ating logs ; and

Dow Comment on (a)(7): Electronic media to document acti ons in response to excess emissions is used in our plant that will be subject to this rule. I mposing a requirement to print and sign a137

record of such action is outdated if one can document the response to actions in an electronic format.

(a)(9) A written root cause analysis has been prepared, th e purpose of which is to determine, correct, and eliminate the primary causes of the malfun ction and the excess emissions resulting from the mal function event at issue. The analysis shall also specify, using best monitoring methods and engineering judgment, the amount of excess emissions that were the result of the malfunction.

Dow Comment on (a)(9): EPA should not require preparation and submission of a formal root cause analysis as this would have a chilling effect on int ernal communications regarding the root cause investigation and would detract from the goal of ensur ing a candid inquiry into the event. The cause of even smaller malfunction events is routin ely investigated within the industry, and no regulation is necessary to require this to happen.

(b) The owner or operator of the facility experiencin g an exceedance of its emission limit(s) during a malfunction shall notify the Administrator b y telephone or facsimile (FAX) transmission as soon as possible, but no later than 2 business days after the initial occurrence of the malfunction, if it wishes to avail itself of an affirmative defense to civil penalties for that malfunction. The owner or operator seeking to assert an affirmati ve defense must also submit a written report to the Administrator as part of the annual or more frequent report in §60.2765 and/or as part of the semi-annual deviation report of §60.2775 within 45 days of the initial occurrence of the exceedance of the standard in 60.2670 to demonstrate, with all necessary supporting documentation, that is has met the requirements set forth in paragraph (a) of this section. The owner or operator may seek an extension o f this deadline for up to 30 additional days by submitting a written request to the Administrator before the expiration of the applicable reporting 45 day

period. Until a request for an extension has been approv ed by the Administrator, the owner or operator is subject to the requirement to submit such report within the required reporting timeframe 45 days of the initial occurrence of the exceedances

. Dow Comment on (b): Title V Operating Permit reporting requirements include reporting of events in which emission limits have been exceeded as part of the semi-annual deviation report. Therefore, the Title V Operating Permit reporting progra m can be used to supply information on the affirmative defense criteria.

Dow requests these changes to both subpart CCCC and subpart D DDD.

Response: The commenter recommends deletion of the off shift and overtime labor provisions on the basis that this is only one consideration on how to address a malfunction event.

The regulation requires that to establish the affirmat ive defense the owner must prove by a preponderance of the evidence that repairs were made as e xpeditiously as possible when a violation occurs. In light of the above comment, we h ave re-evaluated the language concerning the use of off-shift and overtime labor to the extent practicable and believe that the language is not necessary. Although we believe that use of off-shift or overtime labor could be cited as evidence that the owner or operator expedited repairs, we do not believe this level of detail is necessary in the regulatory text. A source may make other demonstrations as to how they made repairs as expeditiously as practical in the report requir ed by Section 60.2120(b).138

While EPA is retaining the language that requires logs to be contemporaneous and properly signed, the EPA accepts electronically signed operating logs where the format and method of submission meets the regulatory criteria and are compatibl e with the EPA and the delegated authorities’ electronic submission systems. Any source s ubmitting records electronically should exercise due diligence to assure receipt by the EPA and the delegated authority.

The commenter recommends deletion of the root cause anal ysis, and indicates that it would have a chilling effect on internal communications. The EPA s ees no reason why requiring an analysis into the cause of a malfunction should chill internal communications. Indeed, EPA has specified in consent decrees that root cause analyses be conducted and we have no complaints from the defendants saying that this chills internal communications.

We agree with the comment on the notification period r elated to the affirmative defense language. We also agree with the comments concerning the r eporting requirements. The language has been changed in the final rule at paragraphs 60.2120 and 60.2685 to read as follows:

(b) Report. The owner or operator seeking to assert an affirmative defense shall submit a written report to the Administrator with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. This affirmative defense report shall be included in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation r eport or excess emission report due after the initial occurrence of the violation of the r elevant standard.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 9

Comment: As EPA knows, malfunctions will occur. Even the best run facilities will have circumstances where events happen that are out of their control. While CRWI believes that EPA must take into account the conditions that occur during ma lfunctions and establish limits that consider these circumstances, CRWI also agrees that so me form of enforcement discretion is needed for malfunctions. As such, we support EPA maintaining a regulatory provision for malfunctions. However, we are concerned that allowin g a facility to interpose an affirmative defense for violations caused by malfunctions implies tha t the facility is guilty until proven innocent and improperly shifts the burden to the facility. Therefore, CRWI suggests that EPA establish a rebuttable presumption (rather than affirmat ive defense) where it is presumed that any violation occurring during the malfunction was not the fac ility’s fault unless the Agency proves certain facts that are enumerated in the rules. This w ill allow the Agency to challenge the alleged deviation without compromising the legal rights of either party.
Response: The EPA agrees with the comment that supports maintain ing a regulatory provision for malfunctions. The EPA will continue to exercise i ts enforcement discretion. In the event that139

a source fails to comply with the applicable CAA secti on 129 standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source’s failure to comply with the CAA section 129 standard was, in fact, ‘‘sudden, infrequent, not reasonably preventable’’ and was not instead ‘‘caused in part by poor m aintenance or careless operation. ’’ 40 CFR 60.2 (definition of malfunction).

The EPA does not agree that the affirmative defense provis ion requires a facility to prove its innocence or with the implication that it does not re quire an enforcement authority to prove a violation of the CAA. The affirmative defense provisio ns do not change the burden of proof with respect to establishing a violation. The affirmativ e defense applies to penalties and thus is only utilized where a violation has been established. The b urden of proof remains with the plaintiff in an enforcement action. See, e.g., 40 C.F. R. 22.24. If a violation has been established and a source wishes to assert the affirmative defense wi th respect to penalties, the source does bear the burden of establishing that the elements of the affirmative defense have been met. This burden-shifting is appropriate because the source is in a be tter position to determine the facts required to establish the defense. See, e.g., Arizona Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1120, 1129-30 (10th Cir. 2009) (rejecting industry challenge to the EPA’ s use of an affirmative defense to address excess emissions during malfunction events).

Commenter Name: Michael L. Krancer Commenter Affiliation: Pennsylvania Department of Environmental Protection Document Control Number: EPA-HQ-OAR-2003-0119-2591-A1 Comment Excerpt Number: 5

Comment: The EPA has finalized affirmative defense provisions for malfunctions and as part of the reconsideration proposal is soliciting comments on the affirmative defense provisions that were included in the final rule. The March 21,2011, final rule defines affirmative defense as follows: "Affirmative defense means, in the context o f an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defen dant has the burden of proof, and the merits of which are independently and objectively eva luated in a judicial or administrative proceeding." Ultimately, to assert the affirmative defen se, the owner or operator of the source must prove by a preponderance of the evidence that excess e missions were caused by a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, process equipment or a process to operate in a normal or usual ma nner. The DEP believes that the burden of proof rests on the owners or operators of the sources to show that the emission limit exceedances are beyond their control and that they took every step necessary to prevent such occurrences from taking place. However, the criteria specified in section 60.2685 (a)(l)(ii) and section 60.2685 (a)(1)(iii) are too subjective and may preclude ow ners and operators from using the affirmative defense provisions.

Response: The EPA agrees with the commenter's support of the bur den of proof associated with the affirmative defense provisions. The EPA has reviewed th e criteria in sections 60.2685 (a)(l)(ii) and 60.2685 (a)(1)(iii). These provisions require that the excess emissions could not140

have been prevented through careful planning, proper design or better operation and maintenance, and did not stem from any activity or even t that could have been foreseen and avoided or planned for. This language is based on provisions i n the EPA’s SIP SSM policy, which several States have adopted into their SIPs. (See , e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Mai ntenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to enforce ment proceedings have had any significant difficulties applying the terms of these SIP affirmative defenses. The EPA does not believe the affirmative defense provisions are too subjec tive and while use of the affirmative defense provisions are at the option of the source who violates a standard, they are to the source's benefit. As such, EPA expects that sources will want to invoke this defense.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 6

Comment: If EPA were to continue with the affirmative defens e approach, however, we believe the currently-formulated version is excessively cumbers ome and unworkable.

The SSM Coalition Comments (pp.l4-22) address problems with the proposed language. We highlight just a few of these points and add some of our own :
a. The provision is set up at the outset as a mechanism to be used "in response to an action to enforce."' § 60.2685, introductory paragraph. Yet for a party to qualify for th e defense, the party must submit notifications to EPA almost immediately aft er a malfunction occurs, and submit voluminous detailed written reports to EPA within 45 days a fter the malfunction.

This is putting the cart before the horse in an unwield y manner. As EPA has enforcement discretion and many malfunctions may be brief and inconseque ntial, one might reasonably expect that many malfunctions may never become the subj ect of an enforcement action. It is extremely heavy handed, therefore, to require a facility to go through such immediate notice and burdensome reporting when it may have good reason to believ e that an enforcement action may never be brought.

This immediate notice and quick development of extensive w ritten reports appears to have its roots in the "'force majeure" provisions of EPA's enforceme nt consent decrees. In the context of such decrees, the requirements can make sense, as the defe ndant will be seeking EPA's approval to extend compliance deadlines and time will be of the e ssence. The statute of limitations for bringing an enforcement action, however, is generally fi ve years. These immediate notice and quick written report requirements simply make no sense i n the affirmative defense for malfunction context. We agree that EPA should take th e approach suggested in the SSM Coalition Comments (at p. 22) to require malfunction rep orts each six months. Then, if and when EPA might decide to initiate an enforcement action, the substantive elements of the defense could come into play.141

Response: The EPA has reconsidered the notification and reporti ng requirements, and is revising both the immediate notification and 45-day malfunc tion report. The final rule allows owners or operators seeking to assert an affirmative defe nse to demonstrate, with all necessary supporting documentation, that it has met the affirmative defense criteria by submittal of the affirmative defense report in the first periodic compl iance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second c ompliance, deviation report or excess emission report due after the initial occurrence of the violation of the relevant standard. With respect to the concern that an owner operator of an aff ected facility must prepare the material and submit it to the EPA prior to the onset of enforcement pr oceedings, the EPA reminds the commenter that under existing requirements, records and re ports of such events are currently required by existing rules. A list of reporting requiremen ts can be found in Table 4 to Subpart CCCC of Part 60—Summary of Reporting Requirements and Table 5 to Subpart DDDD of Part 60—Model Rule—Summary of Reporting Requirements. The applica bility of such recording and reporting requirements to owners and operators should be accounted for when evaluating to what degree submitting a report to later assert affirmati ve defense is additional to current requirements. Much of the information required to prepare to assert an affirmative defense is already required, and may be best practices in use today. The additional requirement to perform a root cause analysis may in fact not be additional for ma ny sources that use best practices to review and evaluate operational problems.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 7

Comment: The litany of factors that must all be proven witho ut exception could make the defense almost impossible to meet, even where it is cle ar that the malfunction occurred at a wellmaintained plant and the operator took all reasonable steps to avoid it and correct it expeditiously. We agree with the SSM Coalition Commen ts (at p. 18) that these numerous factors should be listed as relevant criteria to be cons idered and weighed on a case-by-case basis, but that they should not be independent mandates to qualify for the defense.

Response: The EPA disagrees that the affirmative defense is a lmost impossible to meet. Many of the conditions were modeled after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several States have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfun ctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup , Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication t hat parties to enforcement proceedings have had any significant difficulties applying t he terms of these SIP affirmative defenses. In addition, the EPA’s view is that use of co nsistent terms in establishing affirmative defense regulations and policies across various CAA progra ms will promote consistent implementation of those rules and policies and will fac ilitate implementation.142

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 8

Comment: A particularly egregious mandate is in 60.2685(a)(4), where a malfunction related to bypassing control equipment cannot qualify for the defense unless "the bypass was unavoidable to prevent loss of life, personal injury, or severe proper ty damage." There may be many types of situations where good air pollution control practice would dictate a temporary bypass of control equipment that would not rise to avoidance of killing, m aiming, or destruction, so the standard set by this language is extreme overkill.

Response: The EPA disagrees that the criteria used to describe th e substance of an affirmative defense are “extreme overkill.” The criteria articu late the gravity of the decision that owners/operators may face in choosing to emit hazardous and other air pollutants through a bypass. The commenter does not provide any examples how good air pollution control practices would dictate bypassing a control device. The affirmative de fense is only available if the use of the by-bass was unavoidable. Perhaps there are situation s where bypassing a control device is justified as a good air pollution control practice, such as when it is necessary to prevent some other more serious malfunction or break down of the co ntrol device. But such a rare case would be the object of a case-by-case determination, the subst ance of affirmative defense. Affirmative defense is a fact-specific inquiry. A source may have gr ounds to make such an argument, but the burden of demonstrating that the owner operator has fulf illed the criteria remains with the owner operator.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 9

Comment: The requirement to prepare and file a detailed "root cause " report is, as pointed out by the SSM Coalition (pp. 20-21) in many respects illogical and unworkable. If a malfunction is, as EPA defines it "unavoidable'' and "unforeseeable," in ma ny situations a facility may simply not be able to determine the "root cause" of a malfunction. If indeed the facility has taken all reasonable steps to respond and correct the situation, it would be inconsistent with the very concept of malfunction to deny the defense to a party who is unable to pinpoint the "root cause'' in a report.

Response: The EPA disagrees with the characterization that a root caus e report is infeasible because malfunctions are by their nature unavoidable and unfor eseeable. The root cause analysis is to be undertaken after the malfunction occurs. It is reasonable to request a source to explore the cause of a malfunction to determine if it can be cor rected to avoid future exceedances of the standard. The EPA acknowledges that despite a thorough analy sis the cause of some malfunctions may not be discovered. The wording used in the subject criterion states “ the purpose of which is to determine, correct, and eliminate th e primary causes of the malfunction ...” The criterion does not state that only root-cause an alyses that determine the cause may be143

submitted to assert affirmative defense. For example, c ertain fault analyses may only narrow the list of possible failures that led to the malfunction e vent, without being able to state with certainty which of a small number of failures caused the malfunction. Such a scenario would depend on the nature and configuration of the source.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 8

Comment: Alternatively, if EPA rejects such work practice stan dards and, instead, includes an affirmative defense for malfunctions, the terms of th e defense need to be changed. First, a source should not have to prove it meets every criterion to succe ssfully claim the affirmative defense. Rather, the different criteria should be factored in evaluating whether the excess emissions should be excused. The proposed criteria in the Reconside ration Rule for establishing an affirmative defense are poorly defined and do not reflect on whether a malfunction actually occurred. For example, the requirement that sources rel y on overtime workers to address the malfunction, 76 Fed. Reg. 80,491, objectively proves nothing. T he personnel onsite at the time of the malfunction event may not be the personnel with the expertise to resolve the malfunction, yet if they do not remain onsite as overtime personnel, under EPA's structure, that source fails to meet one of the indicia of a malfunction. Moreover, the affirmative defense criteria in some cases impose draconian obligations on malfunctioning sources without any regard for their costeffectiveness. For example, the source must show “[r] epairs were made as expeditiously as possible . . . excess emissions (including any bypass) were minimized to the maximum extent practicable . . . [a]ll possible steps were taken to minim ize the impact of the excess emissions on ambient air quality, the environment and human health.” 76 F ed. Reg. 80,461 (emphasis added). This could lead to the EPA or a court imposing extreme MACT regulations on sources during malfunctions. Overall, the provisions impose vague obliga tions on malfunctioning sources which will lead to inconsistent interpretations in different jurisdictions, and lack precision that is fundamental to an adequate defense in an enforcement proce eding.

Response: The EPA does not agree that the affirmative defense c riteria are poorly defined, impose draconian obligations, and have no regard for cost-eff ectiveness. Many of the conditions were modeled after EPA’s long-standing policies concerning t he application of enforcement discretion in cases of malfunctions, as well as the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several States have adopt ed into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emiss ions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions Durin g Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not h ave any indication that parties to enforcement proceedings have had any significant difficult ies applying the terms of these SIP affirmative defenses. Costs and impacts associated with complying with the emis sions standards have been considered by EPA consistent with section 129. Owners and operators are expected to make repairs that enable them to meet those standards. Further, the commenter is reminded that these affirmative defense provisions are only required fo r those malfunctions for which the source chooses to assert an affirmative defense.144

The EPA also disagrees with the statement that the cr iteria for establishing an affirmative defense do not reflect on whether a malfunction actually occurred. The EPA is revising the root cause analysis requirement to clarify that the purpose of the root cause analysis is to determine, correct, and eliminate the primary cause of the malfunc tion and that the root cause analysis itself does not necessarily require that the cause be determined, corrected or eliminated. However, in most cases, EPA believes that a properly conducted root c ause analysis will have such results. Such an analysis is beneficial in resolving or preventing vi olations and excess emissions whether the source seeks to assert the affirmative defense or not. A root cause analysis is one example of what constitutes good air pollution control practices to minimize emissions. The rule defines criteria for meeting affirmative defense at (section s 60.2120(a)(1)(i) - (iv) and 60.2685(a)(1)(i) - (iv)).

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 9

Comment: EPA should replace its proposed affirmative defense pr ovisions with emission standards that take malfunctions into account.

The Clean Air Act does not permit EPA to substitute the affirmative defense concept for standards required under the Clean Air Act. The affirmat ive defense concept is also without merit within the context of a technology-based standard like MACT. Malfunctions occur in the very best operated and maintained facilities. EPA’s affir mative defense concept presumes that the technology is perfect, and that any emissions occurrin g above the standards set using emission data obtained during normal operation are deviatio ns, regardless of the legitimacy of the cause. The reality is that malfunctions do occur f rom time to time in even the best designed and operated CISWI units and, like startup and shutdown, sh ould have appropriate standards that apply during these periods.

We understand the difficulty obtaining emission data for varying types of malfunction related events, but the response to lack of data should not be an imposition of a broad and burdensome regulatory system which expands the universe of “deviations” and all the public image issues, bad press, employee morale, regulatory penalties, and cit izen lawsuits that go with it. EPA has other options. It could set emission standards that define reasonable emission scenarios for combustion and air pollution control equipment failure, or it could lengthen time averages for CEMS-based limits. To assure that the standards deter fre quent and lasting events, EPA could establish standards based on a limited malfunction duratio n which requires the operator’s quick and effective response in order to avoid ceasing operations to fix the problem.

The EPA’s system opens the door to unnecessary enforceme nt actions and citizen suits. The affirmative defense is not certain, even when followe d to a tee, and still allows regulatory agencies to pursue enforcement action. And it offers no prot ection from citizen suits taken against a conforming facility just because EPA’s approach c reates unnecessary violations. We don’t think a system which inspires unnecessary lawsuits s erves the public good.145

Response: Contrary to commenters suggestion, EPA is not substitut ing the affirmative defense concept for standards required under the Clean Air Act. A s explained in the preamble, the EPA has determined that CAA section 129 does not require that e missions that occur during periods of malfunction be factored into development of CAA sect ion 129 standards. The EPA’s view is that an affirmative defense to civil penalties for excee dances of applicable emission standards during periods of malfunction appropriately balances competin g concerns. On the one hand, citizen enforcers are concerned about additional complic ations in their enforcement actions. On the other hand, industrial sources are concerned about bein g penalized for violations caused by malfunctions that could not have been prevented and were ot herwise appropriately handled (as reflected in the affirmative defense criteria). The E PA has utilized its section 301(a)(1) authority to issue regulations necessary to carry out the Act in a manner that appropriately balances these competing concerns.

In contrast to the comment that the affirmative defens e concept presumes that the technology is perfect, the EPA in setting forth the affirmative defe nse provision stated, "The EPA recognizes that even equipment that is properly designed and maintai ned can sometimes fail and that such failure can sometimes cause an exceedance of the relev ant emission standard. The EPA therefore added to the final rule an affirmative defense t o civil penalties for exceedances of emission limits that are caused by malfunctions." [76 FR 80461]. In this manner, EPA has sought to distinguish between those cases in which failures of t echnology are unavoidable and those in which failures could have been prevented through the exerci se of due care by owners and operators.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 15

Comment: ACC believes that EPA should either revise the numer ic emission limitations in the rule so that they are achievable during malfunction event s, or use its statutory authority to establish a work practice or management standard under §§ 111( h) and 302(k) for a malfunction event. There is no language in §§ 111 or 129 (or elsewhere in the CAA) that authorizes EPA to offer an owner/operator an “affirmative defense” to “c ivil penalties” to cure the fact that the Agency has finalized numeric emission standards that do not represent the emission levels actually “achieved” by the best performing sources “at all t imes”. Moreover, EPA’s offering of an affirmative defense does not bear a reasonable relati onship to the purpose of §§ 111 and 129 or their mandates that EPA establish standards that co nsider and address the reality of a potential malfunction of technology. If EPA chooses to reject the flexibility that Congress clearly intended the Agency to use when it is not feasible to prescrib e or enforce a numeric emission standard, it needs to explain why its affirmative defense approach is a better alternative than using the statutory authority provided in §§ 111(h) and 302(k) to establish a work or management practice for malfunction periods. In the final CISWI rule, EPA a sserts that “it is reasonable to interpret section 129 as not requiring EPA to account for malfunction s in setting performance standards.” 76 Fed. Reg. at 15737. EPA offers very little support for th at assertion, however, other than stating its own, often counterintuitive, conclusions. For example, EPA says it “has determined that malfunctions should not be viewed as a distinct o perating mode and, therefore, any146

emissions that occur at such times do not need to be fact ored into development of CAA section 129 standards, which, once promulgated, apply at all times.” Id. EPA provides no explanation for why it “believes” that malfunctions are not a disti nct operating mode. Moreover, EPA offers no explanation of its contradictory position that, ev en though it believes malfunctions are not a distinct operating mode, emissions during malfunctions sho uld not be used to characterize the source’s operating mode. On its face, asserting that ma lfunctions are part of normal operations, but then excluding emissions during malfunctions when determ ining emission limitations for normal operations, makes no sense. 8

EPA’s statement that “nothing in section 129 or in case law requires that EPA anticipate and account for the innumerable types of potential malfuncti on events in setting emission standards,” id., has it backwards. There is nothing in § 129 that allo ws EPA to ignore malfunctions and set emissions standards, which are supposed to represent the pe rformance actually achieved by the “best-performing” sources, based on a level of emissions that even these best-performing sources only achieve part of the time. EPA cannot rationally def end its articulated view that applying the concept of “best performing” is somehow inconsistent with a source experiencing a malfunction. See, 76 Fed. Reg. at 15737. This ignores that work practices, e.g., monitoring operating parameters to identify a malfunction and then stopping or cutting back the process accordingly, represent the best practices for minimizing emissions dur ing a malfunction. While the measures that represent these best practices will depend on facili ty-specific issues, such as process design, pollution control train, and other factors, they nonethe less represent the "the maximum degree of reduction in emissions of air pollutants ...achievable...thro ugh application of measures, processes, methods, systems or techniques" and reflect "t he average emissions limitations achieved in practice by the best performing 12 percent of units in the category" CAA § 129(a)(2).

[Footnote: 8 The Weyerhaeuser Co. v. Costle decision EPA cites in the March 21, 2011 preamble, 590 F. 2d 1011 (D.C. Cir. 1978), does not support EPA’s posit ion. See 76 Fed. Reg. at 15613. In that case, the court was discussing a “technology forcing” standard, rather than one, like MACT, that is to be based on what is already bei ng “achieved” or has been demonstrated to be achievable. Also, the SSM events that EPA acknowledge s are expected to occur at sources subject to the MACT standards for CISWI units are a far cr y from the “’uncontrollable acts of third parties,’ such as strikes, sabotage, operator intoxicat ion, or insanity” that the Court was considering in the passage quoted by EPA, see id. Industry is not requesting that the MACT standards provide relief from numerical emission limitat ions during those unusual types of events. Perhaps most importantly, the Weyerhaeuser deci sion came long before NRDC v. EPA, 859 F.2d 156 (D.C. Cir. 1988) which, as noted above, affirmed the need for an upset provision to address circumstances where compliance with effluent l imitations is impossible through no fault of the permittee, and which endorsed Marathon Oil.]

Response The EPA’s rationale for its approach to malfunctions i s discussed in the preambles to the proposed rule and this final action. As e xplained in those preambles, the EPA has determined that CAA section 129 does not require that e missions that occur during periods of malfunction be factored into development of CAA sect ion 129 standards. EPA disagrees that work practice standards are appropriate. Section 129 of the CAA does not authorize the EPA to promulgate work practice standards under section 129. Sect ion 129 requires numeric emission standards for the pollutants specified in Section 129(a)(4). Even if commenters were correct that147

section 111(h) authorizes work practice standards, setting work practice standards presents the same issues as setting numerical emission limits give n the varied nature of malfunctions.

The EPA included an affirmative defense in the rule in an attempt to balance a tension, inherent in many types of air regulation, to ensure adequate complia nce while simultaneously recognizing that despite the most diligent of efforts, emission st andards may be violated under circumstances beyond the control of the source. The EPA must establis h emission standards that “limit the quantity, rate, or concentration of emissions of air pol lutants on a continuous basis.” 42 U.S.C. § 7602(k)(defining “emission limitation” and “emission standard” ). See generally Sierra Club v. EPA , 551 F.3d 1019, 1021 (D.C. Cir. 2008) Thus, the EPA is required to ensure that section 112 emissions standards are continuous. The affirmative defe nse for malfunction events meets this requirement by ensuring that even where there is a malfu nction, the emission standard is still enforceable through injunctive relief. See generally

, Luminant Generation Co. v EPA , 675 F.3d. 917 (5 th Cir. 2012) (upholding EPA’s approval of affirmative defense provisions in a CAA State Implementation Plan). While “continuous” standards, on the one hand, are required, there is also case law indicating that in many situations it is appropr iate for the EPA to account for the practical realities of technology. For example, in Essex Chemical v. Ruckelshaus , 486 F.2d 427, 433 (D.C. Cir. 1973), the D.C. Circuit acknowledged that in setting standards under CAA section 111 “variant provisions” such as provisions allowing for upse ts during startup, shutdown and equipment malfunction “appear necessary to preserve the reasonableness of the standards as a whole and that the record does not support the ‘never to b e exceeded’ standard currently in force.” See also

, Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C.Cir. 1973) . Though intervening case law such as Sierra Club v. EPA and the CAA 1977 amendments call into question the relevance of these cases today, t hey support the EPA’s view that a system that incorporates some level of flexibility is reasona ble. The affirmative defense simply provides for a defense to civil penalties for violations that are proven to be beyond the control of the source. By incorporating an affirmative defense, the EPA has formalized its approach to malfunctions. In a Clean Water Act setting, the Nint h Circuit required this type of formalized approach when regulating “upsets beyond the control of the permit holder.” Marathon Oil Co. v. EPA , 564 F.2d 1253, 1272-73 (9 th Cir. 1977). See also , Mont. Sulphur & Chem. Co. v. United States EPA, 666 F.3d. 1174 (9 th Cir. 2012)(rejecting industry argument that reliance on th e affirmative defense was not adequate). But see, Weyerhaeuser Co. v. Costle , 590 F.2d 1011, 1057-58 (D.C. Cir. 1978) (holding that an informal approach is adequa te). The affirmative defense provisions give the EPA the flexibility to both ensure that its emission standards are “continuous” as required by 42 U.S.C. § 7602(k), and account for unplanned upsets and thus support the reasonableness of the standard as a whole.

The NRDC v EPA, 859 F. 2d 156, 207(D.C. Cir. 1988) case cited by the commenter is not on p oint in that it interprets provisions of the Clean Water Act that are different in nature than provisions governing standards under section 129 of the Clean Air Act. Further, the dis cussion of technologybased standards is dicta. Nevertheless, EPA‘s approach to malfunc tions is consistent with NRDC. NRDC does not require exemptions or less stringent standards fo r malfunctions. Further, the regulatory affirmative defense included in today‘s final rule is consistent with the case cited in the NRDC decision; Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272 (9th Cir. 1977). The court in Marathon Oil held that EPA must formalize its approach to upsets unde r the Clean Water Act. The affirmative defense does so. But see, Weyerhaeuser v Costle, 590 F.2d 1011, 1057-58 (D .C. Cir. 1978) (holding that an informal approach is adequate).148

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 10

Comment: In the March 21, 2011 final rule, EPA for the first time stated that CISWI units would be required to comply with emission limitations der ived based on normal operations, even during periods of startup, shutdown, and malfunction. See, 40 C.F.R. §§ 60.2105, 2670, 76 Fed. Reg. at 15711. EPA asserts that, because of the way CISWI units are operated and the averaging times that apply to the CISWI standards, CISWI units that can meet the emission limitations in the final CISWI rule during normal operations can also me et those emission limitations during startups and shutdowns. Id. at 15738. With respect to malfunc tions, however, EPA recognizes that some exceedances of the emission limitations esta blished based on normal operations will almost certainly occur due to unavoidable malfunctions of incineration or pollution control equipment. Id. at 15737-38.

Instead of retaining the exemption for malfunction event s that EPA previously applied to CISWI units in the 2000 CISWI rule, EPA reversed itself and state d that the numeric emission standards apply during malfunctions and included in the regulations an “a ffirmative defense” that may be available to avoid “civil penalties” for exceedances ass ociated with malfunctions. The affirmative defense provisions appear in §§ 63.2120 and 60.2685 of the final rule and require an owner/operator of a CISWI unit to prove by a preponderance o f evidence that it has met each and every requirement in order to avail itself of the affi rmative defense to a claim for civil penalties. For the reasons discussed below, ACC believes that EP A should abandon the approach it is taking to addressing malfunctions, that is, offering an af firmative defense, and instead should use its statutory authority under §§ 111(h) and 302(k) to establish a work practice or operational standard that would reduce emissions during a malfunction eve nt.
Response: The EPA’s rationale for its approach to malfunctions is discussed in the preambles to the proposed rule and this final action. As exp lained in those preambles, the EPA has determined that CAA section 129 does not require that e missions that occur during periods of malfunction be factored into development of CAA sect ion 129 standards. EPA disagrees that work practice standards are appropriate. Section 129 o f the CAA does not authorize the EPA to promulgate work practice standards under section 129. Section 129 requires numeric emission standards for the pollutants specified in Sectio n 129(a)(4). Even if commenters were correct that section 111(h) authorizes work practice sta ndards, setting work practice standards presents the same issues as setting numerical emission limits given the varied nature of malfunctions.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM)149

Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1 Comment Excerpt Number: 7

Comment: As the NAM has previously commented, the EPA should es tablish work practices to address emissions during periods of malfunction. Given that the EPA’s floor data does not consider malfunctions and that the statute requires that the MACT standard be "achievable," The EPA should set work practice requirements to address per iods of malfunctions as well. CAA Section 112(h) allows the EPA to set work practice standa rds for situations where "it is not feasible in the judgment of the Administrator to prescri be or enforce an emission standard . . . ." Malfunctions fit with the situations described in the defi nition of "not feasible to prescribe or enforce an emission standard" as any situation where "th e application of measurement methodology to a particular class of sources is not pra cticable due to technological and economic limitations." Emission testing for malfunctions would be near impossible to conduct given the sporadic and unpredictable nature of the events. Section 112( h) work practice standards, therefore, are well-suited to address malfunction perio ds and the complexities and challenges surrounding collecting data and establishing numerical standar ds for those events.

The NAM disagrees with the EPA’s proposal to provide an a ffirmative defense for periods of malfunction. As has been discussed in various comment s in this rulemaking, as well as others where the EPA has proposed a similar affirmative defen se, the proposed affirmative defense is not a permissible substitute for setting emissions standar ds for periods of malfunction, and it is unreasonable and impracticable.

Response: The EPA’s rationale for its approach to malfunctions is discussed in the preambles to the proposed rule and this final action As ex plained in those preambles, the EPA has determined that CAA section 129 does not require that e missions that occur during periods of malfunction be factored into development of CAA sect ion 129 standards. EPA disagrees that work practice standards are appropriate. Section 129 of the CAA does not authorize the EPA to promulgate work practice standards for the pollutants spec ified in Section 129(a)(4). . Section 112(h) does not apply to section 129 standards. Even if work prac tice standards were authorized under section 129, setting work practice standards presents t he same issues as setting numerical emission limits given the varied nature of malfunctions

.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 48

Comment: EPA’s proposal to provide an affirmative defense for pe riods of malfunction is without merit. EPA must instead establish work practices t o address emissions during periods of malfunction. Comments recently submitted by the “SSM C oalition” on EPA’s proposed “Risk and Technology Review” rule for Mineral Wool and Wool F iberglass manufacturing explain in detail that: (1) EPA must take malfunctions into accoun ts when setting §112 emissions standards; (2) the proposed affirmative defense is not a permissible substitute for setting emissions standards for periods of malfunction; and (3) th e proposed affirmative defense in150

unreasonable and impracticable. 20 Several of the members of the coalition submitting thi s letter also are members of the SSM Coalition. We incorporate these comments of the SSM Coalition by reference. For these reasons, EPA should set aside the proposed affirmative defense for periods of malfunction and, instead, set a work practice standard for such periods.

[Footnote: 20 See Letter to EPA Docket Center from the American Chemistr y Council, et al.

, Comments on Proposed National Emission Standards for H azardous Air Pollutant Emissions: Mineral Wool Production and Wool Fiberglass Manufacturing (January 24, 2012).]

Response:
As a preliminary matter, we note that it appears that th e commenter has submitted comments to this CISWI rule that were also submitted to the mineral wool and wool fiberglass rules, and references standards developed for the NESHAP applicable to major sources in those categories. Section 112 standards are not being promulgate d in this rulemaking.

But to answer the comment on the premise that the c ommenter advocates work practices, the EPA’s rationale for its approach to malf unctions is discussed in the preambles to the proposed rule and this final action. As explained in th ose preambles, the EPA has determined that CAA section 112 does not require that emissions that occur during periods of malfunction be factored into development of CAA section 129 standards. Section 129 of the CAA does not authorize the EPA to promulgate work practice standards for the pollutants specified in Section 129(a)(4). Even if work practice standards were authorized un der section 129, setting work practice standards presents the same issues as setting nu merical emission limits given the varied nature of malfunctions.

EPA disagrees that work practice standards are appropria te. Section 129 of the CAA does not authorize the EPA to promulgate work practice standards unde r section 129. Section 129 requires numeric emission standards for the pollutants s pecified in Section 129(a)(4). Even if work practice standards were appropriate in section 129 ru les, setting work practice standards presents the same issues as setting numerical emission limits given the varied nature of malfunctions

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 9

Comment: Although EPA acknowledges that malfunctions occur in we ll operated and maintained facilities equipped with the best technologies , EPA’s affirmative defense concept essentially presumes that malfunctions never occur. U nder the rule as written, any emissions occurring above the limits set using emission data obtained exclusively during normal operation (emphasis added) are considered deviations, regardless of t he underlying root cause of the emissions. The reality is that malfunctions infrequent ly occur even on the best designed, maintained and operated units. Therefore, a facility shoul d not be presumed guilty of having a deviation in the first place if it has experienced a leg itimate malfunction. EPA admits it does not have emissions data for startup and shutdown periods suffici ent to establish numeric emission151

limits, and due to this dearth of data has sensibly adopte d a work practice standard for these periods. Malfunction periods are no different and should be treated similarly. Since EPA also lacks emissions data for malfunction periods, and would f ind it difficult to obtain sufficient emission data for all the varying types of malfunction

‐ related events, EPA should adopt work practice standards for malfunction periods. Malfunction wo rk practice standards could include limitations on the duration to ensure quick and effective corrective action is taken, and if the malfunction cannot be quickly resolved the unit would be shut down for repair. Facilities should still be required to submit a notification of a malfunc tion excess emission event with the underlying root cause analysis. If EPA or the administering age ncy decides the excess emission event was not a malfunction, it would then be reported as a deviation of the limit and enforcement action, including imposition of penalties, would still apply consistent with the deviation definition in 63.7575. EPA could also choose to take enf orcement action should a facility report “excessive” malfunction events. Finally , the sheer number of eligibility criteria that must be proven by a “preponderance of evidence and the vague terms such as “unpreventable,” “could not have been foreseen,” and “a ll possible steps were taken” all but guarantees that no malfunction event will ever meet the criteria. WM suggests modifying the affirmative defense eligibility criteria in 40 CFR § 60.2685(a ) as follows to make it more reasonable and eliminate such vague language: “To establish t hat an exceedance of an emission limit or operating standard was the result of a malfunct ion and therefore not a deviation you must timely meet the notification requirements in paragraph ( b) of this section and demonstrate that: (1) the malfunction: (i) Was caused by a sudden infrequent a nd unavoidable failure of air pollution control equipment or a process to operate in a n ormal or usual manner (ii) was not caused by operator error or careless operation (iii) was n ot the result of inadequate design, maintenance or operating procedures; and (2) corrective ac tions were taken immediately to minimize the duration and amount of excess emissions; a nd (3) all emission monitoring and control systems were kept in operation if possible in a manner consistent with safety requirements and good air pollution control practices; and ( 4) preventive measure were implemented to address the root cause of the malfunction; and (5) the root cause analysis and actions in response to the excess emission event were documented in signed contemporaneous log. (b)...” We also believe the notification requiremen ts should be streamlined. The initial 2

‐ day notification should include telephone, facsimile or e
‐ mail. Facsimiles are all but nonexistent in this day and email notifications are simp le and direct, and can be tracked easily and archived for recordkeeping purposes. WM recommends that the initial 2

‐ day notification should include a brief summary of the nature of the malf unction, corrective action taken and root cause analysis. Often the initial notification will in clude enough information for the regulators to confirm a malfunction meets the criteria. For exampl e, a lightning strike on a utility interconnect transformer that causes a temporary facility power out age would be easily discernible as a malfunction. If the agency needed more information, a request could sent to the facility to provide a full report in 45 days or to include a full report in the next semiannual compliance report. Such streamlined requirements for malfunction event s would be consistent with several states’ requirements and would ensure ample regulatory ov ersight.

Response: As a preliminary matter, we note that it appears that the commenter has submitted comments to this CISWI rule that were not developed for t his rule, instead likely being developed for the NESHAP applicable to major source boilers . We base this conclusion on the fact that the commenter cites to a 40 CFR part 63 regula tory provision and that the commenter incorrectly states that EPA established a work practice standard for periods of startup and152

shutdown in the final CISWI rule. That is not correct because EPA is required pursuant to CAA section 129(a)(4) to establish numerical emission standar ds for the nine section 129 pollutants. EPA did establish work practice standards for startup and sh utdown periods in the major source boilers NESHAP.

But to answer the comment on the premise that the comm enter advocates work practices, the EPA’s rationale for its approach to malfunctions i s discussed in the preambles to the proposed rule and this final action. As explained in those pr eambles, the EPA has determined that CAA section 112 does not require that emissions that occur during periods of malfunction be factored into development of CAA section 129 standards. Section 129 of the CAA does not authorize the EPA to promulgate work practice standards for the pollutants specified in Section 129(a)(4). Even if work practice standards were authorized un der section 129, setting work practice standards presents the same issues as setting nu merical emission limits given the varied nature of malfunctions.

EPA does not agree that the affirmative defense criteri a are impossible to meet. EPA believes that courts are well equipped and often do evaluate and appl y the type of criteria set forth in the affirmative defense. Many of the conditions were model ed after EPA’s long-standing policies concerning the application of enforcement discretion in c ases of malfunctions, as well as the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several States have adopted into their SIPs. (See, e.g., State Implementati on Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malf unctions (Feb. 15, 1983)). We do not have any indication that parties to enforcement proc eedings have had any significant difficulties applying the terms of these SIP affirmativ e defenses. In addition, the EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementa tion of those rules and policies.

EPA appreciates the effort of the commenter to provide alternative language for the affirmative defense criteria. However, the language removes specific criteria that are useful in determining whether an event meets the definition of malfunction and was properly corrected. EPA has retained the criteria in 60.2120(a)(1)-(9) and 60.2685(a)(1)-(9).

We agree that the notification requirements should be streamlined, and after consideration of the notification and reporting requirements, EPA is revising b oth the immediate notification and 45- day malfunction report. Instead, the final rule allows owners or operators seeking to assert an affirmative defense to demonstrate, with all necessary supporting documentation, that it has met the affirmative defense criteria by submittal of the aff irmative defense report in the first periodic compliance, deviation report or excess emission report ot herwise required after the initial occurrence of the violation of the relevant standard (w hich may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, th e affirmative defense report may be included in the second compliance, deviation report or exce ss emission report due after the initial occurrence of the violation of the relevant standard. E PA has removed the two day notifications.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC)153

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 17

Comment: The text for the affirmative defense at §60.2120(a) of sub part CCCC and §60.2685(a) of subpart DDDD concerns exceedances of emission s tandards that are caused by malfunctions as defined by §60.2. That definition does not incl ude monitoring system malfunctions within its scope. Malfunction means any sudden , infrequent, and not reasonably preventable failure of air pollution control equipment, pr ocess equipment, or a process to operate in a normal or usual manner. Failures that are caused in part by poor maintenance or careless operation are not malfunctions. [Text at §60.2] At §60.2170(a) of subpart CCCC and §60.2735(a) of subpart DDDD, it seems that EPA has defined a m onitoring system malfunction separately from the general provisions definition of malf unction at §60.2. A monitoring system malfunction is any sudden, infrequent, not reasonably prevent able failure of the monitoring system to provide valid data. Monitoring system failures that are cause in part by poor maintenance or careless operation are not malfunctio ns. 76 Fed. Reg. 80452 at 80498 and 80519 (Dec, 23, 2011) [§60.2170(a) and §60.2735(a)]

In addition at §60.2170(c) of subpart CCCC and §60.2735(c) of subpar t DDDD, ACC sees that failure to collect required data is a deviation from the mo nitoring requirements, but does not include periods of monitoring system malfunctions or out-of -control periods, repairs associated with monitoring system malfunctions or out-of-control periods, or required monitoring system QA/QC activities. Except for periods of monitoring system malfunctions or out-of-control periods, repairs associated with monitoring system malfun ctions or out-of-control periods, and required monitoring system quality assurance or quality cont rol activities including, as applicable, calibration checks and required zero and span a djustments, failure to collect required data is a deviation of the monitoring requirements. Id.[§60. 2170(c) and §60.2735(c)]

Both §60.2120(a) of subpart CCCC and §60.2685(a) of subpart DDDD provide a way of asserting an affirmative defense for exceedances of stan dards caused by malfunctions as defined in §60.2; however, since this definition at §60.2 does not i nclude a reference to monitoring equipment, it seems that a malfunction of monitoring e quipment is not considered to be an exceedance of a standard and would not necessarily trigger the potential use of the affirmative defense. As a result, it seems that malfunctions of the continuous monitoring system would not be viewed with the same level of agency concern as mal functions that caused exceedances of the emission standards. If this understanding is correct, it would alleviate some concern over using the affirmative defense provisions for very minor types of events. ACC would like clarification if this understanding is correct. In addition as it relat es to reporting, ACC believes that the language of §60.2210(m) of subpart CCCC and §60.2770(m) of subpart DDD D contradict the language of §60.2170(c) of subpart CCCC and §60.2735(c) of subpart DDDD . The text of §60.2210(m) and §60.2770(m) require reporting of out-of-control periods for monitoring systems as if they are deviations, while the text of §60.2170(c) and §60.2735( c) says that these periods are not deviations. ACC requests revisions to §60.2210(m) and §60. 2770(m) so they do not contradict §60.2170(c) and §60.2735(c). In summary, ACC thinks EPA’s intent is to classify certain specified types of monitoring system events diff erently from other types of events such that these specified types of monitoring systems events w ould not be deviations and would not automatically be equated to excess emissions where the as sertion of an affirmative defense154

would be needed, and ACC hopes that our understanding is actuall y EPA’s intent. However, some of the Proposed Rule language that we have cited a bove does not make that clear.

Response: Malfunctions of monitoring equipment are specifically defined in §60.2170(a) of subpart CCCC and §60.2735(a) of subpart DDDD. Data collected duri ng these periods may not be used in calculations used to report emissions or opera ting levels [§60.2170(b) and §60.2735(b)]. Failure to collect data during monitoring malfuncti ons as defined is not a deviation of the monitoring requirements [§60.2170(c) and §60.2735(c)].

Regarding the commenter's concern that the language in §60. 2210(m) of subpart CCCC and §60.2770(m) of subpart DDDD contradict the language of §60.2170(c) of subpart CCCC and §60.2735(c) of subpart DDDD, we disagree. Paragraph (4) of §60.2210(m) of subpart CCCC and §60.2770(m) of subpart DDDD ensures that sources indicate w hether the period of deviation occurred during of an out-of-control monitoring or monitor ing malfunction event, or otherwise (i.e., during another period such as a control device malf unction). The provisions in §60.2170(c) of subpart CCCC and §60.2735(c) of subpart DDDD make it clear that out of control and monitoring malfunction periods are not considered deviatio ns of the monitoring requirements. However, these periods must be documented under §60.2210(m) of sub part CCCC and §60.2770(m) of subpart DDDD.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 26

Comment: 60.2685 – The affirmative defense provisions specified do not a ppear to acknowledge the existence of bypass systems in some cemen t kilns. As described earlier in these comments, the alkali bypass system used by some cement ki lns is designed to allow the production of cement with low(er) alkali content (which is necessary to achieve certain product quality specifications. These systems allow removal of alkali material from the process and are not used to bypass pollution control devices or protect equipme nt, but rather are an integral and necessary part of the cement manufacturing process. Alk ali bypass systems are designed to be used for most, if not all, operating scenarios. Includi ng the phrase “If the excess emissions resulted from a bypass of control equipment or a process , then the bypass was unavoidable to prevent loss of life, personal injury, or severe proper ty damage;” may make it impossible for a kiln with an alkali bypass to meet the affirmative de fense criteria. This definition should be altered or expanded to include consideration of processes such as waste-burning kilns that include process bypass systems that are necessary to produce the desired specification product.

Response: We are clarifying here that the definition of “bypass s tack” in today’s final rule does not have the same meaning as an “alkali bypass” used by some waste-burning kilns that manufacture Portland cement. Additionally, we do want to clarify that an alkali bypass stack that vents to the atmosphere is considered a CISWI unit vent a nd, as specified in 60.2105(a) and 60.2760(a), must meet the emission limitations for the CIS WI unit. Therefore, normal operation of an alkali bypass system does not result in a violati on. Where the alkali bypass allowed emissions that caused a failure to meet a standard, the source would need to show why the alkali155

bypass continued to be operated, and if operation of the alka li bypass was necessary for the safety and good air pollution control practices enumerat ed in 60.2120(a)(4).

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA-HQ-OAR-2003-0119-2630-A2 Comment Excerpt Number: 3

Comment: Affirmative defense for malfunctions . EPA should review the exposure estimates to recognize that significant air emissions are likely t o result from malfunctioning equipment as well. Although some malfunctions may be unpredictable an d sudden, EPA must account for the harmful emissions that occur during malfunctions when de termining whether or not a facility is in compliance with emissions standards. EPA needs to ackn owledge that malfunctions are likely events which must be factored into the exposure estimate s. EPA’s language implies that these are rare events, but such is not the case, as recent repor ts have shown (EPA, 2011d). The historical industry evidence should provide more than adequate informatio n on likely malfunctions and
exposures.
Unfortunately, the proposed “affirmative defense” option creates a loophole that will not likely reduce the risk of malfunctions, providing facilities with a way to avoid penalties that could provide incentives to reduce malfunctions. The EPA needs to close this loophole as standards need to limit emissions during all phases of operation, in cluding when equipment fails to work properly. Assessing compliance with emissions standards b ased on the “good faith efforts” of boiler and incinerator operators to minimize emissions durin g malfunctions are not a sufficient safeguard against harmful air pollution.

Response: The EPA does anticipate that the changes promulgated for CISWI sources may result in sources gathering important data on the nature and scope of emissions during malfunctions. The MACT standards promulgated in the final CISWI rule ar e technology based standards. EPA will considers residual risk for CISWI units consistent wi th CAA section 129(h)(3).

The EPA disagrees that the standards promulgated rely in any way on good faith efforts to comply. The general duty to minimize emissions and the pr ovisions of affirmative defense require considerable effort to document and systematize t he efforts of owners and operators to comply with the standards, and the general duty to minimi ze emissions.

The EPA does not believe that the affirmative defense pr ovisions create a loophole that allows sources to avoid penalties while not reducing the risk of m alfunctions. First, being able to enforce the standard at all times increases the likeliho od that sources will pay closer attention to operations and reduce emissions. Second, penalties are onl y avoided for situations that meet, by a preponderance of evidence, all of the criteria that EP A has established for the affirmative defense. Additionally, injunctive relief is still avail able to address violations.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council156

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 21

Comment: EPA seeks comment on retention of the malfunction affirmative defense outlined in the final rule. Sierra Club commented on this issue ext ensively in the Petition. Petition, Ex. 2, at 10–12. That discussion is hereby incorporated by reference in full.

Response:

The EPA’s view is that the affirmative defense is cons istent with CAA sections 113(e) and 304. Section 304 gives district courts jurisdiction “to apply appropriate civil penalties.” Section 113(e)(1) identifies the factors that the Administrator or a court shall take into consideration in determining the amount of a penalty to be assessed, only after it has been determined that a penalty is appropriate. The affirmative defense regulator y provision is not relevant to the amount of any penalty to be assessed under section 113(e) because if a court determines that the affirmative defense elements have been established, the n a penalty is not appropriate, and penalty assessment pursuant to the section 113(e)(1) factors does not occur.

In exercising its authority under section 112 to establish em ission standards (at a level that meets the stringency requirements of section 112), the EPA nec essarily defines conduct that constitutes a violation. The EPA’s view is that the affirmative de fense is part of the emission standard and defines two categories of violation. If there is a violat ion of the emission standard and the source demonstrates that all the elements of the affirmative defense are met, only injunctive relief is available. All other violations of the emission standar d are subject to injunctive relief and penalties. The CAA does not require that all violations be treated equally. Further, a citizen suit claim under section 304 allows citizens to commence a civi l action against any person alleged to be in violation of “an emission standard or limitation under this chapter.” The CAA, however, allows the EPA to establish such “enforceable emission limitations.” Thus, the citizen suit provision clearly contemplates enforcement of the stan dards that are defined by the EPA. As a result, where the EPA defines its emissions limitatio ns such that penalties are not available if the criteria of the affirmative defense have been met as th e EPA did here, penalties are not “appropriate” under section 304.

The EPA’s view is that an affirmative defense to civil penalties for exceedances of applicable emission standards during periods of malfunction appropriate ly balances competing concerns. On the one hand, citizen enforcers are concerned about additional complications in their enforcement actions. On the other hand, industrial sourc es are concerned about being penalized for violations caused by malfunctions they could not have prevented and were otherwise appropriately handled (as reflected in the affirmative defense criteria). The EPA has used its section 301(a)(1) authority to issue regulations necessar y to carry out the Act in a manner that appropriately balances these competing concerns.

The Sierra Club petition specifically challenged the EPA on affirmative defense on the basis that the EPA was limiting the authority of the courts to assi gn civil penalties to a violation of the CAA, if the respondent in a case asserted affirmative defense. The EPA’s view is that the157

affirmative defense is consistent with CAA sections 113( e) and 304. Section 304 gives district courts jurisdiction “to apply appropriate civil penalties.” Section 113(e)(1) identifies the factors that the Administrator or a court shall take into cons ideration in determining the amount of a penalty to be assessed, only after it has been determined that a penalty is appropriate. The affirmative defense regulatory provision is not relevant to the amount of any penalty to be assessed under section 113(e), because if a court determine s that the affirmative defense elements have been established, then a penalty is not appropri ate, and penalty assessment pursuant to the section 113(e)(1) factors does not occur.

Comment : The commenter opines that Congress plainly intended ci tizens to be able to enforce emission standards under the CAA using the full range of c ivil enforcement mechanisms available to the government, and, in the HAP context, subj ect only to the limitation that government not be “diligently prosecuting” its own civil enf orcement action, CAA §304(b)(1)(B), 42 U.S.C. § 7604(b)(1)(B). Specifically, the comm enter states that the affirmative defense that the EPA proposes to allow in case of mal functions goes directly against congressional intent in two ways. First, according to th e commenter, Congress expressed a clear intent as to how judges should determine the size of civi l penalties whenever they are sought and thus Congress flatly barred the EPA from limiting when ci vil penalties can be assessed. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842-43 (1984). The commenter believes that the EPA acts outside of its de legated authority to limit civil penalties available in citizen suits or its own enforcement act ions in its proposal. Second, the commenter asserts that the proposal will impermissibly chill cit izen participation, and the ability to win an effective, deterrent remedy, in CAA enforcement actio ns.

The commenter argues that the CAA grants the EPA minim al discretion that only applies to administrative penalties, allowing the EPA to “compromis e, modify, or remit, with or without conditions, any administrative penalty which may be im posed under [subsection 113(d)].” 42 U.S.C. § 7413(d)(2)(B) (emphasis added). However, according t o the commenter, there is no similar grant of authority to the EPA to compromise, mod ify or limit civil penalties that a court may impose under section 113(e) or section 304. Section 304(a) , 42 U.S.C. § 7604(a), grants courts the sole authority “to apply any appropriate civil pe nalties” in citizen suits. According to the commenter, the explicit reference to the EPA’s a bility to modify penalties in one subsection and its absence in the other subsection of the same pro vision can only be understood as an intentional decision by Congress that the EPA may not co ntravene by rule.

The commenter (4240) believes that an affirmative defense would likely be used on a routine basis by polluters seeking to avoid penalties, just as the malfunction exemption was. Thus, the commenter believes that the affirmative defense also r uns counter to two clearly expressed intentions of Congress: (1) the burden it places on cit izens makes it less likely that they will enforce the CAA, see, e.g., Pennsylvania v. Del. Valley Citizens’ Council for Clean Air , 478 U.S. 546, 560 (1986); and (2) several of the factors at issue in the affirmative defense undercut Congress’s intent that citizen suit enforcement shoul d avoid re-delving into “technological or other considerations.” NRDC v. Train , 510 F.2d 692, 724 (D.C. Cir. 1974). According to the commenter, both result from the technical burden the EPA imposes on citizens with the affirmative defense, and both render the defense impermi ssible.158

The commenter argues that the EPA has failed to demonstr ate any need or rational justification for an affirmative defense to penalties to be written in to the regulations and cause the harm that will result. According to the commenter, the EPA has d iscretion to decide what cases to prosecute, to consider settlements, and to request civil penalties in a case-by-case manner, as long as it acts consistent with the CAA to protect cl ean air as its top priority, see 42 U.S.C. § 7401.

The commenter states that, if the EPA had the authori ty to promulgate any type of affirmative defense penalties for malfunctions, the statute requires that they also promulgate the following:

• A specific amount of compensatory penalties must apply t o each reported malfunction (consistent with the CAA).

• The EPA must modify the regulations so that the affirm ative defense cannot be used by a specific facility or company more than once within a set period of time, such as 10 years.

• The EPA must promulgate specific public reporting and notific ation requirements for malfunctions, or any emission exceedance that occurs o f which an operator is aware.

Response: The EPA’s view is that the affirmative defense is co nsistent with CAA sections 113(e) and 304. Section 304 gives district court’s jurisdiction “ to apply appropriate civil penalties.” Section 113(e)(1) identifies the factors that the Administrator or a court shall take into consideration in determining the amount of a penalty to b e assessed only after it has been determined that a penalty is appropriate. The affirmative defense regulatory provision is not relevant to the amount of any penalty to be assessed unde r section 113(e) because if a court determines that the affirmative defense elements have be en established, then a penalty is not appropriate and penalty assessment pursuant to the section 113(e)(1) factors does not occur.

In exercising its authority under section 112 to establish em ission standards (at a level that meets the stringency requirements of section 112), the EPA nec essarily defines conduct that constitutes a violation. The EPA’s view is that the affirmative de fense is part of the emission standard and defines two categories of violation. If there is a violat ion of the emission standard and the source demonstrates that all the elements of the affirmative defense are met, only injunctive relief is available. All other violations of the emission standar d are subject to injunctive relief and penalties. The CAA does not require that all violations be treated equally. Further, a citizen suit claim under section 304 allows citizens to commence a civi l action against any person alleged to be in violation of “an emission standard or limitation under this chapter.” The CAA, however, allows the EPA to establish such “enforceable emission limitations.” Thus, the citizen suit provision clearly contemplates enforcement of the stan dards that are defined by the EPA. As a result, where the EPA defines its emissions limitatio ns and enforcement measures to allow a source the opportunity to prove its entitlement to a les ser degree of violation (not subject to penalties) in narrow, specified circumstances, as the EPA did here, penalties are not “appropriate” under section 304.

The EPA’s view is that an affirmative defense to civil penalties for exceedances of applicable emission standards during periods of malfunction appropriate ly balances competing concerns.159

On the one hand, citizen enforcers are concerned about additional complications in their enforcement actions. On the other hand, industrial sourc es are concerned about being penalized for violations caused by malfunctions that could not have pr evented and were otherwise appropriately handled (as reflected in the affirmative defense criteria). The EPA has utilized its Section 301(a)(1) authority to issue regulations necessary t o carry out the Act in a manner that appropriately balances these competing concerns.

The EPA disagrees that the affirmative defense provision will hamper citizen enforcement. First, injunctive relief is still available and the threat o f penalties would not deter violations in cases where all of the conditions of the affirmative defens e have been satisfied because the affirmative defense criteria ensure that all reasonable steps were t aken to prevent a malfunction that causes excess emissions.

Further, litigating whether a source has met the affirm ative defense will not burden citizen groups any more or less than would litigating the appropriat e penalty amount in the penalty assessment stage of a citizen suit enforcement action , because the 113(e) penalty assessment criteria and the affirmative defense criteria are sim ilar and in fact overlap. For example, the requirement that the Administrator or the court consi der “good faith efforts to comply” is bound to generate the type of fact-intensive disputes that the commenter complains of. In addition, several of the affirmative defense criteria are exact ly the type of criteria the Administrator or Court might consider in determining whether a source made “good faith efforts to comply.” For example, to take advantage of the affirmative defense, the source must prove by a preponderance of the evidence that, among other things, the excess emi ssions “were caused by an unavoidable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner” and “could not have bee n prevented through careful planning, proper design or better operation and maintenance practices” and “did not stem from any activity or event that could have been foreseen and a voided, or planned for.”

Thus, the EPA does not expect the affirmative defense pr ovision to significantly alter the burden of bringing a citizen enforcement action. For those cas es that do proceed to trial, even in the absence of this affirmative defense, sources generally rai se equitable arguments to argue for a low penalty and citizens often rebut such arguments. The refore, as a practical matter, the EPA does not expect the affirmative defense provision to mater ially affect the practice of CAA enforcement.

The EPA is not adopting commenters’ suggestion with respe ct to compensatory damages or limits on the frequency of use of the affirmative defen se. It is not clear that the EPA has authority to require the automatic imposition of compensatory damages and even if such authority exists, the EPA does not think automatic imposit ion of damages is appropriate, as it would unduly complicate the enforcement process. Ensuring t hat malfunctions do not recur can be handled through imposition of appropriate injunctive reli ef. In addition, the EPA’s view is that it would not be appropriate to limit a source’s ability to take advantage of the affirmative defense to one time over a specified period of time such as ten years given that the affirmative defense is only available when the source could not have pr evented the excess emissions. With respect to commenters’ suggested reporting requirements, th e reporting requirements in the rules promulgated today already require malfunction reporting a nd the affirmative defense provisions160

require that parties choosing to assert the affirmativ e defense meet additional malfunction reporting requirements. Any such reports submitted to the EPA are publicly available pursuant to CAA section 114.

Comment : The commenter opines that this would create a new loo phole in the standards and is unlawful. The commenter also states that polluters are likely to claim that any violation of the standard is due to a malfunction to evade requirements, a nd polluters will factor potential standard violations into their cost of doing business.

Response: The EPA’s view is that an affirmative defense is not a “loop hole” because affirmative defense is asserted where a violation is e stablished to have occurred, and enforcement proceedings are in progress. Affirmative defe nse, even if successfully asserted, cannot be construed as allowing a source to claim that a violation was not committed.

The EPA further disagrees that the affirmative defense provision will allow sources to avoid sanction for unlawful conduct. Injunctive relief is stil l available. The EPA also disagrees that an owner or operator that demonstrates a pattern of sustai ned or frequent violations, indicating that a source has factored violations into the cost of doing b usiness, is likely to be successful in an attempt to assert affirmative defense.



### 2G01. Revisions to the CO Monitoring Requirements

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 11

Comment: WTI Supports the Agency’s CO CEM Option for Demonstr ating Compliance

We support the proposal to allow facilities to use CO CE Ms for demonstrating compliance with the CO limit using a 30 day average. Many potential CISWI units are required to operate CO CEMS in accordance with Title V and/or state requirem ents.
Response: EPA is maintaining this provision in the final rule.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 41

Comment: We Support Changes to CO and O2 Monitoring.161

Response: EPA is maintaining this provision in the final rule.



### 2G02. Optional CO CEMS provisions

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 8

Comment: While EPA contends that CISWI units can meet the emis sion standards during SS periods, there is no factual support for this assertion i n the administrative record, and indeed, ACC provided evidence to the contrary in its comments, whic h EPA did not address in the final rule. See ACC Comments at 43-46. Corrected (and even uncorrected) e mission concentrations can be significantly higher during startup and shutdown due to the unavoidable less-than-optimal emissions control performance during transitional (non- steady state) conditions. For example, at solid fuel ERUs combustion-related emissions such as CO, particulate (smoke), and opacity increase during the startup period when load and temperature a re coming up to full load steadystate conditions. EPA itself recognized in the Boiler MACT that “CEM data show that CO levels have a higher degree of variability than other pollutants ” (76 Fed. Reg. 15646). It doesn’t matter whether these units are being fired with solid fuel or so lid waste – the equipment involved is virtually identical and fuel combustion characteristic di fferences are minimal. Startup burners reduce emissions by preheating the combustion chamber and dow nstream equipment but are not sized to achieve full load temperatures; even if they we re, they could not completely avoid temporary sub-optimal combustion conditions as heat lo ad shifts from auxiliary fuel to waste during startup and from waste to auxiliary fuel during shutdown. Air pollution control equipment goes through similar transient temperature and flow condi tions, e.g., changing furnace temperature and velocity profiles make SNCR systems less effective during startup than during full load steady state conditions and ESPs and fabric filters must have adequate time to warm up before they can function optimally. These conditions are distinct from the less variable conditions that occur during typical steady-state oper ations. EPA’s emission database excludes these periods and therefore does not capture this compone nt of variability. Removing the oxygen correction from the CO limit that applies during st artup does not address this issue.

Response: We have expanded the provisions for uncorrected CEMS dat a during startup and shutdown and have discussed these changes in the preamble t o the final rule. Furthermore, as discussed elsewhere, we have made revisions to some of th e operating parameter provisions to allow for adjustment during varying load conditions during star tup and shutdown. We also received additional data for the best-performing coal ER U that included startup and shutdown data, and have used this information to assess variability in establishing emission limits for this source category. We believe these revisions, with the variability that is included as part of the emission limit calculations, are adequate to address the commenter's concerns. Note that the emission limit calculation methodology is not being re considered, and comments on this issue will not be addressed.162

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 14

Comment: In the previous comment, Dow pointed out instances in which EPA overlooked additional areas where the oxygen correction factor and some CMS monitoring would be problematic during startup and shutdown. However, the types of design and operation in this CISWI category are so varied that changes to the defini tion of CEMS data during startup and shutdown will not completely solve the issue of being able to st artup or shutdown. Dow requests that the two subparts define these periods in a way that CISWI can actually use by adding definitions for them.

Startup means the setting in operation of a CISWI for any purpose and during which you comply with the emission standards by minimizing emissions and reaching normal operations in as timely a manner as practicable for the source.

Shutdown means the cessation of operation of the affected faci lity for any purpose and during which you comply with the emission standards by minimiz ing emissions and reaching no operational status in as timely a manner as practicable for the source.

Response: We are not revising the definitions of Startup and Shutd own in the 2000 CISWI rule, but have made revisions to the monitoring requirements tha t would likely address the commenter’s concerns. See section II.C of the pream ble to the final rule for discussion on revisions to the monitoring requirements and how the defini tion of "CEMS data during startup and shutdown" have been revised since proposal.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 13

Comment: At a minimum, references to this definition would also need to be added to the various sections in each subpart where CEMS and/or CMS data is specified, such as §60.2110, §60.2115, §60.2145, and §60.2165 of subpart CCCC and §60.2675, §60.2680, §60.2710, and §60.2730 of subpart DDDD, so that units would not experience deviatio ns or violations during these necessary and unavoidable periods.

Should EPA believe that a time limit is required, Dow offers alternative time limits that should accommodate the issues we have discussed; however, we still believe no time limit should be required to account for variability in how startup and shutdow n can occur.

CEMS and CMS

data during startup and shutdown means carbon monoxide CEMS and CMS data collected during the first two days 4 hours of operation of energy recovery CISWI unit startup from a cold start and the first day hour of operation following the cessation of waste material being fed to the energy recovery CISWI unit during a unit shutdown.163

Response: We have revised the monitoring requirements and the defi nitions for CEMS data during startup and shutdown, as discussed in the preamble. See section II.C of the preamble to the final rule for a discussion of the oxygen correction waiver during periods of startup and shutdown for sources demonstrating compliance with a CEMS. Regarding the commenter’s concerns on CEMS data during startup and shutdown and operating pa rameter limits, these are discussed in response to other comments in this document. Specifically, regarding CMS (i.e., operating parameter monitoring), we have made adjustments f or sorbent injection operating parameters at reduced loads. See the response to EPA-HQ-O AR-2003-0119-2605-A1 excerpt 22. We disagree that a similar allowance is necessary for all other operating parameter limits, as they do not pose the same operational issues as sorbent injection does. We note that a source may retest and re-establish new operating parameter limits, as specified in §60.2160 and §60.2725.

Deviations from operating parameter limits must be reported in a deviation report, but determination that these deviations constitute a violatio n is at the discretion of implementing and enforcing agencies.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 13

Comment: CRWI believes a similar issue exists for other types of monitoring system as exists for the situation EPA is trying to correct by waiving the oxygen correction factor for CO CEMS during startup and shutdown periods. For example, § 60.2675(f) [and the analogous §§ 60.2110(f)] and 60.2730(e) [and the analogous § 60.2165(e)] require a secon dary chamber temperature operating limit set at the lowest 1-hour av erage value during the most recent performance test. As a result of this requirement, such a CISWI unit could never startup or shutdown without having to transition above or below this operating limit. In addition, CO CEMS are not the only CEMS that would use an oxygen correc tion factor, and data from those CEMS likewise need a waiver for the same reason. This issue is not restricted to energy recovery units but would happen for any unit using this type of system. On e way to resolve this problem would be to expand the definition of "CEMS data during startup and shutdown" in § 60.2265 as follows:

CEMS and CMS

data during startup and shutdown means carbon monoxide CEMS and CMS data collected during the first 4 hours of operation of energy

recovery CISWI unit startup from a cold start and the hour of

operation following the cessation of waste material b eing fed to the
energy recovery

CISWI unit during a unit shutdown.

We have not done an exhaustive search of all of the va rious CMS parameters to know if other examples exist but urge EPA to modify this definition and pl ace its use in all the various sections that need it. At a minimum, references to this definit ion would need to be added to the various sections in each subpart where CMS data is specified, such as §§ 60.2110, 60.2115, 60.2145, and 60.2165 of subpart CCCC and §§ 60.2675, 60.2680, 60.2710, and 60.2730 of subpart DDDD , so164

units would not experience deviations or violations during the se necessary and unavoidable periods.

Response: See the response to EPA-HQ-OAR-2003-0119-2571-A1 excerpt 13 and se ction II.C of the preamble to the final rule for a discussion of t he oxygen correction waiver during periods of startup and shutdown for sources demonstrating complia nce with a CEMS.

Regarding CMS (i.e., operating parameter monitoring), we ha ve made adjustments for sorbent injection operating parameters at reduced loads. See the response to EPA-HQ-OAR-2003-0119- 2605-A1 excerpt 22. We disagree that a similar allowance is necessary for all other operating parameter limits, as they do not pose the same operatio nal issues as sorbent injection does. We note that a source may retest and re-establish new oper ating parameter limits, as specified in §60.2160 and §60.2725.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 30

Comment: In the proposed CISWI NSPS and Emission Guidelines, EP A did not provide separate treatment of startup and shutdown periods. The pro posed CISWI rule stated that the emission limits apply at all times, including startup, s hutdown, and malfunction (SSM) periods [75 Fed. Reg. 31949] EPA stated in the preamble that the Agency was not proposing separate emission standards during startup or shutdown for the follo wing reasons:

“ We determined that CISWI units will be able to meet the em ission limits during periods of startup because most units use natural gas or clean distill ate oil to start the unit and add waste once the unit has reached combustion temperatures. Emiss ions from burning natural gas or distillate fuel oil would generally be significantly lo wer than from burning solid wastes. Emissions during periods of shutdown are also generally signif icantly lower than emissions during normal operations because the materials in the i ncinerator will be almost fully combusted before shutdown occurs.” [75 Fed. Reg. 31964]. 11

While this may be generally true for incinerators, this do es not adequately characterize many energy recovery units (not all boilers startup on nat ural gas or distillate oil as evidenced by examining EPA’s CISWI database, which includes startup fuel for each unit that submitted an ICR response). In addition, it also does not account for the fact that oxygen levels at startup can be very high and result in very high pollutant concentra tions when correction to 7 percent oxygen is required. EPA recognized this fact in setting diff erent emission standards for startup and shutdown under the recent revisions to the Portland Ceme nt MACT standards and NSPS. 12

Many commenters objected to EPA’s position and offered var ious alternatives, including establishing separate standards for these periods. In the M arch 2011 final rule, however, EPA maintained its position that the same emission standards applicable during other operating periods will also apply during startup and shutdown. The pream ble states:165

“In establishing the standards in this final rule, EPA has taken into account startup and shutdown periods and have not established different standards for those periods. T he standards that we are finalizing are based on short term stack tests for pollutant s that generally are not expected to vary significantly at startup and shutdown. The possible exce ption here is CO, which in some subcategories such as ERUs, could vary at startup and shutdown. Howe ver, the percent oxygen operating limits will ensure that combustion conditions are optimize d and the CO is minimized. Solid waste and fuel-fired ERUs do not normally startup and shutdo wn more the once per day. Thus, we are not establishing a separate emission standard for these periods because startup and shutdown are part of their routine operations and, therefore, are alr eady addressed by the standards. Periods of startup, normal operations, and shutdown are all predic table and routine aspects of a source's operation. We have evaluated whether it is appropriate to have the same standards apply during startup and shutdown as applied to normal operations, and as the rule is structured, well operated and controlled units should be able to me et the standards at all times.” 76 Fed. Reg. 15738.

In presenting this petition it is important that we disti nguish between EPA’s definitions of “startup period” and “shutdown” contained in the CISWI rule 13 which exclude all periods when waste is burning, and the broader scope of startup and shutdow n which includes those periods of transition when firing auxiliary fuel and/or solid waste w hen the unit is operating under nonsteady state load conditions. For example, for an ER U this includes the period when bringing the unit on line after solid waste has been “charged” and start ed burning but before reaching steady state steam load as well as periods after waste has ce ased being charged and waste combustion is completed. It is these transition periods in which the greater concern exists regarding variability of emissions and for which EPA has no emission data.

[Footnotes:

11 EPA also relied in part on the Sierra Club decision invalidating the Part 63 SSM general provisions, asserting that while the ruling “directly affe cts only [a particular] subset of CAA section 112(d) rules ..., the legality of source category-spec ific SSM provisions such as those adopted in the 2000 CISWI rule is questionable.” 76 Fed. Reg. at 15737. This is flawed reasoning for three reasons. First, it does not necess arily follow that the court’s holding extends beyond the bounds of § 112 – particularly in this case, wher e § 129 specifies that standards must be established pursuant to § 111, under which SSM provisions have been implemented since the early 1970’s. Second, the 2000 CISWI SSM provisions are work p ractices, which qualify as “emissions standards” under the Act. Lastly, as explai ned above, the available data indicate that emissions during periods of SSM are significantly differe nt from emissions during normal operations – even for the best performing sources. Theref ore, some accommodation for SSM periods must be provided.

12 Rulemaking dockets EPA-HQ-OAR-2007-0877 and EPA-HQ-OAR-2002-0051

13 40 CFR 60.2265 and 40 CFR 60.2875 definitions: Startup period means the period of time between the activation of the system and the first c harge to the unit. Shutdown means the period of time after all waste has been combusted in the prim ary chamber.]

Response: See the response to EPA-HQ-OAR-2003-0119-2571-A1 excerpt 13 and se ction II.C of the preamble to the final rule for a discussion of t he oxygen correction waiver during periods166

of startup and shutdown for sources demonstrating complia nce with a CEMS See the "CISWI Reconsideration Issues" memorandum dated December 19, 2012 in t he CISWI docket for further discussion of work practices for periods of startup and sh utdown. Regarding CMS (i.e., operating parameter monitoring), we have made adjustments for sorbe nt injection operating parameters at reduced loads. See the response to EPA-HQ-OAR-2003-0119-2605-A1 exce rpt 22. We disagree that a similar allowance is necessary for a ll other operating parameter limits, as they do not pose the same operational issues as sorbent injec tion does. We note that a source may retest and re-establish new operating parameter limits, as speci fied in §60.2160 and §60.2725.

For compliance purposes, EPA maintains that data generate d by a solid waste incineration unit is valid even if no solid waste is combusted during the test b ecause sources must comply with the standards at all time. We have acknowledged in this rule making that units in the ERU and waste burning kilns subcategories may start and stop combusting solid w aste, and we have accounted for that fact by including in the definition of CISWI unit a requirement that units remain subject to CISWI for 6 months after adding solid waste to the co mbustion unit. The rule does not require that waste be burned at all times and we understan d that units will often operate without any solid waste inputs. Absent the use of all data in det ermining compliance for CISWI units, it would be very difficult to assure compliance with the fi nal rule, particularly for standards that are complied with using continuous emissions or parameter monito ring.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2 Comment Excerpt Number: 16

Comment: CEMEX feels strongly that the emissions standards s hould not apply during startup and shutdown events, especially considering the lack of emi ssions data on which to base the establishment of emissions standards. Cement kilns are m anufacturing equipment, not incinerators or process heaters or boilers. As such, the startup and shutdown times and procedures are more time consuming and complicated than othe r CISWI sources. In a cement kiln system, not only must you slowly heat the combustio n chamber to prevent refractory damage, you must slowly begin the introduction of the raw materials while continuing to increase the fuels (heat) input to the kiln so that the re is adequate heat to calcine and then clinker the raw materials before they exit the kiln. The heat input and raw material input must be carefully balanced in order to protect process equipment an d minimize emissions. The kiln startup and shutdowns follow a detailed and carefully monito red set of procedures necessary to safely start the clinker manufacturing process and must fo llow these same procedures to protect process equipment regardless of whether or not alternative fuels will be used. Cement plants should be allowed to utilize work practices during startup and shutdown periods. See PCA's comments for more details on CEMEX’s position.

Response: See the response to EPA-HQ-OAR-2003-0119-2571-A1 excerpt 13 and sect ion II.C of the preamble to the final rule for a discussion of t he oxygen correction waiver during periods of startup and shutdown for sources demonstrating complia nce with a CEMS. The final rule’s definition includes specific kiln-related conditions tha t should adequately address the167

commenter’s concerns. Regarding CMS (i.e., operating pa rameter monitoring), we have made adjustments for sorbent injection operating parameters a t reduced loads. See the response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 22. We disagree that a similar allowance is necessary for all other operating parameter limits, as they do not pose the same operational issues as sorbent injection does. We note that a source may retest and re-establish new operating parameter limits, as specified in §60.2160 and §60.2725.

See the "CISWI Reconsideration Issues" memorandum in th e CISWI docket for further discussion of work practices for periods of startup and sh utdown.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 4

Comment: Another element of the rule contributing to a lack of achievability is the lack of separate standards for periods of startup and shutdown. In th e Boiler MACT, EPA has justifiably proposed work practice standards that boiler operators m ust follow during periods of startup and shutdown, as it is impossible to comply with numeric st andards during those periods and no startup or shutdown data were used to set the stack test-ba sed limits. The same applies for CISWI ERUs. Very little data is being used to set the CI SWI standards, very little consideration of emissions variability is being incorporated into the calculations, and there has been no consideration of emissions during startup and shutdown in de velopment of the standards. Simply removing the oxygen correction for the CO limit is not ade quate to address this issue. EPA must either ensure that the data on which the standard is base d include representative data from startup and shutdown or, alternatively, set a separate work pract ice standard.

Response: See the "CISWI Reconsideration Issues" memorandum i n the CISWI docket for further discussion of work practices for periods of start up and shutdown. To the extent the best performing sources provided data during startup and shutdown perio ds, we used it in developing the MACT floor limits.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 19

Comment: Separate from these comments, Eastman Chemical Com pany is resubmitting its 2009 Boiler 18 CEMS data, this time including the hourly average oxygen content and an evaluation of the effect of not correcting for oxygen dur ing startups. We refer EPA to the detailed technical analyses in those comments, and poin t out that the Eastman data demonstrate that this non- correction does not alleviate the concer ns about higher CO levels during startups making compliance unachievable. In fact, this boiler, whic h is the top performing boiler, cannot meet the CO emission standard (which was based on data w hich included no startups or shutdowns) when including uncorrected CO emissions from sta rtup periods. Eastman’s chart [see submittal for chart provided by commenter] shows the signi ficant effect of including startups,168

with and without correcting for oxygen, and clearly supports our contention that EPA must eliminate periods of startup and shutdown from the complianc e determination. Regarding the determination of an appropriate MACT floor based on this o ne top performer, EPA must use all of the data submitted to properly account for the variabili ty of CO emissions from this unit. It should use all of the hourly averages from normal operati on included in the 2010 data set and determine a 99 percentile Upper Prediction Limit (UPL) and a 99 percentile Upper Limit (UL). We disagree with EPA’s logic (see page 9 of the memo CI SWI Emission Limit Calculation for Existing and New Sources for Reconsideration Proposal, No vember 3, 2011, EPA-HQ-OAR2003-0119-2498) that the UPL is more appropriate than the UL for t he ERU subcategory because of the uncertainty in the population of affected sources. In this case, the MACT floor is determined based on one source. The UPL is barely above the maximum 30 day rolling average from the data. It is not certain that this one top per forming unit could meet the emission limit at all times. Also, any other coal-fired ERUs that were to enter CISWI applicability may be of a totally different design. The standard should incorporate as much variability as can be technically justified to allow the greatest flexibility. Therefore, we believe the UL is more appropriate in this case. Eastman provides further detaile d analyses regarding this approach in its comments on this Proposed Rule, and ACC supports this analysis. Regardless, ACC and its members continue to believe it will prove problematic to include CO emissions during startups and shutdowns in compliance determinations. This is due to the unpredictability of startup emissions and the unpredictable number of startups during a 30 day operating period, even when following manufacturers’ recommendations or other accept ed boiler operating procedures. Of primary importance, boilers that burn solid waste do so al ong with traditional fuels. Further, most of these are started up on traditional fuels and o nly introduce solid wastes after startups are complete and the boiler is operating under safe and stabl e conditions. We understand that the Agency believes that it cannot set work practice stan dards under §129 of the Clean Air Act and the numeric standards established for steady-state opera tions must apply during periods of startup and shutdown. As discussed in the comments above, we do not share that belief and we therefore recommend that EPA allow ERUs to comply w ith CISWI standards only between the end of a startup and the beginning of a shutdown and to compl y with otherwise applicable standards under §112 of the Clean Air Act at other times. I n fact, we believe the Agency may not legally require compliance with § 129 standards if the unit is not burning solid waste. Sources should have the option to comply with §112 during periods when solid wastes are not in the combustion unit, including these startup and shutdown peri ods.

Response: As stated above in response to other comments, EPA do es not agree with the commenter that work practice standards may be set under section 129 or that EPA is prohibited from regulating sources under section 129 during startup and shut down if the sources are not combusting solid waste during those periods. See the “CIS WI Reconsideration Issues” memorandum dated December 19, 2012 for further discussion of th e methodology for establishing the MACT standards and for a discussion of wor k practices during startup and shutdown.

However, we have received the information from Eastman as the commenter states and have used this information in our MACT floor analysis to develo p a revised emission limit for this subcategory. To the extent the best performing sources provi ded data during startup and shutdown periods, we used it in developing the MACT floor li mits. Also, see the preamble to169

the final rule for a discussion of the oxygen correction waiver during periods of startup and shutdown for sources demonstrating compliance with a CEMS. Eastman presented an analysis with the proposed treatment of startup and shutdown that sh owed performance in line with the final rule emission limit, but the analysis was using t he proposed period of CEMS data during startup and shutdown, rather than the final rule provisions f or these periods of CEMS data. Taken together, we believe the best performing unit can ac hieve the final rule emission limits for CO.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 12

Comment: Even if EPA has the authority, its proposal to use uncorr ected CO concentrations during startup and shutdown (SU/SD) periods dodges the law’s r equirement that standards be set based on emissions limitations achieved by top performing uni ts. EPA’s proposal fails to discuss actual emissions during SU/SD for the various subcategori es. It simply acknowledges that concentration correction is an issue at high oxygen leve ls, references information gleaned from one combustion technology – a coal-fired unit – and makes its limited proposal. Absence of SU/SD data should not be cause to place additional burdens o n operators. EPA has authority to obtain the data it needs. EPA offers no evidence that the proposal in any way reflects actual emissions limitations achieved in practice.

Response: The commenter is incorrect that the Agency must col lect additional data in order to establish standards for CISWI units. EPA complied with t he statute in establishing the CISWI stanadards based on the data available to the Agency. If i ndustry 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 continues to believe that the oxygen correction waiver is sufficien t to allow sources to demonstrate compliance with the final standards, including during periods of startup and shutdown. See the preamble to the final rule for a discussion of the oxygen correction waiver during periods of startup and shutdown for sources demonstrating compliance wi th a CEMS.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 32

Comment: Removing the oxygen correction as EPA has proposed to do i n the reconsideration rule is not sufficient and does not reflect what CISWI ERUs achieve during startup.

Response: See the preamble to the final rule for a discussion o f the oxygen correction waiver during periods of startup and shutdown for sources demonstrat ing compliance with a CEMS. The commenter has not provided any data during startup to support its assertion that the standards are not achievable during startup.170



### 2H. Establishing a Full-load Stack Test Requirement for CO Coupled with Continuous Oxygen Monitoring

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 13

Comment: It is also appropriate for EPA to remove the requirem ent that the oxygen monitor be located at the outlet of the boiler. As it has in th e Reconsidered Boiler MACT Rule, EPA should allow the oxygen monitor to be located either within the combustion zone or at the outlet as a flue gas oxygen monitor. This type of flexibility will reduc e the cost and burden of the continuous oxygen monitoring requirements by allowing facili ties to utilize existing oxygen trim systems rather than installing CEMS. Many existing boiler s already utilize flue gas oxygen analyzers for indication, alarm, and oxygen trim cont rol, where the fuel/air ratio is automatically controlled for optimum combustion conditions. The sens ing location for existing oxygen monitors is typically in the optimum location to sens e flue gas composition as reliably as possible, because sensing of oxygen in these cases maintai ns proper excess air levels and helps prevent unsafe operating conditions. For many types of co mbustion units, that location is near the boiler furnace outlet in a position upstream of any potential air inleakage points to avoid erroneous excess air indications which would drive control s in an erroneous direction. This location is also upstream of air preheaters where utiliz ed, thus avoiding the erroneous (high oxygen) indications due to inherent leakage across regenerati ve air preheater seals or potential tube leakage in recuperative air preheaters. For those units equipped with existing oxygen sensors and oxygen trim control systems, flue gas compos ition at those locations would already be used for combustion tuning and control characterization . Therefore, if oxygen monitoring is desired for continuous compliance, sensing oxygen at that c urrent location would be logical and proper from a technical perspective. The Oxygen analyzer sy stem is defined in §60.2265 in part as follows: Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler flue gas or firebox. This definition includes oxygen trim systems. The source owner or operator is responsible to install, calibrate, maintain, and operate the oxygen analyzer sys tem in accordance with the manufacturer’s recommendations. 76 Fed. Reg. 80,502. The opti mum location of the sensor or sampling point is dependent on the specific boiler design. In different applications, that location might be at the furnace exit, in the convection pass, a t the boiler outlet, or at another downstream location. We recommend that this language be modified as f ollows to allow latitude in the exact location of the sensing point: Oxygen analyzer system me ans all equipment required to determine the oxygen content of a gas stream and used to mo nitor oxygen in the boiler or process heater flue gas, boiler/process heater or firebox , or other appropriate intermediate location

. This definition includes oxygen trim systems. The source owner or operator is responsible to install, calibrate, maintain, and operate the oxygen analyzer sys tem in accordance with the manufacturer’s recommendations. In paragraph 60.2145(w)(2) an d again in paragraph 60.2165(q)(2), EPA specifies the level that the oxygen trim sy stem should be set at. For many of the same reasons contained CIBO’s Comments on the 2011 Rec onsidered Boiler MACT Rule, filed on February 21, 2012, EPA should revise the wording of th ese sections to include the171

italicized language below: You must operate the oxygen analyz er and trim system with the oxygen level set at or above the minimum percent oxygen by volume that is established a s the operating limit for oxygen . . . when firing the fuel or fuel mixture utilized during the most recent CO performance stack test. Operation of oxygen trim control systems to meet these requirements shall not be done in a manner which compromises furnace safety.

Response: The EPA agrees with the commenter in that O 2 trim systems or O 2 CEMS are acceptable methods of compliance with the rule. The def inition of an oxygen analyzer system has been modified to: “Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler or process heater flue gas, boiler/process heater, firebox, or other appropriat e location.” Therefore, the source owner has flexibility in establishing the appropriate location of the monitoring equipment, as the commenter seems to request.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 22

Comment: EPA is proposing revisions to the continuous oxygen monitor ing provisions that would give existing sources the ability to use current oxygen analyzer and oxygen trim systems to demonstrate continuous compliance (76 Fed. Reg. 80461) This was an issue that ACC raised in its petition for reconsideration. We appreciate and support EPA’s proposal to add flexibility and reduce the cost and burden of the continuous oxygen monitor ing requirements, as these changes allow facilities to utilize existing oxygen trim systems rather than installing CEMS. In the March 21, 2011 final rule, EPA included continuous oxygen moni toring as the compliance method for ERUs >100 MMBtu/hr, instead of mandating the use of CO CEMS. EPA now proposes to amend the oxygen monitoring requirements (76 FR 80515, Dec. 23, 2011) to allow for the use of continuous oxygen trim analyzer systems i nstead of oxygen CEMS. EPA is also removing the requirement that the oxygen monitor be located at the outlet of the boiler, so that it can be located either within the combustion zone or at t he outlet as a flue gas oxygen monitor. Many existing boilers already utilize flue gas oxygen anal yzers for indication, alarm, and O 2 trim control, where the fuel/air ratio is automatically c ontrolled for optimum combustion conditions. The sensing location for existing O 2 monitors is typically in the optimum location to sens e flue gas composition as reliably as possible, because sensing of oxygen in these cases maintains proper excess air levels and helps prevent unsafe operating conditions. For many types of boilers, that location is near the boiler furnace outlet in a position upstream of any potential air inleakage points to avoid erroneous excess air indications which wo uld drive controls in an erroneous direction. This location is also upstream of air preheat ers where utilized, thus avoiding the erroneous (high O 2 ) indications due to inherent leakage across regenerative ai r preheater seals or potential tube leakage in recuperative air preheaters. For those units equipped with existing O 2 sensors and O 2 trim control systems, flue gas composition at those locations would already be used for combustion tuning and control characterization. T herefore, if O 2 monitoring is desired for continuous compliance under the CISWI rule, sensing O 2 at that current location would be technologically sound. However, ACC recommends the foll owing changes to the regulatory172

language so that clarity is provided and operability is not ne gatively impacted. These changes are discussed in the following subsections.

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 13.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 23

Comment: The oxygen analyzer system is defined in §60.2265 and 60.2875 in part as follows:

Oxygen analyzer system means all equipment required to det ermine the oxygen content of a gas stream and used to monitor oxygen in the boiler flue gas or firebox. The optimum location of the sensor or sampling point is dependent on the specific boil er design. In different applications, that location might be at the furnace exit, in the convect ion pass, at the boiler outlet, or at another downstream location. We recommend that this language be m odified as follows to allow latitude in the exact location of the sensing point:

Oxygen analyzer system means all equipment required to det ermine the oxygen content of a gas stream and used to monitor oxygen in the boiler or process heater flue gas, boiler/process heater or firebox, or other appropriate intermediate location

. Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 13. The fina l rule definition adds “or other appropriate location.” We beli eve this addresses the commenter’s concern in allowing latitude on location of the sensing poi nt.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 24

Comment: Paragraph 60.2165(q)(2) and 60.2730(q)(2) state:

You must operate the oxygen trim system with the oxygen l evel set at the minimum percent oxygen by volume that is established as the operating limit for oxygen according to paragraph (q)(3) of this section.

The wording of (q)(3) does provide needed operational flexibi lity relative to oxygen levels:

You must maintain the oxygen level such that it is not be low the lowest hourly average oxygen concentration measured during the most recent CO performa nce test.
However, solid or liquid fuel fired ERUs may also be equi pped to fire other liquid or gas fuels that may allow the unit to operate at lower oxygen level s for improved boiler efficiency. Alternatively, they may also fire biomass or other tr aditional fuels that require higher excess air for improved combustion. Operators may also need to modi fy the oxygen setpoint or trim173

system to accommodate boiler or fuel quality issues. E PA needs to recognize that oxygen trim systems not only provide a means for energy efficiency, but they also are integral to furnace combustion control and furnace safety. While use of a 30-day rolling average does provide some operating flexibility, this rule should not needlessly r estrict operator flexibility relative to safety or operating efficiency. The real value for operations is to have an indication of excess oxygen available to operators, along with appropriate alarms so t hat corrective actions can be taken in a timely manner. Therefore, considering all of the above , it is recommended that the paragraph 60.2165(q)(2) and 60.2730(q)(2) wording be revised to read as follows: ( 2) You must operate the oxygen trim system with the oxygen level set at the mini mum percent oxygen by volume that is established as the operating limit for oxygen according to paragraph (q)(3) of this section when firing the fuel or fuel mixture utilized during the most recent CO performance test. Operation of oxygen trim control systems to meet these requirements shall not be done in a manner which compromises furnace safety.

Response: The EPA does not expect that a single fuel fired during a single stack test would be representative for setting emissions limits for compli ance with all fuel firing configurations. The rule allows for testing while firing various fuel configura tions to determine the most flexible compliance scenarios, and places no stipulations on t ime of year such tests are performed (as long as the tests are conducted within the specified time frame). We recommend that source operators with varying fuels carefully consider the fuel c ondition they wish to test.

The EPA does not expect or intend for source operators to c ompromise the safety of their operations, and we are confident that the requirements of the rule are flexible enough to allow sources to determine and meet compliance levels without je opardizing the safety of their employees or facilities. The affirmative defense se ction in the rule provides for extenuating operational circumstances that necessitate deviations from compliance limits.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 43

Comment: We recommend the following changes to the regulatory lan guage so that clarity is provided and operability is not negatively impacted.

Oxygen Sensing Location

The Oxygen analyzer system is defined in the CISWI rule s as follows:

“Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler flue gas or firebox. This de finition includes oxygen trim systems. The source owner or operator is responsible t o install, calibrate, maintain, and operate the oxygen analyzer system in accordance with the manufacturer’s recommendations.”

The optimum location of the sensor or sampling point is dependent on the specific boiler design. In different applications, that location might be at the furnace exit, in the convection pass, at the174

boiler outlet, or at another downstream location. We recommend that this language be modified as follows to allow latitude in the exact location of the sensing point:

“Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler flue gas, boiler or firebox, or other appropriate intermediate location. ...”

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 13. The final rule definition adds “or other appropriate location.” We beli eve this addresses the commenter’s concern in allowing latitude on location of the sensing poi nt.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 42

Comment: Many existing boilers and process heaters utilize flue gas oxygen analyzers for indication, alarm, and O 2 trim control, where the fuel/air ratio is automatica lly controlled for optimum combustion conditions. For many types of comb ustion units, O 2 monitoring occurs upstream of potential air inleakage points like preheaters, t hus minimizing the potential for erroneous measurements. For these units already equipped wi th existing O 2 analyzer systems and/or O 2 trim systems, monitoring data from these locations ar e currently being used both for boiler tuning and combustion control. Therefore, if O 2 monitoring is provided as an alternative to demonstrate continuous compliance with CO limits under th e Boiler MACT rule, it would be logical and technically feasible for these facilities to continue monitoring O 2 at that current location. These O 2 analyzers are not compliance CEMS and therefore do not meet PS-3 requirements. However, they are calibrated and maintaine d to provide reliable and safe service for combustion unit operation. Proper maintenance and cal ibration routines are the only available option, given the inability to certify these monitors, according to applicable Performance Specifications, when located at the outlet to the boi ler. This inability to certify is caused by stratification of gases at the boiler/process heater outlet.

Therefore, the most cost effective and technically fea sible approach for utilization of O 2 analyzer systems is to:

• Allow the continued use of existing O 2 analyzers

• Allow the installation of new O 2 analyzers of appropriate design at optimal locations , and

• Allow periodic sensor calibration as an alternative t o certification and as a way to ensure accurate O 2 monitoring.

Boiler combustion and optimization experts indicate tha t most O 2 trim systems rely on O 2 measurements at the outlet of the boiler combustion c hamber. These analyzers are not certified but are employed successfully to implement control stra tegies. The monitoring strategy proposed above is therefore viable even if it is not connected t o an automated trim system.175

While O 2 trim systems are viable for combustion control, there are limitations to its applicability that are especially pertinent for multi-fuel and biomas s boilers.

• O 2 trim systems are best suited when the boiler predominan tly burns only one type of fuel.

• Feedback control loops in O 2 trim systems are generally developed only for the predomina nt fuel. This limits its applicability for multi-fuel units.

• O 2 trim systems are used as a means of “fine” control and are sometimes ineffective when there are frequent changes in fuel quality and mix. This limitatio n would apply to combination boilers co-firing biomass fuels.

• While it is theoretically possible to develop control sy stems for each individual fuel used in a multi-fuel boiler, this approach is often expensive and ma y be ineffective.

Given these factors, it is our recommendation that fac ilities be given the option to choose either the O 2 monitoring approach (install, calibrate, and monitor O2 w ithout the requirement to certify) or the use of an O 2 trim system.

Response: The EPA agrees with the commenter and verifies that certified O 2 CEMS, O 2 monitors, and O 2 trim systems are permissible compliance systems for t he short term compliance option in this rule.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 15

Comment: EPA solicits comment on exempting oxygen monitoring syst ems from Performance Specification 3. If Performance Specification 3 for oxyg en monitoring systems serves to assure compliance, it is arbitrary and contrary to section 129(c )(1) for EPA to waive it simply because it imposes some (unspecified) cost on sources. This is es pecially true in light of EPA’s proposal to allow sources to use oxygen monitoring in lieu of CO CEMS. It also appears that elimination of Performance Standard 3 to allow reliance on existing oxyge n monitors located near the combustion chamber would directly contradict section 129( c)(1)’s express requirement that monitoring occur “at the point at which . . . emissions are emitted into the ambient air.” Nor can potential duplication with existing oxygen monitors justify th e failure to require adherence to performance specifications. The Clean Air Act expressly contemplates that monitoring at more than one location on a CISWI unit may be necessary: s ection 129(c)(1) requires monitoring at the point of emissions “and at such other points as nec essary to protect public health and the environment.”

Response: We do not agree with the comment that the oxygen monito ring requirement is flawed because it is not at the point the emissions are emi tted to the air. CAA section 129(c)(1) that EPA must require solid waste incineration units “to monitor emissions from the unit at the point at shich such emissions are emitted into the ambient air (or within the stack, combustion chamber or pollution control equipment, as appropriate) . . . .” We also disagree that we erred to the176

extent we are not requiring monitoring in more than one lo cation. CAA section 129(c)(1) authorizes the Agency to require monitoring in more than one location if the Agency determines it is necessary, but the statute does not require it an d the commenter has not demonstrated that such additional monitoring is necessary to protect public heal th or the environment.

Where continuous mass emissions measurements are require d for compliance with EPA rules, PS-3 certification is a required element for installed diluent CEMS. In this rule, EPA is allowing PS-3 certified O 2 CEMS, stand alone O 2 monitors, or O 2 trim systems to function as parametric combustion monitors. PS-3 is appropriate for determining re lative accuracy of stack-exit CEMS locations, but is not appropriate for such assessments o f O 2 monitoring systems installed in other monitoring locations in the flue. Carbon monoxide is m onitored at the point of emission during an annual stack test, and a correlation of this value is de veloped with O 2 monitors to assure appropriate combustion and compliance with the rule.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 44

Comment: We recommend the following changes to the regulatory lan guage so that clarity is provided and operability is not negatively impacted.

Oxygen Trim System Set Point
Paragraphs 60.2145(w) and 60.2710(w) state:

“(2) You must operate the oxygen trim system with the oxygen level set at the minimum percent oxygen by volume that is established as the operating limit for oxygen accor ding to paragraph (w)(3) of this section.

(3) You must maintain the oxygen level such that it is not below the low est hourly average oxygen concentration measured during the most recent CO performance test.”

This wording is more restrictive than the wording in para graph (w)(4), which requires calculation of a 30-day rolling average O 2 concentration.

The paragraph (w)(4) language specifies calculation of a 30-da y rolling average oxygen level while the (w)(2) and (w)(3) wording requires continuous opera tion at the minimum oxygen percent established during the prior test. Innate boiler ope rating characteristics require operation with higher excess air (higher oxygen) at lower operati ng rates simply due to lower fuel and air velocities, degraded mixing of fuel and air as those flow r ates decrease, and lower furnace temperatures. Therefore, it is necessary for the actua l oxygen trim system set point to vary over load, with the lowest set point typically occurring at or near full load operation. The language needs to be revised to provide this operating latitude by cla rifying that the operating limit is set as a 30-day average.

Response: The EPA has modified the rule language to be consisten t with the requirement of a 30-day rolling average requirement.177

Commenter Name: Lisa P. Higgins Commenter Affiliation: Maine Department of Environmental Protection (DEP) Document Control Number: EPA-HQ-OAR-2003-0119-2641-A2 Comment Excerpt Number: 6

Comment: Maine DEP does not support the requirement to conduct stack testing at full load conditions. Full load conditions in Maine usually occur during the winter, which can be unsafe for stack testing teams to test. Additionally, some of t hese units may be tied to process equipment which can have large variations in steam dema nd. Biomass boilers can also have variations in fuel quality making it difficult to conduct a stack test at "full load." Maine DEP believes it is more appropriate to require stack testing at normal operating load.

Response: The EPA recognizes the safety and operational restri ctions some installations may face at different times of the year and while performan ce tests may be conducted at operational states below “full load” with approval of the permitti ng authority, we advise source operators to carefully choose test conditions as they will set combus tion compliance parameters (low O 2 ) during the performance test. Operations at a later time which exceed the tested load may result in deviations from the limits determined during the stack te st. The EPA recommends performance testing take place while operating at the nor mal maximum, or “full” operating load.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 14

Comment: EPA also proposes to eliminate the requirement that s ources subject to a CO emission limit monitor CO directly. Instead, sources woul d be permitted to show compliance with the CO standard based on oxygen content. This is par ametric monitoring. It thus violates section 129(c)(1) to permit it in lieu of direct CO monito ring. Moreover, EPA must require monitoring that “provide[s] reasonable assurance of complian ce with emission standards.” Sierra Club v. EPA , 353 F.3d 976, 990 (D.C. Cir. 2004) (quoting Natural Resources Defense Council Inc. v. EPA , 194 F.3d 130,136 (D.C. Cir. 1999)). Here, EPA has not concluded t hat the oxygen monitoring requirements provide reasonable assurance of com pliance with CO limits, let alone supported such a determination with record evidence. EPA has n ot established that oxygen monitoring is a reliable proxy for CO. EPA does not show t hat a single performance test is sufficient to establish an oxygen content level that r eliably corresponds to the CO emission limit. EPA’s conclusion is therefore arbitrary.

Response: The commenter is incorrect in its assertion that the CISWI rule does not require direct measurement of CO. Sources must monitor CO wit h annual stack tests in conjunction with parametric monitoring or with CO CEMS, and we maint ain that the required monitoring is sufficient to assure compliance with the standards.

EPA rules require certified CEMS where continuous mass em issions measurements are required by rules. In this rule, EPA is allowing PS-3 certified O 2 CEMS, stand alone O 2 monitors, or O 2 trim systems to function as parametric combustion monit ors. PS-3 is appropriate for determining178

relative accuracy of stack-exit CEMS locations, but is not appropriate for such assessments of O 2 monitoring systems installed in other monitoring locations in the flue. Carbon monoxide is measured at the point of emission during an annual stack te st, and a correlation of this value is developed with O 2 monitors to assure appropriate combustion and compliance w ith the rule. O 2 and CO trim systems are common combustion controls a nd establish a link between good combustion and lower CO emissions. As we stated in th e Reconsideration Boiler MACT Rule, “the data from such devices is not only an appropriate cont rol for efficient combustion and a less burdensome alternative to monitoring stack oxygen concentr ation but also is a better system for many types of units that experience significant load swi ngs and operate with high levels of excess air.” 76 Fed. Reg. 80,609. The EPA has a long history of improving source emissions through the use of parametric monitoring.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 12

Comment: As set forth in comments CIBO’s Petition for Reco nsideration of the Final Boiler MACT Rule, EPA’s decision to allow oxygen monitoring is appropriate and EPA is justified in providing flexibility. Furthermore, EPA’s decision to revis e the continuous oxygen monitoring provisions to allow existing sources to use their current o xygen analyzer and oxygen trim systems to demonstrate continuous compliance is appropriat e. As EPA reasoned in the Reconsidered Boiler MACT Rule, “the data from such device s is not only an appropriate control for efficient combustion and a less burdensome alternati ve to monitoring stack oxygen concentration but also is a better system for many type s of units that experience significant load swings and operate with high levels of excess air.” 76 Fe d. Reg. 80,609.

Response: The EPA is maintaining the use of oxygen monitoring in the rule.



### 2J. Incorporating Fuel Variability Into Emission Limit Cal culations

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2 Comment Excerpt Number: 7

Comment: The SRI emission standards fail to account for the ra nge of wastes burned in SRIs and the fact that different waste materials exhibit prof oundly different emissions characteristics. This comment is laid out in detail in Attachment B of t his letter.

Response: EPA has taken into consideration the incorporation of fuel variability into emission limit calculations. However, EPA is not proposing t he use of fuel variability in the emission limit methodology, with the exception of waste-burning k iln Hg limits, due to the following.179

By definition, Commercial and Industrial Solid Waste Inc ineration units burn wastes, usually in combination with various non-waste fuels, and often with a variety of different waste streams. As a result, fuel variability data would only account for a fraction of the materials being input into the unit. In lieu of fuel variability, EPA has con sidered total material feed variability for establishing limits. In order to complete this analysis, material analyses for all materials being fed to a unit must be available. We only have such data neede d to establish limits for Hg for waste-burning kilns (76 FR 15727).

We did not, and do not still, have such data available for other pollutants and other types of CISWI units. EPA requested comments and supporting data that would allow the consideration of an approach similar to the waste-burning kiln Hg limits f or other pollutants and subcategories, however, only a limited amount of data for one subcatego ry, the coal ERUs, were submitted. We address our response to the commenter that submitted the co al ERU data elsewhere in this document.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 3

Comment: EPA should employ fuel variability factors to revise the CIS WI standards, achieving the reasonable emission standard parity between CISWI MACT and Boiler MACT that would be expected for technology-based standards.

ERC believes a principal reason for the irrational CIS WI MACT standards is the failure to consider variable contaminant levels in the mix of fuels and wastes capable of being charged to the best performing units. A good example is the CISWI hydrogen chloride standard, where best performing unit tests show emissions much less than one par t per million. Such a low emission could only be achieved with very low chlorine inputs not ref lective of the range of biomass material chlorine contents.

CISWI standards should not be set on the basis of test s conducted burning “clean” wastes. Such an approach belies the very nature of waste, that it is expected to be more variable in content than fuels which have specifications. We could understand th at CISWI units bear a bigger burden to be as clean as boilers burning fuels, but how can technology-based standards be up to 34 times stricter when the combusted material contains hi gher levels of contaminants?

A fuel variability approach is required if units burning waste biomass are to be able to achieve emission limits. In the absence of achievable standards biomass boiler operators will have no choice but to seek other fuel sources to avoid CISWI MACT. EPA’s stated intent is not to require fuel switching to meet a standard (75 FR 32019), but, howe ver unintended, that will be the effect.

Response: EPA did not specify that sources burn “clean” wastes dur ing performance testing during our information collection as the commenter suggests . Furthermore, EPA requested comments and supporting data that would allow the considerat ion of an approach similar to the waste-burning kiln Hg limits for other pollutants and subcat egories. The fuel variability factor180

(FVF) used in the boiler rule accounts for operational and fuel variability between sources using long term fuel measurement data that represent natural v ariations in fuel usage at best performing units over time. The average FVF was calculated using th e mercury and chlorine content of samples collected over a 30 day period from the best perfo rming sources around the time the performance stack test was conducted. In CISWI, howeve r, only a limited amount of data for one subcategory, the coal ERUs, were submitted. We address our response to the commenter that submitted the coal ERU data elsewhere in this documen t. Other sources, particularly best performers, could have submitted additional information durin g the comment period.

As we note previously, a portion of the biomass ERUs appea r to achieve the final emission limits,which indicates that a more robust accounting for variability in the emission limits for CISWI is not necessary. MACT standards, after all, a re based on the performance of the top 12% of sources, so it is not unexpected that sources that are not best performers would require control. EPA’s costs analysis reflects that certai n units will require acid gas control to meet the HCl standards that the commenter points out, but these same standards are being met by the best performers. Therefore, we have decided that we are goin g to finalize our approach at proposal and are not including a fuel variability factor in our dete rmination of emission limits for the subcaregories at issue.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 3

Comment: Additional consideration of fuel and waste feed variabili ty is also needed.

EPA has acknowledged that the composition of the fuels an d NHSM burned in the units to be covered by the CISWI rule is a key factor in the profile of emissions from these units. EPA has further recognized the impact of fuel characteristics on variability from combustion units under the Industrial Boiler MACT by incorporating a fuel variabil ity factor into many of the proposed emission limits under that rule. However, EPA has not to date included a fuel or waste stream variability factor in its standard setting process for C ISWI units. This has resulted in emission limits that almost no existing sources in EPA’s CISWI database can meet. EPA should collect fuel and waste variability data for all top performers.

Response: See response to EPA-HQ-OAR-2003-0119-2599-A1 excerpt 3 on fuel vari ability.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 26

Comment: The effect of waste composition. In the final rule, the selected best performing CISWI units frequently combusted “solid wastes” in small proportion to total inputs, or burned wastes that did not contain significant amounts of the constituents that would cause emissions (e.g., chlorine in biomass generating hydrogen chloride emissi ons). As a result, stringent181

emission limits for hydrogen chloride, cadmium, lead, me rcury and dioxin/furan were driven more by waste characteristics and composition than the control technology employed at the best performing units. Stand-alone biomass power plants (as opposed to ERUs located at manufacturing facilities) are economically driven to bur n large proportions of “solid wastes” such as urban wood and are particularly disadvantaged by t hese limits where incremental emission reductions exceeding 99% would be required. EPA shoul d consider waste content variability adjustments, percent reduction alternative st andards (see #4 below), geographic factors (e.g., biomass chloride content related to locat ion) and other approaches that yield achievable standards and otherwise level the playing field fo r units trying to responsibly utilize the nation’s biomass residuals.

Response: See response to EPA-HQ-OAR-2003-0119-2599-A1 excerpt 3 on fuel vari ability. Concerning the other suggestions, we did not take comment on the MACT methodology in the reconsideration proposal so we are not responding to co mments on that issue. In any case, EPA does not have the information the commenter suggests shou ld be used in determining variability.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 10

Comment: EPA takes the result of its 99th percentile UPL calcu lation and applies a second variability factor, what it styles as a “fuel variabi lity factor,” to determine the overall variability to apply to a “best performing unit.” This constitutes double coun ting and should not be permitted. This double counting occurs because fuel variabili ty is part of, and in many instances the major part of, the test-to-test variability that forms the basis of the 99th percentile UPL calculation. In the case of the liquid-fired Hg limit, EPA applied a “Fuel Variability Factor” to the 99th percentile UPL to further increase its propose d MACT floor to 2.6 x 10-5 lb/MMBtu. EPA applies this factor, not because the data respecting th e Hg fuel variability of the best units showed that the variability was too large, but because it was, in EPA’s view, too small. EPA acknowledged that, for solid-fuel units, the variability i n the amount of a pollutant in the fuel would be reflected in the emissions performance of the units but decided that “[f]or existing and new liquid fuel units, the fuels making up the best performing units demonstrated less variability in their composition and type, and there were a smaller pool of available test runs. EPA determined that an additional fuel variability factor was necessary in these cases.” EPA’s added emission factor makes only a slight (5 percent) differ ence in that case, but, if applied to solid fuel-fired units, would increase the standard by an order of m agnitude. 22

[Footnote: 22 Memorandum, Eastern Research Group to Shrager, B, USEPA

, Revised MACT Floor Analysis (November 2011)

for the Industrial, Commercial, and Institutional Boilers and Process H eaters National Emission Standards for Hazardous Air Pollutants – Major Source, November, 2011 (“MACT Floor Memo”) Appendix C-4-(a)(i). p. 7.]182

Response: See response to EPA-HQ-OAR-2003-0119-2599-A1 excerpt 3 on the fuel variability. Note that, in CISWI for most subcategorie s and pollutants, we have not incorporated a FVF in establishing the emission limits. Therefore, we note that this comment appears to address actions taken in the boiler NESHAP, not this fi nal CISWI rule.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 5

Comment: EPA asks whether it should adjust its floor calculations to account for fuel variability. To do so would be unlawful and arbitrary. Secti on 129(a)(2) directs that standards for new units “shall not be less stringent than the emissi ons control that is achieved in practice” by the best controlled unit. 42 U.S.C. § 7429(a)(2). For existing units, standards “shall not be less stringent than the average emissions limitation achieve d by the best performing” twelve percent of units. Id . The emissions standards must reflect a reasonable e stimate of the actual performance of the best units. Sierra Club v. E.P.A. , 479 F.3d 875, 882 (D.C. Cir. 2007). The need to adjust for variability to capture the actual performance of the best sources must be supported by record evidence. Id. at 881 (quoting Cement Kiln Recycling Coal. v. E.P.A. , 255 F.3d 855, 865 (D.C. Cir. 2001)) (EPA must point to “actual variability data” i ndicating “that the best performing sources ever experience a wide range of variability at a ll.”). As pointed out in the Petition, EPA’s UPL approach already wildly overstates emissions varia bility and produces emissions limits far higher than those that a lawful approach would yield. Ad justing emissions standards to account for fuel variability would further aggravate this problem. I t also would be unlawful and arbitrary, because EPA’s emissions standards already account for f uel variability. EPA’s UPL approach to variability is based on emissions data, which necessaril y reflect fuel variability. Fuel variability, therefore, already appears as emissions variability. E PA would impermissibly double-count fuel variability if it made a separate adjustment for fuel va riability on top of its predictions of emissions variability.

Response: See response to EPA-HQ-OAR-2003-0119-2599-A1 excerpt 3 on the fuel variability. Note that, in CISWI for most subcategorie s and pollutants, we have not incorporated a FVF in establishing the emission limits. Therefore, we note that this comment appears to address actions taken in the boiler NESHAP, not this fi nal CISWI rule.

With respect to the commenter’s claims about “double coun ting” variability in boilers through use of a FVF, we offer the following response to this sa me commenter taken from the Response to Comments document for the boiler rulemaking:

“EPA disagrees that the fuel variability factor (FVF) constitutes double-counting of variability. In this case, we applied the UPL to assess source variabil ity. Specifically, the MACT floor limit is an upper prediction limit (UPL) calculated with the S tudent’s t-test using the TINV function in Microsoft Excel®. The Student’s t-test has also been us ed in many other EPA rulemakings to account for variability. A prediction interval for a f uture observation is an interval that will, with a specified degree of confidence, contain the next (or som e other pre-specified) randomly selected observation from a population. In other words, t he prediction interval estimates what the183

upper bound of future values will be, based upon present or past background samples taken. The UPL consequently represents the value which we can expect the mean of future observations to fall below within a specified level of confidence, based upon the results of an independent sample from the same population. Therefore, if we were to randomly select a future test condition from any of these sources, we can be 99 percen t confident that the reported level will fall at or below the UPL value. Use of the UPL is appro priate in this rulemaking because it sets a limit any single or future source can meet based on the pe rformance of the MACT floor sources data pool. This formula uses a pooled variance (in the s2 t erm) that encompasses all the datapoint to data-point variability of the best performing sour ces comprising the MACT floor pool for each HAP.

EPA also received comments claiming that this final ru le raises the (perceived) quandary voiced by Judge Williams in his concurring opinion in Brick MACT whe re an achieved level of performance for purposes of CAA section 112(d)(3) results in a standard which is unachievable under CAA section 112(d)(2) because it is too costly or not c ost-effective. Brick MACT, 479 F. 3d at 884-85. EPA is of course mindful of the repeated admoniti ons from the D.C. Circuit that MACT floors must reflect achieved performance of the best performing units, that HAP content of process inputs (raw materials and fuels) must be acco unted for in ascertaining sources’ performance, and that EPA cannot consider costs in asce rtaining the level of the MACT floor. See, e.g., Brick MACT, 479 F. 3d at 880-81, 882-83; NRDC v. EPA, 489 F. 3d 1364, 1376 (D.C. Cir. 2007) (“Plywood MACT”); see also Cement Kiln Recyc ling Coalition v. EPA, 255 F. 3d 855, 861-62 (D.C. Cir. 2001) (“achievability” requirement of CAA s ection 112 (d)(2) cannot override the requirement that floors be calculated on t he basis of what best performers actually achieved). EPA is also mindful of the need to account for sources’ variability (both due to control device performance and variability in inputs) in as sessing sources’ performance when developing technology-based standards. See, e.g., Mossville Environmental Action Now v. EPA, 370 F. 3d 1232, 1242 (D.C. Cir. 2004); National Lime I, 627 F. 2d 416,433-34(D .C. Cir. 1980). EPA has carefully developed data for each standard, assess ing both technological controls and HAP inputs from fuel in doing so, to accurately measure bot h which performers are best and what their performance is.

The MACT floors reflect a reasonable estimate of wha t the best performing sources will achieve over time. Each of the floors considers the impact of non-technology factors, notably HAP inputs in fuels, on the source’s emissions. For mercury and HCL, the standards reflect 30 days of data from the best performing sources for all fuel inputs (which was collected from boilers and process heaters as part of the ICR), reasonable estima tes of control device performance, plus a reasonable statistical methodology to account for vari ability (including variability of HAP content from fuel inputs). The 30-day fuel variability data show that boiler performance for the source categories at issue (based only on short term s tack test data) does not necessarily reflect the different fuel inputs that were used outside the short term sampling period. Therefore the short term stack test data alone are not necessarily indicative of long term emissions performance. Based on the 30 day fuel input data from the bes t performing sources, it was observed that the mercury and chlorine levels varied signi ficantly at the best performing sources over the 30 day period. Fuels combusted within a short term three hour test would be expected to be fairly consistent in their levels of mercury and chl orine, but the 30 days of data provided by industry in response to EPA’s ICR data collection show s ignificant variations in levels of these pollutants from the fuel that is combusted by boilers and process heaters over longer periods of184

time. In light of this, we applied the fuel variability fa ctor to reflect the variation of HAP from fuel inputs. The FVF accounts for fuel variability between sources using long term fuel measurement data that represent inherent natural variatio ns in fuel usage at the best performing units over time. The FVF is the average of the individual FVF that were calculated for each best performing unit using the mercury and chlorine content of sample s collected over a 30 day period. The FVF was used in conjunction with the 99% UPL t o characterize long-term variability due to technological controls and fuel characteristics. T he results are MACT floors which reasonably estimate the performance over time of the best performing sources.”

Commenter Name: Stephen R. Gossett, Senior Environmental Associate Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2569-A2 Comment Excerpt Number: 4

Comment: Eastman is providing data so that Fuel Variability Factor s can be developed and applied for any of its ERUs that are top performers in the final CISWI standards.

Eastman submitted comments on the June 4, 2010 proposed rule t hat EPA should apply Fuel Variability Factors (FVFs) to the MACT floor levels as determined from short term stack test or CEMS data. Eastman also included this issue in its Petitio n for Reconsideration on CISWI submitted May 19, 2011.

On page 80462 of the reconsideration proposal, EPA states th at it would consider an approach similar to the waste-burning kiln Hg limits for other po llutants and subcategories. EPA’s discussion from the preamble is shown below:

The proposed and final CISWI rule emission limits were calculated based pr imarily on emissions test data. Commenters urged the EPA to incorporate fuel variability i nto the emission limit calculations as was done in the boiler NESHAP. Petitioners have since claimed that the EPA did not adequately address comments regarding this issue. In today’s proposal, we are providing further clarification on our response to this issue.

In the preamble to the final CISWI rule, we explained the methodology use d to establish the final emission limits, which relied almost exclusively on direct meas urements. Commercial and Industrial Solid Waste Incineration units by definition are burning wastes, usual ly in combination with various non-waste fuels, and often with a variety of diff erent waste streams. As a result, fuel variability data would only account for a variability found i n a fraction of the materials being input into the unit. We have, in fact, considered total m aterial feed variability in establishing limits for Hg for waste burning kilns (76 FR 15727). To enable this analysis, we had to rely on data available from sources that provided materials analysis for all materials being fed into Portland cement kilns over a 30-day span. We did not, and do not still , have such data available for other pollutants and other types of CISWI units. Therefore, we are not proposing185

the use of fuel variability in our emission limit methodology, except as noted above. We are requesting comments and supporting data that would allow us to consider an approach simi lar to the waste-burning kiln Hg limits for other pollutants and subcategories.

Eastman has three coal-fired ERUs in the CISWI databa se. Eastman provided historical contaminant (sulfur, lead, mercury, and chlorine) le vel data on the coal supply to these three ERUs in its comments on the proposed rule submi tted August 23, 2010 that should be suitable for developing FVFs should any of these ERUs be a top performer in the MACT floor determinations. Based on our other comments in this com ment package, we believe that EPA should remove the PCA Combination Boiler #2 from the CISWI database. When EPA does this, Eastman’s ERUs will become top performers in the MACT floor determinations for particulate matter, cadmium, and lead. Eastman’s Boile r 20 is already the top performer in the floor determination for sulfur dioxide (SO 2 ) and EPA could have already developed a FVF for SO 2 . Further, if EPA accepts commenters’ request that coa l ERUs be in a separate subcategory from biomass ERUs for purposes of setting mercury and hydr ogen chloride emission limits, Eastman’s ERUs will be top performers for those polluta nts as well.

To assist EPA with developing these FVFs, Eastman is aga in submitting its coal data and has updated this dataset with analytical data obtained since the previous comments in 2010. Eastman’s ERUs (Boilers 18, 19, and 20) burn bituminous coal a long with, at times, a nonhazardous secondary material (industrial sludge) and we are also submitting historical data on the pollutant levels in this material as well.

Found also in Attachment 1 is a document we have prepared to determine FVFs for the units using the procedure EPA developed in the Boiler and Process Heater MACT (see Revised MACT Floor Analysis (2011) dated January 4, 201, starting on page 15).

We note EPA specifically requests data that would allow use of an approach similar to the wasteburning kiln Hg limits. The data we have provided could also serve EPA’s purposes should they choose to apply this approach.

Response: We thank the commenter for providing fuel variability data for Hg, Cl and Pb for our consideration. We have considered these data and have de cided, for several reasons, that we are going to finalize our approach at proposal in not include a fuel variability factor in our determination of emission limits for the subcaregories at issue. To begin with, as discussed elsewhere, we have subcategorized biomass and coal ERUs for all nine pollutants, which ensures the resulting emission limits accurately account for di fferences in the units designed to burn coal or biomass, respectively. In addition, we are not chang ing the definition of coal or biomass ERUs as the commenter has suggested, therefore the comm enter’s units are not the best performer for several pollutants within the ERU coal sub category for which they provided data. In addition, we recognize that CISWI ERU may combust a v ariety of fuel and solid wastes within their units. Since we have fuel variability data for one facility within the subcategory of coal ERUs, we would be applying this fuel variability factor for sources that may not be reflective of materials being combusted by other sources within the ERU coal subcategory. Furthermore, our analysis indicates that the best perf orming sources in this subcategory, which are operated by the commenter, are able to meet the fina l emission limits, which indicates that we have adequately accounted for variability when establishi ng the emission limits for this186

subcategory. In light of these facts, we believe it w ould be unreasonable to consider further adjust the limit based on the fuel variability data provi ded.

Commenter Name: Stephen R. Gossett, Senior Environmental Associate Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2569-A2 Comment Excerpt Number: 5

Comment: Following the procedure EPA developed for the Boiler MAC T, the Fuel Variability Factors can be developed by comparing historical pollutant co ncentration data with data paired to the top performer emission test period. In this case , since there is only one unit in the floor determination, the FVF is determined by dividing the average plus three standard deviations from the historical concentration data by the concentr ation data from the emission test period for the top performing unit.

Shown below are stack test data reported in the 2008 ICR Ph ase I Survey for Boilers 19 and 20 for HCl, Hg, Lead, and Cadmium:[See Submittal for table].

Between these two boilers, Boiler 19 would be the top per former for mercury, lead, and cadmium and Boiler 20 would be the top performer for hydroge n chloride.

First the feedrates of the pollutants during these top perf orming stack tests are shown below from both the coal and the industrial sludge.[See Submittal for tables].

HCl Top Performing Stack Test; Boiler 20 on December 1, 2004 ( see enclosed stack test report: Stationary Source Sampling Report for Boiler 20, Building 83 dated April 22, 2005):[See Submittal for table].

Hg Top Performing Stack Test; Boiler 19 on December 14, 2005 (see enclosed stack test report: Stationary Source Sampling Report for Boiler 19, Building 83 Conducted December 14 2005) [See Submittal for table].

Pb, and Cd Top Performing Stack Test; Boiler 19 on March 9, 2005 (see enclosed stack test report: Stationary Source Sampling Report for Boiler 19, Bui lding 83 Conducted March 8-9, 2005) [See Submittal for table].

For SO 2 , Eastman has submitted as part of the ICR Phase II Te sting program 30 days of SO 2 CEMS data from Boiler 18. This data was very consistent (ranging from 596 to 660 ppm) based on the coal being burned in the Building 83 Powerhouse during t hat period. The sulfur content in the coal during this period was 0.85 percent. The industrial s ludge has an average sulfur content of 0.18 percent. Based on their typical relative feedrate s, coal would account for about 95 percent of the sulfur loading.

EPA’s method in the Boiler MACT for determining Fuel Var iability Factor basically identifies as outliers all fuel data that is above the average pl us three standard deviations of the population of pollutant concentration data. For multi-fuel boile rs, they select the predominant fuel for each pollutant to determine its FVF. In this method presented here, the coal is clearly predominant over the industrial sludge for relative loadings of sulf ur, so we will follow the EPA method. For187

the remaining pollutants, we are doing a more accurate an alysis by determining the weighted average FVF considering the population of pollutant concent rations from each material fed. Cadmium is not detected in either the coal or the indust rial sludge, so no FVF will be determined for it.

The average plus three standard deviations of the ratios of the historical data to the emission test paired data for the coal and industrial sludge were determined f rom the past several years (2003- 2011 for industrial sludge and 2005-2011 for coal) of routine sampli ng and analysis that Eastman has performed on these materials. This data and calculat ions are shown in the attached Excel Files (Coal Variability Data for Boilers 18-20 and Eastma n Industrial Sludge Variability). The results are shown below: [See Submittal for table summ arizing ratios of historical data to paired data]. The FVFs we have determined using this methodology are shown below [FVF for SO 2 = 1.4, HCL = 2.4, Mercury = 3.3 and Lead = 1.2] (see the attached Ex cel file “FVFs for Coal ERUs” for the spreadsheet calculations) and should be multiplie d by the 99 percentile Upper Predicted Level (UPLs) to derive the emission standard. It is appro priated to apply the FVF since there is only one test result for each pollutant and only a short 30 da y period of consistent SO2 CEMS data. In this way, the normal variability of the feeds can be properly incorporated into the standard setting process:

Response: We thank the commenter for providing data for our cons ideration. See the response to EPA-HQ-OAR-2003-0119-2569-A2 excerpt 4.



### 2K. Review of D/F Data and Non-Detect Methodology Using Three Times Detection Level

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 14

Comment: EPA requested comments and data on whether 0.3 ng TEQ/dscm is sufficient to reflect the quantifiable concentration levels (76 Fed. Re g. at 80,463). Before discussing the relative merits of a specific concentration level, a few terms need to be defined. When Method 301 was initially promulgated (58 Fed. Reg. 27,338, June 13, 1991), it de fined the practical quantification limit (PQL) as the lowest limit above w hich quantitative results may be obtained with an acceptable degree of confidence. The Method defines PQL as 10 times the standard deviation at a blank level. This PQL corresponds to an uncert ainty of ±30% at a 99% confidence limit. The method goes on to say that the PQL will be used to establish the lower limit of the test method. In 2011 (76 Fed. Reg. 28,664, May 18, 2011), EPA revised this met hod to use a Level of Detection (LOD) which was three times the standard de viation of a blank. When this rule was proposed (69 Fed. Reg. 76,642, December 22, 2004), commenters suggeste d that this would correlate to a ±100% uncertainty at a 99% confidence limi t. Based on the uncertainty estimate, CRWI believes that the 2011 modification is inappropriate and should not be used.188

The results of all sample analysis are an estimatio n of the true mean. To make sure that the facility and the laboratory do not create a number of ei ther false positives (true mean is below a standard but the test results show a value above the sta ndard) or false negatives (true mean is above the standard but the test results show a value bel ow the standard), facilities and the Agency must be confident that the results presented are a reasonable estimate of the true mean.

CRWI is aware of two sets of data that can address this issue. The first is the paired train data for dioxins and furans that is included in the ReMAP study (Amer ican Society of Mechanical Engineers, Reference Method Accuracy and Precision (ReMAP): Phase1, Precisi on of Manual Stack Emission Measurements, CRTD Vol. 60, February 2001). In this analysis, they determi ned that the average standard deviation for paired samples (m ajority of the data is below 0.4 ng TEQ /dscm) was 0.027. If one multiplies this standard deviation by 10 (i.e., according to the 1991 PQL definition), it would give a value of 0.27 ng TEQ/dscm, a n approximation of a PQL for dioxin/furans. The second set of data was compiled by Analy tical Perspectives. This company specializes in the analysis of various organic pollutants including dioxins and furans. The company has a significant amount of data that allows the m to estimate the predicted and upper and lower uncertainty limits associated with different concentrations of dioxins/furans. "[See submittal for Figures 1 and 2 provided by commenter showing the a nalysis for a large number of actual Method 23 data (presented at SETAC North America 32 nd Annual Meeting in Boston, MA, November 2011)]

As one can see from the data, the uncertainty increas es as the concentrations of dioxin/furans decrease. This is consistent with the conclusions in the ReMAP study. This data set has sufficient number of points (greater than 400) to develop predictive equat ions for the expected, lower, and upper uncertainty limits. Using these equations, we can ma ke independent estimates of the uncertainty levels for various concentrations. "[See s ubmittal for the data table provided by commenter showing the predicted and ranges of uncertaintie s for several estimates.]

The data in this table represent the uncertainties of th e mean. To get to the 99% confidence limit of the uncertainty, you must multiply by three. This is to make it comparable to the ±30% uncertainty at a 99% confidence limit of a PQL. As one can see, if the 2011 version of Method 301 LOD is used, it would result in a central estimate of uncertainty to be ±60% (20 times 3) but could be as low as ±45% (15 times 3) or as high as ±81% (27 tim es 3). This is similar to the uncertainty suggested by commenters when this change was prop osed. Even the 1991 version of Method 301 falls short of having a central estimate of ±30% uncertainty (central estimate – ±42%, lower estimate– ±30%, and upper estimate – ±57%). To get to a ±30% central estimate at 99% confidence comparable to a PQL, one has to go to 258 pg TEQ/ dscm. This is remarkably close to the 0.27 ng TEQ/dscm as estimated from the ReMA P data.

Two different data sets analyzed in different manners hav e been used to estimate the lowest value that can be reliably measured for dioxin/furans. One estimate is 0.27 ng TEQ/dscm while the other estimate is 0.26 ng TEQ/dscm. If rounded up, both woul d produce a lowest value that can be determined at a ±30% uncertainty at a 99% confidence w ould be 0.3 ng TEQ/dscm. CRWI believes that any estimate below that value would violate data quality objectives and would pose an unnecessary level of uncertainty on any tes t results, allowing for too many false positives.189

Response: In the Note in the docket entitled “Data and procedure fo r handling below detection level data in analyzing various pollutant emissions databas es for MACT and RTR emissions limits”, (Westlin & Merrill, 2011), we describe how we pooled availabl e reported pollutant specific method detection levels for best performing units to develop representative detection levels (RDLs) for each pollutant. This note describes the process used to calculate three times the RDL and compare that value with the calculated MACT floor limit. The lowest calculated dioxin/furan TEQ emission limit for any new or existing CISWI unit in any subcategory in the final rule is 0.0029 ng/dscm at 7% O 2 for the waste burning kiln subcategory. For waste burning kilns, the rule specifies collection of a minimum volum e of 4 dry standard cubic meters which corresponds to 0.012 ng/dscm @ 7% O 2 (e.g. 0.0029*4 = 0.012ng/dscm @ 7% O 2 ) which is less than the estimated three times RDL of 0.075 ng/dscm@ 7% O 2. Therefore, EPA believes that measurement variability is adequately addressed in setting di oxin furan TEQ limits using three times the RDL and we disagree that the 0.258 ng TEQ/dscm l imit suggested by the commenter should be adopted.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 10

Comment: EPA must rework its data on Dioxin/Furans (D/F ): In response to EPA's request for comment on the revised limit for D/F, PCA remains con cerned regarding the use of limits at the detection limits despite EPA 's revised approach to address t hese concerns (76 Fed. Reg. at 80462). To support our comments, PCA consulted with Yves Ton deur of Analytical Perspectives, an expert on laboratory analyses of dioxi n/furan (D/F) stack testing sample trains. Analytical Perspectives has analyzed a data set of seve ral hundred stack test samples, with the results presented as follows.

Analysis points:

• In order to establish meaningful quantitative emissions limits for compliance, the uncertainty at the 99% confidence level must not exceed 30% for measuremen ts at the limit.

• Graph 1, [See submittal for graph 1 provided by commenter.] , illustrates that the ability to make a correct determination whether stack testing resul ts comply with or exceed an emissions limit significantly increases when the uncertainty decr eases.
• Graph 2 [See submittal for graph 2 provided by commenter.] plo ts the percent uncertainty (%uc; combined standard uncertainty) versus the emissions rat e for several hundred data points from actual stack test data. The blue line on the graph re presents the predicted percent uncertainty. The red and green lines represent the upper an d lower limits, respectively, of uncertainty. When you move across the I 0% uncertainty line, it intersects with the blue line (predicted uncertainty) at an emissions rate of 495 pg TEQ/tr ain at I 2% 02• This emissions rate, when converted to a regulatory limit, becomes 258 pg TEQ/dscm at 7% 02.

As documented by the graphs, the analysis of a significan t amount of actual D/F stack test data indicates that the lowest emissions rate limit that can be justified from the existing data with a190

99% confidence that the actual test data can accurately be determined to be above or below the limit with a 30% uncertainty (10% x 3 standard deviations for 99% confidence) is an emission rate of 0.258 ng TEQ/dscm (values corrected to 7% 02). Under these conditions there is a 99% confidence that a measurement of 0.258 ng TEQ/dscm correcte d to 7%02 reflects a true value between 0.181 and 0.335 ng TEQ/dscm corrected to 7% 02•

EPA recommended this concept in the 2004 Method 301 revision of t he proposed method as a goal, and should adopt this approach in developing an emissio ns limit for kilns. When developing regulatory limits close to levels of detectio n, the data on Graph 2 shows that the uncertainty increases and the confidence of demonstrating compliance becomes very low. This continues to be a significant concern for PCA members.

PCA appreciates EPA's attempt to set emissions limits th at address the limits of detection for D/F. However, PCA requests that EPA should not additio nally lower the emission standard for D/F either new or existing waste burning kilns. In fact, based on the discussion above, we believe it is critical for EPA to reconsider, and esta blish standards at or above 0.258 ng TEQ/dscm corrected to 7% 02 for both existing and new waste bur ning kilns.

Response: We disagree that a limit of less than 0.258 ng TEQ/dscm can be established and measured. See the response to EPA-HQ-OAR-2003-0119-2572-A1, excerpt No. 14 for further elaboration.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2 Comment Excerpt Number: 19

Comment: The emissions limits for D/F for kilns contained in the December 23, 2011 Federal Register are below a level that can be measured with an acceptable level of certainty. PCA’s comments address this concern in more detail. CEMEX be lieves that the emissions rate of 0.258ng TEQ/dscm, corrected to 7% O 2 as recommended by Dr. Tondeur, a recognized expert in the analysis of D/F data, is a more appropriate D/F emi ssions limit. We are very concerned that anything lower cannot be measured with reasonable certainty

. Response: We disagree that a limit of less than 0.258 ng TEQ/dscm can be established based on the data available to the agency and that the level em issions of the final emission limits cannot be reliably measured. See the response to EPA-HQ-OAR-2003-0119-2572-A1, excerpt No. 14 for further elaboration.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 5

Comment: Although EPA has stated its intention to develop standa rds that are at least three times the detection limits of the test methods that s ources must use to demonstrate compliance,191

its procedure for doing so is flawed. The procedure for deve loping a “representative detection limit” takes into account only the capabilities demonstr ated by a limited number of laboratories and does not factor in the uncertainty associated with stack sampling.

Response: For response on procedures for setting the RDL please see EPA-HQ-OAR-2003- 0119-2572-A1, excerpt No. 14. Regarding the additional concern that the RDL determination does not take into account the error associated with samp ling procedures, we expect the combined sampling error (from measurement of sample flow, volume, temperature, moisture, etc.) to be relatively minor (3 to 5%) in comparison t o that for the sample analysis.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 34

Comment: EPA Has Improperly Determined the Representative Detecti on Limit for Floor Setting

In the December 23, 2011 proposal, EPA explained that to esta blish the stack test-based emission standards for different pollutants, they used the following procedure:

1. EPA utilized the data provided by source operators to identi fy the best performing sources for each subcategory and for each pollutant.

2. Using the data for the best performers, EPA calculat ed the 99 percent UPL for each pollutant and source subcategory.

3. The above calculated values were compared to three ti mes the representative detection limit (RDL) for each pollutant, and the emission standards we re set at the higher of the UPL or the three times RDL value.

4. EPA calculated the RDL for each pollutant by averaging the detection limits for that pollutant which were reported by the best performing sources in all s ubcategories.

We support EPA’s decision to multiply the representative detection limit by three to determine the lowest level at which the emission standard for any pollutant could be set. We are, however, concerned that EPA’s approach in calculating the represe ntative detection limits for various pollutants by averaging the detection limits achieved by the best performers is based only on partial information on method detection limits and is, consequently, incorrect and needs to be modified.

In response to EPA’s reconsideration of the boiler M ACT and CISWI standards, NCASI submitted extensive comments to EPA which noted that (1) s ource emission testing has three components, namely source sampling, sample recovery, a nd sample analysis, (2) the errors associated with sample collection and recovery are mu ch greater than those associated with sample analysis, and (3) to determine the source test met hod detection and quantitation limit,192

EPA procedures must account for the variability associate d with source sampling and sample
recovery.
These issues were also identified in an ASME report ent itled “Reference Method Accuracy and Precision (ReMAP), Phase 1,” which examined the precisio n of selected EPA source emission test methods. The report, which is referenced in the De cember 23, 2011 EPA proposal, makes several important points: (1) there are both random err ors and systematic errors (bias in the measurement process, (2) “the magnitude of random errors associated with extraction and recovery of the sample from the stack might be expecte d to vary in proportion to stack concentrations,” and (3) “estimation of method precision must be based on data from special tests where multiple sampling trains are used simultane ously to determine the stack pollutant concentration.” In its proposal, EPA has ignored thes e issues and considered only the precision of laboratory analytical measurements in establishing method RDLs. We urge EPA to carefully evaluate the method quantitation limited-related issues ra ised by NCASI in its July 15, 2011 comments and the comments submitted in response to the D ecember 23, 2011 proposal.

We believe that consideration of these issues will re sult in higher RDL values for several of EPA’s reference test methods and will raise the emiss ion standards for many source categories.

Response: The EPA thanks the commenter for their support of usin g 3x RDL in determining the floor levels. For response on procedures for setting the RDL please s ee EPA-HQ-OAR-2003-0119-2572-A1, excerpt No. 14. We also note that the NCASI comments r eferred to by the commenter were not submitted to the CISWI docket.

Regarding the additional concern that the RDL determinat ion does not take into account the error associated with sampling procedures, we expect the combined s ampling error (from measurement of sample flow, volume, temperature, moist ure, etc.) to be relatively minor (3 to 5%) in comparison to that for the sample analysis.

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2642-A2 Comment Excerpt Number: 3

Comment: Section I(C)(9) of the preamble of the proposed rule (o n page 80463 FR) indicates that the dioxin limit was created using three times the laboratory detection limit as the quantitation limit for measurements. EPA has specifical ly invited comments on this approach in comparison with an alternative provided by a petitioner. T he EPA approach is overly simplistic and does not take into account all of the factors that a re needed to properly determine a quantitation limit for dioxins. Specifically, this approach does not account for differences in the quantitation limits for individual dioxin congeners. It do es not take into account factors that impact both the detection limit and quantitation limit fo r actual field samples that are subject to interferences and matrix effects, nor does this approac h take into account the actual stack sampling and subsequent sample handling impacts on detectio n and quantitation limits in the193

emissions. In order for EPA to set a scientifically d efensible MACT limit on dioxins, all of these factors must be taken into account.

In a peer reviewed paper by Rigo and Chandler, duplicate samp ling trains were used to calculate the quantitation limit. Rigo and Chandler found in this st udy, published by the Journal of Air and Waste Management1, that the Reference Method Quantitati on Limit for PCDD/PCDF TEQ in a municipal waste combustor may be as high as 0.51 ng/dscm. We note that this value is very similar to the petitioner’s suggested limit of 0.3 ng/dscm T EQ that EPA references on page 80463 FR of the preamble. We support such a limit value statis tically derived from a large number of actual stack tests on cement kilns which takes in to account the sampling and matrix effects on the quantitation limit, rather than the se emingly arbitrary approach suggested by EPA.

[Footnotes]

(1) Rigo, H. G. and A. J. Chandler. 1999. “Quantitation Lim its for Reference Methods 23, 26, and 29,” J. Air & Waste Manage. Assoc. 49:399-410

Response: We disagree that a limit of less than 0.3 ng TEQ/dscm can be established based on the data available to the agency and we believe that l evel of emissions at the final emission limits cannot be reliably measured. For response on procedures fo r setting the RDL please see EPAHQ-OAR-2003-0119-2572-A1, excerpt No. 14.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 35

Comment: In setting limits under this rule, EPA has attempted to ensure that they are not set at less than 3 times a “representative detection limit” or RDL.[ 76 Fed. Reg. 80463] Therefore, EPA has not set out procedures for handling non-detect da ta obtained from fuel analyses or stack testing. The RDL was determined based on only the laborato ry analysis data from the top performing units, and does not take into account the error as sociated with sampling procedures. We have not had adequate time to evaluate all of the lim its against what our members typically experience as non-detect levels from the companies used by our members. However, we request that EPA include a provision in the rule that states i f a facility does a stack test or fuel analysis using the appropriate methods and procedures set out in the r ule and obtains a result that is labeled as non-detect but is above the emission limit, the source has 60 days to retest and demonstrate that emissions or fuel constituents are bel ow the standard.

Response: We do not agree with the commenter’s suggested approach. We believe that qualified sampling firms and laboratories should be able to o btain and analyze samples and to be able to obtain quantifiable results equal to an RDL emissio n limit.

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2642-A2 Comment Excerpt Number: 4194

Comment: Table 7 to Subpart CCCC of Part 60 and Table 8 to Subpart D DDD of Part 60 present the same limit for existing and new CISWI cemen t plants for dioxins on a TEQ basis but establish a radically different limit on a total dioxi n basis. This result is counter-intuitive, and may indicate a fundamental problem in the underlying calcul ations and analysis performed to establish these limits. EPA should reexamine the analysi s of the data for dioxins (both TEQ and total) and explain the discrepancy or clarify the limit s.
Response: We agree with the commenter's observation that the emission limit for total mass of Dioxins/Furans in Table 8 to Subpart DDDD of Part 60 for exist ing sources is higher than its counterpart for new sources in Table 7 to Subpart CCCC of Part 60 while the TEQ weighted limit is the same for both new and existing sources. Though this seems counter intuitive, there is an explanation for the existing source total dioxin/furan limit. The limits in Tables 7 and 8 come from a consistent approach for handling data that include results below the detection limit as described in the Note included in the Docket entitled "Data and procedure for handling below detection level data in analyzing various pollutant emissi ons databases for MACT and RTR emissions limits", (Westlin & Merrill, 2011).

In regard to the new source limit, the sum of the congen er-specific dioxin and furan ICR test data contributing to both the total mass limit and the TEQ wei ghted emission limit were reported at concentrations below three times the representative det ection level (3 X RDL) for total mass and TEQ. Following our approach for handling data at or near th e detection limit we set the emission limits at 3 X RDL for both new source limits shown in Table 7.

For development of the existing source limits, some of the congener-specific dioxin and furan data used in the calculation of the total mass and the TE Q weighted emission limits were reported at concentrations below the measurement detecti on limit. The existing source TEQ weighed emission limit was estimated at less than 3 X RDL. Therefore we based the existing source TEQ weighted emission limit on 3 X RDL value whic h is why it is the same as the new source TEQ weighed emission limit. For the total mass emission limit for dioxins and furans from existing sources, there were sufficient congener-spe cific dioxin and furan data reported above the representative detection limit which resulte d in the higher limit found in Table 8.



### 2L. Providing an Option for Sources to use Emissions Averagi ng to Demonstrate Compliance

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 21

Comment: EPA’s rationale for denying requests to include emissions a veraging is not a correct interpretation of its authorities. EPA has already in corporated emissions averaging into the existing section 129 rules and should do so in this rule. In the Proposed Reconsidered rule, EPA states, “[t]he applicability of CISWI is such that eac h unit is an affected facility, if it otherwise meets the applicability of the rule. We cannot allow em issions averaging across affected facilities because we establish MACT on an affected facility basis and it would be impossible to justify195

MACT when averaged across affected facilities.” 76 Fed. R eg. 80463. First, there is precedent for the Agency to include emissions averaging in a sectio n 129 rule. This is found at 40 CFR 60 Subpart Cb – Emissions Guidelines and Compliance Times for Large Municipal Waste Combustors that are Constructed on or Before September 20, 1994: From §60.33b: (d) For approval, a State plan shall include emission limits for nitrogen oxides at least as protective as the emission limits listed in table 1 of this subpart f or designated facilities. Table 1 provides emission limits for the nitrogen oxides concentration l evel for each type of designated facility. (1) A State plan may allow nitrogen oxides emissions aver aging as specified in paragraphs (d)(1)(i) through (d)(1)(v) of this section. (i) The owner or operator of a municipal waste combustor plant may elect to implement a nitrogen oxide s emissions averaging plan for the designated facilities that are located at that plant an d that are subject to subpart Cb, except as specified in paragraphs (d)(1)(i)(A) and (d)(1)(i)(B) of this section. (A) Municipal waste combustor units subject to subpart Ea or Eb cannot be inc luded in the emissions averaging plan. (B) Mass burn refractory municipal waste combustor units a nd other municipal waste combustor technologies not listed in paragraph (d)(1)(iii) of this section may not be included in the emissions averaging plan. (ii) The designated facilities included in the nitrogen oxides emissions averaging plan must be identified in the initial complia nce report specified in §60.59b(f) or in the annual report specified in §60.59b(g), as applicable, prior to imp lementing the averaging plan. The designated facilities being included in the averaging pla n may be redesignated each calendar year. Partial year redesignation is allowable with St ate approval. (iii) To implement the emissions averaging plan, the average daily (24-hour) nitro gen oxides emission concentration level for gases discharged from the designated facilitie s being included in the emissions averaging plan must be no greater than the levels specif ied in table 2 of this subpart. Table 2 provides emission limits for the nitrogen oxides concentra tion level for each type of designated facility. This subpart does not use the term “affected facility”, but rather “designated facility” to define each individual combustor. But that does not stop the Agency from allowing emissions averaging. Note, however, the rule does not allow averagi ng outside the Subpart. We agree that emissions averaging should not cross a Subpart as the dif fering Subparts have different compliance deadlines. EPA should not let these differi ng and uncertain terms restrict its application of emissions averaging, an concept that provi des equal or better environmental outcomes while allowing sources to select the most cost -effective compliance strategies. The preamble to the HON (Hazardous Organic NESHAP for the Sy nthetic Organic Chemicals Manufacturing Industry (SOCM)) provides EPA’s rationale for the emissions averaging provisions. 59 Fed. Reg. 19425. It states that the Agency has b road discretion to define “source” and, in the case of the HON, it is defined as all emiss ion points relating to SOCMI production at a facility. It allows all emission points that have n umerical emission standards to participate in an average. Only equipment leaks, which have no defined allowa ble emission level, are excluded. Process vents, storage vessels, transfer rack, and was tewater streams are all allowed and they all have differing emission standards. EPA has all the lati tude it needs to allow emissions averaging across all units at a given facility that are subject t o a given Subpart, so long as they have an applicable numeric emission limit. EPA should follow t he HON’s provisions (see §63.150(e)) by setting up debit and credit equations to track twelve month mo ving average emissions.

Response: The commenter identifies the one instance in a sec tion 129 standard where EPA allowed averaging in which we allowed averaging for one po llutant, NO X , in 40 CFR Part 60, Subpart Cb. Notwithstanding subpart Cb, we do not believe we have the legal authority to allow emissions averaging in CISWI or under section 129 generally because each individual unit is an196

affected facility, as stated in the proposed reconside ration rule. EPA has not authorized emissions averaging in other section 129 standards since pr omulgation of subpart Cb.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 25

Comment: In its petition for reconsideration, ACC requested tha t EPA allow emissions averaging in the CISWI rule similar to what it allowed in the major source boiler rule. EPA indicates in the Proposed Rule that: The applicability of CISWI is such that each unit is an affected facility, if it otherwise meets the applicabil ity of the rule. We cannot allow emissions averaging across affected facilities because we establis h MACT on an affected facility basis and it would be impossible to justify MACT when averaged acro ss affected facilities (76 Fed. Reg. 80463).

ACC believes that EPA’s rationale for denying requests to include emissions averaging, that a “unit” is an “affected facility”, makes little sense a s there may be multiple “units” at an “affected facility.” A unit is not the same thing as a facility. Moreover EPA has already incorporated emissions averaging into at least one § 129 rule and should do so in this rule.

First, there is precedent for the Agency to include emiss ions averaging in a §129 rule. This is found at 40 CFR 60 Subpart Cb – Emissions Guidelines and Comp liance Times for Large Municipal Waste Combustors that are Constructed on or B efore September 20, 1994: (d) For approval, a State plan shall include emission limits for nitrogen oxides at least as protective as the emission limits listed in table 1 of this subpart f or designated facilities. Table 1 provides emission limits for the nitrogen oxides concentration l evel for each type of designated facility. (1) A State plan may allow nitrogen oxides emissions averaging as specified in paragraphs (d)(1)(i) through (d)(1)(v) of this section. (i) The owner or operator of a municipal waste combustor plant may elect to implement a nitrogen oxide s emissions averaging plan for the designated facilities that are located at that plant an d that are subject to subpart Cb, except as specified in paragraphs

(d)(1)(i)(A) and (d)(1)(i)(B) of this section. (A) Municipal waste combustor units subject to subpart Ea or Eb cannot be included in the emissions av eraging plan. (B) Mass burn refractory municipal waste combustor units and other municipal waste c ombustor technologies not listed in paragraph (d)(1)(iii) of this section may not be included in the emissions averaging plan. (ii) The designated facilities included in the nitrogen oxides emissions averaging plan must be identified in the initial compliance report specified in §60.59b(f) o r in the annual report specified in §60.59b(g), as applicable, prior to implementing the averaging pl an. The designated facilities being included in the averaging plan may be redesignated each calendar year. Partial year redesignation is allowable with State approval. (iii) To implement the emissions averaging plan, the average daily (24-hour) nitrogen oxides emission concent ration level for gases discharged from the designated facilities being included in the emissi ons averaging plan must be no greater than the levels specified in table 2 of this subpart. Tabl e 2 provides emission limits for the nitrogen oxides concentration level for each type of desi gnated facility. (Emphasis added.) The preamble to the HON (Hazardous Organic NESHAP for the Sy nthetic Organic Chemicals197

Manufacturing Industry (SOCM)) Final Rule (provides EPA’s rationale for the emissions averaging provisions. See 59 Fed. Reg. 19425 (April 22, 1994). It states that the Agency has broad discretion to define “source” and, in the case of th e HON, it is defined as all emission points relating to SOCMI production at a facility. It al lows all emission points that have numerical emission standards to be included in an average. Only equipment leaks, which have no defined allowable emission level, are excluded. Proces s vents, storage vessels, transfer rack, and wastewater streams are all allowed and they all hav e differing emission standards. EPA has all the latitude it needs to allow emissions averaging a cross all units at a given facility that are subject to a given Subpart, so long as units are regulated wi th an applicable numeric emission limit. We suggest EPA follow the HON’s provisions (see §63. 150(e)) by setting up debit and credit equations to track twelve month moving average emis sions.

Response : The commenter identifies the one instance in a se ction 129 standard where EPA allowed averaging in which we allowed averaging for one po llutant, NO X , in 40 CFR Part 60, Subpart Cb. Notwithstanding subpart Cb, we do not believe we have the legal authority to allow emissions averaging in CISWI or under section 129 generally because each individual unit is an affected facility, as stated in the proposed reconside ration rule. EPA has not authorized emissions averaging in other section 129 standards since pr omulgation of subpart Cb.

Commenter Name: Stephen R. Gossett Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2640-A2 Comment Excerpt Number: 8

Comment: Eastman has three CISWI units and could conceivably utili ze emissions averaging. On page 80463 of the reconsideration proposal, EPA states “T he applicability of CISWI is such that each unit is an affected facility, if it otherwi se meets the applicability of the rule. We cannot allow emissions averaging across affected facilities be cause we establish MACT on an affected facility basis and it would be impossible to justify MAC T when averaged across affected facilities.”

First, there is precedent for the Agency to include emiss ions averaging in a section 129 rule. This is found at 40 CFR 60 Subpart Cb – Emissions Guidelines and Com pliance Times for Large Municipal Waste Combustors that are Constructed on or B efore September 20, 1994:

From §60.33b:

(d) For approval, a State plan shall include emission limit s for nitrogen oxides at least as protective as the emission limits listed in table 1 of t his subpart for designated facilities. table 1 provides emission limits for the nitrogen oxides concentra tion level for each type of designated facility.

(1) A State plan may allow nitrogen oxides emissions averaging as specified in paragraphs (d)(1)(i) through (d)(1)(v) of this section.

(i) The owner or operator of a municipal waste combustor plant may elec t to implement a nitrogen oxides emissions averaging plan for the designated facilities that are located at that198

plant and that are subject to subpart Cb, except as specified in paragraphs (d)(1) (i)(A) and (d)(1)(i)(B) of this section.

(A) Municipal waste combustor units subject to subpart Ea or Eb cannot be inc luded in the emissions averaging plan.

(B) Mass burn refractory municipal waste combustor units and other municipal waste combustor technologies not listed in paragraph (d)(1)(iii) of this section may not be included in the emissions averaging plan.

(ii) The designated facilities included in the nitrogen oxides emissi ons averaging plan must be identified in the initial compliance report specified in §60.59b(f) or in the annual report specified in §60.59b(g), as applicable, prior to implementing the averaging plan. The designated facilities being included in the averaging plan may be redesignated each cal endar year. Partial year redesignation is allowable with State approval.

(iii) To implement the emissions averaging plan, the average daily (24-hour) nitrogen oxides emission concentration level for gases discharged from the designated facil ities being included in the emissions averaging plan must be no greater than the levels specifi ed in table 2 of this subpart. table 2 provides emission limits for the nitrogen oxides concentr ation level for each type of designated facility.

This subpart does not use the term “affected facility”, but rather “designated facility” to define each individual combustor. But that does not stop the Agen cy from allowing emissions averaging. Note, however, the rule does not allow averagi ng outside the Subpart. We agree that emissions averaging should not cross a Subpart as the dif fering Subparts have different compliance deadlines.

EPA should not let these differing and uncertain terms restrict its application of emissions averaging, an concept that provides equal or better environmen tal outcomes while allowing sources to select the most cost-effective compliance strategies.

The preamble to the HON (Hazardous Organic NESHAP for the Synthetic Organic Chemicals Manufacturing Industry (SOCM)) Final Rule (Federal Regi ster, April 22, 1994, starting on page 19425) provides EPA’s rationale for the emissions averaging provi sions. It states that the Agency has broad discretion to define “source” and, in the case o f the HON, it is defined as all emission points relating to SOCMI production at a facility. It all ows all emission points that have numerical emission standards to participate in an average . Only equipment leaks, which have no defined allowable emission level, are excluded. Process ve nts, storage vessels, transfer rack, and wastewater streams are all allowed and they all have differing emission standards.

EPA has all the latitude it needs to allow emissions averaging across all units at a given facility that are subject to a given Subpart, so long as they have an applicable numeric emission limit. We suggest EPA follow the HON’s provisions (see §63.150(e)) by setting up debit and credit equations to track twelve month moving average emissions.

Response: The commenter identifies the one instance in a secti on 129 standard where EPA allowed averaging in which we allowed averaging for one po llutant, NO X , in 40 CFR Part 60, Subpart Cb. Notwithstanding subpart Cb, we do not believe we have the legal authority to allow199

emissions averaging in CISWI or under section 129 generally because each individual unit is an affected facility, as stated in the proposed reconside ration rule. EPA has not authorized emissions averaging in other section 129 standards since pr omulgation of subpart Cb.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 10

Comment: EPA correctly rejects the request by industry for latit ude to determine compliance by averaging emissions across various CISWI units. As EPA recognizes, such an approach would be contrary to the Clean Air Act, because each CI SWI unit is a facility. Section 129 requires EPA to ensure compliance by each facility wit h emissions limits, not merely reductions in the aggregate emissions of the CISWI category.

Response: EPA is not authorizing emissions averaging in the fina l CISWI rule.



### 2N. Allowances for Using Feed Stream Analysis or Other Su pplemental Information to Demonstrate Compliance

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 18

Comment: In the existing rule, EPA establishes a list of monito ring parameters for facilities using specified devices such as a fabric filter, electrost atic precipitator, or activated carbon injection. In its proposed rule, EPA asks whether there are additional types of control where they should identify monitoring parameters. 76 Fed. Reg. 80,464. CRW I says, yes.

While noting that some CISWI units may not have air poll ution control devices and might need to use material balance operating limits to demonstrate c ompliance, EPA does not provide routine procedures for the affected source to implement. I nstead, it allows the facility to petition for specific operating limits. 76 Fed. Reg. 80,464; 40 CFR § 60.2680. I f a CISWI unit does not need an air pollution control device, it is most likely be cause the feeds have very low concentrations of a number of pollutants of concern. It seems odd that such low emitting facilities will have to go through more administrative procedure to establish emission limits than other units.

A material balance simply consists of determining the amount of a pollutant entering the combustion source in the feed or the maximum allowable amount of a pollutant that could enter in the feed, and then assuming that 100% of it is emitted. If a source can use this method for some or all of the pollutants, it could greatly simplify continuous compliance as well as the complexity and cost of a performance test. Such an approac h would only involve knowing the feed rate (charge rate is already a requirement), a pe riodic analysis of the feed (such as an annual analysis), and a combustion air flow rate. From the flue gas flow rate and the relevant emission200

standard, the source could back calculate what the maximum allowable feed rate of the pollutant could be and then demonstrate that they don’t or can’t ex ceed that value by analyzing feeds. Some pollutants that are created in the combustion proces s such as nitrogen oxides, dioxin/furan, and CO, would not be amenable to this method, but others such as sulfur, chloride, lead, cadmium, mercury, and ash (for PM) would be. CRWI request s that EPA provide such a mechanism in § 60.2015 and § 60.2680. In doing so, EPA could avoid requiri ng sources to petition for operating limits thereby conserving agency re sources in reviewing the petitions.

To implement such an approach, CRWI suggests the following r evisions to the regulatory text at § 60.2680. CRWI also requests similar text at § 60.2015 for subpar t CCCC for the same reason. Underlined text is CRWI’s suggested language, while strikethrough text is CRWI’s requested deletion:

(a) If you use an air pollution control device other than a wet scrubber, activated carbon injection, selective noncatalytic reduction, fabric f ilter, or an electrostatic precipitator or limit emissions in some other manner, including by mass balances balancing under paragraph (b) of this section , to comply with the emission limitations under § 60.2670, you must petition the EPA Administrator for specific operating limits to be establ ished during the initial performance test and continuously monitored thereafter. You must not conduct t he initial performance test until after the petition has been approved by the Administrato r. Your petition must include the five items listed in paragraphs (a)(1) through (5) of this sect ion.

* * * * *

(b) [Reserved] If you limit emissions of cadmium, hydrogen chloride, lea d, mercury, and/or sulfur dioxide by using a mass balancing approach, you must do the following:

(1) Establish a charge rate of solid waste feed and fuel (u nless a fuel such as natural gas would not be expected to be a source of the pollutants for whic h the mass balance is used). The operating limit is the highest 1-hour average rate measured during the most recent performance
test.
(2) Establish an air flow rate for the emission point. The operating limit is the highest 1-hour average rate measured during the most recent performance t est.

(3) Establish a concentration of cadmium, chloride, lea d, mercury, and/or sulfur in the solid waste and fuel (unless a fuel such as natural gas would not be expected to be a source of the pollutants for which the mass balance is used) by analysis of samples collected during the performance test (on a 30-minute frequency and composited for analysis).

(4) Use the charge rate, air flow rate, and pollutant co ncentration to calculate and demonstrate that emissions of the respective pollutants are less tha n the respective emission standard for the pollutant.

(5) Operate at limits less than the charge rate and air flow rate once those limits are established during the most recent performance test.

If EPA does not include such provisions in the rule, CRW I asks that EPA acknowledge in the preamble to the reconsideration final rule that a mater ial balance approach could be approvable201

even though a petition might still be needed. This statem ent is necessary to clear up any confusion that may exist over EPA’s statement that it does not have authority to allow material balance under Section 129. Such preamble language could ease th e review process for petitions should EPA not agree to our request for changes to the regu latory text.

Response: As we discussed in the preamble to the proposed rule, EPA has not proposed allowances for using feed stream analysis or other supple mental information to demonstrate compliance because EPA believes that direct measureme nt of emissions is the most comprehensive and accurate method to ascertain compliance with the final standards. Sources must monitor pollutants with annual stack tests in conjunc tion with parametric monitoring or with CEMS. We do not believe that the regulatory text sugge sted by the commenter is appropriate, in the final rule, for sources that do not require air pollution control devices to comply with the rule. In Section §60.2115, we require sourc es to petition the EPA Administrator for specific operating limits for equipment other than we t scrubbers, activated carbon injection, selective noncatalytic reduction, and electrostatic pre cipitators. We believe that this alternative monitoring petition procedure also applies to scenarios whe re no APCD is used for compliance and we have added specific language to that effect in Secti on 60.2115. Because these parameters are set on a site-specific basis, we have reserved th is authority believing that there is a need to maintain national consistency in implementing this secti on. “The Good Practices Manual for Delegation of NSPS and NESHAPS” (February 1983) reserves for the EPA Administrator specific areas of rules that impact national consiste ncy. A source may petition the Administrator to establish operating parameters and parameter averaging pe riods in a manner suggested by the commenter if they choose to do so.We further note that the rule contains provisions to allow for less frequent testing for sources with demonstrated good performance (see Sections §60.2155 and §60.2720). We believe that these provisions adequately address the commenter's concerns about the complexity and costs of performance testing.

Furthermore, CAA section 129 (c) states that the EPA "s hall ... promulgate regulations requiring the owner or operator of each solid waste incineration unit - (1) To monitor emissions from the unit at the point at which such emissions are emitted i nto the ambient air ... and at such other points as necessary to protect public health and the environme nt." Thus, even if the source is able to demonstrate that monitoring material inputs is suffi cient to assure compliance, the source must still condust periodic stack testing..

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 18

Comment: At 76 FR 80464, EPA asks whether there are additional types of control devices where they should identify monitoring parameters. In thi s Preamble section, EPA recognizes that there are CISWI units that may not have air pollution co ntrol devices and might need to use material balance operating limits to demonstrate complia nce. If a CISWI does not need an air pollution control device, it will likely be because the fe eds have very low concentrations of a number of pollutants of concern, such as a combination o f some or all the following: sulfur,202

chloride, lead, cadmium, mercury, and ash (for PM). A ma terial balance could simply consist of determining 1) the amount of a pollutant entering the source in the feed, or 2) the maximum allowable amount of a pollutant that could enter in the feed, and then assuming that 100% is emitted. If a source can use this method for some or all of the pollutants that we have listed, it could greatly simplify continuous compliance as well as the complexity and cost of a performance test. Dow believes such an approach would only involve knowing the feed rate (charge rate is already a requirement), a periodic anal ysis of the feed (such as an annual analysis as part of the annual performance testing protocol), and a combustion air flow rate. From the combustion air flow rate and the relevant emission st andard, the source could back calculate what the maximum allowable feed rate of the pollutant c ould be and then demonstrate that they do not or cannot exceed that value by analyzing feeds. Some pollutants would not be amenable to this method, such as nitrogen oxides, dioxin/furan, and CO, but the others Dow has listed would be. Dow requests that EPA provide such a mechanism in § 60.2015 and § 60.2680. In doing so, EPA could avoid requiring sources to petition for ope rating limits to be established in a performance test, and could also conserve agency resource s in reviewing the petitions.

Response: EPA has not finalized allowances for using feed strea m analysis or other supplemental information to demonstrate compliance becau se EPA believes that direct measurement of emissions is the most comprehensive and a ccurate method to ascertain compliance with the final standards. See response to EP A-HQ-OAR-2003-0119-2572-A1 excerpt 18 for further elaboration.

Furthermore, CAA section 129 (c) states that the EPA "s hall ... promulgate regulations requiring the owner or operator of each solid waste incineration unit - (1) To monitor emissions from the unit at the point at which such emissions are emitted i nto the ambient air ... and at such other points as necessary to protect public health and the environme nt."

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 19

Comment: For such a mass balance approach, Dow suggests the follo wing revisions to the proposed regulatory text at § 60.2680 and provides supporting rationale for these revisions bel ow. Dow also requests similar text at § 60.2015 for subpart CCCC for the same reason. Double underlined text is Dow’s suggested language, while strikethrough t ext is Dow’s requested deletion:

(a) If you use an air pollution control device other than a wet scrubber, activated carbon injection, selective noncatalytic reduction, fabric f ilter, or an electrostatic precipitator or limit emissions in some other manner, including other than mass balances under paragraph (b) of this section , to comply with the emission limitations under§60.2670, you must petition the EPA Administrator for specific operating limits to be establ ished during the initial performance test and continuously monitored thereafter. You must not conduct t he initial performance test until203

after the petition has been approved by the Administrato r. Your petition must include the five items listed in paragraphs (a)(1) through (5) of this sect ion.

(1) Identification of the specific parameters you propose to use as additional operating limits.

(2) A discussion of the relationship between these paramet ers and emissions of regulated pollutants, identifying how emissions of regulated pollutants change with changes in these parameters and how limits on these parameters will ser ve to limit emissions of regulated pollutants.

(3) A discussion of how you will establish the upper and/or lower values for these parameters which will establish the operating limits on these param eters.
(4) A discussion identifying the methods you will use to meas ure and the instruments you will use to monitor these parameters, as well as the relati ve accuracy and precision of these methods and instruments.

(5) A discussion identifying the frequency and methods for reca librating the instruments you will use for monitoring these parameters.

(b) [Reserved] If you limit an emission of cadmium, hydrogen chloride, lead, mercury, and/or sulfur dioxide by using mass balances, you must do the following:

(1) Establish a charge rate of solid waste feed and fuel (u nless a fuel such as natural gas would not be expected to be a source of the pollutants for which the mass balance is used). The operating limit is the highest 1-hour average rate measured during the most recent performance
test.
(2) Establish an air flow rate for the emission point. The operating limit is the highest 1-hour average rate measured during the most recent performance test.

(3) Establish a concentration of cadmium, chloride, lea d, mercury, and/or sulfur in the solid waste and fuel (unless a fuel such as natural gas would not be expected to be a source of the pollutants for which the mass balance is used) by analysis of samples collected during the performance test (on a

30-minute frequency and composited for analysis).

(4) Use the charge rate, air flow rate, and pollutant co ncentration to calculate and demonstrate that emissions of the respective pollutants are less than the respective emission standard for the pollutant. Since the air rate is an actual emission flow from the source, the amount of pollutant in the feed (charge rate X concentration) can be used to dem onstrate compliance with the respective emission standard.

(5) Operate at limits less than the charge rate and air flow rate once those limits are established during the most recent performance test.

Response: EPA has not finalized the mass balance approach for de monstrating compliance suggested by the commenter. EPA believes that direct mea surement of emissions is the most204

comprehensive and accurate method to ascertain compliance with the final standards. See response to EPA-HQ-OAR-2003-0119-2572-A1 excerpt 18 for further elabo ration.

Furthermore, CAA section 129 (c) states that the EPA "s hall ... promulgate regulations requiring the owner or operator of each solid waste incineration unit - (1) To monitor emissions from the unit at the point at which such emissions are emitted i nto the ambient air ... and at such other points as necessary to protect public health and the environme nt."

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 20

Comment: As an alternative to providing regulatory language for suc h an approach, Dow requests that EPA acknowledge in the Preamble to the reco nsideration final rule that a material balance approach such that Dow has described could be approva ble even though a petition might still be needed. Such Preamble language could ease the revie w process for petitions should EPA not agree to our request for changes to the regulatory text. Nevertheless, Dow suggests that the better approach would be to provide regulatory language such as w e have provided above so that petitions would not be needed.

Response: EPA has not finalized the mass balance approach for de monstrating compliance suggested by the commenter. EPA believes that direct mea surement of emissions is the most comprehensive and accurate method to ascertain compliance with the final standards. See response to EPA-HQ-OAR-2003-0119-2572-A1 excerpt 18 for further elabo ration.

Furthermore, CAA section 129 (c) states that the EPA "s hall ... promulgate regulations requiring the owner or operator of each solid waste incineration unit - (1) To monitor emissions from the unit at the point at which such emissions are emitted i nto the ambient air ... and at such other points as necessary to protect public health and the environme nt."

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 17

Comment: Using material balancing or feed stream analysis is j ust as accurate as other methods of judging compliance. This method is well known and EPA oft en uses it to judge compliance with air standards in combustion units. For example, th e Agency allows it in a "Tier 1 Analysis" for hazardous waste boilers and industrial furnaces. 40 C FR § 266.106. EPA also allows it to judge compliance with standards in the hazardous waste com bustion MACT. See e.g., 40 CFR § 63.1220(a)(2) and 70 Fed. Reg. 59,402, 59,410, Fn. 11 (October 12, 2005). CRW I notes that gas sampling techniques are simple and the calculation for deter mining compliance is easy. The205

concept, of course, is also simple. It measures the am ount of pollutant in the material and assumes that all of it will be emitted. If the amount of pollutant in the material is less than the limit when conducting the performance test, then the fa cility need only monitor feedrate and flue gas rate to remain in compliance. Thus, EPA knows that thi s is a reliable method of judging compliance.

Response: EPA has not finalized the mass balance approach for de monstrating compliance suggested by the commenter. EPA believes that direct mea surement of emissions is the most comprehensive and accurate method to ascertain compliance with the final standards. See response to EPA-HQ-OAR-2003-0119-2572-A1 excerpt 18 for further elabo ration.

Furthermore, CAA section 129 (c) states that the EPA "s hall ... promulgate regulations requiring the owner or operator of each solid waste incineration unit - (1) To monitor emissions from the unit at the point at which such emissions are emitted i nto the ambient air ... and at such other points as necessary to protect public health and the environme nt."

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 27

Comment: The rule provides only two compliance methods for the fe ed dependent pollutants (cadmium, lead, mercury, sulfur dioxide, and hydrogen chlori de): stack testing/parameter monitoring or CEMS. Now that the CISWI rule is being expa nded to include energy recovery units (boilers) that co-fire solid waste with fossil f uels, ACC requests that EPA provide other compliance options, such as the development of a feed s tream analysis plan. Any feed stream analysis plan option should allow for a 12-month moving a verage to account for the long-term fluctuations in the fuel supplies. Under this option, a sou rce would develop a feed stream sampling plan customized for its specific wastes and fuel types. For a unit that does rely on system control efficiency, the source should be allowe d to establish an allowable feed rate based on a successful performance test by extrapolating from th e actual feed rate and actual emission rate measured during the test. This approach would follow cl osely with the compliance program used to comply with the HWC MACT. In the HWC MACT, ea ch source develops and implements a Feed Stream Analysis Plan to adequately char acterize the materials to be incinerated and then track the feed rates of parameters suc h as chlorine, metals, and ash to ensure they stay below the allowable feed rates established fr om a Comprehensive Performance Test. We note particularly that Subpart EEE specifies up to an annual rolling average for mercury for liquid fuel boilers (see 40 CFR 63.1209(l)(1)(ii)). It is import ant to note that it is possible that some energy recovery units may be able to comply with a CISWI emission standard without installing an air pollution control device or technology to reduce the pollutant concentration in the boiler effluent. Such a unit may be able to comply by employing feed controls (e.g., minimizing the amount of metals, sulfur, and/or chloride in the fuel/feed). However, if a source were to rely on periodic performance tests, it would alw ays run the risk of testing during a period of relatively high pollutant concentration in the fuel/ feed, particularly as EPA has not properly206

accounted for fuel variability when setting the standard. A lso, while EPA provides the CEMS option, a source may prefer a feed stream analysis opt ion rather than incurring the expense of a CEMS or uncertainty related to performance of CEMS techn ology in a particular application. It is for these reasons ACC believes that EPA should a dd the option of a feed stream analysis plan.

Response: EPA has not finalized the mass balance approach for de monstrating compliance suggested by the commenter. EPA believes that direct mea surement of emissions is the most comprehensive and accurate method to ascertain compliance with the final standards. See response to EPA-HQ-OAR-2003-0119-2572-A1 excerpt 18 for further elabo ration.

Furthermore, CAA section 129 (c) states that the EPA "s hall ... promulgate regulations requiring the owner or operator of each solid waste incineration unit - (1) To monitor emissions from the unit at the point at which such emissions are emitted i nto the ambient air ... and at such other points as necessary to protect public health and the environme nt."

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 16

Comment: In its proposal, EPA notes that some petitioners ha ve asked EPA to allow facilities to use feed stream analysis or other "supplemental inform ation" to demonstrate compliance. 76 Fed. Reg. at 80,464. EPA responds by declining to propose any such monitoring noting that it believes "direct measurement of emissions is the mos t comprehensive and accurate method to ascertain compliance with the final standards. Id . In addition, citing Section 129(c), EPA further declares that even if the Agency wanted to allow facilit ies to use feed stream analysis or other information, it would be "constrained" by the statute. CRWI believes EPA has authority to allow facilities to use material balancing as a method of demonst rating compliance.

EPA has the authority to allow use of feed stream analys is to demonstrate compliance.

In the preamble, EPA explains that petitioners want to " use a material analysis to show that only minimal amounts of a pollutant compound enter the combust ion unit. That data, along with data on the flue gas flow rate information could be used by so urces to calculate a maximum possible pollutant concentration." Id . CRWI asserts that EPA clearly has the authority to allow this compliance mechanism in the CISWI rule.

CAA section 129(c) states that EPA ‘‘shall . . . promulga te regulations requiring the owner or operator of each solid waste incineration unit—

(1) to monitor emissions from the unit at the point at w hich such emissions are emitted into the ambient air (or within the stack, combustion chamber o r pollution control equipment, as appropriate) and at such other points as necessary to prote ct public health and the environment;

Since material analysis calculations are made based o n data collected within the combustion chamber and the stack, it is clearly lawful. While the method does not monitor emissions where they are emitted into the ambient air, it does monitor the emissions within the stack and207

combustion chamber, locations clearly authorized by the statute. These locations are on an equal legal footing with the monitoring of emissions at their po int of release into the ambient air.

The Agency may be concerned that materials analysis measures feedrate and flue gas instead of directly measuring "emissions" as required by statute. CRW I notes that EPA does not require direct measurement of emissions in other monitoring regi mes used in this rule. For example, if a facility is using an electrostatic precipitator, EPA re quires the operator to judge compliance for PM based on feedrate and the (secondary) voltage and amper age. 40 CFR § 60.2675(d). Direct measurement of the emission into the ambient air is n ot required.

CRWI also notes that despite EPA’s hesitance to authori ze this practice, the Agency actually authorizes use of material balance other places in the rule. For example, in § 60.2680, EPA allows an affected source to petition for its use. See discussion at 76 Fed. Reg. 80,464/3. ("These provisions also allow specific operating limits to be est ablished for CISWI units without any air pollution control devices, such as material balance opera ting limits to demonstrate continuous compliance.") Clearly, if the facility can petition to use material balance, EPA has already determined it has the authority to allow it.

Response: As we discussed in the preamble to the proposed rule, EPA has not proposed allowances for using feed stream analysis or other supple mental information to demonstrate compliance because EPA believes that direct measureme nt of emissions is the most comprehensive and accurate method to ascertain compliance with the final standards. Furthermore, CAA section 129 (c) states that the EPA "s hall ... promulgate regulations requiring the owner or operator of each solid waste incineration unit - (1) To monitor emissions from the unit at the point at which such emissions are emitted i nto the ambient air ... and at such other points as necessary to protect public health and the environme nt." Sources must monitor pollutants with annual stack tests in conjunction with par ametric monitoring or with CEMS, including for PM.

In Sections §60.2115 and §60.2680, we require sources to petition the EPA Administrator for specific operating limits for equipment other than wet sc rubbers, activated carbon injection, selective noncatalytic reduction, and electrostatic pre cipitators. Because these parameters are set on a site-specific basis, we have reserved this authori ty believing that there is a need to maintain national consistency in implementing this section. “Th e Good Practices Manual for Delegation of NSPS and NESHAPS” (February 1983) reserves for the EPA Administrator specific areas of rules that impact national consistency. A source may petition the Administrator to establish operating parameters in a manner suggested by the commenter if they choose to do so, however, any approvable request would have to include periodic stack test ing or other direct measurement of emissions. We further note that the rule contains provisions to allow for less frequent testing for sources with demonstrated good performance (see Sect ions §60.2155 and §60.2720).

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 16208

Comment: EPA is correct to reject industry commenters request to eliminate the requirement of emissions monitoring in favor of input monitoring. Such an approach would plainly violate section 129(c)(1)’s requirement that sources “monitor emiss ions . . . at the point at which such emissions are emitted.”

Response: We are finalizing emissions monitoring requirements as pro posed.



### 2O. Providing Percent Reduction Alternative Standards

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 19

Comment: In the preamble, EPA explained why it declined to promulga te percentage reduction standards as an alternative to the "numeric" emission limits it established for affected sources. 76 Fed. Reg. at 80,464. One of its reasons appears to be Agency doubts about the legality of such a standard, and they directed readers to their discussion of this issue in the Portland Cement MACT proposal at 74 Fed. Reg. 21,149. Id . CRWI believes that the Agency’s doubts are misplaced.

A. EPA has already recognized that the court’s Brick MACT decision does not prevent a percent reduction standard.

EPA’s discussion of its authority to set percent reduction standards in the Portland Cement MACT proposal presented valid policy reasons for establis hing such a standard while noting EPA’s concern that a court decision, Sierra Club v. EPA , 167 F.3d 658 (D.C. Cir. 2007) ( Brick MACT ), may prevent the Agency from setting such standards. Id . Despite EPA’s concerns, however, the Agency proceeded to establish a percent

reduction standard in the final Portland Cement rule for S O 2 , noting that Clean Air Act § 111(b) "specifically indicates that standards may be expressed a s numerical limits or as percent reductions." 75 Fed. Reg. at 54,995, fn. 38, 55,017. Since CISWI rul es are also § 111 rules, this logic applies to the instant rule as well.

Response: We do not agree with the commenters position concerning percent reduction standards for CISWI. The commenter argues that, since t he CISWI regulations are also CAA section 111 rules, the percent reductions apply to CISWI as well. On this point we disagree, and note that the requirements of CAA §129(a)(1)(A) requires th at “The Administrator shall establish performance standards and other requirements pursuant to secti on 7411 of this title and this section for each category of solid waste incineration units.” Further, CAA §129(a)(4) requires that “The performance standards promulgated under section 7411 of this title and this section and applicable to solid waste incineration units shall specif y numerical emission limitations....” Nowhere in CAA §129 is the language “or as percent reductions” that is found in CAA §111(b) found. Therefore, in light of our concerns regarding th e Sierra Club v. EPA , 167 F.3d 658 (D.C. Cir. 2007) ( Brick MACT

) decision and the requirements specified in CAA §129(a), we are not finalizing percent reduction alternative standards.209

In addition, even if EPA had the authority to establish such standards, the EPA does not have the information necessary to establish percent reduction st andards as explained in the preamble to the proposed rule (76 FR 80464). For example, percent reduction standards are appropriately applied when there is a specified control device that pote ntial emission streams must be routed through. In these cases a percent reduction alternative provides a design and performance metric for the required type of control device. For CISWI, EPA does not specify the control devices necessary to meet numeric limits. Sources may evaluate their source emissions and determine the appropriate control strategy or devices needed to compl y with the emission limits.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 20

Comment: Even though EPA disavowed a percent reduction standard in the Portland Cement MACT for some pollutants (75 Fed. Reg. at 55,003) it still s et such standards for SO 2 , irrespective of the Court’s Brick MACT decision. EPA never explains why it did so. Perhaps it i s because, as EPA noted in the preamble to the proposal, t he language in the Brick MACT decision causing concern is dicta , and therefore not binding on the Agency. 74 Fed. Reg. 21,136, 21,149, fn. 20 (May 6, 2009). ("The issue of whether best performers can be based on source’s removal efficiency was not presented in Brick MACT, or any of the other decided cases.")

CRWI agrees that this particular interpretation of Brick MACT is not binding on the Agency. Not only is it dicta , the Court’s decision does not signify "that best perfo rmers are those emitting the least HAP." 74 Fed. Reg. at 21,149. This erroneous interpretat ion is based on a misreading of a parenthetical statement in the court’s decision that says: ‘‘section [112 (d)(3)] requires floors based on emission levels actually achieved by best perform ers (those with the lowest emission levels).’’ The full quote from the Brick MACT decision is:

But EPA cannot circumvent Cement Kiln's holding that section 7412(d)(3) requires floors based on the emission level actually achieved by the best perfo rmers (those with the lowest emission levels), not the emission level achievable by all source s, simply by redefining "best performing" to mean those sources with emission levels achievable by all sources. See 255 F.3d at 861.

Brick MACT

, supra , at 880-81. Consequently, the Brick MACT court was ruling that a prior case, Cement Kiln Recycling Coalition v. EPA , 255 F.3d. 855, 861 (D.C. Cir. 2001) (" Cement Kiln" ) already held that EPA was required to set emission limit s equivalent to the lowest emission levels. An examination of the Cement Kiln case, however, reveals that it does not hold that section 112(d)(3) requires floors based on the lowest emiss ion levels. The relevant quote in the Cement Kiln case is:

Though section 7412(d)(2) does direct EPA to require the "ma ximum emission reduction" that it determines to be achievable, section 7412(d)(3) provides that "th e maximum degree of reduction in emissions that is deemed achievable ... shall not be less stringent than" what the bestperforming sources "achieve." Section 7412(d)(3) therefore lim its the scope of the word "achievable" in section 7412(d)(2). While standards achievable by all sources using the MACT control might also ultimately reflect what the statu torily relevant sources achieve in practice,210

EPA may not deviate from section 7412(d)(3)'s requirement tha t floors reflect what the best performers actually achieve by claiming that floors must be achievable by all sources using MACT technology.

Cement Kiln at 861. As is readily apparent, the court never stated th at the statute requires EPA to set floor standards based on lowest emissions. Instead, it stated that EPA cannot base floor standards on what it believes is achievable by all sources . This conclusion is verified by the court’s discussion immediately after this portion of the opinion:

This interpretation is required by our decisions in Sierra Club v. EPA, 334 U.S. App. D.C. 421, 167 F.3d 658 (D.C. Cir. 1999), and National Lime II, 344 U.S. App. D.C. 97, 233 F.3d 625. In Sierra Club , we held that CAA section 7429(a)(2), which (in language vir tually identical to the terms of section 7412(d)(3)) directs EPA to set emission f loors for medical waste incinerators, requires EPA "to make a reasonable estimate of the performance of the top 12 percent of units." * * * * * While acknowledging that EPA has authority to devise the means of deriving this estimate, we made clear that the method the Agency se lects must "allow a reasonable inference as to the performance of the top 12 percent of units." Id. at 663. We emphasized that EPA must show not only that it believes its methodology provides a n accurate picture of the relevant sources' actual performance, but also why its methodology yields the required estimate. Id . In evaluating EPA's new-source floors in particular, which t he Agency based on emission levels achieved by the worst-performing sources using a given contro l technology, we concluded that EPA had not explained "why the phrase 'best controlled simi lar unit' encompasses all units using the same technology as the unit with the best observed pe rformance, rather than just that unit itself, as the use of the singular in the statutory l anguage suggests." Id. at 665. In National Lime II , we addressed a Sierra Club petition challenging emissio n standards set under section 7412(d) for non-hazardous waste-burning portland cement kilns. In eva luating EPA's standards, we reiterated Sierra Club 's central holding that "to comply with the statute, E PA's method of setting emission floors must reasonably estimate the performance of the relevant best performing plants." 233 F.3d at 632 (citing Sierra Club, 167 F.3d at 665).

Cement Kiln , at 861-862 (emphasis supplied). Consequently, nowhere in th e opinion did the court say that EPA must set floor-standards equivalent t o the lowest emissions in their database. Therefore, the Brick MACT court’s reference to the Cement Kiln case was not abo ut requiring standards to reflect lowest emissions. Instead, the par enthetical phrase in Brick MACT is irrelevant to the Cement Kiln case and inconsistent wit h Cement Kiln’s holding that EPA is free to use whatever method it desires to set floor standards as long as it results in reasonable estimates of performance.

Furthermore, EPA has never interpreted Cement Kiln to require a lowest emissions approach. In the HWC MACT rule, promulgated four years after the Cement Kiln decision, EPA stated that lowest emissions do not always reflect best performers and recognized that such an approach can lead to "the nonsensical result of uncontrolled units be ing classified as best performers." 70 Fed. Reg. 59,402, 59,448 (October 12,2005). See also discussion at 70 Fed. Reg. at 59,442-43.

The court recently gave EPA another reason to doubt t he precedential value of the Brick MACT decision. In an eerily similar situation where the cour t was relying on the Brick MACT court’s interpretation of another case, Judge Brown cast a decide dly negative eye on that panel’s ability211

to interpret MACT cases. In Portland Cement Association v. EPA , (D.C. Cir. 2011), Judge Brown stated:

Sierra Club [ Brick MACT ] relied on our holding in National Lime Ass’n v. EPA , 233 F.3d 625, 640 (D.C. Cir. 2000), that the CAA does not require "that [th e] achievement . . . be the product of a specific intent." But I do not read National Lime to have held that the achievement need not be the product of any intent. Instead, context reveals that the National Lime Court was referring to emissions of one sort that are "controlled only inci dentally by controls placed upon" another sort of emission. Id. The incidental control of one emission as the result of controlling another still certainly counts as an "achievement" of emission control. But the Court did not state—or even imply—that emissions levels determined by inputs alon e count as an "achievement" of emission control within the meaning of the statute.

Thus, Judge Brown cast considerable doubt on the astutenes s of the Brick MACT panel’s analysis of prior cases. Continuing on, Judge Brown declared that

Our holding in Sierra Club was a self-inflicted wound, and the result of a series of interpretive leaps that I simply cannot follow. I regret that we h ave ignored Congress’s wishes and made life more difficult—for industry and its employees, for EPA , and for ourselves.

CRWI, therefore, urges EPA to avoid perpetuating this "self -inflicted" wound, and to avoid putting too much credence in the Brick MACT decision, particularly when the Agency understands that the language it relies upon is dicta

.

Response: EPA provides its bases for not establishing percent reductio n standards above and in the preamble to the proposed rule. See the response to EPA -HQ-OAR-2003-0119-2572-A1 excerpt 19.

In addition, we note that the commenter incorrectly states that EPA established a percent reduction standard in the Portland cement NESHAP. The pe rcent reduction standard to which the commenter refers was in the New Source Performan ce Standard portion of the rulemaking.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 28

Comment: Alternative percent reduction standard for hydrogen chloride , sulfur dioxide, and mercury. EPA’s final emission standards are set as sta ck discharge concentrations. In the final CISWI rule preamble, EPA did not address comments requesti ng an alternative percent reduction standard, but did reject a similar comment in the Boiler MACT rule on the basis that it has no best performing unit data with which to determine appropriate values. We believe EPA is looking at this alternative too narrowly. If data specific to these units are unavailable, EPA should look beyond CISWI units to determine demonstrated emis sion reduction performance capabilities of air pollution control devices on combustio n sources. EPA could rely on engineering calculations and vendor representations of achie ved-in-practice results to define212

numerical best control efficiency performance of air pollution control equipment under Section 129(a)(3) provisions, which allow standards to be based on “m ethods and technologies for removal or destruction of pollutants before, during, and a fter combustion.” EPA should establish emission reduction (percent removal efficiency) standar ds for sulfur dioxide, hydrogen chloride and mercury as compliance alternatives to the concentr ation-based standards.

Response: EPA provides its bases for not establishing percent reductio n standards above and in the preamble to the proposed rule. See the response to EPA -HQ-OAR-2003-0119-2572-A1 excerpt 19. Further, we note that the commenter’s suggest ed approach seems to directly conflict with the requirement in section 129(a)(2) to the extent i t does not appear to require the Agency to consider the performance of the best performing source or sources when establishing the limits.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 11

Comment: EPA is also correct to reject requests by industry comme nters to require percent reductions in emissions in lieu of setting emissions lim its. Standards based on percentage reductions would be contrary to the Act. The Act require s that standards be set to reflect “the emissions control that is achieved in practice” by the b est controlled units. 42 U.S.C. § 7429(a)(2). There is no way to determine the percent reduction achieved by the best controlled units, because there is no way to calculate a baseline , i.e., the emissions that they would release without any control measures. Control measures are define d broadly by the Act and construed broadly by the courts. There is no way to determine wha t the best-performing sources’ emissions would be without them. And emissions standards based on perce nt reductions would therefore be arbitrary and unlawful.

Response: The EPA is not establishing percent reduction standards in this rule.



### 2P. Providing Parametric Monitoring Provisions for Additional Control Devices

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 28

Comment: EPA, in response to ACC’s petition for reconsideratio n and requests from others, is soliciting comment on the need to specify monitoring provisi ons for dry sorbent injection and any other control devices not already addressed (76 Fed. Re g., 80464). In response, ACC believes parametric monitoring provisions are needed for a cid gas controls including dry sorbent injection, as well as options to use SO 2 emission rate and a SO 2 continuous monitoring system correlated to HCl emissions. Dry sorbent injection or spray dryer absorbers (using hydrated lime) are two technologies that could be used to reduce HCl and/or SO 2 emissions. ACC recommends213

that EPA employ a similar approach as the one provided in the Boiler MACT. 76 Fed. Reg. 80598 at 80668 (Table7) (Dec 23, 2011) ACC also requests an alternativ e Continuous Parameter Monitoring System (CPMS) utilizing SO 2 continuous monitoring. In the Boiler MACT, EPA solicits comment on petitioners’ request to allow use o f SO 2 CEMS for demonstration of continuous compliance with the HCl emission limits fo r sources that are equipped with acid gas controls: While the EPA does not have enough information to propose specific requirements, we believe that a reasonable approach would be to allow for t he use of SO 2 CEMS provided that the source demonstrates a correlation between SO 2 control and control of other acid gases emitted from each specific unit that chooses to use SO 2 CEMS. Such a relationship is expected because the available add-on controls for acid gases would provide b etter control efficiencies for the acid gas HAP than for SO 2 , and, therefore, demonstration of SO 2 control using CEMS would provide assurance that the acid gas HAP are being controlled. The refore, the EPA is soliciting comment on the use of SO 2 CEMS for demonstrating continuous compliance with the H Cl emission limits with the condition noted above. 76 Fed. Reg. 80598 at 80610 (Dec 23, 2011) We agree with EPA’s conclusions that acid gas HAP control efficienc ies would be better than SO 2 control efficiency (for a given acid gas control device) and that it should be possible to demonstrate a correlation between the two control efficiencies and t hen to rely on an SO 2 CEMS to demonstrate continuous compliance. EPA drew this same c onclusion in the recently finalized Utility MACT and set alternative SO 2 emission limits. In this case, we agree that there i s not enough information to set an alternative SO 2 limit that correlates with the HCl emission standard, such as was done in Utility MACT. One key difference is that the Utility MACT HCl emission limit (0.002 lb/mmBtu) is about ten times lower than the proposed Boiler MACT HCl limit (0.022 lb/MMBtu) for solid-fuel boilers. ACC recommends tha t in both the Boiler MACT and the CISWI rule, SO 2 continuous monitoring be allowed as a continuous parametri c monitoring system (CPMS), and that the maximum 30 day rolling average SO 2 operating parameter limit to be set during a 3-run performance test where HCl emissions are demonstrated to comply with the final HCl emission limit. This method of continuous com pliance should be allowed on any unit that utilizes an acid- gas control technology including wet scrubber, dry scrubbers, and duct sorbent injection. If this option is incorporated into the final rule, ACC recommends that the SO 2 CEMS be allowed to select either Part 60 or Part 75 for c ompliance procedures as many of the existing SO 2 CEMS already use Part 75 quality assurance procedures.

Response: We agree that it is appropriate to add in monitoring parame ters for dry acid gas scrubbers, and that the monitoring of these devices should be similar to what was proposed for major source boilers. We are amending the final rule t o add in monitoring of minimum sorbent injection rate for these units. While we did take comment on the use of a SO 2 Continuous Parameter Monitoring System (CPMS) as an alternative for demonstrating compliance with the HCl emission limit for major source boilers, we do not have enough information to determine whether a SO2 CEMS would be a viable CPMS system for HCl emissions from CISWI units covered in this rulemaking. In addition, even if EPA w ere able to provide for the use of SO2 CEMS as a CPMS for HCl, sources would still have to conduc t period stack testing for HCl because CAA section 129(c)(1) states that EPA must require direct monitoring of the section 129 pollutants.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company214

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 5

Comment: We support EPA’s position that HCl CEMS are not required if an acid gas scrubber is used to comply, however we encourage the expansion of this provision to include dry acid gas scrubbers, so long as surrogate operating parameter limits are established during performance testing and monitored continuously in lieu of directly monit oring HCl with CEMs.

Response: We agree that it is reasonable to expand the exemption o f HCl CEMS to dry acid gas scrubbers. We are amending the language in the final rule to include this exemption.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 14

Comment: EPA has granted an exemption for the application of H Cl CEMS for those facilities equipped with a wet scrubber, but not for those employing dry sorbent injection (DSI). EPA should note that DSI is assumed to refer to all HCl co ntrol processes upstream of the existing dust collector (including SLI). Given that there is no diff erence in the HCl control performance of DSI relative to wet scrubber (and that operating para meter monitoring can be used to assess DSI performance just as it is used for the wet scrubber), there is no reason not to extend the HCl CEMS exemption to kilns equipped with DSI.

Response: We agree that it is reasonable to expand the exemption o f HCl CEMS to dry acid gas scrubbers. We are amending the language in the final rule to include this exemption.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 28

Comment: Parametric monitoring provisions are needed for acid gas controls including dry sorbent injection. Also, an option to use SO 2 emission rate and a SO 2 continuous monitoring system correlated to HCl emissions is needed. In the Pro posed Reconsidered Rule, EPA, in response to Petitioners’ requests, is soliciting comment on the need to specify monitoring provisions for dry sorbent injection and any other contro l devices not already addressed. 76 Fed. Reg. 80464. Dry sorbent injection or spray dryer absorbers ( using hydrated lime) are two technologies that could be used to reduce HCl and/or SO 2 emissions. CIBO suggest a similar approach as in the Boiler MACT – (see Table 7). 76 Fed. Reg . 80668. CIBO will take this opportunity to also request an alternative CPMS utilizing S O 2 continuous monitoring. EPA solicits comment on petitioners’ request to allow use o f SO 2 CEMS for demonstration of continuous compliance with the HCl emission limits fo r sources that are equipped with acid gas controls: While the EPA does not have enough information to propose specific requirements, we believe that a reasonable approach would be to allow for t he use of SO 2 CEMS provided that the source demonstrates a correlation between SO 2 control and control of other acid gases emitted215

from each specific unit that chooses to use SO 2 CEMS. Such a relationship is expected because the available add-on controls for acid gases would provide b etter control efficiencies for the acid gas HAP than for SO 2 , and, therefore, demonstration of SO 2 control using CEMS would provide assurance that the acid gas HAP are being controlled. The refore, the EPA is soliciting comment on the use of SO 2 CEMS for demonstrating continuous compliance with the H Cl emission limits with the condition noted above. 76 Fed. Reg. 80610. CIBO agre es with EPA’s conclusions that acid gas HAP control efficiencies would be better than SO 2 control efficiency (for a given acid gas control device) and that it should be possible to demons trate a correlation between the two control efficiencies and then to rely on an SO 2 CEMS to demonstrate continuous compliance. EPA drew this same conclusion in the recently finalize d Utility MACT and set alternative SO 2 emission limits. In this case, CIBO agrees there is n ot enough information to set an alternative SO 2 limit that correlates with the HCl emission standard, such as was done in Utility MACT. One key difference is that the Utility MACT HCl emis sion limit (0.002 lb/mmBtu) is about ten times lower than the proposed Boiler MACT HCl limit f or solid-fuel boilers (0.022 lb/mmBtu). CIBO would suggest in both the Boiler MACT and the CISWI r ule that SO 2 continuous monitoring be allowed as a continuous parametric monitorin g system (CPMS) and that the maximum 30 day rolling average SO 2 operating parameter limit to be set during a 3-run performance test where HCl emissions are demonstrated to comply with the final HCl emission limit. This method of continuous compliance should be all owed on any unit that utilizes an acidgas control technology including wet scrubber, dry scrubb ers, and duct sorbent injection. If this option is incorporated into the Final Rule, we request t hat the SO 2 CEMS be allowed to select either Part 60 or Part 75 for compliance procedures as many of the existing SO 2 CEMS already use Part 75 quality assurance procedures.

Response: For response, see DCN EPA-HQ-OAR-2003-0119-2606-A1, Excerpt No. 28

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Commenter Name: Stephen R. Gossett Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2640-A2 Comment Excerpt Number: 9

Comment: Parametric monitoring provisions are needed for acid gas contr ols including dry sorbent injection. Also, an option to use SO 2 emission rate and a SO 2 continuous monitoring system correlated to HCl emissions is needed.

Discussion: On page 80464 of the reconsideration proposal preamble, EPA, i n response to Petitioners’ requests, is soliciting comment on the nee d to specify monitoring provisions for dry sorbent injection and any other control devices not alre ady addressed.

Dry sorbent injection or spray dryer absorbers (using hydra ted lime) are two technologies that could be used to reduce HCl and/or SO 2 emissions. We suggest a similar approach as in the Boiler MACT – see Table 7 on page 80668 of the December 23, 2011 Fe deral Register.

We take this opportunity to also request an alternative CP MS utilizing SO 2 continuous monitoring. On page 80610 of the reconsideration proposal for the Boiler MACT, EPA solicits comment on petitioners’ request to allow use of SO 2 CEMS for demonstration of continuous compliance with the HCl emission limits for sources that are equipped with acid gas controls:216

While the EPA does not have enough information to propose specific requirem ents, we believe that a reasonable approach would be to allow for the use of SO 2 CEMS provided that the source demonstrates a correlation between SO 2 control and control of other acid gases emitted from each specific unit that chooses to use SO 2 CEMS. Such a relationship is expected because the available add-on controls for acid gases would provide better control efficie ncies for the acid gas HAP than for SO 2 , and, therefore, demonstration of SO 2 control using CEMS would provide assurance that the acid gas HAP are being controlled. Therefore, the EPA is soliciting comment on the use of SO 2 CEMS for demonstrating continuous compliance with the HCl emission limi ts with the condition noted above.

We agree with EPA’s conclusions that acid gas HAP cont rol efficiencies would be better than SO 2 control efficiency (for a given acid gas control device ) and that it should be possible to demonstrate a correlation between the two control effi ciencies and then to rely on an SO 2 CEMS to demonstrate continuous compliance. EPA drew this same c onclusion in the recently finalized Utility MACT and set alternative SO 2 emission limits.

In this case, we agree there is not enough information t o set an alternative SO 2 limit that correlates with the HCl emission standard, such as wa s done in Utility MACT. One key difference is that the Utility MACT HCl emission li mit (0.002 lb/mmBtu) is about ten times lower than the proposed Boiler MACT HCl limit for sol id-fuel boilers.

We would suggest in both the Boiler MACT and the CISWI r ule that SO 2 continuous monitoring be allowed as a continuous parametric monitoring system ( CPMS) and that the maximum 30 day rolling average SO 2 operating parameter limit be set during a 3-run performanc e test where HCl emissions are demonstrated to comply with the final HCl emission limit. This method of continuous compliance should be allowed on any unit that utilizes an acid-gas control technology including wet scrubber, dry scrubbers, and duct sorbent injecti on. If this option is incorporated into the final rule, we request that the SO 2 CEMS be allowed to select either Part 60 or Part 75 for compliance procedures as many of the existing SO 2 CEMS already use Part 75 quality assurance procedures.

Response: For response, see DCN EPA-HQ-OAR-2003-0119-2606-A1, Excerpt No. 28

.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 26

Comment: In the same section for which EPA is requesting comme nt on adding other types of parametric monitoring, EPA mentions the provision for peti tioning for alternative compliance approaches that EPA has not specified (76 Fed. Reg. 80464). If some other mechanism or approach is needed to comply with emission limitations other than a wet scrubber, fabric filter, activated carbon injection, selective noncatalytic re duction, or an electrostatic precipitator, EPA must be petitioned for specific operating limits to be es tablished during the initial performance test. In the past and for other air testing protocols, E PA has clearly and repeatedly demonstrated an inability to approve petitions, requests, alternate monito ring applications, test plans (as applicable) in a timely manner, such that a facility is often faced with a potential temporary217

shutdown and disruption of operations. ACC members have frequently experienced this dilemma and are acutely aware of its potential impact. For example, one ACC member company experienced difficulty during the recent implementation o f HWC MACT (63 Subpart EEE) and receiving test plan approvals from EPA Region VI. The mem ber had 11 plans needing approval in this region. The plans had to be submitted one year in advance of the proposed testing date, and all of the plans were submitted in mid-2007, well in adv ance of one year before the October 14, 2008 compliance date. The regulation also allowed for te sting to be completed after the compliance date but no later than 6 months after Octob er 14, 2008, and none of the member’s 11 plans were approved by that time (March of 2009). The regulati on also provided for as long as one additional year for testing extensions. For 10 of the 11 plans, the member had to use that entire extension period that expired in March 2010. In addition, a compliance date extension of several months had been given for several units due to Hur ricane Gustav and Hurricane Ike in 2008, and the company had to use the entire hurricane extension period for those units, which expired in June 2010. The testing contractor was very con cerned about this timing because they could only staff two stack sampling crews simultaneously, and were fearful that all of the testing would be compressed into such a short period that they coul d not get it completed on time. All of the approvals ultimately came; however, not without a s ignificant consumption of resources by both the member company and their testing contractor. Pa rticularly frustrating was that the company had sent copies of these plans to their state agen cies. One of these states, Louisiana, had reviewed these plans in great detail and had no issues with them, but the company’s efforts to persuade Region VI were largely ignored. Virtually all a pprovals came within a few days or weeks of the unit’s respective deadline, with one approval only arriving on the day before the test had to begin. This company was only one of many com panies in Region VI with the same issue. Finally, in cases where a company must use some ot her method to comply with the emission limitations, the requirement at §60.2680(a) of sub part DDDD [§60.2115 of subpart CCCC] that it must not conduct the initial performance un til after approval of a petition by the appropriate administrator, is in direct conflict with §60. 2705 of subpart DDDD [§60.2140 of subpart CCCC], should the administrator fail to provide timely approval. ACC is therefore not confident that EPA will be able to efficiently conduct this petition process under CISWI. In this case, the facility would have to either fail to comply w ith the prohibition to test without an approved petition, or fail to comply with the deadline t o test no later than 180 days after the final compliance date. The fact that these deadlines are st ill a few years away is somewhat irrelevant since facilities are not yet sure of what might be requ ired under CISWI at their facilities, much less if or when they might need to submit a petition. W hen these approval authorities have been delegated to state agencies, the urgency of reviewing and appro ving these types of petitions or plans or requests in a timely manner has usually been much more evident and successful. We urge EPA to delegate the authority to approve these petit ions to states. At a minimum, should EPA not delegate this authority, EPA must provide relief by adding an exception to the deadline for conducting the initial performance test when the petiti on is still under review. ACC recommends the following at the end of sections §60.2680(a) [ and §60.2115(a)]: ...You must not conduct the initial performance test until after the pet ition has been approved by the Administrator (or delegated state authority). Should the deadline to conduct the test no later than 180 days after the final compliance date be reached during this petition review process, the testing deadline is waived until the petition review process is completed and the reviewing authority has established an alternative deadline. Your petition must include the five items ....218

Response: We are not revising the regulations as the commenter suggests. In Section §60.2115, we require sources to petition the EPA Administrator f or specific operating limits for equipment other than wet scrubbers, activated carbon injection, se lective noncatalytic reduction, and electrostatic precipitators. Because these parameters a re set on a site-specific basis, we have reserved this authority believing that there is a need to maintain national consistency in implementing this section. “The Good Practices Manual f or Delegation of NSPS and NESHAPS” (February 1983) reserves for the EPA Administra tor specific areas of rules that impact national consistency. Furthermore, as the Agency has established consistently in the “National Stack Testing Guidance”, the Part 60 General P rovisions do not allow for performance test extensions. We are confident that sources and the delegated authority will be able to work with each other to provide the information needed for an appro val or denial, within the timeframe to conduct a performance test. In the extreme situations where this is not possible, also as discussed in the National Stack Testing Guidance, the Agency has the option of using its enforcement discretion to provide additional time for conduct ing the performance test.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 21

Comment: In cases where you must use some other method to compl y with the emission limitations, the requirement at §60.2680(a) of subpart DDDD [ §60.2115 of subpart CCCC] that you must not conduct the initial performance until after a pproval of a petition by the administrator is in direct conflict with §60.2705 of subpar t DDDD [§60.2140 of subpart CCCC], should the Administrator fail to provide timely approva l.

In the same section for which EPA is requesting comment on adding other types of parametric monitoring, EPA has the provision for petitioning for alter native compliance approaches that EPA has not specified. If you need to use some other mecha nism or approach to comply with emission limitations other than a wet scrubber, fabric filter, activated carbon injection, selective noncatalytic reduction, or an electrostatic precipitato r, you must petition EPA for specific operating limits to establish during the initial performance test. In the past and for other air testing protocols, EPA has clearly and repeatedly demonstr ated an inability to approve petitions, requests, alternate monitoring applications, and test plans (as applicable) in a timely manner, such that a facility is oftentimes faced with a choic e of either shutdown and disruption of operations or noncompliance. In the case of this rule, the facility would have to either fail to comply with the prohibition to test without an approved peti tion or fail to comply with the deadline to test no later than 180 days after the final co mpliance date. The fact that these deadlines are still a few years away is somewhat irre levant since facilities are not yet sure of what might be required, much less if or when they migh t need to submit a petition.

It should be noted, however, that when the approval author ity to approve these types of petitions has been delegated to state agencies, the urgency of review ing and approving these such requests in a timely manner has usually been much more evident. We therefore urge EPA to delegate the authority to approve these petitions to the states. At a minimum, should EPA not delegate this authority, EPA must provide relief by adding an exception to t he deadline for conducting the219

initial performance test when the petition is still unde r review. Dow suggests the following at the end of sections §60.2680(a) [and §60.2115(a)]:

...You must not conduct the initial performance test until afte r the petition has been approved by the Administrator (or delegated state authority) . Should the deadline to conduct the test no later than 180 days after the final compliance date be reached during this petition review process, the testing deadline is waived until the petition review process is completed and the reviewing authority has established an alternative deadline. Your petition must include the five items ....

Response: For response, see DCN EPA-HQ-OAR-2003-0119-2606-A1, Excerpt No. 26

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Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 12

Comment: EPA should allow sources to petition for the use of pa rametric monitoring in lieu of CEMS where appropriate: PCA anticipates that other ty pes of air pollution control devices (APCDs) in addition to those listed by EPA may be used fo r CISWI compliance for waste burning cement kilns (76 Fed. Reg. 80464). As EPA is aware, addit ional APCD technologies may be employed for compliance with the CISWI standa rds. Nevertheless, we do anticipate the possibility of additional types of controls devices for which monitoring parameters have not yet been established in the rule. Based upon industry experienc e, the approval process for alternative parametric monitoring criteria (that will be necessary for alternative APCDs) can be burdensome and does not result in timely approval of the o perating parameters for the technology. We are concerned that this process could th us delay a facility's demonstrations of compliance as the performance testing cannot occur until the operating parameters are approved by EPA.

In addition, PCA believes that the requirements should be revised to allow parametric monitoring in lieu of HCl CEMS for waste burning kilns utilizing either an acid gas wet scrubber or a dry sorbent injection system. The rule currently allows f or this substitution only for kilns equipped with wet scrubbers. (40 CFR 60.2145(j))

Response: You may make a written application for alternative m onitoring under §60.13(i). In general the requested alternative must provide for the same level of assurance of compliance with the emission limit as the monitoring stated in th e rule or must provide adequate explanation on why the required monitoring is infeasible. For response on the approval process for monitoring parameter for air pollution control devices not included in the rule, see DCN EPAHQ-OAR-2003-0119-2606-A1, Excerpt No. 26. For response on use of par ametric monitoring in lieu of HCl CEMS for dry scrubbing systems, see DCN EP A-HQ-OAR-2003-0119-2606-A1, Excerpt No. 28.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company220

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 9

Comment: 60.2145(q)(2) – It is unclear why there is a need for the source to conduct a performance evaluation of the sorbent injection rate monitoring system, except where the sorbent injection rate is the sole method for demonstrating co ntinuous compliance with the emission limit. For pollutants that are directly monitored contin uously, the sorbent injection rate is irrelevant as long as the emission rate demonstrates c ompliance. This provision should be limited only to pollutants that are not directly monitored contin uously. 60.2165(d) – It is unclear why it is necessary for a source with a mercury CEM is requi red to continuously track the mercury sorbent injection rate each hour. This is an unnecessary duplication of monitoring and should be removed for sources with CEMs. 60.2165(e) – If a source has NO X CEMs, reagent injection rate tracking is unnecessary and should not be required.

Response: As proposed, 40 CFR 60.2145(q) states that if you have an ope rating limit that requires the use of a monitoring system to measure sorben t injection rate, then you must comply with paragraphs (q)(1) and (q)(2). If the pollutants are monitored directly with a CEMS, there should be no requirement to have such an operating limit in place, and therefore the source would not be subject to paragraphs (q)(1) and (q)(2)

We agree that facilities that continuously monitor emis sions should not be required to perform continuous parametric mentoring. We have revised the fina l rule to remove the requirements for parametric monitoring for compliance with emissions li mits for facilities which use CEMS to demonstrate compliance with those emissions limits.

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2642-A2 Comment Excerpt Number: 6

Comment: 60.2110 establishes operating limits on specific emissions co ntrol equipment. Such limits are unnecessary in cases where CEMs are used to m onitor and maintain compliance. In a kiln system, there are multiple factors in the opera tion of the kiln system and air pollution control devices that impact emissions of one or more pollutants . Controls that restrict parameters on an emission control device may unnecessarily increase emis sions of another pollutant without any corresponding benefit. For example, there are multiple ways to control NO X emissions from a cement kiln system. Low NO X burners, staged combustion, raw material mix design and det ails about how an SNCR system are operated all can contrib ute to changes in NO X emission levels. The proposed regulation would set operating limits on the S NCR system that would not encourage the use of alternative control strategies tha t could reduce the dependence on the SNCR system and thereby reduce emissions of both greenhouse gas ses and fine particulate. Similar situations arise for both SO 2 and CO. EPA should eliminate requirements to set process operating limits for emissions that are continuously monitored with a CEM, since such limits reduce flexibility without a corresponding benefit.

60.2115 establishes a complex and probably lengthy petition proc ess for using an emissions control technology other than those listed. This approa ch increases barriers to innovation and221

decreases incentives to use innovative and advanced techno logies to reduce emissions. Especially for those systems used to control emissions of pollutants for which a CEM is used to determine compliance, this petition process should not be r equired, as it adds to the regulatory burden without a corresponding benefit.

Response: For response on the use of parametric monitoring for f acilities that use CEMS to directly monitor emissions, see DCN EPA-HQ-OAR-2003-0119-2576-A1 , Excerpt No. 9. For response on the approval process for monitoring parameter for air pollution control devices not included in the rule, see DCN EPA-HQ-OAR-2003-0119-2606-A1, Excerpt No. 26.

Commenter Name: Michael L. Krancer Commenter Affiliation: Pennsylvania Department of Environmental Protection Document Control Number: EPA-HQ-OAR-2003-0119-2591-A1 Comment Excerpt Number: 6

Comment: The March 2011 final rule added monitoring parameters for so urces that use wet scrubbers, electrostatic precipitators, activated carbo n sorbent injection, or selective catalytic reduction (SCR) systems. The EPA recognizes that dry sor bent injection for acid gas control may add one additional type of control that affected sources may use, and is requesting comment on whether EPA should specify monitoring provisions for this t ype of control and recommendation on which parameters should be specified. EPA is also reque sting comment on whether there are any other additional types of control devices for which EP A should identify monitoring parameters in the rule. The discussion in the preamble concerning parametric monitoring is not consistent with the regulatory language in section 60.2165(c ) (relating to what monitoring equipment must I install and what parameters must I monitor?), which specifies that "if you are using something other than a wet scrubber, activated carbo n, selective non-catalytic reduction ... ". The preamble refers to SCR instead of selective non -catalytic reduction (76 FR 80496, December 23, 2011). DEP recommends that EPA clarify this inc onsistency. Additionally, EPA should consider amending section 60.2165(c) to include SCR syste ms.
Response: We agree that the preamble should have stated selective non-catalytic reduction instead of selective catalytic reduction. We are not a mending section §60.2165(c) to include SCR systems at this time as we do not believe, based on our current analyses, that any sources will be using SCR controls. We believe that it is more appropriate to determine the operating parameters for these systems on a site specific basis , and therefore we are requiring the source to petition the EPA Administrator using the procedures establi shed in §60.2115.



### 2Q. Revisions to the Continuous Monitoring Provisions for Lar ge ERUs

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 39

Comment: Additional Changes Are Needed to the PM CEMS Requirement s222

EPA is proposing to require particulate matter (PM) cont inuous monitors as parametric rather than direct emissions compliance monitoring for PM emi ssions for large ERUs and seeks
comment:
“In today’s rule, we are proposing some revisions to the monitoring require ments for ERUs with a design heat input capacity greater than 250 MMBtu/hr. In the final rules, the se units were required to monitor continuously for PM using a PM CEMS; however, recent EPA experience with the utility boiler source category has led the EPA to allow P M CEMS as an alternative, rather than a requirement. The PM CEMS technology may not be sufficient to certify accurate monitor performance in the PM concentration range of the CISWI ERU limit s. Therefore, we are requiring continuous parameter monitoring systems for these units similar to those being required for major industrial boilers and utility boilers.” 76 Fed. Reg . 80464-5.

However, based our experience with these monitoring syste ms, we believe that EPA should not require PM CPMS or PM CEMS on any biomass or multi-fuel ERU. A recent study was carried out by Georgia-Pacific and NCASI. This study consisted of installing PM CEMS on multi-fuel boilers at two different facilities. During this study, calibration testing was performed for both PM CEMS, and a follow-up Relative Response Audit (RRA) was also carried out on both PM CEMS. Two different fuel mixtures were burned during the cal ibration testing for each PM CEMS, and fuel mixtures burned during the RRA were slightl y different than those combusted during the calibration testing. Although the two monitoring systems worked reasonably well and required minimal routine maintenance, the study identifie d two major problems with the backscattering monitoring system:

1. The relationship between stack gas PM concentration a s measured by the PM CEMS and the manual reference method varied when the fuel mixtures we re changed. This resulted in several different calibration equations for different fuel com binations.

2. The PM monitoring system failed to meet EPA’s relati ve response audit criteria when the monitoring system was tested three months after the i nitial installation and calibration.

In addition to the PM monitoring instrument calibration issue, the study also identified a significant challenges associated with calibrating stack PM monitors when a source is operating at very low stack gas PM concentrations. For example, NCASI observed high variability in EPA Method 5 measured values during tests when dual sampling trains are used simultaneously on a stack with low PM concentrations.

The findings of this study support EPA’s conclusion that th e currently available stack gas PM monitors are not capable of being used as compliance monitors on biomass boilers. The study results also show that because the relationship between stack gas PM concentration and instrument response varies with fuel mix, in order to dev elop a parameter which would indicate that the source was in compliance with the PM standards , the facility would have to carry out PM CPMS calibration tests using every possible fuel combinati on and fuel ratio. This would require months of testing with varying fuel mixes and would be very expensive and disruptive to a facility’s operation. Even after carrying out such a st udy, the facility would not be able to establish a parameter not to be exceeded during routine operati ons to ensure compliance with the PM emission standards. The results of these studies ar e being submitted to EPA directly by NCASI. The results of the GP/NCASI study also raise s ignificant doubts regarding the feasibility223

of installing and calibrating PM CPMS on coal-fired ERUs that also burn other fuels such as petroleum coke, wastewater treatment system residuals, recycling process residuals, TDF, and various types of biomass.

EPA discusses the reasons why these monitors cannot be feasibly applied to biomass units in the preamble to the Boiler MACT rule:

“The EPA agrees that PM CEMS are not demonstrated for biomass units and that significant technical concerns exist regarding the technology’s ability to monitor em issions from biomass units. The technical concerns include the fact that PM CEMS are calibrat ed and certified to measure emissions from a single fuel type. A change in fuel would requi re a change in the calibration curve of the PM CEMS instrument. The unpredictable variety of biomass fuel constituents as well as biomass fuel moisture content make relying on a single calibration point problematic in terms of compliance assessment when these fuel components change. Furthermore, it is impracticable to replicate, during performance te sting, all of the varying fuel conditions necessary for calibrating the monitor.” 7 6 Fed. Reg. 80609.

If EPA continues to require these monitors, they must cla rify the requirements for installing and operating them. Although EPA states these monitors do not h ave to comply with Performance Specification 11 when used as CPMS instead of CEMS, EPA’s proposed rule language requires sources to “certify” the monitors and include the same h ost of requirements in a site-specific monitoring plan as any other continuous monitoring system ( see for example §60.2145(x)). We are not clear on how a source should “certify” their PM CPMS other than through the use of PS 11. While EPA has required PM monitors in the Utility MAC T, those boilers are many times larger than ICI boilers with commensurately larger PM emissions and associated impact. They also operate at relatively steady loads compared to indust rial and institutional boilers that have to respond to frequent load swings, and typically burn a single fuel. EPA should remove the requirement to install PM monitors for all industrial boi lers.

Response: For a response about the rational for using PM CPMS pl ease see section II.E of the preamble to the final rule.

As discussed in previous comments, in the final rule PM CEMS is one of the options available to large ERUs that do not burn biomass. With respect to tha t option, EPA has recently issued a memo that is available in the docket on the capabilities of PM CEMS. That memo from Conniesue Oldham to Bob Schell, dated June 13, 2012, states th at developing an acceptable PM CEMS correlation on a unit with very low emissions, or that burns multiple fuels, is possible but requires special care. For instance, one must select t he best technology available for the job. EPA has reviewed the study conducted by Georgia-Pacific and NCASI and would like to point out that the GP testing was done using only light scatter ing, or “backscattering” technology. If a source owner is concerned about the ability of a light b ased PM CEMS to meet the requirements of PS 11 because of variable physical characteristics of particles in the stack, there is at least one other PM CEMS technology based more directly on mass measurement rather than on the light scatter or “backscattering” technology.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM)224

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 12

Comment: WTI Supports EPA Revisions to the Continuous Monitoring Provis ion for Large ERUs
WTI supports EPA’s decision to eliminate the mandatory use o f particulate matter CEMS (PM CEMs) for continuous particulate monitoring. EPA has ack nowledged that the PM CEM technology is not sufficient to accurately monitor PM concentrations in the ranges emitted by large ERUs. EPA’s decision is consistent with Section 129(c), which requires that monitoring and test methods be validated on solid waste incinerators. For these reasons we also do not believe EPA can require the installation and certifica tion of continuous parameter monitoring systems (PM CPMS) on large ERUs. A PM CPMS is for al l practical purposes a PM CEMs. Importantly PM CPMS have not been validated on solid was te incineration units as required by CAA 129 (c). PM CPMS requires the use of light scatter, l ight scintillation or beta attenuation measurement techniques

‐ the same measurement techniques used by PM CEMs. Thus, there is no basis to believe that a “PM CPMS” will achieve greate r measurement accuracy. Further we are not aware of any PM CPMS performance specification tha t would allow a CISWI to verify the accuracy or representativeness of measured data for purpose s of certification. We believe that the latest continuous opacity monitoring system (COMS) techno logy combined with other parameter monitoring (e.g., ESP power levels, baghouse leak detecto rs) are sufficient to maintain peak efficiency of particulate control devices and to assure th at the PM limit is being continuously achieved.

Response: EPA’s decision to remove the mandatory requirement for PM CEMS. For a response about the rationale for using PM CPMS please seesectio n II.E of the final rule preamble.. For a response to the comment regarding Section 129(c), the EPA does not expect increased accuracy or precision from PM CPMS monitoring, but rather contin uous qualitative measure of compliance with an operating limit, rather than quantit ative measure of compliance with an emission limit.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 34

Comment: PM CEMS are not technically effective across a range of conditions as discussed above and are a very expensive method for achieving EPA’s o bjective of assuring ongoing compliance with Boiler MACT and CISWI requirements. C osts 14 for the light scattering PM CEMS, which is lower operating and maintenance costs vs . the Beta Attenuation technology was estimated by EPA contractor data to cost between $103,000 to 133, 000 in 2004, with substantial annual operating costs as shown below: [See submittal for data table 3 provided by commenter.] The above costs are high in and of itself. However, th ese costs do not include what might be required to establish correlation curves for multiple fu el and work to try to find a way to make this technology work effectively in scenarios it has n ever been successfully applied. Given the225

range of fuels, production rates and other variables in a g iven installation that would have to be accounted for, this cost is believed to be a small fract ion of the true cost for applying this technology. There are much more effective tried and tr ue technologies that are currently used for assuring compliance that have been demonstrated to be effec tive in a variety of situations. For example, bag leak detection systems, baghouse pressure drop and many other technologies which EPA has included in their Compliance Assurance Monitoring Guidance would be much more effective and accurate indicators of problems with cont rol technology. These tried and true and less costly approaches should be adopted to assure complia nce. EPA should not force industry to use an unproven technology which is unlikely to be effecti ve in a variety of situations when a simpler more elegant technological solution is already at hand. For the above reasons, EPA must abandon its proposal to use PM CPMS as an indicator of effective operation.

[Footnotes]

(14) Status of Particulate Matter Continuous Emission Monito ring Systems for Application to Electric Utility Steam Generating Units, Prepared for: Emission Standards Division Office of Air Quality Planning and Standards U.S.

Environmental Protection Agency, September 7, 2004.

Response: As discussed in section II.E. of the preamble to the final rule, PM CEMS is one of the options available to large ERUs that do not burn bio mass. For instance, ERUs with an average heat input greater than 250 MMBtu/hr, that burn coal or liquid/gas for fuel, have the option of using either PM CEMS or PM CPMS. (However, large ERUs that burn biomass are required to install PM CPMS.) ERUs with an average heat input of less than or equal to 250 MMBtu/hr have the option to measure PM with a PM CEMS, a PM CPMS, or to conduct periodic testing, regardless of fuel. If a source feels t hat one option is not suitable or practical for their unit, then the source is encouraged to select the opt ion most applicable to their specific site.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 35

Comment: As an alternative to the extremely expensive particul ate matter CEMS installation EPA proposes, EPA should allow the installation and oper ation of bag leak detection systems in accordance with the proposed rule’s §63.7525(j)(1) through (8) i n addition to the existing opacity monitors and pressure drop monitoring. The bag leak detection system provides ongoing monitoring of the bag house component performance and provides for continuous compliance demonstration. Method 5 stack testing is performed at the r ated capacity of the boiler. At this rated capacity, all systems for particulate control a re maximized as well (e.g., the air/cloth ratio in the baghouse, the ID fan output, ductwork losses, etc.) . Hence, for particulate matter, stack testing conditions are the worst case operating conditi ons. At lower loads, the basic design parameters for the particulate collection system and fo r the combustion air management are not as taxed so it would be reasonable to expect that at low er loads, particulate emissions on a lb/MMBTU basis would be lower than the stack test. If all systems that were operating during the stack test continue to operate properly during normal oper ation, continuous compliance with226

the stack test can be determined due to the nature of partic ulate matter emissions behavior. One CIBO member already operates and maintains PS1 certified opacity monitors on all three units as well as monitoring baghouse pressure drop.

Response: Please see response to DCN EPA-HQ-OAR-2003-0119-2605-A1, excerpt 34.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 32

Comment: PM CEMS do not measure mass. Because PM monitors do n ot measure mass directly, they must be calibrated against some manual, P M reference method measurement procedure like EPA Methods 5, 5i or 17. The fundamental probl em arises when the characteristics of the emitted PM exhibit significant v ariability and this variability in the particulate properties translates into a shift or altera tion in the instrument’s calibration curve. Biomass, as well as CISWI units, which combust a mixtur e of fuels and which operate at variable loadings pose significant challenges in establ ishing meaningful correlations. In order to establish a calibration curve, one needs to source test the emissions from the stack and correlate those to specific instrument readings. As fuel and fuel mixe s vary, particle size distributions generated vary significantly. Biomass combustion emissi on distributions are characterized by a bimodal particulate distribution. 12 [See submittal for Figure 1 provided by commenter.] This is due to the vaporization of volatile ash species in the woo d-like potassium and sodium biomass ash that yields a bimodal characteristic with peaks of nominally 0.5 and 20 to 40 microns. Coal ash, on the other hand, tends to exhibit a more mono modal distribution without the submicron peak. Data available for PM CEMs effective is primarily limited to coal, and data on how PM CEMS will respond to monitoring biomass emissions is expec ted to be problematic. In addition to the variability of the fuels and fuel mixtures the oper ating load (firing rate) of the boiler will produce varying particulate loading which will challenge the robustness of any PM CEM correlation and calibration. This has been demonstrate d during a study conducted by the Electric Power Research Institute (EPRI) of PM CEMS. The resu lts of the study indicate that when inlet loading to ESP’s are changed due to different fuel mixtures , the exhaust emissions have a different particle size and distributions. Therefore, a single or even a few correlation curves cannot be used to provide representative compliance correl ations over an extensive range of fuels, fuel mixtures and loads. The results of the EPRI Study indicate that when a protocol is developed to simulate varying particle sizes and loads it re sults in inaccurate mass emissions estimates 13 . For units such as biomass units, which may use a variety of biomass materials and vary production, or for CISWI units, which combust a vary ing mixture of materials, testing every possible fuel mixture to develop calibration curves for eac h is infeasible, given the extensive range of possible fuel mixtures. In practice, changing the fuel mix for the purpose of correlation testing may alter the loadings; however, it would be dif ficult to do in a systematic way, and in order to gather the reference data needed to develop an acc eptable correlation. Thus, for variable fuel and production rate units with variable emission charac teristics in the stack where the PM CEMs is being used as a monitor, we conclude that establishi ng meaningful curves, figuring out how to match those to the fuel and production mixes and fi nally correlating these with emissions in any meaningful way is impractical. Basically, for ea ch fuel mix that may be used, one would227

need to be able to establish a correlation curve. Then, th e instrument would need to use the right calibration curve for the proper fuel mixture in order fo r any meaningful correlation with particulate to be established. This solution is not technic ally feasible. Beyond this, there are a number of correlation issues. For instance, the PM re sponse to the light scattering instruments are very dependent on particle size, shape and even color . Other technologies have other limitations.

[Footnotes]

(12) “BIO-AEROSOLS – Aerosols in Fixed Bed Biomass Combust ion,” Presented by Professor Ingewald Oberberger,

Ph.D., Graz University of Technology, Budapest, October 2003.

(13) The Varying Load Simulations in the EPRI study consi sted of turning off fields in the ESP.

Response: For a response about the rationale for using PM CPMS and to questions regarding the capabilities of PM CEMS, please see section II.E of the preamble to the final rule, as well as the memo from Conniesue Oldham to Bob Schell, dated June 13, 2012, available in the docket. Note that the final rule requires output from such device s in milliamps, so does not require a correlated PM concentration output as the commenter is concerned about.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 23

Comment: Subpart CCCC and DDDD proposed rule language requires eith er a 3-hour average basis for listed operating parameters or no specific tim e period except for oxygen as the operating parameter for demonstrating compliance with the CO emission limit (which is a 30- day rolling average basis). The proposed rule does specify use of 30-day rolling averages for CEMS compliance purposes. Use of 3-hour averages for opera ting parameters where CISWI units routinely modulate is simply unworkable. The 3 hour block averaging periods will cause operators to consider shutdown of units that have some bo bble or short term problem with a parameter in an attempt to avoid a potential permit deviatio n. These shutdowns and restarts will result in more impact on the environment and plant operati on. Use of 30-day rolling averages for all operating parameters as proposed by EPA in the Boiler MACT rule will allow operators to intervene and correct a problem without shutting down. We agree with EPA in their Boiler MACT discussion that major issues such as ESP transfor mer failure will show up in a 30 day rolling average and prevent continued operation with malfun ctioning control equipment.

Response: We recognize the commenter's support for 30-day rolling ave rages for CISWI energy recovery units, and have included language in 60.2145(c) and 60.2710(c) i n the final rule that specifies parametric monitoring for energy recovery unit s are on a 30-day rolling average basis.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC)228

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 31

Comment: In the preamble to this Proposed Rule, EPA states that it is proposing to incorporate 30-day averaging periods for operating parameters for ERUs.

Likewise, to be consistent with these other rules, we have revised all operating parameter averaging for ERU units to be on a 30-day rolling average. Due to the relatively long operational campaigns of ERUs, the longer averaging time will allow operators sufficient flexibility for operational and control device adjustments should they b e needed for short term fuel or waste characteristics variability. The EPA has determined the 30-day rolling average reporting basis is appropriate for this rule. The operating limits establis hed through performance testing in this rule represent short term process and control operating conditions representative of compliance. Concerns of variability outside the operators control such as fuel content, seasonal factors, load cycling, and infrequent hours of needed operation prompted us to lo ok at longer averaging periods on which to base operating compliance determination . 76 Fed. Reg. 80465.

We concur that 30-day averaging periods are appropriate for E RUs for the reasons EPA provides above. However, these changes were not made to the re gulatory text (60.2165, Table 4 to Subpart CCCC, 60.2730, and Table 5 to Subpart DDDD), which still specifies 3-hour block averages for operating parameters. EPA should make sure th e regulatory language is clear on how to establish all operating parameter ranges and the re quired averaging periods. The use of 3-hour averages for operating parameters where CISWI units routinely modulate is simply unworkable. The 3-hour block averaging periods will cause opera tors to consider shutdown of units that exhibit fluctuations or short term problems with a parameter in an attempt to avoid a potential permit deviation. These shutdowns and restarts w ill result in more impact on the environment and plant operation than allowing continued operat ion and a longer averaging period would. Use of 30-day rolling averages for all operating parameters will allow operators to intervene and correct a problem without shutting down. We agree with EPA in their Boiler MACT discussion that major issues such as ESP transfor mer failure will show up in a 30-day rolling average and prevent continued operation with malfun ctioning control equipment. (See 76 Fed. Reg. 80610.)

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 23.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 45

Comment: We concur that 30-day averaging periods are appropriate for ERUs for the reasons EPA provides in the preamble. However, these changes we re not made to the regulatory text (60.2165, Table 4 to Subpart CCCC, 60.2730, and Table 5 to Subpart DDDD), which still specifies 3-hour block averages for operating parameters. EP A should make sure the regulatory language is clear on how to establish all operating parame ter ranges and the required averaging periods.229

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 23.

Commenter Name: Stephen R. Gossett Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2640-A2 Comment Excerpt Number: 11

Comment: We support 30 day averages for all parametric monitoring but the proposed rule language is inconsistent.

Discussion: EPA’s discussion of this issue is found on page 80465 of the prea mble to the reconsideration proposal. We fully agree and support EPA ’s reasoning for this change. This will provide needed operational flexibility. The previous 3 hour blo ck averaging periods would have likely caused operators to consider shutdown of units that ha d some bobble or short term problem with a parameter in an attempt to avoid a potential permit deviation. These shutdowns and restarts would have resulted in more impact on the e nvironment and the plant operation. A 30 day rolling average will allow operators to intervene an d correct a problem without shutting down. We agree with EPA that major issues such as ESP transformer failure will show up in a 30 day rolling average and prevent continued operation with ma lfunctioning control equipment.

However, we have found one reference at §60.2165(f) remai ning in the proposed rule language indicating 3-hour averages.

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 23.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 9

Comment: EPA has proposed that owners and operators use parametr ic monitoring (i.e., pH, pressure drop, scrubbant flow rate, etc.) based on stack testing to demonstrate continuous compliance with applicable emission limits. The avera ging period used for the parametric monitoring in the original Boiler MACT finalized in Marc h 2011 was a 12-hour average. In the currently proposed amendments, EPA is requiring proposing t hat owners and operators instead use a 30-day rolling average. This creates an averaging perio d for parametric monitoring that is grossly inconsistent with the emission standard set thr ough initial performance test (stack testing). The averaging period for a stack test for an em ission standard, such as particulate, is typically determined from the average of three stack te st runs, which would be only one- to two hour long runs. Where the emission standard is based on th e average of three, one-hour stack tests, parametric monitoring with a 30-day rolling average ( or even a 12-hour average) will not ensure compliance as the affected unit could be operated out side of the range (and presumably above its three-hour emission limit) for half the mo nth. We do not object to the use of long-term
averages per se , as such averages can be a solution to the variability issue. However, there is then no technical justification for the very large variability factors adopted by EPA (based on onehour test runs) in a system that permits 30-day averages t o be used for compliance.230

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 23 on the 30-da y average for parametric monitoring for energy recovery u nits. For the reasons stated in the December 2011 proposal and for the Boiler MACT rule, we hav e finalized this approach for energy recovery units. The variability analysis used to establish emission limits is not being reconsidered, and therefore comments related to this a pproach and 30-day rolling averages for parametric monitoring are out-of-scope.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 6

Comment: EPA proposes to allow sources to demonstrate complianc e with emissions limits by averaging emissions data over a longer time period. Specifi cally, EPA proposes to permit compliance determinations to be made on the basis of a 30-day rolling average. Although rolling averages are better than block averages, which allow pollut ers to comply based on the entirely fortuitous circumstance of a new block period beginning betwee n elevated test runs, EPA has failed to adjust the applicable emissions limits to acco unt for a 30-day averaging period. Instead, sources are now in compliance with the standard if the ir average emissions are below the standard set based on one-hour test runs. Compare MACT Floor Analysis for the Commercial and Industrial Solid Waste Incinerators Source Category, EPA-HQ-OAR-2003-0119-0059, Table 2-1 (“CISWI MACT floor memo”) with 76 Fed. Reg. at 80528 (Table 8 to Subpart DDDD of Part 60). This is a major methodological error. When EPA calculated the emissions limits for CISWI units, it used statistical methods to determine the highest possible one-hour emission level from those sources and set the standard at that level. CISWI MACT floor memo at 6–7 (emissions limits calculated based on “run-specific data” adjusted for statistical variability). The 30-day averaged emissions for those sources are necessari ly much lower because, as EPA recognizes, “[30-day] average emissions . . . have a varia bility of about half of that represented by the results of short-term testing.” 76 Fed. Reg. at 80465/1. “Short-term tests,” by contrast, “are representative of distinct points along a continuu m of that inherent operational variability.” Id. The failure to adjust the emissions limit upwards to account for a longer compliance period thus permits a source to demonstrate compliance with the standard when the source’s one-hour and 30-day-averaged measured emissions are both much higher tha n those of the best performing units that the standard is required to reflect. EPA’s swi tch to a 30-day average compliance determination impermissibly weakens the standard in anothe r respect also. EPA selected the best performers on the basis of one-hour test runs, not 30-day averages. Units not selected as the best performers may actually have yielded lower 30-day average em issions limits than those selected. To comply with the requirement to set the MACT floor based on the best performers, EPA must use the same methodology both in selecting the best per formers and then in calculating the limits. 2 The failure to do so is unlawful and arbitrary.

[Footnotes]

(2) For the same reasons, EPA may not adjust for varia bility in setting emissions limits without doing so in selecting the best performers.231

Response: The variability analysis used to establish emission limits is not being reconsidered, and therefore comments related to this approach and 30-day rol ling averages for parametric monitoring are out-of-scope. We presented our rationale and intent for being consistent with boilers in using the 30-day rolling average for parametric mo nitoring at 76 FR 80465. In that discussion, we note that our monitoring requirements are similar to those required by major industrial boilers and utility boilers. While we did not note the cite directly at proposal, a further discussion of why this averaging time is appropriate for CI SWI ERUs (i.e., boilers and process heaters that combust solid waste) may be found in the pr eamble to the December 2011 proposed rule for industrial boilers (76 FR 80610).

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 34

Comment: EPA has proposed to delete the requirement that compli ance monitors for PM limits conduct annual RATA testing to demonstrate the accuracy of the results. NACAA opposes this proposal as it will diminish the protectiveness of the standards and potentially render the standard unenforceable.

Response: Please see section II.E of the preamble to the final rule for changes to continuous PM monitoring requirements. Note that the final rule re quires output from such devices in milliamps, so does not require a correlated PM concentra tion output. The rule maintains that sources calibrate the PM CPMS according to the procedures i n the approved site-specific monitoring plan.

For a discussion on PM CEMS operational capabilities, p lease see section II.E of the preamble to the final rule, as well as the memo from Conniesue Oldha m to Bob Schell, dated June 13, 2012, available in the docket.



### 2S01. Extending Compliance Dates

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 2

Comment: Sources need a substantial period to come into complia nce and CIBO strongly supports resetting the dates. Internal planning for complian ce with major rules requires involvement of personnel at all levels of the company, an d in the case of this major rule, will require major capital projects at many facilities cove red by this rule. CIBO has commented in earlier comments at length on the need for sufficient time for the complex undertaking of retrofitting a major boiler facility, including complian ce planning, engineering design, capital232

approval, equipment purchase, installation and testing, all in advance of the compliance date. Here, because EPA issued an immediate Notice of Reconsi deration of the rule, 8 sources understood as of the publication of the March 2011 Final Rule that there would be amendments to the rule that could very well alter compliance strate gies. At the time, it was unclear whether the rule would change considerably from the final version, and with respect to which sources and emission limits. One significant element of the CISW I rule that would clearly undergo change, based in part on EPA’s flawed data, was the inventory of units in the CISWI category. In addition, several clear problems in the March 2011 Final NH SM rule made it clear that the definitions of NHSM and fuel were highly likely to be amend ed. Changes to correct data and likely revisions to the fuel definition would clearly affec t the populations of units in CISWI subcategories and therefore floor calculations and emissi on limits. Under those circumstances, it would not have been rational for sources to develop compl iance strategies and begin the complicated, costly process of compliance with a rule that EPA had announced would be changed. As anticipated, EPA has addressed several signifi cant elements of the March 2011 Final NHSM rule, which have the effect of reclassifying sources between the incinerator and boiler categories and among subcategories in each rule. Even during the development of and comment period on the Proposed Reconsidered NHSM rule, E PA issued three interpretive letters that directly affected subcategory populations. 76 Fed. Reg. 80473. Among the sources whose classifications were directly affected are CIBO membe rs. And EPA went on to propose other significant changes in the fuel definition that must be accounted for by sources in their compliance plans. Even the Final Reconsidered NHSM rule published, however, will not fully determine the status as waste or NHSM of many materials currently being used as fuel, and that rule provides a petition process to make those determinatio ns. Sources that are unsure about the status of their materials will petition EPA for determ inations of the status of their materials, and on the basis of those determinations, the sources will then know whether their continued use of those materials will classify the source as an inciner ator or boiler. CIBO has urged EPA to establish a timeline for completion of the initial roun d of waste/fuel determinations, although the Proposed Reconsidered NHSM Rule does not indicate a date- certain by which sources will have final decisions regarding the status of their materials. In addition to uncertainties faced by sources themselves, their source compliance plans direc tly affect States. As EPA points out, incinerator NSPS standards under CISWI must be built into State programs. Unless EWA resets the compliance dates, the “compliance dates from the f inal rule would essentially provide less than 2 years for states to implement a revised state p lan and for increments of progress to be scheduled.” Until sources define their compliance plans, “ states will be uncertain on an appropriate schedule for increments of progress, which inc ludes submittal of a final control plan.” 76 Fed. Reg. 80465.

[Footnotes]

(8) National Emission Standards for Hazardous Air Polluta nts; Notice of Reconsideration, 76 Fed. Reg. 15266 (March 21, 2011).

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC)233

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 34

Comment: EPA proposes to reset the compliance date for existin g sources to 5 years from the effective date of the final reconsidered CISWI rule, or 3 years after a state plan is approved, whichever is earlier (76 Fed. Reg., 80465). For new sources, E PA proposes to revise the compliance date to 6 months after promulgation of the fi nal reconsidered rule. 76 Fed. Reg. at 80465. ACC strongly supports EPA including these proposed compl iance deadlines in the final rule so that facilities will have the needed time to make compliance related decisions, install equipment, undertake testing and complete other required act ions. EPA clearly has authority to reconsider and revise standards pursuant to § 307 of the Clea n Air Act. After such reconsideration and revision to the standards, “there wi ll be circumstances where EPA changes a rule so extensively that the amended rule should be regar ded as a new standard.” Pesticide Active Ingredient (PAI) NESHAP, 67 Fed. Reg. 38200, 38201 (June 3, 2002). Sources need time to come into compliance with such “new standards.” Id.

As noted above, EPA used its authority in the revised PAI rule to establish a new compliance deadline for existing sources that was an additional 16 mon ths from the deadline in the original final rule. Id. EPA took similar action in establishing a new complianc e deadline after reconsideration and promulgation of revised standards in the Miscellaneous Organic Chemicals Manufacturing (MON) NESHAP, 71 Fed. Reg. 10439, 10440 (Mar. 1, 2006). While this authority was under § 112(i)(3), the regulatory structure of §§ 111, 112 and 129 are similar enough that the authority should be the same when revising a § 129 standard.

Section 129(f) requires EPA to establish compliance deadli nes for new and existing sources when promulgating “performance standards and other require ments” pursuant to § 129 and § 111. The provision is ambiguous as to whether a compliance deadline initially established in a CISWI rule must continue to apply when that rule has bee n substantially revised and changed through the reconsideration process. Arguably it does not.

Section 129(a)(5) requires EPA to review and if appropriate, revise a § 129/111 standard at 5 year intervals after the initial promulgation of the rule. If the underlying standard is revised, it is axiomatic that a new compliance deadline would have to be e stablished pursuant to § 129(f) to allow sources to come into compliance with the revised “pe rformance standards and other requirements.” ACC believes the same holds true when a rule is substantially revised pursuant to a § 307 consideration such that the final reconsidered rule i s a “new” rule triggering a new effective date.

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 9234

Comment: We agree with EPA’s proposal to extend the complianc e dates for new and existing units. EPA proposed to revise the CISWI, Boiler MACT, and Non-Hazardous Secondary Materials (NHSM) rule in December 2011, so facilities ar e still facing significant regulatory uncertainty, in that they are not sure if their NHSM are fuels or waste and they are not sure what the final emission limits will be for their boilers/ energy recovery units. Owner/operators of units that may be regulated by CISWI or by Boiler MACT, dependin g on the way the fuels are defined as provided by the NHSM rule, will need additional time to:

• potentially obtain additional characterization data o n their fuels;

• follow the requirements of the new NHSM rule to deter mine if the material is a solid waste or not;

• potentially prepare, submit, and get approval for an applica tion for a non-waste determination;

• determine if they can meet the CISWI standards or the Boiler MACT standards or both;

• determine how they can comply with the overlapping co mpliance requirements of Boiler MACT and CISWI if they intend to take advantage of fuel s witching provisions; and

• potentially engineer, install, and start-up new air poll ution controls and CPMS to be able to comply with the emission and operating limits of eithe r CISWI, Boiler MACT, or both, depending on the materials that the unit will burn.

We note that EPA is proposing changes to several emissio ns standards, changes to the number and type of subcategories, and changes to the criteria tha t will be used in the first instance to determine whether a unit is covered by the Boiler MACT or the CISWI rule. All of these proposed changes will affected the level of the standard s and the manner in which these standards will be applied to affected sources. This means th at EPA’s proposal to reset the compliance deadlines is justified by the facts and wholly consistent with the holding in NRDC v. EPA , 489 F.3d 1364 (D.C. Cir. 2007).

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 36

Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI rulemaking is all the more compelling because of some uni que circumstances. Due to the vacatur of the stay, the regulated community has lost al most a year from the original compliance time frame. The regulated community relied in good faith on EPA’s administrative stay and we will be significantly prejudiced if EPA does not reset o r extend the compliance date in the final reconsidered CISWI rule. Given the complexity of this rule and all of the necessary actions that an undetermined number of affected sources will have to take , meeting the initial compliance235

deadline is going to be impossible for most sources and wil l severely impact limited industry and
state resources.
Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 37

Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI rulemaking is all the more compelling because of some uni que circumstances. It is still unclear how many sources will be regulated under CISWI, as opposed to the § 112 boiler rules, and this uncertainty will remain until EPA finalizes its recon sideration of the Non-Hazardous Secondary Materials (NHSM) Rule. The continued lack of clarity on whether a secondary material being combusted is a fuel or a “waste” has precluded sources fr om being able to make applicability determinations and move forward.

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 38

Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI rulemaking is all the more compelling because of some uni que circumstances. Exacerbating the compliance challenges that will be presented in the fi nal reconsidered rule is the fact that EPA is promulgating the first NESHAP rule applicable to electri c generating utilities (EGU) along the same time frame as this rule. As EPA correctly note s, the sheer volume of sources that will need to devise new compliance strategies and install new equipme nt pursuant to this rulemaking, the boiler major source rulemaking, and the EGU rulemaking will outstrip the availability of the vendors who can do this work. 76 Fed. Reg.at 80465. In its di scussion in the preamble to this proposed reconsidered rule, EPA has accurately highlighted m ost of the reasons why the compliance date needs to be revised in the final reconsid ered rule. Id. For the reasons stated in the preamble and in these comments, ACC strongly supports the Agency finalizing its proposed revisions to the compliance deadlines for new and existing CISWI sources.

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America236

Document Control Number: EPA-HQ-OAR-2003-0119-2615-A1 Comment Excerpt Number: 10

Comment: Lafarge agrees that the compliance dates should be ext ended due to the significant confusion and uncertainty within the regulated community aris ing from EPA’s immediate reconsideration and stay of the final CISWI rule and ch anges to the emission standards for wasteburning kilns. See 76 Fed. Reg. 80465.

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 17

Comment: Dow appreciates and supports EPA’s plan to extend the co mpliance date for existing sources in the incinerator, waste-burning kiln, and energy recovery unit subcategories and to base that date on the date of publication of the final r econsideration rule. Dow agrees with the reasons EPA provided at 76 FR 80465 and agrees with the proposed c hanges to this date at § 60.2505, § 60.2535, § 60.2545, and Tables 1, 2, 6, 7, 8, and 9 of subpart DDDD.

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 28

Comment: PCA Supports EPA's Extension of the Compliance Deadl ine: PCA agrees with EPA's proposed changes that the existing source CISWI comp liance deadline, which should begin five years following promulgation of the final rule . The compliance dates should be extended due to the significant confusion and uncertainty withi n the regulated community arising from EPA 's immediate reconsideration and stay of th e final CISWI rule and changes to the emission standards for waste-burning kilns. See 76 Fed. Reg. 80465.

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 1237

Comment: The Notice of Reconsideration appropriately recognized t hat the final rules that were issued required revision due to numerous technical, lega l and policy issues that the Agency had not had sufficient time to address in its final rule makings. By the same token, however, the notice created uncertainty on multiple levels as to the final limits and standards of the Boiler MACT and CISWI Rules. First, it created uncertainty a s to the final composition of “a number of issues” EPA enumerated in the Notice of Reconsideration . Those included fundamental aspects of the Boiler MACT and CISWI Rules, e.g., revisions to the proposed subcategories and to the fuel specification through which gas-fired boilers using a f uel other than natural gas (“NG”) can qualify as Gas 1 units in the Major Source Boiler MACT. See id . Second, the Notice of Reconsideration created uncertainty as to which other el ements not enumerated by EPA would become part of the reconsideration process and how reco nsideration might alter the form of those elements as finalized on March 21, 2011. This is because EPA e xplicitly set forth that it was still “in the process” of determining the full extent of those subjects and that it was committed to including “all additional issues” appropriate for reconsidera tion, including those raised in any then-prospective petitions for reconsideration. Even to the extent that the Notice of Reconsideration enumerated certain, specific subjects a s under reconsideration, it acknowledged that the list was only a portion of the subjects that E PA would ultimately reconsider. See id. Indeed, the scope of the issues that EPA intended to reco nsider was not identified until the 3 December 23, 2011, reconsideration proposal, some 9 months l ater than the publication of the final rule (and a substantial portion of the way into the compliance planning period for affected sources). The Notice of Reconsideration, therefore, lit erally put affected sources, including those owned and/or operated by AIF members, on notice that they should not – and, indeed, could not – initiate selections of control technologies or make other compliance decisions because elements of the Boiler MACT and CISWI Rules were subje ct to change. The subsequent Delay Notice reinforced the notion that affected sources shou ld postpone the start of internal compliance procedures because it expressly delayed the Ma y 20, 2011, effective date of the Boiler MACT and CISWI Rules, pending the conclusion of j udicial review or EPA’s reconsideration process. See Delay Notice , 76 Fed. Reg. at 28,662. In the notice, EPA again reiterated that a reconsideration proposal would be fo rthcoming and that the full extent of the subjects under reconsideration would not be known until iss uance of that proposal. See id. at 28,663. In the Delay Notice, therefore, EPA induced reasona ble reliance on the part of affected sources, including those owned and/or operated by AIF members , to put off making the necessary compliance decisions until further notice. Wh en weighing various energy strategies to comply with the Boiler MACT, automotive companies fac e a number of choices. For instance, facilities with coal-fired boilers must decide betwee n several options for meeting the anticipated rules and optimizing energy usage, including adding control equ ipment to current boilers; converting less efficient steam-powered heaters to NG-f ired units; and eliminating coal boilers altogether by either converting them to, or replacing them with, NG-fired units or resourcepreserving, landfill gas-fired boilers. The control options associated with the CISWI rule will be even more numerous due to the higher emission restricti ons involved. Uncertainty as to the final form of the regulations – including which controls, work prac tices, and emission standards will apply – inhibits automotive companies from judiciously making t hese involved energy policy decisions. Once the rules are finalized, implementation of the changes required to achieve compliance can require significant time, beginning with the company’s internal review process. First, the automotive company’s legal and technical perso nnel must analyze the newly promulgated requirements to determine the best course of act ion based on the company’s238

production requirements and its short- and long-term financ ial situation. After selecting a strategy, the technical staff must compile and present a budget and informational package to facilitate the managerial decision-making process. Next , the automaker’s management must review and approve the compliance strategy. Management appr oval is followed by compilation of a bid package and vendor list to assist the company in ide ntifying the best equipment and value. The automaker then submits bid packages to identified bidders and, after several rounds of clarifications and negotiations, selects and hires a bidder . It can easily take 6-8 months after the rule is finalized to select a control option and hire a n installation contractor, assuming a qualified vendor is available to begin work immediately. Under curren t regulatory timetables, this would give all affected sources slightly more than a year t o design, build, install, and test required control equipment, an insufficient period of time.

Even after a company hires a vendor, it needs additional time to order and install equipment. The length of time depends on the types of equipment or cont rols chosen, and obtaining certain pieces of equipment sometimes involves significant lead times. In addition, as EPA acknowledges, only a limited number of vendors are qualified to fabricate and install the equipment that the Boiler MACT and CISWI and NHSM Rule s will ultimately require. 3 A short implementation window would result in flooding these ven dors with bid requests and aggressive equipment delivery and installation demands, causing increas ed wait times and increasing compliance risk for owners and operators. Moreover, as EPA is aware, installation of controls or changes to a process to comply with a rule typically requires air construction permits to be issued under the state implementation plan (“SIP”) and revisio n of Title V operating permits. Construction permit processing times can range from 3 mont hs to over a year and revision of operating permits typically takes no less than 6 months but can take longer. After the required permits are issued and the requisite equipment is delivered, the speed of installation can depend on the weather in northern climates (where many of A IF members’ facilities are located), which inhibits the pouring of concrete foundations depending on the season. A start-up time follows equipment installation and then, generally, the vendor must test the equipment to demonstrate that it meets performance claims. Moreover, as EPA i s aware, the rules, once finalized, will require some type of third-party equipment performance tes ting. Regulated entities will need to select those third-party testing companies by a process si milar to vendor-selection process described above and, again, the regulated community would ex pect shortages of qualified testing vendors in any truncated or expedited rule-implementation window. If, as evaluated through the testing process, the equipment does not meet performance re quirements, then it may need additional modification or adjustment. In the reconsid eration proposals, EPA recognizes in general terms the effect of the Notice of Reconsiderati on and the Delay Notice, describing the “resulting uncertainty” as having “limited the ability of affected sources to begin making appropriate selections of control technologies and othe r compliance decisions.” E.g., Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. As described above, the compliance process for regulated entities like facilities owned and/ or operated by AIF members is protracted and involves many interconnected steps. Given that the regu lated community cannot begin the compliance process without knowing the final contours of the rules, any delay in EPA finalizing the Boiler MACT and CISWI Rules necessitates a corre sponding delay in the beginning of the compliance period. Otherwise, affected sources, including t hose owned and/or operated by AIF members, will have insufficient time to comply. Theref ore, AIF supports EPA’s proposal for the compliance period to begin 60 days after it publishes the fi nal reconsideration rules.239

[Footnotes]

(3) In the Boiler MACT Reconsideration Proposal, EPA notes that, even under the statutory maximum of 3 years, the availability of control equipm ent and vendors to facilitate installation of control technologies is likely to pose a problem, gi ven the thousands of facilities across multiple, diverse industries that will become subject to the final reconsideration rules. See Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. The potential scarcity in availabilit y of equipment and vendors promises to be exacerbated, as EPA r ecognizes, by the “large number of units requiring controls in conjunction with the parallel r ulemaking for electric generating units that will require controls from many of the same vendor s.” Id.

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 3

Comment: As EPA acknowledges, even after issuance of the recon sideration proposals, affected sources’ uncertainty as to the final form of th e Boiler MACT and CISWI Rules persists because the reconsideration proposals put forward a number of substantive revisions to the definitions, subcategories, emission limits, work practic e standards and other components of the rules. See CISWI and NHSM Rules Reconsideration Proposal , 76 Fed. Reg. at 80,465; Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. In the Boiler MACT Reconsideration Proposal, for example, EPA “proposed changes to emissi on limits for units in every subcategory.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616 (emphasis added). Revision to emission limits and standards across t he subcategories will trigger different compliance responses and control selection than would hav e flowed from the final rules of March 21, 2011. Those proposed changes, coupled, for example, with the shift to work practice standards for dioxin/furan emissions for all subcategories, significantly impacts the ability of affected sources, including those owned and/or operated by A IF members, to develop and decide upon final compliance strategies while the reconsideration process remains ongoing. See id. As EPA notes, facilities must design emission controls t o work properly when operated together, so they cannot initiate appropriate design of those controls (and make corresponding compliance decisions) until the final limits and standards are known and fixed. See id. The fact that the Boiler MACT and CISWI and NHSM Rules all simultaneousl y remain in development adds a special level of complication to system analysis prior to the finalized rules. For example, in one process, a company must analyze a system to evaluate whi ch materials the NHSM Rule might be interpret as a “solid waste.” This determination will di ctate whether the equipment must ultimately meet the Boiler MACT or the CISWI Rule. I n the case of the CISWI Rule, a particular process would likely require addition of an afterburner o r recuperative oxidizer, selective catalytic reduction (“SCR”), a scrubber, activated carb on injection and a baghouse. If the material is considered a fuel and not subject to CISWI, h owever, it would have to meet the Boiler MACT requirements, which would likely involve only a scrubber and a baghouse. Moreover, uncertainty regarding the final limits require d by the rule complicates decisions on the240

process order of the equipment layout. Determination of the final pollutant emission limits dictates, for instance, whether to use a SCR and spray dry er combination versus a multipollutant, Tri-NOx system followed by an acid gas scrubber. The regulated community, including AIF members, simply cannot make these decisions unti l EPA finalizes the reconsideration proposals. Therefore, such persistent uncertainty delays the start of the implementation process. Once EPA finalizes the Boiler MACT and CISWI Rules, the compliance strategy process for affected sources, incl uding those owned and/or operated by AIF members, must begin anew. As EPA does not expect to final ize the reconsideration proposals until later this Spring, maintaining the original complianc e dates would provide affected sources with an insufficient amount of time to meet the stan dards of the forthcoming final reconsideration rules. For the Boiler MACT, for exa mple, maintaining the original compliance date of March 21, 2014, would effectively provide affected source s with less than 2 years. Even under the maximum time of 3 years from the effective date allotted under Section 112 of the Clean Air Act (“CAA”), with which EPA sought to provide af fected sources in the March 21, 2011, final rule, EPA characterized the compliance timeta ble as “pressing.” Delay Notice , 76 Fed. Reg. at 28,663. AIF concurs. As EPA suggests in the reco nsideration proposals, if the Agency does not key the compliance period to the final rec onsideration rules, sources will have insufficient time to achieve compliance. EPA should final ize its proposal to begin the compliance period 60 days after publication of the final rec onsideration rules. 4

[Footnotes]

(4) Consistent with its proposal as to affected source s, EPA proposes to delay the start of the compliance period for new sources until 60 days after publica tion of the final reconsideration rules. See CISWI and NHSM Rules Reconsideration Proposal , 76 Fed. Reg. at 80,465; Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. AIF supports this proposal for many of the same reasons articulated with respect to affect ed sources.

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 35

Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI rulemaking is all the more compelling because of some uni que circumstances. EPA administratively stayed the CISWI rule on May 18, 2011, two days before the rule was to become effective. See, 76 Fed. Reg. 28662 (May 18, 2011). EPA s tayed the rule because it had already determined that significant requirements of the r ule needed to be reconsidered and needed additional public comment. Additionally, the Agenc y received a number of petitions for reconsideration from interested parties, including ACC, asking the Agency to reconsider additional provisions. That stay remained in place until J anuary 9, 2012, when it was vacated by a federal district court. Sierra Club v. EPA , No. 11-1278-PLF, 2012 U.S. Dist. LEXIS 2457, (D.D.C. Jan. 9, 2012).241

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 21

Comment: EPA has proposed to extend the compliance date for al l sources and all limits. We agree that such an extension is appropriate where more st ringent limits are imposed following reconsideration, since sources should not have to compl y with standards that ratchet in stringency after only one year. We note that EPA’s st ay pending reconsideration has been rejected by the Court and caution that an effort to provide an extended compliance deadline for sources whose emission limits are not made more strin gent may invite litigation that affects an extension for sources facing more stringent limits. We f urther note that the CAA provides the option of an additional year for compliance where a source demonstrates a need for more time.

Response: In the final rule, the EPA is extending the complianc e date for the incinerator, energy recovery unit, waste-burning kiln, and small remote incinera tor subcategories to 5 years after the date of publication of the final reconsideration rule or 3 years after the state plan is approved, whichever is earlier. The date is being extended for the s ame reasons stated in the preamble to the proposed rule (76 FR 80465, December 23, 2011) and in section I I.C.8 of the preamble to the final rule. First, proposed changes to the emission lim its for these subcategories will have a significant impact on the compliance strategies that a re selected by the affected sources. Second, when the EPA announced the reconsideration and issued the s tay of the effective date, uncertainty was created surrounding categorization and corr esponding emission limits. This uncertainty limited the ability of affected sources to be gin making appropriate selections of control technologies and other compliance strategy dec isions. Even if significant changes were not being proposed for a subcategory of units, an extended co mpliance date would likely be necessary to provide enough time for facilities to achieve compliance after a final reconsideration was issued. In addition, not extending th e compliance date may be problematic for states and implementing agencies since the increment s of progress for rule compliance are keyed off of the approval date of the revised state plan. Without a final rule in place, states and implementing agencies will be unable to adequately update a nd implement a state plan. Further, the EPA has received comments that the availability of control equipment and vendors to install control equipment for CISWI units is in question due to the large number of units requiring controls in conjunction with the parallel rulemaking fo r industrial boilers and electric generating units that will require controls from many of the same vendors. Finally, as indicated by other commenters, sources generally evaluate all applicable s tandards when determining the appropriate compliance approach, so any change in the stan dards for a source category have the potential to alter the compliance strategy for the sourc e category. For these reasons, the EPA is extending the compliance date in the final rule.

Note that the final CISWI emission guidelines still cont ain the requirement to achieve final compliance “as expeditiously as practicable,” but not la ter than the earlier of the two specified dates. Thus, CISWI units must still achieve final complia nce as expeditiously as practicable. In242

addition, the commenter’s reference to an extension o f time to comply appears to be a reference to CAA section 112(i)(3)(B), which allows the title V perm itting authority to provide a one year extension of the compliance date if necessary for the installation of controls for compliance with a NESHAP issued pursuant to CAA section 112. Section 129 of t he CAA does not contain a similar provision.

Commenter Name: Mark Calmes Commenter Affiliation: Archer Daniels Midland Company Document Control Number: EPA-HQ-OAR-2003-0119-2618-A2 Comment Excerpt Number: 1

Comment: EPA had delayed the effective dates of the March 2011 Final Bo iler MACT and CISWI rules. However, on January 9, 2012, the U.S. Distri ct Court for the District of Columbia vacated EPA's Delay Notices, and any compliance obligations for sources covered by the Boiler MACT and CISWI rules became effective immediately. EPA recognized that the vacatur triggered some compliance obligations, and in February

, EPA announced in a letter to Senator Wyden its plan to address the implications of the vacat ur

. Subsequently, EPA issued a No Action Assurance memorandum that addresses some- but not all- of the implications of the vacatur and does not alleviate many pressing continuing compliance conce rns faced by sources because the rules remain in effect.

This ongoing uncertainty is created by the timing of the four i nterrelated rulemaking proceedings and the fact that the rules are now in effect and will be in effect until EPA completes the rulemaking proceedings and issues Final Reconsidered Rules. One issue, for example, that EPA did not address in its memorandum is the circumstance f aced by sources that combust alternative material in their boilers. With the March 2011 definitions of "fuel" and NHSM now in effect and boiler and incinerator standards in effect, a source that currently combusts a material that has been defined as waste would presumably be subject to CIS WI standards. However, that same material may be redefined as a fuel under the Final Reconsidered NHSM Rule, and the unit would be classified as a boiler.

The effectiveness of the rules, and the imposition thereby of regulatory obligations, have created compliance exposure for sources that EPA could and should eliminate by staying the effect of the rules during this interim period and issuing further guidance or no enforcement assurance that addresses these concerns.

Response: As commenter suggests, the “no action assurance” letter that EPA issued was limited to the timeliness of obligations of CISWI owners/operator s to submit notifications prior to construction, notification of construction, and notifi cation of start-up as required in subpart CCCC. These particular notifications were determined t o be the only requirements that could occur between the effective date of the March 2011 CISWI rule and the effective date of this final rule. However, as noted in Section I.A.4 of the pr eamble to the final rule, we did not identify any new CISWI units that commenced construction since the June 4, 2010, CISWI proposal date, which would be considered new CISWI units su bject to the requirements of subpart CCCC. We are unsure of the provisions the CISWI rule that concern the commenter, in addition to those for which the Agency issued the no act ion assurance, and we do not understand243

the concern the commenter has with the NHSM rule si nce only new sources would be currently responsible for complying with the CISWI NSPS standards.

In this final rule, we have accounted for the final NHSM rulemaking when determining which sources are subject to CISWI and we are extending the com pliance date for CISWI sources. These actions makes the commenter’s concerns and request for a stay moot.

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and Industry Document Control Number: EPA-HQ-OAR-2003-0119-2627-A2 Comment Excerpt Number: 1

Comment: Compliance timetables and non-enforcement of violations of the March 2011 rules should be clarified in light of the vacated stay. The recently vacated stay of the effective date for the initial final Major Source ICI Boiler Rul e and CISWI Rule has introduced much uncertainty for businesses that are now faced with comp liance deadlines, some already past, which cannot be met. In the revised final rule, EPA shou ld clarify that compliance timetables will be based on the effective date established by the re -promulgated final rules, rather than the initial March 2011 promulgation date, meaning compliance deadl ines will fall in 2015 (assuming a 2012 re-promulgation effective date) instead of 2014. Furtherm ore, as already indicated in the February 7, 2012 "no action" memo from Gina McCarthy at EPA , the revised final rule should reaffirm that technical violations of the March 2011 regula tions will not be subject to enforcement.

Response: As explained in section II.C.8 of the preamble, EPA i s extending the compliance date in the final rule.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 1

Comment: EPA should stay the effect of the March 2011 CISWI rul e and issue additional guidance or no enforcement assurance to address complianc e exposure faced by sources during the period before EPA issues a Final Reconsideration Rul e. EPA had delayed the effective dates of the March 2011 Final Boiler MACT and CISWI rules. 4 However, on January 9, 2012, the U.S. District Court for the District of Columbia vacated E PA’s Delay Notices, 5 and any compliance obligations for sources covered by the Boiler MACT and CI SWI rules became effective immediately. EPA recognized that the vacatur triggered so me compliance obligations, and on January 18, 2012 EPA announced in a letter to Senator Wyden 6 its plan to address the implications of the vacatur. Then on February 7, 2012, EPA issued a No Action Assurance memorandum that addresses some – but not all – of the impl ications of the vacatur. 7 EPA’s memorandum assures sources in a limited scope of circums tances that their failure to have met a deadline to file an initial notification would not be the basis of an enforcement action brought by EPA, given that the deadline fell during the period when the Boiler MACT and CISWI rules were not in effect. In the letter to Senator Wyden, E PA asserts that for any “permitting or244

compliance challenges” arising from the vacatur, EPA wil l issue a stay for 90 days or longer, and in the event of lawsuits arising from the vacatur, EPA is “confident” that it has the legal tools to address those matters. Notwithstanding its assurances, EPA ’s memorandum does not alleviate many pressing continuing compliance concerns faced by sources because the rules remain in effect. This ongoing uncertainty is created by the timing of the four interrelated rulemaking proceedings and the fact that the rules are now in effe ct and will be in effect until EPA completes the rulemaking proceedings and issues Final Reconsidered Rul es in Spring 2012. One issue, for example, that EPA did not address in its memorandum is t he circumstance faced by sources that combust alternative materials in their boilers. With March 2011 definitions of “fuel” and NHSM now in effect, and boiler and incinerator standards in e ffect, a source that currently combusts a material that has been defined as waste would presumably be subject to CISWI standards. However, that same material may be redefined as fuel un der the Final Reconsidered NHSM Rule, and the unit would be classified as a boiler. The ef fectiveness of the rules, and the imposition thereby of regulatory obligations, have create d compliance exposure for sources that EPA could and should eliminate. CIBO and other organizations in meetings and discussions with EPA have explained the ongoing compliance exposure during this interim period between the rules going into effect and issuance of final rules that will replace the March 2011 rules. EPA should alleviate these concerns by staying the effect of the rules during this interim period and issuing further guidance or no enforcement assurance that a ddresses these concerns.

[Footnotes]

(4) Industrial, Commercial, and Institutional Boilers an d Process Heaters and Commercial and Industrial Waste Incineration Units; Delay Notice, 76 Fe d. Reg. 28662 (May, 21, 2011).

(5) Opinion, Sierra Club v. EPA, No. 11-1278 (DDC Jan. 9, 2012).

(6) See EPA Letter to Sen. Wyden, Jan. 18, 2012. Appendix A.

(7) See EPA No Action Assurance letter, Feb 7, 2012. Appendix B.

Response: In this final rule, we have accounted for the NHSM rul emaking when determining which sources are subject to CISWI and we are extending the compliance date for CISWI sources. These actions makes the commenter’s concern s and request for a stay moot.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 22

Comment: EPA proposes to extend the effective date of the CISW I standards for existing sources to the fullest extent permitted by law—five yea rs after promulgation of the final reconsideration rule or three years after an applica ble state plan is approved. Section 129 of the Clean Air Act establishes these time limits as an oute r bound; they are not presumptively appropriate. EPA should not allow this further delay in th e implementation of controls given that these standards are many years overdue under both section 129 and section 112(c). Moreover, section 129(f)(2) provides that standards shall be made effe ctive “as expeditiously as245

practicable” following promulgation. Here, EPA has not depa rted significantly from the approach outlined in the 2011 final rule. More importantly, few standards have become more stringent in the proposed reconsidered rule. Accordingly , EPA has not shown that faster implementation of these standards is not “practicable.” EPA should simply restart the compliance schedule that was stayed on May 18, 2011. If EPA decides to extend the compliance deadline to the outer bound permitted by section 129, it shoul d do only for those sources that are likely to install different controls under the propose d reconsidered standards than they would have under the standards in the 2011 final rule.

Response: In the final rule, the EPA is extending the complianc e date for the incinerator, energy recovery unit, waste-burning kiln, and small remote incinera tor subcategories to 5 years after the date of publication of the final reconsideration rule or 3 years after the state plan is approved, whichever is earlier. The date is being extended for the s ame reasons stated in the preamble to the proposed rule (76 FR 80465, December 23, 2011) and in section I I.C.8 of the preamble to the final rule. First, changes to the emission limits for the subcategories will have a significant impact on the compliance strategies that are selected by the affected sources. Second, when the EPA announced the reconsideration and issued the stay of t he effective date, uncertainty was created surrounding subcategorization and corresponding emissi on limits. This uncertainty limited the ability of affected sources to begin making appr opriate selections of control technologies and other compliance strategy decisions. Even if significant changes were not made for a subcategory of units, an extended compliance date wo uld still be necessary to provide enough time for facilities to achieve compliance after the final reconsideration is issued. In addition, not extending the compliance date may be problem atic for states and implementing agencies since the increments of progress for rule compli ance are keyed off of the approval date of the revised state plan. Without a final rule in plac e, states and implementing agencies were not able to adequately update and implement the state plans. Furth er, EPA received comments that the availability of control equipment and vendors to insta ll control equipment for CISWI units is problematic due to the large number of units requiring control s in conjunction with the parallel rulemaking for industrial boilers and the NESHAP for ele ctric generating units that will require controls from many of the same vendors. Finally, as i ndicated by other commenters, sources generally evaluate all applicable standards when determi ning the appropriate compliance approach, so any change in the standards for a source cate gory have the potential to alter the compliance strategy for the source category. For the se reasons, the EPA is extending the compliance date in the final rule.

Note that the final CISWI emission guidelines still cont ain the requirement to achieve final compliance “as expeditiously as practicable,” but not la ter than the earlier of the two specified dates. Thus, CISWI units must still achieve final complia nce as expeditiously as practicable. In addition, the commenter suggests that EPA only extend the compliance period for sources that are likely to install different controls pursuant to the r econsideration. The commenter did not provide a legal basis for providing facility specific compli ance extensions under section 129. In addition, the commenter did not identify the sources tha t are likely to install different controls for compliance purposes, and EPA does not have such information. To the extent the commenter assumes EPA has such information based on the RIA for the CISWI rule, we note that the control estimates information contained in the RIA ar e estimates by EPA of what companies are likely to do in order to comply with the final rule and m ay not reflect what companies will246

actually do to comply with the final rule. For these reasons, we decline to make facility specific compliance extensions.



### 2S02. Small remote incinerator compliance dates

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2 Comment Excerpt Number: 2

Comment: §60.2535(b) gives the dates by which CISWI units in the inciner ator, energy recovery unit, and waste burning kilns subcategory must be in compliance with the emission guidelines. They must be in compliance either five years a fter publication of the final CISWI in the Federal Register or three years after the effect ive date of state plan approval, whichever is earlier. Since we don’t expect Alaska to develop a state plan implementing these guidelines, the compliance date for units in these subcategories, if any exist in Alaska, is essentially five years after EPA develops a federal implementation plan (i.e ., sometime in 2017). Alaska CISWI units in the small remote incinerator (SRI) subcategory that were built between 1999 and 2010, however, must be in compliance at least one year soon er. §60.2535(c) states the units in the SRI category must be in compliance by March 21, 2016. We do not unde rstand why units in the SRI category must be in compliance sooner. It will certa inly be no easier for these units to comply given the extensive overhaul of waste management practic es that will be necessary as well as the engineering of controls that are, insofar as we know no w, quite likely technically infeasible. Therefore, we believe units in the SRI subcategory sho uld get at least the same compliance schedule as the units covered by §60.2535(b); i.e., 5 years afte r date of final rule publication in the FR.

Response: As explained in section II.C.8 of the preamble to the final rule, EPA extended the compliance times for small remote incinerators to be c onsistent with CISWI units in the incinerator subcategory: achieve final compliance as exped itiously as practicable after approval of the state plan, but not later than the date 5 years after publication of the final rule in the Federal Register or 3 years after the effective date o f state plan approval, whichever is earlier.

Commenter Name: Alice Edwards, Director, Division of Air Quality Commenter Affiliation: Department of Environmental Conservation, State of Al aska Document Control Number: EPA-HQ-OAR-2003-0119-2590-A1 Comment Excerpt Number: 2

Comment: ADEC requests that EPA also explore with Alaskan indu stries whether flexibility or extended compliance dates are warranted for the operators of small remote incinerators.

Response: In the December 23, 2011 proposed rule, the EPA requested publ ic comment regarding the compliance date for small remote incinerat or subcategory. Specifically, the EPA solicited comment on the need to extend the compliance date for this subcategory and requested additional data to supports the need to revise the emissi on standards for the small remote247

incinerator subcategory. The EPA received and considered publi c comment on the proposed rules, including compliance timing. As explained in section II.C.8 of the preamble to the final rule, EPA extended the compliance times for small rem ote incinerators to be consistent with CISWI units in the incinerator subcategory: achieve final comp liance as expeditiously as practicable after approval of the state plan, but not late r than the date 5 years after publication of the final rule in the Federal Register or 3 years afte r the effective date of state plan approval, whichever is earlier.

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2 Comment Excerpt Number: 3

Comment: 40 CFR 60.2535 excludes from rule coverage, SRIs that comm enced construction prior to November 30, 1999. We support this exclusion on the bas is of our previously submitted and extensive comments on the difficulty of achieving com pliance for these sources.

Response: As earlier comment responses indicate, EPA has ext ended the compliance times for small remote incinerators to be consistent with CISWI units in the incinerator subcategory, thereby eliminating paragraph 40 CFR 60.2535(c) which contained the small remote incinerator compliance dates. This paragraph also contained language t hat was intended to make clear that small remote incinerators constructed between November 30, 1999 and June 4, 2010 were different from incinerators, but did not intend to provide a n exemption for small remote incinerators that commenced construction prior to Novembe r 30, 1999 as the commenter believes. Our intent to regulate small remote incinera tors, and how we interpreted applicability between the 2000 CISWI rule and the CISWI rule amendments finalized today, was made clear in the preamble to the March 2011 CISWI rule (76 FR 15711), “In cinerators and small remote incinerators that are existing sources under the 2000 EG must c ontinue to comply with those standards until the applicable compliance date for the revi sed EG, at which time those sources must be in compliance with the applicable EG.” Units t hat meet the definition for small remote incinerators must comply with the EG once effective, even if the units were constructed prior to November 13, 1999, and we have revised the regulatory text to clarify applicability.



### 2S03. Applicability date for new and existing units

Commenter Name: Richard G. Stoll Commenter Affiliation: Foley & Lardner LLP on behalf of Portland Cement Ass ociation (PCA) Document Control Number: EPA-HQ-OAR-2003-0119-2563-A2 Comment Excerpt Number: 1

Comment: EPA totally failed to respond, however, to critical is sues we had raised regarding how “existing” CISWI sources might trigger “new” CISWI so urce status. Please see sections VIII (D) and (F) from PCA’s 2010 Comments attached, pages 53 -56 [included below], and 58-59 [included below].248

[Pages 53-56]

What Type of Modification Would Make An Existing CISWI Source a "New" CI SWI Source?

The proposed CISWI rules would be codified in 40 C.F.R. part 60 (subpart C CCC for new, reconstructed, and modified sources and subpart DDDD for existing sources). In the general provisions to part 60, the definition of "modification" states:

Modification means any physical change in, or change in the method of operation o f, an existing facility which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that facility or which results in the emission of any air pollutant (to which a standard applies) into the atmosphere not previously emitted.

40 C.F.R. 60.2.

Under the wording of this provision, any physical change or change in method of ope ration that "increases the amount" of emissions of a pollutant would be considered a "modifi cation." Thus, literally, an increase of a few pounds of pollutant per year could make an existing source into a

new source.
EPA's part 60 regulations go on to provide, however (emphasis added):

§ 60.14 Modification.

(a) Except as provided under paragraphs (e) and (f) of this section, any physi cal or operational change to an existing facility which results in an increase in the emis sion rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification wi thin the meaning of section 111 of the Act.

. . . (b) Emission rate shall be expressed as kg/hr of any pollutant discharged into the atmosphere for which a standard is applicable.

We understand that EPA has always applied the 60.14 test as controlling for CA A NSPS purposes. Thus, despite the fact that the literal wording of 60.2 would m ake any increase in emissions a modification, EPA has applied its part 60 regulations for NSPS purpos es to be limited to increases in hourly emission rates.

The Proposed CISWI Rule is not clear on this point. First, EPA has not included any new definition of "modification" in either its proposed CCCC and DDDD regulat ory sections in the Proposed CISWI Rule. EPA is thus proposing to retain the definition of "modification" that appears in the currently-existing subparts CCCC and DDDD. The definitions of "modification" in the current CCCC and DDDD provide: Modification or modified CISWI unit means a CISWI unit you have changed later than June 1, 2001 and that meets one of two criteria:

(1) The cumulative cost of the changes over the life of the unit ex ceeds 50 percent of the original cost of building and installing the CISWI unit (not including the cost of land) updated to current249

costs (current dollars). To determine what systems are within the boundary of the CISWI unit used to calculate these costs, see the definition of CISWI unit.

(2) Any physical change in the CISWI unit or change in the method of operat ing

it that increases the amount of any air pollutant emitted for which sect ion 129 or section 111 of the Clean Air Act has established standards.

60.2265 (CCCC), 60.2875 (DDDD).

[Page 56]

There is nothing in parts CCCC or DDDD, however, that reflects the permitted "hourly rate" qualification of 60.14. And there is absolutely nothing in the Proposed CISW I Rule about any of this. EPA proposes no amendments or clarifications to the existing def initions, and never even discusses the issues.

One is thus left with this major critical question unanswered: Will CISWI units be considered modified if they do anything to increase their emissions in any way, as suggested by the current provisions in 60.2 and in CCCC and DDDD, or will the 60.14 qualification (regarding hourly emission rate) override?

We assume that the better reading of EPA's regulations would be to apply the permitted "hourly rate" qualification of 60.14 to CISWI units under subparts CCCC and DDDD. This is such a critical issue, however, that we think it is highly inappropriate f or the regulations to leave this as an open question, and we urge EPA to add language in subparts CCCC and DDDD to mak e this clear and propose its final decision through notice and comment.

EPA should also specify in this rulemaking what would constitute a physical change or change in the method of operation. At a minimum, EPA should make clear that changing of ingredients and routine changes to accommodate specialty products or different types of c ement are not physical changes or changes in the method of operation. Kilns are constructed to manufacture many types of cement with different properties, each re quiring a unique raw material mix design. The usage of raw material or NHSW changes significantly from one year to the other based on market conditions and its availability. It is possible that a mate rial is not used for a few years before being used again. Kiln operators should continue to be allow ed to operate kilns to meet normal consumer demands without the fear of triggering the modification provisions of the Proposed Rule as long as they remain below the permitt ed levels.

[Pages 58-59]

Additional "Modification" Issues

The CISWI modification trigger possesses several complications to CI SWI units that may not continuously combust solid waste and/or make a principal product through direct f iring of NHSWs (e.g., kilns). In cement kiln operations, unlike most othe r CISWI units, the CISWI regulated pollutants can be emitted and can change when no solid waste is being combusted or used. As a result, understanding how the modification trigger will be i mplemented must be clarified by EPA in the final rules. Again, EPA appears to have f ailed to account for these250

significant aspects that CISWI kiln operators would be bound to comply with i n this proposed rulemaking.

The CISWI modification definition under CAA § 129 generally follows the definitions contained in CAA § 111 (NSPS). One notable difference with the implementation o f the term "modification" in the CISWI rules is that EPA has defined certain modifi cation or reconstruction activities as exempt (see 40 CFR 60.2015(b) under Subpart CCCC). These exemptions principally relate to projects designed to bring units into compliance with CISWI requirements.

Below is an illustration of some of the potential scenarios that kil n operators could face that result in regulatory ambiguity in CISWI applicability that EPA has failed to account for in the proposed rule:

• An existing CISWI kiln undertakes a physical change or change in the me thod of operation that is unrelated to an existing use of a NHSW (e.g., a new alternate raw material is sourced to meet product quality requirements that is new to the kiln). And, this change inc reases the hourly emissions of a CISWI regulated pollutant. Based on the current definitions , it appears that the CISWI kiln may become subject to the new source Subpart CCCC requireme nts without undertaking any change whatsoever related to NHSW usage or emissions from usage of those materials.

• An existing non-CISWI kiln adds a NHSW fuel after June 4, 2010 that de creases the hourly emissions of a CISWI regulated pollutant. In this case, the cement ki ln could be considered a "new" CISWI kiln despite reducing CISWI regulated pollutants and possibly without making any expenditures. This outcome seems wholly in contradiction with the objec t of § 129 of the CAA in how modifications or new sources should be subject to regulations under CISWI.

• An existing CISWI cement kiln wants to increase the use of a h istorically used NHSW fuel (and it does not have a permit restriction on its usage amount). The hourly emissions from the kiln do not increase but it is possible that the portion of the CISWI regulated emissions attributable to the NHSW fuel did increase on an hourly basis. Under the current regulator y structure, it appears that this source may be subject to Subpart CCCC requirements – again pos sibly without a expenditure and without emission increases related to combustion of soli d wastes.

• An existing CISWI kiln undertakes a physical change to c omply with other federal emissions standards (e.g., NSPS Subpart F) that will result in an incre ase of a CISWI pollutant. This may constitute a modification under the curre nt CISWI Subpart CCCC rules.

In the event EPA pursues final regulation of CISWI kilns, PCA beli eves that EPA should include specific exemptions from the definition of modification and reconstruct ion under the CISWI rules to avoid what PCA believes would be unintended and inappropriate application of the modification definition to CISWI kilns. This should include, but not be l imited to, the following:

• Modifications that do not increase the hourly potential emiss ion rate above permitted levels of CISWI regulated pollutants resulting from NHSW com bustion.

• Modifications related to new or increased use of NHSWs that do not res ult in hourly increases in CISWI regulated pollutants above permitted levels.251

• Modifications to CISWI kilns that are required to comply with any othe r federally required air pollutant control programs (e.g., NESHAP LLL or NSPS Subpart F).

• Modifications in volume, amount, or type of NHSW that do not increase hour ly potential emissions above permitted levels from the CISWI kiln.

• Modifications that meet the exemptions included under 40 CFR 60.14(e)(1-6).

You will see that, beginning on the bottom of page 54 [in cluded above in pages 53-56], we explain how existing regulatory language creates major ambigu ities on what types of activities could trigger new source CISWI status. We raise several re lated “modification” issues in need of clarification under the heading “Additional Modification Issues” on page 58. PCA’s 2010 Comments in fact offered five specific solutions that w e urged EPA to include in the final CISWI regulations to resolve these issues and provide greater cla rity. See page 59.

Unfortunately, EPA failed to respond to any of our comments on these “existing” vs. “new” source issues, and the final rule language leaves the majo r ambiguities intact. While EPA’s February 2011 CISWI “Response to Comment” document reprinted our various comments in cut-and-paste fashion at pages 1220-25, the “response” to each such comment simply directed the reader to Section III of the final rule preamble. Y et neither Section III nor any other portion of the final rulemaking document offered any response to those issues.

Response: The commenter maintains that EPA failed to respond t o its comments concerning the commenter’s position that the agency must incorporate t he modification provisions of 40 C.F.R. 60.14 into the CISWI rule to provide clarity for the regulate d community. We do not agree that the final CISWI rule should be revised to specifically inc orporate the provisions of 40 C.F.R. 60.14 into the CISWI rule because, as explained below, that p rovision already applies to the CISWI standards.

EPA finalized the definition of modification contained i n the CISWI standards in the December 2000 CISWI rule. The definition contained in the CISWI ru les is derived directly from the statutory definition of modified solid waste incineratio n unit contained in CAA section 129(g)(3). Similarly, 40 C.F.R. 60.2 contains a definition for modification that aligns with the statutory definition of that term as set forth in CA A section 111(a)(4). These definitions are similar and, in both cases, they do not provide any level of detail concerning what constitutes a modification under CAA sections 111 and 129. For this reason , the 40 C.F.R. Part 60, Subpart A General Provisions contain a section titled “Modificat ion” at 40 C.F.R 60.14, which provides a regulatory structure for determining which events constitute modification under Part 60. The General Provisions apply to all Part 60 sources unless the agency specifically provides otherwise or a provision directly conflicts with the General Pr ovisions. See 40 C.F.R. 60.1; see, e.g. 60.14(f) (stating that “[s]pecial provisions set forth under a n applicable subpart of this part shall supersede any conflicting provisions of this section”). For these reasons, 40 CFR 60.14 provides the governing standards for determining if a modification h as occurred at sources subject to subparts CCCC and DDDD. The CISWI provisions that address modification (40 CFR 60.2265 and 60.2875) work in conjunction with 40 CFR 60.14, and 40 CFR 60.14 cont inues to apply with the promulgation of the revisions to subparts CCCC and DDD D because EPA did not make 40 CFR 60.14 inapplicable. This interpretation of the applicabil ity of 40 C.F.R. 60.14 is further demonstrated in practice in the context of a December 21, 2009, applicability letter from EPA252

Region 4 to the Florida Department of Environmental Prote ction (FDEP). In the letter, EPA Region 4 was responding to a question from FDEP concerning t he re-rating of a municipal waste combustion unit subject to 40 C.F.R. Part 60, Subpart Cb (Emissions Guidelines and Compliance Times for Large Municipal Waste Combustors That are Cons tructed on or Before September 20, 1994), and inquiring whether that change in the facility co nstituted a modification triggering the applicability of 40 C.F.R. Part 60, Subpart Eb (Standards of Performance for Large Municipal Waste Combustors for Which Construction is Commenced Af ter September 20, 1994, or for Which Modification or Reconstruction is Commenced After June 19,1996). Subpart Eb contains a definition of modification substantially similar to t he CISWI definition of modification and that subpart does not expressly incorporate the provisions of 40 C.F.R. 60.14. 4 Notwithstanding the fact that 40 C.F.R. 60.14 is not expressly incorporated int o Subpart Eb, EPA Region 4’s analysis focused on whether the change at issue would constitute a modification pursuant to the provisions of 40 C.F.R. 60.14. The commenter raises a numbe r of potential scenarios that waste burning kilns may face and maintains that EPA must provide guidance on the potential for the various changes to constitute a modification that would trigger applicability of the NSPS. To the extent such scenarios are not addressed in 40 C.F.R. 60.14, we maintain that they should generally be addressed through a site specific applicability determination pursuant to 60.5. While we generally decline to address the commenter’s numerous hypo thetical applicability issues, we note that in the preamble to the proposed rule (76 FR 80459, De cember 23, 2011), we stated that an existing source will not be considered a new source so lely due to the combustion of solid waste. Existing sources that begin combusting solid wast e within six months of, or after, the compliance date of the emissions guidelines are considere d existing sources for purposes of CISWI. Such units must demonstrate compliance with CISW I and establish operating parameters for the CISWI unit consistent with the appli cable performance testing and compliance assurance provisions. Solid waste incinerat ion units, including waste burning kilns, are designed to combust solid waste and CISWI does not requi re sources to combust or not combust any particular solid waste material. For this reason, a change in solid waste inputs alone will not trigger the modification provisions of the emi ssions guidelines, though sources must continue to comply with the applicable emissions standards

.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 16

Comment: 60.2265 – The term “modification” encompasses any physical change, or change in the method of operating the CISWI unit that increases th e amount of any air pollutant for which

4 We note that 40 C.F.R. Part 60, Subparts Cb, Cd, and Ce do n ot directly define modification but instead refer to definitions located in the CAA, 40 C.F.R. Subparts A and B, and 40 C.F.R. Subparts Eb (for Subpart Cb) or Ec (for Subparts Cd and Ce) for terms that are used but not define d in those regulations. Subparts Eb and Ec contain modification definitions that are substantially similar to the CISWI rule definitions and the CAA section 129 definition of modification. Because Subparts Cb, Cd, and C e are CAA section 129 standards, we maintain that the CAA section 129 specific definitions contained in Subparts Eb and Ec would control for Subparts Cb, Cd, and Ce instead of the definitions contained in the general pr ovisions in Subparts A and B, to the extent terms are defined in both provisions.253

section 129 or section 111 applied. It is unclear how pollutants under section 111 are applicable to the operation of a section 129 source. Furthermore, it is maddening for sources to keep track of all the various nuances related to the term “modific ation” and its meaning under each possible air regulation. Please consider strongly the need to unif y and simplify compliance with newly applicable regulations and the terminology used, with an eye towards terms that can share a common meaning under all applicable uses of the term. It is simply ridiculous to add yet another meaning of the term “modification” in this rulemaking an d we encourage you to consider matching the CSIWI term with the meaning applied in NSPS.

Response: The commenter appears to take issue with the differe nt definitions of modification in standards issued pursuant to CAA sections 111 and 129 and standards is sued pursuant to the authority of section 111 alone. While the statutory defi nitions of modification in CAA sections 129 and 111 are similar, they are not identical, and EPA h as incorporated the definitions into the final CISWI rule consistent with terms of section 129. EPA appreciates the commenter’s concern about confusion the commenter maintains exists because o f the different definitions, but the commenter has not provided any specific suggestions concer ning how to make the term modification clearer and we are maintaining the definiti on as finalized in the 2000 CISWI rule.

Commenter Name: Michael D. Stevens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2596-A1 Comment Excerpt Number: 7

Comment: In light of the assortment of materials that can be utilized as fuel for cement kilns in a safe manner and the environmental benefits of using such materials as fuel rather than placing them in landfills, EPA and National Cement share a com mon interest in allowing kiln operators to use a variety of materials at existing kilns without t riggering either the new source limits or unnecessary, frequent and expensive retesting of emissions. Therefore, we ask for the following revisions to Subparts CCCC and DDDD:

a. The definition of "modification or modified CISWI unit" that will trigger Subpart CCCC at an existing kiln should be clarified and set in a manner where only significant changes to a kiln's ability to utilize solid waste as fuel triggers the provisi ons of Subpart CCCC. In that context, we propose three amendments to the definition.

1. First, the assessment of cost being over 50% of the co st of the unit in current dollars should apply on a project basis only. This makes practica l sense because many kilns have a very long history and the owners will not have adequate records for historical "changes," either to quantify the cost or determine which activities represent "changes" under this provision. 2. Second, this assessment should only apply to a project if the project changes the inherent ability of the unit to utilize a "solid waste." Specific ally, Subpart CCCC should not be triggered by a project that is unrelated to the utilizati on of solid waste in the kiln. 3. If these first two criteria are met, then the limit s under Subpart CCCC should only apply to the pollutants for which a "significant" emissions inc rease is occurring. (Applicability254

should not be based on "any" increase.) For all other p ollutants, the limits under Subpart DDDD would continue to apply.

b. EPA should establish a practical set of criteria fo r when retesting to demonstrate compliance under either Subpart CCCC or DDDD is required. For exampl e, retesting should only be required if:

1. A new class of material that is deemed to be solid waste goes into use; 2. The use level of the new class of material is likely t o be significant (more than 10% of the total fuel used over the first year of its use); and 3. The kiln operator should have at least 6 months to determ ine compliance from the date of the first commercial use of the new class of materia ls. (Short term testing of materials for production viability should not trigger that clock.)

Response: The EPA is not revising the regulation in response to t his comment. The EPA maintains that revising the provisions to accommodate thes e comments does not appear consistent with the statute and/or it may cause uninte nded and unforeseen consequences for the application of the modification provisions. On the speci fic suggestions, we first note that CAA section 129(g)(3) and subparts CCCC and DDDD (40 CFR 60.2265 and 60.2875) de fine modification under 129(g)(3)(A) in terms of the life of t he unit, not in terms of individual projects. Specifically, in addition to the modification provision discussed above, a CISWI unit is considered to be modified if the cumulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building and installing the CISWI unit (not including the cost of land) updated to current costs (current dollars). In addit ion, we do not believe it is appropriate to limit the changes at the facility that are considered only to those changes that relate to the utilization of solid waste because nothing in the statut e suggests that the modification determination should be limited in that manner. The chan ges that should be considered are all the changes to the CISWI unit and would not include facility changes that do not alter the CISWI unit as defined in the regulations. 5

Regarding compliance demonstrations for fuel switches, consistent with the preamble to the proposed rule (76 FR 80459), an existing source will not be cons idered a new source solely due to a combustion material switch. Assuming new source app licability is not triggered, existing sources that change fuels or materials are considered exi sting sources and, as such, they must be in compliance on the date they begin combusting the ne w fuel or material. For a unit that is a CISWI unit and changes solid waste or other inputs, the sour ce must maintain compliance with the applicable emission standards and continue to conduct performance testing and monitoring consistent with the requirements of the final standards

.

5 The part 60 General Provisions at 40 C.F.R. 60.15 address “reconstruction” under CAA section 111. Unlike the modification provision in 40 C.F.R. 60.14, the reconstructi on provision conflicts with the CAA section 129(g)(3) definition of modification and thus would not apply to sta ndards applicable to solid waste incineration units, including the CISWI standards.255

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA-HQ-OAR-2003-0119-2615-A1 Comment Excerpt Number: 7

Comment: Lafarge also believes that additional rule clarifica tion is needed on whether an existing source will be considered a “modified” source, subj ect to the new source standards, due to a change in combustion material. EPA recognizes in t he preamble that a change in combustion material should not trigger "modified" source requiremen ts under Subpart CCCC for wasteburning kilns when it states: “An existing source will not be considered a new source solely due to a combustion material switch (emphasis added)” . 76 Fed. Reg. 80459. However, the language in the rule creates an ambiguity that needs to b e clarified in this regard. Subpart CCCC, rather than defaulting to Subpart A provisions defining "modif ication" under NSPS, includes its own definitional language: “any physical change in the CISWI unit or change in the method of operating it that increases the amount of any air pollutant emitted for which Section 129 or Section 111 of the Clean Air Act has established standards” . 40 C.F.R 60.2265. While this language is consistent with Subpart A's definition of mo dification, the Subpart CCCC language does not expressly incorporate the appropriate exclusion from "modification" found within 40 C.F.R. 60.14(e)(4):

“Use of an alternative fuel or raw material if, prior to the date any standard under this part becomes applicable to that source type, as provided by §60.1, the existing f acility was designed to accommodate that alternative use. A facility shall be considered to be designed to accommodate an alternative fuel or raw material if that use could be accomplished under the facility's construction specifications as amended prior to the change” . Instead, Subpart CCCC specifes simply that “Terms used but not defined in this subpart are defined in the Clean Air Act and Subpart A (General Provisions) of this part" . 40 CFR Part 60.2265.

While the preamble as referenced above clearly reflects a n intention by EPA to incorporate the exclusionary lanaguage of §60.14(e)(4) into the CISWI rule, the provisions of §60.2265 by defining “modification” and then only incorporating Subpart A’s definitions as to terms not otherwise defined in §60.2265, could be read as reflecting an inte ntion not to exclude as a “modification” changes in combustion materials used as alternate fuels at an existing cement kiln capable of accomodating the new combustion materials. La farge recommends that the language in §60.2265 (with conforming changes in Subpart DDDD) be clari fied as follows:

Modification or modified CISWI unit means a CISWI unit you have changed later than June 1, 2001 and that meets one of two criteria:

(1) * * *, or

(2) Except as provided for in §60.14(e)(4) , any physical change in the CISWI unit or change in the method of operating it that increases the amount o f any air pollutant emitted for which section 129 or section 111 of the Clean Air Act has establi shed standards.

Response: As explained above, we do not believe a change in the f inal rule is necessary in response to this comment. Solid waste incineration units, including waste burning kilns, are designed to combust solid waste and a change in the types o f solid waste combusted does not in256

itself constitute a modification that would trigger appl icability of the NSPS. Sources must be able to maintain compliance with the emissions guidelines af ter the change in solid waste inputs. Please see the response to EPA-HQ-OAR-2003-0119-2563-A2 excerpt 1 above.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 4

Comment:

EPA failed to clarify which events may trigger applicatio n of the NSPS standards. EPA has suggested that only one new CISWI kilns may be expected in th e future and thus provides little guidance on this issue. However, since a modification t hat triggers an increase in any of the regulated pollutants places a source under "new " CISWI limits with which they must immediately comply. PCA requests that the Agency provide additional guidance on the triggering and timing of "new" CISWI source application. PC A asks that rule state that new source CISWI can only apply to a modification that meet s four criteria:

• includes costs greater than 50% of the replaceme nt cost of the unit;

• the primary purpose of the modification is to acc ommodate the burning of a solid waste ;

• the waste cannot be used in the unit prior to the m odification; and

• the modification will result in an increase i n the peak emissions of a pollutant under this rule.

In any such instance, the new source limit would only apply f or the pollutants for which an increase is anticipated under the fourth criterion.

Response: We are not making a change in the final rule in respo nse to this comment for the reasons set forth above in response to other comments on this issue. Please see the response to EPA-HQ-OAR-2003-0119-2596-A1 excerpt 7 above.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 19

Comment: EPA should amend the criteria for existing sources tri ggering Subpart CCCC through a modification: In light of the assortment o f materials that can be utilized as fuel for cement kilns in a safe manner and the environmental benef its of using such materials as fuel rather than placing them in landfills, it is in both the agency's and PCA's interest that kiln operators be able to use a variety of materials at exis ting kilns without trigger either the new source limits and unnecessary, frequent and expensive retesti ng of emissions. Therefore, we ask for the following revisions to Subparts CCCC and DODD. Th e definition of 'modification or257

modified CISWI unit'' that will trigger Subpart CCCC at an existing kiln should be clarified and set in a manner where only significant changes to a kil n's ability to utilize solid waste as fuel triggers the provisions of Subpart CCCC. In that contex t, we propose three amendments to the definition.

First, the assessment of cost being over 50% or the co st of the unit in current dollars should apply on a project basis, only. This makes practical sen se for two reasons. First, many kilns have a very long history and the owners will not have adequate records for historical ·'changes", either to quantify the cost or determine which activities represent ''changes" under this provision.

Response: The EPA is not making the suggested change to the definit ion of modification for the reasons set forth above in response to similar commen ts on this issue. Please see the response to EPA-HQ-OAR-2003-0119-2596-A1 excerpt 7 above.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 20

Comment: This assessment should only apply to a project if the project changes the inherent ability of the unit to utilize a "solid waste." Specifi cally, Subpart CCCC should not be triggered by a project that is unrelated to the utilization of s olid waste in the kiln.

Response: The EPA is not making the suggested change to the definit ion of modification for the reasons set forth above in response to similar commen ts on this issue. Please see the response to EPA-HQ-OAR-2003-0119-2573-A2 excerpt 7 above.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 21

Comment: The limits under Subpart CCCC should only apply to the pollutants for which a ''significant” emissions increase is occurring. (Applicabi lity should not be based on "any" increase.) For all other pollutants, the limits under S ubpart DDDD would continue to apply.

Response: The EPA is not making the change suggested by the comme nter. The statute does not require an emissions increase to be significant and t he commenter has not provided any support for the inclusion of such a term or explained what the term would mean in the context of the modification provisions of the CISWI standards.

Commenter Name: Felix Mestey, Chair, on behalf of Donald R. Schregar dus, Environment Deputy Assistant Secretary of the Navy Commenter Affiliation: Clean Air Act Services Steering Committee, Departmen t of Defense (DoD)258

Document Control Number: EPA-HQ-OAR-2003-0119-2568-A1 Comment Excerpt Number: 1

Comment: 1. One or more of the dates in §60.2015 of subpart CCCC (N SPS) and §60.2505 of subpart DDDD (EG) are not correct and the latter may e ven be missing a date for reconstructed

sources.

Discussion Based on the proposed amendments, neither rule would app ly to: 1) incinerators constructed after June 4, 2010, and before the date 60 days afte r the final amendments are published, or 2) CISWI units other than incinerators that w ere constructed after June 4, 2010, and also reconstructed or modified before the date 6 months a fter the final amendments are published (an admittedly unlikely scenario). As proposed in §60.2015 of subpart CCCC, the NSPS applies to units constructed after [the date 60 days after the final amendments are published], yet the tables in subpart CCCC indicate that they apply to units constructed after June 4, 2010. Changing “[the date 60 days after the final amendments are publishe d]” to “June 4, 2010” in §60.2015(a)(1) would eliminate the first applicability gap. To addres s the second applicability gap, section §60.2505(d) should also cover modified and reconstruc ted units to address the unlikely scenario where a non-incinerator was both constr ucted and reconstructed in the gap. It would be helpful if both of the rules or their preambles contained a table that shows which rule applies to any CISWI unit.

Recommendation

Revise sections §60.2015 and §60.2505 as follows, if warranted, to cl ose the applicability gaps.

§ 60.2015 What is a new incineration unit?

(a) A new incineration unit is an incineration unit that meets any of the criteria specified in paragraph (a)(1) through (a)(2) of this section.

(1) A CISWI unit that commenced construction after [DATE OF 60 DAYS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTE R] June 4, 2010.

(2) A CISWI unit that commenced reconstruction or modification on or af ter [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].

(b) You must submit the state plan to EPA by December 3, 2001 for incine rator units that commenced construction on or before November 30, 1999 and that were not modifie d or reconstructed after June 1, 2001.

(c) You must submit a state plan that meets the requirements of this subpart and contains the more stringent emission limit for the respective pollutant in table 6 of this subpart or table 1 of subpart CCCC of this part to EPA by [DATE 1 YEAR AFTER PUBLIC ATION OF THE FINAL RULE IN THE FEDERAL REGISTER] for incinerators that commenced construction after November 30, 1999, but no later than June 4, 2010, or commenced modification or reconstruction after June 1, 2001 but no later than [DATE 6 MONTHS AF TER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].259

(d) You must submit a state plan to EPA that meets the requirements of this subpart and contains the emission limits in tables 7 through 9 of this subpart by [DATE 1 YEAR AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTE R] for CISWI units other than incinerator units that commenced construction on or before June 4, 2010, or c ommenced modification or reconstruction after June 4, 2010 but no later than [DATE 6 M ONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTE R].

Response: The commenter correctly points out a typographical err or in the applicability sections of subpart CCCC (40 CFR 60.2015) and subpart DDDD (40 C FR 60.2505). These errors have been corrected in the final rule to be c onsistent with CAA section 129. For example, 40 CFR 60.2015(a)(1) has been corrected to read “A CISWI unit that commenced construction after June 4, 2010.”

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 42

Comment: In the December 2011 Re-Proposed Rule, the following tex t appears:

§ 60.2015 What is a new incineration unit?

(a)(2) A CISWI unit that commenced reconstruction or modi fication after [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]. 76 Fed. Reg. 80452 at 80489, (Dec 23, 2011) However, in the rule definitions, t he following text appears: § 60.2265 What definitions must I know?

Modification or modified CISWI unit means a CISWI unit that has been changed later than June 1, 2001, and that meets one of two criteria: Id. 80502. These two regulatory statements contradict each other regarding the date that is considered as the dea dline by which a unit is considered modified. ACC assumes the deadline date to be considered a modified unit should be 6 months after the publication of the final rule in the Federal R egister. EPA should clarify this in the Final Rule.

Response: The EPA has revised the rule to be consistent with the statutory definitions of “new solid waste incineration unit” and “modified solid waste i ncineration unit.” CAA sections 129(g)(2) and (3), respectively. For purposes of section 129, re constructed solid waste incineration units are considered modified solid waste inci neration units. However, because the EPA finalized standards in December 2000 for certain types o f CISWI units, the dates identified by the commenter may remain in certain provisions to properl y account for units subject to the 2000 CISWI standards.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 51260

Comment: An apparent discrepancy exists regarding the date that separ ates an existing unit from a modified/new unit. In the December 2011 re-proposed r ule, the following text appears [76 Fed. Reg. 80489]:

§ 60.2015 What is a new incineration unit?

(a)(2) A CISWI unit that commenced reconstruction or modi fication after [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].

But, in the definitions, the following text appears [76 Fed. Reg. 80502]:

§ 60.2265 What definitions must I know?

Modification or modified CISWI unit means a CISWI unit that has been changed later than June 1, 2001, and that meets one of two criteria...

These two statements contradict each other regarding the date that is considered for modification. We assume the date provided in the definition at § 60.2265 nee ds to be modified to agree with § 60.2015.

Response: As indicated above, EPA has revised the dates in the f inal rule to the extent required to be consistent with the statutory requirements.

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA-HQ-OAR-2003-0119-2615-A1 Comment Excerpt Number: 6

Comment: Lafarge requests clarification on ambiguous language in this section of the rulemaking related to compliance dates with the emission standards for existing waste-burning kilns that begin combusting a solid waste after June 4, 2010, or kilns that have combusted solid wastes prior to June 4, 2010 but stopped combusting prior to June 4, 2010 and have recommenced (or wish to) use of these materials after that date. 76 Fed. Reg. 80459-60. The ambiguity originates from the failure by EPA to specify how compliance would apply during the period between June 4, 2010 and the first substantive compli ance date (e.g., the effective date of the state program or 5 years after publication of the re vised final rule). In the preamble, EPA
states:

“ Assuming new source applicability is not triggered, existing sources that change fuels or materials are considered existing sources and, as such, they must be in compliance on the date they begin combusting the new fuel or material. For all sources that com mence combustion of solid waste, the CISWI requirements become applicable on the date that the fuel switch occurs”

. 76 Fed. Reg. 80459-60.

This is not ambiguous if applied after the first substantive compliance date (i.e., more than 5 years from now). However, if applied between June 4, 2010 and the first substantive compliance date, it could be misinterpreted to indicate that if an e xisting CISWI source makes a change in fuels or materials between June 4, 2010 and the first subst antive compliance date, or if a source261

began combusting a new solid waste after June 4, 2010 and neith er case triggered new source applicability, that the existing source CISWI limits bec ome applicable on the date the fuel switch occurs, rather than the first substantive compliance dat e. For example, if an existing CISWI source made a change in fuel on March 1, 2011 and did not trigge r new source applicability, it is Lafarge’s understanding that the initial compliance date for this source would be the first substantive compliance date (the effective date of the a pplicable state program or 5 years after publication of the revised final rule), not March 1, 2011. Howe ver, the preamble language is far from clear on this point. Lafarge requests that EPA make changes to this language that ties the compliance date for any changes that do not trigger new so urce applicability to “ the date after the first substantive compliance date they begin combusting the new fuel or materi al .”

Response: The preamble language at 76 FR 80459 as cited by the commente r is preceded by the following statement: “After the first substantive compli ance date (e.g., the effective date of the state program or 5 years after publication of the final CISWI rule for incineration units), sources must be in compliance with the standard that is applic able to the source based on the type of unit and the fuels or materials that are combusted.” Thus, th e preamble language cited by the commenter should be considered in the context of “afte r the first substantive compliance date.” Therefore, assuming new source applicability is not triggere d, existing sources that begin combusting solid waste after the first substantive com pliance date (or within 6 months of the first substantive compliance date consistent with the definitio n of solid waste incineration unit) are considered existing sources and, as such, they must be in c ompliance on the date they begin combusting the new fuel or material (or on the first s ubstantive compliance date if the unit begins combusting solid waste within 6 months of the first subst antive compliance date). If such a source combusting solid waste before the first substanti ve compliance date, and continues combusting solid waste, and new source applicability is n ot triggered, the CISWI requirements become applicable and the unit must begin complying with th e CISWI requirements upon the first substantive compliance date once it occurs.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 17

Comment: 60.2265 – The term “process change” includes the provision t hat a “significant permit revision” must be involved. It is difficult to unde rstand why a permit revision has anything to do with a process change. Furthermore, one exam ple provided is a “change in the sorbent used for activated carbon injection.” This examp le is too vague.

Response: EPA agrees with the commenter that the proposed defin ition of "process change" was unclear and therefore has clarified it to mean cert ain physical or operational changes as written in 60.2265. Additionally, the definition provides more specific examples of physical and operational changes that would warrant re-testing.262



### 7J. Ingredients are not combusted in cement kilns.

Commenter Name: Jim Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA-HQ-OAR-2003-0119-2577-A1 Comment Excerpt Number: 1

Comment: EPA Should Codify and Clarify the Memorandum on the Combusti on of Solid Waste for Purposes of Triggering CISWI Regulation

Shortly after the publication of the final CISWI and NHSM rules last spring, EPA issued a response to a petition to reconsider the NESHAP standar ds for the Portland cement industry (76 Fed. Reg. 28318 (May 17, 2011)) which had substantial direct implic ations for the NHSM and CISWI rules that had just been finalized. This notice an d an interpretive memorandum on which it was based provided necessary guidance on the applicatio n of both the CISWI and NHSM rules and greatly clarified the framework established by the NHSM rule. Under the statutory framework, CISWI units are only those units that “combust [] any solid waste material.” Clean Air Act § 129 (g)(1). Under the statute and consistent wit h EPA’s framework, combustion units are regulated as CISWI units subject to the CISWI rule, if they both (i) have an input material that is identified as a solid waste pursuant to the NHSM r ule, and (ii) are actually combusting that material. Even though the NHSM rule established whic h materials are solid waste for purposes of this subsection and the CISWI rule established the applicable CISWI requirements, nowhere in either rule did EPA ever define or address th e operative meaning of the term “combust”—thus leaving one of the two key elements defining a § 129(g)(1) CISWI unit. The response to the petition and interpretive memorandum jo intly addressed this key and undefined component of the statutory mandate, namely what type of activities constitutes the “combustion” of solid waste for purposes of this statutory provision. Although industry representatives have requested guidance on the meaning of combustion, the Agency has addressed this critical component of the statutory scheme only in guidance issued to the Portland cement industry. The implications of this guidance, however, are by no means limited to the Portland cement industry; EPA’s interpretation of the meaning of the term “combust ion” has wide-ranging practical impacts on the operations of other industries and theref ore warrants more formal documentation than a response to a petition issued to one industrial se ctor and a related EPA internal memorandum directed to that sector. EPA’s response to th e cement industry’s request for reconsideration addressed the petitioners’ claim that s ome cement kilns would be covered by the CISWI standards. The Agency responded to this claim by perfor ming an assessment of whether particular cement kilns would be subject to CISWI regulati on. In the Federal Register notice, EPA explained that “none of [the] cement kilns would have been potentially CISWI [units] due to the use of secondary material ingredients (though some kilns would potentially have been CISWI [units] due to secondary fuels burned). 76 Fed. Reg. at 28322. The Agency reasoned that “none of [the] secondary ingredient materials identifi ed by [petitioners] as being used in cement kilns is considered to be combusted.” Id. EPA defined the term “combustion” as “an act or instance of burning” or “a chemical process (as an oxidation ) accompanied by the evolution of light and heat.” Id. Because the Clean Air Act statute limits the applicabil ity of CISWI standards to those units that “combust any solid waste material,” s econdary material ingredients must be burned or oxidized in a way that yields light and heat to be classified as a CISWI unit. In263

applying the definition of “combustion” to the operations of cement kilns, the Agency found that the processing of secondary materials in the cold end of the kilns involved “cooking as opposed to burning,” notwithstanding the fact that the materials p laced in the “cold end” include low concentrations of organic content that undergo oxidation a nd are heated to above 2500 °F as they proceed through the kiln. EPA also determined that cement kil n dust introduced in the hot end of the cement kiln is “inorganic” with an “essentially iner t composition” so that it too was not being combusted in the kiln. Id. Based on this application of the definition of “combu stion,” EPA found that these typical practices of using secondary mat erials in cement kilns did not constitute “combustion” and would not trigger application of CISWI s tandards under the statutory scheme. Critical for this analysis is that this interpretation applies regardless of whether the secondary materials are identified as solid waste. The interpreti ve scheme directly follows from the statute and appeared to be missing from the Agency’s rulemakings prio r to its development for the cement kiln industry. EPA provided a more detailed clarifi cation of what constitutes “combustion” for purposes of the statutory underpinnings of the CISWI standards in an interpretive memorandum on which the analysis in the r esponse to the Portland cement industry’s petition was based. Memorandum to the Rulemaki ng Docket from Keith Barnett, US EPA, Environmental Engineer entitled “Combustion in a Ce ment Kiln and Cement Kilns’ Use of Tires as Fuel” dated April 25, 2011. In the memorandum, the Age ncy addresses the two basic types of inputs, fuels and ingredients, which are introduced i nto cement kilns. EPA describes the covered ingredients as kiln feed or raw meal which are in troduced in the cold end of the kiln (at around 300 to 500 °F) and move down the kiln for 60-90 minutes and inc rease in temperature to around 2600 to 2700 °F. The Agency notes that because the chemic al reactions that occur are endothermic energy-absorbing reactions the mix of ingred ient inputs is difficult to heat to a higher temperature until the reactions are complete. EPA finds that this process (as well as similar ingredient processes also covered) is not combust ion because it is “not a chemical process marked by the evolution of light and heat.” Id. at 3 of 12. In the interpretive memorandum, EPA distinguishes the “cooking” of ingredien ts in lower temperature areas of kilns from the input of fuels (particularly tire-derived f uels) into hotter temperature areas which does generate light and heat from the materials’ combusti on. Even though the ingredient materials contain low concentrations of carbon which is oxidized, the key issue for EPA is that light and heat is not generated from the introduction of these materials in the cold end of the kiln. We note that EPA distinguishes these two scenarios pri marily from the lack of light and heat generated from the secondary materials as well the endo thermic nature of the reactions that the ingredient secondary materials undergo rather than the te mperature to which the materials are exposed or the oxidation of the minimal carbon content of the secondary materials present in kiln feedstock. Of course, carbon content and temperatures can be determinative in whether a particular material can yield light and heat, but what i t critical is that the ingredient materials did not yield light and heat in this scenario. This point is best elucidated in the next section of the memorandum where EPA addresses the introduction of ingredi ent secondary materials in the hot end of the kilns. Here too, the Agency finds that combustio n is not occurring. These heterogeneous materials identified broadly as cement kil n dust are removed from kiln exhaust gases and are comprised of incompletely calcined material or fine-grained, solids used to meet quality standards. Based on industry data, this material ha s previously been heated or partially calcined. As a result, EPA views this material as “expec ted to be inert from the standpoint of combustion, i.e., it would not oxidize producing heat and li ght. In fact, cement kiln dust injected in [the] hot end of the kiln within or in close proximit y to the flame has the effect of cooling the264

flame. This demonstrates the fact that these materials do not create heat and thus do not combust.” Id. at 4-5 of 12. USWAG notes although cement kiln dust cannot be combusted to yield light and heat (depending on the emission control e quipment used, and the composition of the feedstocks of the kiln), it can contain limited am ounts of carbon content as well as other organic compounds which presumably would be oxidized at the a mbient temperatures in the hot end of the kiln. See, e.g. , EPA’s Summary of Environmental and Cost Impacts for Final Portland Cement NESHAP and NSPS dated August 6, 2010 at 3 and Report to Congress on Cement Kiln Dust Waste , Chapter 3, CKD Generation and Characteristics at 3-30. Even though this cement kiln dust has organic content and would be oxidized, EPA sti ll labels this material as “essentially inert” because it would not yield light and heat and accordi ngly would not trigger CISWI standards. 76 Fed Reg. at 28322. Besides noting that the combus tion of tires as fuel (a reaction that will yield heat and light in cement kilns) is combusti on and could potentially trigger CISWI standards, the remainder to the interpretive memorandum i s not applicable to addressing whether materials are combusted. Two important and broadly appl icable conclusions necessarily follow from the analysis of combustion in EPA’s response to th e Portland cement industry’s petition for reconsideration and the related interpretive memorandum : (i) “combustion” (as used in § 129(g)(1)) is construed as an exothermic reaction that produc es light and heat, and (ii) EPA will assess the combustibility of a specific material base d on the materials as a whole (as opposed to an assessment of each of its separate constituents). These conclusions have important consequences for other industries that introduce secondary materials into their combustion units for various purposes. These interpretations critically id entify the principle that secondary materials are only “combusted” for purposes of triggering C ISWI standards when they are burned or oxidized and yield heat and light. What appears to be the key issue under this framework is whether the material viewed as a whole whe n introduced in the combustion unit actually yields heat and light or whether it has the opp osite effect of absorbing heat and causing the cooling of the flame. The temperature of the unit and t he presence of organic and/or carbon containing materials appear to be relevant only if they a re present in sufficient concentrations so that the entire mixture or solution, viewed as a whole, yields heat and light when placed in a combustion unit.

The scope of the types of activities that constitute “c ombustion” is a necessary component of the CISWI rules which is unclear from the text of the CIS WI regulations. This step in determining the CISWI rule’s applicability is perhaps most importan t for those secondary materials that are not obviously fuels or ingredients when introduced in th e combustion unit. The NHSM rule framework only identifies those secondary materials tha t are legitimate fuels or ingredients, while ignoring important materials that are introduced i nto combustion units for various other
purposes, e.g ., emission control, fuel conditioning, etc. This frame work also does not take into consideration various industrial processing where materia ls are managed in boilers without being combusted. As it is currently drafted, EPA’s response to the Portland cement industry petition and the related guidance document ostensibly apply only to t his one specific industrial sector. EPA’s framework, however, is critical for the entire potentially regulated community, including the utility sector. USWAG strongly supports EPA’s devel opment of this critical framework which is necessary for determining the applicability of t he CISWI final rule and believes that EPA should codify this framework in the CISWI rule and provide guidance to other industries that do not combust secondary materials in their combust ion units.2

[Footnotes]265

(2) EPA proposed to partially codify this framework in th e definition of “Waste-burning kiln” which EPA defined as “a kiln that is heated, in whole or in part, by combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241). A waste-burning kiln does not include a kiln that is feeding non-hazardous secondary ingred ients exclusively into the cold end of the kiln.” 76 Fed. Reg. at 80503 (proposed to be codified at 40 C.F.R. § 60.2265). This appears to exclude all those materials that do not actual ly provide heat, but does not impact the applicability of other combustion units that are not kilns and that may similarly be introducing materials that do not provide heat.

Response: In section II.B. of the preamble to the final rule, we discuss revisions to the definition of waste-burning kiln. In the preamble discussion, we note that EPA intended to codify principles set out in a previous action granting and denying re consideration of the NESHAP for Portland cement kilns. The preamble also discusses how, in essence, combustion does not occur in any region of a cement kiln except the hot end, or in the combustion zone of a precalciner or riser duct burner. Furthermore, cement kiln dust added to the hot end of a cement kiln also is not combusted since it is inorganic and inert. We have revise d the definition of “waste-burning kiln” in the final rule to address the commenter’s concerns

. To the extent the commenter asks about secondary materi als used in combustion units other than cement kilns, we do not believe a categorical definition o f combustion is appropriate, in part, because the commenter appears to confuse what the Agency de termined as it relates to cement kiln dust. The determination in that case was that th e dust does not contain combustable material, not that the material had to have meaningful heat value in order to be combusted. There are many solid wastes that do not have meaningful heat value that operators may choose to combust to destroy the material, which is the express pur pose of incinerators and small remote incinerators. If the commenter believes material comb usted in a particular unit is unable to be combusted because it is inert (e.g. sand or dust), we advise the commenter to consult with EPA on the specific nature of the material to determine whe ther introduction of the material into the unit constitutes combustion of solid waste. If a source believes that it is not combusting the solid waste used in its process, the source should seek an applic ability determination from the Agency.

Commenter Name: Erika H. Frank Commenter Affiliation: Calgon Carbon Corporation Document Control Number: EPA-HQ-OAR-2003-0119-2633-A2 Comment Excerpt Number: 3

Comment: The CISWI Rule applies to any commercial and industria l operating unit which "combusts, or has combusted in the preceding 6 months," any solid waste as defined by the NHSM Rule. Likewise, the NHSM Rule provides that "non-ha zardous secondary materials that are combusted are solid wastes." This regulatory language cr eates an important threshold issue relating to combustion, in that CISWI only applies when the operating unit combusts the material in question. However, where commenters have raised thi s concern in the past, EPA has declined to address it. Additionally, neither the March 2011 final CIS WI and NHSM Rules, nor the December 2011 proposed revisions define "combusts" or "combuste d." As a result, it remains unclear whether an operating unit can be subject to the CI SWI Rule merely because it applies heat to ingredients.266

EPA recently acknowledged the significance of the meaning o f combustion for CISWI applicability in the context of the Portland cement air regulations. The final Portland cement rules were published in the Federal Register on September 9, 2010. More recently on April 25, 2011, EPA issued a memorandum through Mr. Keith Barnett, EPA Environmental Engineer, discussing whether certain secondary materials used in th e Portland cement production process are combusted in the cement kiln (Document No. EPA-HQ-OA R-2002-0051-3582). After acknowledging that combustion is not defined in the Clean Air Act, EPA relied on a common dictionary definition of combust as an act or instance of burning" or "a chemical process (as an oxidation) accompanied by the evolution of light and heat." EPA recognized a distinction between ingredients, which are introduced into the cold e nd of the kiln, and fuels, which are introduced into the hot sections of the cement kiln. Accor ding to EPA, secondary materials that are placed into the cold end of the kiln as ingredients an d heated gradually through a controlled process analogous to cooking (as opposed to burning) are not co mbusted. EPA also explained that inert secondary materials introduced into the hot are as of the kiln as ingredients are not combusted, apparently because they do not create heat. U ltimately, EPA concluded that a cement kiln cannot be subject to the CISWI Rule based on its use of secondary materials as ingredients, as these ingredients are not combusted.

We request that EPA incorporate the principles of this mem orandum into the CISWI and NHSM Rules by adding a definition of "combust" to both rules. Th is is important to Calgon Carbon because regardless of whether our carbon process materi al is a "solid waste" under the NHSM Rule, we must first resolve the antecedent question of whether it is combusted.

Response : We believe the commenter has misinterpreted the Port land cement memo. See the response to EPA-HQ-OAR-2003-0119-2577-A1 excerpt 1 above.

Commenter Name: Erika H. Frank Commenter Affiliation: Calgon Carbon Corporation Document Control Number: EPA-HQ-OAR-2003-0119-2633-A2 Comment Excerpt Number: 4

Comment: The CISWI Rule applies to any commercial and industrial operating unit which "combusts, or has combusted in the preceding 6 months, " any solid waste as defined by the NHSM Rule

. Likewise, the NHSM Rule provides that "non-hazardous secon dary materials that are combusted are solid wastes ." This regulatory language creates an important threshold iss ue relating to combustion, in that CISWI only applies when the operating unit combusts the material in question. However, where commenters have raised thi s concern in the past, EPA has declined to address it. Additionally

, neither the March 2011 final CISWI and NHSM Rules

, nor the December 2011 proposed revisions define "combusts" or" combusted." As a result

, it remains unclear whether an operating unit can be subject to the CI SWI Rule merely because it applies heat to ingredients.

EPA recently acknowledged the significance of the meaning o f combustion for CISWI applicability in the context of the Portland cement air regulations. The final Portland cement rules were published in the Federal Register on September 9, 2010. More recently on April 25,267

2011, EPA issued a memorandum through Mr. Keith Barnett, EPA Environmental Engineer, discussing whether certain secondary materials used in th e Portland cement production process are combusted in the cement kiln (Document No. EPA-HQ-OA R-2002-0051-3582). After acknowledging that combustion is not defined in the Clean Air Act, EPA relied on a common dictionary definition of combust as an act or instance of burning" or "a chemical process (as an oxidation) accompanied by the evolution of light and heat." EPA recognized a distinction between ingredients, which are introduced into the cold e nd of the kiln, and fuels, which are introduced into the hot sections of the cement kiln. Accor ding to EPA, secondary materials that are placed into the cold end of the kiln as ingredients an d heated gradually through a controlled process analogous to cooking (as opposed to burning) are not co mbusted

. EPA also explained that inert secondary materials introduced into the hot are as of the kiln as ingredients are not combusted, apparently because they do not create heat. Ultimately, EPA concluded that a cement kiln cannot be subject to the CISWI Rule based on its use of secondary materials as ingredients, as these ingredients are not combusted.

We request that EPA incorporate the principles of this mem orandum into the CISWI and NHSM Rules by adding a definition of "combust" to both rules. Thi s is important to Calgon Carbon because regardless of whether our carbon process materi al is a "solid waste" under the NHSM Rule, we must first resolve the antecedent question of whether it is combusted.

Response: See the response to EPA-HQ-OAR-2003-0119-2577-A1 excerpt 1 above.

Commenter Name: Erika H. Frank Commenter Affiliation: Calgon Carbon Corporation Document Control Number: EPA-HQ-OAR-2003-0119-2633-A2 Comment Excerpt Number: 5

Comment: Additionally, we request that the definition of "combust" accommodate the burning of contaminants in industrial thermal treatment processes that are not intended to dispose of or discard the raw material or ingredient. Calgon Carbon manufactures activated carbon which is used by its customers in applications such as drinking water purification, and then receives the spent carbon back for regeneration

. During carbon regeneration

, the spent carbon feed material is gradually heated in a controlled process (similar to how a cement kiln operates)

, in order to drive off the contaminants that became adsorbed to the carbon during the customer ' s application. As contaminants are desorbed from the carbon, some of the contaminants are oxidized in the reactivation furnace or thereafter in afterburners. Th e primary purpose of the regeneration process is to produce a valuable product in the form of rea ctivated carbon, which is then sold anew. The burning of contaminants is a necessary step of the thermal treatment process t o create reactivated carbon product.

Calgon Carbon should not be subject to the CISWI Rule ba sed on this thermal treatment process. Calgon Carbon is requesting that EPA clarify in the final rulemaking that

, for purposes of the CISWI and NHSM Rules, combustion does not include oxidatio n or burning of contaminants in an industrial thermal treatment process. For the reason s set forth above, we request that EPA add the following definition of "combust" to both the CISWI Rule and the NHSM Rule:268

Combust means a chemical process (as an oxidation) acco mpanied by the evolution of light and heat. For purposes of this rule, oxidation or burning of co ntaminants in an industrial thermal treatment process that is not intended to dispose of or discard the raw material or ingredient is excluded from this definition.

Response: As stated above, EPA is not adding the definition of co mbustion that the commenter suggests. Pursuant to section 129(g)(1), any unit burning any soli d waste is a solid waste incineration subject to standards under section 129, but the de finition suggested by the commenter on its face includes the burning of material t hat may be solid waste. Thus, the suggested definition is not consistent with the statute. To the extent the commenter is unsure about applicability of the final CISWI rule to its units, it should consult EPA or the state enforcement authority. See the response to EPA-HQ-OAR -2003-0119-2577-A1 excerpt 1 above.

Commenter Name: Jim Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA-HQ-OAR-2003-0119-2577-A1 Comment Excerpt Number: 4

Comment: EPA Should Clarify that the Use of Cement Kiln Dust in U tility Operations Does Not Constitute Combustion

Electric utilities also introduce other types of secondar y materials into their boilers which are similarly not combusted pursuant to EPA’s framework and s hould not trigger regulation of these boilers as CISWI units pursuant to Clean Air Act § 129(g)(1). One secondary material that is critical for current and emerging utility operations is c ement kiln dust that is used to reduce air emissions from boilers. This material directly corre sponds to what we understand is the identical material introduced in the hot end of cement kilns which wa s identified (but not fully described) in the memorandum and petition response EPA issued for th e Portland cement kiln industry. We assume that under EPA’s framework for determining what c onstitutes combustion for purposes of triggering Clean Air Act § 129(g)(1), the introduction of an identical material, which was considered “essentially inert” would have the same regulat ory consequence ( i.e., not trigger CISWI regulation) regardless of the type of combustion unit (kiln or boiler) or the purpose (inclusion into Portland cement or reduced air emissions) for which the cement kiln dust was being introduced into the combustion unit. As EPA is well aw are, companies have developed processes whereby coal can be refined using one or more adde d materials so that the air emissions that result from combusting the coal contain significantly lower levels of certain pollutants than the air emissions that would otherwise result without the addition of the these ingredients. While many of these added materials are not se condary materials, significant amounts of cement kiln dust are added in the process of refining the coal. Among other things, the cement kiln dust provides aluminosilicates that help to retain oxidized mercury in a ceramic matrix so that it (and other metals) are not emitted as air pollutants. Many USWAG member facilities are using or plan to use refined coal-containing c ement kiln dust. There are significant environmental and financial benefits to using refined coal in place of traditional coal inputs. Due to the benefits of such materials, Congress has provided a significant incentive for utilities to replace traditional coal with refined coal. In particul ar, Congress authorized and extended a tax credit for those utilities that use refined coal and ca n certify that a reduction of at least 20 percent269

of the emissions of nitrogen oxide and at least 40 percent of the emissions of either sulfur dioxide or mercury released as compared with feedstock coa l. 26 U.S.C. §§ 45(c)(7) & (e)(8). Utilities meet these emission reduction targets through t he use of refined coal which includes the secondary material cement kiln dust. Just like the cement kiln dust included in EPA’s analysis for the cement kiln industry, when introduced into utility boilers this material is essentially inert, will not generate light or heat, and will cool the boi ler flame. For the purposes of determining whether combustion occurs, the only real difference bet ween introducing the exact same material in a cement kiln and a utility boiler might be the opera tional temperature of the combustion unit. However, given that both types of combustion units would be hot enough to cause the combustion of materials to generate light and heat (whi ch cannot occur for cement kiln dust) this factor appears irrelevant for determining whether combust ion occurs. Consistent with the Agency’s analysis of cement kiln dust used by the cement ki ln industry, USWAG is requesting that EPA issue an interpretation or codify in the CISW I regulations that the introduction of cement kiln dust into a combustion unit (of any type) do es not trigger CISWI standards.

Response: See the response to EPA-HQ-OAR-2003-0119-2577-A1 excerpt 1 above. If the commenter is correct that the cement kiln dust used in it s processes is the same as the cement kiln dust discussed in the context of Portland cement fac ilities, we agree that the material is inert and it is not combusted for that reason. However, if the cement kiln dust introduced into the boiler units contains organic or other contaminants that are combustable, the facility operator should seek an applicability determination from the Agency concerning the ability of the unit to use the material without triggering CISWI applicability.

Commenter Name: Fadi K. Mourad, P.E. Commenter Affiliation: DTE Energy Services, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2598-A1 Comment Excerpt Number: 2

Comment: Addition of Definition of "Combustion" to CISWI Rule Indic ating that CKD is Inert and does not Combust (Docket 10 No. EPA-HQ-RCRA-2003-Q119)

DTEES requests that EPA clarify and codify that the sco pe of the CISWI rule is limited to combustion units that (1) have an input material that i s a solid waste and (2) actually combust that material.

In the response to the petition to reconsider portions of the Portland Cement NESHAP, EPA states that the typical dictionary definition of "co mbustion" can be used to understand whether a secondary material was being combusted in a cement kiln. 1 EPA should apply that same definition of combustion to the CISWI rule so that it is clear that only "chemical process[es] marked by the evolution of heat and light" are included in t he scope of the CISWI rule. 2 In that reconsideration response, EPA states :
Cement kiln dust is also used as an ingredient and is sometimes process ed in the hot end of the cement kiln. Due to its inorganic, essentially inert composition, t his material is not combusted. 3

Furthermore, EPA's interpretive Memorandum entitled "Com bustion in a Cement Kiln and Cement Kilns' Use of Tires as Fuel," dated April 25, 2011, states:270

Cement kiln dust may be added to higher temperature zone regions (mid-kil n and the hot end). Cement kiln dust in this case mainly consists of a material that has previously been heated and even partially calcined. Therefore, this material would be expected t o be inert from the standpoint of combustion, i.e. it would not oxidize producing heat and light. In fac t, cement kiln dust injected in hot end of the kiln within or in close proximity to the flame has the effect of cooling the flame. This demonstrates the fact that these materials do not create heat and thus do not combust.

Based on the definition of combustion and EPA's previous de termination about the inert nature of CKD, even when introduced in the hot end of a kiln, D TEES requests that EPA clarify that inert materials such as CKD that are introduced into uti lity boilers do not combust and in turn do not cause the combustion unit to become subject to the CI SWI standard under§ 129 (g)(1) of the Clean Air Act.

1 76 Fed. Reg at 28322, Denial in part and grant in part of petition s to reconsider: National Emission Standards for Hazardous Air Pollutants From th e Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants

2 76 Fed

. Reg at 28322

3 76 Fed

. Reg at 28322

Response: See the response to EPA-HQ-OAR-2003-0119-2577-A1 excerpt 1 above.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 29

Comment: The "ingredients" issue is still unresolved and needs t o be clarified once and for all: In a May 17, 2011 decision responding to PCA's petition for r econsideration of the NESHAP Portland cement final rule, 76 Fed. Reg. 28318, Administrator J ackson agreed with PCA's position that cement kilns utilizing non hazardous secondary ingredient material are not potentially CISWI, because none of these secondary ma terials identified by PCA as being used in cement kilns is considered to be "combusted." Id . at 28322. 13 EPA supported this perspective by noting that materials which kilns use as ingredients are inorganic in nature and, therefore, not combustible. The Agency, consequently, excluded from the jurisdiction of CAA section 129 , all such materials.

However, the definition of"waste burning kiln" which EPA is now proposing, 76 Fed. Reg. at 80523, appears to take a step back and narrow the Administrator 's May 17, 2011 decision, and does so without providing any explanation for doing so. PCA s trongly believes that the policy EPA announced in its May 17 decision was appropriate and sho uld be codified by EPA in its reconsideration of the NHSM final rule.

[Footnote]271

(13) A copy of the Administrator's May 17, 2011 final decision was previously submitted to EPA on May 20, 2011, as an accompaniment to PCA 's petition for reconsideration of the CISWI final rule. The petition for reconsideration,together with t he copy of the Administrator's May 17, 2011 decision and several other related documents, were posted to the docket on August 12, 2011 and assigned document identification number EPA-HQ-OAR-2003-0119-2514. A copy of the Administrator's May 17, 2011 decision was also submitted to EP A as Attachment A to PCA 's petition for new rulemaking re the NHSM final rule. The latter petition was submitted to EPA on June 16, 20 I I. EPA posted to new rulemaking petition, togeth er with the copy of the Administrator's May 17, 2011 and other related documents to the docket on August 17, 2011 and assigned the combined documents document identification nu mber EPA-HQ-RCRA2008-0329-1840. Also included as part of PCA 's transmittal of its pe tition for new NHSM rulemaking was a copy of PCA's petition for reconsiderat ion of the CISWI rule (as Attachment B) and copy of PCA's August 3, 2010, initial NHSM comments (as Attachment C).

Response: See the response to EPA-HQ-OAR-2003-0119-2577-A1 excerpt 1 above.

Commenter Name: Fadi K. Mourad, P.E. Commenter Affiliation: DTE Energy Services, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2598-A1 Comment Excerpt Number: 1

Comment: EPA's NHSM rule addresses the use of non-hazardous secon dary materials in two applications: (1) as a fuel, and (2) as an ingredient in c ombustion units. DTEES understands that CISWI units are any distinct operating unit of any commerci al or industrial facility that combusts, or has combusted in the preceding 6 months, a ny solid waste as determined by the NHSM rule. DTEES believes that a non combustion manuf acturing process that produces a refined fuel which involves the mixing of inert non hazardous secondary materials and other additives with coal is outside the scope of the NHSM rul e.
The specific process we are considering involves mixing CK D and a liquid additive with coal to produce a new fuel product ("Refined Coal"). This new product is then used by utility boilers to reduce emissions. The mixing process is a purely mechanical process that occurs without added heat or combustion in a pug mill or other mixer. The Refine d Coal, once produced, is then burned in a utility boiler. The non-hazardous secondary ma terial (e.g. CKD) is an inert product with no BTU value and, therefore, is not a fuel itself and does not increase electricity production from the power plant. DTEES believes that the use of C KD as one of three material ingredients used to produce Refined Coal in a non combustion process is outside the scope of the NHSM rule, and therefore, does not require further applicabilit y analysis as described in the rule (e.g. determination of whether the material has been discarde d in the first instance, review of legitimacy criteria).

This conclusion is supported by EPA's NHSM applicability whic h relies heavily on legitimacy criteria to ensure that fuels/ingredients, that otherwise would be considered a solid waste, are not disposed of in the guise of recycling by destroying it in a combustion unit or incorporating it into a product through a process that utilizes combustion. In 76 FR 15540 (First Column), EPA's response on the "Application of Legitimacy Criteria" states:272

First, we would note that there are two questions that t he Agency needs to answer: (1} Whether or not the nonhazardous secondary material is a fuel pro duct or ingredient product, or whether the material has been discarded and is therefore a sol id waste, which includes waste-derived fuels or ingredients and (2} whether the non-hazardous sec ondary material is being legitimately and beneficially used or recycled. With respect to the legitimacy question, EPA believes it important and crucial to develop a set of legitimacy crit eria to make sure that the fuel product and ingredient product are being legitimately and beneficial ly used and not simply being discarded via sham recycling.

This is not the case with the use of CKD for the product ion of Refine Coal which in turn is burned in a utility boiler. The CKD is not being destroy ed by the combustion process nor is being incorporated into a product/intermediate to avoid di sposal. In fact, the CKD is purchased as a raw material for the production of Refined Coal and is a critical component of the Refined Coal to reduce emissions from utility boilers. The ulti mate fate of CKD after it helps reduce emissions is in the bottom ash and fly ash which are e ither sold to cement manufacturer for their use as an ingredient in the clinker manufacturing process a nd/or sent to a landfill for disposal.

Response: For a combustion unit to be a CISWI unit, it must combus t solid waste as that term is defined in the NHSM rule. The commenter in this case pr ovides some information about the production of refined coal and indicates that its use shoul d not constitute the combustion of solid waste. If commenter is correct that only inert seconda ry materials are used in the production of refined coal, then the source may not be combusting soli d waste and CISWI may not apply. EPA does not believe it is appropriate in the context of this rulemaking to provide a response to what is in essence is a request for an applicability det ermination without having a more detailed description of the materials used in the development of the refined coal. The commenter should seek an applicability determination from the Agency if it believes it is not combusting solid waste and thus not subject to CISWI. See the response to EPA-HQ-OAR-2003-0119-2577-A1 excerpt 1.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 18

Comment: 60.2265 – We support the changes made to the definition of “ waste – burning kiln” to exclude alternative raw material ingredients introduced exclusively into the “cold end of the kiln.” We encourage EPA to consider further expanding the e xclusion to include the introduction of any alternative raw material ingredient, recognizing t hat material recovery in kilns is no different than material recovery in primary or secondar y smelters. It is unclear why EPA has determined that material recovery facilities (including pr imary and secondary smelters) are excluded from the term “solid waste incineration units” ye t cement kilns were only provided a conditional exclusion for raw material alternatives fed at the cold end of the kiln. Providing blanket exclusion for raw material alternatives use anyw here in the process is both justified by the facts (they are not combusted) and appropriate and it encourages resource recovery and conservation, one of the primary objectives of RCRA. E xcluding only certain materials feed273

locations unnecessarily narrows a kilns opportunity to ut ilize alternative raw materials both now and in the future.

Response: In section II.B. of the preamble to the final rule, we discuss revisions to the definition of waste-burning kiln. In the preamble discussion, we note that EPA intended to codify principles set out in a previous action granting and denying re consideration of the NESHAP for Portland cement kilns. The preamble also discusses how, in essence, combustion does not occur in any region of a cement kiln except the hot end, or in the combustion zone of a precalciner or riser duct burner. Furthermore, cement kiln dust added to the hot end of a cement kiln also is not combusted since it is inorganic and essentially inert.

In addition,with regard to primary and secondary smelters, CAA section 129(g)(1)(A) contains a statutory exemptions for materials recovery facilitie s that combust waste to recover metals and in a parenthetical the statute identifies primary and seco ndary smelters as examples of the types of units exempted under that provision.

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2642-A2 Comment Excerpt Number: 8

Comment: 60.2265 exempts cement kilns that feed non-hazardous secondar y “ingredients exclusively into the cold end of the kiln.” In addition , EPA has sent a letter to the docket dated April 25, 2011 that further explains its understanding regarding the use these materials in both long kilns and preheater kiln systems. The letter and the language in the proposed regulation do not adequately clarify the exemption.

There are many factors that determine the appropriate plac e for introducing materials into the kiln system. This is especially true for those materia ls that have already been calcined. These factors include particle size, emissions profile, calci nation characteristics, required conveying equipment, impact on material flows, impact on gas flow s, impact on temperature profile, etc. To optimize its operation and minimize emissions (especial ly CO 2 ), a facility may introduce a raw material ingredient at a variety of locations along the preheater / precalciner system or into the kiln itself.

In order to avoid confusion among the industry, permit writ ers, states and enforcement personnel, EPA should clearly state that kilns using non- hazardous secondary materials in the process as ingredients are exempt, regardless of the fee d location.

Response: We do not agree with the commenters proposed revisions be cause EPA may not exempt sources that combust solid waste, even if the wa ste is an ingredient; however, as explained above, we are revising the definition of waste- burning kiln in the final rule. See the response to EPA-HQ-OAR-2003-0119-2576-A1 excerpt 18.

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc.274

Document Control Number: EPA-HQ-OAR-2003-0119-2652 Comment Excerpt Number: 6

Comment: We note and support that EPAOAQPS has determined the mate rials introduced at the cold end of the kiln are not combusted. 6

[Footnotes]
(6) Memo dated April 25, 2011 from Keith Barnett with EPS-OAQP S to the Portland Cement Project Team, entitled "Revised Floors without Kilns t hat Would have been CISWI Kilns Had the Solid Waste Definition Applied"

Response: EPA is finalizing the definition of waste-burning kiln wit h some revisions that do not affect the issue raised by the commenter. See the respo nse to EPA-HQ-OAR-2003-0119-2576- A1 excerpt 18.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2 Comment Excerpt Number: 2

Comment: CEMEX utilizes many non-hazardous materials as alter native fuels, and also as ingredients in the Portland cement manufacturing process. We do not agree that the use of these materials should result in cement kilns being regulated as waste incinerators and ask that EPA reconsider their inclusion under the CISWI regulations and/or by additionally clarifying the NHSM rule. We think it is important that EPA understand th at our programs include the ability to, and reliance on, acceptance of a large number of diffe rent materials from different generators. Over time, we feel confident that non-hazardous materia l collections systems will be further developed for these types of beneficial use programs; howe ver, at this time our ability to beneficially use materials as fuel is dependent on the ability to have flexibility for a number of different types of materials.

Response: See the response to EPA-HQ-OAR-2003-0119-2576-A1 excerpt 18.



### 7R. Waste coal, legacy coal combustion units and associated re cordkeeping for units that burn materials with non-waste determinati ons (categorical or non)

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 14

Comment: EPA Should Add Clean C&D Wood to the List of Non

‐ Waste Fuels Under §241.4(a)275

EPA has recognized in the initial NHSM Rule and in the NHSM Rule Amendment that scrap tires are not wastes and are not discarded when managed in tire collection programs. The Agency has also recognized that contractual arrangements can ens ure that scrap tires are not discarded and are handled as valuable commodities through arrival at the combustion facility. So too should clean construction and demolition (C&D) wood qualify and be listed as a non

‐ waste fuel under §241.4(a). Many local governments as part of their recycl ing and landfill diversion initiatives operate programs or otherwise encourage colle ction and recycling of clean C&D wood. One such use is conversion to fuel. Purchasers of the clean wood fuel provide fuel specifications as part of their contracts with C&D rec ycling facilities. WM recommends that EPA list as non

‐ waste fuel, clean C&D wood that has been processed to remove treated and painted wood and processed to meet contractual fuel specific ations. EPA has received and evaluated considerable information describing the processing and typical fuel specifications required by wood combustors as evidenced by its extensive pre amble description and its Materials Characterization Paper In Support of the Proposed Rulemaking – Identification of Nonhazardous Secondary Materials That Are Solid Waste: Construction and Demolition Materials – Building-Related C&D Materials contained in the rulemaking docket. EPA has also evaluated analytical data on the comparable contaminant l evels found in clean C&D wood versus the solid fossil fuels that it would replace. EPA’s prea mble to the proposed NHSM Rule Amendments described the typical clean C&D wood processi ng operations and the likelihood that the fuel product meets the rule requirements to be de emed a non

‐ waste fuel. (at 76 Fed. Reg. 80470) Additionally, construction and demolition wood that has been processed (e.g., sort ed) to remove contaminants (such as leadpaintedwood, treated wood containing contaminants such as arsenic and chromium, metals and other nonwoodmaterials), and is sizereduced prior to burning likely meets the processing and legitimacy criterion for contaminants, and thus can be combusted as a nonwaste fuel.[emphasis added] We believe that EPA has demonstrated in its rulemaking record that the Agency has sufficient informa tion to determine the legitimacy of clean C&D wood as a non

‐ waste fuel. We respectfully urge the Agency to list clean C&D wood

as a non
‐ waste fuel under §241.4(a) when it finalizes its NHSM Rule Amendments. The CISWI Reconsideration Rule recordkeeping and CISWI unit definition create considerable compliance risks for combustion sources burning non

‐ hazardous secondary materials as fuels without sufficient comfort that EPA considers the materials to be legitimate fuel. The definition of CISWI unit (76 Fed. Reg. 80501) under §60.2265 states that “if the unit burns materials other than traditional fuels as defined in §241.2 that have been dis carded, and you do not keep and produce records as required by §60.2175(v), the material is a solid waste and the operating unit a CISWI unit.” The record keeping requirements require reco rds of how the secondary material meets each of the legitimacy criteria, how the opera tions that produced the fuel satisfy the definition of processing, and if the fuel received a non

‐ waste determination, how the fuel met the requirements of the petition process. Under these provisi ons as written, a source could lose its status as a fuel

‐ fired boiler, if it fails to maintain adequate records. WM believes that this recordkeeping requirement is therefore unduly burdensome, and is inconsistent with EPA’s enforcement authority and practices established under the CAA. As an initial matter, a combustion unit that does not burn solid waste cannot be categorized as a CISWI unit and should not be subject to its provisions, recordkeeping or otherwise . Further these provisions would create a presumption of CISWI applicability as an automa tic result of a recordkeeping violation. Such a result is inconsistent with EPA’s established enf orcement response policies that would276

otherwise provide a framework for addressing such recordkeepin g violations. Automatic CISWI applicability is not an appropriate result for such a viol ation.

Response: The commenter primarily discussed issues relating to I dentification of NonHazardous Secondary Materials That Are Solid Waste rulem aking (NHSM) aspects (Docket ID: EPA-HQ-RCRA-2008-0329). To the extent that the commenter has provided these comments to today’s Identification of Non-Hazardous Secondary Materi als That Are Solid Waste portion of the rulemaking, they may be addressed there or were addresse d in the rulemaking record for the March 21, 2011, NHSM Final Rule. As stated in the preamble 76 FR 80470-80474, the Agency did not reopen the entire NHSM rule for reconsiderati on and will not respond to comments directed toward rule provisions that were not specifically identified in the December 23, 2011, proposal. For more information regarding the intent of t he December 23, 2011 proposed rule, see 76 FR 80469.

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 r ecords may be used to fulfill both the CISWI and boiler recordkeeping requirement, so we disagree that this is an undue burden.

Commenter Name: Jeff A. McNelly Commenter Affiliation: ARIPPA Document Control Number: EPA-HQ-OAR-2003-0119-2575-A1 Comment Excerpt Number: 2

Comment: EPA should revise the Proposed CISWI Reconsideration to clari fy that the recordkeeping requirements for CISWI units do not apply t o any non-hazardous secondary materials that are expressly identified as nonwast e fuels, pursuant to 40 C.F.R. § 241.4(a).

Pursuant to Section 60.2175(v)3 of the Proposed CISWI Reconsi deration, owners and operators of combustion units that burn certain types of materia ls would be required to maintain specified records for a period of at least five years. Specificall y, “[f]or operating units that combust nonhazardous secondary materials that have been determined no t to be solid waste pursuant to § 241.3(b)(1) of this chapter, you must keep a record which docume nts how the secondary material meets each of the legitimacy criteria. If you combus t a fuel that has been processed from a discarded non-hazardous secondary material pursuant to § 241. 3(b)(4) of this chapter, you must keep records as to how the operations that produced the fuel satisfies the definition of processing in § 241.2 of this chapter. If the fuel received a non-waste determination pursuant to the petition process submitted under § 241.3(c) of this chapter, you must keep a record that documents how the fuel satisfies the requirements of the petition pro cess.” 76 Fed. Reg. 80,499. This regulatory provision would appear to require source owners and operators to keep records when several specific types of non-hazardous secondary materials are combusted, notwithstanding that the units burning such materials may not actually be classified as CISWI units. This regulatory language corresponds to and cross references certain provisi ons of the NHSM Rule, which separately identifies procedures pursuant to which certain non-hazardous secondary materials277

may be determined not to constitute solid wastes at the poi nt of combustion. The objective of relating the recordkeeping provisions of the CISWI standards to corresponding material classification provisions of the NHSM Rule is clearly appropriate. However, likely due to the continuing evolution of the specific language of the NHSM Rule, the Proposed CISWI Reconsideration does not currently address all such relevan t provisions from the NHSM Rule. Notably, the Proposed NHSM Reconsideration would include a specific section, Section 241.4(a), to expressly designate within the NHSM Regulation classes of nonhazardous secondary materials that do not constitute solid waste at the po int of combustion. Currently, Section 60.2175(v) of the Proposed CISWI Reconsideration includes no reference to non-hazardous secondary materials that would be expressly identified as non-waste fuels under Section 241.4(a) of the Proposed NHSM Reconsideration. The omission fr om the Proposed CISWI Reconsideration of any recordkeeping related reference to Section 241.4(a) of the Proposed NHSM Reconsideration may be intentional; EPA should i mpose no recordkeeping requirements through the CISWI regulation on owners and operators of c ombustion units that burn only nonhazardous secondary materials that are identified as non -waste fuels in Section 241.4(a) of the Proposed NHSM Reconsideration. In short, if the source combusts material identified by regulation as non-waste fuel, then no CISWI-based requi rements (including relative to recordkeeping) would attach. However, other regulatory provisi ons of the Proposed CISWI Reconsideration create ambiguity with respect to the sco pe of any recordkeeping requirements under CISWI for units combusting material designated as non- waste fuels under Section 241.4(a) of the NHSM regulation. A principle source of the uncerta inty regarding the applicability of the recordkeeping provisions in Section 60.2175(v) is the definition of term “CISWI unit” under the Proposed CISWI Reconsideration. Specifically, the defini tion of “CISWI unit” in the Final CISWI Rule (and the Proposed CISWI Reconsideration) pro vides, in relevant part, that “[i]f 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.” 76 Fed. Reg. 80,501. According to this definition, if an operating unit burns any materials other t han “traditional fuels”, and the unit’s owner or operator does not keep and produce records as requir ed by Section 60.2175(v), then the material burned would be considered a solid waste subject t o regulation under the Final CISWI Rule, irrespective of whether the material has been ide ntified and/or qualifies as a non-waste fuel (under Section 241.4(a) or otherwise) pursuant to the NHSM Ru le. At a minimum, the current reference within the definition of CISWI Unit to an obliga tion to retain records in order to avoid classification as a CISWI unit arguably implies that the recordkeeping provisions under Section 60.2175(v) of CISWI extend to the combustion of all materi als that do not qualify as a traditional fuel, if the source operator wishes to preserve its posit ion that such material is not a solid waste. As stated above, EPA’s changes in the recordkeeping provisi ons through the Proposed CISWI Reconsideration do not expressly address any recordkeeping re quirements for materials determined by EPA as a matter of regulation to be non-wa ste fuels under Section 241.4(a). Therefore, these recordkeeping and definitional provisions o f the Proposed CISWI Reconsideration appear to be ambiguous, and may in fact be i ntentionally inconsistent.

[Footnotes]

(3) EPA’s Final CISWI Rule includes (1) performance stand ards that apply directly to new CISWI units (codified at 40 C.F.R. pt. 60, Subpart CCCC), an d (2) emission guidelines that apply to the states for establishing standards for existi ng CISWI units through the states’278

implementation plans (codified at 40 C.F.R. pt. 60, Subpar t DDDD). In an effort to present these comments to EPA in the most concise manner possible, ARI PPA is citing only to the regulatory provisions in Subpart CCCC. However, ARIPPA’s comments apply equally to the corresponding provisions of the Emission Guidelines in Subpart DDDD, a nd, therefore, any changes made to Subpart CCCC in response to these comments should likewis e be made to Subpart DDDD.

Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has bee n revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA-HQ-OAR2003-0119-2628-A2 excerpt 14 above for additional details.

Commenter Name: Jeff A. McNelly Commenter Affiliation: ARIPPA Document Control Number: EPA-HQ-OAR-2003-0119-2575-A1 Comment Excerpt Number: 3

Comment: EPA should revise the definition of “CISWI unit” to ensure that the regulatory language is consistent with the recordkeeping requirements in Section 60.2175(v) of the Proposed CISWI Reconsideration.

In the Final CISWI Rule, the recordkeeping provisions in S ection 60.2175(v) and the definition of the term “CISWI unit” in Section 60.2265 both incorporate th e same regulatory terms relating to the obligation imposed on unit owners and operators to mai ntain records. Specifically, Section 60.2175(v) of the Final CISWI Rule provides, in relevant part, that “[f]or operating units that burn materials other than traditional fuels in § 241.2, a des cription of each material burned, and a record which documents how each material that is not a traditional fuel meets each of the legitimacy criteria in §241.3(d)” must be maintained. 76 Fed. Reg. 15,760. Similarly, the definition of CISWI unit in Section 60.2265 of the Final CISW I Rule requires, in relevant part, that “[i]f 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 r equired by § 60.2175(v), the material is a solid waste and the operating unit is a CIS WI unit . . . .” 76 Fed. Reg. 15,762. By contrast, in the Proposed CISWI Reconsideration, EPA has apparently proposed to narrow the scope of the recordkeeping requirements in Section 60.2175(v) by eliminating the reference to traditional fuels. As proposed, the applicability of the r ecordkeeping requirements in Section 60.2175(v) is limited to three specific categories of materi als: (1) non-hazardous secondary materials that have been determined not to be solid wast e pursuant to § 241.3(b)(1); (2) fuels that have been processed from discarded non-hazardous secondary materials pursuant to § 241.3(b)(4); and (3) fuels that received a non-waste determina tion pursuant to the petition process under § 241.3(c). In effect, these recordkeeping requi rements would not apply generally to any materials that have not been identified as tradit ional fuels under Section 241.2, as was the case under the Final CISWI Rule.

However, EPA has not proposed, through the CISWI recon sideration, to carry corresponding textual revisions through to the definition of CSIWI unit in Section 60.2265. Instead, the Proposed CISWI Reconsideration continues to provide, in r elevant part, that “[i]f the operating unit burns materials other than traditional fuels as define d 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 solid279

waste and the operating unit is a CISWI unit.” 76 Fed. Reg. 80, 501. ARIPPA supports EPA’s proposal to revise the recordkeeping provisions in Section 60. 2175(v), as set forth in the Proposed CISWI Reconsideration. However, the proposed revisions must also be reflected in corresponding revisions to the definition of CISWI unit, so that the relevant regulatory provisions remain consistent and, together, consistently and unambiguously impose CISWI’s recordkeeping requirements on the same categories of combu stible materials. Specifically, if, as EPA has proposed, the applicability of the recordkeeping requirements in Section 60.2175(v) of the Proposed CISWI Reconsideration is revised to apply only to three specific categories of nonhazardous secondary materials, then the applicability of the recordkeeping requirements incorporated into (and imposed through) the definition of CISWI unit must also be limited to same categories of materials. Therefore, as currently written, the Proposed CISWI Reconsideration creates confusion about which non-haza rdous secondary materials trigger recordkeeping requirements under the CISWI rule – i.e., are CISWI’s recordkeeping requirements limited to the three categories of mater ials identified in Section 60.2175(v), or, alternatively, do they extend generally to “materials other than traditional fuels as defined in § 241.2 that have been discarded”, in accordance with the def inition of CISWI unit? Such uncertainty is of particular importance for operations combusting nonhazardous secondary materials that have previously been discarded, but that EP A has nonetheless determined to be non-waste fuels under Section 241.4(a). As described above, EPA has concluded that legacy coal refuse, though initially discarded, 4 satisfies the processing standards and legitimacy criteri a at the point of combustion. EPA has appropriately therefore pro posed through the Proposed NHSM Reconsideration to expressly identify legacy coal refuse as a non-waste fuel in Section 241.4(a). ARIPPA therefore is specifically interested in ensurin g that the regulatory definition (relative to applicability) and recordkeeping obligations imposed through th e final CISWI Rule are clear and consistent with EPA’s classification of nonhazardous se condary materials under the final NHSM Rule. To resolve the apparent internal inconsistency in the regulatory text of the Proposed CISWI Reconsideration, ARIPPA requests that EPA revise the definition of CISWI unit in Section 60.2265 of the Proposed CISWI Reconsideration as f ollows: 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 th e preceding 6 months, any solid waste as that term is defined in 40 CFR part 241.

In addition, materials shall be deemed to constitute a solid waste, and the operating unit combusting such material shall be a CISWI unit, if both (a) and (b) apply: (a) The operating unit burns any of the following materials: (1) nonhazardous secondary materials that have been determined not to be solid waste pursuant to §241.3(b)(1); (2) fuels that have been processed from discarded non-hazardous secondary materials pursuant to § 241.3(b)(4); and (3) fuels that received a non-waste determination pursuant to the petition process under § 241.3(c), and (b) You do not keep and produce records as required by § 60.2175(v).

[Footnotes]

(4) ARIPPA disputes EPA’s characterization of legacy co al refuse as constituting discarded material. However, for purposes of discussing the Prop osed CISWI Reconsideration, ARIPPA will not re-state the basis for its disagreement.

Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has bee n revised to address concerns about280

making a material a solid waste by failing to keep a record. See the response to EPA-HQ-OAR2003-0119-2628-A2 excerpt 14 above for additional details. We are not making the specific changes requested by the commenter but we believe the cha nges in the final rule address the commenter’s concerns.

Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1 Comment Excerpt Number: 14

Comment: In the CISWI Rule, the definition of CISWI unit stat es that: "If the operating unit burns materials other than traditional fuels as defined i n §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." Proposed 40 C.F.R. 60.2265 (emphasis added). Thus, it appears that even materials that are being legitimatel y used as fuels and therefore are not discarded would become solid wastes under the CISWI Rule b ased on a mere record-keeping violation. 4

In the NHSM Proposal and the CISWI Reconsideration Pro posal, EPA would require combustors to meet certain conditions (including record-ke eping conditions) before identifying most NHSM as non-wastes. 5 In fact, the only NHSM that EPA is not proposing to ide ntify as waste when used as fuel or ingredients in combustion units are tires managed under an established tire collection program and resinated wood, whichare proposed to be listed as nonwaste at 40 C.F.R. 241.4(a). Because this regulatory frame work would regulate materials that are not discarded ( e.g . materials that are being legitimately used as fuels or ingredients), it exceeds EPA’s authority under RCRA.

[Footnotes]

(4) The recordkeeping requirement under proposed 40 C.F.R. 60.2175(v) applies to NHSM that is combusted under the control of the generator (40 C.F.R. 241.3(b)(1), NHSM that has been processed (40 C.F.R. 241.3(b)(4), and NHSM that has received a non-waste determination to allow transfers to third parties while still meeting th e legitimacy criteria (40 C.F.R. 241.3(c)). It does not apply to ingredients. 40 C.F.R. 60.2265 describes these materials as "materials other than traditional fuels as defined in §241.2 that have been dis carded." This language could mean EPA is taking the position that such materials are disc arded, which would be consistent with EPA’s claimed authority to impose conditions on these m aterials. An alternative reading of this language is that the words "that have been discarded" puts the burden on EPA to show that discard has taken place, and that, absent such a demonst ration a combustor does not need to document and maintain records regarding the status of NHSM that is combusted as fuel. Please clarify how EPA intends this language to be interpreted.

(5) As discussed below, we do not dispute that EPA can use r ecycling legitimacy criteria to evaluate whether materials are wastes. However, EPA may not regulate a non-waste as a condition of identifying it as a non-waste. Therefore, EPA cannot place the burden of proof on a combustor to prove that his material is a non-waste.281

Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has bee n revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA-HQ-OAR2003-0119-2628 excerpt 14 for additional details.

Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1 Comment Excerpt Number: 15

Comment: The preamble discussion on precursors provides another exam ple of how far removed EPA’s rationale for this rulemaking is from the concept of discard. EPA is requiring combustors to document and keep records regarding the fact tha t CO is not present in NHSM, and, under CISWI, would identify the NHSM as waste if thi s documentation is not maintained. We fail to see how this has anything to do with a determina tion that a material is a waste under RCRA. EPA’s failure to expressly exclude opacity from th e definition of contaminant is similar. Does EPA intend a combustor to document and keep a record o f an explanation that opacity cannot be measured in a fuel or an ingredient and is only relevant to emissions? Would failure to document and maintain a record of this explanation make th e NHSM a waste under the CISWI rule?

Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has bee n revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA-HQ-OAR2003-0119-2628 excerpt 14 for additional details.

Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1 Comment Excerpt Number: 16

Comment: EPA states that the legitimacy criteria are used to identify when a material is a waste. However, under the NHSM Proposal, material can meet the legitimacy criteria and still be identified as solid waste. This position is invalid under RC RA. Under ABR , EPA cannot impose conditions such as record-keeping requirements on the c ombustion of non-waste material that would result in the classification of the material as a waste.

Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has bee n revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA-HQ-OAR2003-0119-2628 excerpt 14 for additional details.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM)282

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 15

Comment: EPA Should Clarify that Comfort Letters Issued by the Agen cy Meet the Documentation Requirements of the CISWI Rule at §60.2175(v) and B oiler MACT Rule at §63.7555(d)(2) EPA has issued a number of “comfort letters,” which it has posted on the official NHSM Rulemaking web site. These letters have been care fully crafted to discuss how various secondary materials meet the processing definition and le gitimacy criteria of the NHSM Rule. However, the preamble and rule language in the NHSM Final Rule and the proposed NHSM Rule Amendments do not discuss whether a combustion source may rely on the comfort letters to meet its recordkeeping requirements. We respectfully urge t he Agency to address this issue in its final NHSM Rule Amendments and on its rulemaking web site. EPA should clarify that combustion sources burning a secondary material fuel that meets the processing and legitimacy criteria circumstances as described in an EPA “comfort letter” may use the letter to meet the recordkeeping requirements of §60.2175(v) and §63.7555(d)(2). Further, EPA should clarify that no additional petitions for a non

‐ waste determination from either the Regional Administr ator or Administrator are necessary where the secondary materi al fuel meets the circumstances described in the comfort letter. Failure to adequately cla rify the status and use of comfort letters to demonstrate fuel legitimacy determinations will create enormous disincentives to recovering energy value from materials which otherwise would be lan dfilled.

Response: We would consider “comfort letters” issued by the Agency on various secondary materials to be sufficient to satisfy the documentation requirements of the CISWI Rule at §60.2175(v) and §60.2740(u), and in the Boiler MACT Rule at §63.7555(d)(2). If the secondary material in question meets the circumstances described in the comfort letter, then no additional petition for a non-waste determination is required for t he secondary material.

Commenter Name: Jeff A. McNelly Commenter Affiliation: ARIPPA Document Control Number: EPA-HQ-OAR-2003-0119-2575-A1 Comment Excerpt Number: 1

Comment: Coal refuse should be classified as a traditional f uel for purposes of both the Final NHSM Rule and CISWI, rather than as a solid waste. AR IPPA offered several justifications in support of this classification, which are detailed in ARIP PA’s pending Petition for Regulation of the Final NHSM Rule. Although ARIPPA continues to bel ieve that legacy coal refuse is indistinguishable from currently-mined coal refuse (which is appropriately expressly identified as a traditional fuel under the Final NHSM Rule) and sh ould also be classified as a traditional fuel, ARIPPA stated in its comments on the Proposed NHS M Reconsideration that it supports EPA’s proposal, as articulated in the preamble to the P roposed NHSM Reconsideration, to expressly identify legacy coal refuse as a non-waste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration. 2 ARIPPA’s comments on the Proposed CISWI Reconsiderat ion reflect ARIPPA’s support for EPA’s proposed changes to the NHSM re gulation through the Proposed NHSM Reconsideration, subject to ARIPPA’s comments on t hat reconsideration effort.283

In general, ARIPPA proposes revisions to CISWI through EPA ’s reconsideration effort to ensure that the combustion of coal refuse, including legacy co al refuse, is not inadvertently rendered subject to regulation under CISWI, or that such regulation r emains subject to differing interpretations because of the ambiguity of the regulato ry text. Expressly clarifying that the combustion of legacy coal refuse qualifies as combustion of a non-waste fuel and therefore is not subject to CISWI would also be consistent with EPA’s sta ted expectation published in the context of the Agency’s Utility MACT and NSPS regulati ons. In particular, EPA commented that a unit combusting coal refuse, including legacy coal refuse, would be subject to regulation under EPA’s Utility MACT rules as long as the unit qualifi es as an electric generating unit (“EGU”), rather than subject to regulation under Section 129 of the CAA. 76 Fed. Reg. 25,026. Specifically, for purposes of the Proposed Utility MACT and NSPS, the Agency “assumed that all units that combust coal refuse and otherwise meet t he definition of a coal refuse-fired EGU combust newly mined coal refuse or coal refuse from le gacy piles that has been processed such that it is not a solid waste.” Id. EPA specifically requested comment on this assumption and whether there are any units combusting coal refuse that qualifies as a solid waste, such that the units would be solid waste incineration units (subject to re gulation under CAA Section 129) instead of EGUs. Id. In the preamble to the final Utility MACT and NSPS, EP A confirms that “[the Agency] did not receive any information since [th e Proposed Utility MACT and NSPS] that would cause [it] to revise this determination in the fi nal rule.” “National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-fired El ectric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electr ic Utility, Industrial- CommercialInstitutional, and Small Industrial-Commercial-Instituti onal Steam Generating Units; Final rule”. 77 Fed. Reg. 9,304, 9,310 (Feb. 16, 2012) (to be codified at 40 C.F.R. pts. 60 and 63). Therefore, EPA should support ARIPPA’s proposed revisions to the regulat ory text of CISWI to ensure application of the appropriate and intended regulatory stan dards to the combustion of coal refuse for energy production.

[Footnotes]

(2) In its comments on the Proposed NHSM Reconsiderat ion, ARIPPA identified proposed revisions to EPA’s suggested regulatory text, to ensure that suc h text is clearly consistent with EPA’s appropriate regulatory objectives to clarify, through the regulation, that legacy coal refuse satisfies EPA’s legitimacy criteria for fuels, and co nstitutes a non-waste fuel at the point of combustion. To the extent applicable, ARIPPA incorporat es these comments on the Proposed NHSM Reconsideration herein.

Response: These comments concern the NHSM rule, not CISWI, in that they request a definition of solid waste that excludes all coal refuse . For this reason, we are not responding to the comment in this RTC. We note that, just because no source subject to the Utility NESHAP indicated that it was combusting coal refuse that is sol id waste, this does not preclude the possibility that some combustion units are burning coal ref use that is solid waste. Not all boiler units are utility units subject to the Utility NESHAP, H owever, we are not aware of any industrial boiler units that are combusting coal refuse t hat is a solid waste.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)284

Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 18

Comment: EPA per the preamble to its Proposed Reconsidered Non Ha zardous Solid Material (NHSM) Rule is considering defining currently mined coal re fuse as well as legacy coal refuse that is post-processed to be a non-waste fuel. If this def inition is implemented in the NHSM Rule, then EPA can eliminate coal refuse facilities f rom the CISWI Rule. On the other hand, if EPA does not implement such a definition in the NHSM rul e and requires a case by case determination as to whether legacy coal refuse is suff iciently processed to be categorized as a fuel, then all facilities using coal refuse are at risk of potentially being subject to the CISWI rule. In this event, it is clear that the CISWI Rule does not adequately address the emissions from facilities firing coal refuse. The EPA data base for C ISWI references only one facility burning coal refuse (specifically an Anthracite coal refuse) . The quality of coal refuse varies substantially from anthracite to bituminous coal and varies considera bly within these categories as well. As such, the testing of one unit is inadequate to determine what the emissions limits should be for units burning coal refuse.

Specifically, for purposes of the Proposed Utility MACT and NSPS, the Agency “assumed that all units that combust coal refuse and otherwise meet t he definition of a coal refuse-fired EGU combust newly mined coal refuse or coal refuse from le gacy piles that has been processed such that it is not a solid waste. As such, EPA in addressing CSAPR and MATS for EGUs evaluated data from multiple facilities burning coal refuse.

To resolve this lack of data issue, we strongly recommen d that EPA simply state that coal refuse from active and legacy sites is a fuel and should not be considered a waste. By making the determination that coal refuse is a fuel, coal refuse b urning electric generation units would be covered by CSAPR and MATS. EPA had conducted testing of num erous coal refuse fired facilities in setting limits under these rules. Further , the preamble to these rules anticipated that coal refuse would be a classified a fuel.

The alternative would be to conduct comprehensive study to e xamine emissions from units burning legacy coal refuse that has not been adequately pro cessed. These units should include both anthracite and bituminous waste coal.

Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has bee n revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA-HQ-OAR2003-0119-2628 excerpt 14 for additional details.

Commenter Name: Jeff A. McNelly Commenter Affiliation: ARIPPA Document Control Number: EPA-HQ-OAR-2003-0119-2575-A1 Comment Excerpt Number: 4

Comment: To the extent that EPA determines not to expressly iden tify legacy coal refuse as a non-waste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration, ARIPPA285

requests that the Agency revise CISWI’s recordkeeping provi sions to ensure that the regulatory text is consistent with EPA’s prior determination that legacy coal r efuse is a non-waste fuel at the point of combustion. Based on the preamble to the Final NHSM Rule, it is clear that EPA has appropriately concluded that legacy coal refuse would not constitute a solid waste at the point of combustion, based upon EPA’s deter mination that the processing of legacy coal refuse is directly comparable to the processing of virgin coal prior to combustion of either material. See 76 Fed. Reg. 15,509; 15,537. For this reason, EPA determined that lega cy coal refuse satisfies the processing standards imposed under the Final NHSM Rule, and ultimately meets the legitimacy criteria set forth at Section 241.3(d)(1), prior to the point of combustion. EPA reaffirmed its position in the preamble to the Prop osed NHSM Reconsideration. As expressed in its comments on the Proposed NHSM Reconsi deration, ARIPPA supports EPA’s proposal to expressly identify legacy coal refuse as a n on-waste fuel under Section 241.4(a). If EPA nonetheless determines not to include legacy coal ref use among the non-waste fuels listed in Section 241.4(a), the final CISWI regulation should none theless ensure that the combustion of legacy coal refuse is not inadvertently made subject to CISWI, and avoid unnecessary ambiguity with respect to the applicability of CISWI to coal refuse -fired units. Consistent with this reasonable desire for regulatory clarity, no separate demo nstration nor recordkeeping should be required under CISWI where EPA has already determined that the subject material is not a solid waste at the point of combustion. Since EPA has alre ady reached such determination relative to the combustion of legacy coal refuse, sources combusting coal refuse are not subject to the emission and operational standards under the Final CISWI Rule, and EPA should ensure that its final regulation clearly reflects this intended regulator y outcome. ARIPPA’s arguments in this context are detailed more fully in its Petition for R econsideration of the Final CISWI Rule. To ensure that the CISWI rule ultimately reflects EPA’s classification of legacy coal refuse as a non-waste fuel, ARIPPA requests that EPA revise the rec ordkeeping provisions in Section 60.2175(v) of the Proposed CISWI Reconsideration as follows : (v) Except as provided by Section 60.2175(v)(1), f

or operating units that combust non-hazardous secondary mater ials that have been determined not to be solid waste pursuant to § 241. 3(b)(1) of this chapter, you must keep a record which documents how the secondary material me ets each of the legitimacy criteria. If you combust a fuel that has been processed from a dis carded non-hazardous secondary material pursuant to § 241.3(b)(4) of this chapter, you must kee p records as to how the operations that produced the fuel satisfies the definition of processing in § 241.2 of this chapter. If the fuel received a non-waste determination pursuant to the petition process submitted under § 241.3(c) of this chapter, you must keep a record that document s how the fuel satisfies the requirements of the petition process.

(1) In lieu of maintaining records pursuant to Section 60.2175(v) to demonstrate the source is not subject to CISWI, an operating unit combusting legacy coal refuse must keep records demonstrating that the unit combusts legacy coal refuse which has been processed in a similar manner to the processing of currently-generated coal refuse.

Response: The recordkeeping provisions have been revised in the final r ule to address the final NHSM rule. Furthermore, the CISWI unit definition has bee n revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA-HQ-OAR2003-0119-2628 excerpt 14 for additional details. We are not revising th e regulation as the commenter suggests; however, we believe that the level of recordkeeping necessary for coal refuse would be in line with the regulatory provision com menter suggests including.286

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2 Comment Excerpt Number: 13

Comment: WM Supports the Proposed NHSM Categorical Non

‐ Waste Determination Process Proposed §241.4(b) provides a new rulemaking petition process for the Administrator to identify additional non

‐ waste fuels under §241.4(a). Combustion units using listed non

‐ waste fuels do not need to obtain site

‐ specific non

‐ waste determinations from their Regional Administrators or other NHSM requirements for demonstrat ing legitimacy, including recordkeeping requirements to document sufficient processing and conformance to the legitimacy criteria. WM commends EPA for developing th e process, and for recognizing therein that it is appropriate to balance the legitimacy factors with other relevant factors when making a

non
‐ waste determination. EPA’s legitimacy analysis should focus on the heating value of the fuel product, whether material management and processing is conduc ted in a safe and protective manner, and whether the material’s use as a fuel will e xtract value from the material and reduce landfill disposal. In particular, extremely rigid adher ence to contaminant comparisons, without consideration of other relevant factors, may unfairly eliminate otherwise viable and environmentally beneficial fuels. WM recommends that th e Agency also clarify that the Regional Administrators should balance the legitimacy c riteria with other relevant factors in considering petitions submitted pursuant to 40 CFR §241.3(c).

Response: The commenter primarily discussed issues relating to I dentification of NonHazardous Secondary Materials That Are Solid Waste rulem aking (NHSM) aspects (Docket ID: EPA-HQ-RCRA-2008-0329). To the extent that the commenter has provided these comments to today’s Identification of Non-Hazardous Secondary Materi als That Are Solid Waste portion of the rulemaking, they may be addressed there or were addresse d in the rulemaking record for the March 21, 2011 NHSM Final Rule. As stated in the preamble 76 F R 80470-80474, the Agency did not reopen the entire NHSM rule for reconsiderati on and will not respond to comments directed toward rule provisions that were not specifically identified in the December 23, 2011, proposal. For more information regarding the intent of t he December 23, 2011 proposed rule, see 76 FR 80469.

The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has been revised to address concerns about making a material a solid waste by failing to keep a record. See t he response to EPA-HQ-OAR-2003- 0119-2628 excerpt 14 for additional details.



### 12D. Operating parameter limits comments (OPL)

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA-HQ-OAR-2003-0119-2573-A2 Comment Excerpt Number: 6287

Comment: The cement industry fires alternate supplemental fuels to maintain a consistent heating value to the kiln preheater/precalciner system. By way of example, individual tires are actually weighed to account for the difference in BTU va lue as a result of the size of the tire. Likewise, the feed rate for other alternate solid fuels is closely monitored and controlled depending on the BTU mix of the alternate fuel material being fired. We seek clarification on the use of this terminology since it's based more on tradit ional incineration "campaigns" and waste charging methods.

Response: We intend for the term ”charge rate,” as applied in t he situation described by the commenter, to mean the amount, by weight, of each type of fuel and solid waste material being fed to the combustion unit each hour.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 11

Comment: 60.2165(e)(1) and (2) – It is unclear how the “charge rate” is applied to a waste burning kiln. It would be clearer to present this concept as the “feed rate” with continuous feed systems rather than “charges.”

Response: See the response to EPA-HQ-OAR-2003-0119-2573-A2 excerpt 6.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 22

Comment: In the proposed rule (June 4, 2010), EPA required that the so urce continuously monitor operating parameter limits (OPLs), and determined t hat any operation above or below parameter requirements would be a deviation. In its respons e to comments, EPA stated that the final rule (March 21, 2011) waives the applicability of opera ting limits during performance testing:

EPA has revised the rule to waive the operating limits dur ing source testing so that sources may adjust their operating limits to provide increased operatin g flexibility provided the emissions limits are met. The intention behind reassessing operati ng limits with new performance testing is to ensure that the limits remain appropriate for the sour ce. By allowing the source to conduct performance test with less stringent operating levels t hat may have been initially determined, the source will be able to set the limits at levels appropria te for their operations while ensuring emissions limits are met. [Response to Comments, at 1111 (Feb. 20, 2011)]

In the final rule (March 21, 2011), EPA did revise the regulato ry language for Subpart CCCC to reflect the above response to comments with text as f ollows [60.2145(c)]:

Operation above the established maximum, below the establ ished minimum, or outside the allowable range of the operating limits specified in paragr aph (a) of this section constitutes a288

deviation from your operating limits subpart, except during pe rformance tests conducted to determine compliance with the emission and operating limi ts or to establish new operating limits. Operating limits are confirmed or reestablished during perfo rmance tests.
However, EPA did not revise similar language for Subpart DD DD. Dow participated in preparation of the ACC petition for reconsideration subm itted May 20, 2011 which included a request that EPA reconsider and correct what we believe to be an oversight with respect to subpart DDDD.

Dow continues to be concerned that the ongoing testing re quirements, particularly for existing units (subpart DDDD), could result in a continual reduction of operating limits if facilities have to reset the operating limits to more stringent values e very time a stack test is done so as to avoid a deviation during the actual test.

Response: The same language in 60.2145(c) has been added to Subpart DDDD at 60.2710(c) to make the emission guidelines consistent with the NSPS.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 23

Comment: In addition, ACC described a concern about the status of pre-testing associated with performance testing since pre-testing is usually an integra l part of a performance test. Dow continues to be concerned about this issue. It is common t o conduct pretesting prior to conducting a performance test, particularly when there a re numerous stack sampling trains to be used. For a unit to be able to operate at a new condition during a performance test, it must be allowed to operate at that condition for a period of tim e before the actual test so that the operator can determine if the condition is feasible and to work out any site-specific preparations. If the condition is outside the existing operating limits, the re is no way for the operator to do this. Therefore, existing operating limits need to be waived fo r pre-testing associated with subsequent performance tests.

Dow requests that EPA correct language in subpart DDDD to match what was provided in the March 21, 2011 final rule for subpart CCCC. Dow also requests that EPA revise the language in the final CISWI reconsideration rule for both subpart C CCC and subpart DDDD to clarify that operator parameter limits are also waived during pretesting prior to performance testing.

Suggested language from §60.2145(c) for what we believe to be miss ing from §60.2710(c) is provided in single underlined text based on what EPA stated i n the March 21, 2011 final rule. In addition, Dow requests EPA add the clarifying phrase about pre-testing identified below as double underlined text, which would need addition to both 60.2145(c) and 60.2710(c).

Operation above the established maximum, below the establ ished minimum, or outside the allowable range of the operating limits specified in paragr aph (a) of this section constitutes a deviation from your operating limits subpart, except during performance tests (including pre-289

testing) conducted to determine compliance with the emission and operating limits or to establish new operating limits . Operating limits are confirmed or reestablished during perfor mance tests.
Response: See the response to EPA-HQ-OAR-2003-0119-2571-A1 excerpt 22.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 23

Comment: In the March 21, 2011, final rule, the Agency included a provis ion that allows new sources to operate outside their established operating param eter limits during subsequent performance tests. The exact language from § 60.2145(c) is incl uded below.

Operation above the established maximum, below the establ ished minimum, or outside the allowable range of the operating limits specified in paragr aph (a) of this section constitutes a deviation from your operating limits established under this subpart, except during performance tests conducted to determine compliance with the emission and operating lim its or to establish new operating limits

. (76 Fed. Reg. at 15,754, emphasis added). CRWI supports this idea. Otherwise, the operating limits for each subsequent performance test would ratch et down until the facility could no longer operate. We believe the Agency understands this concept since the response to comments document supports the concept that operating parameters do not apply during subsequent performance tests (see page 1108 of the Response to Comments Document). In the comparable section for existing sources, the phrase allowing the unit to exceed current operating parameters is not included. CRWI believes this is a simple oversight and suggests that the Agency correct this by adding similar language to § 60.2710(c) then the rule is finalized. CRWI also requests the agency to clarify that pre-testing is a normal part of the testing regimen and that the waiver includes it.

Response: EPA has revised the regulation to correct the oversi ght. See the response to EPAHQ-OAR-2003-0119-2571-A1 excerpt 22.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 39

Comment: In the Proposed Rule, EPA required that sources contin uously monitor operating parameter limits (OPLs), and determined that any operation above or below parameter requirements would be a deviation. See Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial a nd Industrial Solid Waste Incineration Units; Proposed Rule, 75 Fed. Reg. 31938, 31976 & 31992 (pr oposed June 4, 2010). In its response to comments submitted by ACC and others on these provisions, EPA stated that the final rule waives the applicability of operating limits during performance testing: EPA has290

revised the rule to waive the operating limits during source testing so that sources may adjust their operating limits to provide increased operating flexibil ity provided the emissions limits are met. The intention behind reassessing operating limits wit h new performance testing is to ensure that the limits remain appropriate for the source. By a llowing the source to conduct performance test with less stringent operating levels that may hav e been initially determined, the source will be able to set the limits at levels appropriate for thei r operations while ensuring emissions limits are met. Response to Comments, at 1111 (Feb. 20, 2011). In the Final Rule and this Proposed Rule, EPA appropriately revised the regulatory language to refl ect the above response to comments for Subpart CCCC as follows: Operation above the established maximum, below the established minimum, or outside the allowable range of th e operating limits specified in paragraph (a) of this section constitutes a deviation from your operating limits subpart, except during performance tests conducted to determine complian ce with the emission and operating limits or to establish new operating limits. Operating limits are confirmed or reestablished during performance tests. See, Final Rule, 76 Fed. Reg. 15704 at 15753–54 (Mar 21, 2011) and 76 Fed. Reg. 80452 at 80492 (Dec 23, 2011) (§60.2145(c) (emphasis a dded) EPA did not, however, revise similar language for Subpart DDDD in the Final Rule or in this Proposed Rule. See, Final Rule, 76 Fed. Reg. 15704 at 15774 (Mar 21, 2011) and 76 Fed. Reg. 80452 at 80513 (Dec 23, 2011) (§60.2710(c)) ACC recommends that EPA recons ider and correct what ACC believes to be an oversight with respect to Subpart DDDD.

Response: EPA has revised the regulation to correct the oversi ght. See the response to EPAHQ-OAR-2003-0119-2571-A1 excerpt 22.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 40

Comment: ACC is concerned that, as written, the ongoing testi ng requirements, particularly for existing units (subpart DDDD), could result in a continual reduction of operating limits if facilities have to reset the operating limits every t ime a stack test is done. Facilities typically operate with a safety margin with respect to operating li mits. Therefore, if the operating limits are reset with each performance test, they will cont inue to change, requiring a continual increase in energy and operating costs. Other combustion-relate d MACT rules, for example, HWC MACT, explicitly waives current OPLs during subsequent compr ehensive performance testing. See, 40 C.F.R. § 63.1207(h)(1). The same waiver should be made e xplicit in the CISWI rule.

Response: EPA has revised the regulation to correct the oversi ght. See the response to EPAHQ-OAR-2003-0119-2571-A1 excerpt 22.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 41291

Comment: ACC is concerned about the status of pre-testing assoc iated with performance testing since pre-testing is usually an integral component of testing. The proposed CISWI rule was silent on the issue. It is common to conduct prete sting prior to conducting a performance test, particularly when there are numerous stack sampli ng trains to be used. For a unit to be able to operate at a new condition during a performance test, it must be allowed to operate at that condition for a period of time before the actual test so that the operator can determine if the condition is feasible. If the condition is outside t he existing operating limits, there is no way for the operator to do this. Therefore, existing operating limit s need to be waived for pre-testing associated with subsequent performance tests. Section 63.1207(h)(2) of the HWC MACT states:

...current operating parameter limits are also waived during pr etesting prior to comprehensive performance testing for an aggregate time not to exceed 720 h ours of operation...

ACC urges EPA to reconsider and revise the language in the final CISWI rule to clarify that operator parameter limits are also waived during pretesting prior to performance testing.

Response: Sources are encouraged to establish operating parameters o ver a range of operations that are expected for the unit during their initial perform ance tests to minimize scenarios such as described. This may include establishing different parameters for different modes of operation. Regarding subsequent process changes and performance tests t o establish compliance under those new conditions, the rule requires compliance wit h the standard at all times, which is determined through compliance with the operating limits. W aiving these monitoring requirements inhibits the ability to do so. However, we also recognize that requiring a source to operate within the previously established operating window dur ing subsequent performance tests, would over time, results in a shrinking operating w indow. It could also limit process improvement. For these reasons, we finalized the languag e in 60.2145(c) and 60.2710(c) that waives operating parameter limits “... during performance tes ts conducted to determine compliance with the emission and operating limits or t o establish new operating limits.” The source should work with the delegated authority to establish the agreed upon steps and time frame needed to bring the source to steady state and repres entative operating conditions for any particular operating scenario and establish this as part o f the site specific test plan; however expanding this beyond actual scope of the performance test i s inconsistent with the concepts of continuous parametric monitoring to assure continuous complia nce.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 14

Comment: 60.2265 – The terms “annual heat input” and “average annual h eat input” rely on operation of the source over the previous 12 month complianc e demonstration, which could vary. These terms should rely on the design value where it ha s the potential to impact applicability of various CISWI provisions.

Response: The rule already allows a time frame of 11-13 months f rom the previous test to provide operational flexibility. If a source will shut d own for an extended period of time, beyond that window, the source should work with their delegated au thority to establish a schedule for292

conducting the annual performance test and determination of the “annual heat input” and “average annual heat input.”

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 22

Comment: Additional flexibility for operating parameter limits

EPA needs to allow for varying Operating Parameter Leve ls with load (e.g., sorbent injection rate) and fuel mix. The CISWI rules require developmen t of operating parameter limits (OPLs) based on the values achieved during the performance test. I n many cases, these levels will be appropriate only for certain modes of operation. For exa mple, the absolute sorbent injection rate observed during the performance test conducted under full l oad and using the worst case fuel mix will not correlate to the sorbent injection rate n ecessary during startup or periods of lower load. Frequently, sorbent injection rates are set using a feedback loop from a CEMS or CPMS to avoid wasting sorbent. EPA has acknowledged in the Boil er MACT that the sorbent injection rate will vary with load, which allows sources to adjus t the sorbent injection rate by a load fraction. However, as the fuel/waste mix during the initi al performance test may differ from the typical day to day fuel/waste mix, EPA should also allo w adjustments to sorbent injection rates based on fuel mix. For example, if an ERU is capable o f burning both coal and biomass and tested at 100% coal firing for the mercury performance tes t, the carbon injection rate for periods of normal operation should not only be adjusted based on load but also by the percentage of coal being fired. If a boiler is burning natural gas or other clean fuel during a certain operational period, sorbent injection is not necessary.

Response: As we discuss in section II.C of the preamble to the final rule, we have revised the sorbent injection monitoring provisions to allow adjustme nts due to reduced operating loads in a manner consistent with that found in the industrial boil er NESHAP. We would expect sources to establish operating parameters using a fuel/waste mix that is typical for the unit. We note that a source may re-test and re-establish new operating paramet er limits as necessary to adjust for changes in the feed stream to the unit, as specified in §60. 2160 and §60.2725. The feed stream change would have to involve a new type of non-hazardous s econdary material being combusted to be considered a “process change”that triggers the requirem ent to conduct a new performance test. Sources should evaluate the new materials to det ermine whether their introduction into the process is in fact a process change.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 24

Comment: The proposed rule requires development of operating param eter limits (OPLs) based on the values achieved during the performance test. In many cases, these levels will be appropriate only for certain modes of operation. For exa mple, the absolute sorbent injection rate293

observed during the performance test conducted under full l oad and using the worst case fuel mix will not correlate to the sorbent injection rate n ecessary during startup or periods of lower load. Frequently, sorbent injection rates are set using a feedback loop from a CEMS or CPMS to avoid wasting sorbent. EPA has acknowledged that the so rbent injection rate will vary with load in Table 7 of the Boiler MACT rule, which allows source s to adjust the sorbent injection rate by a load fraction. That approach is not included in the CISW I rule, however, In addition, as EPA requires sources to test at the worst case fuel mix for chloride and mercury and this fuel mix may differ from the typical day to day fuel mix, EPA should als o allow adjustments to sorbent injection rates based on fuel mix. For example, if a b oiler is capable of burning both coal and biomass as well as solid waste, and tested with coal fi ring for the mercury performance test, the carbon injection rate for periods of normal operation s hould not only be adjusted based on load but also by the percentage of coal being fired. If a boile r is burning natural gas or other clean fuel during a certain operational period, sorbent injection may not be necessary. Therefore, additional flexibility needs to be allowed where justified based on f uel and operational requirements.

Response: As stated above, we have made revisions to the final r ule to address this comment. See the response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 22.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 25

Comment: An allowance for operating parameter limit variation due to CISWI unit load fraction is also applicable to all CISWI units and operatio n parameters. Variations with load and other operating conditions also occur for other operating pa rameters- e.g., wet scrubber pressure drop, pH, and liquid flow rate, ESP voltage and secondary a mperage. Flue gas flow rate and characteristics vary over load and with other operating variables such as fuel quality, to the extent that the single hourly average value determined dur ing the high load steady state performance test will not apply to other conditions if overall performance is optimized. EPA should provide an allowance for any operating parameters t o vary with unit load fraction as applicable to the operating parameter and specific affected source, and recognize that those operating parameters do not necessary vary in a linear r elationship with load, e.g., pressure drop typically varies with the (flow).

Response: We have made adjustments for sorbent injection as d iscussed above. See the response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 22. We disagree tha t a similar allowance is necessary for all other operating paramet er limits, as they do not pose the same operational issues as sorbent injection does. We note th at a source may retest and re-establish new operating parameter limits, as specified in §60.2160 and §60.2725.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 32294

Comment: The Proposed Rule requires development of operating par ameter limits (OPLs) based on the values achieved during the performance test. In many cases, these levels will be appropriate only for certain modes of operation. For ex ample, the absolute sorbent injection rate observed during the performance test conducted under full l oad and using the worst case fuel mix will not correlate to the sorbent injection rate n ecessary during startup or periods of lower load. Frequently, sorbent injection rates are set using a feedback loop from a CEMS or CPMS to avoid wasting sorbent. EPA has acknowledged that the sor bent injection rate will vary with load in Table 7 of the Boiler MACT rule (76 Fed. Reg. 80653), which allows sources to adjust the sorbent injection rate by a load fraction; however, tha t approach is not included in the CISWI rule, and ACC requests that EPA include such an approach.

In addition, as EPA requires sources to test at the wor st case fuel mix for chloride and mercury, and this fuel mix may differ from the typical day to day f uel mix, EPA should also allow adjustments to sorbent injection rates based on fuel m ix. For example, if a boiler is capable of burning both coal and biomass as well as solid waste, and t ested with coal firing for the mercury performance test, the carbon injection rate for periods of normal operation should not only be adjusted based on load but also by the percentage of coal being fired. If a boiler is burning natural gas or other clean fuel during a certain operation al period, sorbent injection may not be necessary. Therefore, additional flexibility needs to be allowed where justified, based on fuel and operational requirements.

Response: As stated above, we have made revisions to the final r ule to address this comment. See the response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 22.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 33

Comment: An allowance for operating parameter limit variation due to CISWI unit load fraction is also applicable to all CISWI units and operatio n parameters. Variations with load and other operating conditions also occur for other operating pa rameters, such as wet scrubber pressure drop, pH, liquid flow rate, electrostatic precipitator voltage and secondary amperage. Flue gas flow rate and characteristics vary over load an d with other operating variables such as fuel quality, to the extent that the single hourly avera ge value determined during the high load steady state performance test will not apply to other co nditions if overall performance is optimized. EPA should provide an allowance for any operati ng parameters to vary with unit load fraction as applicable to the operating parameter and speci fic affected source, and recognize that those operating parameters do not necessary vary in a li near relationship with load, for example, pressure drop, which typically varies with flow.

Response: We have made adjustments for sorbent injection as d iscussed above. See the response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 22. We disagree tha t a similar allowance is necessary for all other operating paramet er limits, as they do not pose the same operational issues as sorbent injection does. We note th at a source may retest and re-establish new operating parameter limits, as specified in §60.2160 and §60.2725.295

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 47

Comment: The CISWI rules require development of operating param eter limits (OPLs) based on the values achieved during the performance test. In many cases, these levels will be appropriate only for certain modes of operation. For exa mple, the absolute sorbent injection rate observed during the performance test conducted under full l oad and using the worst case fuel mix will not correlate to the sorbent injection rate n ecessary during startup or periods of lower load. Frequently, sorbent injection rates are set using a feedback loop from a CEMS or CPMS to avoid wasting sorbent. EPA has acknowledged in the Boil er MACT that the sorbent injection rate will vary with load, which allows sources to adjus t the sorbent injection rate by a load fraction. However, as the fuel/waste mix during the initi al performance test may differ from the typical day to day fuel/waste mix, EPA should also allo w adjustments to sorbent injection rates based on fuel mix. For example, if an ERU is capable o f burning both coal and biomass and tested at 100% coal firing for the mercury performance tes t, the carbon injection rate for periods of normal operation should not only be adjusted based on load, but also by the percentage of coal being fired. If a boiler is burning natural gas or other clean fuel during a certain operational period, sorbent injection is not necessary.

Response: We have made adjustments for sorbent injection as d iscussed above. See the response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 22.



### 2T. Miscellaneous Typographical Errors and Rule Language Corre ctions

Commenter Name: Felix Mestey, Chair, on behalf of Donald R. Schregar dus, Environment Deputy Assistant Secretary of the Navy Commenter Affiliation: Clean Air Act Services Steering Committee, Departmen t of Defense (DoD) Document Control Number: EPA-HQ-OAR-2003-0119-2568-A1 Comment Excerpt Number: 2

Comment: Where appropriate, the definitions in the 40 CFR part 60 s ubparts CCCC and DDDD should be identical.

Discussion

There are slight differences in some of the definitions in 40 CFR part 60 subparts CCCC and DDDD. While some definitions such as those that referen ce specific provisions in the respective subparts will differ, most should be identical. Having id entical definitions will minimize the need to duplicate definitions when summarizing these rules. The following are recommended changes to definitions that should be identical.

In subpart CCCC:296

Chemical recovery unit means combustion units burning materials to recover chemical constituents or to produce chemical compounds where there is an existing com mercial market for such recovered chemical constituents or compounds. A chemical recov ery unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, r emote incinerator under this subpart. The following seven types of units are considered chemical recovery units:

(1) Units burning only pulping liquors (i.e., black liquor) that are reclaim ed in a pulping liquor recovery process and reused in the pulping process.

(2) Units burning only spent sulfuric acid used to produce virgin sulfuric acid.

(3) Units burning only wood or coal feedstock for the production of charcoal.

(4) Units burning only manufacturing byproduct streams/residue containing catalyst metalswhich that are reclaimed and reused as catalysts or used to produce commercial grade catalysts.

(5) Units burning only coke to produce purified carbon monoxide that is used as an intermediate in the production of other chemical compounds.

(6) Units burning only hydrocarbon liquids or solids to produce hydrogen, carbon monoxide, synthesis gas, or other gases for use in other manufacturing processes.

(7) Units burning only photographic film to recover silver. Incinerator me ans any furnace used in the process of combusting solid waste (as that term isdefined by t he Administrator u nder in 40 CFR part 241) for the purpose of reducing the volume of the waste by remov ing combustible matter. Incinerator designs include single chamber and two-chamber. Soil tre atment unit means a unit that thermally treats petroleum-contaminated soils for the sole pur pose of site remediation. A soil treatment unit may be direct-fired or indirect fired. A soil treatment unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.

In subpart DDDD:

Energy recovery unit means a combustion unit combusting solid waste (as that term is defined by the Administrator under the Resource Conservation and Recovery Act in 40 CFR part 241) for energy recovery. Energy recovery units include units that would be con sidered boilers and process heaters if they did not combust solid waste.

Energy recovery unit designed to burn liquid waste materials and gas (Liquid/ gas) means an energy recovery unit that burns a liquid waste with liquid or gaseous fue ls not combined with any solid fuel or waste materials. Energy recovery unit designed to burn solid materials (Solids ) includes energy recovery units designed to burn coal and energy recovery units designed to burn biomass.

Incinerator means any furnace used in the process of combusting solid waste (as the that term is defined by the Administrator in 40 CFR part 241) for the purpose of reducing t he volume of the waste by removing combustible matter. Incinerator designs include single chamber and twochamber.297

Modification or modified CISWI unit means a CISWI unit that has been changed lat er than June 1, 2001, and that meets one of two criteria: (1) The cumulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building and installing the CISWI unit (not including the cost of land) updated to current costs (current dollars). To determine what systems are within the boundary of the CISWI unit used to calculate these costs, s ee the definition of CISWI unit. (2) Any physical change in the CISWI unit or change in the met hod of operating it that increases the amount of any air pollutant emitted for which Clean Air Act section 129 or section 111 of the Clean Air Act has established standards. Solid waste incineration unit means a distinct operating unit of any facility which combusts any solid waste (as that term is defined by the Administrator in 40 CFR part 241) waste material from commercial or industrial establishments or the general public (including single and multiple residences, hotels and motels). Such term does not include incinerators or other units required to have a permit under section 3005 of the Solid Waste Disposal Act. The term ‘‘solid waste incineration unit’’ does not include: (A 1 ) m

M aterials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose of recovering metals, ; (B 2 ) q Q ualifying small power production facilities, as defined in section 3(17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying cogeneration facilities, as defined in section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous waste (such as units which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes, ; or (C 3 ) a A ir curtain incinerators provided that such incinerators only burn wood wastes, yard wastes, and clean lumber and that such air curtain incinerators comply with opacity limitations to be established by the A dministrator by rule.

Recommendation: Change the definitions identified in the discussion as appropriate.

Response: The suggested edits have been incorporated into the fina l rule.

Commenter Name: Arthur Marin Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM) Document Control Number: EPA-HQ-OAR-2003-0119-2592-A1 Comment Excerpt Number: 1

Comment: Inconsistencies between the Area Source Rule, Major Source Rule, and CI SWI Rule Definitions

The EPA is proposing several definitions in the area s ource boiler rule, major source boiler rule (both under consideration separately), and CISWI rule th at are designed to clarify the applicable fuels under the appropriate section of the Clean Air Act regulating a combustion device (i.e., Section 112 or 129). NESCAUM notes that there are inconsis tencies between the area source rule, major source rule, and CISWI rule, and requests tha t the EPA harmonize the definitions between the rules so there is no ambiguity as to which rule a source is subject. For example, the following definitions for liquid fuel are inconsistent bet ween the three rules:298

1. In the proposed area source boiler rule, liquid fuel is defined as follows: Liquid fuel includes, but is not limited to, distillate oil, residual oil, any f orm of liquid fuel derived from petroleum, on-spec used oil, liquid biofuels, biodiesel, and vegetable oi l.

2. In the proposed major source boiler rule, liquid fuel is defined as follows:

Liquid fuel includes, but is not limited to, distillate oil, residual o il, onspec used oil, biodiesel and vegetable oil.

3. Under the CISWI and NHSM rules, liquid fuel is classif ied under “traditional fuel” as follows (excerpted as noted):

Traditional fuels means materials that are produced as fuels and are unused pro ducts that have not been discarded and therefore, are not solid wastes, including: (1) ... fossil fuels (e.g., coal, oil and natural gas)...; and (2) alternative fuels developed from vir gin materials that can now be used as fuel products, including used oil which meets the speci fications outlined in 40 CFR 279.11.... NESCAUM understands that all of these definitions are intended to encompass all non-waste liquid fuels that the EPA has deemed to be traditional fuels when burned in a combustion device and should be regulated under Section 112. N ESCAUM recommends that the definitions be harmonized to all say the same thing (i.e., reference 40 CFR 279.11 for defining used oil) to the extent possible and list the same example s (i.e., list liquid biofuels and vegetable oil in all three definitions).

Response: We are not implementing the commenter's suggested chan ge for the CISWI rule. The liquid fuel definitions in the boiler rules are out of scope to this CISWI rulemaking. Moreover, CISWI does not contain separate subcategories for various types of liquid fuels, but does distinguish between solid energy recovery units and t hose burning only liquids or gases.

Commenter Name: Arthur Marin Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM) Document Control Number: EPA-HQ-OAR-2003-0119-2592-A1 Comment Excerpt Number: 2

Comment:

NESCAUM believes that new EPA rules affecting the viabi lity of alternative fuels must be carefully crafted to be flexible enough to accommodate n ew alternative fuels. As new fuels gain popularity, NESCAUM recommends that the EPA develop clea r guidance in the rules to encompass future alternative fuels.

For example, some NESCAUM states have seen increased interest in use of re-refined oil. Provided that re-refined oil meets the contaminant limit s detailed in 40 CFR 279.11 (e.g., 4,000 ppmw of total halogens, which are typically higher in re- refined oil than in traditional oil), then it should meet the definition of “used oil” (a “tradition al fuel” under the CISWI rule) rather than solid waste. While individual sources can request a formal determination, the NESCAUM states suggest that the definition of used oil be clearly defined i n the CISWI rule (as well as the area and major source boiler rules) to include used or re-refined oil that meets the specifications299

outlined in 40 CFR 279.11. Clarity and consistency between the rules will reduce confusion and will treat alternative fuels fairly.

Response: EPA reiterates the following positions from the Marc h 2011 final rule (76 FR at 15502):

1) Used oil meeting the specifications in 40 CFR Part 279.11 ( i.e., on-specification used oil) is a traditional fuel, as defined in § 241.2, and is not required to m eet the legitimacy criteria. Contaminant comparisons are therefore unnecessary.

2) Since the regulations under CAA section 129 do not current ly establish emission limits for space heaters, used oil combusted in an oil-fired space h eater that meets the provisions of 40 CFR 279.23 need not be tested to establish whether or not such oil is on or off-spec, and contaminant comparisons are therefore unnecessary. Thi s includes used oil generated by small facilities such as auto repair shops and machine shops that h ave such units, and used oil generated by homeowners who change their own oil (referr ed to as "do-it-yourself" of "DIY" oil) that is burned in such units.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 10

Comment: 60.2145(v) specifically identifies the use of a bypass stac k at any time as a deviation for PM, HCl, Pb, Cd, Hg, NO X , SO 2 and dioxin/furans. While 60.2875 defines “bypass” for subpart DDDD, subpart CCCC does not appear to contain a defi nition. Many cement kilns utilize alkali bypass systems, but their purpose is to remove high alkali material from the process, not to prevent damage to the APCD or other equipment. It would th en appear that under DDDD, an alkali bypass would not meet the definition of “bypass” as it is used in DDDD. It is nuclease however what is intended by CCCC. This must be corrected , as alkali bypass systems are necessary in some areas to produce Portland cement mee ting quality standards.

60.2165(p) requires use of a device that measures the use of a bypa ss stack. This is unnecessary for an alkali bypass stack as previously discussed in these comments. 60.2175(q) requires records that record the use of a bypass. 60.2220(c)(2) – Cemen t kilns with alkali bypass systems operate with use of the bypass in order to produce quality low alkali cement, with use of the bypass as a normal operating condition. As such, no “corre ctive action” for this normal operating condition is necessary, nor is it a “deviation” that should be reported as such in the “deviation” report. This provision should be clarified such that it does not include normal operation of an alkali bypass on a waste burning kiln.

60.2265 – The term “bypass” is narrowly defined to only those devi ces that are used to avoid severe damage to air pollution control device or other equi pment. We support this definition, but request that it be specified that sources with bypass sys tems designed for product quality purposes are not deemed “bypass stacks” under the CISWI provisi ons. Cement kilns with alkali bypass systems (including air pollution control devices) are used to produce low alkali cement300

products, not used to prevent equipment damage. This distinction should be clearly recognized and allowed for in the rules.

60.2670(a) – See discussion on bypass stacks [above].

Response: To begin with, we note that the term “bypass stack” is also defined in 60.2265 in subpart CCCC, as found at 76 FR 80501. As we clarify in sec tion II.D of the preamble to the final rule, the definition of “bypass stack” does not have the same meaning as an “alkali bypass” used by some waste-burning kilns that manufacture Portland ce ment. Therefore, the measurement device requirements and deviation reporting provis ions that apply to bypass stacks do not apply to normal operation of an alkali bypass system o n a waste-burning kiln. However, we do want to clarify that an alkali bypass stack that ven ts to the atmosphere is considered a CISWI unit vent and, as specified in 60.2105(a) and 60.2760(a), must m eet the emission limitations for the CISWI unit.

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA-HQ-OAR-2003-0119-2573-A2 Comment Excerpt Number: 5

Comment: Some cement plants may have an "alkali bypass" as i t relates to meeting product specifications. Generally, the alkali bypass handles 5 — 15% of the kiln system's gas flow in order to withdraw enough dust which allows for the process c ontrol of excess alkali material_ Without exception, these "bypass systems" are all contr olled for PM. As a point of clarification, EPA should note that the CISWI reference to bypass stac ks does not apply to the cement industry.

Response: Please see section II.D of the preamble to the final rule and the response to EPA-HQOAR-2003-0119-2576-A1 excerpt 10.

Commenter Name: Felix Mestey, Chair, on behalf of Donald R. Schregar dus, Environment Deputy Assistant Secretary of the Navy Commenter Affiliation: Clean Air Act Services Steering Committee, Departmen t of Defense (DoD) Document Control Number: EPA-HQ-OAR-2003-0119-2568-A1 Comment Excerpt Number: 3

Comment: Change the definitions identified in the discussion as appropriate.

3. Corrections

During review DoD identified the following typographical erro rs. Correct as necessary.

Subpart CCCC

• Tables 6 and 7: EPA deleted most of the specified span val ues throughout the tables, presumably because the test methods identify span gas param eters. The few that remain should301

probably be deleted also. In Table 6, Carbon Monoxide row, 4th column, delete “Use a span gas with a concentration of 300 ppm or less for liquid/gas boilers and coal-fed boilers.” In Table 7, Oxides of Nitrogen row, 4th column, delete “Use a span value of 400 ppm.” In Table 7, Sulfur Dioxide row, 4th column, delete “Use a span gas value of 260 ppm.”

Subpart DDDD

• §60.2710(w): Change “an” to “a” prior to “Carbon Monoxide CEMS...”

• Tables 6, 7 and 9: In the Mercury rows, in the 3rd column , the table footnote letter following “ASTM D6784-02 (Reapproved 2008)” is incorrect. It should be the same footnote letter that is shown in the 4th column.

• Table 8: EPA deleted most of the specified span values th roughout the tables, presumably because the test methods identify span gas parameters. Th e one that remains should probably be deleted also. In the Oxides of Nitrogen row, 4th column, delete “Use a span gas with a concentration of 1000 ppm or less.”

Response: The suggested edits have been incorporated into the fina l rule.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI ) Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1 Comment Excerpt Number: 11

Comment: CRWI believes that the language of §§ 60.2210(m) and 60.2770(m) con tradict the language of §§ 60.2170(c) and 60.2735(c) as it relates to reporting. T he text of §§ 60.2210(m) and 60.2770(m) require reporting of out-of-control periods for mo nitoring systems as if they are deviations, while the text of §§ 60.2170(c) and §60.2735(c) says that these periods are not deviations. CRWI requests revisions to §§ 60.2210(m) and 60.2770(m) so they do not contradict §§ 60.2170(c) and 60.2735(c).

Response: We disagree with the commenter's interpretation tha t these provisions contradict one another. Paragraph 60.2170(c) provides the necessary detail f or determining deviations due to failure to collect data. The periods that are not consid ered to be deviations are clarified in 60.2170(c). The requirement to report these deviations for f ailure to collect data is specified in 60.2210(m). A similar construct is used in subpart DDDD.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 21

Comment: 60.2265 The Raw Mill definition should be rephrased as follo ws “Raw

Mill means a ball and or tube mill...”.302

Response: We have made the suggested edit.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 22

Comment: Tables 1 and 5 and 6 differ in the sample collection vo lume for dioxin sampling (2 m3 vs. 4 m3 minimum). It is unclear if this was intentio nal (and if so, the reason should be explained).

Response: We have revised these in the final rule. The required sample volume for dioxin sampling for waste-burning kilns is 4 cubic meters.

Commenter Name: Patricia Buonviri Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ) Document Control Number: EPA-HQ-OAR-2003-0119-2580-A1 Comment Excerpt Number: 4

Comment: Both 60.2145(x) and 60.2165(r) refer to "paragraphs (1) through (5) of this section ... ",

but in both sections, only paragraphs (1), (3) and (4) appear. Please revise the numbering as appropriate.

Response: These rule sections have been revised. The numbering e rror identified by the commenter has been corrected.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 50

Comment: There are Discrepancies Between the Preamble and the Re gulatory Text
Two discrepancies exist between the emission limit table s provided in the preamble and the emission limit tables provided in the rules.

1) Existing Liq/Gas ERU Hg: Preamble Table 1 [76 Fed. Reg. 80457]: 0. 0031 mg/dscm

vs
Table 7 [76 Fed. Reg. 80527]: 0.031 mg/dscm

1) New Incinerator D/F(Total): Preamble Table 2 [76 Fed. Reg . 80457]: 0.058 ng/dscm

vs303

Table 5 [76 Fed. Reg. 80504]: 0.58 ng/dscm

The coalition assumes the lower values given in the pre amble tables are correct.

Response: These have been corrected in the final rule. The exist ing liquid/gas ERU Hg limit is 0.031 mg/dscm and 0.58 ng/dscm is the new incinerator D/F total m ass basis limit.

Commenter Name: Patricia Buonviri Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ) Document Control Number: EPA-HQ-OAR-2003-0119-2580-A1 Comment Excerpt Number: 1

Comment: The preamble and 60.2165(n) describe PM CEMS as optional for E RUs >250 MMBtulhr. However

, Table 6 still seems to require PM CEMS for ERUs > 250 MMBtulhr. V ADEQ recommends EPA amend Table 6 to specify that PM CEMS are optional for ERUs> 250 MMBtulhr.

Response: This oversight has been corrected and the PM CEMS re quirements have been revised. Please see section II.E of the preamble to the final rule for more details.

Commenter Name: Patricia Buonviri Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ) Document Control Number: EPA-HQ-OAR-2003-0119-2580-A1 Comment Excerpt Number: 2

Comment: The way 60.2165(r) currently reads, it appears that " other " ERUs (presumably <250 MMBtu/hr) are allowed to operate a 2165(r) compliant PM CPMS instead of other CMS monitoring for PM compliance (baghouse leak detectors, e tc.). However, that same allowance does not appear to be available to ERUs with heater capa cities greater than or equal to 250 MMBtu/hr and that non-"other" ERUs have to operate both t he 2165(r) CPMS as well as the appropriate control technology specific PM CMS. V ADEQ sees no reason why ERUs >2 50 MMBtu/hr should be required to maintain both types of PM mo nitoring systems and recommends EPA adjust the language in 60.2165(r) language to clarify that only PM CPMS is required.

Response: The PM CEMS provisions have been changed since proposal, and the commenter's issue has been addressed as part of this change. See sectio n II.E of the preamble to the final rule for more details on continuous PM monitoring requirement s.

Commenter Name: Michael D. Stevens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2596-A1 Comment Excerpt Number: 3304

Comment: National Cement notes that the proposed language in 60.2710 ( n) and 60.2710 (o) is identical and this may mean that some provision has been omitted. We request that this be corrected.

Response: This has been corrected in the final rule.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 17

Comment: EPA should correct repetitive language in the rule: P CA notes that the proposed language in 60.2710 (n) and 60.2710 (o) is identical and this may mean that some provision has been omitted. We request that this be corrected.

Response: This has been corrected in the final rule.

Commenter Name: Patricia Buonviri Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ) Document Control Number: EPA-HQ-OAR-2003-0119-2580-A1 Comment Excerpt Number: 3

Comment: To demonstrate continuous compliance, 60.2165(h) allows a facility to substitute use of a PM CEMS in lieu of conducting the PM annual perfor mance test and monitoring the minimum pressure drop across the wet scrubber, if applic able. VADEQ recommends that the reference to a "wet scrubber" in 60.2165(h) be broadened to inc lude monitoring parameters for other types of PM air pollution control devices such as v oltage and amperage of collection plates for electrostatic precipitators.

Response: We disagree with providing the same allowance for wet scrubbers, as these may also be used for acid gas control in addition to particulate m atter.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 30

Comment: CIBO asks EPA to confirm that the boiler size thres hold for determination of whether or not a PM CPMS must be installed is the ave rage annual heat input, i.e., annual heat input divided by the number of actual operating hours in the yea r. Similar to the Utility MATS rule, CIBO suggests that this value be determined using three consecutive years beginning after the compliance date to determine average annual heat input.

Response: We have confirmed that the PM CPMS size threshold fo r energy recovery units is based on the annual average (or average annual) heat input, but disagree on determining this305

value using three consecutive years after the compliance date as the commenter suggests. "Average annual heat input" is defined in the rule and speci fies what this value means.



### 2Z. Unaddressed comment claims

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA-HQ-OAR-2003-0119-2615-A1 Comment Excerpt Number: 1

Comment: Lafarge wants to object to the fact that EPA has limited comments to only those issues specifically identified in the December 23, 2011 notic e. We refer to PCA’s comments for greater detail, but Lafarge believes that several of th e issues which were commented on in our August 3, 2010 NHSM and August 23, 2010 CISWI comments were not fully addressed and require additional discussion. In addition PCA and Lafa rge both filed petitions for new rulemaking (on June 16 and June 17, 2011 respectively, to amend th e NHSM rule, and EPA has yet to respond to, or take any action on those petitions (other than the contained gas issue, as discussed below). We recognize that comments Lafarge, PC A, and others previously filed on the June 2010 CISWI and NHSM proposals will remain part of the r ecord for judicial review via the pending judicial petitions for review now being held in abey ance in the D.C. Circuit. Once EPA issues the new NHSM and CISWI rules in final form, part ies may file new judicial petitions for review which can then be consolidated with the current judicial petitions. The cases filed on the original and amended rules can then proceed to briefing and argument, and parties would then be able to raise before the Court any issues raised in the pr ior rulemakings. We believe, however, that EPA’s attempt to limit the scope of public comments is inappropriate in the situation of the pending CISWI and NHSM rules. We recognize that EPA often limits public comments to newly proposed provisions of already-final rules. However, thi s usually is done in situations in which EPA proposes changes to final rules that have been effec tive and in force for several years. The current CISWI and NHSM situations are entirely differe nt. Neither rule has yet been implemented or undergone judicial review – rather, EPA ha s proposed major changes right out of the box. Moreover, the administrative petitions fo r new rulemaking Lafarge and PCA filed months ago – if acted upon – could further dramatically change the NHSM solid waste universe. But despite the fact that EPA is mandated under RCRA to ta ke action on such petitions within a reasonable time (RCRA § 7004(a)), EPA’s NHSM re-proposal m akes no mention of Lafarge’s and PCA’s petitions and does not – with the exception of t he “contained gaseous material” issue discussed below – address the issues we raised. In addition , for both the CISWI and NHSM rules, changes that EPA is now proposing are closely re lated to and may significantly affect provisions of the rule for which EPA is not currently pr oposing changes. It is arbitrary and impractical to dissect these complex rules in such a d isjointed manner by making some interrelated provisions out-of-bounds for further consideratio n. Lafarge believes that in this situation, it is appropriate for parties to re-submit comments filed o n the original proposal and to submit comments included in administrative petitions which EPA h as thus far ignored. Lafarge believes EPA should consider and respond to these comments as well as our current comments if it is purporting to engage in reasoned decision making.306

Response: In the proposed rulemaking, EPA clearly stated it would only open up further opportunity to comment on the issues identified in the pro posal. In addition, we provided responses to certain comments that petitioners indicate d were not responded to in the 2011 final rule. The commenter has not provided any specific comme nts to which they believe have been ignored, either to the CISWI rule or the NHSM rulemak ing. Therefore, we are unable to assess the merits of their argument.

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA-HQ-OAR-2003-0119-2615-A1 Comment Excerpt Number: 8

Comment: Lafarge also notes there are many additional ambiguiti es in the current CISWI regulations relating to the issue of how and when an exis ting CISWI source may trigger new source status. PCA submitted extensive comments on these issues in the first round of CISWI rulemaking, and in its final CISWI rulemaking of March 21, 2011, EPA simply failed to respond to the comments. On January 17, 2012, PCA re-submitted these c omments in connection with the current rulemaking and called EPA’s attention to the f act that EPA had previously failed to respond to them. We strongly encourage EPA finally to res pond to these comments and provide the necessary clarifications, as they involve critica l implementation issues.

Response: This particular comment deals with the issue of modif ication and new source applicability. This has been addressed elsewhere in the response to comment document.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 39

Comment: NACAA has reviewed EPA’s Response to Comments submitted in the 2011 rulemaking. We recognize that responding in detail to the many thousands of comments received in that rulemaking would be an enormous undertaking. As a cons equence, however, EPA has not provided a meaningful response to most of the comments submitt ed by NACAA. This makes it difficult to advance the issues that carry forward fro m that rulemaking to the present activity.

Response: We believe that under the proposed rulemaking we addressed c omments submitted under the 2011 rule that petitioners indicated the Agency did not respond. The commenter did not specify which comments they refer to, so we cannot determine whether their assertions have merit.



### 3A. Costs: Control Technology Cost Assumptions

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al.307

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 12

Comment: We are very concerned that the proposed standards will cost much more to implement than EPA predicts. EPA’s cost analyses are discussed in the ERG memorandum “Compliance Cost Analyses for CISWI Units” (November 10, 2011)[EPA-HQ-OAR-2003-0119- 2552]. EPA has estimated an installed capital cost for add-o n control equipment of $517 million for ERUs, but we believe the cost will be closer to $643 m illion. A difference of this magnitude (nearly 25 percent) is very meaningful any time, but particu larly during times like now when economic conditions are difficult and there is fierc e competition for funding. The methodology used to develop these cost estimates, which were developed by AF&PA, was discussed in AF&PA’s comments on the proposed rules.

EPA’s CO cost analysis for ERUs is clearly flawed. F or liquid/gas-burning units, a tune-up was assigned for units under 36 ppmvd, advanced combustion controls (linkageless boiler management system) for units in the 36 to 96 ppmvd range, and a CO oxidation catalyst for units over 96 ppmvd. For biomass-burning units, a tune-up was assigned fo r units under 735 ppmvd, advanced combustion controls (linkageless boiler managemen t system) for units in the 735 to 1,960 ppmvd range, and a CO oxidation catalyst for units over 1,960 ppmvd. For coal-burning units, a tune-up was assigned for units under 69 ppmvd, advanced comb ustion controls (linkageless boiler management system) for units in the 69 to 184 ppmvd range, and a CO oxidation catalyst for units over 184 ppmvd.

There are several problems with this analysis. First, i nstallation of a combustion control system will not be sufficient to reduce biomass ERU CO emission s below 490 ppm from levels up to 1960 ppm. There are many factors that cause high CO emission s, and often combustion air and fuel delivery system retrofits are necessary to reduce C O emissions, at costs exceeding $500,000. Second, EPA has not shown that CO catalysts can be i nstalled on biomass ERUs and achieve reductions from above 1960 ppm CO to below 490 ppm CO. EPA has a lso not considered the impact of reheating the stack gas to the temperature window in which a CO catalyst will be effective in controlling emissions in its analysis. Th ere are also trade-offs between CO and NO X emissions that need to be considered when determining the a ppropriate CO emissions reduction strategy. This is particularly important under § 129, where both CO and NO X are expressly required to be regulated.

Response: EPA established the final standards consistent with the requirements of the CAA and sources must determine whether to install controls to com ply with the final standards, cease combusting solid waste and comply with any otherwise app licable section 112 standards, or cease operations. The commenter has not demonstrated that the final standards are unachievable, instead focusing on the costs of compliance. However, E PA is prohibited from considering costs when determining the minimum standards (i.e. MACT floor l imit) for each pollutant, and EPA established the final standards based on the MACT floor le vel of control. Regarding the inverse relationship between CO and NO X with regard to combustion control, it is incumbent upon the CISWI facility to determine whether combustion conditi ons can be adjusted to meet both standards and, if not, install add-on NO X controls as necessary. Lastly, this is a limited reconsideration, and cost methodology is considered out of scope to this rulemaking.308



### 3E. Economic Impacts

Commenter Name: Edward J. Wilusz Commenter Affiliation: Wisconsin Paper Council Document Control Number: EPA-HQ-OAR-2003-0119-2582-A2 Comment Excerpt Number: 2

Comment: Further, the proposed regulation of secondary materials as biomass-based energy appears to be more stringent than regulations in place anywhere else in the world. This will create a competitive disadvantage for pulp and paper mills in Wisconsin and throughout the United States. Wisconsin has seen the closure of seven mills and the loss of 20,000 papermaking jobs in the past dozen years. Our state cannot afford f urther mill and job losses.

Response: See the Regulatory Impact Analysis: Standards of Perf ormance for New Stationary Sources and Emission Guidelines for Existing Sources: Co mmercial and Industrial Solid Waste Incineration Units and the Final Reconsideration Complia nce Cost Analyses for CISWI Units in the docket.

Commenter Name: Edward J. Wilusz Commenter Affiliation: Wisconsin Paper Council Document Control Number: EPA-HQ-OAR-2003-0119-2582-A2 Comment Excerpt Number: 3

Comment: EPA must recognize that energy is a commodity and par t of the raw materials used by industry to create products. By proposing standards that a re not achievable, EPA fails to take account of the energy marketplace and the competitive ne eds of U.S. manufacturers. Manufacturers need regulators to partner with them to ma intain competitive – and clean – industries that can thrive in the future.

We urge EPA to make significant changes to the proposed CIS WI rule, as well as the definition of non-hazardous secondary materials and the industrial boiler MACT rule, that will result in achievable standards that protect the competitiveness of U. S. manufacturers.

Response: EPA established the final CISWI standards consistent w ith the statute. Under the statute, EPA is required to establish the standards at a level that is achieved by the best performing source or sources and EPA does not have discreti on to consider costs when establishing the minimum level of control, or MACT flo or, which all of the CISWI limits reflect. See the Regulatory Impact Analysis: Standards of Perfor mance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units and the Final Reconsideration Compliance Cost Ana lyses for CISWI Units in the docket.



### 3G. Secondary Impacts

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al.309

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 11

Comment: If facilities with boilers, kilns, and incinerators bur ning solid waste cannot achieve the limits and cannot afford to install the multiple, co stly controls required by this rule, they will stop burning these valuable secondary materials and many of t hese materials will be disposed in landfills, thus increasing greenhouse gas emissions and incr easing our reliance on fossil fuels. This is not the intent of the Clean Air Act or the R esource Conservation and Recovery Act, nor is it consistent with the goals of the President and Congr ess in steering our country toward greater use of alternative fuels.

Response: EPA established the final standards consistent with the requirements of the CAA and sources must determine whether to install controls to com ply with the final standards, cease combusting solid waste and comply with any otherwise app licable section 112 standards, or cease operations. The commenter has not demonstrated that the final standards are not achievable, instead focusing on the costs of compliance. However, EPA is prohibited from considering costs when determining the minimum standards (i .e. MACT floor limit) for each pollutant, and all of the CISWI limits were established at the MACT floor level of control. The EPA has updated the estimated secondary impacts associate d with this rule based on the revised inventory of units and emission limits.

Commenter Name: Lisa P. Higgins Commenter Affiliation: Maine Department of Environmental Protection (DEP) Document Control Number: EPA-HQ-OAR-2003-0119-2641-A2 Comment Excerpt Number: 2

Comment: The EPA and all states, including Maine, have goals to c onserve resources and to maximize the diversion of materials from disposal. Th e Maine DEP is concerned that the effect of the proposed solid waste definition and CISWI standards will be diversion of pulp and paper mill sludge from its current combustion in boilers to dis posal in landfills. Emission tests have shown no significant differences in emissions with or without the combustion of these residuals in boilers. Dewatered sludge has net energy value as a usa ble form of fuel, and provides a valued source of energy to the mills. This material has been l icensed by the Maine DEP as a boiler fuel for many years and received beneficial use determinatio ns. The Maine DEP estimates that regulation of boilers combusting paper mill sludge under the CISWI standards will at least double the mills' landfill capacity needs. Increased la ndfilling of sludge will increase production of methane, a powerful greenhouse gas. Maine has aggressi ve statutory greenhouse gas emission reduction goals to eventually achieve 75 to 85 % reductions from 2003 levels. Increasing the landfill disposal rate of pulp and paper mill sludge, thereby increasing the production of methane gas, is counter-productive to this effort. Maine recommends that EPA categorically exempt boilers combusting Pulp and Paper mill sludge from the CISWI standards.

Response: The characterization of a secondary material as either a waste or non-waste is beyond the scope of the CISWI rulemaking. The CISWI regul ations apply to units that combust solid wastes. To the extent that the units described by the commenter combust solid waste and meet the definition of a CISWI unit, they are subject to regulation under the CISWI rule. The310

commenter primarily discussed issues that are being dealt with within the Identification of NonHazardous Secondary Materials That Are Solid Waste rulem aking (NHSM). To the extent that the commenter has provided these comments to that rulema king, they will be addressed there. EPA established the final standards for CISWI units consist ent with the requirements of the CAA and sources must determine whether to install controls to comply with the final standards, cease combusting solid waste and comply with any otherwise app licable section 112 standards, or cease operations.



### 3Z. Other

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2 Comment Excerpt Number: 1

Comment: CEMEX believes that the public perception of our kilns be ing classed as “incinerators” under the CISWI rules will be perceived as n egative, and is not a productive outcome of the rule applicability. CEMEX has worked wit h the local communities surrounding our facilities and has built a positive public image. Howev er, we are very concerned that could change should CEMEX’s kilns become known as incinerators , and we stand to lose the progress on community trust that is key to our operations. The emis sions limitations contained in the CISWI regulations for waste burning kilns, and those found i n the Portland cement NESHAP regulations are not significantly different. Regulating non-hazardous waste burning kilns under the NESHAP instead of the CISWI rules will not result in any significant differences in the environmental impacts from the facilities. Therefore, C EMEX feels strongly that we should be allowed to remain known as cement plants regulated under P C NESHAP while fulfilling our commitment to sustainability by reducing CEMEX’s use of tradi tional fossil fuels and raw materials and emissions of CO 2 . Our cement plants in the U.S. do not want to be in t he position of not being able to keep pace with our plants outside of th e U.S. when it comes to implementing our corporate sustainability goals due to the possibility of misapplied regulation.

Response: The EPA has defined kiln to include cement kilns that produce clinker by heating limestone and other materials for the production of Port land Cement. Kilns that burn solid waste are therefore considered to be “waste-burning kilns” subje ct to regulation under the CISWI rule. We disagree with the commenter’s assertion that CISW I regulations would be misapplied to cement kilns that are combusting solid wastes. CAA sec tion 129(g)(1) defines any unit combusting any solid waste as a solid waste incineration unit, subject to 4 exemptions, and cement kilns combusting solid waste are not among the exem pt units. Finally, any public image ramifications due to solid waste combustion in waste-burni ng kilns are outside the scope of this regulation.311



### 5F. Regulatory Flexibility Act as Amended by the Small Busi ness Regulatory Enforcement Fairness Act (RFA) of 1996 SBREFA), 5 U.S.C. 601 et Seq.

Commenter Name: Dan Bosch Commenter Affiliation: National Federation of Independent Business (NFIB) Document Control Number: EPA-HQ-OAR-2003-0119-2574-A2 Comment Excerpt Number: 1

Comment: Regulation affects small businesses in a substantiall y different way than it does large businesses. When a large business needs to comply with a new regulation, it designates its regulatory compliance officer – or officers – with the task. These individuals know their way around regulatory technicalities that most lay persons do not easily understand.

For the small-business owner, there is no regulatory c ompliance officer. This burden falls squarely on the owner, who, more times than not, is res ponsible for everything from ordering inventory and hiring employees, to taking out the trash at the end of the day. And while they may be expert in their craft, comprehending regulations, form alizing plans for their implementation and filling out paperwork is an extremely burdensome exerc ise.

Even beyond the significant time regulations take away from a small-business owner trying to make a living, the per-employee cost of regulation is si gnificantly greater for small businesses. The U.S. Small Business Administration’s Office of A dvocacy released a study in 2010 that showed the smallest businesses – those with fewer than 20 employees – spend 36 percent more per employee per year complying with federal regulations 1 . Alarmingly, that disproportionality increases to 364 percent when it comes to environmental regu lation. These findings do not suggest that all regulation is bad or unnecessary, but rathe r clearly demonstrate that agencies need to take extra care to make sure their regulations ar e well-reasoned and flexible. Without such flexibility, the ability of small businesses to grow and create jobs is severely inhibited.

This regulatory scheme is among the most complex in re cent memory and as such, the compliance burdens presented by these rules are vast. Sma ll-business owners will need to spend significant time to attempt to understand these rules, make expenditures to expensive consultants to bring the facility up to compliance, and greatly incre ase the amount of time he or she spends on paperwork compliance. The result will have serious and harmful consequences for the small businesses forced to comply with these rules.

NFIB suggests that to improve these rules further, the EP A should adopt the suggestions the small-entity representatives provided the agency during the Small Business Advocacy Review (SBAR) panel held in 2009. Though some of these suggestions have been proposed, such as additional subcategories for boilers, other recommendat ions have not been proposed that we believe would lessen the compliance burden for small bu sinesses. These recommendations include:

• Allowing facilities meeting the SBA definition of a sma ll business to have reduced and less frequent monitoring, testing and reporting requirements;312

• Allowing facilities to use work practice standards rath er than emission limits for additional pollutants;

• Adopting health-based compliance options in areas wher e there is no significant risk to nearby residents;

• Requiring annual boiler tune-ups as a way to improve boile r efficiency instead of emissions standards; and

• Exempting area sources from Title V permitting requireme nts.
Response: To begin with, it appears that the commenter suggests recommendations that are applicable primarily to industrial boilers subject to the NESHAP. For CISWI, the EPA has estimated that the impacts of the final CISWI rule on small entities will be small. For further explanation, see Chapter 4 of the “Regulatory Impact A nalysis: Standards of Performance for New Stationary Sources and Emission Guidelines for Exist ing Sources: Commercial and Industrial Solid Waste Incineration Units” in the CISWI docket.



### 7A. Applicability/Regulated Entities

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 20

Comment: 60.2265 – The definition of “small remote incinerator” re lies upon both its size and its distance to the nearest municipal solid waste landf ill. It is unclear if a small remote incinerator’s regulatory status would change if a municipal so lid waste landfill were to be added within 25 miles of the source at some point in the future. This is disturbing and leads to regulatory uncertainty for the source that could be avoi ded by selecting criteria that are within the control of the owner/operator.

Response: The commenter presents a situation but does not indi cate if this is actually happening. We recognize the commenter’s concern and suggest th at if such a situation should arise and a source feels that rule applicability regardin g the appropriate subcategories is not clear, the owner/operator of the source can contact EPA and submit a formal applicability determination.



### 7B. Applicability of CISWI to marine vessel or outer contin ental shelf units (Denied Petition issue)

Commenter Name: Kate Williams Commenter Affiliation: Alaska Oil and Gas Association (AOGA) Document Control Number: EPA-HQ-OAR-2003-0119-2620-A1 Comment Excerpt Number: 5313

Comment: We believe EPA violated the Clean Air Act by failing t o clarify the applicability of the CISWI rule to incinerators on marine vessels and out er continental shelf ("OCS") sources, instead leaving the issue up to regions to decide. On this last issue, we emphasize that no incinerators operating on marine vessels or OCS sources w ere included in the MACT floor analysis for SRI units and we suspect that a separate subc ategory will be warranted should data be collected. All of these issues should be addressed in the new final CISWI rule.

Response: See the “CISWI Reconsideration Issues” memorandum, da ted December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2 Comment Excerpt Number: 8

Comment: EPA must clarify whether the CISWI standards apply to temporary and portable man camps, marine vessels, and offshore sources. It i s worth noting that, in rule development, these source categories were not considered.

Response: See the “CISWI Reconsideration Issues” memorandum, da ted December 19, 2012, in the CISWI docket for further discussion.



### 7C. Applicability to gasification or pyrolysis units

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 23

Comment: Finally, we ask EPA to clarify the relationship betwe en gasification and the definition of homogeneous wastes. As EPA recognized in t he NHSM Rule, synthesis gas produced from a gasification process that meets EPA’s leg itimacy criteria is not a waste. 76 Fed. Reg. at 15538 (noting that syntheses gas is processed). In addi tion, as discussed above, unless contained in a container, synthesis gas cannot be cons idered a waste. However, the preamble to the March 21, 2011, CISWI rule included troubling language that impl ied that synthesis gas would have to meet EPA’s definition of “homogeneous waste. ” 76 Fed. Reg. at 15715 (“Gasification processes that incorporate clean up techn ologies in the production of synthesis gas would generally result in a homogeneous product, however a consistent waste input would still be necessary to ensure a consistent emissions profile of the synthesis gas.”). This language is not included in the preamble to the December 23, 2011, CISWI Reconsi deration rule. Please confirm that synthesis gas, and indeed any gas not contained in a container, is not a waste and does not need to meet any criteria applied to homogeneous waste.

Response: As noted in the preamble to the final rule, we have i ncluded the definition of "contained gaseous material" from the 2000 CISWI rule in thi s final rule. We are also adding a314

definition of solid waste in the final rule that refer ences the NHSM rule at 40 CFR part 241. EPA's proposed reconsideration rule referred to the definit ion of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commer cial and industrial solid waste incineration unit”, “energy recovery unit”, and “waste-bur ning kiln”), but we did not include a stand-alone definition of the term. We believe it is a ppropriate to include a definition for solid waste because only units combusting solid waste are subjec t to standards issued pursuant to section 129. The definitions of solid waste and contained gas eous material, taken together, mean that gaseous material is only a solid waste for purposes of CISWI if the material is in a container when the container is combusted. The owner/operator of the source can contact EPA and submit a formal applicability determination if it is uncertain whether combustion of a particular gaseous material triggers CISWI applicability.

Commenter Name: William C. Allison Commenter Affiliation: Air Pollution Control Division Document Control Number: EPA-HQ-OAR-2003-0119-2601-A1 Comment Excerpt Number: 3

Comment: The State suggests that the EPA revise its rules to exc lude combustors designed to utilize biomass as a fuel or feedstock from the incinera tor rules, CISWI and OSWI. 7 At a minimum, the State requests that the EPA be at least as lenient toward such units as it has been toward air curtain destructors.

The current rules discourage or are prohibitive to endeavor s utilizing small combustion units to dispose of biomass while also making use of the energy an d/or carbon content in the biomass. By subjecting these combustors to the strict standards in CI SWI and OSWI, innovators are not able to overcome the costs of complying with the incinerator r ules. Alternative methods of disposal for biomass, including disposal via landfill or open burning, are not regulated to the same extent and thus these options are less costly.

The State believes there is a potential environmental, publ ic health, and safety benefit to combusting biomass in a contained setting, as opposed to b iomass disposal in landfills or via open burning. A contained combustion unit promotes complete c ombustion while rendering fewer emissions, including visible emissions, than open bur ning. A contained combustion unit can also be utilized to maintain a controlled, oxygen-deprive d burn (i.e. via pyrolysis), where greenhouse emissions may be significantly reduced as much of the carbon is retained for use in agricultural or other industrial applications. These envir onmental benefits can be obtained while allowing for the potential economic benefit of using the biomass as a resource rather than a
waste.

[Footnote: 7 i.e. pyrolysis units, for the disposal of beetle-kill wood]

Response: We have added a definition of solid waste in the final rule that references the NHSM rule at 40 CFR part 241. EPA's proposed reconsideration ru le referred to the definition of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commercial and industrial solid waste incineration unit”, “energy recove ry unit”, and “waste-burning kiln”), but we did not include a stand-alone definition of the term. We believe it is appropriate to include a definition for solid waste because only units combusting s olid waste are subject to standards315

issued pursuant to section 129. From the description of the materials described by the commenter, we are unsure as to whether these materials would be considered to be solid waste to begin with (i.e., possibly clean cellulosic biomass). Furthermore, if the commenter believes its use of solid waste does not constitute combustion, it sh ould contact EPA to discuss the matter or submit a request for an applicability determination.



### 7F. Portable incinerators are not accounted for in the ru le or data (Denied Petition issue)

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2 Comment Excerpt Number: 9

Comment: EPA must clarify whether the CISWI standards apply to temporary and portable man camps, marine vessels, and offshore sources. It is worth noting that, in rule development, these source categories were not considered.

Response: See the “CISWI Reconsideration Issues” memorandum, da ted December 19, 2012, in the CISWI docket for further discussion.



### 7G. Provide "temporary use" exemption

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and Industry Document Control Number: EPA-HQ-OAR-2003-0119-2627-A2 Comment Excerpt Number: 4

Comment: EPA proposes to exempt temporary boilers, as was done i n the final rule for major sources. We agree that temporary boilers should be exempt ed from both rules if they are to be exempted from any. However, we believe that the definit ion of temporary boilers should include emergency use boilers or safety related boilers. Such c onsideration has been provided for other MACT source categories as IC engines. Further, EPA sho uld clarify whether "temporary" means use for start-up as well as back-up purposes.

Response: The comment appears to be centered on proposed provisions to the industrial and commercial boiler NESHAPs, and not to CISWI. To the e xtent the commenter intends the comment to apply to CISWI energy recovery units, we dis agree with providing such an exemption in the CISWI rule. To our knowledge, none of the units in the CISWI energy recovery unit population serve as emergency use boilers or safety related boilers that the commenter has concerns about.

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company316

Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2 Comment Excerpt Number: 10

Comment: EPA must clarify whether the CISWI standards apply to temporary and portable man camps, marine vessels, and offshore sources. It is worth noting that, in rule development, these source categories were not considered.

Response: See the “CISWI Reconsideration Issues” memorandum, da ted December 19, 2012, in the CISWI docket for further discussion.



### 7H. De-minimis Size or Waste Amount Thresholds

Commenter Name: Basil G. Constantelos Commenter Affiliation: Edison Mission Energy (EME) et al. Document Control Number: EPA-HQ-OAR-2003-0119-2586-A1 Comment Excerpt Number: 2

Comment: EPA SHOULD ALLOW A DE MINIMIS EXEMPTION FROM TREATMENT AS AN INCINERATOR FOR UNITS BURNING MATER IALS GENERATED IN THE NORMAL COURSE OF BOILER OPERATION

As EME noted in its petitions, EPA has a long history of de minimis authority, with the seminal case being Alabama Power Co. v. Costle

. 47 Both in its initial comments on the Solid Waste Rule proposal and in its petition for reconsideration, EME h as noted EPA’s de minimis authority under a variety of statutes and circumstances. In the interests of brevity, EME will not repeat here its summary of EPA’s de minimis authority, but will instead incorporate by reference its petitions for reconsideration to the CISWI and Solid Wa ste Rules for the relevant case law summaries. EME simply notes that its initial comment s on this issue under the Solid Waste Rule were not addressed, nor were either of EME’s petitions for reconsideration addressing the de minimis issue. Although courts have upheld similar exercises of E PA’s authority, and although EPA allows a similar de minimis exemption for other materials under the Solid Waste Rul e, EPA has not addressed EME’s repeated comments and petitions o n this issue.

A. EPA Allows Similar De Minimis Exemptions Under The Solid Waste Rule And Other Rules Under RCRA

EPA already uses its de minimis authority under RCRA, and, indeed, has applied it in the Solid Waste Rule. EPA allows a de minimis exemption for contaminants, including paper, insulation, and other items that may be included in construction wa stes and demolition derived wood (“C&D wood”): C&D-derived wood can contain de minimis amou nts of contaminants and other materials provided it meets the legitimacy criterion for contaminant levels. 48 EPA has also applied its de minimis authority under RCRA in the hazardous waste context, all owing listed wastes to be discharged to a wastewater treatment facili ty as long as the total concentration of the chemicals does not exceed a certain threshold. 49 EPA allows similar exemptions from characterization as solid wastes for condensates derive d from overhead gases from kraft mill steam strippers that are used to comply with 40 C.F.R. § 63.446 (e) where the exemption applies317

only to combustion at the mill generating the condensates , 40 C.F.R. § 262.4(a)(16), or pulping liquors that are reclaimed in a pulping liquor recovery furn ace and then reused in the pulping process, 40 C.F.R. § 261.4(a)(6). One of the requirements un der 40 C.F.R. § 63.446(e) is for the condensate to be treated so it is either managed in specif ied equipment or in a manner that ensures the HAPs are destroyed to specified levels. Simil ar requirements could be used in a de minimis exemption under Section 129 of the CAA, limiting any exempti on to onsite materials that do not significantly impact emissions.

B. An Exemption For Materials Generated In The Course Of Normal Boiler Operations Would Fit Squarely Within The Scope Of EPA’s De Minimis

Authority

1. The Emissions Impacts Of An Exemption Would Be Trivial

Combusting and evaporating boiler cleaning wastes and other materials generated in the course of normal boiler operations is standard practice, and curr ently part of most electrical generating units’ air permits in North America. 50 Allowing this practice to continue would not increase emissions. Further, without a de minimis exemption, to maintain their status as generators, not incinerators, generating unit operators would be required to tr ansport cleaning wastes and other materials to an offsite disposal site, incurring additio nal expenses, generating more emissions in the process, creating potential safety issues associate d with transportation of materials, and disposing of the wastes without necessarily destroying the m. There is little to no environmental benefit to requiring alternative disposal of materials i n control of the generator that have only a de minimis impact on emissions. The emissions impact from evaporat ing boiler cleaning materials, for example, is comparatively small and th e resulting total variation in emission of pollutants from their combustion would likely be similar to that from normal variation resulting from differences in coal composition. 51 Emissions tests of the electrostatic precipitator ou tlet flue gas conducted by the Electric Power Research Institute (“ EPRI”) during evaporation of boiler cleaning wastes showed no statistically significant incre ases in metal concentrations over baseline data. In addition, the concentrations of NO X , HCl, and HF present in the flue gas were also not statistically affected. 52 In monitoring studies conducted by EPRI on evaporation of boiler cleaning wastes in utility boilers, chromium le vels in the stack gas were 0.076 lb/hr at baseline vs. 0.080 lb/hr during evaporation. 53 Chromium is the metal typically of the highest concentration in boiler cleaning wastes and the boiler cleaning wastes are tested prior to combustion to ensure the concentrations are below the hazardous level. Results for other metals, PM, and trace organics were similarly low. 54 Water treatment resins are used to demineralize boiler feed water. Like home water softeners, utility- scale water treatment resins are used to remove minerals and other compounds that would lead to scaling and clogging of boiler equipment. Although resins can be reused multiple times, t hey eventually become spent and can no longer effectively cycle to capture minerals and rel ease them, at which point they must be replaced. Resins typically have significant fuel value, and are relatively low in contaminants, as they are repeatedly flushed to remove mineral contents. Further, any contaminants they contain would be from the water supply, not the fuel supply, and thus with limited potential for hazardous materials to be included. Indeed, boiler cleaning wa stes and other non-hazardous materials have routinely been allowed to be evaporate d in onsite utility boilers because they do not appreciably increase emissions and thus pose minimal r isk to the environment. As an example, EME provides the following permit condition, inc luded in its Illinois facility air318

operating permits: The permittee is allowed to burn boiler cleaning wastes only when the boiler is in a normal mode of operation and generating no less than 105 megawatts (gross). Burning of boiler cleaning wastes is not allowed during startup, shutdo wn, malfunction or breakdown. 55 Operating information submitted by the generating station to obtain the permit indicates that to ensure steady boiler operations, the maximum boiler clea ning waste feed rate to the boilers is up to 200 gpm depending on the size of the unit. 56 With respect to the volumes of onsite generated materials such as boiler cleaning wastes that would be evaporated in the boilers, EME’s experience is that the waste volumes range from approxim ately 250 to 1835 tons per boiler per boiler cleaning event, but would only be fed to the boiler at a rate of up to 0.8 tons per minute. 57
This contrasts with a total amount of coal burned on ave rage in each boiler of between 1,420 and 8,220 tons per day. The boiler cleaning frequency can vary fro m every two to ten years, depending on the type of boiler and the coal burned. Other materials generated include resins from water treatment; however, those materials are even more limited in amounts than the boiler cleaning wastes. Regardless, the annual amount of boiler c leaning wastes generated for each individual boiler is relatively small – a mere fraction of a percent on an annual basis – even assuming boilers are cleaned every year, which they are not. The application of de minimis authority where emissions impacts are trivial is consis tent with how courts have addressed the authority in the context of similar situations. Here a de minimis exemption for materials generated in the normal course of boiler operation would have minimal or no impact on the level of emissions. Since this does not affect the purpose of the CAA, i.e. reducing emissions, allowing such an exemption would be a proper exercise of EP A’s de minimis authority.

2. Requiring Application Of Section 129 To De Minimis Amounts Of Secondary Materials Would Be A Mandate Of Pointless Expenditure

While the volumes of solvents are minuscule compared to the overall volume of fuel burned, the costs of the disposal for a boiler cleaning event can e xceed $1 million per event in EME’s experience, and as a result the costs to the industry m ay exceed $50 million per year. The amounts generated that would require offsite disposal are estimated at 125,100 tons per year. 58 This compares to annual coal burned of over 1 trillion tons per year. EME questions whether there is sufficient treatment capacity for this volu me of material, which EPA may not have considered because the volumes and frequency of occurrenc e per facility are relatively low. As in Alabama Power , the flexibility to prevent these kinds of needless expenditures and unnecessary burdens are exactly the reasons that the co urts originally applied de minimis exemptions. Given the trivial impact on emissions, the environmental and economic costs generated by treating generators as incinerators because of common utility practice is simply not justified. EME requests that EPA apply its de minimis authority to prevent this unnecessary regulatory burden.

[Footnotes]

(47) 636 F.2d 323 (D.C. Cir. 1979).

(48) See 76 Fed. Reg. 15,487.

(49) See 40 C.F.R. 261.3 (a)(2)(iv)(F) and (G).319

(50) See ELECTRIC POWER RESEARCH INSTITUTE, GUIDELINES FOR C HEMICAL CLEANING OF CONVENTIONAL FOSSIL PLANT EQUIPMENT, 9-4 (2001).

(51) See ELECTRIC POWER RESEARCH INSTITUTE, BOILER CHEMICAL CLEANING WASTE MANAGEMENT MANUAL 3-6 (1992).

(52) Id. at 8-15.

(53) Id. at 8-16.

(54) Id.

(55) EME’s IL station permits all include the same language, but this was taken from Crawford Unit 7’s permit. Crawford Unit 7, Crawford Electric Genera ting Station, Operating Permit, Special Condition 14 (June 25, 2001).

(56) Id.

(57) Assuming boiler cleaning wastes have the same density as water.
(58) Again assuming the density of boiler cleaning wastes i s identical to water.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Jim Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA-HQ-OAR-2003-0119-2577-A1 Comment Excerpt Number: 2

Comment:

EPA Should Clarify that the Introduction of Waterside Boiler Chemical Cleaning Wastes into Utility Boilers is Not Combustion Triggering CISWI Standards

As USWAG has previously informed EPA, one routinely genera ted secondary material that is commonly managed by being evaporated in utility boilers is wa terside boiler chemical cleaning waste. This secondary material is generated through the cleaning of metal deposits (primarily iron) that form inside metal tubing found in utility boiler s. These deposits reduce heat transfer and diminish the boiler’s efficiency. Over the long te rm, failure to regularly remove these deposits can result in the need to burn more primary fuel to generate the same amount of electricity. These deposits can also cause accelerated c orrosion of tube surfaces and overheating resulting in tube failures and force outage of boilers. Utilities remove these deposits through the use of various types of chemical solvents (primarily orga nic and inorganic acids). Solvents are selected based on the composition of the tubing and the met al deposits targeted for removal. Utilities clean the boiler tubes on a regular but infreque nt schedule ranging from every year to320

every fifteen years, but normally cleaning occurs every three to four years. The cleaning process removes metal oxide deposits that form on the interior of the boiler tubes and the solvent solution used is subsequently flushed with demineralized water rinses . The solvent and rinses are collected in a series of connected tanks. The volumes o f the aggregate can range from 35,000 gallons of water to more than a million gallons. The aggr egate is composed almost exclusively of water. The cleaning chemicals used make up between .8 and 3.5 pe rcentage of the aggregate. The aggregate is evaporated by being fed at rates that typic ally range from 20 to 80 gallons per minute into the boiler’s firebox simultaneously with th e fossil fuels that are the normal fuel mix for the boiler. The aggregate mixture is fed at such low rates because the energy required to perform the evaporation of the water significantly low ers the efficiency and energy generated by the boiler. Under EPA’s framework for determining wheth er materials are being combusted, the key issue is whether light and heat is being generated fro m the introduction of secondary materials. While the mixture is being introduced into the bo iler firebox which has a very high temperature, any secondary material that is at least 97 pe rcent water will not yield light and heat. The water solution will be expected to quench the genera tion of any light and heat from any small portion of the wastewater material that might otherwise be independently combustible. Much like cement kiln dust introduced to the hot end of a ceme nt kiln, the evaporation of boiler chemical cleaning waste requires significant energy reduci ng the efficiency of the boiler and cooling the flame. This material is not only essentially inert from a standpoint of combustion, but results in the use of significant energy to evaporate the material. The net heat impact of evaporating wastewater varies based on the injection ra te and the efficiency of the boiler, but can require as much as 1.5 Million BTUsper minute.

While fossil fuels are combusted in the boiler firebox, a solution that is almost exclusively water cannot be combusted to yield light and heat. Even if a s mall portion of the mixture consists of an organic solvent, this solution cannot be burned to yield ligh t and heat. This situation is indistinguishable from the secondary materials used in ce ment kilns that contain low concentrations of carbon content. Accordingly, the in troduction of this wastewater mixture should not trigger application of the CISWI rules on the se boilers. This is especially apparent when evaluating the use of inorganic acids ( e.g., hydrochloric acid) used to clean boiler tubing. When inorganic acids are used and then mixed with water ri nsate and later injected into a boiler firebox, the resulting mixture contains no (or only tra ce) organic content that is theoretically capable of combustion during to the evaporation process. Th e introduction of boiler chemical cleaning waste into utility boilers as described above does not result in combustion that yields heat and light. As such, utility boilers are not combust ing a solid waste as identified in Clean Air Act § 129 (g)(1) and are not subject to CISWI emission and ope rational standards. We are seeking confirmation that our understanding is consistent with EPA’s interpretation of combustion as set forth the Federal Register notice and interpretive memorandum issued to the Portland cement industry.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion. To the extent the comment er asks about secondary materials used in combustion units other than cement kilns, we would advi se the commenter to request consultation with EPA on the specific nature of the m aterial and its intended use in the combustion unit.321

Commenter Name: Jim Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA-HQ-OAR-2003-0119-2577-A1 Comment Excerpt Number: 3

Comment: EPA Should Clarify that the Introduction of Fireside Wastewater into Utility Boilers Does Not Trigger Application of CISWI Standards

Another secondary material that is managed in utility b oilers are wastewaters associated with the fireside cleanings ( i.e ., originating as boiler blowdown and fireside boiler tub es). Typically, pure water with no solvents or other added chemicals is used to rinse out the interior of a boiler. The only secondary materials present in this wastewater are previously combusted materials from the fireside portion of utility boilers. Because these sec ondary materials have been exposed to high temperatures for extended periods of time, they are not ex pected to contain organics or measurable unburned carbon content. For certain types of b oilers these wash waters are collected in sumps and tanks and then can be reintroduced into the boil ers for evaporation. Much like the waterside chemical cleaning mixture, the fireside wastew ater will not combust to yield heat and light. This material will require significant energy t o evaporate reducing the boiler’s efficiency and cooling the flame. Like the waterside wastewater, th is material is not being combusted (as that term has been identified by EPA) and does not trigger regulation of these boilers as CISWI units. We are requesting an interpretation from EPA to thi s effect.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion. To the extent the commenter asks about secondary materials used in combustion units other than cement kilns, we would advi se the commenter to request consultation with EPA on the specific nature of the m aterial and its intended use in the combustion unit.

Commenter Name: Bart Sponseller Commenter Affiliation: Wisconsin DNR Document Control Number: EPA-HQ-OAR-2003-0119-2612-A1 Comment Excerpt Number: 3

Comment: The Department believes that sources firing very smal l amounts of solid waste or specifically identified wastes should be exempt from the C ISWI MACT as long as the source is complying with its categorical MACT standard. For example municipalities or law enforcement may need to dispose of confiscated materials or drugs. Sma ll hospitals, local clinics or dentists will generate small amounts of medical wastes. In bot h of these cases, when handled properly, the best approach may be to dispose of the material in a n authorized and well controlled boiler. This alternative could avoid significant cost for communi ties while safely disposing of the material. We believe EPA could establish a process fo r such authorization. One criteria may be to restrict the quantity of material which can be fired in any given hour or day.322

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Ken Kanger Commenter Affiliation: Omaha Police Department Document Control Number: EPA-HQ-OAR-2003-0119-2649-A2 Comment Excerpt Number: 1

Comment: In December 2009 the Omaha Police Department began using As h Grove Cement Company, Louisville, NE to properly dispose of illegal na rcotics. Nebraska State Statute, 29-820 requires contraband to be destroyed when it is no longer needed as evidence. This has been a very beneficial relationship for the Omaha Police Depar tment and to my understanding, several law enforcement agencies in the region. We are tasked w ith the responsibility of removing illegal narcotics from the streets and out of our community. W ith that task comes the necessity to dispose of the items properly. This department has explor ed many options in order to find a solution that is allowable within EPA guidelines and cost efficient. For years Ash Grove has been the best option, as it is free of charge, in clo se proximity, and allowable under EPA guidelines. With the current state of the economy, the cost factor is even more of a consideration for our department. The service provided by Ash Grove is be neficial to the Omaha Police Department and more importantly, the service we are provi ding the citizens of Omaha. We would ask the EPA to strongly consider the addition of a s mall quantity exemption on the CISWI rule to allow this service to continue.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Lisa P. Higgins Commenter Affiliation: Maine Department of Environmental Protection (DEP) Document Control Number: EPA-HQ-OAR-2003-0119-2641-A2 Comment Excerpt Number: 5

Comment: Both the Major Source Boiler Rule and the Area Source Boiler Rule have a provision for small units which EPA has expanded. In the proposed Boiler rules, boilers are exempt from the rule if they meet the definition of a hot water heater.

Hot water heater means a closed vessel with a capacity of no more than 120 U.S. gallons in which water is heated by combustion of gaseous or liquid fue l and hot water is withdrawn for use external to the vessel. Hot water boilers (i.e., not generating steam) combusting gaseous or liquid fuel with a heat input capacity of less than 1.6 million Btu per hour are included in this definition.

Maine DEP believes that all boilers with a heat input capacity below 1.6 MMBtu/hr, regardless fuel type, should be be exempt from the CISWI standards a nd recommend that the 1.6 MMBtu/hr threshold be a stand alone exemption.323

Response: In Natural Resources Defense Council v. EPA, the Court held that the term “solid waste incineration unit” in CAA section 129(g)(1) “unambiguo usly include[s] among the incineration units subject to its standards any facility tha t combusts any commercial or industrial solid waste material at all—subject to the four statutory exceptions identified [in CAA section 129(g)(1)].” 489 F.3d 1250, 1257–58 (D.C. Cir. 2007). Combustion units locat ed at commercial or industrial facilities that combust sol id waste as that term is defined in the Nonhazardous Solid Waste Definition Rulemaking may be su bject to CISWI, unless the unit is expressly exempt pursuant to section 129(g)(1). EPA is establishi ng standards for units at commercial or industrial facilities that meet the def inition of “incinerators”, “energy recovery units”, “waste-burning kilns”, or “small-remote incinerators ” in this final rule, and sources should consult the rule or their permitting authority t o determine whether their combustion unit will be subject to the final standards issued today.

Commenter Name: Lisa P. Higgins Commenter Affiliation: Maine Department of Environmental Protection (DEP) Document Control Number: EPA-HQ-OAR-2003-0119-2641-A2 Comment Excerpt Number: 3

Comment: Some mills in Maine receive treated municipal wastew ater and landfill leachate in their wastewater treatment facilities. Maine recommends that EPA establish a de minimis level of 5% of annual municipal wastewater flows that would allow for the process ing of these wastes and the beneficial reuse (combustion) of the resulting sludge in properly li censed boilers through air quality and solid waste permits.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Lisa P. Higgins Commenter Affiliation: Maine Department of Environmental Protection (DEP) Document Control Number: EPA-HQ-OAR-2003-0119-2641-A2 Comment Excerpt Number: 4

Comment: Maine supports EPA's proposal to categorically treat was te oil that meets the criteria outlined in 40 CFR 279.11 as a fuel. There are more than one hundred boilers in Maine licensed to combust waste oil as a fuel. However, many of thes e facilities blend off-specification oil into on-specification waste oil, or they blend off-specifica tion oil with normal fuel oil to meet onspecification waste oil standards. The proposed CISWI st andards contain no de minimis quantity for applicability. Many of our industrial facilities bum w aste oil generated onsite, some of which may be off-specification waste oil. These facilities are licensed to bum waste oil and are required to have controls such as scrubbers and electrostatic preci pitators to do so. Therefore, EPA should allow a minimal amount of off-specification waste oi l to be burned in these boilers; Maine proposes EPA consider a limit restricting off-specifica tion waste oil combustion content to be less than 1% of an annual fuel input of a unit. Not creating a de minimis threshold for offspecification waste oil combustion in licensed units wo uld increase the volume of waste oil that324

must be shipped to processing facilities. This would increase transportation emissions, and would likely increase the rates of improper disposal, spills, a nd resultant groundwater contamination. Units that bum residual oil are subject to less onerous standards under the proposed Area and Major Boiler Source MACT standards while that fuel type produces equivalent or higher HAP emissions than off-specification waste oil.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.



### 7L. Requests for extension of comment period

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 3

Comment: Under basic principles of due process and administrative law, EPA has an obligation to provide the public with a reasonable opportunity to comment on proposed rules. Specifically, Congress requires EPA to give the public “a reasonable peri od . . . of at least 30 days” in which to comment on “any regulation” promulgated under the CAA. 9 By the clear terms of the CAA, Congress indicates that 30 days is the minimum time nec essary to give the public a reasonable opportunity to evaluate a proposed rule and provide adequate fe edback to the Agency. Thus, a comment period meeting the statutory 30-day minimum would be reasonable for a single, ordinary proposed rule. Here, EPA has violated the clear terms of the CAA and deprived sources of a means to adequately protect their interests and right s in the administrative and judicial processes by providing 60 days of comment for four complex in terrelated rules. Under reconsideration, the rules are no less complex then when they were first proposed in June 2010. A 60-day comment period is particularly inadequate given the ir complexity, breadth of applicability, and economic impact. EPA has added data on r econsideration for 300 additional sources that must be reviewed and sources face the pressure s of sorting complex data and developing thorough comments that address very technical iss ues. Although EPA released the signed rule proposals almost one month prior to their publi cation in the Federal Register, it did not provide the majority of the supporting documentation for the proposed rules until publication on December 23, 2011, just two days before the holidays, eff ectively shortening the comment period. The four proposed rules under reconsideration make for an enormously broad and costly proposal, which would have a significant economic impact across numerous and diverse sectors of the US economy, with the boiler MACT rule alone imposing capital costs of more than $5 billion and affecting nearly 200,000 sources, according to EPA. 76 Fed. Reg. 80622. This economic impact alone, which CIBO estimates to be over $14 billion, 10 requires a comment period sufficient to ensure thorough consideration of the proposed rules. CIBO joined with 26 other entities and trade associations, representing tens o f thousands of affected sources, to ask EPA to extend the comment period by 30 days and explaining in detail why the extra 30 days was needed and justified. 11 On February 14, 2011, just seven days before the comments we re due, EPA denied the request. Sources have done the best under the circumstances to develop325

thoughtful comments on their concerns and the specific requests for comment EPA made in the four rules, and where necessary or appropriate, and where time permitted, to compile data to support its positions.

[Footnotes]

(9) 42 U.S.C. § 7607(h) (2006).

(10) How Costs Were Determined for CIBO Boiler MACT Study , January 2012, Appendix C.

(11) See January 18, 2011 letter of 27 organizations to EPA, Appendix D.

Response: EPA provided 60 days for public comment, which is more than is required under the CAA. Section 307(h). EPA maintains that the comment peri od was sufficient.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 7

Comment: As EPA is well aware, the proposed rules have raise d an unprecedented number of complex issues in determining the appropriate MACT floors for these very large, diverse source categories. The simultaneous proposal of the rules gre atly complicates the analysis of whether the standards can be achieved by affected sources. A large percentage of sources must first apply a complex set of factors under the NHSM rule to each ma terial they combust, to determine whether EPA is likely to consider the material a waste or a fuel. If the materials would be considered solid waste , the source combusting those materials would be consi dered an incinerator , and it must then consider the applicability and achievabi lity of the CISWI standards. On the other hand, if under the NHSM rule, the material s are characterized as fuel , the source combusting those materials would be considered a boiler , and the source must then consider the applicability and potential achievability of the Boiler rule (for a major source) or Area Source rule (for a non-major source).

When EPA initially proposed these rules for comment o n June 4, 2010, the Agency provided 60 days of comment. As multiple entities explained in lett ers to EPA then, 60 days is inadequate for sources to review voluminous data and EPA’s analysis and to assess the achievability and impact of all four rules on the full range of affected sources at each facility.

In response to our request on the initial rule, EPA provide d additional time for comments. Now on reconsideration, the rules are no less complex, EP A has added data that must be reviewed for 300 additional sources, and sources face the same pressures o f sorting complex data and developing thorough comments that address very technical iss ues. Although requesting a public hearing would have extended the comment period, we decided our time was better spent in developing comments. There is an extensive amount of dat a within the docket that takes many hours to sort through in order to produce comprehensive comme nts. Also, because EPA only allowed a few weeks, during the holidays, for review of t he four proposals before the hearing would have been held, there was effectively less time to sort data in advance of a hearing. We were doubtful that we could have produced enough specific infor mation to have a meaningful326

discussion by that date. For all these reasons, rather th an use a procedural tool to achieve an extension, we decided to seek, in a straightforward fashio n, additional time to prepare comments.

Understanding that EPA has made public commitments for an accelerated process to complete these rules, we only asked for 30 additional days for the B oiler MACT, CISWI and NHSM rules. We did not expect to need additional time for comment on the Area Source rule. EPA has an obligation to provide the public with a reasonable opportunit y to comment on proposed rules. We have identified many issues with the proposed rules, b ut the lack of an extension has resulted in less time to fully develop our arguments and detailed jus tification for each of our comments.

Response: EPA provided 60 days for public comment, which is more than is required under the CAA. Section 307(h). EPA maintains that the comment peri od was sufficient.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 1

Comment: In general, the Energy Recovery Council believes that the comment period was inadequate given the complexity, breadth of applicability, and economic impact of the rules as proposed on December 23, 2011. The proposed rules are complex, driven by intensive data collection and calculation. While ERC joined other groups in requesting an extension of the deadline for public comments, EPA refused the extension reque st.
Sixty days is simply insufficient especially given that the rules were published immediately prior to the holidays.

Response: EPA provided 60 days for public comment, which is more than is required under the CAA. Section 307(h). EPA maintains that the comment peri od was sufficient.



### 7P. Expansion of startup, shutdown and malfunction periods - work practice standards for SSM (Denied Petition issue)

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 23

Comment: PCA disagrees that emissions limits should apply during startup/shutdown events and requests that work practices address these operating periods: EPA should exempt kilns from emissions limits during startup and shutdown and instead foll ow the compliance regime in the EGU NESHAP proposed rules which were finalized based on st artup/shutdown workplace practices in lieu of numerical emissions limits. PCA recommends that EPA utilize the same approach used by the industry for years in defining appropriate time periods for startup and shutdown by kilns subject to the hazardous waste combustor NESHAP. The definitions are based327

upon percentages of production (as the production is required t o be ramped up, and ramped down due to critical system operations) rather than specific time periods.

In its May 20, 2011 administrative petition, PCA stated:

With respect to startup and shutdown, PCA continues to ob ject to EPA 's approach for the reasons stated in its rulemaking comments, and notes th at at least in the recent final NESHAP rules for cement kilns, EPA's final rule makes adjustm ents to the standards for startup and shutdown periods. 7 5 FR at 54991. While PCA does not agree with or endorse the s pecific numeric standards for startup and shutdown in the NESHAP r ule (and in fact is challenging them in the currently pending D.C. Circuit litigation), PCA n otes that EPA's approach shows that there are certainly rational ways on which to approach startup and shutdown issues other than blindly applying the basic emission standards to such periods.

One such ''rational way" to approach startup and shutdown th at PCA had suggested in its comments is for the rule to require "appropriate work pra ctices" during SSM events. See pp. 92- 93 of PCA's August 23,2010 Comments (EPA-HQ-OAR-2003-0119-1972). In its r esponse to comments on SSM issues in its initial final CISWI rule , EPA neither acknowledged nor responded to PCA's (or others') comments advocating the wor k practice approach. 76 Fed. Reg. 15737-78.

EPA's failure to respond to these comments would of course render the final CISWI rule vulnerable on judicial review. As noted earlier, PCA an d many other parties have judicial review petitions pending in the D.C. Circuit, which are be ing held in abeyance until EPA issues its revised CISWI rule. We therefore urge EPA in the co ntext of this rulemaking to fully consider the work practice approach PCA and others had previously suggested. We urge EPA to include provisions for work practices that would apply during SSM events instead of the rule's emission standards.

It is important to point out that this is exactly what EPA has done for startups and shutdowns in a companion CAA rule proposed on the same day of the CISWI re proposal. In the so-called "Boiler MACT" re-proposal published at 76 Fed. Reg. at 80598, EPA 's proposed regulatory language in § 63.7500 provides that the rule's emission limitat ions "apply at all times, except during periods of startup and shutdown, during which time you mu st comply only with Table 3 to this subpart." (Emphasis added.) Proposed§ 63.7500 (e), 76 Fe d. Reg. 80629.

And Table 3 specifies the following work practices that mus t be employed during periods of startup and shutdown:

You must employ good combustion practices and demonstrate that good combustion practices are maintained by monitoring O 2 concentrations and optimizing those concentrations as specified by the boiler manufacturer; you must ensure that boiler operators are trained in startup and shutdown procedures, including maintenance and cleaning, safety , control device startup, and procedures to minimize emissions; and you must maintain r ecords during periods of startup and shutdown and include in your compliance reports the O 2 conditions/data for each event, length of startup/shutdown and reason for the startup/shutdown (i.e., normal/ routine, problem/malfunction, outage).328

There can be no rational basis for EPA to adopt this work practice approach in the Boiler MACT rule while refusing to apply it in the CISWI rules. Cert ainly EPA offers no such basis in its CISWI preamble, and we believe that the final CISWI rul e would accordingly be vulnerable on judicial review for this unexplained disparate approach in tw o companion rules.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 7

Comment: The 2010 proposed CISWI rule required compliance with emis sion limitations at all times, including during startup, shutdown and malfunction (SS M). This is contrary to a long history of recognition by EPA and the courts that technolo gy-based requirements like those issued under CAA §§ 111 and 112 (and by extension, § 129) need to acco unt for unavoidable excess emissions associated with SSM events. ACC and others urged EPA instead to use its statutory authority to establish emission standards bas ed on work practices for SSM events. See, ACC Comments at 24-25, 43-46. EPA rejected these comments, and finalized its proposal. EPA provided the rationale for its action on startup and shutdo wn in the preamble to the CISWI final rule as follows:

We concluded that CISWI units would be able to meet the emis sions limitations during periods of startup because most units used natural gas or clean dist illate oil to start their incinerators and only add waste after the incinerator has reached combustion temperatures. Id. We proposed that emissions from burning natural gas or distillate fuel oil wo uld generally be significantly lower than from burning solid waste. Id . We further proposed that emissions during shutdown would also be generally significantly lower because the was te would be almost fully combusted before the unit began shutting down. Id. We proposed that these factors, in conjunction with the variability built into the MACT standards and the longer averaging periods, meant that sources would be able to comply with the standards during periods of s tartup and shutdown. Id. 76 Fed. Reg. at15737-38.

EPA assumes that because CISWI units burn natural gas or distillate oil during periods of startup and shutdown (“SS”) it is technically feasible for these units to meet the strict emissions standards established for periods of normal operation, whic h included emissions resulting from the burning of waste, during startup and shutdown. This assumpti on is flawed for several

reasons.
First, because CISWI units are burning fossil fuels, and no t waste, during SS periods, they are no different than the combustion units covered by the major source and area source boiler rules. 2 In both of those rules, EPA determined that it was not fea sible to require stack testing during SS periods due to physical limitations and the short duration o f those periods and therefore used its authority to require work practice standards (compliance w ith the manufacturer‘s recommended procedures or procedures for a similar design) during periods of startup and shutdown. See,329

§63.7530(h) (major source); and § 63.11201(b) (area source). 3 These same technical limitations apply to CISWI units during SS periods, and EPA has failed to explain in the Final Rule why these units should be treated differently than major and area source combustion units. As stated above, since ACC could not have known that EPA would fi nalize work practices for major/area sources during periods of startup and shutdown in those final r ules, and then arbitrarily treat combustion units under CISWI differently, we believe the issue is ripe for reconsideration. In addition, in this proposed reconsideration of various CISW I provisions EPA has made a number of changes to the final CISWI rule that reintroduce the is sue of SS and how those events should be regulated. We therefore believe it is appropriate for EPA to consider our additional comments on SS herein.

[Footnotes:]

2 National Emission Standards for Hazardous Air Pollutan ts for Major Sources: Industrial, Commercial, and Institutional Boilers, 76 Fed. Reg 15608 (March 21, 2011) and National Emission Standards for Hazardous Air Pollutants for Are a Sources: Industrial, Commercial, and Institutional Boilers, 76 Fed. Reg. 15554 (March 21, 2011) (herein after major source boiler rule or area source boiler rule).

3 In the preamble to the final major source boiler rule, EPA states:

― Consistent with Sierra Club v. EPA , EPA has established standards in this final rule that apply at all times. In establishing the standards in this final rule, EPA has taken into account s tartup and shutdown periods and, for the reasons explained below, has established different standar ds for those periods. EPA has revised this final rule to require sources to meet a work practice st andard, which requires following the manufacturer‘s recommended procedures for minimizing periods of startup and shutdown, for all subcategories of new and existing boilers and process heate rs (that would otherwise be subject to numeric emission limits) during periods of startup and shutdo wn. ... we considered whether performance testing, and therefore, enforcement of nume ric emission limits, would be practicable during periods of startup and shutdown. EPA determi ned that it is not technically feasible to complete stack testing—in particular, to repe at the multiple required test runs—during periods of startup and shutdown due to physical limitations a nd the short duration of startup and shutdown periods. Therefore, we have established the separa te work practice standard for periods of startup and shutdown. Periods of startup, normal operatio ns, and shutdown are all predictable and routine aspects of a source‘s operations. 76 Fed. Reg. at 15613.]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2 Comment Excerpt Number: 6

Comment: EPA violated §129 by excluding from its MACT floor calculat ions of SRI emissions during startup and shutdown periods. EPA does not have the nec essary data to support an emissions standard during startup and shutdowns so it is unlaw ful to do so. We provided data to330

EPA showing this in the attached petition. It is, howev er, lawful for EPA to set an appropriate work practice standard during SSM periods so we very stron gly recommend that EPA do this - as done with the major source boiler MACT at proposed secti on 63.7500(e). This comment is laid out in more detail in Attachment B of this letter.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 9

Comment: As we set forth in Attachment 1 to our August 2011 Petition for Reconsideration (Docket OAR-2009-0119), when the CISWI emission limits are a veraged in the same manner as the major source boiler rule limits, it is apparent tha t some of the CISWI limits are actually more stringent than the major source boiler rule limits for similar subcategories. EPA‘s assertion that CISWI sources could meet the emission limits during start up and shutdown periods is unfounded and further disproved when comparing the stringency of th e CISWI emission limits with those established for major sources in the final boiler rule. EPA concluded, and rightly so, that major source boilers could not meet emissions standards esta blished for normal operations during periods of startup and shutdown. It stands to reason theref ore that CISWI units, which like boilers burn fossil fuels during startup and shutdown, will not be able to meet numerical emission limits established for normal operations that are even more stringent than the limits set for boilers. For all of these reasons we strongly urg e EPA to establish work practice standards for CISWI units during periods of startup and shutdown. 4

[Footnote: 4 ACC also addresses the issue of startup and sh utdown and proposed ways to define these periods in our comments on EPA’s proposed definitio n of “CEMS data during startup and shutdown.”]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 5

Comment: The CISWI provisions for startup/shutdown (Subpart CCCC a nd DDDD) should be revised to be similar to the provisions in the Boiler MAC T rule (Subpart DDDDD) and Area Source (Subpart JJJJJJ). If a source is burning nonwaste, it should use gact standards, and ss provisions would apply. The startup/shutdown provisions in CIS WI in §§ 60.2145(a)(1) and 60.2710(a)(1) continue to state "[t]he emission standards an d operating requirements set forth in331

this subpart apply at all times.” 76 Fed. Reg. 80492, 80512. EPA pro vided a summary, insufficient response to this issue in its Response to Co mments, simply referencing the preamble of the rule: We concluded that CISWI units would be able to meet the emissions limitations during periods of startup because most units used natural gas or clean distillate oil to start their incinerators and only add waste after the incinerator has r eached combustion temperatures. Id. We proposed that emissions from burning natural gas or distill ate fuel oil would generally be significantly lower than from burning solid waste. Id . We further proposed that emissions during shutdown would also be generally significantly lower beca use the waste would be almost fully combusted before the unit began shutting down. Id. We proposed that these factors, in conjunction with the variability built into the MACT s tandards and the longer averaging periods, meant that sources would be able to comply with the st andards during periods of startup and shutdown. Id. For violations caused by malfunction events, EPA state d at proposal that we would consider relevant factors in determining the appropriate action to take. We have eliminated the SSM exemption in this rule. Consistent with Sierra Club v. EPA , EPA has established standards in this rule that apply at all times. 76 Fed. Reg. 15,737. As CIBO mentioned in its Petition, although CISWI units do typically utilize conventional fo ssil fuels for startup/shutdown periods, and that during those periods they do not fire waste, CISWI units are combustion devices that have similar operational characteristics and limitati ons as boilers and process heaters subject to Subparts DDDDD and JJJJJJ, even during startup and shutdown p eriods.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 14

Comment: The court in Sierra Club did not state that EPA must apply the same standards it establishes for normal operations during periods of SSM. Th e court’s holding is clear that “some” § 112 standard must “govern” SSM events but it did not s pecify which § 112 standard. In this rulemaking, EPA concluded that the numeric emission limitations established for normal operations also must be attained during a malfunction eve nt. However, EPA has provided no explanation as to why it believes that CISWI units reas onably could be expected to meet the emissions standards applicable to steady-state operations during a malfunction event. EPA claims in the final CISWI rule that it “presents signi ficant difficulties” to attribute malfunctions to a “best performing” source. 76 Fed. Reg. at 15737. To the contrary, it “presents significant difficulties” when EPA ignores the undisputed existence o f malfunctions even at bestperforming sources, and claims falsely that the best-perf orming sources “achieve” emission levels that they undisputedly do not and cannot achieve par t of the time. Since EPA describes malfunctions as being sometimes unavoidable or “not rea sonably preventable,” despite proper design and maintenance of equipment, id., there is no b asis for EPA’s conclusion that malfunction events are not representative of best-per forming sources. True, one goal (although not “the goal”) “of best performing sources is to operate in such a way as to avoid malfunctions of their units.” Id. But that is all the more reason why EPA must acknowledge the fact that those332

sources nevertheless experience malfunction events, a nd look at how they minimize emissions during a malfunction, rather than assume those emissio ns away. In failing to articulate the basis for its decision not to establish a § 111(h) work practice for malfunctions, the Agency also ignores the comments submitted by ACC and others on the 2010 proposal describing the error of EPA’s plan to ignore the effect of malfunctions on an achievable emission limitation and encouraging EPA to establish a work practice standard for malfunction events. 7 EPA’s affirmative defense approach to malfunctions is not reas oned decision-making and we hope that the Agency’s “reconsideration” of its approach will prom pt it to give reasonable consideration to the fact that a CISWI unit that has a malfunction is unl ikely to achieve the same level of emission reductions that it achieved and can achieve while operating at steady-state.

[Footnote: 7 76 Fed. Reg. at 15737. ACC believes that EPA’s recitation of the comments makes a compelling case for establishing emission limitations tha t recognize the effect of malfunctions, either directly or through establishment of a work pract ice standard, and ACC endorses those comments.]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion on work practice standards. C omments on affirmative defense provisions are addressed elsewhere within this document.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 7

Comment: EPA has determined that malfunctions should not have wo rk practice standards and has instead provided for an affirmative defense. 76 Fed. Reg. 80,461. For the same reasons identified by CIBO in prior versions of this rulemaking, CIBO opposes this approach as not reasonable. Given that malfunctions are essentially the same as periods of startup and shutdown, work practice standards should also apply. As CIBO points out in its Petition, EPA recognizes in both the Boiler MACT and Area Source rule, “that it is not feasible to require stack testing – in particular, to complete the multiple required test run s – during periods of startup and shutdown due to physical limitations and the short duration of startup and shutdown periods. Operating in startup and shutdown mode for sufficient time to conduct th e required test runs could result in higher emissions than would otherwise occur.” 76 Fed. Reg. 15577, 15642. It is irrational to view malfunctions any differently than startup/shutdown per iods. As such, EPA should establish work practice standards for malfunctions. The rule is unreasonable as it is and subjects sources to the risk of noncompliance especially given the fact th at malfunctions are unavoidable and unpredictable. By treating a malfunctions as something other than an operating condition, EPA has inappropriately placed the burden on the source to prove that excess emissions were caused by a malfunction. Malfunctions clearly meet the Clea n Air Act definition for work practice standards. CAA section 112(h). EPA should establish a work practice standard that requires predetermined malfunction plans with practices and procedures for potential malfunctions; require reporting of any malfunctions; address any malfunct ions not contemplated and add to the plan and address as appropriate.333

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion on work practice standards. C omments on affirmative defense provisions are addressed elsewhere within this document.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 5

Comment: Our first preference, consistent with the SSM Coali tion comments, that EPA imposes work practices that would apply during periods of malf unctions in place of the numeric emission limitations that the CISWI rule now provides. As the SSM Coalition notes by way of example, "there are work practices- such as monitoring ope rating parameters to identify a malfunction and stopping or cutting back the process accor dingly -that represent the best practices for minimizing emissions during a malfunction." SSM Coalition Comments at p. 12.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 33

Comment: In the Boiler MACT rule, EPA had also proposed that st andards apply at all times. However, in the final Boiler MACT rule, EPA responded di fferently to commenters’ objections. In the final rule EPA incorporated a work practice standa rd in lieu of numerical limits for periods of startup and shutdown. The work practice standard requires sources to minimize periods of startup and shutdown following manufacturers’ recommended proc edures.

Because EPA recognized the need to modify startup and shutdown provisions in the Boiler MACT, it would be arbitrary not to take the same approach in the CISWI rule. The very same equipment and combustion conditions (boiler, air pollut ion control equipment, fuel/waste characteristics) that prompted EPA to change startup and s hutdown provisions in the Boiler MACT also exist with the units regulated under the CISWI r ule. EPA even acknowledges in both rules that sources can alternate between being boiler s and incinerators based on whether they burn “fuels” or “solid wastes”. Yet EPA gave no explana tion why the change made in the Boiler MACT wasn’t considered an issue in the CISWI rule. Acc ordingly, EPA should make accommodations for startup and shutdown in the CISWI rule just as it has under the Boiler MACT.

EPA should expand definitions of “startup period” and “shutdow n” in 40 CFR 60.2265 and 40 CFR 60.2875 to include time periods of non-steady state operati on after initial waste charging during startup and before auxiliary fuel firing during shutdown. Cur rent definitions include only334

those periods when solid waste is not burning. These more limited definitions may have been appropriate for some categories which move seamlessly f rom auxiliary fuel to waste, but need to be changed to accommodate all units now included in the CI SWI rule.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion. Also, we have expanded the provisions for uncorrected CEMS data during startup and shutdown and have discussed these cha nges in the preamble to the final rule. Furthermore, as discussed elsewhere, we have made revisions to some of the operating parameter provisions to allow for adjustment during varying loa d conditions.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1 Comment Excerpt Number: 13

Comment: CAA § 129 (a)(2), which incorporates the same MACT stan dard setting requirements for solid waste incinerators as § 112(d), man dates that the emission standards be “achievable.” Moreover, if EPA sets the emission stan dards based on the “best performing 12% of units in the category” (the “MACT floor”), those li mitations must on average be “achieved” by the best performers. An emission limitation that app lies during a malfunction event does not meet the requirement of § 129(a)(2) that “emission standards” under that section be “achievable”, if EPA has not demonstrated that the limi tation is “achievable” with available technology, “taking into consideration the cost of ac hieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements. Similarly, an emission limitation that applies during a malfunction ev ent has not been demonstrated to be “achieved” by the best-performing 12% of units in the category” unless EPA can show that those best performers actually meet that emission limitatio n during a malfunction. Similarly, § 111(a)(1), which also applies to emission standards under § 129, requires that any emission limitation be “achievable through the application of” emi ssion reduction technology that “the Administrator determines has been adequately demonstrated.” EPA therefore must demonstrate that a numerical limitation, if it is to apply during a m alfunction, is in fact achievable with available technology during such events. Based on our review of documents in the docket for this rulemaking it appears that EPA did not to consider any data identifying the level of HAP emissions that may result when a best performing source experiences a malfunction. EPA therefore has failed to show that emission numeric e mission limits that apply at all times reflect the reductions that are “achieved” by best performing source s during a malfunction. Despite the fact that EPA and the courts historically have recognized t he inherent limits of technology based standards in promulgating standards under both the Clean Ai r Act and the Clean Water Act, in this rule EPA chooses to ignore the fact that, despite an owner/operator’s best efforts, technology sometimes fails and that even a best performing source co uld experience a malfunction. 6
Because EPA failed to consider the level of emissions that may result from a malfunction and incorporate that consideration in the numeric emission limitations, which apply at all times (other than during startup and shutdown), EPA’s actions are arbitra ry and capricious and not in accordance with law. Furthermore, EPA’s failure to esta blish emissions standards consistent with §§ 111 and 129 of the CAA also raises the issue of denial of due process. By establishing335

standards that are not attainable “at all times”, EPA is subjecting thousands of CISWI units to potential penalties and worse for failing to comply with numeric emission standards that are unattainable during a malfunction. [Footnote: 6 See 40 C.F.R. § 60.8(c). For example, the D.C. Circuit recognized, in Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 398 (D.C. Cir. 1973), a decision reviewing standards under CAA section 111, that “‘start-up’ and ‘upset’ conditions due to plant or emission device malfunction, is an inescapable aspect of industrial life and that allowance must be made for such factors in the standards that are promulgated.” Id. at 399. Similarly, in Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427 , 432 (D.C. Cir. 1973), cert. denied, 416 U.S. 969 (1974), another section 111 case, the court hel d that SSM provisions are “necessary to preserve the reasonableness of the standar ds as a whole.” Id. at 433. In National Lime Ass’n v. EPA, 627 F.2d 416 (D.C. Cir. 1980), another case reviewing emission standards promulgated under CAA section 111, the court held that the C AA requirement that

NSPS be “achievable” means that the standards must be capa ble of being met “on a regular basis,” including “under most adverse circumstances which can reasonably be expected to recur,” including during periods of SSM. 627 F.2d at 431 n.46. See a lso Marathon Oil Co. v. EPA, 564 F.2d 1253, 1273-74 (9th Cir. 1977); NRDC v. EPA, 859 F.2d 156, 207-208 (D.C. Cir. 1988) (similar conclusion when considering analogous Clean W ater Act requirements).]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 11

Comment: EPA’s requirement that emission limitations apply at all ti mes oversteps legal authority, and even if legal the proposed standards for startu p and shutdown periods do not meet the achievability criteria of Section 129.

EPA states that emission standards apply at all times including during periods of startup, shutdown and malfunction (SSM). This position flows fro m a 2008 court decision (Sierra Club v. EPA) related to General Provisions under 40 CFR Part 63. EP A has acknowledged that the Court’s decision did not specifically address category-spec ific SSM provisions. The case also did not deal with Section 129. As such, we believe that EPA i s over-stepping its authority to void longstanding category-specific and Section 129 SSM provisions

. Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC)336

Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 15

Comment: EPA’s standards should allow States to set alternative mass em ission rate standards applicable during SU/SD.

EPA should allow an alternative approach in which each State could address SU/SD emission standards in its State Implementation Plan (SIP). The SIP would specify a procedure which would be used to set mass rate emission based standards for each subcategory and unit case-bycase based on emissions reductions achieved using accepted SU /SD procedures. For example, for a unit using SNCR NO X

reduction technology the SU/SD NO X standard would be set considering the SNCR system would not be fully operable for a period of time after startup until the furnace temperature profile stabilizes. SU/SD emissi ons would be minimized by the same emission reduction technologies that would enable units to comply with all MACT standards and would thus represent a small component of a unit’s annual em issions. The case-by-case SU/SD emission limits would be written into facility permits and become federally enforceable mass emission standards. The unit’s CEMS would be used to calcula te and report mass emissions during SU/SD periods.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion. Also, we have expanded the provisions for uncorrected CEMS data during startup and shutdown and have discussed these cha nges in the preamble to the final rule. Furthermore, as discussed elsewhere, we have made revisions to some of the operating parameter provisions to allow for adjustment during varying loa d conditions. Taken together, these may address some of the commenter’s concerns on this issue. Finally, we note that the authority to approve alternatives to the emission limita tions and operating limits, as the commenter suggests, may not be delegated to State, local or tribal agencies, as specified in §60.2030(c).

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 31

Comment: We disagree with EPA’s unsupported assertions that the s tandards address startup and shutdown periods. Corrected (and even uncorrected) emi ssion concentrations can be significantly higher during startup and shutdown due to the unav oidable less-than-optimal emissions control performance during transitional (non- steady state) conditions. For example, at biomass ERUs combustion-related emissions such as CO, pa rticulate (smoke), and opacity increase during the startup period when load and temperature a re coming up to full load steadystate conditions. The Maine Department of Environmental Protection has stated “Wood and multi-fueled boilers produce large CO variations during sta rtups as the boiler heats up. Start-ups can take up to 14 hours for some units. Shutdowns can also result in significant CO variability.” 14 EPA itself recognized in the Boiler MACT that “CEM dat a show that CO levels have a higher degree of variability than other pollutants ” (76 Fed. Reg. 15646). It doesn’t matter337

whether these units are being fired with biomass fuel or biomass solid waste – the equipment involved is virtually identical and fuel combustion characte ristic differences are minimal. Startup burners reduce emissions by preheating the combustion cha mber and downstream equipment but are not sized to achieve full load temperatures; even if they were, they could not completely avoid temporary sub-optimal combustion conditions as h eat load shifts from auxiliary fuel to waste during startup and from waste to auxiliary fuel during s hutdown. Air pollution control equipment goes through similar transient temperature and f low conditions, e.g., changing furnace temperature and velocity profiles make SNCR systems less effective during startup than during full load steady state conditions. These conditions are distinct from the less variable conditions that occur during typical steady-state operations. EPA’s emission database excludes these periods and therefore does not capture this component of va riability, leading to MACT floors that have not been achieved in practice.

EPA should reconsider the standards that are applicable duri ng startup and shutdown periods. EPA should include review CEMS and other data and conduct an e ngineering assessment of combustor and air pollution control equipment practices to establish performance capabilities. If EPA cannot use best operating practices under Section 129 as it has under Section 112, then it should consider several options for separate and distinc t startup and shutdown standards including:

• Uncorrected concentration standards that reflect actua l performance (simply removing the oxygen correction as EPA has proposed to do in the recon sideration rule is not sufficient and does not reflect what CISWI ERUs achieve during startup);

• Corrected concentration standards developed from data obt ained during startup and shutdown periods with longer averaging times to accommodate short t erm swings; and

• For existing units requiring State Implementation Plans (SI P), a process that sets case-by-case numerical mass-based emission standards.

[Footnote: 14 Letter James P. Brooks, Bureau Director, State of Maine Bureau of Air Quality to James Eddinger, USEPA, February 4, 2010.]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion. Also, we have expanded the provisions for uncorrected CEMS data during startup and shutdown and have discussed these cha nges in the preamble to the final rule. Furthermore, as discussed elsewhere, we have made revisions to some of the operating parameter provisions to allow for adjustment during varying loa d conditions.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 24

Comment: NACAA agrees that a definition limiting the period of “startup” is appropriate. We recommend that such a definition be based on a percentage of the normal operating load of the338

unit as some sources may operate for extended periods of ti me at far less than the full rated capacity of the unit.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion. Also, we have expanded the provisions for uncorrected CEMS data during startup and shutdown and have discussed these cha nges in the preamble to the final rule. Furthermore, as discussed elsewhere, we have made revisions to some of the operating parameter provisions to allow for adjustment during varying loa d conditions.



### 7Q. CISWI does not satisfy CAA 112(c)(6) requirements (Deni ed Petition issue)

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 1

Comment: THE CISWI RULE DOES NOT SATISFY CLEAN AIR ACT § 112(C)(6)

. As pointed out in the 2010 Comments and the Petition, EPA f ailed to set emission standards for polychlorinated biphenyls (PCBs) and polycyclic organic matter (POM). EPA has an obligation to set numerical emissions standards for all hazardous a ir pollutants emitted by sources subject to the CISWI Rule because EPA has counted source categor ies covered by the Rule toward meeting its obligations under section 112(c)(6). See Memorandum, Emission Standards for Meeting the Ninety Percent Requirement Under Section 112(c)(6) of the Clean Air Act, EPA-HQ-OAR2004-0505 (February 18, 2011). Section 112(c)(6) expressly provides that E PA must “list categories and subcategories of sources assuring that sourc es accounting for not less than 90 per centum of each [enumerated] pollutant are subject to sta ndards . . . .” 42 U.S.C. § 7412(c)(6) (emphasis added). EPA must therefore assure that a sourc e category counted towards the (c)(6) ninety-percent requirement is subject to standards for each hazardous air pollutant that a category emits. See National Lime Ass’n v. EPA , 233 F.3d 625, 634 (D.C. Cir. 2000); Mossville Environmental Action Network , 370 F.3d 1232, 1242 (D.C. Cir. 2004). Even if EPA were not required to set standards for all hazardous air pollutants emitted by CISWI sources—which it is—it would at least be required to set standards for th e specific hazardous air pollutants enumerated in section 112(c)(6). EPA’s claim that it has satisfied its § 112(c)(6) obligations with respect to these pollutants by setting standards for other p ollutants that “effectively” control PCBs and POM is legally irrelevant and arbitrary. The C lean Air Act does not authorize EPA to set surrogate standards for § 112(c)(6) pollutants. Even if i t did, however, those surrogates would have to satisfy the well established test for valid surr ogacy. Specifically, EPA must demonstrate that: 1) the target HAP is “invariably” present in the sur rogate pollutant; 2) methods to control or capture the surrogate pollutant “indiscriminately” contro l or capture the target HAP as well; and 3) the controls for the surrogate are the “only means” by which facilities “achieve” reductions of339

the target HAP. Sierra Club v. EPA , 353 F.3d 976, 984 (D.C. Cir. 2004) (quoting National Lime

, 233 F.3d at 639). Neither dioxins nor CO satisfy this test as a surrogate for either PCBs or POM. Specifically, neither PCBs nor POM is ever present in dioxins or CO. Accordingly, measures to reduce dioxin and CO emissions might actually produce increa ses in emissions of PCBs and POM. Moreover, controls on dioxins and CO are not the only means by which sources achieve reductions in PCBs and POM. In particular, although EPA s eeks to rely on the combustion controls that units use to reduce CO emissions and add-on te chnologies units use to reduce dioxin emissions, sources may “achieve” lower PCBs and POM emissions within the Clean Air Act’s meaning through other means such as burning different w astes or fuels. Accordingly, EPA’s claims that controls for dioxins and CO also contr ol PCBs and POM do not suffice.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.



### 7Z. Other

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 1

Comment: Rather than pursuing the NHSM, CISWI and cement NESHAP rulemakings simultaneously as it is currently doing, EPA should be pur suing the three rulemakings sequentially: As EPA is well aware, the Agency is now under judicial order to reconsider the cement NESHAP rule it issued on September 9, 2010. 75 Fed. Reg . 54970 et seq. EPA is also aware that, in PCA v. EPA (D.C. Cir. cases 10-1358, 10-1359, slip opinion issued December 9, 2011), the D.C. Circuit ruled that the formulation of NES HAP and CISWI rules are "truly interdependent efforts.'' slip opinion at 10, and remanded t he NESHAP rule to EPA so that the cement NESHAP and pending CISWI rules can be formulated in a consistent manner. The key to achieving the court's objective of a consistent formulati on of the CISWI and cement NESHAP rules is clearly the outcome of the NHSM rulemaking. Indeed, the NHSM rule is of paramount importance to the outcome of the court's remand, because the sole demarcation line that can be drawn between CISWI and NESHAP sources, which are "mutuall y exclusive," is whether a source is (or is not) combusting a "solid waste" defined u nder the NHSM rule. To that end, on January 5, 2012, PCA made such a recommendation to EPA Assis tant Administrator McCarthy with respect to the cement NESHAP. The reasons we c ited in support are equally applicable here. Therefore, to avoid repeating the content of our Ja nuary 5, 2012 1etter verbatim herein, a copy of our letter to Administrator McCarthy is included wi th these comments as Appendix B and is also incorporated by reference into these comment s. 4

As that letter demonstrates, EPA cannot properly comply with the court's remand unless it finalizes the NHSM rule before proceeding to finalize the NESHAP rule. For similar r easons, EPA would need to finalize the NHSM rule before finalizing the CISWI rule.340

Response: We have not reopened this issue for reconsideration. W e originally discussed this issue in section V. of the preamble to the March 2011 final rule in our responses on comments on the CISWI Promulgation Schedule and 112(c)(6) obligations. Furt hermore, EPA has considered the final definition of non-hazardous solid waste in issui ng the final CISWI standards. As a result, we have revised the CISWI inventory but we have not changed our approach to setting the standards. For this reason, we maintain the public could f airly evaluate the CISWI rule and identify any concerns with the approach taken. The fact that the standards may have changed as the result of a changed inventory, without a change in the analytical approach, is of no consequence. Standards often change after proposal based on the submission of additional information and we see no substantive difference between that situation and the situation we have in this case.

Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1 Comment Excerpt Number: 13

Comment: Section 129 of the Clean Air Act provides that a unit that is a commercial and industrial solid waste incinerator is subject to the CISW I Rule, and no other MACT standards. 42 U.S.C. 7429(h)(e). If a unit combusts solid waste, it is a CISWI unit. The NHSM Rule is intended to provide the basis for distinguishing between CISW I units and other combustion units by identifying what material is a solid waste when combus ted. Unfortunately, the proposed revisions to the NHSM Rule do not add the clarity and cert ainty needed to by both EPA and the regulated community to determine what units are CISWI units a nd what units are subject to other MACT standards.

As the D.C. Circuit Court of Appeals recently recognized, EPA cannot finalize any MACT rule for combustion units without first identifying what units w ill be classified as CISWI units, based on the NHSM Rule. In the context of developing Nationa l Emission Standards for Hazardous Air Pollutants for Portland cement facilities based on the maximum achievable control technology (Portland Cement MACT), EPA argued that it could finalize MACT standards for cement kilns based on its understanding of the universe of cement kilns su bject to the MACT at the time of the rulemaking. 76 Fed. Reg. 28318, 28321 (May 17, 2011) (denying in part and gran ting in part petitions for reconsideration). In that rulemaking, EPA finalized the Portland Cement MACT in September 2010, six months before finalizing the NHSM Rule. Under the NHSM Rule, some units that had been considered units subject to the Portlan d Cement MACT became CISWI units. However, EPA included emissions data from those units when establishing the MACT standards for cement kilns. Granting the Portland Cement Associa tion’s petition for review of those MACT standards, the D.C. Circuit stated: "Basing its decision on a premise [the premise that all kilns would be subject to the Portland Cement MACT] the agency itself has already planned to disrupt is arbitrary and capricious." Portland Cement Ass’n v. EPA, Case No. 10-1358 (D.C. Cir. Dec. 9, 2011), slip op. at 13.

The same issue is presented by EPA’s development of both its CISWI standards and its Boiler MACT standards. EPA is once again changing the NHSM Rule and other MACT standards at the same time, "disrupting the premise," of what units f all into what categories. In fact, EPA not341

only "disrupts the premise," it adopts contradictory premi ses in these various rulemakings, rendering these rulemakings arbitrary and capricious. Specifi cally, in the NHSM Proposal, the premise adopted by EPA is that all NHSM is waste, unless a combustor makes a series of complex demonstrations and meets the record-keeping requ irements of the CISWI and Boiler MACT Rules. Proposed 40 C.F.R. 241.3 (establishing a presumptio n that material is a waste). In contrast, in the CISWI and Boiler MACT Proposals, th e premise adopted by EPA is that most NHSMs are non-wastes. This inconsistency threatens th e validity of these MACT rules and undermines EPA’s ability to claim that its rules are bas ed on reasoned decision-making. See Portland Cement Ass’n v. EPA, slip op. at 15.

To avoid arbitrary and capricious rulemaking, the undersigne d strongly urge EPA to complete final action on the NHSM Proposal before promulgating t he CISWI and Boiler MACT Rules and, in the NHSM rule, to presume that materials used as fuel or ingredients in combustion units are non-wastes or to categorically list as non-waste all the fuels and ingredients used by units that EPA has determined to be subject to the Boiler MACT, incl uding all the categories of fuels and ingredients discussed above.

Response: For response, see DCN EPA-HQ-OAR-2003-0119-2603-A1, Excerpt No. 1

.

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA-HQ-OAR-2003-0119-2615-A1 Comment Excerpt Number: 2

Comment: Lafarge would like to comment on the procedural issues r esulting from EPA’s approach to undertaking the NHSM and CISWI reconsideration r ulemakings simultaneously. Revisions to the NHSM rule will have a direct effect o n which materials combusted in cement kilns are solid wastes. Until the revision to the NHSM rule is completed, it is impossible for EPA to determine which cement kilns utilizing alternative fuels actually combust solid waste and which do not. Through the notice-and-comment process, EPA i s obligated to seriously consider and evaluate comments and data submitted by parties. If this process is to have any meaning, EPA cannot responsibly pre-determine its final resolution b efore the process runs its course. Without knowing which waste-burning kilns combust solid waste, it is impossible to accurately derive MACT-based floors emissions levels and establish CISWI standards. We note that EPA is now under judicial order to reconsider a third rule which i nter-locks with the CISWI and NHSM rules: the “National Emission Standards for Hazardous Ai r Pollutants” (“NESHAP”) rule EPA issued for Portland cement manufacturing on September 9, 2010. 75 Fed. Reg. 54970, et seq. Quite recently, in PCA v. EPA (D.C. Cir. cases 10-1358, 10- 1359, slip opinion issued December 9, 2011), the D.C. Circuit unanimously ruled that the formul ation of NESHAP and CISWI rules are “truly interdependent efforts.” (Slip opinion page 10.) Th e Court remanded the NESHAP rule to EPA to require that EPA formulate the NESHAP and pend ing CISWI rules in a consistent manner. The pending NHSM rule is of paramount importance to this exercise, for the dividing line between “mutually exclusive” CISWI and NESHAP sources is drawn solely by whether a source is combusting a “solid waste” as defined in the NHS M rule. On January 5, 2012, PCA made such a recommendation and request, together with a dis cussion of the supporting reasons, to Assistant Administrator McCarthy. A copy of that l etter is included with these comments as342

Appendix A. As that letter demonstrates, EPA cannot comply with t he Court’s remand unless it finalizes the NHSM rule before proceeding to finalize the NESHAP rule. (See page 2 of the attached letter.) Similarly, EPA would need to finalize t he NHSM rule before it could finalize the CISWI rule.

Response: We do not agree with the commenter. For response, se e DCN EPA-HQ-OAR-2003- 0119-2603-A1, Excerpt No. 1.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 8

Comment: We are very concerned that EPA is not leaving itself sufficient time to evaluate the substantive comments including new data, make appropriate re visions, and finalize within a couple of months after an important interagency review pr ocess. Cutting corners and rushing major rules such as these to the Federal Register grea tly increases the chance of errors and oversights that would either make it vulnerable under co urt review or require further modifications after promulgation. That does not serve t he public or the Agency well.

Response: This comment requires no response.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2 Comment Excerpt Number: 14

Comment: In the event that EPA continues to regulate kilns th at utilize non-hazardous secondary materials as under CISWI, CEMEX is concerned that there is still a lot of work to do on the overall CISWI regulation, not just those porti ons revised in the December 23, 2011 Federal Register. The cement industry has worked cooperativ ely with EPA to apply the hazardous waste incineration rules (HWC NESHAP, proceed ed by RCRA’s BIF rules) to a manufacturing industry which resulted in rules that at le ast contemplate the terminology and operations specific to our plants. That has not been an e asy or quick process, but there are nearly 25 years of experience of working through these issues with EPA. This same process will be critical to embark on with EPA on the CISWI rule, as EPA has only so far requested comments on specific new portions/standards applicable to the newly drawn in industries. As a result we want to make sure EPA understands the work that will need to be done quickly to work through the rules to allow a manufacturer to be able to comply w ith rules written for incinerators.

Response: EPA understands that compliance with this final rule will take time and the Agency has extended to compliance date to provide sufficient tim e for the regulated community to come into compliance with the final rule.343



### 8A. Methodology: General Approach (Denied Petition issue)

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 5

Comment: EPA has studied its approved reference testing methods fo r years and has amassed significant information about the performance of those m ethods. Based on this body of knowledge, EPA reports that, where the result of a test is near the detection level applied, most of its test procedures are accurate to within +/- 50 percent ; at other times EPA asserts that these tests are accurate to within +/- 15 percent. Monitoring devices, such as CO monitors, must meet stringent requirements for drift and must be calibrated t o within 2 percent of the full scale value of the expected emission level of the unit. The paired te sting data and other data in the record of this case show that, especially at the better performi ng sources, the variability in Hg and other specific pollutants is quite low. Similarly, years of t esting of pollution control devices found in this sector, such as PM controls (fabric filters and e lectrostatic precipitators (“ESP”), show highly consistent performance. Thus far, EPA has not fac tored any of these facts into its determination of the performance of the best performing units. In order to evaluate whether EPA’s procedure for calculating variability is appropriate, one first has to examine what “variability” EPA is calculating and whether it is rel evant under sections 112 or 129. EPA’s procedure involved determining the 99th percentile UPL of the di fference in performance between all test runs for all units in the top 12 percen t. This calculation improperly combines two factors: (1) the inter-unit difference between the “best pe rformers” and “the best of the best performers” and (2) the expected variability in performance for each of the best-performing units. EPA does not have the resources to evaluate each o f these situations in detail to determine whether the difference represented inherent variability in performance of the unit or is a consequence of factors (such as fuel composition or specif ic hardware design) that are within the control of the source, and so it simply, and incorrectl y, assumes that each of the units within the top 12 percent is identical and that all of the differen ce in performance is a “variability” in performance that is essentially random and therefore s usceptible to statistical analysis. This can be addressed by normalizing the data so that one only examines the variability in performance. Replicate compliance method testing of the best perfor ming units over a period of years and varying operating conditions would likely be the best method f or determining which units are among the best performing units and for assessing the varia bility of the performance of such units. However, EPA does not have such information and deve lopment of this information is infeasible at this time. Moreover, EPA does not have s ufficient data of any sort to make an accurate assessment of the variability of either indivi dual units or subcategories with relatively limited data. As discussed earlier, the problem is readil y apparent for new sources, where EPA’s attempts to determine the variability in the performance o f the “best” unit based on a single reference test clearly produce an incorrect result. This problem also exists in a large number of existing source subcategories where EPA has insufficient t est data to apply its method. EPA has acknowledged this problem and attempted to partially respond to it by using its “beyond the floor” MACT authority to raise the new source MACT lim it to the level of the existing source MACT floor in 24 subcategories. While directionally cor rect, we believe it is unlikely that this will be found to be sufficient, since common sense and basic arithmetic demonstrate that the344

result is still wrong – the performance of the “best” i ndividual unit cannot be the same as the average of the larger group. Moreover, EPA does not make a similar adjustment to existing source MACT floors that are also based on limited data . NACAA recommends that EPA examine a number of additional options for assigning a var iability factor, including a return to the philosophy underlying its 2004 determination of variability of performance. We provide more detailed recommendations later in this section. E PA compounds the error associated with attempting to employ its statistical procedures to extrem ely limited data sets by applying a series of multipliers and alternate tests of variability. In most, but not all instances, EPA selects the test that leads to the least stringent MACT floor determinati on. Moreover, the basis for several key decisions respecting data management (discussed below) is n ot well supported. The lack of a consistent, reasoned basis for EPA’s choices creates a risk that the rule will be overturned and in some instances, the resulting floor calculation will be substantially different if other, equally reasonable, factors are used in developing the final determi nation. We discuss a number of these issues in detail below, but the impact of EPA’s new st atistical approach in categories with relatively small numbers of tests is clearly illustr ated by the Hg limit EPA calculated for liquidfired boilers. While these factors affect all of EPA’s MACT floor calculations, they are most apparent in the calculations for new sources, which, unde r EPA’s methodology, always involve single units with limited testing. The following discussi on sets out our best understanding of the relative impacts of several EPA choices on the overa ll effectiveness of the resulting MACT floor for other subcategories. We have included herein and attache d as Appendix 1 a series of charts setting out EPA’s test data as provided as appendices to its MACT floor memo for each unit, along with EPA’s proposed limit for the applicable subcate gory. These charts provide a basis for the assessment of the effectiveness of the proposed limit. EPA’s appendices included only the “lowest test result” for a given unit rather than all test results. In most instances, the difference in effectiveness is minimal, as most sources were only t ested once, so the “lowest test result” is also the highest test result. Where a significant number of units were subjected to more than one test, we have also produced a chart including all test results f or the top 12 percent to assist in gauging the effectiveness of the proposed limit. We encourage EP A to produce similar charts, including all test results, for all units for the rules it ulti mately adopts.

Definition of “Best Performing Unit”

More than any other factor, EPA’s definition of “Best Performing Unit” leads to overestimates of performance of the best performing units. It creates a si tuation where units with high UPLs are designated as “best performing units” and displace better pe rforming units in the “top 12 percent” category. EPA is obliged to base the existing sour ce MACT floor on the performance of the “best performing units” and has offered no plausible expl anation for its decision.

EPA has used two (or three) different methods for establ ishing the “performance” of the average of the best-performing 12 percent. In selecting the units to be included in the top 12 percent, EPA assumed that the performance of those units was demo nstrated by the best test result. Thereafter, in calculating the average of the selecte d units, EPA assumes that the performance of a selected unit is defined by all test results 6 available for that unit. EPA then multiplies these results by a fuel variability factor to establish the fi nal number that it uses to calculate the floor. This fuel variability factor is also different for diffe rent units, and so, again, the unit with the lowest single test result is not necessarily the “be st performer” as used in EPA’s calculations. NACAA believes that EPA should use either the best test result for both purposes or use the best345

average of all test results for both purposes. This use of inconsistent definitions of performance has resulted in at least one MACT floor that is highe r than it should be, as units with better average performance over all tests were excluded in favo r of other units with a lower individual test result but higher overall emissions. We also belie ve that use of the average of all test results for an individual unit is an appropriate measure of the per formance of that unit, provided that the subsequent analysis of variability does not then treat tha t average as a single test result. One way to address this issue may be to use the average of all te st results to identify the best performing units in the calculation of the average of the top 12 per cent, but then include all test results of the “best performers” in the determination of the potential variability of that average. 7 The identification of the “best performers” should take pla ce after all of the variability adjustments have been made to the universe of “candidate best perform ers.” In this way the MACT floor would not be artificially increased by the use of data fro m sources that are ultimately not the best performers within a subcategory.

The Upper Probability Limit (“UPL”)

In the development of the 2004 rule for this sector, EPA determined the base performance level of the median unit in the top 12 percent and then applied a variability factor that was calculated on the average of the variance in performance for all units with similar pollution technologies. The U.S. Court of Appeals determined that EPA’s method for identifying the base performance level was inappropriate, but did not opine on the method for determining the variability factor. 8 In developing the 2010 final rule, EPA attempted to calculate the anticipated variation in performance of each of the units in its “best performing” group on an individual unit or subcategory basis. Rather than simply determining the va riance in performance, EPA chose to calculate the UPL of the best performing units, that is , the emission level that each unit in the top 12 percent could be expected to meet at a 99th percentile co nfidence level. EPA’s procedure also errs by attempting to determine the emission level that the bottom half of the top 12 percent will meet 99 percent of the time. However, EPA should not ex pect these units to meet the MACT floor limit since nominally half of the top 12 percent d o not meet the average and therefore are not complying units. 9 The development of a compliance margin should be limited to an evaluation of the variability of the top 6 percent perfor ming units under the compliance conditions imposed by the regulation.

Failure to Require Sufficiently Precise Testing and Subs equent Treatment of BDL Test Results

The first step in any scientifically sound measurement process is to ensure that the procedures employed are sufficiently precise to determine meaningful differences. In response to questions from industry as to whether they should extend sampling per iods to ensure more precise results, EPA advised them that they did not need to and that the a gency would address it the final rulemaking. EPA defines the method detection limit as, "t he minimum concentration of a substance that can be measured and reported with 99% confidenc e that the analyte concentration is greater than zero and is determined from analysis of a sample in a given matrix containing the analyte." Where the “adjusted” average emissions of th e top 12 percent is “near” the method detection level, EPA now proposes 10 to increase the calculated average so that the floor i s not less than 300 percent of the detection level. To justify this increase EPA observes that when measurements are near the detection level the measureme nt uncertainty can be as high as (+/-) 40 percent, while such uncertainty is reduced to (+/-) 15 percen t if the measured value is three times346

(300 percent) the detection level. However, since such mea surement uncertainties are necessarily part of the overall variability determined in step one of EPA’s procedure, there is no need or basis to substitute this arbitrary figure for the actual emission data that the statute requires be used. Additionally, it also makes no technical sense to int roduce a known error of 300 percent in the MACT floor in order to avoid a possible error of 25 per cent 11 in any individual measurement. This step constitutes yet one more bias in favor of all owing higher levels of HAP emissions. In this rulemaking EPA proposes to compound this error by “adjust ing” the detection level reported by the laboratory in accordance with established protocols , even where EPA has no information that the detection levels reported by the laboratory are incorrect.

Pooling Variability

Pooled variance is a method for estimating variance give n several different samples taken in different circumstances where the mean may vary betw een samples but the true variance (or precision) is assumed to remain the same. Under EPA’s re vised UPL procedure, fuel analyses results are disaggregated from emission test results and further disaggregated by the number of unique sources. As a result, the method is highly sensitive to the number of tests and the number of units that are tested. However, in some subcategorie s the majority of the test and fuel analysis results were BDL and the detection limits for the emi ssion test results are several times lower than those for the fuel analyses. EPA’s pooled variance process generates high levels of variability, based largely on differences in the degree o f precision of the measuring process and EPA’s treatment of BDL data (where the results are kn own to be less than the BDL). This leads to unreasonable results where the sample size is relat ively small. In addition to generating unrealistic results for a broad array of new source sub categories, EPA’s proposed new statistical approach also appears to lead to results for PM and CO that are not consistent with the in-use performance of units in a number of other subcategories with limited data.

[Footnotes:]

6 EPA includes all test results of “best performers” in its calculation of the MACT floor for each subcategory. This effectively over weights the contribut ion of sources that have been tested multiple times compared to those that may have been t ested only once.

7 This is not the same as using the 99th percentile UPL of the individual runs as a factor to multiply the average.

8 It did agree that EPA could apply a variability factor to t ake into account expected variation in performance of such units.

9 Those units in the top 12 percent, but with emission leve ls greater than the average of the top 12 percent (i.e., the 6th through 12th percent best performer s), do not “comply.”

10 EPA employed this technique in the cement kiln New Source P erformance Standard rule.

11 This is the difference between the potential error at the detection level and that at three times the detection level.]347

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Michael D. Stevens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA-HQ-OAR-2003-0119-2596-A1 Comment Excerpt Number: 4

Comment: For a number of the emissions limits proposed in Sub parts CCCC and DDDD, EPA has based the limitation on an analysis of stack test data, but compliance with the limit will be demonstrated based on monthly averaging of emissions, using a Continuous Emissions Monitoring System (CEMS). National understands that th e variability in emissions performance that will be recorded using a CEMS is greater than the va riability EPA has estimated in its analysis of stack test data. Further, this higher degree of variability has been demonstrated in CEMS data for Total Hydrocarbon (THC) and Particulate M atter (PM) that are now in the record for the PC NESHAP regulation. With this in mind, the pro posed CISWI standards are more stringent than EPA intended under its current analysis. Therefore, National Cement asks that EPA revise upward all of the proposed standards that are st ack test data based but must be met with CEMS, to reflect the higher variability that is i nherent in CEMS data.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012 in the CISWI docket for further discussion.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 24

Comment: EPA has improperly based its floor analysis on individua l test runs, rather than on complete stack tests (i.e., the average of 3 test runs), which are the basis on which the standards are stated and will be enforced: PCA argued in prior comme nts that EPA CISWI data and associated floor analyses were inadequate and fell short of providing an accurate characterization of emissions from solid waste-burning kilns. PCA suggested t hat EPA should restart the process of standards development. We note that in EPA's filings be fore the federal district court in December, 2010 (as discussed above), EPA essentially agreed with us. We thus urge EPA on reconsideration- if in fact EPA proposes to include any cement kilns within the CISWI rule-to propose an entirely new set of standards on an appropria te database consistent with PCA's comments attached and consistent with EPA's own statem ents before the federal district court.

Response: See the “CISWI Reconsideration Issues” memorandum, da ted December 19, 2012, in the CISWI docket for further discussion.348

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 2

Comment: EPA has “cherry picked” the best data in setting eac h standard, without regard for the sources from which the data come. The result is a set of standards that reflect the performance of a hypothetical set of best performing sour ces that simultaneously achieve the greatest emission reductions for each and every pollutant rather than the actual performance of a set of top performers. A “source-based” approach would resu lt in emission limits that a realworld incinerator, kiln, or energy recovery unit could ac tually achieve.

Even if EPA rejects the source-based approach, there ar e other adjustments to the standard setting process that would help improve achievability. Use of an upper limit (UL) instead of an upper predictive limit (UPL) or incorporation of a percent reduction standard are two options.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 10

Comment: Based on the data available to EPA, the Agency has proj ected that only 2 units will meet the CISWI limits for existing units:

• 1 of 26 solid ERUs

• 1 of 6 liquid ERUs

• 0 of 26 incinerators

• 0 of 14 small incinerators

• 0 of 23 kilns

This is clear evidence that the CISWI rules are unachiev able and, therefore, unjustifiably stringent. EPA itself admits that this regulation wil l likely cause many units to cease operation due to the costs of controls required, that it will preve nt the building of new units, and that it will increase costs to many other units that have to substitute purchased fossil fuels for secondary materials currently burned as fuels. Such statements furt her demonstrate that the standards are unwarranted. The biggest problem with EPA’s approach to se tting the standards is that they are being set using a very small amount of data from a very small number of sources. For the incinerator subcategory, the reason a small number of uni ts are being used to set the limits is that the existing standard caused many units to shutdown. The remain ing units would have installed349

or improved controls in order to comply with the origina l CISWI standards, effectively resulting in the new limits being set based on the top performers among the already top performers. None of these units, all of which comply with the current li mits from the 2000 CISWI rule, comply with the revised limits.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 25

Comment: EPA Should Adjust its Floor Setting Process

Section 129 of the Clean Air Act requires MACT standards f or new and existing units to be based on “maximum degree of reduction in emissions” consi dering cost, and non-air health and environment impacts and energy requirements. It also requi res minimum standards that are at least as stringent as the emissions limitations achiev ed by best performing unit(s) in a category, commonly referred to as “MACT floor limits.” In its CI SWI rule proposal, EPA used a step-bystep statistically-based methodology to establish MACT fl oor limits for both new and existing units in each of four CISWI categories. Methodology steps included ranking units based on average performance as determined from EPA’s emissions da tabase, selecting best performing unit(s), pooling test run data for the selected unit(s), char acterizing the data as normally or lognormally distributed, and calculating an upper limit, all on a pollutant-by-pollutant basis.

Commenters stated that the methodology EPA used was fla wed, especially in light of EPA’s very limited database developed through its Information Col lection Request, and that it resulted in overly stringent standards. This stringency was evidenc ed by the fact that in each and every case, over 100 in all, EPA’s floor limit (the minimum standard) ultimately became the final standard despite EPA’s detailed assessment of beyond-the-f loor options. Of central relevance was whether the methodology properly accounted for the fu ll range of emissions variability. Commenters suggested many changes and corrections to the met hodology and its implementation and encouraged EPA to ensure its floor lim its reflected previously achieved standards.

In the final rule EPA used the same basic approach and st eps in setting the MACT floors as in the proposal, but made two changes – 1) pooled data were judged l og-normally distributed unless conclusively demonstrated otherwise, and 2) units with more data were adjusted to weight their influence on the pooled data calculations. EPA also emplo yed its proposed alternate case upper predictive limit (UPL) instead of the base case upper lim it (UL) to calculate the floors.

EPA’s methodology is still flawed. When coupled with it s very limited database, typically a single 3-run test per pollutant for only some of the CIS WI units, EPA’s rigid statistical approach has resulted in inconsistent, sometimes irrational, a nd economically challenging if not unachievable emission standards. EPA has a responsibility t o obtain emissions data that350

represent the actual range and variability of operating co nditions. It is not rational for EPA to turn a blind eye toward the inadequacy of the existing emiss ions data and unwarranted for the Agency to claim that the mere use of “available data” ex onerates the Agency from obtaining additional data when needed to avoid facially implausible results. 6 These standards also encourage practices counter to EPA’s own solid waste man agement and energy policies. For example:

• Existing biomass power plants combusting clean forest-deri ved biomass and subject to Boiler MACT rules must meet a hydrogen chloride emission limit o f 0.022 lb/MMBTU, equivalent to about 17 ppmdv 77 . Add even small amounts of biomass of a type that EPA has now deemed “solid waste,” such as treated wood, to the fuel mix and the boiler becomes subject to CISWI Energy Recovery Unit (ERU) rules where the limit drops to 0.45 ppmdv 7 , 38 times more stringent. The CISWI mercury limit is twice as stringe nt. On the other hand, the CISWI PM limits for coal and liquid ERUs are less stringent than all but one of the Boiler MACT coal and liquid subcategory PM limits. While we understand why there is not likely to be perfect harmony between Boiler MACT and CISWI standards, the sheer mag nitude of differences casts serious doubt on the viability of EPA’s floor-setting methodology . MACT is after all a technologydriven standard and there is no fundamental difference b etween the equipment or combustion properties of biomass-to-energy boilers subject to Boile r MACT and those subject to CISWI that would justify the radically diverse standards.

• In the above example, the exceedingly low CISWI hydro gen chloride and mercury limits, among others, will drive biomass power plants to abandon burni ng biomass “solid wastes” that would subject them to the CISWI standard or, due to economic constraints, cease operating altogether. This would result in landfilling of urban wood and landfilling or open burning of agricultural residues, in contradiction to EPA’s own Sol id Waste Management Hierarchy, federal and state air pollution control programs, renewable ener gy policies, solid waste landfill “diversion” programs, and mandated permit requirements to ge nerate emissions offsets from combusted biomass.

• EPA’s CO standard for the new CISWI biomass category is based on a single 3-hour test of the one unit identified as the best performer. The test cons isted of three runs having identical results at 153 ppmdv 7 . In this case and for other CO floor limits EPA had adj usted any measured CO data below a calculated method detection level, which res ulted in some higher values being used in floor calculations, but also resulted in lower varia bility (especially for new source floors), since the same value was utilized in all 3 runs for calcul ation of the UPL. EPA conducted its statistical analysis and set the limit at 160 ppmdv 7 , less than 5% above the average test result. It’s hard to understand how this limit reflects emission varia bility, especially since EPA itself recognizes that CO in particular is a variable pollutant stating “CEM data show that CO levels have a higher degree of variability than other pollutants ” (76 Fed. Reg. 15646). Here and elsewhere EPA has applied its methodology to very limited data with seemingly no check on whether the resulting floor limit is rational.

• Section 129 requires new units to meet standards which are equivalent to or more stringent than existing units, but EPA’s methodology resulted in CIS WI MACT floors for new solid/biomass ERUs that were much less stringent for s ix of ten pollutants. EPA “fixed” this problem by lowering the new unit limits down to the level c alculated for the existing units for351

these six pollutants explaining in table footnotes: “The N SPS limit exceeds [i.e., is less stringent than] the EG limit. The EG limit was selected as the NSPS limit.” (76 Fed. Reg. 15710, 15726, 15727). This is a further example of application of statist ics to a small database yielding irrational results.

Given these types of unusual outcomes and the apparent li mitations of EPA’s database and methodology EPA should reconsider its CISWI MACT floo r-setting methodology. EPA must examine the reasonableness of derived MACT floor limits, erring on the side of achievability; otherwise, it risks setting standards that have not been achieved in practice, in contradiction to the law.

[Footnotes:

6 We note that, unlike § 112(d)(3)(A), EPA’s standard settin g obligations under § 129(a)(2) are not limited to sources “for which the Administrator has emissions information.” The lack of such a qualification in § 129 is a clear signal that EPA must a ctively seek to obtain comprehensive data on the sources covered by § 129 standards.

7 Parts per million dry volume corrected to 7 percent oxygen .]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 27

Comment: Selection of upper limit value. In the final rule, EPA selected the 99th percentile upper predictive limit of the pooled best performer data as t he MACT floor for each pollutant. To the lay person, 99% may sound like a very high compliance probability. To the CISWI operator, however, it means a 1% probability of failure, per pollutant, per performance test and represents an unacceptable compliance risk with numerous attendant consequences. For a two unit facility and nine pollutant limits non-compliance risk of a single performance test is 1- (0.99)18 = 17%, or approximately one failure every six years. In addition, setting the standard right at the selected upper limit does not allow for any compliance margin that every operator needs. For floors set using statistical metrics EPA s hould reconsider using a 99.9% upper limit as the MACT floor, as it did with the CO limit in the Ma rch 2011 Boiler MACT rule.

Upper Predictive Limit (UPL) versus Upper Limit (UL). In the final rule, EPA determined the MACT floor limit for each pollutant using individual tes t runs and a UPL calculation. The UPL as a statistical tool is misapplied in this case and shoul d not have been used. The UPL’s fundamental premise is that run-to-run performance test r esults are randomly distributed over the entire population distribution. EPA acknowledges this random premise (76 Fed. Reg. 15724), yet it provides no evidence supporting it. In fact, run-to-run res ults within performance tests at many CISWIs are not likely to be distributed randomly across the entire distribution. Rather, each of352

the three runs conducted during a performance test reflects conditions affecting a unit’s emissions at the time of the test. Many of these con ditions (e.g., waste characteristics, condition of combustor and air pollution control equipment, season of the year) are likely to remain the same or at least similar over the short duration (up t o a few days) of a performance testing program. Results for individual runs in a short term p erformance test will therefore not vary randomly across the entire distribution of emissions t hat would be observed over longer (monthly or annual) time periods. Accordingly, when using t he statistical approach to establish MACT floor limits EPA should use the UL, as originall y proposed in the CISWI rule, instead of the UPL.

EPA’s upper limit (UL) and upper predictive limit (UPL) ca lculations do not properly account for both intra-unit and inter-unit variability. In its UL and UPL calculations EPA has used the square root of sample variance instead of the total varia nce. By substituting sample variance for total variance EPA has not properly accounted for total va riability. Total variability is the sum of both within (intra) and between (inter) unit variability. Inter-unit variability is an additive value because the variance in emissions from each of the to p performing sources is independent of one another and dependent on each individual unit’s waste com position, combustor type, air pollution control type, test conditions and sample matr ix. Intra-unit variability is the variability observed in test results from the same unit due to differ ences in waste composition, and process and air pollution control operation conditions during each test run. As such, if total variability is not addressed MACT floors will not represent limitation s that can be achieved. Whether EPA uses the UPL or UL approach to determine MACT floors it s hould use the modified UPL or UL that accounts for total variance as used in the proposed Portland Cement Rule 8 and the HWC MACT Rule 9 . EPA provided no rationale for why it did not use total v ariance instead of sample variance in the UPL or UL MACT limit calculations. Its response only addressed use of UPL. The HWC MACT Rule estimated MACT floors that were ac hievable by the average of the best performing sources by using total sample variance.

The equation for the Modified UPL or UL that addresses tot al variance is:

UPL or UL = Mean + t √ VT

Where Mean is the average of the best performing MACT uni t averages and VT is the total variance determined as the sum of the within (intra) sou rce variance and the between (inter) source variance.

Total Variance of VT = VB + Vw,

Where VB is the variance of the average of the best performing unit averages. As described above VB is additive because the variance of each unit is independent of one another and dependent on individual units waste composition, combusto r type, air pollution control type and sample matrix affects when sampling. VW is the within or intra source variance and is calculated as the sum of the variances of individual runs within ea ch of the best performing sources since individual unit test results will vary with waste composi tion, and process and air pollution control operation conditions during each test run.

[Footnotes:353

8 Development of the MACT Floor for the Proposed NESHA P for Portland Cement, April 2009. EPA-HQ-OAR-2002-0051-2011.

9 Technical Support Document for HWC MACT Standards, Volume III: Selection of MACT Standards. U.S. Environmental Protection Agency, Office of Solid Waste and Emergency Response. September 2005, Pages 7-5 to 7-7. EPA-HQ-OAR-2004-0022-0453.]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 1

Comment: EPA has proposed to use an array of calculations, adj ustments and defaults to determine the new and existing MACT floors and has provided m ost of the calculations underlying its proposed floors. Our review of the detailed cal culation process leads us to conclude that EPA’s approach is flawed in several signifi cant respects and in almost every instance overstates the variability in emissions performa nce that is shown in EPA’s data set and other readily available information. These inflated calcu lations have resulted in the establishment of excessively lenient MACT floors. Ironically, for a f ew subcategories, EPA inexplicably failed to provide any allowance for variability or arbitrarily as signed a variability that is far too low to account for expected operational differences in performanc e over time.

In light of the significant errors related to variability, NACAA strongly recommends that EPA revisit each of its MACT floor calculations, especiall y where the proposed floor is so lenient that a large majority of existing sources already meet the l imit. We believe EPA has sufficient information available to EPA to correct the errors in its current proposal and issue a final rule on reconsideration in the next few months.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 2

Comment: Where EPA has data from testing at levels of precisio n sufficient to determine the actual variation in performance of a reasonably signific ant number of units, and where the agency’s approach to identifying the “best performing units” does not skew the results too significantly, the resulting calculations lead to proposed l imits that would lead to significant emission reductions from some of the highly polluting subca tegories. However, where these354

factors are not present, EPA’s procedures and assumptions lead to gross overestimates of the variability in performance of the best performing units and proposed emission limits that are higher than current emissions. Such limits simply crea te testing and paperwork burdens without providing any public health benefit. Moreover, these limi ts clearly do not meet the requirements of section 112 and are likely to lead to additional litigati on that delays reduction in HAP emissions from the entire sector. No single factor i s responsible for the EPA overestimates. In its comments on the 2010 proposal for this sector, NACAA ident ified several errors in the proposed EPA calculation methodology, including:

• use of inconsistent definitions of “best performing unit ”;

• use of the Upper Probability Limit (“UPL”) statistica l approach for units that are not expected under section 112 to currently meet a MACT floor, especiall y in data sets with small numbers of test results;

• treatment of “Below Detection Limit (“BDL”) emiss ion test results; and

• creation of large numbers of subcategories with limit ed numbers of emission test results.

In the final rule EPA declined to correct the errors ident ified by NACAA and provided no explanation for its decision to persist in those error s. EPA did, however, revise its calculation procedure, in response to comments from industry, and “pooled ” the statistical variation shown by individual units. The public was not provided an opportunity to comment on this change, even though it led to a significant upward revision of a number o f proposed limits. On reconsideration of the final rule, EPA now proposes to retain the proc edure used in the final rule and create additional subcategories for particulate matter (“PM”) emissions, which would cause very large increases in PM limits for a number of subcategories of sources. The magnitude of these errors is demonstrated by two key facts. First, EPA’s methodolo gy results in a situation where, in a majority of EPA’s proposed subcategories, the calculated new source MACT floor (based on the best performing unit) is higher (less stringent) than that for existing sources (based on the average of the top 12 percent of units in the subcategory). Common sense and basic arithmetic provide that the rate of emissions of the “best” unit (i. e., the lowest emitter in the group) must be less than the average of that unit and the emission rat es of a group whose emissions are higher. At a minimum, the procedure adopted by EPA must achieve this result.

Second, EPA’s methodology leads to emission limitations that are currently being met by almost all units subject to the regulation. This is inconsistent with the statutory requirement that the existing source MACT floor be set at the performance th at reflects the 94th percentile (average of the top 12 percent) of the best performing units. A det ermination of the variability of each of the sources in the top 12 percent is a worthwhile goal. However, the cost of conducting sufficient testing to do so reliably for each of the sources in th e top 12 percent of each of the large number of subcategories that EPA proposes is too high for the benefit that would be achieved and would further delay issuance of final rules for several years . EPA did not design its test program with the subcategories it now proposes in mind and therefore di d not require testing of a sufficient number of sources within each of the subcategories it is proposing. Thus, not only does EPA not have sufficient data to determine the variability in the performance of each of the individual units in the group, in many instances it does not have sufficien t data to reasonably apply statistics to the subgroup as a whole. In the most extreme instance E PA acknowledges that it does not have355

any data for mercury for one of its proposed subcategories . EPA also acknowledges that it does not have meaningful data for two of the regulated metal s that should be included in its alternate total selected metals (“TSM”) limit in any of its propo sed subcategories. We offer several suggestions below for potential methods of developing reas onable estimates of the average variability of performance that one might anticipate f rom better performing units, rather than attempting to calculate the variability of performance o f each individual unit where the data are not available to do so. We also offer several suggestions to correct the larger sources of error in EPA’s approach.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 8

Comment: EPA has recommended the use of the 99th percentile UPL of pre-regulation testing and argued that its use is justified because the agency adop ted the same approach in the medical waste incinerator MACT rule. This rationale does not e xplain why EPA believes the 99th percentile UPL is appropriate and not the 50th, 15 90th or, for that matter the 99.99th percentile. 16
The decision matters because with each increase in the “guaranteed” compliance margin, the standard increases, and there comes a point where the c ompliance margin is so great that sources can merely accept the risk of a failed compliance test rather than reduce emissions. If a source fails a compliance test it will ordinarily be afforde d the opportunity for a retest and only if a source has a confirmed deficiency in its control equipme nt will a modification be ordered. We are unaware of any situation where a source that is wil ling to make such modifications as are necessary to meet an applicable limit has ever been orde red to permanently cease operation on the basis of a single failed stack test. In contrast, where an excessive compliance margin is provided emission standards can be ineffective. , The degre e to which emission tests results can vary are not truly random, but are constrained by the la ws of physics and chemistry and, in many instances, the performance of pollution control devices. E PA’s statistical analyses of the data show that, if the data were randomly distributed, there would be a substantial number of instances where emission rates are less than zero. We know that this is not possible and so the data are “skewed” to the right. One method used by statist icians to adjust for this form of distribution is to assume what is known as a log-normal distribution. See Figure 1[see submittal for graph provided by commenter]. With the assumption of a log-normal distribution, one then evaluates the distribution of the logarithm of the numbe r rather than the number itself. EPA has employed this method in a number of instances. One featur e of log-normal distributions is that they have “tails” that become very long as the varian ce increases. That is, the difference between the mean and the value that represents the 90th percenti le probability is much greater where one assumes a log-normal distribution than otherwise. Howe ver, we know that the emission rate of specific pollutants, such as mercury (“Hg”), can never be larger than the amount of Hg in the fuel and that emission rates are also influenced by the operational characteristics of installed pollution control devices. Yet, EPA’s calculations rout inely predict results that are inconsistent356

with these facts. .They also lead to results, cited a bove, where the performance of the best performing unit is calculated to be worse than the average of the top 12 percent and where the calculated performance of the best units approximates the demonstrated performance of the worst units. These examples illustrate the point that in order to properly determine whether a particular statistical method is appropriate for a data s et, one must determine whether the results of the method employed make sense. We submit that EPA’s decision to use the 99 th percentile leads to unrealistically large calculated variations in performance of the best performing units, especially when assumed to be log-normal and especially w here the sample size is small so that relatively large variances are computed.

Fortunately, there are additional facts to help guide EPA’ s determination of a standard compliance margin to be applied to all subcategories – th e compliance obligations and testing conditions that are imposed by the standard. An equitable balance is struck when the same conditions used to establish the compliance margin are t hereafter used to set the compliance obligation (and vice versa). If a source is required to be regularly tested under conditions that represent the 99th percentile “worst-case” conditions, then a 99th percentile compliance margin might well be appropriate. Additionally, a larger compli ance margin is ordinarily appropriate for standards with short averaging periods and continuous emis sion monitors (“CEMs”) than for standards that have long averaging periods or where compli ance is determined by scheduled stack tests conducted by the source. 17 We also agree with EPA that a larger compliance margi n is warranted where the emission limit is at or near the detection limit of the reference method. EPA observes that standards are to be complied with “at all times,” but this is a truism that is not particularly helpful. 18 What are helpful are the provisions in the rules that set out the conditions under which compliance will be determined. In years past, facilities were to be tested under “reasonable worst case conditions.” Today, that standar d has been reduced to “representative” conditions – a phrase that suggests that a compliance ma rgin based on a 99th percentile projection 19 of possible emissions may be too large and that industry pr ojections of severe test conditions may be overstated. Moreover, the structure o f the compliance obligations itself suggests that the 99th percentile may be too stringent. The following factors, among others set out in the proposed rules, bear on a determination of th e appropriate compliance margin:

1. For sources that intend to comply with mercury and hydro gen chloride (“HCl”) fuel sampling, the rules require that a source conduct a stack test and de monstrate compliance using 90th percentile worst-case fuel (employing Student’s t-test to determine that percentile);

2. For other purposes (e.g., PM and CO compliance), the so urce may select a “representative” operating condition (suggesting that neither a 90th percenti le nor a 99th percentile worst-case test is required for these pollutants);

3. A source whose emissions during a test are less than 75 percent of the applicable limit is entitled to a reduced frequency of stack testing (suggesting t hat EPA does not really believe that replicate testing of sources will vary by more than 33 pe rcent);

4. Parametric operating limits may not generally be less effective than demonstrated during the stack test (a useful provision, but also one that suggests that EPA believes that in-use emissions variability is zero);357

5. Many of the applicable standards and other requirements contain exclusions from full compliance at all times (e.g., six-minute exclusion unde r opacity requirements, 5-percent exclusion for bag leak detection systems);

6. Power (voltage or amperage) to electrostatic precipitat ors (“ESPs”) may not fall to less than 90 percent of that employed during a stack test 20 (for which we can think of no justification); and

7. Parametric limits are allowed to be based on the low est (least effective) hourly parameters of the three runs of the compliance test. On its face thi s will not lead to compliance since it will be less than the average flow rate during the test. Moreove r, such parametric limits do not provide any allowance for the variations employed in setting th e standard. EPA should provide that the operating parameters be set at thelevels employed during t he test run that yielded the lowest emission rate, plus some additional margin to account fo r in-use variability.

While EPA may have used the 99th percentile UPL in one rec ent New Source Performance Standard (“NSPS”), in other NSPS rulemakings, such as the mercury limits under the utility NSPS 40 CFR Part 60, Subpart Da, 21 it has employed a 90th percentile statistical test (t- test) coupled with the same test for the fuel-sampling complian ce demonstration.

[Footnotes:

15 Civil enforcement of environmental standards is based on a “preponderance of the evidence,” which merely requires that a violation be more likely t han not (51st percentile).

16 Some in industry have argued that the levels should be set s o that there is no significant probability that a facility would fail a compliance tes t at any point in its useful life.

17 We do not intend to suggest that there is widespread cheatin g during compliance testing. Our point is that the source has substantial prior notice of such tests and is in control of the operating conditions during the test.

18 EPA also asserts that the failure of a compliance te st is not a violation of a standard until and unless some governmental authority agrees. We understand the reference in the context of the annual certification of compliance (where EPA does not intend sources to have to “confess” to a violation of law), but not otherwise.

19 We understand that a 99th percentile UPL is not precisel y the same as a 99th percentile worstcase condition, but the differences are extremely subt le.

20 If power to the ESP falls below that employed during the test, PM control efficiency would be reduced. The amount of this reduction is presumably unit-speci fic and so we can think of no justification for this provision.

21 See, Memorandum from Robert Wayland, OAQPS, to Willia m Maxwell, OAQPS, “Revised new source performance standard (NSPS) statistical ana lysis for mercury emissions” (sic), May 31, 2006.]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.358

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 12

Comment: RECOMMENDATIONS CONCERNING CALCULATION OF THE MACT FLOOR

In the absence of sufficient data to make determinations of the variability of individual units and subcategories with limited data, EPA should develop a reas onable compliance margin to apply to the best-complying sources. The underlying issues are suffici ently complex that, in the absence of truly comprehensive data, no single analysis will like ly prove to be dispositive.

For this reason we recommend that EPA perform a series of analyses and examine the central tendency of the results of those analyses. From thes e results EPA can establish one or more default variability factors to apply where the limited nu mber of test results affects the calculation of variability in a given subcategory. One such group of ana lyses, but by no means the only approach that could prove useful, is to start with the mos t comprehensive data set to determine a broad “default” variability factor and examine more speci fic data sets to determine whether a more limited variability factor can be assigned based on the data available. 27 Such an approach could proceed as follows:

• Commence the process by identifying all units that may re asonably be found to be in the top 12 percent. This might include the top 25 – 33 percent of units based on their mean test result and all units whose mean test emissions are within an order of magnitude of the best performing unit.

• Calculate the nominal “performance” of each unit; by summing the mean and one standard deviation 28 of the unit specific data.

• Average the performance of the top performing 12 percent , understanding that this is likely an overestimate, based on the low number of test runs fo r most units.

Since this approach is likely to overestimate the varia bility to some degree, the results of the first assessment should be considered an upper bound of potential M ACT floors, EPA should then look to see if the variability of the broad group is less than that calculated above.

• Using the pool of “best performers” identified above, no rmalize the emission test results for all sources for which EPA has data, including those not in the top 12 percent and determine the average variability in the performance for the broad gro up. EPA could accomplish this by dividing the variance for each unit by the mean of the dat a for that unit and average the results, not the UPL. It has been argued that sources in the top 12 percent have less variability than the population at large and so this variance should be conside red to represent an upper bound of a permissible variance.

• Repeat the above-described analyses for the three ba sic subgroups – solid, liquid and gas. This then would form a second set of possible default variabili ty factors for the subgroups for which sufficient data are available. Since there are more t ests available for the entire liquid-fired set of units, it may prove possible to develop a separate variabilit y factor for liquid-fired units, which,359

while likely larger than that for the best performing uni ts, is more accurate than that based on limited data for the best performing units.

• Repeat the above-described analyses using data for the t op best-performing, 50 percent, 25 percent, 12 percent and 6 percent of the basic subgroups. Em ploy these results if the average variance is less than that for the larger group or if it can be established that the calculated increase in variance is due to differences in performance and not the consequence of the reduced sample size. Iteration in this fashion should identify a point where the reduction in sample size outweighs the improvements normally expected from better performing units.

• For purposes of determining the arithmetic average, resul ts reported at a detection limit should be employed as recorded, however, for purposes of determi ning variance such results should be excluded as they artificially reduce the variance.

• For purposes of determining the arithmetic average of th e best performing top 12 percent, all test results should be employed to identify the best perf ormers, not the best single result. This will increase the arithmetic average, but is a more reas onable estimate of the performance of units with multiple tests than the lowest single resu lt currently employed by EPA.

• Once the variance of the data has been determined, it should be applied to the arithmetic average of the top 12 percent, not to any unit in the data s et. Consistent with most of the enforcement expectations, we recommend that it be appli ed at the 90th percentile level.

• For those subcategories where the data are sufficient ly robust, a variability factor specific to the subcategory may be applied; for all others the applicable MACT floor would be the arithmetic average of the data for the subcategory, as adjusted by th e applicable default variability factor.

• Where a source or group of sources wishes to maintain that a different variability factor should apply, those parties should be responsible for providing s ufficient data to develop a factor that is not dominated by the paucity of data.

• Additionally, EPA could determine the “normalized” var iance for each unit where more than a certain number of tests (perhaps 10) are available and ave rage those values.

EPA should examine the performance of similar units in t he electric generating unit sector and other sectors and review relevant BACT and LAER determina tions. EPA should also examine the overall distribution of the data set at issue to de termine a reasonable variability factor. Where there are a large number of units with similar emission levels, a large variability adjustment should not be applied.

Where EPA determines that a source category’s emission s are highly variable over a short period (e.g., CO), EPA should consider longer averaging periods, such as 30-day rolling averages, that reflect and accommodate this form of variability, while s till preserving the environmental benefits the CAA contemplates. However, under no circum stances should 30-day CEM-based limits be higher than the corresponding reference method ( three- hour) limit. [Footnotes:

27 We have not conducted these sorts of analyses and have n o way of anticipating their results.

28 It may be more appropriate to use Student’s t-test at a s imilar level of confidence.]360

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 4

Comment: As described at length in the Petition, EPA’s approach to variability in setting MACT floors for the CISWI Rule is seriously flawed. P etition, Ex. 2, at 2–4. Those arguments are fully incorporated by reference herein. EPA does not p ropose any changes to its UPL methodology.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 7

Comment: As a practical matter, EPA’s inconsistent approach to identifying the best sources and measuring these sources’ performance substantially decre ases the protectiveness of its standards.

By using different methods to identify sources as best perf orming on the one hand and to estimate these sources’ performance on the other, EPA selects sources with relatively high variation as the “best” – even though these sources woul d not be labeled best if the agency ranked them under its own approach to measuring performance. Next, EPA uses that variability of performance in the sources it picked as best – sources t hat necessarily have higher variability in performance than do the sources that would be “best” under the agency’s own approach to measuring performance – to inflate the floors. If EPA use d a consistent approach to identifying the best sources and to estimating these sources’ perform ance, the standards would be far more protective. If EPA selected as best the sources with the single lowest emission test and then – consistent with that approach – also measured sources’ per formance based on their single lowest emissions test, its standards would be far more protectiv e. Likewise, if EPA identified the best sources based on its statistical analysis of all their emissions tests and – consistent with that approach – measured their performance the same way, its s tandards would be far more protective. Only by changing its measurement approach part wa y through the floor setting process does the agency arrive at floors that so greatly exceed the actual performance of the relevant best sources.361

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1 Comment Excerpt Number: 2

Comment: [Regarding commenter’s statements about a unit that ca n meet all of the proposed limits except for NOx] This type of outcome is also a di rect result of EPA’s continued use of the pollutant-by- pollutant approach to determining emission standa rds. The continued cherrypicking of performance to create a maze of emission sta ndards that few affected units, if any, can successfully navigate and remain economically viable ultim ately results in the shutdown of operations. If EPA’s desire is not to eliminate industr ial activity, Dow encourages EPA to use the discretion already allowed under the Clean Air Act and to abandon such an approach.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1 Comment Excerpt Number: 6

Comment: EPA’s HAP by HAP approach to setting the MACT floor violates the Clean Air Act

The EPA ignored the record evidence of the performance o f actual “sources” when establishing the suite of emissions limits. Instead, for each subc ategory, the EPA set individual limits for each HAP that reflect the best performing source only for tha t individual HAP. The EPA then combined the HAP limits into a suite of emissions standar ds for each subcategory. This methodology results in a combined set of standards refle cting purely hypothetical boilers that have never actually been achieved by any single, real worl d source, and possibly never will. Creating hypothetical “best performing” units that demand com pliance with emission standards not achieved by any actual source in a subcategory (let al one the necessary 12% of sources for a true floor) is arbitrary and capricious and violates the E PA’s statutory obligation to establish limits that are based on actual the performance of “so urces.”

The proposed MACT standards for industrial boilers and proc ess heaters are based on pollutantby-pollutant analyses that rely on a different set of best performing sources for each separate HAP standard. See, e.g., 76 Fed. Reg. at 15,621-23. In other words, the EPA “cherry pick ed” the best data in setting each standard, without regard for the sources from which the data came. This approach violates the language of § 112, which is focused on th e performance of “sources,” and produces arbitrary and capricious standards.362

The statute unambiguously directs the EPA to set standards based on the overall performance of

“ sources .”8 Sections 112(d)(1), (2), and (3) specify that emissions sta ndards must be established based on the performance of “sources” “in practice” for the category or

subcategory and that the EPA’s discretion in setting stan dards for such units is limited to distinguishing among classes, types, and sizes of sources. In particular, Section 112(d)(3) emphasizes that the EPA must focus on what emissions r eductions are achievable “in practice” for a “source,” using the word “source” no fewer than nine times.

These provisions make clear that standards must be based on actual sources, and cannot be the product of pollutant-by-pollutant parsing which results in a s et of composite standards that do not necessarily reflect the overall performance of any ac tual source. Congress provided express limits on the EPA’s authority to parse units and sources for purposes of setting standards under § 112 and that express authority does not allow the EPA to “distinguish” units and sources by individual pollutant as is proposed in this rule. Sierra Club v. EPA , 551 F.3d 1019, 1028 (D.C. Cir. 2008) (noting statutory limitations on EPA’s authorit y to distinguish sources).

Further, the EPA has calculated its proposed MACT floor s solely on the basis of emission data. The EPA utterly ignored the plain mandate of the Clea n Air Act by entirely neglecting to determine whether there was emission control equipment in use in each subcategory that could actually achieve those inordinately strict emission li mits, a critical and necessary analysis required by the Clean Air Act.

The EPA’s focus on individual HAPs has resulted in a fa ilure to recognize the critical interplay between emissions controls and emissions of other po llutants. For example, the NAM is concerned that the controls necessary to meet the str ingent emissions limitations for CO will result in increased energy usage, with the concomitant increase in emissions of NOx and other pollutants. Further, the EPA failed to account for this i nterrelationship in its economic analysis.

[Footnotes]

(8) In the proposed CISWI rule, EPA similarly failed to f ollow the statutory mandate under Section 129 to examine the performance of “units.” For the reasons discussed above, the CISWI standards must be based on actual sources (“units”), and c annot be the product of pollutant-bypollutant parsing.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Roger Martella Commenter Affiliation: National Alliance of Forest Owners (NAFO) Document Control Number: EPA-HQ-OAR-2003-0119-2595-A1 Comment Excerpt Number: 5

Comment: In order to properly reflect the health and climate bene fits of biomass and provide proper incentives for the continued development of this im portant source of energy, EPA must make additional modifications beyond its current propos als. Therefore, we reiterate and363

incorporate herein our previous comments urging alternative and less stringent emissions limitations for biomass boilers and incinerator units. 28

First, we urge EPA to adopt health-based compliance alter natives for HCl and manganese under section 112(d)(4) of the Clean Air Act in order to provide e nvironmental health benefits while avoiding extreme costs to the industry. Biomass contai ns very small amounts of HCl and the proposed numerical standards will require expensive technol ogical adjustments that provide very little benefit to public health or the environment. In addi tion, EPA has long recognized that manganese is emitted from many facilities in amounts t hat do not expose anyone in surrounding population to concentrations above the established healt h thresholds and therefore the emissions do not pose a significant risk to the surrounding population. 29 Providing an alternative healthbased approach will ensure that high compliance costs are not imposed on the industry unless commensurate health benefits are provided.

Second, we urge EPA to adopt more reasonable emissions limits for CO and PM that are less stringent and less costly, but still achieve statutory r equirements. Again, the costs required to meet the proposed emissions limits are unreasonably high in comparison to the public health and environmental benefits that will accrue. EPA can encourage , rather than discourage, the use of clean, renewable biomass fuels by imposing less stringent standards that will still comply with EPA’s statutory mandates under the Clean Air Act. Thir d, we urge EPA to focus on emissions standards that can actually be achieved in practice by consi dering all relevant pollutant emissions together rather than adopting a pollutant-by-pollutant approac h that ignores trade-offs between emission control technologies and produces standards that c annot currently by met by any biomass boilers. EPA establishes the MACT floor for ea ch source category by calculating the numerical average of the emissions from the best per forming (lowest emitting) 12 percent of sources. By adopting a pollutant-by-pollutant approach, EPA se lects different sources as the best performing 12 percent for each pollutant and ignores the tra de-offs that inevitably occur when some emissions are minimized at the expense of others. When all of the MACT standards are evaluated together, they do not reflect the actual emissi ons of the best performing sources.

[Footnotes:

28 Id. at 7-11.

29 69 Fed. Reg. 55,218, 55,241 (Sept. 13, 2004).]

Response: This comment appears to address the industrial boiler NES HAP, not CISWI, to the extent the comment suggest adoption of a section 112(d) st andard, To the extent the comment takes issue with the pollutant-by-pollutant approach for est ablishing standards, EPA did not open this issue for comment in the proposed reconsideration r ule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docke t for further discussion.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 29364

Comment: Pollutant-by-pollutant approach. This issue has been vetted in other forums, but it bears repeating the request here on the basis of legal arguments presented by multiple commenters. EPA’s pollutant-by-pollutant approach has signif icant impact on the achievability of the CISWI standards. EPA should reconsider its pollut ant-by-pollutant approach, instead using unit-by-unit composite performance to rank and select b est performing unit(s), especially considering the fact that EPA’s database demonstrates t hat only 2 of 95 units have “achieved in practice” all of the final emission standards.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 16

Comment: EPA’s approach to “rounding” introduces an additional i nappropriate bias to the calculation of MACT floors and should be revised to refl ect technically correct rounding procedures and the requirements of the statute. In the c alculation of the MACT floor, such as the application of calculated UPLs, EPA “rounded” the interi m values and in each such instance rounded the values up. In most engineering calculations, ro unding protocols provide for rounding down as well as up. Rounding ordinarily includes truncating th e number of significant digits that are employed in a calculation and occurs at the end of the calculation process. EPA justifies its decision to only round up by asserting that to do otherwise wo uld deprive sources of the “variability” cushion they were otherwise entitled to. Aga in, this argument ignores the public interest in reducing emissions of hazardous air pollutants, as well as normal engineering protocols. It would also seem to be contrary to written E PA policy concerning rounding for NSPS compliance purposes. 36 This policy, which has not been revised to our knowledge, adopts ASTM standard rounding protocols – carry at least five signi ficant digits throughout all intermediate calculations and employ ASTM Procedure E 380 (round down if less than 5; round up if greater than 5) for the final calculation. Where a MACT floor would otherwise be calculated at 2.27, it would seem that “rounding” a final s tandard to 3.00 would be technically unjustifiable and would not comply with the requirement of s ection 112 that the MACT standard be not less stringent than the average of the top 12 percent. In the proposed c alculations of MACT floors for CO for biomass sources EPA significan tly alters the reported data to account for what it styles as “measurement span errors.”

This appears to be double counting of variability, since any random errors in the measurement system will be reflected in the variability of the re sulting data. Moreover, the method relies on the highest reported values of computed errors rather than an average of those errors.

EPA has provided no rationale for selecting the maximum e mission factor in a group of tests in developing its fuel variability factors. Other examples of an upward bias can be found in EPA’s calculation process 37 including: (1) exclusion of test results where the resu lt provided is “zero” or “non-detect,” but the detection limit is not provided, and (2) failure to include homogeneous waste material combusted by some biomass boilers in the fuel variability analysis (EPA argued365

that such data should be excluded because it is not a repr esentative material for other boilers in the biomass subcategory).

EPA’s proposed standards are also highly sensitive to the decisions to exclude clean sources without sufficient basis and to retain highly variable res ults that are more properly treated as outliers. This is especially true in EPA’s ew source M ACT floor calculations. By way of example, for one new source subcategory 38 , the source had been tested twice, for a total of six runs. Results from five of the six runs were low and co nsistent; but the results of the sixth run were 100 times greater than any of the other five runs. Sin ce this result is outside the 99th percent confidence level of the rest of the data set, unde r EPA’s methodology it should have been excluded. EPA retained this value and the result is an extremely high new source MACT floor calculation.

[Footnotes:

36 See, “Memorandum: Performance Test Calculation Guideli nes”, William Laxton, OAQPS, and John Seitz, OAQPS.

37 The rounding process employed by EPA can increase MACT fl oor results significantly. The other biases we mention are unlikely to have a large impac t on the MACT floor. The use of lognormal statistical procedures may or may not result in lower MACT limits than would otherwise be the case, but is technically justified where nonnormal distributions are observed.

38 Biomass Dutch Oven Filterable PM.]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 33

Comment: NACAA believes that EPA’s proposal to establish emi ssion limits to two significant digits is a step in the right direction, but recommends that those limits be set to three significant digits. No reason has been advanced by EPA for not doi ng so.
Response: See the “CISWI Reconsideration Issues” memorandum, da ted December 19, 2012, in the CISWI docket for further discussion. Significant d igits has been discussed in the June 2010 proposed rule notice.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 9366

Comment: EPA persists in its unlawful approach to rounding. As exp lained in the Petition, the Act requires the MACT floor for existing sources to be se t at a level “no less stringent” than the average of the best-performing 12 percent of sources in a g iven subcategory. 42 U.S.C. § 7429(a). Rounding up the number in every instance means that the average is always higher than the emissions of the best performers. The Act requires that it be lower. The Act therefore requires EPA to round emissions limits down, or not at a ll. At the very least, EPA should follow a normal approach to rounding in which it maintains sever al significant digits and rounds up or down according to the first insignificant digit.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2 Comment Excerpt Number: 15

Comment: We believe EPA has worked hard and accomplished more ac hievable standards with the reconsideration, but 1) they aren’t necessary as c ement kilns, regardless of their use of NHSM, are adequately regulated by the PC NESHAP and do not r equire regulation under CISWI. In fact, there is no environmental benefit to th e additional regulation under CISWI as the standards in the two regulations are nearly the same (se e above); and, 2) there are still significant issues, such as CO (which has been a long-term cement i ndustry issue in comparison to incinerators who monitor CO to demonstrate good combustion ), D/F (per PCA’s comments, detection limits are still driving flawed standards), and i ndividual metals standards can be an issue. CEMEX brought these issues to EPA’s attention i n a meeting with EPA at Research Triangle Park after the March 2011 regulations were published. That meeting was followed by additional phone conversations. CEMEX is available to f urther meet on these topics.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.



### 8B. Non-detect approach (Denied Petition issue)

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 17

Comment: In the proposed calculations of MACT floors for CO f or biomass sources EPA significantly alters the reported data to account for what it styles as “measurement span errors.” This appears to be double counting of variability, since any random errors in the measurement367

system will be reflected in the variability of the re sulting data. Moreover, the method relies on the highest reported values of computed errors rather than an average of those errors.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “Measurement Detection Capabilities for EPA for In strumental Test Methods” memorandum dated April 10, 2012 in the CISWI docket for further discussion.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 8

Comment: EPA also has failed to fix its flawed approach to non- detection values, explained in the 2010 Comments and the Petition. 2010 Comments, Ex. 1, at 1–4; Petition, Ex. 2, at 3–4. Those arguments are hereby incorporated by reference. EPA does, however, solicit comment on whether it should select a lower quantification boundary for pollutants the emissions of which are lower than detection limits for the best sources. EPA should. Currently, EPA uses the highest detection limit reported for each pollutant by any of the reporting laboratories, rather than just those used by the best performing source or sources, discardi ng as “outliers” only those detection limits above the average emissions value for the catego ry as a whole. This approach sets the floor—which is required to be “no less stringent” than th e performance of the best sources— based on an a detection level that is indisputably higher t han the detection level—and thus the emissions—of the best sources. This is contrary to the Act and arbitrary. EPA should set emissions limits for these pollutants at the lowest n on-detect level, not the highest.

Response: Although we are denying reconsideration on this methodolog y (See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket), we will elaborate some here to address the commenter’s concer ns on this process.

During the data collection request, we specified sampling ti mes and/or volumes where appropriate. These times/volumes were calculated to pr ovide reasonable assurance of detecting compounds that were present. EPA manual testing methods are designed to be conducted over an hour of sampling, but may be conducted with extended test ing times to collect additional sample volume and provide for increased measurement sensit ivity. Our guidance to ICR respondents for reporting pollutant emissions used to support f loor development has been to require them to provide test-specific method detection l imit (MDL) values in the reports. Also, in accordance with our guidance, source owners are to identif y emissions data which were measured below the MDL and report those values as equal to the MDL determined for that test. This is done to provide for minimum pollutant concentration s when evaluating the emission floor, otherwise the measured concentration values as r eported in the testing were used in calculating the floor.

Not all test reports that include instrumental test metho d data included test-specific MDL values. In cases where the report does not include test-specific MDL data measured with an instrumental test method, the test-specific MDL values were determine d using the reported calibration span values.368

The EPA accounted for the effect of measurement impreci sion in calculating a floor using a database that includes reported MDL data by first defining a n MDL value that is representative of all the data to be used in establishing the floor or emis sions limit. This value is termed the representative method detection limit (RDL). The seco nd step in the process was to calculate three times the RDL and compare that value to the calcu lated floor or emissions limit. The value of 3 x RDL is necessary to gauge the performance test met hods’ level of quantitation, or that point at which the test method begins to return values w ithin expected levels of confidence. The EPA recognizes that values between the method detection limit and the level of quantitation have more uncertainty than values at or above the level of quantitation, therefore we make this determination to provide a value to the floor setting decis ion process that describes the level of quantitation for the compliance determination method. If 3xRDL was less than the calculated floor or emissions limit calculated from the upper predic tion limit (UPL), we concluded that measurement variability was adequately addressed and the ca lculated floor or emissions limit was not adjusted. If, on the other hand, the value equal t o 3xRDL was greater than the floor value or emission limit, we concluded that the calculat ed floor or emission limit does not account entirely for measurement uncertainty, and the value equa l to 3xRDL was substituted for the adjusted floor or emissions limit (i.e., increasing the floor to be equal to 3xRDL). This adjusted value ensures measurement uncertainty is adequately addresse d in the floor or the emissions limit and that the test method used to determine complian ce with the emission standard will be appropriate for quantitative determination of emissions c oncentrations at, and above, the level of the emission standard.

We note that in the proposal preamble (76 FR 80463) we were intending to solicit comment on other commenter’s suggestions of selecting a dioxin/furan limit of 0.3 ng/dscm as a minimum value. We realize that our preamble language reads more gen erally to any emission limit. Considering the discussion above, and in response to this, we are not selecting the 0.3 ng/dscm limit or any other lower limits that are below levels that may be quantitatively determined.



### 8C. Small remote incinerator emission limits/achievability/ costs/impacts on wildlife (Denied Petition issue)

Commenter Name: Alice Edwards, Director, Division of Air Quality Commenter Affiliation: Department of Environmental Conservation, State of Al aska Document Control Number: EPA-HQ-OAR-2003-0119-2590-A1 Comment Excerpt Number: 1

Comment: ADEC acknowledges that in this proposed rule, EPA responde d to the petition for reconsideration submitted by the Alaska Oil and Gas Asso ciation (AOGA) and the Alaska Miners Association (AMA) on May 20, 2011. The AOGA/AMA rec onsideration request focused on March 2011 rule provisions related to small, remote incine rators and whether the requirements were achievable for Alaskan incinerators wi thin that subcategory. In this proposal, EPA made no major changes to the emission standards for small, remote incinerators. However, EPA did request additional data to support the need to revise the standards and requested comment on the need to extend the compliance date for this subcategory.369

ADEC remains concerned about the ability of Alaska’s sma ll remote incinerators to meet the emission standards. These incinerators are critically im portant to the management of solid waste in Alaska. Incineration is currently the preferred waste management alternative in remote areas of Alaska because it minimizes attraction of wildlife to facilities. Access to landfills is difficult in remote locations due to lack of road access, and in many ca ses, landfill space is limited. Landfill management in remote Alaska is very challenging, particu larly for villages with limited resources; therefore, waste minimization via incinerati on for wastes generated in rural Alaska, either from villages or from remote camps is essential . If incinerators cannot viably meet the new EPA requirements, more waste would need to be stored on site and then backhauled via air or water increasing operational costs and potentially increas ing interactions with animals.

ADEC appreciates the opportunity EPA is providing in the pro posed rule to submit additional information on small remote incinerators in support of the need to revise the emission standards for this subcategory. ADEC understands that EPA has bee n in dialogue with Alaskan small incinerator operators and encourages EPA to continue that effort to obtain and evaluate additional data from Alaskan sources that could result in final emission standards that are both achievable and protective of air quality and public health.

Response: We note that no emissions test data was submitted for us to consider. Regarding other issues applicabile to small remote incinerators, see the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for f urther discussion.

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2 Comment Excerpt Number: 1

Comment: Our incinerators are located within the Kuparuk and Alpine oil fields, the latter of which is inaccessible by road except for 3 months of the year when roads may be constructed of ice.

The incinerators and their emissions are summarized in the table below. [See submittal for table of NO X , SO 2 , and CO emissions provided by commenter]

The proposed CISWI rule would impose on each of these four very small units, the following minimum compliance obligations:

• 11 emission limits, one of which we know we cannot com ply given existing configuration (CO), one of which we have no data to tell whether co mpliance is achievable (dioxins/furan – toxic equivalency basis), and several that we may not com ply with if given a waste stream different than that burned on the date of the §114 testing or during startups, shutdowns, or malfunctions;

• Annual source testing to demonstrate compliance with al l of these 11 emission limits;

• Ongoing operating and emissions or parametric monitoring;370

• Development of a waste management plan that detail s waste management measures and waste reduction methods as well as costs; and

• Implementation of an operator training and qualification program as well as annual refresher training for operators.

There are myriad other requirements that are very detai led and prescriptive. The above are merely the bigger picture obligations around which we can bro adly discuss costs and feasibility.

We are aware of EPA’s belief that costs cannot be fa ctored into establishing the emission “floors” for existing units under §129 of the Clean Air Act but we are unable to refrain from pointing out the absurdity of this conclusion – at least in this context. Taking a leap and assuming it is possible for existing SRIs to achieve compl iance with the proposed emission limits, we estimate the cost will be close to $1,000,000 pe r year per unit. And these costs do not include any controls other than the existing afterburners already on the units. Rather, the majority of these costs are in the annual source testing, compli ance monitoring, and waste management practices that will be necessary to ensure compliance with the standards. To ensure compliance with the very tight emission limits, we believe it w ill be necessary to segregate and haul away the waste that has been heretofore burned. This will requir e new waste handling facilities that will have to be constructed on wetlands (there’s insufficient available space on the existing pads) and large amounts of fuel burned for transport. And again, we ar e uncertain of our ability to comply with the limits given what we know now. Considerable e ffort will be expended over the next 2-3 years to learn whether compliance with the limits is achievable. If so, this may prove to be the prudent way to proceed. But this is a very large unknown that will, in the best case, buy a little time. The incinerators will eventually reach the end of their life and we’ll have to consider buying new ones. That does not appear to be an option under thi s rule. New units in the SRI category must meet a sulfur dioxide emission limit of 1. 2 ppm. We simply cannot conceive how to achieve this for two reasons: 1) it requires a scrubber control efficiency in excess of the 80- 95% ascribed to this technology by EPA 1 ; and 2) use of wet scrubber technology in the Arctic is a very uncertain and certainly untested proposition.

So, this rule forces the inevitability of shutting down our incinerators by 2016 or shortly thereafter. The annual costs we’ll incur for this will l ikely exceed $10,000,000 – principally for the new waste handling practices and facilities as well as for aviation and highway vehicle fuel. That is well over $1,000,000 per ton of pollutant controlled. And it defies reason to consider the prospect of flying garbage to a landfill when burning, on si te in a small incinerator, is the most efficient and environmentally friendly manner of manageme nt. And this does not speak to the wildlife impacts that are already well documented in A ttachment B to this letter. [see submittal for AOCA and AMA petition for reconsideration, attache d by commenter] [Footnote: 1 http://www.epa.gov/apti/bces/module6/sulfur/control/contr ol.htm; note also that, depending on the application, EPA estimates control efficiencies of wet scrubbers can range from 50

‐ 99%: http://cfpub.epa.gov/oarweb/mkb/contechnique.cfm?ControlID= 29]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.371

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2 Comment Excerpt Number: 5

Comment: For new units in the SRI category, EPA proposes an im possible SO 2 emission limit – and on the basis of flawed analysis. Subpart CCCC esta blishes a sulfur dioxide emission limit for new SRI units of 1.2 ppmvd. 2 1.2 ppm is a very small emission rate from point sources that might be considered "in the noise" when evaluating emis sions from most sources. The mechanics of developing this standard were reviewed and many deficiencie s were found. These are detailed in Appendix 2 of Attachment B. We believe a more approp riate new unit SO 2 standard lies somewhere between 100 and 130 ppm. This comment is very import ant since, unless addressed adequately, the option of employing new SRIs in Alaska is effectively closed.

[Footnote: 2 Table 8 to 40 CFR Part 60, Subpart CCCC.]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Kate Williams Commenter Affiliation: Alaska Oil and Gas Association (AOGA) Document Control Number: EPA-HQ-OAR-2003-0119-2620-A1 Comment Excerpt Number: 1

Comment: The SRI subcategory was specifically established to addres s the unique operating and waste management conditions in Alaska, yet the exis ting source standards cannot be achieved in practice (to the best of our knowledge) by any exis ting SRI unit in the state. This is a clear violation of the Clean Air Act which mandates th at emission standards for existing units reflect the performance achieved by the best performing 12 pe rcent of units in the category. Furthermore, given Alaska’s extreme climate, it is not clear whether new SRI units could meet the new source standards. During a 2011 meeting between AOGA and EPA to discuss the CISWI Rule, even EPA acknowledged they could not identif y new technology that could meet the new source SRI standards.

The SRI emission standards are not achievable (in part) b ecause they do not account for the range of wastes burned in SRI units, which operating and was te management conditions require in Alaska, or the fact that different waste materials exhibit profoundly different emissions characteristics. The existing test data supports this co nclusion. Instead, the SRI standards are based on very limited "snapshot in time" emissions at a particular unit, given the particular waste stream burned at that time. This contrasts to the other C ISWI units where waste streams are less variable and standards were set based on more emissions data. We emphasize that additional testing data is extremely costly, problematic and time-c onsuming to collect in Alaska due the remoteness of operations, harsh weather conditions and lack of providers to conduct such tests. We urge EPA to take these considerations into account in setting the SRI standards in the new372

final rule, particularly in light of the overall level of emissions from SRI units compared to other CISWI units EPA regulates.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Kate Williams Commenter Affiliation: Alaska Oil and Gas Association (AOGA) Document Control Number: EPA-HQ-OAR-2003-0119-2620-A1 Comment Excerpt Number: 2

Comment: The Clean Air Act mandates that the cost of achieving emission reduction be taken into account when setting emission standards. On the co ntrary, cost was not adequately taken into account in setting the SRI standards; EPA’s estima tes of the cost of compliance for SRI units are too low. Furthermore, the SRI standards impose a disproportionate compliance burden on SRI units compared to the other CISWI units. For example , using EPA’s data (prepared by Eastern Research Group, "ERG"), the lowest cost opti on for compliance for SRI units is $234,200 per ton more than the average cost of compliance ove r all of the subcategories. In addition, these numbers do not include other potential costs such as costs associated with constructing and permitting the additional footprint that w ould be required for controls (acknowledged by ERG) or annual landfilling costs for SRI units which ERG estimated at between $433,000 per year to $24.6 million per year. These issue s should be considered in revising the SRI standards.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Kate Williams Commenter Affiliation: Alaska Oil and Gas Association (AOGA) Document Control Number: EPA-HQ-OAR-2003-0119-2620-A1 Comment Excerpt Number: 3

Comment: The Clean Air Act also requires that non-air quality health and environmental impacts be taken into consideration in setting emission limits for CISWI units. We believe EPA failed to adequately take these impacts into account and re main concerned about unintended consequences if SRI units across Alaska are forced to sh utdown, a very real possibility if the SRI standards are not revised in the new final rule. Oil and gas and other remote operations rely on SRI units to manage solid waste for several reasons, includi ng limited, if any, access to land disposal options, the high cost of and safety concerns a ssociated with transporting waste to alternative disposal sites, and the need to minimize wi ldlife interactions with waste, and any related interactions with humans. The proposed rule does not address any of these issues which will arise in case of forced shutdowns.373

For example, many operations utilizing SRI units are not lo cated on the road system necessitating transport of waste via barge, small aircr aft and even helicopter in areas where aircraft cannot land if incineration is not possible. Im portant to remember is that these transport options are all highly dependent on Alaska’s extreme wea ther conditions, especially during the winter season, which in the Arctic lasts the majorit y of the year. Clearly, costs will quickly escalate due to the necessity of multiple trips to tran sport waste between remote operations and disposal sites. Safety will also be compromised due to in creased travel back and forth in harsh weather conditions. Additionally, EPA failed to conside r the potentially significant increased emissions associated with transport of waste from rem ote operations to disposal sites, which could easily exceed emissions associated with SRI units, or the increased volume of waste at area landfills, both inevitable adverse consequences of decrea sed waste incineration.

Likewise, if SRI units are forced to shutdown, significan tly more waste will have to be stockpiled onsite until transport to a disposal site is p ossible, adversely impacting wildlife, including species listed as threatened under the Endangered Spec ies Act (e.g., polar bears and spectacled eiders), attracted to stored waste. This wil l lead to increased wildlife-human interactions and decreased safety for onsite personnel. All of these issues could be avoided by onsite incineration.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2 Comment Excerpt Number: 4

Comment: We do not understand the massive compliance burden placed o n SRIs and believe the Monitoring, Reporting & Recordkeeping (MR&R) should be l imited to testing for just one or two pollutants, say CO or NO X , every 5 years. SRIs are too small to warrant annual testing for the entire suite of 11 pollutants (in Alaska, this level of testing costs about $100,000), annual operator training, waste management plans, and ongoing compl iance monitoring. Indeed, in the absence of a rule such as CISWI, SRIs are very close to being and in fact could be, with minor changes, insignificant emission units under §71.5(c)(11)(ii) (A). Limiting the CISWI monitoring, recordkeeping, and reporting to simple assurance testing once every five years of a Title V permit term is the most sensible way to regulate these very small sources.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Kate Williams Commenter Affiliation: Alaska Oil and Gas Association (AOGA) Document Control Number: EPA-HQ-OAR-2003-0119-2620-A1 Comment Excerpt Number: 4374

Comment: Finally, we believe EPA violated the Clean Air Act by failing to exclude emissions during startup and shutdown periods from the maximum achievable control technology ("MACT") floor calculations for SRI units and employing flawed data analysis and statistical protocols to derive the Subpart CCCC sulfur dioxide emissio n limit for new sources.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Kara Moriarty and Deantha Crockett, Executive Directo rs Commenter Affiliation: Alaska Oil and Gas Association (AOGA) and Alaska Miner s Association (AMA) Document Control Number: EPA-HQ-OAR-2003-0119-2658-A2 Comment Excerpt Number: 1

Comment: We appreciate the willingness of the U.S. Environme ntal Protection Agency (EPA) to consider these comments so that more technically ac curate new small remote incinerator (SRI) emission limits and existing SRI emission guideline s can be developed.

We have developed a list of 32 known SRIs located i n Alaska. This list is provided on the attached inventory. Twenty two of these 32 SRIs can not be accessed via the Federal Aid Highway System. Our list is not exhaustive as we only repre sent two industry groups, oil and gas and mining. EPA has tentatively identified approximatel y 30 additional incinerators in Alaska that may or may not be SRIs. We have not been able to de termine whether these additional units are SRIs.

Even discounting the EPA-identified units that may be SRIs, our set of 32 SRIs is much larger than the set of fourteen units on which EPA based t he existing SRI emission guidelines. As a result, the methodology that EPA followed to develo p the emission guidelines does not include an adequate number of performance test results, result ing in incorrect emission guidelines that are overly restrictive.

Response: We reviewed the data submitted on potential additional SRI units. During this review, we attempted to confirm the operational status of additional units. If we could reasonable confirm that these units existed and were in o peration, then we added them to the SRI inventory. Note that we have no information on unit desig n, size or emissions information from these additional units. Following this review, we now hav e an estimated 28 SRIs in our inventory, effectively doubling the number of sources during re consideration proposal. Taking 12% of 28, we now include emissions information for the top four performing sources in our MACT floor calculations, whereas we previously used infor mation for only the top two sources. The MACT floor methodology is not being reconsidered, b ut the emission limits were recalculated to address this new information on the number o f sources within the CISWI SRI inventory.

Commenter Name: Kara Moriarty and Deantha Crockett, Executive Directo rs Commenter Affiliation: Alaska Oil and Gas Association (AOGA) and Alaska Miner s375

Association (AMA) Document Control Number: EPA-HQ-OAR-2003-0119-2658-A2 Comment Excerpt Number: 2

Comment: EPA did not follow generally accepted statistical m ethodologies and criteria in selecting and proposing the new source CISWI standa rds in the regulation. The subset of data used to develop the new source standards (from this smaller group of 14 units) comprised too few samples to have confidence that the values accu rately reflect industry emission standards. EPA’s ProUCL software program, which is the standar d source to use for statistical analysis of environmental data under EPA oversight, states in t he User Guide to version 4.1 (May 2010): “ProUCL 4.00.02 and higher versions will not comput e any decision statistics such as UCLs or UPLs for data sets of size less than 5 (without NDs ).” In response to user complaints about not calculating statistics for sample sizes of 3 or 4, the authors of the User Guide responded “that is fine as one should not be computing decision statis tics based upon such small samples.” None of the new source standards are based on as many as 5 samples since only data from the “best” performers were used to generate the standar ds. Additionally, use of zero values for some data points is inconsistent with this program. Including zero values in place of actual data would further increase the required minimum sample size for statistical analysis to be considered usable.

Response: EPA did not open the MACT floor methodology issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Kara Moriarty and Deantha Crockett, Executive Directo rs Commenter Affiliation: Alaska Oil and Gas Association (AOGA) and Alaska Miner s Association (AMA) Document Control Number: EPA-HQ-OAR-2003-0119-2658-A2 Comment Excerpt Number: 3

Comment: We note that two of the incineration units included in EPA’s SRI emission data base are not SRIs. The Entech Alaska incinerator is not an SRI because the unit is located in Anchorage, Alaska, and is approximately 15 miles fr om the Anchorage Regional Landfill. The OIT incinerator is not an SRI because the unit is located in Moose Creek, Alaska, and is approximately 16 miles from the Fairbanks North Sta r Borough Landfill. The inclusion of the Entech Alaska incinerator performance test data in the data base is of particular concern because the measured emissions from this unit were the lowe st or second lowest for several pollutants. As a result, these test results were incorrectly us ed to establish the existing SRI emission guidelines, as well as the new source performance s tandards for new units, even though the unit is not an SRI. The attached table [see submittal] o ffers an analysis of the currently available data removing the data for the Entech incinerator, compl eted using three statistical methods.

Response: We have removed the Entech unit from the SRI subcate gory inventory and placed it in the Incinerator subcategory, as it appears to meet the de finition of an incinerator. We note that the OIT unit has not been included in the SRI or incinera tor inventory, as this unit appears to be a376

soil treatment unit. The status of soil treatment units with respect to CISWI is discussed in the final rule preamble (76 FR 15713).

Commenter Name: Kara Moriarty and Deantha Crockett, Executive Directo rs Commenter Affiliation: Alaska Oil and Gas Association (AOGA) and Alaska Miner s Association (AMA) Document Control Number: EPA-HQ-OAR-2003-0119-2658-A2 Comment Excerpt Number: 4

Comment: We are concerned about the quality of the performan ce test data because of the lack of consistent test procedures among the variou s SRI performance tests. SRIs are generally batch units. Each unit has a variable air pollutant emission profile that is dependent on the type and amount of material in the incinerat or and the point in time during the batch cycle. For example, the emission profile at the sta rt of the batch cycle is different than the emission profile as the cycle comes to an end. Beca use the various performance tests were performed without regard to waste type or where in the batch cycle the unit was operating, the performance tests do not provide a data set that ca n be reasonably compared to reach a conclusion regarding the general performance of the set of SRIs.

Based on the information provided above, we believe that EPA must re-evaluate and recalculate the Subpart DDDD emission guidelines, a s well as the Subpart CCCC emission limits. Although performance test data are available, these data are not fully representative of existing SRI emissions. We would like to work with EPA to develop and implement an existing SRI performance test program that will ret urn representative data that can be used to calculate technically supported emission guidelines

. Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion. However, as discussed in th e response to EPA-HQ-OAR-2003- 0119-2658-A2 excerpt 1, we have recalculated the emission limits based on new inventory information received.



### 9A. General comments on beyond-the-floor analysis (Denied Petition issue)

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and C lean Air Council Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2 Comment Excerpt Number: 12

Comment: Section 129 of the Clean Air Act requires EPA to conduct a “beyond the floor” analysis that determines the maximum degree of emissions reductions “achievable” in light of considerations such as non-air quality health and environmen tal impacts, energy requirements, and costs of compliance. 42 U.S.C. § 7429(a)(2). For reasons given in comments and the Petition, 2010 Comments, Ex. 1, at 6, 11–16; Petition, Ex. 2, at 6–10, and incorporated fully377

herein by reference, EPA’s beyond the floor analysis fo r the CISWI rule is arbitrary and unlawful.

Response: As the commenter noted, EPA must consider cost, non -air quality health and environmental impacts, and energy requirements in connecti on with any standards that are more stringent than the MACT floor (beyond-the-floor contr ols). EPA’s beyond the floor analyses did evaluate these factors in determining whether it was appro priate to establish more stringent standards. Moreover, while section 129(a)(2) allows existin g source MACT floor limits to be less stringent than new source limits, the Agency inte rprets this provision as precluding the new source limits from bei ng less stringent than the existing source limits. Thus, it is appropriate to set the new source limit to be no less stringent than the existing source limit . See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.



### 12A. Testing and Monitoring

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 8

Comment: 60.2145(n)(4) – The requirement to perform daily checks of t he pressure monitoring system seems overly specific, since a site-specific c ontinuous monitoring plan is required. Since source is required to identify the nature and cause of each CMS malfunction event and take steps to reduce recurrence of preventable events, daily checks of this nature would occur for those sites that blockage is a problem, regardless of a specific requir ement to do so. Removal of this requirement would reduce the burden on sites not having blockage problems.

Response: While we believe frequent, ongoing systems checks are i mportant for ensuring compliance with rule requirements, rather than mandat ing a specific frequency for this rule, we require you to develop performance evaluations in your sit e-specific monitoring plans. Those site-specific monitoring plans, among other things, are t o be used by you to ensure that systems such as pressure measurement continue to provide relevant dat a which enable you to demonstrate continuous compliance with rule requirements. Given t he rule's requirement for you to develop these site-specific monitoring plans, we have revised the final rule to not require a specific frequency for performing checks of the pressure monitoring s ystem.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 23

Comment: 60.2670(b) – For kilns that do not utilize a wet scrubber, th e requirement to maintain a continuous opacity monitor is duplicative of the PM CEM S requirement.378

Response: We are not requiring the use of both continuous opacity m onitors and particulate matter (PM) continuous emissions monitoring systems (CE MS) on any units. Under section §60.2675(g), an opacity operating limit is only required for units that do not determine compliance with a particulate matter emission limita tion using a PM CEMS. Although §60.2670(b) contains an opacity limit, per Table 2, this limit a pplies only to incinerators subject to the CISWI standards through a state plan or the Federal plan prior to June 4, 2010. Table 2 requires determining compliance with the opacity limit by conducting a performance test. For units subject to the opacity limit in Table 2, the limit w ill be phased out in the revised state plans. Units that operate a PM CEMS to determine compliance wit h a particulate matter emission limitation will not be required to monitor opacity once t he limit is phased out.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 24

Comment: 60.2675 – Any source that utilizes CEMS should not be requir ed to monitor operating parameters of pollution control equipment as we ll. For pollutants that require performance testing as the compliance basis, sources sho uld be allowed the option to choose to install CEMS in lieu of stack testing and operating paramet ers for pollution control devices.

Response: Section §60.2165 allows facilities to choose to install co ntinuous emissions monitoring systems (CEMS) in lieu of stack testing. We a gree that facilities that continuously monitor emissions should not be required to perform conti nuous parametric monitoring. We have revised the final rule to remove the requirements f or parametric monitoring for facilities with CEMS.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 25

Comment: 60.2680 – This provision appears to dampen innovative control technology and techniques by imposing a petition and approval process for tec hnologies not specified in this paragraph. As noted above, if a source installs continuous monitors, there should be no such requirement for petition and approval as long as the specif ied emission limits are documented through use of continuous direct monitoring.

Response: It is not our intent to dampen innovative control technol ogy and techniques. In Section §60.2680, we require sources to petition the EPA Adminis trator for specific operating limits for equipment other than wet scrubbers, activated carbon injection, selective noncatalytic reduction, and electrostatic precipitators. Because thes e parameters are set on a site-specific basis, we have reserved this authority believing that the re is a need to maintain national consistency in implementing this section. “The Good Pra ctices Manual for Delegation of NSPS and NESHAPS” (February 1983) reserves for the EPA Administ rator specific areas of rules that impact national consistency.379

Currently, there are not standard performance specificati ons for continuous emissions monitoring systems (CEMS) for all of the pollutants that are cov ered by this rule. Use of a CEMS for pollutants that are not covered by an EPA performance spec ification also requires the Administrator's approval.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1 Comment Excerpt Number: 25

Comment: PCA is concerned with the requirement that stack flo w monitors comply with a 2% sensitivity limit: PCA believes that the requirement to utilize a flow sensor with a measurement sensitivity of no greater than 2 percent of the expecte d process flow rate is not practicable. In the Portland cement process, stack flow measurement devices ar e either ultrasonic or pitot tube based devices. The manufacturers of these devices provide ac curacy specifications of less than 10% and less than 5% for ultrasonic and pilot units, respecti vely. This accuracy is based upon full scale of the device. These devices do not operate at full scale. Thus, at expected operating ranges (usually at roughly 75 to 89% of full scale), there wo uld be no way to meet the measurement sensitivity requirement of 2%. EPA needs to revise this requirement to match the current technology accuracy limitations for flow measur ement devices utilized in the cement industry and base them on the accuracy specifications of the manufacturers. This accuracy needs to be based on the full scale rating of the unit to match the manufacturer's specifications.

Response: We intended for the 2% sensitivity requirement of th e flow monitor to be 2% sensitivity at full scale. We have clarified this in the final rule. We believe that there are widely available flow monitors that can meet this requirement.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2 Comment Excerpt Number: 20

Comment: CEMEX is concerned with the requirement for stack f low monitors to comply with a 2% sensitivity limit. We have evaluated these devices and have determined that it is not possible to meet the sensitivity requirement on a cons istent basis. Manufacturers of these devices provide accuracy specifications that are based on th e full scale rating of the unit. The units do not operate at full scale and thus there is no way for the devices to meet the sensitivity specification of 2% at the expected operating ranges. Th e accuracy requirement needs to be based on full scale to match the manufacturer specific ations.

Response: For response, see DCN EPA-HQ-OAR-2003-0119-2603-A1, Excerpt No. 25

.

Commenter Name: Michael A. Klein Commenter Affiliation: N/A380

Document Control Number: EPA-HQ-OAR-2003-0119-2621 Comment Excerpt Number: 1

Comment: The regulation should specify that Estimated Maximum P ossible Concentrations (EMPCs) must be counted in determining total dioxins/furans. In many cases, testers/labs are counting EMPCs as zero in determining totals. Per directio n we have received from EPA, if the Source (facility) includes EMPCs in the total reported fo r dioxins/furans and is still in compliance with the emission limit, then the result s can be accepted. If the Source includes EMPCs in the total reported for dioxins/furans and is abo ve the emission limit for total dioxins/furans, it may be because of a positive interfe rence. However, the interference cannot be quantified and the interference will prevent the lab resu lts from meeting the quality assurance requirements for identifying and quantifying their results. In this case, the only options are for the laboratory to re- analyze the sample if they ar chived a sample fraction, or for the Source to repeat the test. The re- analysis would involve re-clea ning the sample to remove the interfering substances.

Response: Section 9.9 of Method 23 states, “Any PCDDs or PCDFs th at are reported as nondetected (below the DL) shall be counted as zero for th e purpose of calculating the total concentration of PCDDs and PCDFs in the sample.” Th e term EMPC does not appear in Method 23; it appears in SW-846 Method 8290A, the analytical method for the sampling of dioxins/furans by SW-846 Method 0023A. However, we are aware t hat laboratories are applying EMPC to Method 23 as well as SW-846 8290A. The EMPC repr esents a compound that is actually detected and measured, and therefore, it does not represent a compound that is reported below the detection limit. As such, Method 23 do es not allow for compounds reported as EMPC to be discounted as zero. We are also aware t hat it is sometimes possible for laboratories to reanalyze samples to obtain more acc urate measurements of compounds that are originally labeled as EMPC. We are clarifying this positi on in the final rule. The revised language does not specifically contain the term EMPC, as this term does not appear in Method 23, but we believe that the language will address this issue.



### 12B. Testing too frequent (Denied Petition issue)

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 27

Comment: EPA should ensure consistency in testing requirements fo r this Rule and 5-year Title V permit review cycle. EPA did not coordinate these provis ions in the Proposed Reconsidered Rule. Annual compliance testing is extremely expensive a nd the benefits of conducting emission tests more frequently then every 5 years do not justify t he costs.

A significant amount of testing will be required by sources to determine the compliance status with respect to the rule and to evaluate and select avai lable control strategies. Capital projects to install necessary control equipment cannot proceed unti l the testing and evaluation is complete. Due to the high number of sources affected by the rule tha t have the same concerns, it is likely381

that availability of stack testing personnel and laborat ory facilities to conduct tests will be limited, adding to the time required to complete this es sential first step. As outlined below, annual frequent compliance testing requiring multiple test runs for purposes of compliance will further reduce the availability of testing and laboratory resources.
EPA acknowledges that the cost of testing small boilers and process heaters is prohibitive. While the cost of emissions testing larger units is less prohibit ive, EPA must consider these costs when establishing the frequency of testing.

The benefits of testing more frequently than every 5 yea rs do not justify the costs. HAP emissions change only when operating parameters change ( e.g., firing rate, maximum contaminant input limits for chloride and mercury, type of fuel, combustion efficiency, oxygen content, etc.) or when design changes occur. Absent th ese changes to an affected source, operating parameters established by implementation of CIS WI Rule are more than sufficient to ensure that emissions will not significantly change over time.

Other regulations support a 5-year testing cycle. For exam ple, 40 CFR §75 requires low mass emissions units to establish NO X emissions curves based on testing conducted every 5 years

. Several states require that testing be conducted upon each 5-year Title V permit renewal. All affected major sources subject to Boiler MACT are required to have Title V Permits. The Title V permitting program provides the appropriate vehicle to impleme nt a 5-year test requirement.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 6

Comment: 60.2145(j) – Annual stack testing for cadmium, lead, dioxins/ furans, and hydrogen chloride is burdensome, costly and unnecessary to represent emissions from waste burning kilns. Stack testing to should be no more frequent than 30 months.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum,dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA-HQ-OAR-2003-0119-2605-A1 Comment Excerpt Number: 26

Comment: Under the Final CISWI Rule, units were required to conduct stack tests on a frequent basis. 76 Fed. Reg. 31,981. While EPA has made some i mprovements to the stack testing requirements in the 2012 Reconsidered CISWI Rule, t he frequency of testing is still382

unreasonable and burdensome. In its Petition for Reconside ration of the Final CISWI Rule, CIBO provided extensive comment on why stack testing is no t reasonably related to environmental improvement and unnecessarily duplicates other compliance requirements.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 28

Comment: 60.2705(b) and other sections of the rule should acknowle dge previously mentioned market conditions that may preclude testing based on market conditions based on solid waste availability or economic downturns.

Response: To the extent this comment pertains to fuel switching is sues, those comments are discussed elsewhere in this document. As we note in a re sponse to a similar comment within that section, the rule already allows a time frame of 11-13 months from the previous test to provide operational flexibility. If a source will shut down for an extended period of time, beyond that window, the source should work with their delegated authorit y to establish a schedule for conducting the annual performance test.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 32

Comment: EPA has proposed reduced testing frequency for sources who se emission tests are at or below 75 percent of the emission limit. This suggestio n is inconsistent with EPA’s determination that emissions from well-controlled source s routinely vary by more than an order of magnitude.

Response: We note that the reduced testing provisions have not been re-opened in this reconsideration. See the discussion on this topic in the preamble to the 2011 final rule [76 FR 15714] for more details on how we arrived at the final provis ions for reduced testing.



### 12E. Missing CEMS data provisions (Denied Petition issue)

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1 Comment Excerpt Number: 46383

Comment: EPA should add minimum monitoring system data availability r equirements for all continuous monitoring systems. There will be times, eve n with a well maintained continuous monitoring system, when the system will be out of oper ation. Lengthening averaging periods to 30 days is not adequate to address this issue. 16 Even the final CISWI rule provided minimum data availability requirements for PM CEMS of 85 percent of the hours per day, 90 percent of the hours per calendar quarter, and 95 percent of the hours per ca lendar year that the affected facility is operated. 17 The final Large Municipal Waste Combustor rule also has dat a availability requirements: valid continuous monitoring system hourly av erages shall be obtained at least 90 percent of the operating hours per calendar quarter and 95 perc ent of the operating hours per calendar year. 18 The Petroleum Refinery MACT, Subpart UUU, states that each continuous parameter monitoring system must have valid hourly avera ge data from at least 75 percent of the hours during which the process operated. 19

EPA's response that the need for minimum data availabil ity provisions such as those in NSPS Subpart Da no longer exists due to EPA's better understanding o f the need for continuous data collection and the dramatic improvement in CEMS data av ailability (citing Acid Rain Program) is not persuasive. SO 2 CEMS used under the Acid Rain Program would differ starkly from some of the other CEMS (Hg, HCl, PM) that might be used under the Boiler MACT. SO 2 CEMS are a mature technology in widespread use, but even mature CEMS t echnologies such as SO 2 , NO X , and CO should be provided some reasonable amount of downtime . The Acid Rain rules recognize that NO X

and SO 2 monitors have downtime by including missing data procedures in Appendix C to 40 CFR 75. All equipment will malfunction at some point in time, and EPA should acknowledge this fact by providing a minimum data ava ilability requirement in the CISWI rules for continuous monitoring systems.

[Footnotes:

16 EPA responded that, "[r]egarding comments on PM CEMS, we have modified the language from the proposed 24-hour block to a 30-day rolling average. W e disagree with the commenter about applying the data availability used in Da to the PM CEM S data collection. The Agency has developed a better understanding of the need for continuous da ta collection since Da was published and the equipment and software have dramatically improved as shown by the acid rain program CEMS data availability success. The monitoring sy stem must operate at all time the process is operating." Response to Comments, EPA-HQ-OAR- 2002-0058-2908.1, excerpt number 31.

17 See 40 CFR 60.2165(n)(14) and 60.2730(n)(14).

18 See 40 CFR 60.58b(c)(10)(viii).

19 See 40 CFR 63.1572(c)(3).]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dec ember 19, 2012, in the CISWI docket for further discussion.384



### 14A. Data reporting requirements

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA-HQ-OAR-2003-0119-2573-A2 Comment Excerpt Number: 1

Comment: §60.2060 ...Waste Management Plan — You must submit a waste management plan prior to commencing construction.

Comment: We seek clarification on the applicability of this requirement as it relates to the Cement industry. In most cases, (CISWI) cement manufa cturing operations will only be accepting secondary non-hazardous solid waste streams fro m generators for beneficial use of the material as a supplemental fuel. For Argos, the framewo rk of the Waste Management Plan focuses on the up-front screening of those streams prior to acceptance and then the proper and safe use of the material once it has been received. By way of example, the alternate non hazardous "Waste Management Plan" is to determine the acc eptance of a material is as follows:

• Is the material of sufficient volume and suitable for use as an alternate supplemental fuel material in the cement manufacturing pr ocess?

• What are the safety considerations from an employee s tandpoint, if any? (A MSDS must be provided before any material will be considered.)

• Is the alternate fuel source material approved for use as a condition of the facility's Title V air operating permit?

• Can the material be properly managed on-site from receipt , to processing (if needed) and ultimate firing as an alternate supplemental fuel mater ial?

On a related note, cement plants do not generate a wide v ariety of waste types. The predominate (limited) industrial waste stream for kilns is generally from the older technology (i.e. wet and/or long dry kilns) in generating cement kiln dust (CKD). The maxi mum amount of CKD is recycled internal to the process while excess CKD is removed in o rder to meet ASTM product specifications. CKD is generally land filled on site. Upo n the last review, all active CKD piles in the US were noted as being under permit by state agencies with each having the necessary authority for corrective action. The new, more modern pr eheater/precalciner operations generally do not waste CKD.

Request: The cement industry is not the typical incineration o peration for which the rule is targeted. We request a lessening of Waste Management Pla n requirements as the industry consumes most if not all of our received alternate so lid waste materials and only a small subset of kilns generate any significant amount of wastes (i.e. CKD) and those operations are already regulated by their respective state solid waste agency.

Response: We agree to a certain degree that a waste management plan that applies to wasteburning kilns accepting solid waste materials for use in pro ducing cement will not be the same as one that applies to an incineration unit burning waste gener ated at an industrial or commercial facility. The requirements for a waste management plan are not very prescriptive in nature, so385

that facilities have the flexibility to develop a plan that is most applicable to their operations. We are confident that sources and the delegated authority wi ll be able to work with each other to provide the information needed to develop an acceptable waste management plan that makes sense for the facility, yet also addresses the applica ble elements specified in §60.2065 or §60.2630.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 7

Comment: 60.2145(l) - The requirement to develop and submit a site-s pecific monitoring plan is reasonable, however requiring approval by the Administr ator is an unnecessary burden for both the EPA and the source. It is unlikely the EPA will be able to review and approve these plans within the time allowed (the plans must be submitte d 60 days prior to the test) and there appears to be no provision for what the source is suppose d to do if approval of the plan is not received prior to initiating the test. This specific requi rement in the HWC MACT has led to substantial delay and conflict in Region 6. It is better to test a source sooner rather than delaying due to unnecessary administrative hurdles. It is recomme nded that the requirement for EPA approval be removed.

Response : The Agency is mindful of the need to process these a s expeditiously as possible, however as not all requests contain sufficient informa tion, or may be otherwise complex, we are unable to “automatically” approve them within some default time frame. We disagree that automatic approval provisions are a necessary provision to t he final rule.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 12

Comment: 60.2210(k) – This provision appears to require detailed reporting of malfunctions even if there was no exceedance of an applicable standa rd. This is an unnecessary level of reporting on events that have no impact on emissions and should be removed.

Response: We disagree that reporting of these malfunctions is unnecessary. As the regulatory language specifies “brief descriptions” of the malfuncti on and steps taken to minimize emissions, we do not see this as being overly burdensome. The level of de tail sufficient to satisfy this requirement may vary depending on the nature of the malfu nction and the potential for the malfunction to have caused an exceedance.



### 14B. Records that must be retained

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company386

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1 Comment Excerpt Number: 27

Comment: The definitions [in 60.2685] also appear to make paper operating logs a requirement, as it includes the term “properly signed, contemporaneous operating logs.” Please clarify that electronic systems may be used to meet this requirement.

Response: We are clarifying here that electronic systems may be us ed to meet the operating log documentation requirement specified for establishing an aff irmative defense, provided that the owner or operator can sign a statement certifying the truth and accuracy of the electronic records. The signed statement must be included in the affirmativ e defense report.



### 14C. Electronic Reporting Mechanism

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA-HQ-OAR-2003-0119-2630-A2 Comment Excerpt Number: 4

Comment: Public records for monitoring and compliance with emission s limits. The Lung Association recommends that the records and reports of moni toring and compliance measures for emissions limits be made easily and readily accessible to the public. The public has an established right to know about the emissions of toxic sub stances. For 25 years, EPA has required companies to make public information on toxic chemic als released into the community through the Toxic Release Inventory (TRI). We support a s ystem similar to TRI, where facilities are required to report toxic emissions to the database and make data relating to those emissions available online.

EPA should require boiler operators to publicly disclose a nd report all monitoring data and compliance documentation—including with required work practic es standards—and submit those data reports to EPA for public access online. These wo uld include data and results from performance tests of facilities and emissions that occ ur during malfunctions of boiler equipment. Communities have a right to know what toxic air polluta nts are emitted by boilers and incinerators, the quantities of each type of pollutant bein g emitted, when those emissions are occurring, particularly when the emissions exceed limit s set by EPA.

Response: The EPA agrees with the commenter and plans to have many of the required reports be submitted to the EPA directly where they will be ava ilable in a public database for access and review by all users, including the public. This regulation does not require that submitted data be made public but the EPA will make any data submitted publicly a vailable. State permitting authorities include pertinent data in title V permit repor ts but electronic availability of these data varies by state.

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association387

Document Control Number: EPA-HQ-OAR-2003-0119-2630-A2 Comment Excerpt Number: 5

Comment: EPA’s proposed use of the WebFIRE database to store per formance test data for use in developing emissions factors and submission of emissio ns test data through the Electronic Reporting Tool (ERT) are good first steps in facilitating the organization and analysis of emissions data (EPA, 2011d). Furthermore, this should also inc lude measureable steps under the work practice standards as well, since so many faciliti es will be permitted to use that compliance method. These data must then be made public online in the form of annual reports, similar to the TRI data reports. Along with other measures to enforce em issions limits, we believe this offers a community or “Wiki” enforcement approach to assist in r educing toxic air emissions from boilers and incinerators.

Response: Although the EPA will require the electronic submissi on of some compliance reports, the EPA does not plan to require electronic submis sion of all reports Again, all reports that are electronically submitted to the EPA will be ma de available to all users on the WebFIRE database.



### 15A. Other

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA-HQ-OAR-2003-0119-2573-A2 Comment Excerpt Number: 2

Comment: The original regulation states that no CISWI unit ca n be operated unless a fully trained and qualified CISWI unit operator is accessible. Add itionally, this qualification must be obtained through a state-approved program or by completing the requirements in 60.270(c). Pursuant to 60.2885, operator qualifications must be refreshed a nnual.

Comment: Cement kiln control room operators are vastly differen t than a typical incinerator operator. A cement kiln and preheater/precalciner tower s ystem alone is valued well in excess of $125M. As the "plant quarterback", these operators serve as the minute by minute person responsible for on-going operational parameters in succes sfully producing a quality clinker product that will meet ASTM cement product standards while al so responsible for maintaining compliance with the many on-going continuously monitored e mission limits It is not unusual for cement companies to have their own control room operato r certification program that goes well above and beyond the eleven training elements prescribed i n 60.2070(c).

Request: EPA should be willing to accept via certification , that a cement company's control room operator program equals or exceeds those requirements tha t are prescribed in §60.2070(c).

Response : This training program must be approved by the delegated authorit y. However, a company’s site-specific operator training program, provided it meets the criteria specified in §60.2070(c) or §60.2635(c), as appropriate, may be submitted for approva l to the delegated authority for use in meeting the operator training and qualif ication requirements.388389Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preambleTable 1. Commenters that have submitted comments on topics addressed in section II.E of the preambleComment TopicDCNCommentExcerptNumberCommenter AffiliationCommenter NameDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2571-A19The Dow Chemical CompanyDarryl SandersonDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2572-A115Coalition for Responsible WasteIncineration (CRWI)Melvin E. KeenerDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2577-A15Utility Solid Waste Activities Group(USWAG)Jim RoewerDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2581-A12Georgia-Pacific LLC (GP)Traylor ChampionDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2594-A12Occidental Chemical Corporation(OCC)Frederick FedriDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2597-A17Federal Recycling and RemediationCoalition (FRRC)Susan BodineDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2597-A18Federal Recycling and RemediationCoalition (FRRC)Susan BodineDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2602-A116Auto Industry Forum (AIF)Shannon S. BroomeDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2603-A115Portland Cement AssociationAndrew O'HareDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2605-A14Council of Industrial Boiler Owners(CIBO)Robert D. BessetteDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2609-A11National Solid Wastes ManagementAssociation (NSWMA)Edward RepaDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2609-A12National Solid Wastes ManagementAssociation (NSWMA)Edward RepaDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2609-A13National Solid Wastes ManagementAssociation (NSWMA)Edward RepaDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2611-A118American Forest & Paper Associationet al.Paul Noe, Vice President forPublic PolicyDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2615-A19Lafarge North AmericaMichael PelanDefinitions-"ContainedEPA-HQ-OAR-2003-0119-2617-1Delaware Solid Waste AuthorityAngela D. Marconi390Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preambleComment TopicDCNCommentExcerptNumberCommenter AffiliationCommenter NameGaseous Material"A2(DSWA)Definitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2619-A11American Forest & Paper Associationet al.Paul Noe, VicePresident forPublic PolicyDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2622-A24National Association of Clean WaterAgencies (NACWA)Chris HornbackDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2628-A22Waste Management (WM)Kerry KellyDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2628-A23Waste Management (WM)Kerry KellyDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2633-A22Calgon Carbon CorporationErika H. FrankDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2637-A11INGENCORobert L. GreeneDefinitions-"ContainedGaseous Material"EPA-HQ-OAR-2003-0119-2657-A11Lafarge North America IncRichard G. StollERU PollutantssubcategorizedEPA-HQ-OAR-2003-0119-2591-A11Pennsylvania Department ofEnvironmental ProtectionMichael L. KrancerERU PollutantssubcategorizedEPA-HQ-OAR-2003-0119-2606-A11American Chemistry Council (ACC)Patricia HaederleERU PollutantssubcategorizedEPA-HQ-OAR-2003-0119-2611-A137American Forest & Paper Associationet al.Paul Noe, Vice President forPublic PolicyERU PollutantssubcategorizedEPA-HQ-OAR-2003-0119-2631-A21NC Division of Air Quality (NCDAQ), North Carolina Department ofEnvironment and Natural Resources(NCDENR)Vickie Woods,Administrative AssistantERU PollutantssubcategorizedEPA-HQ-OAR-2003-0119-2640-A21Eastman Chemical CompanyStephen R. GossettERU PollutantssubcategorizedEPA-HQ-OAR-2003-0119-2640-A22Eastman Chemical CompanyStephen R. GossettERU PollutantssubcategorizedEPA-HQ-OAR-2003-0119-2640-A23Eastman Chemical CompanyStephen R. GossettERU PollutantssubcategorizedEPA-HQ-OAR-2003-0119-2640-A24Eastman Chemical CompanyStephen R. GossettERU PollutantsEPA-HQ-OAR-2003-0119-2640-5Eastman Chemical CompanyStephen R. Gossett391Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preambleComment TopicDCNCommentExcerptNumberCommenter AffiliationCommenter NamesubcategorizedA2Establishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2581-A14Georgia-Pacific LLC (GP)Traylor ChampionEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2581-A15Georgia-Pacific LLC (GP)Traylor ChampionEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2597-A19Federal Recycling and RemediationCoalition (FRRC)Susan BodineEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2605-A114Council of Industrial Boiler Owners(CIBO)Robert D. BessetteEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2605-A115Council of Industrial Boiler Owners(CIBO)Robert D. BessetteEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2605-A116Council of Industrial Boiler Owners(CIBO)Robert D. BessetteEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2611-A119American Forest & Paper Associationet al.Paul Noe,Vice President forPublic PolicyEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2611-A120American Forest & Paper Associationet al.Paul Noe, Vice President forPublic PolicyEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2611-A121American Forest & Paper Associationet al.Paul Noe, Vice President forPublic PolicyEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2618-A25Archer Daniels Midland CompanyMark CalmesEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2618-A26Archer Daniels Midland CompanyMark CalmesEstablishing a Definition of"Homogeneous Waste"EPA-HQ-OAR-2003-0119-2618-A27Archer Daniels Midland CompanyMark CalmesOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2571-A110The Dow Chemical CompanyDarryl SandersonOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2571-A111The Dow Chemical CompanyDarryl SandersonOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2571-A112The Dow Chemical CompanyDarryl SandersonOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2572-A112Coalition for Responsible WasteIncineration (CRWI)Melvin E. Keener392Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preambleComment TopicDCNCommentExcerptNumberCommenter AffiliationCommenter NameOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2596-A16National Cement Company, Inc.Michael D. StevensOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2599-A113Energy Recovery Council (ERC)Ted MichaelsOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2599-A114Energy Recovery Council (ERC)Ted MichaelsOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2603-A111Portland Cement AssociationAndrew O'HareOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2605-A16Council of Industrial Boiler Owners(CIBO)Robert D. BessetteOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2606-A118AmericanChemistry Council (ACC)Patricia HaederleOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2606-A120American Chemistry Council (ACC)Patricia HaederleOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2606-A121American Chemistry Council (ACC)Patricia HaederleOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2614-A123National Association of Clean AirAgencies (NACAA)Mary Sullivan DouglasOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2627-A26Pennsylvania Chamber of Businessand IndustryShawnGoodOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2628-A210Waste Management (WM)Kerry KellyOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2632-A217Cemex USASatish ShethOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2640-A27Eastman Chemical CompanyStephen R. GossettOptional CO CEMSprovisionsEPA-HQ-OAR-2003-0119-2642-A22Universal Cement, LLC and OzingaBros., Inc.Rex JamesonRevisions to the ContinuousMonitoring Provisions forLarge ERUsEPA-HQ-OAR-2003-0119-2572-A122Coalition for Responsible WasteIncineration (CRWI)Melvin E. KeenerRevisions to the ContinuousMonitoring Provisions forLarge ERUsEPA-HQ-OAR-2003-0119-2599-A116Energy Recovery Council (ERC)Ted Michaels393Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preambleComment TopicDCNCommentExcerptNumberCommenter AffiliationCommenter NameRevisions to the ContinuousMonitoring Provisions forLarge ERUsEPA-HQ-OAR-2003-0119-2605-A129Council of Industrial Boiler Owners(CIBO)Robert D. BessetteRevisions to the ContinuousMonitoring Provisions forLarge ERUsEPA-HQ-OAR-2003-0119-2605-A131Council of Industrial Boiler Owners(CIBO)Robert D.BessetteRevisions to the ContinuousMonitoring Provisions forLarge ERUsEPA-HQ-OAR-2003-0119-2605-A133Council of Industrial Boiler Owners(CIBO)Robert D. BessetteRevisions to the ContinuousMonitoring Provisions forLarge ERUsEPA-HQ-OAR-2003-0119-2606-A129American Chemistry Council (ACC)Patricia HaederleRevisions to the ContinuousMonitoring Provisions forLarge ERUsEPA-HQ-OAR-2003-0119-2606-A130American Chemistry Council (ACC)Patricia HaederleRevisions to the ContinuousMonitoring Provisions forLarge ERUsEPA-HQ-OAR-2003-0119-2611-A140American Forest & Paper Associationet al.Paul Noe, Vice President forPublic PolicyRevisions to the ContinuousMonitoring Provisions forLarge ERUsEPA-HQ-OAR-2003-0119-2638-A213Earthjustice, Partnership for PolicyIntegrity, and Clean Air CouncilNeil GorleyRevisions to the ContinuousMonitoring Provisions forLarge ERUsEPA-HQ-OAR-2003-0119-2640-A210Eastman Chemical CompanyStephen R. Gossett

## APPENDIX A

Out of Scope CommentsA-1



### 1A. Non-Hazardous Solid Waste Definition

A number of comments were submitted to the CISWI docket f or the 2011 proposed rule (Docket ID EPA-HQ-OAR-2003-0119) but the commenter primarily discusse d issues relating to the NHSM aspects (Docket ID: EPA-HQ-RCRA-2008-0329).

Table 2 identifies comments that primarily discussed iss ues that are on Non-Hazardous Secondary Materials topics. To the extent that the c ommenters have provided these comments to today's Identification of Non-Hazardous Secondary Materia ls That Are Solid Waste portion of the rulemaking, they may be addressed there or were addresse d in the rulemaking record for the March 21, 2011, NHSM Final Rule. As stated in the preamble 76 FR 80470-80474, the Agency did not reopen the entire NHSM rule for reconsiderati on and will not respond to comments directed toward rule provisions that were not specifically identified in the December 23, 2011, proposal. For more information regarding the intent of t he December 23, 2011 proposed rule, see 76 FR 80469.



### Table 2. Comments on Non-Hazardous Secondary Materials Topics

Document ID Number Excerpt Number Commenter Affilitation Commenter Name

EPA-HQ-OAR-2003-0119-2567-A1 1 GenOn Energy, Inc. (GenOn) John P. Shimshock, Sr. Air Environmental Specialist EPA-HQ-OAR-2003-0119-2576-A1 1 Ash Grove Cement Company Curtis D. Les slie
EPA-HQ-OAR-2003-0119-2576-A1 29 Ash Grove Cement Company Curtis D. Le sslie
EPA-HQ-OAR-2003-0119-2577-A1 6 Utility Solid Waste Activities Group (USWAG) Jim Roewer
EPA-HQ-OAR-2003-0119-2578-A1 1 Maine Pulp & Paper Association (MPPA) John S. Williams
EPA-HQ-OAR-2003-0119-2581-A1 1 Georgia-Pacific LLC (GP) Traylor C hampion
EPA-HQ-OAR-2003-0119-2581-A1 3 Georgia-Pacific LLC (GP) Traylor C hampion
EPA-HQ-OAR-2003-0119-2581-A1 8 Georgia-Pacific LLC (GP) Traylor C hampion
EPA-HQ-OAR-2003-0119-2581-A1 9 Georgia-Pacific LLC (GP) Traylor C hampion

EPA-HQ-OAR-2003-0119-2586-A1 1 Edison Mission Energy (EME) et al. Bas il G. Constantelos

EPA-HQ-OAR-2003-0119-2592-A1 3 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur MarinA-2



### Table 2. Comments on Non-Hazardous Secondary Materials Topics

Document ID Number Excerpt Number Commenter Affilitation Commenter Name

EPA-HQ-OAR-2003-0119-2592-A1 4 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur Marin

EPA-HQ-OAR-2003-0119-2592-A1 5 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur Marin

EPA-HQ-OAR-2003-0119-2592-A1 6 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur Marin

EPA-HQ-OAR-2003-0119-2595-A1 2 National Alliance of Forest Owners (N AFO) Roger Martella
EPA-HQ-OAR-2003-0119-2596-A1 8 National Cement Company, Inc. Michael D . Stevens
EPA-HQ-OAR-2003-0119-2597-A1 1 Federal Recycling and Remediation Coali tion (FRRC) Susan Bodine
EPA-HQ-OAR-2003-0119-2597-A1 2 Federal Recycling and Remediation Coali tion (FRRC) Susan Bodine
EPA-HQ-OAR-2003-0119-2597-A1 3 Federal Recycling and Remediation Coali tion (FRRC) Susan Bodine
EPA-HQ-OAR-2003-0119-2597-A1 4 Federal Recycling and Remediation Coali tion (FRRC) Susan Bodine
EPA-HQ-OAR-2003-0119-2597-A1 5 Federal Recycling and Remediation Coali tion (FRRC) Susan Bodine
EPA-HQ-OAR-2003-0119-2597-A1 6 Federal Recycling and Remediation Coali tion (FRRC) Susan Bodine
EPA-HQ-OAR-2003-0119-2597-A1 12 Federal Recycling and Remediation Coal ition (FRRC) Susan Bodine

EPA-HQ-OAR-2003-0119-2599-A1 5 Energy Recovery Council (ERC) Ted Mic haels
EPA-HQ-OAR-2003-0119-2602-A1 15 Auto Industry Forum (AIF) Shannon S. Broom e EPA-HQ-OAR-2003-0119-2603-A1 2 Portland Cement Association Andrew O' Hare

EPA-HQ-OAR-2003-0119-2610-A1 3 Used Oil Management Association (UOM A) Susan Bodine
EPA-HQ-OAR-2003-0119-2612-A1 1 Wisconsin DNR Bart Sponseller
EPA-HQ-OAR-2003-0119-2615-A1 11 Lafarge North America Michael Pelan
EPA-HQ-OAR-2003-0119-2622-A2 1 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA-HQ-OAR-2003-0119-2622-A2 2 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA-HQ-OAR-2003-0119-2622-A2 3 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA-HQ-OAR-2003-0119-2622-A2 5 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA-HQ-OAR-2003-0119-2627-A2 2 Pennsylvania Chamber of Business and Industr y Shawn Good

EPA-HQ-OAR-2003-0119-2632-A2 3 Cemex USA Satish Sheth
EPA-HQ-OAR-2003-0119-2632-A2 4 Cemex USA Satish Sheth
EPA-HQ-OAR-2003-0119-2632-A2 5 Cemex USA Satish ShethA-3



### Table 2. Comments on Non-Hazardous Secondary Materials Topics

Document ID Number Excerpt Number Commenter Affilitation Commenter Name

EPA-HQ-OAR-2003-0119-2632-A2 6 Cemex USA Satish Sheth
EPA-HQ-OAR-2003-0119-2632-A2 7 Cemex USA Satish Sheth
EPA-HQ-OAR-2003-0119-2632-A2 8 Cemex USA Satish Sheth
EPA-HQ-OAR-2003-0119-2632-A2 9 Cemex USA Satish Sheth
EPA-HQ-OAR-2003-0119-2632-A2 10 Cemex USA Satish Sheth
EPA-HQ-OAR-2003-0119-2632-A2 11 Cemex USA Satish Sheth
EPA-HQ-OAR-2003-0119-2632-A2 12 Cemex USA Satish Sheth
EPA-HQ-OAR-2003-0119-2632-A2 13 Cemex USA Satish Sheth
EPA-HQ-OAR-2003-0119-2635-A2 1 The Commonwealth of Massachusetts, Burea u of Environmental Health Suzanne K. Condon

EPA-HQ-OAR-2003-0119-2636-A2 2 State of Washington Department of Ecol ogy Stuart A. Clark
EPA-HQ-OAR-2003-0119-2636-A2 3 State of Washington Department of Ecol ogy Stuart A. Clark
EPA-HQ-OAR-2003-0119-2638-A2 17 Earthjustice, Partnership for Policy Integrity, and Clean Air Council Neil Gorley

EPA-HQ-OAR-2003-0119-2638-A2 18 Earthjustice, Partnership for Policy Integrity, and Clean Air Council Neil Gorley

EPA-HQ-OAR-2003-0119-2638-A2 19 Earthjustice, Partnership for Policy Integrity, and Clean Air Council Neil Gorley

EPA-HQ-OAR-2003-0119-2638-A2 20 Earthjustice, Partnership for Policy Integrity, and Clean Air Council Neil Gorley

EPA-HQ-OAR-2003-0119-2641-A2 1 Maine Department of Environmental Prot ection (DEP) Lisa P. Higgins

EPA-HQ-OAR-2003-0119-2648-A1 1 PT AirWatchers Gretchen BrewerA-4



### 1C. Boiler Major Source

Commenter Name: John S. Williams Commenter Affiliation: Maine Pulp & Paper Association (MPPA) Document Control Number: EPA-HQ-OAR-2003-0119-2578-A1 Comment Excerpt Number: 2

Comment: A. CO Standards should be based on Correction to 11 or 12% oxygen Boiler MACT requires that the CO limit be standardized to 3% oxygen whi ch is well below where most biomass boilers normally operate. This biases the stac k CO higher when the adjustment from operating CO to the 3% standard is made. Oxygen correction percents should be representative of normal stack conditions under normal operation. Three percent is not normal of most combustion units. This is not normal for the location where a certified CEMS needs to be installed to meet performance specification 1 requirement s. CEMS need to be installed in stacks, not at the boiler outlet. Section 7525 needs to be correct ed to require the CEMS to be installed in a boiler stack (or boilers outlet may be used for boile rs with shared stacks). "63. 7525 The oxygen analyzer system or the CO CEMS must be installed by the compliance date specified in§ 63.7495. If a CO CEMS is used, the carbon monoxide level shal l be monitored at the outlet of the boiler or process heater." B. CO Standards are pr oblematic. The new CO limits are particularly problematic for stoker boilers burning wet biom ass1 (such as those at the S.D. Warren Somerset, Lincoln Paper & Tissue, Verso Paper and Old Town Fuel & Fiber mills). Boiler adjustments and costly combustion air reconfigurat ions (which are not even physically possible on some older boilers) are not likely to be su fficient for some biomass stoker boilers to meet the CO limits. Further, CO catalysts which conve rt CO to C0 2 (a greenhouse gas) and which typically cost over one million dollars may get poisoned, making them ineffective. The Boiler MACT CO limits would necessitate combinations of emission controls that would have adverse effects on each other, and even then are unachieva ble for certain biomass boilers at Maine mills. For example, the conditions that affect the optimum emissions of CO may run contrary to minimizing emissions of NO X . Although NO X is not addressed in the Boiler MACT, for years the northeastern states, including Maine, hav e focused on the control and reduction of NO X emissions to improve ozone. Minimizing CO emissions conf licts with the State's efforts to minimize NO X . C. EPA should not limit boilers to 110% of the operati ng load achieved during the last performance test. It appears that, under the Bo iler MACT rule, mills must conduct a compliance test for CO and, thereafter, meet an oxygen limit which is the lowest oxygen level recorded during the three one-hour test runs for CO. The rule requires that a boiler must then be operated at not more than 110% of the operating load achieved during the performance test. The highest operating load in a multi fuel boiler often does not correspond with the lowest oxygen condition. This approach is difficult if not impossible to meet in a multifuel boiler, such as those in use at most of Maine's mills. If wet fuels happen to be burned during the stack test (EPA requires 60 day notice prior to testing and the weather cann ot be predicted) higher levels of oxygen are required and the resulting increase will affect the ability to comply with the CO limit. When burning biomass, stack oxygen concentrations will be much higher than when firing fuel oil. EPA's stack test compliance approach appears based on the incorrect premise that COA-5

emissions from a biomass boiler exhibit low variability. It is unreasonable to establish a CO emission limit based on a single hourly emission value. Additionally, the rule imposes limitations on boiler steam output operation to that a chieved during the CO testing. Paper mill boilers are operated at variable loads based on the proce ss steam demands. It will be impractical to operate at maximum loads during every stack test. Limiti ng boiler capacity to 110% of the value achieved during a performance test undermines the econ omic survival of a mill. The rule appears to require multiple stack test runs for each param eter to demonstrate compliance with each emission limit (two or more tests for CO, two te sts for HCL, two tests for Hg, one or more tests for PM ... these tests will not run concurrentl y). The worst case fuel mix for CO is likely not the same fuel mix needed to establish minimum 0 2 parameter or the boiler steaming that is needed for normal operation. If performance testing needs to be at the worst case mix for a pollutant, that worst case fuel mix cannot then be tied t o a steaming rate limit of 11 0% achieved during the performance test. (Table 7 in the proposed rule l imits the operation capacity to 110% for all pollutants tested). The proposed rule will allow units that demonstrate compliance for a particular pollutant at a level at or below 75 percent of the emission limit for 2 consecutive years to forego stack testing for up to 37 months. Since most pollutan t testing will be completed during worst case scenarios, this allowance will likely provide no relief of the performance test requirement's costly burden. Also, because of the wors t cast fuel mix and operating limit requirements, many multiples of stack testing scenarios will be required. D. EPA should retain a 30-day rolling average basis for compliance with CO limit s. In the March 21,2011 Boiler MACT regulation, EPA included CO emissions limits based on 30-da y rolling averages and operation of a continuous emission monitor system (CEMS) for boiler s 100 MMBtu/hr and greater. The December 23, 2011 proposed amendments would shorten the avera ging time for CO to a 1 0-day rolling average basis. Boiler MACT rule establishes CO limits with compliance based on stack tests, which does not provide time to average out inevitable swings in operation and resulting variable CO emissions. EPA also made changes to its meth odology for establishing the final CO limits as compared to the methods used to establish the pr oposed limits. EPA should reconsider the CO limits because MPPA, its members and the Maine DEP could not reasonably discern at the time of proposal the way in which EPA would develop t he limits and require compliance with the final standard and therefore did not have a meaning ful opportunity to comment on these issues. MPPA members are aware that NCASI has extensive ly reviewed the methodology used by EPA in the development of the long term CO limit an d finds that the data is auto correlated. When the data is assessed using a longer averaging period a higher CO limit is justified. We understand they will be providing recommendations and urge EPA to adopt this more scientifically based approach. MPPA strongly urges that EPA either return to a 30-day rolling average for CO limits from biomass boilers equipped with CO continuous emissions monitors and establish more appropriate CO limits for wet biomass fuel boilers.

[Footnote:

1For the purposes of this letter, "wet biomass" is biomas s (including bark, sawdust, and wood chips) with approximately 50% moisture. Note that the moist ure content of the wet biomass used in the mill boilers varies based on season, weather, and other variables.]

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial,A-6

Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name: Roger Martella Commenter Affiliation: National Alliance of Forest Owners (NAFO) Document Control Number: EPA-HQ-OAR-2003-0119-2595-A1 Comment Excerpt Number: 3

Comment:

III. Proposed Emissions Limits for Major Sources

Even if EPA properly finalizes the regulations in a way that classifies biomass energy feedstocks as non-waste, this clean, renewable, and climate-benef icial energy supply will not be developed without significant changes to the current emissions lim its imposed on biomass boilers under the Major Source rule. Despite the fact that biomass energ y is a clean, renewable alternative to fossil fuel combustion, the current regulations impose stringent emissions limits on biomass boilers that will require installation of expensive control tec hnology while providing minimal (and sometimes undetectable) environmental and health benefits. Unless changes are made to the existing emissions limits, the high costs of complianc e for biomass boilers will inevitably cause energy producers to turn to fossil fuel alternatives wi th lower compliance costs.

The proposed changes to the Major Source rule offer a n umber of improvements that will reduce compliance costs without sacrificing environmental and hea lth benefits, particularly with respect to dioxin/furan emissions limits and the standards for new biomass boilers. However, these changes will not be sufficient to properly encourage a nd incentivize biomass energy development. NAFO urges EPA to consider additional chan ges with respect to emissions limits for other HAPs – including particulate matter standards for existing boilers. Without additional changes, future growth in the biomass energy sector wil l be discouraged and the potential climate benefits of biomass energy will not be fully realized.

A. Work Practice Standards for Dioxin/Furan and Mercury, 40 C .F.R. Part 63, Subpart DDDDD, Table 3

In its Major Source rule comments, NAFO urged EPA to adopt work practice standards for dioxin/furan,26 and we support EPA’s decision to do so now. As E PA recognizes, baseline dioxin/furan emissions from biomass are already extremel y low and, in many cases, are below detection limits. As a result, stringent emissions li mits, such as those currently in effect, will require the installation of extremely expensive control technology while providing little if any health benefit. Further given the current detection lim its, it will be impossible to distinguish between compliant and non-compliant facilities. For these reasons, we support EPA’s proposal invoking its authority under section 112(h)(2)(B) of the Clea n Air Act to issue work practice standards in lieu of emissions limits for dioxin/furan emis sions.A-7

For the same reasons, EPA should adopt work practice st andards in lieu of emissions limits for mercury emissions from biomass boilers. As explained in our Major Source rule comments, EPA’s proposed mercury emissions limits were also below detection limits and would require expensive control technology while providing little if any he alth benefit.27 Thus, EPA should also adopt work practice standards in lieu of emissions limits for mercury emissions from biomass boilers.

B . Emissions Limits for Particulate Matter, 40 C.F.R . Part 63 ,Subpart DDDDD, Tables 1-2.

While EPA’s proposed revisions to the PM emissions limits demonstrate an attempt at increasing flexibility and reducing regulatory burdens, it fai ls to produce this effect for many existing biomass boilers. EPA’s decision to create PM s ubcategories for coal- and biomass-fired boilers, resulted in uneven results and in several case s we are concerned that the emissions limits included in the proposed rule remain too stringent. As explained in our prior comments, the current PM emissions limits will requir e biomass facilities to install costly new control technology and incur higher operating costs, cre ating a risk that facilities will avoid biomass fuels and turn instead to fossil fuel alternatives . But, rather than relieving this burden, the proposed PM emissions limits for existing “stokers/sl oped grate/others designed to burn wet biomass fuel” – the most common type of biomass boiler c urrently in use – are actually more stringent than those under the current rule. Further reduct ions in PM emissions limits for the majority of existing biomass boilers will have a signif icant and detrimental effect on the viability of these boilers as alternatives to fossil fuel boile rs. The wood products industry, which employs the majority of the wet stoker boilers, was significa ntly impacted by the recession and is still struggling to recover. EPA must reassess the emissions l imits for existing wet biomass stoker boilers and adopt more reasonable standards that can be achieved in practice and will satisfy legal requirements, without prohibitive costs that will further threaten the health and viability of this important industry.

Footnotes:

26NAFO Major Source Rule Comments, at 7, 9. 27Id.26

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name : Ted Michaels Commenter Affiliation : Energy Recovery Council (ERC) Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1 Comment Excerpt Number: 16

Comment: On July 12, 2011, in response to EPA’s May 18, 2011 call for em ission data, the Biomass Power Association (BPA) submitted emission dat a for 15 biomass units. (EPA-HQOAR-2003-0119-2531) The submittal included a description of all mater ials combusted during each of the tests for which data were provided. Of the 15 uni ts, seven combusted “urban wood” 5A-8

from processors during the emission tests. In its submitt al BPA stated that all units were “CISWIs or possible CISWIs” and explained that the basi s for that determination was a conservative reading of the confusing March 21, 2011 final NHSM rule. In its December 23 proposal and MACT floor calculations EPA has categorized 12 of these biomass units as either Major Boilers or Area Source B oilers. This includes the seven units combusting processed C&D wood. These units are noted in the Major Source Boiler MACT database as: CAChineseStation, CACovantaDelano Unit 1, CAC ovantaDelano Unit 2, CACovantaMendota, CAPacificOroville Boiler 1, CAPacifi cOroville Boiler 2, and CAThermalEnergyDev.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. However, we note that the BPA data of July 12, 2011 the commenter refers to was incorporated i n the respective inventories. Based on our understanding of the NHSM rule and the information available on these units from BPA, we had moved the Wheelabrator Shasta ERUs to the CISWI inventory. However, as pointed out by the operator of these unit (see comment excerpt 8 from EPA-HQ-OAR-2003-0119-2628-A2), the BPA data was outdated and the Wheelabrator units have not been combusting waste materials and were not planning on combusting any materials that may be considered waste. Therefore, these units have been removed from the CISWI inventory and instead placed in the Major Source boiler inventory for the final rule.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 2

Comment: The Notice of Reconsideration appropriately recogniz ed that the final rules that were issued required revision due to numerous techn ical, legal and policy issues that the Agency had not had sufficient time to address in its final rulemakings. By the same token, however, the notice created uncertainty on mult iple levels as to the final limits and standards of the Boiler MACT and CISWI Rules. First, i t created uncertainty as to the final composition of “a number of issues” EPA enumerated in t he Notice of Reconsideration. Those included fundamental aspects of the Boiler MACT and CISWI Rules, e.g., revisions to the proposed subcategories and to the fuel specification through which gas-fired boil ers using a fuel other than natural gas (“NG”) can qualify as Gas 1 units in the Major Source Boiler MACT. See id . Second, the Notice of Reconsideration created uncertain ty as to which other elements not enumerated by EPA would become part of the reconsiderati on process and how reconsideration might alter the form of those elements as finalized o n March 21, 2011. This is because EPA explicitly set forth that it was still “in the proce ss” of determining the full extent of those subjects and that it was committed to including “all additional iss ues” appropriate for reconsideration, including those raised in any then-prospective petitions for reconsideration. Even to the extent that the Notice of Reconsideration enumerated certain, specific subjects as under reconsideration, it acknowledged that the list was only a portion of the subjects that EPA would ultimately reconsider. See id. Indeed, the scope of the issues that EPA intended to re consider was not identified until the 3 December 23, 2011, reconsideration propo sal, some 9 months later than theA-9

publication of the final rule (and a substantial portion of the way into the compliance planning period for affected sources). The Notice of Reconsiderati on, therefore, literally put affected sources, including those owned and/or operated by AIF members , on notice that they should not – and, indeed, could not – initiate selections of control te chnologies or make other compliance decisions because elements of the Boiler MACT and CIS WI Rules were subject to change. The subsequent Delay Notice reinforced the notion that affect ed sources should postpone the start of internal compliance procedures because it expressly dela yed the May 20, 2011, effective date of the Boiler MACT and CISWI Rules, pending the conclusion of judicial review or EPA’s reconsideration process. See Delay Notice , 76 Fed. Reg. at 28,662. In the notice, EPA again reiterated that a reconsideration proposal would be fo rthcoming and that the full extent of the subjects under reconsideration would not be known until iss uance of that proposal. See id. at 28,663. In the Delay Notice, therefore, EPA induced reasona ble reliance on the part of affected sources, including those owned and/or operated by AIF members , to put off making the necessary compliance decisions until further notice. Wh en weighing various energy strategies to comply with the Boiler MACT, automotive companies fac e a number of choices. For instance, facilities with coal-fired boilers must decide betwee n several options for meeting the anticipated rules and optimizing energy usage, including adding control equ ipment to current boilers; converting less efficient steam-powered heaters to NG-f ired units; and eliminating coal boilers altogether by either converting them to, or replacing them with, NG-fired units or resourcepreserving, landfill gas-fired boilers. The control options associated with the CISWI rule will be even more numerous due to the higher emission restricti ons involved. Uncertainty as to the final form of the regulations – including which controls, work prac tices, and emission standards will apply – inhibits automotive companies from judiciously making t hese involved energy policy decisions. Once the rules are finalized, implementation of the changes required to achieve compliance can require significant time, beginning with the company’s internal review process. First, the automotive company’s legal and technical perso nnel must analyze the newly promulgated requirements to determine the best course of act ion based on the company’s production requirements and its short- and long-term financ ial situation. After selecting a strategy, the technical staff must compile and present a budget and informational package to facilitate the managerial decision-making process. Next , the automaker’s management must review and approve the compliance strategy. Management appr oval is followed by compilation of a bid package and vendor list to assist the company in ide ntifying the best equipment and value. The automaker then submits bid packages to identified bidders and, after several rounds of clarifications and negotiations, selects and hires a bidder . It can easily take 6-8 months after the rule is finalized to select a control option and hire a n installation contractor, assuming a qualified vendor is available to begin work immediately. Under curren t regulatory timetables, this would give all affected sources slightly more than a year t o design, build, install, and test required control equipment, an insufficient period of time. 4 Ev en after a company hires a vendor, it needs additional time to order and install equipment. The lengt h of time depends on the types of equipment or controls chosen, and obtaining certain piece s of equipment sometimes involves significant lead times. In addition, as EPA acknowledges, only a limited number of vendors are qualified to fabricate and install the equipment that the Boiler MACT and CISWI and NHSM Rules will ultimately require.3 A short implementatio n window would result in flooding these vendors with bid requests and aggressive equipment delivery and installation demands, causing increased wait times and increasing compliance risk for o wners and operators. Moreover, as EPA is aware, installation of controls or changes to a pr ocess to comply with a rule typically requiresA-10

air construction permits to be issued under the state im plementation plan (“SIP”) and revision of Title V operating permits. Construction permit processing ti mes can range from 3 months to over a year and revision of operating permits typically takes no less than 6 months but can take longer. After the required permits are issued and the requisi te equipment is delivered, the speed of installation can depend on the weather in northern climates (where many of AIF members’ facilities are located), which inhibits the pouring of co ncrete foundations depending on the season. A start-up time follows equipment installation and then, generally, the vendor must test the equipment to demonstrate that it meets performance claims. Moreover, as EPA is aware, the rules, once finalized, will require some type of third-par ty equipment performance testing. Regulated entities will need to select those third-party t esting companies by a process similar to vendor-selection process described above and, again, the r egulated community would expect shortages of qualified testing vendors in any truncated or expe dited rule-implementation window. If, as evaluated through the testing process, the equipment does not meet performance requirements, then it may need additional modification or adjustment. In the reconsideration proposals, EPA recognizes in general terms the effect o f the Notice of Reconsideration and the Delay Notice, describing the “resulting uncertainty” as ha ving “limited the ability of affected sources to begin making appropriate selections of control technologies and other compliance decisions.” E.g., Boiler MACT Reconsideration Proposal, 76 Fed. Reg. at 80,616. As described above, the compliance process for regulated entities li ke facilities owned and/or operated by AIF members is protracted and involves many interconnected steps. Given that the regulated community cannot begin the compliance process without kno wing the final contours of the rules, any delay in EPA finalizing the Boiler MACT and CISWI Rule s necessitates a corresponding delay in the beginning of the compliance period. Otherwis e, affected sources, including those owned and/or operated by AIF members, will have insufficie nt time to comply. Therefore, AIF supports EPA’s proposal for the compliance period to begin 60 days after it publishes the final reconsideration rules. [Footnotes] (3) In the Boiler M ACT Reconsideration Proposal, EPA notes that, even under the statutory maximum of 3 years, the availability of control equipment and vendors to facilitate installation of control technologi es is likely to pose a problem, given the thousands of facilities across multiple, diverse indus tries that will become subject to the final reconsideration rules. See Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. The potential scarcity in availability of equipment and vendor s promises to be exacerbated, as EPA recognizes, by the “large number of units requiring control s in conjunction with the parallel rulemaking for electric generating units that will require controls from many of the same vendors.” Id.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. However, to the extent their comment concerns CISWI, we have responded below.

CAA section 129(g)(2) defines a “new solid waste incineration unit” as a “solid waste incineration unit the construction of which is commenced a fter the Administrator proposes requirements under section [129] establishing emissions standa rds or other requirements which would be applicable to such unit or a modified solid waste inc ineration unit.” There is some ambiguity in the language of the statute and such language c ould refer to different dates in different circumstances, such as the time the Agency f irst proposes any standards for the sourceA-11

category, the time the Agency first proposes standards under a particular rulemaking record for the source category, or the time the Agency first prop oses a particular standard.

In the proposed reconsideration rule, the EPA proposed t o extend the compliance dates for CISWI sources, but we did not propose or take comment on changing the June 4, 2010, date that determines new source eligibility, nor did we solic it comment on this issue. Although CISWI commenters did not make this assertion, industry co mmenters to the major source boiler rule stated that we should change the date for determini ng new source status from June 4, 2010 to December 23, 2012, the date of the proposed reconsideratio n rule. In support, they asserted that they will not know what the final standards are unt il we finalize the reconsideration rule. We disagree with the commenters’ suggestion and are reta ining the June 4, 2010 date as the date that determines whether a source is a new source under CAA section 129(g)(2) for the CISWI rule.

It is reasonable to retain the June 4, 2010 date as the date the Agency proposed requirements for this source category. This is the date that EPA proposed standards for these sources under this particular rulemaking record. Today’s ac tion is a reconsideration action, and although it revises several of the new source standards, it is premised on the same general rulemaking record. It is thus reasonable to view the dat e EPA proposed standards for these sources to be the June 4, 2010 date. Further, industry comm enters essentially advocate an approach whereby any time the Agency changes a new source standard, in any way, on reconsideration, the new source trigger date would change . Such a result is not consistent with Congress’ intent in defining the term “new source” in se ction 129(g)(2), to be the date the Agency proposes requirements for solid waste incineration units. Furthermore, EPA notes that the standards finalized today are ones that can be met, in our view, using the same or similar control technologies as would be used to meet the final s tandards issued in March 2011.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 4

Comment: As EPA acknowledges, even after issuance of the reconsi deration proposals, affected sources’ uncertainty as to the final form of th e Boiler MACT and CISWI Rules persists because the reconsideration proposals put forward a number of substantive revisions to the definitions, subcategories, emission limits, work practice standards a nd other components of the rules. See CISWI and NHSM Rules Reconsideration Proposal , 76 Fed. Reg. at 80,465; Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. In the Boiler MACT Reconsideration Proposal, for example, EPA “proposed changes to emissi on limits for units in every subcategory.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616 (emphasis added). Revision to emission limits and standards across t he subcategories will trigger different compliance responses and control selection than would hav e flowed from the final rules of March 21, 2011. Those proposed changes, coupled, for example, with the shift to work practice standards for dioxin/furan emissions for all subcategories, significantly impacts the ability of affected sources, including those owned and/or operated by A IF members, to develop and decideA-12

upon final compliance strategies while the reconsideration process remains ongoing. See id. As EPA notes, facilities must design emission controls t o work properly when operated together, so they cannot initiate appropriate design of those controls (and make corresponding compliance decisions) until the final limits and standards are known and fixed. See id. The fact that the Boiler MACT and CISWI and NHSM Rules all simultaneousl y remain in development adds a special level of complication to system analysis prior to the finalized rules. For example, in one process, a company must analyze a system to evaluate whi ch materials the NHSM Rule might be interpret as a “solid waste.” This determination will di ctate whether the equipment must ultimately meet the Boiler MACT or the CISWI Rule. I n the case of the CISWI Rule, a particular process would likely require addition of an afterburner o r recuperative oxidizer, selective catalytic reduction (“SCR”), a scrubber, activated carb on injection and a baghouse. If the material is considered a fuel and not subject to CISWI, h owever, it would have to meet the Boiler MACT requirements, which would likely involve only a scrubber and a baghouse. Moreover, uncertainty regarding the final limits require d by the rule complicates decisions on the process order of the equipment layout. Determination of the final pollutant emission limits dictates, for instance, whether to use a SCR and spray dry er combination versus a multipollutant, Tri-NOx system followed by an acid gas scrubber. The regulated community, including AIF members, simply cannot make these decisions unti l EPA finalizes the reconsideration proposals. Therefore, such persistent uncertainty delays the start of the implementation process. Once EPA finalizes the Boiler MACT and CISWI Rules, the compliance strategy process for affected sources, incl uding those owned and/or operated by AIF members, must begin anew. As EPA does not expect to final ize the reconsideration proposals until later this Spring, maintaining the original complianc e dates would provide affected sources with an insufficient amount of time to meet the stan dards of the forthcoming final reconsideration rules. For the Boiler MACT, for exa mple, maintaining the original compliance date of March 21, 2014, would 6 effectively provide affected sourc es with less than 2 years. Even under the maximum time of 3 years from the effecti ve date allotted under Section 112 of the Clean Air Act (“CAA”), with which EPA sought to pr ovide affected sources in the March 21, 2011, final rule, EPA characterized the compliance timeta ble as “pressing.” Delay Notice , 76 Fed. Reg. at 28,663. AIF concurs. As EPA suggests in the reco nsideration proposals, if the Agency does not key the compliance period to the final rec onsideration rules, sources will have insufficient time to achieve compliance. EPA should final ize its proposal to begin the compliance period 60 days after publication of the final rec onsideration rules.4 [Footnotes] (4) Consistent with its proposal as to affected sources, EPA proposes to delay the start of the compliance period for new sources until 60 days after publica tion of the final reconsideration rules. See CISWI and NHSM Rules Reconsideration Proposal , 76 Fed. Reg. at 80,465; Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. AIF supports this proposal for many of the same reasons articulated with respect to affect ed sources.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there. However, to the extent their comment concerns CISWI, see the response to EPA-HQ-OAR-2003-0119-2602-A1, excerpt 2.A-13

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 5

Comment: CAA § 112(i)(3)(A); 42 U.S.C. § 7412(i)(3)(A) (emphasis added). The plain language of § 112(i)(3)(A) directs EPA to establish a complia nce date “no later than 3 years after the effective date” of any emission standard, limitati on, or regulation. Here, consistent with that directive, for the Boiler MACT, EPA initially set a compliance date for the Boiler MACT of March 21, 2014, or 3 years after the March 21, 2011, publication o f the final rule in the Federal Register and slightly less than 3 years after the initial effec tive date of May 20, 2011. Now, as discussed above, EPA proposes to start the 3-year compli ance period beginning 60 days after publication of the final reconsideration rule. As discusse d above, the rationale is that EPA proposes substantial revisions of the reconsideration pr oposals and that the Notice of Reconsideration, along with the Delay Notice, generated uncertainty as to the final form of the rules throughout the regulatory community. As a result o f this process, affected sources have not been able to initiate the compliance process—the composit ion of the final rule remains unclear and those sources continue to operate in reliance on EPA ’s representations that the effect of the Boiler MACT is stayed and that the 3-year compliance pe riod will begin only after publication of the final reconsideration rule. Looking first to the sta tute, while Section 112 provides that emission standards or other regulations promulgated under Sec tion 112(d) “shall be effective upon promulgation,” CAA § 112(d)(10); 42 U.S.C. § 7412(d)(10),5 the sta tute does not address what that means in the current context, in which EPA i s revising – and doing so in a substantial way – a previously promulgated standard and promulgating a new standard. It does not state, when it directs EPA to establish a compliance date wit hin 3 years of the “effective date,” whether the effective date must be the date on which t he emission standard is effective as first promulgated or as subsequently revised on reconsideration. EPA’s final action will essentially act as a new issuance of an emissions standard, which it self will have a new “effective date.” Under Section 112(i), therefore, EPA may, indeed must, det ermine the compliance date for existing sources based on that effective date. Case law does not prohibit the Agency form taking this approach. The D.C. Circuit has not squarely taken up this issue; instead, it has merely consideration EPA’s authority to extend compliance deadl ines beyond the 3-year statutory maximum. See NRDC v. EPA, 489 F.3d 1364, 1373-74 (D.C. Cir. 2007). Specifically, in NRDC, the D.C. Circuit vacated a portion of an EPA rulemaking that had extended the original compliance date by one year for sources in the lowris k subcategory of the MACT for plywood and composite wood products (40 C.F.R. § 63, Subpart DDDD). See id. The court held that EPA had not relied on Section 112(i)(3)(B) for this extension – the provision that addresses extensions – but instead had relied on Section 112(i)(3)(A), which address es the compliance period keyed to the effective date of an emissions standard. See id. In NRDC, according to the court’s holding, EPA went astray when it promulgated emission standards i n 2004, setting a compliance deadline for 3 years later (2007) and then endeavored to extend the c ompliance deadline for 2008 – or 4 years after the effective date – based on a finalized r econsideration proposal but without undergoing the case-by-case extension process provided in Sect ion 112(i)(3)(B). See id. By contrast, here EPA is resetting the clock on the emis sions standard because it is repromulgating the action. In the case of the Boiler MACT, for exa mple, EPA proposes the following amendments to § 63.7495, concerning “When do I have to comply with this subpart?”: (a) If youA-14

have a new or reconstructed boiler or process heater, you must comply with this subpart by [DATE 60 DAYS AFTER THE FINAL RULES IS PUBLISHED IN T HE Federal Register] or upon startup of your boiler or process heater, whichever is later. (b) If you have an existing boiler or process heater, you must comply with this sub part no later than [DATE 3 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE Federal R egister], except as provided in § 63.6(i). Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,628 (formatting in original). The reconsideration proposal, then, avoids t he problem created by EPA’s approach to extending the compliance deadlines in NRDC because it do es not stretch the compliance deadlines beyond 3 years after the effective date. Inste ad, this proposal sets a new effective date of 60 days after publication of the final reconsideration r ule and then fixes the compliance deadline to 3 years after that date. As a corollary, it fixes the date on which new or reconstructed sources must comply with the emission standards as 60 da ys after the final reconsideration rule, which adheres to the mandates of § 112(i). EPA’s proposal, therefore, is consistent with the holding of NRDC and the statutory directive of § 112(i)(c )(A). EPA has the legal authority to finalize the proposed regulations as to the compliance per iod.6 [Footnotes] (5) Note that the Congressional Review Act had the effect of delaying this da te by 60 days to allow time for congressional review. 5 U.S.C. § 801(a)(3). (6) In the alt ernative, at a minimum, EPA could invoke authority under Section 112(i)(3)(B) and create a str eamlined case-by-case process for granting extensions of one year.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 6

Comment: In the final rule, EPA defined “gaseous fuel” to include landfill gas (“LFG”) but excluded it from the “Gas 1 fuel” category, instead charac terizing it as an “other process gas” in the “Gas 2 fuel” category. See Boiler MACT , 76 Fed. Reg. at 15,639, 15,684. As a result, the final rule initially designates any boi ler or process heater firing any percentage of heat input from LFG as a unit designed to burn Gas 2 fuel, whi ch would subject the source to the Gas 2 category’s stringent emission limits. See id. at 15,688-91. Despite this initial designation, EPA promulgated a “demonstration mechanism” or “other Gas 1 fuel” specification that would allow Gas 2 fuels to meet a specification for EPA to ide ntify them as “other Gas 1 fuels.” See id. at 15,639. To utilize this mechanism, the final rule required units to demonstrate that the levels of hydrogen sulfide (H 2 S) and mercury (Hg) in the other gases they combust besi des NG and refinery gas (“RG”) – the Gas 1 fuels – are no higher than those found in Gas 1 units. See id. Specifically, EPA utilized NG as the baseline for compar ison. See id. Under the final rule, then, units were required demonstrate that the LFG they combust emits less than 4 parts per million volume (“ppmv”) H 2 S and 40 micrograms per cubic meter (“ μ g/m3”) Hg for the LFG to qualify for classification in the Gas 1 category. See id. In its petition for reconsideration and subsequent comments, AIF raised several concerns with EPA’s regu latory classification of LFG: -First, AIFA-15

commented that subjecting the use of LFG to the emission limits of the Gas 2 category was not feasible as AIF reported that its members with units uti lizing LFG anticipated they would not be able to meet the Gas 2 category’s stringent emission limi ts ( e.g., for CO), particularly in the case of units designed and permitted to minimize emissions of NO X (for ozone attainment). -Second, AIF advised EPA that the demonstration mechanism would not likely offer relief to those units’ source operators because their LFG streams would likely test well above the demonstration mechanism’s limit of 4 ppmv H 2 S. 7 -Third, AIF set forth that the Boiler MACT, therefor e, creates disincentives for the use of LFG, contrary to E PA’s own stated policy of encouraging the beneficial use of LFG. See, e.g., U.S. EPA, Basic Information, Landfill Methane Outreach Program (“LMOP”), http://www.epa.gov/lmop/basic-info/index.html (l ast checked February 21, 2012). -Fourth, AIF commented that the demonstration mechanism was arbitrary and capricious because it created more stringent requirements for the us e of LFG than the use of those gases – NG and RG – automatically classified in the Gas 1 categ ory. For example, AIF noted that the demonstration mechanism required LFG to meet an H 2 S emission limit of 4 ppmv or less for classification as a Gas 1 even while the regulations a llowed RG emissions of up to 162 H 2 S and yet automatically classified RG as a Gas 1. AIF explaine d that such classification was arbitrary and capricious because emissions from LFG are comparable t o those from NG and RG. To that end, AIF attached to its comments a report published in Ju ly 2011 by CH2M Hill and entitled Boiler MACT Fuel Classification Review for Landfill G as that showed the comparability of LFG to NG and RG in the relevant emission measures. The re port, thus, demonstrated the absence of a rational basis for EPA to regulate the use of LFG diffe rently than the use of NG and RG, i.e., require LFG to meet the demonstration requirement for classification in the Gas 1 category. AIF, therefore, commented that LFG should qualify automat ically for classification under the Gas 1 category. In the reconsideration proposal, EPA pr oposes to eliminate the H 2 S specification but would retain the Hg specification for a fuel to qualify in the Gas 1 category. As explained in detail below, AIF supports the elimination of the H 2 S specification but believes that retention of the Hg specification, at least as to LFG, is unnecessar y and inappropriate based upon the technical information before the Agency and that the propo sal discourages the beneficial use of LFG (a gas formerly flared at the landfill) in boiler s and process heaters. Instead, the proposed rule will create barriers to using LFG, a renewable fue l, and lead companies that have sought to put LFG to beneficial use to move back toward exclusive us e of NG. This will result in combustion of neglected LFG by the landfills that wil l: -increase emissions to the environment overall since the landfill gas must still be burned or fla red, -waste a valuable fuel source further depleting NG reserves, and -run counter to EPA’s policies a nd programs for encouraging the beneficial use of LFG. AIF urges EPA to revisit its propo sed specifications. Moreover, AIF urges the Agency to recognize the importance of minimizing liability for users of LFG and not impose certification requirements on content of the ga s that are not within the control of the certifying entity. 1. While AIF Supports EPA’s Proposal to Eliminate the H 2 S Specification, Given Landfill Gas’ Relative Equivalence to Natural Gas and Refinery G as in Relevant Emission Measures, EPA Should Automatically Classify Landfill Gas as a Gas 1 F uel. In the reconsideration proposal, EPA does not propose to change the Gas 1 category to automatically include LFG; it still proposes to classify use of LFG in the Gas 2 category. See Boiler MACT Reconsideration , 76 Fed. Reg. at 80,641, 80,652, 80,655. Yet, as EPA offers no soun d science or policy rationale supporting its proposed listing of LFG as a Gas 2 fuel, AIF urges EPA to automatically identify LFG in the Gas 1 fuel category i n the final reconsideration rule. As noted above, the CH2M Hill report attached to AIF’s July 15, 2011, comments concluded that LFG isA-16

comparable to the Gas 1 fuels NG and RG in the relevant e mission measures. In the updated version, dated December 2011, CH2M Hill provides further support as to its relative equivalence. See CH2M Hill, Boiler MACT Fuel Classification Review for Land fill Gas (December 2011), Attachment C (attached to these comments ). CH2M Hill conducted a comparison of the emission properties of boilers firin g LFG as fuel to those of boilers firing Gas 1 fuels NG and RG, and examined the readily available public information to compare those fuels. As reflected in the report, CH2M Hill concludes t hat sufficient data were readily available for EPA to establish that LFG is comparable to NG and RG with regard to HAP emissions, and that both emissions and raw gas analysis data support cla ssification of LFG as a Gas 1 fuel. Accordingly, EPA cannot reasonably treat LFG differen tly from the Gas 1 fuels NG and RG. It should identify LFG as a Gas 1 fuel in the final reconsi deration rule. 2. As Extensive Data Reflect Hg Concentrations in Landfill Gas as Consistently and Considerably Below t he 40 μ g/m3 Limit in the “Other Gas 1 Fuel” Specification, EPA Should Automatically Clas sify Landfill Gas as a Gas 1 Fuel. As discussed in greater detail below, EPA proposes to elim inate the H 2 S fuel specification and use a fuel specification for “other Gas 1 fuel” based only on the Hg level in the gaseous fuel (using the same level as EPA included in the fi nal rule). See Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,653. EPA proposes a new definition of “o ther Gas 1 fuel” in 40 C.F.R. § 63.7575 as: a gaseous fuel that is not natur al gas or refinery gas and does not exceed the maximum concentration of 40 micrograms/cu bic meters of mercury. Id. Under this proposal, LFG – as well as other gaseous fuels besides NG and RG – still would still initially fall under a Gas 2 fuel classification but could now gain classification in the “other Gas 1 fuel” category with a demonstration of not exceeding the previ ously published Hg limit of 40 μ g/m3. The large quantity of available data, including data developed by EPA in 2008, demonstrates that LFG consistently tests for concentrations of Hg well below the 40 μ g/m3 threshold. 8 The Hg concentrations reported in the numerous studies listed in A ttachment D (attached to these comments) provide sufficient evidence, in accordance with § 63.7521(i), and without the need to conduct further studies, to identify LFG as a Gas 1 fuel a long with NG and RG. As is articulated in Attachment D, based on the individual data measurement s reported in the numerous published studies, the mean concentration of Hg in LFG is 2 μ g/m3 and the 95% upper confidence limit is 2.7 μ g/m3— i.e., well below the 40 μ g/m3 threshold. 9 The abundant published data on Hg levels in LFG, including the many studies sponsored by EPA, support an automatic Gas 1 categorization for LFG as a Gas 1 fuel. The data demonst rate that Hg concentrations in LFG are consistently below the 40 μ g/m3 fuel specification level. There are far more data o n the record demonstrating LFG as containing concentrations of Hg well be low the 40 μ g/m3 threshold than data demonstrating, for example, concentrations of RG as falling below that threshold. EPA’s determination to automatically classify RG as a Gas 1 fuel based on that dataset indicates that LFG should be treated similarly given the dataset on it s emissions levels. 10 There is no rational basis to subject units that utilize LFG to the certific ation and monthly testing provisions of the demonstration mechanism (discussed in more detail in the s ucceeding sections). 3. Compelling Policy Reasons Support EPA Automatically Classifying Landfill Gas as a Gas 1 Fuel. LFG functions as a viable replacement for fossil fuel and AI F’s members have chosen to purchase LFG and utilize it as an alternate fuel to NG, in part in response to EPA programs encouraging its use in this manner. For some members, this can functi on as a key element in their corporate sustainability goals. The imposition of new and unreasonabl e regulatory burdens on LFG combustion would undercut LFG’s viability as a renewable a lternative fuel and the investment made in its use by many companies, including AIF’s members. E PA’s failure to identify LFG asA-17

a Gas 1 fuel would subject units utilizing LFG to stringent e mission limits, which many facilities, including those owned and/or operated by AIF m embers, would struggle to meet, thereby creating strong disincentives to the use of LFG in boilers. 11 Such an outcome would conflict with EPA’s stated policy of encouraging the bene ficial use of LFG. See LMOP, supra

. Under the Boiler MACT, units designed to burn Gas 2 fuels ar e subject to strict numeric emission limits for certain HAPs. By EPA’s own anal ysis, the estimated control costs for Gas 2 units are higher than the combined compliance capital cos ts for boilers and process heaters in all other categories. See LMOP, supra . Many of the facilities owned and/or operated by AIF members would be forced to consider using only NG or some oth er fossil fuels if LFG-firing in boilers is subjected to Gas 2 emission limits. Discourag ing the use of LFG as an alternate to NG could lead to detrimental environmental impacts. As of Septe mber 20, 2011, EPA’s LMOP contained data on 60 boiler projects and 17 boiler-steam tur bine projects that utilize LFG. EPA estimates reflect the 60 boiler projects as utilizing appro ximately 1900 Million British Thermal Units per hour (“MMBtu/hr”) of LFG and the 17 boiler-steam turbine projects as utilizing approximately 2400 MMBtu/hr of LFG. 12 If those project owners and/or operators were to stop combusting LFG and instead combust NG, the landfills coul d not simply cease producing the LFG those projects use; rather, the landfills would ha ve to combust the neglected LFG, increasing emissions of greenhouse gases and criteria pollut ants. Based on EPA’s own calculations, the resulting net increase in overall f ossil fuel-based CO 2 emissions from those boiler and boiler-turbine projects would be 2,025,698 tons. Furth er, the nation would experience additional emissions of 12,841 tons of CO, 291 tons of PM and 684 tons of NO X , as well as slight increases in SO 2 and Hg emissions. Unless EPA amends the reconsideration proposal, the regulated community, including AIF’s members, would likewise incur significant financial costs combusting NG rather than LFG to comply with the Boil er MACT. For boiler and boiler-turbine projects now using LFG, the order-of-magnitude estimate of the total direct costs of switching to NG is $ 1.064 billion. See CH2M Hill, Boiler MACT Economic Impact Evaluation (Nov. 9, 2011), Attachment B (attached to these comments). Moreover , project owners would lose the value of the LFG processing and transport equipment that t hey would have to abandon in ceasing to use LFG. See id. The total estimated capital assets lost for existing pro jects would be $87 million. See id. These compelling policy reasons indicate that EPA should a utomatically identify LFG as a Gas 1 fuel in the final reconsideration rule. As a corollary, AIF urges EPA to clarify that the CISWI Rule does not apply to the combustion of LFG when combusted for control or as fuel in a boiler, i.e., the combustion of LFG is not a “contained gaseous material” and, therefore, it is not a “solid waste” and not regulated under the CISWI Rule. LFG is not a “sold waste” because, even if it considered to have been deri ved from “solid waste,” it is a newly generated material that has never been discarded. EPA s hould add clarifying language to that effect in the CISWI and NHSM Rules. 13 4. If EPA Persists in Listing Landfill Gas in the Gas 2 Category and Subjecting It to the Demonstration Mechanism, EPA Should Still M ake a Categorical Determination to Automatically Classify Landfill Gas as an “Other Gas 1 Fuel.” As noted above, LFG is equivalent to Gas 1 fuels NG and RG i n the relevant emission measures, abundant data show Hg levels for LFG as consistently, substantially below the “other Gas 1 fuel” specification limit for Hg, and compelling policy reasons support classifying LFG as a Gas 1 fuel. If, however, EPA fails to list LFG in that cate gory and, instead, persists in listing LFG as a Gas 2 that can qualify for the Gas 1 category only through the demonstration mechanism, then EPA should make a categorical determination that LFG qualif ies as an “other Gas 1 fuel.” AIF, therefore, recommends EPA modify § 63.7521(f) as follows: To demonstrate that a gaseous fuelA-18

other than natural gas or refinery gas qualifies as an othe r gas 1 fuel, as defined in § 63.7575, you must conduct a fuel specification analysis for mercury . . . except as specified in paragraph (f)(1) through (3) of this section. (1) You are not required to con duct the fuel specification analyses in paragraphs (g) through (i) of this section for natural gas, or refinery gas or landfill gas. Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,633 (strikethrough reflecting suggested deletions; underline reflecting suggested additions). 5. To the Extent that Landfill Gas (or Any Gaseous Fuel) May Qualify as Gas 1 Only Through the “Other Gas 1 Fuel” Spe cification, EPA Should Finalize the Proposed Elimination of the H 2 S from the Specification Because H 2 S is Not Directly Related to Potential HAP from the Combustion of Gaseous Fue l. As noted above, EPA proposes to revise the fuel specification analyses requir ements for the demonstration mechanism. See id. at 80,609, 80,641. Specifically, EPA reexamined the fuel specifi cation and concluded that (1) the H 2 S fuel specification from the final rule does not provide a direct indication of potential HAP from combustion of gaseous fuel and (2) the key conta minant for demonstration of comparability from a HAP perspective is Hg. See id. Upon reexamination, then, EPA proposes to eliminate the H 2 S fuel specification and use an “other Gas 1 fuel” specifi cation based only on an Hg level in the gaseous fuel of 40 μ g/m3, i.e., the same level as EPA included in the final rule of March 21, 2011. See id. Under this proposal, LFG (and other gaseous fuels besides NG and RG) still would initially fall into the Gas 2 fuel category but could now qualify as an “other Gas 1 fuel” with merely a demonstration of not exceeding the previously published Hg limit of 40
μ g/m3. Boiler MACT

, 76 Fed. Reg. at 15,639. As articulated above, AIF urges EPA to automatically classify LFG as a Gas 1. If, however, EP A retains the demonstration mechanism and still classifies LFG (and/or other gaseous fuels) in the Gas 2 category, AIF supports the proposed elimination of H 2 S from the fuel specification, i.e. , EPA’s proposed “other Gas 1 fuel” specification based solely on a Hg concentration of 40 μ g/m3. AIF concurs with EPA that the H 2 S fuel specification from the final rule does not provide a direct indication of potential HAP from the combustion of gaseous fuel. Moreover, as stat ed in AIF’s prior comments, the prior formulation of the demonstration mechanism arbitrarily and capriciously required LFG to meet an H 2 S emission limit of 4 ppmv or less for classification as a Gas 1 even while the regulations allowed RG emissions of up to 162 H 2 S and still automatically treated RG as a Gas 1. If EP A elects to retain the demonstration mechanism as the me thod for LFG (and other gaseous fuels) to attain “other Gas 1 fuel” classification, AIF, theref ore, supports the proposed elimination of the H 2 S fuel specification. 6. As to the “Other Gas 1 Fuel” Specification, EPA Should Amend the Certification Option to Make It More Workable and Amend the Monthly Tes ting Option to Allow for Additional Flexibility. Even with the proposed elimination of H 2 S, the “other Gas 1 fuel” specification does not provide a viable avenue for relieving LFG (and other gaseous fuels in the Gas 2 category) of the regulatory burdens associated with unnecessarily stringent emission limits, sampling, and testing. In its current form, the demonstration mechanism still creates a significant disincentive for companies to purchase and use LF G as a renewable fuel alternative to NG. It provides facilities using fuels in the Gas 2 categor y and seeking to qualify those fuels for classification in the Gas 1 category with a choice be tween a certification or monthly testing. Specifically, proposed § 63.7530(g) states: If you elect to demo nstrate that a gaseous fuel meets the specifications of an other gas 1 fuel as defined in §63.7575, you must conduct an initial fuel specification analyses according to §63.7521(f) through (i). If the mercury constituents in the gaseous fuels will never exceed the specification included in the definition (40 ug/cm) you will include a signed certification with the Notification of Compliance Status that the initial fuel specification test meets the specification outlined in the definition of other gas 1 fuels. If yourA-19

gas constituents could vary above the specification, you w ill conduct monthly testing according to the procedures in §63.7521(f)-(i) and §63.7540(c) and maintain recor ds of results of the testing as outlined in §63.7555(g). Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,641 (emphasis added). As indicated in this proposed regulator y language, the certification option requires the fuel user to sign a certification, based on the results of an initial fuel specification analysis according to § 63.7521(f)-(i), that t he gaseous fuel will never exceed the regulatory fuel specification. See id. The alternative, if the gas constituents in the fuel co uld vary, is conducting monthly testing per § 63.7521(f)-(i) and keeping the requisite, corresponding records. See id . EPA proposes retaining these provisions in the same for m as promulgated in the final rule of March 21, 2011, however, with the elimination of the H 2 S fuel specification, affected sources now would only need to make a certificati on or conduct the monthly testing as to the Hg constituents. See id. AIF objects to the language of the certification require ment as unworkably absolute and inconsistent with other compliance approaches in the Boiler MACT, and to the alternative of monthly testing as onerous and, as applied to LFG, not supported by the consistently low concentrations of Hg from available a nalyses. • AIF’s Comments on the Certification Option The absoluteness of the certification option EPA i mposes – a promise that LFG will never exceed the Hg specification – is problematic becaus e it asks the user of the gas to certify what will occur in the future based on actions the user does not control. A facility’s responsible official may well conclude that he or she cannot guarantee the future given the absolute language, even though there is no reasonable expec tation that Hg content will exceed the specification level. EPA should revise the language and/or clarify it to be clear that initial tests below the 40 μ g/m3 level are sufficient to make the certification (or some percentage of that level, e.g., if the initial test is less than 80% of the 40 μ g/m3 level, a facility is not required to do testing). Such an approach would provide an objective criteri on for facilities to know whether or not they are required to conduct periodic testing. Otherw ise, even if the Hg constituents in the fuel consistently test far below the specification, the absolute formulation of the certification could be read in the future to potentially impose liability on the source not only for gas that exceeds the specification but also for a “false certif ication,” should the highly unlikely circumstance outside of the representative’s control a rise in which the constituents of a purchased fuel like LFG exceed the regulatory specification. Further, it is simply substantively unreasonable to impose the term “never” as a qualification to limit testing obligations in this case, since certifications under Section 112 and Title V are intended to be based on information and belief formed after reasonable inquiry. See, e.g., 40 C.F.R. § 70.5(c). Finally, the compliance benchmark for Hg in gas fuels other than NG or RG is fla tly inconsistent with compliance approaches used to demonstrate compliance with emission limits and work practice standards. It unfairly subjects all other gaseous fuels other than NG or RG to a fuel specification that the Gas 1 fuels are not even required to address in the most cursory manner. It suggests that even one aberrant or anomalous fuel measurement, would function a s sufficient basis for failing to demonstrate the Hg specification is met and subjecting the unit to Gas 2 limits. This conflicts with the compliance demonstration methods presented els ewhere in the same reconsideration proposal, including in § 63.7520(e), 14 in § 63.7522, 15 and in § 63.7530. 16 All of these fuel analysis-based compliance methods involve performing some type of statistical data analysis of multiple fuel samples. Moreover, the certification o ption is inconsistent with the very definition of “other Gas 1 fuel,” which states that such fuel “does not exceed the maximum concentration of 40 micrograms/cubic meters of mercury.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,653. The definition does not discuss future events, nor should it, and, therefore, it isA-20

unreasonable based on this definition to impose a certifica tion as to future conditions as a compliance tool. For these reasons, there should be n o certification option. At a minimum, EPA should amend the compliance method for demonstrations th at gaseous fuels other than NG or RG qualify as a Gas 1 fuel to ensure that it is consistent w ith these other approaches. As a corollary, to the extent EPA retains a certification option, EPA should provide that companies can make the certification based on an initial fuel specification an alysis that shows Hg content below the specification level or based on contractual terms with the landfill that require the LFG to be below the level. Otherwise, companies that are unwilling to use LFG if they would be subject to Gas 2 limits may simply opt not to continue combusting LFG . And EPA must ensure comparison to a single maximum value reported among a group of samples does not determine compliance (or more importantly, non-compliance). AIF’s Comments on the Monthly Testing Option If a fuel’s gas constituents “could vary above the [fuel] specification,” t hen, under the proposed regulations, monthly testing is required. See id. EPA should revise this option for several reasons. First, EPA fails to provide any explanation as to why other options beyond monthly sampling as to each individual facility could not reliably demonstrate compliance with the Hg fuel specification limit. As conveyed in the discussion of the categorical determination approach outlined above, EPA could allow for the performance of a one-time, fuel specification compliance study, performed following applicable EPA sampl ing guidance, for fuel types like LFG, i.e., for use of the fuel across all facilities. By including a representative number of facilities and collecting numerous samples, such a study could reliably characterize the variability of Hg concentrations so as to obviate the n eed for monthly testing. With respect to LFG, as discussed elsewhere in these comments, the n umerous published studies that have evaluated Hg in LFG provide a sufficient database for demo nstrating compliance with the Hg fuel specification limit. However, as the reconsiderat ion proposal does not address this type of study, AIF recommends that EPA revise it to incorporate this approach as an option for classification as an “other Gas 1 fuel.” Second, in th e alternative, EPA fails to provide any explanation as to why it does not allow, at the facilit y-specific level, an equivalent, one-time fuel specification analysis, performed following applicable EPA sampling guidance, for demonstrating compliance with the Hg fuel specification li mit. The absence of such an option is inconsistent with other compliance requirements in the proposed reconsideration rule, including performance stack tests annually and tune-ups annually, biennial ly or every five years. Consistent with those compliance requirements, in th e alternative, EPA should amend the reconsideration rule to allow each facility to qualify a fuel as an “other Gas 1 fuel,” if the initial fuel specification analysis demonstrates Hg concentratio n a certain percentage below the specified limit. Third, in the alternative, EPA fails t o provide any explanation as to why it does not allow a gradual, performance-based reduction in the mo nthly testing frequency as facilities obtain successive positive results as to a particular fue l. As an example, if a source reports less than a certain percentage of the Hg fuel specification f or several consecutive months ( e.g., less than 80% of the 40 μ g/m3 level), the regulations could provide for an automatic reduction in testing frequency to every other month; then, after a certain duration of continued positive testing, the frequency would decrease to every six months, and so on. There is no rational basis to indefinitely require monthly testing when a fuel regula rly tests well below the Hg fuel specification for qualifying as an “other Gas 1 fuel.” EPA has utilized such compliance flexibility in other contexts. See, e.g., 40 C.F.R. § 63.1161 (NESHAP for Steel Pickling, Subpart CCC; EPA allows the permitting authority to approve an alternative schedul e for performance testing that allows testing less frequently than annually); 40 C.F.R. § 63.1543(e) (NESHAP forA-21

Primary Lead Smelting, Subpart TTT; EPA allows less-frequent testing when facilities demonstrate consistent compliance with the standards); 40 C.F.R. § 265.1057(c )(1) (Subpart BB of the Resource Conservation and Recovery Act (“RCRA”) Regulations, v alves in gas/vapor service; EPA permits sources to monitor valves for leaks less frequently if a leak is not detected for two successive months and allows sources to skip quarterly leak detection periods if a low percentage of valves are leaking). Consistent with those regimes, in the alternative, EPA should finalize a gradual, performance-based reduction in the mont hly testing frequency for the “other Gas 1 fuel” specification as facilities obtain success ive positive results as to a particular fuel. 17 7. EPA Should Amend the “Other Gas 1 Fuel” Specification Analysis to Make It More Feasible and Allow for Use of Additional Test Methods. The reconsideration proposal appears to prevent gaseous fuel suppliers from using alternative test methods, which are available for use by the boiler owner/operator if they conduct the requisite anal ysis for using an “other Gas 1 fuel.” See Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,633 (proposed § 63.7521(g)(2)(vi)). EPA provides no explanation or rationale for this infle xible requirement. While, in the context of the Boiler MACT, AIF members are gaseous fuel purchasers – not suppliers – it appears likely to affect the majority of fuel specification analysis. This is because it is likely that purchasers of gaseous fuels will require their fuel suppliers to develop t he fuel specification analyses and documentation necessary to qualify fuels as in “other Ga s 1 fuel” category. Accordingly, AIF urges EPA amend the language at § 63.7521(g)(2)(iv) so that all an alyses conducted for the demonstration mechanism may utilize all methods listed in § 63.7521(f)-(i). As a corollary, AIF requests that EPA incorporate additional test methods for use under § 63.7521. That subsection limits the fuel testing to qualify a gaseous fuel other tha n NG or RG as an “other Gas 1 fuel” to methods laid out in Table 6. See id. Table 6 requires measurement of the Hg concentration through one of the following test methods: “ASTM D5954, ASTM D6350, ISO 6978–1:2003(E) or ISO 6978–2:2003(E) (or an equivalent test method).” See id. at 80,666. EPA requires use of these methods unless it specifically approves an alternat ive analytical method. See id. at 80,633 (proposed § 63.7521(g)(v)). EPA offers no explanation as to w hy it failed to include EPA Method 30B, the method it prescribed for facilities, incl uding those owned and/or operated by AIF members, to use in gathering the Hg data supplied to EPA in response to its Section 114 requests. The required test methods listed in Table 6 were developed for NG analyses and their use is typically restricted as such. They have not bee n proven appropriate for analyzing, e.g., Hg in LFG and the composition and physical properties of LFG differ from those of NG. 18 Further, as gaseous fuel suppliers are not allowed to use alternative methods in the reconsideration proposal, the regulations would force them to use – and gaseous fuel purchasers li ke AIF’s members to rely on – an unproven method to demonstrate the compliance of gaseous fuels like LFG with the Hg fuel specification. The complexity of component fuel s typically encountered in sampled LFG often renders the methods typically used for NG characterizations inappropriate. 19 As reported by Waste Management, a supplier of LFG, the pe rformance of these methods in an LFG matrix has yet to be demonstrated. As a result, th ere is no rational basis for EPA to categorically restrict fuel analysis for gaseous fuels l ike LFG, in the absence of a pre-approval process, to the four methods listed in Table 6. Numerous studi es have been conducted to measure mercury in LFG, including several that were conducted for EPA. The table that accompanies these comments at Attachment E (attached to these com ments) lists the test methods used in these studies and the methods specified in Table 6, and, for each method, whether it was included in the Boiler MACT Reconsideration Proposal. This table shows that none of the methods used in the publicly available, published LFG studies for Hg, including those sponsoredA-22

by EPA, were included in Table 6 of the reconsideration pro posal. Conversely, none of the LFG studies for Hg relied on the methods in Table 6. This exam ination of fuel testing methods clearly indicates that EPA should expand Table 6 to include additiona l options for measuring Hg in gaseous fuels. At a minimum, EPA should include the meth ods tested and proven reliable in LFG studies for Hg, particularly EPA Method 30B and EPA Me thod 1631. The Agency may also want to consider including stack sampling and analysis methods for Hg approved by EPA and the State of California—CARB Method 436, EPA Method 101 a nd EPA Method 29. Additionally, AIF recommends that the Agency consider and evaluate the accuracy, precision, selectivity and sensitivity of the methods currently include d in Table 6, taking into account their applicability to gas fuels other than NG or RG. AIF’s co mments demonstrate the appropriateness of incorporating into the final reconsideration rule add itional methods for gathering data as to the concentration of Hg in a gaseous fuel. AIF urges EPA to a mend the reconsideration proposal accordingly. [Footnotes] (7) One of AIF’s members’ test of available LFG streams yielded H2S emissions levels ranging from 6 to 34 ppmv and AIF reported t hat typical LFG streams from a limited sample group range from between 7 and 105 ppmv for H2S . (8) This data is outlined in greater detail in the attached document entitled “Studies of Mercury Concentrations in Landfill Gas,” Attachment D (attached to these comments). (9) Th e overall mean concentration of Hg in LFG and the highest 95% upper confidence limit, calculated fr om one study that presents only summary statistics as opposed to individual test result s, is 4 μ g/m3 and 12 μ g/m3, respectively. (10) The AIF agrees that RG should be treated as Gas 1. EPA should treat similar fuels similarly and cannot justify imposing a higher testing or “proof” stan dard to LFG. (11) AIF members with units presently utilizing LFG anticipate they would not be able to meet the Gas 2 category’s stringent emission limits ( e.g., for CO), particularly in the case of units designed and permitte d to minimize emissions of NOx (for ozone attainment). (12) See EPA Landfill Methane Outreach Program (LMOP) Environmental Analysis (provided to Waste Ma nagement), Attachment A (attached to these comments). (13) The Boiler MACT Reco nsideration Proposal already implies that EPA takes this position in that it includes LFG in the definition of “gaseous fuel” at the proposed § 63.7575. See Boiler MACT Reconsideration Proposal, 76 Fed. Reg. at 80,652. Moreover, EPA’s own outreach program recognizes LFG as a fuel. See LMOP, supra. (14) Referencing Method 19 at 40 CFR part 60, appendix A-7. (15) Discus sing emissions averaging. (16) Directing that the arithmetic average Hg concentratio n in each fuel type should be used and also providing an equation for calculating a 90 percent upper c onfidence limit fuel concentration from sample data. (17) Moreover, to the extent EPA ret ains any form of the monthly testing option, it should more clearly articulate to facilitie s how the monthly testing option works, e.g., if a facility tests below the “other Gas 1 fuel” specification leve l one month but then above the specification level the next month, whether it can, then, test back into the Gas 1 category the succeeding month with a test result below the specification level

. (18) For example, NG is primarily methane with lower concentrations of relate d alkanes and carbon oxides, and trace quantities of other hydrocarbons. LFG typically contains 45% to 60% methane and 40% to 60% carbon dioxide. LFG also includes small amounts of nitroge n, oxygen, ammonia, sulfides, hydrogen, and carbon monoxide. (19) Either interferences or target analyte levels may disqualify natural gas methods when attempting to acquire representati ve Hg data in LFG.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial,A-23

Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 7

Comment: In the final rule, pursuant to CAA Section 112, EPA imposed a work practice standard for boilers and process heaters with a heat input capacity of less than 10 MMBtu/hr, those in the Gas 1 fuel and metal process furnace subcategories, and lim ited-use units. See Boiler MACT, 76 Fed. Reg. at 15,613. The final rule dictated that facilitie s with such units must conduct biennial tune-ups to “demonstrate continuous c ompliance.” Id. at 15,678 (detailing § 63.7540(a)(11)). Moreover, under the final rule, faci lities must submit notifications to EPA or the governing state agency certifying compliance wi th those tune-up requirements. See id. at 15,676, 15,679 (detailing §§ 63.7530(d) and 63.7545(e)(8)). EPA stated that the work practice standard stemmed from its determination that num erical emission limits for Gas 1 units are impracticable due to technological and economic limit ations. In its petition for reconsideration and subsequent comments, AIF asked EPA to reconsider the merits and disadvantages of imposing the work practice standard bec ause emissions from the units to which it applies are insignificant and to eliminate the biennial tune-up requirements for those units as well as for NG-fired hot water heaters with capacity greater than 120 U.S. gallons. AIF articulated that, contrary to EPA’s claim that it lac ks authority to exempt such units altogether from the final work practice standard, nothing in the case s on which EPA relied overruled Alabama Power Co. v. Costle , 636 F.2d 323, 400 (D.C. Cir. 1979), which clearly establishes EPA’s authority to fashion de minimis and administrative necessity exemptions. AIF noted that EPA’s approach of subjecting those small units to work pra ctice standards, including biennial tune-ups, is extremely burdensome and costly without providing for corresponding, significant emission-reduction benefits. EPA’s approach, AIF commen ted, would actually create incentives for facilities to switch from NG-fired water heaters to electric water heaters, which are far-less energy efficient. Therefore, AIF urged EPA to reconsid er its decision not to exempt NG-fired boilers and large hot water heaters with heat input capa cities of 10 MMBtu/hr or less from the infeasible and minimally beneficial work practice stan dards EPA promulgated. Consistent with that comment, AIF advocated for the elimination of bienni al tune-up requirements on NG-fired hot water heaters with capacity greater than 120 U.S. gal lons, given the extreme burdens imposed and the lack of emission-reduction benefits. In t he reconsideration proposal, EPA proposes to amend the definition of “hot water heater” at § 63.7575 to add the following sentence: “Hot water boilers ( i.e., not generating steam) combusting gaseous or liquid fuel with a heat input capacity of less than 1.6 million Btu per hour are included in this definition.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,652. Under the Boiler MACT applicability provisions of § 63.7491, which are unchanged in the reconsiderat ion proposal from the final rule of March 21, 2011, hot water heaters are not subject to the Bo iler MACT. See id. at 80,628. EPA, however, does not propose a de minimis exemption fo r small NG-fired and light-oil fired units, i.e., those that commenters and petitioners defined as having heat input capacities between 2 MMBtu/hr and 10 MMBtu/hr. See id. at 80,601-02, 80,614. Instead, EPA posits that decreased tune-up frequency is appropriate for the smallest NG-fired, RG, other clean gas such as LFGA-24

(that meets the “other Gas 1 fuel” specification) and li ght liquid-fired units. See id. at 80,614. Accordingly, for units in that grouping equal to or less tha n 5 MMBtu/hr, EPA proposes to change the biennial tune-up requirement to a tune-up once eve ry 5 years, with the initial compliance date and subsequent tune-ups being required at int ervals no greater than 5 years from the previous tune-up. See id. at 80,614, 80,644. 1. Under Alabama Power, EPA Appropriately Proposes to Change the Definition of “Hot Water Heater” to Include Those Combusting Gaseous or Liquid Fuel with a Heat Input Capacity of Less Than 1.6 MMBtu/hr

. As noted above, the reconsideration proposal modifies the definition o f “hot water heater” to include hot water boilers that combust gaseous or liquid fuel and that have a heat input capacity measuring less than 1.6 MMBtu/hr. Hot water heaters are not subject to the Boiler MACT, so EPA’s proposal functions as a de minimis exemption for those types of hot water boilers. AIF supports the proposed change to the definition because the administrat ive (and economic) burdens of regulating those types of small, NG-fired hot water boi lers – which include those hot water boilers for the showers that assembly workers use to cl ean up after their shifts – are excessively burdensome without a meaningful, corresponding benefit in t erms of reducing HAP emissions. Given those factors, EPA clearly has the authority to finalize its proposal under Alabama Power Co. v. Costle , 636 F.2d 323, 360-61, 400 (D.C. Cir. 1979). 20 Alabama Power‘s essential holding relevant to this context is that agencies like EPA have the authority to issue de minimis exemptions as a rational approach for relieving severe adm inistrative (and economic) burdens that blind adherence to the literal terms of a statute would otherwise create. 21 See 636 F.2d at 360-61, 400. Under Alabama Power, EPA has the inherent power to overlook trifling matters, such as the de minimis HAP emissions, to the extent such emissions are even measurable, from these types of small, NG-fired hot water boilers. See id. at 360-61. As the D.C. Circuit emphasized in New York v. EPA , 444 F.3d 880, 888 (D.C. Cir. 2006), and as the U.S. Supreme Court held in Wisc. Dep’t of Rev. v. William Wrigley, Jr., Co. , 505 U.S. 214, 231 (1992), the de minimis doctrine is a legal principal that forms part of the established background against which all statutes are enacted. Agencies, therefore, may dive rge from the plain meaning of the statute as far as is necessary to avoid its futile application. 22 See New York, 444 F.3d at 888. Section 112 “permits” EPA to issue this de minimis exemption. See EDF v. EPA, 82 F.3d 451, 466 (D.C. Cir. 1996). As the EDF court explained, the availability of a de minimis exemption depends on whether Congress has not been “extraordinarily rigid” i n drafting a statute; if it has not, then there is an implication of the agency’s authority to pr ovide such an exemption, if “the burden of regulation yield[s] a gain of trivial or no value.” Id. (quoting Alabama Power, 636 F.2d at 360- 61) (internal quotation marks omitted). Section 112 sets fo rth that EPA “shall publish, and shall from time to time, but no less often than every 8 year s, revise ... a list of all categories and subcategories of major sources and area sources.” CAA § 112(c )(1); 42 U.S.C. § 7412(c)(1). It then directs EPA to “establish emission standards under subsection (d)” as to those categories and subcategories. CAA § 112(c)(2); 42 U.S.C. § 7412(c)(2). Subsecti on (d) directs EPA to “promulgate regulations establishing emission standards for e ach category or subcategory of major sources and area sources of [HAPs] listed for regul ation pursuant to subsection (c).” CAA § 112(d)(1); 42 U.S.C. § 7412(d)(1). Critically, it then proceeds to state the following: Emissions standards promulgated under this subsection and applicable to n ew and existing sources of [HAPs] shall require the maximum degree of reduction in emissions of [HAPs] subject to this section (including a prohibition on emissions, where achie vable) that the Administrator, taking into consideration the cost of achieving such emission re duction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new orA-25

existing sources in the category or subcategory to which such emission standard applies, through application of measures, processes, methods, systems or techniques ... CAA § 112(d)(2); 42 U.S.C. § 7412(d)(2). The framework of this statutory schem e, then, permits EPA to define the units within the source categories and subcategories it i s regulating in such a way as to exclude or exempt those units whose emission of HAPs is de minimis . This is because the CAA directs EPA to promulgate emission standards that require regulated sources to achieve a maximum degree of reduction in emission of HAPs but it expressly permits EPA to take into consideration the cost of achieving that reduction. It cannot be said th at the statutory scheme is so extraordinarily rigid that it does not contemplate a pote ntial de minimis exemption where the burden of regulation would yield a gain of trivial or no v alue, particularly considering “the cost of achieving such emission reduction.” CAA § 112(d)(2); 42 U.S. C. § 7412(d)(2). The EDF decision supports the de minimis exemption for which AIF a dvocates because, there, the D.C. Circuit upheld EPA’s definition of the CAA’s prohibition of federal activities that do not conform to SIPs as exempting or excluding those federal ac tivities that would produce either no or a trivial level of emissions. See 82 F.3d at 466. Beyond AIF’s arguments about the regulatory burden – on EPA, state agencies that must include the requir ements in Title V permits and conduct enforcement of such requirements, and regulated ent ities that must comply with them – of including small, NG-fired hot water boilers within th e scope of the Boiler MACT, therefore, there is a rational basis for EPA to find that HAPs from those units, to the extent such emissions are even measurable, are de minimis . As EPA has the authority to make that finding, it has t he corresponding authority to finalize the proposed revision to the definition of “hot water heater” and AIF supports EPA finalizing that proposed revision. 2. Alabama Power Also Supports a De Minimis Exemption for Small, Natural Gas-Fired Hot Water and Process Heaters with Heat Input Capacities of Up to 10 MMBtu/hr or Less. Consistent with the above analysis as to EPA’s authority under Alabama Power, EPA should finalize a de m inimis exemption from the Boiler MACT for small, NG-fired hot water and process heaters with heat input capacities of 10 MMBtu/hr or less. AIF recommends that EPA further cha nge the definition of “hot water heater” to include any hot water boilers with heat input capaciti es of 10 MMBtu/hr or less and exclude from the definition of “process heater” any NG-fired pro cess heaters with heat input capacities of 10 MMBtu/hr or less. In its response to comments as to th e proposed rule for the Boiler MACT final rule of March 21, 2011, EPA argued that it lacks the auth ority to issue a de minimis exemption as to emission standards established under Section 112. See Response to Comments on Boiler MACT, Vol. 1, at p. 339, Document Control No: EPA-HQ-OAR-2002-0058-3289. In making that argument, EPA cited to the statutory language o f Section 112(d) and case law from the D.C. Circuit that it described as requiring EPA to se t emission standards for all HAP emitted from a source. EPA contended that this requirement preclude s it from establishing a de minimis threshold below which HAP emitted by a source would not be regulated. EPA cited to the following cases: - Sierra Club v. EPA , 479 F.3d 875, 883 (D.C. Cir. 2007) (“EPA has a ‘clear statutory obligation to set emission standards for each listed HAP,’ which does not allow it to ‘avoid setting standards for HAPs not controlled with te chnology.” quoting Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 634 (D.C. Cir. 2000) (“Nat’l Lime II”)). - NRDC v. EPA , 489 F.3d 1364, 1371 (D.C. Cir. 2007) (holding that EPA must establish emissi on standards for listed HAP emitted from a category, citing the Sierra Club and N at’l Lime II decisions). In its petition for reconsideration and subsequent comments, AIF pointed ou t that nothing in those cases overruled Judge Leventhal’s decision for the Court in Alabama Powe r, which, as described above, clearly establishes EPA’s authority to exempt de minimis situations and create exemptions based onA-26

administrative necessity. Had the Court intended to over rule Alabama Power in its subsequent decisions, it surely would have been more clearly. EPA f ails to address this contention in the reconsideration proposal, instead merely stating that it disagrees withcommenters that advocate for a de minimis exemption for small units. See Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. As articulated above, the position previously argued by AIF was sound, and EPA failed to substantively respond to it in the reconsiderat ion proposal. EPA has the authority to promulgate a de minimis exemption as to small hot water and process heaters, and any other source for which the burdens of regulation would be high an d the emission-reduction benefits would be insignificant. This is not a context where the best performers use no emission control technology, see Sierra Club, 479 F.3d at 883; Nat’l Lime, 233 F.3d at 633, nor where the mechanism being advocated is EPA promulgating a risk-based su bcategory, see NRDC v. EPA, 489 F.3d at 1368-71. Moreover, none of those cases disturbed or much less considered the essential holding of Alabama Power

, i.e., that agencies like EPA have the authority to issue de minimis exemptions as a rational approach for relieving severe administrat ive (and economic) burdens that blind adherence to the literal terms of a s tatute would otherwise create. See 636 F.2d at 360-61, 400. EPA appears to concede as correct AIF’s readi ng of the case law and EPA’s authority under the CAA in that it now proposes to cha nge the definition of “hot water heaters” in a way that effectively creates a de minimis exempt ion for hot water boilers with heat input capacities of less than 1.6 MMBtu/hr. Accordingly, consis tent with its authority under Alabama Power, EPA should finalize a de minimis exemption for s mall, NG-fired hot water and process heaters with heat input capacities of 10 MMBtu/hr or less. The work practice standards for these types of small and clean units, even with EPA’s propose d reduction in tune-up frequency for certain units, remain infeasible from the standpoint of administration and cost, and provide minimal, if any, HAP emission reductions. In the experie nce of AIF members, tuning of NGfired hot water and process heaters with heat input capac ities of 10 MMBtu/hr or less has a limited effect on combustion efficiency, so the work pr actice standards only create additional burden without any corresponding, meaningful benefit in te rms of HAP reductions. Providing support for the conclusion that a de minimis exemption is appropriate for these small units, one automotive facility currently spends an estimated $40,000 ann ually to perform safety inspections on the various gas burners and gas trains in the facilit y. Almost all of these inspected burners are under 10 MMbtu/hr input and the vast majority of inspected unit s are between 1.6 and 5 MMBtu/hr. The facility projects that the additional co st for the tune-ups proposed in § 63.7540(10) could be of a similar magnitude. The present, annual co st of safety inspections does not include the myriad of small heaters less than 1.6 M MBtu/hr scattered throughout the plant as to which no inspections are currently required or performe d. Without a de minimis exemption, many more of these small heaters would require tune-ups, which would further increase the cost impact on plant maintenance budgets with only a small reduc tion of HAP emissions. For example, a typical, well-tuned 10 MMBtu/hr burner emittin g HAPs at the rate published in EPA’s AP-42 NG emissions factor tables 23 would emit around 160 pounds of HAP per year. Even the most poorly-tuned unit of this size (which is unlikel y to be encountered) could only emit HAPs at twice the rate of a well-tuned unit. A fa cility with twenty poorly-tuned 10 MMBtu/hr burners could collectively emit HAP at a rate of about 1.6 ton per year in excess of a well-tuned unit. Therefore, using the typical costs noted above, the cost of biennial inspections for such units would effectively cost at least $12,500 per t on of HAP abated. 24 Similarly, inspections on a five-year schedule for twenty 10 MMBtu/hr burners would cost at least $25,000 per ton abated. A hypothetical facility operating two 100 MMB tu/hr boilers and three 12A-27

MMBtu/hr boilers, in addition to the twenty 10 MMBtu/hr b urners in the example above, would be spending around 50% of its tune-up budget on the smallest units to minimize 8% of its HAP emissions due to biennial tune-up requirements. AIF believes that units are generally not “poorly tuned,” so the cost per ton, in fact, will be dramatical ly higher than even estimated here. Moreover, because such units do not generally deteriorate over time in any meaningful way, EPA’s approach, as articulated above, could actually incre ase emissions because it creates incentives for facilities to switch from NG-fired wat er heaters to electric water heaters, which are far-less energy efficient. 25 Facilities retaining their small NG-fired hot water an d process heaters, which EPA has acknowledged sometimes number in the hundre ds in a single facility, see Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,614, would face a large recordkeeping burden to track the compliance requirements and complete annual compliance certifications. And facilities would incur additional cost to account for suc h units as part of the Boiler MACT’s onetime energy assessment, assuming EPA retains it in the final reconsideration rule. These burdens would result from EPA’s failure to promulgate a de minimi s exemption because the majority of SIPs exclude these small units from permit-to-install re gulations, i.e., they are not presently listed in facilities’ Title V permits due to their insignifi cance, and such units are, likewise, not covered by the scope of the industrial boiler NSPS, see 40 C.F.R. § 60.40c(a). There is no rational basis for EPA to not finalize the Boiler MAC T consistent with those other regulatory programs. As the HAP emissions of small NG-fired hot w ater and process heaters with heat input capacities of 10 MMBtu/hr or less are insignificant and th e consequent administrative burdens from subjecting them to the Boiler MACT are high, EPA s hould fashion a de minimis exemption to exclude them. 26 See Alabama Power, 636 F.2d at 360-61, 400. 3. In the Alternative, AIF Supports a Less-Frequent Tune-Up Requirement for Certain Units with Heat Input Capacities of 5 MMBtu/hr or Less. To the extent that, in lieu of promulgating a de minimi s exemption, EPA elects to retain work practice standards for most units with heat input capacities of 10 MMBtu/hr of less, AIF supports EPA’s proposed change of the biennial tune-up requirement for certain units 27 with heat input capacities equal to or less than 5 MMBtu/hr. As explained above, this proposed change fails to account for AIF’s analysis tha t, due to the insignificance of emissions from those units and the considerable administrative burde ns associated with regulating them, 28 EPA should exempt from the final reconsideration rule N G-fired hot water and process heaters with heat input capacities up to 10 MMBTU/hr. To the extent that EPA finalizes the work practice standards, however, there is a rational basis for decreasing the frequency of the tune-ups for NGfired, RG, other clean gas such as LFG (that meet s the “other Gas 1 fuel” specification) and light liquid-fired units with heat-input capacities of 5 MMBtu/hr or less. In the alternative, then, EPA should finalize the proposed, less-frequent tun e-up requirement for those units. 29 A final, related, technical issue for comment is that EPA states in the preamble that it is changing the tune-up frequency for units that are equal to or less than 5 MMBtu/hr, the proposed regulatory language applies only to units less than 5 MMBtu/hr

. 30 EPA should revise the final regulatory language to reflect the change to the tune-up freque ncy for those units as stated in the preamble. [Footnotes] (20) Moreover, nothing in the statute c ompels EPA to regulate every possible emission point at a major source. Alabama Power simply provides additional justification for EPA’s action here. (21) EPA has indicated that it believes the literal te rms of the statute compel it to regulate these sources. While AIF doe s not concede that the literal terms require regulation of these small units, to the extent t hey do, Alabama Power’s de minimis authority still would be available. (22) See supra, note 21. (23) U.S. EPA, Compilation of Air Pollutant Emission Factors, Table 1.4-3, “Emission Factors for Speciated Organic CompoundsA-28

from Natural Gas Combustion,” available at http://www.epa.gov/ttn/chief/ap42/ch01/final/c01s04.pdf. (24) If on e assumes a more typical tuning profile, the cost per ton would be more akin to $12,500 t o $25,000 per ton. (25) In part, the loss in energy efficiency would result from the el ectricity that would power those replacement electric heaters coming from coal-fired po wer plants, instead of from the NG supply that now powers the small units. (26) To the extent tha t EPA decides not to fashion a de minimis exemption for NG-fired hot water and process heaters with heat input capacities of 10 MMBtu/hr or less, in the alternative, it should promulgate a de minimis exemption for such units at a cutoff of 5 MMBtu/hr or less, consistent with EPA’s recognition of such a cutoff as the dividing line for less-frequent tune-ups in the reconsideration proposal. See Boiler MACT Reconsideration Proposal, 76 Fed. Reg. at 80,614. To the extent EPA does not promulgate such a de minimis exemption, in the alternative, it should issue a NG-fi red de minimis exemption for NG-fired process heaters at the same cutoff of less than 1.6 MMB tu/hr it already proposed for hot water boilers. See id. at 80,652. (27) NG-fired, RG, other clean gas such as LFG (t hat meets the fuel specification) and light liquid-fired units. (28) Expounding o n the cost analysis outlined above, a typical, well-tuned 1 MMBtu/hr burner emitting HAPs at th e rate published in EPA’s AP-42 NG emissions factor tables, see Compilation of Air Pollut ant Emission Factors, supra , would emit around 16 pounds of HAP per year. Although highly unlikely, a poor ly-tuned unit of this size could emit HAPs at about twice the rate of a well-tuned unit. Then, a facility with twenty poorlytuned 1 MMBtu/hr burners could collectively emit HAP at a rate of about 1/8 ton per year in excess of well-tuned units. Therefore, using the typical costs noted above, the cost of inspections on a five-year schedule for such units would effectively co st at least $64,000 per ton abated (or $160,000 to $320,000 per ton abated if one assumes a more-typical t uning profile). A hypothetical facility operating two 100 MMBtu/hr boilers and three 12 MMBtu/hr boilers, in addition to the twenty 1 MMBtu/hr burners in the exampl e above, would be spending around 50% of its tune-up budget on the small units to minimize 8% ofits HAP emissions due to tuneup requirements. AIF believes that units are generally not “poorly tuned,” so the cost per ton, in fact, will be dramatically higher than even estimated here. (29) Moreover, to the extent that EPA finalizes its proposed work practice standards in lieu of emission limits for certain units, EPA clearly possesses the authority under Section 112(h) of th e CAA to issue such standards. The plain text of Section 112(h) provides that EPA may adopt wo rk practice standards instead of emission standards “if it is not feasible in the judgme nt of the Administrator to prescribe or enforce an emission standard for control of a [HAP].” CAA § 112(h)(1); 42 U.S.C. § 7412(h)(1). The section further explains that it is “not feasible” to set an emission standard when the “application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.” CAA § 112(h)(2)(B ); 42 U.S.C. § 7412(h)(2)(B). AIF supports the explanation put forth by EPA that it is not feasible with the meaning of the CAA to prescribe or enforce an emission standard for the control of HAP as to the source categories and subcategories for which EPA has prescribed work practice standards in lieu of emission standards. (30) Proposed § 63.7540(a)(12) provides: If yo ur boiler or process heater has a heat input capacity of less than 5 million Btu per hour, and the unit is in the units designed to burn natural gas, refinery gas or other gas 1 fuels, units desi gned to burn gas 2 (other), or units designed to burn light liquid subcategories, you must conduct a tuneup of the boiler or process heater every 5 years as specified in paragraphs (a)(10)(i) through (a)(10)(vi) of this section to demonstrate continuous compliance. You may delay the burne r inspection specified in paragraph (a)(10)(i) of this section until the next scheduled or unsc heduled unit shutdown, but you mustA-29

inspect each burner at least once every 72 months. Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,644 (emphasis added).

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 8

Comment: In the final rule, EPA imposed an additional ob ligation on operators of Gas 1 units during periods of NG curtailment or supply interruption. In the new ly proposed 40 C.F.R. § 63.7545(f), EPA required these Gas 1 unit operators to provide not ification of their use of an alternative, non-Gas 1 fuel within 48 hours of the commenc ement of such periods. See Boiler MACT, 76 Fed. Reg. at 15,679, 15,685. In its petition for reconsideratio n and subsequent comments, AIF advocated for the elimination of this r equirement and recommended that EPA modify any notification requirements to comport with the 6-month reporting deadlines under Title V. See 40 C.F.R. § 70.6(c) (including the notification as to a NG curtailm ent from the previous 6-month period in the Title V semi-annual report o f required monitoring). AIF made this suggestion because of its concerns regarding the feas ibility of EPA imposing on facilities such a short timeframe for notification and the fact t hat backup fuels are allowed by existing permits, rendering this requirement unnecessary. In the pro posal, § 63.7545(f) continues to contain this requirement. See Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,646. Further, EPA does not explain why it did not include this issue in the preamble or otherwise acknowledge this subject as one as to which AIF petitioned f or reconsideration. AIF reiterates the position conveyed in its petition for reconsideratio n and subsequent comments: EPA should eliminate this requirement. It simply is not feasible to impose on facilities such a short timeframe for notification. EPA has previously stated that, as “c urtailments are an unlikely event, so the burden of this requirement should be minimal.” EPA’s Res ponses to Public Comments on Boiler MACT , Vol. 2, Comment Excerpt No: 6 (Mar. 21, 2011), Document C ontrol No: EPA-HQ-OAR2002-0058-2894.1. The fact that such a situation may occur only infr equently, however, does not change the severity of the burden on a facility, incl uding those owned and/or operated by AIF members, when it does occur. EPA, therefore, should eli minate the notification requirement. In the final rule, EPA sought to justify it as functioning t o “ensure that only those units that qualify as Gas 1 units remain in the Gas 1 subcategory.” See id. , Vol. 1, at p. 895, Document Control No: EPA-HQ-OAR-2002-0058-3289. This concern, however, does not just ify a 48-hour notification requirement—the selection of that notifi cation timeframe is arbitrary and capricious; EPA fails to explain how its stated concern supports impo sing 48 hours as the timeframe for the requisite notification. If EPA elects to retain the requirement, it can still clearly achieve its stated goal by receiving any information regarding NG curtailment in Title V reports. There is no rational basis to add to facilities’ monitoring burdens whe n Title V already requires them to report NG curtailments from the previous 6 months in thei r semi-annual reports of required monitoring. If it elects to retain the notification r equirement, therefore, EPA should amend it toA-30

operate consistently with the timeframe of Title V’s reporting regime for required monitoring, relying on reporting of changes in the semi-annual report of required monitoring, rather than imposing a 48-hour notification requirement. Moreover, EPA fails to provide a rational basis as to why, even in light of its stated concern, it should r equire any notification when facilities, in instances of NG curtailment, merely burn backup fuels. When facilities burn backup fuels, notification is unnecessary because existing permits all ow the burning of backup fuels. Burning a backup fuel is not like burning a new fuel. At most, then, if EPA elects to retain the notification requirement, it should restrict the requirement to circu mstances where, during instances of NG curtailment, facilities burn a fuel that was not previous ly identified in a permit. There is, otherwise, no rational basis for it. Therefore, EPA should eliminate the notification requirement of alternative fuel use during NG curtailment. In the alt ernative, EPA should amend the timeframe of § 63.7545(f) to one that is consistent with T itle V’s semi-annual report of required monitoring. Moreover, EPA should only require facilities to report when they burn a new fuel, i.e., one that was not previously identified or allowed under their Title V permit.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 9

Comment: In the final rule, EPA promulgated a “beyond the floor” requirement for onetime “energy assessment” performed by a qualified energy asses sor. See Boiler MACT, 76 Fed. Reg. at 15,683 (definitions for “energy assessment” and “ene rgy use system” in § 63.7575); id. at 15,692 (enumerating the 8 components of the assessment in t he Table 3 work practice standards). Specifically, the energy assessment was structured to a pply not just to “boiler systems” but also to their “energy use systems,” which include but are not limited to “process heating; compressed air systems; machine drive (motors, pumps, fans); process cooling; facility heating, ventilation, and air-conditioning systems; hot heater systems; build ing envelop; and lighting.” Id. at 15,683. In its petition for reconsideration and subsequent comm ents, AIF argued that EPA should eliminate the requirement because it does nothing to reduce H AP emissions and, therefore, Section 112 of the CAA does not justify it. Moreover, AI F articulated that the requirement exceeds EPA’s authority under the CAA because it appears to regulate sources beyond those strictly in the source category, i.e., those not regulated by the Boiler MACT. AIF noted that th e Boiler MACT regulates industrial, commercial and insti tutional boilers and process heaters, not manufacturing facilities as a whole. Yet, as conveyed a bove, EPA structures the assessment to include a variety of systems throughout facilities beyond t he boilers and process heaters themselves. AIF suggested that, at a minimum, EPA should curtail the assessment to apply only to the boiler and/or process heater, not to the broader range of processes at a plant. EPA does not propose to eliminate the energy assessment nor does it propose to limit the assessment to the boiler and/or process heater only. In fact, EPA proposes no changes to the components of the assessment on which AIF commented. Instead, EPA merely clarifies that it did not intend in theA-31

final rule for the assessment to include energy use sys tems using electricity purchased from an offsite source or energy use systems located offsite, indicating by the energy assessment still includes energy use systems on-site, i.e., the assessment still extends beyond the boiler and/or process heater itself. Specifically, EPA proposes to am end the prior language of the third component of the energy assessment enumerated in Table 3 from “[a]n inventory of the major energy consuming systems” to: An inventory of major sy stems consuming energy from affected boilers and process heaters and which are under the cont rol of the boiler/process heater owner/operator. Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,664; see also id. at 80,614-15 (relevant discussion in the preamble). EPA also pro poses adding clarifying language to § 63.7510’s initial compliance requirements to the effect that existing affecting sources must “complete the one-time energy assessment specified in Table 3 to this subpart ... no later than the compliance date specified in § 63.7495,” 31 i.e., no later than 3 years after publication of the final reconsideration rule. Id. at 80,631. To the extent that the Agency retains the asses sment in the final reconsideration rule, AIF supports the clarifi cation that the assessment does not include energy use systems using electricity purchased from an offs ite source or energy use systems located offsite and urges EPA to place this clarification in the final reconsideration rule itself, not just in the preamble. The regulations themselves must cla rify the scope of the assessment. Beyond that clarification, however, EPA fails entire ly to address the points previously raised by AIF. First, the energy assessment is impermissible un der Section 112 of the CAA because the assessment is not an “emission standard” and it does not operate to reduce HAP emissions. EPA does not and cannot demonstrate that merely conducting an e nergy assessment will actually reduce HAP emissions or even that implementing the find ings of such an assessment will lead to reduction in HAP emissions. EPA should eliminate the as sessment on that ground alone. If EPA elects to retain the assessment, however, it exceeds EPA’s authority under the CAA, even with the revision to certain language in Table 3. The energy as sessment still operates to regulate sources beyond those strictly in the source category, i.e., those not regulated by the Boiler MACT. The Boiler MACT does not regulate manufacturing fac ilities as a whole, therefore, EPA cannot properly include a variety of systems throughout fa cilities beyond the boilers and process heaters themselves. Therefore, to the extent it elec ts to retain the assessment, EPA should curtail the assessment to apply only to the boiler and/or proce ss heater, not to the broader range of processes at a plant. Moreover, as conveyed in the reco nsideration proposal, the energy assessment requirement creates uncertainty in the regul ated community, including AIF members, as to how to effectuate it, including with respect to the following issues: -Are facilities supposed to conduct the assessment as to individual boilers or as to the facility as a whole? The reconsideration proposal appears to suggest that faciliti es should conduct the assessment on an individual boiler basis; however, Table 3 creates confusion as to the scope because it mixes references to boilers and process heaters in the singula r and the collective, and it refers to the assessment being conducted “on” the facility as opposed to “at” the facility. 32 Id. at 80,664. -The threshold in the “energy assessment” definition appear s based on actual heat input use as opposed to potential heat input use, however, again, the r econsideration proposal is not entirely clear on this point. 33 See id. at 80,651. If it is actual, what base year should facilit ies use and may facilities permissibly estimate actual use from centra lized NG meters? AIF requests that, to the extent it retains the energy assessment requirement, t he Agency provides clarity on these issues in the final reconsideration rule. [Footnotes] (31) Note that EPA does not appear to state anywhere in the proposal that it proposes to amend § 63. 7510 to add the quoted language. (32) Moreover, Table 3, in listing the requirements of the a ssessment, refers to an evaluation of theA-32

“specification of energy using systems ,” id. , 76 Fed. Reg. at 80,664 (emphasis added), which is an undefined term, although it is similar to the defined t erm, “energy use systems.” EPA should clarify what it means by the phrase, “energy using syste ms” or revise the phrase to refer to the defined term “energy use systems.” (33) As a corollary, t he definition of “energy use assessment” refers to “facilities with affected boil ers and process heaters using” certain amounts of heat output without clarifying whether “using” refers to a ctual use or rated capacity. Id. at 80,651.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 10

Comment: In the table of proposed technical corrections in the Boiler MACT Reconsideration Proposal, EPA indicates that it proposes to “[r]evis e the definition of ‘process heater’ to include ‘units heating hot water as a process heat transfer medium.’” Id. at 80,620. The following underlined portion reflects the proposed addition s to the definition: Process heater means an enclosed device using controlled flame, and the unit’ s primary purpose is to transfer heat indirectly to a process material (liquid, gas, or so lid) or to a heat transfer material for use in a process unit, instead of generating steam. Process heat ers include units heating hot water as a process heat transfer medium. Process heaters are devi ces in which the combustion gases do not come into direct contact with process materials. A devi ce combusting solid waste, as defined in §241.3, is not a process heater unless the device is exempt fr om the definition of a solid waste incineration unit as provided in section 129(g)(1) of the Clean A ir Act. Process heaters do not include units used for comfort heat or space heat, food prepar ation for on-site consumption, or autoclaves. Waste heat process heaters that use only natur al gas, refinery gas, or other gas 1 fuels for supplemental fuel are excluded from this definition. Id. at 80,653 (underline added). The absence of a rational basis or explanation of any kin d as to the proposed revision is troubling in light of the substantive changes to the definition of “proc ess heater” that EPA seeks to effectuate. The proposed revision is likely to lead to confusion for af fected sources, including those owned and/or operated by AIF members. In bringing “units heating h ot water as a process heat transfer medium” into the definition of “process heater,” EPA’ s proposal creates the confusing circumstance whereby the regulations could classify a hot water heater as both a boiler and a process heater. Traditional, centralized boilers, for example, serve to heat facility buildings both for comfort and for some processes. Even though the maj ority of the annual heat load is related to comfort heat and not process heat, and the definition of “process heater” otherwise endeavors to exclude from its ambit those “units used for comfort heat ,” the proposed, revised regulations would identify those units as both a boiler and a process heater. The confusion – and additional regulation – that would flow from EPA’s proposed revision is unnecessary and lacks any rational basis. It would be simpler to keep all hot water heaters classified first as boilers, regardless of whether they heat a process, see, e.g., id. at 80,650 (“Boiler means an enclosed device usingA-33

controlled flame combustion and having the primary purpose of recovering thermal energy in the form of steam or hot water”), and then exclude from regu lation under the Boiler MACT those units that meet § 63.7575’s definition of “hot water heater,” see, e.g., id. at 80,641 (including a hot water heater as defined at § 63.7575 as one of the types of boilers and process heaters that is not subject to the Boiler MACT). EPA should rescind this proposed revision.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 11

Comment: In the June 4, 2010, proposal for the Boiler MACT , the definition of “unit designed to burn gas 1 subcategory” was formulated as follows: Un it designed to burn gas 1 (NG/RG) subcategory includes any boiler or process heater th at burns at least 90 percent natural gas and/or refinery gas on a heat input basis on an annual average. National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters , 75 Fed. Reg. 32,006, 32,065 (June 4, 2010) (the “Proposed Boiler MACT”) (underline added). The Boiler MACT Reconsideration Proposal contains the following revised formulation to the definiti on: 34 Unit designed to burn gas 1 subcategory includes any boiler or process heater that burns only natural gas, refinery gas, and/or other gas 1 fuels; with the exception of liquid fuels burned for periodic testing not to exceed a combined total of 48 hours during any calendar year, or during peri ods of gas curtailment and gas supply emergencies. Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,655 (underline added to indicate revisions). AIF supports the propo sed exclusion in this definition for periods of time that a NG fired unit combusts fuel oil f or testing purposes and when needed as an “emergency back-up” fuel. However, AIF is concerned about the 48-hour restriction associated with “periodic testing” and that gas curtailment and/or ga s supply emergencies may not address all of the foreseeable emergency situations. Accordingly , AIF urges EPA to amend this definition to allow units in the Gas 1 category to burn up to 10% other fuels annually, thereby returning to the prior formulation of the definition fro m the Boiler MACT Proposal. See Proposed Boiler MACT

, 75 Fed. Reg. at 32,065. With respect to the 48-hour restrict ion for “periodic testing,” consider, for example, the request by a state agency to conduct emission testing using fuel oil to demonstrate compliance with emis sion limits that would be imposed when combusting fuel oil pursuant to state regulations. In A IF members’ experience, boilers in such a circumstance may have to operate on fuel oil fo r approximately one week to ensure that they have achieved representative operation to allow for an acceptable emission test using the federal reference test methods. It would be inappropriate t o then consider the boiler no longer covered by the NG category because of such emission tes ting. Thus, while 48 hours may be adequate to confirm that a boiler could operate using fuel oil as designed, it is insufficient to provide adequate operation to perform emission testing when r equired by a state regulatory agency. With regard to the exclusion of NG curtailment a nd/or supply emergencies, AIFA-34

members recall events during the 1980’s when there was extens ive uncertainty regarding the availability of a continuous supply of NG and fear about p otential NG shortages and interruptions. To be clear that fuel oil can be used durin g periods of inadequate NG supply or interruption, AIF believes that the exception provided in the definition needs to be expanded to allow for periods of potential supply interruption. Therefo re, AIF urges EPA to amend the definition to allow for units in the Gas 1 category to bur n up to 10% other fuels annually. If EPA does not revise the definition as AIF urges, it will resu lt in taking units that would otherwise fall within the ambit of this definition – and that are designe d to burn Gas 1 – outside of it. There is no rational basis for such a result. [Footnotes] (34) T he formulation for this definition in the Boiler MACT Reconsideration Proposal is consistent w ith the formulation in the final rule. See Boiler MACT

, 76 Fed. Reg. at 15,686.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 12

Comment: EPA proposes exempt from the Boiler MACT those units that facilities use as control devices to comply with the standards of part 60, part 61 or part 63 of the CAA, provided that “at least 50 percent of the heat input to the boiler is provided by the gas stream that is regulated under another subpart.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,615-16. In the final rule, EPA had merely prom ulgated this exemption in the part 63 context, however, it now proposes to extend the exem ption to parts 60 and 61 because of their respective relevance to the NESHAP program. See id. EPA, therefore, proposes to revise accordingly the provision at § 63.7491(i) that enumerates the boilers and process heaters not subject to the Boiler MACT. See id. at 80,628. 35 AIF supports extending the exemption to cover units required by parts 60 and 61 in addition to part 63 of the CA A and to units used as integral to control devices. Consider, for example, boilers used a s part of VOC control devices for the purpose of desorbing the VOC that is adsorbed onto a carbon bed or wheel, such that the VOC can be concentrated and routed to a thermal oxidizer. Without the use of the boiler, this VOC control system would be extremely inefficient and requir e much larger thermal oxidizers and waste more NG in the destruction of VOC. Therefore, E PA should finalize its proposed amendment to the exemption for units serving as control devi ces. [Footnotes] (35) “The types of boilers and process heaters listed in paragraphs (a) thr ough (n) of this section are not subject to this subpart: . . . (i) Any boiler or process heater t hat is used as a control device to comply with another subpart of this part, or part 60 or part 61 of this chapt er provided that at least 50 percent of the heat input to the boiler or process heater is pro vided by the gas stream that is regulated under another subpart.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,628.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial,A-35

Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1 Comment Excerpt Number: 13

Comment: Based on the request of petitioners that EPA cl arify the timing of tune-ups with respect to the compliance dates for new sources, EPA proposes to r equire completion of the initial tune-up after startup within one year of startup. See id. at 80,614. EPA makes this proposal based on its recognition that, generally, units are tun ed as part of installation. See id. In the experience of AIF’s members, EPA is correct in recogniz ing that, generally, units are tuned as part of the installation process. Accordingly, AIF suppo rts EPA’s proposal in principle, however, EPA should amend it to make the deadline for the first tun e-up after installation consistent with the tune-up cycle germane to the specific unit. For exampl e, under the proposed reconsideration rule, units such those fired by NG, RG, other clean gas lik e LFG (that meets the “other Gas 1 fuel” specification) and light liquid operate on a five-y ear tune-up cycle. See id. Consistent with that requirement, EPA should amend the proposal to require units fitting within that classification that are located at new sources to compl ete their initial tune-up after installation within five years of startup—as opposed to within one year af ter startup under the reconsideration proposal. As EPA correctly acknowledge s that, generally, units are tuned as part of installation, it would be arbitrary and capricious for EPA to require a unit to conduct its initial tune-up after installation on a different timetable than the cycle otherwise germane to that specific type of unit. Therefore, while AIF supports the pr inciple underlying EPA’s proposal, it recommends that EPA finalize the proposal with the sugges ted amendment that would key the initial tune-up requirement to the tune-up cycle that is ge rmane to the specific unit.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.

Commenter Name: Stuart A. Clark Commenter Affiliation: State of Washington Department of Ecology Document Control Number: EPA-HQ-OAR-2003-0119-2636-A2 Comment Excerpt Number: 1

Comment: We are pleased that EPA segregated biomass boilers by d esign type under the Major Source Boiler MACT Rule. This segregation better reflec ts the capabilities of the various boiler designs. The clear separation of biomass from coal units has provided particulate emission limits that better reflect the capabilities of units burning coal and biomass. We support EPA’s decision to not establish numerical emission limits for dioxin/fur an emissions from major source biomass boilers, since all emissions reports are at or below t he detection limit for the test method. WeA-36

also support EPA’s recognition that good combustion practic es and boiler design are a reasonable way to control for particulate matter, carb on monoxide, and dioxin.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs. To the extent that the commenter has provided these comments to that rulemaking, they will be a ddressed there.



### 1D. Boiler - Undesignated

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1 Comment Excerpt Number: 1

Comment: The NAM supports the EPA’s decision to establish work p ractice standards in lieu of emission limits for certain gas-fired boilers, for dioxin/furan and for periods of startup and shutdown
The EPA has properly exercised its authority by proposing t o rely on work practice standards in lieu of emission limits for certain gas-fired boilers (units that combust only natural gas, refinery gas, or equivalent fuel (other gas that qualifies as Gas 1 fu el)). 76 Fed. Reg. 80,601. The EPA is also proposing a work practice standard for dioxin/furan em issions from all subcategories. Id. at 80,602. In addition, the EPA is proposing revised work practic e standards for periods of startup and shutdown. Id. at 80,602. By taking these steps, the EPA will help to make sure that these rules do not unduly harm segments of the nation’s critica l manufacturing base.

The EPA has ample legal authority to set the standard i n terms of a work practice. First, section 112(d)(1) authorizes – if not requires – the EPA to set "emis sion standards" for each category or subcategory, and section 302(k) defines "emission standard" to include work practice standards. Thus, if the EPA determines that the best performing sour ces achieved their emissions performance through work practices rather than control e quipment, those work practices should be identified as the "floor." Second, section 112(h)(2)(b) independently authorizes the EPA to use a work practice standard where, as here, the applica tion of a system for measuring the effect of the control measure for enforcement purposes is not practicable.

The EPA has independent authority to promulgate work prac tices as emission standards under CAA §302(k) as long as the work practices provide a continuous limit on emissions or are part of a set of regulations that provide a continuous limit on emissions. As required by CAA § 112(d), the EPA must promulgate "emission standards" for the co ntrol of hazardous air pollutants at major sources. Originally, these "emission standards" w ere found to be limited to only numeric emission limits. See, e.g.

, Adamo Wrecking Co. v. U.S. , 434 U.S. 275 (1978). However, in the 1990 Amendments, Congress expanded the definition of "emissi on standards" in §302(k) to expressly include work practices. As a result, the plain language of the Clean Air Act nowA-37

authorizes the promulgation of work practices: (1) as di rect emission standards under §302(k), and (2) in lieu of emission standards under CAA §112(h).

That statutory authority greatly simplifies the develop ment of work practice standards for boiler units. Instead of turning to the alternate stop-gap provisio ns in §112(h) that apply when continuous emissions standards are not feasible, the EP A can focus on the direct establishment of work practices that existing sources use to ensure contin uous compliance under §§112(d) and 302(k). For example, if the top 12% of existing natural gas-f ired boilers are using tune-ups to achieve their "best performing" status, then the EPA has the authority to establish that protocol as a work practice-based emission standard. Tune-ups are a n appropriate emission standard for these units because, if conducted with adequate frequency, th ey provide continuous reduction of the quantity and rate of HAP emissions from boilers by e nsuring that they operate properly.

The NAM agrees with the EPA’s conclusions regarding the basis for relying on work practices for units that combust only natural gas, refinery gas, or e quivalent fuels. As the EPA recognizes, the capital cost of emissions controls for the numer ous existing gas-fired boilers would be extraordinarily high. See 75 Fed. Reg. at 32,025, 32,029. Further, the EPA correctly concluded that imposing emission limitations on gas-fired boilers would create a disincentive for switching to gas from oil, coal or biomass as a control technique. Id. In fact, it could create an incentive for facilities to switch away from gas to other fuels. Both o utcomes should be avoided. Finally, the EPA recognized that "[t]he inability to accurately measure emission from Gas 1 units and the related economic impracticability associated with measur ing levels that are so low that even carefully conducted tests do not accurately measure emiss ions warrant setting a work practice standard under CAA section 112(h)." 76 Fed. Reg. at 15,638.

In addition, the EPA is correct that work practices a re appropriate for dioxin/furan, as the large majority of the dioxin/furan measurements are below the level that can be accurately measured. 76 Fed. Reg. at 80,606. This is consistent with the approach that the EPA correctly took in the recently finalized Mercury and Air Toxics Standard.

Finally, the NAM agrees with the EPA’s rationale for justifying work practice standards for periods of startup and shutdown, as described in the preamble to the final rule. 76 Fed. Reg. 15,642. The EPA’s rationale, along with the concerns raise d in prior comments by the NAM and others, justify reliance on work practices.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1 Comment Excerpt Number: 2A-38

Comment: The NAM supports the EPA’s creation of additional subcategori es
The CAA unequivocally authorizes the EPA to establish a ppropriate subcategories of sources. CAA §112(c)(1) instructs EPA to establish "categories and subc ategories" of sources for regulation under Section 112. CAA §112(d)(1) then further provides that the EPA "may distinguish among classes, types and sizes of sources wi thin a category or subcategory" when establishing MACT standards. These provisions vest the EPA with the clear authority to group like units for purposes of establishing emissions limitations . Further, the EPA’s ability to subcategorize is a key tool in ensuring that MACT floors ar e achievable. See Sierra Club v. EPA

, 479 F.3d 875, 884-85 (D.C. Cir. 2007) (Judge Williams’ concurrence notin g the need to use subcategorization to avoid imposing unreasonable or unachieva ble MACT floors).

Thus, the NAM supports the EPA’s conclusion that certain additional subcategories are warranted. For example, the EPA’s division of the liqu id subcategory into light and heavy liquid subcategories for PM and CO is warranted because of the differences in equipment design, operations and emissions between the subcategories. In add ition, the EPA’s establishment of a limited use subcategory subject to work practices is war ranted for a variety of reasons previously highlighted by the NAM, including the fact that these units spend a far greater percentage of their time starting up and shutting down than other units, l eading to different emission profiles and control options.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1 Comment Excerpt Number: 4

Comment: The EPA proposes to set the compliance deadline for exi sting affected sources at three years after the date of publication of the Final R ule in the Federal Register. 76 Fed. Reg. at 80,605. It will be extraordinarily difficult – if not impos sible – for all of the entities with existing boilers to make the changes necessary to comply with t his rule in the three year timeframe that the EPA proposes. Put simply, the task of performing a boiler retrofit in three years will be made nearly impossible by the competition for critical reso urces and the likely gridlock in many state permitting processes that the broad application of this ru le will create. Many boiler owners will be simply unable to secure equipment and assistance and/or to obtain the state/local permits needed to retrofit their units within three years.

Even under the best of circumstances, a major retrofi t of a boiler takes years from project start to finish. The EPA has estimated that the installation of an activated carbon injection control system on one combustion unit – a comparatively simple i nstallation – takes about 15 months.3 However, the EPA expects a range of control devices wil l be used to meet the standards,A-39

including fabric filters, carbon bed adsorbers, activated c arbon injection, electrostatic precipitators, wet scrubbers, replacement burners, and co mbustion controls.4

Further, the sheer number of boilers impacted by the ru le will make finding – and then scheduling – the design and construction resources almost i mpossible. The EPA estimates that approximately 5,500 boilers would need to meet emission limi ts under the rules.5 Many, if not all, of these boilers would need to be retrofitted. Boi ler owners will need to hire engineers to assist them in designing and performing the retrofit. Thus, across the various industry sectors impacted by this rule, boiler owners will be competing fo r qualified engineers to design, permit and perform the retrofits necessary to make boilers co mpliant with this stringent rule. There will be a similar scarcity in equipment vendors, construct ion contractors, construction equipment (e.g, heavy lifting cranes), skilled labor (e.g., boile rmakers), and other critical suppliers.

Companies may even be unable to secure the basic buildi ng materials and control equipment (e.g., baghouses and scrubbers).

In order to retrofit a boiler, the owner will need to line up the capital necessary to pay for the retrofit. In these difficult economic times, just se curing the necessary capital may take significant time. In addition, the owner will need to go though the relevant permitting process(es), which will take a number of months. Finally, once the financ es are secure and the permitting is complete, the owner will actually need to perform the r etrofit. The design, procurement, installation, and shakedown of a retrofit project (e.g., installing a scrubber on a large boiler) can easily take multiple years.

In addition, the timing of the retrofit work needs to be c arefully planned, particularly for boilers that provide the primary and/or base load energy supply for their facilities. A facility owner will only shut down a boiler when everything is properly staged t o ensure minimal disruption of the facility’s operation. Based on a discussions with a nu mber of potentially affected companies, the turnaround or shutdown cycles for boilers at many of the facilities is so long as to make this type of precise staging exceedingly difficult to do in a thr ee year period without substantial business interruption.

Finally, in many instances, the installation of pollutio n control equipment and associated charges to boiler must be permitted under state air pollution stat utes and/or construction codes (building permits, etc.). The proposed rule will result in an inc rease in the number of permit applications, potentially swamping the state and local agencies. Even i n those areas where the rule may not result in significant increases in permitting work, the normal delays associated with permitting may make meeting the three year compliance deadline impos sible.

In light of the difficulty in meeting a three year c ompliance deadline, the EPA and authorized states should be prepared to readily grant one-year extens ions under CAA § 112(i)(3)(B) to those units that have problems installing the necessary control e quipment to comply with the industrial Boiler MACT rule.

In addition, the EPA should establish an extended two-st ep compliance period for situations where a boiler owner voluntarily elects to replace or retrofit a boiler to burn a cleaner fuel source.6 If a facility decides to switch to a cleaner fue l, the replacement or retrofit work required to make that switch will potentially take years, for a ll of the reasons discussed above. Rather thanA-40

require the facility to add emissions controls to its exi sting boiler in time for the proposed three year compliance deadline – likely eliminating the possibilit y that the facility would switch to a cleaner fuel source – the EPA should allow five years tot al for facilities to change their boilers and meet the MACT requirements for the cleaner fuel so urce. This five year period would occur in two steps; a no-backsliding provision would apply for tw o years from publication of the rule in the Federal Register, and then the facility would have three years to comply with MACT standard for the subcategory for the cleaner fuel subcat egory. The EPA promulgated exactly this type of extended MACT compliance deadline for certain fac ilities that voluntarily elected to install new technology as part of the Pulp and Paper Clus ter Rule. See Pulp and Paper Cluster Rule, 60 Fed. Reg. 18503, 18,508 (Apr. 15, 1998).7 In addition to providing an incentive for facilities to switch to cleaner fuel sources, this approac h would reduce some of the competition for resources discussed above by extending the deadline to co mplete the work to replace or retrofit certain boilers.

[Footnotes]

(3) EPA, Engineering and Economic Factors Affecting the Installation of Control Tec hnologies for Multipollutant Strategies (2002).

(4) EPA, Regulatory Impact Analysis: National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Proces s Heaters , 3-1 (April 2010) (“The control analysis considered fabric filters, c arbon bed adsorbers, and activated carbon injection to be the primary control devices for mercury control, electrostatic precipitators for units meeting mercury limits but requiring additional contro l to meet the PM limits, wet scrubbers to meet the HCl limits, tune-ups, replacement bu rners, and combustion controls for CO and organic HAP control, and carbon injection for dioxin/f uran control.”)

(5) http://www.epa.gov/airquality/combustion/docs/20111202present ation.pdf. (6) EPA recognizes the MACT rule should be crafted to encourage the use of cleaner fuels, such as natural gas. 75 Fed. Reg. 32025.

(7) This two-step approach for the MACT standard is consis tent with the D.C. Circuit’s decision in NRDC v. EPA, 89 F.3d 1364 (D.C. Cir. 2007) (finding invalid EPA’ s decision to extend the compliance deadline for a promulgated MACT rule by a year because of the substantial changes that the agency made to the rule). Rather than functioning as an extension of the compliance deadline, this MACT standard for certain facilities would become applicable in two steps. For the first three years, a no-backsliding MACT standard w ould be applicable, then the three year deadline to implement the MACT standard for the applicable “cleaner” source would begin to

run.
Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.A-41

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1 Comment Excerpt Number: 5

Comment: EPA should change 40 CFR 63.11196 to allow three years, rather than two, for sources subject to the tune-up requirement to demonstrat e compliance

The EPA is proposing to amend 40 CFR 63.11196 to specify that all existing boilers subject to the tune-up requirement would have two years (by March 21, 2013) i n which to demonstrate initial compliance, instead of one year to demonstrate i nitial compliance. The EPA requested comment on whether the initial compliance period for t he tune-up requirement should be extended to three years. 76 Fed. Reg. 80,535.

For many of the same reasons discussed above, the NAM recommends that this compliance period should be extended to three years. See 76 Fed. Reg. 15579, Table 4 (identifying 183,000 existing area source boilers). Combining a potential shorta ge of environmental engineers with the long range planning required for testing and work at fac ilities, it will be difficult to schedule and complete the testing needed to comply with the tune-up requirements in time to meet a two year deadline, particularly for facilities with multip le boilers.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1 Comment Excerpt Number: 8

Comment: The EPA’s proposed energy assessment is too broad i n scope
The NAM continues to believe that the EPA’s proposed en ergy assessment requirements are unwarranted. Further, although the EPA has indicated that it is limiting the scope of its energy assessment requirements, the NAM believes that the meas ures still exceed the scope of the EPA’s authority. Section 112(d) of the Clean Air Act is focused entirely on regulation of "sources." It requires the EPA to set emissions standards that are "applicable to new or existing sources" § 112(d)(2). Thus, it reaches no further than the s pecific "sources." The "affected source" regulated by this NESHAP is the specified emission unit – boilers – not any other portions of the plant. Thus, if the EPA retains the en ergy assessment requirements, they should be clearly limited to addressing only the boiler and auxil iaries.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial,A-42

Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 3

Comment: EPA has proposed to retain its “work practice” standa rds for carbon monoxide (“CO”) emissions for certain subcategories and for emi ssions of dioxins and furans (“D/F”) for all subcategories on the basis that measuring emission s of these pollutants is impracticable. However, EPA has not identified the specific work pract ices that the regulated community must employ. Given the complex nature of D/F formation, th e development, implementation and enforcement of a meaningful D/F work practice requiremen t is itself impracticable. The fact that many sources have shown a “below the detection limit” (“BDL”) test result does not make such testing impracticable nor will such results be a violati on. EPA should address the issue of an unnecessary testing burden for “clean units” head on and no t suggest that an unspecified work practice obligation will achieve the emission reductions . Where EPA believes that emissions from some sources are truly insignificant, it should sa y so and use the authorities available to it for de minimis emissions.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 4

Comment: In response to comments on the 2010 rule, EPA adopted a different approach for calculating the Upper Probability Limit (“UPL”) to provide for calculation of the “pooled” variability of units in a subcategory, rather than the si mple variability of those units. On the basis of this change and without additional notice to interested parties, EPA then adopted MACT floors that were significantly different from those in the 2010 proposal. On reconsideration, EPA proposes to use the same procedure as in the final rule. EPA’s misapplication of this new technique leads it to calculate mercury (“Hg”) MACT floo rs for existing oil-fired units that are seven times higher (less stringent) than would have occ urred under the 2010 approach and far more lenient than the underlying data would suggest. EPA state s that it is seeking public comment only on the issues specifically identified in its 64-page list of proposed changes andA-43

that it will not respond to any comments addressing other aspects of the final rule or any other related rulemakings. However, EPA also argues that the c hanges it is proposing are so comprehensive that it should provide a new three-year compl iance period for all sources. While we agree that certain issues, such as “risk-based exemptio ns,” need not be revisited, interested parties have not had an opportunity to comment on EPA’s change in procedure. We think it is unwise for EPA to suggest that it will not consider any an d all comments related to the substance of the rulemaking.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 6

Comment: NACAA supports the development of subcategories in MACT rule development, where such subcategories are based on meaningful differenc es in anticipated fuels and unit designs. EPA has received a significant number of comm ents from sources making general assertions and theoretical arguments in support of additi onal subcategories; accordingly, the agency has proposed to greatly expand the number of subcatego ries for several pollutants. NACAA agrees that EPA’s proposal to establish four broad categories based on fuel type – coal, biomass, liquid and gas – is reasonable.

EPA proposes, however, to subdivide these broad categori es into 38 subcategories for existing and new units. In support of the explosion in the number o f subcategories, EPA explains the differences in design between, for example, a coal-f ired stoker boiler and a coal fired pulverized coal (“PC”) boiler. However, large boilers do not come off an assembly line 12 and can last for up to 50 years. Almost every large boiler will have differe nces in design from every other large boiler. Even smaller boilers will have differences in design from small boilers produced by other manufacturers. As a result, it is insufficient to simp ly identify design differences. Where EPA seeks to establish additional subcategories it must explain why those differences matter and point to information in the record that supports its conclusion. For example, within the Boiler MACT “coal-fired” category, EPA proposes separate subcategori es for stoker, fluidized bed and pulverized coal designs. However, we know of no reason why well-controlled units of these designs should differ significantly in levels of HAP em issions. Similarly, EPA proposes to establish seven subcategories of wood-fired boilers 13 –wet stoker, dry stoker, fluidized bed, suspension, dutch oven, fuel cell and hybrid suspension –base d on differences in the design of the combustion chamber of these units

. However, most boilers and. in particular, the bestperforming units, are equipped with PM control devices ranging in effectiveness from cyclones and multi-cyclones to electrostatic precipitators and fabric filters. The performance of the installed PM control device governs the level of PM and T SM emissions to a far greater extentA-44

than differences in design of the combustion unit itse lf. Indeed, in the stoker/sloped/other dry biomass subcategory we note that each of the units in t he subcategory is only served by cyclone or multiclone particulate matter control devices, while in other subcategories most of the units are equipped with more effective fabric filer or electro static precipitator control devices. We do not believe that EPA is authorized to create a class of “poorly controlled units” and recommend that no separate subcategories be authorized for PM or T SM. 14

[Footnotes:

12 Even mass-produced automobiles will exhibit design differen ces within and between models and manufacturers.

13 NACAA has raised a concern that differences in the co mbustion properties of “wet” wood and “dry” wood might warrant development of a separate subc ategory.
14 These devices, along with sulfur dioxide and nitrogen oxide c ontrols may also affect emission levels of hydrogen chloride and mercury.]

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 11

Comment: EPA’s proposed limits for Hg emissions from li quid-fired boilers reveal the magnitude of EPA’s decisions respecting (1) the level of pr ecision to be employed in conducting emission testing and fuel analysis, (2) determin ing variability of “best” sources with insufficient data, (3) “pooling” variance among different sources where there is no reason to believe that each of those sources has the same amoun t of variability, and (4) determining the UPL based on emission data where the sourc e is not “in compliance.” Distillate oil (#2 oil) is commonly understood to contain far less Hg than coal or biomass; while residual oil (#6 oil) contains somewhat less Hg than soli d fuels. EPA’s existing source MACT floor is based on a series of test results from ten sources combusting four different types of oil. 23 Six sources submitted the results of a single complianc e test and four sources submitted 41 fuel analyses. The arithmetic average of these results is 3.70 x 10-7 lb/MMBtu and the standard deviation is 3.07 x 10-7 lb/TBtu, suggesting that a reasonable MA CT floor would be in the range of 1.0 - 1.5 x 10-6 lb/MMBtu (a variability factor of 300 to 500 pe rcent). 24 EPA’s earlier UPL calculation led to the final rule MACT standard of 3.4 x 10-6 lb/MMBtu – a variability factor of over 900 percent. EPA’s newly proposed statistical procedure results in a proposed UPL of 2.49 x 10-5, using the same data. This number is more than 100 tim es the arithmetic average of the data and more than 100 times the standard deviation of the da ta set 25 . As a consequence, of theA-45

71 sources for which EPA has data, only four sources will ha ve to reduce emissions. As Table 1 demonstrates [see submittal for comparison table provided by c ommenter], many of the characteristics of the data for the liquid fuel-fired sub category are similar to those in the solid fuel-fired subcategory and yet EPA’s proposed MACT floor for liquid fuel-fired boilers is nearly ten times higher than the proposed limit for solid fuel- fired units. Charts 2 and 3 [see submittal for charts provided by commenter] demonstrate the impact o f EPA's determination of variability on the effectiveness of the rule. The average of the top 12 percent (lowest test value) in each case is well below 1.0 x 10-6 lb/MMBtu. If EPA had set the limit for coal-fired units at that level, approximately 25 percent of the subcategory would meet the lim it and the balance would be required to take some steps to reduce emissions. At the prop osed level of 3.1 x 10-6 lb/MMBtu, while the gross emitters would have to take steps to comply, approximately two thirds of the units in the subcategory would not need to reduce emissions . For the oil-fired subcategory, only four of 71 units would have to reduce emissions at all; the pr oposed limit is five times higher than the emission rate of the fifth highest emitting unit in the subcategory. These results do not appear to be consistent with EPA’s obligation to set MAC T floors at levels that represent the average of the performance of the top 12 percent. NACAA attempted to discern why EPA’s procedure generated such different results when the overal l distribution of the Hg emissions data for coal and oil-fired units was so similar. The larges t single reason for this vast difference appears to be a simple error in importing the data – EPA incorporates the emissions data for HCl instead of Hg into its UPL calculation. 26 With the correct data, EPA’s 99th percentile UPL calculation yields a MACT floor of 4.58 x 10-7 lb/MMBtu. [F ootnotes: 23 MACT Floor Memo, Appendix C-4-(a)(i). 24 A somewhat higher limit may be appro priate as many of the reported results were below detection limits, thereby constrai ning the variability that would have been demonstrated by more precise analyses. This effect is off set by the fact that the arithmetic average would be lower with more precise analyses, but t he degree to which these factors offset is not known. 25 Sources routinely maintain, and EPA agr ees, that fuel variability is so small that sources only have to conduct new fuel analyses when they c hange suppliers. 26 The error can be found in MACT Floor Memo, Appendix C, Worksheet “C-4(a)( iv)&C-4b(iv)” which is then carried over into Worksheet “C-4(a)(ii).”]

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 13

Comment: In 2004, EPA candidly admitted that it could not de velop CO work practice standards for ICI Boilers: Consequently, any uniform requi rements or set of work practices that would meaningfully reflect the use of good comb ustion practices or that could be meaningfully implemented across any subcategory of boil ers and process heatersA-46

could not be identified. 29 EPA has nonetheless asserted that measuring CO levels is impracticable 30 and has set out what it describes as a work-practice standard. What EPA has adopted and continues to propose is not a set of good comb ustion practices that could be meaningfully implemented across a subcategory, but a requirem ent to follow the manufacturer’s recommendation for good combustion practices. This assume s that manufacturers can do what EPA could not – identify a set of good combustion practices a pplicable to boilers designed and built over the past 50 years. It also assumes that the manufacturers of these units are still in business and will invest the resources needed to do so volunt arily. These assumptions are patently incorrect. There is no obligation on the part of manufacturers to develop any meaningful set of broadly applicable good combustion practices or to de termine the set of work practices employed by the best performers in the sector or to dete rmine whether any particular set of work practices approximates the emission performance of the b est performers in a subcategory. Conceivably, an organization like The National Board of B oiler & Pressure Vessel Inspectors might be able to provide a certification/best practices review of any legacy boiler, even if the original manufacturer is no longer in business and individua l sources can retain consulting firms to study the operation of individual boilers and recommend a set of best practices for that boiler. We submit that such a program, that imposes obligations o n relatively clean boilers as well as high emitters, if conducted in a technically sound manner, m ay prove to be more costly overall and provide far less environmental benefit than a defined num erical limit that requires significant emission reductions from gross emitters. CO CEMs are a vailable, relatively inexpensive and used by industry for process control. These devices should be required for all combustion units covered by the major source and CISWI rules. Further, EPA ’s assertion that CO monitoring is infeasible is inconsistent with its proposed reliance on CO optimization for D/F control. EPA now proposes to adopt a similar “work practice” standard for dioxin and furan emissions, again asserting that enforcing a numerical limit is impracti cable, notwithstanding the hundreds of D/F emission tests in the rulemaking record. EPA argues that this is demonstrated by the large number of results that are “non-detect” (“ND”), detect ion level limited (“DLL”) or BDL. First, we note that this problem is of EPA’s creation. EPA kn ew, before testing was to be conducted, that many results would be at or below detection limits if it only required sample periods of one hour per run. Indeed, industry sources specifically raised thi s issue and inquired whether they should extend sample periods to ensure more precise resul ts. EPA’s response was that sources need not do so and that EPA would “address” the issue in i ts rulemaking. Testing for D/F and other pollutants often included detection and quantification limits that are quite high – one source reported a detection limit for mercury that equates to 6.57 l b of mercury emissions per year, 31 while several sources reported D/F detection limits sev eral orders of magnitude larger than the levels of regulatory interest. Further, if the standar d is set at the most common detection limit, plus an appropriate variability factor, no harm is done, since a subsequent emission test that is BDL would not constitute a violation. Retaining such a lim it would not require any change in performance for relatively clean units, but would at leas t require gross emitters to reduce emissions. Developing a meaningful work-practice standard f or controlling D/F emissions is far more difficult and resource intensive than merely reducin g CO levels. According to the Industrial Combustion Coordinated Rulemaking (“ICCR”) study 32 , control of CO levels is not sufficient; one must also examine the interaction of several fact ors in a complex combustion environment. The ICCR study concludes that CO monitoring can help confi rm that current operating conditions are the same as during a D/F emissions test , but are not a direct indicator of low D/F emissions; equivalent dioxin levels can be found at 1 ppm as are found at 4,000 ppm CO levels.A-47

Other factors were found to be more important and, base d on the ICCR workgroup results, meaningful work-practice standards would have to include good co mbustion practices (including total hydrocarbon and CO concentrations, soot formation an d particle entrainment), quench rate, air pollution control device temperature and fuel and waste parameters. 33 Large ICI boilers will have far higher flow rates than medical waste incine rators and so may actually emit a substantial amount of dioxin on an hourly (or certainly annual) basis . . As discussed above, such a task would require significant resources. Indeed, such an effort would likely be more expensive than testing. There is no reason to suspect that manufacturer s would voluntarily do so (even if it could be done) and no authority to require that they invest in such an effort. 34 Some manufacturers may, as a courtesy to their clients, publish “nominal” goo d combustion practices. However, there is no way for federal, state or local enforcement autho rities to require that such practices have any practical impact. The end result would be additional p aperwork demands on sources and permitting authorities and no environmental benefit. EPA’s real argument appears to be that setting D/F limits for these sources is “not worth it ” because emission levels are “small.” If this is the case, EPA should make this argument clearly and s upport it with objective facts. It should, at least, compare daily/annual D/F emissions from medica l waste incinerators (and other source categories) with D/F limits with anticipated D/F emis sions from high emitters to see if those emissions are de minimis. Additionally, EPA should expl ore options to reduce testing burdens for the sector. Potential areas for reduced testing cost s are pooled testing for units of similar designs and reduced testing frequencies for sources whose em issions are below a certain threshold. Additionally EPA could attempt to review operat ing conditions for better performing units to determine whether there are readily discernible o perating conditions (such as maximum boiler temperature, oxygen levels or chlorine content of fuel and designed residence time) where parametric monitoring can be employed in lieu of referen ce testing. EPA might also consider a threshold where, if sources demonstrate very low D/F em ission rates, a one-time test, combined with parametric monitoring might suffice.

[Footnotes: 29 Memorandum, Eddinger, J., USEPA to Docket N o. OAR-2002-0058, February, 2004,” Revised MACT Floor Analysis for the Industrial, Comm ercial, and Institutional Boilers and Process Heaters National Emission Standards for Ha zardous Air Pollutants Based on Public Comments” p.18. 30 NACAA has commented that this represent ation is incorrect. CO emissions’ testing has been conducted for several decades on thousands of different sources. 31 This is roughly equivalent to a quantification limit of more than 60 lb/yr. EPA refers to the quantification limit as the level at which emissions ca n be measured accurately. 32 See, Gullet, B,, USEPA, and Seeker, Randy, EER Corp “Chlorinated Dioxin and Furan Formation, Control and Monitoring”1997. 33 Id, slide 79. 34 It is also likely that t he manufacturers of a large number of boilers are no longer in business.]

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.A-48

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 15

Comment: When a source combusts only one type of fuel at al l times, determining which emission limit to apply is straightforward. However, many sources combust different types of fuels at different times and a substantial number of sourc es combust different mixtures of these fuels at different times. In developing its Model Permit Guidance, 35 NACAA attempted to address this issue by examining test results where only one t ype of fuel is employed to set the recommended range of suggested limits. It was anticipated t hat state and local permitting authorities would then determine the appropriate procedure fo r establishing permit limits on a case-by-case basis, either by applying the limit that was the most stringent at all times, by determining the weighted average of relevant limits or by requiring a compliance demonstration based on full utilization of one fuel. EPA has taken a di fferent approach. It has adopted a “designed to combust” test and a hierarchical scheme for determining the fuel category of a source. 1. If a source generates more than 10 percent of i ts heat from biomass, it is in the biomass category. 2. If it uses less than 10 percent biomass and m ore than 10 percent coal it is in the coal category. 3. If it burns oil, but less than 10 percent co al and less than 10 percent biomass it is in the liquid-fired category. 4. If it burns any amount of gas other than natural gas (Gas 1) it is in the Gas 2 category. EPA has not explained the rationale for this approach, which places many sources in fuel categories other than those that dominat e emissions. This approach also appears to invite “category shopping” and does not seem to address all possible combinations. For example, if a fluidized bed boiler burns 91 percent coal and 9 percent biomass, the proposed CO limits are 56 ppm. If that same boiler combusts 90 percent coal and 10 percent biomass, the proposed CO limits are 370 ppm. This change is far larger tha n what one would expect based on such a small difference in the fuel combusted. In its m ost recent proposals EPA has employed a different approach to the determination of the emission limit to be applied. Whereas, in the 2011 rulemaking any test result where the source was combusting more than 10 percent coal was used in determining the MACT floor for the coal subcategori es, in its most recent calculation of MACT floors EPA only used data from tests where the so urce was burning 90 percent or more coal during the test for existing sources and 100 percent coal for new sources. We believe that a 90-percent threshold is appropriate for the definition of t his subcategory and appropriate for establishing a limit for “coal-fired” units, but see no rea son to have a higher threshold for new units. Having done so, however, EPA needs to revise its de finition of the subcategory to be consistent with its approach in setting standards. EPA m ay not exclude results from testing of clean sources within the subcategory. We recommend that fuel-based subcategory limits and subcategory definitions each be based on a minimum (e.g., 85 -95 percent) usage of the fuel type and that EPA devise an approach for establishing emission li mits for units that burn mixed fuels in lesser amounts. [Footnote: 35 See http://www.4cleanair.org/Documents/RHAP.pdf.]

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers andA-49

Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 18

Comment: NACAA has long supported the general notion of outp ut-based standards as a way to encourage energy efficiency and mitigate emissions of a ir pollutants. However, unlike the EGU sector, determining energy efficiency improvements from a variety of industrial processes is a complex task that EPA has not yet addres sed. Moreover, EPA has not developed the MACT floors using net output-based data and is not prop osing to promulgate mandatory output-based MACT limits. Rather, it has converted the results of MACT data for sources selected as best performing units on an input-basis and propos es to offer sources the option of complying with either the input-based limits or the conve rted limits. In addition, the uncertainties associated with past and future determinations of the unit’ s net heat rate are larger than potential efficiency gains that may result from adoption of output-b ased standards for existing units using common factors. NACAA believes that the most signific ant effect of offering existing sources the option of output-based standards based on a pre-deter mined conversion factor will be a reduction in the effectiveness of the rule, rather th an any measureable improvement in efficiency of existing or new sources. For existing units, the princi pal effect of an “optional” output-based standard would be to establish a class of “winners” that quali fy for lower emission rates based on their currently existing condition, rather than providin g an incentive to reduce emissions. Since facilities with low efficiencies (high heat rates) ma y elect to comply with the input-based limit, the only “losers” in this process are the members of t he public who are subjected to higher emissions of HAPs than would otherwise be the case. F or this reason EPA should not allow an output-based standard as an option for existing sources to employ, but should set standards based on net output emissions data. This could be accomplished at the next review of the standard, as required by the CAA every eight years and discussed below . Opportunities for improvement in the heat rate of existing sources are relatively small. In addition, many efficiency improvement options, such as soot removal, are not permanent and re quire ongoing maintenance to sustain improved performance. Before proceeding in this area EPA s hould develop a record that would enable accurate measurement and determination of sustainabl e efficiency improvements. The record in this rulemaking is not sufficient to establish such procedures.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA )A-50

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 25

Comment: NACAA recommends that the frequency of mandated tune ups be based on objective data concerning decay of performance after a tune up.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 26

Comment: NACAA agrees with the industry suggestion and EPA proposal that sources be allowed 30 days to make the adjustments in order to allow for mu ltiple adjustments to optimize CO emissions.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 27

Comment: NACAA agrees with the suggestion that, where bur ner inspection is impossible without destroying the unit, it should not occur. In such instance s, however, the source should conduct CO monitoring to determine whether the burner has de teriorated to the point that it should be replaced. We do not believe that burner inspec tions should be waived where they are merely “difficult” as this term is unenforceable. We sugge st that such sources be allowed to determine CO baseline emissions after a tune up and thereaf ter substitute CO testing in lieu of inspection if they prefer.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards forA-51

Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 28

Comment: NACAA notes that EPA’s rationale for the establ ishment of a non-continental liquid subcategory (without emission data for each pollutant) i s undercut by the use of continental liquid data for missing pollutant data.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 29

Comment: NACAA agrees that sources may employ automated fuel-s ampling equipment, but notes that the 90th percentile compliance obligation is inconsistent with EPA’s determination that MACT floors must be set at a 99th percentile level

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Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 30

Comment: EPA has solicited comment on an industry proposal to allow units that switch to natural gas as a compliance option to average emissions with si milar units that do not switch to natural gas. NACAA does not see how this concept could be authorized under the Act.A-52

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 31

Comment: EPA has requested comment on a stakeholder propo sal that EPA consider creating a subcategory for units that are installed and used in place of flares that are currently used to combust process gases. The stakeholders also suggested th at it would be appropriate to assume that the emissions from process ga ses diverted from flares to boilers have ‘‘zero emissions’’ for the purposes of classifying the bo iler in which they are combusted. Since the process gases must be combusted in either event, th ey requested that the EPA develop an approach where it uses a concept similar to the emissio ns averaging provisions, for example, to simply assume that combustion of such process gases in a boiler rather than a flare should not be counted as emissions from the boiler because there is no net increase in emissions. NACAA supports the use of well-controlled closed combustion device s in lieu of open. However, it appears that such devices would be governed by Gas 2 limits. E PA provides an exemption for combustion devices used as pollution control devices where 50 percent of the heat value of the device is provided by the exhaust stream that is being control led. The stakeholder proposal would effectively remove the 50-percent limit. NACAA beli eves this is excessive and would substantially eliminate HAP emission reductions in the Ga s 2 category.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 35

Comment: EPA has solicited comment on the use of continuou s Hg monitors rather than fuel testing. NACAA supports this proposal; as discussed herein fuel sampl ing is insufficiently precise to monitor compliance at appropriate emission le vels.A-53

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 36

Comment: NACAA is supportive of EPA efforts to afford ma ximum flexibility to affected sources in demonstrating compliance, in order to allow lowest cost emission reductions and the best use of limited state and local resources. We agree that properly functioning SO 2 controls will also reduce HCl emissions and so chlorine levels ca n be correlated with HCl emissions in such units and in such instances. Sources with existing SO 2 monitors should not have to install separate HCl monitors. However, low sulfur concentrati on in fuels does not guarantee low chlorine levels in those fuels, especially in biomass fuel s. NACAA does not support the use of continuous SO 2 monitors as a surrogate for HCl monitoring in units that d o not have active SO 2 controls.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 37

Comment: EPA has proposed MACT floors for CO emissions f rom three subcategories that are either at, or very close to, the sole test result for the subcategory, effectively providing no allowance for in-use variation in performance. No reason is offered for EPA’s decision and we assume that some correction will be m ade.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.A-54

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 38

Comment: EPA has not proposed a TSM alternative “because of t he limited emission test data for TSM and the large variability in the TSM data for these subcategories. Using the EPA’s maximum achievable control technology (MACT) floor meth odology, the alternative TSM limits resulted in MACT floor values which do not appear to repres ent the actual performance of the best performing units.” NACAA agrees with EPA’s recommenda tion and the rationale for not proposing such limits. While EPA has sent follow-on inqu iries to some sources for additional data, there is insufficient opportunity to meaningfully revi ew and comment on any data that may be provided at this time.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and Industry Document Control Number: EPA-HQ-OAR-2003-0119-2627-A2 Comment Excerpt Number: 3

Comment: A number of our members have expressed support for the creation of the seasonally-operated boiler subcategory, which, like many of the changes, will reduce requirements on boilers that operate infrequently or other wise are likely to be insubstantial sources of HAPs. However, EPA proposes that seasonal boilers would include boilers that undergo “a shutdown for a period of at least 7 consecutive m onths (or 210 consecutive days) due to seasonal market conditions.” Seasonal changes affect differing parts of the US. The seven month shutdown period benefits only facilities in the so uthern part of the country. The definition should be based upon differing regional climate conditions to allow for northern seasonal variances or shortened to five month shutdown criteri a.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and IndustryA-55

Document Control Number: EPA-HQ-OAR-2003-0119-2627-A2 Comment Excerpt Number: 5

Comment: EPA should clarify that required energy assessme nts are limited to the regulated boiler/unit, and are not applicable to the entire facilit y.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and Industry Document Control Number: EPA-HQ-OAR-2003-0119-2627-A2 Comment Excerpt Number: 7

Comment: EPA requested comments on whether to include the use of specific fuels during shutdown and startup periods. We also oppose this provision a s a standard requirement, since it would be impractical to implement in many occasions.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and Industry Document Control Number: EPA-HQ-OAR-2003-0119-2627-A2 Comment Excerpt Number: 8

Comment: The Pennsylvania Chamber supports EPA’s proposal to extend by 365 days the compliance date of the initial tune-up for new and reconstr ucted sources. However, we urge EPA to harmonize this extension with the definition of new/reconstructed sources by resetting the proposal date for defining such sources from June 2010 to t he re-proposal date of December 2011. This will allow more reasonable lead time for cover ed sources to factor changes reflecting those revisions into construction plans.

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers andA-56

Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there. However, to th e extent their comment concerns CISWI, see the response to EPA-HQ-OAR-2003-0119-2602-A1, excerpt 2.

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA-HQ-OAR-2003-0119-2630-A2 Comment Excerpt Number: 2

Comment: The American Lung Association is troubled by the EPA’s continued reliance on work practice standards, particularly as they would be the sole means of reducing toxic emissions for 13 percent of boilers and heaters and for dioxins and furans. Although Section 112(h) of the Clean Air Act permits EPA to establish work practice standards as an option for reducing emissions, the Act intentionally limits their use, with explicit instructions that these are to be used only if it is infeasible to prescribe or enforce emission st andards and further requires that any work practice standards be consistent with actual emission standards that EPA would set under § 112(d) if it were feasible to do so. Here, EPA has not shown and cannot show that it is infeasible to set emission standards for boilers, and the work practice standards it issued are not consistent with § 112(d). Rather, EPA has merely used work practice standards as an excuse to rationalize allowing industry to keep doing the same thing t hey currently do as being consistent with setting emissions standards on 195,000 boilers. In the prior final rule issued March 21, 2011, and in this proposed rule, the EPA argues against measuring emissions in these boilers from the stacks and justifies the use of work practice standards as the only remaining option. Even if the EPA could demonstrate that the Agency could n ot set emission standards for boilers, the Agency misses the opportunity to take one of the othe r options available under Section 112(h): that is, to “promulgate a design, equipment,” or “operational standard” that might ensure that these toxic emissions are reduced. Requiring the adopt ion of equipment that is in use in the lowest emitting facilities would be much more likely t o reduce exposure than just ordering a periodic “tune up.” Instead, the EPA argues that “tuned up” boi lers will suffice to address toxic emissions from 195,000 boilers (EPA, 2011d). We support fully enc ouraging plants to follow the manufacturer’s instructions for preventing emissions fr om getting worse, but that is not the same as reducing already harmful emissions. Unfortunately, th e proposed rule does not seek to improve work practice standards or to assess whether th ey effectively reduce toxic air emissions from those facilities. It is hard to imagine that emis sions standards cannot be successfully incorporated that would actually reduce emissions from one in eight boilers. The removal of emissions limits for dioxins and furans is especially tro ubling. Contrary to EPA’s claim dioxin emissions can be measured and are being measured. But even if dioxins could not be accurately measured using the required test measurement, the EPA shou ld set design or equipment requirements to accomplish the task, as is authorized i n the same list as work practice standards in Section 112(h). The EPA should not simply default to “an annual tune up” (EPA, 2011d). We support steps to improve work practices to ensure emissions do not increase. However, that is not enough. Work practice standards do not reflect measures that yield the maximum achievable degree of reduction in these pollutants nor, at a minimum, reflect the measures adopted by facilities with the lowest emission levels. If EPA were to set work practice standards, it would have to require the use of these technologies at a minimu m. Moreover, the proposed rule provides no means to enforce compliance with even these limited requirements.A-57

Work Practice Standards for Startup and Shutdown . We welcome the decision to address the startup and shutdown periods and ensure that boiler operators are trained in startup and shutdown procedures, particularly in procedures to minimize emissions . However, the proposal relies only on work practice standards during the startup and shutdown phase s while not establishing numeric emission limits or other performance metrics f or units for those phases. As suggested in the proposed reconsideration, we would support requiring the use of specific fuels during the startup and shutdown phases that would reduce harmful air emi ssions in the absence of emissions standards (EPA, 2011d).

Response: The commenter primarily discussed issues that are be ing dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heate rs and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Co mmercial, and Institutional Boilers and Process Heaters. To the extent that the commenter h as provided these comments to that rulemaking, they will be addressed there.



### 1E. Boiler Area Source

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA ) Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1 Comment Excerpt Number: 22

Comment: EPA has requested public comment on whether t he compliance date for boiler tuneups for area sources should be extended to March 2013, as EPA is currently proposing, or if the compliance date should be extended to March 2014. To be consi stent with the initial compliance date for boiler tune-ups at major sources, EP A should extended the compliance date for area sources to March 2014. Although the tune-up requirement s do not appear overly burdensome, affected sources will still need sufficient time to determine what needs to be included in the tuneup protocol, when to schedule the initial tune-up, and to develop the reporting protocol that needs to be submitted to EPA or to the delegated state or local agency. Further, there appears to be no reason why the smaller a rea sources should not have the full three years to comply that is currently afforded to major sourc es. Extending the compliance date for tune-ups would also allow extra time for states to identif y and provide outreach and compliance assistance to area source facilities. This assistance is very important, because many of these sources have had little prior experience in understanding and complying with complex air regulations. EPA is not providing states additional funding to implement these new standards. Having sufficient time before the compliance deadline to assistance affected area sources will help ease the implementation burden for states and wil l almost certainly minimize violations after the compliance date.

Response: This comment deals primarily with the Identification of Non-Hazardous Secondary Materials That Are Solid Waste and the National Emiss ion Standards for Hazardous AirA-58

Pollutants for Area Sources: Industrial, Commercial, a nd Institutional Boilers. These comments will be addressed within those rulemakings.



### 1Z. Other

Commenter Name: Roger Martella Commenter Affiliation: National Alliance of Forest Owners (NAFO) Document Control Number: EPA-HQ-OAR-2003-0119-2595-A1 Comment Excerpt Number: 1

Comment: 4I. Forest Biomass Is a Valuable Renewable Energy Supply and Is an Essential Part of Our National Energy Policy

A. Forest biomass is an important renewable fuel source leading to lower GHG lifecycle emissions than conventional fuels Wood from sustainably managed forests provides a renewable, low-carbon alternative to fossil fuels. Acco rding to U.S. Energy Information Administration (“EIA”) data, biomass already supplies more than 50% of the nation’s renewable
energy. 2 Forests can provide ample sustainable, domestic supplies of biomass to produce liquid transportation fuels, electricity, thermal energy (he at and power for manufacturing and other industrial uses), and synthetic natural gas. 3 When evaluating the GHG emissions associated with fuels, a lifecycle analysis incorporates all steps in a “product system” to evaluate broader environmental impacts of products and processes. Using forest biomass as a renewable fuel source has significant carbon benefits because its lif ecycle GHG emissions are more favorable than those of petroleum and other fossil fuels. For exa mple, the Department of Energy (“DOE”) estimates that “[c]ellulosic ethanol use could reduce GH Gs by as much as 86%.” 4 In addition, EPA has determined, in conjunction with its Renewable Fuel Standard Program, that the lifecycle GHG emissions reductions associated with cell ulosic ethanol may be as much as 92.7 percent. 5 Lifecycle analyses of biomass feedstocks used for elec tricity generation have produced similar results. 6 In addition to reducing GHG emissions through the displace ment of fossil fuel, biomass energy can provide additional climate benefits. F or example, combusting biomass for energy can avoid emissions of other biogenic GHGs (such as methane) that would result from alternative disposal fates of biomass residues and repl ace them with lower potency CO 2 emissions from energy production. 7 Thus the prevailing science – in both the public and private sectors – acknowledges the significant carbon benefits of energy produced using renewable biomass from managed forests.

B. The combustion of forest biomass is part of the o ngoing carbon cycle The prevailing view in the science community is that, when forests are mana ged sustainably, CO 2 emissions from forest biomass are part of the natural carbon cycle and are ba lanced by carbon sequestration as forests grow. In other words the carbon that enters the atmosph ere when forest biomass is combusted was previously absorbed from the atmosphere by the forest biomass and will be reabsorbed when new biomass is grown. As EPA has concluded, there is “[ s]cientific consensus . . . that the CO 2 emitted from burning biomass will not increase total atmos pheric CO 2 if this consumption isA-59

done on a sustainable basis.” 8 Recognizing that CO 2 emissions from biomass combustion are inextricably tied to the forests where biomass is grown, EPA follows international convention and does not include emissions from biomass combustion in its national emissions totals. 9 Instead, EPA accounts for CO 2 emissions from biomass combustion by measuring changes in forest carbon stocks over time, recognizing that there is no net climate impact as long as forest carbon stocks are stable or increasing. 10 Similarly, DOE’s Voluntary Reporting of Greenhouse Gases Program, authorized by Section 1605(b) of the Energy Policy Act of 1992, provides for exclusion emissions from the combustion of biomass f uels. 11 More recently, EPA has affirmed the climate benefits of biomass energy combustion when compared to fossil fuels by reconsidering its treatment of biogenic CO 2 emissions under the Prevention of Significant Deterioration (“PSD”) and Title V Programs. 12 Recognizing that imposing regulatory burdens on the biomass energy sector would discourage development of this important renewable fuel supply, EPA has deferred regulation of CO 2 emissions from stationary sources – including boilers and incinerator units – for three years while it seeks to identify a method to quantify the climate benefits offered by biomass energy. 13 EPA has also convened a Biogenic Carbon Emissions Panel under the auspices of the Science Advis ory Board to provide advice and recommendations as EPA completes the reconsideration process. 14 EPA has consistently recognized the climate benefits of biomass energy and is committed to a regulatory approach that rewards bioenergy facilities for the climate benefits that they provide in relation to fossil fuel facilities. EPA must ensure that the treatment of biom ass boilers and incinerators under these proposed rules is consistent with its overarching regulato ry approach.

C. The promotion of renewable energy is a national policy that EPA must follow As described above, forests and forest products can play an importan t role in reducing and managing GHG emissions. Expanding the sources of renewable energy is a central feature of both national and international policy to reduce reliance on fossil fuels . EPA, in considering approaches toward addressing climate change, has long recognized that responsibly managed forests are considered one of five key “groups of strategies that could substantiall y reduce emissions between now and 2030.” 15 Similarly, the United Nation’s Intergovernmental Panel on Climate Change (“IPCC”) report on mitigation technologies highlights forest managem ent as a primary tool to reduce GHG emissions. 16 In fact EIA projects that biomass energy will account for 30% of the growth in electricity produced by renewable fuels between now and 2035. 17 President Obama has repeatedly emphasized that renewable energy derived from feedstocks such as forest biomass hold the key to transitioning the nation to a “sustainable, low carbon energy future.” 18 Recognizing the benefits of all types of biomass, he recen tly stated that “another substitute for oil that hold tremendous promise is renewable biomass – not just ethanol, but biofuels made from things like switchgrass and wood chips and biomass.” 19 And in last month’s State of the Union Address the President advocated an “all-out, all-of-the-a bove strategy that develops every available source of American energy,” specifically refe rencing a “clean energy standard” that would encourage the development of clean renewable energy including biomass. 20 With Presidential endorsement, if not direction, of nationa l renewable energy policy and the role of biomass in that policy, EPA must conduct its programs in manner consistent with that policy. In light of this policy, EPA must avoid mandatory environmenta l controls, such as those included in the existing Major Source, CISWI, and NHSM rules, that will require large expenditures of time and resources by industry, but are not necessary to protect human health and the environment. Similarly, to act consistently with the nation’s renew able energy policy, EPA must not imposeA-60

restrictions on biomass boilers and incinerator units that are not legally required and will disadvantage the use of biomass as a fuel source. The pro posed rules are a significant step in correcting the errors of the existing rules and conformi ng them to the administration’s policies. Still the proposed rules do not go far enough and, as explai ned below, there are several ways in which the proposed rules can be altered to ensure consiste ncy with the administration’s policies and the legal requirements of the Clean Air Act.

[Footnotes:

2 See , EIA, Annual Energy Review (Oct. 19, 2011), available at http://www.eia.gov/totalenergy/data/annual/showtext.cfm?t =ptb1001

.
3See NAFO, Carbon Neutrality of Energy from Forest Bi omass, available at http://nafoalliance.org/carbon-neutrality-of-energy-fro m-forest-biomass/

.
4Department of Energy, Ethanol Benefits, available at http://www.afdc.energy.gov/afdc/ethanol/benefits.html ( last visited Jan. 30, 2012).

5 See EPA, DPA420-D-06-008, Renewable Fuel Standard Program: Draft Regulatory Impact Analysis at 191 (Sept. 2006).

6Cherubini , et al

., Energy- and greenhouse gas-based LCA of biofuel and bioenergy systems: Key issues, ranges and recommendations , Resources, Conservation and Recycling 535: 434-447 (2009) (90-95% emissions reductions relative to fossil fuel syst ems); Zhang, et al ., Life cycle emissions and cost of producing electricity from coal, n atural gas, and wood pellets in Ontario, Canada, Environmental Science and Technology 44(1): 538-544 (2010) ( 91% and 78% emissions reductions relative to coal and natural gas sys tems); Raymer, A.K.P., A comparison of avoided greenhouse gas emissions when using different kinds o f wood energy, Biomass and Bioenergy 30: 605-617 (2006) (81-89% emissions reductions relative to f ossil fuel alternatives).

7Gregory Morris, Bioenergy and Greenhouse Gases (Pacific Institute, 2008), available at http://www.pacinst.org/reports/Bioenergy_and_Greenhouse_Gases /Bioenergy_and_Greenhouse_ Gases.pdf

.
8Environmental Protection Agency Combined Heat and Power Part nership, Biomass Combined Heat and Power Catalog of Technologies , 96 (Sept. 2007), available at http://www.epa.gov/chp/documents/biomass_chp_catalog.pdf

.
9EPA, Inventory of U.S. Greenhouse Gas Emissions and S inks: 1990-2009 3-59 (April 15, 2011).

10 Id. Chapter 7.

11See DOE, Technical Guidelines: Voluntary Reporting of G reenhouse Gases (1605(b)) Program (January 2007) at 77 (“Reporters that operate vehicle s using pure biofuels within their entity should not add the carbon dioxide emissions from those fuels to their inventory of mobileA-61

source emissions because such emissions are considered bi ogenic and the recycling of carbon is not credited elsewhere.”).

12Letter from Gina McCarthy to Roger Martella (Jan. 12, 2011) granting NAFO’s Petition for Reconsideration, available at http://www.epa.gov/nsr/ghgdocs/McCarthytoMartella.pdf

.
13Deferral for CO2 Emissions From Bioenergy and Other Bi ogenic Sources Under the Prevention of Significant Deterioration (PSD) and Tit le V Programs, 76 Fed. Reg. 43,490 (July 20, 2011).

14See generally EPA, Carbon Dioxide Accounting for Emissi ons from Biogenic Sources, http://yosemite.epa.gov/sab/SABPRODUCT.NSF/81e39f4c09954fcb85256ead006 be86e/2f9b57 2c712ac 52e8525783100704886!OpenDocument (last visited Jan. 31, 2012).

15Regulating Greenhouse Gas Emissions Under the CAA, 73 Fed. Reg. 44,354, 44,405 (July 30, 2008).

16 Id. at 44,405-06; see also, NAFO, Carbon Mitigation Benefits of Working Forests (identifying trading platforms and registries that recognize forest m anagement), available at http://nafoalliance.org/mitigationbenefits-working-forest s/

.
17EIA, Annual Energy Outlook 2012 Early Release Overview 7, av ailable at http://www.eia.gov/forecasts/aeo/er/pdf/0383er(2012).pdf.

18Letter from President Barack Obama to Governors John H oeven and Chet Culver (May 27, 2009), available at http://www.governorsbiofuelscoalition.org/assets/files/ President%20Obama’s@20Response5- 27-09.pdf;see also President Barack Obama, Memorandum for th e Secretary of Agriculture, the Secretary of Energy, and the Administrator of the Envir onmental Protection Agency, 74 Fed. Reg. 21,531-32 (May 5, 2009).

19 President Barack Obama, Remarks by the President on Am erica’s Energy Security, March 30, 2011,available at http://www.whitehouse.gov/the-press-office/2011/03/30/remarks-pres identamericas-energysecurity

.
20President Barack Obama, Remarks by the President in State of the Union Address , January 24, 2012, available at http://www.whitehouse.gov/the-press-office/2012/01/24/remarks-pres identstate-unionaddress.

Response: EPA thanks the commenter for their input. For the purpos es of this rulemaking this comment is out of scope.

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA-HQ-OAR-2003-0119-2630-A2 Comment Excerpt Number: 1A-62

Comment: We agree with the strong evidence the EPA provides to suppor t their decision that action under Section 112 of the Clean Air Act is both appro priate and necessary to protect public health. The Clean Air Act requires that the EPA review and revise standards to see if they adequately protect public health from new sources of pollutio n and from hazardous air pollutants. Industrial, commercial, and institutional boi lers and incinerators represent sources of such emissions that must be addressed under the law. It i s long past time.

The Public Needs Protection from Toxic Air Pollution The EPA estimates that 1.5 million boilers and 95 solid waste incinerators are in use throughou t the United States (EPA, 2011b; EPA, 2011c). Boilers and process heaters comprise some of the most common industrial equipment, but they also provide heat and power to commerci al buildings and institutions, such as churches, colleges and hospitals. Because boilers ar e so widely used, their toxic emissions can threaten local communities, especially lower income o r minority communities that are often located closer to the larger industrial sources. Cleaning up t hese toxic emissions will provide substantial health benefits. The EPA’s analysis estima tes the health benefits each year beginning in 2015, which includes the prevention of up to 8,100 premature deat hs, the avoidance of 5,100 nonfatal heart attacks and the prevention of 52,000 asthma at tacks (EPA, 2011b). In fact, these estimates undercount the total benefits. Studies that wo uld enable researchers to quantify many health endpoints affected by these toxics were not avail able for modeling. For example, critical, real benefits such as reductions in the number of infants born with low birthweight or impaired cognitive development were not included in the projections. However, the benefits to public health that can be estimated alone provide powerful support to require facilities to meet the strongest possible limits on these toxic emissions. Th e evidence shows that the strongest possible limits on the emissions of these toxics are both approp riate and necessary.

Millions of people face higher risk Many face greater risk because of their age, health conditions, or rate of exposure to the pollutants. They include: infants, children and teenagers; older adults; pregnant women; people with asthma and other lung diseases; people with cardiovascular diseases; diabetics; people with low i ncomes; and people who work or exercise outdoors (EPA 1997, 2009b). The discussion below highlights spe cial concerns for several of these groups.

Children face quite different risks from air pollutants than adul ts. The lungs and their alveoli are not fully grown until children become adults (Dietert e t al., 2000). Biological defenses that help adults fight off infections are still developing in young b odies (WHO, 2005). Furthermore, children don’t behave like adults, and their behavior also affects their vulnerability. They are outside for longer periods and are usually more active when outdoors. Consequently, they inhale more polluted outdoor air than adults typically do (AAP, 2004). Toxic substances may put children more at risk than adults. For example, the Cal ifornia Environmental Protection Agency explored improved methodologies to determine susceptibilit y to carcinogens in utero and childhood after finding in 2001 that the existing approaches di d not adequately reflect the risks to children. Their subsequent research found that the children generally display greater sensitivity to environmental carcinogens than did adults (CalEPA, 2009).

People with chronic diseases , including cardiovascular diseases, respiratory disea ses and diabetes, face higher risk regardless of age. Their dise ases make them at much higher risk forA-63

harm. Current estimates include these groups: ( Asthma - 24. 6 million people, including 7.0 million under age 18 (American Lung Association, 2011)

• Cardiovascular diseases – 82.6 million people (Roger et a l., 2011) ( Diabetes – 25.8 million people (CDC, 2011) As adults age, their body’s physiologica l process declines naturally, placing even healthy older adults at risk from airborne pollutants. In addition, many older adults also have one or more chronic diseases that increase thei r susceptibility (EPA, 2009b).

Toxic Air Pollution Disproportionately Threatens Many Commun ities Communities of color and poorer people also appear to face higher risk, unders coring the need to properly assess this margin of safety. Research indicates that minor ities live in greater concentrations both in areas that do not meet federal air quality standards and i n areas with above average numbers of air-polluting facilities (NAS, 1999). Both African Americans and Hispanics have been found to be more likely than Caucasians to live in areas with hi gh levels of air toxics (Morello-Frosch and Lopez, 2006).

• A study in Maryland found that the risk of cancer related to air toxics was greatest in areas with the largest African American population proportions and lowest among those with the smallest African American population proportions. In add ition, the estimated cancer risk decreased for every 10 percent increase in the percentage of Caucasians living in an area. Having a low income also increased the risk among African Ame ricans more so than among Caucasians (Apelberg BJ et al., 2005).

• In Houston, Houston is home to one of the world’s la rgest petrochemical complexes, researchers found that the risk of cancer in an area inc reased along with the proportion of the population that was Hispanic and as measures of social di sadvantage increased (Linder et al., 2008).

Socioeconomic position has been more consistently associated with gr eater harm from air pollution. Recent studies show evidence of that link. Low socioeconomic status consistently increased the risk of premature death from fine particle pol lution among 13.2 million Medicare recipients studied in the largest examination of mortality associated with particulate matter levels nationwide (Zeger et al., 2008).

Response: EPA thanks the commenter for their input. For the purpos es of this rulemaking this comment is out of scope.

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA-HQ-OAR-2003-0119-2630-A2 Comment Excerpt Number: 6

Comment: Hazardous Air Pollutants from Boilers and Incine rators Cause Wide-ranging Health Harm During the process of burning coal, oil, and biomass, boile rs and incinerators emit highly toxic chemicals that threaten human health through the air we breathe, the water we drink, and the food we eat. These hazardous air pollutants that harm human health include:A-64

corrosive substances (acid gases, such as hydrogen chloride); carcinogens (formaldehyde, benzene, toluene, and other compounds); organic carbon-based toxics (formaldehyde, dioxins, furans); metals (such as arsenic, nickel, and beryllium); a nd neurotoxins (such as mercury and lead) (EPA 2007; ATSDR 2011a). They also include criteria air pollutants: sulfur dioxide, carbon monoxide, and fine particulate matter. Some hazar dous pollutants, such as acid gases, mercury, and sulfur dioxide, have immediate impacts on peo ple, neighborhoods, and towns located near boilers or incinerators. However, other p ollutants, such as dioxins and metals, can travel much farther from the pollution source. When the y adhere to fine particles, these pollutants can remain in the air for more than a week a nd be carried away by winds to distant locations. This makes toxic air pollution dangerous to public health and human health near and far from these sources (EPA, 2009b). The discussion below summarizes the evidence that these toxics pose serious threats to health and must be reduced.

Carbon Monoxide Carbon Monoxide is a colorless, odorless, nonirritatin g gas that occurs in outdoor and indoor air through both natural and human-made s ources (ATSDR, 2009). Exposure to moderate or high levels of this gas can be fatal by causi ng severe damage to the heart and/or brain (ATSDR, 2009). Breathing high levels may cause a misca rriage for women who are pregnant, and exposure to lower levels can cause permanent damage to the mental development of the fetus (ATSDR, 2009). Dioxins and Furans (Example: 2,3,7,8-tetrachlorodibenzo-pdioxin, known as TCDD) Dioxins and furans are a family of toxic chemicals that pr imarily arise from the burning of fossil fuels, such as coal, and exist in the atmosphere both as a gas and particles. (Oh et al., 2001). As particles, they may rema in airborne for more than ten days, spreading widely from their source, and depositing in wate r and soil (Atkinson, 1991). Dioxins have been found in the U.S. food supply; in 2002-2003, the U.S. Department of Agriculture found dioxin-like substances in meat and poultry (Hoffman e t al., 2006). Researchers have found dioxins in the breast milk of nursing mothers (Lorber and Phillips, 2002). Short-term exposures can cause liver damage and skin lesions, while long-term ex posures can harm the immune system, the developing nervous system, the reproductive s ystem, and disrupt hormone function. One form of dioxin—2,3,7,8-Tetrachlorodibenzo- p -dioxin, or TCDD—is recognized as a known human carcinogen. (NTP 2011). (WHO, 2010, 2011; ATSDR, 1994, 1998a, 2000b). Researchers are currently exploring the potential for dioxins to act as endocrine disrupters, by mimicking natural hormones in the body and altering their normal function (Casals-Casas and Desvergne, 2011). Last year, the World Health Organization concluded tha t the developing fetus and the newborn child were the most vulnerable to dioxin and furan exposure because of the rapid growth of their organ systems (WHO, 2010).

Mercury (Including Methylmercury) Mercury is a primary metal emitted from coal-fired boilers and incinerators . Mercury emissions occur in th ree forms: as a vaporous gas of elemental mercury; oxidized, and bound with particles. Elemental mer cury stays airborne, resulting in widespread distribution. Oxidized and particle-bound mercury de posit nearer to the sources. Once released to the atmosphere, mercury returns to the earth in rain or snowfall, and pollutes waterways and the wildlife in them (EPA, 2011) Microorganis ms convert mercury into methylmercury, a highly toxic form of mercury that bioaccum ulates in fish and shellfish (ATSDR, 1999b; Grandjean, 2010). Although a person can be expose d to mercury through breathing contaminated air or through skin contact, methylm ercury is most easily absorbed by eating contaminated food, especially fish or shellfish. The long-term, low-level exposure toA-65

methylmercury that results from the regular consumption of contaminated fish is a primary health concern (EPA, 1997). Eating foods containing methylme rcury can expose the brains of adults, children and developing fetus to harm. Critical perio ds are during pregnancy and in the early months after children are born (ATSDR 1999b). Mercury exposure can lead to developmental birth defects and interfere with neurologi cal development (Bose-O’Reilly et al., 2010). Pregnant women who consume fish and shellfish can transmit that methylmercury to their developing fetuses, and infants can ingest methylmercury in breast milk. Children can also become exposed by eating contaminated fish (ATSDR 1999). Each year, more than 300,000 children born in the US have levels of mercury in thei r blood high enough to impair performance on brain development test and permanently affect intel ligence (Trasande et al., 2005; Axelrad et al., 2007). Mercury can damage the kidneys, liver, brain, a nd nervous system as a potent neurotoxin, even in adults (ATSDR, 1999b, 2011a; WHO, 2011). A rec ent study has also found that methylmercury exposure may lessen the cardiovascul ar benefits of regular fish consumption (Domingo, 2007).

Fine Particulate Matter (PM2.5) Reductions in sulfur dioxide and nitrogen oxides through the final boiler and incinerator standards would provide a crucial collateral benefit: reduction in secondary fine particulate matter. Sulfates formed from sulfur dioxide comprise the majority of fine particulate matter in much of the United States, es pecially in the summer months. Nitrates from nitrogen oxides are also a major source of fine part iculate matter in the fall, winter and spring (EPA, 2011). PM2.5 is made up of microscopic particles, including aerosols, that can bypass the body’s natural defenses and lodge deep within the l ungs (EPA, 2004, 2009). Fine particles elevate risk of heart attacks and strokes (Domi nici et al., 2002; Hong et al., 2002; Franklin et al., 2007; D’Ippoliti et al., 2003; Miller et al., 2007); stunt lung function and development (Gauderman et al., 2002; Gauderman et al., 2004); infl ame and damage lung tissue and airways (Ghio et al., 2000; Churg et al., 2003); increase ho spital visits for respiratory and cardiovascular problems (Dominici et al., 2006; Tsai et al., 2003); and aggravate asthma attacks (Lin M et al., 2002; Norris et al., 1999; Tolbert et al., 2000; Slaughter et al., 2003; Lin S et al., 2002). The evidence shows that PM 2.5 causes cardiovascular harm and is likely to cause respiratory harm. More seriously, PM2.5 can cause premat ure death from lung cancer and cardiovascular effects and is likely to cause death fro m respiratory effects as well (Pope et al., 2002; Pope et al., 2004). The most vulnerable populations, includi ng children, teens, senior citizens, people with low incomes and people with chronic lung disease, such as asthma, chronic bronchitis, and emphysema, are at risk of being sickened by fine particulate matter. People with diabetes, heart disease, high blood pressure, coronary ar tery disease, and congestive heart failure, are also at risk (EPA, 2004, 2009). The evidence suggests that l ong-term exposure to PM2.5causes reproductive and developmental effects as well as cancer, mutagenicity and genotoxicity (EPA, 2009).

Non-Mercury Metals Non-mercury metals and metal-like substances (e.g. ars enic and selenium) comprise a significant part of fine particulate matter (PM2.5) emitted from boilers and incinerators. These primary particles come in addition t o the secondary particles formed as a result of chemical reactions in sulfur dioxide and nitro gen oxide emissions. Those secondary particles, notably sulfates and nitrates, pose similar life-threatening risks. Inhaled particles deposit along the respiratory tract or penetrate deeply into the gas-exchange region of the lung. The EPA has already concluded that exposure to fine parti culate matter (PM2.5) causesA-66

cardiovascular effects and premature mortality and is likely to cause respiratory harm. They concluded that the evidence suggests that long-term exposure t o PM2.5 causes reproductive and developmental effects as well as cancer, mutagenicity a nd genotoxicity (EPA, 2009). The risks of cardiovascular harm include acute myocardial infarcti on, congestive heart failure, cardiac arrhythmias and strokes. Risks of respiratory harm include coughing, wheezing, difficulty breathing, asthma exacerbations, and increased hospitaliza tion for chronic obstructive pulmonary disease (COPD) (EPA 2009). Evidence has also grown to warn that long-term exposure to PM 2.5 can increase the risk of low birth weight and infant mortality, as well as cancer, especially lung cancer (EPA, 2009). The level of toxicity of fine part icles varies and is likely impacted by the presence of metals or other pollutants (Bell et al ., 2007). Metals interact with particles to
create

― reactive oxygen species ‖ which limit the body’s ability to repair damage to its ce lls and contribute to tissue inflammation (Carter et al., 1997; Gur gueira et al., 2002; Wilson et al., 2002). Research has shown that sulfate, selenium, iron, nitr ate, and organic carbon affect immune cell response and heart variability (Huang et al., 2003; Chuang et al., 2007). Elevated presence of chromium, lead, and other metals in PM has been associ ated with greater effects on hospital admissions for cardiovascular disease, according to a st udy of Medicare recipients in 26 communities (Zanobetti et al., 2009). Zanobetti et al. f ound that admissions for heart attacks were higher where the PM was enriched in arsenic, chro mium, manganese, nickel, and organic carbon. The same study found that high levels of arsenic, organic carbon, and sulfate in PM— potential indicators of coal combustion—were associated w ith increased hospital admissions for diabetics (Zanobetti et al., 2009). A large study of 25 U.S . communities found more deaths when the fraction of aluminum, sulfate, and nickel in PM w as highest (Franklin et al., 2008). This study found additional evidence warning that the combination o f metals in particles, a common occurrence, may increase their toxicity. Arsenic Arsenic exposure can occur through the dermal, oral, and inhalation routes. As a known carcinogen, inhal ation of arsenic has been strongly associated with lung cancer (HHS, 2011). Short-term inhalat ion can harm the gastrointestinal tract, cause nausea and diarrhea, and even adversely af fect the nervous system. Long-term inhalation has been associated with irritation of the s kin and mucous membranes. Exposure can lead to respiratory tract irritation and conjunctivitis, and damage nasal tissue (ATSDR, 1998b). Similar to effects of inhaling arsenic, arsenic in drinking water has also been linked to skin, bladder, lung, and liver cancer (HHS, 2011). Over a long period, the metal-like substance can result in anemia, lesions, liver, kidney, and nerve dama ge, and affect the digestive system (ATSDR, 2007c). Beryllium Beryllium is a known carcinogenic metal (HHS, 2011). Inha led beryllium has been found to increase the risk of lung ca ncer (Steenland and Ward 1991, Ward et al

. , 1992). Breathing large amounts of beryllium compounds can dama ge the lungs and cause the lungs to resemble pneumonia with reddening and swelling. Long-ter m exposure over many years may cause chronic beryllium disease, when a chronic infl ammatory reaction, called a granuloma, within people who are allergic to beryllium occurs. Pe ople with chronic beryllium disease may experience weakness, fatigue, difficulty breathing, anorexi a, weight loss, and blueness of the hands and feet. The disease can lead to heart enlargeme nt, heart disease, and even death (ATSDR, 2002). Cadmium Cadmium is another known carcinogenic metal (HHS, 2011). Exposure to airborne cadmium causes lung cancer, as the International Agency for Research on Cancer reaffirmed in 2009 (Straif, et al., 2009). Prolonged inha lation of cadmium can also lead to gradual accumulation of the metal in the kidneys, res ulting in kidney disease (ATSDR, 2008a). Chromium Chromium occurs in three main forms, one of which, ch romium (IV) is a known carcinogen that can increase the risk of lung canc er (ATSDR, 2008b; HHS, 2011). TheA-67

metal primarily affects the respiratory system, thou gh chromium (VI) can impact the gastrointestinal, immunological, hematological, reproduc tive and developmental systems, particularly if ingested. Inhaling chromium (VI) can cause coughing and wheezing, shortness of breath, bronchitis, pneumonia, decreased lung function, a nd other respiratory conditions. In some workers, inhaled chromium (VI) caused them to develop asthm a and have asthma attacks (ATSDR, 2008b). Lead The health effects of lead exposure mainly focus on th e nervous system and damaging its functions. Lead may cause weaknesses in the joints, anemia, and increases in blood pressure (ATSDR, 2007d). Although lead is harmful to both a dults and children, children are most susceptible to the effects of lead exposure. Lead exposure can cause developmental disorders whose effects can persist beyond childhood (A TSDR, 2007e). Exposure can affect a child’s physical and mental growth, resulting in slower mental development and lower levels of intelligence. Lead is also a probable carcinogen (HHS, 2011) . Manganese Similar to lead, manganese mostly affects the nervous system. For exam ple, adverse effects to hand-eye coordination, hand steadiness, and visual reaction time w ere observed in humans exposed to manganese (ATSDR, 2008c). High exposure levels may result i n feelings of lethargy and weakness, psychological impacts, and tremors. Nickel Compounds containing nickel have been determined to be carcinogenic (HHS, 2011). A known health effe ct of nickel exposure is the increased risk of lung and nasal cancers from nickel dust ( ATSDR, 2005b). Selenium Selenium exposure can harm the respiratory system by irritating muc ous membranes and causing pneumonia, bronchitis, and pulmonary edema (ATSDR, 2003a). On e selenium compound, selenium sulfide, is also considered to be a probable hum an carcinogen (HHS, 2011).

Volatile Organic Compounds (Examples: acetaldehyde, benzene, formaldehyde, toluene, xylene) Volatile organic hazardous air pollutants are specific toxi c gases that react easily with other gases and particles. These take in a host of chemi cals that include carcinogens and other toxins. While many of these toxic air pollutants can cause cancer, they can also irritate the eyes, skin, and respiratory tract, impair lung function, and a ffect vital organs. Benzene and formaldehyde are recognized as known human carcinogens, whi le ethylbenzene and acetaldehyde are considered probable carcinogens (HHS, 2011). Long-term exposures to benzene can cause leukemia, a blood cancer, and other blood disorders such as anemia and depressed lymphocyte count in blood. Exposure to formaldehyde ca n also cause chronic bronchitis and nasal epithelial lesions. A recent revi ew of the research found evidence that formaldehyde may increase the risk of asthma, particularl y in the young (McGwin et al., 2010). Non-cancer effects associated with exposure to these or ganics range from irritation of the skin, eyes, nose, throat, and respiratory tract, and dizziness , nausea, and vomiting. These compounds can also cause difficulty in breathing, impaired lung funct ion and respiratory symptoms, damage to the liver and kidneys, and stomach discomfort. They may also cause developmental disorders, adverse effects to the nervous system, impairment of me mory and neurological function, and slow response to visual stimuli. These pollutants can al so affect hearing, speech, vision, and motor coordination (ATSDR, 1999a, 1999c, 2000a, 2007a, 2007b, 2010a).

Sulfur Dioxide ( SO 2 ) Sulfur dioxide (SO 2 ) a gaseous air pollutant composed of sulfur and oxygen. The sulfur dioxide standard will help reduce this har mful pollutant, long recognized for its harm to health. Sulfur dioxide causes a range of harm ful effects on the lungs, including wheezing, coughing, shortness of breath and chest tightnes s, and other problems, especially during exercise or physical activity. Continued exposure at high levels aggravates asthma,A-68

increases respiratory symptoms, and reduces the ability of the lungs to function. Short exposures to peak levels of SO 2 in the air can make it difficult for people with asthm a to breathe when they are active outdoors. Rapid breathing during exercise helps S O 2 reach the lower respiratory tract, as does breathing through the mouth. SO 2 pollution increases the risk of hospital admissions o r emergency room visits, especially among children, older adu lts, and people with asthma (EPA, 2009a). In addition, sulfur dioxide poses another threat to human health by reacting in the air to form sulfates (SO 4 ) which exist as aerosolized fine particulate matter (PM 2.5), another harmful air pollutant discussed below (EPA, 2009).

Nitrogen Oxides ( NO X ) Nitrogen oxides (NO X ) are a class of gaseous air pollutants composed of nitrogen and oxygen. NO X is emitted during the combustion of natural gas in engines, turbines, heaters, and boilers during production and processing operations for oil and gas wells. NO X is also emitted during pit flaring of VOC emissions from well completions. The pollutant itself can inflame the airways and reduce lung function, worsened cough and wheezing, increase asthma attacks and hospital visits; and increase risk of r espiratory infection (EPA, 2008). EPA’s own review of the science found that exposure to NO X can increase the risk of hospitalization by up to 20 percent (EPA, 2008). Nitrogen oxides are also precursor s to nitrates (NO 3 ) which also are recognized as aerosolized fine particulate matter (P M 2.5) and discussed below. (EPA 2008)

Hydrogen chloride ( HCl ) Hydrogen chloride is a strong acid gas that reacts with mo isture to form hydrochloric acid. Hydrogen chloride intensely irritat es the mucous membranes of the respiratory system. At high concentrations, hydrogen chl oride can cause swelling and spasms in the throat and suffocation. In addition, inhaled hydrogen chloride can lead to a chemical- or irritant-induced form of asthma called Reactive Airway D ysfunction Syndrome (RADS). (ATSDR, 2010b). Both hydrogen chloride and hydrogen fluoride can irritate the eyes, nasal passages, and lungs (EPA 2000a, 2000b).

Response: EPA thanks the commenter for their input. For the purpos es of this rulemaking this comment is out of scope.