OMB EMAIL CORRESPONDENCE (1 of 4)

From: Teresa Clemons/RTP/USEPA/US

To: David Cozzie/RTP/USEPA/US@EPA, Amy Hambrick/RTP/USE PA/US@EPA

Cc: tsirigotis.peter@epa.gov, Steve Fruh/RTP/USEPA/US@E PA, Fred Thompson/RTP/USEPA/US@EPA

Date: 05/16/2012 02:46 PM Subject: Fw: TO OMB - OAR final action SAN 5105.1: NSPS & EG for CISWI - Reconsideration (Subpars CCCC & DDDD) and NHSM

FYI

THANKS! Teresa Clemons Sector Policies and Programs Division, IO 919-541-0252 919-685-3157 (Fax) ----- Forwarded by Teresa Clemons/RTP/USEPA/US on 0 5/16/2012 02:46 PM -----

From: Joseph-J Dougherty/DC/USEPA/US To: Teresa Clemons/RTP/USEPA/US@EPA, Janet Eck/RTP/USEP A/US@EPA Cc: Mary Henigin/DC/USEPA/US@EPA, Alan Rush/DC/USEPA/US @EPA Date: 05/16/2012 02:37 PM Subject: Fw: TO OMB - OAR final action SAN 5105.1: NSPS & EG for CISWI - Reconsideration (Subpars CCCC & DDDD) and NHSM

----- Forwarded by Joseph-J Dougherty/DC/USEPA/US o n 05/16/2012 02:38 PM -----

From: Nathaniel Jutras/DC/USEPA/US To: Joseph-J Dougherty/DC/USEPA/US@EPA, Alan Rush/DC/US EPA/US@EPA, Mary Henigin/DC/USEPA/US@EPA Date: 05/16/2012 02:36 PM Subject: TO OMB - OAR final action SAN 5105.1: NSPS & EG for CISWI - Reconsideration (Subpars CCCC & DDDD) and NHSM

Today 5/16/2012, final action SAN 5105.1: NSPS & EG for CISWI - Reconsideration ( Subpars CCCC & DDDD) and NHSM Proposed Rule was sent to OMB. This Tier 1 action has been updated in ADP Tracker. Thank you, Nathaniel P. Jutras U.S. Environmental Protection Agency OA / Office of Policy / Regulatory Management Divis ion Washington, DC 20406 (P) (202) 564.0301 (F) (202) 564.0965 (See attached file: EO 12866_ 2060-AR15_CISWI-NHSM Reconsideration_Final_051112.4pm.docx)*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** EO 12866_ 2060-AR15_CISWI-NHSM Reconsideration_Final_051112.4pm

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60 and 241 [EPA–HQ–OAR–2003-0119 and EPA-HQ-RCRA 2008-0329; FRL- ]

RIN 2060- A R15 and 2050-AG44

Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous Secondary

Materials That Are Solid Waste: Final Rule

AGENCY : Environmental Protection Agency.

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

SUMMARY: This action sets forth the EPA’s final decision on the issues for which it granted reconsideration in December 2011, which pertain to certain aspects of the March 21, 2011, final rule entitled “Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units” (CISWI rule). This action also includes our final decision to deny the requests for reconsideration with respect to all issues raised in the petitions for reconsideration of the final CISWI rule for which we did not grant reconsideration. Among other things, this

final action establishes effective dates for the standards and makes technical corrections to the final rule to clarify definitions, references, applicability, and compliance issues. In addition, the EPA is issuing final amendments to the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 2 of 526 regulations that were codified by the Non-Hazardous Secondary Materials rule. Originally promulgated on March 21, 2011, the Non-Hazardous Secondary Materials rule provides the standards and procedures for identifying whether Non-Hazardous Secondary

Materials are solid waste under the Resource Conservation and Recovery Act when used as fuels or ingredients in combustion units. The purpose of these amendments is to clarify several provisions in order to implement the Non-Hazardous Secondary Materials rule as the Agency originally intended.

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

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

REGISTER ].

ADDRESSES: The EPA established a single docket under Docket ID No. EPA-HQ-OAR-2003-0119 for this action on the commercial and

industrial solid waste incineration rule. The EPA alsoestablished a single docket under Docket ID No. EPA-HQ-RCRA2008-0329 for this action on the the Non-Hazardous Secondary

Materials rule. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., confidential

business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 3 of 526 copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the EPA Docket Center, EPA West Building, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For further information regarding the commercial and industrial solid waste incineration reconsideration and final rule, contact Ms. Toni Jones, Fuels and Incineration Group, Sector Policies and Programs Division (E143–05), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541–0316; fax number: (919) 541–3470; email address: jones.toni@epa.gov , or Ms. Amy Hambrick, Fuels and Incineration Group, Sector Policies and Programs Division (E143–05), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541–0964; fax number: (919) 541–3470; email address: hambrick.amy@epa.gov

. For further information regarding the Non-Hazardous Secondary Materials final rule, contact Mr. George Faison, Program Implementation and Information Division, Office of*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 4 of 526 Resource Conservation and Recovery, 5303P, Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, N.W, Washington, D.C. 20460-0002; telephone number : 703- 305-7652; fax number: 703-308-0509; email address : faison.george@epa.gov

. EXECUTIVE SUMMARY: Purpose of the Regulatory Action The EPA is promulgating final rules that establish standards for new and existing commercial and industrial solid

waste incineration units. Section 129 of the Clean Air Act (CAA), entitled “Solid Waste Combustion,” requires EPA to develop and adopt standards for solid waste incineration units pursuant to CAA sections 111 and 129. Section 129(a)(1)(A) of the CAA requires EPA to establish performance standards, including emissions limitations, for “solid waste incineration units” generally and, in particular, for “solid waste incineration units combusting commercial or industrial waste.” CAA section 129(a)(1)(D). Section 129 of the CAA defines “solid waste incineration unit” as “a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments or the general public.” CAA section 129(g)(1). Section 129 of the Clean Air Act also provides that “solid waste” shall have the meaning established by EPA pursuant*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 5 of 526 to its authority under the Resource Conservation and Recovery Act. CAA section 129(g)(6). The December 23, 2011, proposed CISWI reconsideration rule granted reconsideration on a limited set of issues. This final

rule makes certain revisions to the final rule issued on March 21, 2011, based on those reconsideration issues and in response to public comment on the proposed CISWI reconsideration rule. As explained elsewhere, on May 18, 2011, the EPA issued a notice that delayed the effectiveness of the March 21, 2011, CISWI rule (the “Delay Notice”). As the result of such action,

the 2000 CISWI rule remained in effect. The United States

District of Court from the District of Columbia vacated the Delay Notice in January 2012. However, because of the Delay Notice, delayed the effectiveness of the CISWI rule from May 2011 through vacature of that notice in January 2012, the

revisions to the 2000 CISWI rule that were finalized in the 2011 CISWI rule were never codified in the CFR. Although the issues

on reconsideration were limited in the December 2011 CISWI reconsideration proposal, we had to include in that proposed reconsideration rule all of the regulatory changes that had been

made since the 2000 rule because the 2011 CISWI rule was not codifed in the CFR. Specifically, we included in the December 23, 2011, proposed reconsideration rule all of the regulatory*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 6 of 526 changes the EPA had made to the 2000 CISWI rule in the 2011 CISWI rule, as well as the changes to the 2011 CISWI rule that the EPA proposed to make on reconsideration. The inclusion of such text in this final rule, in no way, alters our limitation of the issues for comment for which we granted reconsideration. Summary of Major Provisions for the Final Reconsideration

Rule In general, the final rule establishes revised numeric emission limits for some new and existing commercial and

industrial solid waste incineration units for certain of the nine pollutants listed in section 129(a)(4) of the CAA 1

. The EPA established standards for four subcategories of CISWI units in the 2011 CISWI rule: incinerators; small remote incinerators; energy recovery units; and waste-burning kilns. The 2011 CISWI rule also included two subcategories of energy recovery units. In this final rule, we have furthersubcategorized energy recovery units and subcategorized wasteburning kilns based on design type differences. Thus, the final rule includes three subcategories of energy recovery units and separate CO limits for two subcategories of waste-burning kilns.

1 The nine pollutants for which we must issue emissi on standards under section 129 are: PM, SO 2 , HCl, NO X , CO, Pb, Cd, Hg, D/F. CAA section 129(a)(4).*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 7 of 526 We have further revised some of the CISWI limits proposed in the reconsideration notice in response to comments and incorporated additional data, including new data submitted during the comment period. These changes primarily affect the energy recovery unit and waste-burning kiln subcategories. To ensure compliance with the emission limits, this final rule establishes stack testing and continuous monitoring requirements. The rule allows sources to use continuous emission monitoring systems if an owner or operator chooses to do so. Continuous parameters and emissions levels (if used) are measured as either a 3-hour block or a 30-day rolling average basis, depending on the parameter being measured and the subcategory of CISWI. Since sources may choose to cease or start combusting solid waste at any time due to market conditions or for other reasons, the final rule contains provisions that specify the steps necessary for sources to switch applicability between this final rule and other applicable emission standards issued pursuant to CAA section 112. Finally, this rule contains revisions to some of the monitoring, recordkeeping and reporting requirements. The effective dates for existing sources depends primarily on State plan approval, but may be no later than the date 5 years after publication of this final rule in the Federal Register . For new*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 8 of 526 sources, the effective date is either [INSERT THE DATE 6 MONTHS

AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ] or the date of startup of the source, whichever is later. New sources are defined as sources that began construction on or after June 4, 2010, or commenced reconstruction or modification after [INSERT THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL

RULE IN THE FEDERAL REGISTER ].

Costs and Benefits The final rule affects 93 existing sources located at 65 facilities. The EPA projects an additional incinerator and five additional small remote incinerators to be subject to this rule over the next five years. This final rule affects multiple sectors of our economy including small entities. Table 1 of this preamble summarizes the costs and benefits associated with this final rule. Note however, these are the costs and benefits of the final 2011 CISWI rule as amended by today’s final rule, and therefore replace the costs and benefits presented in the March

2011 final rule. A more detailed discussion of the costs and benefits of this final rule is provided in Section I.F of this preamble. Table 1. Summary of the Monetized Benefits, Social Costs and Net Benefits for the Final CISWI NSPS and EG In 2015 (Millions of 2008$) 1*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 9 of 526 3 percent Discount

Rate 7 percent Discount Rate Total Monetized Benefits 2 $460 to $1,100 $420 to $1,100

Total Social Costs 3 $270 $270 Net Benefits $190 to $730 $150 to $630

Non-monetized Benefits Health effects from exposure to HAP (790 tons of HCl, 2.6 tons of lead, 1.8 tons of cadmium, 740 pounds of mercury, and 93 grams of dioxins/furans) Health effects from exposure to criteria pollutants (23,000 tons of CO , 7,300 tons of SO 2 , 7,200 tons of NO 2 , and secondary formation of ozone) Ecosystem effects Visibility impairment 1 All estimates are for the implementation year (2015), and are rounded to two significant figures. These results reflect the lowest cost disposal assumption. 2 The total monetized benefits reflect the human health benefits associated with reducing exposure to PM 2.5 through reductions of PM 2.5 precursors such as directly emitted particles, SO 2 , and NOx. It is important to note that the monetized benefits include many but not all health effects associated with PM 2.5 exposure. Monetized benefits are shown as a range from Pope et al. (2002) to Laden et al. (2006). These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because there is no clear scientific evidence that would support the development of differential effects estimates by particle type. These estimates include the energy disbenefits valued at $3.8 million (using the 3 percent discount rate), which do not change the rounded totals. CO 2 -related disbenefits were calculated using the “social cost of carbon”, which is discussed further in the RIA. 3 The methodology used to estimate social costs for one year in the multimarket model using surplus changes results in the same social costs for both discount rates.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 10 of 526

SUPPLEMENTARY INFORMATION: Acronyms and Abbreviations . The following acronyms and

abbreviations are used in this document. 7-PAH 7 polyaromatic hydrocarbons 16-PAH 16 polyaromatic hydrocarbons ACI activated carbon injection AF&PA American Forest & Paper Association ANPRM Advanced Notice of Proposed Rulemaking ANSI American National Standards Institute APA Administrative Procedure Act ARIPPA Anthracite Region Independent Power Producers Association ASME American Society of Mechanical Engineers AST activated sludge treatment ASTM American Society for Testing and Materials ATCM Air Toxic Control Measure BAT best available technology Btu British thermal unit CAA Clean Air Act CARB California Air Resources Board CBI Confidential Business Information CBO carbon burn-out CCA chromated copper arsenate Cd cadmium C&D construction & demolition CDX Central Data Exchange CFB circulating fluidized bed CEMS continuous emissions monitoring systems CERCLA Comprehensive Environmental Response, Compensation,

and Liability Act CFR Code of Federal Regulations CISWI Commercial and Industrial Solid Waste Incineration CO carbon monoxide CO 2 carbon dioxide Catalyst carbon monoxide oxidation catalyst Cl 2 chlorine gas CSA Canadian Standards Association*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 11 of 526

CWA Clean Water Act D/F dioxin/furan DIFF dry sorbent injection fabric filter dscf dry standard cubic foot dscm dry standard cubic meter DSW Definition of Solid Waste EG emission guidelines EJ Environmental Justice EMPC estimated maximum possible concentration EOM extractable organic matter EPA U.S. Environmental Protection Agency ERT Electronic Reporting Tool ERU energy recovery unit ESP electrostatic precipitator FF fabric filters FR Federal Register HAP hazardous air pollutants HCl hydrogen chloride HF hydrogen fluoride Hg mercury HMI hospital, medical and infectious HMIWI Hospital, Medical and Infectious Waste Incineration HWC Hazardous Waste Combustor ICR Information Collection Request ISO International Standards Organization LBMS linkageless burner management system LML lowest measured level Mn manganese MACT maximum achievable control technology MDL method detection level mg/dscm milligrams per dry standard cubic meter mmBtu/hr million British thermal units per hour MSW Municipal Solid Waste MW megawatts MWC Municipal Waste Combustor NAAQS National Ambient Air Quality Standards NAICS North American Industrial Classification System NCASI National Council on Air and Stream Improvement ND nondetect*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 12 of 526

NESHAP National Emission Standards for Hazardous Air

Pollutants ng/dscm nanograms per dry standard cubic meter NHSM non-hazardous secondary material(s) NO x nitrogen oxides NSPS New Source Performance Standards NTTAA National Technology Transfer and Advancement Act OAQPS Office of Air Quality Planning and Standards O&M operations and maintenance OMB Office of Management and Budget OP Office of Policy OSWI Other Solid Waste Incineration PAH polycyclic aromatic hydrocarbons Pb lead PCBs polychlorinated biphenyls PCDD polychlorinated dibenzodioxins PCDF polychlorinated dibenzofurans PIC product of incomplete combustion PM particulate matter POM polycyclic organic matter ppm parts per million ppmv parts per million by volume ppmvd parts per million by dry volume PRA Paper Reduction Act PS Performance Specification lb/MMBtu pound per million British thermal units QA/QC Quality Assurance/Quality Control RCRA Resource Conservation and Recovery Act RDL reported detection level RFA Regulatory Flexibility Act RIA Regulatory Impact Analysis RIN Regulatory Information Number RTO regenerative thermal oxidizer RTR residual risk and technology review SBA Small Business Administration SCR selective catalytic reduction SARU sulfuric acid regeneration unit SMCRA Surface Mining Control and Reclamation Act of 1977 SNCR selective noncatalytic reduction*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 13 of 526

SO 2 sulfur dioxide SSI Sewage Sludge Incineration SSM startup, shutdown, and malfunction SVOC Semi-Volatile Organic Compound SWDA Solid Waste Disposal Act TBtu tera British thermal unit TEF Total Equivalency Factor TEQ Toxic Equivalency TMB Total Mass Basis TOX Total Organic Halogens tpy tons per year TRI Toxics Release Inventory TSM Total Selected Metal TSR thermal sand reclamation TTN Technology Transfer Network UCL upper confidence limit ug/dscm micrograms per dry standard cubic meter UMRA Unfunded Mandates Reform Act UL upper limit UPL upper prediction limit U.S.C. United States Code USGS United States Geological Survey UTL upper tolerance limit VCS Voluntary Consensus Standards VOC volatile organic compound WWW Worldwide Web WWW Worldwide Web A. Does this action apply to me? Categories and entities potentially affected by this action are those that operate CISWI units, and those that generate potentially affected NHSM. The NSPS and EG, hereinafter referred to as “standards,” for CISWI affect the following categories of

sources:*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 14 of 526

Category NAICS 1

Code Examples of Potentially Regulated Entities

Any industrial or commercial facility using a solid waste incinerator 211, 212,

486 Oil and Gas Extraction, mining

(except oil and gas),; Pipeline Transportation 221 Utilities 321, 322, 337 Wood Product Manufacturing, Paper

Manufacturing, Furniture and Related Product Manufacturing 325, 326 Chemical Manufacturing, Plastics and

Rubber Products Manufacturing 327 Nonmetallic Mineral Product

Manufacturing, 333, 336 Machinery Manufacturing,

Transportation Equipment Manufacturing 423, 44, Merchant Wholesalers, Durable Goods,

Retail Trade

Any facility or entity generating a non hazardous secondary material that may be burned for fuel or destruction 2 111 Crop Production

112 Animal Production 113 Forestry and Logging 115 Support Activities for Agriculture

and Forestry 211 Oil and Gas Extraction 212 Mining (except oil and gas) 221 Utilities 236 Construction of Buildings 311 Food Manufacturing 312 Beverage and Tobacco Product

Manufacturing 313 Textile Mills 316 Leather and Allied Product

Manufacturing 321 Wood Product Manufacturing 322 Paper Manufacturing 324 Petroleum and Coal Products

Manufacturing 325 Chemical Manufacturing 326 Plastics and Rubber Products

Manufacturing 327 NonMetallic Mineral Product

Manufacturing*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 15 of 526

Category NAICS 1

Code Examples of Potentially Regulated Entities 331 Primary Metal Manufacturing 332 Fabricated Metal Product

Manufacturing 333 Machinery Manufacturing 334 Computer and Electronic Product

Manufacturing 336 Transportation Equipment

Manufacturing 337 Furniture and Related Product

Manufacturing 339 Miscellaneous Manufacturing 423 Merchant Wholesalers, Durable Goods 424 Merchant Wholesalers, Nondurable

Goods

44-45 Retail Trade (all categories,

including non-store retailers, vending, and direct sellers) 486 Pipeline Transportation 493 Warehousing and Storage 511 Publishing Industries (except

internet) 531 Real Estate 541 Professional, Scientific, and

Technical Services 611 Educational Services 622 Hospitals 623 Nursing and Residential Care

Facilities 624 Social Assistance 713930 Boating Clubs with Marinas 721 Accommodation 722 Food Services and Drinking Places

813 Religious, Grantmaking, Civic,

Professional, and Similar Organizations 92 Public Administration

1 North American Industry Classification System. 2 May be some overlap with the incinerators.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 16 of 526 This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the final action. To determine whether your facility would be affected by the final action, you should examine the applicability criteria in 40 CFR 60.2010 of subpart CCCC, 40 CFR 60.2505 of subpart DDDD, and 40 CFR 241. If you have any questions regarding the applicability of the final action to a particular entity, contact the persons listed in the preceding

FOR FURTHER INFORMATION CONTACT section. B. Where can I get a copy of this document? The docket number for the action regarding the CISWI NSPS (40 CFR part 60, subpart CCCC) and EG (40 CFR part 60, subpart DDDD) is Docket ID No. EPA–HQ–OAR–2003–0119.

Worldwide Web . In addition to being available in the docket, an electronic copy of the final action is available on the WWW through the TTN Web. Following signature, the EPA posted a copy of the final action on the TTN’s policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg . The TTN provides information and technology exchange in various areas of air pollution control.

C. Judicial Review Under the Clean Air Act (CAA) section 307(b)(1), judicial review of this final rule is available only by filing a petition*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 17 of 526 for review in the U.S. Court of Appeals for the District of Columbia Circuit by [INSERT DATE 60 DAYS FROM DATE OF PUBLICATION IN THE FEDERAL REGISTER] . Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. This section also provides a mechanism for us to convene a proceeding for reconsideration, ‘‘[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule.’’ Any person seeking to make such a demonstration to us

should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20004, with a copy to the persons listed in the preceding FOR

FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004. Note, under CAA section 307(b)(2), the requirements established by this final*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 18 of 526 rule may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. Organization of this Document . The following outline is provided to aid in locating information in this preamble.

I. CISWI Reconsideration and Final Rule A. Background Information 1. What is the history of the CISWI standards? 2. How is the definition of solid waste addressed in the final CISWI rule? 3. What is the relationship between this rule and other combustion rules? 4. Response to the Vacatur of Effective Dates B. Summary of This Final Rule 1. Subcategories of Affected Units and Emission Standards 2. Fuel Switching Provisions 3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment Units, Laboratory Analysis Units, and Space Heaters 4. Affirmative Defense for Malfunction Events 5. CO Monitoring Requirements 6. Full-load Stack Test Requirement for CO Coupled With Continuous Oxygen Monitoring 7. Non-detect Methodology Using Three Times the Detection Level 8. Definitions for Foundry Sand Thermal Reclamation Unit and Chemical Recovery Unit 9. Definition of Contained Gaseous Material 10. Parametric Monitoring Provisions for Additional Control Device Types 11. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-burning Kilns 12. Revised Definition of Waste-burning Kiln 13. Revised Definition of Solid Waste 14. Effective Dates C. Summary of Significant Changes Since Proposal 1. Revision of the Subcategories 2. Revisions to the Monitoring Requirements 3. Oxygen Monitoring Requirements 4. Removal of the Definition of Homogeneous Waste 5. Non-detect Methodology Using Three Times the Detection Level 6. Parametric Monitoring for Additional Control Device Types 7. Particulate Matter Continous Monitoring Provisions for Large ERUs and Waste-burning Kilns*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 19 of 526

8. Effective Dates 9. Definition of Waste-burning Kiln D. Technical Corrections and Clarifications E. Major Public Comments and Responses F. What other actions are we taking? G. What are the impacts associated with the amendments? 1. What are the primary air impacts? 2. What are the water and solid waste impacts? 3. What are the energy impacts? 4. What are the secondary air impacts? 5. What are the cost and economic impacts? 6. What are the benefits? II. NHSM Final Revisions A. Statutory Authority B. NHSM Rule History C. Introduction – Summary of Regulations Being Finalized 1. Revised Definitions a. Clean Cellulosic Biomass b. Contaminants c. Established Tire Collection Programs d. Resinated Wood 2. Contaminant Legitimacy Criterion for NHSM Used as Fuels 3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels a. Scrap Tires b. Resinated Wood c. Coal Refuse d. Pulp and Paper Sludge 4. Rulemaking Petition Process for Other Categorical Non-Waste Determinations (40 CFR 241.4(b)) 5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition Process 6. Revised Introductory Text for 40 CFR 241.3(a) D. Comments on the Proposed Rule and Rationale for Final Decisions 1. Revised Definitions a. Clean Cellulosic Biomass b. Contaminants c. Established Tire Collection Programs 2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels a. General Comments on the Revised Contaminant Legitimacy Criterion b. Grouping of Contaminants c. Meaning of Designed to Burn d. Contaminant Comparisons Allowed*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 20 of 526 3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels a. Scrap Tires b. Resinated Wood 4. Rulemaking Petition Process for Other Categorical Non-Waste Determinations 5. Materials for Which Additional Information was Requested a. Pulp and Paper Sludge b. Coal Refuse c. Manure 6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition Process 7. Revised Introductory Text for 40 CFR 241.3(a) E. Cost and Benefits of the Final Rule III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act

I. CISWI Reconsideration and Final Rule A. Background Information 1. What is the history of the CISWI standards? On December 1, 2000, the EPA promulgated NSPS and EG for CISWI units (60 FR 75338), hereinafter referred to as the 2000 CISWI rule. On January 30, 2001, the Sierra Club filed a*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 21 of 526 petition for review in the U.S. Court of Appeals for the District of Columbia Circuit (Court) challenging the EPA’s final CISWI rule. On August 17, 2001, the EPA granted a Request for Reconsideration, pursuant to CAA section 307(d)(7)(B), submitted

on behalf of the National Wildlife Federation and the Louisiana Environmental Action Network, related to the definition of

“commercial and industrial solid waste incineration unit” and

“commercial or industrial waste” in the 2000 CISWI rule. In granting the petition for reconsideration, the EPA agreed to undertake further notice and comment proceedings related to these definitions. On September 6, 2001, the Court entered an order granting the EPA’s motion for a voluntary remand of the CISWI rule, without vacatur. The EPA requested a voluntary

remand of the final CISWI rule to address concerns related to the EPA’s procedures for establishing MACT floors for CISWI units in light of the Court’s decision in Cement Kiln Recycling

Coalition v. EPA , 255 F.3d 855 (DC Cir. 2001)(Cement Kiln). Neither the EPA’s granting of the petition for reconsideration, nor the Court’s order granting a voluntary remand, stayed,

vacated or otherwise influenced the effectiveness of the 2000 CISWI rule. Therefore, the remand order had no effect on the

effectiveness of the 2000 CISWI rule.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 22 of 526 On February 17, 2004, the EPA published a proposed rule (CISWI Definitions Rule) soliciting comments on the definitions of “solid waste,” “commercial and industrial waste,” and

“commercial and industrial solid waste incineration unit”. On September 22, 2005, the EPA published in the Federal Register the final rule reflecting our decisions with respect to the CISWI Definitions Rule. The rule was challenged and, on June 8, 2007, the Court vacated and remanded the CISWI Definitions Rule. In vacating the rule, the Court found that CAA section 129 unambiguously includes among the incineration units subject to its standards, any facility that combusts any solid waste material, subject to four statutory exceptions. While the Court vacated the CISWI Definitions Rule, the 2000 CISWI rule remained

in effect. On March 21, 2011, the EPA promulgated revised NSPS and EG for CISWI units (76 FR 15704)(2011 CISWI rule). That action constituted a partial response to the voluntary remand of the

2000 CISWI rule and to the 2007 vacatur and remand of the CISWI Definitions Rule. In addition, the EPA addressed the 5-year technology review that is required under CAA section 129(a)(5). On the same day, the EPA issued a notice that it intended to reconsider certain aspects of the 2011 CISWI rule that warrant further opportunity for public comment (76 FR 15266).*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 23 of 526 Following promulgation of the 2011 CISWI rule, the EPA received petitions for reconsideration from the following organizations (“Petitioners”): Alaska Oil and Gas Association/Alaska Miners Association/ConocoPhillips (AOGA), American Chemistry Council (ACC), American Foundry Society (AFS), American Iron and Steel Institute (AISI) and American Coke and Coal Chemicals Institute (ACCCI), Anthracite Region Independent Power Producers Association (ARIPPA), American Petroleum Institute (API) and National Petrochemical and Refiners Association (NPRA), Auto Industry Forum (AIF), Citizens Energy Group (CEG), Council of Industrial Boiler Owners (CIBO), Earthjustice/Sierra Club, Edison Mission Energy, Hovensa L.L.C. and Tesoro Hawaii Corp., Industry Coalition (AF&PA et. al.), JELD-WEN Inc., Portland Cement Association (PCA), Renovar Energy Corp., and Waste Management Inc. (WM). Copies of these petitions are provided in the docket (see Docket ID No. EPA-HQ-OAR-2003- 0119). Petitioners, pursuant to CAA section 307(d)(7)(B), requested that the EPA reconsider numerous provisions in the

2011 CISWI rule. On May 18, 2011, the EPA issued a notice to postpone the effective dates of the March 21, 2011, final CISWI rule. This notice also requested that the public submit additional data and*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 24 of 526 information to the EPA by July 15, 2011, for review and consideration in the reconsideration proceedings. On December 23, 2011, the EPA published a proposed rule soliciting comment on the issues on which EPA was granting reconsideration. In March 2011, EPA had publicaly stated its

intent to reconsider some of these issues. 76 FR 15266. The EPA limited comment in the December 23, 2011, proposed rule to the specific issues on which it was granting reconsideration which included the following:

• Revising the subcategories and emission limits for ERUs and waste-burning kilns to reflect updated inventories and additional data.

• Establishing limitations on fuel switching provisions.

• Definitions of cyclonic burn barrels, burn-off ovens, soil treatment units, laboratory analysis units, and space heaters from CISWI subcategories.

• Providing an affirmative defense for malfunction events.

• Revisions to the CO monitoring requirements.

• Establishing a full-load stack test requirement for CO coupled with continuous oxygen (trim) monitoring.

• Establishing a definition of “homogeneous waste.”

• Responding to comments on the 2011 CISWI rule regarding the use of fuel variability in emission limit calculations.

• Responding to comments on the 2011 CISWI rule regarding the review of D/F data and non-detect methodology using three times the detection level.

• Responding to comments on the 2011 CISWI rule regarding providing an option for sources to use emissions averaging to demonstrate compliance.

• Establishing a definition for foundry sand thermal reclamation unit.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 25 of 526

• Reinstating the definition of contained gaseous material.

• Revising the definition of chemical recovery unit.

• Allowing for the use of feed stream analysis or other supplemental information to demonstrate compliance.

• Responding to comments on the 2011 CISWI rule regarding providing percent reduction alternative standards.

• Providing parametric monitoring provisions for additional control device types.

• Revisions to the continuous monitoring provisions for large ERUs.

• Extending effective dates.

• Technical corrections and clarifications.

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

CISWI rule? The RCRA definition of solid waste is integral in defining the CISWI source category. The EPA defines non-hazardous secondary materials (NHSM) that are solid waste under RCRA in the final “Identification of Non-Hazardous Secondary Materials That Are Solid Waste” Rulemaking. In an action parallel to the March 21, 2011, final CISWI rule, the EPA promulgated a final

rule that identifies whether NHSM are or are not solid waste when used as fuels or ingredients in combustion units. That action, hereinafter referred to as the “2011 NHSM final rule,”

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

materials that are solid waste under the 2011 NHSM final rule.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 26 of 526

Commercial and industrial units that combust solid waste are subject to standards issued pursuant to CAA section 129, rather than to standards issued pursuant to CAA section 112 that would otherwise be applicable to such units (e.g., units that would be boilers, process heaters or cement kilns if they were not combusting solid waste). 3. What is the relationship between this rule and other

combustion rules?

These amendments address the combustion of solid waste materials (as defined by the Administrator under RCRA in the NHSM Definition rule) in combustion units at commercial and industrial facilities. If an owner or operator of a CISWI unit permanently ceases combusting solid waste, the affected unit would no longer be subject to the CISWI rule because the unit would not be a solid waste incineration unit subject to standards under CAA section 129. Standards issued pursuant to section 112 of the CAA may apply to CISWI units that cease combusting solid waste. For example, CAA section 112 standards applicable to boilers and process heaters at major sources and boilers at area sources would apply to boilers and process heaters that cease combusting solid waste. Boilers and process

heaters that are located at commercial and industrial facilities and that combust solid waste are subject to CISWI as ERUs. The*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 27 of 526

EPA has also finalized the CAA section 112 standards for the Portland Cement Manufacturing Industry (75 FR 21136, September 9, 2010). Cement kilns combusting solid waste are waste-burning kilns subject to CISWI, not the otherwise applicable CAA section

112 standards. 4. What is the response to the vacatur of effective dates? On January 9, 2012, the United States District Court for the District of Columbia Circuit vacated the May 18, 2011, Delay Notice, which delayed the effective dates of the 2011 CISWI rule. On February 7, 2012, the EPA issued a no action assurance letter regarding certain notification deadlines in the March

2011 CISWI rule. The EPA has conducted outreach to each Regional Office within the Agency and it has not found any new CISWI units that commenced construction since the proposed CISWI rule was published on June 10, 2010. The CAA defines a “new source,” in part, as any source that commences construction after the publication date of proposed CAA section 111 and 129 standards 2 CAA section 129(g)(2). Based on our outreach efforts, we do not

2 The date for determining whether a source is a “ne w” source is the publication date of the proposed standards. The fin al rule and reconsideration proposal contained a typographical error in 40 CFR 60.2015(a)(1) that did not specify the June 4, 2010 proposal date.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 28 of 526 believe there are any CISWI units that are in noncompliance with

the NSPS contained in the final 2011 CISWI rule. B. Summary of This Final Rule As stated above, the December 23, 2011, proposed rule addressed specific issues and provisions the EPA identified for reconsideration. This summary of the final rule reflects the Agency’s final action in regards to those provisions identified

for reconsideration and on other discrete matters identified in response to comments or data received during the comment period. Information on other provisions and issues not proposed for

reconsideration is contained in the notice and record for the 2011 CISWI rule. 76 FR 15704 (March 21, 2011). 1. Subcategories of Affected Units and Emission Standards This final rule defines a CISWI unit, in part, as any combustion unit at a commercial or industrial facility that is used to combust solid waste (as defined under RCRA)(40 CFR 60.2265 (NSPS) and 60.2875 (EG)). We have established standards in this final rule for the following four subcategories of CISWI units: incinerators (i.e. units designed to burn discarded waste materials for the purpose of disposal); small, remote incinerators; energy recovery units (i.e. units that would be boilers or process heaters if they did not combust solid waste); and waste burning kilns (i.e. units that would be cement kilns*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 29 of 526 if they did not combust solid waste). We further subcategorized energy recovery units into three subcategories and waste burning kilns into two subcategories for CO emission limits only. Changes to the subcategories made since proposal are discussed below in Section IV of this preamble: “Summary of Significant Changes Since Proposal.” The final rule emission limits for new and existing sources in the solid-fuel burning ERU subcategory and the waste-burning kilns subcategories were revised based on changes to the inventories for those subcategories as discussed below in Section IV of this preamble: “Summary of Significant Changes Since Proposal.” Tables 2 and 3 of this preamble present the final emission limits for all subcategories for existing and new sources, respectively. Table 2. Comparison of Existing Source MACT Floor Limits for 2000 CISWI Rule and the Final MACT Floor Limits

Pollutant (units) a Incinerators (2000 CISWI limit) CISWI Subcategories

Incinerators ERUs -

Solids ERUs –

Liquid/Gas Wasteburning kilns Small,

remoteincinerators HCl (ppmv) 62 29 0.20 (bioma ss units) / 21 (coal units) 14 b 3.0 b 220*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 30 of 526

Pollutant (units) a Incinerators (2000 CISWI limit) CISWI Subcategories

Incinerators ERUs -

Solids ERUs –

Liquid/Gas Wasteburning kilns Small,

remoteincinerators CO (ppmv) 157 17 260 (bioma ss units) / 95 (coal units) 35 110 (long kilns) / 790 (preheater / precalcine r) 31

Pb (mg/dscm) 0.04 0.015 b 0.014 b (bioma ss units) / 0.013 b (coal units) 0.096 0.014 b 2.7

Cd (mg/dscm) 0.004 0.00 26 0.0014 b (bioma ss units) / 0.058 (coal units) 0.0 23 0.0014 b 0. 61

Hg (mg/dscm) 0.47 0.00 54 0.0022 (bioma ss units) / 0.0028 (coal units) 0.031 b 0. 011 b 0.00 57

PM, filterabl e (mg/dscm) 70 34 11 (bioma ss units) / 60 (coal units) 110 3.2 230*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 31 of 526

Pollutant (units) a Incinerators (2000 CISWI limit) CISWI Subcategories

Incinerators ERUs -

Solids ERUs –

Liquid/Gas Wasteburning kilns Small,

remoteincinerators Dioxin, furans, total (ng/dscm) (no

limit) 4.6 0.52 b (bioma ss units) / 0.51 b (coal units) 2.9 b 0.51 b 1,200

Dioxin, furans, TEQ (ng/dscm) 0.41 0.13 0.12 (bioma ss units) / 0.075 b (coal units) 0.32 b 0.075 b 57

NO x (ppmv) 388 53 290 (bioma ss units) / 340 (coal units) 76 630 240

SO 2 (ppmv) 20 11 7.3 (bioma ss units) / 650 (coal units) 720 600 420

a All emission limits are expressed as concentrations corrected to 7 percent oxygen. b See the memorandum "CISWI Emission Limit Calculatio ns for Existing and New Sources for the Reconsideration Final Rule" for det ails on this calculation.

Table 3. Comparison of New Source MACT Floor Limits for 2000 CISWI Rule and the Final MACT Floor Limits*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 32 of 526

Pollutant (units) a Incinerators (2000 limit) Final CISWI Subcategories

Incinerators ERUs -

Solids ERUs –

Liquid/Gas Wasteburning kilns Small,

remoteincinerators HCl (ppmv) 62 0.091 0.20 c (biomass units)/ 21 (coal units) 14 b 3.0 b 200

CO (ppmv) 157 17 240 (biomass units)/ 95 (coal units) 35 90 (long kilns) / 190 (preheater / precalciner) 13

Pb (mg/dscm) 0.04 0.015 b 0.014 b (biomass units) / 0.013 b (coal units) 0.096 0.014 b 0.26

Cd (mg/dscm) 0.004 0.0023 0.0014 c (biomass units) / 0.058 (coal units) 0.023 0.0014 b 0.61 c

Hg (mg/dscm) 0.47 0.00084 b 0.0022 c (biomass units) / 0.0028 (coal units) 0.00091 d 0.0037 b 0.0035 b

PM, filterable (mg/dscm) 70 18 5.1 (biomass units) / 60 (coal units) 110 3.2 c 230 c*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 33 of 526

Pollutant (units) a Incinerators (2000 limit) Final CISWI Subcategories

Incinerators ERUs -

Solids ERUs –

Liquid/Gas Wasteburning kilns Small,

remoteincinerators Dioxin, furans, total (ng/dscm) (no

limit) 0.58 b 0.52 b (biomass units) / 0.51 b (coal units) (no limit) 0.51 b 1,200 c

Dioxin, furans, TEQ (ng/dscm) 0.41 0.13 0.076 b (biomass units) / 0.075 b (coal units) 0.093 d 0.075 b 31

NO x (ppmv) 388 23 290 c (biomass units)/ 340 (coal units) 76 200 b 78

SO 2 (ppmv) 20 11 c 7.3 c (biomass units)/ 650 (coal units) 720 130 1.2

a All emission limits are measured at 7 percent oxy gen. b See the memorandum “CISWI Emission Limit Calculat ions for Existing and New Sources for the Reconsideration Final Rule” for det ails on this calculation. c The NSPS limit equals the EG limit. The EG limit was selected as the NSPS limit. d D/F TEQ and Hg limits for ERUs – liquid/gas were replaced with D/F TEQ limits for liquid fuel major source boilers. See “C ISWI Emission Limit Calculations for Existing and New Sources for the R econsideration Final Rule" for details. e See the memorandum "CISWI Emission Limit Calculat ions for Existing and New Sources for the Reconsideration Final Rule" for det ails on this calculation.

2. Fuel Switching Provisions*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 34 of 526 The EPA is finalizing the proposed fuel switching provisions that address the situation where CISWI units cease combusting solid waste, and where existing commercial and industrial combustion units begin combusting solid waste (40 CFR 60.2330 for existing units and 40 CFR 60.2710 for new units). Units that cease combusting solid waste remain subject to CISWI

for at least 6 months after solid waste is last added to the combustion chamber. After 6 months, sources must either comply with any applicable section 112 standard or, if they intend to combust solid waste in the future, opt to remain subject to CISWI and continue to comply with the applicable provisions.

Combustion units located at commercial or industrial facilities that begin combusting solid waste are solid waste incineration units on the date they begin combusting solid waste. Existing units that begin combusting solid waste within six months of the effective date of the CISWI EG must comply with the standards on the effective date of those standards. Existing units that begin combusting solid waste after the effective date of the CISWI EG must comply with those standards at the time the unit begins combusting solid waste. 3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment Units, Laboratory Analysis Units, and Space Heaters*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 35 of 526 We are finalizing the proposed definitions for cyclonic burn barrels, burn-off ovens, soil treatment units, laboratory analysis units, and space heaters. The final definitions describe the types of units and state that these different types of units are not incinerators, small remote incinerators, ERUs, or waste burning kilns. The EPA is including these definitions

in the final rule to differentiate these units from the units for which the Agency established standards in the 2011 CISWI

rule and this final action.

4. Affirmative Defense for Malfunction Events The EPA is finalizing the proposed affirmative defense to civil penalties for malfunction events. Sources are required to comply with the CISWI standards at all times, and the EPA recognizes that even equipment that is properly designed and maintained can sometimes fail and that such failure may cause an

exceedance of the relevant standard. The affirmative defense provisions allow sources to avoid civil penalties for exceedances caused by a malfunction event if the source demonstrates by a preponderance of the evidence that the

malfunction event meets the definition of malfunction in 40 CFR 60.2 . In addition, the affirmative defense provisions are designed to ensure that steps are taken to correct the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 36 of 526 malfunction, minimize emissions during the malfunction, and prevent future malfunctions. 5. CO Monitoring Requirements We are finalizing provisions for calculating the 30-day CO rolling average that allow the uncorrected CEMS reading to be used during the period of operation from a cold start to bring the combustion unit up to minimal normal operating temperature. We are also allowing uncorrected CEMS readings to be used in 30- day average calculations for the period of operation following the last waste material being fed to the combustion unit during shutdown procedures of the unit. The period of time allowed for uncorrected CEMS data during a startup shall be 48 hours or less per startup event, and shall be 24 hours or less for each

shutdown event. Sources must indicate in the CEMS data records which CEMS data are obtained during the startup and shutdown periods. Since the oxygen correction calculation will affect all corrected CEMS data, we have expanded these provisions in the final rule to allow for uncorrected CEMS data for any pollutant that sources elect to measure continuously with CEMS and calculate 30-day rolling averages to demonstrate continuous compliance. Additionally, we have finalized removal of continuous CO monitoring requirements for new and existing ERU units. We are*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 37 of 526 instead requiring annual CO stack tests and continuous oxygen monitoring and we are allowing CO monitoring with CEMS as a compliance alternative. We have also removed the continuous CO monitoring requirements for new CISWI units in the other subcategories, but sources may demonstrate compliance using CO CEMS if they so choose. The authority to use uncorrected CEMS data during startup and shutdowns discussed above applies to all CISWI sources that elect to demonstrate compliance with any emission limits with a CEMS instead of performing annual stack tests. Changes to the CO and other optional CEMS monitoring requirements made since proposal are discussed below in Section IV of this preamble: “Summary of Significant Changes Since Proposal.” 6. Full-load Stack Test Requirement for CO Coupled With Continuous Oxygen Monitoring We are finalizing the full-load stack test and continuous oxygen monitoring provisions in today’s action that afford the ability for existing sources to use their current oxygen analyzer and oxygen trim systems to demonstrate continuous compliance. Based on comments received, we have made some clarifying changes to these provisions to be clear that existing oxygen trim systems and oxygen monitors may be used to demonstrate continuous compliance, as well as clarifications on*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 38 of 526 establishing the operating limits for oxygen content. Changes to the continuous oxygen monitoring requirements made since proposal are discussed below in Section IV of this preamble: “Summary of Significant Changes Since Proposal.” 7. Non-detect Methodology Using Three Times the Detection Level Since proposal, the EPA continued its review of sampling volumes and detection levels across various emission testing ICR efforts on various combustion sources to encompass additional pollutants measured using EPA Reference Method 29 (See memorandum “Updated data and procedure for handling below detection level data in analyzing various pollutant emissions

databases for MACT and RTR emissions limits” in the CISWI docket). As a result of this analysis, we have determined

recommended values for three times the Reference Detection Level (RDL) that may be used as a minimum emission limit value that can be accurately measured by most laboratories for cadmium and

lead. 3 Furthermore, based on comments on our application of this non-detect methodology approach to CO data measured using instrument methods, we have made some necessary modifications to the span calculation approach used in the proposed rule. Changes

3 The RDL methodology is consistent with the RDL met hodology outlined in the December 2011 reconsideration proposal. 76 FR 80463

.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 39 of 526 to the emission limits for cadmium, lead, and the span adjustment calculations for CO made since proposal are discussed below in Section IV of this preamble: “Summary of Significant Changes Since Proposal.” 8. Definitions for Foundry Sand Thermal Reclamation Unit and Chemical Recovery Unit We are finalizing the proposed definitions of “foundry sand thermal reclamation unit” and “chemical recovery unit” to clarify that these units are not incinerators, waste-burning kilns, ERUs or small, remote incinerators under subparts CCCC or

DDDD. 9. Definition of Contained Gaseous Material In today’s final rule, we are finalizing the definition for “contained gaseous material” found in the 2000 CISWI rule as proposed. 10. Parametric Monitoring Provisions for Additional Control Device Types In the proposed rule, we requested comment on whether there were additional control device types that we should identify monitoring parameters for in the rule. We received comments on this topic and, in today’s final rule, are including monitoring provisions for sorbent injection rate for dry scrubber control devices (40 CFR 60.2165 and 40 CR 60.2730). We have also*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 40 of 526 clarified that sources that elect to use optional CEMS to monitor continuous compliance for mercury, dioxin/furans, or nitrogen oxides may do so as a substitute for parametric monitoring of activated carbon injection and selective noncatalytic reduction control devices, respectively. Changes to the parametric monitoring provisions made since proposal are discussed below in Section IV of this preamble: “Summary of Significant Changes Since Proposal.” 11. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-burning Kilns In today’s rule, we are finalizing some revisions to the monitoring requirements for ERUs with an annual average heat input rate greater than 250 MMBtu/hr and extending the sameparticulate matter continuous monitoring provisions to wasteburning kilns. In the final 2011 CISWI rule, these units were required to monitor continuously for PM using a PM CEMS; however, the PM CEMS technology may not be sufficient to certify accurate monitor performance in the PM concentration range of the CISWI ERU and waste-burning kiln limits. Therefore, we are requiring continuous parameter monitoring systems for these units similar to those being required for major industrial boilers and utility boilers. To be consistent with these other boiler rules, we have revised all operating parameter averaging*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 41 of 526 for ERU units to be on a 30-day rolling average. Changes to the particulate matter continuous monitoring provisions made since proposal are discussed below in Section IV of this preamble: “Summary of Significant Changes Since Proposal.” 12. Revised Definition of Waste-burning Kiln This final rule includes a definition of waste-burning kiln

that has been revised since the March 2011 CISWI Rule. This definition helps clarify EPA’s intent regarding which types of Portland cement kilns are considered subject to CISWI standards and which kilns are subject to the Portland cement NESHAP. Since proposal, some additional language was added to this definition to further clarify our proposed definition. Changes to the definition of waste burning kiln made since proposal are discussed below in Section IV of this preamble: “Summary of Significant Changes Since Proposal.”

13. Definition of Solid Waste In the March 21, 2011, final CISWI rule, we removed the definition of solid waste that was present in the 2000 CISWI Rule in light of the definition of solid waste in the final NHSM rule. Because applicability of section 129 hinges on sources combusting solid waste, we believe it is appropriate to include a definition of that term in the CISWI rule. For that reason,*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 42 of 526

the final rule contains a definition of solid waste that refers

to the final NHSM rule at 40 CFR 241.2.

14. Effective Dates In the final rule, we are revising the effective dates for new and existing CISWI units. The effective date for existing sources depends primarily on State plan approval, but may be no later than the date five years after publication of this final rule in the Federal Register. For new sources, the effective date is either [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] or the date of startup of the source, whichever is later. New sources are defined as sources that began construction on or after June 4, 2010, or commenced reconstruction or modification after [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]. C. Summary of Significant Changes Since Proposal 1. Revision of the Subcategories Energy Recovery Units In the final 2011 CISWI Rule, we established separate subcategories based on the types of fuels and wastes ERUs were designed to burn. Energy Recovery Units (e.g., units that would be boilers and process heaters but for that fact that they combust solid waste) designed to burn gaseous fuels and liquids that are solid waste were included in one primary subcategory,*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 43 of 526 and the other primary subcategory was for units designed to burn solid fuels or predominantly non-coal solid materials. In the final 2011 CISWI rule, the solid fuel ERU subcategory was further divided into separate subcategories for coal and biomass units, with separate limits for CO, NO x, and SO 2 to account for significant differences in unit design for these two types of fuels and the impacts the different unit designs have on emissions of these pollutants. Because the public was not afforded an opportunity to comment on the revision to the ERU subcategory, we identified this as a reconsideration issue in the March 21, 2011, notice of intent to reconsider certain aspects of the 2011 CISWI Rule. Certain petitions for reconsideration supported the further subcategorization of the solid-fuel ERU subcategory and suggested that all nine emission limits should be divided between coal and biomass ERUs, instead of only having different limits for CO, NO x and SO 2 . We granted reconsideration of our subcategorization approach for ERUs and proposed to establish different emission limits for PM, Cd, Pb, and D/F between coal and biomass units, in addition to establishing different limits for CO, NO x , and*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 44 of 526

SO 2 . We also solicited comment on whether we should also subcategorize solid-fuel ERUs for HCl and Hg. Based on comments and information received during the comment period, we have determined that it is appropriate to subcategorize solid fuel ERUs for all nine CAA section 129 pollutants. We recognize that there are significant design and operational differences between biomass and coal ERU units that impact the generation of all nine regulated pollutants, and, for this reason, we are establishing separate emission standards for all nine pollutants from coal and biomass ERUs in this final

rule. In addition, since issuing the proposed reconsideration CISWI rule, we have received data which allowed us to update our inventory of ERUs. The inventory adjustments we made more accurately reflect the definition of solid waste. Based on the new data, we removed three units from the final rule inventory of biomass ERUs that were identified as being non-waste burning units and re-analyzed the emission limits for the solid-biomass ERU subcategory. We also received additional CO emissions data and re-analyzed the performance of the best-performing ERU in the solid-coal ERU subcategory. The emission limits in this final rule reflect the new inventory and emission data received; however, we have used the same methodology as in the 2011 CISWI*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 45 of 526 rule and December 23, 2011, reconsideration proposal for establishing the emission limits. Waste-burning Kilns Prior to the reconsideration proposal, the EPA performed an analysis of the materials being combusted in the entire inventory of Portland cement kilns in light of the final NHSM rule (See memorandum “Revised Floors without Kilns that Would have been CISWI Kilns Had the Solid Waste Definition Applied” in the CISWI docket). As a result of this analysis, we added 11 kilns to our inventory of waste-burning kilns. In addition to this, we further reviewed the Portland cement emissions test

records and identified some additional test data for kilns that were added to the CISWI inventory following the March 21, 2011, final rule publication. This newly-identified data was extracted and compiled into the CISWI database, and then the MACT floor emission limits were re-calculated in the December 23, 2011, proposed rule to reflect the updated inventory and additional data. Following proposal, we were also notified of one additional waste-burning kiln. We added this kiln to our inventory, bringing the total waste-burning kiln inventory to 24

kilns. We recalculated the standards in this final rule to include all 24 waste burning kilns.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 46 of 526 As with the new ERU standards, we have used the same methodology to establish today’s emission limits as we used for

the final 2011 CISWI rule. We have also retained the emissions concentration basis for the standards. However, Table 4 of this preamble presents the emission limits for PM, NO x , SO 2, and Hg on a production basis for comparison. Table 4. Waste-burning Kiln Emission Limits Expressed in Production Basis Pollutant (units) Existing kilns a New kilns a Hg (lb/MM ton clinker) 58 21 PM (lb/ton clinker) 0.018 0.018 NO x (lb/ton clinker) 6.7 2.1 SO 2 (lb/ton clinker) 8.9 1.9 a. Approximate. 2. Revisions to the Monitoring Requirements After the March 21, 2001, final rule, petitioners identified computational issues for correcting CO concentration measurements to 7 percent oxygen for periods when the oxygen content of the flue gas approaches the ambient air oxygen content during startup and shutdown periods for sources that demonstrate compliance with the CO limit using CEMS. The equation for the 7 percent oxygen correction is X ppm CO*(20.9 – 7)/(20.9 - %O2 of flue gas stream). As seen by this equation, as the flue gas stream oxygen content gets closer to 20.9, the value of X is multiplied by an ever increasing factor. For*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 47 of 526 example, when the stack gas oxygen content is 4 percent, the factor is 0.82. If the stack gas oxygen content is 20 percent, the factor increases to 15.4. Therefore, a flue gas CO concentration reading of 100 ppm would be corrected to 82 ppm for a stack gas at 4 percent oxygen content, but would become a 1,540 ppm corrected concentration for a stack gas at 20 percent oxygen content. In the extreme, at a 20.8 percent stack gas concentration (i.e., approximating ambient air oxygen content), the same 100 ppm measurement would be corrected to 13,900 ppm. Petitioners noted that oxygen contents relatively close to ambient air often are maintained during combustion unit startup and shutdown in order to safely operate the combustion unit. Therefore, CO readings during these periods would be multiplied by an uncharacteristically high correction factor, and the resulting corrected CO concentrations inflated due to the 7 percent oxygen correction. Petitioners and commenters presented data that show these corrected data points would have the potential to drive the 30-day rolling average values beyond the

emission limit for the affected units. Petitioners suggested various approaches to remedy this situation, with one being to not require the 7 percent oxygen correction requirement during unit startup and shutdown for sources that demonstrate compliance with the CO limit using*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 48 of 526 CEMS. In other words, the CEMS data as reported at stack gas concentration without oxygen correction would be included in the rolling average calculations for periods when the combustion unit is either being started up or shutdown instead of applying the oxygen correction to that data before it is included in the calculation of the 30 day rolling average. During all other operating periods, the CEMS data would be corrected to a 7 percent oxygen concentration prior to calculating the rolling average. Stated otherwise, the data obtained during startup and shutdown, which will not include the 7 percent oxygen correction, will be added to the oxygen corrected data collected during all other periods to calculate the 30 day average that is used to determine continuous compliance with the applicable CO limit for sources that demonstrate compliance using CEMS. Prior to issuing the reconsideration proposal, we received data for one unit in one subcategory (coal ERUs) that indicated startups usually occur over a 4-hour period, and shutdowns occur over a 1 hour period. Therefore, we proposed provisions for calculating the 30-day CO rolling average that would allow the source to use CEMS data that does not include the oxygen correction to be used during the first 4 hours of operation from a cold start and the 1 hour of operation following the last waste material being fed to the combustion unit during shutdown*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 49 of 526 procedures of the unit. Since proposal, however, we received comments on this provision, primarily pointing out that longer periods are required to protect combustion equipment from rapid temperature swings, which could cause damage to the fireboxes or

kiln surfaces. Commenters also contended that the limited information concerning the startup and shutdown periods during which the oxygen correction would not be required did not reflect the needs for all combustor types or control device configurations. We have revised the shutdown and startup period of operation to be more generally applicable to CISWI units and we determined that the startup period should include the times prior to the source reaching the minimal operating temperature, but in no case longer than 48 hours. For shutdown, we determined as at proposal that shutdown begins after the last waste has been fed to the combustor prior to shutdown, but we have revised the final rule to indicate that the shutdown period may not exceed 24 hours. We have, therefore, specified in the final rule an upper limit of 48 hours for startup periods to use uncorrected CEMS data and 24 hours for shutdown periods to use uncorrected CEMS data in the final rule. As at proposal, sources

must indicate in the CEMS data records which CEMS data are uncorrected because they were obtained during the startup and shutdown period. We are also requiring in the final rule that*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 50 of 526 sources establish a minimum operating temperature for the unit during the initial performance test, through an engineering assessment, or based on manufacturer specifications the minimum operating temperature at which point sources would be required to begin applying the oxygen correction to the emissions data after startup. Sources will be required to keep records of this temperature and take temperature readings that correspond to the startup period and report that information along with the CEMS calculations for the 30 day rolling average. The oxygen correction issue described above for CO CEMS data collected during startup and shutdown applies equally to other pollutants measured with a CEMS that is corrected to 7 percent oxygen. The final CISWI rule allows sources to demonstrate compliance with any of the standards using CEMS, and, for this reason, we have expanded authorization to use uncorrected CEMS data during periods of startup and shutdown to all pollutants for which a source demonstrates compliance with CEMS. In the final rule, the 7 percent oxygen correction is not required during startup and shutdowns discussed above applies to any CISWI sources that elect to demonstrate continuous compliance with any of the emission limits with a CEMS instead of performing stack tests. 3. Oxygen Monitoring Requirements*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 51 of 526 At proposal, we included provisions and definitions in an attempt to ensure that sources would be able to use existing oxygen monitoring systems to meet the continuous oxygen monitoring requirements. However, commenters identified potential issues with our proposed provisions and definitions. To address these commenters’ concerns, we have revised the provisions in 40 CFR 60.2165 and 40 CFR 60.2730 to clarify the methodology for establishing and monitoring the oxygen level. Furthermore, the definition of “oxygen analyzer system” has been revised to clarify the appropriate locations and nomenclature of possible existing monitoring systems so that their use to meet these requirements is fully enabled. 4. Removal of the Definition of Homogeneous Waste

The EPA included in the final 2011 CISWI Rule a definition of homogenous waste and a process for evaluating claims that a particular waste stream is homogenous. The definition was added to the 2011 CISWI rule in response to comment. Because the determination of homogeneity of a waste stream is relevant to applicability of CAA section 129 to qualifying small power producers and qualifying cogeneration facilities, we determined it was reasonable to include a definition of “homogenous waste” and a process by which sources could obtain a determination that a waste stream is homogenous from the EPA.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 52 of 526 In the 2011 CISWI Rule, the EPA stated that a determinationconcerning whether a waste is homogeneous is made on a case-bycase basis. The EPA added provisions to the CISWI final rule that requires source owners or operators seeking the exemption

from the definition of solid waste incineration unit contained in CAA section 112(g)(1)(B) to submit a request for a homogeneous waste determination to the EPA. The rule required the request to include information describing the materials to be combusted and why they believe the waste is homogeneous. The

2011 CISWI rule also indicated that the determination of what constitutes a homogeneous waste is not delegable to the state or local agencies. In the December 23, 2011, reconsideration proposal, we proposed the definition of “homogeneous waste” and the provisions for making homogeneous waste determinations that

were included in the 2011 CISWI rule. Commenters generally did not agree with the proposed definition, arguing that the definition introduced ambiguities and stipulations that would prevent classification of many materials (including fossil fuels) as being “homogeneous.” We reevaluated the definition in light of the comments and determined that the definition was unduly restrictive; however, we also determined that commenters proposed alternative definitions were equally problematic. We further recognized that*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 53 of 526 due to the variability of waste and the fact specific nature of these determinations that a definition of homogenous waste was neither necessary nor preferable. Therefore, the final rule does not include a definition of “homogeneous waste”. We are retaining, however, the requirement that qualifying small power producers and qualifying cogeneration facilities that combust

solid waste obtain a determination from the EPA such waste is homogenous. (40 CFR 60.2020 and 40 CFR 60.2555). 5. Non-detect Methodology Using Three Times the Detection Level Prior to reconsideration proposal, the EPA conducted a review of sampling volumes and detection levels across various emission testing ICR efforts on various combustion sources (See memorandum “Updated data and procedure for handling below detection level data in analyzing various pollutant emissions

databases for MACT and RTR emissions limits” in the CISWI docket). As a result of this analysis, we determined recommended values for three times the RDL (3xRDL) that may be used as a minimum emission limit value that can be accurately measured by most laboratories. These recommended values were then compared with calculated emission limits and, if the calculated limit was less than the recommended 3xRDL, the 3xRDL value was selected as the limit. Since the December 23, 2011 reconsideration proposal was published, we have continued our review and determined 3xRDL*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 54 of 526 values for additional metals measured using EPA Reference Method 29. These include recommended values for Cd and Pb, and we have applied this methodology to those emission limits in addition to the D/F and Hg limits that were re-evaluated in the reconsideration proposal. As discussed in the reconsideration proposal, the premise for this approach is the same as described in the final 2011 CISWI rule, but using a broader data set to establish the 3xRDL value. We have not changed the methodology

of the emission limit calculation or tabulation of the three

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

CISWI rule. Since reconsideration proposal, some commenters have noted

that the EPA Method 5 minimum catch values were below levels

established in similar studies on this reference method. In light of these comments, we have reconsidered the 1 mg minimum catch value used in the reconsideration proposal and are now using a 2 mg minimum catch in establishing the final rule emission limits. Our review and determination of the 2 mg minimum catch are discussed in “EPA Memo from Ray Merrill on PM

RDL” in the CISWI docket. In a similar fashion, the CO span adjustment methodology

has been further refined in consideration of comments on the approach used to adjust CO instrumental test methods readings in*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 55 of 526 reconsideration proposal. The methodology for adjusting CO

emission test run data to reflect the limitations from the instrument span used at testing is described in the “CISWI Emission Limit Calculations for Existing and New Sources for the

Reconsideration Final Rule" memorandum in the CISWI docket. 6. Parametric Monitoring for Additional Control Device Types In the December 23, 2011, reconsideration proposal, we stated that we believed the control devices with monitoring provisions expressly identified in the rules should encompass most types of control devices that we anticipate the various types of CISWI units will use to meet the emission limits. However, recognizing that a source might want to employ another type of control that is not addressed, we provided provisions for sources to petition for specific operating limits for alternative control devices to be established during a performance test. These provisions also allow specific operating limits to be established for CISWI units without any air pollution control devices, such as for units that employ material balance operating limits in conjunction with periodic stack testing to demonstrate continuous compliance. We also determined that dry sorbent injection (or dry scrubbers) may be one type of additional control device that CISWI units may widely use to control acid gases. Commenters*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 56 of 526 agreed with our statement and encouraged the EPA to identify operating parameters for dry scrubbing systems in the final rule. We have done so, by both defining “dry scrubber” in the rule, and specifying that the sorbent injection rate must be monitored and maintained at or above the operating rate established during the hydrogen chloride performance test (40 CFR 60.2165 and 40 CFR 60.2730). Also regarding monitoring, we determined after proposal that we had not clarified in the rule that sources opting to use

CEMS to measure NO X , Hg or D/F were not required to monitor activated carbon injection rates (for Hg and D/F CEMS-equipped units) or SNCR parameter monitoring (for NO X CEMS-equipped units). Our intent had been to not require applicable control device parameter monitoring if a CEMS was in use for the pollutant being controlled by the device. Control device parameter monitoring is an acceptable and established method for determining continuous compliance, and it is appropriate to require such monitoring when coupled with period stack testing. However, direct, continuous emission measurements with a CEMS are sufficient for determining compliance for CISWI units, without requiring parametric monitoring. In cases where CEMS data are available to directly measure regulated pollutants, operating parameter data would be duplicative.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 57 of 526 7. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-burning Kilns In today’s rule, we are finalizing the proposed monitoring requirements for ERUs with an annual average heat input rate greater than 250 MMBtu/hr. As we stated in the proposal, recent EPA experience with the utility boiler source category has led the EPA to allow PM CEMS as an alternative, rather than a requirement. The PM CEMS technology may not be sufficient to certify accurate monitor performance in the PM concentration range of the CISWI ERU limits. In related ongoing work on the Portland cement source category, we realize that similar concerns regarding PM CEMS are applicable. Therefore, we are also removing PM CEMS (PS-11) requirements for waste-burning kilns, and instead, requiring continuous parameter monitoring systems for these units similar to those being required for major industrial boilers and utility boilers. To be consistent with these other rules, we have incorporated 30-day rolling averages to be measured with PM CPMS.

8. Effective Dates At reconsideration proposal, we proposed to extend the effective dates for existing units in the incinerator, ERU, and waste-burning kiln subcategories. We are finalizing the revision of the effective dates for those three subcategories and, based*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 58 of 526 on comments received during the comment period, we are also extending the effective date for units in the small remote incinerator subcategory. Comments on extending the effective date for small remote incinerators and our responses to these comments are found in the “Summary of Comments and Responses to

the CISWI Reconsideration” document in the CISWI docket. The effective date for existing CISWI sources subject to standards in this final rule is 5 years after the date of publication of this final rule or 3 years after the state plan is approved, whichever happens earlier. This date is being finalized in order to provide facilities sufficient time to install controls or to make other compliance-related decisions. For new sources, the EPA is finalizing the proposed change of the effective date to 6 months after the date of publication of the final reconsideration rule or at startup, whichever is

later. 9. Definition of Waste-burning Kiln In the December 23, 2011 reconsideration proposal, we proposed revisions to the definition of “waste-burning kiln” to indicate that the term “does not include a kiln that is feeding non-hazardous secondary ingredients exclusively into the cold end of the kiln.” In proposing this language, the EPA intended to codify principles set out in a previous action granting and*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 59 of 526 denying reconsideration of the NESHAP for Portland cement kilns. See 76 FR 28318, 28322 (May 17, 2011); see also Memorandum

“Revised Floors Without Kilns That Would Have Been CISWI Kilns Had the Solid Waste Definition Applied” (EPA, April 25, 2011) (which memorandum is summarized in the May 17 Federal Register notice). The May 17 notice and April 25 memorandum state in essence that combustion does not occur in any region of a cement kiln except the hot end, and that cement kiln dust added to the

hot end of a cement kiln also is not combusted since it is inorganic and essentially inert. The language used at proposal captured some but not all of these principles, since it refered only to the “cold end” of a cement kiln, as pointed out by a number of commenters. The EPA is revising the definition in the final rule to accurately reflect the May 17 preamble and April 25 Memorandum discussion of when combustion occurs in a cement kiln. In addition, we are adding the fact that combustion in a cement kiln does also take place in the combustion zone of a precalciner or riser duct

burner. One further clarification is appropriate. The May 17 preamble contains one reference to legitimacy criteria for determining when a secondary material is being recycled. 76 FR at 28322/1-2. The threshold issue for determining if a unit is*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 60 of 526 subject to section 129 is whether it “combusts” solid waste material (see section 129 (g)(1)). For cement kilns, this determination does not turn on legitimacy of recycling, but rather on the nature of the cement kiln process. Consequently, if combustion of solid waste is not occurring, a unit is not a CISWI, irrespective of whether or not legitimate recycling is occurring.

D. Technical Corrections and Clarifications We are also including some technical corrections and clarifications in the final rule, as outlined below:

• Operating parameter limits during performance testing – While we believe it is intrinsic that established operating parameter limits do not apply during subsequent performance testing, we are providing language in the NSPS and emission guidelines to clarify that they are waived during performance testing (40 CFR 60.2145(c) and 40 CFR 60.2710(c)).

• Bypass stacks on waste-burning kilns – While not included in the final rule text, we are clarifying here that the definition of “bypass stack” in today’s final rule does not have the same meaning as an “alkali bypass” used by some waste-burning kilns that manufacture Portland cement.

• Clarifying that, consistent with CAA section 129(f)(1), June 4, 2010 is the appropriate new source applicability date in 40 CFR 60.2015(a)(1).

• Revising the title of Table 2 to subpart DDDD to clarify that these emission limits apply to incinerators which are currently subject to CISWI emission limits promulgated in the 2000 CISWI rule.

• Clarifying that petitions for specific operating limits for control devices not listed in this subpart must be submitted to the Administrator at least 60 days before the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 61 of 526 performance test is scheduled to begin(40 CFR 60.2115 and 40 CFR 60.2680).

• Providing definitions of “30-day rolling average” and “responsible official” to clarify what is meant by these terms.

• Adding text to the provisions for particulate matter monitoring provisions for ERUs to clarify that the 250 MMBtu/hr threshold is based upon the average annual heat input rate, consistent with how this threshold is applied in the industrial boiler NESHAP.

• Revising the affirmative defense text to clarify that these provisions apply to violations of standards, and to further clarify the reporting timeline and requirements for sources seeking to assert an affirmative defense (40 CFR 60.2120 and 40 CFR 60.2685).

• Revising the recordkeeping provisions in 40 CFR 60.2175(v) and 40 CFR 60.2740(u) to reflect the categorical non-waste determination provisions of 40 CFR 241.4.

• Revised the electronic reporting provisions in 40 CFR 60.2235 and 40 CFR 60.2795 to clarify the timing and mechanism for submitting these reports and to be consistent with the electronic reporting language in more recent rulemakings. E. Major Public Comments and Responses We have included some of the major comment topics and our responses below in the preamble. All other comments and responses are provided in the “Reconsideration Response to

Public Comments Document” in the CISWI docket. Solid-fuel ERU Subcategorization Comment: Several commenters support the proposed separate coal and biomass standards for D/Fs, CO, NO x , SO 2 , PM, Cd, and Pb. However, these commenters further urge the EPA to establish*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 62 of 526 separate standards for HCl and Hg for coal and biomass. Commenters state that the EPA’s recognition that design and operational differences between combustors designed to combust coal and those designed to combust biomass is evidence to support subcategorizing emission limits for all pollutants. One commenter discussed differences in biomass and coal fuel rank, and the significant boiler design differences in furnace height and volume that exist between units designed to combust

different fuel ranks of coal-fired boiler furnaces. As an example, one commenter noted that a low-rank coal (high slagging lignite) furnace can be 1.65 times the plan area, and 1.45 times the furnace height, of a similar capacity furnace combusting a high rank coal (medium volatile bituminous). The commenter stated that this large difference is even among varying grades of coal, with biomass units being fuels of even lower rank than lignite. Therefore, according to the commenter, furnace area and height (and hence, volume) are significantly different between energy recovery units designed to combust coal and those designed for biomass combustion. The commenter highlighted an analysis of their existing boilers to see the feasibility of substituting biomass for coal. The commenter’s results indicated that, due to fundamental design attributes of their coal-fired units, they could only co-fire up to 20 percent biomass in the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 63 of 526 units. The commenter explained that this limitation was due to design issues pertaining to the unit being designed for coal, such as superheater tube spacing, number and location of soot blowers, fouling characteristics of biomass ash, and the impact the high moisture levels of biomass fuels have on fan capacity. The commenter stated that these findings further support that coal and biomass are not interchangeable within ERUs, and therefore supports subcategorizing emission limits between the two types of unit. The commenter also contended that the EPA acknowledged significant design differences and their impacts on Hg emissions during development of the Utility MACT Final Rule. The commenter urges the EPA to take a similar approach in CISWI. One commenter agreed with differentiation between coal-fired and biomass ERUs, but supported keeping solid-fuel ERUs together for purposed of HCl and Hg emission limits. Another commenter argued that all of the EPA’s subcategories are unlawful and arbitrary, noting that their reasons for this belief were given in their comments on the 2010 proposal. Response: As stated above, the EPA is finalizing separate limits for all nine pollutants for biomass and coal ERUs. Several commenters identified additional details regarding differences in design between energy recovery units designed to combust biomass and those designed to combust coal exist. One commenter*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 64 of 526 brings up very valid points on differences in furnace sizing, indicating that biomass boilers have significantly larger volumes than comparable capacity coal units. Furthermore, we agree with the commenter concerning differences in moisture

content between biomass and coal-fired units. We reviewed data in the CISWI database, and see that the stack gas moisture content of coal-fired energy recovery units is around 11.6 percent, and is about 19.2 percent for the biomass energy recovery units. We have considered these technical arguments, among other technical differences we have previously considered in our decision to subcategorize energy recovery units, and how these design differences impact pollutant emission characteristics of the ERU. As a result, we have determined that subcategorizing all nine pollutant emission limits between coal and biomass solid-fuel ERUs is appropriate for the final CISWI

rule. One commenter supported the differentiation between coal and biomass, but in keeping HCl and Hg limits together. However, for the reasons given above, we have determined that all nine pollutants should be subcategorized. We note that comments on subcategorization that were submitted on the 2010 proposal have already been responded to. Homogeneous Waste Definition*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 65 of 526 Comment: Several commenters contend that the proposed definition of “homogeneous waste” is too strict and inflexible. Commenters argue that traditional fuel, such as coal, would not even meet the definition since traditional fuels typically have some degree of variability of composition. Commenters further argue that the result of the proposed definition of “homogeneous waste” is contrary to Congress’ intent. Commenters assert that “homogeneous” should mean that all the materials are generated from the same type of production process and is material specific. Several commenters also oppose the additional conditions on mixtures of homogeneous wastes as having to be conditioned or processed. Some commenters also believe that multiple different homogenous wastes may be combusted at the same time, meaning a facility can combust railroad ties, traditional coal, treated seed and resonated wood at the same time and still qualify as burning “homogeneous

waste.” Response: As stated above, we are removing the proposed definition of homogenous waste and we are not including a

revised definition in the final rule for the reasons discussed above in Section IV of this preamble. “Summary of Significant Changes Since Proposal”.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 66 of 526 We do not believe the commenters’ suggested definitions are appropriate or workable and could have the unintended result of making almost any waste stream or combination of waste streams homogenous. We also believe commenters have failed to provide sufficient support for their claims that their proposed definitions are consistent with the statutory intent. We believe that case-by-case determinations are the appropriate approach given the inherent variability of waste streams. While we are removing the definition of homogenous waste from the final rule, we are retaining the requirement for sources to obtain a homogenous waste determination in order to qualify for the exemption for qualifying small energy producers and qualifying cogeneration facilities. We are also retaining the recordkeeping provisions to ensure that sources adequately provide and maintain evidence that they qualify for the exemption.

Contained Gaseous Material Comment: Commenters support the EPA retaining the 2000 CISWI rule’s definition of “contained gaseous material.” Some commenters believe that the EPA should expressly include the definition of “contained gaseous material” in the amendatory

text to confirm that the definition is back in the CISWI rule.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 67 of 526 Response: As proposed, we are retaining the definition of “contained gaseous material” found in the 2000 CISWI Rule in today’s final rule. We disagree with commenters that state the definition was not in the proposed rule. The basis of the amendatory text remains the 2000 CISWI rule - not the 2011 CISWI rule - because the 2011 CISWI rule has not yet been codified in the Code of Federal Regulations. Therefore, by not including the amendatory instruction to delete the definition in the 2000 rule, we have retained the definition as contained in the 2000

CISWI rule. Oxygen Correction During Startup and Shutdown Comment: Commenters generally support allowing the use of uncorrected CEMS data during startup and shutdown. Several

commenters are concerned that the four

‐ hour startup and a onehour shutdown period (derived from a single coal fired unit) are not sufficient for all the CISWI unit types and technologies.

Other commenters believe there should be no time limitations on shutdown and startups. One commenter, however, believes the proposed time limit is appropriate. Some commenters recommend using the Boiler MACT rule approach using load to define when

the O 2 corrections do not apply. Commenters also urge the EPA to eliminate the O 2 correction for all CEM-measured emission limits, not just CO, during*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 68 of 526 startup and shutdown periods. Commenters also support making this allowance available to all types of CISWI unit, not only

ERUs. Response: In today’s final rule, we are retaining the provision that allows sources to use uncorrected CO CEMS data during periods of startup and shutdown. Based on comments and the technical justifications for allowing the use of uncorrected CEMS data identified during the comment period, we are expanding this provision to any pollutant for which continuous compliance is being determined using CEMS as explained above in “Section IV: Summary of Significant Changes Since Proposal.”

F. What other actions are we taking? In this final action, we are denying requests for reconsideration on all issues contained in the petitioners’ requests for reconsideration that we did not include in the December 23, 2011, proposed rule. The issues for which we are denying reconsideration failed to meet the standard for reconsideration under CAA section 307(d)(7)(B) and we determined that reconsideration was not otherwise appropriate. Specifically, on these issues, the petitioner has failed to show the following: That it was impracticable to raise their objections during the comment period; or that the grounds for*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 69 of 526 their objections arose after the close of the comment period; and/or that their concern is of central relevance to the outcome

of the rules. We have concluded that no clarifications to the underlying rules are warranted for the 19 remaining petitioners’

issues for the reasons set forth in the memorandum titled

“Denied CISWI Petition Issues” found in the CISWI docket. The following issues are addressed in that memorandum.

• Work practice standards should be used for startup/shutdowns and malfunctions.

• Exempt or revise limits for units combusting de minimis amounts of waste.

• Clarify applicability of CISWI standards to marine vessel units or units located on the outer continental shelf.

• Clarify applicability to temporary or portable units.

• Reduce performance testing requirements to be more consistent with requirements of other rules.

• Provide allowance for varying operating parameter limits with varying operating load.

• Reconsider elimination of provisions that allow missing CEMS data.

• Revise or remove maximum and minimum operating load and other control device parameters.

• Do not include emissions data for combination boiler units.

• CISWI does not satisfy CAA 112(c)(6) requirements for POM and PCB.

• MACT floor statistical approach concerns.

• MACT floor must reflect the average, the UPL is not the same as the average emission level.

• MACT floor pollutant-by-pollutant approach concerns.

• Non-detect methodology is unlawful.

• Beyond-the-floor analysis is unlawful and arbitrary.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 70 of 526

• Compliance cost and wildlife concerns for small remote incinerators.

• “Refinery gas” definition should be included in the CISWI rule.

• Startup and shutdown periods should be expanded to include non-steady state periods.

• Clarify that construction and demolition wood is not a solid waste. G. What are the impacts associated with the amendments? 1. What are the primary air impacts? We have estimated the potential emissions reductions from existing sources that may be achieved through implementation of the emission limits. However, we realize that some CISWI owners and operators are likely to determine that alternatives to waste incineration are viable, such as further waste segregation or sending the waste to a landfill or MWC, if available. In fact, sources operating incinerators, where energy recovery is not a goal, may find it cost-effective to discontinue use of their CISWI unit altogether. Therefore, we have estimated emissions reductions attributable to existing sources complying with the limits, as well as those reductions that would occur if the facilities with incinerators and small, remote incinerators

decide to discontinue the use of their CISWI unit and use alternative waste disposal options. For units combusting wastes for energy production, such as ERUs and waste-burning kilns, the decision to combust or not to*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 71 of 526 combust waste will depend on several factors. One factor is the cost to replace the energy provided by the waste material with a traditional fuel, such as natural gas. Another factor would be whether the owner or operator is purchasing the waste or obtaining it at no cost from other generators, or if they are generating the waste on-site and will have to dispose of the materials in another fashion, such as landfills. Lastly, these units would have to compare the control requirements needed to meet the CISWI emission limits with those needed if they stop burning solid waste and are then subject to a NESHAP instead. As mentioned before, we have attempted to align the monitoring requirements for similar non-waste-burning sources as closely as possible in an effort to make them consistent and to help

sources make the cross-walk between waste and non-waste regulatory requirements as simple as possible.

The emissions reductions that would be achieved under this final rule using the definition of solid waste under RCRA and the proposed CISWI emission limits are presented in Table 5 of this preamble. Table 5. Emissions Reductions for MACT Compliance and Alternative Disposal Options for Existing CISWI Using the Emission Limits*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 72 of 526

Pollutant Reductions

achieved through meeting MACT (ton/yr) Reductions achieved

assuming incinerators and small, remote incinerators use alternative disposal (ton/yr) a HCl 781.3 793.4 CO 22,667 22,632 Pb 2.60 2.61 Cd 1.783 1.784 Hg 0.365 0.369 PM (filterable) 2,398 2,402 dioxin, furans 0.00010 0.000103 NO x 7,127 7,234 SO 2 7,287 7,338 Total 40,265 40,403 a The estimated emission reduction does not account for any secondary impacts associated with alternate disposal of diverted ERU fuel. The EPA expects that many existing CISWI owners and operators may find that alternate disposal options are preferable to complying with the standards for the incinerator and small, remote incinerator subcategories. Our experience with regulations for MWC, HMIWI and, in fact, CISWI, has shown that negative growth in the source category historically occurs upon implementation of CAA section 129 standards. Since CISWI rules were promulgated in 2000 and have been in effect for existing sources since 2005, many existing units have closed. At promulgation in 2000, the EPA estimated 122 units in the CISWI population. In comparison, the incinerator subcategory in this rule, which contains any such units subject to the 2000 CISWI*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 73 of 526 rule, has 28 units. The EPA is not aware of any construction of new units since 2000, so we do not believe there are any units that are currently subject to the 2000 CISWI NSPS. The revised CISWI rule is more stringent, so we expect this trend to continue. However, the EPA does recognize that some facilities may opt to replace aging incinerator units with new units where it is cost-effective or alternative disposal options are not feasible, as may be the case with some incinerators, or in very

remote locations. We estimate that there could be one new incineration unit within the next 5 years following this final rule, and possibly five new small remote incinerators within that time. In these cases, we have developed model CISWI unit emissions reduction estimates for these subcategories using the current existing unit baseline, based on average emission concentration values and sizes from our current inventory and the new source emission limits. Table 6 of this preamble presents the model plant emissions reductions that are expected

for new sources.

Table 6. Emissions Reductions on a Model Plant Basis

Pollutant Emission reduction for CISWI Subcategory Model Units (tpy unless otherwise noted)

Incinerator Small, remote incinerator HCl 2.62 0.0 CO 0.0 6.12 Pb 0.59 0.10*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 74 of 526

Pollutant Emission reduction for CISWI Subcategory Model Units (tpy unless otherwise noted)

Incinerator Small, remote incinerator Cd 0.15 0.018 Hg 0.0027 0.00032 PM (filterable) 106 13.7 D/F (total mass) a 0.0012 0.0

NO x 11.6 4.00 SO 2 5.5 4.09 Total 127 28.1 a D/F estimates are given in lb/yr.We do not anticipate that any new energy recovery or wasteburning kiln units will be constructed and will instead use alternative waste disposal methods or alternative fuels that will not subject them to the CISWI rule. For example, wholetires obtained from approved tire management programs and tirederived fuel from which the metal has been removed is not

considered solid waste under the definition of solid waste. Consequently, new cement kiln owners will assess their regulatory requirements under CISWI for burning whole tires or tire-derived fuel that does not have metals removed against the costs associated with removing the metal or obtaining tires from an approved source and complying with the applicable NESHAP instead of the CISWI rule. Our research suggests that metal removal is routinely practiced and that several state waste tire*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 75 of 526 management programs are already in place, and would most likely be a viable option for new kiln owners so that they would not be subject to the CISWI regulations. Indeed, we expect that all existing cement kilns that are classified as being waste-burning solely due to whole tires will, by the effective date for the CISWI standards, find a way to obtain their tires through an approved tire management plan. Likewise, new sources could engineer their process to minimize waste generation in the first place, or to separate wastes so that the materials sent to a

combustion unit would not meet the definition of solid waste to begin with. For waste that is generated, our cost analyses have found that alternative waste disposal is generally available and less expensive. 2. What are the water and solid waste impacts? In our analysis, we have selected the lowest cost alternative (i.e., compliance or alternative disposal) for each facility. We anticipate affected sources will need to apply

additional controls to meet the emission limits. These controls may use water, such as wet scrubbers, which would need to be treated. We estimate an annual requirement of 71 billion gallons per year of additional water would be required as a result of operating additional controls or increased sorbent use.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 76 of 526 Likewise, the addition of PM controls or improvements to controls already in place will increase the amount of particulate collected that will require disposal. Furthermore, ACI may be used by some sources, which will result in additional solid waste needing disposal. The annual amounts of solid waste that would require disposal are anticipated to be approximately 29,484 tpy from PM capture and 18,734 tpy from ACI. Perhaps the largest impact on solid waste would come from owners and operators who decide to discontinue the use of their

CISWI unit and instead send waste to the landfill or MWC for disposal. Based on tipping fees and availability, we would expect most, if not all, of this diverted waste to be sent to a local landfill. As we discuss above, it may be that a good portion of the incinerators would determine that alternative disposal is a better choice than compliance with the standards. We estimate that approximately 110,417 tpy of waste would be

diverted to a landfill. For new CISWI units, we estimate an annual requirement of 9,102 million gallons per year of additional water would be required as a result of operating additional controls. The annual amounts of solid waste that would require disposal are anticipated to be approximately 10,850 tpy from PM capture and 14,088 tpy from ACI.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 77 of 526 3. What are the energy impacts? The energy impacts associated with meeting the emission limits would consist primarily of additional electricity needs to run added or improved air pollution control devices. For example, increased scrubber pump horsepower may cause slight increases in electricity consumption and sorbent injection controls would likewise require electricity to power pumps and motors. In our analysis, we have selected the lowest cost alternative (i.e., compliance or alternative disposal) for each facility. By our estimate, we anticipate that an additional 218,869 MW-hours per year would be required for the additional and improved control devices. As discussed earlier, there could be instances where owners and operators of ERUs and waste-burning kilns decide to cease burning waste materials. In these cases, the energy provided by the burning of waste would need to be replaced with a traditional fuel, such as natural gas. Assuming an estimate that 50 percent of the energy input to ERUs and kilns are from waste materials, an estimate of the energy that would be replaced with a traditional fuel if all existing units stopped burning waste materials, is approximately 56 TBtu/yr. For new CISWI units, we anticipate that 511 MW-hours per year would be required for additional and improved control*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 78 of 526 devices. Since we do not anticipate any new energy recovery or waste-burning kiln units to be constructed, there would be no additional estimate for energy that would be replaced with a

traditional fuel. 4. What are the secondary air impacts? For CISWI units adding controls to meet the emission limits, we anticipate minor secondary air impacts. The combustion of fuel needed to generate additional electricity and to operate RTO controls would yield slight increases in emissions, including NO x , CO, PM and SO 2 and an increase in CO 2

emissions. Since NO x and SO 2 are covered by capped emissions trading programs, and methodological limitations prevent us from quantifying the change in CO and PM, we do not estimate an increase in secondary air impacts for this rule from additional electricity demand. We believe it likely that the incinerators may elect to

discontinue the use of their CISWI unit and send the waste to the landfill or other disposal means. As we discussed in the solid waste impacts above, this could result in approximately 110,417 tpy of waste going to landfills. By using the EPA’s Landfill Gas Estimation Model, we estimate that, over the 20- year expected life of a CISWI unit, the resulting methane*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 79 of 526 generated by a landfill receiving the waste would be about 96,300 tons. If this landfill gas were combusted in a flare, assuming typical flare emission factors and landfill gas chlorine, Hg, and sulfur concentrations, the following emissions would be expected: 20 tons of PM; 8 tons of HCl; 16 tons of SO 2 ; 890 tons of CO; 46 tons of NO x ; and 1.4 lbs of Hg. Similar to existing units, we anticipate minor secondary air impacts for new CISWI units adding controls as discussed

above. 5. What are the cost and economic impacts? We have estimated compliance costs for all existing units to add the necessary controls and monitoring equipment, and to implement the inspections, recordkeeping and reporting requirements to comply with the final CISWI standards. We have also analyzed the costs of alternative disposal for the subcategories that may have alternative options to burning waste, specifically for the incinerators and the small, remote incinerators that may have an alternative to incineration. In our analysis, we have selected the lowest cost alternative (i.e., compliance or alternative disposal) for each facility. Based on this analysis, we anticipate an overall total capital*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 80 of 526 investment of $811 million with an associated total annual cost of $272 million ($2008). Under the rule, the EPA’s economic model suggests theaverage national market-level variables (prices, productionlevels, consumption, international trade) will not change significantly (e.g., are less than 0.02 percent). The EPA performed a screening analysis for impacts on small entities by comparing compliance costs to sales/revenues (e.g., sales and revenue tests). The EPA’s analysis found the tests were below 3 percent for six of the nine small entities included in the screening analysis. In addition to estimating this rule’s social costs and benefits, the EPA has estimated the employment impacts of the final rule. We expect that the rule’s direct impact on employment will be small. We have not quantified the rule’s indirect or induced impacts. For further explanation and discussion of our analysis, see the introductory memo and Chapter 4 of the RIA. For new CISWI units, we have estimated compliance costs for units coming online in the next 5 years. This analysis is based on the assumption that one new incinerator will come online over 5 years and one new small, remote incinerator will come online each year over the next 5 years. Additionally, it was assumed*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 81 of 526 that each model unit will add the necessary controls, monitoring equipment, inspections, recordkeeping, and reporting requirements to comply with NSPS limits. Based on our analysis, we anticipate an overall total capital investment of $7.6 million over 5 years with an associated total annual cost (for 2015) of $2.3 million.

6. What are the benefits? We estimate the monetized benefits of this regulatory action to be $460 million to $1,100 million (2008$), 3 percent discount rate) in the implementation year (2015). The monetized benefits of the regulatory action at a 7 percent discount rate are $420 million to $1,100 million (2008$). These estimates reflect energy disbenefits valued at $3.8 million. Using alternate relationships between PM 2.5 and premature mortality supplied by experts, higher and lower benefits estimates are plausible, but most of the expert-based estimates fall between these two

estimates. 4 A summary of the monetized benefits estimates at discount rates of 3 percent and 7 percent is in Table 7 of this preamble.

4 Roman, et al., 2008. Expert Judgment Assessment of the Mortality Impact of Changes in Ambient Fine Particulate Matter in the U .S. Environ. Sci. Technol., 42, 7, 2268 – 2274.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 82 of 526 Table 7. Summary of the Monetized Benefits Estimates For the CISWI NSPS and EG in 2015 (Millions of 2008$) a,b

Pollutant Estimated Emission

Reductions (tpy) Total Monetized Benefits (3% Discount Rate) Total Monetized Benefits (7% Discount Rate) PM 2.5 915 $210 to $510 $190 to $460 PM 2.5 Precursors SO 2 7,338 $220 to $530 $200 to $480 NO x 7,234 $35 to $86 $32 to $78 Total $460 to $1,100 $420 to $1,000

a All estimates are for the implementation year (201 5) and are rounded to two significant figures so numbers may not sum across r ows. All fine particles are assumed to have equivalent health effects, but the benefit-per-ton estimates vary between precursors because each ton of precursor reduced has a different propensity to form PM 2.5 . Benefits from reducing HAP are not included. These estimates do not include the energy disbenefits valued at $3.8 million, but the rounded totals do not change. CO 2 -related disbenefits were calculated using the social cost of carbon, wh ich is discussed further in the RIA. These benefits estimates represent the total monetized human health benefits for populations exposed to less PM 2.5 in 2015 from controls installed to reduce air pollutants in order

to meet these standards. To estimate human health benefits of this rule, the EPA used benefit-per-ton factors to quantify the changes in PM 2.5 -related health impacts and monetized benefits based on changes in SO 2 and NOx emissions. These estimates are

calculated as the sum of the monetized value of avoided premature mortality and morbidity associated with reducing a ton

of PM 2.5 and PM 2.5 precursor emissions. To estimate human health benefits derived from reducing PM 2.5 and PM 2.5 precursor*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 83 of 526 emissions, we used the general approach and methodology laid out in Fann, Fulcher, and Hubbell (2009). 5 To generate the benefit-per-ton estimates, we used a model

to convert emissions of direct PM 2.5 and PM 2.5 precursors into changes in ambient PM 2.5 levels and another model to estimate the changes in human health associated with that change in air quality. Finally, the monetized health benefits were divided by the emission reductions to create the benefit-per-ton estimates. These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to support the development of differential effects estimates by particle type. Directly emitted PM 2.5 , SO 2, and NO x are the primary precursors affected by this rule. Even though we assume that all fine particles have equivalent health effects, the benefit-per-ton estimates vary between precursors depending on the location and magnitude of their impact on PM 2.5 levels, which drive population exposure. For example, SO 2 has a lower benefit-per-ton estimate than direct PM 2.5 because it does not

form as much PM 2.5 , thus, the exposure would be lower, and the

monetized health benefits would be lower.

5 Fann, N., C.M. Fulcher, B.J. Hubbell. 2009. “The i nfluence of location, source, and emission type in estimates of the human health benefits of reducing a ton of air pollution.” Air Qual Atmos He alth (2009) 2:169–176.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 84 of 526 It is important to note that the magnitude of the PM 2.5 benefits is largely driven by the concentration response function for premature mortality. Experts have advised the EPA to consider a variety of assumptions, including estimates based on both empirical (epidemiological) studies and judgments elicited from scientific experts, to characterize the uncertainty in the relationship between PM 2.5 concentrations and premature mortality. For this rule, we cite two key empirical studies, the American Cancer Society cohort study 6 and the extended Six Cities cohort study. 7 In the RIA for this rule, which is available in the docket, we also include benefits estimates derived from expert judgments and other assumptions.

The EPA strives to use the best available science to support our benefits analyses. We recognize that interpretation of the science regarding air pollution and health is dynamic and evolving. After reviewing the scientific literature and recent scientific advice, we have determined that the no-threshold model is the most appropriate model for assessing the mortality benefits associated with reducing PM 2.5 exposure. Consistent

6 Pope, et al., 2002. “Lung Cancer, Cardiopulmonary Mortality, and Long-term Exposure to Fine Particulate Air Pollution.” Journa l of the American Medical Association 287:1132-1141 7 Laden, et al., 2006. “Reduction in Fine Particulat e Air Pollution and Mortality.” American Journal of Respiratory and Cri tical Care Medicine

. 173: 667-672*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 85 of 526 with this recent advice, we are replacing the previous threshold sensitivity analysis with a new “LML” assessment. While a LML assessment provides some insight into the level of uncertainty in the estimated PM mortality benefits, the EPA does not view the LML as a threshold and continues to quantify PM-related mortality impacts using a full range of modeled air quality

concentrations.

Most of the estimated PM-related benefits in this rule would accrue to populations exposed to higher levels of PM 2.5. Using the Pope, et al., (2002) study, 85 percent of the population is exposed at or above the LML of 7.5 μg/m 3 . Using the Laden, et al., (2006) study, 40 percent of the population is exposed above the LML of 10 μg/m 3 . It is important to emphasize that we have high confidence in PM 2.5 -related effects down to the lowest LML of the major cohort studies. This fact is important, because as we estimate PM-related mortality among populations exposed to levels of PM 2.5 that are successively lower, our confidence in the results diminishes. However, our analysis shows that the great majority of the impacts occur at higher exposures. Every benefit analysis examining the potential effects of a change in environmental protection requirements is limited, to*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 86 of 526 some extent, by data gaps, model capabilities (such as geographic coverage) and uncertainties in the underlying scientific and economic studies used to configure the benefit and cost models. Despite these uncertainties, we believe the benefit analysis for this rule provides a reasonable indication of the expected health benefits of the rulemaking under a set of reasonable assumptions. This analysis does not include the type of detailed uncertainty assessment found in the 2006 PM 2.5 NAAQS RIA because we lack the necessary air quality input and monitoring data to run the benefits model. In addition, we have not conducted any air quality modeling for this rule. The 2006

PM 2.5 NAAQS benefits analysis 8 provides an indication of the sensitivity of our results to various assumptions. It should be emphasized that the monetized benefits estimates provided above do not include benefits from several important benefit categories, including reducing other air pollutants, ecosystem effects, and visibility impairment. The benefits from reducing HAP have not been monetized in this analysis, including reducing 23,000 tons of CO, 790 tons of HCl, 2.6 tons of Pb, 1.8 tons of Cd, 740 pounds of Hg, and 93 grams of total D/F each year. Although we do not have sufficient

8 U.S. Environmental Protection Agency, 2006. Final Regulatory Impact Analysis: PM2.5 NAAQS. Prepared by Office of Air an d Radiation. October. Available on the Internet at http://www.epa.gov/ttn /ecas/ria.html*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 87 of 526 information or modeling available to provide monetized estimates for this rulemaking, we include a qualitative assessment of the health effects of these air pollutants in the RIA for this rule,

which is available in the docket. In addition, the monetized benefits estimates provided in Table 6 of this preamble do not reflect the disbenefits associated with increased electricity and fuel consumption to operate the control devices. We estimate that the increases in

emissions of CO 2 would have disbenefits valued at $3.8 million at a 3 percent discount rate. Carbon Dioxide-related disbenefits were calculated using the “social cost of carbon”, which is discussed further in the RIA. However, these disbenefits do not change the rounded total monetized benefits. In the RIA, we also provide the monetized CO 2 disbenefits using discount rates of 5 percent (average), 2.5 percent (average), and 3 percent (95th percentile). For more information on the benefits analysis, please refer to the RIA for this rulemaking, which is available in the

docket.

II. NHSM Final Revisions

A. Statutory Authority*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 88 of 526 The EPA is promulgating these regulations under the authority of sections 2002(a)(1) and 1004(27) of the Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the CAA ((42 U.S.C. 7429) directs the EPA to establish standards for CISWIs, which burn solid waste. Section 129(g)(6) of the CAA provides that the term “solid waste” is to be established by the EPA under RCRA. Section 2002(a)(1) of RCRA authorizes the Agency to promulgate regulations as are necessary to carry out its functions under the Act. The statutory definition of “solid waste” is provided in RCRA section 1004(27). B. NHSM Rule History The Agency first solicited comments on how the RCRA definition of solid waste should apply to non-hazardous secondary materials (NHSMs) used as fuels or ingredients in combustion units in an Advanced Notice of Proposed Rulemaking (ANPRM), which was published in the Federal Register on January 2, 2009 (74 FR 41). We then published a NHSM proposed rule on June 4, 2010 (75 FR 31844), which the EPA issued in final form on March 21, 2011 (76 FR 15456). The March 2011 NHSM final rulecodified the standards and procedures for identifying which nonhazardous secondary materials are “solid waste” when used as fuels or ingredients in combustion units.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 89 of 526 In October 2011, the Agency announced it would be initiating new rulemaking proceedings to revise certain aspects

of the NHSM rule. 9 On December 23, 2011, we then published a proposed rule, which addressed specific targeted amendments and clarifications to the part 241 regulations (76 FR 80452). These proposed revisions and clarifications were limited to certain issues on which the Agency had received new information, as well as targeted revisions that the Agency believed were appropriate in order to allow implementation of the rule as the EPA originally intended. 10 As stated throughout the preamble to the proposed rule, the Agency was not reopening the entire NHSM rule for reconsideration and would not respond to comments directed toward rule provisions that were not specifically identified in this proposal. 11 Therefore, any comments that were submitted

9 See October 11, 2011 Letter from Administrator Lisa P. Jackson to Senator Olympia Snowe. A copy of this letter has been placed in the docket for today’s rule (EPA-HQ-RCRA-2008-1873). 10 For more information regarding the intent of the December 23, 2011 proposed rule, see 76 FR 80469. For more information regarding the scope of the proposed rule, see 76 FR 80470-80474. 11 For example, see 76 FR 80470: “The EPA is soliciting comment only on these targeted changes and is not reopening any other issues in the final NHSM rule. Comments that go beyond the scope of this narrow RCRA rulemaking will not be addressed by the Agency when it finalizes today’s proposed rule.” See also 76 FR 80474 “As noted above, the intent of this proposal is to identify certain specific aspects of the rule which EPA is reconsidering and on which it is soliciting public comment. The Agency is not reopening the entire rule for reconsideration and will not respond to comments directed toward rule provisions*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 90 of 526 outside the scope of the proposal, or for which the EPA did not solicit comment, are not addressed in this final rule, or in the Response to Comments document that has been prepared for this

final rule. C. Introduction—Summary of Regulations Being Finalized In today’s rule, the EPA is finalizing certain amendments and clarifications to the 40 CFR part 241 regulations on which we have received new information, as well as specific targeted revisions that are appropriate in order to allow implementation of the rule as the EPA originally intended. The regulations being issued today are summarized below. The intent of this summary is to give a brief overview of the revised part 241 regulations. More detailed discussions, including the Agency’s responses to comments received on the proposed rule and its rationale for decisions being made in this final action, are included in Section II.D of this preamble. In addition, in an effort to aid the regulated community, the EPA is including in the docket for today’s rule an informational redline/strikeout version that identifies the specific changes to the regulatory

that are not specifically identified in this proposal.” and 76FR 80482 “The Agency is not considering any change to the selfimplementing, mandatory nature of the §241.3 standards for individual facilities and will not respond to any comments on this topic.”.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 91 of 526 text, as compared to the March 2011 final rule. 12

1. Revised Definitions In today’s rule, the EPA is finalizing revisions to the three definitions discussed in the proposed rule: (1) “clean cellulosic biomass,” (2) “contaminants,” and (3) “established tire collection programs.” In addition, based on comments received on the proposed rule, the Agency is also finalizing a

revised definition of “resinated wood.” These revised

definitions will be codified in 40 CFR 241.2.

a. Clean Cellulosic Biomass In today’s action, the EPA is issuing a revised definition of “clean cellulosic biomass” that: (1) makes clear that the list of biomass materials are examples within the definition and is not intended to be an exhaustive list; and (2) provides a more comprehensive list of clean cellulosic biomass to guide the regulated community. These revisions do not change the Agency’s intent under the March 2011 final rule, but identify additional materials that are “clean cellulosic biomass,” and, thus, are traditional fuels under these regulations. A discussion of relevant comments regarding the definition of clean cellulosic biomass, as well as our rationale for making these

12 This document has been entitled, “NHSM 2012 Final RuleRegulation Changes” and his placed in Docket No: EPA-HQ-RCRA2008-0329.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 92 of 526 determinations, can be found in Section II.D.1.a of this preamble.

b. Contaminants In today’s action, the EPA is issuing a final definition of “contaminants” to clarify what constituents will be considered contaminants for the purposes of the contaminant legitimacy criterion. Revisions include: (1) the replacement of a reference to “any constituent that will result in emissions” with a specific list of constituents to be considered as contaminants based on their status as a precursor to air emissions; (2) the removal from the definition of specific CAA section 112(b) and 129(a)(4) pollutants that are not expected to be found in any NHSM or are adequately covered elsewhere in the definition; and (3) the removal of the phrase “including those constituents that could generate products of incomplete combustion” from the definition. A discussion of relevant comments regarding the contaminants definition, as well as our rationale for making these determinations, can be found in Section II.D.1.b of this preamble. C. Established Tire Collection Programs In today’s action, the EPA is finalizing a revised definition of “established tire collection program” in order to account for “off-specification” (including factory scrap) tires*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 93 of 526 that are contractually arranged to be collected, managed, and transported between a tire manufacturer (including retailers or other parties involved in the distribution and sale of new tires) and a combustor, which is analogous to how scrap tires removed from vehicles are managed. The off-specification tires

are not removed from vehicles 13 and are handled under contractual arrangements which ensure they are not discarded. A description of how the changes to the definition accommodate the management of off-specification tires can be found in Section II.D.1.c of this preamble. In addition to the proposed changes, we are revising the definition to specifically include tires that were not abandoned and were received from the general public at tire collection program events. A discussion of relevant comments regarding the definition, as well as our rationale for making this determination, can be found in Section II.D.1.c of this preamble.

d. Resinated Wood In today’s action, the EPA is issuing a revised definition

of “resinated wood” that includes additional materials in order to be more representative of the universe of resinated wood residuals that are currently used as fuels throughout the wood

13 “Removal from vehicles” had been a component of the definition.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 94 of 526 product manufacturing process. Revisions include: (1) replacing the phrase “containing resin adhesives” with the phrase, “containing binders and adhesives,” and (2) specifically including “off-specification resinated wood products that do not meet a manufacturing quality or standard” within this definition. A discussion of relevant comments regarding the resinated wood definition, as well as our rationale for making this determination, can be found in Section II.D.3.b of this preamble. 2. Contaminant Legitimacy Criterion for NHSM Used as Fuels In today’s action, the EPA is issuing in final form a revised contaminant legitimacy criterion for NHSMs used as fuels to provide additional details on how contaminant comparisons between NHSMs and traditional fuels may be made. Revisions include: (1) the ability to compare groups of contaminants where technically reasonable; (2) the clarification that “designed to burn” means can burn or does burn, and not necessarily permitted to burn; (3) the ability to use traditional fuel data from national surveys and other sources beyond a facility’s current fuel supplier; and (4) the ability to use ranges of traditional fuel contaminant levels when making contaminant comparisons, provided the variability of NHSM contaminant levels is also considered. A discussion of relevant comments regarding the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 95 of 526 contaminant legitimacy criterion for NHSMs used as fuels, as well as our rational for making these determinations, can be found in Section II.D.2 of this preamble. 3. Categorical Non-Waste Determinations for Specific NHSM Used

as Fuels In today’s final rule, the Agency is codifying

determinations that certain NHSMs are non-wastes when used as fuels. Based on all available information, the EPA has determined that the following NHSMs are categorically not a solid waste when burned as a fuel in combustion units: (1) scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires; (2) resinated wood; (3) coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse; and (4) dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials. a. Scrap Tires In today’s action, the Agency is listing scrap tires that are not discarded and are managed under the oversight of*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 96 of 526 established tire collection programs, including tires removed from vehicles and off-specification tires (including factory scraps), to the categorical list of non-waste fuels (see 40 CFR 241.4(a)(1)) as proposed. Based on this categorical non-waste determination, facilities burning the scrap tires that qualify for the provision will not need to demonstrate that this NHSM meets the legitimacy criteria on a site-by-site basis. Further, the addition to the new categorical non-waste provision at 40 CFR 241.4(a)(1) eliminated the need for the previous scrap tire provision at 40 CFR 241.3(b)(2)(i), 14 which has been removed and reserved in today’s final rule. A discussion of relevant comments regarding the scrap tire provision, as well as our rationale for making this determination, can be found in Section II.D.3.a of this preamble.

b. Resinated Wood In today’s action, the Agency is listing resinated wood as a non-waste fuel in 40 CFR 241.4(a)(2), as proposed. The EPA has

14 The scrap tire provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: “(b) The following non-hazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs.”*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 97 of 526 evaluated resinated wood and, based on all available information, including consideration of the legitimacy criteria, as well as other relevant factors, has determined that resinated

wood is not a solid waste when used as a fuel. Based on this categorical non-waste determination, facilities burning

resinated wood residuals as a fuel will not need to demonstrate that this NHSM meets the legitimacy criteria on a site-by-site basis. Further, the addition of this categorical non-waste determination (40 CFR 241.4(a)(2)) eliminated the need for the previous resinated wood provision at 40 CFR 241.3(b)(2)(ii), 15 which has been removed and reserved in today’s final rule. Adiscussion of relevant comments regarding the categorical nonwaste determination for resinated wood, as well as our rationale for making this determination, can be found in Section II.D.3.b of this preamble.

c. Coal Refuse In today’s action, the Agency has determined that coal

15 The resinated wood provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: “(b) The following non-hazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (ii) Resinated wood used in a combustion unit.”*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 98 of 526 refuse that has been recovered from legacy piles and processedin the same manner as currently-generated coal refuse, is a nonwaste fuel in 40 CFR 241.4(a)(3). This determination is based on the fact that: (1)legacy coal refuse processed in the same manner as currently-generated coal refuse meets the definition of processing (as codified in 40 CFR 241.2) and (2)the EPA’s assessment that such materials meet the legitimacy criteria for fuels (as codified in 40 CFR 241.3(d)(1)) when compared to currently-generated coal refuse, which the Agency considers to be within the definition of a traditional fuel (as codified in 40 CFR 241.2). Based on this categorical non-waste determination, facilities burning these materials as a fuel will not need to demonstrate that this NHSM meets the legitimacy criteria on a site-by-site basis. A discussion of relevant comments regarding the categorical non-waste determination for coal refuse that is recovered from legacy piles and processed, as well as our rationale for making this determination, can be found in Section II.D.5.b of this preamble. d. Pulp and Paper Sludge In today’s action, the EPA has determined that dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 99 of 526 residuals are managed in a manner that preserves the meaningful heating value of the materials are non-waste fuels in 40 CFR 241.4(a)(4). This determination for pulp and paper sludge as a categorical non-waste represents the Agency’s finding, after balancing the regulatory legitimacy criteria with other relevant factors, that the burning of this material, as described in the categorical listing is for energy recovery and not discard. Based on this categorical non-waste determination, facilities meeting the description of this determination and burning these

materials as a fuel will not need to demonstrate that this NHSM meets the legitimacy criteria on a site-by-site basis. Adiscussion of relevant comments regarding the categorical nonwaste determination for pulp and paper sludges, as well as our rationale for making this determination, can be found in Section II.D.5.a of this preamble. 4. Rulemaking Petition Process for Other Categorical Non-Waste Determinations (40 CFR 241.4(b)) In today’s final rule, the Agency is finalizing a rulemaking petition process that provides persons with an opportunity to submit a rulemaking petition to the Administrator, seeking a categorical determination for additional NHSMs to be listed in 40 CFR 241.4(a) as non-waste fuels. The process for submitting a rulemaking petition to the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 100 of 526 Agency, as well as the factors a successful application must include, is listed in 40 CFR 241.4(b). A discussion of relevant comments regarding the petition process for the categoricallistings, as well as our rationale for the categorical rulemaking petition process, can be found in Section II.D.4 of this preamble. 5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination

Petition ProcessIn today’s final rule, the Agency is streamlining the nonwaste determination provisions under 40 CFR 241.3(c). The public participation process was streamlined to accommodate petitions that apply to multiple combustors. In particular, the regulations were adjusted to indicate that the appropriate office in the EPA headquarters may handle petitions that cross multiple regions. Furthermore, if a determination is made that the NHSM is a non-waste, the decision will be retroactive and apply on the date the petition was submitted. A discussion of relevant comments regarding the streamlining of the 40 CFR 241.3(c) non-waste determination petition process, as well as our rationale for the streamlining changes made to the non-waste determination process, can be found in Section II.D.6 of this preamble. 6. Revised Introductory Text for 40 CFR 241.3(a)*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 101 of 526 In today’s final rule, the Agency has decided not to revise the introductory text of 40 CFR 241.3(a). In its December 2011 proposed rule, the EPA considered revising this introductory text to state that non-hazardous secondary materials are “presumed to be” solid wastes, rather than “are” solid wastes. While the proposed change was not expected to be a substantive change to the rule, but merely a reflection of the record at the time, it did engender some confusion among commenters. Based on the comments received, we have decided not to issue revised introductory text 40 CFR 241.3(a) and, thus, this section will

continue to read as codified in the March 2011 NHSM final rule. A discussion of relevant comments regarding the introductory text of 40 CFR 241.3(a), as well as our rationale for this decision, can be found in Section II.D.7 of this preamble. D. Comments on the Proposed Rule and Rationale for Final

Decisions In this section, the EPA addresses major comments the Agency received regarding the targeted revisions that were proposed to certain part 241 provisions in the December 23, 2011 proposal. In discussing the comments received on the proposal, we also provide the rationale for making the revisions that are finalized in today’s action. As previously discussed, the Agency*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 102 of 526 specifically stated that it would not address comments that go beyond the scope of this narrow RCRA rulemaking.

1. Revised Definitions

a. Clean Cellulosic Biomass The proposed rule suggested revising the March 2011

definition of “clean cellulosic biomass” to list additional examples of biomass materials that are appropriately included within this definition. These fuels are not secondary materials

or solid wastes unless discarded. Clean biomass is “biomass that does not contain contaminants at concentrations not normally associated with virgin biomass materials” (codified in 40 CFR 241.2). This regulatory revision would not change the Agency’s intent under the March 2011 final rule, but would identify additional materials that are “clean cellulosic biomass,” and, thus, would be a traditional fuel under these regulations. While the list of clean biomass materials is only illustrative and not exhaustive, it is now more comprehensive than the list that appeared in the definition included in the 2011 NHSM final rule.

One of the materials within the definition is clean construction and demolition (C&D) wood. In light of some confusion in comments regarding C&D wood, the EPA is clarifying the meaning of the term in the definition of “clean cellulosic*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 103 of 526 biomass.” C&D wood actually may be placed into different categories, depending upon its origin. In accordance with the traditional fuels definition in section 241.2, clean construction and demolition (C&D) wood could be combusted as a

traditional fuel if it does not contain contaminants at concentrations not normally associated with virgin wood. However, the final NHSM rule also addressed C&D wood that may contain contaminated material. 16 There is no need to repeat these discussions here, except to clarify what the final rule means. In general, contaminated C&D wood that has been processed (e.g., sorted) to remove contaminants, such as lead-painted wood, treated wood containing contaminants, such as arsenic and chromium, metals and other non-wood materials, prior to burning likely meets the processing and legitimacy criteria for contaminants, and thus can be combusted as a non-waste fuel (see further discussion in response to comments below). Comment: One commenter noted that the EPA's specific inclusion of "untreated wood pallets" implicitly accepts that small amounts of non-wood material inherent to the pallets, such as screws or plastic fasteners, do not render those materials solid waste under the rule, and de minimis amounts of non-biomass

16 See 76 FR 15485.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 104 of 526 material would not require these types of materials to be burned

in incinerators under the CISWI rule. Another commenter requested that the EPA reconsider use of the word “untreated” when referring to wood pallets. The commenter argues that the EPA does not define the word “untreated” and its use could create confusion. Rather, the commenter recommends that “untreated” be replaced with the word “clean,” which is an adjective used in the definition to distinguish other materials (e.g

. , “clean construction and demolition wood”). Response: Wood pallets are refurbished or recycled for other uses by pallet recyclers. When the useful life of the pallet is finished, the recyclers typically remove the small amount of non-wood material inherent to pallets that would inhibit combustion, such as screws or plastic fasteners. The pallets are then ready for use as fuel, and the non-wood material would not impact whether the material can be burned in combustion units that meet the CAA section 112 emission standards. The Agency is not aware of instances where the pallets are used as fuel directly by the original users, and non-wood material is left remaining in the pallet. Such pallets would not be considered

clean cellulosic biomass under the rule.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 105 of 526 With respect to the other comment, the EPA does not agree, that the term “untreated” wood pallet be replaced with the term “clean” wood pallet. The term “clean” is defined in the traditional fuels definition as described above, and applies to

all the materials listed in the definition of clean cellulosic biomass, which includes untreated wood pallets. It would be redundant to define “clean” biomass as including “clean” wood pallets. The point is that some wood pallets may contain treated wood, such as chromated copper arsenate (CCA) treated wood, and inclusion of the term “untreated” with wood pallet would help emphasize that such treated wood would not be considered “clean”

under the definition of clean cellulosic biomass.

Comment : Several commenters indicated that the definition of clean cellulosic biomass remains ambiguous because it continues

to include the caveat that: “Clean biomass is biomass that does not contain contaminants at concentrations not normally associated with virgin biomass materials.” Thus, notwithstanding the EPA’s attempt at expanding the definition of clean cellulosic biomass, the commenters believed that this sentence should be removed because it perpetuates uncertainty. It is not clear what comparisons are permissible and what concentration levels are appropriate.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 106 of 526

The commenters also indicated that this sentence perpetuates the EPA’s erroneous interpretation of its authority

under RCRA. A material does not become a waste when burned for energy recovery just because it may contain contaminants -- prior to combustion -- not normally associated with virgin biomass. It becomes a waste only if it is combusted for the purpose of disposal, rather than for energy recovery. Response: The Agency disagrees with the commenter that defining the term “clean” leads to ambiguity in identifying which materials are clean cellulosic biomass. On the contrary, defining the term “clean” is meant to ensure that contaminated cellulosic material being burned, such as lead-painted wood or arsenic treated wood, does not introduce contaminants (as defined in 40 CFR 241.2) not normally associated with virgin

biomass materials. The Agency wishes to emphasize, however, that

determinations that the cellulosic biomass used as a fuel or ingredient is clean, do not presuppose any testing of contaminant levels. Persons can use expert or process knowledge of the material to justify decisions regarding presence of

contaminants. With respect to the comment that burning of contaminated material does not make it a waste, the Agency has not reopened*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 107 of 526 this issue for this rule and stands by its responses in the rulemaking record for the March 2011 final rule.

Commen t: One commenter provided the example of whether treated

seeds that contain additives are considered contaminants in virgin biomass. These additives may not be found in virgin seeds, but are not harmful at the concentrations found in the seeds. The commenter questioned whether any concentration above “natural” (concentration levels found in virgin material), especially when combusted as fuel, would be prohibited and require additional waste regulation. Response: Seeds may be treated with pesticides and hormones to aid in germination. Such chemicals do not generally include contaminants as defined in section 241.2; therefore, such treated seeds would generally be considered clean cellulosic

biomass.

Comment : Several commenters indicated that, as part of the EPA’s changes in the definition of clean cellulosic biomass, it is proposing to consider treated or painted wood the same as “virgin” wood if it has lower than de minimis levels of contamination. While adoption of numerical values in the rule would require additional provisions for measurements and would require additional notice, the commenter believes that such clarity is important for successful implementation of the rule.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 108 of 526 Such limits would be applied to “clean” C&D material, for instance, among other potential fuel types. The term de minimis is not defined numerically in the proposed rule and the commenters argue that without a specific numerical de minimis limit, sources would not have a clear understanding of whether they fall under the CISWI or hazardous waste incinerator rules.

The commenter recommended that the EPA define and allow for public comment on the levels associated with the term de minimis, and base the de minimis levels on contaminant levels found in typical “virgin” wood. Response : Regarding the addition of a definition for de minimis amounts of contaminants remaining in processed wood, the Agency does not believe it appropriate to identify specific concentration levels. Rather, the Agency interprets de minimis as that term is commonly understood-- insignificant or negligible amounts of contamination (e.g., small wood sliver containing lead paint). As indicated above, there also appears to be confusion among commenters regarding two different categories of C&D wood - - “clean C&D wood” that is a traditional fuel, and C&D wood that has been processed to remove contaminants. Under the 2011 NHSM final rule, C&D wood that has been processed (e.g., sorted) to remove contaminants, such as lead-painted wood, treated wood*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 109 of 526 containing contaminants, such as arsenic and chromium, metals and other non-wood materials, prior to burning likely meets the processing and legitimacy criteria for contaminants, and thus can be combusted as a non-waste fuel, but would not be considered “clean C&D wood.” Such C&D wood may contain de minimis amounts of contaminants and other materials provided it meets the legitimacy criteria for contaminant levels. To meet the contaminant legitimacy criterion, concentration levels of contaminants in the processed C&D wood must be comparable to or

less than the levels in the traditional fuel the unit was designed to burn, whether wood or another traditional fuel (see section II.D.2 for a discussion on contaminant comparisons). In contrast, “clean C&D wood” is a traditional fuel that does not require processing and meets the definition of “clean” (i.e.,

C&D wood that does not contain contaminants at concentrations not normally associated with virgin biomass (wood)). Thus, de minimis amounts of contaminants and other material appropriate for processed C&D wood would not be appropriate for clean wood

that is a traditional fuel.

Comment : Onecommenter argued that States should have discretion about how to determine appropriate fuel quality, but it should be no less stringent than limits set by the EPA. There should be*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 110 of 526

a distinction between de minimis levels of contamination in C&D wood and a fuel quality standard. Response : We do not necessarily disagree with the commenter. That is, as discussed in the final rule, part 241 does not preempt a state’s statutory or regulatory standards, and states are free to establish fuel quality standards for C&D wood. However, we would also note that as solid waste is defined by the EPA under RCRA, such state standards would not necessarily impact the status of the material as it relates to which combustion units are subject to CAA section 129 (56 FR 15546).

b. Contaminants The December 2011 rule proposed to clarify what constituents will be considered contaminants by making the definition of “contaminants” more specific. However, the proposal maintained the fundamental approach—and was intended to

cover the same constituents—as the March 2011 final rule. The March 2011 final rule and the December 2011 proposed rule identified the same three ways a chemical can be labeled a contaminant. First, it may be one of the 187 HAP currently listed in CAA section 112(b); second, it may be one of the nine pollutants listed under CAA section 129(a)(4); and third, it may

be one of a handful of chemicals whose combustion will result in*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 111 of 526 the formation of listed CAA section 112(b) and section 129(a)(4) pollutants ( e.g. , sulfur that will result in SO 2 ). The definition proposed in December provided clarification by listing the constituents that belong to the third group. 17 Specifically, the proposed revision replaced a potentially ambiguous reference to “any constituent that will result in emissions” with the four specific elements the Agency intended to be considered as contaminants (chlorine, fluorine, nitrogen, and sulfur) based on their status as a precursor to air emissions. In all four cases, the CAA pollutant itself (e.g., sulfur dioxide) is not likely to be present in the NHSM prior to combustion, and the only way to measure constituents prior to combustion “that will result in emissions” of that pollutant is to measure a known precursor (e.g., sulfur) instead. For each of the four precursor elements listed as contaminants in the proposal, the expected fate for the precursor during combustion is formation of the aforementioned pollutant, and the precursor

makes no substantive contribution to the material’s value as a fuel. For these reasons, the Agency proposed to specifically identify chlorine, fluorine, nitrogen, and sulfur as

17 Eleven metal elements directly identified in CAA section 112(b) were also listed in the proposed definition to provide the regulated community with a complete list of elements that are considered “contaminants” under the rule.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 112 of 526 contaminants in place of hydrogen chloride (HCl), hydrogen fluoride (HF), nitrogen oxides (NO x ), and sulfur dioxide (SO 2 ). By limiting the list of precursors considered contaminants to these four elements, the revised definition also made clear that the Agency did not intend to include other elements present in contaminants (such as hydrogen and carbon) as contaminants

themselves. The December 2011 proposed rule also removed from the definition of contaminants those pollutants in CAA sections 112(b) and 129(a)(4) that we do not expect to find in any NHSM. Specifically:

• Chlorine gas (Cl 2 ), HCl, HF, NO x , SO 2 and were removed from the definition because they are unlikely to be found in NHSMs prior to combustion and had been replaced by the elements chlorine, fluorine, nitrogen, and sulfur as discussed above;

• Fine mineral fibers were removed because they are releases from the manufacturing and processing (not combustion) of non-combustible rock, glass, or slag into mineral fibers;

• Particulate matter and coke oven emissions were removed because they are products of combustion unlikely to exist in NHSMs prior to combustion;

• Cresol isomers m-cresol, o-cresol, and p-cresol were removed because the listed pollutant cresols/cresylic acid includes these three isomers;

• Xylene isomers m-xylene, o-xylene, and p-xylene were removed because the listed pollutant xylenes includes these three isomers; and

• Diazomethane, white phosphorus, and titanium tetrachloride were removed because their high reactivity makes their presence in NHSMs very unlikely.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 113 of 526 In addition, two phrases present in the March 2011 final

rule “contaminants” definition were not included in the December 2011 proposed rule definition. First, the phrase concerning

constituents “that will result in emissions of the air pollutants” was removed since the regulated community had expressed confusion that in determining whether or not a NHSM meets the contaminant legitimacy criterion, emissions from the combustion unit were to be evaluated. The EPA disagreed and directed readers to the language in sections 241.3(d)(1)(iii) and 241.3(d)(2)(iv). These sections state that contaminant comparisons are based on the presence of contaminants in the NHSM (or products made from NHSMs in the case of ingredients), not the resulting emissions. The proposed revision also inserted the phrase “prior to combustion” into the contaminants definition to further emphasize that the NHSMs, not the emissions that result from NHSMs, are to be evaluated when conducting contaminant comparisons. The rationale for evaluating the NHSM, and not emissions, can be found in the record for the

March 2011 final rule. 18 The proposal merely added language to ensure the rule is consistent with the Agency’s intent. The second phrase proposed to be removed from the March

2011 final rule definition was a reference to “those

18 For example, see 76 FR 15524-15525.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 114 of 526 constituents that could generate products of incomplete combustion,” also referred to as PICs. This reference was removed from the definition because it was duplicative and potentially misleading. Specifically, this phrase was not necessary because all PICs that the Agency considers air pollutants—including dioxins, dibenzofurans, PCBs, and PAHs—are listed in CAA sections 112(b) or 129(a)(4) and are thus already included in the “contaminants” definition. More importantly, the phrase was potentially misleading because PIC formation depends heavily on combustion conditions, such as air/fuel ratio and mixing. These conditions are controlled to limit emissions, and neither these conditions nor emissions are the subject of this rule. The NSHM itself is the subject of this rule. Thus, the removal of both phrases clarified—but did not alter—the constituents subject to the contaminant legitimacy criterion. The EPA believes that comments have not changed the basis for listing specific precursors to air emissions as contaminants, nor have they changed the basis for either excluding specific constituents from the definition or removing

the references to “that will result in emissions of the air pollutants” and “constituents that could generate products of incomplete combustion” from the definition. Thus, the EPA is*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 115 of 526 adopting the reasoning from the proposal and revising the definition of contaminants to incorporate these concepts. The EPA has decided, however, to make several modifications to the regulatory language of the December 2011 proposed rule based on comments received and information in the rulemaking record. First, in the final definition issued today, precursors will only be considered contaminants for NHSMs used as fuels; precursors will not be considered contaminants for NHSMs used as ingredients. Furthermore, precursors will not be considered contaminants if they do not form their corresponding pollutants. Also, opacity has been removed from the contaminants definition. Finally, the phrase “prior to combustion” has not been inserted into the contaminants definition, as had been proposed.

Contaminants in NHSMs used as fuel in combustion units must still be evaluated prior to combustion, and persons must still evaluate the NHSM itself (not emissions), but the Agency has determined that the topic of when to evaluate contaminants is more appropriate to address in the legitimacy criteria than in

the contaminants definition. Additional reasoning for keeping the rule provisions as proposed, and for any modifications to the proposed language, are described in the following responses to comments.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 116 of 526

Comment: Several commenters stated that the definition of

contaminants should focus on contaminants released as combusted emissions. One commenter argued that contaminants should be compared between emitted contaminants and emission standards. A second commenter reiterated previous comments that contaminant

levels should be related to the air emissions and not the content of the material. For support, commenters cited that the EPA reversed its position in the proposal by using possible air emissions as the basis for establishing what contaminants need to be compared. Response: The EPA has previously stated that contaminant levels before and after combustion can be important indicators of legitimacy, and it maintains the position from the March 2011 final rule that non-waste fuels must be similar in composition to traditional fuels prior to combustion. 19 Because combustion and emission control processes can destroy or remove contaminants, a comparison of emissions profiles alone only tells one how well the combustion unit is operating, not whether the NHSM is being used as a legitimate non-waste commodity

fuel. 20

19 See 76 FR 15525. 20 Id.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 117 of 526 The EPA disagrees with the comment that the Agency reversed its position on the consideration of emissions in the proposal by including precursors to air emissions as contaminants. The Agency notes that a difference exists between comparing “emissions” and comparing “contaminants that will result in emissions,” the exact language used in the March 2011 final rule. The EPA has clarified what it intended by “contaminants that will result in emissions” in today’s final action. This clarification involves the listing of specific precursors known to result in emissions of air pollutants when combusted; it also involves the removal of specific pollutants known not to be present in NHSMs. Comment: Two commenters expressed concern that the proposed

definition of contaminants conflicted with the contaminant legitimacy criterion for NHSMs used as ingredients in combustion

units. Commenters stated that both the definition of contaminants, as proposed, and the existing contaminant legitimacy criterion for ingredients were clear when read separately, but were contradictory when taken together. The commenters encouraged the EPA to clarify the regulatory text. Specifically, the commenters noted that for ingredients, contaminants could not be evaluated prior to combustion and then*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 118 of 526 used to compare products produced using NHSMs to products produced using traditional materials. Response: The EPA has decided not to include language from the December 2011 proposed rule in the definition of contaminants that emphasized when NHSM contaminant levels are to be evaluated ( i.e. , before or after combustion). While the proposed additional language made clear that NHSMs used as a fuel were to be evaluated for contaminants “prior to combustion,” the Agency agrees with the two commenters who argued that the proposed language conflicts with the contaminant legitimacy criterion for ingredients . The contaminant criterion for ingredients requires comparisons to be made between products produced with and without NHSMs, but until the products exist, they cannot be compared. As such, the Agency has decided not to adopt the proposed additional language addressing when contaminants are to be

evaluated in the definition of contaminants . The Agency proposed similar language in the December 2011 rule addressing this topic in the contaminant legitimacy criterion , and the Agency is adopting that language in today’s final rule. The Agency has determined that the legitimacy criteria themselves (40 CFR 241.3(d)(1)(iii) for fuels and 40 CFR 241.3(d)(2)(iv) for ingredients) are more appropriate places to address this topic.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 119 of 526 The EPA has also decided to add language to the definition of contaminants clarifying that the specification of particular precursors to air emissions ( i.e. , chlorine, fluorine, nitrogen, and sulfur) as contaminants does not apply to the contaminant legitimacy criterion for ingredients. As identified by the commenters, the contaminant criterion for ingredients requires comparisons to be made between products produced with and without NHSMs. Products can only be compared after combustion has occurred, at which point there will be no benefit to measuring levels of precursors. The Agency also notes that it does not envision a situation where NHSMs containing chlorine, fluorine, nitrogen, or sulfur would be used as ingredients in such a way that would emit higher levels of HCl, HF, NO x , or SO 2 than would be emitted using traditional ingredients without the material being considered a solid waste. In all cases, ingredients must provide a valuable contribution to the product being produced, and that product must itself be valuable, in order to not be considered a solid waste. For an ingredient to provide value, the Agency expects the ingredient to remain in a product rather than be destroyed or released via emissions. This is a key reason why the contaminant legitimacy criterion for ingredients focuses on products ( i.e. , toxics along for the ride) rather than*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 120 of 526 emissions. Furthermore, the legitimacy criteria for ingredients cannot be used to avoid the legitimacy criteria for fuels if the material is being used for both purposes. Comment: Several commenters questioned the rationale for including precursors to air emissions as “contaminants” under the proposed revised definition. Some indicated that the concept is far removed from the true meaning of “discard,” with one comment stating that the EPA has no legal, rational, or scientific basis for considering the presence of sulfur or nitrogen in NHSMs as evidence of intent to discard sulfur dioxide or nitrogen oxide during combustion. To support this argument, the commenter first noted that the EPA has no record basis for assuming that the intent of the combustor is to discard the constituent, rather than to generate energy. Second,

the commenter noted that whether or not a boiler has emissions of regulated air pollutants, such as sulfur dioxide or nitrogen oxides when it combusts a precursor will depend, not on an intent to discard these pollutants, but on boiler operation and design. Two commenters also stated that the preamble discussion on precursors demonstrates how far removed the EPA’s rational for this rulemaking is from the concept of discard. They noted that the EPA is requiring combustors to document and keep records*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 121 of 526 regarding the fact that carbon monoxide is not present in NHSMs, and, under CISWI, would identify the NHSM as waste if this

documentation is not maintained. The commenters failed to see how this has anything to do with a determination that a material

is a waste under RCRA. Response: The EPA disagrees with these comments. Precursors to emissions of identified air pollutants are important and appropriate to address as contaminants in NHSMs prior to combustion. It is also necessary to tailor the definition of contaminants to the realities of the combustion process, during which precursors present in NHSMs used a fuel—many of which are solid or liquid—are transformed into air pollutants. However, the Agency agrees with those commenters who argued that the revised definition, as proposed, may be too broad with regard to precursors that may not form air pollutants in all cases. For example, if the combustion of nitrogen does not form nitrogen oxides in a particular situation, the Agency did not intend in its December 2011 proposed rule to consider nitrogen

as a contaminant in that particular situation

. 21 The EPA noted in

21 See March 16, 2012 Response from James R. Berlow, Director, Program Implementation and Information Division, EPA’s Office of Resource Conservation and Recovery to Fadi K. Mourad, DTE Energy Services, Inc. A copy of this response letter has been placed in the docket for today’s rulemaking and is also available at http://www.epa.gov/epawaste/nonhaz/define/index.htm

.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 122 of 526 the proposed rule that chlorine, fluorine, nitrogen, and sulfur will form pollutants of concern in most circumstances, but the Agency does acknowledge that specific technologies and practices may prevent these transformations from happening in the first instance, particularly with regard to nitrogen (one example being the use of Low NO x burners with Over-Fire Air). Thus, the contaminants definition issued in today’s final rule does not consider constituents that are normally precursors to CAA section 112(b) or 129(a)(4) pollutants to be contaminants if a specific technology or practice prevents them from forming their corresponding pollutants. The definition codified in 40 CFR 241.2 only includes chlorine, fluorine, nitrogen, and sulfur as contaminants in cases where “combustion will result in the formation of hydrogen chloride (HCl), hydrogen fluoride (HF), nitrogen oxides (NO x ), or sulfur dioxide (SO 2 ).” When compared to the December 2011 proposed rule, the only constituents no longer considered

contaminants due to this modification are chlorine that will not form HCl during combustion, fluorine that will not form HF during combustion, nitrogen that will not form NOx during combustion, and sulfur that will not form SO 2 during combustion. This is consistent with the March 2011 NHSM final rule, under*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 123 of 526 which these constituents would not be contaminants when they would not “result in emissions” of CAA section 112(b) or section 129(a)(4) pollutants. Although the EPA is not currently aware of any technologies or practices that prevent chlorine, fluorine, or sulfur in NHSMs from forming their associated pollutants during combustion (the EPA is aware of such examples with nitrogen), the Agency considers it reasonable and appropriate to adopt the same language for all four precursors to allow for future technological advances preventing the transformation of these elements into pollutants during combustion.

Comment: One commenter stated that the consideration of precursors to air emissions as contaminants could be used to make the most fundamental of all elements, hydrogen, a contaminant because it is present in nearly all regulated pollutants. The presence of hydrogen in a NHSM could then be considered evidence of intent to discard pollutants that contained hydrogen. Response: Under the proposed contaminants definition, only the specific precursor elements listed (chlorine, fluorine, nitrogen, and sulfur) are considered contaminants. The EPA determined in the proposal, and adopts as its final decision today, that these are the only four precursors necessary to*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 124 of 526 evaluate when comparing contaminants between NHSMs and traditional fuels. The Agency specifically decided not to include hydrogen on this list. Whereas combustion of chlorine, fluorine, nitrogen, and sulfur typically leads to the formation of CAA section 112(b) or 129(a)(4) air pollutants, combustion of hydrogen typically leads to the formation of water vapor. Comment: Several commenters opposed the inclusion of precursors as contaminants on the ground that the formation of related pollutants depends more on boiler operation and design, process chemistry, and feedstock characteristics than on the levels of precursors present in the NHSMs. Response: The EPA recognizes that unit design and operating conditions can impact the transformation of chlorine, fluorine, nitrogen, and sulfur into air pollutants. Rather than viewing this as a reason to ignore the pollutants these elements commonly form, the Agency views this as further evidence why precursor levels must be considered when determining which set of CAA standards—which in turn regulate unit operating conditions—should apply. Comment: Two commenters suggested that the EPA follow a different approach for defining contaminants and use a method similar to what the Agency used for the used oil specification in 40 CFR 279.11. In each case, the commenter suggested that for*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 125 of 526 NHSMs, the definition of contaminants should be limited to sulfur, nitrogen, chlorine, cadmium, mercury, and lead because those are the elements Congress addressed in CAA section 129. This approach, they argued, would be similar to what the EPA did when developing the used oil specifications. The point the commenters wished the Agency to draw from the used oil specification approach is that it addressed elemental species, as opposed to individual compounds. Using sulfur as an example, the commenters reasoned that it is the underlying presence of sulfur-bearing materials in the NHSMs, as opposed to individual sulfur-containing compounds on the section 112(b) list, which

effects emissions of sulfur dioxide. Response: The EPA disagrees with the approach outlined by the

commenters and has issued a final definition of contaminants based on both the CAA section 112(b) and the CAA section 129(a)(4) lists, as was proposed. We do agree with the commenters, however, that identifying precursors that will form certain CAA pollutants in the definition of contaminants is appropriate. The approach outlined by the commenters appears to be based on two premises that the EPA has previously considered and decided not to adopt. First, the commenters do not think the definition of contaminants should reference both the CAA section 112(b) and*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 126 of 526 CAA section 129(a)(4) lists. The Agency previously explained its

decision to use both lists in the March 2011 final rule and does not believe comments have offered any new information that would change the basis for this decision. The EPA previously discussed that both lists of constituents are appropriate because both lists are to be considered by the EPA when developing emission

standards. 22 Furthermore, the Agency has previously explained that CAA section 129 provides that the term “solid waste” shall have the meaning promulgated by the EPA under RCRA, and that the EPA has the authority to interpret RCRA to decide whether NHSM

are solids wastes or not. 23 The Agency notes that it has carefully considered the CAA section 112(b) and 129(a)(4) lists of pollutants and removed those constituents that would not be appropriate to evaluate in NHSMs. Second, the commenters base their proposed approach to defining contaminants purely on emissions. The Agency agrees that emissions may be a means of discard, but contaminants that are destroyed by the combustion process or incorporated into products may not have emission standards established under CAA section 129. Combustion may still be a means of discard in these instances. Thus, a definition of contaminants based only on the

22 See 76 FR 15524-15525. See also, 75 FR 31883. 23 See 76 FR 15469-15470. See also, 76 FR 15473.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 127 of 526 CAA section 129 emissions standards only tells one how well the combustion unit is operating, not whether the NHSM is being used as a legitimate non-waste commodity. 24 Comment: Several commenters addressed the specific constituents proposed to be removed from the definition of contaminants. In general, comments were supportive of the concept that constituents unlikely to be found in NHSMs prior to combustion or adequately measured elsewhere in the definition should be

removed from the definition. Multiple commenters asked that carbon monoxide (CO) also be removed from the definition because it is unlikely to be found in NHSMs. The same commenters asked that opacity be removed from the definition because it can only be measured in emissions and is not directly related to any one specific constituent in NHSMs. Particulate matter and coke oven emissions were removed, noted the commenters, because they are products of combustion unlikely to exist in NHSMs prior to combustion, and the same can be said for CO and opacity. One commenter expressed concern that asbestos had been

removed from the list due to the removal of “fine mineral fibers” as a contaminant. The commenter explained that asbestos is commonly found in construction and demolition debris, and

24 See 76 FR 15525.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 128 of 526 asbestos particles in smoke are deadly. Excluding fine mineral fibers from regulation explicitly ignores the possibility of such contamination in C&D debris, noted the commenter, and asbestos should be a regulated contaminant. Response: The EPA has issued a final rule containing the language removing constituents from the definition of contaminants as proposed, with one change. The Agency has removed “opacity” from the final definition of contaminants as well. Similar to particulate matter and coke oven emissions, there is no practical way to measure opacity in NHSMs prior to combustion or in products made using NHSMs. In fact, the EPA did not intend for opacity to be included in the definition of contaminant under the previous definition. A visual property of an emissions stream, opacity is not even a constituent, let alone a constituent that can be measured in NHSMs prior to combustion or in products made using NHSMs. As such, removing it from the definition will provide clarity without effecting any practical change to the definition. 25 The Agency has not removed CO from the definition of contaminants because, contrary to comments that it is unlikely to be found in any NHSM, it is likely to be present in gaseous

25 Neither Table 7 nor Table 8 in the December 2011 proposed rule included opacity. See 76 FR 80478-80480.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 129 of 526 NHSMs and is not adequately measured elsewhere in the “contaminants” definition. However, as we discuss in the December 2011 proposed rule, CO is unlikely to be found in solid or liquid NHSMs, and EPA expects that persons can use process knowledge to justify not testing for CO in these cases. 26 The Agency has removed the fine mineral fibers group from the definition of contaminants, as proposed, because they are not expected to be found in NHSMs. Fine mineral fibers, as regulated under CAA section 112(b) are releases from the manufacturing and processing of non-combustible rock, glass, or slag into mineral fibers and are not produced during the combustion process. Asbestos, on the other hand, has been set apart from the fine mineral fibers group in CAA section 112(b), and thus, it is set apart in the NHSM rule. To be clear,

asbestos is included in the definition of contaminants in today’s final rule, and it would be a contaminant regardless of whether the fine mineral fibers group was removed or not. In summary, the following twelve CAA section 112(b) and section 129(a)(4) pollutants have been removed from the definition of contaminants: hydrogen chloride (HCl), chlorine gas (Cl 2 ), hydrogen fluoride (HF), nitrogen oxides (NOx), sulfur dioxide (SO 2 ), fine mineral fibers, particulate matter, coke oven

26 See 76 FR 80475*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 130 of 526 emissions, opacity, diazomethane, white phosphorus, and titanium

tetrachloride.

c. Established Tire Collection Programs The 40 CFR part 241.2 definition for “established tire collection program,” as established by the March 2011 promulgation in the Federal Register, was as follows: “Established tire collection program means a comprehensive collection system that ensures scrap tires are not discarded and

are handled as valuable commodities in accordance with section 241.3(b)(2)(i) from the point of removal from the vehicle through arrival at the combustion facility.” In the December 2011 NHSM proposed rule, the EPA proposedto revise this definition (and the related criteria for nonwaste tires now at 40 CFR 241.4(a)(1)) in order to account for off-specification tires. The term “off-specification tires” is intended to also include “factory scraps.” The off-specification

tires are not removed from vehicles and are handled under contractual arrangements which ensure they are not discarded. The definition was modified to include “contractual arrangement” to provide that not only “collection systems,” but also contractual arrangements for tire collection would be*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 131 of 526 appropriate. The requirement for the tires to be removed from

the vehicle was eliminated 27 since it is not applicable to offspecification tires. The revised definition is sufficient to encompass the Agency’s intent in describing these programs and continues to ensure that these scrap tires are not discarded and are handled as valuable commodities through arrival at the combustion facility. Further, the addition to the new categorical non-waste provision at 40 CFR 241.4(a)(1) eliminated the need for the previous scrap tire provision at 40 CFR 241.3(b)(2)(i), 28 (which has been removed and reserved in today’s final rule) therefore, the reference to that provision was removed in the definition. The Agency proposed to revise the definition as follows: “Established tire collection program means a comprehensive collection system or contractual arrangement that ensures scrap tires are not discarded and are

27 The related tire provision at 241.4(a)(1) allows for tires that are off-specification or are removed from vehicles. 28 The scrap tire provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: “(b) The following non-hazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs.”*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 132 of 526 handled as valuable commodities through arrival at the combustion facility.” The definition in today’s final rule includes the revisions to the definition we proposed in December 2011. In addition, the Agency is including in the definition “tires that were not abandoned and were received from the general public at collection program events.” This revision is being made based on comments received on the proposed rule, as discussed below. Under today’s revised definition, established tire collection programs could also include a “contractual arrangement.” If, for example, the state is sponsoring special events where they take tires back from the general public, those tires would also be included. Thus, the definition in today’s final rule is “Established tire collection program means a comprehensive collection system or contractual arrangement that ensures scrap

tires are not discarded and are handled as valuable commodities through arrival at the combustion facility. This can include tires that were not abandoned and were received from the general public at collection program events.” While the Agency did receive comments on the specific proposed changes described above, a number of commenters rephrased or restated previous arguments which conclude that any tires burned for energy recovery are not wastes, even if*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 133 of 526 previously discarded. Conversely, one commenter reiterated its previous arguments which conclude that all used tires are waste, even if burned for energy recovery. Today’s rule is responding only to the specific proposed revisions to the regulations and the requests for comment in the proposal. For the response to other issues, refer to the record for the 2011 NHSM final rule (76 FR 15456). Many of the commenters who provided comments on tires intertwined the “established tire collection program”definition issues with the related topic of the categorical nonwaste provision for scrap tires. For a discussion of those comments, refer to the response to comments for the categorical non-waste provision for scrap tires (Section II.D.3.a.). The EPA is not reopening its decision that these scrap tires are not wastes. That decision, however, justifies a categorical exclusion where there is not a need to make case-by-case determinations regarding discard in the first instance and the legitimacy criteria.

Comment : Several commenters mentioned that, in some cases, the public individually takes tires to state-run tire collection program events. These are tires that the general public owns and were typically removed from their vehicle. These are not abandoned tires. These collection events, in some cases, are held by the combustor under the state’s environmental program*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 134 of 526 oversight. In those cases, the combustors enter into agreements with local communities to hold these events during which local residents are allowed to bring tires to facilities to be recycled, including used as alternative fuels. The scope of tire collection programs also may allow the public to take used tires which they may have stored in their garages, or elsewhere on their property, directly to a combustion facility – in many

cases a cement kiln.

Under the EPA’s current definition of tire collection programs, the commenters said it is not clear whether these tires would qualify as those collected under an “established tire collection program.” Commenters generally agreed that these

tires are not abandoned and should be utilized as non-waste fuels without processing. Response: The EPA agrees with the commenters that tires that have not been discarded and are collected directly from the public at tire collection events are intended to qualify for the 40 CFR 241.4(a)(1) requirement to be “managed under the oversight of established tire collection programs.” The Agency agrees that these tires are not abandoned and when collected under established tire collection program events, they are considered to be non-waste fuels, just as the other tires handled by established tire collection programs are non-waste.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 135 of 526 To make this point clear, the EPA has modified the regulatory language. Please refer to the response to comment document for more details on these collection events and the responses. 2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels Under the December 2011 proposed rule, revisions to the contaminant legitimacy criterion for NHSMs used as fuel provided details on how contaminant comparisons could be made in practice. The proposal maintained the fundamental approach of the March 2011 final rule, but the proposed criterion better

reflected the EPA’s intent to allow certain flexibilities when making contaminant comparisons. First, the proposal replaced “contaminants” with the phrase “contaminants or groups of contaminants” to clarify that, when deciding how to compare contaminants between NHSMs and traditional fuels, persons do not have to make comparisons on a contaminant-by-contaminant basis in all cases. When technicallyreasonable, comparisons may be made on a group of contaminantsby-group of contaminants basis. The December 2011 rule also proposed to codify language from the preamble to the March 2011 final rule clarifying that when selecting which traditional fuel(s) a unit is designed to burn, persons are not limited to the traditional fuel the unit is currently permitted to burn. Persons may choose any*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 136 of 526 traditional fuel the unit can burn or does burn, whether or not it is permitted to burn such fuel. In addition, the proposed regulations included text confirming that, when comparing contaminant levels between NHSMs and traditional fuels, persons are not limited to data from the specific traditional fuel being replaced. National surveys of traditional fuel contaminant levels are one example of another acceptable data source. Neither the March 2011 final rule nor the December 2011 proposed rule required persons to compare contaminants in their NHSM to contaminants in the specific traditional fuel source they burn (or would otherwise burn). As an example, the proposal noted that persons who would otherwise burn coal may use any as-burned coal available in coal markets in making a comparison between the contaminants in their NHSM and the contaminants in coal—they are not limited to coal from a specific coal supplier they have used in the past or currently

use. Finally, the proposed regulations included text confirming that, when comparing contaminant levels between NHSMs and traditional fuels, persons are not limited to comparing average concentrations. Traditional fuel contaminant levels can vary considerably, and the full range of contaminant values may be

used.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 137 of 526 Two other issues arose prior to the December 2011 proposed rule that, while not leading to specific regulatory changes in the proposal, still merited a discussion in the proposal. The first issue was that contaminant legitimacy criterion determinations do not require testing contaminant levels, in either the NHSM or an appropriate traditional fuel. Persons can use expert or process knowledge to justify decisions to either

rule out certain constituents or determine that the NHSM meets the contaminant legitimacy criterion. The second issue was that persons may use data from a group of similar traditional fuels for contaminant comparisons, provided the unit could burn each traditional fuel. The idea grows from the “designed to burn” concept explained in the March 2011 final rule and codified in today’s final rule, and it allows a person with a unit that can or does burn similar traditional fuels ( e.g. , anthracite, lignite, bituminous, and sub-bituminous coal) to group those traditional fuels when making contaminant comparisons. The EPA believes that comments have not changed the basis for making the decisions to expressly allow grouping of contaminants, to interpret “designed to burn” to mean can burn or does burn regardless of permit status, and to affirm that persons can use ranges and national surveys of traditional fuel data when making contaminant comparisons between NHSMs and*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 138 of 526 traditional fuels. Comments have also not changed the Agency’s basis for making the decisions that testing is not required and that persons can group similar traditional fuels for the purposes of contaminant comparisons. Thus, the EPA is adopting the reasoning from the proposal and revising the contaminant legitimacy criterion for NHSMs used as a fuel to incorporate these concepts. The EPA has decided, however, to make one modification to the proposed contaminant legitimacy criterion based on comments received and information in the rulemaking record. The final criterion issued today includes additional language clarifying the appropriate use of ranges when making contaminant comparisons between NHSMs and traditional fuels. To use the full range of contaminant values in traditional fuels, persons should also account for the variability in NHSM contaminant levels. Additional details and rationale for the proposed revisions concerning the grouping of contaminants, the meaning of designed to burn, and the use of ranges and traditional fuel data in making contaminant comparisons are discussed in Section II.D.2.b, Section II.D.2.c, and Section II.D.2.d below. Additional reasoning for keeping the rule provisions as proposed and for any modifications to the proposed language are described in the responses to comments included in these sections.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 139 of 526 a. General Comments on the Revised Contaminant Legitimacy

Criterion The EPA is not responding to issues that the Agency decided in the March 2011 rule and has not reopened for comment. Specifically, the Agency has previously discussed and did not solicit comments in this rule on why the concept of legitimacy is important in determining whether a secondary material is genuinely recycled or is, in fact, discarded. 29 The Agency has also previously discussed and did not solicit comments in this rule on why contaminant comparisons to traditional fuels are an appropriate and mandatory factor in determining legitimacy for

NHSMs used as fuels in combustion units. 30 The Agency has also previously discussed and did not solicit comments in this rule on why the “comparable to or lower than” standard is more appropriate than the “not significantly higher than” standard. 31 The Agency has also previously discussed that the NHSM Rule differs from the DSW Rule in that it is tailored specifically for application to non-hazardous secondary materials used in

combustion units. 32

29 See 75 FR 31870. 30 See 75 FR 31871-31872. See also, 76 FR 15524-15525. 31 See 75 FR 31872. See also, 76 FR 15523. 32 See 75 FR 31870.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 140 of 526 Comment: Industry commenters overwhelmingly supported the proposed revisions to the contaminant legitimacy criterion, stating that the revisions would help provide regulatory certainty and give the regulated community more confidence in

their self-determinations. Environmental groups, on the other hand, expressed concern that the combination of flexibilities present in the proposed revisions to the contaminant legitimacy criterion will allow facilities to compare contaminant levels in C&D debris and other wood waste to the highest contaminant levels found in coal, even if the facility is not permitted to burn coal. They believed that this should not be permitted and argued that C&D wood should not contain contaminant levels higher than found on average in virgin biomass. State comments were mixed, with one commenter supporting the proposed revisions and another commenter expressing concern that the revisions would weaken the states’ permitting

authorities and create an incentive for combustors to burn

dirtier traditional fuels. Response: The EPA has decided to retain the concepts proposed to the contaminant legitimacy criterion because these changes more accurately reflect the EPA’s intent under the March 2011 final rule. The Agency maintains that these concepts are reasonable*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 141 of 526 and provide a necessary degree of certainty for persons seeking to comply with the rule. This is explained in more detail in Sections II.D.2.b (groups of contaminants), II.D.2.c (meaning of designed to burn), and II.D.2.d (allowable contaminant comparisons) of this preamble. At the same time, comments from both industry and environmental groups have highlighted, in the Agency’s opinion, a need for additional clarity in the regulatory text on the appropriate use of ranges when making contaminant comparisons between NHSMs and traditional fuels. Accordingly, the EPA has made a minor adjustment to the criterion to ensure that ranges are not used inappropriately in contaminant comparisons (i.e., the highest traditional fuel contaminant values should not be compared to average NHSM contaminant values). See Section II.D.2.d of this preamble for a more detailed description of this specific change to the contaminant legitimacy criterion. The Agency disagrees with state concerns that the NHSM rule will weaken the states’ permitting authorities. State permitting authorities must still approve permit changes and this final rule does not affect discretion of the permitting authorities in acting on requests for permit modifications. The Agency also disagrees with state concerns that the NHSM rule will create an

incentive for combustors to burn dirtier traditional fuels. The*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 142 of 526 EPA understands how restricting contaminant comparisons to

traditional fuels the unit currently burns could provide an incentive for the facility to burn traditional fuel with high contaminant levels. When facilities do not actually have to burn that traditional fuel to make comparisons, however, that incentive is effectively removed. Comment: One commenter requested that the proposed revisions to the contaminant legitimacy criterion be added to each option for demonstrating that NHSMs are non-wastes when used in combustion units, whether it is the on-site documentation, the EPA petition process, or the categorical non-waste determination process proposed in 40 CFR 241.4. Response: Revisions to the contaminant legitimacy criterion codified today in 40 CFR 241.3(d)(1) apply to all options for demonstrating that a NHSM is not a solid waste when used as a fuel in a combustion unit. The revised legitimacy criterion is embedded in the self-implementing options outlined in 40 CFR 241.3(b)(1) for use within the control of the generator and 40 CFR 241.3(b)(4) for NHSMs that are processed and then used in a combustion unit. The revised legitimacy criterion is also embedded in the optional the EPA petition process outlined in 40 CFR 241.3(c). The revised legitimacy criteria is also referenced*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 143 of 526 as a factor to be considered in the categorical non-waste determination process outlined in 40 CFR 241.4. Comment: Several commenters expressed concern that the proposed revisions to the contaminant legitimacy criterion, although an improvement over the 2011 Final NHSM Rule, may not provide the regulated community with enough information to be confident in their compliance status. Two commenters noted that the EPA has overlooked the analytical complexities inherent in the contaminant legitimacy criterion and the many opportunities it creates for disagreement between facility operators and regional and state regulators. One of these commenters asked the EPA to both define the term ‘comparable’ and clarify sampling and analytical methodologies to be used when measuring contaminant

levels. Other commenters advised the EPA to increase predictability as much as possible by developing a disciplined process for making contaminant comparisons and providing real time transparency for such decisions. Similarly, two commenters expressed concern that even after a source makes a fuel determination, the EPA could take a different view of the non-hazardous secondary materials and conclude that they were solid wastes. The risk sources face is noncompliance with the CAA, and these commenters contended that

the issue is too critical for the EPA to leave the contaminant*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 144 of 526 legitimacy criterion so vague. Over time, as the EPA develops a record for decisions (particularly comparable contaminant determinations), one of these commenters urged the EPA to establish a database and immediately post determinations for

other sources to review. Other commenters supported the proposed revisions to the contaminant legitimacy criterion and indicated that they provided sufficient clarification. One commenter noted that changes to the language of the criterion and the additional clarification provided in the preamble to the December 2011 proposed rule provide key additional detail on making contaminant comparisons and allow additional flexibility where appropriate. The same commenter urged the EPA to maintain that flexibility if the Agency develops additional guidance on making contaminant comparisons in the future. Response: The EPA has retained the approach included in the proposed rule that provides information on how contaminant comparisons can be made, and the Agency will continue to make its traditional fuel data and legitimacy determinations transparent through the EPA website. 33

33 The EPA maintains a NHSM webpage with current information on contaminant levels in traditional fuels, examples of legitimacy determinations, and other information at http://www.epa.gov/epawaste/nonhaz/define/index

.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 145 of 526 The Agency recognizes the need for regulatory certainty, a need that has been addressed by revisions to the definition of contaminants and the contaminant legitimacy criterion in today’s final rule. Contaminants have been specifically listed, additional clarity on NHSMs/traditional fuel comparisons has been provided, and several comparison methodologies have been provided in the preamble as examples that could be used by the regulated community. Comments from the regulated community have been supportive both of these changes and of the Agency’s efforts to update traditional fuel data that can be used for contaminant comparisons. 34 In addition, a number of interpretative letters have been written that address specific fact situations as presented by a specific facility, and these letters have been posted on the EPA’s website. These letters serve as examples of acceptable ways to demonstrate legitimacy. The EPA must balance the need for regulatory certainty, however, with the need for flexibility, which many commenters also believe is important. As the Agency has previously discussed, the legitimacy criteria must be flexible enough to account for future changes in commodities, technologies,

34 Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, can be found at http://www.epa.gov/epawaste/nonhaz/define/index

.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 146 of 526 markets, and fuel prices. 35 Previous comments have stressed the preference for a qualitative approach, and the Agency has agreed, noting that numerical specifications may be impractical due to the multiplicity of fuels and ingredients. 36 The Agency has also previously discussed that a numerical definition of ‘comparable’ would be impractical given differences in the typical concentration levels of various contaminants, choosing instead to offer several examples. 37 While the Agency will consider future guidance on contaminant comparisons, it has determined that no one approach is appropriate for every legitimacy determination given the variety of traditional fuels, NHSMs, and combustion units that currently exist and will likely

increase in the future.

Comment: One commenter noted that both the March 2011 NHSM final rule and the proposal implicitly place the burden on thecombustion facility to determine if a fuel derived from nonhazardous secondary materials meets the legitimacy criteria. In the utility industry, the commenter explained, it is common practice for utilities to rely on fuel marketers to establish and verify fuel quality, and the regulatory burden on utilities combusting such secondary materials as fuels could be reduced if

35 See 75 FR 31870. 36 See 75 FR 31871. 37 See 76 FR 15524 and 15542.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 147 of 526 the EPA clarified the circumstances under which a facility would be entitled to rely on the fuel quality representations of its suppliers. The commenter suggested that the EPA clarify that a utility may rely in good faith on the representations of its suppliers that NHSMs meet the codified legitimacy criteria, or, alternatively, that utilities be required only to periodically test the quality of non-hazardous secondary material-derived fuels obtained from third parties to rely on their suppliers’ representations. Response: The EPA notes that while fuel suppliers may provide their customers with documentation supporting a legitimacy determination, persons that burn NHSMs are ultimately responsible for the materials burned at their units. As stated in the proposed rule, however, the Agency adopts as its decision

for this final rule that initial assessments would not need to be repeated as long as the facility continues to operate in the same manner and use the same type of NHSM as when the original

assessment was made. 38 b. Grouping of Contaminants The December 2011 proposed revision to the contaminant legitimacy criterion for NHSMs used as a fuel began with the following sentence: “The non-hazardous secondary material must

38 See 76 FR 80481.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 148 of 526 contain contaminants or groups of contaminants at levels comparable in concentration to or lower than those in traditional fuel(s) which the combustion unit is designed to burn.” The phrase ‘or groups of contaminants’ was not present in the language from the March 2011 NHSM Final Rule, but was included in the December 2011 NHSM Proposed Rule to clarify that groups of contaminants could be evaluated in determining whether a NHSM meets the contaminant legitimacy criterion. In particular, the proposed rule noted that groups of contaminants in NHSMs could be compared to similar groups in traditional fuels where the grouped contaminants shared physical and chemical properties that influence their behavior in the combustion unit prior to the point where emissions occur. Volatility, the presence of specific elements, and compound structure were three such properties identified in the proposal, and one approach to grouping contaminants was shown that included groups for total organic halogens, nitrogenated HAP, volatile organic compounds (VOCs), semi-volatile organic compounds (SVOCs), dioxins and furans, PCBs, PAHs, and radionuclides. The Agency also noted that persons may consider other groupings that they can show are technically reasonable. Grouping of contaminants is a standard practice often employed by the Agency as it develops regulations. In fact, the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 149 of 526 monitoring standards included in the CAA sections 112 and 129 regulations also utilize the grouping concept, and they apply to the same combustion units impacted by the NHSM rule ( i.e. , industrial, commercial, and institutional boilers and process heaters and CISWI units). For example,

• Volatile hydrocarbons and semi-volatile hydrocarbons can both be expected to result from incomplete combustion; therefore, the emission standards promulgated under the CAA regulations are grouped into one category: CO. 39

• Halogenated organics are expected to contribute to emissions of dioxin and acid gases (HCl and HF); therefore, the emission standards promulgated under the CAA are grouped into two categories: D/F and HCl. 40

• Nitrogenated compounds are expected to contribute to emissions of NOx; therefore, the emission standards promulgated under the CAA are grouped into one category: NOx. 41 In addition, a number of the seemingly “individual” pollutants listed in sections 112 and 129 of the CAA are actually classes of structurally-related compounds ( e.g. , PCBs, POM, D/F, cyanide compounds, cresols, glycol ethers, radionuclides, xylenes, antimony compounds, arsenic compounds, beryllium compounds, and cadmium compounds). All comments discussing the Agency’s proposal to expressly allow the grouping of contaminants supported the Agency’s

39 Area Source Boilers NESHAP, Major Source Boilers NESHAP, and Commercial and Industrial Solid Waste Incinerators NESHAP. 40 Major Source Boilers NESHAP and Commercial and Industrial Solid Waste Incinerators NESHAP. 41 Commercial and Industrial Solid Waste Incinerators: NESHAP.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 150 of 526 position. Thus, the EPA is adopting the language from the proposal and revising the contaminant legitimacy criterion for NHSM used as a fuel to allow contaminants to be compared on a contaminant-by-contaminant basis or, where reasonable, on a group of contaminants-by-group of contaminants basis. Any additional reasoning for keeping the revision as proposed, without modification, is described in the responses to comments

below. Comment: In general, comments overwhelmingly supported the ability to group contaminants when making contaminant comparisons in accordance with the legitimacy criteria. Commenters stated that codification of this concept would provide regulatory certainty and allow for more meaningful comparisons, similar to the manner in which the EPA measures emissions at combustion units. Commenters noted that the ability to group contaminants will facilitate compliance because most existing test methods, including the EPA methods, call for the grouping of analytes. Commenters believed that the grouping concept is an appropriate mechanism to recognize the variability

in contaminant levels inherent in fuels. Commenters also appreciated the examples of appropriate contaminant groups provided in the proposed rule along with the ability to compare other technically reasonable groups (76 FR 80477-80480).*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 151 of 526

Two commenters stated that each mention of the word “contaminants” should be changed to “contaminants or groups of contaminants” in the regulatory text to further clarify that a comparison to groups of contaminants is intended. Response: The EPA has retained the language specifically allowing grouping in the contaminant legitimacy criterion for NHSMs used as a fuel. The EPA adopts the reasoning in the December 2011 rule as its final reasoning, as further supported with reasoning discussed in the comment responses below. While the EPA has retained the language allowing the grouping of contaminants, the Agency does not consider it necessary to change every instance of “contaminant levels” and “contaminants” to “contaminants or groups of contaminants” in order to make it sufficiently clear that contaminant grouping is allowed. The Agency also notes that not all contaminants are necessarily intended to be grouped, including individual elemental contaminants, asbestos, carbon monoxide, and phosphine. 42 Comment: The ability to group metal contaminants was suggested by several commenters. One commenter held that all eleven metals should be specifically included as one group. Another commenter noted that with the exception of mercury, all metals should be grouped. Yet another commenter suggested that metals could be

42 See 76 FR 80478, Tables 7 and 8.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 152 of 526 grouped into a volatile metals group and a non-volatile metals

group. Response: First, we would note that the Agency is not limiting groups to the specific approach suggested in the proposed rule— that is, the tables in the proposed rule suggest, but do not limit persons to, an approach, including groups for total organic halogens, nitrogenated HAPs, VOCs, SVOCs, dioxins/furans, PCBs, PAHs, and radionuclides, with other

contaminants left to be evaluated on an individual contaminantby-contaminant basis. Flexibility exists for persons to consider other appropriate groups that they can show are technically reasonable, with additional text in the proposal stating that other groups should share physical and chemical properties that influence behavior in the combustion unit prior to the point where emissions occur. Volatility, the presence of specific elements, and compound structure are three such properties. 43 However, we do not consider the grouping of total metals to be appropriate. Specifically, metals vary across all three parameters—volatility, the presence of specific elements, and compound structure—that were discussed as appropriate to consider when constructing contaminant groups. First, many factors influence metal volatility in combustion units, and to

43 See 76 FR 80477.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 153 of 526 the extent that trends in metal volatility have been recognized, a wide disparity exists between metals. Mercury, as one commenter noted, is highly volatile, more so than any other

metals listed in the contaminants definition. Metals can be grouped into volatile, semi-volatile, and low-volatile categories, but it is important to note that these distinctions can vary based on design differences in combustion units, operating temperatures, the physical form and species of the metal, and the presence of chlorine. 44,45 Second, each metal clearly contains different elements. Finally, each metal is already a group of any compound containing the particular element, encompassing a wide array of compound structures. In the absence of other suggested grouping criteria or information, the EPA does not consider total metals to be an appropriate

group. Comment: One commenter provided a numerical example of VOC contaminant levels in fuel oils to illustrate the importance of grouping. The commenter cited the traditional fuel tables provided on the EPA website, stating that toluene and xylenes are present in fuel oils at concentrations up to 380 ppm and

44 EPA. 2001. “Risk Burn Guidance for Hazardous Waste Combustion Facilities.” EPA530-R-01-001. July. 45 Clarke, L.B. and L.L. Sloss, 1992. “Trace Elements – Emissions from Coal Combustion and Gasification.” IEACR/49. IEA Coal Research, London. July.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 154 of 526 3,100 ppm, respectively. If a NHSM had the concentrations reversed, explained the commenter (380 ppm xylene and 3,100 ppm toluene), the ability to group VOCs would then allow the NHSM to meet the contaminant legitimacy criterion. The commenter reasoned that this is appropriate because both toluene and xylenes are beneficial components of fuel. Response: The EPA disagrees with this interpretation of the grouping concept. Unless concentration data for a group of contaminants (e.g., VOCs) come from the same fuel source, adding together the concentrations of individual constituents (e.g., toluene and xylene) within that group may yield a total concentration beyond what would be considered a normal part of a legitimate fuel. Using the example cited by the commenters, some fuel oils have been found to have up to 380 ppm toluene, and other fuel oils have been found to have up to 3,100 ppm xylene. Because the toluene and xylene concentrations were taken from different fuel oils , however, this does not prove that a single fuel oil in existence actually has VOC levels as high as 3,480 ppm (380 + 3,100). The Agency notes that VOC levels higher than as 3,480 ppm,

have been found in fuel oil -- concentrations of one VOC alone (hexane)have been found as high as 10,000 ppm -- and the point*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 155 of 526 of this discussion is to clarify a methodology rather than a number for acceptable VOC levels in NHSMs. 46 We would also note that while the Agency considers VOCs to be an appropriate contaminant group to use when making contaminant comparisons, it does not base that decision on whether or not toluene, xylenes, and other VOCs are “beneficial components of fuel.” The decision that toluene, xylene, and other VOCs, which the Agency notes are pollutants listed in CAA section 112(b), are an appropriate group is based on the fact that they share similar physical and chemical properties that influence their behavior in the combustion unit prior to the point where emissions occur. c. Meaning of Designed to Burn The December 2011 proposed revision to the contaminant legitimacy criterion for NHSMs used as a fuel included the following statement: “In determining which traditional fuel(s) a unit is designed to burn, persons can choose a traditional fuel that can be or is burned in the particular type of boiler, whether or not the combustion unit is permitted to burn that

46 Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011 can be found at http://www.epa.gov/epawaste/nonhaz/define/index . EPA intends to update this document as additional data becomes available, and if persons have data measuring traditional fuels for groups of VOCs, or for other contaminant groups, they are encouraged to provide the Agency with such data.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 156 of 526 traditional fuel.” The idea that “designed to burn” means “can burn or does burn” was included in preamble text to the March 2011 final rule. The December 2011 rule proposed to include this concept in regulatory language. The March 2011 final rule explained that in determining which traditional fuel(s) the owner or operator of the boiler unit would make a comparison to with respect to contaminant levels, the Agency would allow any traditional fuel(s) that can be or is burned in the particular type of boiler. The Agency reasoned that this approach was the most appropriate since the NHSM would be replacing the use of particular type(s) of fuel

that could otherwise be burned. 47 The December 2011 proposal further explained that contaminants are compared between NHSMs and traditional fuels to assist in making a determination whether or not the NHSM is being discarded when combusted, not to regulate which

traditional fuel a combustor should choose to burn. For the purposes of making a discard determination, the proposal reasoned that differentiating between “can burn” and “does burn”

was not relevant. The Agency did note in the proposed rule, however, that for a unit to be able to burn a traditional fuel, it would need an

47 See 76 FR 15542.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 157 of 526 appropriate feed mechanism ( e.g. , a way to load solid fuel of a particular size into the unit) and the ability to adjust physical parameters to ensure spatial mixing and flame stability per unit specifications.

Because most combustion units can burn different—but related—traditional fuels, the Agency discussed in the proposal that broad groups of similar traditional fuels may be used when comparing contaminants. The most common traditional fuel categories burned at major source boilers are coal, wood, oil, and natural gas, as evidenced by data submitted to the EPA’s Office of Air Quality Planning and Standards. 48,49 To further clarify the impact of the proposed “designed to burn” language on contaminant comparisons, potential categories for coal, wood and oil were further described in the proposal. A coal group was proposed that could include data on anthracite, lignite, bituminous, and sub-bituminous coal. A wood or biomass group was proposed that could include data on unadulterated lumber, timber, bark, biomass, and hogged fuel. An oil group was

48 EPA, Office of Air Quality Planning and Standards (OAQPS), Emissions Database for Boilers and Process Heaters Containing Stack Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and ICR No. 2286.03 (Version 7). December 2011. http://www.epa.gov/ttn/atw/boiler/boilerpg.html#TECH

. 49 The fuel analysis information in this OAQPS database is one example of a “national survey” of traditional fuel information, as referenced in the final contaminant legitimacy criterion issued today at §241.3(d)(1)(iii).*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 158 of 526 proposed that could include data on fuel oils 1-6, diesel fuel, kerosene and other petroleum based oils. 50,51 In cases where a unit can burn traditional fuels from several categories, such as a boiler that can burn coal or biomass, the proposal noted that contaminant comparisons could be made using data from either fuel category at the combustor’s discretion. The EPA believes that comments have not changed the basis for its interpretations of the “designed to burn” concept. Thus, the EPA is adopting the language from the proposal and revising the contaminant legitimacy criterion for NHSMs used as a fuel to allow persons to choose a traditional fuel that can be or is burned in the particular type of boiler, whether or not the combustion unit is permitted to burn that traditional fuel. Any additional reasoning for keeping the revision as proposed, without modification, is described in the responses to comments

below.

50 EPA has determined that an oil group should not include unrefined crude oil or gasoline, as neither is typically burned in combustion units subject to the CAA sections 112 or 129 standards. 51 Used oil is a special case and does not need to undergo the contaminant comparison. If it meets the specifications in 40 CFR part 279.11, it is a traditional fuel. If it does not meet the specifications (i.e., it is “off-spec” oil), it is a solid waste, as explained in the preamble to the March 2011 final rule.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 159 of 526 Comment: Industry commenters generally supported the Agency’s proposal to codify the previously stated meaning of “designed to burn” within the contaminant legitimacy criterion for NSHMs used as fuels. These commenters welcomed the regulatory certainty provided by the revision, and described it as a practical and appropriate recognition that some units can burn multiple

traditional fuels. Environmental groups, on the other hand, expressed concern that the proposed definition of designed to burn would allow contaminants in C&D wood to be compared to those in coal instead of virgin wood. One state commenter also expressed concern that allowing comparisons to any fuel the unit could burn, including fuels they are not permitted to burn, would weaken the states’ permitting authorities and create an incentive for combustors to burn dirtier traditional fuels so that they could compare NHSMs to fuels with higher contaminant levels. An industry commenter also mentioned that such an approach would reward facilities that burn dirtier fuel and suggested that the Agency remove the entire “designed to burn” concept from the rule. Response: Based on a review of the comments, the EPA has retained the proposed revision to the contaminant legitimacy criterion for NHSMs used as fuels specifying that “designed to*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 160 of 526 burn” means that a facility can burn a particular fuel regardless of its permit status. The Agency disagrees that this definition of “designed to burn” would incentivize the burning of dirtier fuels or weaken the states’ permitting authorities. The EPA finds that allowing combustors to compare NHSMs to any traditional fuel a unit can or does burn is both practical and appropriate under the statutory definition of solid waste. Many combustion units can burn multiple traditional fuels, and some of these units routinely switch back and forth between different fuel types based on availability of fuel supplies, market conditions, power demands, and other factors. Under these circumstances, it would be arbitrary to restrict the combustion for energy recovery of NHSMs with contaminant levels comparable

to or lower than that of one traditional fuel the unit could choose to burn solely because contaminant levels are higher than

that of a second

traditional fuel the unit could also choose to burn, or may burn the following week. Such an approach would be impracticable and not consistent with the Agency’s intent. It would also be inconsistent with the concept of discard, since a facility burning a NHSM with the same contaminants as a fuel it could also be burning should not be considered to discard that

NHSM based on its contaminant levels.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 161 of 526 The Agency has also determined that restricting comparisons

to traditional fuels the unit is permitted to burn is unnecessary. The fact that a facility is not currently permitted to burn a particular traditional fuel does not mean it could not be permitted to burn that traditional fuel in the future. For this reason, we do not believe it is reasonable to limit the comparison to permitted traditional fuels. Furthermore, such a restriction could have the unintended consequence of combustion facilities across the country seeking permit modifications solely to facilitate contaminant comparisons for this rule. State permitting authorities must still approve permit changes

and this final rule does not affect the discretion of the permitting authorities in acting on requests for permit

modifications. In addition, the EPA has determined that restricting contaminant comparisons to traditional fuels the unit currently burns could provide an incentive for the facility to burn traditional fuel with high contaminant levels. When facilities do not actually have to burn that traditional fuel to make comparisons, that incentive is effectively removed. Comment: One commenter asked the Agency to specifically acknowledge that certain categories of boilers are designed to burn a variety of fuels, noting that stoker boilers, fluidized*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 162 of 526 bed combustors, and boilers with suspension burners in particular should be on such a list. Response: The EPA acknowledges that combustion units exist that can and do burn multiple types of fuels, including some facilities that can burn solid and liquid fuels. In such cases, contaminant levels in NHSMs can be compared to contaminant levels in any of the traditional fuels the unit can or does burn. However, the Agency has decided not to specifically list which combustion units are designed to burn which fuels for two reasons. First, the owner or operator of a combustion unit has a better understanding than the Agency does of what that particular unit is designed to burn. Second, the Agency is concerned that creating such a list will limit the flexibility of combustors with other types of units.

Comment: One commenter noted that if the EPA considers it inappropriate to compare liquid fuels to solid fuels, the Agency offers no justification for its position. The commenter argued that liquid to solid comparisons should be allowed because most cement kilns and many other industrial furnaces have the capacity to burn either solid or liquid fuels. The commenter described the December 2011 proposed rule as ambiguous with regard to this issue and recommended that if a combustion unit*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 163 of 526 is designed to burn both a liquid fuel and a solid fuel, then the liquid to solid comparison should be “appropriate.” Response: The EPA acknowledges that many combustion units can burn multiple traditional fuels. Under these circumstances, the Agency agrees that it would be arbitrary to restrict the combustion for energy recovery of NHSMs with contaminant levels comparable to or lower than that of one traditional fuel a unit could burn solely because contaminant levels are higher than

that of a second

traditional fuel the unit could also choose to burn, or may burn the following week. Accordingly, the EPA codified in today’s final rule the concept that “designed to burn” means can burn or does burn, regardless of a unit’s permitting status, in the revised contaminant legitimacy criterion. The Agency has determined that this revision is sufficient to allow appropriate comparisons to be made between solid NHSMs and liquid traditional fuels, and vice versa; this would only be appropriate, however, when the

combustion unit can burn all traditional fuels used to make such comparisons. Comment: Several industry commenters addressed the topic of what

it means to be able to burn a traditional fuel in a combustion unit. The preamble to the recent proposed rule noted that combustion units would need an appropriate feed mechanism, as*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 164 of 526 well as the ability to ensure the fuel is well mixed and keep flame temperatures within unit specifications, to be able to

burn a traditional fuel. 52 Two commenters opposed the Agency’s interpretation of what it means to be able to burn a traditional fuel in a combustion unit, stating that the Agency provides no explanation of why feed mechanisms are relevant to whether or not a unit can burn a particular fuel. Both commenters also noted that when NHSMs are used as a fuel in combustion units, the focus on what a unit is “designed to burn” in the first place is irrelevant to whether discard is occurring. Another commenter explained that the same exact material could then be a solid waste in one case and a fuel in another case, depending on who is using the material. A third commenter supported the Agency’s interpretation of what ‘can burn’ means, stating that the fate and emissions of a contaminant, whether it is contained in a traditional fuel or a material being considered for legitimacy, are as dependent on the design of the combustion unit as they are on the fuel matrix. The commenter explained further that units should be considered able to burn several types of fuels as long as each type is within the design criteria of the feed system, the combustion chamber, and any downstream pollution control device.

52 See 76 FR 80481.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 165 of 526 Response: The EPA disagrees with those commenters questioning the relevance of what fuels combustion units are designed to burn in the context of the legitimacy criteria. If a NHSM does not contain contaminants at levels that are comparable to or

lower than those found in any traditional fuel that a combustion unit could burn, then it follows that discard could be occurring

if the NHSM were combusted. Whether contaminants in these cases would be destroyed or discarded through releases to the air, they could not be considered a normal part of a legitimate fuel,

and the NHSM would be considered a solid waste when used as a

fuel in that combustion unit. 53 The reason we analyze what a unit is designed to burn is to decide the traditional fuel(s) to which contaminants should be compared. This comparison is then used as an aid to decide whether the NHSM is being legitimately used as a fuel, or whether excess contaminants show that the burning is waste treatment. If a facility compared contaminants to a traditional fuel it cannot burn and that fuel is highly contaminated, a facility would then be able to burn excessive levels of waste components in NHSMs as a means of discard. Regardless of any fuel value in the material, it would be a waste.

53 See 76 FR 15523.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 166 of 526 Once this concept is established, certain factors are relevant to how we decide what a facility is designed to burn. The ability to burn a fuel in a combustion unit does have a basic set of requirements, the most basic of which is being able to get the material into the combustion unit. The Agency reaffirms in today’s final rule its interpretation from the proposal that to be able to burn NHSMs, a combustion unit should

also be able to ensure the material is well mixed and maintain temperatures within unit specifications. Without these basic limits, there would be no point in distinguishing between fuels a unit is or is not “designed to burn,” and every combustion unit would be considered “designed to burn” any combustible material. Clearly, that is not the Agency’s intent. As illustrated by one of the commenters, when a unit cannot burn a fuel according to its own design specifications (i.e., the unit is not designed to burn such a fuel), excess air pollutants form and are likely to be discarded as emissions. Thus, the Agency acknowledges that whether or not a NHSM is a waste may depend on the unit burning the material.

Comment: One commenter asked for clarification on the issue of unit modifications. If a boiler hypothetically could be modified in any way to combust a different traditional fuel, the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 167 of 526 commenter noted, then a comparison to that fuel should be permissible to demonstrate that the NHSM is not a waste. Response: The EPA disagrees with this comment. As long as the modification remains hypothetical in nature, it stands to reason that the unit cannot yet burn the additional traditional fuel and the only reason it is comparing a NHSM to the dirtier fuel is to allow more waste input into the combustion unit. However, if the unit is actually modified to accept additional types of traditional fuels, then the owner or operator of the combustion unit can consider those traditional fuels in evaluating the NHSM for the contaminant legitimacy criterion. In this situation, such behavior shows that the combustor is serious about burning the other fuel and is willing to make the investment so that it can be burned properly instead of simply trying to gain comparison to a dirtier material. Comment: Commenters argue that the EPA has not adequately addressed how units designed to burn only NHSMs are to comply with the contaminant legitimacy criterion. The commenters explained that, under the rule structure as proposed, a NHSM may be classified as a waste simply due to a lack of a traditional fuel for comparison purposes. Comments acknowledge that the Agency discussed the issue in the preamble to the proposed rule, but the commenters disagree that the discussion provided any*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 168 of 526 solution. Finally, commenters specifically requested that the EPA acknowledge the fact that a combustor designed for a particular NHSM fuel is dispositive that the NHSM is being legitimately burned for energy recovery. Response: The EPA disagrees with the assertion that the Agency has failed to provide a solution for units designed only to burn NHSMs as fuels. The EPA also disagrees with the assertion made by commenters that the fact that a combustor has designed a combustion unit for a particular NHSM fuel is dispositive that the NHSM is being legitimately burned for energy recovery. The EPA acknowledges and is aware of units designed specifically to burn NHSMs. One example is facilities designed

to burn resinated wood. The EPA notes that units built to burn such NHSMs are likely to be able to burn similar traditional fuels. Using the example of the unit designed to burn resinated wood, the EPA considers it reasonable to assume that the unit could also burn clean wood and, therefore, could make comparisons to that traditional fuel. The Agency also notes that is it not aware of any units—and commenters have not identified any such units—that can burn only NHSMs. The EPA has nonetheless provided what it considers to be a reasonable solution. As explained in the preamble to the proposed rule, the EPA advises combustors faced with such a*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 169 of 526 situation to compare solid NHSMs to solid traditional fuels, such as coal or biomass, liquid NHSMs to liquid traditional fuels, such as oil, and gaseous NHSMs to gaseous traditional fuels, such as natural gas. 54 In light of the explanation of “designed to burn” codified in the final contaminant legitimacy criterion, as well as industry comments that many combustion units can burn multiple types of fuel, the Agency believes that its suggested approach adequately addresses the issue. Finally, the EPA acknowledges that combustion units can and have been designed specifically to burn NHSMs, and that such units can recover energy. The Agency notes, however, that persons can and have also designed incinerators to dispose of certain waste materials, and that such units can also recover energy. The Agency, therefore, does not consider it dispositive that if combustion units are designed to burn a specific material, that material must be a legitimate non-waste fuel. d. Contaminant Comparisons Allowed The proposed revision to the contaminant legitimacy criterion for NHSMs used as a fuel included the following statement: “In comparing contaminants between traditional fuel(s) and a non-hazardous secondary material, persons can use ranges of traditional fuel contaminant levels compiled from

54 See 76 FR 80481.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 170 of 526 national surveys, as well as contaminant level data from the specific traditional fuel being replaced.” The March 2011 final rule did not discuss the use of ranges when evaluating contaminant data, nor did it discuss the use of traditional fuel data from national surveys. The December 2011 proposed rule included these concepts to clarify that persons are not required to adhere to a single comparison methodology, nor are they required to compare contaminants in their NHSMs to contaminants in the specific traditional fuel source they burn (or would otherwise burn). In both instances, the additional language clarifies, but does not change the intent, of the March 2011 final rule. Regardless of the specific methodology chosen, a comparison will have to be made for each contaminant or group of

contaminants between the NHSM and a traditional fuel or traditional fuel group. Generators or combustors can use either traditional fuel data collected by the EPA or their own data for traditional fuel comparison values. 55 Generators or combustors are responsible, however, for either providing NHSM comparison values in cases where testing is conducted. Examples of

55 The EPA maintains an NHSM webpage with current information on contaminant levels in traditional fuels, examples of legitimacy determinations, and other information at http://www.epa.gov/epawaste/nonhaz/define/index

.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 171 of 526 acceptable NHSM data could include both laboratory test results from a specific generator or combustor and industry-recognized values provided by a national trade organization. Given data for a particular traditional fuel, the EPA noted in the proposal that many combustors would choose to base the traditional fuel comparison value on the upper end of its statistical range and that this approach was reasonable. Anything less could result in “traditional fuel” samples being considered solid waste if burned in the very combustion units designed to burn them—not the Agency’s intent in the March 2011

final rule. 56 Given that selection (i.e., the range for traditional fuel contaminant values), the Agency noted that acceptable NHSM comparison values would include the upper end of a statistical range, a calculation involving the mean and standard deviation, or perhaps a single data point in situations where data are limited. The proposal reasoned that it would not be appropriate to compare an average NHSM contaminant value to the high end of a traditional fuel range, as the existence of an average implies multiple data points from which a more suitable

56 Traditional fuels, as defined in §241.2, are not required to meet the legitimacy criteria, and this scenario is only used to explain the logic behind basing a traditional fuel comparison value on the upper end of a statistical range.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 172 of 526 statistic (e.g., range or standard deviation) could have been

calculated. If each NHSM comparison value is comparable to or lower than its corresponding traditional fuel value, the material would be considered to meet the contaminant legitimacy criterion. An initial assessment would not need to be repeated, explained the proposal, provided the facility continues to operate in the same manner and use the same type of NHSMs as when the original assessment was made. Despite presenting several approaches for calculating NHSM comparison values, such as the upper end of a statistical range or a calculation involving the mean and standard deviation, the proposal did not preclude other reasonable methodologies. In the context of an inspection or enforcement action, the Agency will evaluate the appropriateness of alternative methodologies and data sources on a case-by-case basis when determining whether the contaminant legitimacy criterion has been met. The EPA noted in the proposal that contaminant testing is not required and that process knowledge may be sufficient for particular contaminants in particular NHSMs. Even when analytical testing is not necessary, the EPA’s regulations governing recordkeeping for units subject to emissions standards for boilers and process heaters issued pursuant to CAA section*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 173 of 526 112 require keeping a record to document the basis of non-waste determinations under the part 241 criteria (including the contaminant legitimacy criteria). See 40 CFR 40 CFR 63.11225(c)(2)(ii) for area source boilers and 40 CFR 40 CFR 63.7555(d)(2) for major source boilers. The EPA believes that the comments have not changed the basis for its decision to allow the use of ranges and surveys of traditional fuel contaminant levels. Nor have comments changed the Agency’s position that similar traditional fuels may be grouped for comparison purposes and that testing is not required in all cases. Thus, the EPA is adopting the reasoning from the proposal and adjusting the contaminant legitimacy criterion accordingly for NHSM used as a fuel. The EPA has decided, however, to make a modification to the regulatory language of the December 2011 proposed rule based on comments received. The final criterion issued today includes additional language clarifying the appropriate use of ranges when making contaminant comparisons between NHSMs and traditional fuels. Consistent with the rationale provided in the preamble to the proposed rule, additional language now states that in order to use the full range of contaminant values in traditional fuels, persons should also account for the variability in NHSM contaminant levels. Any additional reasoning*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 174 of 526 for finalizing the revision with or without suggested modifications is described in the responses to comments below. Comment: Industry comments supported the proposed changes expressly allowing the use of ranges and national surveys of traditional fuel data, as did one state comment. One commenter stated that these changes provide a more practical approach to meeting the contaminant legitimacy criterion that recognizes the

inherent variation of contaminants in NHSMs and traditional fuels. Several commenters supported the use of ranges by repeating the EPA’s rationale from the proposal that using anything lower would logically result in a determination that

some traditional fuels should not be burned in combustion units designed to burn those fuels. Another commenter stated that these clarifications describe appropriate methods of handlingdata that are naturally variable and will result in fewer nonwaste materials being arbitrarily identified as wastes. Environmental groups did not comment on the use of national surveys of traditional fuel data, but they opposed the use of ranges to evaluate contaminants, expressing concern that C&D wood contaminant levels would be compared to the highest contaminant levels for coal. These commenters suggested that averages or medians be used instead.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 175 of 526 Response: Based on our review of the comments received, the EPA is retaining the approach outlined in the proposed rule to expressly allow the use of ranges and traditional fuel data from national surveys. As discussed in the proposed rule, the EPA considers it reasonable to allow combustors to use the range of contaminant levels present in traditional fuels because anything less could result in “traditional fuel” samples being considered solid waste if burned in the very combustion units designed to burn them. For this reason, the Agency disagrees with comments stating that combustors should be limited to use of the average

or median concentrations. The EPA acknowledges that the revisions adopted as final in today’s rule would allow C&D wood contaminant levels to be compared to the highest contaminant levels for coal. The commenters do not specify, however, what C&D wood contaminant levels (averages or ranges) they are concerned would be compared to the highest levels in coal. The Agency points out that the proposed revisions were not intended to allow average C&D wood contaminant levels to be compared to the highest levels in coal. In light of the concerns expressed by these commenters, the EPA has modified the proposed language to provide additional assurance that such average-to-maximum comparisons, which the Agency has already determined are inappropriate, will not be*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 176 of 526 allowed under today’s final rule. The EPA has decided that such comparisons are inappropriate because, following the logic stated in the March 2011 final rule, average-to-maximum comparisons do not demonstrate that contaminants in these cases could be considered a normal part of a legitimate fuel and are not being discarded. 57 Today’s final criterion makes clear that the full range of traditional fuel contaminant values can only be used if persons also consider some measure of variability in the NHSM contaminant data. This will help to ensure that average to maximum comparisons will not be used to justify the combustion

of NHSMs as non-waste fuels. Comment: Industry comments supported the concept discussed in the proposed rule that the contaminant legitimacy criterion does not require the testing of contaminant levels in NHSMs in all cases. The proposal noted that persons can instead use expert or process knowledge to justify decisions to rule out certain constituents. The proposal also noted that initial assessments would not need to be repeated, provided the facility continues to operate in the same manner and use the same type of NHSMs as when the original assessment was made. One commenter asked the EPA to confirm these statements, explaining that this policy

57 See 76 FR 15523.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 177 of 526 will result in fewer NHSMs being arbitrarily identified as wastes. Another commenter stated that the flexibility provided by this policy will help ensure that regulated entities with varying levels of sophistication can better document that their

NHSMs are non-waste fuels. Environmental groups, on the other hand, commented that the EPA must require testing for contaminants, citing the extremely variable nature of C&D wood as a problem. Commenters expressed concern that a large amount of material is going to be generated as abandoned and foreclosed housing is torn down, and the potential for liberating vast amounts of lead and other urbantoxics, to say nothing of arsenic and chromium from pressuretreated wood, has never been higher. Response: Based on a review of the comments received, the EPA is maintaining its position that contaminant testing is not required in all situations. Requiring testing in some situations is unnecessary. Where a NHSM generator, processor, or combustor knows a contaminant will either not be present or be present at a level below that in the appropriate traditional fuel or traditional product, the Agency believes it is a reasonable and practical policy to allow persons to rely on either process knowledge or previous testing of the same material.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 178 of 526 The Agency notes that there will be instances where testing is conducted and comparisons will have to account for the variability of contaminant levels in NHSMs, including lead concentrations in C&D wood. The Agency also notes that today’s final rule does not change its previously stated position that chromated copper arsenate-treated wood (CCA wood) would likely have contaminant levels not comparable to traditional fuels. 58 Comment: One commenter requested that the EPA clarify what it means by the upper end of the statistical range. Citing the EPA’s statement in the proposal that “it makes sense to base the traditional fuel comparison on the upper end of the statistical range,” 59 the commenter asked for confirmation that the maximum

values in the traditional fuel data set can be used for comparison with a NHSM since all data corresponding to the traditional fuel are valid for comparison, not just values that are below some arbitrarily determined statistical parameter. Response: The word ‘ranges’ in the proposed contaminant legitimacy criterion has been changed to ‘the full range’ in the final criterion issued today. This term more clearly indicates the Agency’s intent to include all true values in between the

minimum and the maximum.

58 See 75 FR 31872. 59 See 76 FR 80481.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 179 of 526 The Agency has also separated the concepts of ranges and traditional fuel survey data in the regulatory language in order to make the criterion more transparent. The pertinent regulatory text in today’s final rule reads as follows: “In comparing contaminants between traditional fuel(s) and a non-hazardous secondary material, persons can use data for traditional fuel contaminant levels compiled from national surveys, as well as contaminant level data from the specific traditional fuel being replaced. To account for natural variability in contaminant levels, persons can use the full range of traditional fuel contaminant levels, provided such comparisons also consider variability in non-hazardous secondary material contaminant

levels.” Comment: Several commenters noted that the Agency proposed to allow the use of “national” surveys of traditional fuel data in the proposed contaminant legitimacy criterion and included

several international data sources in its “Contaminant Concentrations in Traditional Fuels: Tables for Comparison”

document. 60 Several commenters asked that the word ‘national’ be removed from the contaminant legitimacy criterion. Other

60 The EPA maintains a NHSM webpage with current information on contaminant levels in traditional fuels, examples of legitimacy determinations, and other information at http://www.epa.gov/epawaste/nonhaz/define/index

.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 180 of 526

commenters asked that the EPA either remove the word ‘national’ or clarify that international data and surveys from other nations are also acceptable data sources. Response: The EPA has retained the proposed language, including the word “national,” which expressly allows national surveys of traditional fuel data to be used in contaminant comparisons for

NHSMs used as a fuel in combustion units. A statement that national surveys can be used does not preclude the use of appropriate international data. In fact, as the commenters recognize, the EPA included several international sources in its analysis of traditional fuels. These international sources were limited, however, to situations where no data or minimal data could be found from national sources or the Agency had no reason

to believe that data from national sources would be significantly different. At issue is whether the data are representative of traditional fuels that are purchased and burned at operating boilers in the United States. The Agency has decided that it is reasonable to assume that national surveys of traditional fuels contain information about fuels purchased and burned at operating boilers in the United States. Comment: One commenter argued that the traditional fuel database compiled by the EPA should include the USGS coal data from not*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 181 of 526 only the U.S., but also from around the world because those fuels are currently in use. Response: The EPA has maintained its decision not to reference the United States Geological Survey (USGS) COALQUAL database in its traditional fuel contaminant tables. It is the Agency’s understanding that the COALQUAL database contains trace metal analyses for coal and associated rocks taken directly from coal beds throughout the United States and that not all of these coal beds are currently being mined. It is also the Agency’s understanding that as-mined coal typically undergoes a series of processing steps, including crushing, screening, washing, and physical separation techniques to remove rock and other impurities prior to being blended into clean, graded, and uniform coal products suitable for use in commercial boilers. 61 In comparison, the EPA contaminant tables referenced by commenters are based largely on a comprehensive dataset that contains approximately 32,000 records of pre-combustion contaminant analyses performed on coal, wood, biomass, and fuel oil samples that were actually used as fuel at boilers across the country. Thus, the Agency has decided that the EPA dataset is more representative of contaminant levels in coal actually

61 Speight, J.G. Synthetic Fuels Handbook: Properties, Process, and Performance. McGraw-Hill, 2008. pg 141.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 182 of 526 burned at operating boilers than the COALQUAL database. As a result, the EPA has decided not to use the COALQUAL database in developing the tables posted on the Agency’s website.

We would also note that the decision not to use USGS data is consistent with the Agency’s position that product fuel oils, as opposed to virgin crude oil, should be measured for purposes of contaminant comparisons. As stated in the proposed rule, neither unrefined crude oil nor gasoline is typically burned in combustion units regulated by CAA sections 112 and 129. Similarly, as-mined coal is not typically burned in combustion units regulated by CAA sections 112 and 129. Comment: One commenter suggested that for each contaminant or group of contaminants, either the Upper Confidence Limit (UCL) of the mean at a 90 percent confidence level or the Upper Prediction Limit (UPL) at a 90 percent confidence level for NHSMs could be compared to the maximum value for the appropriate

traditional fuel. Response: First, we would note that in the preamble to the recent proposed rule, the EPA indicated that when compared to the full range of contaminants in traditional fuels, suitable measures of NHSM contaminants would include the upper end of a statistical range, a calculation involving the mean and standard deviation, or perhaps a single data point in situations where*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 183 of 526 data are limited. The Agency also noted that the discussion in the preamble did not preclude “other reasonable methodologies.” 62 With respect to the specific approaches suggested by the commenters, the EPA agrees with the approach of comparing the UPL at a 90 percent confidence level for each contaminant or group of contaminants in NHSMs to the maximum value for each contaminant or group of contaminants in the appropriate traditional fuel. Specifically, the UPL is an indicator of what

a future measurement would be. In the context of NHSM contaminant levels, the UPL taken at a 90 percent confidence level would yield a number, and a combustor could be confident that 90 percent of the time, the next measured contaminant level

would be at or below that number. The UPL considers both the variability of the contaminant distribution and the uncertainty surrounding what the true mean is. The comment suggested taking

a maximum value for traditional fuel contaminant levels and comparing it to the UPL at a 90 percent confidence level. Because both metrics account for the variability present in contaminant distributions, the EPA would consider this approach to be a reasonable methodology. The EPA does not agree, however, with an approach of using the UCL of the mean. That is, the UCL of the mean, regardless of

62 See 76 FR 80481.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 184 of 526 the confidence level, is a measure of the mean and does not adequately factor in the variability present in both NHSMs and

traditional fuel contaminant levels. The metric would be appropriate for a mean to mean comparison, but that is not what the commenter suggested. The comment suggested taking a maximum (which takes full advantage of the variability present in traditional fuel contaminant levels) and comparing it to a mean (which ignores the variability present in NHSM contaminant levels). The EPA does not consider this approach to be a reasonable methodology. To be clear, the EPA does not object to the use of confidence limits, or to the use of the upper confidence limit of the mean, on their own grounds. However, the Agency believes it is inappropriate to make a comparison of mean contaminant

levels in NHSMs to maximum contaminant levels in traditional

fuels. Comment: One commenter suggested that the EPA allow entities to compare contaminants between NHSMs and traditional fuels on a pound of contaminants per Btu (lb/MMBtu) basis, as the Agency said it would consider in the preamble discussion to the 2011

NHSM Final Rule. 63

63 See 76 FR 15525.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 185 of 526 Response: The EPA maintains its position that a direct comparison of contaminant levels, as opposed to the lb/MMBtu approach, is the most appropriate means of comparing contaminant levels. As was noted in the 2011 NHSM Final Rule, however, the Agency may still consider the lb/MMBtu approach as guidance is developed for implementation. 3. Categorical Non-Waste Determinations for Specific NHSM Used

as Fuels The new provisions at 40 CFR 241.4 were proposed to allow the EPA to list categorically certain NHSMs as non wastes --

when used as a fuel in a combustion unit. Based on these categorical non-waste determinations, facilities burning NHSMs that qualify for the provision will not need to demonstrate that the NHSM meets the legitimacy criteria on a site-by-site basis.The EPA has determined that these NHSMs are categorical nonwastes as described and are not discarded when used as a fuel in

a combustion unit. Categorical non-waste determinations only apply, however,

to NHSMs that are burned as a fuel in combustion units for the purpose of recovery energy. Burning a NHSM fuel in a combustion unit for energy recovery assumes a set of basic design requirements that ensures excess air pollutants are not formed and emission requirements under the CAA are met. As discussed in*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 186 of 526 Section II.D.2.c of this preamble, such basic design requirements include abilities to load the material into the unit, ensure the material is well mixed, and maintain temperatures within unit specifications. For example, burning a whole tire in a boiler that is only designed to burn tires that are chipped and/or dewired would not be considered a fuel burned in a combustion unit for the purpose of recovering energy. The Agency is not including specific regulatory text regarding this point since we believe it is understood that to be burned for energy recovery, the combustion unit must be able to burn the

NHSM as a fuel. a. Scrap Tires In the December 23, 2011 NHSM proposed rule, the EPA proposed the following regulatory language under 40 CFR 241.4 Non-Waste Determinations for Specific Non-Hazardous Secondary Materials When Used as a Fuel: “Scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires.” Further, the addition of this provision (40 CFR 241.4(a)(1)) eliminated the need for the previous scrap tire provision at 40 CFR 241.3(b)(2)(i), 64 which

64 The scrap tire provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: “(b) The*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 187 of 526 has been removed and reserved in today’s final rule. Today’s rule finalizes the proposed provision without changes. Comment: One commenter stated, “In its latest proposal, EPA eliminates the need for scrap tires to meet its legitimacy criteria and simply declares that scrap tires collected under an established tire collection program are not waste regardless of whether they meet the Agency’s legitimacy criteria.” Response: The EPA disagrees with this comment. The EPA has not eliminated the legitimacy criteria for scrap tires. The categorical determination for scrap tires (as with all the categorical determinations in this rule) simply applies the Agency’s non-discard determination, made in the March 2011 rule and not reopened in this amendment, to the general category so that case-by-case determinations as to legitimacy would not need to be made by each facility. For the scrap tire category, scrap tires managed under established tire collection programs and used as a fuel need not make case-by-case legitimacy

following non-hazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs.”*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 188 of 526 determinations. Moreover, the commenter has given us no information that the criteria are not met. In fact, the commenter simply repeats the argument made in previous rulemakings that the material is always a waste regardless of legitimacy criteria. Comment: Several commenters suggested that scrap tires should not have more restrictions under 40 CFR 241.4(a) for thecategorical non-waste status than does resinated wood. The nonwaste determination for scrap tires, as proposed in 40 CFR 241.4(a)(1), read “Scrap tires that are not discarded and are managed under the oversight of established tire collectionprograms, including tires removed from vehicles and offspecification tires.” In comparison, the resinated wood description, as listed in 40 CFR 241.4(a)(2), is “Resinated

wood.” The commenters reasoned that if all resinated wood can be non-waste, then all scrap tires should also qualify (regardless of the origin). Response: Please see the EPA’s response in the resinated wood section below (Section II.D.3.b of this preamble) relating to the 241.4(a) criteria for resinated wood and the comparison to scrap tires. That response goes into detail explaining why the

extra criteria are not needed for resinated wood and related discard issues. In addition, as noted previously in the NHSM*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 189 of 526 rulemaking record (see docket EPA-HQ-RCRA-2008-0329), numerous tire piles have been created in the past whereas this is not the

case for resinated wood used as fuel. The existence of these historic tire dumps, demonstrates that some tires have not been treated as a valuable commodity therefore necessitating the additional discard qualification in regulatory text. The specific tires described in the categorical determination are handled as a valuable commodity and do not include discarded

tires.Comment: A commenter suggested that the EPA should add “offspecification tire components” to the regulatory language. This revision would be in addition to the proposed text at 40 CFR 241.4(a)(1) that adds “off-specification tires.” Response: Off-specification tire components are covered in the 40 CFR 241.4 categorical non-waste determinations for scrap tires. The term ‘scrap tire’ is a general term for tires and caninclude, for example, whole tires, chipped tires, offspecification tires, or off-specification tire components (i.e., tread, sidewall, or base) that are removed from vehicles or are generated by tire manufacturers, including retailers or other parties involved in the distribution and sale of new tires. This*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 190 of 526 formulation was also stated in the December 2011 NHSM proposal 65 and is adopted for today’s final rule. The EPA sees no difference between tires and their various components. Thus, the EPA does not believe it necessary to modify the rule to include “off-specification tire components” in the codified definition. They are understood to be included in the categorical non-waste provision. Comment: Many commenters mentioned the difficulty in complying with the regulations, since it is very difficult to distinguish between tires removed from vehicles (and off-specification tires) versus tires from other origins. In regard to this issue, one commenter stated, “a combustor cannot know the origin of the tire-derived fuel it is buying. In its response to requests for reconsideration of the CIWSI rule, the EPA responded to this issue by recognizing that it is not possible for a combustor to know the source of all NHSM fuel and declined to impose this requirement stating: "Rather, it is sufficient that the ultimate user verify that it is obtaining tires from an established tire collection program, which program can provide the user with reasonable assurance that it manages tires carefully from point of collection to point of burning and which does not

65 See 76 FR 80483.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 191 of 526

receive tires which have been abandoned in landfills or otherwise. 76 Fed. Reg. 28318, 28322 (May 17, 2011)." Therefore, the commenter requests that the EPA codify this statement in the NHSM rule and expressly allow combustors to rely upon certifications of fuel suppliers that the fuel sold is

not a solid waste. Another commenter said that for the EPA to require a tire storage facility to maintain separate classifications of tires (i.e., separating discarded tires from tire dumps from other tires) is not reasonable, because inspectors and operators would not be able to tell the piles apart. The EPA’s current definition of scrap tires would place undue financial hardship on contractors and storage facilities. Response: The EPA has decided that a regulatory statement on this matter is not necessary, since the actual requirement for the combustor to determine where its tires come from when they are coming from an established tire collection program (or a contractual agreement) is provided for under the Clean Air Act and interpretations provided for that regulation. For example,major source boilers have a recordkeeping requirement for a nonwaste determination at 40 CFR 63.7555 “What records must I keep?” Within those regulations for major source boilers, it requires the combustor to demonstrate that NHSMs are a non-*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 192 of 526 waste. To the extent that a combustor believes it appropriate, they may request haulers to verify that the tires would qualify

as non-waste under 40 CFR 241.4 when combusted. If there is question about the origin of the tires, the EPA inspectors will not assume that tires are from discarded sources. As we note in the Federal Register notice (76 FR 28318, 28322), “It is EPA’s position that ultimate users are not responsible for knowing the source of all tires obtained from an established tire collection program... EPA does not interpret this language as requiring knowledge of each individual tire as this is a practical impossibility... users also should not assume that tires from established programs which participate in occasional cleanup days are discarded – both because there is no information that the tires from the cleanup efforts were discarded (and these programs are designed to prevent discarding) and whether the kiln received tires from the sporadic cleanup days in any case.” The Federal Register notice that the commenter cited (76 FR 28322) and a related letter to the docket (“Memorandum.

Combustion in a Cement Kiln and Cement Kilns’ Use of Tires as Fuel.” April 25, 2011, Document ID: EPA-HQ-OAR-2002-0051-3582) provide sufficient guidance. The Agency believes this issue does not merit additional regulation for the hauler.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 193 of 526

b. Resinated Wood In the December 23, 2011 proposed rule, the EPA proposed to designate in regulatory text that resinated wood is not a solid waste when used as a fuel. In making this determination, the Agency analyzed these materials using the legitimacy criteria, concluding that resinated wood clearly is managed as a valuable commodity and has meaningful heating value and is used as fuel. 66 While stating that these materials may not always meet the regulatory contaminant legitimacy criterion in every situation, we proposed to list categorically resinated wood as a non-waste fuel because, after balancing the regulatory legitimacy criteria and other relevant factors, the EPA determined that resinated wood that is used as fuel represents an integral component of the wood manufacturing process and, as such, is not being

discarded when burned as fuel. Specifically, we noted the extent to which resinated wood is used as fuels throughout the wood manufacturing industry and

that the use of resinated wood as fuel is essential to the wood manufacturing process. We also noted the prevalence of wood product plants that have been designed specifically to utilize these residuals for their fuel value; in fact many (if not most) wood products plants would not be able to operate as designed

66 See 76 FR 80483.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 194 of 526

without the use of these materials. This determination was previously codified under 40 CFR 241.3 (b)(2)(ii) of the NHSM final rule, provided the resinated wood met the legitimacy criteria in 40 CFR 241.3(d)(1). However, based on the available information, as well as how this material is handled and used in the process, resinated wood is not being discarded when used as a fuel, and thus, should not be considered a solid waste when burned as a fuel. The EPA proposed to codify this determination by categorically listing resinated wood as a non-waste fuel in 40 CFR 241.4(a)(2). 67 By specifically listing it as a non-waste fuel, combustors of this material would not need to demonstrate that they meet the legitimacy criteria on a site-by-site basis. The EPA finds that this reasoning is supported by the entire rulemaking record, as explained in the December 2011 proposal, which rationale is adopted for the final rule as further supported by responses to comments, below. Thus, the Agency has determined to list categorically resinated wood as a non-waste fuel. In addition, after considering comments received on the proposal, the Agency is revising the definition of “resinated wood,” as codified in 40 CFR 241.2. Comment: Most comments on this issue were supportive of a categorical determination that resinated wood is a non-waste

67 See 76 FR 80483-80484.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 195 of 526

fuel. One commenter maintained that the record for this rulemaking clearly establishes that resinated wood is highly valued within the wood products industry for its high fuel value, stating that “Many facilities rely on mixing of these low moisture content wood materials with higher moisture content wood materials to manage and optimize combustion.” This same

commenter also stated that “there exists within the wood products industry a developed market for purchase and sale of resinated wood between independent companies.” In fact, many wood-fired boilers at wood products plants that do not generate sander dust have been retrofitted with sander dust injection burners so that sander dust can be properly combusted in those units, taking full advantage of the heat energy of sander dust.

Another commenter stated that “resinated fuels have been an integral part of the composite wood product industry’s production process since the industry was established decades ago. As such, facilities’ combustion and energy systems were designed and constructed to utilize most if not all of their own wood and wood by-products, including resinated trim and sander dust. Excluding resinated wood fuels from our manufacturing processes would require significant re-engineering of our facilities and add insurmountable operating costs in order to substitute fossil fuels, as well as to transport and dispose of*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 196 of 526 resinated wood fuels. Any other result would effectively make it nearly impossible for these manufacturing facilities to continue operations.” This same commenter also noted that “many of our facilities rely exclusively on resinated wood for its fuel and

have limited access to substitutes.” Another commenter provided two examples of mills that utilize nearly 100 percent of sander dust, either to create new product as part of the manufacturing process or as fuel. In addition, two state commenters supported the proposed categorical non-waste determination for resinated wood. Response: Nearly all of the comments received regarding the proposed categorical non-waste determination were supportive of categorically listing resinated wood as a non-waste fuel when burned in combustion units for energy recovery. As noted above, the Agency did receive a few additional examples of how the use of resinated wood as a fuel is an integral part of the wood manufacturing industry’s production process (e.g., the facilities that would have to be significantly re-engineered if they could not use resinated wood for its fuel value and the mills that use 100 percent of the sander dust it generates, either by recycling it back into the process or burning it for fuel).*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 197 of 526 Although we received one comment critical of the EPA’s proposed listing of resinated wood as a non-waste fuel (addressed below), we did not receive any comments that argued or suggested that the use of resinated wood as a fuel is not an integral component of the wood manufacturing process. Thus, we agree with commenters who encouraged the EPA to finalize resinated wood as a categorical non-waste fuel and will finalize this determination in today’s rulemaking. Information in the record for this rulemaking clearly establishes that resinated wood is managed as a valuable commodity (40 CFR 241.3(d)(1)(i)) and has meaningful heating

value and is used as a fuel in combustion units that recover energy (40 CFR 241.3(d)(1)(ii)). 68 In addition, we generally have

determined that most resinated wood meets the contaminant legitimacy criterion as well ((40 CFR 241.3(d)(1)(iii)), although we acknowledge that in some instances these materials may have levels of formaldehyde that are not comparable to

traditional fuels. 69 The EPA confirms the position discussed in the proposal, and adopts it as its final rationale that there are instances

68 See, e.g., 76 FR 80483. See also background document developed in support of the December 23, 2011 proposed rulemaking entitled, “Resinated Wood, Scrap Tire, and Pulp/Paper Sludge Support Document” (EPA-HQ-RCRA-2008-0329-1880). 69 Id.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 198 of 526 where it is appropriate for the EPA to balance the regulatory legitimacy criteria with other relevant factors in order to determine whether a material is a legitimate fuel or is merely being discarded by being combusted. We have determined that resinated wood is one such example. Although resinated wood may not meet the regulatory contaminant legitimacy criteria in every situation, it is clear that resinated wood is still a “legitimate” product fuel after one considers how integrally

tied the use of resinated wood as a fuel is within the wood manufacturing process and industry. Nearly all comments received on this point concurred with this assessment. Thus, in today’s final rule, we are codifying the determination that resinated wood, based on all information and the totality of the circumstances, is a non-waste when used as a fuel. Comment: One commenter, however, stated that the EPA’s proposed categorical determination that resinated wood is a non-waste fuel is unlawful and arbitrary. The commenter stated that the EPA is now proposing to simply “exempt” resinated wood altogether, regardless of who burns it and whether it meets the legitimacy criteria. According to the comment, the EPA acknowledges that the formaldehyde levels in resinated wood would not always meet its contaminant legitimacy criterion – i.e., would not be comparable to the levels in any fuel that*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 199 of 526 companies would otherwise burn. The commenter states that the EPA also acknowledges that burning resinated wood increases the emissions of formaldehyde, but nonetheless finds that, “In general the motivation to use resinated wood as a fuel, even with the slightly higher formaldehyde levels, predominates over the motivation to dispose of the formaldehyde.” The EPA’s decision to remove the limits on the exemption for resinatedwood and to “categorically” declare resinated wood to be a nonwaste – regardless of who burns it, regardless of how contaminated it is, and regardless of the reality that some companies may be burning resinated wood as a cheap means of disposing of their toxic formaldehyde wastes – underscores this point.

The comment continues that the EPA nowhere claims that companies burning resinated wood that they have not generated pay for these materials. Indeed, the EPA does not deny that these companies are paid to take the resinated wood they burn. Thus, the EPA provides no reason to believe that the resinated wood that is burned by a company other than the one that generated it has not been discarded by the company that generated it. Even under the EPA’s own view of the meaning of discard, resinated wood burned by companies other than the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 200 of 526 generator of the resinated wood would be waste, but for the Agency’s declaration that it is not waste.

The commenter also states that the EPA admits that some companies may burn resinated wood because they want to dispose of the formaldehyde it contains (i.e., to dispose of the contaminated wood rather than to recover energy). Moreover, the levels of formaldehyde contamination in some resinated wood would exceed the EPA’s legitimacy criteria, but for the EPA’s declaration that these criteria do not apply. For these reasons as well, resinated wood is discarded even under the EPA’s own

view of what that term means. Further, the comment states that sources’ alleged “motivation” for burning a material is to recover energy rather than to destroy the wood and the contaminants it contains – assuming arguendo that a source’s motivation can even be determined – does not show that material is not a waste. Rather,

resinated wood is a waste because it is discarded within the meaning of RCRA. Notably, the EPA does not suggest that there is any use for resinated wood that has been discarded other than – assuming it’s a “use” at all – burning it. Moreover, establishing a “motivation”-based test for whether resinated

wood is or is not a waste conflicts with and defeats the Clean*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 201 of 526 Air Act. Thus, the agency’s categorical declaration that

resinated wood is not a waste is unlawful. Response: The EPA strongly disagrees with the commenter’s characterization of its categorical determinations. In making categorical determinations, the Agency is not “exempting” these materials from regulation as a solid waste (i.e., if not for this “exemption,” these materials would otherwise be regulated as solid waste). Rather, the EPA has determined that the specified NHSMs are not solid waste when used as fuels. Further, in making categorical determinations, the EPA is not saying that the legitimacy criteria are not relevant. In proposing the categorical non-waste determination for resinated wood, the Agency stated we were “balancing the legitimacy criteria and

other relevant factors based on the fact that resinated wood residuals that are used as fuels represents an integral component to the wood manufacturing process and, as such, resinated wood residuals are not being discarded when burned as

fuels.” 70 This remains the Agency’s final finding in this rule. Regarding the level of contaminants in resinated wood, the Agency is not saying that resinated wood is a non-waste fuel “regardless of how contaminated it is,” as the commenter suggests. Based on all available information, the Agency has

70 See 76 FR 80483.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 202 of 526 concluded that resinated wood meets the legitimacy criteria for all contaminants with the possible exception in some situations of formaldehyde. In focusing specifically on formaldehyde, we also have stated that we have limited information regarding formaldehyde levels—that is, resins and adhesives containing formaldehyde react within the resin curing process leaving “free formaldehyde at levels less than 0.02 percent (or 200 ppm), but

noted that levels will be reduced further due to new national rules being developed by the CARB Composite Wood ATCM, per new Public Law 111-199. Thus, we have not said that contaminants do not matter. Rather, we have carefully analyzed contaminant levels in resinated wood and have determined, based both on contaminant levels, as well as how the use of these materials represents an integral part of the wood product manufacturingprocess, that resinated wood materials are a legitimate nonwaste fuel. Further, we do not concede, as the commenter contends, that some companies burn resinated wood to destroy contaminants—in fact we have determined just the opposite. We have determined that companies burning resinated wood do so because such an activity is integrally tied to their production process, not to dispose of the formaldehyde. This determination is based on that extent to which resinated wood is used as fuels throughout the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 203 of 526 wood manufacturing industry, as well as the fact that the use of resinated wood as fuel is essential to that industry (i.e., plants have been designed to use these materials as fuels and would be unable to operate if resinated wood was not available as a fuel source). Regarding the comments that the EPA acknowledges that burning resinated wood increases emissions of formaldehyde, the Agency needs to correct this characterization. First, in the 2011 NHSM final rule, we stated that the criterion or test in determining the contaminant legitimacy criterion is based on the level of contaminants in the secondary material itself, and not by comparing the differences in emissions. 71 However, responding to comments we received regarding emission levels associated with burning resinated wood as a fuel, the Agency determined that the amount of formaldehyde that is emitted from burning resinated wood residuals is in fact likely to decrease, given that Public Law 111-199 will reduce formaldehyde levels in these

materials. 72 Regarding the commenter’s statement that companies that burn resinated wood that they have received from off-site do not pay for it, the EPA both disagrees with the statement and also

71 See, e.g., 76 FR 15502. 72 Id.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 204 of 526 finds it to be not directly relevant for determining whether a

material is not a solid waste. As noted in the March 2011 final rule, inter-company transfers of resinated wood residuals are typically managed through buy-sell contracts, and 6 percent of resinated wood

residuals are sold into the fuel market and are used as either “furnish” (i.e., raw materials) or fuel at the receiving

facilities. 73 In addition, the EPA received additional comments on the proposed rule stating, “...there exists within the wood products industry a developed market for purchase and sale of resinated wood between independent companies.” Moreover, while contractual arrangements can be used as evidence that the material is managed as a valuable commodity and that discard is not occurring when a material is transferred beyond the control of the generator, the price of an NHSM is not, by itself, dispositive of whether the material is or is not

a waste. The main indication that resinated wood residuals are not solid waste is the fact that they are used as fuels in a way that represents an integral component to the wood products industry. As the EPA noted in the March 2011 final rule,

“resinated wood residuals transferred off-site are utilized in the same manner as self-generated resinated wood residuals

73 See 76 FR 15500*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 205 of 526 (i.e., contained in the same bins as furnish materials used in the product, transferred via conveyors or ducts), which the plants are specifically designed to burn as a fuel, [and therefore] we agree that this does not constitute discard.” 74 The comment that the Agency has simply declared that resinated wood is a non-waste “regardless of who burns it” is a mischaracterization of this categorical non-waste determination. Based on all information provided to the Agency, we have determined the use of resinated wood as a fuel is an integral part of the industry’s production processes, and that these materials are managed as valuable commodities (i.e., fuels), have meaningful heating value and are used in combustion units that recover energy regardless of whether these materials remain within the control of the generator or are transferred off-site to another facility. On the other hand, we have no information that facilities are burning these materials merely to get rid of them (i.e., discard).

The EPA finds irrelevant the commenter’s statement that the EPA is looking to a sources’ motivation for using a material as a fuel conflicts with and defeats the Clean Air Act. The issue, rather, is whether motivation is relevant to a waste

determination under RCRA. The D.C. Circuit confirmed the

74 Id.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 206 of 526 relevance of motivation in determining whether a recycled material is a waste. See, API v. EPA, 216 F.3d at 58 (court criticizes the EPA for not saying why it has concluded whether recycling motivation predominates over a disposal motivation). In this case, it is clear that the motivation for burning the

resinated wood is to utilize its inherent value as a fuel and not for disposal. Commenters have provided the Agency with information that facilities generating and managing resinated wood residuals consider these materials to be an integral part of their production process—both in the value these materials provide as being a critical source of energy as well as being recycled back into the manufacturing process to create more wood products. Thus, we are not convinced that a facility that considers the use of resinated wood as a fuel to be an integral part of its production processes, as has been established in the record, is motivated to discard these materials by burning to get rid of them.

Comment: A few commenters stated that the EPA is not consistent in how discarded materials are designated as solid waste. In particular, the commenter stated that the EPA was proposing to list as a categorical non-waste fuel in 40 CFR part 241.4 resinated wood regardless of whether it is previously discarded,*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 207 of 526 while the Agency would require processing for scrap tires that

have been discarded in landfills. Response: The Agency disagrees that its treatment of resinated wood is inconsistent with its treatment of scrap tires. Nowhere does the Agency state that resinated wood would be considered a non-waste fuel “regardless of whether it is previously discarded.” The EPA, based on all information available, has determined that resinated wood is not being discarded when used as fuel, given the fact that resinated wood residuals that are used as fuels represent an integral component of the wood manufacturing process. If a shipment of resinated wood residuals was disposed of in a landfill, it would be a waste. In addition, if a shipment of resinated wood residuals were disposed of and later recovered to be used as a fuel, as is the case with scrap tires that are extracted from landfills, this would be a different scenario, and would not be included within the categorical listing in 241.4(a)(2). As the record clearly shows, resinated wood is routinely handled and managed as a valuable fuel product within the wood products manufacturing industry. As noted in the rulemaking record (see docket EPA-HQ-RCRA-2008-0329), numerous scrap tire piles have been created in the past and it is a common practice*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 208 of 526 to recover abandoned tires from tire piles and use them for

fuel. This is not the case for resinated wood. Comment: While supportive of the Agency’s proposed listing of resinated wood as a non-waste fuel in 40 CFR part 241.4, two commenters suggested that the Agency revise the definition of “resinated wood” as codified in 241.2. Currently, “resinated wood” is defined as, “wood products (containing resin adhesives) derived from primary and secondary wood products manufacturing and comprised of such items as board trim, sander dust, and panel trim.” However, these commenters request the EPA to revise this definition in order to clarify that the “spectrum of resinated materials currently used as fuels throughout the wood product manufacturing process are included in the definition.” Thus, commenters urge the EPA to revise the definition of resinated wood as follows: “Resinated wood means wood products (containing binders and adhesives) produced by primary and secondary wood products manufacturing. Resinated wood includes residues from the manufacture and use of resinated wood, including materials such as board trim, sander dust, panel trim, and off-specification resinated wood products.” The suggested revised definition proposes two changes. First, the suggested definition replaces the phrase “containing resin adhesives” with the phrase, “containing binders and*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 209 of 526 adhesives.” The second suggested revision to the definition is the specific inclusion of “off-specification resinated wood products.” Commenters have indicated that these materials include materials that do not meet manufacturing specifications or are otherwise physically marred or damaged and thus, are not sold in the marketplace. This class of materials would not be expected to be chemically different than the resinated wood products that meet the manufacturing “on-spec” requirements. For example, off-specification resinated wood products would not be expected to have higher amount of resins (and therefore contaminants) than their on-specification counterparts. Commenters have indicated that off-specification resinated wood products are identical to their on-specification counterparts chemically and only differ in that they are do not meet a manufacturing quality or standard. Response: The Agency recognizes that in order for a categorical non-waste determination to be meaningful and effective, it must be clear about the universe of materials that such a categorical non-waste determination encompasses. Thus, we agree with commenters who suggested specific revisions to the definition of “resinated wood” contained in part 241.2. Specifically, the EPA agrees that these revisions create a definition that more accurately captures the scope of resinated wood and is more*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 210 of 526 representative of the resinated materials currently used as fuels throughout the wood product manufacturing process. First, by including the terms “binders” and “adhesives,” the universe

of materials that we consider to be within this definition should be more clear, as these terms are widely used and accepted within the wood products manufacturing industry. With respect to the inclusion of off-specification resinated wood products, the EPA finds it appropriate to include this class within the definition of resinated wood. We note, however, that to the extent that a facility has reason to expect that the off-specification wood products are off-spec for chemical reasons, such that the levels of contaminants are expected to be greater than their on-spec counterparts, the EPA would not consider such materials to be within the scope of this definition. The Agency will make this point more clear by specifying in the definition that the term “off-specification resinated wood products” are off-spec due to the fact that they do not meet a manufacturing quality or standard. Thus, in today’s final rule, we are codifying the definition of resinated wood as follows: “Resinated wood means wood products (containing binders and adhesives) produced by primary and secondary wood products manufacturing. Resinated wood includes residues from the manufacture and use of resinated wood, including materials*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 211 of 526such as board trim, sander dust, panel trim, and offspecification resinated wood products that do not meet a manufacturing quality or standard ” ( emphasis added). Comment: One commenter noted that there are additional secondary materials produced by the wood manufacturing industry that are similar to resinated wood and, thus, should also be considered a non-waste fuel. The production of flooring and furniture creates final finishing trim, sander dust, and process breakage that are both solid and resinated wood materials. In some cases, these

materials are coated with finish materials used to color and protect the finished product. The commenter (a utility)

indicated that their facilities receive these materials from furniture and flooring manufacturers and utilize them to offset the fuel load from fossil fuels due to their high heat capacity. Thus, the commenter requests that the EPA expand its definition

of resinated wood materials to include these additional wood manufacturing secondary materials as non-waste fuels or

otherwise describe the circumstances under which these

additional materials would be considered a non-waste fuel. Response: It is possible that these materials (or some of these materials) could be within the definition of “resinated wood,” as codified in 40 CFR part 241.2; however, commenters have not provided the Agency with information regarding the factors*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 212 of 526 involved in determining whether these additional types of coated materials are legitimately used as product fuels. That is, commenters have not provided information regarding whether these “finishing materials” could have contaminant concerns, and whether they are routinely used as fuels. Subsequent to this rulemaking, the Agency would welcome information regarding these materials in order to make an informed decision regarding

whether these materials fit within the definition of “resinated wood.” Alternatively, the commenter may petition the Agency to receive a non-waste determination per the petition process established in 40 CFR 241.3(c) if the commenter believes that this material may not be within the definition of “resinated

wood.” 4. Rulemaking Petition Process for Other Categorical Non-Waste Determinations (40 CFR 241.4(b)) The EPA recognizes that there may be other NHSMs that can

also be considered non-wastes when used as fuels in combustion units when balancing the legitimacy criteria and other relevant factors. Thus, under today’s rule, we are finalizing the process outlined in the proposed rule whereby persons can submit a rulemaking petition to the Administrator where they can identify and request that additional NHSMs be listed in section 241.4. The petition process is similar to 40 CFR 260.20, where any*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 213 of 526 person may petition the Administrator to modify or revoke any provisions of the hazardous waste rules, and where procedures governing the EPA’s action on those petitions are established. The 40 CFR 260.20 standards reflect normal, informal rulemaking procedures under the APA and thus, serve as an appropriate model for the NHSM rulemaking petitions under this section. In the context of a rulemaking petition under section 241.4(b), any person can petition the Administrator for a regulatory amendment to identify and request that additional NHSMs be included on the list of materials in section 241.4(a)

that are not solid wastes when used as a fuel in a combustion unit. To be successful, the petitioner needs to demonstrate to the satisfaction of the Administrator that the proposed regulatory amendment involves a NHSM that has not been previously discarded (i.e., was not initially abandoned or thrown away), or if discarded, has been sufficiently processed into a legitimate fuel. The petitioner must also demonstrate

that the material is used as a non-waste fuel in a combustion unit because it either meets the legitimacy criteria, or, after balancing the legitimacy criteria with other relevant factors, such NHSM(s) is not a solid waste when used as a fuel in a

combustion unit.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 214 of 526 If the applicant believes that the NHSM is a legitimate product and not discarded despite not meeting the legitimacy criteria, additional information must be submitted to explain or describe why such NHSM should be considered a non-waste fuel. Possible factors to address include, but are not limited to:

• The extent that use of the NHSM has been integrally tied to the industrial production process. Information can include combustor design specifications, the extent that use of the material is integrated across the industry, and the extent that use of the NHSM is essential to the industrial process,

• The extent that the NHSM is functionally the same as the comparable traditional fuel, and

• Other relevant factors. The application is required to include (1) the petitioner’s name and address; (2) a statement of the petitioner’s interest in the proposed action; (3) a description of the proposed action, including the specific NHSM, the industry (i.e., NAICS code) and functional use (i.e., industrial functional code listed in 40 CFR 710.52(c)(4)(i)(C)); and (4) a statement of the need and justification for the proposed action, including any supporting tests, studies, or other information. Where such NHSM(s) do not meet the legitimacy criteria, the applicant must explain why such NHSM(s) should be considered a non-waste fuel, balancing the legitimacy criteria with other relevant factors.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 215 of 526 Under this petition process, the Administrator makes a tentative decision to grant or deny a petition and then publish notice of such tentative decision, either in the form of an ANPRM, a proposed rule, or a tentative determination to deny the petition, in the Federal Register for written public comment. The Administrator could, at its discretion, hold an informal public hearing to consider oral comments on the tentative decision. After evaluating all public comments, the Administrator makes a final decision by publishing in the Federal Register a regulatory amendment or a denial of the petition. Comment: One commenter does not support use of the legitimacy criteria, as provided in the proposed section 241.4(b)(3) to

make a determination. A material which has not been discarded is, by definition, not a solid waste. However, if the EPA believes that other factors still should be considered, then the only other factor which should be considered is whether the material is being used legitimately as a fuel. The remaining legitimacy criteria are (and should be) irrelevant.

EPA’s Response : As discussed in the 2011 NHSM final rule, “legitimacy” is shorthand for referring to non-hazardous secondary materials that are not abandoned or thrown away, are*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 216 of 526 saved and are reused by being burned for their value as a fuel. 75 The legitimacy criteria are the factors needed to be examined to make this determination. For example, it is relevant how the NHSM is managed and its heating value since burning materials that have minimal or limited heating value shows the material is being burned for discard and not energy recovery. In addition, the extent to which contaminants are present in NHSMs may also indicate that the real reason for burning the secondary material is simply to destroy or discard them—referred to as ‘‘sham’’ recycling. Thus, the Agency is not simply ‘‘punting’’ to its legitimacy criteria, but believes they provide a valid basis for showing that a NHSM is more commodity -- like than waste-like.

Comment : The current petition process is limited to NHSMs when used as fuels. Absent from this petition process are NHSMs used as ingredients and previously discarded materials that meet the fuel legitimacy criteria. We do not understand this distinction and urge the EPA to expand both the current and proposed petition processes to allow for non-waste determinations for a wider range of NHSMs.

EPA’s Response : In general, the 40 CFR part 241 regulations establishes a self-implementing approach for non-hazardous secondary materials that can consider site-specific information,

75 See 76 FR 15471.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 217 of 526 if necessary (i.e., facilities will make a self-determination of whether the non-hazardous secondary fuel or ingredient in question meets the regulatory criteria). We note it is the EPA’s intention to indicate in the these rules, as clearly as possible, which non-hazardous materials used as fuels or ingredients in combustion units are or are not considered solid waste based on the criteria laid out in regulatory text. The Agency expects this self-implementing approach will govern the majority of situations, including NHSMs used as ingredients and NHSMs processed from previously discarded materials. We would also note that the regulated community prior to proposing the December 2011 proposed rule and commenters to that proposed rule did not provide any instances where ingredients are combusted or are processed from previously discarded material that would be a candidate for listing categorically. Therefore, we do not believe it necessary to modify the proposed rule to address this situation. However, to the extent that there are instances where such materials do exist, persons can always petition the EPA to modify the rules, including allowing ingredients that are combusted to be categorically listed to

account for such materials.

Comment : One commenter requested that the EPA should specifically recognize in the categorical petition that the*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 218 of 526 existence of a supply contract between a generator of NSHMs and a combustor, with specifications that the NHSM must meet, should be considered dispositive evidence that the NHSM is not a waste and is combusted for energy recovery, not disposal. Response: We disagree with the commenter that the mere existence of a contract between the generator and combustor is dispositive evidence of the material being a non-waste. However, existenceof a contract is a factor to be considered in a categorical nonwaste determination. For example, under 40 CFR 241.4(a)(1), scrap tires managed under established tire collection programs are a categorical non-waste and the definition of “established tire collection program” (40 CFR 241.2) explicitly recognizes

contracts as evidence that the material has not been discarded. Specifically, “Established tire collection program” means “a comprehensive collection system or contractual arrangement [emphasis added] that ensures scrap tires are not discarded and are handled as a valuable commodity through arrival at the combustion facility...” Comment: The timeframe for which the EPA must grant or deny the request should be included, as well as defining the length of time of 30 days that these notices will be open to public comment. What is the legal implication of an “informal public hearing?” How does this differ from a public information*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 219 of 526 meeting? If it is “informal,” what is the purpose? What administrative procedures apply to comments made during the “informal public hearing?” Response: The Agency is not imposing a deadline on its decision to grant or deny a petition, or a specific time period for public comment, due to the potentially wide range of issues involved in considering a categorical non-waste petition and because of the many factors beyond its control. Informal public hearings, similar to formal public hearings, provide an opportunity for the public to provide comments and oral testimony on proposed Agency actions . All testimony received becomes part of the public record. Public meetings, on the other hand, are less formal; anyone can attend, there are no formal time limits on statements, and the Agency and/or the facility usually answer questions. The purpose of the meeting is to share information and discuss issues, not to make decisions.

Comment : The final rule should make clear that the denial of a petition would not bar the filer of the denied petition from filing a subsequent petition for the same location and same

materials. Response : Where the information submitted to make a categorical non-waste determination has fundamentally changed, the EPA*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 220 of 526 agrees that a petition to categorically list a NHSM can be

resubmitted for review. 5. Materials for Which Additional Information was Requested a. Pulp and Paper Sludge In the March 2011 NHSM final rule, the EPA concluded that pulp and paper sludges meet the legitimacy criteria and, thus, can be burned as a non-waste fuel provided such combustion units are within the control of the generator in accordance with section 241.3(b)(1). 76 The December 2011 proposed rule discussed the information we currently have on pulp and paper sludges, and the additional information that the Agency would need in order to categorically list these materials in 40 CFR 241.4(a) as a

non-waste fuel. 77 If such information were provided to the EPA, the Agency would then consider the legitimacy criteria and other factors relevant to a determination that these sludges are not

solid wastes when combusted. This categorical listing would put pulp and paper sludges in the same general grouping as resinated wood residuals. For

76 Pulp and paper sludges almost entirely remain on-site and within the control of the generator when burned as fuels. To the extent that pulp and paper sludges do not remain within the control of the generator and are used as fuels, the petition process established in 40 CFR 241.3(c) could apply to these materials, as appropriate. 77 Additional information needed to categorically list pulp and paper sludges is discussed at 76 FR 80485.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 221 of 526 resinated wood residuals, the EPA considered that use of that material as a fuel has been integrally tied to the industrial production process and is consistent with that of a fuel product. The proposal discussed similar information that was needed by the Agency to support adding pulp and paper sludges to 40 CFR 241.4(a) as a categorical non-waste.

Based on the comments received and information submitted, the EPA is listing as a categorical non-waste fuel under section 241.4 those dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of those residuals. Such residual must be dewatered, and managed in a manner to preserve the meaningful heating value of those materials. This determination for pulp and paper sludge as a categorical non-waste represents the Agency’s finding that, after balancing the regulatory 78 legitimacy criteria with other relevant factors, the burning of this material as described in

78 As the EPA has previously stated (76 FR 15460), the Agency has established regulatory legitimacy criteria which may be used by companies on a case-by-case basis to show that they are not discarding material when used in a combustor. However, for the categorical determination, the Agency has determined that it is appropriate for the Agency, itself, to make the discard determination for material that does not meet the more strict regulatory criteria. Thus, the EPA has developed the categorical determination.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 222 of 526 the categorical listing is a commodity fuel for legitimate energy recovery and not discard. That is, the Agency has concluded that pulp and paper mills that burn a significant portion are not burning these dewatered pulp and paper sludges to discard them, but are burning them as a legitimate commodity fuel. The Agency finds that these facilities take the steps necessary to dewater the pulp and paper sludges and to manage such dewatered sludge to maintain its meaningful heating value and not to dispose of the sludge. In addition, the Agency finds for facilities burning a significant portion of the dewatered sludge that: (1)The sludges are managed in a manner that preserves meaningful heating value and, therefore, meets the managed as a valuable commodity (241.3(d)(1)(i)). (2)Dewatered sludge (i.e., dewatered through appropriate water removal practices, including dewatering presses, rotary driers, etc.) meets the meaningful heating value and used in combustion units that recovery energy criterion (241.3(d)(1)(ii)). (3)The sludge meets the comparable contaminant criterion (241.3(d)(1)(iii)). As discussed in the response to comments below, the Agency finds that, for those pulp and paper mills that burn a*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 223 of 526 significant portion of dewatered pulp and paper sludge, their use as a fuel is integral to the operation of the pulp and paper mill. The fact that these sludges meet the contaminant legitimacy criterion also, in EPA’s view, show that these sludges when burned on-site are not being discarded. While the Agency is not defining a specific percentage of dewatered pulp and paper sludges that would need to be burned to qualify for the categorical listing in section 241.4, the Agency would consider that the 42 mills that responded to an American Forest & Paper Association survey 79 and that use dewatered pulp and paper sludge as fuels at a significant rate (between 70-100 percent of these materials that are generated and burned) meet the listing description. We also find that other mills that burn a significant portion of their dewatered pulp and paper sludges on-site as fuel would qualify for the listing description. 80 For the pulp and paper mills that burn a relatively small percentage of their dewatered pulp and paper sludges on-site as a fuel

79 See April 2, 2012 letter from Timothy G. Hunt to James Berlow. A copy of this letter has been placed in the docket for today’s rulemaking. 80 While the Agency is not including a specific requirement for pulp and paper mills to document the amount of dewatered wastewater treatment residuals they burn on-site as a fuel, we would recommend that such pulp and paper mills include such documentation in case there are any questions as to whether the pulp and paper mills dewatered wastewater treatment residuals qualifies for the categorical listing in 241.4.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 224 of 526 (e.g., the five mills that responded to the American Forest & Paper Association survey that burn less than 20 percent), the Agency has determined that those sludges are not viewed the same by the mill operator in that they do not need to rely on them for their energy value and are not included in the non-waste categorical listing in section 241.4. However, there is likely little difference as to how pulp and paper sludge may be defined under NHSM rules, whether a categorical or a facility-specific non-waste determination. That is, such dewatered pulp and paper sludges may still be considered non-waste fuels when burned as a fuel for energy recovery at mills that burn a relatively small percentage of these materials, although the rules require those facilities to document on a facility-specific basis, that such sludges are non-waste fuels. As discussed in the final NHSM rule (76 FR 15488), dewatered pulp and paper sludges that are burned within the control of the generator and meet the legitimacy criteria, likely are non-waste fuels, and thus can be burned in units subject to CAA section 112 requirements. The Agency has restricted the categorical listing to those dewatered pulp and paper sludges that are burned on-site because*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 225 of 526 the Agency has minimal information on how these NHSMs are managed when shipped off-site. 81 Outlined below are commenters’ responses to the Agency information requests regarding pulp and paper sludges and a categorical non-waste determination.

Comment : The EPA requested information on how pulp and paper mill sludge is used as a legitimate fuel and not discarded at pulp and paper mills, and how the material is integrated into the industrial production process. In responding to the Agency’s request, commenters first provided a summary of energy needs by the pulp and paper industry. The commenters indicated that the industry is somewhat unique in its energy profile and in how individual mills select appropriate fuels to support their energy needs. Most pulp and paper mill boilers are specifically designed to handle a variety of fuels; few boilers are designed to burn just traditional fuel. Even mills with boilers specifically permitted as pulp and paper sludge boilers also burn other fuels. Over the years, the industry has recognized the benefits of burning secondary materials, particularly those generated on-site. These

81 We note that in the situation where pulp and paper sludges are transferred beyond the control of the generator, a facility can petition the Agency to receive a non-waste determination, as appropriate.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 226 of 526 secondary materials are derived from and have characteristics similar to traditional fuel, particularly the biomass used to produce pulp and paper products. Mills do not usually burn just one type of fuel at any one time. Some mills rely heavily on coal, others on natural gas or biomass. According to the commenter, the choice of fuel depends on availability, cost, and need. Hogged fuel or coal may be the underlying fuel, but it is supplemented by other traditional and non-traditional fuels. This is done in order to meet the energy needs of the mill, but also to address best management practices for the boiler and meet air quality requirements. If the hogged fuel is wet, coal or resinated wood may be added to boost heat value. If the boiler is burning too hot, the addition of pulp and paper sludge enables the mill to regulate temperature. Pulp and paper sludge also may be burned because it has the best fuel value for the price. All of these decisions are based on the boiler conditions, fuel availability, energy needs, air quality requirements, as well as costs, and all are considered when the energy manager determines the right mix of fuel in any given day. As a result, the quantities of different types of fuels burned over the course of a year differ and the mill may not burn 100 percent of the available fuel generated during that*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 227 of 526 year. Not all pulp and paper sludges are burned at a given mill over the course of a year, nor are all recycled process residuals (old corrugated cardboard rejects) or all hogged fuel. The commenter emphasized that if only a percentage of a secondary material generated by the industry is used as a fuel, that it does not negate its value as a fuel. Rather, it reflects the realities of running a boiler for which the economic and operating conditions are interconnected and dynamic. For example in one mill, the commenter indicated that combination boilers are designed to burn a wide variety of fuelsefficiently and cleanly. Two mills’ boilers currently burn tirederived fuel, 82 while one burns waste paper generated at the mill. They all are capable of burning one or more fossil fuels: oil (including used oil), coal, and gas. The four combination boilers burn large amounts of biomass, either generated on-site or purchased commercially. A portion of three of the mills’ biomass consists of sludge generated on-site from their wastewater treatment processes. One state commenter also indicated that most mills operate boilers that are specifically designed to handle a variety of fuels - - few boilers are designed to burn just traditional fuel

82 Tire-derived fuel used in the paper industry must be de-wired since the wires often clog the feed system. Thus, the industry does not utilize whole tires.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 228 of 526 and mills do not usually burn just one type of fuel at any one time. Bark and biomass fuel may be the primary fuel, but it is supplemented by other traditional or alternative fuels. Secondary materials have been an important alternative fuel used safely by the mills in the commenter’s state for many years. Most of that state’s mills' have multi-fuel boilers. Their fuel handling equipment, mill wastewater treatment systems and other ancillary equipment were designed to combust alternative fuels, including pulp and paper sludge. Use of these fuels reduces reliance on purchased biomass and/or fossil fuels and provides a vehicle for beneficial reuse of the materials. In light of the greater stringency of the CISWI regulations, the state indicated that the mills are likely to landfill these materials instead of recovering their fuel value if these

materials are considered solid waste under the CISWI standards. Another industry commenter stated that four of their five U.S. pulp mills produce wastewater treatment residuals that are burned in biomass-fired combination fuel boilers. At one mill, the residual solids are harvested and sold under a purchase agreement to an Electric Utility Generating plant burning

various sources of biomass because that mill does not have a biomass boiler designed to burn the residuals. The residuals are primary clarifier solids (mostly wood fibers too short for*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 229 of 526 product use) which are harvested by dewatering through a screw press. The residuals are stockpiled in a specific managed area before being trucked to the power company. At that site, the materials are processed and conveyed with other forms of biomass

for fuel in their biomass boiler. Use of the wastewater treatment residuals from the mill as a fuel at the purchasing site is permitted in their air permit. One commenter indicates that the energy manager at a mill will determine the approximate amount of different types of fuels needed to obtain the most energy under the best operating conditions. As pulp and paper sludge is generated, it is directed toward the hogged fuel pile or towards other non-fuel

uses. This decision is based on whether the mill’s boiler is designed and permitted to burn pulp and paper sludge and the amount is determined by the energy demands on that particular day. Another commenter believes that the fact that not all pulp and paper sludge is combusted at pulp and paper mills is evidence that the wood products industry only combusts pulp and paper sludge for legitimate energy recovery, and not for disposal. According to the commenter, when the pulp and paper sludge is not needed as a fuel, it is used for non-fuel purposes*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 230 of 526 or is discarded. When it is combusted, it is combusted for its energy value, as a legitimate fuel. One mill described by a commenter has elected to divert its own-make bark to beneficial use as mulch, rather than burning it, because it is of poorer quality than commercially available biomass. That same mill has recently invested in a new belt press which provides high quality sludge as fuel for its combination boiler. Since the press was installed in 2011, the percentage of mill sludge burned has increased to 80 percent from under 50 percent. Currently, the mill is burning more of the sludge from its process than the bark it also generates. At another plant, the commenter indicates that sludge is a by-product of the activated sludge treatment (AST) process. Their mills employ primary clarifiers to separate out solids from wastewater, of which 50 percent is wood fiber, the primary component. 83 These solids are staged in holding or blend tanks prior to drying. In addition to primary clarifiers and aeration basins, AST systems employ secondary clarifiers (large, open, circular concrete tanks) in which biological solids exiting the aeration basin(s) are separated by gravity from wastewater. The process is carefully regulated to accomplish two objectives:

83 Washington State Department of Ecology Industrial Footprint Project Waste Stream Reduction and Re

‐ Use in the Pulp and Paper Sector, June 2008.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 231 of 526 making the water as clean and free of solids as possible, while retaining activated sludge (active microbes) to re-inject into the biological treatment stage of the process. As part of this continuous loop, some activated sludge must be removed from the system to maintain the optimal population of active microbes for

effective treatment. After excess secondary sludge is removed from the treatment loop at three of the mills, it is mixed with primary sludge in blend tanks prior to being dried on belt presses to a suitable moisture level for burning or other uses. Sludge is introduced into the mills’ solid fuel feed systems by means of conveyers, where it becomes thoroughly mixed with other fuels in the conveyer systems before being introduced into the mills’ combination boilers. At one mill, primary sludge is dried separately by means of screw presses, while secondary sludge is dried using a belt press. The two fuels are fed separately by conveyers onto the mill’s main solid fuel conveyer, which transports the bark/sludge mixture to a surge bin. The fuel is passed through a “waste heat dryer,” where it is briefly exposed to boiler flue gas before being fed into the combination boiler. The process at all four mills is continuous. Operators monitor and manage the sludge on a twenty-four hour basis. Sludge drying takes place entirely within buildings, where the tanks, pipes,*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 232 of 526 mixers, pumps, polymer feed systems, conveyers, presses, diversion gates and valves, monitoring devices, and other equipment necessary to produce suitable sludge are housed. Sludge burned in the boilers is transported to the boilers on feed systems designed to ensure sludge, biomass, and other solid fuels are homogeneous, thoroughly mixed, and not exposed to the elements while being conveyed to the boilers. After its removal from wastewater treatment, no sludge touches the ground until it is burned, beneficially used (e.g. recycled feedstock to make newsprint), or landfilled.

The commenters indicate that the moisture content of biomass is highly variable. Operators control fuel use based on the mill’s need for steam and electricity, fuel costs, fuel quality, and fuel availability. All factors can change at a moment’s notice, since the production process is constantly changing. Pulp and paper production swings or curtailments are common. Energy demand, fuel cost, or fuel quality may make it necessary or desirable to reduce biomass and sludge combustion, even to switch entirely to fossil fuels. Environmental emissions occasionally can be a factor in fuel use, particularly during boiler startup or shutdown, or when the mill is experiencing rapid fluctuations in steam demand.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 233 of 526 Response : Based on the information submitted, and as discussed further in our responses below, the EPA is listing as a categorical non-waste fuel under section 241.4 dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value

of the materials. This determination for pulp and paper sludge as a categorical non-waste fuel represents the Agency’s finding, after balancing the legitimacy criteria with other relevant factors, that those mills that burn a significant portion of these pulp and paper sludges are burning them as a commodity fuel for energy recovery and not discard. The discussion above indicates that these mills have been designed to utilize pulp and paper sludges, and use of that material as a fuel is an integral part of facility operations. Decisions regarding use and the right mix of fuel in any given day are based on the boiler conditions, fuel availability, energy needs, air quality requirements, and cost.

Comment : The EPA requested information on the amount of pulp and paper sludge burned as fuel.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 234 of 526 In 2010, members of AF&PA burned 772,034 dry tons of pulp and paper sludge, which represents approximately 25 percent of the pulp and paper sludge generated by members of AFPA during the year. 84 However, approximately 90 percent of the AF&PA member facilities that responded to their survey (42 out of 47) that use dewatered pulp and paper sludge as fuels do so at a significant rate (between 70-100 percent of these materials that are generated are burned). In fact, one third of the AF&PA facilities that responded to their survey (16) that burn pulp and paper sludges, burn 100 percent of the materials generated. 85 Response : As the commenter indicates, while 25 percent of pulp and paper sludges that are generated are used as fuels on an industry-wide basis, the vast majority of facilities that responded to the survey that use dewatered pulp and paper sludges as fuels do so at a significant rate. In light of the information on use of pulp and paper sludges, the Agency finds that for those pulp and paper mills that burn a significant portion , that their use as a legitimate fuel is integral to the operation of the pulp and paper mill. The fact that these sludges meet the contaminant legitimacy criterion also, in the

84 Docket EPA-HQ-OAR-2003-0119-2619 85 See April 4, 2012, letter from Timothy G. Hunt to James Berlow. A copy of this letter has been placed in the docket for today’s rulemaking.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 235 of 526 EPA’s view, shows that these sludges when burned on-site are not being discarded. As discussed above, while the Agency is not defining a specific percentage of dewatered pulp and paper sludges that would need to be burned to qualify for the categorical listing in section 241.4, the Agency would consider the 42 mills that responded to the AF&PA survey as meeting the listing description. Where a facility has burned or burns in the future a significant portion of the dewatered pulp and paper sludges that are generated, the facility is clearly dependent upon the use of these materials as fuels in much the same way that wood manufacturing facilities are dependent upon the stream of resinated wood residuals to meet their energy demands. Specifically, we note that the percentage of overall use of pulp and paper sludges as a fuel at facilities burning a significant portion of the material (70 percent in the AF&PA comment above) is similar to the use of resinated wood within the wood products industry - - approximately 73 percent of resinated wood generated is either used as a fuel or is recycled back into the wood manufacturing process. 86 As noted above, mills that burn a

86 See Materials Characterization Paper In Support of the Final Rulemaking: Identification of Nonhazardous Secondary MaterialsThat Are Solid Waste – Resinated Wood Products. Docket EPA-HQRCRA-2008-0329-1820.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 236 of 526 significant portion of their dewatered pulp and paper sludges on-site as fuel in the future would also qualify for the listing description. 87 On the other hand, when a pulp and paper mill burns a relatively small percentage of their dewatered pulp and paper sludges on-site as a fuel (e.g., the five mills that responded to the AF&PA survey that burn less than 20 percent), the Agency has determined that such sludges are not viewed the same by the mill operator in that they do not rely on the sludges for their energy value. As noted by one commenter, some mills may not produce pulp and paper sludge with sufficient fiber, such that the sludge is a viable fuel. Therefore, the Agency finds that such pulp and paper sludge should not be included in the categorical listing in section 241.4. 88 Those companies would need to make case-by-case determinations regarding legitimacy to support use as a fuel.

87 While the Agency is not including a specific requirement for pulp and paper mills to document the amount of dewatered wastewater treatment residuals they burn on-site as a fuel, we would recommend that such pulp and paper mills include such documentation in case there are any questions as to whether the pulp and paper mills’ dewatered wastewater treatment residuals qualifies for the categorical listing in 241.4. 88 The Agency acknowledges that some portion of these pulp and paper sludges are land applied. While the Agency considers such uses as beneficial, such recycling is not integral to pulp and paper operations, and therefore, the Agency would not consider this form of recycling in determining whether a facility is recycling a significant portion of their pulp and paper sludges.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 237 of 526

Comment : The EPA requested more data on contaminant levels – particularly chlorine and metals. The National Council on Air and Stream Improvement (NCASI) undertook a thorough evaluation of data related to contaminant levels in pulp and paper sludge. 89 NCASI looked at the most robust information about pulp and paper sludge, which is found in the EPA’s Boiler MACT database. That database has pulp and paper sludge data comprised of nearly 5,280 records of individual data points corresponding to 46 AF&PA member pulp

mills. Table 8 of this preamble includes data from the EPA traditional fuels table, as well as the EPA Boiler MACT database for pulp and paper sludge.

89 Docket EPA-HQ-OAR-2003-0119-2619*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 238 of 526 Table 8. Comparison of Traditional Fuel Contaminant Concentrations With Pulp Mill Sludge Data From the EPA’s Boiler MACT Database

Lit. Sour ce Rang e 1 Compou

nd Un it s Data from EPA OAQPS Databases Data from Boiler MACT Database, v. 7 2 Industrial Sludge NAICS 322 Coal Biomass Fuel Oils

Mi n Ma x Av g. Mi n Max A

v g

. Mi n Ma x Av g. N o

. N D s Mi n Ma x 90 % UP L 3 KM 4 Mea n

ND - 26 Antimo

ny (Sb) pp

m ND 6.

9 1. 7 ND 6 0

. 9 ND 3.

8 3. 5 1 1 6 3 7 ND 3.

14 2. 0 0.4 5

ND - 80 Arseni c (As) pp

m ND 17

4 8. 2 ND 298 6

. 3 ND 13 1.

3 3 7 6 9 4 ND 10

5. 0 70 .6 7.9 4

0.1 - 15 Beryll

ium (Be) pp

m ND 20

6 1. 9 ND 10 0

. 3 ND 19 2.

3 3 5 8 1 0 2 ND 2.

6 1. 97 0.3 5

ND - 3 Cadmiu m (Cd) pp

m ND 19 0.

6 ND 17 0

. 6 ND 1.

4 0. 4 3 8 5 5 3 ND 19

.0 8. 2 1.5 5

ND - 130 Chromi

um (Cr) pp

m ND 16

8 13 .4 ND 340 5

. 9 ND 37 3.

7 3 8 8 5 ND 17

0. 0 77 .3 17. 14

ND - 30 Cobalt (Co) pp

m ND 25

.2 6. 9 ND 213 6

. 5 ND 8.

5 1. 1 1 2 7 2 2 ND 14

.4 16 .7 3.7 8

ND - 340 Lead

(Pb) pp

m ND 14

8 8. 7 ND 229 4

. 5 ND 52 4.

3 3 4 7 1 9 ND 20

1. 0 64 .2 11. 53

5 - 840 Mangan

ese (Mn) pp

m ND 51

2 26 .2 ND 15,

800 3 0 2 ND 32

00 11 8 3 6 9 3 ND 3,

31 0 2, 65 0 559 .8

ND - 1 Mercur y (Hg) pp

m ND 3.

1 0. 09 ND 1.1 0

. 0 3 ND 0.

2 0. 02 3 9 7 4 0 ND 1.

40 0. 72 0.1 14

ND - 540 Nickel (Ni) pp

m ND 73

0 21 .5 ND 175 2

. 8 ND 27

0 24 .1 3 8 1 9 ND 18

0. 0 67 .7 14. 990 ND - Seleni pp ND 74 3. ND 9 1 ND 4 0. 3 1 ND 6. 4. 0.9*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 239 of 526

10 um (Se) m .3 4 . 1 8 1

6 9 7 0 5 0

TSM 2, 06 7 92 .6 17,

098 3 3 0

. 9 3,

60 9 15 9. 5 2, 96 4 618 .5

TSM w/o Mn 1, 55 5 66 .4 1,2

98 2 8

. 9 40

9 41 .5 31 4 58. 7

Chlorin e (Cl) pp

m ND 9,

08 0 99 2 ND 5,4

00 25 9 ND 1,

26 0 13 3 3 7 4 11 ND 48

00 2, 06 4 378

Total Halogen s pp m 9,

25 8 1, 05 6 5,5

28 29 1 1,

27 4 14 2 2, 39 4 445

1 Nitroge n (N) g/

kg 13 .6 54 .0 15 .1 2. 2 4.6 3.

46 2. 0 3. 0 2. 25 2 6 0 0.

8 17 .7 26 .4 7.7

2 Sulfur (S) g/

kg 0. 74 61 .3 13 .6 ND 6.1 0.

70 ND 57

.0 8. 28 1 1 8 0 ND 6.

3 8. 8 3.0 The grey shaded cells indicate an outlier test was performed and the outlier(s) identified was confirmed based on further graphical observation (see further explanation below).

1 Total range determined from literature sources - coal - Clarke and Sloss (1992); biomass - Energy Research Centre for the Netherlands, Phyllis Biomass database. http://www.ecn.nl/phyllis; oil - U.S. EPA (1999), Appendix B; 2 Boiler MACT Database sludge analysis data; 3 Chebyshev UPL for non-normal data sets; 4 Kaplan-Meier; Selenium (Se) - with the Rosner's test (n > 25), for 1% significance level, one potential outlier was 560 ppm, which was rejected after graphical observation of the data. The next highest detect was 6 ppm.

Footnotes on Other Literature Data 1 Literature contains a value of 39.5 g/kg for nitrogen in biomass and 8.95 g/kg for nitrogen in fuel oils; 2 Literature contains a value of 8.7 g/kg for sulfur in biomass.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 240 of 526

The commenter indicates, as shown in the Table, that contaminant levels in pulp and paper sludge are well within the ranges of metals found in traditional fuels. For all 11 HAP metals, except manganese (Mn), the 90 percent UPL value for sludges is less than the corresponding maximum for coal. For Mn, which is principally derived from biomass, the 90 percent UPL value for sludges is well below the maximum for biomass. This is also reflected in the total selected metal (TSM) comparisons with and without Mn between coal, biomass and pulp and paper mill sludges. Chlorine and total halogens (Cl + Fl) in sludge compare favorably with both biomass and coal. Nitrogen and sulfur in sludge also compare favorably with coal, although the commenter also points out that the nitrogen and sulfur contents are generally not indicative of HAP formation potential for any fuel, and in the case of pulp and paper mill sludges in particular, the sulfur content of these sludges is typically in the inorganic sulfate form that predominantly ends up in the

combustion ashes. NCASI found a paucity of data on organics in pulp and paper sludge. Except for dioxins/furans, which had been evaluated extensively in the 1990s, organics are not expected to be found in pulp and paper sludges. Due to the changes in bleaching*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 241 of 526 techniques which demonstrated significant reductions in the existence of dioxins/furans in sludge, testing for even dioxins has not been undertaken recently. NCASI notes that of the data that do exist, organics are rarely found and those that are identified are frequently below the detection limit. Overall, the commenter states that contaminant levels in pulp and paper wastewater treatment residuals compare well to

those found in traditional fuels. Response: Based on the information provided, the Agency finds that pulp and paper sludges, meet the comparable contaminant criterion (241.3(d)(1)(iii)). The data confirms the conclusions in the NHSM final rule regarding chlorine and metals are comparable to the levels found in coal, which is a traditional fuel that may be burned in these facilities.

Comment : The EPA requested information on what steps the industry has taken to ensure the quality of pulp and paper mill sludge when used as a fuel at pulp and paper mills is consistent with that of a fuel product. Commenters state that pulp and paper mills that generate pulp and paper sludge do so as part of their compliance with the Clean Water Act requirements, as well as part of an effort to return as much wood fiber to use as possible, either as an input to the manufacturing process or as a fuel. The strategies that*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 242 of 526 each mill uses to meet those requirements differ depending upon the type of product, the location of the mill, and the specific standards established by the EPA and the respective states. However, mills clean wastewaters prior to discharge, thus creating primary and a variety of secondary pulp and paper sludges, all of which capture wood fibers. Furthermore, the question of whether the quality of the pulp and paper sludge is appropriate for a particular mill is based on the boiler design. As such, there are some boilers well suited to burn it; others

cannot burn the material. At one commenter’s mill, for example, the company has invested over $7 million upgrading sludge drying and management equipment. The object of these large investments was not to remove all of the moisture in the sludge. Rather, it was to make sludge quality consistent with that of the wet biomass burned in

its combination boilers. Either too much or too little moisture

can have a deleterious effect on the boilers’ combustion. One mill recently installed a belt press to improve the reliability of its sludge management system and increase the average solids content of its sludge. Since then, the sludge has occasionally caused combustion problems in the boiler because it was too dry, necessitating additional quality control to optimize the sludge’s moisture content.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 243 of 526 Another commenter stated they invested over $3 million to prevent unwanted materials from reaching the treatment process and being discharged in mill effluent or being incorporated into the pulp and paper sludge. Their mills make coated paper products, the coatings consisting largely of clay and other minerals. Improved equipment and operating procedures have significantly lowered sewer losses of these materials, improving the quality of wastewater and reducing the ash content of these pulp and paper sludges. To further pollution prevention, their mills set stringent specifications for raw materials, such as sulfuric acid and caustic soda, which minimizes the introduction of trace amounts of heavy metals into the process. From the standpoint of process control, the commenter stated that sludge management processes are continuous, enclosed, and carefully controlled. In contrast, bark and wood chips may be exposed to the elements for extended periods before being burned. Depending on the season, hardwood bark can get “stringy” and become very difficult to process as fuel. Frozen bark or chips can jam or disable equipment. Purchased fuel can have excessive rocks or grit. It is difficult to control the quality of biomass burned in the commenter’s boilers. Sludge frequently exhibits less variability in quality than other types

of biomass.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 244 of 526 Response : Based on the information provided , the Agency finds that, for facilities burning a significant portion of the dewatered sludge, that sludge management processes are carefully controlled, and the industry has taken the necessary steps to ensure the quality of pulp and paper mill sludge when used as a fuel at pulp and paper mills. On the other hand, for those pulp and paper mills that do not burn a significant portion of their dewatered wastewater treatment sludges, the Agency does not believe that the same steps have been taken to ensure the quality of the pulp and paper mill sludge that is used as a fuel and thus, is not an integral part of the pulp and paper mill operations.

Comment : The EPA requested information on what are the standard practices used to ensure pulp and paper sludge has meaningful heating value. As noted in the October 2011 pulp and paper sludge paper the AF&PA submitted prior to the December 2011 proposal, the overwhelming majority of pulp and paper mills remove water from pulp and paper sludge prior to managing it in any way. Belt and screw presses are most commonly used in the industry. Some mills use steam heated filter presses. Some pulp and paper sludge is also further dried in steam heated rotary driers. As indicated previously, sludge drying takes place entirely within buildings*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 245 of 526 where equipment necessary to produce suitable sludge is housed. Sludge burned in the boilers is transported to the boilers on feed systems designed to ensure sludge, biomass, and other solid fuels are homogeneous, thoroughly mixed, and not exposed to the elements while being conveyed to the boilers. In all instances, the goal is to raise the solids content – and thus, Btu value. Response : Based on these comments and other information in the record, the Agency finds that facilities that burn a significant portion of these materials take the steps necessary to dewater the pulp and paper sludge and to manage such dewatered sludge to maintain its meaningful heating value and burn the sludge for

energy recovery.

Comment : The EPA requested information on how are pulp and paper mill pulp and paper sludge is managed when shipped off-site. There are several mills within the industry that have agreements with other facilities, primarily electric utilities that purchase pulp and paper sludges for use as biomass-based fuel. For the most part, these arrangements occur when there is a utility close to the pulp and paper mill because the cost of shipping such sludges long distances may be prohibitive. Pulp and paper sludges may be sent off-site when it is being used by other entities to produce another product, (including fuel*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 246 of 526 pellets 90 ), used for other purposes (land application, use as landfill cover), or for final disposal. Pulp and paper sludges are shipped by containers, truck, or rail. Response: The Agency recognizes that, as described above, some pulp and paper sludges are sent off-site for use as a fuel. However, the Agency has restricted the categorical listing to those pulp and paper sludges that are burned on-site because the Agency has minimal information on off-site use of these materials. In fact, the pulp and paper industry indicates that the great majority of these sludges, when burned as a fuel are burned on-site. Also, in the few instances that the pulp and paper industry discussed in their comments that these materials were shipped off-site, they seem to be sent to other industries. The fact that these sludges are sent to other industries would not necessarily disqualify those dewatered pulp and paper sludges from being considered for listing categorically. However, the Agency does not have sufficient information to make any determination. 91

90 When pulp and paper sludges are sufficiently processed, and such processed material meets the legitimacy criteria, the processed materials are non-waste fuels whether burned within or outside the control of the generator. 91 We note that in the situation where pulp and paper sludges are transferred beyond the control of the generator, a facility may also petition the Agency to receive a non-waste determination, as appropriate.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 247 of 526

Comment : For reasons stated previously in comments on the June 2010 proposed rule, one commenter argues that pulp and paper sludges are waste when burned regardless of whether it is burned by the company that generated it and regardless of whether it meets the EPA’s legitimacy criteria. Paper mill sludge is a waste because it is discarded within the meaning of RCRA. The EPA’s description of pulp and paper sludge shows that it remains a waste even under the Agency’s own definition of discard. First, the EPA acknowledges that pulp and paper mills have no use for pulp and paper sludge; the fibers it contains are “too short to be suitable for papermaking and it contains microorganisms that feed on organic material in the wastewater

stream.” 92 Second, the fact that paper mill sludge comes from “the wastewater stream,” 93 in itself confirms that it is a waste. Third, the EPA’s discussion of the contaminant levels in paper mill sludge shows substantial variation in chlorine levels. Where the EPA encounters such variability in the course of setting floors for CISWI units in the very same Federal Register notice, the Agency uses a 99th percent UPL to assure

92 See 76 FR 80485. 93 Id.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 248 of 526 that the level it chooses will not be exceeded. Yet, where the EPA encounters variability in the chlorine levels in pulp and paper sludge – variability that could lead to significantly higher emissions of chlorinated pollutants, such as HCl and dioxins – the Agency simply dismisses it without further ado. The EPA’s disparate treatment of the variability of emissions for floor setting and of the chlorine levels in pulp and paper sludge for the purposes of considering a categorical declaration that such sludge is not a waste is unexplained and arbitrary. If the Agency believes that such variability exists, it should be concerned about the possibility that some sludges may have far higher chlorine levels than it assumes – as, indeed, the record shows some sludge does – and should take steps to

ensure that this is not the case before it even considers an exemption. Indeed, the Agency’s failure to examine this possibility renders the existing rule, which allows generators to burn their own sludge, arbitrary and capricious. Fourth, the EPA admits that sludge contains extremely low heating values, so low in some instances as to flunk the Agency’s legitimacy criteria. That sources typically dewater their sludges does not make these sludges any less a waste, even under the Agency’s own definition of discard. The EPA does not say what the heating value of the sludges is after dewatering,*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 249 of 526 nor does it make any difference what the “dry weight” heating value of sludges might be, as they are not at “dry weight” when burned. The reality is that paper mills find it cheaper to burn their sludges than to dispose of them safely and that because these sludges are largely “wastewater” and contain high levels of chlorine and other contaminants burning them requires large quantities of other fuel and generates high levels of pollution. Response: The Agency disagrees with the commenter that all pulp and paper sludges are wastes fuels when combusted. To the extent comments were submitted in response to the March 2011 final rule, the Agency need not respond. Below, the EPA responds to the new points raised in the comments. With respect to the particular arguments on the categorical listing, the Agency disagrees that the sludge remains a waste even under the Agency’s own definition of discard. The comment is incorrect when it states that the EPA has acknowledged pulp and paper mills have no use for pulp and paper sludge because

the fibers it contains are “too short to be suitable for papermaking and it contains microorganisms that feed on organic

material in the wastewater stream.” 94 In the proposed rule, we stated that fibers that end up being too short can be detrimental to paper quality. Although this would not be

94 See 76 FR 80485.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 250 of 526 suitable for papermaking, these sludges are a valuable resource as energy-containing secondary materials as discussed in detail in the comments above. As much as 50 percent of the sludge is composed of wood fibers which are similar in content to other types of biomass fuel combusted. Further, the Agency disagrees that pulp and paper mill sludges are wastes because they are contained in a “wastewater” stream. The D.C. Circuit in, API v. EPA, 216 F.3d at 58, rejected the proposition that the mere presence in a wastewater stream makes a material a waste. In API, the D.C. Circuit criticized the EPA for not saying why it concluded that the disposal motivation, compliance with water quality standards, predominated over the recycling motivation, recovery of oil from primary wastewater treatment. Plainly, the mere presence of oily

material in wastewater did not make the oil a waste. In this case, the EPA has found in its categorical listing that the motivation for burning the pulp and paper sludge is to use its inherent value as a fuel and not for disposal. Comments have provided the Agency with information that facilities that burn a significant portion of these sludges consider them to be an integral part of their production process, particularly in the value these materials provide as a critical source of energy. We disagree that the disposal motivation predominates over the true*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 251 of 526 value of these sludges as an important fuel, integral to the production processes. The EPA also disagrees that the our treatment of the variability of emissions for floor setting and of the chlorine levels in pulp and paper sludge for the purposes of considering a categorical declaration that such sludge is not a waste is unexplained and arbitrary. The Agency notes that, rather than dismissing the variability of chlorine levels in pulp and paper sludges, it has considered all available data—including data on variability—and reached the conclusion that contaminant levels in pulp and paper sludges are comparable to or lower than those in the appropriate traditional fuel(s). The EPA acknowledges that, based on data submitted to the Agency since promulgation of the March 2011 final rule and presented in the December 2011 proposed rule, chlorine levels in paper mill sludge show substantial variation. This is an important factor to consider when making a categorical non-waste determination, and the Agency has considered mean concentrations, the range of concentrations, and variability when analyzing pulp and paper sludges. As stated in the proposed rule and information in the rulemaking record, data for pulp and paper sludges show mean chlorine concentrations of 361 ppm, well below the mean of 992*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 252 of 526 ppm observed in coal. Data for pulp and paper sludges also show maximum chlorine concentrations of 4,800 ppm, well below the maximum of 9,080 ppm observed in coal and below the maximum of 5,400 ppm observed in untreated wood and biomass materials. The variability of chlorine levels in pulp and paper sludge is demonstrated by a standard deviation of the mean of 661 ppm. 95 96 This variation in chlorine levels, although high, does not discount the fact that both average and maximum chlorine concentrations in pulp and paper sludge are lower than those in coal, which is defined as a traditional fuel. The comment also implied that the EPA should use the 99 percent UPL, as is used to set the CISWI floors, to ensure that these pulp and paper sludges do not contain excessive contaminant levels. The Agency disagrees that any one statistical tool or comparison methodology will fit every situation given the variety of NHSMs, traditional fuels, contaminants, and combustion units that exist. Nevertheless, the Agency has calculated the 99 percent UPL for chlorine levels in pulp and paper sludge in response to the comment and come to the same conclusion. The 99 percent UPL for the same dataset of 93

95 See 76 FR 80485. 96 Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, can be found at http://www.epa.gov/epawaste/nonhaz/define/index

.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 253 of 526 samples analyzed in the proposed rule would be 6,970 ppm, a

value below chlorine concentrations observed in coal. 97 Finally, we disagree that pulp and paper sludge contains extremely low heating values that would fail the Agency’s legitimacy criteria. In terms of meeting the legitimacy criteria for a meaningful heating value, the Agency indicated in the NHSM final rule that pulp and paper sludges have a heating value of between 3,300–9,500 Btu/lb, on a dry basis -- no specific information having been submitted on the ‘‘as fired’’ heating value of these materials. The final rule concluded that pulp and paper sludges meet the legitimacy criterion for being managed as a valuable commodity as they are dewatered to increase their energy value, collected on a continual or frequent basis (as produced), and further processed and consolidated, including the removal of biosolids. Further, as discussed in detail above, where a facility is burning a significant portion of the dewatered pulp and paper sludges that are generated as fuel rather than other purchased biomass or fossil fuels, the facility is clearly dependent upon the heating value of these

97 The 99 percent Chebyshev UPL for non-normal datasets was calculated using EPA’s ProUCL 4.0 Software available at http://www.epa.gov/nerlesd1/tsc/software.htm

.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 254 of 526

materials. 98 Thus, we find, as discussed in the final rule, that pulp and paper sludges are not discarded and generally meet the meaningful heating value legitimacy criterion (46 FR 15488).

b. Coal Refuse 99

In the 2011 NHSM final rule, the EPA included currently generated coal refuse within the definition of traditional fuel codified in 40 CFR 241.2. In discussing its determination that currently generated coal refuse is a traditional fuel, the Agency said, “the fact that coal refuse has been used and managed as a fuel for thirty years when coupled with the fact that coal refuse is unique from other non-hazardous secondary materials in that it is a byproduct of fuel production processes

and is itself a raw material that can be used as a fuel leads us to determine that coal refuse that is currently generated and

98 The final rule notes that meaningful heating value is derived from an NHSM with energy content lower than 5000Btu/lb if the energy recovery unit can cost-effectively recover meaningful energy from the NHSM used as fuel (76 FR 15541). 99 Coal refuse refers to any by-product of coal mining or coal cleaning operations, consisting primarily of non-combustible rock with attached coal. Due to advances in technology over the past century, the processing of coal has evolved, such that materials that are now generated in the coal mining process, which would have been considered coal mining rejects in the past and discarded in waste piles, are now handled and processed as coal.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 255 of 526

used as a fuel should be considered a traditional ‘alternative

fuel.’” 100

The 2011 NHSM final rule also determined that coal refuse that has been placed in legacy piles would not meet the definition of traditional fuels, as they clearly have been

discarded in the first instance. 101 Since coal refuse recovered from legacy piles is subjected to the same operations that are used to process virgin coal, which serve to both increase energy values, as well as reduce contaminants, the EPA determined that such processes were sufficient to meet the definition of “processing,” as codified in 40 CFR 241.2, and such recovered

coal refuse would not be considered a solid waste when used as a fuel in a combustion unit provided those materials satisfy the legitimacy criteria. 102

The 2011 NHSM final rule also stated our belief that coal refuse recovered from legacy piles contains contaminants at levels that are comparable to or lower than coal refuse that is currently generated, as the recovered coal refuse is subject to the same processes as currently-generated coal refuse in order to meet the same fuel specifications. Since promulgation of the 2011 NHSM final rule, the Agency has further clarified that it

100 See 76 FR 15507. 101 Id. 102 See 76 FR 15509.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 256 of 526 believes that coal refuse recovered from legacy piles that is processed and managed in the same manner as currently generated coal refuse satisfies the legitimacy criteria. 103 Having determined that coal refuse recovered from legacy piles that is processed and managed in the same manner as currently generated coal refuse satisfies the legitimacy criteria, the 2011 proposed rule solicited comment on whether to categorically list post-processed coal refuse from legacy piles as a non-waste fuel in 40 CFR 241.4(a). However, the EPA made it clear that it was not reopening any other issues regarding coal refuse. Other comments regarding coal refuse are responded to in the record for the final rule. In this part of the preamble, we are only responding to the issue of whether coal refuse processed from legacy piles should be considered a non-waste fuel on a categorical basis. Accordingly, the EPA is not responding in this preamble or the response to comment document on issues regarding whether coal in legacy piles are traditional

fuels. Comment: One commenter states that not every material that is discarded is treated as solid waste under the rule. For example,

the EPA includes numerous materials within its definition of

103 See August 15, 2011, letter to Jeff A. McNelly, ARIPPA (cited in the proposed rule: 76 FR 80486).*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 257 of 526

“traditional fuels” and “clean cellulosic biomass” that are commonly understood as used, discarded, and abandoned, listing, for example, corn stover, peanut shells, and certain types of demolition materials. The commenter argues that each of these materials is either discarded or has filled its original purpose and may be collected by a different party for a different purpose (i.e., use as a fuel). The commenter continues that although the Agency has ample authority to exempt certain articles from classification as solid wastes, it did not consistently apply the term “discarded” in the context of legacy coal refuse. For example, the EPA recognized that on-specification used oil and clean C&D

materials should be treated as traditional fuels when combusted for energy generation. Thus, the commenter urges the Agency to revisit its application of the “discard” principle and treat all coal refuse, regardless of when they were generated and regardless of processing to be fuels and not wastes. Response: The EPA disagrees with the comment, which seems to misunderstand the purpose of this rulemaking action. If the Agency determines in this rulemaking that a material is a solid waste when combusted, the unit combusting that material would be subject to emissions standards issued under CAA section 129 even if burned as a fuel. A material is not discarded simply because*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 258 of 526 it is no longer used for its original purpose. It may be used as a fuel product by another party, providing the conditions the EPA has explained in the rule apply. In such a case, the reused material is not a waste. Further, the Agency is not exempting any materials from the definition of solid waste. The EPA is only describing the kinds of materials that are wastes when burned in combustion units, even if they are burned for energy recovery. The EPA consistently applies the concept of “discard.” Materials listed as examples of clean cellulosic biomass cited by the commenter have not been discarded in the first instance, as is clearly the case for coal refuse abandoned in legacy piles. While some materials have filled their original purpose, that fact, in and of itself, does not equate to discard. Clean cellulosic biomass is considered to be a type of

“alternative fuel” within the definition of “traditional fuel.” Such alternative fuels are developed from virgin materials that can now be used as fuel products. 104 This applies to the examples mentioned by the commenter, including corn stover, peanut shells, and clean construction and demolition wood. Further, coal refuse mined today that would have previously been abandoned in piles are also alternative fuels that are now

104 See definition of traditional fuels, as codified in 40 CFR 241.2. We note that the December 2011 proposal did not solicit comment on the definition of traditional fuels.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 259 of 526 grouped in the traditional fuel category because of new technology. This is separate from coal in legacy piles that have been traditionally wastes. Further, there is a clear difference between the management of the listed examples of clean cellulosic biomass and coal refuse abandoned in legacy piles. For example, the commenter characterizes corn stover as “typically left in the field to decay” and thus discarded. The EPA assumes this statement is based on the historic use of leaving corn stover in the field as

a cover to reduce erosion and for nutrient content. 105 As noted by the Agency previously, over the course of this rulemaking, an emerging market for corn stover and other primary and secondary agricultural residues is for use as a heat and power source for the production of corn and cellulosic ethanol.” 106 When the determination is made to use corn stover for its fuel value, the materials are managed differently than merely “left in the field to decay.” If there were legacy piles of such materials, they too would have to be treated as wastes while in the legacy

105 See Petrolia, Dr. Daniel R., “Economics of Crop Residues: Corn Stover.” June 2009. A copy of this document has been placed in the docket to today’s rulemaking. 106 See Materials Characterization Paper in Support of the Final Rulemaking: Identification of Nonhazardous Secondary Materials That are Solid Waste, Biomass—Agricultural Residues and Food Scraps.” February 3, 2011. A copy of this document can be found in the docket for today’s rulemaking.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 260 of 526 piles. We would also note that it is not unreasonable to expect that agricultural materials, such as corn stover, may be left on

the field until there are sufficient amounts of those materials to be collected, baled, and transported. This is clearly a different scenario from coal refuse left in place in piles with no purpose other than abandonment and clearly managed as a waste

for decades. With respect to used oil, the Agency has already explained

in the final March 2011 rule the difference between onspecification and off-specification used oil as applied to the definition of solid waste. The on-specification used oil is considered an alternative fuel that has not been abandoned and, by regulation, may be burned with no more restrictions than refined product oil. Off-specification used oil is specifically described in the EPA’s regulations as a material that may only

be burned in certain combustors because it exceeds contaminantlevels established under part 279, rendering it offspecification and, accordingly, a waste. Comment: One commenter argues that off-specification tires are analogous to legacy coal refuse to the extent they are set aside and not used immediately by the factory. Since the Agency proposes to include off-specification tires within the definition of “established tire collection program” and not*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 261 of 526 consider these materials to be a solid waste when used a fuel, the Agency should treat legacy coal refuse similarly. Response: We disagree with the commenter that coal refuse abandoned in legacy piles is analogous to the handling and management of off-specification used tires. Coal refuse that has been placed in legacy piles decades ago has clearly been abandoned, thrown away and thus, discarded and historically managed as a waste. On the other hand, the Agency hasinformation that tire manufacturers that have produced offspecification tires (including factory scrap) have contractual agreements in place to ensure these materials are collected, managed, and transported to the combustor. In fact, it is the requirement that scrap tires (including off-specification tires) be managed pursuant to established tire collection programs that ensures these materials are managed as a valuable commodity in order to meet the categorical non-waste determination codified in 40 CFR part 241.4(a). Further, as we have noted elsewhere in today’s preamble, to the extent that these off-specification tires are discarded, such as in tire piles, they would be considered solid waste in that they have been discarded, and would not be included within the categorical listing of “scrap tires that are not discarded and are managed under the oversight of established tire*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 262 of 526 collection programs, including tires removed from vehicles and off-specification tires.” Comment: One commenter states that the EPA, consistent with the intent of RCRA, should be encouraging the use of legacy coal refuse, not hampering them. The commenter argues that characterizing coal refuse in legacy piles as a solid waste could subject legacy coal refuse piles to additional federal and state requirements and potentially result in the piles being classified as open dumps or solid waste management units. Further, combustors of legacy coal refuse and their supplies would also be more likely to be subject to citizen suits under RCRA 40 CFR 7002. This commenter argues that the determination that unprocessed legacy piles are different—and should be regulated differently—than coal refuse generated from current mining operations is illogical because the characteristics of the materials are the same. Thus, although the EPA takes the position that subjecting legacy coal to the types of operations that are used to process virgin coal is sufficient to convert the legacy coal refuse from solid waste into a non-waste fuel, the initial designation as solid waste risks regulatory confusion regarding the status of the numerous piles of legacy

coal refuse.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 263 of 526 Response: This comment is clearly beyond the scope of this rulemaking proceeding. In the first place, legacy coal piles are, indeed, wastes. How they may be treated when they are in the piles is clearly beyond the scope of this rule. This rule deals with how the legacy coal is to be treated when it is taken from the piles and burned for fuel. Comment: While supporting the concept of a categorical listing for legacy coal refuse, a few commenters argued that the Agency should not require that legacy coal refuse be “processed” in

order to be considered a non-waste fuel. One commenter noted that the EPA does not require traditional fuels or resinated wood to undergo processing to be treated as a fuel, even though many of those materials would be understood to be discarded. Another commenter noted that the term “post-processing,” which was used in the proposal as a shorthand description of legacy coal refuse that has undergone processing, is too vague

and should be eliminated so the use of extracted coal refuse undergoing further processing at the generating facility is not discouraged. If applied too literally, the commenter continued, any “post-processing” provision being imposed on treating legacy coal piles as fuel would not benefit the circulating fluidized bed (CFB) community and could hinder the usage of these piles as fuels. The commenter argues that the term “post-processing”*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 264 of 526 could be interpreted as requiring processing at the coal refuse excavation site, which would not be determinative of any

relevant characterization of the coal refuse or its intended use

as fuel. Response: In the 2011 NHSM final rule, the EPA discussed how a NHSM, once discarded, can be processed into a non-waste fuel. 107 The proposed rule did not solicit comment on either the concept of processing a discarded NHSM into a non-waste fuel or the definition of “processing” itself, as codified in section 241.2. Therefore, the Agency does not address the concept or definition of processing in this final rulemaking. Again, however, the comment suggests a need to clarify the nature of the rulemaking exercise that the EPA is currently engaged in. First, we disagree with the commenter’s characterization that many of the traditional fuels and

resinated wood should be understood to be discarded. Traditional fuels, by definition, are not discarded. 108 If clearly discarded (e.g., a barrel of fuel oil dumped), even a traditional fuel would have to be processed per the part 241 regulations in order to be a non-waste fuel. However, it’s precisely because of their

107 See 76 FR 15474-15477. 108 See last sentence of “traditional fuels” definition, as codified in 241.2: “[Traditional] fuels are not secondary materials or solid wastes unless discarded ” (emphasis added).*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 265 of 526 fuel value that makes it unlikely that traditional fuels will be discarded. We also disagree that resinated wood is discarded prior to being or when used as a fuel in a combustion unit. For a discussion of why we believe resinated wood is a non-waste fuel, please see Section II.E.3.b of this preamble. 109 As noted above, coal refuse abandoned in legacy piles has clearly been discarded in the first instance because the coal preparation technology did not yet exist that could utilize these materials for their fuel value. Thus, legacy coal refuse would have to be processed into a non-waste fuel. However, the Agency has previously recognized the uniqueness of coal refuse in that it is a byproduct of fuel production processes and is

itself a raw material that can be used as a fuel. 110 In the 2011 NHSM final rule, the Agency determined that coal refuse that is recovered from legacy piles and used as fuel that is subjected to the types of operations that are used to process virgin coal

109 See also discussion included in the 2011 NHSM final rule (76 FR 15499-15502). 110 See 76 FR 15507, which states, “Coal refuse is uni que, however, from other non-hazardous secondary materials addressed in this rulemaking, as it is generated in the process of producing fuels (i.e., the mining of coal for use as fuel) and its subsequent use and value as a seco ndary material is also as a fuel. Since the primary product of a coal mining operation is itself a fuel, we consider coal refuse to be more akin to a raw material that is subsequently processed and utilized to produce a fu el. In other words, coal refuse is different from other non-hazardous second ary materials, such as used tires or resinated wood residuals, in that it is generated in the production of fuel and can be used itself as a fuel (and in fact has never been used for anything else).”*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 266 of 526 or currently generated coal refuse would meet our definition of processing as codified in 40 CFR part 241.2. 111 As the processing that is required is no different than what currently-generated coal refuse is subject to, we do not believe the processing requirement would hinder the usage of coal refuse piles. The Agency believes the only additional “processing” step is the actual extraction or recovery of the coal refuse from the legacy piles. To the extent that the term “post-processing” could be misconstrued as requiring an additional processing step at the extraction site or otherwise as compared to currently generated coal refuse, this was not the Agency’s intent. Rather, we have included the concept of “processing” in the categorical non-waste determination for legacy coal refuse, as legacy coal refuse was clearly discarded and, prior to processing, is a solid waste. That said, we clarify again today that coal refuse recovered/removed from legacy piles that is processed in the same manner as currently generated coal refuse would meet the definition of processing as codified in section 241.2. No additional processing is required given the uniqueness of coal refuse. For commenters suggestions

111 See 76 FR 15509. In addition, subsequent to the 2011 NHSM final rule, EPA has reiterated this determination. See August 15, 2011, letter to Jeff A. McNelly, ARIPPA (cited in the proposed rule: 76 FR 80486).*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 267 of 526 regarding the explicit wording of the categorical listing for legacy coal refuse, see additional response to comments below. Comment: In support of the Agency’s soliciting comment on whether to add legacy coal refuse to the list of categorical non-waste fuels proposed in 40 CFR part 241.4, one commenter states that once removed from the physical mining location, legacy coal refuse and currently-generated coal refuse are indistinguishable. Thus, coal refuse from legacy piles will be managed in the same manner as coal refuse, will have similar heating value as coal refuse and be used as a fuel in a combustion unit that recovers energy, and can be expected to

have similar contaminant levels as coal refuse because it is ostensibly the same material. Response: We agree that coal refuse recovered/removed from legacy piles and processed in the same manner as currently generated coal refuse would meet both the definition of processing and the legitimacy criteria. Thus, we have determined to list “coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse” to the list of categorical non-waste fuels codified in Part 241.4(a) of today’s rulemaking. The rationale for adding this NHSM to the list of non-waste fuels follows the reasoning finalized in Part 241.4(b) in today’s rulemaking. We agree with*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 268 of 526 the reasoning of the comment and have, in fact, arrived at the very same reasoning in support of the categorical listing. Comment: One commenter argued that the EPA should treat legacy coal refuse as fuels, since they are chemically identical, if not superior fuels, to currently generated coal refuse that the Agency considers to be a traditional fuel, per the definition

codified in 40 CFR 241.2. Response: Again, the EPA must explain a misunderstanding expressed by the commenter. The comment seems to consider that material is either a “fuel” or a “waste” and misses the point that the distinction in this rulemaking is between a “product” and a “waste” fuel. Fuels may be wastes. The point is that the coal that has been abandoned in piles is a waste. However, the EPA has determined that once processed that coal is either identical (or maybe even superior) to currently mined materials that would have become refuse in the past. The EPA agrees with, and has adopted, the same reasoning expressed by the commenter that the processed material is a product fuel. The disagreement between the EPA and the comment is the status of the legacy piles and the nomenclature of the coal finally burned. The coal is a processed fuel product, not a

traditional fuel.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 269 of 526

Comment: One commenter stated that there are “other relevant factors” that the EPA should consider when determining whether coal refuse from legacy piles should be categorically listed as a non-waste fuel. Specifically, the commenter believes that the EPA should consider the “overwhelming resultant environmental improvements” associated with the cleanup of abandoned coal refuse piles, including the reduction of fire hazards and contaminant, siltation, and solids releases into the environment, as an “other relevant factor” as it considers listing legacy coal refuse as a non-waste fuel in Part 241.4. Response: The EPA’s decision to include processed legacy coal refuse to the list of non-waste fuels in Part 241.4(a) was based

on the fact that such materials meet the definition of processing and the legitimacy criteria. We do not need to balance “other relevant factors” in making this determination, as would be appropriate under an analysis conducted under section 241.4(b)(5)(ii). Comment: The EPA received a few comments regarding the specific wording of how coal refuse recovered from legacy piles should be identified and described in part 241.4(a) should the Agency determine to categorically list this NHSM pursuant to part 241.4(a). One commenter suggested inserting the following text as a subsection within Part 241.4(a): “Coal refuse that does not*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 270 of 526 constitute currently-generated coal refuse, but that is processed in the same manner as currently-generated coal refuse.” As previously discussed, another commenter stated that the term “post-processed” was vague and could be interpreted to require additional processing that would hinder the usage of legacy coal refuse piles. Still another commenter suggested referencing the Surface Mining Control and Reclamation Act of 1977 (SMCRA) in a categorical non-waste determination for coal refuse, which would ensure that the coal refuse is a fuel and minimize overlapping regulatory jurisdiction that could evolve. Response: As discussed above, we have determined to list “coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse” to the list of categorical non-waste fuels, as codified in Part 241.4(a) of today’s rulemaking. We believe this language accurately captures the scope of materials at issue and what must occur for the material to be categorically characterized as a non-waste fuel. That is, this categorical listing only applies

to coal refuse that has been discarded in the first instance in legacy piles, subsequently recovered or removed from the discard environment, and subjected to the same processes and operations*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 271 of 526 as currently generated coal refuse. 112 Further, this language should alleviate any concerns that the term “post-processed” is vague, since that term is not being used within this provision as finalized today. We do not agree with the comments that a categorical listing for legacy refuse should specifically reference SMCRA. As we noted in the preamble to the 2011 NHSM final rule, while the EPA recognizes that SMCRA is concerned with the management and removal of coal refuse piles at mining sites, SMCRA does not address the issue of “discard,” which is critical to the

definition of solid waste under RCRA. 113 Thus, a specific reference to SMCRA would be inappropriate as well as confusing. Further, we believe that a specific reference to SMCRA would be in fact more burdensome than the language of the categorical listing being codified today, which simply states that legacycoal refuse must be processed in the same manner as currentlygenerated coal refuse, regardless of whether such processing is done pursuant to SMCRA.

c. Manure

112 We note that it would not be appropriate to include currently generated coal refuse within this categorical non-waste determination, as we have previously determined and continue to believe that currently generated coal refuse is a traditional fuel. 113 See 76 FR 15510*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 272 of 526 In the 2011 NHSM final rule, the EPA stated that based on the information provided, we could not make a blanket

determination that all manure is a traditional fuel or that it is a solid waste. However, upon reviewing the few comments and data received, we concluded that animal manure that is used as a fuel “as generated” does not satisfy the legitimacy criteria, and thus, if combusted “as generated,” would be a solid waste. 114 However, the Agency also noted that there were circumstances

where manure would not be considered a solid waste when burned as a fuel for energy recovery, specifically: (1) when the manure remained within the control of the generator and met the legitimacy criteria; (2) when the manure was sufficiently processed (e.g., via anaerobic digestion or gasification processes) and the resulting material met the legitimacy criteria; and (3) when a facility received a determination from the Agency pursuant to 241.3(c) stating that its manure was a non-waste when used as a fuel. For further discussion regarding our characterization of manure, see the preamble to the 2011 NHSM final rule (76 FR 15479-15482). In the December 2011 proposed rule, the Agency noted that some parties have identified the potential of manure to not be considered a solid waste. We, therefore, invited parties to

114 See 76 FR 15480.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 273 of 526 present information, including data demonstrating that manure is not discarded either through the existing non-waste petition process or the proposed categorical determination process. 115 The Agency received no information or data that would allow it to consider proposing to list manure categorically as a non-waste

fuel. 116 Therefore, we are not taking any action in the rulemaking with respect to manure. However, the Agency did receive several comments from one commenter, which we will respond to below.

Comment: The commenter states that dried animal manure should be included as a non-waste with the other fuels in 40 CFR 241.4(a). The commenter contends that there is no evidence that any animal manure is discarded, let alone sent to landfills. Manure is generally used as fertilizer on fields, although an important secondary purpose is for energy recovery/generation. In addition, the commenter states there are several known instances of additional plans for animal manure energy projects that are

115 See 76 FR 80472. 116 In the preamble to the proposed rule, the Agency indicated the type of information and data that should be submitted to categorically list manure as a non-waste fuel. Specifically: : (1) the extent that use of the NHSM has been integrally tied to the industrial production process—information can include combustor design specifications, the extent that the use of the material is integrated across the industry, and the extent that use of the NHSM is essential to the industrial process and/or (2) the extent that the NHSM is functionally the same as the comparable traditional fuel and (3) other relevant factors.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 274 of 526 designed specifically to recover energy, including government funded projects. The commenter notes that after drying, animal manure has a meaningful Btu value equal to or above that of other biomass that the EPA has determined to be a non-waste fuel (e.g., bagasse). The commenter also notes that there are contracts in place for livestock and poultry producers to supply manure to the combustor

. Regarding contaminants in manure, the commenter states that the amount of contaminants is limited because the vast majority of applicable contaminants are directly related to the contaminants contained in the biomass consumed by the animals. The EPA has not presented any evidence that facilities are combusting manure in order to discard chlorine or nitrogen, the two contaminants identified by the EPA. These concentrated contaminants are no different than what occurs in the production of “byproducts of ethanol natural fermentation processes,” which the EPA is now proposing to include in the definition of “clean cellulosic biomass.” Based on a “balancing of the legitimacy criteria and other such relevant factors,” the EPA‘s new standard, animal manure should be included in the 40 CFR 241.4(a) fuels list, along with resinated woods and scrap tires. Response: We disagree with the commenter on several points and

do not believe that the case has been made to include animal*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 275 of 526 manure as a categorical non-waste fuel in 40 CFR 241.4(a). First, in the 2011 NHSM final rule, we previously determined that animal manure that is used as fuel, “as generated,” would not satisfy the legitimacy criteria. This conclusion was based on the fact that such material likely would not satisfy the meaningful heating value and contaminant legitimacy criterion. 117 Thus, we believe that the burning of such materials (as generated) would not be legitimate and would be seen as burning for discard. Further, the Agency has never stated that a NHSM, including animal manure, has to be landfilled in order to be discarded, as the commenter implies. Regarding the use of manure as fertilizer, we have been clear that this rulemaking does not address that secondary use. The 2011 NHSM final rule states, “We recognize that manure may also be beneficially used in other end uses, such as a fertilizer... EPA is not making any determination whether non-hazardous secondary materials are or are not solid wastes for other possible beneficial end uses. Such beneficial use determinations are generally made by the states for these other beneficial uses, and EPA will continue to look to the

states to make such determinations.” 118 The commenter notes additional plans for animal manure

117 See 76 FR 15480-15481. 118 76 FR 15482.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 276 of 526 energy projects; however the fact that there are plans for future projects does not support a categorical non-waste determination today. As the EPA has acknowledged, facilities may be able to demonstrate that they satisfy the legitimacy criteria, either through a self-determination if the manure remains within the control of the generator or through the part 241.3(c) non-waste determination petition process. Thus, any future energy project using animal manure as fuel could utilize either of these options for determining that the manure is a non-waste fuel, as appropriate. Regarding the commenter’s points related to meaningful heating value of dried manure, the fact that dried manure may have a greater Btu value than bagasse is not directly on point. To demonstrate that a NHSM has meaningful heating value when used as a fuel, a facility does not compare relative Btu/lb of the NHSM against other traditional fuels, which themselves have a wide range of heating values. Rather, consistent with other EPA rulemakings, we have established 5,000 Btu/lb as a benchmark for demonstrating that a NHSM has meaningful heating value. Thus, to meet the meaningful heating value legitimacy criterion, the material would need to meet an “as fired” heating value of 5,000 Btu/lb, or if lower than 5,000 Btu/lb, as fired, a person would need to demonstrate that the energy recovery unit can*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 277 of 526cost effectively recover meaningful energy from the nonhazardous secondary material used as a fuel. 119 We also note that the EPA did not reopen the meaningful heating value for fuels, as codified in 40 CFR part 241.3(d)(1)(ii), in the December 23, 2011 proposed rule. Thus, in order to meet this criterion, the dried manure would need to meet an “as fired” heating value of 5,000 Btu/lb, or if lower than 5,000 Btu/lb, the facility would need to demonstrate that the energy recovery unit can cost effectively recover meaningful energy from use of manure as a

fuel. Regarding the commenter’s statement regarding contracts between livestock and poultry producers and combustors, first we would note that no information has been provided to indicate who has entered such contracts or how many such contracts there are to consider this factor. However, as we have stated elsewhere in this preamble, contractual arrangements can be used as evidence that the material is managed as a valuable commodity and that discard is not occurring when a material is transferred beyond the control of the generator. However, the fact that there is a contractual relationship by itself is not dispositive that a material is not a waste, as there are contracts between parties to remove and dispose of wastes.

119 See 76 FR 15541.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 278 of 526

We also believe that the commenter’s statements that the

concentrated levels of contaminants is no different than what occurs in the production of “byproducts of ethanol natural fermentation processes” is not supported by any information or data. That is, other than the general statement, the commenter has not provided contaminant data, for either animal manure or byproducts of ethanol natural fermentation processes, for the Agency to analyze and compare. Thus, we have determined based on the lack of any

information or data that animal manure should not be listed as a categorical non-waste fuel in part 241.4(a). Comment: In the event that the Agency does not list animal manure as a categorical non-waste fuel, the EPA could alternatively decide that processing of animal manure by drying, constitutes “sufficient processing,” such that previously discarded manure could be considered recovered for energy recovery, just like scrap tires could be processed and burned as

a non-waste. Response: In the December 23, 2011 proposal, the Agency did not solicit comment on the definition of “processing,” as codified in 40 CFR part 241.2. Thus, this comment is beyond the scope of the rulemaking and will not be addressed in today’s final

action.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 279 of 526 6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination

Petition Process In the proposed rule, the EPA asked for comments on streamlining or other improvements to the existing provision for non-waste determinations codified at 40 CFR 241.3(c). The Agency requested comment on whether the EPA’s grant of the petition should apply as of the date that the petition was submitted to the Agency. 120 The Agency also requested additionalcomment on whether any other changes could be made to the nonwaste determination petition in order to streamline the process, while at the same time provide the EPA with the opportunity to ensure that such NHSMs are not being discarded. For example, the EPA requested comment on whether public comment should be sought on each individual petition. 121 Comment: Concerning the request for comment regarding when a petition determination would apply, the Agency received several comments. Specifically, the Agency requested comment on whether the EPA’s grant of the petition should apply as of the date that the petition was submitted to the Agency. Commenters agreed that a non-waste determination under 40 CFR 241.3(c) should be retroactively applied to the date the petition was submitted.

120 See 76 FR 80473. 121 See 76 FR 80474.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 280 of 526

Commenters were concerned about the timeliness of the EPA’s decision on these determinations and on the uncertainty surrounding the usage of the NHSMs while a non-waste determination petition is pending. The commenters argue that if a NHSM is determined to be non-waste, the combusted NHSM in question was also non-waste prior to the determination. Response: The Agency understands the interests of petitioners awaiting an Agency decision on the status of materials, while a 40 CFR 241.3(c) petition is being considered. In order to lessen the uncertainty surrounding the regulatory status of a particular material, the Agency will utilize the date the petition was submitted as the date that the combusted materials will be considered a non-waste if the Agency grants the petition.

Comment : Many commenters indicated concern that the petition process could take excessive time for the Agency to reach a decision. They requested self-imposed timeframes for the EPA’s granting/denying requests and a shorter length of time for the notices to be open for public comment (or omit it altogether). The combustors stated they need quick decisions in order to comply with the CAA regulations and to make efficient business

decisions.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 281 of 526 Response : The Agency considered the commenters suggestion, but decided not to impose a deadline on its decision because there are many factors beyond its control. In regard to the comment on reducing the time the petition application is open for public comment, the Agency decided that the comment period shall remain at 30 days, but the regulatory text is changed from “at least 30 days" to “30 days” in order to promote clarity, while affording an opportunity for public

comment.

Comment : One commenter strongly encouraged the Agency to develop and deploy an on-line form to identify materials for non-waste

determinations. Commenters also noted that the EPA should provide more detailed information about how the determinations are made (particularly for the comparable contaminant determinations). Response : The Agency will consider the development of a form to identify the specific information needed to determine whether a NHSM meets the legitimacy criteria and other provisions. If the Agency develops such a form, it would be made available on the NHSM web site. Please note that traditional fuel data (including tables for traditional contaminants) are available to the public, which they may find useful in assessing the contaminant legitimacy criteria. Refer to those tables in “Contaminant*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 282 of 526 Concentrations in Traditional Fuels: Tables for Comparison” currently posted on the NHSM web site at http://www.epa.gov/osw/nonhaz/define/index.htm . That document will aid in comparing the concentration of contaminants in their

NHSMs to concentration of contaminants in traditional fuels. In addition, rule clarification letters and petition findings are also posted on the website when finalized. Comment: A commenter suggested that the non-waste petition process should allow for “balancing” of legitimacy criteria similar to that included for categorical determinations in 40 CFR part 241.4. Response: Under 40 CFR 241.4 of the proposed regulation, the EPA can balance the legitimacy criteria with other relevant factors in making categorical non-waste determinations. As the commenter points out, we have not discussed the applicability for similar balancing under 40 CFR 241.3 non-waste determination petitions. The EPA distinguished between 40 CFR 241.3 and 40 CFR 241.4 because in the latter, the EPA makes the determination based on its review and analysis of industry-wide data and other factors, as opposed to a specific site. However, the EPA recognizes the points the commenter raises and will consider whether such modifications may be appropriate.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 283 of 526

Comment: Several commenters were interested in features that streamline and add flexibility to the administrative petition process, particularly in the situation where a petition can apply to multiple combustors. One commenter noted that any interested person – including forest owners – should be able to initiate the petition process, not just combustors. The petitions should be allowed for entire classes of a NHSM rather than requiring a case-by-case analysis. These clarifications will encourage all members in the biomass supply chain to promote their products and co-products as clean, renewable fuels and promote the development of new markets for

biomass materials. Other commenters also stressed the need for the EPA to clarify that the petition can apply to more than one combustor so that redundant petitions do not need to be filed in every region. A commenter also stated that the benefits from petitions could be achieved more efficiently if the regulatory language was changed to allow for nation-wide petitions under 40 CFR 241.3(c) for classes of combustion units rather than requiring separate petitions for each EPA region. Response: The Agency agrees with the commenters that the process should accommodate for petition applications from third party producers of a NHSM that can be used as a non-waste NHSM fuel at*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 284 of 526 many combustion units instead of just accepting petitions from

individual combustors or combustors within the control of one EPA region. This can make for a more streamlined and efficient process. Therefore, the regulatory provision at 40 CFR 241.3(c) has been modified to allow for the petition to be sent to the

Assistant Administrator for the Office of Solid Waste and Emergency Response instead of each Regional Administrator if the petition covers more than one EPA Region. This is at the option of the petitioner. The Assistant Administrator for the Office of Solid Waste and Emergency Response would be responsible for the EPA’s administrative process in order to finalize the petition decision under 40 CFR 241.3(c) and the regulatory language has been modified accordingly. Finally, as noted in the 2011 NHSM final rulemaking, states, or private entities, can submit non-waste determination petitions to the EPA on behalf of petitioners. They can petition for a single combustor or a class of combustors (e.g., a specific usage of a nonhazardous secondary material in a particular state). Therefore, in regard to the comment on nationwide petitions for classes of combustion units, the petition process accommodates for these classes of combustion units. This assumes that the petition identifies all of the specific NHSMs that the classes of combustion units use as fuel*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 285 of 526 (that are applicable to a 40 CFR 241.3(c) petition) and gives the information necessary to meet the legitimacy criteria and other requirements. Note that if a petition covers multiple facilities in a single region, the petition should be sent to the Regional Administrator for that Region, not to the Assistant Administrator for the Office of Solid Waste and Emergency Response. Comment: Several commenters argued that the 40 CFR 241.3(c) petitions should not require public comment for each individual petition. One commenter stated that “the administrative petition process could be further streamlined by not seeking public comment on every individual petition. By filing an administrative petition, a petitioner is not seeking to change the EPA’s regulatory program or create new legal rights or obligations. Instead, the administrative petition process provides an opportunity for a petitioner to obtain in advance [A]gency concurrence, based on sound science, with respect to the classification of a particular feedstock under existing regulations. In this respect, the administrative petition process differs from the categorical non-waste determination...where EPA makes changes to the regulatory status*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 286 of 526 of certain non-hazardous secondary materials that are reflected in the Code of Federal Regulations. Because the public – through this rulemaking process – has an opportunity to provide input on EPA’s regulations, there is no need to provide a second opportunity for public comment when those regulations are applied by the EPA in specific contexts through the administrative petition process.” In addition, other commenters indicated that public notice and comment is not necessary, since the NHSM rulemaking process has already taken comment on the methodology, in addition to other rationale. In particular, one commenter stated, “Streamlining could be further facilitated by recognizing that solicitation of public comment on each individual application would be redundant and unnecessary given the public’s ample opportunity during this rulemaking to comment on the evaluation criteria that will govern non-waste determination petitions.” Another commenter stated, “The reason for public participation in the hazardous waste petition process is that the materials subject to the petition are to be removed from the hazardous waste regulatory program. In the NHSM world, the secondary materials subject to the petition are merely obtaining clarity about regulatory status – they are not seeking a change in*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 287 of 526 regulatory status. Therefore, the need for the full public participation process is not necessary or warranted.” Response: Although industry commenters argued that public participation is unnecessary, the EPA still believes that public participation is an important part of a transparent decision making process and values how it increases transparency. In the final rule, we will retain the public participation requirement in order to promote public awareness. 7. Revised Introductory Text for 40 CFR 241.3(a) As part of its discussion clarifying the non-waste determination petition processes, the EPA noted that it had examined a number of specific NHSMs and decided which were to be

considered solid wastes based on the record available at the

time the March 2011 final rule was issued. 122 The rule itself had stated at 40 CFR 241.3(a) that secondary materials were solid wastes except for those described in section 241.3(b). Essentially, section 241.3(b) is the operative section thatstates what materials are not wastes. The purpose of the nonwaste determination petition process in section 241.3(c) and the new proposed petition process in section 241.4 is to allow various parties the opportunity to provide information and data

so that the EPA could decide what other NHSMs are not solid

122 See 76 FR 80473.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 288 of 526 wastes. The preamble stated that the Agency proposed to amend section 241.3(a) to state that such secondary materials are “presumed to be” solid wastes except for those described in section 241.3(b) in order to better reflect the rulemaking

record.

Comment : No comment supported inclusion of the “presumed to be” language in the rule. Most of the comments on the language argue that it means that the EPA continues to improperly determine that certain NHSMs are presumptively wastes. Comments generally argue that the “presumed to be” language shows that the EPA, in spite of statements to the contrary, is continuing to make an inappropriate determination that NHSMs transferred to other parties are presumptively wastes until a combustor proves otherwise. According to comments, the use of the “presumed to be” language is a clear statement that the EPA is making the presumption. The addition of these words does not change the fact that, under the EPA’s regulatory framework, NHSMs are wastes until proven otherwise. Several comments, in fact, argued that to address the legal flaws in the proposal, the EPA should reverse the presumption and presume that NHSMs burned for energy recovery or used as an*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 289 of 526 ingredient is not for the purpose of disposal and, therefore, is

not a waste. Response: The EPA is not addressing in this rulemaking the comment that the Agency has inappropriately made presumptions

about whether materials are wastes. This issue has not been reopened. Instead, the Agency has only opened very specific issues on particular wastes. In the December 2011 proposal at 76 FR 80473, the EPA referred to the March 2011 preamble in which the Agency stated that it has not “arbitrarily determined that secondary materials transferred between companies are wastes. Instead, the EPA has evaluated whether certain categories of materials are discarded or not. The Agency has not adopted the extremes of saying that all burning of secondary material, regardless of ultimate use, is waste treatment or that any secondary material that is recycled for legitimate fuel value is a commodity and not a waste. Wastes may have value, but are still wastes.” 76 FR 15471. Further, the Agency stated that it “has examined a number of specific materials, recycled within the control of the generator and transferred to a third party for recycling, and determined whether they would be appropriately placed within the waste or non-waste categories.” Id. The EPA went on to examine a number of different categories of NHSMs used as fuels and*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 290 of 526 ingredients that was summarized in the Federal Register (76 FR 15477-15520). The EPA cannot “reverse” a presumption that it never made to declare that materials burned for energy recovery are presumptively non-wastes. Further, it would be entirely improper for the Agency to do so. The EPA has evaluated specific groups of materials as to their waste status, while the comments regarding reversal of a purported presumption have only presented arguments “in broad abstraction, providing little detail about the many processes throughout the industry that generate residual material” that could be subject to this rule. Association of Battery Recyclers v. EPA , 208 F.3d 1047, 1056. 123 Accordingly, the Agency stands on its March 2011 rulemaking

record for the issues discussed in these comments. Comment: Comments objected that the change in word choice that materials are “presumed to be” solid wastes from the statement that that materials “are” solid wastes (except as otherwise provided in the regulation) still puts the burden to prove material is not a waste on persons who use NHSMs in combustion units. One comment, in particular, noted that there would be no practical effect of the new language even though it is viewed by

123 Note how the April 4, 2012, letter from Timothy G. Hunt to James Berlow (a copy of which is in the docket for today’s rule), provided specific information on pulp and paper sludge where EPA added a categorical determination based on specific information provided by industry.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 291 of 526 the EPA as an “optically less drastic stance.” That is, there would be no real leeway for a party in an enforcement proceeding to counter the EPA’s prosecution based on the fact that the secondary material in question is only “presumed to be” a waste,

rather than the material “is” a waste. Response: The EPA has decided not to retain the “presumed to be” language, since it is unnecessary and does not actually reflect the rulemaking record. No comment argued in favor of it. In addition, there is no need to temper the existing language stating that a material is a solid waste if it does not fall within the section 241.3(b) categories or the non-waste determination processes. As noted in the previous response to comments regarding the Agency’s “presumption” of the waste status of materials, the Agency stands on its March 2011 rulemaking record.

E. Cost and Benefits of the Final Rule The RCRA aspects of this rule do not directly invoke any costs (excluding minor administrative burden/cost), or benefits. Any RCRA related costs to the regulated community, and corresponding benefits to human health and the environment, have been considered as part of the CISWI action, and the corresponding CISWI and Boiler MACT (area source and major source) final rules. As such, the Agency has not prepared a*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 292 of 526 separate cost-benefit assessment in support of this part of the final rule. Consequently, any potential costs or benefits, including impacts to small entities, indirectly associated with the RCRA aspects of this rule are addressed in the corresponding impact assessment prepared in support of the CISWI part of this

action. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory

Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it may raise novel legal or policy issues. Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and 13563 (76 FR 3821, January 21, 2011). Any changes made in response to OMB

recommendations have been documented in the docket for this

action. In addition, the EPA prepared an update to the Regulatory Impact Analysis (RIA) of the potential costs and benefits

associated with this action. The RIA available in the docket describes in detail the empirical basis for the EPA’s assumptions and characterizes the various sources of*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 293 of 526 uncertainties affecting the estimates below and a memo documents the updates since the RIA was prepared. Table 9 of this preamble shows the results of the cost and benefits analysis for these

final rules. Table 9. Summary of the Monetized Benefits, Social Costs and Net Benefits for the Final CISWI NSPS and EG in 2015 (Millions of 2008$) 1 3 percent Discount Rate 7 percent Discount Rate Total Monetized Benefits 2 $460 to $1,100 $420 to $1,100

Total Social Costs 3 $270 $270 Net Benefits $190 to $730 $150 to $630

Non-monetized Benefits Health effects from exposure to HAP (790 tons of HCl, 2.6 tons of lead, 1.8 tons of cadmium, 740 pounds of mercury, and 93 grams of dioxins/furans) Health effects from exposure to criteria pollutants (23,000 tons of CO , 7,300 tons of SO 2 , 7,200 tons of NO 2 , and secondary formation of ozone) Ecosystem effects Visibility impairment 1 All estimates are for the implementation year (2015), and are rounded to two significant figures. These results reflect the lowest cost disposal assumption. 2 The total monetized benefits reflect the human health benefits associated with reducing exposure to PM 2.5 through reductions of PM 2.5 precursors such as directly emitted particles, SO 2 , and NOx. It is important to note that the monetized benefits include many but not all health effects associated with PM 2.5 exposure. Monetized benefits are shown as a range from Pope et al. (2002) to Laden et al. (2006). These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because there is no clear scientific evidence that would support the development of differential effects estimates by particle type. These*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 294 of 526 estimates include the energy disbenefits valued at $3.8 million (using the 3 percent discount rate), which do not change the rounded totals. CO 2 -related disbenefits were calculated using the “social cost of carbon”, which is discussed further in the RIA. 3 The methodology used to estimate social costs for one year in the multimarket model using surplus changes results in the same social costs for both discount rates.

B. Paperwork Reduction Act This action does not impose any new information collection burden. This action is believed to result in no changes to the information collection requirements of the final NHSM rule and will have no impact on the information collection estimate of project cost and hour burden made and approved by OMB. Due to changes in the CISWI inventory and monitoring requirements of the CISWI rule, the information collection estimate of project cost and hour burden have been revised. Therefore, only the

CISWI ICR has been revised. The OMB control numbers for the EPA’s regulations in 40 CFR are listed in 40 CFR part 9. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing CISWI and NHSM 124 regulations (40 CFR part 60, subparts CCCC and DDDD, and 40 CFR part 241) under the provisions of the Paperwork Reduction Act , 44 U.S.C. 3501, et

124 Identification of Non-Hazardous Secondary Materials That Are Solid Waste, Final Rule. March 11, 2011.*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 295 of 526

seq ., and has been assigned EPA ICR number 2384.04 for subpart CCCC, 40 CFR part 60, EPA ICR number 2385.04 for subpart DDDD, 40 CFR part 60, and EPA ICR number 2382.04 for 40 CFR part 241. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of today’s rule on small entities, small entity is defined as: (1) a small business as defined by the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of lessthan 50,000; or (3) a small organization that is any not-forprofit enterprise that is independently owned and operated and

is not dominant in its field. After considering the economic impacts of today’s final rule on small entities, I certify that this action will not have*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 296 of 526 a significant economic impact on a substantial number of small entities. This final rule will not impose any new requirements on any entities because it does not impose any additional regulatory requirements relative to those specified in the March

2011 final CISWI and NHSM rules. The March 2011 final CISWI and NHSM rules were both certified as not having a significant economic impact on a substantial number of small entities. In this final action, there are three fewer small entities in the CISWI than in the March 2011 final CISWI rule, as discussed in the “Regulatory Impact Results for the Reconsideration Final for Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid

Waste Incineration Units” memorandum in the CISWI docket.

D. Unfunded Mandates Reform Act This action does not contain a federal mandate that may result in expenditures of $100 million or more for state, local and tribal governments, in the aggregate or the private sector in any one year. This rule finalizes amendments to the final CISWI rule provisions and technical clarifications to the final NHSM rule. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA. However, the March 2011 final CISWI rule contains a federal mandate that may result in expenditures of $100 million or more for state, local and tribal governments,*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 297 of 526 in the aggregate, or the private sector in any 1 year. Accordingly, we have prepared under section 202 of the UMRA a written statement, which is summarized in the preamble to the final CISWI rule (76 FR 15747). This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This final rule will not impose direct compliance costs on state or local governments and will not preempt state law. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Consultation and Coordination with

Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175, (65 FR 67249, November 9, 2000). The EPA is not aware of any CISWI in Indian country or owned or operated by Indian tribal governments. The CISWI aspects of this*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 298 of 526 rule may, however, invoke minor indirect tribal implications to the extent that entities generating solid wastes on tribal lands could be affected. However, any indirect NHSM impacts that may occur as a result of the CISWI action are expected to be negligible due to the very limited focus of the CISWI part or this rule. Thus, Executive Order 13175 does not apply to this

action.

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is based solely on technology performance and technical corrections. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory

action under Executive Order 12866. I. National Technology Transfer and Advancement Act*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 299 of 526 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not use available and applicable voluntary consensus standards. This action does not involve any revisions to the technical standards or test methods required in the final CISWI rule. Therefore, the EPA did not reconsider the use of any voluntary

consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 300 of 526 appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United

States. The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. The

amendments do not relax the control measures on sources regulated by the CISWI rule, and, therefore, will not cause

emissions increases from these sources. The March 2011 final

CISWI rule will reduce emissions of all the listed HAP emitted from this source. Furthermore, the targeted revisions finalized in the NHSM section of this rule are designed to improve the management of these materials, thereby helping to further ensure against any disproportionately high and adverse human health or environmental effects on minority or low-income populations. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Page 301 of 526 of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register

. A Major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective [INSERT THE DATE 60 DAYS AFTER THE DATE OF PUBLICATION IN THE

FEDERAL REGISTER ].Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units Page 302 of 526 List of Subjects 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances. 40 CFR Part 241 Environmental protection, air pollution control, waste treatment and disposal.

Dated:

Lisa P. Jackson, Administrator.Page 303 of 526

For the reasons stated in the preamble, Title 40, chapter I, of the Code of Federal Regulations is proposed to be amended

as follows: PART 60—[AMENDED]

1. The authority citation for part 60 continues to read

as follows: Authority: 42 U.S.C. 7401, et seq

. 2. Section 60.17 is amended by: a. Adding paragraph (a)(93). b. Revising paragraph (h)(4). c. Adding paragraph (o). §60.17 Incorporations by reference.

* * * * * (a) * * * (93) ASTM D6784-02 (Reapproved 2008) Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), approved April 1, 2008, IBR approved for §§60.2165(j), 60.2730(j), tables 1, 5, 6 and 8 to subpart CCCC, and tables 2, 6, 7, and 9 to subpart DDDD, §§60.4900(b)(4)(v), 60.5220(b)(4)(v), tables 1 and 2 to subpart LLLL, and tables 2 and 3 to subpart MMMM.

* * * * *Page 304 of 526

(h) * * * (4) ANSI/ASME PTC 19.10–1981, Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus], IBR approved for §60.56c(b)(4), §60.63(f)(2) and (f)(4), §60.106(e)(2), §§60.104a(d)(3), (d)(5), (d)(6), (h)(3), (h)(4), (h)(5), (i)(3), (i)(4), (i)(5), (j)(3), and (j)(4), §60.105a(d)(4), (f)(2), (f)(4), (g)(2), and (g)(4), §60.106a(a)(1)(iii), (a)(2)(iii), (a)(2)(v), (a)(2)(viii), (a)(3)(ii), and (a)(3)(v), and §60.107a(a)(1)(ii), (a)(1)(iv), (a)(2)(ii), (c)(2), (c)(4), and (d)(2), tables 1 and 3 of subpart EEEE, tables 2 and 4 of subpart FFFF, table 2 of subpart JJJJ, §§60.4415(a)(2) and (a)(3), 60.2145(s)(1)(i) and (ii), 60.2145(t)(1)(ii), 60.2145(t)(5)(i), 60.2710(s)(1)(i) and (ii), 60.2710(t)(1)(ii), 60.2710(t)(5)(i), 60.2710(w)(3), 60.2730(q)(3), 60.4900(b)(4)(vii) and (viii), 60.4900(b)(5)(i), 60.5220(b)(4)(vii) and (viii), 60.5220(b)(5)(i), tables 1 and 2 to subpart LLLL, and tables 2 and 3 to subpart MMMM.

* * * * * (o) The following material is available from the U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460, (202) 272-0167, http://www.epa.gov

. (1) Office of Air Quality Planning and Standards (OAQPS) Fabric Filter Bag Leak Detection Guidance, EPA–454/R–98–015,Page 305 of 526

September 1997, IBR approved for §§60.2145(r)(2), 60.2710(r)(2), 60.4905(b)(3)(i)(B), and 60.5225(b)(3)(i)(B). (2) [Reserved]

3. Revise the heading for subpart CCCC to read as

follows: Subpart CCCC-Standards of Performance for Commercial and Industrial Solid Waste Incineration Units * * * * *

4. Section 60.2005 is revised to read as follows: §60.2005 When does this subpart become effective? This subpart takes effect on [THE DATE 6 MONTHS AFTER

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ]. Some of the requirements in this subpart apply to planning the CISWI unit (i.e., the preconstruction requirements in §§60.2045 and 60.2050). Other requirements such as the emission limitations and operating limits apply after the CISWI unit begins operation.

5. Section 60.2015 is revised to read as follows: §60.2015 What is a new incineration unit? (a) A new incineration unit is an incineration unit that meets any of the criteria specified in paragraph (a)(1) through (a)(2) of this section. (1) A CISWI unit that commenced construction after June 4,

2010.Page 306 of 526

(2) A CISWI unit that commenced reconstruction or modification after [THE DATE 6 MONTHS AFTER PUBLICATION OF THE

FINAL RULE IN THE FEDERAL REGISTER ]. (b) This subpart does not affect your CISWI unit if you make physical or operational changes to your incineration unit to comply with subpart DDDD of this part (Emission Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units). Such changes do not qualify as reconstruction or modification under this subpart.

6. Section 60.2020 is amended by: §60.2020 What combustion units are exempt from this subpart? a. Revising the introductory text. b. Removing and reserving paragraph (b). c. Revising paragraph (c). d. Revising paragraphs (e)(3), (f)(3), (g), (m) and (n). e. Removing and reserving paragraphs (j), (k), and (l). f. Removing paragraph (o). §60.2020 What combustion units are exempt from this subpart? This subpart exempts the types of units described in paragraphs (a), (c) through (i) and (n) of this section, but some units are required to provide notifications. Air curtain incinerators are exempt from the requirements in this subpart except for the provisions in §§60.2242, 60.2250, and 60.2260.

* * * * *Page 307 of 526

(b) [Reserved] (c) Municipal waste combustion units . Incineration units that are subject to subpart Ea of this part (Standards of Performance for Municipal Waste Combustors); subpart Eb of this part (Standards of Performance for Large Municipal Waste Combustors); subpart Cb of this part (Emission Guidelines and Compliance Time for Large Municipal Combustors); subpart AAAA of this part (Standards of Performance for Small Municipal Waste Combustion Units); or subpart BBBB of this part (Emission Guidelines for Small Municipal Waste Combustion Units).

* * * * * (e) * * * (3) You submit a request to the Administrator for a determination that the qualifying cogeneration facility is combusting homogenous waste. The request must include

information sufficient to document that the unit meets the criteria of the definition of a small power production facility and that the waste material the unit is proposed to burn is homogeneous.

* * * * * (f) * * * (3) You submit a request to the Administrator for a determination that the qualifying cogeneration facility is combusting homogenous waste. The request must includePage 308 of 526

information sufficient to document that the unit meets the criteria of the definition of a cogeneration facility and that the waste material the unit is combusting is homogeneous. (g) Hazardous waste combustion units . Units for which you are required to get a permit under section 3005 of the Solid Waste Disposal Act.

* * * * * (j) [Reserved] (k) [Reserved] (l) [Reserved] (m) Sewage treatment plants . Incineration units regulated under subpart O of this part (Standards of Performance for Sewage Treatment Plants). (n) Sewage sludge incineration units . Incineration units combusting sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter that are subject to subpart LLLL of this part (Standards of Performance for Sewage Sludge Incineration Units) or subpart MMMM of this part (Emission Guidelines for Sewage Sludge Incineration Units).

7. Section 60.2025 is removed.

8. Section 60.2030 is amended by: a. Revising paragraph (c) introductory text. b. Removing and reserving paragraph (c)(5). c. Adding paragraphs (c)(8) through (c)(10).Page 309 of 526

§60.2030 Who implements and enforces this subpart?

* * * * * (c) The authorities that will not be delegated to state, local, or tribal agencies are specified in paragraphs (c)(1) through (4) and (c)(6) through (10) of this section.

* * * * * (5) [Reserved]

* * * * * (8) Approval of alternative opacity emission limits in §60.2105 under §60.11(e)(6) through (e)(8). (9) Performance test and data reduction waivers under §60.2125(j), 60.8(b)(4) and (5). (10) Determination of whether a qualifying small power production facility or cogeneration facility under §60.2020(e) or (f) is combusting homogenous waste.

9. Section 60.2045 is revised to read as follows: (a) You must prepare a siting analysis if you plan to commence construction of an incinerator after December 1, 2000. (b) You must prepare a siting analysis for CISWI units that commenced construction after June 4, 2010, or that commenced reconstruction or modification after [THE DATE 6 MONTHS AFTER

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ]. (c) You must prepare a siting analysis if you are required to submit an initial application for a construction permit underPage 310 of 526

40 CFR part 51, subpart I, or 40 CFR part 52, as applicable, for the reconstruction or modification of your CISWI unit.

* * * * *

10. Section 60.2070 is amended by revising paragraph (c)(1)(vii) to read as follows: §60.2070 What are the operator training and qualification requirements?

* * * * * (c) * * * (1) * * * (vii) Actions to prevent and correct malfunctions or to prevent conditions that may lead to malfunctions.

* * * * *

11. Section 60.2085 is amended by revising paragraph (d)

to read as follows: §60.2085 How do I maintain my operator qualification?

* * * * * (d) Prevention and correction of malfunctions or conditions that may lead to malfunction.

* * * * *

12. Section 60.2105 is revised to read as follows: §60.2105 What emission limitations must I meet and by when? (a) You must meet the emission limitations for each CISWI unit, including bypass stack or vent, specified in table 1 ofPage 311 of 526

this subpart or tables 5 through 8 of this subpart by the applicable date in §60.2140. You must be in compliance with the emission limitations of this subpart that apply to you at all

times. (b) An incinerator unit that commenced construction after November 30, 1999, but no later than June 4, 2010, or that commenced reconstruction or modification on or after June 1, 2001, but no later than [THE DATE 6 MONTHS AFTER PUBLICATION OF

THE FINAL RULE IN THE FEDERAL REGISTER ] must meet the more stringent emission limit for the respective pollutant in table 1 of this subpart or table 6 of subpart DDDD.

13. Section 60.2110 is amended by: a. Revising paragraph (a) introductory text. b. Revising paragraphs (a)(2) through (a)(4). c. Adding paragraphs (d) through (h). §60.2110 What operating limits must I meet and by when? (a) If you use a wet scrubber(s) to comply with the emission limitations, you must establish operating limits for up to four operating parameters (as specified in table 2 of this subpart) as described in paragraphs (a)(1) through (4) of this section during the initial performance test.

* * * * * (2) Minimum pressure drop across the wet particulate matter scrubber, which is calculated as the lowest 1-hour averagePage 312 of 526

pressure drop across the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations; or minimum amperage to the fan for the wet scrubber, which is calculated as the lowest 1-hour average amperage to the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations. (3) Minimum scrubber liquid flow rate, which is calculated as the lowest 1-hour average liquid flow rate at the inlet to the wet acid gas or particulate matter scrubber measured during the most recent performance test demonstrating compliance with all applicable emission limitations. (4) Minimum scrubber liquor pH, which is calculated as the lowest 1-hour average liquor pH at the inlet to the wet acid gas scrubber measured during the most recent performance test demonstrating compliance with the hydrogen chloride emission

limitation.

* * * * * (d) If you use an electrostatic precipitator to comply with the emission limitations, you must measure the (secondary) voltage and amperage of the electrostatic precipitator collection plates during the particulate matter performance test. Calculate the average electric power value (secondary voltage x secondary current = secondary electric power) for eachPage 313 of 526

test run. The operating limit for the electrostatic precipitator is calculated as the lowest 1-hour average secondary electric power measured during the most recent performance test demonstrating compliance with the particulate matter emission

limitations. (e) If you use activated carbon sorbent injection to comply with the emission limitations, you must measure the sorbent flow rate during the performance testing. The operating limit for the carbon sorbent injection is calculated as the lowest 1-hour average sorbent flow rate measured during the most recent performance test demonstrating compliance with the mercury

emission limitations. (f) If you use selective noncatalytic reduction to comply with the emission limitations, you must measure the charge rate, the secondary chamber temperature (if applicable to your CISWI unit), and the reagent flow rate during the nitrogen oxides performance testing. The operating limits for the selective noncatalytic reduction are calculated as the highest 1-hour average charge rate, secondary chamber temperature, and reagent flow rate measured during the most recent performance test demonstrating compliance with the nitrogen oxides emission

limitations. (g) If you use a dry scrubber to comply with the emission limitations, you must measure the injection rate of each sorbentPage 314 of 526

during the performance testing. The operating limit for the injection rate of each sorbent is calculated as the lowest 1- hour average injection rate or each sorbent measured during the most recent performance test demonstrating compliance with the hydrogen chloride emission limitations. (h) If you do not use a wet scrubber, electrostatic precipitator, or fabric filter to comply with the emission limitations, and if you do not determine compliance with your particulate matter emission limitation with a particulate matter CEMS, you must maintain opacity to less than or equal to 10 percent opacity (1-hour block average).

14. Section 60.2115 is revised to read as follows: §60.2115 What if I do not use a wet scrubber, fabric filter, activated carbon injection, selective noncatalytic reduction, an electrostatic precipitator, or a dry scrubber to comply with the

emission limitations? If you use an air pollution control device other than a wet scrubber, activated carbon injection, selective noncatalytic reduction, fabric filter, an electrostatic precipitator, or a dry scrubber or limit emissions in some other manner, including material balances, to comply with the emission limitations under §60.2105, you must petition the EPA Administrator for specific operating limits to be established during the initial performance test and continuously monitored thereafter. You mustPage 315 of 526

submit the petition at least sixty days before the performance test is scheduled to begin. Your petition must include the five items listed in paragraphs (a) through (e) of this section. (a) Identification of the specific parameters you propose to use as additional operating limits. (b) A discussion of the relationship between these parameters and emissions of regulated pollutants, identifying how emissions of regulated pollutants change with changes in these parameters and how limits on these parameters will serve to limit emissions of regulated pollutants. (c) A discussion of how you will establish the upper and/or lower values for these parameters which will establish the operating limits on these parameters. (d) A discussion identifying the methods you will use to measure and the instruments you will use to monitor these parameters, as well as the relative accuracy and precision of

these methods and instruments. (e) A discussion identifying the frequency and methods for recalibrating the instruments you will use for monitoring these parameters.

15. Section 60.2120 is revised to read as follows: §60.2120 Affirmative Defense for Violation of Emission Standards During Malfunction.Page 316 of 526

In response to an action to enforce the standards set forth in paragraph §60.2105, you may assert an affirmative defense to a claim for civil penalties for exceedances of such standards that are caused by malfunction, as defined at 40 CFR 60.2. Appropriate penalties may be assessed; however, if you fail to meet your burden of proving all of the requirements in the affirmative defense, the affirmative defense shall not be available for claims for injunctive relief. (a) To establish the affirmative defense in any action to enforce such a standard, you must timely meet the reporting requirements in paragraph (b) of this section, and must prove by a preponderance of evidence that: (1) The violation: (i) Was caused by a sudden, infrequent, and unavoidable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner; and (ii) Could not have been prevented through careful planning, proper design or better operation and maintenance practices; and (iii) Did not stem from any activity or event that could have been foreseen and avoided, or planned for; and (iv) Was not part of a recurring pattern indicative of inadequate design, operation, or maintenance; andPage 317 of 526

(2) Repairs were made as expeditiously as possible when a violation occurred. Off-shift and overtime labor were used, to the extent practicable to make these repairs; and (3) The frequency, amount and duration of the violation (including any bypass) were minimized to the maximum extent practicable; and (4) If the violation resulted from a bypass of control equipment or a process, then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and (5) All possible steps were taken to minimize the impact of the violation on ambient air quality, the environment, and human health; and (6) All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices; and (7) All of the actions in response to the violation were documented by properly signed, contemporaneous operating logs;

and (8) At all times, the affected facility was operated in a manner consistent with good practices for minimizing emissions;

and (9) A written root cause analysis has been prepared, the purpose of which is to determine, correct, and eliminate thePage 318 of 526

primary causes of the malfunction and the violation resulting from the malfunction event at issue. The analysis shall also specify, using best monitoring methods and engineering judgment, the amount of any emissions that were the result of the

malfunction. (b) Report. The owner or operator seeking to assert an affirmative defense shall submit a written report to the Administrator with all necessary supporting documentation that it has met the requirements set forth in paragraph (a) of this section. This affirmative defense report shall be included in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report or excess emission report due after

the initial occurrence of the violation of the relevant

standard.

16. Section 60.2125 is amended by: a. Revising paragraph (c). b. Revising paragraphs (g)(1) and (g)(2). c. Adding paragraphs (h) and (i) to read as follows:Page 319 of 526

§60.2125 How do I conduct the initial and annual performance

test?

* * * * * (c) All performance tests must be conducted using the minimum run duration specified in table 1 of this subpart or tables 5 through 8 of this subpart.

* * * * * (g) * * *(1) Measure the concentration of each dioxin/furan tetrathrough octa-chlorinated isomer emitted using EPA Method 23 at 40 CFR part 60, appendix A-7. (2) For each dioxin/furan (tetra-through octa-chlorinated) isomer measured in accordance with paragraph (g)(1) of this section, multiply the isomer concentration by its corresponding toxic equivalency factor specified in table 3 of this subpart.

* * * * * (h) Method 22 at 40 CFR part 60, appendix A-7 of this part must be used to determine compliance with the fugitive ash emission limit in table 1 of this subpart or tables 5 through 8 of this subpart. (i) If you have an applicable opacity operating limit, you must determine compliance with the opacity limit using Method 9 at 40 CFR part 60, appendix A-4 of this part, based on three 1- hour blocks consisting of ten 6-minute average opacity values,Page 320 of 526

unless you are required to install a continuous opacity monitoring system, consistent with §§60.2145 and 60.2165.

17. Section 60.2130 is revised to read as follows: §60.2130 How are the performance test data used? You use results of performance tests to demonstrate compliance with the emission limitations in table 1 of this subpart or tables 5 through 8 of this subpart.

18. Section 60.2135 is revised to read as follows: §60.2135 How do I demonstrate initial compliance with the emission limitations and establish the operating limits? You must conduct a performance test, as required under §§60.2125 and 60.2105 to determine compliance with the emission limitations in table 1 of this subpart or tables 5 through 8 of this subpart, to establish compliance with any opacity operating limit in §60.2110,and to establish operating limits using the procedures in §§60.2110 or 60.2115. The performance test must be conducted using the test methods listed in table 1 of this subpart or tables 5 through 8 of this subpart and the procedures in §60.2125. The use of the bypass stack during a performance test shall invalidate the performance test. You must conduct a performance evaluation of each continuous monitoring system within 60 days of installation of the monitoring system.

19. Section 60.2140 is revised to read as follows:Page 321 of 526

§60.2140 By what date must I conduct the initial performance

test? (a) The initial performance test must be conducted within 60 days after your CISWI unit reaches the charge rate at which it will operate, but no later than 180 days after its initial startup. (b) If you commence or recommence combusting a solid waste at an existing combustion unit at any commercial or industrial facility, and you conducted a test consistent with the provisions of this subpart while combusting the solid waste within the 6 months preceding the reintroduction of that solid waste in the combustion chamber, you do not need to retest until 6 months from the date you reintroduce that solid waste. (c) If you commence combusting or recommence combusting a solid waste at an existing combustion unit at any commercial or industrial facility and you have not conducted a performance test consistent with the provisions of this subpart while combusting the given solid waste within the 6 months preceding

the reintroduction of that solid waste in the combustion chamber, you must conduct a performance test within 60 days commencing or recommencing solid waste combustion.

20. Section 60.2141 is added to read as follows: §60.2141 By what date must I conduct the initial air pollution control device inspection?Page 322 of 526

(a) The initial air pollution control device inspection must be conducted within 60 days after installation of the control device and the associated CISWI unit reaches the charge rate at which it will operate, but no later than 180 days after the device’s initial startup. (b) Within 10 operating days following an air pollution control device inspection, all necessary repairs must be completed unless the owner or operator obtains written approval from the state agency establishing a date whereby all necessary repairs of the designated facility must be completed.

21. Section 60.2145 is revised to read as follows: §60.2145 How do I demonstrate continuous compliance with the emission limitations and the operating limits? (a) Compliance with standards. (1) The emission standards and operating requirements set forth in this subpart apply at all times. (2) If you cease combusting solid waste, you may opt to remain subject to the provisions of this subpart. Consistent with the definition of CISWI unit, you are subject to the requirements of this subpart at least 6 months following the

last date of solid waste combustion. Solid waste combustion is ceased when solid waste is not in the combustion chamber (i.e.,

the solid waste feed to the combustor has been cut off for a period of time not less than the solid waste residence time).Page 323 of 526

(3) If you cease combusting solid waste, you must be in compliance with any newly applicable standards on the effective

date of the waste-to-fuel switch. The effective date of the waste-to-fuel switch is a date selected by you, that must be at least 6 months from the date that you ceased combusting solid waste, consistent with §60.2145(a)(2). Your source must remain in compliance with this subpart until the effective date of the

waste-to-fuel switch. (4) If you own or operate an existing commercial or

industrial combustion unit that combusted a fuel or non-waste material, and you commence or recommence combustion of solid waste, you are subject to the provisions of this subpart as of the first day you introduce or reintroduce solid waste to the combustion chamber, and this date constitutes the effective date of the fuel-to-waste switch. You must complete all initial compliance demonstrations for any section 112 standards that are applicable to your facility before you commence or recommence combustion of solid waste. You must provide 30 days prior notice

of the effective date of the waste-to-fuel switch. The notification must identify: (i) The name of the owner or operator of the CISWI unit, the location of the source, the emissions unit(s) that will cease burning solid waste, and the date of the notice;Page 324 of 526

(ii) The currently applicable subcategory under this subpart, and any 40 CFR part 63 subpart and subcategory that will be applicable after you cease combusting solid waste; (iii) The fuel(s), non-waste material(s) and solid waste(s) the CISWI unit is currently combusting and has combusted over the past 6 months, and the fuel(s) or non-waste materials the unit will commence combusting; (iv) The date on which you became subject to the currently applicable emission limits; (v) The date upon which you will cease combusting solid waste, and the date (if different) that you intend for any new requirements to become applicable (i.e., the effective date of the waste-to-fuel switch), consistent with (2) and (3)) above. (5) All air pollution control equipment necessary for compliance with any newly applicable emissions limits which apply as a result of the cessation or commencement or recommencement of combusting solid waste must be installed and operational as of the effective date of the waste-to-fuel, or

fuel-to-waste switch. (6) All monitoring systems necessary for compliance with any newly applicable monitoring requirements which apply as a

result of the cessation or commencement or recommencement of combusting solid waste must be installed and operational as of the effective date of the waste-to-fuel, or fuel-to-wastePage 325 of 526

switch. All calibration and drift checks must be performed as of the effective date of the waste-to-fuel, or fuel-to-waste switch. Relative accuracy tests must be performed as of the performance test deadline for PM CEMS (if PM CEMS are elected to demonstrate continuous compliance with the particulate matter emission limits). Relative accuracy testing for other CEMS need not be repeated if that testing was previously performed consistent with Clean Air Act section 112 monitoring requirements or monitoring requirements under this subpart. (b) You must conduct an annual performance test for the pollutants listed in table 1 of this subpart or tables 5 through 8 of this subpart and opacity for each CISWI unit as required under §60.2125. The annual performance test must be conducted using the test methods listed in table 1 of this subpart or tables 5 through 8 of this subpart and the procedures in §60.2125. Annual performance tests are not required if you use CEMS or continuous opacity monitoring systems to determine compliance. (c) You must continuously monitor the operating parameters specified in §60.2110 or established under §60.2115 and as specified in §60.2170. Use 3-hour block average values to determine compliance (except for baghouse leak detection system alarms) unless a different averaging period is established under §60.2115 or, for energy recovery units, where the averaging timePage 326 of 526

for each operating parameter is a 30-day rolling, calculated each hour as the average of the previous 720 operating hours. Operation above the established maximum, below the established minimum, or outside the allowable range of the operating limits specified in paragraph (a) of this section constitutes a deviation from your operating limits established under this subpart, except during performance tests conducted to determine compliance with the emission and operating limits or to establish new operating limits. Operating limits are confirmed or reestablished during performance tests. (d) You must burn only the same types of waste and fuels used to establish subcategory applicability (for energy recovery units) and operating limits during the performance test. (e) For energy recovery units, incinerators, and small remote units, you must perform an annual visual emissions test for ash handling. (f) For energy recovery units, you must conduct an annual performance test for opacity using EPA Reference Method 9 at 40 CFR part 60 (except where particulate matter CEMS or continuous parameter monitoring system are used) and the pollutants listed in table 6 of this subpart. (g) You may elect to demonstrate continuous compliance with the carbon monoxide emission limit using a carbon monoxide CEMS according to the following requirements:Page 327 of 526

(1) You must measure emissions according to §60.13 to calculate 1-hour arithmetic averages, corrected to 7 percent oxygen. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must demonstrate initial compliance with the carbon monoxide emissions limit using a 30- day rolling average of these 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7 of this part. (2) Operate the carbon monoxide CEMS in accordance with the requirements of performance specification 4A of appendix B of this part and quality assurance procedure 1 of appendix F of this part. (h) Energy recovery units with annual average heat input rates greater than or equal to 250 MMBtu/hr and waste-burning kilns may elect to demonstrate continuous compliance with the particulate matter emissions limit using a particulate matter CEMS according to the procedures in §60.2165(n) instead of the particulate matter continuous parameter monitoring system (CPMS) specified in §60.2145. (i) For energy recovery units with annual average heat input rates greater than or equal to 10 MMBtu/hour and less thanPage 328 of 526

250 MMBtu/hr, you must install, operate, certify and maintain a continuous opacity monitoring system (COMS) according to the procedures in §60.2165. (j) For waste-burning kilns, you must conduct an annual performance test for cadmium, lead, dioxins/furans and hydrogen chloride as listed in table 7 of this subpart. You must determine compliance with hydrogen chloride using a hydrogen chloride CEMS if you do not use an acid gas wet scrubber or dry scrubber. You must determine compliance with nitrogen oxides, sulfur dioxide, and carbon monoxide using CEMS. You must determine compliance with particulate matter using CPMS. You must determine compliance with the mercury emissions limit using a mercury CEMS according to the following requirements: (1) Operate a CEMS system in accordance with performance specification 12A of 40 CFR part 60, appendix B or a sorbent trap based integrated monitor in accordance with performance specification 12B of 40 CFR part 60, appendix B. The duration of the performance test must be a calendar month. For each calendar month in which the waste-burning kiln operates, hourly mercury concentration data, and stack gas volumetric flow rate data must be obtained. You must demonstrate compliance with the mercury emissions limit using a 30-day rolling average of these 1-hour mercury concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using EquationPage 329 of 526

19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7 of this part. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. (2) Owners or operators using a mercury CEMS must install, operate, calibrate, and maintain an instrument for continuously measuring and recording the mercury mass emissions rate to the atmosphere according to the requirements of performance specifications 6 and 12A of 40 CFR part 60, appendix B, and quality assurance procedure 6 of 40 CFR part 60, appendix F. (3) The owner or operator of a waste-burning kiln must demonstrate initial compliance by operating a mercury CEMS while the raw mill of the in-line kiln/raw mill is operating under normal conditions and while the raw mill of the in-line kiln/raw mill is not operating. (k) If you use an air pollution control device to meet the emission limitations in this subpart, you must conduct an initial and annual inspection of the air pollution control device. The inspection must include, at a minimum, the following: (1) Inspect air pollution control device(s) for proper operation. (2) Develop a site-specific monitoring plan according to the requirements in paragraph (l) of this section. ThisPage 330 of 526

requirement also applies to you if you petition the EPA Administrator for alternative monitoring parameters under §60.13(i). (l) For each continuous monitoring system required in this section, you must develop and submit to the EPA Administrator for approval a site-specific monitoring plan according to the requirements of this paragraph (l) that addresses paragraphs (l)(1)(i) through (vi) of this section. (1) You must submit this site-specific monitoring plan at least 60 days before your initial performance evaluation of your continuous monitoring system. (i) Installation of the continuous monitoring system sampling probe or other interface at a measurement location relative to each affected process unit such that the measurement is representative of control of the exhaust emissions (e.g., on or downstream of the last control device). (ii) Performance and equipment specifications for the sample interface, the pollutant concentration or parametric signal analyzer and the data collection and reduction systems. (iii) Performance evaluation procedures and acceptance criteria (e.g., calibrations). (iv) Ongoing operation and maintenance procedures in accordance with the general requirements of §60.11(d).Page 331 of 526

(v) Ongoing data quality assurance procedures in accordance with the general requirements of §60.13. (vi) Ongoing recordkeeping and reporting procedures in accordance with the general requirements of §60.7(b),(c), (c)(1), (c)(4), (d), (e), (f), and (g). (2) You must conduct a performance evaluation of eachcontinuous monitoring system in accordance with your sitespecific monitoring plan. (3) You must operate and maintain the continuous monitoring system in continuous operation according to the site-specific monitoring plan. (m) If you have an operating limit that requires the use of a flow monitoring system, you must meet the requirements in paragraphs (l) and (m)(1) through (4) of this section. (1) Install the flow sensor and other necessary equipment in a position that provides a representative flow. (2) Use a flow sensor with a measurement sensitivity of no greater than 2 percent of the expected process flow rate. (3) Minimize the effects of swirling flow or abnormal velocity distributions due to upstream and downstream

disturbances. (4) Conduct a flow monitoring system performance evaluation in accordance with your monitoring plan at the time of each performance test but no less frequently than annually.Page 332 of 526

(n) If you have an operating limit that requires the use of a pressure monitoring system, you must meet the requirements in paragraphs (l) and (n)(1) through (6) of this section. (1) Install the pressure sensor(s) in a position that provides a representative measurement of the pressure (e.g., PM scrubber pressure drop). (2) Minimize or eliminate pulsating pressure, vibration,

and internal and external corrosion. (3) Use a pressure sensor with a minimum tolerance of 1.27 centimeters of water or a minimum tolerance of 1 percent of the pressure monitoring system operating range, whichever is less. (4) Perform checks at least once each process operating day to ensure pressure measurements are not obstructed (e.g., check for pressure tap pluggage daily). (5) Conduct a performance evaluation of the pressure monitoring system in accordance with your monitoring plan at the time of each performance test but no less frequently than annually. (6) If at any time the measured pressure exceeds the manufacturer's specified maximum operating pressure range, conduct a performance evaluation of the pressure monitoring system in accordance with your monitoring plan and confirm that the pressure monitoring system continues to meet the performancePage 333 of 526

requirements in your monitoring plan. Alternatively, install and verify the operation of a new pressure sensor. (o) If you have an operating limit that requires a pH monitoring system, you must meet the requirements in paragraphs (l) and (o)(1) through (4) of this section. (1) Install the pH sensor in a position that provides a representative measurement of scrubber effluent pH. (2) Ensure the sample is properly mixed and representative

of the fluid to be measured. (3) Conduct a performance evaluation of the pH monitoring system in accordance with your monitoring plan at least once each process operating day. (4) Conduct a performance evaluation (including a two-point calibration with one of the two buffer solutions having a pH within 1 of the pH of the operating limit) of the pH monitoring system in accordance with your monitoring plan at the time of each performance test but no less frequently than quarterly. (p) If you have an operating limit that requires a secondary electric power monitoring system for an electrostatic precipitator, you must meet the requirements in paragraphs (l) and (p)(1) through (2) of this section. (1) Install sensors to measure (secondary) voltage and current to the precipitator collection plates.Page 334 of 526

(2) Conduct a performance evaluation of the electric power monitoring system in accordance with your monitoring plan at the time of each performance test but no less frequently than annually. (q) If you have an operating limit that requires the use of a monitoring system to measure sorbent injection rate (e.g., weigh belt, weigh hopper, or hopper flow measurement device), you must meet the requirements in paragraphs (l) and (q)(1) and (2) of this section. (1) Install the system in a position(s) that provides a representative measurement of the total sorbent injection rate. (2) Conduct a performance evaluation of the sorbent injection rate monitoring system in accordance with your monitoring plan at the time of each performance test but no less frequently than annually. (r) If you elect to use a fabric filter bag leak detection system to comply with the requirements of this subpart, you must install, calibrate, maintain, and continuously operate a bag leak detection system as specified in paragraphs(l) and (r)(1) through (5) of this section. (1) Install a bag leak detection sensor(s) in a position(s) that will be representative of the relative or absolute particulate matter loadings for each exhaust stack, roof vent,Page 335 of 526

or compartment (e.g., for a positive pressure fabric filter) of

the fabric filter. (2) Use a bag leak detection system certified by the manufacturer to be capable of detecting particulate matter emissions at concentrations of 10 milligrams per actual cubic

meter or less. (3) Conduct a performance evaluation of the bag leak detection system in accordance with your monitoring plan and consistent with the guidance provided in EPA–454/R–98–015 (incorporated by reference, see §60.17). (4) Use a bag leak detection system equipped with a device to continuously record the output signal from the sensor. (5) Use a bag leak detection system equipped with a system

that will sound an alarm when an increase in relative particulate matter emissions over a preset level is detected. The alarm must be located where it is observed readily by plant operating personnel. (s) For facilities using a CEMS to demonstrate compliance with the sulfur dioxide emission limit, compliance with the sulfur dioxide emission limit may be demonstrated by using the CEMS specified in §60.2165 to measure sulfur dioxide. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must calculate a 30-day rolling average of the 1-Page 336 of 526

hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, Appendix A-7 of this part. The sulfur dioxide CEMS must be operated according to performance specification 2 in appendix B of this part and must follow the procedures and methods specified in this paragraph (s). For sources that have actual inlet emissions less than 100 parts per million dry volume, the relative accuracy criterion for inlet sulfur dioxide CEMS should be no greater than 20 percent of the mean value of the reference method test data in terms of the units of the emission standard, or 5 parts per million dry volume absolute value of the mean difference between the reference method and the CEMS, whichever is greater. (1) During each relative accuracy test run of the CEMS required by performance specification 2 in appendix B of this part, collect sulfur dioxide and oxygen (or carbon dioxide) data concurrently (or within a 30- to 60-minute period) with both the continuous emissions monitors and the test methods specified in paragraphs (s)(1)(i) and (s)(1)(ii) of this section. (i) For sulfur dioxide, EPA Reference Method 6 or 6C, or as an alternative ANSI/ASME PTC 19.10–1981 (incorporated by reference, see §60.17) must be used.Page 337 of 526

(ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B, or as an alternative ANSI/ASME PTC 19.10–1981 (incorporated by reference, see §60.17), must be used. (2) The span value of the CEMS at the inlet to the sulfur dioxide control device must be 125 percent of the maximum estimated hourly potential sulfur dioxide emissions of the unit subject to this rule. The span value of the CEMS at the outlet of the sulfur dioxide control device must be 50 percent of the maximum estimated hourly potential sulfur dioxide emissions of the unit subject to this rule. (3) Conduct accuracy determinations quarterly and calibration drift tests daily in accordance with procedure 1 in appendix F of this part. (t) For facilities using a CEMS to demonstrate continuous compliance with the nitrogen oxides emission limit, compliance with the nitrogen oxides emission limit may be demonstrated by using the CEMS specified in §60.2165 to measure nitrogen oxides. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must calculate a 30-day rolling average of the 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-Page 338 of 526

7 of this part. The nitrogen oxides CEMS must be operated according to performance specification 2 in appendix B of this part and must follow the procedures and methods specified in paragraphs (t)(1) through (t)(5) of this section. (1) During each relative accuracy test run of the CEMS required by performance specification 2 of appendix B of this part, collect nitrogen oxides and oxygen (or carbon dioxide) data concurrently (or within a 30- to 60-minute period) with both the CEMS and the test methods specified in paragraphs (t)(1)(i) and (t)(1)(ii) of this section. (i) For nitrogen oxides, EPA Reference Method 7 or 7E at 40 CFR part 60, appendix A-4 must be used. (ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B at 40 CFR part 60, appendix A-3, or as an alternative ANSI/ASME PTC 19–10.1981 (incorporated by reference, see §60.17), as applicable, must be used. (2) The span value of the CEMS must be 125 percent of the maximum estimated hourly potential nitrogen oxide emissions of

the unit. (3) Conduct accuracy determinations quarterly and calibration drift tests daily in accordance with procedure 1 in appendix F of this part. (4) The owner or operator of an affected facility may request that compliance with the nitrogen oxides emission limitPage 339 of 526

be determined using carbon dioxide measurements corrected to an equivalent of 7 percent oxygen. If carbon dioxide is selected for use in diluent corrections, the relationship between oxygen and carbon dioxide levels must be established during the initial performance test according to the procedures and methods specified in paragraphs (t)(4)(i) through (t)(4)(iv) of this section. This relationship may be re-established during performance compliance tests. (i) The fuel factor equation in Method 3B must be used to determine the relationship between oxygen and carbon dioxide at a sampling location. Method 3A or 3B, or as an alternative ANSI/ASME PTC 19.10–1981 (incorporated by reference, see §60.17), as applicable, must be used to determine the oxygen

concentration at the same location as the carbon dioxide

monitor. (ii) Samples must be taken for at least 30 minutes in each

hour. (iii) Each sample must represent a 1-hour average. (iv) A minimum of three runs must be performed. (u) For facilities using a CEMS to demonstrate continuous compliance with any of the emission limits of this subpart, you must complete the following: (1) Demonstrate compliance with the appropriate emission limit(s) using a 30-day rolling average of 1-hour arithemeticPage 340 of 526

average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-7 of this part. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen

content. (2) Operate all CEMS in accordance with the applicable procedures under appendices B and F of this part. (v) Use of the bypass stack at any time is an emissions standards deviation for particulate matter, HCl, Pb, Cd, Hg,

NO x , SO 2 , and dioxin/furans. (w) For energy recovery units with a design heat input capacity of 100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, you must install, operate, and maintain a oxygen analyzer system as defined in §60.2265 according to the procedures in paragraphs (w)(1) through (4) of this section. (1) The oxygen analyzer system must be installed by the initial performance test date specified in §60.2675. (2) You must operate the oxygen trim system within compliance with paragraph (w)(3) of this section at all times. (3) You must maintain the oxygen level such that the 30-day rolling average that is established as the operating limit for oxygen is not below the lowest hourly average oxygenPage 341 of 526

concentration measured during the most recent CO performance

test. (4) You must calculate and record a 30-day rolling average oxygen concentration using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 of Appendix A-7 of this part. (x) For energy recovery units with annual average heatinput rates greater than or equal to 250 MMBtu/hour and wasteburning kilns, you must install, calibrate, maintain, and operate a PM CPMS and record the output of the system as specified in paragraphs (x)(1) through (7) of this section. For other energy recovery units, you may elect to use PM CPMS operated in accordance with this section. PM CPMS are suitable in lieu of using other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure). (1) Install, calibrate, operate, and maintain your PM CPMS according to the procedures in your approved site-specific monitoring plan developed in accordance with §60.2145(l) and (x)(1)(i) through (iii) of this section. (i) The operating principle of the PM CPMS must be based on in-stack or extractive light scatter, light scintillation, beta attenuation, or mass accumulation detection of the exhaust gas or representative sample. The reportable measurement output from the PM CPMS may be expressed as milliamps, stack concentration, or other raw data signal.Page 342 of 526

(ii) The PM CPMS must have a cycle time (i.e., period required to complete sampling, measurement, and reporting for each measurement) no longer than 60 minutes. (iii) The PM CPMS must be capable of detecting and responding to particulate matter concentrations of no greater than 0.5 mg/actual cubic meter. (2) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, you must: (i) Record all hourly average output values (e.g., milliamps, stack concentration, or other raw data signal) from the PM CPMS for the periods corresponding to the test runs (e.g., three 1-hour average PM CPMS output values for three 1- hour test runs), and (ii) Determine your operating limit as the highest 1-hour average PM CPMS output value recorded during the performance test. You must verify an existing or establish a new operating limit after each repeated performance test. (3) Collect PM CPMS hourly average output data for all energy recovery unit or waste-burning kiln operating hours. Express the PM CPMS output as millamps, PM concentration, or other raw data signal value. (4) Calculate the arithmetic 30-day rolling average of all of the hourly average PM CPMS output collected during all energyPage 343 of 526

recovery unit or waste-burning kiln operating hours data (e.g., milliamps, PM concentration, raw data signal). (5) You must collect data using the PM CPMS at all times the energy recovery unit or waste-burning kiln is operating and at the intervals specified in paragraph (x)(1)(ii) of this section, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments), and any scheduled maintenance as defined in your site-specific monitoring plan. (6) You must use all the data collected during all energy recovery unit or waste-burning kiln operating hours in assessing the compliance with your operating limit except: (i) Any data collected during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or quality control activities conducted during monitoring system malfunctions are not used in calculations (report any such periods in your annual deviation report); (ii) Any data collected during periods when the monitoring system is out of control as specified in your site-specific monitoring plan, repairs associated with periods when the monitoring system is out of control, or required monitoringPage 344 of 526

system quality assurance or quality control activities conducted during out-of-control periods are not used in calculations (report emissions or operating levels and report any such periods in your annual deviation report); (iii) Any PM CPMS data recorded during periods of CEMS data during startup and shutdown, as defined in this subpart. (7) You must record and make available upon request results of PM CPMS system performance audits, as well as the dates and duration of periods from when the PM CPMS is out of control until completion of the corrective actions necessary to return the PM CPMS to operation consistent with your site-specific monitoring plan.

22. Section 60.2150 is revised to read as follows: §60.2150 By what date must I conduct the annual performance

test? You must conduct annual performance tests between 11 and 13 months of the previous performance test.

23. Section 60.2151 is added to read as follows: §60.2151 By what date must I conduct the annual air pollution control device inspection? On an annual basis (no more than 12 months following the previous annual air pollution control device inspection), you must complete the air pollution control device inspection as described in §60.2141.Page 345 of 526

24. Section 60.2155 is revised to read as follows: §60.2155 May I conduct performance testing less often? (a) You must conduct annual performance tests according to the schedule specified in §60.2150, with the following exceptions: (1) You may conduct a repeat performance test at any time to establish new values for the operating limits to apply from that point forward, as specified in §60.2160. The Administrator may request a repeat performance test at any time. (2) You must repeat the performance test within 60 days of a process change, as defined in §60.2265. (3) If the initial or any subsequent performance test for any pollutant in table 1 or tables 5 through 8 of this subpart, as applicable, demonstrates that the emission level for the pollutant is no greater than the emission level specified in paragraph (a)(3)(i) or (a)(3)(ii) of this section, as applicable, and you are not required to conduct a performance test for the pollutant in response to a request by the Administrator in paragraph (a)(1) of this section or a process change in paragraph (a)(2) of this section, you may elect to skip conducting a performance test for the pollutant for the next 2 years. You must conduct a performance test for the pollutant during the third year and no more than 37 months following the previous performance test for the pollutant. ForPage 346 of 526

cadmium and lead, both cadmium and lead must be emitted at emission levels no greater than their respective emission levels specified in paragraph (a)(3)(i) of this section for you to qualify for less frequent testing under this paragraph. (i) For particulate matter, hydrogen chloride, mercury, nitrogen oxides, sulfur dioxide, cadmium, lead and dioxins/furans, the emission level equal to 75 percent of the applicable emission limit in table 1 or tables 5 through 8 of this subpart, as applicable, to this subpart. (ii) For fugitive emissions, visible emissions (of combustion ash from the ash conveying system) for 2 percent of the time during each of the three 1-hour observations periods. (4) If you are conducting less frequent testing for a pollutant as provided in paragraph (a)(3) of this section and a subsequent performance test for the pollutant indicates that your CISWI unit does not meet the emission level specified in paragraph (a)(3)(i) or (a)(3)(ii) of this section, as applicable, you must conduct annual performance tests for the pollutant according to the schedule specified in paragraph (a) of this section until you qualify for less frequent testing for the pollutant as specified in paragraph (a)(3) of this section. (b) [Reserved]

25. Section 60.2165 is amended by: a. Revising paragraph (b)(6).Page 347 of 526

b. Revising paragraph (c). c. Adding paragraphs (d) through (s) to read as follows: §60.2165 What monitoring equipment must I install and what parameters must I monitor?

* * * * * (b) * * * (6) The bag leak detection system must be equipped with an alarm system that will alert automatically an operator when an increase in relative particulate matter emissions over a preset

level is detected. The alarm must be located where it is observed easily by plant operating personnel.

* * * * * (c) If you are using something other than a wet scrubber, activated carbon, selective non-catalytic reduction, an electrostatic precipitator, or a dry scrubber to comply with the emission limitations under §60.2105, you must install, calibrate (to the manufacturers’ specifications), maintain, and operatethe equipment necessary to monitor compliance with the sitespecific operating limits established using the procedures in §60.2115. (d) If you use activated carbon injection to comply with the emission limitations in this subpart, you must measure the minimum mercury sorbent flow rate once per hour.Page 348 of 526

(e) If you use selective noncatalytic reduction to comply with the emission limitations, you must complete the following: (1) Following the date on which the initial performance test is completed or is required to be completed under §60.2125, whichever date comes first, ensure that the affected facility does not operate above the maximum charge rate, or below the minimum secondary chamber temperature (if applicable to your CISWI unit) or the minimum reagent flow rate measured as 3-hour block averages at all times. (2) Operation of the affected facility above the maximum charge rate, below the minimum secondary chamber temperature and below the minimum reagent flow rate simultaneously constitute a violation of the nitrogen oxides emissions limit. (f) If you use an electrostatic precipitator to comply with the emission limits of this subpart, you must monitor the secondary power to the electrostatic precipitator collection plates and maintain the 3-hour block averages at or above the operating limits established during the mercury or particulate matter performance test. (g) For waste-burning kilns not equipped with a wet scrubber or dry scrubber, in place of hydrogen chloride testing with EPA Method 321 at 40 CFR part 63, appendix A, an owner or operator must install, calibrate, maintain, and operate a CEMS for monitoring hydrogen chloride emissions discharged to thePage 349 of 526

atmosphere and record the output of the system. To demonstrate continuous compliance with the hydrogen chloride emissions limit for units other than waste-burning kilns not equipped with a wet scrubber or dry scrubber, a facility may substitute use of a hydrogen chloride CEMS for conducting the hydrogen chloride annual performance test, monitoring the minimum hydrogen chloride sorbent flow rate, monitoring the minimum scrubber liquor pH, and monitoring minimum injection rate. (h) To demonstrate continuous compliance with the particulate matter emissions limit, a facility may substitute use of a particulate matter CEMS for conducting the PM annual performance test and using other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure). (i) To demonstrate continuous compliance with the dioxin/furan emissions limit, a facility may substitute use of a continuous automated sampling system for the dioxin/furan annual performance test. You must record the output of the system and analyze the sample according to EPA Method 23 at 40 CFR part 60, appendix A-7 of this part. This option to use a continuous automated sampling system takes effect on the date a final performance specification applicable to dioxin/furan from continuous monitors is published in the Federal Register . The owner or operator who elects to continuously sample dioxin/furanPage 350 of 526

emissions instead of sampling and testing using EPA Method 23 at 40 CFR part 60, appendix A-7 must install, calibrate, maintain, and operate a continuous automated sampling system and must comply with the requirements specified in §60.58b(p) and (q). A facility may substitute continuous dioxin/furan monitoring for the minimum sorbent flow rate, if activated carbon sorbent injection is used solely for compliance with the dioxin/furan

emission limit. (j) To demonstrate continuous compliance with the mercury emissions limit, a facility may substitute use of a continuous automated sampling system for the mercury annual performance test. You must record the output of the system and analyze the sample at set intervals using any suitable determinative technique that can meet performance specification 12B. The owner or operator who elects to continuously sample mercury emissions instead of sampling and testing using EPA Reference Method 29 or 30B at 40 CFR part 60, appendix A-8 of this part, ASTM D6784-02 (Reapproved 2008) (incorporated by reference, see §60.17), or an approved alternative method for measuring mercury emissions, must install, calibrate, maintain, and operate a continuous automated sampling system and must comply with performance specification 12A and quality assurance procedure 5, as well as the requirements specified in §60.58b(p) and (q). A facility may substitute continuous mercury monitoring for the minimum sorbentPage 351 of 526

flow rate, if activated carbon sorbent injection is used solely for compliance with the mercury emission limit. (k) To demonstrate continuous compliance with the nitrogen oxides emissions limit, a facility may substitute use of a CEMS for the nitrogen oxides annual performance test to demonstrate compliance with the nitrogen oxides emissions limits and monitoring the charge rate, secondary chamber temperature and reagent flow for selective noncatalytic reduction, if applicable. (1) Install, calibrate, maintain, and operate a CEMS for measuring nitrogen oxides emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 2 of appendix B of this part, the quality assurance procedure one of appendix F of this part and the procedures under §60.13 must be followed for installation, evaluation, and operation of the CEMS. (2) Following the date that the initial performance test for nitrogen oxides is completed or is required to be completed under §60.2125, compliance with the emission limit for nitrogen oxides required under §60.52b(d) must be determined based on the 30-day rolling average of the hourly emission concentrations using CEMS outlet data. The 1-hour arithmetic averages must be expressed in parts per million by volume corrected to 7 percent oxygen (dry basis) and used to calculate the 30-day rollingPage 352 of 526

average concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under §60.13(e)(2). (l) To demonstrate continuous compliance with the sulfur dioxide emissions limit, a facility may substitute use of a continuous automated sampling system for the sulfur dioxide annual performance test to demonstrate compliance with the

sulfur dioxide emissions limits. (1) Install, calibrate, maintain, and operate a CEMS for measuring sulfur dioxide emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 2 of appendix B of this part, the quality assurance requirements of procedure one of appendix F of this part and procedures under §60.13 must be followed for installation, evaluation, and operation of the CEMS. (2) Following the date that the initial performance test for sulfur dioxide is completed or is required to be completed under §60.2125, compliance with the sulfur dioxide emission limit may be determined based on the 30-day rolling average of the hourly arithmetic average emission concentrations using CEMS outlet data. The 1-hour arithmetic averages must be expressed in parts per million corrected to 7 percent oxygen (dry basis) andPage 353 of 526

used to calculate the 30-day rolling average emission concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under §60.13(e)(2). (m) For energy recovery units over 10 MMBtu/hr but less than 250 MMBtu/hr annual average heat input rates that do not use a wet scrubber, fabric filter with bag leak detection system, or particulate matter CEMS, you must install, operate, certify, and maintain a continuous opacity monitoring system according to the procedures in paragraphs (m)(1) through (5) of this section by the compliance date specified in §60.2105. Energy recovery units that use a CEMS to demonstrate initial and continuing compliance according to the procedures in §60.2165(n) are not required to install a continuous opacity monitoring system and must perform the annual performance tests for the opacity consistent with §60.2145(f). (1) Install, operate, and maintain each continuous opacity monitoring system according to performance specification 1 of 40 CFR part 60, appendix B. (2) Conduct a performance evaluation of each continuous opacity monitoring system according to the requirements in §60.13 and according to PS-1 of 40 CFR part 60, appendix B.Page 354 of 526

(3) As specified in §60.13(e)(1), each continuous opacity monitoring system must complete a minimum of one cycle of sampling and analyzing for each successive 10-second period and one cycle of data recording for each successive 6-minute period. (4) Reduce the continuous opacity monitoring system data as specified in §60.13(h)(1). (5) Determine and record all the 6-minute averages (and 1- hour block averages as applicable) collected. (n) For energy recovery units with annual average heat input rates greater than 250 MMBtu/hr and waste-burning kilns, in place of particulate matter testing with EPA Method 5 at 40 CFR part 60, appendix A-3, an owner or operator may install, calibrate, maintain, and operate a CEMS for monitoring particulate matter emissions discharged to the atmosphere and record the output of the system. The owner or operator of an affected facility who continuously monitors particulate matter emissions instead of conducting performance testing using EPA Method 5 at 40 CFR part 60, appendix A-3 must or particulate matter CPMS according to paragraph (r) of this section, install, calibrate, maintain and operate a CEMS and must comply with the requirements specified in paragraphs (n)(1) through (n)(13) of

this section. (1) Notify the Administrator 1 month before starting use of the system.Page 355 of 526

(2) Notify the Administrator 1 month before stopping use of the system. (3) The monitor must be installed, evaluated, and operated in accordance with the requirements of performance specification 11 of appendix B of this part and quality assurance requirements of procedure two of appendix F of this part and §60.13. Use Method 5 or Method 5I of Appendix A of this part for the PM CEMS correlation testing. (4) The initial performance evaluation must be completed no later than 180 days after the date of initial startup of the affected facility, as specified under §60.2125 or within 180 days of notification to the Administrator of use of the continuous monitoring system if the owner or operator was previously determining compliance by Method 5 performance tests,

whichever is later. (5) The owner or operator of an affected facility may request that compliance with the particulate matter emission limit be determined using carbon dioxide measurements corrected to an equivalent of 7 percent oxygen. The relationship between oxygen and carbon dioxide levels for the affected facility must be established according to the procedures and methods specified in §60.2145(s)(5)(i) through (s)(5)(iv). (6) The owner or operator of an affected facility must conduct an initial performance test for particulate matterPage 356 of 526

emissions as required under §60.2125. Compliance with the particulate matter emission limit, if PM CEMS are elected for demonstrating compliance, must be determined by using the CEMS specified in paragraph (n) of this section to measure particulate matter. You must calculate a 30-day rolling average of 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-7. (7) Compliance with the particulate matter emission limit must be determined based on the 30-day rolling average calculated using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-7 from the 1- hour arithmetic average CEMS outlet data. (8) At a minimum, valid continuous monitoring system hourly averages must be obtained as specified in §60.2170(e). (9) The 1-hour arithmetic averages required under paragraph (n)(7) of this section must be expressed in milligrams per dry standard cubic meter corrected to 7 percent oxygen (dry basis) and must be used to calculate the 30-day rolling average emission concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hourPage 357 of 526

arithmetic averages must be calculated using the data points required under §60.13(e)(2). (10) All valid CEMS data must be used in calculating average emission concentrations even if the minimum CEMS data requirements of paragraph (n)(8) of this section are not met. (11) The CEMS must be operated according to performance specification 11 in appendix B of this part. (12) During each relative accuracy test run of the CEMS required by performance specification 11 in appendix B of this part, particulate matter and oxygen (or carbon dioxide) data must be collected concurrently (or within a 30- to 60-minute period) by both the continuous emissions monitors and the following test methods. (i) For particulate matter, EPA Reference Method 5 must be

used. (ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B, as applicable, must be used. (13) Quarterly accuracy determinations and daily calibration drift tests must be performed in accordance with procedure 2 in appendix F of this part. (o) To demonstrate continuous compliance with the carbon monoxide emissions limit, you may elect to use a continuous automated sampling system.Page 358 of 526

(1) Install, calibrate, maintain, and operate a CEMS for measuring carbon monoxide emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 4B of appendix B of this part, the quality assurance procedure 1 of appendix F of this part and the procedures under §60.13 must be followed for installation, evaluation, and operation of the CEMS. (2) Following the date that the initial performance test for carbon monoxide is completed or is required to be completed under §60.2140, compliance with the carbon monoxide emission limit may be determined based on the 30-day rolling average of the hourly arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, using CEMS outlet data. Except for CEMS data during startup and shutdown, as defined in this subpart, the 1-hour arithmetic averages must be expressed in parts per million corrected to 7 percent oxygen (dry basis) and used to calculate the 30-day rolling average emission concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under §60.13(e)(2). (p) The owner/operator of an affected source with a bypass stack shall install, calibrate (to manufacturers’Page 359 of 526

specifications), maintain, and operate a device or method for measuring the use of the bypass stack including date, time and

duration. (q) For energy recovery units with a design heat input capacity of 100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, you must install, operate, and maintain a oxygen analyzer system as defined in §60.2265 according to the procedures in paragraphs (q)(1) through (4) of this section. (1) The oxygen analyzer system must be installed by the initial performance test date specified in §60.2675. (2) You must operate the oxygen trim system within compliance with paragraph (q)(3) of this section at all times. (3) You must maintain the oxygen level such that the 30-day rolling average that is established as the operating limit for oxygen according to paragraph (q)(4) of this section is not below the lowest hourly average oxygen concentration measured during the most recent CO performance test. (4) You must calculate and record a 30-day rolling average oxygen concentration using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 of Appendix A-7 of this part. (r) For energy recovery units with annual average heatinput rates greater than or equal to 250 MMBtu/hour and wasteburning kilns, you must install, calibrate, maintain, and operate a PM CPMS and record the output of the system asPage 360 of 526

specified in paragraphs (r)(1) through (7) of this section. If you elect to use a particulate matter CEMS as specified in paragraph (n) of this section, you are not required to use a PM CPMS to monitor particulate matter emissions. For other energy recovery units, you may elect to use PM CPMS operated in

accordance with this section. PM CPMS are suitable in lieu of using other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure) (1) Install, calibrate, operate, and maintain your PM CPMS according to the procedures in your approved site-specific monitoring plan developed in accordance with §60.2145(l) and (r)(1)(i) through (iii) of this section. (i) The operating principle of the PM CPMS must be based on in-stack or extractive light scatter, light scintillation, beta attenuation, or mass accumulation detection of the exhaust gas or representative sample. The reportable measurement output from the PM CPMS may be expressed as milliamps, stack concentration, or other raw data signal. (ii) The PM CPMS must have a cycle time (i.e., period required to complete sampling, measurement, and reporting for each measurement) no longer than 60 minutes. (iii) The PM CPMS must be capable of detecting and responding to particulate matter concentrations of no greater than 0.5 mg/actual cubic meter.Page 361 of 526

(2) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, you must: (i) Record all hourly average output values (e.g., milliamps, stack concentration, or other raw data signal) from the PM CPMS for the periods corresponding to the test runs (e.g., three 1-hour average PM CPMS output values for three 1- hour test runs), and (ii) Determine your operating limit as the highest 1-hour average PM CPMS output value recorded during the performance test. You must verify an existing or establish a new operating limit after each repeated performance test. (3) Collect PM CPMS hourly average output data for all energy recovery unit or waste-burning kiln operating hours. Express the PM CPMS output as millamps, PM concentration, or other raw data signal value. (4) Calculate the arithmetic 30-day rolling average of all of the hourly average PM CPMS output collected during all energy recovery unit or waste-burning kiln operating hours data (e.g., milliamps, PM concentration, raw data signal). (5) You must collect data using the PM CPMS at all times the energy recovery unit or waste-burning kiln is operating and at the intervals specified in paragraph (r)(1)(ii) of this section, except for periods of monitoring system malfunctions,Page 362 of 526

repairs associated with monitoring system malfunctions, required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments), and any scheduled maintenance as defined in your site-specific monitoring plan. (6) You must use all the data collected during all energy recovery unit or waste-burning kiln operating hours in assessing the compliance with your operating limit except: (i) Any data collected during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or quality control activities conducted during monitoring system malfunctions are not used in calculations (report any such periods in your annual deviation report); (ii) Any data collected during periods when the monitoring system is out of control as specified in your site-specific monitoring plan, repairs associated with periods when the monitoring system is out of control, or required monitoring system quality assurance or quality control activities conducted during out-of-control periods are not used in calculations (report emissions or operating levels and report any such periods in your annual deviation report); (iii) Any PM CPMS data recorded during periods of CEMS data during startup and shutdown, as defined in this subpart.Page 363 of 526

(7) You must record and make available upon request results of PM CPMS system performance audits, as well as the dates and duration of periods from when the PM CPMS is out of control until completion of the corrective actions necessary to return the PM CPMS to operation consistent with your site-specific monitoring plan. (s) If you use a dry scrubber to comply with the emission limits of this subpart, you must monitor the injection rate of each sorbent and maintain the 3-hour block averages at or above the operating limits established during the hydrogen chloride performance test.

26. Section 60.2170 is revised to read as follows: §60.2170 Is there a minimum amount of monitoring data I must

obtain? For each continuous monitoring system required or optionally allowed under §60.2165, you must collect data according to this section: (a) You must operate the monitoring system and collect data at all required intervals at all times compliance is requiredexcept for periods of monitoring system malfunctions or out-ofcontrol periods, repairs associated with monitoring system malfunctions or out-of-control periods (as specified in 60.2210(o) of this part), and required monitoring system quality assurance or quality control activities (including, asPage 364 of 526

applicable, calibration checks and required zero and span adjustments). A monitoring system malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring system to provide valid data. Monitoring system failures that are caused in part by poor maintenance or careless operation are not malfunctions. You are required to effect monitoring systemrepairs in response to monitoring system malfunctions or out-ofcontrol periods and to return the monitoring system to operation as expeditiously as practicable. (b) You may not use data recorded during monitoring system malfunctions or out-of-control periods, repairs associated with monitoring system malfunctions or out-of-control periods, or required monitoring system quality assurance or control activities in calculations used to report emissions or operating levels. You must use all the data collected during all other periods in assessing the operation of the control device and associated control system. (c) Except for periods of monitoring system malfunctions or out-of-control periods, repairs associated with monitoring system malfunctions or out-of-control periods, and required monitoring system quality assurance or quality control activities including, as applicable, calibration checks and required zero and span adjustments, failure to collect required data is a deviation of the monitoring requirements.Page 365 of 526

27. Section 60.2175 is amended by: a. Revising the introductory text. b. Revising paragraphs (b)(5) and (e). c. Removing and reserving paragraphs (c) and (d). d. Adding paragraphs (o) through (v). §60.2175 What records must I keep? You must maintain the items (as applicable) as specified in paragraphs (a), (b), and (e) through (u) of this section for a period of at least 5 years:

* * * * * (b) * * * (5) For affected CISWI units that establish operating limits for controls other than wet scrubbers under §60.2110(d) through (g) or §60.2115, you must maintain data collected for all operating parameters used to determine compliance with the operating limits.

* * * * * (c) [Reserved] (d) [Reserved] (e) Identification of calendar dates and times for which data show a deviation from the operating limits in table 2 of this subpart or a deviation from other operating limits established under §60.2110(d) through (g) or §60.2115 with aPage 366 of 526

description of the deviations, reasons for such deviations, and a description of corrective actions taken.

* * * * * (o) Maintain records of the annual air pollution control device inspections that are required for each CISWI unit subject to the emissions limits in table 1 of this subpart or tables 5 through 8 of this subpart, any required maintenance, and any repairs not completed within 10 days of an inspection or the timeframe established by the state regulatory agency. (p) For continuously monitored pollutants or parameters, you must document and keep a record of the following parameters measured using continuous monitoring systems. (1) All 6-minute average levels of opacity. (2) All 1-hour average concentrations of sulfur dioxide

emissions. (3) All 1-hour average concentrations of nitrogen oxides

emissions. (4) All 1-hour average concentrations of carbon monoxide emissions. You must indicate which data are CEMS data during startup and shutdown. (5) All 1-hour average concentrations of particulate matter

emissions. (6) All 1-hour average concentrations of mercury emissions.Page 367 of 526

(7) All 1-hour average concentrations of hydrogen chloride

emissions. (8) All 1-hour average percent oxygen concentrations. (9) All 1-hour average PM CPMS readings or particulate matter continuous emissions monitor outputs. (q) Records indicating use of the bypass stack, including dates, times, and durations. (r) If you choose to stack test less frequently than annually, consistent with §60.2155(a) through (c), you must keep annual records that document that your emissions in the previous stack test(s) were less than 75 percent of the applicable emission limit and document that there was no change in source operations including fuel composition and operation of air pollution control equipment that would cause emissions of the relevant pollutant to increase within the past year. (s) Records of the occurrence and duration of each malfunction of operation (i.e., process equipment) or the air pollution control and monitoring equipment. (t) Records of all required maintenance performed on the air pollution control and monitoring equipment. (u) Records of actions taken during periods of malfunction to minimize emissions in accordance with §60.11(d), including corrective actions to restore malfunctioning process and airPage 368 of 526

pollution control and monitoring equipment to its normal or usual manner of operation. (v) For operating units that combust non-hazardous secondary materials that have been determined not to be solid waste pursuant to §241.3(b)(1) of this chapter, you must keep a record which documents how the secondary material meets each of the legitimacy criteria under §241.3(d)(1). If you combust a fuel that has been processed from a discarded non-hazardous secondary material pursuant to §241.3(b)(4) of this chapter, you must keep records as to how the operations that produced the fuel satisfies the definition of processing in §241.2 and each of the legitimacy criteria of §241.3(d)(1) of this chapter. If the fuel received a non-waste determination pursuant to the petition process submitted under §241.3(c) of this chapter, you must keep a record that documents how the fuel satisfies the requirements of the petition process. For operating units that combust non-hazardous secondary materials as fuel per §241.4, you must keep records documenting that the material is a listed non-waste under §241.4(a).

* * * * *

28. Section 60.2210 is amended by revising paragraph (e) and adding paragraphs (k) through (p) to read as follows: §60.2210 What information must I include in my annual report?

* * * * *Page 369 of 526

(e) If no deviation from any emission limitation or operating limit that applies to you has been reported, a

statement that there was no deviation from the emission limitations or operating limits during the reporting period.

* * * * * (k) If you had a malfunction during the reporting period, the compliance report must include the number, duration, and a brief description for each type of malfunction that occurred during the reporting period and that caused or may have caused any applicable emission limitation to be exceeded. The report must also include a description of actions taken by an owner or operator during a malfunction of an affected source to minimize emissions in accordance with §60.11(d), including actions taken

to correct a malfunction. (l) For each deviation from an emission or operating limitation that occurs for a CISWI unit for which you are not using a continuous monitoring system to comply with the emission or operating limitations in this subpart, the annual report must contain the following information. (1) The total operating time of the CISWI unit at which the deviation occurred during the reporting period. (2) Information on the number, duration, and cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken.Page 370 of 526

(m) If there were periods during which the continuous monitoring system, including the CEMS, was out of control as specified in paragraph (o) of this section, the annual report must contain the following information for each deviation from an emission or operating limitation occurring for a CISWI unit for which you are using a continuous monitoring system to comply with the emission and operating limitations in this subpart. (1) The date and time that each malfunction started and stopped. (2) The date, time, and duration that each CMS was inoperative, except for zero (low-level) and high-level checks. (3) The date, time, and duration that each continuous monitoring system was out-of-control, including start and end dates and hours and descriptions of corrective actions taken. (4) The date and time that each deviation started and stopped, and whether each deviation occurred during a period of malfunction or during another period. (5) A summary of the total duration of the deviation during the reporting period, and the total duration as a percent of the total source operating time during that reporting period. (6) A breakdown of the total duration of the deviations during the reporting period into those that are due to control equipment problems, process problems, other known causes, and

other unknown causes.Page 371 of 526

(7) A summary of the total duration of continuous monitoring system downtime during the reporting period, and the total duration of continuous monitoring system downtime as a percent of the total operating time of the CISWI unit at which the continuous monitoring system downtime occurred during that reporting period. (8) An identification of each parameter and pollutant that

was monitored at the CISWI unit. (9) A brief description of the CISWI unit. (10) A brief description of the continuous monitoring system. (11) The date of the latest continuous monitoring system

certification or audit. (12) A description of any changes in continuous monitoring system, processes, or controls since the last reporting period. (n) If there were periods during which the continuous monitoring system, including the CEMS, was not out of control as specified in paragraph (o) of this section, a statement that there were not periods during which the continuous monitoring system was out of control during the reporting period. (o) A continuous monitoring system is out of control in accordance with the procedure in 40 CFR part 60, appendix F of this part, as if any of the following occur.Page 372 of 526

(1) The zero (low-level), mid-level (if applicable), or high-level calibration drift exceeds two times the applicable calibration drift specification in the applicable performance specification or in the relevant standard. (2) The continuous monitoring system fails a performance test audit (e.g., cylinder gas audit), relative accuracy audit, relative accuracy test audit, or linearity test audit. (3) The continuous opacity monitoring system calibration drift exceeds two times the limit in the applicable performance specification in the relevant standard. (p) For energy recovery units, include the annual heat input and average annual heat input rate of all fuels being burned in the unit to verify which subcategory of energy recovery unit applies.

29. Section 60.2220 is amended by revising paragraph (c) and removing paragraphs (e) and (f) to read as follows: §60.2220 What must I include in the deviation report?

* * * * * (c) Durations and causes of the following: (1) Each deviation from emission limitations or operating limits and your corrective actions. (2) Bypass events and your corrective actions.

* * * * *

30. Section 60.2230 is revised to read as follows:Page 373 of 526

§60.2230 Are there any other notifications or reports that I

must submit? (a) Yes. You must submit notifications as provided by §60.7. (b) If you cease combusting solid waste but continue to operate, you must provide 30 days prior notice of the effective date of the waste-to-fuel switch, consistent with §60.2145(a). The notification must identify: (1) The name of the owner or operator of the CISWI unit, the location of the source, the emissions unit(s) that will cease burning solid waste, and the date of the notice; (2) The currently applicable subcategory under this subpart, and any 40 CFR part 63 subpart and subcategory that will be applicable after you cease combusting solid waste; (3) The fuel(s), non-waste material(s) and solid waste(s) the CISWI unit is currently combusting and has combusted over the past 6 months, and the fuel(s) or non-waste materials the unit will commence combusting; (4) The date on which you became subject to the currently applicable emission limits; (5) The date upon which you will cease combusting solid waste, and the date (if different) that you intend for any new requirements to become applicable (i.e., the effective date ofPage 374 of 526

the waste-to-fuel switch), consistent with paragraphs (2) and (3)) of this section.

31. Section 60.2235 is revised to read as follows: §60.2235 In what form can I submit my reports? (a) Submit initial, annual, and deviation reports electronically or in paper format, postmarked on or before the

submittal due dates. (b)(1) Within 60 days after the date of completing each performance test as required by this subpart, you must submit the results of the performance tests required by this subpart to EPA’s WebFIRE database by using the Compliance and Emissions Data Reporting Interface (CEDRI) that is accessed through EPA’s Central Data Exchange (CDX)(www.epa.gov/cdx). Performance test data must be submitted in the file format generated through use of EPA’s Electronic Reporting Tool (ERT) (see http://www.epa.gov/ttn/chief/ert/index.html). Only data collected using test methods on the ERT website are subject to this requirement for submitting reports electronically to WebFIRE. Owners or operators who claim that some of the information being submitted for performance tests is confidential business information (CBI) must submit a complete ERT file including information claimed to be CBI on a compact disk, flash drives, or other commonly used electronic storage media to EPA. The electronic media must be clearly marked as CBIPage 375 of 526

and mailed to U.S. EPA/OAPQS/CORE CBI Office, Attention: WebFIRE Administrator, MD C404-02, 4930 Old Page Rd., Durham, NC 27703.

The same ERT file with the CBI omitted must be submitted to EPA via CDX as described earlier in this paragraph. At the discretion of the delegated authority, you must also submit these reports, including the confidential business information, to the delegated authority in the format specified by the delegated authority. For any performance test conducted using test methods that are not listed on the ERT website, the owner or operator shall submit the reports of the performance test in paper submissions to the Administrator. (2) Within 60 days after the date of completing each CEMS performance evaluation test, as defined in this subpart and required by this subpart, you must submit the relative accuracy test audit (RATA) data electronically into EPA’s Central Data Exchange by using CEDRI as mentioned in paragraph (b)(1) of this section. Only RATA pollutants that can be documented with the ERT (as listed on the ERT website) are subject to this requirement. For any performance evaluations with no corresponding RATA pollutants listed on the ERT website, the owner or operator shall submit the results of the performance evaluation in paper submissions to the Administrator.

* * * * *Page 376 of 526

32. Section 60.2242 is revised to read as follows: §60.2242 Am I required to apply for and obtain a Title V operating permit for my unit? Yes. Each CISWI unit and air curtain incinerator subject to standards under this subpart must operate pursuant to a permit issued under section 129(e) and Title V of the Clean Air Act.

* * * * *

33. Section 60.2250 is revised to read as follows: §60.2250 What are the emission limitations for air curtain

incinerators? Within 60 days after your air curtain incinerator reaches the charge rate at which it will operate, but no later than 180 days after its initial startup, you must meet the two limitations specified in paragraphs (a) and (b) of this section. (a) Maintain opacity to less than or equal to 10 percent opacity (as determined by the average of three 1-hour blocks consisting of ten 6-minute average opacity values), except as described in paragraph (b) of this section. (b) Maintain opacity to less than or equal to 35 percent opacity (as determined by the average of three 1-hour blocks consisting of ten 6-minute average opacity values) during the startup period that is within the first 30 minutes of operation.

34. Section 60.2260 is amended by revising paragraph (d)

to read as follows:Page 377 of 526

§60.2260 What are the recordkeeping and reporting requirements

for air curtain incinerators?

* * * * * (d) You must submit the results (as determined by the average of three 1-hour blocks consisting of ten 6-minute average opacity values) of the initial opacity tests no later than 60 days following the initial test. Submit annual opacity test results within 12 months following the previous report.

* * * * *

35. Section 60.2265 is amended by: a. Adding definitions for “30-day rolling average”, “Affirmative defense”, “Annual heat input”, “Average annual heat input rate”, “Burn-off oven”, “Bypass stack”, “CEMS data during startup and shutdown”, “Chemical recovery unit”, “Continuous monitoring system”, “Dry scrubber”, “Energy recovery unit”, “Energy recovery unit designed to burn biomass (Biomass)”, “Energy recovery unit designed to burn coal (Coal)”, “Energy recovery unit designed to burn solid materials (Solids)”, “Foundry sand thermal reclamation unit”, “Incinerator”, “Kiln”, “Laboratory analysis unit”, “Minimum voltage or amperage”, “Opacity”, “Operating day”, “Oxygen analyzer system”, “Oxygen trim system”, “Performance evaluation”, “Performance test”, “Process change”, “Raw mill”, “Responsible official”, “Small remote incinerator”, “Soil treatment unit”, “Solid wastePage 378 of 526

incineration unit,” “Space heater” and “Waste-burning kiln”, in alphabetical order. b. Revising the definition for “Commercial and industrial solid waste incineration (CISWI) unit”, “Cyclonic burn barrel”, “dioxin/furans”, “Modification or modified CISWI unit”, “Solid waste”, and “Wet scrubber”. c. Removing paragraph (3) of the definition for

“Deviation.” d. Removing the definition for “Agricultural waste”, and

“Commercial or industrial waste.” §60.2265 What definitions must I know?

* * * * * 30-day rolling average means the arithmetic mean of the previous 720 hours of valid operating data. Valid data excludes periods when this unit is not operating. The 720 hours should be consecutive, but not necessarily continuous if operations are

intermittent.

Affirmative defense means, in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding. Annual heat input means the heat input for the 12 months preceding the compliance demonstration.Page 379 of 526

Average annual heat input rate means annual heat input divided by the hours of operation for the 12 months preceding the compliance demonstration.

* * * * *

Burn-off oven means any rack reclamation unit, part reclamation unit, or drum reclamation unit. A burn-off oven is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. Bypass stack means a device used for discharging combustion gases to avoid severe damage to the air pollution control device or other equipment.

* * * * * CEMS data during startup and shutdown means CEMS data collected during the first hours of a CISWI unit startup from a

cold start until waste is fed to the unit and the hours of operation following the cessation of waste material being fed to CISWI unit during a unit shutdown. For each startup event, the length of time that CEMS data may be claimed as being CEMS data during startup must be 48 operating hours or less. For each shutdown event, the length of time that CEMS data may be claimed as being CEMS data during shutdown must be 24 operating hours or

less. Chemical recovery unit means combustion units burning materials to recover chemical constituents or to producePage 380 of 526

chemical compounds where there is an existing commercial market for such recovered chemical constituents or compounds. A chemical recovery unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. The following seven types of units are considered chemical recovery units: (1) Units burning only pulping liquors (i.e., black liquor) that are reclaimed in a pulping liquor recovery process and reused in the pulping process. (2) Units burning only spent sulfuric acid used to produce virgin sulfuric acid. (3) Units burning only wood or coal feedstock for the production of charcoal. (4) Units burning only manufacturing byproduct streams/residue containing catalyst metals that are reclaimed and reused as catalysts or used to produce commercial grade catalysts. (5) Units burning only coke to produce purified carbon monoxide that is used as an intermediate in the production of other chemical compounds. (6) Units burning only hydrocarbon liquids or solids to produce hydrogen, carbon monoxide, synthesis gas, or other gases for use in other manufacturing processes. (7) Units burning only photographic film to recover silver.Page 381 of 526

* * * * * Commercial and industrial solid waste incineration (CISWI)

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

unit is a CISWI unit. While not all CISWI units will include all of the following components, a CISWI unit includes, but is not limited to, the solid waste feed system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The CISWI unit does not include air pollution control equipment or the stack. The CISWI unit boundary starts at the solid waste hopper (if applicable) and extends through two areas: The combustion unit flue gas system, which ends immediately after the last combustion chamber or after the waste heat recovery equipment, if any; and the combustion unit bottom ash system, which ends at the truck loading station or similar equipment that transfers the ash to final disposal. The CISWI unit includes all ash handling systems connected to the bottom ash handling system.

* * * * *Page 382 of 526

Continuous monitoring system (CMS) means the total equipment, required under the emission monitoring sections in applicable subparts, used to sample and condition (if applicable), to analyze, and to provide a permanent record of emissions or process parameters. A particulate matter continuous parameter monitoring system (PM CPMS) is a type of CMS.

* * * * * Cyclonic burn barrel means a combustion device for waste materials that is attached to a 55 gallon, openhead drum. The device consists of a lid, which fits onto and encloses the drum,

and a blower that forces combustion air into the drum in a cyclonic manner to enhance the mixing of waste material and air. A cyclonic burn barrel is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.

Deviation means any instance in which an affected source subject to this subpart, or an owner or operator of such a

source: (1) Fails to meet any requirement or obligation established by this subpart, including but not limited to any emission limitation, operating limit, or operator qualification and accessibility requirements. (2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that isPage 383 of 526

included in the operating permit for any affected source required to obtain such a permit. Dioxins/furans means tetra- through octa-chlorinated dibenzo-p-dioxins and dibenzofurans.

* * * * * Dry scrubber means an add-on air pollution control system that injects dry alkaline sorbent (dry injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gas in the exhaust stream forming a dry powder material. Sorbent injection systems in fluidized bed boilers and process heaters are included in this definition. A dry scrubber is a dry control system.

* * * * * Energy recovery unit means a combustion unit combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241) for energy recovery. Energy recovery units include units that would be considered boilers and process heaters if they did not combust solid waste. Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that burns solid waste, biomass, and non-coal solid materials but less than 10 percent coal, on a heat input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuels.Page 384 of 526

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that burns solid waste and at least 10 percent coal on a heat input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuels. Energy recovery unit designed to burn liquid waste materials and gas (Liquid/gas) means an energy recovery unit that burns a liquid waste with liquid or gaseous fuels not combined with any solid fuel or waste materials. Energy recovery unit designed to burn solid materials (Solids) includes energy recovery units designed to burn coal and energy recovery units designed to burn biomass.

* * * * * Foundry sand thermal reclamation unit means a type of part reclamation unit that removes coatings that are on foundry sand. A foundry sand thermal reclamation unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.

* * * * *

Incinerator means any furnace used in the process of combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241) for the purpose of reducing the volume of the waste by removing combustible matter. Incinerator designs include single chamber and two-chamber.Page 385 of 526

Kiln means an oven or furnace, including any associated preheater or precalciner devices, used for processing a substance by burning, firing or drying. Kilns include cement kilns that produce clinker by heating limestone and other materials for subsequent production of Portland Cement. Laboratory analysis unit means units that burn samples of materials for the purpose of chemical or physical analysis. A laboratory analysis unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.

* * * * * Minimum voltage or amperage means 90 percent of the lowest test-run average voltage or amperage to the electrostatic precipitator measured during the most recent particulate matter or mercury performance test demonstrating compliance with the applicable emission limits.

Modification or modified CISWI unit means a CISWI unit that has been changed later than [THE DATE SIX MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and that

meets one of two criteria: (1) The cumulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building and installing the CISWI unit (not including the cost of land) updated to current costs (current dollars). To determine whatPage 386 of 526

systems are within the boundary of the CISWI unit used to calculate these costs, see the definition of CISWI unit. (2) Any physical change in the CISWI unit or change in the method of operating it that increases the amount of any air pollutant emitted for which section 129 or section 111 of the

Clean Air Act has established standards. Opacity means the degree to which emissions reduce the transmission of light and obscure the view of an object in the background. Operating day means a 24-hour period between 12:00 midnight and the following midnight during which any amount of solid waste is combusted at any time in the CISWI unit. Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler or process heater flue gas, boiler/process heater, firebox, or other appropriate location. This definition includes oxygen trim systems and certified oxygen CEMS. The source owner or operator is responsible to install, calibrate, maintain, and operate the oxygen analyzer system in accordance

with the manufacturer’s recommendations. Oxygen trim system means a system of monitors that is used

to maintain excess air at the desired level in a combustion device. A typical system consists of a flue gas oxygen and/orPage 387 of 526

carbon monoxide monitor that automatically provides a feedback signal to the combustion air controller.

* * * * *

Performance evaluation means the conduct of relative accuracy testing, calibration error testing, and other measurements used in validating the continuous monitoring system

data.

Performance test means the collection of data resulting from the execution of a test method (usually three emission test runs) used to demonstrate compliance with a relevant emission standard as specified in the performance test section of the

relevant standard. Process change means a significant permit revision, but only with respect to those pollutant-specific emission units for which the proposed permit revision is applicable, including but not limited to a change in the air pollution control devices used to comply with the emission limits for the affected CISWI unit (e.g., change in the sorbent used for activated carbon injection).

* * * * *

Raw mill means a ball or tube mill, vertical roller mill or other size reduction equipment, that is not part of an in-line kiln/raw mill, used to grind feed to the appropriate size. Moisture may be added or removed from the feed during thePage 388 of 526

grinding operation. If the raw mill is used to remove moisture from feed materials, it is also, by definition, a raw material dryer. The raw mill also includes the air separator associated

with the raw mill.

* * * * * Responsible official means one of the following: (1) For a corporation: a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either: (i) The facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or (ii) The delegation of authority to such representatives is approved in advance by the permitting authority; (2) For a partnership or sole proprietorship: a general partner or the proprietor, respectively; (3) For a municipality, State, Federal, or other public agency: Either a principal executive officer or ranking elected official. For the purposes of this part, a principal executivePage 389 of 526

officer of a Federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a Regional Administrator of EPA); or (4) For affected facilities: (i) The designated representative in so far as actions, standards, requirements, or prohibitions under title IV of the Clean Air Act or the regulations promulgated thereunder are concerned; or (ii) The designated representative for any other purposes under part 60.

* * * * * Small, remote incinerator means an incinerator that combusts solid waste (as that term is defined by the Administrator in 40 CFR part 241) and combusts 3 tons per day or less solid waste and is more than 25 miles driving distance to the nearest municipal solid waste landfill.

Soil treatment unit means a unit that thermally treats petroleum-contaminated soils for the sole purpose of site remediation. A soil treatment unit may be direct-fired or indirect fired. A soil treatment unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.Page 390 of 526

Solid waste means the term solid waste as defined in 40 CFR

241.2.

Solid waste incineration unit means a distinct operating unit of any facility which combusts any solid waste (as that term is defined by the Administrator in 40 CFR part 241)

material from commercial or industrial establishments or the general public (including single and multiple residences, hotels and motels). Such term does not include incinerators or other units required to have a permit under section 3005 of the Solid Waste Disposal Act. The term "solid waste incineration unit" does not include: (A) materials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose of recovering metals; (B) qualifying small power production facilities, as defined in section 3(17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying cogeneration facilities, as defined in section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous waste (such as units which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes; or (C) air curtain incinerators provided that suchPage 391 of 526

incinerators only burn wood wastes, yard wastes, and clean lumber and that such air curtain incinerators comply with opacity limitations to be established by the Administrator by

rule. Space heater means a usually portable appliance for heating a relatively small area. A space heater is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.

* * * * * Waste-burning kiln means a kiln that is heated, in whole or in part, by combusting solid waste (as that term is defined by the Administrator pursuant to subtitle D of RCRA). Secondary

materials used in Portland cement kilns shall not be deemed to be combusted unless they are introduced into the combustion zone

in the hot end of the kiln or into the combustion zone of the precalciner or riser burner (if installed).

Wet scrubber means an add-on air pollution control device that uses an aqueous or alkaline scrubbing liquor to collect particulate matter (including nonvaporous metals and condensed organics) and/or to absorb and neutralize acid gases.

* * * * *

36. Table 1 of subpart CCCC is revised to read as follows: Table 1 to Subpart CCCC of Part 60—Emission Limitations for CISWI Units for Which Construction Is Commenced After November 30, 1999, but no later than June 4, 2010, or for WhichPage 392 of 526

Modification or Reconstruction Is Commenced on or After June 1, 2001, but no later than [THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ].

For the air pollutant You must

meet this emission limitation a Using this averaging time And determining

compliance using this method Cadmium 0.004

milligrams per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter per run) Performance test (Method 29 at 40 CFR part60, appendix A8). Carbon Monoxide 157 parts

per million by dry volume 3- run average (1 hour

minimum sample time per run) Performance test (Method 10 at 40 CFR part60, appendix A4). Dioxin/Furan (toxic equivalency basis) 0.41

nanograms per dry standard cubic meter 3-run average

(collect a minimum volume of 4 dry standard cubic meters per run) Performance test (Method 23 of appendix A- 7 of this part).

Hydrogen Chloride 62 parts per

million by dry volume 3-run average (For

Method 26, collect a minimum volume of 120 liters per run. For Method 26A, collect a minimum volume of 1 dry standard cubic meter per run) Performance test (Method 26 or 26A at 40 CFR part 60, appendix A-8).

Lead 0.04

milligrams per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter per run) Performance test (Method 29 at 40 CFR part60, appendix A8). Mercury 0.47

milligrams per dry standard cubic meter 3-run average (For

Method 29 and ASTM D6784-02 (Reapproved 2008) b , collect a minimum volume of 1 dry standard cubic meter per run. For Performance te st (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM D6784- 02 (ReapprovedPage 393 of 526

For the air pollutant You must

meet this emission limitation a Using this averaging time And determining

compliance using this method Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A) 2008) b

.

Opacity 10 percent Three 1-hour blocks consisting of ten 6- minute averages opacity values Performance test (Method 9 at 40 CFR part60, appendix A4). Nitrogen Oxides 388 parts

per million by dry volume 3-run average (for

Method 7E, 1 hour minimum sample time per run) Performance test (Method 7 or 7E at 40 CFR part 60, appendix A-4).

. Particulate matter 70

milligrams per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter per run) Performance test (Method 5 or 29 at 40 CFR part 60, appendix A- 3 or A-8). Sulfur Dioxide 20 parts per

million by dry volume 3-run average (For

Method 6, collect a minimum volume of 20 liters per run. For Method 6C, collect sample for a minimum duration of 1 hour per run) Performance test (Method 6 or 6C at 40 CFR part 60, appendix A-4.

a All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. b Incorporated by reference, see §60.17.Page 394 of 526

37. Table 4 of subpart CCCC is amended by revising the entry for “Annual Report” and “Emission limitation or operating limit deviation report.” Table 4 to Subpart CCCC of Part 60—Summary of Reporting Requirements a Report Due date Contents Reference * * * * * * * Annual report No later than 12

months following the submission of the initial test report. Subsequent reports are to be submitted no more than 12 months following the previous report • Name and address • Statement and signature by responsible official • Date of report • Values for the operating limits • Highest recorded 3-hour average and the lowest 3- hour average, as applicable, for each operating parameter recorded for the calendar year being reported • If a performance test was conducted during the reporting period, the results of the test • If a performance test was not conducted during the reporting period, a statement that the requirements of §60.2155(a) were met • Documentation of perio ds when all qualified CISWI unit operators were unavailable for more than 8 hours but less than 2 weeks • If you are conducting performance tests once every 3 years consistent with §60.2155(a), the date of the last 2 performance tests, a comparison of the emission level you §§60.2205 and 60.2210Page 395 of 526

Report Due date Contents Reference achieved in the last 2 performance tests to the 75 percent emission limit threshold required in §60.2155(a) and a statement as to whether there have been any operational changes since the last performance test that could increase emissions.

* * * * * Emission limitation or operating limit deviation report By August 1 of that

year for data collected during the first half of the calendar year. By February 1 of the following year for data collected during the second half of the calendar year • Dates and times of deviation • Averaged and recorded data for those dates • Duration and causes of each deviation and the corrective actions taken • Copy of operating limit monitoring data and any test reports • Dates, times and causes for monitor downtime incidents §60.2215 and 60.2220

* * * * *

a This table is only a summary, see the referenced se ctions of the rule for the complete requirements. 38. Table 5 to Subpart CCCC is added to read as follows: Table 5 to Subpart CCCC of Part 60—Emission Limitations for Incinerators That Commenced Construction After June 4, 2010, Or That Commenced Reconstruction or Modification After [THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ]

For the air pollutant You must meet

this emission limitation a Using this

averaging time And determining compliance using this method Cadmium 0.0023

milligrams per dry standard 3-run average

(collect a minimum volume of 4 dry Performance test (Method 29 at 40 CFR part 60,Page 396 of 526

For the air pollutant You must meet

this emission limitation a Using this

averaging time And determining compliance using this method cubic meter standard cubic

meter per run) appendix A-8 of this part). Use ICPMS for the analytical finish. Carbon Monoxide 17 parts per

million by dry volume 3-run average (1

hour minimum sample time per run) Performance test (Method 10 at 40 CFR part 60, appendix A-4). Dioxin/furan (Total Mass Basis) 0.58 nanograms

per dry standard cubic meter c 3-run average

(collect a minimum volume of 4 dry standard cubic meter per run) Performance test (Method 23 at 40 CFR part60,appendix A7). Dioxin/furan (toxic equivalency basis) 0.13 nanograms

per dry standard cubic meter 3-run average

(collect a minimum volume of 4 dry standard cubic meter per run) Performance test (Method 23 at 40 CFR part60,appendix A7). Hydrogen Chloride 0.091 part per

million by dry volume 3-run average (For

Method 26, collect a minimum volume of 360 liters per run. For Method 26A, collect a minimum volume of 3 dry standard cubic meter per run) Performance test (Method 26 or 26A at 40 CFR part 60, appendix A-8).

Lead 0.015

milligrams per dry standard cubic meter c 3-run average

(collect a minimum volume of 4 dry standard cubic meter per run) Performance test (Method 29 of appendix A-8 at 40 CFR part 60). Use ICPMS for the analytical finish. Mercury 0.00084

milligrams per dry standard cubic meter c 3-run average

(collect enough volume to meet a detection limit Performance test (Method 29 or 30B at 40 CFR part 60,Page 397 of 526

For the air pollutant You must meet

this emission limitation a Using this

averaging time And determining compliance using this method data quality objective of 0.03 ug/dry standard cubic meter) appendix A- 8) or ASTM D6784-02 (Reapproved 2008) b

. Nitrogen Oxides 23 parts per

million dry volume 3-run average (for

Method 7E, 1 hour minimum sample time per run) Performance test (Method 7 or 7E at 40 CFR part60, appendix A4). Particulate matter (filterable) 18 milligrams

per dry standard cubic meter 3-run average

(collect a minimum volume of 2 dry standard cubic meters per run) Performance test (Method 5 or 29 at 40 CFR part 60, appendix A- 3 or appendix A-8 at 40 CFR part 60). Sulfur dioxide 11 parts per

million dry volume 3-run average (1

hour minimum sample time per run) Performance test (Method 6 or 6C at 40 CFR part60, appendix A4. Fugitive ash Visible

emissions for no more than 5 percent of the hourly observation period Three 1-hour

observation periods Visible emission test (Method 22 at 40 CFR part60, appendix A7).

a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Limit or the toxic equivalency basis limit. b Incorporated by reference, see §60.17. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to §60.2155 if all of the other provision of §60.2155 are met. For all other pollutants that do not contain a footnote “c”, your performance tests for this pollutant for at least 2 consecutive years must show thatPage 398 of 526

your emissions are at or 75 percent of this limit in order to qualify for skip testing.

39. Table 6 to Subpart CCCC is added to read as follows: Table 6 to Subpart CCCC of Part 60—Emission Limitations for Energy Recovery Units That Commenced Construction After June 4, 2010, Or That Commenced Reconstruction or Modification After [THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ]

For the air pollutant You must meet this emission limitation a Using this averaging time And determining

compliance using this method Liquid/Gas Solids Cadmium 0.023

milligrams per dry standard cubic meter Biomass -

0.0014 milligrams per dry standard cubic meter c 3- run average

(collect a minimum volume of 4 dry standard cubic meters per run) Performance

test (Method 29 at 40 CFR part60, appendix A8). Use ICPMS for the analytical finish. Coal – 0.058 milligrams per dry standard cubic meter Carbon monoxide 35 parts

per million dry volume Biomass –

240 parts per million dry volume 3- run average

(1 hour minimum sample time per run) Performance

test (Method 10 at 40 CFR part60, appendix A4). Coal – 95 parts per million dry volume Dioxins/furans (Total Mass Basis) No Total

Mass Basis limit, must meet the toxic equivalency Biomass -

0.52 nanograms per dry standard cubic meter c 3- run average

(collect a minimum volume of 4 dry standard cubic meters) Performance

test (Method 23 at 40 CFR part60, appendix A7).Page 399 of 526

For the air pollutant You must meet this emission limitation a Using this averaging time And determining

compliance using this method basis limit below Coal – 0.51

nanograms per dry standard cubic meter c Dioxins/furans (toxic equivalency basis) 0.093

nanograms per dry standard cubic meter c Biomass -

0.076 nanograms per dry standard cubic meter c 3- run average

(collect a minimum volume of 4 dry standard cubic meters per run) Performance

test (Method 23 of appendix A- 7 of this part).

Coal - 0.075 nanograms per dry standard cubic meter c Hydrogen chloride 14 parts

per million dry volume Biomass -

0.20 parts per million dry volume 3- run average

(For Method 26, collect a minimum volume of 360 liters per run. For Method 26A, collect a minimum volume of 3 dry standard cubic meters per run) Performance

test (Method 26 or 26A at 40 CFR part 60, appendix A-8).

Coal – 21 parts per million dry volume

Lead 0.096

milligrams per dry standard cubic meter Biomass -

0.014 milligrams per dry standard cubic meter c 3- run average

(collect a minimum volume of 4 dry standard cubic meters Performance

test (Method 29 at 40 CFR part60, appendix A8). Use ICPMS for thePage 400 of 526

For the air pollutant You must meet this emission limitation a Using this averaging time And determining

compliance using this method Coal -0.013 milligrams per dry standard cubic meter c per run) analytical finish.

Mercury 0.00091

milligrams per dry standard cubic meter c Biomass -

0.0022 milligrams per dry standard cubic meter 3- run average

(collect enough volume to meet an in-stack detection limit data quality objective of 0.03 ug/dscm) Performance

test (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM D6784- 02 (Reapproved 2008) b

. Coal - 0.0028 milligrams per dry standard cubic meter

Oxides of nitrogen 76 parts

per million dry volume Biomass –

290 parts per million dry volume 3- run average

(for Method 7E, 1 hour minimum sample time per run) Performance

test (Method 7 or 7E at 40 CFR part 60, appendix A-4). Coal – 340 parts per million dry volumePage 401 of 526

For the air pollutant You must meet this emission limitation a Using this averaging time And determining

compliance using this method Particulate matter (filterable) 110

milligrams per dry standard cubic meter Biomass -

5.1 milligrams per dry standard cubic meter 3- run average

(collect a minimum volume of 1 dry standard cubic meter per run) Performance

test (Method 5 or 29 at 40 CFR part 60, appendix A- 3 or appendix A-8) if the unit has an annual average heat input rate less than 250 MMBtu/hr; or PM CPMS (as specified in §60.2145(x)) if the unit has an annual average heat input rate equal to or greater than 250 MMBtu/hr. Coal - 60 milligrams per dry standard cubic meter

Sulfur dioxide 720 parts

per million dry volume Biomass –

7.3 parts per million dry volume 3- run average

(for Method 6, collect a minimum of 60 liters, for Method 6C, 1 hour minimum sample time per run) Performance

test (Method 6 or 6C at 40 CFR part 60, appendix A-4. Coal – 650 parts per million dry volumePage 402 of 526

For the air pollutant You must meet this emission limitation a Using this averaging time And determining

compliance using this method Fugitive ash Visible

emissions for no more than 5 percent of the hourly observation period Visible

emissions for no more than 5 percent of the hourly observation period Three 1-hour

observation periods Visible

emission test (Method 22 at 40 CFR part 60, appendix A-7).

a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit. b Incorporated by reference, see §60.17. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to §60.2155 if all of the other provision of §60.2155 are met. For all other pollutants that do not contain a footnote “c”, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or 75 percent of this limit in order to qualify for skip testing.

40. Table 7 to Subpart CCCC is added to read as follows: Table 7 to Subpart CCCC of Part 60—Emission Limitations for Waste-burning Kilns That Commenced Construction After June 4, 2010, or Reconstruction or Modification After [THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ]

For the air pollutant You must meet

this emission limitation a Using this

averaging time And determining

compliance using this method Cadmium 0.0014

milligrams per dry standard cubic meter b 3- run average

(collect a minimum volume of 4 dry standard cubic meters per run) Performance test

(Method 29 at 40 CFR part 60, appendix A-8). Use ICPMS for the analytical finish.Page 403 of 526

For the air pollutant You must meet

this emission limitation a Using this

averaging time And determining

compliance using this method Carbon monoxide 90 (long kilns)

/ 190 (preheater / precalciner) parts per million dry volume 3- run average

(1 hour minimum sample time per run) Performance test

(Method 10 at 40 CFR part 60, appendix A-4).

Dioxins/furans (total mass basis) 0.51 nanograms

per dry standard cubic meter b 3- run average

(collect a minimum volume of 4 dry standard cubic meters per run) Performance test

(Method 23 at 40 CFR part 60, appendix A-7).

Dioxins/furans (toxic equivalency basis) 0.075 nanograms

per dry standard cubic meter b 3- run average

(collect a minimum volume of 4 dry standard cubic meters) Performance test

(Method 23 at 40 CFR part 60, appendix A-7).

Hydrogen chloride 3.0 parts per

million dry volume b 3- run average

(1 hour minimum sample time per run) or 30-day rolling average if HCl CEMS are used Performance test

(Method 321 at 40 CFR part 63, appendix A) or HCl CEMS if a wet scrubber or dry scrubber is not used.

Lead 0.014

milligrams per dry standard cubic meter b 3- run average

(collect a minimum volume of 4 dry standard cubic meters) Performance test

(Method 29 at 40 CFR part 60, appendix A-8). Use ICPMS for the analytical finish. Mercury 0.0037

milligrams per dry standard 30-day

rolling average Mercury CEMS or

sorbent trap monitoring systemPage 404 of 526

For the air pollutant You must meet

this emission limitation a Using this

averaging time And determining

compliance using this method cubic meter (performance specification 12A or 12B, respectively, of appendix B of this part.) Oxides of nitrogen 200 parts per

million dry volume 30-day

rolling average NOx Continuous

Emissions Monitoring System (performance specification 2 of appendix B and procedure 1 of appendix F of this part). Particulate matter (filterable) 3.2 milligrams

per dry standard cubic meter 30-day

rolling average PM CPMS (as

specified in §60.2145(x))

Sulfur dioxide 130 parts per

million dry volume 30-day

rolling average Sulfur dioxide

Continuous Emissions Monitoring System (performance specification 2 of appendix B and procedure 1 of appendix F of this part). a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. b If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to §60.2155 if all of the other provision of §60.2155 are met. For all other pollutants that do not contain a footnote “b”, your performance tests for this pollutant for at least 2 consecutive years must show thatPage 405 of 526

your emissions are at or 75 percent of this limit in order to qualify for skip testing.

41. Table 8 to Subpart CCCC is added to read as follows: Table 8 to Subpart CCCC of Part 60—Emission Limitations for Small, Remote Incinerators That Commenced Construction After June 4, 2010, Or That Commenced Reconstruction or Modification After [THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ]

For the air pollutant You must meet

this emission limitation a Using this averaging time And determining

compliance using this method Cadmium 0.61

milligrams per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter per run) Performance test (Method 29 at 40 CFR part60, appendix A8). Carbon monoxide 13 parts per

million dry volume 3-run average (1

hour minimum sample time per run) Performance test (Method 10 at 40 CFR part60, appendix A4). Dioxins/furans (total mass basis) 1,200

nanograms per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter per run) Performance test (Method 23 at 40 CFR part60, appendix A7). Dioxins/furans (toxic equivalency basis) 31 nanograms

per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter per run) Performance test (Method 23 at 40 CFR part60, appendix A7). Hydrogen chloride 200 parts per

million by dry volume 3-run average (For

Me thod 26, collect a minimum volume of 60 liters per run. For Method 26A, collect a minimum volume of 1 dry standard cubic meter per run) Performance test (Method 26 or 26A at 40 CFR part 60, appendix A-8).

Lead 0.26 3-run average PerformancePage 406 of 526

For the air pollutant You must meet

this emission limitation a Using this averaging time And determining

compliance using this method milligrams per dry standard cubic meter (collect a minimum

volume of 1 dry standard cubic) test (Method 29 at 40 CFR part60,appendix A8). Use ICPMS for the analytical finish. Mercury 0.0035

milligrams per dry standard cubic meter 3-run average (For

Method 29 and ASTM D6784- 02 (Reapproved 2008) b , collect a minimum volume of 2 dry standard cubic meters per run. For Method 30B, collect a minimum volume as specified in Method 30B at 40 CFR part 60, appendix A) Performance test (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM D6784- 02 (Reapproved 2008) b

.

Oxides of nitrogen 78 parts per

million dry volume 3-run average (for

Method 7E, 1 hour minimum sample time per run) Performance test (Method 7 or 7E at 40 CFR part 60, appendix A-4). Particulate matter (filterable) 230

milligrams per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter) Performance test (Method 5 or 29 at 40 CFR part 60, appendix A- 3 or appendix A-8). Sulfur dioxide 1.2 parts per

million dry volume 3-run average (1

hour minimum sample time per run) Performance test (Method 6 or 6c at 40 CFR part 60, appendix A-4. Fugitive ash Visible

emissions for no more than 5 percent of Three 1-hour

observation periods Visible emission test (Method 22 at 40 CFR part 60,Page 407 of 526

For the air pollutant You must meet

this emission limitation a Using this averaging time And determining

compliance using this method the hourly observation period appendix A-7).

a All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. b Incorporated by reference, see §60.17.

42. Revise the heading for subpart DDDD to read as

follows: Subpart DDDD-Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units 43. Section 60.2500 is revised to read as follows: §60.2500 What is the purpose of this subpart? This subpart establishes emission guidelines and compliance

schedules for the control of emissions from commercial and industrial solid waste incineration (CISWI) units. The pollutants addressed by these emission guidelines are listed in table 2 of this subpart and tables 6 through 9 of this subpart. These emission guidelines are developed in accordance with sections 111(d) and 129 of the Clean Air Act and subpart B of this part.

44. Section 60.2505 is revised to read as follows: §60.2505 Am I affected by this subpart?Page 408 of 526

(a) If you are the Administrator of an air quality program in a state or United States protectorate with one or more existing CISWI units that meets the criteria in paragraphs (b) through (d) of this section, you must submit a state plan to EPA that implements the emission guidelines contained in this subpart. (b) You must submit a state plan to EPA by December 3, 2001

for incinerator units that commenced construction on or before November 30, 1999 and that were not modified or reconstructed after June 1, 2001. (c) You must submit a state plan that meets the requirements of this subpart and contains the more stringent emission limit for the respective pollutant in table 6 of this subpart or table 1 of subpart CCCC of this part to EPA by [THE

DATE 1 YEAR AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL

REGISTER ] for incinerators that commenced construction after November 30, 1999, but no later than June 4, 2010, or commenced modification or reconstruction after June 1, 2001 but no later than [THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN

THE FEDERAL REGISTER ]. (d) You must submit a state plan to EPA that meets the requirements of this subpart and contains the emission limits in tables 7 through 9 of this subpart by [INSERT THE DATE 1 YEAR

AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ] forPage 409 of 526

CISWI units other than incinerator units that commenced construction on or before June 4, 2010.

45. Section 60.2525 is revised to read as follows: §60.2525 What if my state plan is not approvable? (a) If you do not submit an approvable state plan (or a negative declaration letter) by December 2, 2002, EPA will develop a federal plan according to §60.27 to implement the emission guidelines contained in this subpart. Owners and operators of CISWI units not covered by an approved state plan must comply with the federal plan. The federal plan is an interim action and will be automatically withdrawn when your state plan is approved. (b) If you do not submit an approvable state plan (or a negative declaration letter) to EPA that meets the requirements of this subpart and contains the emission limits in tables 6 through 9 of this subpart for CISWI units that commenced construction on or before June 4, 2010, then EPA will develop a federal plan according to §60.27 to implement the emission guidelines contained in this subpart. Owners and operators of CISWI units not covered by an approved state plan must comply with the federal plan. The federal plan is an interim action and will be automatically withdrawn when your state plan is approved.

46. Section 60.2535 is amended by:Page 410 of 526

a. Revising paragraph (a) introductory text. b. Redesignating paragraph (b) as paragraph (d). c. Adding paragraphs (b) and (c). §60.2535 What compliance schedule must I include in my state plan? (a) For CISWI units in the incinerator subcategory that commenced construction on or before November 30, 1999, your state plan must include compliance schedules that require CISWI units to achieve final compliance as expeditiously as practicable after approval of the state plan but not later than the earlier of the two dates specified in paragraphs (a)(1) and (2) of this section.

* * * * * (b) For CISWI units in the incinerator subcategory that commenced construction after November 30, 1999, but on or before June 4, 2010, and for CISWI units in the energy recovery units and waste-burning kilns subcategories that commenced construction before June 4, 2010, your state plan must include compliance schedules that require CISWI units to achieve final compliance as expeditiously as practicable after approval of the state plan but not later than the earlier of the two dates specified in paragraphs (b)(1) and (b)(2) of this section. (1) [INSERT THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL

RULE IN THE FEDERAL REGISTER ].Page 411 of 526

(2) 3 years after the effective date of state plan approval. (c) For CISWI units in the small remote incinerator subcategory that commenced construction after November 30, 1999, but on or before June 4, 2010, your state plan must include compliance schedules that require small remote incinerator CISWI units to achieve final compliance as expeditiously as practicable after approval of the state plan but not later than the earlier of the two dates specified in paragraphs (c)(1) and (c)(2) of this section. (1) [INSERT THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL

RULE IN THE FEDERAL REGISTER ]. (2) 3 years after the effective date of state plan approval.

* * * * *

47. Section 60.2540 is amended by revising paragraph (a)

to read as follows: §60.2540 Are there any state plan requirements for this subpart that apply instead of the requirements specified in subpart B?

* * * * * (a) State plans developed to implement this subpart must be as protective as the emission guidelines contained in this subpart. State plans must require all CISWI units to comply by the dates specified in §60.2535. This applies instead of thePage 412 of 526

option for case-by-case less stringent emission standards and longer compliance schedules in §60.24(f).

* * * * *

48. Section 60.2541 is added to read as follows: §60.2541 In lieu of a state plan submittal, are there other acceptable option(s) for a state to meet its Clean Air Act section 111(d)/129(b)(2) obligations? Yes, a state may meet its Clean Air Act section 111(d)/129 obligations by submitting an acceptable written request for delegation of the federal plan that meets the requirements of this section. This is the only other option for a state to meet its Clean Air Act section 111(d)/129 obligations. (a) An acceptable federal plan delegation request must include the following: (1) A demonstration of adequate resources and legal authority to administer and enforce the federal plan. (2) The items under §60.2515(a)(1), (2) and (7). (3) Certification that the hearing on the state delegation request, similar to the hearing for a state plan submittal, was held, a list of witnesses and their organizational affiliations, if any, appearing at the hearing, and a brief written summary of each presentation or written submission. (4) A commitment to enter into a Memorandum of Agreement with the Regional Administrator who sets forth the terms,Page 413 of 526

conditions, and effective date of the delegation and that serves as the mechanism for the transfer of authority. Additional guidance and information is given in EPA’s Delegation Manual, Item 7-139, Implementation and Enforcement of 111(d)(2) and 111(d)/(2)/129(b)(3) federal plans. (b) A state with an already approved CISWI Clean Air Act section 111(d)/129 state plan is not precluded from receiving EPA approval of a delegation request for the revised federal plan, providing the requirements of paragraph (a) of this section are met, and at the time of the delegation request, the state also requests withdrawal of EPA’s previous state plan approval. (c) A state’s Clean Air Act section 111(d)/129 obligations are separate from its obligations under Title V of the Clean Air

Act .

49. Section 60.2542 is added to read as follows: §60.2542 What authorities will not be delegated to state, local, or tribal agencies? The authorities listed under §60.2030(c) will not be delegated to state, local, or tribal agencies.

50. Section 60.2545 is amended by revising paragraph (b) and adding paragraph (c) to read as follows: §60.2545 Does this subpart directly affect CISWI unit owners and operators in my state?Page 414 of 526

* * * * * (b) If you do not submit an approvable plan to implement and enforce the guidelines contained in this subpart for CISWI units that commenced construction on or before November 30, 1999 by December 2, 2002, EPA will implement and enforce a federal plan, as provided in §60.2525, to ensure that each unit within your state reaches compliance with all the provisions of this subpart by December 1, 2005. (c) If you do not submit an approvable plan to implement and enforce the guidelines contained in this subpart by [INSERT

THE DATE 1 YEAR AFTER PUBLICATION OF THE FINAL RULE IN THE

FEDERAL REGISTER ] for CISWI units that commenced construction on or before June 4, 2010, EPA will implement and enforce a federal plan, as provided in §60.2525, to ensure that each unit within your state that commenced construction on or before June 4, 2010, reaches compliance with all the provisions of this subpart by [INSERT THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE

IN THE FEDERAL REGISTER ].

51. Section §60.2550 is amended by revising paragraph (a)(1) to read as follows: §60.2550 What CISWI units must I address in my state plan? (a) * * * (1) Incineration units in your state that commenced construction on or before June 4, 2010.Page 415 of 526

* * * * *

52. Section §60.2555 is amended by: a. Revising the introductory text. b. Removing and reserving paragraph (b). c. Revising paragraphs (c), (e)(3), (f)(3), and (g). d. Removing and reserving paragraphs (j), (k) and (l). e. Revising paragraphs (m) and (n). f. Removing paragraph (o). §60.2555 What combustion units are exempt from my state plan? This subpart exempts the types of units described in paragraphs (a), (c) through (i), (m), and (n) of this section, but some units are required to provide notifications. Air curtain incinerators are exempt from the requirements in this subpart except for the provisions in §§60.2805, 60.2860, and

60.2870.

* * * * * (b) [Reserved] (c) Municipal waste combustion units . Incineration units that are subject to subpart Ea of this part (Standards of Performance for Municipal Waste Combustors); subpart Eb of this part (Standards of Performance for Large Municipal Waste Combustors); subpart Cb of this part (Emission Guidelines and Compliance Time for Large Municipal Combustors); subpart AAAA of this part (Standards of Performance for Small Municipal WastePage 416 of 526

Combustion Units); or subpart BBBB of this part (Emission Guidelines for Small Municipal Waste Combustion Units).

* * * * * (e) * * * (3) You submit a request to the Administrator for a determination that the qualifying cogeneration facility is combusting homogenous waste. The request must include

information sufficient to document that the unit meets the criteria of the definition of a small power production facility and that the waste material the unit is proposed to burn is homogeneous.

* * * * * (f) * * * (3) You submit a request to the Administrator for a determination that the qualifying cogeneration facility is combusting homogenous waste. The request must include

information sufficient to document that the unit meets the criteria of the definition of a cogeneration facility and that the waste material the unit is proposed to burn is homogeneous. (g) Hazardous waste combustion units . Units for which you are required to get a permit under section 3005 of the Solid Waste Disposal Act.

* * * * * (j) [Reserved]Page 417 of 526

(k) [Reserved] (l) [Reserved] (m) Sewage treatment plants . Incineration units regulated under subpart O of this part (Standards of Performance for Sewage Treatment Plants). (n) Sewage sludge incineration units. Incineration units combusting sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter that are subject to subpart LLLL of this part (Standards of Performance for Sewage Sludge Incineration Units) or subpart MMMM of this part (Emission Guidelines for Sewage Sludge Incineration Units). §60.2558 [Removed]

53. Section 60.2558 is removed.

54. Section 60.2635 is amended by revising paragraph (c)(1)(vii) to read as follows: §60.2635 What are the operator training and qualification requirements?

* * * * * (c) * * * (1) * * * (vii) Actions to prevent and correct malfunctions or to prevent conditions that may lead to malfunctions.

* * * * *Page 418 of 526

55. Section 60.2650 is amended by revising paragraph (d)

to read as follows: §60.2650 How do I maintain my operator qualification?

* * * * * (d) Prevention and correction of malfunctions or conditions that may lead to malfunction.

* * * * *

56. Section 60.2670 is revised to read as follows: §60.2670 What emission limitations must I meet and by when? (a) You must meet the emission limitations for each CISWI unit, including bypass stack or vent, specified in table 2 of this subpart or tables 6 through 9 of this subpart by the final compliance date under the approved state plan, federal plan, or delegation, as applicable. The emission limitations apply at all times the unit is operating including and not limited to startup, shutdown, or malfunction. (b) Units that do not use wet scrubbers must maintain opacity to less than or equal to the percent opacity (three 1- hour blocks consisting of ten 6-minute average opacity values) specified in table 2 of this subpart, as applicable.

57. Section 60.2675 is amended by: a. Revising paragraphs (a) introductory text and paragraphs (a)(2), (a)(3), and (a)(4). b. Revising paragraph (b).Page 419 of 526

c. Adding paragraphs (d), (e), (f), (g), and (h) to read as

follows: §60.2675 What operating limits must I meet and by when? (a) If you use a wet scrubber(s) to comply with the emission limitations, you must establish operating limits for up to four operating parameters (as specified in table 3 of this subpart) as described in paragraphs (a)(1) through (4) of this section during the initial performance test.

* * * * * (2) Minimum pressure drop across the wet particulate matter scrubber, which is calculated as the lowest 1-hour average pressure drop across the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations; or minimum amperage to the fan for the wet scrubber, which is calculated as the lowest 1-hour average amperage to the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations. (3) Minimum scrubber liquid flow rate, which is calculated as the lowest 1-hour average liquid flow rate at the inlet to the wet acid gas or particulate matter scrubber measured during the most recent performance test demonstrating compliance with all applicable emission limitations.Page 420 of 526

(4) Minimum scrubber liquor pH, which is calculated as the lowest 1-hour average liquor pH at the inlet to the wet acid gas scrubber measured during the most recent performance test demonstrating compliance with the HCl emission limitation.

* * * * * (b) You must meet the operating limits established during the initial performance test on the date the initial performance test is required or completed (whichever is earlier). You must conduct an initial performance evaluation of each continuous monitoring system and continuous parameter monitoring system within 60 days of installation of the monitoring system.

* * * * * (d) If you use an electrostatic precipitator to comply with the emission limitations, you must measure the (secondary) voltage and amperage of the electrostatic precipitator collection plates during the particulate matter performance test. Calculate the average electric power value (secondary voltage x secondary current = secondary electric power) for each test run. The operating limit for the electrostatic precipitator is calculated as the lowest 1-hour average secondary electric power measured during the most recent performance test demonstrating compliance with the particulate matter emission

limitations.Page 421 of 526

(e) If you use activated carbon sorbent injection to comply with the emission limitations, you must measure the sorbent flow rate during the performance testing. The operating limit for the carbon sorbent injection is calculated as the lowest 1-hour average sorbent flow rate measured during the most recent performance test demonstrating compliance with the mercury

emission limitations. (f) If you use selective noncatalytic reduction to comply with the emission limitations, you must measure the charge rate, the secondary chamber temperature (if applicable to your CISWI unit), and the reagent flow rate during the nitrogen oxides performance testing. The operating limits for the selective noncatalytic reduction are calculated as the highest 1-hour average charge rate, secondary chamber temperature, and reagent flow rate measured during the most recent performance test demonstrating compliance with the nitrogen oxides emission

limitations. (g) If you use a dry scrubber to comply with the emission limitations, you must measure the injection rate of each sorbent during the performance testing. The operating limit for the injection rate of each sorbent is calculated as the lowest 1- hour average injection rate or each sorbent measured during the most recent performance test demonstrating compliance with the hydrogen chloride emission limitations.Page 422 of 526

(h) If you do not use a wet scrubber, electrostatic precipitator, or fabric filter to comply with the emission limitations, and if you do not determine compliance with your particulate matter emission limitation with a particulate matter continuous emissions monitoring system, you must maintain opacity to less than or equal to ten percent opacity (1-hour block average).

58. Section 60.2680 is revised to read as follows: §60.2680 What if I do not use a wet scrubber, fabric filter, activated carbon injection, selective noncatalytic reduction, an electrostatic precipitator, or a dry scrubber to comply with the

emission limitations? (a) If you use an air pollution control device other than a wet scrubber, activated carbon injection, selective noncatalytic reduction, fabric filter, an electrostatic precipitator, or a dry scrubber or limit emissions in some other manner, including mass balances, to comply with the emission limitations under §60.2670, you must petition the EPA Administrator for specific operating limits to be established during the initial performance test and continuously monitored thereafter. You must submit the petition at least sixty days before the performance test is schedule to begin. Your petition must include the five items listed in paragraphs (a)(1) through (5) of this section.Page 423 of 526

(1) Identification of the specific parameters you propose to use as additional operating limits. (2) A discussion of the relationship between these parameters and emissions of regulated pollutants, identifying how emissions of regulated pollutants change with changes in these parameters and how limits on these parameters will serve to limit emissions of regulated pollutants. (3) A discussion of how you will establish the upper and/or lower values for these parameters which will establish the operating limits on these parameters. (4) A discussion identifying the methods you will use to measure and the instruments you will use to monitor these parameters, as well as the relative accuracy and precision of

these methods and instruments. (5) A discussion identifying the frequency and methods for recalibrating the instruments you will use for monitoring these parameters. (b) [Reserved]

59. Section 60.2685 is revised to read as follows: §60.2685 Affirmative Defense for Violation of Emission Standards During Malfunction In response to an action to enforce the standards set forth in paragraph §60.2670 you may assert an affirmative defense to a claim for civil penalties for violations of such standards thatPage 424 of 526

are caused by malfunction, as defined at 40 CFR 60.2. Appropriate penalties may be assessed; however, if you fail to meet your burden of proving all of the requirements in the affirmative defense, the affirmative defense shall not be available for claims for injunctive relief. (a) To establish the affirmative defense in any action to enforce such a standard, you must timely meet the reporting requirements in paragraph (b) of this section, and must prove by a preponderance of evidence that: (1) The violation: (i) Was caused by a sudden, infrequent, and unavoidable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner; and (ii) Could not have been prevented through careful planning, proper design or better operation and maintenance practices; and (iii) Did not stem from any activity or event that could have been foreseen and avoided, or planned for; and (iv) Was not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and (2) Repairs were made as expeditiously as possible when a violation occurred. Off-shift and overtime labor were used, to the extent practicable to make these repairs; andPage 425 of 526

(3) The frequency, amount and duration of the violation (including any bypass) were minimized to the maximum extent practicable; and (4) If the violation resulted from a bypass of control equipment or a process, then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and (5) All possible steps were taken to minimize the impact of the violation on ambient air quality, the environment, and human health; and (6) All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices; (7) All of the actions in response to the violation were documented by properly signed, contemporaneous operating logs;

and (8) At all times, the affected facility was operated in a manner consistent with good practices for minimizing emissions;

and (9) A written root cause analysis has been prepared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the violation resulting from the malfunction event at issue. The analysis shall also specify, using best monitoring methods and engineering judgment,Page 426 of 526

the amount of any emissions that were the result of the

malfunction. (b) Report . The owner or operator seeking to assert an affirmative defense shall submit a written report to the Administrator with all necessary supporting documentation that it has met the requirements set forth in paragraph (a) of this section. This affirmative defense report shall be included in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report or excess emission report due after

the initial occurrence of the violation of the relevant

standard.

60. Section 60.2690 is amended by revising paragraphs (c) and (g)(1) and (2) and adding paragraphs (h) and (i) to read as

follows: §60.2690 How do I conduct the initial and annual performance

test?

* * * * *Page 427 of 526

(c) All performance tests must be conducted using the minimum run duration specified in tables 2 and 6 through 9 of this subpart.

* * * * * (g) * * *(1) Measure the concentration of each dioxin/furan tetrathrough octa-isomer emitted using EPA Method 23 at 40 CFR part 60, appendix A. (2) For each dioxin/furan (tetra-through octa-chlorinated) isomer measured in accordance with paragraph (g)(1) of this section, multiply the isomer concentration by its corresponding toxic equivalency factor specified in table 4 of this subpart.

* * * * * (h) Method 22 at 40 CFR part 60, appendix A-7 must be used to determine compliance with the fugitive ash emission limit in table 2 of this subpart or tables 6 through 9 of this subpart. (i) If you have an applicable opacity operating limit, you must determine compliance with the opacity limit using Method 9 at 40 CFR part 60, appendix A-4, based on three 1-hour blocks consisting of ten 6-minute average opacity values, unless you are required to install a continuous opacity monitoring system, consistent with §60.2710 and §60.2730.

61. Section 60.2695 is revised to read as follows: §60.2695 How are the performance test data used?Page 428 of 526

You use results of performance tests to demonstrate compliance with the emission limitations in table 2 of this subpart or tables 6 through 9 of this subpart.

62. Section 60.2700 is revised to read as follows: §60.2700 How do I demonstrate initial compliance with the amended emission limitations and establish the operating limits? You must conduct a performance test, as required under §§60.2690 and 60.2670, to determine compliance with the emission limitations in table 2 of this subpart and tables 6 through 9 of this subpart, to establish compliance with any opacity operating limits in §60.2675, and to establish operating limits using the procedures in §60.2675 or §60.2680. The performance test must be conducted using the test methods listed in table 2 of this subpart and tables 6 through 9 of this subpart and the procedures in §60.2690. The use of the bypass stack during a performance test shall invalidate the performance test. You must conduct a performance evaluation of each continuous monitoring system within 60 days of installation of the monitoring system.

63. Section 60.2705 is revised to read as follows: §60.2705 By what date must I conduct the initial performance

test? (a) The initial performance test must be conducted no later than 180 days after your final compliance date. Your final compliance date is specified in table 1 of this subpart.Page 429 of 526

(b) If you commence or recommence combusting a solid waste at an existing combustion unit at any commercial or industrial facility and you conducted a test consistent with the provisions of this subpart while combusting the given solid waste within the 6 months preceding the reintroduction of that solid waste in the combustion chamber, you do not need to retest until 6 months from the date you reintroduce that solid waste. (c) If you commence combusting or recommence combusting a solid waste at an existing combustion unit at any commercial or industrial facility and you have not conducted a performance test consistent with the provisions of this subpart while combusting the given solid waste within the 6 months preceding

the reintroduction of that solid waste in the combustion chamber, you must conduct a performance test within 60 days commencing or recommencing solid waste combustion.

64. Section 60.2706 is added to read as follows: §60.2706 By what date must I conduct the initial air pollution control device inspection? (a) The initial air pollution control device inspection must be conducted within 60 days after installation of the control device and the associated CISWI unit reaches the charge rate at which it will operate, but no later than 180 days after the final compliance date for meeting the amended emission

limitations.Page 430 of 526

(b) Within 10 operating days following an air pollution control device inspection, all necessary repairs must be completed unless the owner or operator obtains written approval from the state agency establishing a date whereby all necessary repairs of the designated facility must be completed.

65. Section 60.2710 is revised to read as follows: §60.2710 How do I demonstrate continuous compliance with the amended emission limitations and the operating limits? (a) Compliance with standards. (1) The emission standards and operating requirements set forth in this subpart apply at all times. (2) If you cease combusting solid waste you may opt to remain subject to the provisions of this subpart. Consistent with the definition of CISWI unit, you are subject to the requirements of this subpart at least 6 months following the

last date of solid waste combustion. Solid waste combustion is ceased when solid waste is not in the combustion chamber (i.e.,

the solid waste feed to the combustor has been cut off for a period of time not less than the solid waste residence time). (3) If you cease combusting solid waste you must be in compliance with any newly applicable standards on the effective

date of the waste-to-fuel switch. The effective date of the waste-to-fuel switch is a date selected by you, that must be at least 6 months from the date that you ceased combusting solidPage 431 of 526

waste, consistent with §60.2710(a)(2). Your source must remain in compliance with this subpart until the effective date of the

waste-to-fuel switch. (4) If you own or operate an existing commercial or

industrial combustion unit that combusted a fuel or non-waste material, and you commence or recommence combustion of solid waste, you are subject to the provisions of this subpart as of the first day you introduce or reintroduce solid waste to the combustion chamber, and this date constitutes the effective date of the fuel-to-waste switch. You must complete all initial compliance demonstrations for any section 112 standards that are applicable to your facility before you commence or recommence combustion of solid waste. You must provide 30 days prior notice

of the effective date of the waste-to-fuel switch. The notification must identify: (i) The name of the owner or operator of the CISWI unit, the location of the source, the emissions unit(s) that will cease burning solid waste, and the date of the notice; (ii) The currently applicable subcategory under this subpart, and any 40 CFR part 63 subpart and subcategory that will be applicable after you cease combusting solid waste; (iii) The fuel(s), non-waste material(s) and solid waste(s) the CISWI unit is currently combusting and has combusted overPage 432 of 526

the past 6 months, and the fuel(s) or non-waste materials the unit will commence combusting; (iv) The date on which you became subject to the currently applicable emission limits; (v) The date upon which you will cease combusting solid waste, and the date (if different) that you intend for any new requirements to become applicable (i.e., the effective date of the waste-to-fuel switch), consistent with (2) and (3)) above. (5) All air pollution control equipment necessary for compliance with any newly applicable emissions limits which apply as a result of the cessation or commencement or recommencement of combusting solid waste must be installed and operational as of the effective date of the waste-to-fuel, or

fuel-to-waste switch. (6) All monitoring systems necessary for compliance with any newly applicable monitoring requirements which apply as a

result of the cessation or commencement or recommencement of combusting solid waste must be installed and operational as of the effective date of the waste-to-fuel, or fuel-to-waste switch. All calibration and drift checks must be performed as of the effective date of the waste-to-fuel, or fuel-to-waste switch. Relative accuracy tests must be performed as of the performance test deadline for PM CEMS (if PM CEMS are elected to demonstrate continuous compliance with the particulate matterPage 433 of 526

emission limits). Relative accuracy testing for other CEMS need not be repeated if that testing was previously performed consistent with section 112 monitoring requirements or monitoring requirements under this subpart. (b) You must conduct an annual performance test for the pollutants listed in table 2 of this subpart or tables 6 through 9 of this subpart and opacity for each CISWI unit as required under §60.2690. The annual performance test must be conducted using the test methods listed in table 2 of this subpart or tables 6 through 9 of this subpart and the procedures in §60.2690. Opacity must be measured using EPA Reference Method 9 at 40 CFR part 60. Annual performance tests are not required if you use CEMS or continuous opacity monitoring systems to determine compliance. (c) You must continuously monitor the operating parameters specified in §60.2675 or established under §60.2680 and as specified in §60.2735. Operation above the established maximum or below the established minimum operating limits constitutes a deviation from the established operating limits. Three-hour block average values are used to determine compliance (except for baghouse leak detection system alarms) unless a different averaging period is established under §60.2680 or, for energy recovery units, where the averaging time for each operating parameter is a 30-day rolling, calculated each hour as thePage 434 of 526

average of the previous 720 operating hours. Operation above the established maximum, below the established minimum, or outside the allowable range of the operating limits specified in paragraph (a) of this section constitutes a deviation from your operating limits established under this subpart, except during performance tests conducted to determine compliance with the emission and operating limits or to establish new operating limits. Operating limits are confirmed or reestablished during performance tests. (d) You must burn only the same types of waste and fuels used to establish subcategory applicability (for ERUs) and operating limits during the performance test. (e) For energy recovery units, incinerators, and small remote units, you must perform annual visual emissions test for ash handling. (f) For energy recovery units, you must conduct an annual performance test for opacity using EPA Reference Method 9 at 40 CFR part 60 (except where particulate matter continuous monitoring system or continuous parameter monitoring systems are used) and the pollutants listed in table 7 of this subpart. (g) For facilities using a CEMS to demonstrate compliance with the carbon monoxide emission limit, compliance with the carbon monoxide emission limit may be demonstrated by using the CEMS according to the following requirements:Page 435 of 526

(1) You must measure emissions according to §60.13 to calculate 1-hour arithmetic averages, corrected to 7 percent oxygen. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must demonstrate initial compliance with the carbon monoxide emissions limit using a 30- day rolling average of the 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7. (2) Operate the carbon monoxide continuous emissions monitoring system in accordance with the applicable requirements of performance specification 4A of appendix B and the quality assurance procedures of appendix F of this part. (h) Energy recovery units with annual average heat input rates greater than 250 MMBtu/hr and waste-burning kilns may elect to demonstrate continuous compliance with the particulate matter emissions limit using a particulate matter CEMS according to the procedures in §60.2730(n) instead of the continuous parameter monitoring system specified in §60.2710(i). (i) For energy recovery units with annual average heat input rates greater than or equal to 10 MMBTU/hour but less than 250 MMBtu/hr you must install, operate, certify and maintain aPage 436 of 526

continuous opacity monitoring system (COMS) according to the procedures in §60.2730. (j) For waste-burning kilns, you must conduct an annual performance test for the pollutants (except mercury and particulate matter, and hydrogen chloride if no acid gas wet scrubber is used) listed in table 8 of this subpart. If your waste-burning kiln is not equipped with a wet scrubber or dry scrubber, you must determine compliance with the hydrogen chloride emission limit using a CEMS as specified in §60.2730. You must determine compliance with particulate matter using CPMS. You must determine compliance with the mercury emissions limit using a mercury CEMS according to the following requirements: (1) Operate a CEMSin accordance with performance specification 12A at 40 CFR part 60, appendix B or a sorbent trap based integrated monitor in accordance with performance specification 12B at 40 CFR part 60, appendix B. The duration of the performance test must be a calendar month. For each calendar month in which the waste-burning kiln operates, hourly mercury concentration data and stack gas volumetric flow rate data must be obtained. You must demonstrate compliance with the mercury emissions limit using a 30-day rolling average of these 1-hour mercury concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using EquationPage 437 of 526

19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7 of this part. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. (2) Owners or operators using a mercury continuous emissions monitoring systems must install, operate, calibrate and maintain an instrument for continuously measuring and recording the mercury mass emissions rate to the atmosphere according to the requirements of performance specifications 6 and 12A at 40 CFR part 60, appendix B and quality assurance procedure 5 at 40 CFR part 60, appendix F. (3) The owner or operator of a waste-burning kiln must demonstrate initial compliance by operating a mercury continuous emissions monitor while the raw mill of the in-line kiln/raw mill is operating under normal conditions and while the raw mill of the in-line kiln/raw mill is not operating. (k) If you use an air pollution control device to meet the emission limitations in this subpart, you must conduct an initial and annual inspection of the air pollution control device. The inspection must include, at a minimum, the following: (1) Inspect air pollution control device(s) for proper operation.Page 438 of 526

(2) Develop a site-specific monitoring plan according to the requirements in paragraph (l) of this section. This requirement also applies to you if you petition the EPA Administrator for alternative monitoring parameters under §60.13(i). (l) For each CMS required in this section, you must develop and submit to the EPA Administrator for approval a site-specific monitoring plan according to the requirements of this paragraph (l) that addresses paragraphs (l)(1)(i) through (vi) of this

section. (1) You must submit this site-specific monitoring plan at least 60 days before your initial performance evaluation of your continuous monitoring system. (i) Installation of the continuous monitoring system sampling probe or other interface at a measurement location relative to each affected process unit such that the measurement is representative of control of the exhaust emissions (e.g., on or downstream of the last control device). (ii) Performance and equipment specifications for the sample interface, the pollutant concentration or parametric signal analyzer and the data collection and reduction systems. (iii) Performance evaluation procedures and acceptance criteria ( e.g. , calibrations).Page 439 of 526

(iv) Ongoing operation and maintenance procedures in accordance with the general requirements of §60.11(d). (v) Ongoing data quality assurance procedures in accordance with the general requirements of §60.13. (vi) Ongoing recordkeeping and reporting procedures in accordance with the general requirements of §60.7(b),(c), (c)(1), (c)(4), (d), (e), (f) and (g). (2) You must conduct a performance evaluation of eachcontinuous monitoring system in accordance with your sitespecific monitoring plan. (3) You must operate and maintain the continuous monitoring system in continuous operation according to the site-specific monitoring plan. (m) If you have an operating limit that requires the use of a flow monitoring system, you must meet the requirements in paragraphs (l) and (m)(1) through (4) of this section. (1) Install the flow sensor and other necessary equipment in a position that provides a representative flow. (2) Use a flow sensor with a measurement sensitivity of no greater than 2 percent of the expected process flow rate. (3) Minimize the effects of swirling flow or abnormal velocity distributions due to upstream and downstream

disturbances.Page 440 of 526

(4) Conduct a flow monitoring system performance evaluation in accordance with your monitoring plan at the time of each performance test but no less frequently than annually. (n) If you have an operating limit that requires the use of a pressure monitoring system, you must meet the requirements in paragraphs (l) and (n)(1) through (6) of this section. (1) Install the pressure sensor(s) in a position that provides a representative measurement of the pressure (e.g., PM scrubber pressure drop). (2) Minimize or eliminate pulsating pressure, vibration,

and internal and external corrosion. (3) Use a pressure sensor with a minimum tolerance of 1.27 centimeters of water or a minimum tolerance of 1 percent of the pressure monitoring system operating range, whichever is less. (4) Perform checks at least once each process operating day to ensure pressure measurements are not obstructed (e.g., check for pressure tap pluggage daily). (5) Conduct a performance evaluation of the pressure monitoring system in accordance with your monitoring plan at the time of each performance test but no less frequently than annually. (6) If at any time the measured pressure exceeds the manufacturer's specified maximum operating pressure range, conduct a performance evaluation of the pressure monitoringPage 441 of 526

system in accordance with your monitoring plan and confirm that the pressure monitoring system continues to meet the performance requirements in your monitoring plan. Alternatively, install and verify the operation of a new pressure sensor. (o) If you have an operating limit that requires a pH monitoring system, you must meet the requirements in paragraphs (l) and (o)(1) through (4) of this section. (1) Install the pH sensor in a position that provides a representative measurement of scrubber effluent pH. (2) Ensure the sample is properly mixed and representative

of the fluid to be measured. (3) Conduct a performance evaluation of the pH monitoring system in accordance with your monitoring plan at least once each process operating day. (4) Conduct a performance evaluation (including a two-point calibration with one of the two buffer solutions having a pH within 1 of the pH of the operating limit) of the pH monitoring system in accordance with your monitoring plan at the time of each performance test but no less frequently than quarterly. (p) If you have an operating limit that requires a secondary electric power monitoring system for an electrostatic precipitator, you must meet the requirements in paragraphs (l) and (p)(1) through (2) of this section.Page 442 of 526

(1) Install sensors to measure (secondary) voltage and current to the precipitator collection plates. (2) Conduct a performance evaluation of the electric power monitoring system in accordance with your monitoring plan at the time of each performance test but no less frequently than annually. (q) If you have an operating limit that requires the use of a monitoring system to measure sorbent injection rate (e.g., weigh belt, weigh hopper, or hopper flow measurement device), you must meet the requirements in paragraphs (l) and (q)(1) through (3) of this section. (1) Install the system in a position(s) that provides a representative measurement of the total sorbent injection rate. (2) Conduct a performance evaluation of the sorbent injection rate monitoring system in accordance with your monitoring plan at the time of each performance test but no less frequently than annually. (r) If you elect to use a fabric filter bag leak detection system to comply with the requirements of this subpart, you must install, calibrate, maintain, and continuously operate a bag leak detection system as specified in paragraphs (l) and (r)(1) through (5) of this section. (1) Install a bag leak detection sensor(s) in a position(s) that will be representative of the relative or absolutePage 443 of 526

particulate matter loadings for each exhaust stack, roof vent, or compartment (e.g., for a positive pressure fabric filter) of

the fabric filter. (2) Use a bag leak detection system certified by the manufacturer to be capable of detecting particulate matter emissions at concentrations of 10 milligrams per actual cubic

meter or less. (3) Conduct a performance evaluation of the bag leak detection system in accordance with your monitoring plan and consistent with the guidance provided in EPA–454/R–98–015 (incorporated by reference, see §60.17). (4) Use a bag leak detection system equipped with a device to continuously record the output signal from the sensor. (5) Use a bag leak detection system equipped with a system

that will sound an alarm when an increase in relative particulate matter emissions over a preset level is detected. The alarm must be located where it is observed readily by plant operating personnel. (s) For facilities using a CEMS to demonstrate compliance with the sulfur dioxide emission limit, compliance with the

sulfur dioxide emission limit may be demonstrated by using the CEMS specified in §60.2730 to measure sulfur dioxide. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygenPage 444 of 526

content. You mustcalculate a 30-day rolling average of the 1- hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-7. The sulfur dioxide CEMS must be operated according to performance specification 2 in appendix B of this part and must follow the procedures and methods specified in this paragraph (s). For sources that have actual inlet emissions less than 100 parts per million dry volume, the relative accuracy criterion for inlet sulfur dioxide CEMS should be no greater than 20 percent of the mean value of the reference method test data in terms of the units of the emission standard, or 5 parts per million dry volume absolute value of the mean difference between the reference method and the CEMS, whichever is greater. (1) During each relative accuracy test run of the CEMS required by performance specification 2 in appendix B of this part, collect sulfur dioxide and oxygen (or carbon dioxide) data concurrently (or within a 30- to 60-minute period) with both the continuous emissions monitors and the test methods specified in paragraphs (s)(1)(i) and (s)(1)(ii) of this section. (i) For sulfur dioxide, EPA Reference Method 6 or 6C, or as an alternative ANSI/ASME PTC 19.10–1981 (incorporated by reference, see §60.17) must be used.Page 445 of 526

(ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B, or as an alternative ANSI/ASME PTC 19.10–1981 (incorporated by reference, see §60.17), as applicable, must be

used. (2) The span value of the continuous emissions monitoring system at the inlet to the sulfur dioxide control device must be 125 percent of the maximum estimated hourly potential sulfur dioxide emissions of the unit subject to this rule. The span

value of the CEMS at the outlet of the sulfur dioxide control device must be 50 percent of the maximum estimated hourly potential sulfur dioxide emissions of the unit subject to this

rule. (3) Conduct accuracy determinations quarterly and calibration drift tests daily in accordance with procedure 1 in appendix F of this part. (t) For facilities using a CEMS to demonstrate continuous compliance with the nitrogen oxides emission limit, compliance with the nitrogen oxides emission limit may be demonstrated by using the CEMS specified in §60.2730 to measure nitrogen oxides. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must calculate a 30-day rolling average of these 1-hour arithmetic average emission concentration using Equation 19-19 in section 12.4.1 of EPAPage 446 of 526

Reference Method 19 at 40 CFR part 60, appendix A-7. The nitrogen oxides CEMS must be operated according to performance specification 2 in appendix B of this part and must follow the procedures and methods specified in paragraphs (t)(1) through (t)(5) of this section. (1) During each relative accuracy test run of the CEMS required by performance specification 2 of appendix B of this part, collect nitrogen oxides and oxygen (or carbon dioxide) data concurrently (or within a 30- to 60-minute period) with both the CEMS and the test methods specified in paragraphs (t)(1)(i) and (t)(1)(ii) of this section. (i) For nitrogen oxides, EPA Reference Method 7 or 7E at 40 CFR part 60, appendix A-4 must be used. (ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B, or as an alternative ANSI/ASME PTC 19.10–1981 (incorporated by reference, see §60.17), as applicable, must be

used. (2) The span value of the CEMS must be 125 percent of the maximum estimated hourly potential nitrogen oxide emissions of

unit. (3) Conduct accuracy determinations quarterly and calibration drift tests daily in accordance with procedure 1 in appendix F of this part.Page 447 of 526

(4) The owner or operator of an affected facility may request that compliance with the nitrogen oxides emission limit be determined using carbon dioxide measurements corrected to an equivalent of 7 percent oxygen. If carbon dioxide is selected for use in diluent corrections, the relationship between oxygen and carbon dioxide levels must be established during the initial performance test according to the procedures and methods specified in paragraphs (t)(4)(i) through (t)(4)(iv) of this section. This relationship may be reestablished during performance compliance tests. (i) The fuel factor equation in Method 3B must be used to determine the relationship between oxygen and carbon dioxide at a sampling location. Method 3A, 3B, or as an alternative ANSI/ASME PTC 19.10–1981 (incorporated by reference, see §60.17), as applicable, must be used to determine the oxygen

concentration at the same location as the carbon dioxide

monitor. (ii) Samples must be taken for at least 30 minutes in each

hour. (iii) Each sample must represent a 1-hour average. (iv) A minimum of 3 runs must be performed. (u) For facilities using a continuous emissions monitoring system to demonstrate continuous compliance with any of thePage 448 of 526

emission limits of this subpart, you must complete the following: (1) Demonstrate compliance with the appropriate emission limit(s) using a 30-day rolling average of 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-7. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. (2) Operate all continuous emissions monitoring system in accordance with the applicable procedures under appendices B and F of this part. (v) Use of the bypass stack at any time is an emissions standards deviation for particulate matter, HCl, Pb, Cd, Hg, NO x , SO 2 , and dioxin/furans. (w) For energy recovery units with a design heat input capacity of 100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, you must install, operate, and maintain a oxygen analyzer system as defined in §60.2875 according to the procedures in paragraphs (w)(1) through (4) of this section. (1) The oxygen analyzer system must be installed by the initial performance test date specified in §60.2675.Page 449 of 526

(2) You must operate the oxygen trim system within compliance with paragraph (w)(3) of this section at all times. (3) You must maintain the oxygen level such that the 30-day rolling average that is established as the operating limit for oxygen is not below the lowest hourly average oxygen concentration measured during the most recent CO performance

test. (4) You must calculate and record a 30-day rolling average oxygen concentration using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 of Appendix A-7 of this part. (x) For energy recovery units with annual average heatinput rates greater than or equal to 250 MMBtu/hour and wasteburning kilns, you must install, calibrate, maintain, and operate a PM CPMS and record the output of the system as specified in paragraphs (x)(1) through (7) of this section. For other energy recovery units, you may elect to use PM CPMS operated in accordance with this section. PM CPMS are suitable in lieu of using other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure) (1) Install, calibrate, operate, and maintain your PM CPMS according to the procedures in your approved site-specific monitoring plan developed in accordance with §60.2710(l) and (x)(1)(i) through (iii) of this section.Page 450 of 526

(i) The operating principle of the PM CPMS must be based on in-stack or extractive light scatter, light scintillation, beta attenuation, or mass accumulation of the exhaust gas or representative sample. The reportable measurement output from the PM CPMS may be expressed as milliamps, stack concentration, or other raw data signal. (ii) The PM CPMS must have a cycle time (i.e., period required to complete sampling, measurement, and reporting for each measurement) no longer than 60 minutes. (iii) The PM CPMS must be capable of detecting and responding to particulate matter concentrations of no greater than 0.5 mg/actual cubic meter. (2) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, you must: (i) Record all hourly average output values (e.g., milliamps, stack concentration, or other raw data signal) from the PM CPMS for the periods corresponding to the test runs (e.g., three 1-hour average PM CPMS output values for three 1- hour test runs), and (ii) Determine your operating limit as the highest 1-hour average PM CPMS output value recorded during the performance test. You must verify an existing or establish a new operating limit after each repeated performance test.Page 451 of 526

(3) Collect PM CPMS hourly average output data for all energy recovery unit or waste-burning kiln operating hours. Express the PM CPMS output as millamps, PM concentration, or other raw data signal value. (4) Calculate the arithmetic 30-day rolling average of all of the hourly average PM CPMS output collected during all energy recovery unit or waste-burning kiln operating hours data (e.g., milliamps, PM concentration, raw data signal). (5) You must collect data using the PM CPMS at all times the energy recovery unit or waste-burning kiln is operating and at the intervals specified in paragraph (x)(1)(ii) of this section, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments), and any scheduled maintenance as defined in your site-specific monitoring plan. (6) You must use all the data collected during all energy recovery unit or waste-burning kiln operating hours in assessing the compliance with your operating limit except: (i) Any data collected during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or quality control activities conducted during monitoring systemPage 452 of 526

malfunctions are not used in calculations (report any such periods in your annual deviation report); (ii) Any data collected during periods when the monitoring system is out of control as specified in your site-specific monitoring plan, repairs associated with periods when the monitoring system is out of control, or required monitoring system quality assurance or quality control activities conducted during out-of-control periods are not used in calculations (report emissions or operating levels and report any such periods in your annual deviation report); (iii) Any PM CPMS data recorded during periods of CEMS data during startup and shutdown, as defined in this subpart. (7) You must record and make available upon request results of PM CPMS system performance audits, as well as the dates and duration of periods from when the PM CPMS is out of control until completion of the corrective actions necessary to return the PM CPMS to operation consistent with your site-specific monitoring plan.

66. Section 60.2715 is revised to read as follows: §60.2715 By what date must I conduct the annual performance

test? You must conduct annual performance tests between 11 and 13 months of the previous performance test.

67. Section 60.2716 is added to read as follows:Page 453 of 526

§60.2716 By what date must I conduct the annual air pollution control device inspection? On an annual basis (no more than 12 months following the previous annual air pollution control device inspection), you must complete the air pollution control device inspection as described in §60.2706.

68. Section 60.2720 is revised to read as follows: §60.2720 May I conduct performance testing less often? (a) You must conduct annual performance tests according to the schedule specified in §60.2715, with the following exceptions: (1) You may conduct a repeat performance test at any time to establish new values for the operating limits to apply from that point forward, as specified in §60.2725. The Administrator may request a repeat performance test at any time. (2) You must repeat the performance test within 60 days of a process change, as defined in §60.2875. (3) If the initial or any subsequent performance test for any pollutant in table 2 or tables 6 through 9 of this subpart, as applicable, demonstrates that the emission level for the pollutant is no greater than the emission level specified in paragraph (a)(3)(i) or (a)(3)(ii) of this section, as applicable, and you are not required to conduct a performance test for the pollutant in response to a request by thePage 454 of 526

Administrator in paragraph (a)(1) of this section or a process change in paragraph (a)(2) of this section, you may elect to skip conducting a performance test for the pollutant for the next 2 years. You must conduct a performance test for the pollutant during the third year and no more than 37 months following the previous performance test for the pollutant. For cadmium and lead, both cadmium and lead must be emitted at emission levels no greater than their respective emission levels specified in paragraph (a)(3)(i) of this section for you to qualify for less frequent testing under this paragraph. (i) For particulate matter, hydrogen chloride, mercury, carbon monoxide, nitrogen oxides, sulfur dioxide, cadmium, lead, and dioxins/furans, the emission level equal to 75 percent of the applicable emission limit in table 2 or tables 6 through 9 of this subpart, as applicable, to this subpart. (ii) For fugitive emissions, visible emissions (of combustion ash from the ash conveying system) for 2 percent of the time during each of the three 1-hour observations periods. (4) If you are conducting less frequent testing for a pollutant as provided in paragraph (a)(3) of this section and a subsequent performance test for the pollutant indicates that your CISWI unit does not meet the emission level specified in paragraph (a)(3)(i) or (a)(3)(ii) of this section, as applicable, you must conduct annual performance tests for thePage 455 of 526

pollutant according to the schedule specified in paragraph (a) of this section until you qualify for less frequent testing for the pollutant as specified in paragraph (a)(3) of this section.

69. Section 60.2730 is amended by revising paragraphs (b)(6) and (c) and adding paragraphs (d) through (s) to read as

follows: §60.2730 What monitoring equipment must I install and what parameters must I monitor?

* * * * * (b) * * * (6) The bag leak detection system must be equipped with an alarm system that will alert automatically an operator when an increase in relative particulate matter emission over a preset

level is detected. The alarm must be located where it is observed easily by plant operating personnel.

* * * * * (c) If you are using something other than a wet scrubber, activated carbon, selective non-catalytic reduction, an electrostatic precipitator, or a dry scrubber to comply with the emission limitations under §60.2670, you must install, calibrate (to the manufacturers' specifications), maintain and operate the equipment necessary to monitor compliance with the site-specific operating limits established using the procedures in §60.2680.Page 456 of 526

(d) If you use activated carbon injection to comply with the emission limitations in this subpart, you must measure the minimum sorbent flow rate once per hour. (e) If you use selective noncatalytic reduction to comply with the emission limitations, you must complete the following: (1) Following the date on which the initial performance test is completed or is required to be completed under §60.2690, whichever date comes first, ensure that the affected facility does not operate above the maximum charge rate, or below the minimum secondary chamber temperature (if applicable to your CISWI unit) or the minimum reagent flow rate measured as 3-hour block averages at all times. (2) Operation of the affected facility above the maximum charge rate, below the minimum secondary chamber temperature and below the minimum reagent flow rate simultaneously constitute a violation of the nitrogen oxides emissions limit. (f) If you use an electrostatic precipitator to comply with the emission limits of this subpart, you must monitor the secondary power to the electrostatic precipitator collection plates and maintain the 3-hour block averages at or above the operating limits established during the mercury or particulate matter performance test. (g) For waste-burning kilns not equipped with a wet scrubber or a dry scrubber, in place of hydrogen chloridePage 457 of 526

testing with EPA Method 321 at 40 CFR part 63, appendix A, an owner or operator must install, calibrate, maintain, and operate a CEMS for monitoring hydrogen chloride emissions discharged to the atmosphere and record the output of the system. To demonstrate continuous compliance with the hydrogen chloride emissions limit for units other than waste-burning kilns not equipped with a wet scrubber or dry scrubber, a facility may substitute use of a hydrogen chloride continuous emissions monitoring system for conducting the hydrogen chloride annual performance test, monitoring the minimum hydrogen chloride sorbent flow rate, monitoring the minimum scrubber liquor pH, and monitoring minimum injection rate. (h) To demonstrate continuous compliance with the particulate matter emissions limit, a facility may substitute use of a particulate matter continuous emissions monitoring system for conducting the particulate matter annual performance test and other CMS monitoring for PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure). (i) To demonstrate continuous compliance with the dioxin/furan emissions limit, a facility may substitute use of a continuous automated sampling system for the dioxin/furan annual performance test. You must record the output of the system and analyze the sample according to EPA Method 23 at 40 CFR part 60, appendix A-7. This option to use a continuous automated samplingPage 458 of 526

system takes effect on the date a final performance specification applicable to dioxin/furan from continuous monitors is published in the Federal Register . The owner or operator who elects to continuously sample dioxin/furan emissions instead of sampling and testing using EPA Method 23 at 40 CFR part 60, appendix A-7 must install, calibrate, maintain and operate a continuous automated sampling system and must comply with the requirements specified in §60.58b(p) and (q). A facility may substitute continuous dioxin/furan monitoring for the minimum sorbent flow rate, if activated carbon sorbent injection is used solely for compliance with the dioxin/furan

emission limit. (j) To demonstrate continuous compliance with the mercury emissions limit, a facility may substitute use of a continuous automated sampling system for the mercury annual performance test. You must record the output of the system and analyze the sample at set intervals using any suitable determinative technique that can meet performance specification 12B criteria. This option to use a continuous automated sampling system takes effect on the date a final performance specification applicable to mercury from monitors is published in the Federal Register

. The owner or operator who elects to continuously sample mercury emissions instead of sampling and testing using EPA Method 29 or 30B at 40 CFR part 60, appendix A-8, ASTM D6784-02 (ReapprovedPage 459 of 526

2008) (incorporated by reference, see §60.17), or an approved alternative method for measuring mercury emissions, must install, calibrate, maintain and operate a continuous automated sampling system and must comply with the requirements specified in §60.58b(p) and (q). A facility may substitute continuous mercury monitoring for the minimum sorbent flow rate, if activated carbon sorbent injection is used solely for compliance with the mercury emission limit. (k) To demonstrate continuous compliance with the nitrogen oxides emissions limit, a facility may substitute use of a continuous emissions monitoring system for the nitrogen oxides annual performance test to demonstrate compliance with the nitrogen oxides emissions limits and monitoring the charge rate, secondary chamber temperature and reagent flow for selective noncatalytic reduction, if applicable. (1) Install, calibrate, maintain and operate a CEMS for measuring nitrogen oxides emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 2 of appendix B of this part, the quality assurance procedure 1 of appendix F of this part and the procedures under §60.13 must be followed for installation, evaluation and operation of the CEMS. (2) Following the date that the initial performance test for nitrogen oxides is completed or is required to be completedPage 460 of 526

under §60.2690, compliance with the emission limit for nitrogen oxides required under §60.52b(d) must be determined based on the 30-day rolling average of the hourly emission concentrations using CEMS outlet data. The 1-hour arithmetic averages must be expressed in parts per million by volume corrected to 7 percent oxygen (dry basis) and used to calculate the 30-day rolling average concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under §60.13(e)(2). (l) To demonstrate continuous compliance with the sulfur dioxide emissions limit, a facility may substitute use of a continuous automated sampling system for the sulfur dioxide annual performance test to demonstrate compliance with the

sulfur dioxide emissions limits. (1) Install, calibrate, maintain and operate a CEMS for measuring sulfur dioxide emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 2 of appendix B of this part, the quality assurance requirements of procedure 1 of appendix F of this part and the procedures under §60.13 must be followed for installation, evaluation and operation of the CEMS.Page 461 of 526

(2) Following the date that the initial performance test for sulfur dioxide is completed or is required to be completed under §60.2690, compliance with the sulfur dioxide emission limit may be determined based on the 30-day rolling average of the hourly arithmetic average emission concentrations using CEMS outlet data. The 1-hour arithmetic averages must be expressed in parts per million corrected to 7 percent oxygen (dry basis) and used to calculate the 30-day rolling average emission concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under §60.13(e)(2). (m) For energy recovery units that do not use a wet scrubber, fabric filter with bag leak detection system, or particulate matter CEMS, you must install, operate, certify and maintain a continuous opacity monitoring system according to the procedures in paragraphs (m)(1) through (5) of this section by the compliance date specified in §60.2670. Energy recovery units that use a particulate matter continuous emissions monitoring system to demonstrate initial and continuing compliance according to the procedures in §60.2730(n) are not required to install a continuous opacity monitoring system and must performPage 462 of 526

the annual performance tests for opacity consistent with §60.2710(f). (1) Install, operate and maintain each continuous opacity monitoring system according to performance specification 1 at 40 CFR part 60, appendix B. (2) Conduct a performance evaluation of each continuous opacity monitoring system according to the requirements in §60.13 and according to performance specification 1 at 40 CFR part 60, appendix B. (3) As specified in §60.13(e)(1), each continuous opacity monitoring system must complete a minimum of one cycle of sampling and analyzing for each successive 10-second period and one cycle of data recording for each successive 6-minute period. (4) Reduce the continuous opacity monitoring system data as specified in §60.13(h)(1). (5) Determine and record all the 6-minute averages (and 1- hour block averages as applicable) collected. (n) For energy recovery units with annual average heat input rates greater than 250 MMBtu/hr and waste-burning kilns, in place of particulate matter testing with EPA Method 5 at 40 CFR part 60, appendix A-3, an owner or operator may install, calibrate, maintain and operate a CEMS for monitoring particulate matter emissions discharged to the atmosphere and record the output of the system. The owner or operator of anPage 463 of 526

affected facility who continuously monitors particulate matter emissions instead of conducting performance testing using EPA Method 5 at 40 CFR part 60, appendix A-3 must install, calibrate, maintain and operate a CEMS and must comply with the requirements specified in paragraphs (n)(1) through (n)(13) of

this section. (1) Notify the Administrator 1 month before starting use of the system. (2) Notify the Administrator 1 month before stopping use of the system. (3) The monitor must be installed, evaluated and operated in accordance with the requirements of performance specification 11 of appendix B of this part and quality assurance requirements of procedure 2 of appendix F of this part and §60.13. (4) The initial performance evaluation must be completed no later than 180 days after the final compliance date for meeting the amended emission limitations, as specified under §60.2690 or within 180 days of notification to the Administrator of use of the continuous monitoring system if the owner or operator was previously determining compliance by Method 5 at 40 CFR part 60, appendix A-3 performance tests, whichever is later. (5) The owner or operator of an affected facility may request that compliance with the particulate matter emission limit be determined using carbon dioxide measurements correctedPage 464 of 526

to an equivalent of 7 percent oxygen. The relationship between oxygen and carbon dioxide levels for the affected facility must be established according to the procedures and methods specified in §60.2710(s)(5)(i) through (s)(5)(iv). (6) The owner or operator of an affected facility must conduct an initial performance test for particulate matter emissions as required under §60.2690. Compliance with the particulate matter emission limit, if PM CEMS are elected for demonstrating compliance, must be determined by using the CEMS specified in paragraph (n) of this section to measure particulate matter. You must calculate a 30-day rolling average of 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-7 of this part. (7) Compliance with the particulate matter emission limit must be determined based on the 30-day rolling average calculated using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, Appendix A-7 of the part from the 1-hour arithmetic average of the CEMS outlet data. (8) At a minimum, valid continuous monitoring system hourly averages must be obtained as specified §60.2735. (9) The 1-hour arithmetic averages required under paragraph (n)(7) of this section must be expressed in milligrams per dryPage 465 of 526

standard cubic meter corrected to 7 percent oxygen (or carbon dioxide)(dry basis) and must be used to calculate the 30-day rolling average emission concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under §60.13(e)(2). (10) All valid CEMS data must be used in calculating average emission concentrations even if the minimum CEMS data requirements of paragraph (n)(8) of this section are not met. (11) The CEMS must be operated according to performance specification 11 in appendix B of this part. (12) During each relative accuracy test run of the CEMS required by performance specification 11 in appendix B of this part, particulate matter and oxygen (or carbon dioxide) data must be collected concurrently (or within a 30-to 60-minute period) by both the continuous emissions monitors and the following test methods. (i) For particulate matter, EPA Reference Method 5 at 40 CFR part 60, appendix A-3 must be used. (ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B at 40 CFR part 60, appendix A-2, as applicable, must be

used.Page 466 of 526

(13) Quarterly accuracy determinations and daily calibration drift tests must be performed in accordance with procedure 2 in appendix F of this part. (o) To demonstrate continuous compliance with the carbon monoxide emissions limit, a facility may substitute use of a continuous automated sampling system for the carbon monoxide annual performance test to demonstrate compliance with the

carbon monoxide emissions limits. (1) Install, calibrate, maintain, and operate a CEMS for measuring carbon monoxide emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 4B of appendix B of this part, the quality assurance procedure 1 of appendix F of this part and the procedures under §60.13 must be followed for installation, evaluation, and operation of the CEMS. (2) Following the date that the initial performance test for carbon monoxide is completed or is required to be completed under §60.2690, compliance with the carbon monoxide emission limit may be determined based on the 30-day rolling average of the hourly arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, using CEMS outlet data. Except for CEMS data during startup and shutdown, as defined in this subpart, the 1-hour arithmetic averages must be expressed in parts per millionPage 467 of 526

corrected to 7 percent oxygen (dry basis) and used to calculate the 30-day rolling average emission concentrations. CEMS data collected during startup or shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under §60.13(e)(2). (p) The owner/operator of an affected source with a bypass stack shall install, calibrate (to manufacturers’ specifications), maintain and operate a device or method for measuring the use of the bypass stack including date, time and

duration. (q) For energy recovery units with a design heat input capacity of 100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, you must install, operate, and maintain a oxygen analyzer system as defined in §60.2875 according to the procedures in paragraphs (q)(1) through (4) of this section. (1) The oxygen analyzer system must be installed by the initial performance test date specified in §60.2675. (2) You must operate the oxygen trim system within compliance with paragraph (q)(3) of this section at all times. (3) You must maintain the oxygen level such that the 30-day rolling average that is established as the operating limit for oxygen according to paragraph (q)(4) of this section is notPage 468 of 526

below the lowest hourly average oxygen concentration measured during the most recent CO performance test. (4) You must calculate and record a 30-day rolling average oxygen concentration using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 of Appendix A-7 of this part. (r) For energy recovery units with annual average heatinput rates greater than or equal to 250 MMBtu/hour and wasteburning kilns, you must install, calibrate, maintain, and operate a PM CPMS and record the output of the system as specified in paragraphs (r)(1) through (7) of this section. For other energy recovery units, you may elect to use PM CPMS operated in accordance with this section. PM CPMS are suitable in lieu of using other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure) (1) Install, calibrate, operate, and maintain your PM CPMS according to the procedures in your approved site-specific monitoring plan developed in accordance with §60.2710(l) and (r)(1)(i) through (iii) of this section. (i) The operating principle of the PM CPMS must be based on in-stack or extractive light scatter, light scintillation, beta attenuation, or mass accumulation detection of the exhaust gas or representative sample. The reportable measurement output from the PM CPMS may be expressed as milliamps, stack concentration, or other raw data signal.Page 469 of 526

(ii) The PM CPMS must have a cycle time (i.e., period required to complete sampling, measurement, and reporting for each measurement) no longer than 60 minutes. (iii) The PM CPMS must be capable of detecting and responding to particulate matter concentrations of no greater than 0.5 mg/actual cubic meter. (2) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, you must: (i) Record all hourly average output values (e.g., milliamps, stack concentration, or other raw data signal) from the PM CPMS for the periods corresponding to the test runs (e.g., three 1-hour average PM CPMS output values for three 1- hour test runs), and (ii) Determine your operating limit as the highest 1-hour average PM CPMS output value recorded during the performance test. You must verify an existing or establish a new operating limit after each repeated performance test. (3) Collect PM CPMS hourly average output data for all energy recovery unit or waste-burning kiln operating hours. Express the PM CPMS output as millamps, PM concentration, or other raw data signal value. (4) Calculate the arithmetic 30-day rolling average of all of the hourly average PM CPMS output collected during all energyPage 470 of 526

recovery unit or waste-burning kiln operating hours data (e.g., milliamps, PM concentration, raw data signal). (5) You must collect data using the PM CPMS at all times the energy recovery unit or waste-burning kiln is operating and at the intervals specified in paragraph (x)(1)(ii) of this section, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments), and any scheduled maintenance as defined in your site-specific monitoring plan. (6) You must use all the data collected during all energy recovery unit or waste-burning kiln operating hours in assessing the compliance with your operating limit except: (i) Any data collected during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or quality control activities conducted during monitoring system malfunctions are not used in calculations (report any such periods in your annual deviation report); (ii) Any data collected during periods when the monitoring system is out of control as specified in your site-specific monitoring plan, repairs associated with periods when the monitoring system is out of control, or required monitoringPage 471 of 526

system quality assurance or quality control activities conducted during out-of-control periods are not used in calculations (report emissions or operating levels and report any such periods in your annual deviation report); (iii) Any PM CPMS data recorded during periods of CEMS data during startup and shutdown, as defined in this subpart. (7) You must record and make available upon request results of PM CPMS system performance audits, as well as the dates and duration of periods from when the PM CPMS is out of control until completion of the corrective actions necessary to return the PM CPMS to operation consistent with your site-specific monitoring plan. (s) If you use a dry scrubber to comply with the emission limits of this subpart, you must monitor the injection rate of each sorbent and maintain the 3-hour block averages at or above the operating limits established during the hydrogen chloride performance test.

70. Section 60.2735 is revised to read as follows: §60.2735 Is there a minimum amount of monitoring data I must

obtain? For each continuous monitoring system required or optionally allowed under §60.2730, you must monitor and collect data according to this section:Page 472 of 526

(a) You must operate the monitoring system and collect data at all required intervals at all times compliance is requiredexcept for periods of monitoring system malfunctions or out-ofcontrol periods, repairs associated with monitoring system malfunctions or out-of-control periods (as specified in §60.2770(o) of this part), and required monitoring system quality assurance or quality control activities including, as applicable, calibration checks and required zero and span adjustments. A monitoring system malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring system to provide valid data. Monitoring system failures that are caused in part by poor maintenance or careless operation are not malfunctions. You are required to effect monitoring systemrepairs in response to monitoring system malfunctions or out-ofcontrol periods and to return the monitoring system to operation as expeditiously as practicable. (b) You may not use data recorded during the monitoring system malfunctions, repairs associated with monitoring system malfunctions or out-of control periods, or required monitoring system quality assurance or control activities in calculations used to report emissions or operating levels. You must use all the data collected during all other periods in assessing the operation of the control device and associated control system.Page 473 of 526

(c) Except for periods of monitoring system malfunctions or out-of-control periods, repairs associated with monitoring system malfunctions or out-of-control periods, and required monitoring system quality assurance or quality control activities including, as applicable, calibration checks and required zero and span adjustments, failure to collect required data is a deviation of the monitoring requirements.

71. Section 60.2740 is amended by: a. Revising the introductory text. b. Revising paragraphs (b)(5) and (e). c. Removing and reserving paragraphs (c) and (d). d. Adding paragraphs (n) through (u). §60.2740 What records must I keep? You must maintain the items (as applicable) as specified in paragraphs (a), (b), and (e) through (u) of this section for a period of at least 5 years:

* * * * * (b) * * * (5) For affected CISWI units that establish operating limits for controls other than wet scrubbers under §60.2675(d) through (g) or §60.2680, you must maintain data collected for all operating parameters used to determine compliance with the operating limits.

* * * * *Page 474 of 526

(c) [Reserved] (d) [Reserved] (e) Identification of calendar dates and times for which data show a deviation from the operating limits in table 3 of this subpart or a deviation from other operating limits established under §60.2675(d) through (g) or §60.2680 with a description of the deviations, reasons for such deviations, and a description of corrective actions taken.

* * * * * (n) Maintain records of the annual air pollution control device inspections that are required for each CISWI unit subject to the emissions limits in table 2 of this subpart or tables 6 through 9 of this subpart, any required maintenance and any repairs not completed within 10 days of an inspection or the timeframe established by the state regulatory agency. (o) For continuously monitored pollutants or parameters, you must document and keep a record of the following parameters measured using continuous monitoring systems. (1) All 6-minute average levels of opacity. (2) All 1-hour average concentrations of sulfur dioxide

emissions. (3) All 1-hour average concentrations of nitrogen oxides

emissions.Page 475 of 526

(4) All 1-hour average concentrations of carbon monoxide emissions. You must indicate which data are CEMS data during startup and shutdown. (5) All 1-hour average concentrations of particulate matter

emissions. (6) All 1-hour average concentrations of mercury emissions. (7) All 1-hour average concentrations of hydrogen chloride

emissions. (8) All 1-hour average percent oxygen concentrations. (9) All 1-hour average PM CPMS readings or particulate matter continuous emissions monitor outputs. (p) Records indicating use of the bypass stack, including dates, times and durations. (q) If you choose to stack test less frequently than annually, consistent with §60.2720(a) through (c), you must keep annual records that document that your emissions in the previous stack test(s) were less than 75 percent of the applicable emission limit and document that there was no change in source operations including fuel composition and operation of air pollution control equipment that would cause emissions of the relevant pollutant to increase within the past year. (r) Records of the occurrence and duration of each malfunction of operation (i.e., process equipment) or the air pollution control and monitoring equipment.Page 476 of 526

(s) Records of all required maintenance performed on the air pollution control and monitoring equipment. (t) Records of actions taken during periods of malfunction to minimize emissions in accordance with §60.11(d), including corrective actions to restore malfunctioning process and air pollution control and monitoring equipment to its normal or usual manner of operation. (u) For operating units that combust non-hazardous secondary materials that have been determined not to be solid waste pursuant to §241.3(b)(1), you must keep a record which documents how the secondary material meets each of the legitimacy criteria under §241.3(d)(1). If you combust a fuel that has been processed from a discarded non-hazardous secondary material pursuant to §241.3(b)(4), you must keep records as to how the operations that produced the fuel satisfies the definition of processing in §241.2 and each of the legitimacy criteria in §241.3(d)(1) of this chapter. If the fuel received a non-waste determination pursuant to the petition process submitted under §241.3(c), you must keep a record that documents how the fuel satisfies the requirements of the petition process. For operating units that combust non-hazardous secondary materials as fuel per §241.4, you must keep records documenting that the material is a listed non-waste under §241.4(a).Page 477 of 526

72. Section 60.2770 is amended by revising paragraph (e) and adding paragraphs (k) through (p) to read as follows: §60.2770 What information must I include in my annual report?

* * * * * (e) If no deviation from any emission limitation or operating limit that applies to you has been reported, a

statement that there was no deviation from the emission limitations or operating limits during the reporting period.

* * * * * (k) If you had a malfunction during the reporting period, the compliance report must include the number, duration, and a brief description for each type of malfunction that occurred during the reporting period and that caused or may have caused any applicable emission limitation to be exceeded. The report must also include a description of actions taken by an owner or operator during a malfunction of an affected source to minimize emissions in accordance with §60.11(d), including actions taken

to correct a malfunction. (l) For each deviation from an emission or operating limitation that occurs for a CISWI unit for which you are not using a CMS to comply with the emission or operating limitations in this subpart, the annual report must contain the following

information.Page 478 of 526

(1) The total operating time of the CISWI unit at which the deviation occurred during the reporting period. (2) Information on the number, duration, and cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken. (m) If there were periods during which the continuous monitoring system, including the CEMS, was out of control as specified in paragraph (o) of this section, the annual report must contain the following information for each deviation from an emission or operating limitation occurring for a CISWI unit for which you are using a continuous monitoring system to comply with the emission and operating limitations in this subpart. (1) The date and time that each malfunction started and stopped. (2) The date, time, and duration that each CMS was inoperative, except for zero (low-level) and high-level checks. (3) The date, time, and duration that each continuous monitoring system was out-of-control, including start and end dates and hours and descriptions of corrective actions taken. (4) The date and time that each deviation started and stopped, and whether each deviation occurred during a period of malfunction or during another period.Page 479 of 526

(5) A summary of the total duration of the deviation during the reporting period, and the total duration as a percent of the total source operating time during that reporting period. (6) A breakdown of the total duration of the deviations during the reporting period into those that are due to control equipment problems, process problems, other known causes, and

other unknown causes. (7) A summary of the total duration of continuous monitoring system downtime during the reporting period, and the total duration of continuous monitoring system downtime as a percent of the total operating time of the CISWI unit at which the continuous monitoring system downtime occurred during that reporting period. (8) An identification of each parameter and pollutant that

was monitored at the CISWI unit. (9) A brief description of the CISWI unit. (10) A brief description of the continuous monitoring system. (11) The date of the latest continuous monitoring system

certification or audit. (12) A description of any changes in continuous monitoring system, processes, or controls since the last reporting period. (n) If there were periods during which the continuous monitoring system, including the CEMS, was not out of control asPage 480 of 526

specified in paragraph (o) of this section, a statement that there were not periods during which the continuous monitoring system was out of control during the reporting period. (o) A continuous monitoring system is out of control if any of the following occur. (1) The zero (low-level), mid-level (if applicable), or high-level calibration drift exceeds two times the applicable calibration drift specification in the applicable performance specification or in the relevant standard. (2) The continuous monitoring system fails a performance test audit (e.g., cylinder gas audit), relative accuracy audit, relative accuracy test audit, or linearity test audit. (3) The continuous opacity monitoring system calibration drift exceeds two times the limit in the applicable performance specification in the relevant standard. (p) For energy recovery units, include the annual heat input and average annual heat input rate of all fuels being burned in the unit to verify which subcategory of energy recovery unit applies.

73. Section 60.2780 is amended by revising paragraph (c) and removing paragraphs (e) and (f). §60.2780 What must I include in the deviation report?

* * * * * (c) Durations and causes of the following:Page 481 of 526

(1) Each deviation from emission limitations or operating limits and your corrective actions. (2) Bypass events and your corrective actions.

* * * * *

74. Section 60.2790 is revised to read as follows: §60.2790 Are there any other notifications or reports that I

must submit? (a) Yes. You must submit notifications as provided by §60.7. (b) If you cease combusting solid waste but continue to operate, you must provide 30 days prior notice of the effective date of the waste-to-fuel switch, consistent with §60.2710(a). The notification must identify: (1) The name of the owner or operator of the CISWI unit, the location of the source, the emissions unit(s) that will cease burning solid waste, and the date of the notice; (2) The currently applicable subcategory under this subpart, and any 40 CFR part 63 subpart and subcategory that will be applicable after you cease combusting solid waste; (3) The fuel(s), non-waste material(s) and solid waste(s) the CISWI unit is currently combusting and has combusted over the past 6 months, and the fuel(s) or non-waste materials the unit will commence combusting;Page 482 of 526

(4) The date on which you became subject to the currently applicable emission limits; (5) The date upon which you will cease combusting solid waste, and the date (if different) that you intend for any new requirements to become applicable (i.e., the effective date of the waste-to-fuel switch), consistent with (2) and (3)) above.

75. Section 60.2795 is revised to read as follows: §60.2795 In what form can I submit my reports? (a) Submit initial, annual, and deviation reports electronically or in paper format, postmarked on or before the

submittal due dates. (b)(1) Within 60 days after the date of completing each performance test as required by this subpart, you must submit the results of the performance tests required by this subpart to EPA’s WebFIRE database by using the Compliance and Emissions Data Reporting Interface (CEDRI) that is accessed through EPA’s Central Data Exchange (CDX)(www.epa.gov/cdx). Performance test data must be submitted in the file format generated through use of EPA’s Electronic Reporting Tool (ERT) (see http://www.epa.gov/ttn/chief/ert/index.html). Only data collected using test methods on the ERT website are subject to this requirement for submitting reports electronically to WebFIRE. Owners or operators who claim that some of the information being submitted for performance tests isPage 483 of 526

confidential business information (CBI) must submit a complete ERT file including information claimed to be CBI on a compact disk, flash drives, or other commonly used electronic storage media to EPA. The electronic media must be clearly marked as CBI and mailed to U.S. EPA/OAPQS/CORE CBI Office, Attention: WebFIRE Administrator, MD C404-02, 4930 Old Page Rd., Durham, NC 27703.

The same ERT file with the CBI omitted must be submitted to EPA via CDX as described earlier in this paragraph. At the discretion of the delegated authority, you must also submit these reports, including the confidential business information, to the delegated authority in the format specified by the delegated authority. For any performance test conducted using test methods that are not listed on the ERT website, the owner or operator shall submit the results of the performance test in paper submissions to the Administrator. (2) Within 60 days after the date of completing each CEMS performance evaluation test, as defined in this subpart and required by this subpart, you must submit the relative accuracy test audit (RATA) data electronically into EPA’s Central Data Exchange by using CEDRI as mentioned in paragraph (b)(1) of this section. Only RATA pollutants that can be documented with the ERT (as listed on the ERT website) are subject to this requirement. For any performance evaluations with no corresponding RATA pollutants listed on the ERT website, thePage 484 of 526

owner or operator shall submit the results of the performance evaluation in paper submissions to the Administrator.

76. Section 60.2805 is revised to read as follows: §60.2805 Am I required to apply for and obtain a Title V operating permit for my unit? Yes. Each CISWI unit and air curtain incinerator subject to standards under this subpart must operate pursuant to a permit issued under Clean Air Act sections 129(e) and Title V.

* * * * *

77. Section 60.2860 is revised to read as follows: §60.2860 What are the emission limitations for air curtain

incinerators? After the date the initial stack test is required or completed (whichever is earlier), you must meet the limitations in paragraphs (a) and (b) of this section. (a) Maintain opacity to less than or equal to 10 percent opacity (as determined by the average of three 1-hour blocks consisting of ten 6-minute average opacity values), except as described in paragraph (b) of this section. (b) Maintain opacity to less than or equal to 35 percent opacity (as determined by the average of three 1-hour blocks consisting of ten 6-minute average opacity values) during the startup period that is within the first 30 minutes of operation.

* * * * *Page 485 of 526

78. Section 60.2870 is amended by revising paragraph (c)(2) to read as follows: §60.2870 What are the recordkeeping and reporting requirements

for air curtain incinerators?

* * * * * (c) * * * (2) The results (as determined by the average of three 1- hour blocks consisting of ten 6-minute average opacity values) of the initial opacity tests.

* * * * *

79. Section 60.2875 is amended by: a. Adding definitions for “30-day rolling average,” “Affirmative defense,” “Annual heat input,” “Average annual heat input rate,” “Burn-off oven,” “Bypass stack,” “CEMS data during startup and shutdown”, “Chemical recovery unit,” “Continuous monitoring system,” “Dry scrubber,” “Energy recovery unit,” “Energy recovery unit designed to burn biomass (Biomass),” “Energy recovery unit designed to burn coal (Coal),” “Energy recovery unit designed to burn liquid wastes material and gas (Liquid/gas),” “Energy recovery unit designed to burn solid materials (Solid),” “Foundry sand thermal reclamation unit,” “Incinerator,” “Kiln,” “Laboratory analysis unit,” “Minimum voltage or amperage,” “Opacity,” “Operating day,” “Oxygen analyzer system,” “Oxygen trim system,” “PerformancePage 486 of 526

evaluation,” “Performance test,” “Process change,” “Raw mill,” “Responsible official,” “Small remote incinerator,” “Soil treatment unit,” “Solid waste incineration unit,” “Space heater” and “Waste-burning kiln,” in alphabetical order. b. Revising the definition for “Commercial and industrial solid waste incineration (CISWI) unit,” “Cyclonic burn barrel”, “Modification,” “Solid waste,” and “Wet scrubber.” c. Removing paragraph (3) of the definition for

“Deviation.” d. Removing the definition for “Agricultural waste,” and

“Commercial or industrial waste.” §60.2875 What definitions must I know?

* * * 30-day rolling average means the arithmetic mean of the previous 720 hours of valid operating data. Valid data excludes periods when this unit is not operating. The 720 hours should be consecutive, but not necessarily continuous if operations are

intermittent.

Affirmative defense means, in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding.Page 487 of 526

Annual heat input means the heat input for the 12 months preceding the compliance demonstration. Average annual heat input rate means annual heat input divided by the hours of operation for the 12 months preceding the compliance demonstration.

* * *

Burn-off oven means any rack reclamation unit, part reclamation unit, or drum reclamation unit. A burn-off oven is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. Bypass stack means a device used for discharging combustion gases to avoid severe damage to the air pollution control device or other equipment.

* * * CEMS data during startup and shutdown means CEMS data collected during the first hours of operation of a CISWI unit startup from a cold start until waste is fed to the unit and the hours of operation following the cessation of waste material being fed to the CISWI unit during a unit shutdown. For each startup event, the length of time that CEMS data may be claimed as being CEMS data during startup must be 48 operating hours or less. For each shutdown event, the length of time that CEMS data may be claimed as being CEMS data during shutdown must be 24 operating hours or less.Page 488 of 526

Chemical recovery unit means combustion units burning materials to recover chemical constituents or to produce chemical compounds where there is an existing commercial market for such recovered chemical constituents or compounds. A chemical recovery unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. The following seven types of units are considered chemical recovery units: (1) Units burning only pulping liquors (i.e., black liquor) that are reclaimed in a pulping liquor recovery process and reused in the pulping process. (2) Units burning only spent sulfuric acid used to produce virgin sulfuric acid. (3) Units burning only wood or coal feedstock for the production of charcoal. (4) Units burning only manufacturing byproduct streams/residue containing catalyst metals that are reclaimed and reused as catalysts or used to produce commercial grade catalysts. (5) Units burning only coke to produce purified carbon monoxide that is used as an intermediate in the production of other chemical compounds.Page 489 of 526

(6) Units burning only hydrocarbon liquids or solids to produce hydrogen, carbon monoxide, synthesis gas, or other gases for use in other manufacturing processes. (7) Units burning only photographic film to recover silver.

* * * * * Commercial and industrial solid waste incineration (CISWI)

unit means any distinct operating unit of any commercial or industrial facility that combusts, or has combusted in the preceding 6 months, any solid waste as that term is defined in 40 CFR part 241. If the operating unit burns materials other than traditional fuels as defined in §241.2 that have been discarded, and you do not keep and produce records as required by §60.2740(u), the material is a solid waste and the operating

unit is a CISWI unit. While not all CISWI units will include all of the following components, a CISWI unit includes, but is not limited to, the solid waste feed system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The CISWI unit does not include air pollution control equipment or the stack. The CISWI unit boundary starts at the solid waste hopper (if applicable) and extends through two areas: the combustion unit flue gas system, which ends immediately after the last combustion chamber or after the waste heat recovery equipment, if any; and the combustion unit bottom ash system, which ends at the truck loading station or similarPage 490 of 526

equipment that transfers the ash to final disposal. The CISWI unit includes all ash handling systems connected to the bottom ash handling system.

* * * * * Continuous monitoring system (CMS) means the total equipment, required under the emission monitoring sections in applicable subparts, used to sample and condition (if applicable), to analyze, and to provide a permanent record of emissions or process parameters. A particulate matter continuous parameter monitoring system (PM CPMS) is a type of CMS.

* * * * * Cyclonic burn barrel means a combustion device for waste materials that is attached to a 55 gallon, openhead drum. The device consists of a lid, which fits onto and encloses the drum,

and a blower that forces combustion air into the drum in a cyclonic manner to enhance the mixing of waste material and air. A cyclonic burn barrel is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.

Deviation means any instance in which an affected source subject to this subpart, or an owner or operator of such a

source: (1) Fails to meet any requirement or obligation established by this subpart, including but not limited to any emissionPage 491 of 526

limitation, operating limit, or operator qualification and accessibility requirements. (2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit.

* * * * * Dry scrubber means an add-on air pollution control system that injects dry alkaline sorbent (dry injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gas in the exhaust stream forming a dry powder material. Sorbent injection systems in fluidized bed boilers and process heaters are included in this definition. A dry scrubber is a dry control system.

* * * * * Energy recovery unit means a combustion unit combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241) for energy recovery. Energy recovery units include units that would be considered boilers and process heaters if they did not combust solid waste. Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that burns solid waste, biomass, and non-coal solid materials but less than 10 percent coal, on aPage 492 of 526

heat input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuels. Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that burns solid waste and at least 10 percent coal on a heat input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuels. Energy recovery unit designed to burn liquid waste materials and gas (Liquid/gas) means an energy recovery unit that burns a liquid waste with liquid or gaseous fuels not combined with any solid fuel or waste materials. Energy recovery unit designed to burn solid materials (Solids) includes energy recovery units designed to burn coal and energy recovery units designed to burn biomass.

* * * * * Foundry sand thermal reclamation unit means a type of part reclamation unit that removes coatings that are on foundry sand. A foundry sand thermal reclamation unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.

* * * * *

Incinerator means any furnace used in the process of combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241) for the purpose of reducingPage 493 of 526

the volume of the waste by removing combustible matter. Incinerator designs include single chamber and two-chamber.

Kiln means an oven or furnace, including any associated preheater or precalciner devices, used for processing a substance by burning, firing or drying. Kilns include cement kilns that produce clinker by heating limestone and other materials for subsequent production of Portland Cement. Laboratory analysis unit means units that burn samples of materials for the purpose of chemical or physical analysis. A laboratory analysis unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.

* * * * * Minimum voltage or amperage means 90 percent of the lowest test-run average voltage or amperage to the electrostatic precipitator measured during the most recent particulate matter or mercury performance test demonstrating compliance with the applicable emission limits.

Modification or modified CISWI unit means a CISWI unit that has been changed later than [THE DATE SIX MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and that

meets one of two criteria: (1) The cumulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building andPage 494 of 526

installing the CISWI unit (not including the cost of land) updated to current costs (current dollars). To determine what systems are within the boundary of the CISWI unit used to calculate these costs, see the definition of CISWI unit. (2) Any physical change in the CISWI unit or change in the method of operating it that increases the amount of any air pollutant emitted for which section 129 or section 111 of the

Clean Air Act has established standards. Opacity means the degree to which emissions reduce the transmission of light and obscure the view of an object in the background. Operating day means a 24-hour period between 12:00 midnight and the following midnight during which any amount of solid waste is combusted at any time in the CISWI unit. Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler or process heater flue gas, boiler/process heater, firebox, or other appropriate location. This definition includes oxygen trim systems and certified oxygen CEMS. The source owner or operator is responsible to install, calibrate, maintain, and operate the oxygen analyzer system in accordance

with the manufacturer’s recommendations. Oxygen trim system means a system of monitors that is used

to maintain excess air at the desired level in a combustionPage 495 of 526

device. A typical system consists of a flue gas oxygen and/or carbon monoxide monitor that automatically provides a feedback signal to the combustion air controller.

* * * * *

Performance evaluation means the conduct of relative accuracy testing, calibration error testing, and other measurements used in validating the continuous monitoring system

data.

Performance test means the collection of data resulting from the execution of a test method (usually three emission test runs) used to demonstrate compliance with a relevant emission standard as specified in the performance test section of the

relevant standard. Process change means a significant permit revision, but only with respect to those pollutant-specific emission units for which the proposed permit revision is applicable, including but not limited to a change in the air pollution control devices used to comply with the emission limits for the affected CISWI unit (e.g., change in the sorbent used for activated carbon injection).

* * * * *

Raw mill means a ball or tube mill, vertical roller mill or other size reduction equipment, that is not part of an in-line kiln/raw mill, used to grind feed to the appropriate size.Page 496 of 526

Moisture may be added or removed from the feed during the grinding operation. If the raw mill is used to remove moisture from feed materials, it is also, by definition, a raw material dryer. The raw mill also includes the air separator associated

with the raw mill.

* * * * * Responsible official means one of the following: (1) For a corporation: a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either: (i) The facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or (ii) The delegation of authority to such representatives is approved in advance by the permitting authority; (2) For a partnership or sole proprietorship: a general partner or the proprietor, respectively; (3) For a municipality, State, Federal, or other public agency: Either a principal executive officer or ranking electedPage 497 of 526

official. For the purposes of this part, a principal executive officer of a Federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a Regional Administrator of EPA); or (4) For affected facilities: (i) The designated representative in so far as actions, standards, requirements, or prohibitions under title IV of the Clean Air Act or the regulations promulgated thereunder are concerned; or (ii) The designated representative for any other purposes under part 60.

* * * * * Small, remote incinerator means an incinerator that combusts solid waste (as that term is defined by the Administrator in 40 CFR part 241) and combusts 3 tons per day or less solid waste and is more than 25 miles driving distance to the nearest municipal solid waste landfill.

Soil treatment unit means a unit that thermally treats petroleum–contaminated soils for the sole purpose of site remediation. A soil treatment unit may be direct-fired or indirect fired. A soil treatment unit is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.Page 498 of 526

Solid waste means the term solid waste as defined in 40 CFR

241.2.

Solid waste incineration unit means a distinct operating unit of any facility which combusts any solid waste (as that term is defined by the Administrator in 40 CFR part 241)

material from commercial or industrial establishments or the general public (including single and multiple residences, hotels and motels). Such term does not include incinerators or other units required to have a permit under section 3005 of the Solid Waste Disposal Act. The term “solid waste incineration unit” does not include: (1) Materials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose of recovering metals; (2) Qualifying small power production facilities, as defined in section 3(17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying cogeneration facilities, as defined in section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous waste (such as units which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes; or (3) Air curtain incinerators provided that suchPage 499 of 526

incinerators only burn wood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with opacity limitations to be established by the Administrator by rule. Space heater means a usually portable appliance for heating a relatively small area. A space heater is not an incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.

* * * * * Waste-burning kiln means a kiln that is heated, in whole or in part, by combusting solid waste (as that term is defined by the Administrator pursuant to subtitle D of RCRA). Secondary

materials used in Portland cement kilns shall not be deemed to be combusted unless they are introduced into the combustion zone

in the hot end of the kiln or into the combustion zone of the precalciner or riser burner (if installed).

Wet scrubber means an add-on air pollution control device that uses an aqueous or alkaline scrubbing liquor to collect particulate matter (including nonvaporous metals and condensed organics) and/or to absorb and neutralize acid gases.

* * * * *

80. Table 1 to Subpart DDDD of Part 60 is revised to read

as follows:Page 500 of 526

Table 1 to Subpart DDDD of Part 60—Model Rule—Increments of Progress and Compliance Schedules Comply with these increments of

progress By these dates a Increment 1—Submit final control plan (Dates to be specified in state plan) Increment 2—Final compliance (Dates to be specified in state plan) b

a Site-specific schedules can be used at the discretion of the state. b The date can be no later than 3 years after the effective date of state plan approval or December 1, 2005 for CISWI units that commenced construction on or before November 30, 1999. The date can be no later than 3 years after the effective date of approval of a revised state plan or [THE DATE 5 YEARS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ] for CISWI units that commenced construction on or before June 4, 2010. For small remote incinerators, the date can be no later than 3 years after the effective date of approval of a revised state plan or March 21, 2016 for small remote incinerator CISWI units that commenced construction on or before June 4, 2010.

81. Table 2 to subpart DDDD is amended by: a. Revising the title to read “Table 2 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply To Incinerators Before [Date to be specified in state plan].” b. Revising the entries for “Hydrogen chloride,” “Mercury,” “Opacity” and “Oxides of nitrogen.” c. Adding footnotes b and c. Table 2 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply To Incinerators Before [Date to be specified in state plan] b

For the air pollutant You must meet

this emission limitation a Using this averaging time And determining

compliance using this methodPage 501 of 526

For the air pollutant You must meet

this emission limitation a Using this averaging time And determining

compliance using this method * * * * * * * Hydrogen chloride 62 parts per

million by dry volume 3-run average (For

Method 26, collect a minimum volume of 120 liters per run. For Method 26A, collect a minimum volume of 1 dry standard cubic meter per run) Performance test (Method 26 or 26A at 40 CFR part 60, appendix A-8)

* * * * * * * Mercury 0.47

milligrams per dry standard cubic meter 3- run average (1 hour

minimum sample time per run) Performance test (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM D6784-02 (Reapproved 2008) c

. Opacity 10 percent Three 1-hour blocks consisting of ten 6- minute average opacity values Performance test (Method 9 at 40 CFR part 60, appendix A-4) * * * * * * * Oxides of nitrogen 388 parts per

million by dry volume 3- run average (1 hour

minimum sample time per run) Performance test (Methods 7 or 7E at 40 CFR part 60, appendix A-4). * * * * * * * b Applies only to incinerators subject to the CISWI standards through a state plan or the Federal plan prior to June 4, 2010. The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ]. c Incorporated by reference, see §60.17.Page 502 of 526

82. Table 4 of subpart DDDD is amended by revising the column headings to read as follows: Table 4 to Subpart DDDD of Part 60—Model Rule—Toxic Equivalency Factors Dioxin/furan isomer Toxic equivalency factor * * * * * * * *

83. Table 5 of subpart DDDD is amended by: a. Revising the entry for “Annual Report”. b. Revising the entry for “Emission limitation or operating limit deviation report”. Table 5 to Subpart DDDD of Part 60—Summary of Reporting Requirements a Report Due date Contents Reference * * * * * * * Annual report No later than 12

months following the submission of the initial test report. Subsequent reports are to be submitted no more than 12 months following the previous report • Name and address • Statement and signature by responsible official • Date of report • Values for the operating limits • Highest recorded 3-hour average and the lowest 3- hour average, as applicable, for each operating parameter recorded for the calendar year being reported • If a performance test was conducted during the reporting period, the results of the test • If a performance test was not conducted during the reporting period, a statement that the requirements of §60.2720(a) were met • Documentation of periods §§60.2765 and 60.2770Page 503 of 526

Report Due date Contents Reference when all qualified CISWI unit operators were unavailable for more than 8 hours but less than 2 weeks • If you are conducting performance tests once every 3 years consistent with §60.2720(a), the date of the last 2 performance tests, a comparison of the emission level you achieved in the last 2 performance tests to the 75 percent emission limit threshold required in §60.2720(a) and a statement as to whether there have been any operational changes since the last performance test that could increase emissions.

* * * * * * * Emission limitation or operating limit deviation report By August 1 of that

year for data collected during the first half of the calendar year. By February 1 of the following year for data collected during the second half of the calendar year • Dates and times of deviation • Averaged and recorded data for those dates • Duration and causes of each deviation and the corrective actions taken • Copy of operating limit monitoring data and any test reports • Dates, times and causes for monitor downtime incidents §60.2775 and 60.2780

* * * * * * * a This table is only a summary, see the referenced sections of the rule for the complete requirements.

84. Table 6 to Subpart DDDD is added as follows:Page 504 of 526

Table 6 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply To Incinerators On and After [Date to be specified in state plan] a

For the air pollutant You must meet

this emission limitation b Using this averaging time And determining

compliance using this method Cadmium 0.0026

mil ligrams per dry standard cubic meter 3-run average (collect

a minimum volume of 2 dry standard cubic meters) Performance test (Method 29 at 40 CFR part 60, appendix A-8). Use ICPMS for the analytical finish. Carbon monoxide 17 parts per

million dry volume 3-run average (1 hour

minimum sample time per run) Performance test (Method 10 at 40 CFR part 60, appendix A-4). Dioxins/furans (total mass basis) 4.6 nanograms

per dry standard cubic meter 3-run average (collect

a minimum volume of 2 dry standard cubic meters) Performance test (Method 23 at 40 CFR part 60, appendix A-7). Dioxins/furans (toxic equivalency basis) 0.13 nanograms

per dry standard cubic meter 3-run average (collect

a minimum volume of 2 dry standard cubic meters) Performance test (Method 23 at 40 CFR part 60, appendix A-7). Hydrogen chloride 29 parts per

million dry volume 3-run average ( For

Method 26, collect a minimum volume of 60 liters per run. For Method 26A, collect a minimum volume of 1 dry standard cubic meter per run) Performance test (Method 26 or 26A at 40 CFR part 60, appendix A-8).

Lead 0.015

milligrams per dry standard cubic meter c 3-run average (collect

a minimum volume of 2 dry standard cubic meters) Performance test (Method 29 at 40 CFR part 60, appendix A-8). Use ICPMS for the analytical finish. Mercury 0.0054

milligrams per dry standard cubic meter 3-run average (For

Method 29 an ASTM D6784-02 (Reapproved 2008) d , collect a minimum volume of 2 dry Performance test (Method 29 or 30B at 40 CFR part 60, appendix A- 8) orPage 505 of 526

For the air pollutant You must meet

this emission limitation b Using this averaging time And determining

compliance using this method standard cubic meters per run. For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A) ASTM D6784-02 (Reapproved 2008) d

.

Oxides of nitrogen 53 parts per

million dry volume 3-run average (for

Method 7E, 1 hour minimum sample time per run) Performance test (Method 7 or 7E at 40 CFR part60, appendix A4). Particulate matter filterable 34 milligrams

per dry standard cubic meter 3-run average (collect

a minimum volume of 1 dry standard cubic meter) Performance test (Method 5 or 29 at 40 CFR part 60, appendix A- 3or appendix A8). Sulfur dioxide 11 parts per

million dry volume 3-run average (1 hour

minimum sample time per run) Performance test (Method 6 or 6c at 40 CFR part60, appendix A4. Fugitive ash Visible

emissions for no more than 5% of the hourly observation period Three 1-hour

observation periods Visible emission test (Method 22 at 40 CFR part60, appendix A7).

a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ]. b All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to §60.2720 if all of the other provision of §60.2720 are met. For all other pollutantsPage 506 of 526

that do not contain a footnote “c”, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or 75 percent of this limit in order to qualify for skip testing. d Incorporated by reference, see §60.17.

85. Table 7 of Subpart DDDD is added as follows: Table 7 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply To Energy Recovery Units After [Date to be specified in state plan] a

For the air pollutant You must meet this emission limitation b Using this averaging time And

determining compliance using this method Liquid/Gas Solids Cadmium 0.023

milligrams per dry standard cubic meter Biomass -

0.0014 milligrams per dry standard cubic meter c 3-run

average (collect a minimum volume of 2 dry standard cubic meters) Performance

test (Method 29 at 40 CFR part 60,appendix A8). Use ICPMS for the analytical finish. Coal - 0.058 milligrams per dry standard cubic meter Carbon monoxide 35 parts

per million dry volume Biomass –

260 parts per million dry volume 3-run

average (1 hour minimum sample time per run) Performance

test (Method 10 at 40 CFR part 60,appendix A4). Coal – 95 parts per million dry volume Dioxins/furans (total mass basis) 2.9

nanograms per dry standard cubic meter Biomass -

0.52 nanograms per dry standard 3-run

average (collect a minimum volume of 1 Performance

test (Method 23 at 40 CFR part 60, appendix A-Page 507 of 526

For the air pollutant You must meet this emission limitation b Using this averaging time And

determining compliance using this method Liquid/Gas Solids

cubic meter c dry standard

cubic meter) 7).

Coal - 0.51 nanograms per dry standard cubic meter c Dioxins/furans (toxic equivalency basis) 0.32

nanograms per dry standard cubic meter Biomass -

0.12 nanograms per dry standard cubic meter 3-run

average (collect a minimum volume of 4 dry standard cubic meters) Performance

test (Method 23 at 40 CFR part 60,appendix A7). Coal - 0.075 nanograms per dry standard cubic meter c Hydrogen chloride 14 parts

per million dry volume Biomass -

0.20 parts per million dry volume 3-run

average (for Method 26, collect a minimum of 120 liters; for Method 26A, collect a minimum volume of 1 dry standard cubic meter) Performance

test (Method 26 or 26A at 40 CFR part 60, appendix A-8). Coal – 21 parts per million dry volume

Lead 0.096

milligrams per dry standard Biomass -

0.014 milligrams per dry 3-run

average (collect a minimum Performance

test (Method 29 at 40 CFR part 60,Page 508 of 526

For the air pollutant You must meet this emission limitation b Using this averaging time And

determining compliance using this method Liquid/Gas Solids cubic meter standard

cubic meter c volume of 2

dry standard cubic meters) appendix A8). Use ICPMS for the analytical finish. Coal - 0.013 milligrams per dry standard cubic meter c Mercury 0.031

milligrams per dry standard cubic meter Biomass -

0.0022 milligrams per dry standard cubic meter 3-run

average (For Method 29 and ASTM D6784-02 (Reapproved 2008) d , collect a minimum volume of 2 dry standard cubic meters per run. For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A) Performance

test (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM D6784-02 (Reapproved 2008) d

.

Coal - 0.0028 milligrams per dry standard cubic meter

Oxides of nitrogen 76 parts

per million dry volume Biomass –

290 parts per million dry volume 3-run

average (for Method 7E, 1 hour minimum sample time per run) Performance

test (Method 7 or 7E at 40 CFR part 60,appendix A4). Coal – 340 parts perPage 509 of 526

For the air pollutant You must meet this emission limitation b Using this averaging time And

determining compliance using this method Liquid/Gas Solids

million dry volume Particulate matter filterable 110

milligrams per dry standard cubic meter Biomass -

11 milligrams per dry standard cubic meter 3-run

average (collect a minimum volume of 1 dry standard cubic meter) Performance

test (Method 5 or 29 at 40 CFR part 60, appendix A-3 or appendix A-8) if the unit has an annual average heat input rate less than or equal to 250 MMBtu/hr; or PM CPMS (as specified in §60.2710(x)) if the unit has an annual average heat input rate greater than 250 MMBtu/hr. Coal - 60 milligrams per dry standard cubic meter

Sulfur dioxide 720 parts

per million Biomass –

7.3 parts 3-run

average (1 Performance

test (MethodPage 510 of 526

For the air pollutant You must meet this emission limitation b Using this averaging time And

determining compliance using this method Liquid/Gas Solids dry volume per million

dry volume hour minimum

sample time per run) 6 or 6c at 40

CFR part 60, appendix A-4. Coal – 650 parts per million dry volume Fugitive ash Visible

emissions for no more than 5 percent of the hourly observation period Visible

emissions for no more than 5 percent of the hourly observation period Three 1-hour

observation periods Visible

emission test (Method 22 at 40 CFR part 60, appendix A-7).

a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ] b All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to §60.2720 if all of the other provision of §60.2720 are met. For all other pollutants that do not contain a footnote “c”, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or 75 percent of this limit in order to qualify for skip testing. d Incorporated by reference, see §60.17.

86. Table 8 of Subpart DDDD is added as follows:Page 511 of 526

Table 8 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply to Waste-burning Kilns After [Date to be specified in state plan] a

For the air pollutant You must meet

this emission limitation b Using this

averaging time And determining

compliance using this method Cadmium 0.0014

milligrams per dry standard cubic meter c 3-run average

(collect a minimum volume of 2 dry standard cubic meters) Performance test

(Method 29 at 40 CFR part 60, appendix A-8).

Carbon monoxide 110 (long

kilns) / 790 (preheater / precalciner) parts per million dry volume 3-run average

(1 hour minimum sample time per run) Performance test

(Method 10 at 40 CFR part 60, appendix A-4).

Dioxins/furans (total mass basis) 0.51 nanograms

per dry standard cubic meter c 3-run average

(collect a minimum volume of 1 dry standard cubic meters) Performance test

(Method 23 at 40 CFR part 60, appendix A-7).

Dioxins/furans (toxic equivalency basis) 0.075 nanograms

per dry standard cubic meter c 3-run average

(collect a minimum volume of 1 dry standard cubic meter) Performance test

(Method 23 at 40 CFR part 60, appendix A-7).

Hydrogen chloride 3.0 parts per

million dry volume c 3-run average

(collect a minimum volume of 1 dry standard cubic meter) or 30- day rolling average if HCl CEMS is being used Performance test

(Method 321 at 40 CFR part 63, appendix A of this part) or HCl CEMS if a wet scrubber is not used.

Lead 0.014

milligrams per 3-run average

(collect a Performance test

(Method 29 at 40Page 512 of 526

For the air pollutant You must meet

this emission limitation b Using this

averaging time And determining

compliance using this method dry standard cubic meter c minimum volume

of 2 dry sta ndard cubic meters) CFR part 60,

appendix A-8).

Mercury 0.011

milligrams per dry standard cubic meter 30- day rolling

average Mercury CEMS or

sorbent trap monitoring system (performance specification 12A or 12B, respectively, of appendix B of this part.) Oxides of nitrogen 630 parts per

million dry volume 3-run average

(for Method 7E, 1 hour minimum sample time per run) Performance test

(Method 7 or 7E at 40 CFR part 60, appendix A-4).

Particulate matter filterable 3.2 milligrams

per dry standard cubic meter 30- day rolling

average PM CPMS(as

specified in §60.2710(x))

Sulfur dioxide 600 parts per

million dry volume 3-run average

(for Method 6, collect a minimum of 20 liters; for Method 6C, 1 hour minimum sample time per run) Performance test

(Method 6 or 6c at 40 CFR part 60, appendix A-4).

a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ] b All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit.Page 513 of 526

c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to §60.2720 if all of the other provision of §60.2720 are met. For all other pollutants that do not contain a footnote “c”, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or 75 percent of this limit in order to qualify for skip testing.

87. Table 9 of Subpart DDDD is added as follows: Table 9 to Subpart DDDD of Part 60—Model Rule—Emission Limitations That Apply to Small, Remote Incinerators After [Date to be specified in state plan] a

For the air pollutant You must meet

this emission limitation b Using this averaging time And determining

compliance using this method Cadmium 0.61

milligrams per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter) Performance test (Method 29 at 40 CFR part60, appendix A8). Carbon monoxide 31 parts per

million dry volume 3-run average (1

hour minimum sample time per run) Performance test (Method 10 at 40 CFR part60, appendix A4). Dioxins/furans (total mass basis) 1,200

nanograms per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter) Performance test (Method 23 at 40 CFR part60, appendix A7). Dioxins/furans (toxic equivalency basis) 57 nanograms

per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter) Performance test (Method 23 at 40 CFR part60, appendix A7). Hydrogen chloride 220 parts per

million dry volume 3-run average (For

Method 26, collect a minimum volume of 120 liters per run. Performance test (Method 26 or 26A at 40 CFR part 60,Page 514 of 526

For the air pollutant You must meet

this emission limitation b Using this averaging time And determining

compliance using this method For Method 26A, collect a minimum volume of 1 dry standard cubic meter per run) appendix A-8).

Lead 2.7

milligrams per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter) Performance test (Method 29 at 40 CFR part60, appendix A8). Mercury 0.0057

milligrams per dry standard cubic meter 3-run average (For

Method 29 and ASTM D6784- 02 (Reapproved 2008) c , collect a minimum volume of 2 dry standard cubic meters per run. For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A) Performance test (Method 29 or 30B at 40 CFR part 60, appendix A-8) or ASTM D6784- 02 (Reapproved 2008) c

.

Oxides of nitrogen 240 parts per

million dry volume 3-run average (for

Method 7E, 1 hour minimum sample time per run) Performance test (Method 7 or 7E at 40 CFR part 60, appendix A-4). Particulate matter filterable 230

milligrams per dry standard cubic meter 3-run average

(collect a minimum volume of 1 dry standard cubic meter) Performance test (Method 5 or 29 at 40 CFR part 60, appendix A- 3 or appendix A-8). Sulfur dioxide 420 parts per

million dry volume 3-run average (for

Method 6, collect a minimum of 20 liters per run; for Method 6C, 1 hour minimum sample time per run) Performance test (Method 6 or 6c at 40 CFR part 60, appendix A-4).Page 515 of 526

For the air pollutant You must meet

this emission limitation b Using this averaging time And determining

compliance using this method Fugitive ash Visible

emissions for no more than 5 percent of the hourly observation period Three 1-hour

observation periods Visible emission test (Method 22 at 40 CFR part 60, appendix A-7).

a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER ]. b All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. c Incorporated by reference, see §60.17.

PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION

UNITS

88. The authority citation for part 241 continues to read

as follows: Authority : 42 U.S.C. 6903, 6912, 7429.

SUBPART A -- General

89. Section 241.2 is amended by:

a. Revising the definition of “clean cellulosic biomass”;

b. Revising the definition of “contaminants”;

c. Revising the definition of “established tire collection programs”; andPage 516 of 526

d. Revising the definition of “resinated wood”. §241.2 Definitions.

* * * * *

Clean cellulosic biomass means those residuals that are akin to traditional cellulosic biomass, including, but not limited to: agricultural and forest-derived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, sawdust, trim, tree harvesting residuals from logging and sawmill materials, hogged fuel, wood pellets, untreated wood pallets);urban wood (e.g., tree trimmings, stumps, and related forestderived biomass from urban settings); corn stover and other biomass crops used specifically for the production of cellulosic biofuels (e.g., energy cane, other fast growing grasses, byproducts of ethanol natural fermentation processes); bagasse and other crop residues (e.g., peanut shells, vines, orchard trees, hulls, seeds, spent grains, cotton byproducts, corn and peanut production residues, rice milling and grain elevator operation residues); wood collected from forest fire clearance activities, trees and clean wood found in disaster debris, clean biomass from land clearing operations, and clean construction and demolition wood. These fuels are not secondary materials or

solid wastes unless discarded. Clean biomass is biomass that does not contain contaminants at concentrations not normally associated with virgin biomass materials.Page 517 of 526

* * * * *

Contaminants means all pollutants listed in Clean Air Act sections 112(b) or 129(a)(4), with the following three

modifications: (1) The definition includes the elements chlorine, fluorine, nitrogen, and sulfur in cases where non-hazardous secondary materials are burned as a fuel and combustion will result in the formation of hydrogen chloride (HCl), hydrogen fluoride (HF), nitrogen oxides (NOx), or sulfur dioxide (SO 2 ). Chlorine, fluorine, nitrogen, and sulfur are not included in the definition in cases where non-hazardous secondary materials are used as an ingredient and not as a fuel. (2) The definition does not include the following pollutants that are either unlikely to be found in non-hazardous secondary materials and products made from such materials or are adequately measured by other parts of this definition: hydrogen chloride (HCl), chlorine gas (Cl 2 ), hydrogen fluoride (HF), nitrogen oxides (NO x ), sulfur dioxide (SO 2 ), fine mineral fibers, particulate matter, coke oven emissions, opacity, diazomethane, white phosphorus, and titanium tetrachloride.(3) The definition does not include m-cresol, o-cresol, pcresol, m-xylene, o-xylene, and p-xylene as individual contaminants distinct from the grouped pollutants total cresols and total xylenes.Page 518 of 526

* * * * * Established tire collection program means a comprehensive collection system or contractual arrangement that ensures scrap

tires are not discarded and are handled as valuable commodities through arrival at the combustion facility. This can include tires that were not abandoned and were received from the general public at collection program events.

* * * * *

Resinated wood means wood products (containing binders and adhesives) produced by primary and secondary wood products manufacturing. Resinated wood includes residues from the manufacture and use of resinated wood, including materials such as board trim, sander dust, panel trim, and off-specification resinated wood products that do not meet a manufacturing quality

or standard.

* * * * * SUBPART B - Identification of Non-Hazardous Secondary Materials that are Solid Wastes When Used as Fuels or Ingredients in

Combustion Units

90. Amend 241.3 as follows:

a. Revise paragraph (a) and (b).

b. Revise the introductory paragraph of paragraph (c), and paragraphs (c)(1), (c)(2), (c)(2)(ii), (iii) and (iv).Page 519 of 526

c. Revise paragraph (d)(1)(iii).

§241.3 Standards and Procedures for Identification of NonHazardous Secondary Materials that are Solid Wastes When Used as Fuels or Ingredients in Combustion Units. (a) Except as provided in paragraph (b) of this section or in §241.4(a) of this subpart, non-hazardous secondary materials that are combusted are solid wastes, unless a petition is submitted to, and a determination granted by, the EPA pursuant to paragraph (c) of this section. The criteria to be addressed in the petition, as well as the process for making the non-waste determination, are specified in paragraph (c) of this section. (b) The following non-hazardous secondary materials are not

solid wastes when combusted: (1) Non-hazardous secondary materials used as a fuel in a combustion unit that remain within the control of the generator and that meet the legitimacy criteria specified in paragraph (d)(1) of this section. (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) [Reserved]Page 520 of 526

(ii) [Reserved] (3) Non-hazardous secondary materials used as an ingredient in a combustion unit that meet the legitimacy criteria specified in paragraph (d)(2) of this section. (4)Fuel or ingredient products that are used in a combustion unit, and are produced from the processing of discarded non-hazardous secondary materials and that meet the legitimacy criteria specified in paragraph (d)(1) of this section, with respect to fuels, and paragraph (d)(2) of this section, with respect to ingredients. The legitimacy criteria apply after the non-hazardous secondary material is processed toproduce a fuel or ingredient product. Until the discarded nonhazardous secondary material is processed to produce a non-waste fuel or ingredient, the discarded non-hazardous secondary material is considered a solid waste and would be subject to all appropriate federal, state, and local requirements. (c) The Regional Administrator may grant a non-waste determination that a non-hazardous secondary material that is used as a fuel, which is not managed within the control of the generator, is not discarded and is not a solid waste when combusted. This responsibility may be retained by the Assistant Administrator for the Office of Solid Waste and Emergency Response if combustors are located in multiple EPA Regions and the petitioner requests that the Assistant Administrator processPage 521 of 526

the non-waste determination petition. If multiple combustion units are located in one EPA Region, the application must be submitted to the Regional Administrator for that Region. The criteria and process for making such non-waste determinations includes the following: (1) Submittal of an application to the Regional Administrator for the EPA Region where the facility or

facilities are located or the Assistant Administrator for the Office of Solid Waste and Emergency Response for a determination that the non-hazardous secondary material, even though it has been transferred to a third party, has not been discarded and is indistinguishable in all relevant aspects from a fuel product.

The determination will be based on whether the non-hazardous secondary material that has been discarded is a legitimate fuel as specified in paragraph (d)(1) of this section and on the following criteria:

* * * (2) The Regional Administrator or Assistant Administrator for the Office of Solid Waste and Emergency Response will evaluate the application pursuant to the following procedures: (i) * * * (ii) The Regional Administrator or Assistant Administrator for the Office of Solid Waste and Emergency Response will evaluate the application and issue a draft notice tentativelyPage 522 of 526

granting or denying the application. Notification of this tentative decision will be published in a newspaper advertisement or radio broadcast in the locality where the facility combusting the non-hazardous secondary material is located, and be made available on the EPA’s web site. (iii) The Regional Administrator or the Assistant Administrator for the Office of Solid Waste and Emergency Response will accept public comments on the tentative decision for 30 days, and may also hold a public hearing upon request or at his discretion. The Regional Administrator or the Assistant Administrator for the Office of Solid Waste and Emergency Response will issue a final decision after receipt of comments and after a hearing (if any). If a determination is made that the non-hazardous secondary material is a non-waste fuel, it will be retroactive and apply on the date the petition was

submitted. (iv) If a change occurs that affects how a non-hazardous secondary material meets the relevant criteria contained in this paragraph after a formal non-waste determination has been granted, the applicant must re-apply to the Regional

Administrator or the Assistant Administrator for the Office of Solid Waste and Emergency Response for a formal determination that the non-hazardous secondary material continues to meet the relevant criteria and, thus, is not a solid waste.Page 523 of 526

(d) * * * (1) * * * (iii) The non-hazardous secondary material must contain contaminants or groups of contaminants at levels comparable in concentration to or lower than those in traditional fuel(s) which the combustion unit is designed to burn. In determining which traditional fuel(s) a unit is designed to burn, persons may choose a traditional fuel that can be or is burned in the particular type of boiler, whether or not the combustion unit is permitted to burn that traditional fuel. In comparing contaminants between traditional fuel(s) and a non-hazardous secondary material, persons can use data for traditional fuel contaminant levels compiled from national surveys, as well as contaminant level data from the specific traditional fuel being replaced. To account for natural variability in contaminant levels, persons can use the full range of traditional fuel contaminant levels, provided such comparisons also consider variability in non-hazardous secondary material contaminant levels. Such comparisons are to be based on a direct comparison of the contaminant levels in both the non-hazardous secondary material and traditional fuel(s) prior to combustion.

* * * * * 4. Add §241.4 to read as follows:Page 524 of 526

§241.4 Non-Waste Determinations for Specific Non-Hazardous Secondary Materials When Used as a Fuel. (a) The following non-hazardous secondary materials are not

solid wastes when used as a fuel in a combustion unit: (1) Scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification

tires. (2) Resinated wood. (3) Coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal

refuse. (4) Dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials. (b) Any person may submit a rulemaking petition to the Administrator to identify additional non-hazardous secondary materials to be listed in paragraph (a) of this section. Contents and procedures for the submittal of the petitions include the following: (1) Each petition must be submitted to the Administrator by

certified mail and must include:Page 525 of 526

(i) The petitioner's name and address; (ii) A statement of the petitioner's interest in the proposed action; (iii) A description of the proposed action, including (where appropriate) suggested regulatory language; and (iv) A statement of the need and justification for the proposed action, including any supporting tests, studies, or other information. Where the non-hazardous secondary material does not meet the legitimacy criteria, the applicant must explain why such non-hazardous secondary material should be considered a non-waste fuel, balancing the legitimacy criteria

with other relevant factors. (2) The Administrator will make a tentative decision to grant or deny a petition and will publish notice of such tentative decision, either in the form of an advanced notice of proposed rulemaking, a proposed rule, or a tentative determination to deny the petition, in the Federal Register for written public comment. (3) Upon the written request of any interested person, the Administrator may, at its discretion, hold an informal public hearing to consider oral comments on the tentative decision. A person requesting a hearing must state the issues to be raised and explain why written comments would not suffice to communicate the person's views. The Administrator may in anyPage 526 of 526

case decide on its own motion to hold an informal public hearing. (4) After evaluating all public comments the Administrator will make a final decision by publishing in the Federal Register a regulatory amendment or a denial of the petition. (5) The Administrator will grant or deny a petition based on the weight of evidence showing the following: (i) The non-hazardous secondary material has not been discarded in the first instance and is legitimately used as a fuel in a combustion unit, or if discarded, has been sufficiently processed into a material that is legitimately used

as a fuel. (ii) Where any one of the legitimacy criteria in section 241.3(d)(1) is not met, that the use of the non-hazardous secondary material is integrally tied to the industrial production process, that the non-hazardous secondary material is functionally the same as the comparable traditional fuel, or other relevant factors as appropriate.