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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-AR15 and 2050-AG44

[EPA–HQ–RCRA–2008-0329; FRL- ]

Commercial and Industrial Solid Waste Incineration Units: 

Reconsideration and Proposed Amendments; Non-Hazardous Secondary 

Materials That Are Solid Waste: Proposed Rule

AGENCY: Environmental Protection Agency.

ACTION: Proposed rules; Reconsideration of final rule.

SUMMARY: On March 21, 2011, the EPA promulgated its final 

response to the 2001 voluntary remand of the December 1, 2000, 

new source performance standards and emission guidelines for 

commercial and industrial solid waste incineration units and the

vacatur and remand of several definitions by the District of 

Columbia Circuit Court of Appeals in 2007. Following that 

action, the Administrator received petition[s] for 

reconsideration as well as identified some issues that warrant 

further opportunity for public comment. In response to the 

petition[s], the EPA is reconsidering and requesting comment on 

several provisions of the final new source performance standards 

and emission guidelines for commercial and industrial solid 

waste incineration units. 
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In addition, the EPA is proposing amendments to the 

regulations which 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 proposed amendments is to clarify 

several provisions in order to implement the Non-Hazardous 

Secondary Materials rule as the Agency originally intended.

DATES: Comments must be received on or before [INSERT THE DATE 

45 DAYS AFTER THE DATE OF PUBLICATION OF THE PROPOSED RULE IN 

THE FEDERAL REGISTER].

Public Hearing. If anyone contacts the EPA requesting to 

speak at a public hearing by [INSERT THE DATE 10 DAYS AFTER THE 

DATE OF PUBLICATION OF THE PROPOSED RULE IN THE FEDERAL 

REGISTER], a public hearing will be held on [INSERT THE DATE 15 

DAYS AFTER THE DATE OF PUBLICATION OF THE PROPOSED RULE IN THE 

FEDERAL REGISTER]. For further information on the public hearing 

and requests to speak, contact Ms. Janet Eck at (919) 541–7946 

to verify that a hearing will be held. 

ADDRESSES: Submit your comments on the commercial and industrial 

solid waste incineration reconsideration and proposed rule, 
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identified by Docket ID No. EPA-HQ-OAR-2003-0119, by one of the 

following methods: 

 http://www.regulations.gov: Follow the on-line instructions 

for submitting comments.

 Email: a-and-r-Docket@epa.gov, Attention Docket ID No. EPAHQ-OAR-2003-0119. 

 Fax: (202) 566-9744, Attention Docket ID No. EPA-HQ-OAR2003-0119.

 Mail: EPA Docket Center (EPA/DC), Environmental Protection 

Agency, Mailcode 6102T, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460, Attention Docket ID No. EPA–HQ–OAR–

2003–0119. Please include a total of two copies. We request 

that a separate copy also be sent to the contact person 

identified below (see FOR FURTHER INFORMATION CONTACT).

 Hand Delivery: In person or by Courier, deliver comments 

to: EPA Docket Center (EPA/DC), Room 3334, 1301 

Constitution Ave., NW, Washington, DC 20004. Such 

deliveries are accepted only during the docket’s normal 

hours of operation, and special arrangements should be made 

for deliveries of boxed information.

Submit your comments on the Non-Hazardous Secondary 

Materials proposed rule, identified by Docket ID No. EPA-HQRCRA-2008-0329, by one of the following methods:

 www.regulations.gov: Follow the on-line instructions for 

submitting comments.

 Email: Comments may be sent by electronic mail (email) to: 

rcra-docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA2008-0329. 

 Fax: Comments may be faxed to 202-566-9744, Attention 

Docket ID No. EPA-HQ- RCRA-2008-0329.

 Mail: Send comments to: RCRA Docket, EPA Docket Center, 

Environmental Protection Agency, Mailcode: 28221T, 1200 

Pennsylvania Ave., NW, Washington, DC 20460, Attention 

Docket ID No. EPA-HQ-RCRA-2008-0329. Please include a total 

of two copies of your comments. We request that a separate 

copy also be sent to the contact person identified below 

(see FOR FURTHER INFORMATION CONTACT). 
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 Hand Delivery: Deliver two copies of your comments to: 

Environmental Protection Agency, EPA Docket Center, Room 

3334, 1301 Constitution Avenue, N.W, Washington DC,

Attention Docket ID No. EPA-HQ-RCRA-2008-0329. Such 

deliveries are only accepted during the Docket’s normal 

hours of operation, and special arrangements should be made 

for deliveries of boxed information.

Instructions: Direct your comments on the commercial and 

industrial solid waste incineration reconsideration and proposal 

to Docket ID No. EPA-HQ-OAR-2003-0119. Direct your comments on 

the Non-Hazardous Secondary Materials proposed rule to Docket ID 

No. EPA-HQ-RCRA-2008-0329. The EPA’s policy is that all comments 

received will be included in the public docket without change 

and may be made available online at http://www.regulations.gov, 

including any personal information provided, unless the comment 

includes information claimed to be confidential business 

information or other information whose disclosure is restricted 

by statute. Do not submit information that you consider to be 

confidential business information or otherwise protected through 

http://www.regulations.gov or email. The 

http://www.regulations.gov website is an “anonymous access” 

system, which means the EPA will not know your identity or 

contact information unless you provide it in the body of your 

comment. If you send an email comment directly to the EPA 

without going through http://www.regulations.gov, your email 

address will be automatically captured and included as part of 
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the comment that is placed in the public docket and made 

available on the Internet. If you submit an electronic comment, 

the EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CDROM you submit. If the EPA cannot read your comment due to 

technical difficulties and cannot contact you for clarification, 

the EPA may not be able to consider your comment. Electronic 

files should avoid the use of special characters, any form of 

encryption, and be free of any defects or viruses. For 

additional information about the EPA’s public docket, visit the 

EPA Docket Center homepage at 

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

Docket: 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 

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, 
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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 proposed 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. 

For further information regarding the Non-Hazardous 

Secondary Materials proposed rule, contact Mr. George Faison, 

Program Implementation and Information Division, Office of 

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.

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

ANPRM Advanced Notice of Proposed Rulemaking
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ANSI American National Standards Institute

APA Administrative Procedure Act

ARIPPA Anthracite Region Independent Power 

Producers Association

ASME American Society of Mechanical Engineers 

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 

Cd Cadmium 

CDX Central Data Exchange

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 

CO2 Carbon Dioxide

Catalyst Carbon Monoxide Oxidation Catalyst 

Cl2 Chlorine Gas

The Court U.S. Court of Appeals for the District of Columbia 

Circuit

CSA Canadian Standards Association

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
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HAP Hazardous Air Pollutants

HCl Hydrogen Chloride 

HF Hydrogen Fluoride (HF)

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

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

ND Nondetect

NESHAP National Emission Standards for Hazardous Air 

Pollutants 

ng/dscm Nanograms per Dry Standard Cubic Meter

NHSM Non-Hazardous Secondary Material(s)

NOx 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 
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ppmvd Parts Per Million by Dry Volume 

PRA Paper Reduction Act

PS Performance Specification

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

SNCR Selective Noncatalytic Reduction 

SO2 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

TSR Thermal Sand Reclamation

TTN Technology Transfer Network 

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

UTL Upper Tolerance Limit

VCS Voluntary Consensus Standards

VOC Volatile Organic Compound

WWW Worldwide Web

A. Does this document of reconsideration and proposal apply to 

me?
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Categories and entities potentially affected by the 

proposed 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:

Category NAICS1

Code

Examples of potentially regulated 

entities

Any industrial 

or commercial 

facility using 

a solid waste 

incinerator

211, 212, 

486

Mining, oil and gas exploration 

operations; pipeline operators

221 Utility providers

321, 322, 

337

Manufacturers of wood products; 

manufacturers of pulp, paper and 

paperboard; manufacturers of 

furniture and related products 

325, 326

Manufacturers of chemicals and allied 

products; manufacturers of plastics 

and rubber products

327

Manufacturers of cement; nonmetallic 

mineral product manufacturing

333, 336

Manufacturers of machinery; 

manufacturers of transportation 

equipment 

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 

destruction2

111 Crop Production

112 Animal Production

113 Forestry and Logging
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Category NAICS1

Code

Examples of potentially regulated 

entities

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 Pulp, Paper, and Paper Products

324 Petroleum and Coal Products 

Manufacturing

325 Chemical Manufacturing

326 Plastics and Rubber Products 

Manufacturing

327 Non-Metallic Mineral Product 

Manufacturing

331 Primary Metal Manufacturing

332 Fabricated and 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 Durable Goods Merchant Wholesalers

424 Nondurable Goods Merchant Wholesalers

44-45 Retail Trade

486 Pipeline Transportation

493 Warehousing and Storage

511 Publishing Industry (except internet)

531 Real Estate

541 Professional, Scientific, and 

Technical Services

611 Educational Services
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Category NAICS1

Code

Examples of potentially regulated 

entities

622 Hospitals

623 Nursing and Residential Care 

Facilities

624 Social Assistance

713930 Marinas

721 Lodging, Restaurant

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.

This table is not intended to be exhaustive, but rather 

provides a guide for readers regarding entities likely to be 

affected by the proposed action. To determine whether your 

facility would be affected by the proposed 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 proposed 

action to a particular entity, contact the person listed in the 

preceding FOR FURTHER INFORMATION CONTACT section.

B. What should I consider as I prepare my comments to the EPA?

Submitting CBI. Do not submit information that you consider 

to be CBI electronically through http://www.regulations.gov, or 

email. For comments on the CISWI reconsideration and proposal, 

send or deliver information identified as CBI to only the 
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following address: Ms. Toni Jones, c/o OAQPS Document Control 

Officer (Room C404-02), U.S. Environmental Protection Agency, 

Research Triangle Park, North Carolina 27711, Attn: Docket ID 

No. EPA-HQ-OAR-2003-119. 

Clearly mark the part or all of the information that you 

claim to be CBI. For CBI information in a disk or CD-ROM that 

you mail to the EPA, mark the outside of the disk or CD-ROM as 

CBI and then identify electronically within the disk or CD-ROM 

the specific information that is claimed as CBI. In addition to 

one complete version of the comment that includes information 

claimed as CBI, a copy of the comment that does not contain the 

information claimed as CBI must be submitted for inclusion in 

the public docket. If you submit a disk or CD-ROM that does not 

contain CBI, mark the outside of the disk or CD-ROM clearly that 

it does not contain CBI. Information marked as CBI will not be 

disclosed except in accordance with procedures set forth in 40 

CFR part 2.

If you have any questions about CBI or the procedures for 

claiming CBI, please consult the person identified in the FOR 

FURTHER INFORMATION CONTACT section.

C. How do I obtain a copy of this document and other related 

information?
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The docket number for the proposed 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 proposed action is available on the WWW through the 

TTN Web. Following signature, the EPA posted a copy of the 

proposed 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. 

Organization of this Document. The following outline is 

provided to aid in locating information in this preamble. 

I. CISWI Reconsideration and Proposal

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?

B. Actions We Are Taking

C. Discussion of Issues for Reconsideration

1. Revision of the Subcategories

2. Establishment of Limitations on Fuel Switching Provisions

3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil 

Treatment Units, Laboratory Analysis Units, and Space 

Heaters from CISWI Subcategories

4. Providing an affirmative defense for malfunction events

5. Revisions to the CO Monitoring Requirements

6. Establishing a Full-load Stack Test Requirement for CO 

Coupled with Continuous Oxygen Monitoring
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7. Establishing a Definition of “Homogeneous Waste”

8. Incorporating Fuel Variability into Emission Limit 

Calculations

9. Review of D/F Data and Non-detect Methodology Using Three 

Times the Detection Level

10. Providing an Option for Sources to Use Emissions 

Averaging to Demonstrate Compliance

11. Definitions

12. Allowances for Using Feed Stream Analysis or Other 

Supplemental Information to Demonstrate Compliance

13. Providing Percent Reduction Alternative Standards

14. Providing Parametric Monitoring Provisions for Additional 

Control Device Types

15. Revisions to the Continuous Monitoring Provisions for 

Large ERUs

16. Extending Compliance Dates

D. Technical Corrections and Clarifications

1. Providing a Definition of Municipal Solid Waste

2. Energy Recovery Units Designed to Burn Non-coal Solid 

Materials

3. Typographical Errors and Corrections

E. Environmental, Energy and Economic Impacts

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 Proposed Revisions 

A. Statutory Authority 

B. What is the intent of this proposal?

C. What is the scope of this proposal?

1. Revised Definitions

2. Contaminant Legitimacy Criterion for NHSM Used as Fuels

3. Categorical Non-Waste Determinations for Specific NHSM Used as 

Fuels

4. Additional Request for Comment

5. Clarification Letters Issued After Promulgation of the NHSM 

Final Rule

6. Clarification of the Process for Submittal of Non-Waste 

Petitions 
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D. Rationale for the Proposed Revisions to the Part 241 

Requirements 

1. Revised Definitions

2. Revisions to the Contaminant Legitimacy Criterion for NHSM 

Used as Fuels

3. Categorical Determinations That Specific NHSM Are Not Solid 

Waste When Used as a Fuel

4. Rulemaking Petition Process for Other Non-Waste Determinations

E. Additional Request for Comment

F. Effect of This Proposed Rule on Other Programs

1. Clean Air Act 

2. Subtitle C Hazardous Waste Program/Definition of Solid 

Waste Rule

G. State Authority

1. Relationship to State Programs

2. State Adoption of the Rulemaking

H. Cost and Benefits of the Proposed 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

I. CISWI Reconsideration and Proposal

A. Background Information 

1. What is the history of the CISWI standards?
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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 

petition for review in the 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 EPA’s CISWI rulemaking. 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 
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CISWI rule. Therefore, the remand order had no impact on the 

implementation of the 2000 CISWI rule. 

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 remains 

in effect. 

On March 21, 2011, the EPA promulgated revised NSPS and EG 

for CISWI units (76 FR 15704). That action constitutes the EPA’s 

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). Following that action, the 

Administrator received petition[s] for reconsideration as well 
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as identified some issues that warrant further opportunity for 

public comment. In response to the petition[s], the EPA is 

reconsidering and requesting comment on several provisions of 

the final new source performance standards and emission 

guidelines for commercial and industrial solid waste 

incineration units.

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 the NHSM that are 

solid waste under RCRA in the final “Identification of NonHazardous 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 the standards 

and procedures for identifying 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 

waste-burning kilns combust, in their combustion units, 

secondary materials that are solid waste under the 2011 NHSM 

final rule. 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 
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that would otherwise be applicable to such units (e.g., boilers, 

process heaters and cement kilns).

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 

concurrent Non-hazardous Solid Waste Definition Rulemaking) 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 

this regulation under CAA section 129. Section 112 rules of the 

CAA, applicable to boilers and process heaters at major sources 

and boilers at area sources, would apply to subject boilers and 

process heaters that do not combust solid waste. Boilers and 

process heaters that combust solid waste are subject to CISWI as 

ERUs. EPA has also finalized revised CAA section 112 NESHAP from 

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 NESHAP.

B. Actions We Are Taking

In this notice, we are granting reconsideration of, and 

requesting comment on, certain issues raised by Petitioners in 
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their petitions for reconsideration and the issues identified by 

the EPA in the March 21, 2011, notice of reconsideration. These 

provisions are: 1) revision of the subcategory of ERUs; 2) 

establishment of limitations on fuel switching provisions; 3) 

revision of the definition of cyclonic burn barrels; 4) 

establishment of the procedures for providing an affirmative 

defense for malfunction events; 5) revisions to the carbon 

monoxide monitoring requirements; 6) establishment of a fullload stack test requirement for CO coupled with continuous 

oxygen monitoring for CISWI units; and 7) establishment of a 

definition of “homogeneous waste” in the CISWI rule. The EPA is 

also proposing certain revisions, which are: 1) revised emission 

limits for the waste-burning kiln and ERU subcategories to 

reflect updated inventories and additional data, 2) the removal 

of continuous CO monitoring with CO CEMS requirements, 3) the 

removal of oxygen correction requirements for CO emission limits 

for ERUs during periods of startup and shutdown, and 4) the 

replacement of continuous PM monitoring for ERUs greater than 

250 MMBtu/hr design heat input capacity with continuous 

parameter monitoring system requirements. The EPA is taking 

comment on those revisions . Additionally, the EPA is proposing 

amendments and technical corrections to the final rule to

clarify questions on final rule language and correct minor 
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typographical errors raised by stakeholders subject to the final 

rule. Section I.C. of this preamble summarizes these issues and 

discusses our proposed responses to each issue. 

We are also proposing other clarification changes and 

technical corrections to certain provisions in the final rule.

We are seeking public comment only on the issues 

specifically identified in this notice. We will not respond to 

any comments addressing other aspects of the final rule or any 

other related rulemakings.

C. Discussion of Issues for Reconsideration 

This section of the preamble contains the EPA’s basis for 

the provisions we are reconsidering in this proposed rule. We 

solicit comment on all proposed responses and revisions 

discussed in the following sections.

1. Revision of the Subcategories

Today’s proposal incorporates new emission limits based on 

revised inventories for two of the final rule subcategories, 

solid-fuel burning ERUs and waste-burning kilns. Tables 1 and 2 

present the proposed emission limits for all subcategories for 

existing and new sources, respectively.
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Table 1. Comparison of Existing Source MACT Floor Limits for 

2000 CISWI Rule and the Proposed MACT Floor Limits 

Pollutant 

(units)a

Incinerators

(2000 

CISWI 

limit) 

CISWI Subcategories

Incinerators ERUs -

Solids

ERUs –

Liquid/Gas

Wasteburning 

kilns

Small, 

remote 

incinerators

HCl 

(ppmv)

62 29 0.50 14b 3.0b 220

CO (ppmv) 157 36b 490 

(bioma

ss 

units)

/

46 

(coal 

units)

36 120 (long 

kilns) / 

410 

(preheater 

/ 

precalcine

r)

20

Pb 

(mg/dscm)

0.04 0.0036 0.0019 

(bioma

ss 

units) 

/ 

0.0031 

(coal 

units)

0.096 0.0043 2.7

Cd 

(mg/dscm)

0.004 0.0026 0.0007

8 

(bioma

ss 

units) 

/ 

0.058 

(coal 

units) 

0.023 0.00082 0.61

Hg 

(mg/dscm)

0.47 0.0054 0.0020 0.0031b 0.011b 0.0057

PM, 

filterabl

e 

(mg/dscm)

70 34 11 

(bioma

ss 

units) 

/ 86 

(coal 

units)

110 9.2 230
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Pollutant 

(units)a

Incinerators

(2000 

CISWI 

limit) 

CISWI Subcategories

Incinerators ERUs -

Solids

ERUs –

Liquid/Gas

Wasteburning 

kilns

Small, 

remote 

incinerators

Dioxin, 

furans, 

total 

(ng/dscm)

(no 

limit) 

4.6 0.52 

(bioma

ss 

units) 

/ 0.51 

(coal 

units)

b

2.9b 3.6 1,200

Dioxin, 

furans, 

TEQ 

(ng/dscm)

0.41

0.13

0.12 

(bioma

ss 

units) 

/ 

0.075 

(coal 

units)

b

0.32b 0.075b 57

NOx

(ppmv)

388 53 290 

(bioma

ss 

units)

/

340 

(coal 

units)

76 630 240

SO2

(ppmv)

20 11 7.3 

(bioma

ss 

units)

/

650 

(coal 

units)

720 830 420

a All emission limits are expressed as concentrations corrected 

to 7 percent oxygen.

b See the memorandum "CISWI Emission Limit Calculations for 

Existing and New Sources for Reconsideration Proposal" for 

details on this calculation.
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Table 2. Comparison of New Source MACT Floor Limits for 2000 

CISWI Rule and the Proposed MACT Floor Limits 

Pollutant 

(units)a

Incinerators 

(2000 

limit)

Final CISWI Subcategories

Incinerators ERUs -

Solids

ERUs –

Liquid/Gas

Wasteburning 

kilns

Small, 

remote 

incinerators

HCl (ppmv) 62 0.091 0.50c 14b 3.0b 200

CO (ppmv) 157 12 160

(biomass 

units)/

46

(coal 

units)

36 90 (long 

kilns) / 320 

(preheater / 

precalciner)

12

Pb 

(mg/dscm)

0.04 0.0019b 0.0019c

(biomass 

units) / 

0.0031 

(coal 

units)

0.096 0.0043c 0.26

Cd 

(mg/dscm)

0.004 0.0023 0.00014 

(biomass 

units) / 

0.058 

(coal 

units)

0.023 0.00082c 0.61c

Hg 

(mg/dscm)

0.47 0.00084b 0.0020c 0.00091d 0.0037b 0.0035b

PM, 

filterable 

(mg/dscm)

70 18 5.1 

(biomass 

units) / 

86 (coal 

units)c

110 8.9 230c

Dioxin, 

furans, 

total 

(ng/dscm)

(no 

limit) 

0.058b 0.52 

(biomass 

units) / 

0.51 

(coal 

units)b

(no limit) 0.51b 1,200c

Dioxin, 

furans, 

TEQ 

(ng/dscm)

0.41 0.13 0.076 

(biomass 

units) / 

0.075 

(coal 

units)b

0.093d 0.075b 31
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Pollutant 

(units)a

Incinerators 

(2000 

limit)

Final CISWI Subcategories

Incinerators ERUs -

Solids

ERUs –

Liquid/Gas

Wasteburning 

kilns

Small, 

remote 

incinerators

NOx (ppmv) 388 23 290c

(biomass 

units)/

340

(coal 

units)

76 200b 78

SO2 (ppmv) 20 11c 7.3c

(biomass 

units)/

650 

(coal 

units)

720 130 1.2

a All emission limits are measured at 7 percent oxygen.

b See the memorandum “CISWI Emission Limit Calculations for Existing and New Sources 

for Reconsideration Proposal” for details 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 “CISWI Emission Limit Calculations for Existing 

and New Sources for Reconsideration Proposal" for details.

e Hg limit was developed using material input data from CISWI kilns identified within 

the Portland Cement NESHAP database. See the memorandum "CISWI Emission Limit 

Calculations for Existing and New Sources for Reconsideration Proposal" for details on 

this calculation.

a. Energy Recovery Units

In the final rule, we established separate subcategories 

based on the types of fuels and wastes ERUs were designed to 

burn. Energy Recover Units (i.e., units that would be boilers 

and process heaters but that they combust solid waste) designed 

to burn gaseous fuels and liquids that are solid waste were 

included in one primary subcategory, and the other primary 

subcategory was for units designed to burn solid fuels or 

predominantly non-coal solid materials. The solid fuel ERU 

subcategory was further divided into separate subcategories for 
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coal and biomass units, with separate limits for CO, NOx and SO2

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.

Petitioners have contended that they did not have adequate 

opportunity to comment on the ERU subcategories presented in the 

final rule. Some have suggested that all nine emission limits 

should be divided between coal and biomass ERUs, instead of only 

having different limits for CO, NOx and SO2. We are granting 

reconsideration of our subcategorization approach for ERUs and 

are also proposing to divide emission limits for PM, Cd, Pb and 

D/F between coal and biomass units. The generation of PM is 

affected by the combustor design and operation. Therefore, 

design differences between biomass and coal ERU units have an 

impact on the generation of PM. We also are separating Cd and Pb 

with PM primarily due to the observation that these metals 

typically precipitate onto PM and are controlled along with PM. 

Finally, while D/F formation depends to some extent on the 

amount of chlorine available in the combustion gases, it is also 

affected by the amount of time the chlorine and hydrocarbon 

materials remain within a particular temperature range. The time 

gases remain in this range is a function of the combustor 

design, therefore, we have proposed separate limits for D/F as 
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well. We are taking comment on the proposed revisions to the 

subcategorization of ERUs, including whether we should also 

subcategorize for HCl and Hg. 

Since issuing the final CISWI rule, we have received data 

and information in both petitions and data submittals that 

indicated our inventory of ERUs used to develop the final rule 

standards required some adjustments to more accurately reflect 

the definition of solid waste in the 2011 NHSM final rule. Based 

on the new data, we removed five units from the final rule 

inventory that we determined to be non-waste burning units, and 

we added three units to our inventory that we determined combust 

solid waste. We also received emissions data for the newly added 

units and re-analyzed the performance of ERUs in the solidbiomass and solid-coal ERU subcategories. The emission limits in 

today’s proposal reflect the new inventory and emission data 

received; however, we have used the same methodology as in the 

final rule for establishing emission limits. We are not taking 

comment on this methodology.

b. Waste-burning Kilns

The EPA has 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 
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Waste Definition Applied” in the CISWI docket). As a result of 

this analysis, we have added 11 more kilns to our inventory of 

waste-burning kilns. We have also obtained emissions test data 

for the newly identified CISWI kilns and re-calculated the MACT 

floor emission limits for the waste-burning kilns subcategory 

based on the new inventory and additional data. 

We determined that in the case of CO emissions, it is 

appropriate to subcategorize by kiln type. In this case we are 

subcategorizing into two kiln types, long kilns (which include 

both dry and wet process kilns) and kilns that have preheaters 

(with or without precalciners. A review of the available data 

for CO emissions for CISWI kilns indicates that there are 

significant differences between CO emissions for these two types 

of kilns. The CO emissions from the three long kilns were all 

below 100 ppmv. CO emissions from the three preheater kilns were 

all above 300 ppmv. We note that the CO emission factors for 

long kilns are at least a factor of 5 less than those for 

preheater or preheater precalciner kilns. We attribute this 

difference to the presence of the preheater, which results in a 

different temperature profile than exists in the cold end 

section of a long kiln.

As with the new ERU standards, we have used the same 

methodology to establish today’s proposed emission limits as we 
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used for the final rule; therefore, we are not accepting comment 

on the methodology used to calculate the limits. We are also 

requesting comment on whether waste-burning kiln emission limits 

should be expressed on a production (e.g., lb per million tons 

clinker produced) basis instead of, or in addition to, 

concentration based limits. Table 3 presents the emission limits 

for PM, NOx, SO2 and Hg on a production basis for comparison. 

Comments should clarify which pollutants could warrant 

production-based limits and the rationale for using a production 

basis.

Table 3. Waste-burning Kiln Emission Limits Expressed in 

Production Basis

Pollutant (units) Existing kilns New kilns

Hg (lb/MM ton clinker) 58 21

PM (lb/ton clinker) 0.052 0.050

NOx (lb/ton clinker) 6.7 2.1

SO2 (lb/ton clinker) 12.3 1.9

2. Establishment of Limitations on Fuel Switching Provisions

The final rule included provisions to address the situation 

where CISWI units cease combusting solid waste, and where 

existing commercial and industrial facilities start combusting 

solid waste. Units that cease combusting solid waste remain 

subject to CISWI for at least 6 months after solid waste is 

added to the combustion chamber. After 6 months, sources must 

either comply with any applicable section 112 standards or, if 

they intend to combust solid waste in the unit in the future, 
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opt to remain subject to CISWI. Sources switching out of CISWI 

due to cessation of solid waste combustion must submit advance 

notification of the effective date of the waste-to-non-waste 

fuel switch consistent with new procedures in the final rule. 

Units that begin combusting solid waste are considered affected 

sources under CISWI EG, and must comply as expeditiously as 

possible as required by the state or federal CISWI 111(d)/129 

plan revision, whichever is applicable. 

The EPA acknowledges that sources may stop and start 

combusting solid waste in their combustion units, and that 

regulatory procedures are necessary to guide sources through the 

changes in applicability that may result due to a switch in 

combustion materials. The provisions in the final rule account 

for the fact that facilities may start and stop combusting solid 

waste and ensure that any resulting changes in applicability 

between section 129 and section 112 rules do not occur with so 

much frequency that sources are unable to demonstrate continuing 

compliance with the applicable standards. To ensure that 

frequent switching does not impede our ability to determine 

continuous compliance and create undue permitting and testing 

burdens, sources remain subject to CISWI for a minimum of 6 

months. The definition of CISWI unit has been revised to clarify 

that a CISWI unit includes a distinct operating unit of any 
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Page 32 of 379

commercial or industrial facility that combusts any solid waste 

in a consecutive 6-month period. We believe this change will 

reduce administrative and compliance costs to both the source 

and the regulatory agencies. For example, sources will not have 

to re-establish initial compliance with CISWI or revise their 

operating permit to reflect a switch out of and back into the 

CISWI regulations. Instead, facilities that combust solid waste 

would continue to be subject to the CISWI regulations for the 6 

month period after waste is added to the combustion unit. For 

example, if a source burns waste on January 1, they would be 

subject to CISWI through June 30. If during that 6 month period 

they burned waste again, for example on March 1, the 6 month 

window would now be until September 30. The regulations also 

allow facilities to remain subject to CISWI beyond 6 months 

after cessation of solid waste combustion, at their own 

discretion, if the source determines that continued compliance 

with CISWI is appropriate because the source intends to combust 

solid waste in the future. Source owners or operators may, 

alternatively, choose a date at least 6 months after ceasing 

solid waste combustion on which they would no longer be subject 

to CISWI, and would instead be subject to any applicable section 

112 standards. This date is called the effective date of the 

waste-to-fuel switch. 
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Specifically, the new provisions direct a source owner or 

operator to establish an effective date for the waste-to-nonwaste fuel, or non-waste fuel-to-waste switch, and that date 

becomes the date on which all of the newly applicable 

requirements apply. When a source begins combusting solid waste, 

the effective date of the non-waste fuel-to-waste switch must be 

the same as the actual date the unit begins combusting solid 

waste because by statute any source that combusts any solid 

waste is a solid waste incineration unit subject to standards 

under CAA section 129. See section 129(g)(1) (defining “solid 

waste incineration unit”). For sources that cease burning solid 

waste, the effective date for the waste-to-fuel switch is a date 

that is at least 6 months after the last date on which solid 

waste is added to the combustion unit. This allows sources that 

cease combusting solid waste to comply with an applicable NESHAP 

or opt to remain subject to CISWI at the discretion of the owner 

or operator. We allow the owner or operator of a CISWI unit the 

option of remaining subject to CISWI to account for sources that 

may want to retain the ability to burn waste intermittently 

without having to periodically switch between the section 112 

and section 129 regulatory programs. If a source wishes to end 

applicability of CISWI to its unit, the source must submit an 

advance notification of the effective date, established as 
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described above, of the waste-to-non-waste fuel switch. The 

source must be in compliance on the effective date of the wasteto-non-waste fuel switch with any NESHAP that applies as a 

result of ceasing the combustion of solid waste. The source must 

remain in continuous compliance with the CISWI regulations until 

that date.

The new waste-to-non-waste fuel switch provisions in the 

final rule include requirements to conduct performance testing 

that will assure compliance with all applicable standards. 

Specifically, performance tests must be conducted within 60 days 

of the date on which the unit begins combusting solid waste. In 

addition, the owner or operator must collect and report any PM 

CEMS and/or PM parametric monitoring data for those monitors 

that are operated at the same time as the performance test to 

determine whether the existing calibrations and/or correlations 

are still applicable. After the testing is completed, and it is 

demonstrated that the source is operating in compliance with the 

applicable standards, the owner or operator should adjust any PM 

CEMS calibration and any correlation for PM to correspond to the 

performance test results and data.

The new provisions also require advance notification of the 

effective date of the waste-to-non-waste fuel switch. The 

notification includes basic information that will enable the 
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reviewing authority to determine the date on which CISWI will no 

longer apply to the facility and the date on which any newly 

applicable section 112 regulations may apply. Notification must 

be submitted to both the EPA Regional Office and the delegated 

state or local agency. To ensure that frequent switching does 

not impede our ability to determine continuous compliance, 

sources may not switch between applicable section 129 and 

section 112 standards without completing the initial performance 

test. Therefore, sources that wish to start burning solid waste 

before they have demonstrated compliance with their existing 

section 112 standard must complete the performance test for the 

112 rule before switching to solid waste combustion. If a source 

switches back to a non-waste fuel or non-waste material for 

which a performance test was conducted within the 6 months 

preceding the effective date of the switch, and if there are no 

changed conditions that would affect emissions, the source need 

not retest that source until 6 months from the effective date of 

the switch. If a source is subject to any emission limits for 

which compliance is determined on an annual average or other 

averaging period that is for a period of time greater than the 

period in which the source will be combusting the fuel or nonwaste material, the source must comply with the emission limit 

averaged over the shorter time period in which the fuel or 
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material is combusted. For example, if a source chooses to 

demonstrate compliance with the Hg limits of the major source 

Boiler NESHAP through fuel analysis, which has a 12-month 

rolling average limit, and opts to start combusting solid waste 

and become subject to CISWI after combusting the fuel under the 

Boiler NESHAP for only 9 months, the source must demonstrate 

compliance with the Hg limit based on a 9 month rolling average 

instead of the annual average. The EPA believes this is 

necessary to assure that switching to solid waste combustion 

does not compromise our ability to determine compliance with 

standards under section 112. 

The rules do not allow for compliance extensions associated 

with changes to the fuels or materials that are combusted. After 

the first substantive compliance date (e.g., the effective date 

of the state program or 5 years after publication of the final 

CISWI rule for incineration units), sources must be in 

compliance with the standard that is applicable to the source 

based on the type of unit and the fuels or materials that are 

combusted. An existing source will not be considered a new 

source solely due to a combustion material switch. Assuming new 

source applicability is not triggered, existing sources that 

change fuels or materials are considered existing sources and, 

as such, they must be in compliance on the date they begin 
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combusting the new fuel or material. For all sources that 

commence combustion of solid waste, the CISWI requirements 

become applicable on the date that the fuel switch occurs. 

While we believe the final rule reflects reasonable 

approaches consistent with the requirements of the CAA, we 

believe reconsideration and an additional opportunity for public 

review and comment are appropriate. Therefore, we are seeking 

comment on the fuel switching provisions included in the final 

CISWI rule, particularly on whether the provisions should 

include further clarification on the timeline and regulatory 

requirements of a fuel switch. Additionally, we are soliciting 

comment on an alternative time period for switching frequency 

(e.g., 12 months). 

3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil 

Treatment Units, Laboratory Analysis Units, and Space Heaters 

from CISWI Subcategories

The EPA included in the final rule definitions for units 

that differentiated such units from the four subcategories for 

which the Agency finalized standards on March 21, 2011. The 

definitions were not proposed and the EPA is proposing those 

definitions in this notice to provide the public an opportunity 

to comment on them. We discuss each definition below.
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In the proposed CISWI rule, the EPA included cyclonic burn 

barrels within the definition for incinerators. Based on the 

information received during the comment period, the EPA 

determined that cyclonic burn barrels and traditional 

incinerators should be separate subcategories. See 40 CFR 

60.2265 and 60.2875 (defining “cyclonic burn barrel” to mean 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 ERU or a small, remote 

incinerator under subparts CCCC or DDDD.)

In addition, information we have obtained since proposal 

indicates that there may be many more cyclonic burn barrels than 

those we have identified, and we have almost no emission data on 

which to set emissions standards for cyclonic burn barrels. We 

also received information that it is difficult, if not 

impossible, to test cyclonic burn barrels for the CAA section 

129 pollutants using available test methods. For these reasons, 

we concluded in the final rules that cyclonic burn barrels were 

not incinerators and that we could not establish standards for 

such units at the time we issued the final rules. We further 
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determined in the final rule that we did not need to regulate 

cyclonic burn barrels to comply with our CAA section 112(c)(6) 

obligation for the reasons set forth in the preamble to the 

final rule. We have not received any new emission data for 

cyclonic burn barrels; therefore, we are not proposing to 

establish standards such units in this notice. We solicit 

comment concerning our decisions in regard to cyclonic burn 

barrels and the definition as set forth in the final rule.

We estimated in the proposed CISWI rule that there were 

approximately 36 burn-off ovens and we proposed standards for 

the subcategory based on an incomplete emission data set. We 

received many comments during the comment period that indicated 

that there may be 15,000 more units in the burn-off oven 

subcategory than we had identified, and the comments also 

indicated that the subcategory for which we established one set 

of standards in fact has many different types of units that 

should not be regulated under one standard. Based on the 

comments, the lack of data, and our determination that we did 

not need to regulate burn-off ovens to comply with our CAA 

section 112(c)(6) obligation, we did not finalize standards for 

burn-off ovens. We revised the definition of burn-off oven in 

the final rule to distinguish such units from the units for 

which we established standards. We have not received data that 
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Page 40 of 379

would allow us to establish standards for the various burn-off 

oven subcategories and, therefore, we are not proposing 

standards in this reconsideration notice. We solicit comment on 

our decisions concerning to burn-off ovens and on our definition 

as set forth in the final rule. 

The EPA believed there were two soil treatment units prior 

to proposing the CISWI standards and we proposed to include soil 

treatment units in the waste-burning kilns subcategory. 

Commenters indicated that soil treatment units are not kilns and 

also that the Agency had significantly underestimated the number 

of such units currently in operation. Based on the comments and 

our determination that we did not need such units to comply with 

our CAA section 112(c)(6) obligation, we did not finalize 

standards for soil treatment units. We included a definition for 

soil treatment unit in the final rule to distinguish such units 

from the units for which we established standards. We have not 

received additional data since issuing the final standards that 

would allow us to adequately characterize the soil treatment 

unit subcategory and we are not proposing standards for such 

units in this reconsideration notice. We solicit comment 

concerning our decisions in regard to soil treatment units and 

our definition as set forth in the final rule.
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The EPA received many comments concerning laboratory 

analysis units during the comment period on the proposed rule. 

The EPA concluded based on those comments that samples used in 

laboratory analysis units have a purpose separate from the 

disposal of material. Furthermore, we believe based on the 

information available that the material that is combusted in 

such units is likely not a solid waste as that term is defined 

in the 2011 NHSM final rule. For these reasons and because we 

determined we do not need such units to comply with our CAA 

112(c)(6) obligation, we included in the final rule a definition 

of laboratory analysis unit that distinguishes such units from 

the units for which we established standards. We have not 

received any information since issuing the final rule on the 

emissions from laboratory analysis units or the nature of the 

material combusted in such units that causes us to revise the 

conclusions reached in the final rule. We solicit comment 

concerning our decisions in regard to laboratory analysis units 

and our definition as set forth in the final rule.

The EPA did not consider space heaters in the proposed 

rule. The Agency received comments inquiring whether such units 

were subject to the proposed standards if they combusted solid 

waste. Because the EPA did not consider such units when 

proposing the CISWI standards and we did not have emissions data 
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for space heaters, we included in the final rule a definition of 

space heaters that was intended to distinguish such units from 

the units for which the Agency finalized standards. As with the 

other units discussed in this section, the EPA does not have to 

regulate space heaters to comply with the CAA 112(c)(6) 

obligation. We have not received any emissions information on 

space heaters since issuing the final CISWI standards; 

therefore, we are not proposing to regulate such units in the 

reconsideration notice. We have, however, identified 

typographical errors included in the definition of space heater 

contained in the final CISWI standards and we are proposing a 

definition that corrects those typographical errors: “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.” We solicit comment our 

decisions in regard to space heaters and our revised definition 

set forth above.

4. Providing an affirmative defense for malfunction events

The EPA recognizes that even equipment that is properly 

designed and maintained can sometimes fail and that such failure 

can sometimes cause an exceedance of the relevant emission 

standard. (See, e.g., State Implementation Plans: Policy 
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Regarding Excessive Emissions During Malfunctions, Startup, and 

Shutdown (Sept. 20, 1999); Policy on Excess Emissions During 

Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 

1983)). The EPA therefore added to the final rule an affirmative 

defense to civil penalties for exceedances of emission limits 

that are caused by malfunctions. See 40 CFR 60.2265 and 60.2875 

(defining “affirmative defense” to mean, 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.). We also 

added other regulatory provisions to specify the elements that 

are necessary to establish this affirmative defense; the source 

must prove by a preponderance of the evidence that it has met 

all of the elements set forth in 60.2120 and 60.2685. See 40 CFR 

22.24. The criteria ensure that the affirmative defense is 

available only where the event that causes an exceedance of the 

emission limit meets the narrow definition of malfunction in 40 

CFR 60.2 (sudden, infrequent, not reasonable preventable and not 

caused by poor maintenance and/or careless operation). For 

example, to successfully assert the affirmative defense, the 

source must prove by a preponderance of the evidence that excess 

emissions “[w]ere caused by a sudden, infrequent, and 
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unavoidable failure of air pollution control and monitoring 

equipment, process equipment, or a process to operate in a 

normal or usual manner....” The criteria also are designed to 

ensure that steps are taken to correct the malfunction, to 

minimize emissions in accordance with section §60.11(d) and to 

prevent future malfunctions. For example, the source must prove 

by a preponderance of the evidence that “[r]epairs were made as 

expeditiously as possible when the applicable emission 

limitations were being exceeded....” and that “[a]ll possible 

steps were taken to minimize the impact of the excess emissions 

on ambient air quality, the environment and human health...” In 

any judicial or administrative proceeding, the Administrator may 

challenge the assertion of the affirmative defense and, if the 

respondent has not met its burden of proving all of the 

requirements in the affirmative defense, appropriate penalties 

may be assessed in accordance with section 113 of the CAA. See 

also 40 CFR 22.77. 

While we believe the final rule reflects reasonable 

approaches consistent with the requirements of the CAA, we 

believe reconsideration and additional opportunity for public 

review and comment should be obtained. We are therefore seeking 

comment on the inclusion of the affirmative defense provisions 

in the final rule.
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5. Revisions to the CO Monitoring Requirements

In the March 21, 2011, notice of reconsideration, the EPA 

initiated reconsideration of the requirements to continuously 

monitor for CO. Petitioners have 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. 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 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 13,700 ppm.

Petitioners have noted that oxygen contents relatively 

close to ambient air are often maintained during combustion unit 

startup and shutdown in order to safely operate the combustion 
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unit. Therefore, CO readings during these periods would be 

multiplied by an uncharacteristically high correction factor, 

and the resulting corrected CO concentrations are artificially 

inflated due to the 7 percent oxygen correction. Petitioners and 

commenters argue and presented data that show these artificially 

inflated data points drive the 30-day rolling average values for 

the unit beyond the emission limit.

Petitioners have suggested various approaches to remedy 

this situation, with one being to simply waive the 7 percent 

oxygen correction requirement during unit startup and shutdowns. 

In other words, the CEMS data as reported at stack gas 

concentration would be included in the rolling average 

calculations for periods when the combustion unit is either 

being started up or shutdown. During all other operating 

periods, the CEMS data are corrected to a 7 percent oxygen 

concentration prior to calculating the rolling average.

We received data for one unit in one subcategory (coal 

ERUs) that indicates startups usually occur over a 4 hour 

period, and shutdowns occur over a 1hour period. Therefore, we 

are proposing provisions for calculating the 30-day CO rolling 

average that allow the uncorrected CEMS reading 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 
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to the combustion unit during shutdown procedures of the unit. 

Sources must indicate in the CEMS data records which CEMS data 

are obtained during the 4 hour startup and 1 hour shutdown 

period.

Additionally, in order to be consistent with similar 

requirements for non-waste fuel-fired boilers and process 

heaters, we are proposing to remove continuous CO monitoring 

requirements for new and existing ERU units, instead making CO 

monitoring with CEMS a compliance alternative and, for larger 

units, requiring annual CO stack tests and continuous oxygen 

monitoring instead. We have also removed the continuous CO 

monitoring requirements for new CISWI units in the other 

subcategories, but allow them to demonstrate compliance using CO 

CEMS if they so choose. The 7 percent oxygen correction waiver 

during startup and shutdowns discussed above would apply to any 

CISWI sources that elect to demonstrate compliance with the CO 

limits with a CO CEMS instead of performing stack tests. We are 

requesting comment on these proposed revisions to the final rule 

CO monitoring requirements. 

6. Establishing a Full-load Stack Test Requirement for CO 

Coupled with Continuous Oxygen Monitoring

In the March 21, 2011, notice of reconsideration, the EPA 

initiated reconsideration on the requirement of coupling a full-
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load stack test for CO coupled with continuous oxygen monitoring 

to demonstrate continuous compliance with the CO emission

limits. While this requirement pertains primarily to 

requirements contained within the major source boiler NESHAP, 

there are similar requirements in the final CISWI rule for 

existing units. Specifically, existing ERUs with a design heat 

input capacity over 100 MMBtu/hr must demonstrate continuous 

compliance with the CO emission limits with an annual CO stack 

test and monitoring the oxygen content of the flue gas using a 

continuous oxygen monitoring system. 

As discussed earlier, we have removed the CO CEMS

requirements for existing units, instead allowing the option for 

sources to use CO CEMS to demonstrate compliance with the 

standards. We are also requesting comment on whether allowing 

the option to use CO CEMS instead of oxygen monitoring is of 

potential use to affected sources and implementing agencies, and 

also whether the oxygen monitoring requirements coupled with an 

annual CO stack provides an appropriate parameter to ensure 

optimized combustion short of direct CO measurements.

Petitioners have also commented that the final rule 

continuous oxygen monitoring requirements would preclude the use 

of existing oxygen monitoring systems that may already be 

installed on these units to help manage combustor operation. 
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Petitioners have claimed that, by requiring the system meet 

Performance Specification 3 requirements, it is unlikely that 

existing oxygen monitors are located in a position that would 

enable their use for compliance demonstration. As a result, 

sources would need to install and operate an additional oxygen 

monitoring system. Petitioners contend that this additional 

system would be an added expense and would be located too far 

downstream of the combustion chamber to provide accurate data 

regarding combustion characteristics so would be of no use to 

combustor operation.

We are therefore proposing revisions to the continuous 

oxygen monitoring provisions in today’s action that would afford 

the ability for existing sources to use their current oxygen 

analyzer and oxygen trim systems to demonstrate continuous 

compliance. We are requesting comment on the practicality of the 

proposed provisions, and whether alternative monitoring 

approaches are available that would ensure that the oxygen 

monitoring system is sited and operated to give accurate 

readings while minimizing the need for potentially duplicative 

monitoring systems. 

7. Establishing a Definition of “Homogeneous Waste”
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The EPA included in the final CISWI rule a definition of 

homogenous waste and a process for evaluating claims that a 

particular waste stream is homogenous.

Homogeneous wastes are stable, consistent in formulation, 

have known fuel properties, have a defined origin, have 

predictable chemical and physical attributes, and result in 

consistent combustion characteristics and have a consistent 

emissions profile. Qualifying small power production and 

cogeneration facilities requesting an exemption from CISWI on 

the basis that they burn homogeneous waste may be asked to 

demonstrate, using defined test methods acceptable to the EPA, 

that the physical and chemical characteristics of the waste are 

consistent throughout such that the emission profile of any 

sample of waste combusted is similar or identical to any other 

sample. Mixtures of different types of wastes are generally not 

homogeneous, unless the mixtures are from materials that are 

each individually determined to be homogeneous, are from known 

origin, are mixed in constant proportion, and are conditioned or 

processed, such as could occur in the gasification of the 

wastes. MSW can never be homogeneous because it does not have a 

defined origin. Likewise, refuse derived fuel cannot be 

homogeneous because it is derived from MSW. Refuse derived fuel 

is also specifically excluded from the qualifying small power 
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production and cogeneration facilities exemption at CAA section 

129(g)(1).

In the final rule, the EPA stated that a determination 

concerning whether a waste is homogeneous is made on a case-bycase basis. The EPA added provisions to the CISWI final rule 

that require source owners or operators seeking the exemption to 

submit a request for a homogeneous waste fuel determination to 

the EPA, and that they support their request with information 

describing the materials to be combusted and why they believe 

the waste is homogeneous. The final rule also indicated that the 

determination of what constitutes a homogeneous waste is not 

delegable to the state or local agencies.

We are proposing the definition of homogeneous waste and 

the provisions for making homogenous waste determinations to 

provide the public an opportunity to comment on the provision. 

8. Incorporating Fuel Variability into Emission Limit

Calculations

The proposed and final CISWI rule emission limits were 

calculated based primarily on emissions test data. Commenters 

urged the EPA to incorporate fuel variability into the emission 

limit calculations as was done in the boiler NESHAP. Petitioners 

have since claimed that the EPA did not adequately address 
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comments regarding this issue. In today’s proposal, we are 

providing further clarification on our response to this issue.

In the preamble to the final CISWI rule, we explained the 

methodology used to establish the final emission limits, which 

relied almost exclusively on direct measurements. Commercial and 

Industrial Solid Waste Incineration units by definition are 

burning wastes, usually in combination with various non-waste 

fuels, and often with a variety of different waste streams. As a 

result, fuel variability data would only account for a 

variability found in a fraction of the materials being input 

into the unit. We have, in fact, considered total material feed 

variability in establishing limits for Hg for waste-burning 

kilns (76 FR 15727). To enable this analysis, we had to rely on 

data available from sources that provided materials analysis for 

all materials being fed into Portland cement kilns over a 30-day 

span. We did not, and do not still, have such data available for 

other pollutants and other types of CISWI units. Therefore, we 

are not proposing the use of fuel variability in our emission 

limit methodology, except as noted above. We are requesting 

comments and supporting data that would allow us to consider an 

approach similar to the waste-burning kiln Hg limits for other 

pollutants and subcategories . 
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9. Review of D/F Data and Non-detect Methodology Using Three 

Times the Detection Level

Several petitioners have argued that the D/F emission 

limits are based primarily on emissions data that are below 

detection levels and have suggested that these data not be 

included in emissions calculations, or at a minimum, establish a 

minimum emission limit value that is quantifiable by most 

laboratories available to analyze this data. We proposed and, in 

the final rule, used a methodology that sets the emission limit 

at a level that is at least three times the detection limit of 

the emission tests of the best performing units used in the MACT 

floor emission limit calculations. We have, however, reviewed 

the D/F data in more detail to ensure that all data are 

correctly identified as either non-detection or detection level 

limited, where some of the fractions may be non-detection, but 

not all of them. While our findings found the most data were 

accurately identified, there were a few average values that were 

reclassified as “detection level limited.” However, these 

corresponding run data were correctly identified and were 

included in the three times the detection limit methodology. 

Therefore, no D/F emission limits were impacted due to this 

review. 
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In addition, 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 

have 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 is less than the recommended 

3xRDL, the 3xRDL value is selected as the limit. This premise 

for this approach is the same as described in the final 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 CISWI rule. Therefore, we are 

not accepting comment on the emission limit calculation 

methodology. 

One petitioner has suggested that D/F emission limits 

should not be less than 0.3 ng/dscm. We are requesting comment 

and data on whether 0.3 ng/dscm or the recommended 3xRDL values 

for each test method are sufficient to reflect quantifiable 
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concentration levels, or whether other values should be selected 

as a lower quantification boundary for emission limits for CISWI 

sources.

10. Providing an Option for Sources to Use Emissions Averaging 

to Demonstrate Compliance

Several petitioners contend that the EPA did not adequately 

address comments on the issue of allowing sources with multiple 

CISWI units at a facility to use emissions averaging to 

demonstrate compliance, similar to the provisions provided in 

the major source boiler NESHAP. The boiler MACT allows emissions 

averaging across subcategories within an affected facility. The 

applicability of CISWI is such that each unit is an affected 

facility, if it otherwise meets the applicability of the rule. 

We cannot allow emissions averaging across affected facilities 

because we establish MACT on an affected facility basis and it 

would be impossible to justify MACT when averaged across 

affected facilities. 

11. Definitions

a. Establishing a Definition of Foundry Sand Thermal Reclamation 

Unit

Following publication of the final rule and the NHSM rule, 

we were made aware of a certain class of unit that had not 

previously been considered a CISWI unit, but could potentially 
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be considered a type of CISWI once the NHSM rule came into 

effect. These units are called TSR units, and are a component of 

a foundry’s “sand loop.” We have concluded that these units are 

parts reclamation units as defined in the 2000 CISWI rule. We 

defined parts reclamation units as “unit[s] that burn coatings 

off parts (e.g., tools, equipment) so that the parts can be 

reconditioned and reused.” In the 2011 CISWI rule, parts 

reclamation units are a subcategory of burn-off ovens. Thermal 

reclamation units that recover foundry sands serve the same 

purpose as other parts reclamation units that recover metal 

parts. Specifically, foundry sand units recover parts (i.e., 

sand) by removing coatings (e.g., binders and resins) from the 

foundry molds. Thus, TSR units are part reclamation units that 

remove coatings that are on foundry sand, which allows re-use of 

the sand. As with other burn-off ovens, TSR parts reclamation 

units conserve natural resources (i.e., virgin sand) and 

minimize the use of landfill capacity for foundry sand.

As with other burn-off ovens, we do not currently have 

emissions data for TSR units and regulation of such units is not 

required to comply with the Agency’s CAA 112(c)(6) obligation. 

For these reasons, we are not proposing standards for TSR units 

are this time. 
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We are soliciting comment on the proposed definition of TSR 

units.

b. Removing the Definition of Contained Gaseous Material

The EPA did not propose to remove the definition of 

contained gaseous material in the proposed CISWI standards. In 

the final CISWI rule preamble (76 FR 15708), we removed 

definitions that define or clarify what constitutes a solid 

waste from the standards to minimize confusion in light of the 

definition of solid waste in the final NHSM rule. The definition 

of “contained gaseous material” was one of the definitions that 

was removed from the 2000 CISWI standards. 

Several petitioners asked for confirmation that the Agency 

had not changed its historical interpretation of what gases 

could be considered to be solid waste (i.e., a “contained gas”). 

These petitioners also requested that the EPA reconsider the 

removal of the definition of "contained gaseous material" in the 

CISWI rule, since the same definition appears in subparts EEEE 

and FFFF of part 60 (§60.2977 and §60.3078) and subpart III of 

part 62 (§62.14840). The Agency did not intend to create 

ambiguity by removing the definition of "contained gaseous 

material" from the CISWI rule. Accordingly, the proposed CISWI 

reconsideration rule includes the same definition of "contained 
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gaseous material" that was removed from the final CISWI rule. 

This definition is consistent with the definition in the 

subparts cited above. Moreover, our proposal to add the 

definition of "contained gaseous material" to the proposed CISWI 

reconsideration rule is consistent with the position in other 

sections of this preamble that address the NHSM rule where we 

make clear that the Agency is not changing any of its previous 

positions with regard to contained gas. The EPA is soliciting 

comment on the need to retain the definition of contained 

gaseous material. 

c. Revising Definition of Chemical Recovery Unit

Following publication of the final rule and the NHSM rule, 

we received additional information about a handful of combustion 

units that had previously not been regulated as CISWI sources, 

but could potentially be considered a type of CISWI unit once 

the 2011 NHSM final rule came into effect. However, these units 

do not adequately fit into any of the four subcategories of 

units in the final CISWI standards. The units that have been 

identified are SARUs that may be burning sulfur-bearing 

compounds which are classified as non-hazardous waste at 

facilities that are non-RCRA part B permitted SARUs. 

Stakeholders have identified four such facilities, and have 

contended that response to comments and preamble language in 
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both the 2011 NHSM final rule and the final CISWI rule are 

confusing and inadequately address their particular questions on 

applicability of CISWI to these units. The stakeholders ask 

specifically which subcategory should apply to these units, 

noting that none of the four subcategory definitions expressly 

includes SARUs in their definitions. Furthermore, stakeholders 

note that the EPA has included a definition of chemical recovery 

unit in the final rule that more properly addresses SARUs as 

well as other types of chemical recovery unit. 

To address this issue and clarify applicability for 

chemical recovery units more generally, we are revising the 

definition of chemical recovery unit to clarify that chemical 

recovery units are not incinerators, waste-burning kilns, ERUs 

or small, remote incinerators under subparts CCCC or DDDD.

12. Allowances for Using Feed Stream Analysis or Other 

Supplemental Information to Demonstrate Compliance

The final rule specifies emissions testing, continuous 

emissions monitoring, and control device parameter monitoring to 

ensure continuing compliance with the emission standards. Some 

petitioners have requested responses to comments on providing 

provisions that would allow use of feed stream analysis and 

other supplemental information instead of the monitoring 

requirements specified. As an example, petitioners have asked if 
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a source could use a material analysis to show that only minimal 

amounts of a pollutant compound enter the combustion unit. That 

data, along with data on the flue gas flow rate information 

could be used by sources to calculate a maximum possible 

pollutant concentration. The petitioners further argue that the 

source could then demonstrate that the maximum potential 

concentration is less than the applicable emission limit, and 

the source would not have to perform an emissions test for that 

pollutant.

We have not proposed any such provisions in today’s rule, 

and believe that direct measurement of emissions is the most 

comprehensive and accurate method to ascertain compliance with 

the final standards. Furthermore, CAA section 129(c) states that 

the EPA “shall... promulgate regulations requiring the owner or 

operator of each solid waste incineration unit – (1) To monitor 

emissions from the unit at the point at which such emissions are 

emitted into the ambient air... and at such other points as 

necessary to protect public health and the environment.” The EPA 

is thus constrained by the statute in our ability to implement 

the commenter’s proposed monitoring approach. 

13. Providing Percent Reduction Alternative Standards

The final rule contains numeric emission limits for all 

nine pollutants listed in CAA section 129(a)(4)(requiring 
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numerical emissions limits for the 9 identified pollutants). The 

proposed and final rules describe at length the methodology used 

to establish these emission limits. However, petitioners and 

commenters suggested that the EPA should also establish 

alternative percent reduction standards to the numeric emission 

limits. Petitioners allege that we did not adequately address 

this comment in the preamble to our final rule or supporting 

documents. Therefore, we are providing our response to this 

issue in today’s proposal.

The CISWI database does not include percent removal data 

except in very limited instances. These data were seldom 

provided voluntarily, and were not required by the EPA during 

the emission test ICR. This is due to the increased cost of 

performing pre- and post-emission control device emissions tests 

to determine the removal efficiency of the control device. 

Source operators will typically not choose to perform extra 

testing at additional cost voluntarily, and the EPA went to 

great lengths to minimize burden on sources during the testing 

ICR. As a result, we do not have percent reduction data for the 

best performing CISWI sources, and cannot develop a percent 

reduction alternative standard that reflects the best sources’ 

performance. 
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Additionally, there are arguments that percent reduction 

standards are not legally permissible (See 74 FR 21149). As 

discussed in the Portland cement NESHAP proposal preamble, the 

Brick MACT opinion states “that best performers are those 

emitting the least HAP.” It further discusses how a percent 

reduction standard downplays the role of pollutant inputs on 

emissions, thereby allowing more pollutants to be emitted 

provided a given level of removal efficiency. 

Finally, we do not specify the control devices necessary to 

meet the numeric limits as in some other rules. Sources may 

evaluate their source emissions and determine the appropriate 

control strategy or devices needed to comply with the emission 

limits. Percent reduction standards are more appropriately 

applied when there is a specified control device that potential 

emission streams must be routed through, such as a flare. In 

these cases, a percent reduction alternative provides a design 

and performance metric for the required type of control device. 

This is not the case with CISWI since the rule does not specify 

a control device for all sources.

Due to the reasons discussed above, we have not proposed 

any percent reduction alternative standards. 

14. Providing Parametric Monitoring Provisions for Additional 

Control Device Types
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The final rules added monitoring parameters for sources 

that use wet scrubbers, ESPs, activated carbon sorbent 

injection, or SCR. However, one petitioner has claimed that we 

did not adequately address comments on this issue in the final 

rule preamble or supporting documents. Therefore, we are 

responding that we have included such provisions that commenters 

requested. The control devices with monitoring provisions 

expressly identified in the rules should encompass most types of 

control devices that we would anticipate the various types of 

CISWI units to use to meet the emission limits. In the case that 

there is another type of control that is not addressed, we have 

provided provisions for sources to petition for specific 

operating limits for the control device 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 material balance 

operating limits to demonstrate continuous compliance. However, 

we recognize that dry sorbent injection for acid gas control may 

be one additional type of control that affected sources may use, 

and are requesting comment on whether we should specify 

monitoring provisions for this type of control and 

recommendations on which parameters should be specified. Lastly, 

we also request comment on whether there are any additional 
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types of control devices that we should identify monitoring 

parameters for in the rule.

15. Revisions to the Continuous Monitoring Provisions for Large 

ERUs

In today’s rule, we are proposing some revisions to the 

monitoring requirements for ERUs with a design heat input 

capacity greater than 250 MMBtu/hr. In the final rules, these 

units were required to monitor continuously for PM using a PM 

CEMS; however, recent EPA experience with the utility boiler 

source category has led the EPA to allow 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. Therefore, 

we are requiring continuous parameter monitoring systems for 

these units similar to those being required for major industrial 

boilers and utility boilers. Likewise, to be consistent with 

these other rules, we have revised all operating parameter 

averaging for ERU units to be on a 30-day rolling average. Due 

to the relatively long operational campaigns of ERUs, the longer 

averaging time will allow operators sufficient flexibility for 

operational and control device adjustments should they be needed 

for short term fuel or waste characteristics variability. The 

EPA has determined the 30-day rolling average reporting basis is 
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appropriate for this rule. The operating limits established 

through performance testing in this rule represent short term 

process and control operating conditions representative of 

compliance. Concerns of variability outside the operators 

control such as fuel content, seasonal factors, load cycling, 

and infrequent hours of needed operation prompted us to look at 

longer averaging periods on which to base operating compliance 

determination. We are aware from studies of emissions over long 

averaging periods (See memorandums “Changing Averaging Time as 

an Incentive” and “Assessment of Using Single Point Stack Test 

Data to Derive 30-Day Rolling Average Emissions Limits” in the 

CISWI docket) that long term (e.g., 30-day) average emissions 

for a operating in compliance will have a variability of about 

half of that represented by the results of short term testing. 

Given that short term tests are representative of distinct 

points along a continuum of that inherent operational 

variability, we believe it appropriate to provide a means for 

the source operator to account for that variability by applying 

a long term average for establishing compliance. We expect more 

problematic control system variability (e.g., ESP transformer 

failure or scrubber Venturi fan failure) to result in deviations 

from a 30-day average relative to compliance almost as much as 

for a shorter term average.
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16. Extending Compliance Dates

On May 18, 2011, the EPA issued a stay of the effective 

date of the final rule. The EPA plans to reset the compliance 

dates of the rule when the final reconsideration is published. 

The EPA is proposing to set the compliance date for existing 

sources in the incinerator, ERU, and waste-burning kiln 

subcategories 5 years after the date of publication of the final 

reconsideration rule or 3 years after the state plan is 

approved, whichever happens earlier. This date is being proposed 

in order to provide facilities sufficient time to install 

controls or to make other compliance-related decisions. For new 

sources in the incinerator, ERU, and waste-burning kiln 

subcategories, the EPA is proposing to change the compliance 

date to 6 months after the date of publication of the final 

reconsideration rule. Since there were no major changes to the 

emission standards from final rule for the small remote 

incinerator subcategory, the EPA is soliciting comment on the 

need to extend the compliance date for this subcategory. 

Particularly, the EPA is requesting additional data that 

supports the need to revise the emission standards for the small 

remote incinerator subcategory. 

The EPA determined that it is appropriate to extend the 

compliance dates for the incinerator, ERU, and waste-burning 
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kiln subcategories for several reasons. First, proposed changes 

to the emission limits for these subcategories will have a 

significant impact on the compliance strategies that are 

selected by the affected sources. For instance, the proposed 

changes in emission limits for existing ERU, and waste-burning 

kiln subcategories may require different control strategies 

selections than the emission limits finalized in March 2011. 

Second, when the EPA announced the reconsideration and issued 

the stay of the effective date, a signal was sent to industry 

and to the states responsible for implementing the EG that 

requirements may change significantly. The resulting uncertainty 

has limited the ability of affected sources to begin making 

appropriate selections of control technologies and other 

compliance decisions. Even if significant changes were not being 

proposed, an extended compliance date would likely be necessary 

to provide enough time for facilities to achieve compliance. 

Additionally, not extending the compliance date may be 

problematic for states and implementing agencies since the 

increments of progress for rule compliance are keyed off of the 

approval date of the revised state plan. Without a final rule in 

place, states and implementing agencies will be unable to 

adequately update and implement a state plan. For all of the 

reasons discussed above, the EPA has determined that it is 
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necessary to extend the compliance date for existing sources in 

the ERU and waste-burning kiln subcategories based on the date 

that the reconsideration of the final rule is completed. 

Finally, the EPA has received comments that the availability of 

control equipment and vendors to install control equipment for 

CISWI units is in question due to the large number of units 

requiring controls in conjunction with the parallel rulemaking 

for industrial boilers and electric generating units that will 

require controls from many of the same vendors. While the EPA 

believes that the maximum time allotted under section 129 

provides enough time for CISWI units to achieve compliance, the 

EPA recognizes that maintaining the compliance dates from the 

final rule would essentially provide less than 2 years for 

states to implement a revised state plan and for increments of 

progress to be scheduled. Because the stringency of the final 

standards will not be determined until the reconsideration is 

final, sources will not be able to begin planning a compliance 

strategy and states will be uncertain on an appropriate schedule 

for increments of progress, which includes submittal of a final 

control plan. The EPA is requesting comment on the proposed 

changes to the compliance dates.

D. Technical Corrections and Clarifications
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In today’s rule, we are also proposing some changes to the 

final rule to correct minor typographical errors and clarify 

portions. This section of the preamble summarizes these 

corrections and clarifications. 

1. Providing a Definition of Municipal Solid Waste

We are including the definition of “municipal solid waste” 

in the CISWI rule definitions. This definition is the same 

definition used in the CAA section 129 standards for MWC units. 

We believe that including this definition will further clarify 

applicability for MWC owners who question whether CISWI or MWC 

rules are applicable to their solid waste combustion unit. 

2. Energy Recovery Units Designed to Burn Non-coal Solid 

Materials

We are amending the definition of “Energy recovery unit 

designed to burn biomass (Biomass)” to clarify that this 

definition applies to all ERUs designed to burn non-coal solid 

materials. While we believe biomass to be the majority of such 

materials, we wanted to more broadly define this source category 

to clarify applicability for ERUs that are burning less than 10 

percent coal on a heat input basis. We are also amending 

recordkeeping requirements for ERU units to require records of 

fuel inputs to ensure that the units are meeting the 

applicability for coal or non-coal ERUs.
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3. Typographical Errors and Corrections

The following items are typographical errors in the final 

rule that we are correcting in today’s proposal:

 Final rule §60.2165, a new paragraph break is needed for 

(n) (4); 

 Final rule §60.2265, a new paragraph break is needed for 

the definition of “Solid waste incineration unit;” 

 Amendatory instruction #50, paragraph (b) was not added but 

was amended; and

 Footnote "a" for Table 9 to Subpart DDDD does not have the 

sentence allowing facilities to meet either the Total or 

TEQ for the D/F standard. It is included in all other 

tables (for new and existing sources).

E. Environmental, Energy and Economic Impacts

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 
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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 

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 

proposed rule using the definition of solid waste under RCRA and 

the proposed CISWI emission limits are presented in Table 4 of 

this preamble.
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Table 4. Emissions Reductions for MACT Compliance and 

Alternative Disposal Options for Existing CISWI Using the 

Emission Limits 

Pollutant

Reductions 

achieved through 

meeting MACT 

(ton/yr)

Reductions achieved 

assuming incinerators and 

small, remote 

incinerators use 

alternative disposal 

(ton/yr)a

HCl 578.0 590.1

CO 22,104 22,069

Pb 3.09 3.09

Cd 1.620 1.622

Hg 0.143 0.147

PM (filterable) 1,439 1,442

dioxin, furans 0.000101 0.000104

NOx 5,299 5,405

SO2 4,983 5,033

Total 34,406 34,544

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 
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rule, which contains any such units subject to the 2000 CISWI 

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 

proposal, 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 proposed emission limits. Table 5 of this 

preamble presents the model plant emissions reductions that 

would be expected for new sources. 

Table 5. Emissions Reductions on a Model Plant Basis

Pollutant

Emission reduction for CISWI Subcategory Model 

Units (tpy unless otherwise noted)

Incinerator

Small, remote 

incinerator

HCl 3.67 0.0

CO 1.23 0.25
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Pb 0.83 0.0037

Cd 0.022 0.0007

Hg 0.004 0.000012

PM 

(filterable)

148 0.5

D/F (total 

mass)a

0.0018 0.0

NOx 16.3 0.15

SO2 7.6 0.15

Total 178 1.05

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, whole 

tires 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 

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 
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existing cement kilns that are classified as being waste-burning 

solely due to whole tires will, by the compliance 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 90 billion gallons 

per year of additional water would be required as a result of 

operating additional controls or increased sorbent use.

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 
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solid waste needing disposal. The annual amounts of solid waste 

that would require disposal are anticipated to be approximately 

22,549 tpy from PM capture and 9,820 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 7,275 tpy from PM capture and 

8,173 tpy from ACI.

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 
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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 

242,283 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 

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.
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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 NOx, CO, PM and SO2 and an increase in CO2

emissions. Since NOx and SO2 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 

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 
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would be expected: 20 tons of PM; 8 tons of HCl; 16 tons of SO2; 

890 tons of CO; 46 tons of NOx; 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 proposed 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 

investment of $859 million with an associated total annual cost 

of $270 million ($2008).

Under the rule, the EPA’s economic model suggests the 

average national market-level variables (prices, productionlevels, consumption, international trade) will not change 

significantly (e.g., are less than 0.02 percent).
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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 five 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 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 

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 $8.4 

million over 5 years with an associated total annual cost (for 

2015) of $2.6 million.

6. What are the Benefits?
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We estimate the monetized benefits of this regulatory action 

to be $330 million to $800 million (2008$), 3 percent discount 

rate) in the implementation year (2015). The monetized benefits 

of the regulatory action at a 7 percent discount rate are $300 

million to $720 million (2008$). These estimates reflect energy 

disbenefits valued at $3.8 million. Using alternate 

relationships between PM2.5 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.1 A summary of the monetized benefits estimates at 

discount rates of 3 percent and 7 percent is in Table 6 of this 

preamble. 

Table 6. 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)

PM2.5 670 $150 to $370 $140 to $340

PM2.5 Precursors

SO2 5,033 $150 to $360 $130 to $330

NOx 5,405 $26 to $64 $24 to $58

Total $330 to $800 $300 to $720

a All estimates are for the implementation year (2015) and are 

rounded to two significant figures so numbers may not sum across 

rows. All fine particles are assumed to have equivalent health 

effects, but the benefit-per-ton estimates vary between 

 

1

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.
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precursors because each ton of precursor reduced has a different 

propensity to form PM2.5. 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. 

CO2-related disbenefits were calculated using the social cost of 

carbon, which is discussed further in the RIA.

b The estimates in this table reflect the estimates in the RIA. 

Due to last minute changes to the March 2011 final CISWI rule, 

we were unable to incorporate the final engineering costs and 

emission reductions into the RIA, which would decrease the costs 

by approximately 22 percent and increase the monetized benefits 

by approximately 4 percent from those shown here.

These benefits estimates represent the total monetized 

human health benefits for populations exposed to less PM2.5 in 

2015 from controls installed to reduce air pollutants in order 

to meet these standards. These estimates are calculated as the 

sum of the monetized value of avoided premature mortality and 

morbidity associated with reducing a ton of PM2.5 and PM2.5

precursor emissions. To estimate human health benefits derived 

from reducing PM2.5 and PM2.5 precursor emissions, we used the 

general approach and methodology laid out in Fann, Fulcher, and 

Hubbell (2009).2

To generate the benefit-per-ton estimates, we used a model 

to convert emissions of direct PM2.5 and PM2.5 precursors into 

changes in ambient PM2.5 levels and another model to estimate 

 

2 Fann, N., C.M. Fulcher, B.J. Hubbell. 2009. “The influence of 

location, source, and emission type in estimates of the human 

health benefits of reducing a ton of air pollution.” Air Qual 

Atmos Health (2009) 2:169–176.
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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 there is no clear scientific evidence that 

would support the development of differential effects estimates 

by particle type. Directly emitted PM2.5, SO2 and NOx 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 because each 

ton of precursor reduced has a different propensity to form 

PM2.5. For example, SO2 has a lower benefit-per-ton estimate 

than direct PM2.5 because it does not directly transform into 

PM2.5, and because sulfate particles formed from SO2 emissions 

can transport many miles, including over areas with low 

populations. Direct PM2.5 emissions convert directly into 

ambient PM2.5, thus, to the extent that emissions occur in 

population areas, exposures to direct PM2.5 will tend to be 

higher, and monetized health benefits will be higher than for 

SO2 emissions. 
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For context, it is important to note that the magnitude of 

the PM 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 PM2.5 concentrations and 

premature mortality. For this rule, we cite two key empirical 

studies, the American Cancer Society cohort study3 and the 

extended Six Cities cohort study.4 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 PM2.5 exposure. Consistent 

with this recent advice, we are replacing the previous threshold 

 

3

Pope, et al., 2002. “Lung Cancer, Cardiopulmonary Mortality, and Long-term 

Exposure to Fine Particulate Air Pollution.” Journal of the American Medical 

Association 287:1132-1141

4

Laden, et al., 2006. “Reduction in Fine Particulate Air Pollution and 

Mortality.” American Journal of Respiratory and Critical Care Medicine. 173: 

667-672
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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 PM2.5.

Using the Pope, et al., (2002) study, 85 percent of the 

population is exposed at or above the LML of 7.5 μg/m3. Using 

the Laden, et al., (2006) study, 40 percent of the population is 

exposed above the LML of 10 μg/m3. It is important to emphasize 

that we have high confidence in PM2.5-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 PM2.5 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 . 

This analysis does not include the type of detailed 

uncertainty assessment found in the 2006 PM2.5 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 
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air quality modeling for this rule. The 2006 PM2.5 NAAQS 

benefits analysis5 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 25,000 tons of CO, 470 tons of HCl, 

4.1 tons of Pb, 0.95 tons of Cd, 260 pounds of Hg and 92 grams 

of total D/F each year. Although we do not have sufficient 

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 12 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 

 

5 U.S. Environmental Protection Agency, 2006. Final Regulatory 

Impact Analysis: PM2.5 NAAQS. Prepared by Office of Air and 

Radiation. October. Available on the Internet at 

http://www.epa.gov/ttn/ecas/ria.html
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emissions of CO2 would have disbenefits valued at $3.8M 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 CO2 disbenefits using discount rates of 5 percent 

(average), 2.5 percent (average), and 3 percent (95th 

percentile).

II. NHSM Proposed Revisions

A. Statutory Authority

The EPA is proposing amendments to the NHSM regulations 

under the authority of sections 2002(a)(1) and 1004(27) of the 

RCRA, as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 

129(a)(1)(D) of the CAA directs the EPA to establish standards 

for CISWI, which burn solid waste. Section 129(g)(6) provides 

that the term “solid waste” is to be established by the EPA 

under RCRA (42 U.S.C. 7429). 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. What is the intent of this proposal?
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Today’s proposal would clarify several provisions in 40 CFR 

part 241, which provides the standards and procedures for 

identifying whether NHSM are solid waste when used as fuels or 

ingredients in combustion units. The part 241 regulations were 

promulgated on March 21, 2011, in the “Identification of NonHazardous Secondary Materials That Are Solid Waste” final rule 

(the 2011 NHSM final rule)6. On the same day, the EPA promulgated 

final emissions standards for both area and major source boilers 

and process heaters under section 112 of the CAA and for CISWI 

under section 129 of the CAA, as well as for new and existing 

sewage sludge incinerators7. These rules are interrelated because 

facilities that burn solid waste, as that term is defined under 

section 129(g)(6) of the CAA, are regulated as CISWI units 

pursuant to section 129 and facilities that do not burn solid 

waste are regulated as boilers and process heaters, under 

section 112. 

 

6 76 FR 15456.

7 See National Emissions Standards for Area Source Industrial, Commercial, and 

Institutional Boilers (76 FR 15554), National Emission Standards for 

Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and 

Institutional Boilers and Process Heaters (76 FR 15608), Standards of 

Performance for New Stationary Sources and Emission Guidelines for Existing 

Sources: Commercial and Industrial Solid Waste Incineration Units (76 FR 

15704), and Standards of Performance for New Stationary Sources and Emission 

Guidelines for Existing Sources: Sewage Sludge Incineration Units (76 FR 

15372). We also note that on the same day, EPA announced it was initiating a 

reconsideration process with respect to certain aspects of the CAA section 

112 and 129 rules so as to take additional comment and provide opportunity 

for submission of information relevant to those standards. 76 FR 15266.
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Since promulgation of the 2011 NHSM final rule, the 

regulated community has raised a number of issues and concerns 

regarding the part 241 requirements, including the 

implementation of those requirements. For example, the regulated 

community raised concerns and questions as to certainty about 

whether particular materials are solid wastes and how they could 

demonstrate compliance with the legitimacy criteria—with most 

focusing on the contaminant legitimacy criterion for NHSM used 

as fuels (codified in §241.3(d)(1)(iii)). Further, the regulated 

community asserts that under the current NHSM rule, waste 

streams that the Agency itself found to be non-waste fuels when 

combusted may not meet the legitimacy criteria as established 

(e.g., resinated wood). It was also brought to the Agency’s 

attention that the provision identifying tires recovered from an 

established tire collection program as a non-waste fuel when 

combusted is limited to tires “from the point of removal from 

the vehicle through arrival at the combustion facility.” The 

regulated community asserts that this language precludes burning 

as a non-waste fuel off-specification tires (including factory 

scrap tires) that have never been placed on an automobile, even 

though they are not discarded.

The Agency has re-examined the 2011 NHSM final rule and is 

proposing amendments and clarifications on certain issues on 
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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 

Agency is not reopening the entire rule for reconsideration and 

will not respond to comments directed toward rule provisions 

that are not specifically identified in this proposal. 

C. What is the scope of this proposal?

The regulatory changes being proposed today are summarized 

below. The intent of this summary is to give a brief overview of 

the proposed changes. More detailed discussions, including the 

Agency’s rationale for these proposed changes, are discussed in 

section II.D of today’s action. In addition, to aid commenters 

in their review, the EPA has also included in the docket for 

today’s proposal an informational redline/strikeout version of 

the proposed revised regulations as compared to the current CFR.

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.

1. Revised Definitions

In today’s action, the EPA is proposing to revise certain 

definitions codified in §241.2. Specifically, the EPA is 
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proposing to revise, for the purposes of clarifying the 

regulations, the following definitions: (1) “clean cellulosic 

biomass,” (2) “contaminants,” and (3) “established tire 

collection programs.” 

a. Clean Cellulosic Biomass

The EPA is proposing to revise the definition of “clean 

cellulosic biomass” to list additional examples of biomass 

materials that are appropriately included within this 

definition. The 2011 NHSM final rule defined “clean cellulosic 

biomass” as meaning “those residuals that are akin to 

traditional cellulosic biomass, such as forest-derived biomass 

(e.g., green wood, forest thinnings, clean and unadulterated 

bark, sawdust, trim, and tree harvesting residuals from logging 

and sawmill materials), corn stover and other biomass crops used 

specifically for energy production (e.g., energy cane, other 

fast growing grasses), bagasse and other crop residues (e.g., 

peanut shells), 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 
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associated with virgin biomass materials” (codified in 40 CFR 

241.2).

In today’s proposal, the EPA is adding more examples of 

biomass materials that should be included within this 

definition. 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 not 

exhaustive, it is more comprehensive than the list that appeared 

in the definition included in the 2011 NHSM final rule.

Thus, the EPA is proposing to revise the definition of 

“clean cellulosic biomass” as follows: “Clean cellulosic biomass 

means those residuals that are akin to traditional cellulosic 

biomass, including, but not limited to: agricultural and forestderived 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 forest-derived 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 
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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.”

See section II.D.1 for more information regarding the 

revised definition of “clean cellulosic biomass.”

b. Contaminants

The 2011 NHSM final rule defined “contaminants” as meaning 

“any constituent in non-hazardous secondary materials that will 

result in emissions of the air pollutants identified in Clean 

Air Act section 112(b) or the nine pollutants listed under Clean 

Air Act section 129(a)(4) when such non-hazardous secondary 

materials are burned as a fuel or used as an ingredient, 

including those constituents that could generate products of 

incomplete combustion” (codified in 40 CFR 241.2). 
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The EPA is proposing to revise the definition of 

“contaminants” to clarify what will be considered contaminants 

for the purposes of the legitimacy criteria. Specifically, 

several pollutants listed in CAA sections 112(b) and 129(a)(4) 

form during combustion, so elemental precursors to those 

pollutants that are found in the NHSM prior to combustion are 

being added to the revised contaminant definition in place of 

the pollutants themselves. In addition, those pollutants from 

CAA section 112(b) and 129(a)(4) lists that we do not expect to 

find in any NHSM are also specifically excluded from the 

definition of contaminants (see discussion in section II.D.1.b). 

We do not expect this change to affect any of the decisions 

previously made on whether NHSMs are solid wastes when burned as 

fuels. 

We are also proposing to revise this definition to clarify 

that, for the purpose of meeting the contaminant legitimacy 

criterion, contaminant levels found in the NHSM prior to being 

fed into combustion units, should be evaluated rather than 

emissions from those units. Specifically, there appears to be 

confusion within the regulated community that in determining 

whether or not a NHSM meets the “contaminant legitimacy 

criterion,” emissions from the combustion unit are to be 

considered in making such an evaluation. Both in today’s 
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proposal and in the 2011 NHSM final rule preamble and regulatory 

text, it was clear that the NHSM itself was to be evaluated and 

not the emissions from the combustion unit. This approach is 

more appropriate, since the question is whether or not a NHSM is 

being burned for discard, and elevated contaminant levels in the 

NHSM could be indicative of burning for discard. Thus, the EPA 

is clearing up any inadvertent ambiguity in the regulation 

itself. The rationale for this approach can be found in the 

rulemaking record for the final rule.8 EPA is not proposing any 

revisions to that approach, but is simply clarifying the 

regulatory text to better reflect the Agency’s intention.

Thus, the Agency is proposing to revise the definition of 

“contaminants” as follows: “Contaminants means all pollutants 

listed in Clean Air Act sections 112(b) and 129(a)(4), with 

modifications outlined in this definition to reflect 

constituents found in non-hazardous secondary materials prior to 

combustion. The definition includes the following elemental 

contaminants that commonly form Clean Air Act section 112(b) and 

129(a)(4) pollutants: antimony, arsenic, beryllium, cadmium, 

chlorine, chromium, cobalt, fluorine, lead, manganese, mercury, 

nickel, nitrogen, selenium, and sulfur. The definition does not 

include the following Clean Air Act section 112(b) and 129(a)(4) 

 

8 For example, see 76 FR 15524-5.
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pollutants that are either unlikely to be found in non-hazardous 

secondary materials prior to combustion or are adequately 

measured by other parts of this definition: hydrogen chloride 

(HCl), chlorine gas (Cl2), hydrogen fluoride (HF), nitrogen 

oxides (NOx), sulfur dioxide (SO2), fine mineral fibers, 

particulate matter, coke oven emissions, diazomethane, white 

phosphorus, titanium tetrachloride, m-cresol, o-cresol, pcresol, m-xylene, o-xylene, and p-xylene.” For more information 

and the rationale regarding the proposed revision to the 

definition of “contaminants,” see section II.D.1 of today’s 

proposed rule. 

c. Established Tire Collection Programs

The EPA is proposing to revise the definition of 

“established tire collection programs” to clarify that offspecification tires (including factory scrap tires) are not 

discarded when combusted, in the same way as tires that are 

removed from vehicles. 

The 2011 NHSM final rule defined “established tire 

collection program” as meaning “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” (codified in 40 CFR 
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241.2). However, that definition did not account for “factory 

scrap” or “off-specification” tires 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. 

Thus, the Agency is proposing to revise the definition of 

“established tire collection program” to mean “a comprehensive 

collection system or contractual arrangement that ensures scrap 

tires are not discarded and are handled as valuable commodities 

from the point of removal from the vehicle or the point at which 

they are generated at a tire manufacturer (including retailers 

or other parties involved in the distribution and sale of new 

tires) through arrival at the combustion facility.” For more 

information regarding the proposed revision to the definition of 

“established tire collection program,” see section II.D.1 of 

today’s proposed rule.

2. Contaminant Legitimacy Criterion for NHSM Used as Fuels

The 2011 NHSM final rule codified three self-implementing 

legitimacy criteria that NHSM must meet in order to be 

considered a non-waste fuel when burned in a combustion unit (40 

CFR 241.3(d)(1)(i)-(iii)). One of these criteria focused on 
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comparing levels of contaminants contained in the NHSM to levels 

of those constituents found in traditional fuels. Specifically, 

the contaminant legitimacy criterion for fuels was finalized as 

follows: “The non-hazardous secondary material must contain 

contaminants at levels comparable in concentration to or lower 

than those in traditional fuels which the combustion unit is 

designed to burn. Such comparison is to be based on a direct 

comparison of the contaminant levels in the non-hazardous 

secondary material to the traditional fuel itself.” 40 CFR 

241.3(d)(1)(iii). The existing language provides flexibility for 

persons to make comparisons on a contaminant-by-contaminant 

basis or on a group of contaminants-by-group of contaminants 

basis in determining what constituents to compare. The phrase 

“traditional fuels which the combustion unit is designed to 

burn” also provides the flexibility to choose among multiple 

fuel options.

Industry groups have expressed concern that the regulatory 

language does not clearly reflect the EPA’s intent9. The EPA 

agrees that the regulatory language can be revised to better 

reflect the EPA’s intent in implementing the contaminant 

legitimacy criterion. Therefore, the Agency is proposing to 

 

9 See, for example, June 24, 2011 letter from Tracey Norberg of the Rubber 

Manufacturers Association and Paul Noe of the American Forest & Paper 

Association to OSWER Assistant Administrator Mathy Stanislaus. A copy of this 

letter can be found in the docket for today’s rule.
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revise this criterion to read, “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 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 traditional fuel. 

In comparing contaminants between traditional fuel(s) and a nonhazardous secondary material, persons can use ranges of 

traditional fuel contaminant levels compiled from national 

surveys, as well as contaminant level data from the specific 

traditional fuel being replaced. 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.”

For more information regarding the proposed revisions to 

the contaminant legitimacy criterion for NHSM used as fuels, see 

section II.D.2 of today’s proposed rule.

1. Categorical Non-Waste Determinations for Specific NHSM Used as 

Fuels

The EPA is proposing to identify several NHSMs as not being 

solid waste when burned as a fuel in a combustion unit where the 
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Agency has sufficient information to determine that discard is 

not occurring when these materials are being used as fuels. 

Specifically, the Agency recognizes that certain NHSMs may not 

meet the legitimacy criteria, especially the “contaminant 

legitimacy criterion,” in all instances, but the material would 

still generally be considered a non-waste fuel. While we do not 

agree it is appropriate for the regulated community to make 

these judgments as part of the self-implementing aspects of the 

NHSM final rule, it is appropriate that the Agency do so, by 

balancing the legitimacy criteria and such other relevant 

factors that the Administrator may identify, in determining that 

a NHSM is not a solid waste when used as a fuel in a combustion 

unit. Thus, in today’s proposed rule, we are identifying the 

following specific materials as non-waste fuels: (1) scrap tires 

that have not been discarded and are managed under the oversight 

of established tire collection programs, including tires removed 

from vehicles and off-specification tires, and (2) resinated 

wood. Thus, persons who burn these NHSMs as a fuel would not 

need to evaluate them using the self-implementing legitimacy 

criteria when burned. 

In addition, the Agency recognizes that there may be other 

NHSMs that should also be considered non-waste fuels, based on a 

balancing of the legitimacy criteria with other relevant 
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factors. Therefore, we are proposing to create a petition 

process that would provide the regulated community an 

opportunity to submit a rulemaking petition to the EPA for a 

determination that a particular NHSM that should not be 

considered solid waste when burned as a fuel in a combustion 

unit. This process could be used when a facility does not 

believe that the self-implementing legitimacy criteria yields a 

clear result or does not accurately reflect whether the material 

is being discarded. A brief discussion of the specific NHSMs 

being proposed to be listed as not solid waste is provided 

below, as well as an overview of the petition process for 

identifying additional NHSMs as not being solid wastes when 

burned as a fuel in a combustion unit for energy recovery. See 

section II.D.3 and 4 of today’s proposed rule for a detailed 

discussion of these topics. 

a. Scrap tires 

In the 2011 NHSM final rule, the EPA determined that scrap 

tires removed from vehicles and managed pursuant to established 

tire collection programs would not be considered a solid waste. 

This determination was codified in §241.3(b)(2)(i). This 

determination was made after the EPA analyzed scrap tires 

removed from vehicles and managed pursuant to established tire 

collection programs and concluded that (1) these materials would 
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meet the legitimacy criteria for fuels, and (2) these materials 

were not discarded when transferred off-site from the generating 

facility10. 

Since promulgation of the 2011 NHSM final rule, the EPA has 

received information that tire manufacturers, including 

downstream distribution channels, may produce tires that are not 

suitable for use on vehicles, but like the tires removed from 

vehicles, are usable as legitimate fuels. They are, for all 

intents and purposes, the same as the vehicle tires managed 

under the oversight of established tire collection programs. As 

a result, the revised definition of “established tire collection 

program,” would encompass off-specification tires (including 

factory scrap tires) that are contractually arranged to be 

collected, managed, and transported between a tire manufacturer, 

which would include retailers and other parties involved in the 

distribution and sale of new tires and a combustor. We note that 

tires coming from vehicles that are part of an established tire 

collection program would be a non-waste fuel under the 2011 NHSM 

final rule. The EPA is not reopening this determination in 

today's proposed rule.

For clarity, the Agency is proposing to add scrap tires 

that are not discarded and are managed under the oversight of 

 

10 See 76 FR 15490-15499.
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established tire collection programs, including tires removed 

from vehicles and off-specification tires, to the categorical 

list of non-waste fuels (see 40 CFR 241.4(a)). For more on this 

determination and the off-specification tires from tire 

manufacturers or downstream distribution channels, see section 

II.D.3 of today’s proposed rule. 

b. Resinated Wood

The 2011 NHSM final rule determined that resinated wood is 

not a solid waste when used as a fuel regardless of whether it 

remained within the control of the generator (see 40 CFR 

241.3(b)(2)(ii)). This determination was made after the EPA 

analyzed resinated wood and concluded that (1) resinated wood 

generally would meet the legitimacy criteria for fuels, and (2) 

resinated wood was not discarded when transferred off-site from 

the generating facility11. Today’s action proposes to revise part 

241 to state affirmatively that resinated wood, when used as a 

fuel, is not being burned for discard and is not a solid waste. 

We are proposing to codify this determination based on our 

belief that the use of resinated wood as fuel represents an 

integral component to the wood manufacturing process and, as 

such, resinated wood is not being discarded, and therefore not 

 

11 For a full discussion and rationale for why EPA reached this conclusion, 

see 76 FR 15499-15502.
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solid waste, when burned as fuel. For more on this proposed 

revision, see section II.D.3 of today’s proposed rule.

c. Rulemaking Petition Process for Other Non-Waste 

Determinations

Under today’s rule, the Agency is proposing to create a 

rulemaking petition process that would provide persons an 

opportunity to submit a rulemaking petition to the 

Administrator, seeking a categorical determination for 

additional NHSMs to be listed in section 241.4(a) as non-waste 

fuels. The process for submitting a rulemaking petition to the 

Agency, as well as the factors a successful application must 

include, is proposed in 241.4(b). For more information regarding 

the rulemaking petition process, see section II.D.4 of today’s 

proposal.

4. Additional Request for Comment

As discussed elsewhere in this preamble, the Agency 

requests additional information regarding pulp and paper sludge 

in order for the Agency to determine whether a categorical 

determination that pulp and paper sludge is a non-waste, when 

used as fuel, is appropriate.

5. Clarification Letters Issued After Promulgation of the NHSM 

Final Rule
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After promulgation of the 2011 NHSM final rule, a number of 

questions were raised regarding certain issues, including 

whether the EPA was changing its position regarding “contained 

gaseous materials” and whether they are solid wastes when burned 

in combustion units. While there was no regulatory text or 

discussion in the preamble to the final NHSM rule, the Agency 

did respond to several comments that were submitted to the EPA 

during the comment period. Specifically, its response to the 

fourth comment in part 3b.I3 of the document entitled, 

“Responses to Comments Document for the Identification of NonHazardous Secondary Materials that are Solid Waste (February 

2011),”12 created concerns among the regulated community that the 

Agency had changed a long-standing interpretation of what 

constitutes a “contained gaseous material” for purposes of 

defining the term solid waste under RCRA. 

In a letter sent to the American Forest and Paper 

Association, the EPA clarified that it was not changing its 

previous interpretations and that such interpretations still 

were the Agency’s position.13 Specifically, as we state in the 

letter, “EPA was responding to a comment requesting that we 

include in the NHSM final rule a definition of ‘contained 

 

12 See “Responses to Comments Document for the Identification of Non-Hazardous 

Secondary Materials that are Solid Waste (February 2011). A copy of this 

document can be found at www.epa.gov/epawaste/nonhaz/define/index.htm.

13 May 13, 2011 Letter to Tim Hunt, American Forest and Paper Association. A 

copy of this letter has been placed in the docket for today’s proposed rule.
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gaseous material.’ The Agency does not believe that including 

such a definition in the rule is necessary. However, our 

response seems to have caused confusion about whether the Agency 

was changing its prior interpretations regarding the burning of 

gaseous materials, for example in fume incinerators, and whether 

or not such burning is considered to be treatment of a solid 

waste by burning. The response does not change any previous EPA 

positions. We clarify here that the Agency’s previous statements 

and interpretations remain effective. Thus, burning of gaseous 

material, such as in fume incinerators (as well as other 

combustion units, including air pollution control devices that 

may combust gaseous material) does not involve treatment or 

other management of a solid waste (as defined in RCRA section 

1004(27).” Thus, we are stating again in the preamble to 

today’s proposed rule that we are not changing any of our 

previous interpretations as it relates to whether “contained 

gaseous material” is a solid waste. 

In addition to this letter, the Agency has also issued a 

number of other letters in which we clarify how the 2011 NHSM 

final rule addresses certain materials or activities. For 

example, the EPA has issued clarification letters covering the 

following materials and issues: (1) July 21, 2011, letter to 

Pamela F. Faggert, Dominion Resources Services, regarding 
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materials that are used in recirculation/reinjection processes 

and CBO units; (2) August 5, 2011, letter to Sue Briggum, Waste 

Management, regarding landfill gas; (3) August 5, 2011, letter 

to Tracey Norberg, Rubber Manufacturers Association, regarding 

off-specification tires (including factory scrap tires); and (4) 

August 15, 2011, letter to Jeff A. McNelly, ARIPPA, regarding 

coal refuse in legacy piles. We are not taking comment on these 

letters, since they reflect the Agency’s interpretation of its 

existing March 21, 2011, NHSM rule. 

6. Clarification of the Process for Submittal of Non-Waste 

Petitions

The 2011 NHSM final rule established a non-waste 

determination process that provides persons with an 

administrative process for receiving a formal determination from 

the EPA Regional Administrator that a NHSM that is used as a 

fuel, and which is not managed within the control of the

generator, can be considered a non-waste fuel provided they are 

able to demonstrate that such material has not been discarded 

and is indistinguishable in all relevant aspects from a fuel 

product. (40 CFR 241.3(c)). Since promulgation of the 2011 

NHSM final rule, concerns have been raised that the information 

required for a non-waste determination petition would be 

extensive and the timeframe for issuance of the decision 
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lengthy. The Agency wishes to clarify that we do not intend 

that the application required or the petition process itself to 

be burdensome or time and resource intensive for the applicant. 

The Agency is requesting only that information necessary to 

make an informed decision that is protective of human health and 

the environment be submitted to EPA for review and approval. 

As noted in the final rule, the applicant must demonstrate that 

the NHSM that is to be burned as a fuel has not been discarded, 

is a legitimate product fuel (per §241.3(d)(1)), considering 

the five criteria identified in §241.3(c) (1) (i)-(v): 

(1) Whether market participants treat the non-hazardous 

secondary material as a product rather than as a solid waste; 

(2) Whether the chemical and physical identity of the nonhazardous secondary material is comparable to commercial 

fuels;14

(3) Whether the non-hazardous secondary material will be used 

in a reasonable time frame given the state of the market; 

(4) Whether the constituents in the non-hazardous secondary 

material are released to the air, water or land from the point 

of generation to the point just prior to combustion of the 

 

14 As discussed elsewhere in today’s proposal, EPA is clarifying that in 

making comparisons between the NHSM and the traditional fuel, the owner or 

operator can consider individual constituents or grouping of constituents. 

See section II.D.2 of this preamble for further discussion. 
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secondary material at levels comparable to what would 

otherwise be released from traditional fuels; and 

(5) Other relevant factors.15 

There is overlap between the five petition criteria and 

legitimacy criteria. For example, the same rationale used to 

demonstrate that the NHSM contains contaminants at levels 

comparable to or lower than traditional fuels (see 

§241.3(d)(1)(iii)) in combination with the argument that such 

NHSM contains a meaningful heating value (see §241.3(d)(1)(ii)) 

can be used to satisfy petition criterion number two—whether 

the chemical and physical identify of the non-hazardous 

secondary material is comparable to commercial fuels and 

criterion number four—whether the constituents in the nonhazardous secondary material are released to the air, water or 

land from the point of generation to the point just prior to 

combustion of the secondary material at levels comparable to 

what would otherwise be released from traditional fuel. In 

addition, information used to demonstrate that the NHSM is 

handled as a valuable commodity (see §241.3(d)(1)(i)) can be 

used to demonstrate criteria number one—whether market 

 

15 The Agency included this criterion to allow the applicant to make 

additional arguments that such NHSMs are a non-waste fuel. For example, if 

there is a contractual or other written agreement between the generator of 

the NHSM and the facility that combusts the NHSM that lays out how this 

material is to be handled or used as a fuel that may indicate how the 

material would meet the legitimacy criteria, this would be a relevant factor 

that EPA would consider in determining whether such NHSM is a non-waste fuel. 
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participants treat the non-hazardous secondary material as a 

product rather than as a solid waste; criteria number three—

whether the non-hazardous secondary material will be used in a 

reasonable time frame given the state of the market. 

Overall, applicants, in many cases can utilize existing 

information already in hand (e.g., laboratory analysis data or 

process knowledge) rather than develop additional information 

specifically for the non-waste determination petition. In 

addition, as noted in the previous footnote, there may already 

be a contractual or other written agreement between the 

generator of the NHSM and the combustion facility that burns 

such NHSM that lays out how this material is to be handled or 

used as a fuel that may indicate how the material would meet the 

legitimacy criteria that would be a relevant factor that EPA 

would consider in determining whether such NHSM is a non-waste 

fuel. As noted elsewhere in this preamble, EPA has collected 

contaminant data for various traditional fuels, which are 

available for use in meeting the contaminant legitimacy 

criterion as needed, to the extent that the applicant wants to 

utilize these data.16 Potential applicants can include the 

generator of the NHSM, the facility that combusts the NHSM, an 

 

16 EPA’s contaminant data are provided at the website for the NHSM rule at 

www.epa.gov/epawaste/nonhaz/define/index.htm However, as we have noted 

elsewhere, the applicant can rely on other data that they may have or become 

aware of. 
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interested third party or a state agency (see FR 15530). 

Applications can also be submitted for a single combustor or a 

class of combustors, provided such combustion units are within 

the jurisdiction of the Regional Administrator. Useful 

information could also include a description of the nature of 

the relationship between the generator and the combustor, as 

well as a description of how the NHSM will be managed as it is 

transported off-site and after it arrives at the combustor. We 

believe this type of information should be readily available to 

potential applicants. 

In addition, the EPA does not intend that the application 

review process itself be either time consuming or extensive. 

Rather, the Regional Administrator will evaluate the petition 

and issue a draft notice tentatively granting or denying the 

petition. Notification of the decision will be provided by 

local newspaper or radio. Public comment will be accepted for 

thirty days and a public hearing held upon request. A final 

decision will be issued after consideration of the comments as 

expeditiously as possible. 

In summary, we do not envision that the information 

submitted in a petition for a non-waste determination would be 

more than is required for making a self-determination that a 

NHSM is a non-waste when burned within the control of the 
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generator. However, because there are nearly 200,000 boilers 

and incinerators that can be used to burn such NHSMs, the EPA 

believes it is important that the Agency have the information 

necessary to ensure that the legitimacy criteria are met and 

that materials are not being transferred outside the control of 

the generator for the purposes of discard. The Agency requests 

comment on whether any other changes could be made to the nonwaste determination petition process to streamline the process, 

while at the same time provide EPA with the opportunity to 

ensure that such NHSMs are not being discarded. For example, 

because the public has had the opportunity to comment on the 

basic criteria in determining whether the NHSM should be 

considered a non-waste fuel, we are seeking comment on whether 

the Agency should further streamline the process by not seeking 

public comment on each individual petition. 

D. Rationale for the Proposed Revisions to the Part 241 

Requirements

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 that are not 

specifically identified in this proposal. Thus, the Agency is 
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not providing additional discussion of the background or 

rationale for the NHSM rule in general. For a detailed 

discussion of the NHSM final rule, see 76 FR 15532-15545. The 

EPA is proposing the revisions and clarifications discussed 

below.

1. Revised Definitions

In today’s action, the EPA is proposing to revise several 

definitions codified in §241.2, including the definitions of 

“clean cellulosic biomass,” “contaminants,” and “established 

tire collection programs.” 

a. Clean Cellulosic Biomass

In today’s action, we are proposing to revise the 

definition of “clean cellulosic biomass.” In particular, 

following promulgation of the 2011 NHSM final rule, the Agency 

received additional information regarding other types of biomass 

not explicitly listed in the definition of clean cellulosic 

biomass codified in §241.2, which persons believe also are clean 

cellulosic biomass. However, there was some confusion as to 

whether the definition included these materials. For example, 

questions arose whether the EPA would consider orchard trees, 

vines and hulls, to be within the definition of clean cellulosic 

biomass (and, therefore, a traditional fuel) if the biomass 

material was not specifically listed within the regulatory 
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definition. Consequently, we are proposing to revise the 

definition of “clean cellulosic biomass” in two ways: (1) to 

clarify that the list of biomass materials are examples within 

the definition and is not intended to be an exhaustive list, and 

(2) to provide a more comprehensive list of clean cellulosic 

biomass to guide the regulated community. 

Specifically, we are proposing to make the following 

revisions and additions to the definition: (1) explicitly 

acknowledge that the list of biomass materials is not exclusive 

by adding the phrase, “including, but not limited to”; (2) 

revise the category “forest-derived biomass” to include 

“agricultural biomass”; (3) add hogged fuel, wood pellets, and 

untreated wood pallets as examples of forest-derived biomass; 

(4) add the category of “urban wood” and provide examples, 

including tree trimmings, stumps, and related forest-derived 

biomass from urban settings (note that “urban wood” is limited 

to forest-derived biomass from urban settings and does not 

include construction and demolition materials. Certain 

construction and demolition materials are included as a separate 

type of biomass within the definition of “clean cellulosic 

biomass”); (5) add more examples of types of crop residues 

(vines, orchard trees, hulls, seeds spent grains, cotton 

byproducts, corn and peanut production residues, rice milling 
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and grain elevator operation residues); and (6) revise the 

category of “other biomass crops used specifically for energy 

production” to read as “other biomass crops used specifically 

for the production of cellulosic biofuels” and include 

“byproducts of ethanol natural fermentation processes” as an 

example of this type of biomass. 

These proposed revisions and additional examples more 

clearly recognize and describe the various categories of biomass 

materials that we consider to be within the definition of “clean 

cellulosic biomass” and, therefore, within the definition of 

traditional fuels. We believe that these additional examples 

clearly meet the definition of clean cellulosic biomass, in that 

they will not contain contaminants at concentrations not 

normally associated with virgin biomass materials. In fact, many 

of the examples being added in today’s proposal are themselves 

virgin materials (e.g., tree trimmings, stumps, orchard trees, 

etc.). We believe that providing these additional examples 

within the definition of clean cellulosic biomass is consistent 

with the intent of the 2011 NHSM final rule. Further, we believe 

that such revisions make it more clear that the types of biomass 

materials the Agency would consider to be within the definition 

of clean cellulosic biomass (and a traditional fuel) are not 

limited to those explicitly listed in the definition, as we 
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believe that it would be impractical if not impossible to 

capture all types of biomass materials that can be used as fuels 

within this single definition.

Thus, in today’s proposed rule, the EPA is proposing to 

revise the definition of “clean cellulosic biomass” as follows: 

“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 forest-derived 

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 
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solid wastes unless discarded. Clean biomass is biomass that 

does not contain contaminants at concentrations not normally 

associated with virgin biomass materials.”

b. Contaminants

In today’s action, we are proposing a number of changes to 

the definition of “contaminants” in an effort to clarify what 

constituents are subject to the contaminant legitimacy 

criterion. The proposed definition is as follows: “Contaminants 

means all pollutants listed in Clean Air Act sections 112(b) and 

129(a)(4), with modifications outlined in this definition to 

reflect constituents found in non-hazardous secondary materials 

prior to combustion. The definition includes the following 

elemental contaminants that commonly form Clean Air Act section 

112(b) and 129(a)(4) pollutants: antimony, arsenic, beryllium, 

cadmium, chlorine, chromium, cobalt, fluorine, lead, manganese, 

mercury, nickel, nitrogen, selenium, and sulfur. The definition 

does not include the following Clean Air Act section 112(b) and 

129(a)(4) pollutants that are either unlikely to be found in 

non-hazardous secondary materials prior to combustion or are 

adequately measured by other parts of this definition: hydrogen 

chloride (HCl), chlorine gas (Cl2), hydrogen fluoride (HF), 

nitrogen oxides (NOx), sulfur dioxide (SO2), fine mineral fibers, 

particulate matter, coke oven emissions, diazomethane, white 
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phosphorus, titanium tetrachloride, m-cresol, o-cresol, pcresol, m-xylene, o-xylene, and p-xylene.” 

Before discussing these changes, we first want to note that 

the 2011 NHSM final rule and today’s proposed rule identify 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 the 

formation of listed CAA section 112(b) and section 129(a)(4) 

pollutants (e.g., sulfur that will result in SO2). Today’s 

proposed definition provides clarification by listing the 

constituents that belong to the third group.17 Specifically, 

several pollutants listed in CAA section 112(b) and section 

129(a)(4) form during combustion, so elemental precursors to 

those pollutants that are found in the NHSM prior to combustion 

are being added to the contaminant definition in place of the 

pollutants themselves. For example, when present in a NHSM 

undergoing combustion, chlorine readily forms HCl, fluorine 

readily forms HF, nitrogen readily forms NOx, and sulfur readily 

forms SO2. Because forms of these four elements found in 

 

17 Eleven metal elements directly identified in CAA section 112(b) are listed 

in the definition to provide the regulated community with a complete list of 

elements that are considered “contaminants” under the rule.
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materials prior to combustion are not directly identified as CAA 

air pollutants, yet the forms they take due to combustion are 

directly identified as CAA air pollutants, we believe it would 

be less confusing to include these elements in the 

“contaminants” definition. 

Also, we are proposing to exclude from the definition of 

contaminants those pollutants in the CAA sections 112(b) and 

129(a)(4) lists that we do not expect to find in any NHSM. 

Specifically:

 Hydrogen chloride, Cl2, HF, NOx, and SO2are identified as 

CAA list pollutants that are excluded from the definition 

since they are unlikely to be found in NHSM prior to 

combustion and have been replaced by the elements chlorine, 

fluorine, nitrogen and sulfur as discussed above;18 

 Fine mineral fibers are excluded 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 are excluded 

because they are products of combustion unlikely to exist 

in NHSM prior to combustion; 

 

18 Carbon monoxide (CO) is unlikely to be found in solid or liquid NHSMs, and 

EPA expects that combustors can use process knowledge to justify not testing 

for CO in these cases. CO remains in the contaminants definition, however, 

because no clear surrogate exists to replace it—neither the 2011 NHSM final 

rule nor today’s proposed rule considers the elements carbon and oxygen to be 

contaminants. 
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 Cresol isomers m-cresol, o-cresol and p-cresol are excluded 

because the listed pollutant cresols/cresylic acid includes 

these three isomers; 

 Xylene isomers m-xylene, o-xylene and p-xylene are excluded 

because the listed pollutant xylenes includes these three 

isomers; and 

 Diazomethane, white phosphorus and titanium tetrachloride 

are excluded because their high reactivity makes their 

presence in NHSMs very unlikely.

In addition, two phrases present in the 2011 NHSM final 

rule “contaminants” definition are not present in today’s 

proposed definition. First, the phrase concerning constituents 

“that will result in emissions of air pollutants” has been 

removed since the regulated community appears to be confused 

that in determining whether or not a NHSM meets the “contaminant 

legitimacy criterion,” emissions from the combustion unit were 

to be considered in making the evaluation. The EPA disagrees and 

directs readers to the language in sections 241.3(d)(1)(iii) and 

241.3(d)(2)(iv), which clearly states that the contaminant 

comparisons are based on the presence of contaminants in the 

NHSM that enters the combustion unit. 

Second, the phrase “including those constituents that could 

generate products of incomplete combustion,” also referred to as 
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PICs, has been removed because it is duplicative and potentially 

misleading. Specifically, this phrase has been removed because 

all PICs that the Agency considers air pollutants—including 

dioxins, dibenzofurans, PCBs, and PAHs—are already listed in CAA 

sections 112(b) or 129(a)(4) and are thus included in the 

“contaminants” definition. More importantly, it is 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 NHSM itself, and 

what it contains prior to combustion, is the subject of this 

rule. Thus, both changes clarify—but do not alter—the 

constituents subject to the contaminant legitimacy criterion.

c. Established Tire Collection Programs

Under the 2011 NHSM final rule, whole scrap tires (that are 

removed from vehicles) had to be managed under an “established 

tire collection program” in addition to meeting other criteria 

in order to be considered a non-waste fuel. The 2011 NHSM final 

rule defined “established tire collection program” as meaning “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 
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vehicle through arrival at the combustion facility” (codified in 

40 CFR 241.2). 

However, this definition does not directly account for 

“factory scrap” tires or “off-specification” tires that are 

contractually arranged to be collected, managed and transported 

between a tire manufacturer (including retailers and other 

parties involved in the distribution and sale of new tires) and 

a combustor—a fact pattern the Agency views as being within the 

intent of the regulatory definition of “established tire 

collection program” because the tires are not discarded. Thus, 

the Agency is proposing to define “established tire collection 

program” to mean “a comprehensive collection system or 

contractual arrangement that ensures scrap tires are not 

discarded and are handled as valuable commodities from the point 

of removal from the vehicle or the point at which they are 

generated at a tire manufacturer (including retailers or other 

parties involved in the distribution and sale of new tires) 

through arrival at the combustion facility.” The Agency did not 

include the provisions for the “factory scrap” or “offspecification” tires in the 2011 NHSM final rule since 

information or comments were not provided to the EPA during the 

rulemaking process and thus, the Agency was not aware of the 

issue. The Agency did not receive comments about factory scrap 
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or off-specification tires on the ANPRM or the proposed rule. 

Following promulgation of the 2011 NHSM final rule, the EPA 

learned that off-specification tires (including factory scrap 

tires), which include whole tires and tire components that do 

not meet manufacturer specifications, are collected at tire 

manufacturing facilities or manufacturer’s downstream 

distribution channels—retailers and other parties involved in 

the distribution and sale of new tires. As noted in the revised 

definition, we interpret the term “tire manufacturers” broadly 

to include retailers and other parties that are involved in the 

distribution and sale of new tires, as we believe that these 

parties also manage tires as valuable commodities, such that 

discard is not occurring when these tires are transferred to a 

combustor. 

If at any point in the process, a tire component or whole 

tire is not suitable for use as a vehicle tire, it is separated 

from the other tire components (or whole tires) and is stored in 

a protected environment in order to accumulate a sufficient 

quantity for shipment. The management of these tires is tightly 

controlled. Proprietary information could be collected by 

competitors by analyzing the factory scrap tire components, 

particularly from the uncured components (not yet vulcanized 

through heat and pressure), so the tires are stored in a safe 
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manner, in part, to prevent theft.19 Thus, we believe that 

factory scrap and off-specification tires are handled in the 

same protective manner as those that qualified to be managed 

under the oversight of established tire collection programs as 

described in the 2011 NHSM final rule. 

The tire manufacturers, as well as the manufacturers’ 

downstream distribution channels, that are included in the 

definition of “established tire collection programs” (1) have 

contractual arrangements with combustors, typically cement kilns 

(due to the high heating value and beneficial contribution to 

the cement production), to take and use their tires as fuels; or 

(2) are covered under the oversight of other collection programs 

that qualify under established tire collection programs (i.e., 

oversight of state tire programs). 

As discussed in the 2011 NHSM final rule, the intent of the 

requirement for “removal from the vehicle” was to distinguish 

these tires from those that were previously abandoned, and thus 

discarded. The changes to the definition in this proposed rule 

align the codified definition of established tire collection 

programs with the intent of the definition. We also note that we 

are proposing to delete the reference to section 241.3(b)(2)(i) 

that was included in the previous definition of established tire 

 

19 Personal communication from Tracey Norberg to EPA, September 13, 2011. A 

copy of this communication has been placed in the docket in today’s rule. 
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collection programs, since the citation is no longer accurate 

based on other revisions being proposed today (e.g., see the 

discussion regarding scrap tires managed pursuant to established 

tire collection programs in section II.D.3). Refer to the 2011 

NHSM final rule for more background and information regarding 

the characterization of “established tire collection programs.”20 

2. Revisions to the Contaminant Legitimacy Criterion for NHSM 

Used as Fuels

Several changes are being proposed in today’s rule to the 

contaminant legitimacy criterion for NHSM used as fuel. These 

proposed changes to the wording in §241.3(d)(1)(iii) emphasize 

the flexibility that is already embodied in the 2011 NHSM final 

rule. First, today’s proposal replaces “contaminants” with the 

phrase “contaminants or groups of contaminants” to clarify that 

the regulatory definition allows groups of contaminants to be 

evaluated, where appropriate, in determining whether a NHSM 

meets the contaminant legitimacy criterion. Second, today’s 

proposal codifies language from the preamble of the 2011 NHSM 

final rule stating that the “designed to burn” concept includes 

traditional fuels that can be burned or are burned in a 

particular unit, whether or not the unit is permitted to burn 

that traditional fuel. 

 

20 See 76 FR 15490-15499 and 15534-15535.
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In addition, the proposed regulations include text 

confirming that contaminant comparisons may use ranges from 

national surveys of traditional fuel data. Neither the 2011 NHSM 

final rule nor today’s proposed rule requires persons to compare 

contaminants in their NHSM to contaminants in the specific 

traditional fuel source they burn (or would otherwise burn). As 

an example, 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. Regulatory text 

confirming this flexibility is only included in today’s proposed 

regulations to clarify what is inherent in the 2011 NHSM final 

rule. 

Two other issues have arisen during implementation of the 

2011 NHSM final rule that, while not leading to specific 

regulatory changes in today’s proposal, still merit discussion. 

The first issue is 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 rule out 

certain constituents. The second issue is that persons may use 

data from a group of similar traditional fuels for contaminant 
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comparisons, provided the unit could burn each traditional fuel. 

This idea grows from the “designed to burn” concept explained in 

the 2011 NHSM final rule and codified in today’s proposal, as 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. See section II.D.2.b for more 

discussion of this rationale. 

a. What are the contaminants?

While persons may satisfy the contaminant legitimacy 

criterion on a contaminant-by-contaminant basis, comparing 

groups of contaminants in the NHSM to similar groups in 

traditional fuels could also be appropriate, provided the 

grouped contaminants 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. One 

approach to grouping contaminants, as shown in Tables 1 and 2 

below, could include TOX, nitrogenated compounds, VOC, SVOC, 

D/F, PCB, PAH, and radionuclides. 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 
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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.21 

 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.22 

 Nitrogenated compounds are expected to contribute to 

emissions of NOx; therefore, the emission standards 

promulgated under the CAA are grouped into one category: 

NOx.

23

 

A look at Tables 1 and 2 below also reveals that a number 

of the seemingly “individual” pollutants listed in sections 112 

and 129 of the CAA are actually classes of structurally-related 

 

21 Area Source Boilers NESHAP, Major Source Boilers NESHAP, and Commercial and 

Industrial Solid Waste Incinerators NESHAP.

22 Major Source Boilers NESHAP and Commercial and Industrial Solid Waste 

Incinerators NESHAP.

23 Commercial and Industrial Solid Waste Incinerators NESHAP.
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compounds (e.g., PCBs, POM, D/F, cyanide compounds, cresols, 

glycol ethers, radionuclides, xylenes, antimony compounds, 

arsenic compounds, beryllium compounds, Cd compounds, etc.). 

If persons choose to group contaminants, analytical methods 

for the NHSM and traditional fuel should account for the same 

list of compounds to the extent possible. Persons may be able to 

exclude some members of a particular contaminant group from 

testing based on process knowledge, but methods for testing the 

group as a whole should generally account for all other members 

of the contaminant group. 

Some data sources may define contaminant groups more 

broadly than this rule, thus resulting in a definition for a 

particular group that includes compounds not considered 

contaminants under the rule. Such data sources may be all that 

is available in the literature in some cases, but they may still 

be appropriate. Total VOC and total SVOC analyses offer an 

instructive example because, depending on the test used and the 

material analyzed, such analyses may include concentrations of 

methane, acetone, or other compounds not considered contaminants 

under the NHSM final rule. Several solutions exist to make the 

results meaningful, however. One approach would be to 

specifically subtract compounds like methane that are not 

considered contaminants under the rule and are expected to boost 
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a total group count in traditional fuels. Another approach would 

be to measure each applicable compound individually and add the 

totals. 

The tables presented below would separate the list of 

potential contaminants into the 15 elements listed in today’s 

proposed definition of “contaminants” and the 163 compounds or 

groups of compounds inferred from that definition by their 

inclusion on the CAA sections 112 or 129 lists. The elements 

listed in Table 1 are considered contaminants because they 

commonly form air pollutants listed on either the CAA section 

112 HAP list, the CAA section 129 list, or both lists. The 

compounds or groups of compounds listed in Table 2 are 

considered contaminants because they are directly on either the 

CAA section 112 HAP list, the CAA section 129 list, or both 

lists.24,25 The Agency wants to make clear that persons can use 

other approaches that they can show are technically reasonable, 

whether it is on a contaminant-by-contaminant basis or involves 

grouping contaminants. The Agency is only offering these tables 

to provide the regulated community with one reasonable approach 

for how a grouping of contaminants could be implemented. 

 

24 Clean Air Act section 112(b). See 

www.epa.gov/ttn/atw/pollutants/atwsmod.html for modifications to the original 

list of Hazardous Air Pollutants.

25 Clean Air Act section 129(a)(4). See www.epa.gov/ttnatw01/129/sec129.pdf
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Table 1: Elements Considered Contaminants—With Explanation

1 Antimony (Sb) Antimony compounds are a CAA section 112 HAP

2 Arsenic (As) Arsenic compounds are a CAA section 112 HAP

3 Beryllium (Be) Beryllium compounds are a CAA section 112 HAP

4 Cadmium (Cd) Cadmium compounds are a CAA section 112 HAP

5 Chlorine (Cl)

Hydrogen chloride/hydrochloric acid is on the CAA HAP 

& 129 lists

6 Chromium (Cr) Chromium compounds are a CAA section 112 HAP

7 Cobalt (Co) Cobalt compounds are a CAA section 112 HAP

8 Fluorine (F)

Hydrogen fluoride/hydrofluoric acid is a CAA section 

112 HAP

9 Lead (Pb) Lead compounds are a CAA section 112 HAP

10 Manganese (Mn) Manganese compounds are a CAA section 112 HAP

11 Mercury (Hg) Mercury compounds are a CAA section 112 HAP

12 Nickel (Ni) Nickel compounds are a CAA section 112 HAP

13 Nitrogen (N) Nitrogen oxides (NOx

) are a CAA section 129 pollutant

14 Selenium (Se) Selenium compounds are a CAA section 112 HAP

15 Sulfur (S) Sulfur dioxide (SO

2

) is a CAA section 129 pollutant 

Table 2: Compounds Considered Contaminants—With Group 

Information26

1 Acetaldehyde VOC27

2 Acetamide SVOC28 Nitrogenated

3

Acetonitrile (methyl 

cyanide) VOC Nitrogenated

4 Acetophenone VOC

5 2-Acetylaminofluorene Nitrogenated

6 Acrolein VOC

7 Acrylamide VOC Nitrogenated

8 Acrylic acid VOC

9 Acrylonitrile VOC Nitrogenated

10 Allyl chloride VOC

Org. 

Halogen29

11 4-Aminobiphenyl SVOC Nitrogenated

12 Aniline VOC Nitrogenated

13 o-Anisidine SVOC Nitrogenated

14 Asbestos

 

26 Spicer, Chester W. et al., Hazardous Air Pollutant Handbook, Lewis, Boca 

Raton, FL, 2002, pg 23-53.

27 Volatile organic compounds (VOC) are identified here as organic compounds 

with a vapor pressure greater than 0.1 mm Hg at 25°C. 

28 Semi-volatile organic compounds (SVOC) are identified here as organic 

compounds with a vapor pressure between 10-7 and 0.1 mm Hg at 25°C.

29 Organic halogens are identified here as any compound that contains both 

carbon and a halogen (chlorine, bromine, fluorine, or iodine).
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15 Benzene VOC

16 Benzidine SVOC Nitrogenated

17 Benzotrichloride SVOC Org. Halogen

18 Benzyl chloride VOC Org. Halogen

19 Biphenyl SVOC

20

Bis(2-ethylhexyl)phthalate 

(DEHP) SVOC

21 Bis(chloromethyl)ether VOC Org. Halogen

22 Bromoform VOC Org. Halogen

23 1,3-Butadiene VOC

24 Calcium cyanamide Nitrogenated

25 Captan SVOC Org. Halogen Nitrogenated

26 Carbaryl SVOC Nitrogenated

27 Carbon disulfide VOC

28 Carbon monoxide

29 Carbon tetrachloride VOC Org. Halogen

30 Carbonyl sulfide VOC

31 Catechol VOC

32 Chloramben SVOC Org. Halogen Nitrogenated

33 Chlordane SVOC Org. Halogen

34 Chloroacetic acid VOC Org. Halogen

35 2-Chloroacetophenone SVOC Org. Halogen

36 Chlorobenzene VOC Org. Halogen

37 Chlorobenzilate SVOC Org. Halogen

38 Chloroform VOC Org. Halogen

39 Chloromethyl methyl ether VOC Org. Halogen

40 Chloroprene VOC Org. Halogen

41 * Cresols/Cresylic acid30 VOC

42 Cumene VOC

43 * Cyanide compounds31 Nitrogenated

44 2,4-D, salts and esters SVOC Org. Halogen

45 DDE SVOC Org. Halogen

46 * Dibenzofurans32

Consider Dioxins & Furans as a Distinct 

Group

47

1,2-Dibromo-3-

chloropropane VOC Org. Halogen

48 Dibutylphthalate SVOC

49 1,4-Dichlorobenzene(p) VOC Org. Halogen

50 3,3-Dichlorobenzidene SVOC Org. Halogen Nitrogenated

51

Dichloroethyl ether 

(bis(2-chloroethyl)ether) VOC Org. Halogen

52 1,3-Dichloropropene VOC Org. Halogen

53 Dichlorvos SVOC Org. Halogen

54 Diethanolamine SVOC Nitrogenated

55 Diethyl sulfate VOC

56 3,3-Dimethoxybenzidine Nitrogenated

57 Dimethyl aminoazobenzene Nitrogenated

 

30 Cresols are a group that includes three compounds.

31 Cyanide compounds are a group that includes hydrogen cyanide, 

propionitrile, cyanogens, and a number of possible particle phase compounds.

32 Dibenzofurans are a group that includes 135 polychlorinated dibenzofurans 

(PCDFs).
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58 N,N-Dimethylaniline VOC Nitrogenated

59 3,3'-Dimethyl benzidine SVOC Nitrogenated

60

Dimethyl carbamoyl 

chloride VOC Org. Halogen Nitrogenated

61 Dimethyl formamide VOC Nitrogenated

62 1,1-Dimethyl hydrazine VOC Nitrogenated

63 Dimethyl phthalate SVOC

64 Dimethyl sulfate VOC

65

4,6-Dinitro-o-cresol, and 

salts SVOC Nitrogenated

66 2,4-Dinitrophenol SVOC Nitrogenated

67 2,4-Dinitrotoluene SVOC Nitrogenated

68

1,4-Dioxane (1,4-

diethyleneoxide) VOC

69 1,2-Diphenylhydrazine SVOC Nitrogenated

70

Epichlorohydrin (1-chloro2,3-epoxypropane) VOC Org. Halogen

71 1,2-Epoxybutane VOC

72 Ethyl acrylate VOC

73 Ethyl benzene VOC

74 Ethyl carbamate (urethane) VOC Nitrogenated

75

Ethyl chloride 

(chloroethane) VOC Org. Halogen

76

Ethylene dibromide 

(dibromoethane) VOC Org. Halogen

77

Ethylene dichloride (1,2-

Dichloroethane) VOC Org. Halogen

78 Ethylene glycol SVOC

79 Ethylene imine (aziridine) VOC Nitrogenated

80 Ethylene oxide VOC

81 Ethylene thiourea SVOC Nitrogenated

82

Ethylidene dichloride 

(1,1-Dichloroethane) VOC Org. Halogen

83 Formaldehyde VOC

84 * Glycol ethers33 SVOC

85 Heptachlor SVOC Org. Halogen

86 Hexachlorobenzene SVOC Org. Halogen

87 Hexachlorobutadiene VOC Org. Halogen

88

Hexachlorocyclopentadiene 

(HCCPD) SVOC Org. Halogen

89 Hexachloroethane VOC Org. Halogen

90

Hexamethylene-1,6-

diisocyanate SVOC Nitrogenated

91 Hexamethylphosphoramide SVOC Nitrogenated

92 Hexane VOC

93 Hydrazine Nitrogenated

94 Hydroquinone SVOC

95 Isophorone VOC

96 Lindane (all isomers) SVOC Org. Halogen

97 Maleic anhydride SVOC

98 Methanol VOC

 

33 Glycol ethers are a group that includes roughly 30 compounds.
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99 Methoxychlor SVOC Org. Halogen

100

Methyl bromide 

(bromomethane) VOC Org. Halogen

101

Methyl chloride 

(chloromethane) VOC Org. Halogen

102

Methyl chloroform (1,1,1-

trichloroethane) VOC Org. Halogen

103 Methyl hydrazine VOC Nitrogenated

104

Methyl iodide 

(Iodomethane) VOC Org. Halogen

105 Methyl isobutyl ketone VOC

106 Methyl isocyanate VOC Nitrogenated

107 Methyl methacrylate VOC

108

Methyl tert butyl ether 

(MTBE) VOC

109

4,4-Methylene bis(2-

chloroaniline) Org. Halogen Nitrogenated

110

Methylene chloride 

(dichloromethane) VOC Org. Halogen

111 4,4'-Methylenedianiline Nitrogenated

112

Methylene diphenyl 

diisocyanate (MDI) SVOC Nitrogenated

113 Naphthalene SVOC

114 Nitrobenzene VOC Nitrogenated

115 4-Nitrobiphenyl SVOC Nitrogenated

116 4-Nitrophenol SVOC Nitrogenated

117 2-Nitropropane VOC Nitrogenated

118

N-Nitrosodimethylamine 

(NDMA) VOC Nitrogenated

119 N-Nitroso-N-methylurea VOC Nitrogenated

120 N-Nitrosomorpholine VOC Nitrogenated

121 Parathion SVOC Nitrogenated

122

Pentachloronitrobenzene 

(Quintobenzene) SVOC Org. Halogen Nitrogenated

123 Pentachlorophenol SVOC Org. Halogen

124 Phenol VOC

125 p-Phenylenediamine SVOC Nitrogenated

126 Phosgene VOC Org. Halogen

127 Phosphine

128 Phthalic anhydride SVOC

129 *

Polychlorinated biphenyls 

(PCBs)34 Consider PCBs as a Distinct Group

130 *

Polycyclic Organic Matter 

(or Total PAH)35 Consider Total PAH as a Distinct Group

131 1,3-Propane sultone VOC

132 β-Propiolactone VOC

133 Propionaldehyde VOC

134 Propoxur (Baygon) SVOC Nitrogenated

 

34 PCBs are a group that includes 209 congeners.

35 Polycyclic Organic Matter (POM) is a group that theoretically may include 

millions of compounds. Only 100 or so, however, have been identified and 

studied.
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135

Propylene dichloride (1,2-

dichloropropane) VOC Org. Halogen

136 Propylene oxide VOC

137

1,2-Propylenimine (2-

methyl aziridine) VOC Nitrogenated

138 Quinoline SVOC Nitrogenated

139 Quinone SVOC

140 *

Radionuclides (including 

radon)36

141 Styrene VOC

142 Styrene oxide VOC

143 *

2,3,7,8-

Tetrachlorodibenzo-pdioxin & other dioxins37

Consider Dioxins / Furans as a Distinct 

Group

144 1,2,2,2-Tetrachloroethane VOC Org. Halogen

145

Tetrachloroethylene 

(perchloroethylene) VOC Org. Halogen

146 Toluene VOC

147 2,4-Toluene diamine SVOC Nitrogenated

148 2,4-Toluene diisocyanate SVOC Nitrogenated

149 o-Toluidine SVOC Nitrogenated

150

Toxaphene (chlorinated 

camphenes) SVOC Org. Halogen

151 1,2,4-Trichlorobenzene VOC Org. Halogen

152 1,1,2-Trichloroethane VOC Org. Halogen

153 Trichloroethylene (TCE) VOC Org. Halogen

154 2,4,5-Trichlorophenol SVOC Org. Halogen

155 2,4,6-Trichlorophenol SVOC Org. Halogen

156 Triethylamine VOC Nitrogenated

157 Trifluralin SVOC Org. Halogen Nitrogenated

158 2,2,4-Trimethylpentane VOC

159 Vinyl acetate VOC

160 Vinyl bromide VOC Org. Halogen

161 Vinyl chloride VOC Org. Halogen

162

Vinylidene chloride (1,1-

dichloroethylene) VOC Org. Halogen

163 * Xylenes38 VOC

Tables 1 and 2 do not include the 17 compounds specifically 

removed from the proposed regulatory definition of contaminants 

in §241.2. As discussed in section II.D.1., HCl, Cl2, HF), NOx, 

and SO2are excluded from Table 2 and replaced by the elements 

 

36 Radionuclides are a group that includes uranium, radon, and radium 

isotopes.

37 Dioxins are a group that includes 75 polychlorinated dibenzo dioxins

(PCDDs).

38 Xylenes are a group that includes three compounds.
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chlorine, fluorine, nitrogen and sulfur in Table 1. This is 

necessary because of differences between NHSMs prior to 

combustion and the emissions that will result from that 

combustion. NHSMs prior to combustion are not expected to 

contain the CAA 112/129 pollutants HCl, Cl2, HF, NOx or SO2, and 

measuring forms of their precursors (the elements chlorine, 

fluorine, nitrogen and sulfur) is the only way to account for 

these pollutants prior to combustion. 

In addition, fine mineral fibers, PM, and coke oven 

emissions are excluded because they are unlikely to exist in 

NHSMs prior to combustion. Diazomethane, white phosphorus and 

titanium tetrachloride are also excluded because their 

reactivity makes their presence in NHSMs very unlikely.39 

Finally, the three cresol isomers are included in Table 2 under 

cresols/cresylic acid, itself a listed HAP; and similarly, the 

three xylene isomers are included in Table 2 under xylenes, also 

a listed HAP.

b. What does “designed to burn” mean?

To meet the contaminant legitimacy criterion, persons must 

compare contaminants in the NHSM they wish to burn to 

contaminants in the traditional fuel the unit is “designed to 

 

39 Spicer, Chester W. et al., Hazardous Air Pollutant Handbook, Lewis, Boca 

Raton, FL, 2002, pp 11-21.
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burn.”40 Today’s proposal codifies that data for any traditional 

fuel the unit can burn or does burn may be used for these 

comparisons, whether or not the unit’s air permit lists the 

traditional fuel. The reason such comparisons to traditional 

fuel(s) are conducted is to assist in making a determination of 

whether or not the NHSM is being discarded, which makes 

differentiating between “can burn” and “does burn” irrelevant. 

Please note that for a unit to be able to burn a traditional 

fuel, it needs an appropriate feed mechanism (e.g., a way to 

load solid fuel of a particular size into the unit). The unit 

would also need the ability to adjust physical parameters to 

ensure spatial mixing and flame stability per unit 

specifications. 

Traditional fuels are defined in §241.2 as follows: 

“Traditional fuels means materials that are produced as fuels 

and are unused products that have not been discarded and 

therefore, are not solid wastes, including: (1) fuels that have 

been historically managed as valuable fuel products rather than 

being managed as waste materials, including fossil fuels (e.g., 

coal, oil and natural gas), their derivatives (e.g., petroleum 

coke, bituminous coke, coal tar oil, refinery gas, synthetic 

fuel, heavy recycle, asphalts, blast furnace gas, recovered 

 

40 As explained in Section II.D.2.a, today’s proposed rule makes it clear that 

“contaminants” may be an individual contaminant or group of contaminants. 
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gaseous butane, and coke oven gas) and cellulosic biomass 

(virgin wood); and (2) alternative fuels developed from virgin 

materials that can now be used as fuel products, including used 

oil which meets the specifications outlined in 40 CFR 279.11, 

currently mined coal refuse that previously had not been usable 

as coal, and clean cellulosic biomass. These fuels are not 

secondary materials or solid wastes unless discarded.”

Because most combustion units can burn different—but 

related—traditional fuels, 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 OAQPS.41,42

To further clarify the impact of the new proposed “designed 

to burn” language on contaminant comparisons, potential 

categories for coal, wood and oil are described below. A coal 

group could include data on anthracite, lignite, bituminous and 

sub-bituminous coal. A wood or biomass group could include data 

on unadulterated lumber, timber, bark, biomass and hogged fuel. 

An oil group could include data on fuel oils 1-6, diesel fuel, 

 

41 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 6). 

February 2011. http://www.epa.gov/ttn/atw/boiler/boilerpg.html#TECH

42 The fuel analysis information in this OAQPS database is one example of a 

“national survey” of traditional fuel information, as referenced in the 

proposed contaminant legitimacy criterion at §241.3(d)(1)(iii).
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kerosene and other petroleum based oils.43,44 In cases where a 

unit can burn traditional fuels from several categories, such as 

a boiler that can burn either coal or biomass, contaminant 

comparisons could be made using data from either fuel category 

at the combustor’s discretion. In other words, if a facility 

burns biomass in its combustion unit, but that same combustion 

unit could also burn coal, the facility could compare its 

secondary material to either traditional fuel.

Some fossil fuel derivatives (e.g., petroleum coke, coal 

tar oil) and alternative fuels (e.g., clean cellulosic biomass) 

are defined as traditional fuels and, therefore, do not need to 

meet the legitimacy criteria to be burned. The EPA lacks 

sufficient contaminant data, however, to assist those wishing to 

compare NHSM to these traditional fuels. In addition, other 

units currently exist that burn only NHSMs. Both situations 

raise the question of what traditional fuel(s) to use for 

contaminant comparisons. In addition to being able to burn 

derivative fuels, alternative fuels, or NHSM, most combustion 

units can also burn other traditional fuel(s). In such cases, it 

is appropriate to make the comparison to one of the traditional 

 

43 We do not believe that the oil group should include unrefined crude oil or 

gasoline, as neither is typically burned in combustion units subject to the 

CAA sections 112 or 129 standards.

44 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 “offspec” oil), it is a solid waste under the 2011 NHSM final rule.
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fuel categories discussed above: either coal or wood for solids 

or oil for liquids. For example, if a combustion unit only burns 

a solid form of NHSM, the combustor could compare contaminants 

in the NHSM against either coal or wood in order to demonstrate 

compliance with the contaminant legitimacy criterion, provided 

the combustion unit is designed to burn such solid forms of 

fuel.

c. What contaminant comparisons are allowed?

Regardless of the specific methodology chosen, a comparison 

will have to be made for each contaminant or group of 

contaminants between a traditional fuel or group of traditional 

fuels and the NHSM. Generators or combustors can use either 

traditional fuel data collected by the EPA or their own data for 

traditional fuel comparison values.45 Generators or combustors 

are responsible, however, for either providing NHSM comparison 

values in cases where testing is required or documenting why 

testing is unnecessary. Examples of 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.

 

45 The EPA has collected current information on levels of contaminants in 

traditional fuels, which can be found at 

www.epa.gov/epawaste/nonhaz/define/index and used by the regulated community 

as they so choose. The EPA will update this information as appropriate.
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Given data for a particular traditional fuel, it makes 

intuitive sense to base the traditional fuel comparison value on 

the upper end of its statistical range. 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 either the 2011 NHSM final rule 

or today’s proposed rule.46 Given that selection, 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. 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 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 generally need to be 

repeated, provided the facility continues to operate in the same 

 

46 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.
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manner and use the same type of NHSMs as when the original 

assessment was made. 

We would finally note that 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, today’s preamble discussion does 

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 

legitimacy criteria have been met.

Even when analytical testing is not necessary, combustors 

burning NHSM under CAA section 112 must document the basis of 

their determinations pertaining to the part 241 criteria 

(including the contaminant legitimacy criteria) in accordance 

with applicable air regulations. These regulations can be found 

in §63.11225(c)(2)(ii) for area source boilers, in 

§63.7555(d)(2) for major source boilers, and in §60.2175(v) for 

incinerators.

3. Categorical Determinations That Specific NHSM Are Not Solid 

Waste When Used as a Fuel

Issues were raised after promulgation of the 2011 NHSM 

final rule concerning application of the legitimacy criteria, 
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and the extent of the information required to make 

demonstrations that a NHSM was not a solid waste. To provide 

additional clarity and assist in implementation of the rule, the 

Agency is proposing to codify in §241.4 determinations that 

certain NHSMs are not solid wastes when used as a fuel, where 

the Agency has sufficient information and knowledge that these 

NHSMs are not wastes. The practical effect of these categorical 

listings is that persons that generate or burn these materials 

will not need to make individual determinations, as required 

under the existing rules, that these materials meet the 

legitimacy criteria. Except where noted, combustors of these 

materials will not be required to provide further information 

demonstrating their non-waste status.47 

Thus, the Agency is proposing a list of secondary materials 

that are non-wastes when used as a fuel in a combustion unit, 

based on a balancing of the legitimacy criteria and other such 

relevant factors that the Administrator may identify. Such 

additional factors may include, but are not limited to, whether 

the NHSM’s use as a fuel has been integrally tied to the 

 

47 In the 2011 NHSM final rule, scrap tires managed under established tire 

collection programs and resinated wood were designated as non-wastes when 

used both within and outside generator control (see § 241.3(b)(2). The final 

rule indicated that the Agency would solicit comment in the future on 

additional non-hazardous secondary materials that can be used as a non-waste 

fuel both by the generator and outside the control of the generator (76 FR 

15472). 
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industrial production process and the extent to which the NHSM 

is functionally the same as the comparable traditional fuel. 

We note that a balancing approach to considering the 

legitimacy criteria along with other relevant factors is not 

included in the standards and procedures for making individual 

non-waste determinations under §241.3. The Agency is not 

considering any change to the self-implementing, mandatory 

nature of the §241.3 standards for individual facilities and 

will not respond to any comments on this topic.

Regarding the proposed categorical determinations in 

§241.4, where a particular NHSM may not meet all the legitimacy 

criteria outlined in §241.3(d)(1), it is necessary to require a 

formal determination in order to prevent sham recycling (i.e., 

materials being discarded under the guise of recycling). The EPA 

has long acknowledged that, “[w]ith respect to the issue of 

whether [an] activity is sham recycling, this question involves 

assessing the intent of the owner or operator by evaluating 

circumstantial evidence, always a difficult task.”48 In cases 

where the difference between recycling and treatment is 

difficult to distinguish, “[t]he potential for abuse is such 

that great care must be used when making a determination that a 

particular activity is to go unregulated (i.e., it is one of 

 

48 See April 26, 1989 Memorandum from Sylvia K. Lowrance, Director, Office of 

Solid Waste to Hazardous Waste Management Division Directors, Regions I-X. A 

copy of this document has been placed in the docket for today’s rulemaking. 
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those activities which is beyond the scope of our 

jurisdiction).”49 However, the Agency also believes that there 

are cases where a secondary material may not fully meet the 

self-implementing legitimacy criteria, but upon consideration of 

other relevant factors, it can be determined that the material 

is a legitimate fuel and is not merely being discarded by being 

burned. 

In addition to the proposed categorical determination that 

certain secondary materials are not wastes when combusted as a 

fuel, the Agency is proposing a rulemaking petition process for 

individuals to request categorical determinations for additional 

NHSM as not being a solid waste when burned as a fuel in 

combustion units. This process is outlined in section II.D.4. 

The information and rationale that the Agency is relying 

upon to propose the section 241.4 categorical determinations for 

certain secondary materials is discussed below. 

a. Scrap Tires

In the 2011 NHSM final rule, the EPA determined that scrap 

tires removed from vehicles and managed pursuant to established 

tire collection programs would not be considered a solid waste, 

provided they meet the legitimacy criteria in §241.3(d)(1). The 

2011 NHSM final rule preamble also concluded that, as a 

 

49 Id.
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category, scrap tires managed pursuant to established tire 

collection programs would meet the legitimacy criteria for NHSMs 

used as fuels. Questions have arisen, however, as to whether 

persons must still demonstrate for each facility that this 

material meets the legitimacy criteria. To clarify this point, 

we are proposing to codify a categorical determination in 

today’s rule to designate scrap tires that have not been 

discarded and are managed under the oversight of established 

tire collection programs (as defined in 241.2), including tires 

removed from vehicles and off-specification tires, are not solid 

wastes when used as fuels in combustion units. Thus, persons who 

generate and/or burn such scrap tires would not need to make an 

individual legitimacy determination that such scrap tires are 

non-waste fuels.

As discussed in section II.D.1 of today’s action, the term 

“established tire collection program” is proposed to encompass 

off-specification tires (including factory scrap tires) 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. Thus, under the proposal, “established tire 

collection program” means “a comprehensive collection system or 

contractual arrangement that ensures scrap tires are not 
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discarded and are handled as valuable commodities from the point 

of removal from the vehicle or the point at which they are 

generated at a tire manufacturer (including retailers or other 

parties involved in the distribution and sale of new tires) 

through arrival at the combustion facility.” The established 

tire collection programs ensure the tires are not discarded. The 

rationale for the related edits to the definition of established 

tire collection programs are described in the section II.D.1. 

As discussed in the 2011 NHSM final rule, scrap tires from 

vehicles meet the legitimacy criteria (§241.3(d)(1)) for being 

handled as a valuable commodity, for having meaningful heating 

value, and for comparable contaminants.50 Specifically, scrap 

tires are considered to be handled as a valuable commodity when 

they are collected under established tire collection programs. 

Because scrap tires have an exceptionally high heating value 

(12,000 Btu/lb to 16,000 Btu/lb), they are considered to meet 

the legitimacy criteria for meaningful heating value. In fact, 

the heating value of scrap tires is higher than typical coal 

values and other solid fuels.51 In developing the 2011 NHSM final 

rule, the EPA analyzed contaminant concentrations in scrap tires 

and determined that contaminant levels were comparable to or 

 

50 76 FR at 15535.

51 ASTM Standard D6700-01, 2006, “Standard Practice for Use of Scrap TireDerived Fuel," ASTM International, West Conshohocken, PA, 2003, DOI: 

10.1520/C0033-03, www.astm.org
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lower than levels in traditional fuels; therefore, scrap tires 

are considered to meet the legitimacy criterion for comparable 

contaminants.52

The term “scrap tire” is a general term for tires and can 

include, 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; it 

does not include whole tires that have been discarded and burned 

directly without processing as a fuel. The provision in §241.4 

specifically references only those scrap tires that have not 

been discarded and are managed under the oversight of 

established tire collection programs, including tires removed 

from vehicles and off-specification tires. Thus, the regulatory 

text has been revised to make this point clear.

b. Resinated Wood53

 

52 76 FR at 15492. Data cited submitted as comments on the 2010 NHSM Proposed 

Rule and can be found in the docket EPA-HQ-RCRA-2008-0329. See also Materials 

Characterization Papers in Support of the Final Rulemakings - 

Identification of Non-Hazardous Secondary Materials that are Solid Wastes: 

Scrap Tires (February 3, 2011); Traditional Fuels and Key Derivatives 

(February 7, 2011) in docket EPA-HQ-RCRA-2008-0329. We also note that we have 

developed, in support of today’s proposed rulemaking, a new background 

document that includes updated information regarding scrap tires, as well as 

the other NHSM discussed in today’s proposal. This document is entitled 

“Resinated Wood, Scrap Tire, and Pulp/Paper Sludge Support Document” and can 

also be found in docket EPA-HQ-RCRA-2008-0329.
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The EPA is proposing to designate resinated wood as not 

being a solid waste when used as a fuel. This determination was 

previously codified under §241.3 (b)(2)(ii) of the NHSM final 

rule, provided the resinated wood met the legitimacy criteria in 

§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. 

As discussed in the 2011 NHSM final rule, wood product 

plants have been designed to specifically utilize these 

residuals that the wood manufacturing process creates and would 

not be able to operate as designed without this material. For 

example, sander dust injector systems have been specifically 

developed to accommodate the unique combustion requirements of 

this material and these injector systems have been installed on 

many boiler and wood drying systems within the industry.54

Burners designed to combust sander dust or trim may not be 

suitable for combusting other fuels—thus, the cost of these 

residual materials relative to the cost of using other fuels 

 

53 40 CFR 241.2 defines resinated wood 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. 

54 American Forest and Paper Association, August 3, 2010. EPA Docket ID EPAHQ-RCRA-2008-0329.
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would be a major consideration.55 Overall, in composite panel 

manufacturing, plants typically reuse 58 percent of these 

residual materials in the process and 35 percent is burned for 

energy recovery.56

Resinated wood is highly valued within the wood products 

industry for its high fuel value relative to other wood fuels 

generated and burned at these facilities for energy recovery. 

Many facilities rely on mixing of these low moisture content 

wood materials with higher moisture materials. Resinated wood 

residuals are routinely transferred between either intra- or 

inter- company facilities and used as either “furnish” (i.e., 

raw materials) or fuel at the receiving facilities. The material 

being transferred off-site is used and handled in the same 

manner that resinated wood residuals are used when generated onsite. In general, the motivation to use the resinated wood as a 

fuel, even with the slightly higher formaldehyde levels, 

predominates over the motivation to dispose of the formaldehyde. 

 

55 For example, Composite Panel Association, in comments on the NHSM Proposed 

Rule, stated, “Estimates for the cost of a composite panel plant to switch 

boiler fuel from a trim/sander dust mix to natural gas ranged from $1 million 

to $3.5 million a year depending on boiler size and the price of natural gas. 

For direct fired dryers alone, the cost to switch from sander dust to natural 

gas ranged from $350,000 to $1.4 million a year, again depending on dryer 

size and gas prices. These costs do not include the re-engineering costs that 

would be necessitated nor do they include the cost of transportation or offsite disposal of this valuable fuel. Moreover, these costs do not take into 

account the severe costs implications on all wood product facilities that 

currently utilize resinated fuels in process heaters or dryers.” EPA Docket 

ID: EPA-HQ-RCRA-2008-0329-1358.

56 The Generation and Utilization of Residuals from Composite Panel Products; 

Forest Products Journal 54:2, 2004; David C. Smith.
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See American Petroleum Institute v. EPA, 216 F.3d 50, 58 (DC 

Cir. 2000) (in declaring reclaimed oily wastewater to be a 

waste, the EPA failed to explain why the discard motivation 

predominated the recycling motivation). Indeed, discard of the 

formaldehyde is a very distant second to the fuel product use of 

the resinated wood. 

The heating value range presented (8,500 – 9,000 Btu/lb) 

indicates that resinated wood residuals have heating values 

significantly greater than the 5,000 Btu/lb level described in 

the preamble to the 2011 NHSM final rule for presuming 

compliance with the meaningful heating value legitimacy 

criterion (codified at §241.3(d)(1)(ii)). Resinated wood 

residuals also are managed as a valuable commodity since these 

residuals are managed as a primary fuel for wood products 

manufacturers. 

While we received limited contaminant information prior to 

the promulgation of the final rule, the data we have suggest 

that resins and adhesives containing formaldehyde react within 

the resin curing process, leaving “free” formaldehyde at levels 

less than 0.02 percent (or 200 ppm). In addition, new national 

rules, as mandated by the CARB Composite Wood ATCM, per new 
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Public Law No. 111-199, will reduce the formaldehyde levels even 

further.57

While we acknowledge that these levels may not always meet 

the contaminant legitimacy criterion in every situation, in 

today’s action, we are proposing a categorical non-waste 

determination for resinated wood that is used as fuel. We are 

proposing to codify this determination, 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. That is, the purpose of burning these wood 

residuals (including the resins that they contain, which 

themselves contribute to the heating value of the material) is 

not to destroy or discard them, as they are clearly considered 

and managed as a valuable commodity to the manufacturing 

process. 

In making this determination, we note the extent to which 

resinated wood is used as fuels throughout the wood 

manufacturing industry and that often the use of resinated wood 

as fuel is essential to the wood manufacturing process. We also 

 

57 Information received from the wood manufacturing industry indicates that 

formaldehyde levels will be reduced to less than 100 ppm in resinated wood 

based on the new CARB rules. These data are provided in the docket for 

today’s proposed rule. 
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note 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 without the use of these 

materials as fuel. Thus, resinated wood residuals are not being 

discarded when used as fuel and, therefore, we are proposing to 

specifically identify them as a non-waste fuel in §241.4. By 

specifically listing them as a non-waste fuel, generators or 

combustors of this material will not need to make legitimacy 

determinations on a site-by-site basis. 

4. Rulemaking Petition Process for Other Non-Waste 

Determinations

The Agency recognizes that there may be other NHSMs that 

can also be considered non-wastes when burned as fuels in 

combustion units when balancing the legitimacy criteria and 

other relevant factors. Thus, under today’s proposed rule, we 

are proposing a process whereby persons may submit a rulemaking 

petition to the Administrator where they can identify and 

request that additional NHSMs be listed in section 241.4.58 The 

 

58 This approach is consistent with the approach EPA recently proposed in the 

July 2011 Definition of Solid Waste (DSW) proposed rule (76 FR 44094), 

whereby the Agency is proposing to require that persons who claim that they 

are legitimately reclaiming a hazardous secondary material meet all four 

legitimacy criteria, but is providing a petition process whereby they can 

petition EPA that such materials, when looking at the hazardous secondary 

material and recycling activity as a whole, would still be considered 

legitimate recycling. The primary difference between the two is that in the 

DSW proposed rule, the demonstration is made on a site-specific basis, 
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petition process would be similar to 40 CFR 260.20, where any 

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 section 260.20 standards reflect normal, informal rulemaking 

procedures under the APA and thus serve as an appropriate model 

for the NHSM petitions under this section. 

In the context of a rulemaking petition under section 

241.4(b), any person would be able to 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 would need 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). 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, 

 

whereas in today’s proposed rule, the demonstration would be made on a 

material-by-material basis. 
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such NHSM(s) is not a solid waste when used as a fuel in a 

combustion unit. 

If the applicant believes that the NHSM is a legitimate 

product and not discarded despite not meeting 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, and/or

 The extent that the NHSM is functionally the same as the 

comparable traditional fuel, and

 Other relevant factors.

The application would be 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, 
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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 should be considered a nonwaste fuel, balancing the legitimacy criteria with other 

relevant factors. 

Under this petition process, the Administrator would make 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 would make a final decision by publishing in the 

Federal Register a regulatory amendment or a denial of the 

petition.

E. Additional Request for Comment

As we discuss elsewhere in this preamble, the Agency is 

proposing to identify and categorically list NHSMs as being a 

non-waste fuel, whether burned within the control of the 

generator or outside the control of the generator (see 

241.4(a)). By listing these NHSMs categorically, persons would 

not have to make individual determinations as to whether or not 
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these NHSMs are solid wastes. In addition, the Agency is also 

proposing that in considering whether or not to list a NHSM as a 

non-waste fuel, that the Agency can balance the legitimacy 

criteria, and such other relevant factors that the Administrator 

may identify. Such additional factors may include, but are not 

limited to, whether the NHSM’s use as a fuel has been integrally 

tied to the industrial production process and the extent to 

which the NHSM when used as a fuel is consistent with that of 

fuel product. 

With regard to pulp and paper sludges, the 2011 NHSM final 

rule specifically concluded the following “The final rule will 

retain the proposed approach – pulp and paper sludges managed 

within control of the generator are a non-waste fuel as they 

would seem to meet all of the legitimacy criteria . . . ”, (See 

76 FR 15488, March 21, 2011). We received several questions 

about these materials following issuance of the final rule. As 

discussed below, based on the current record, the EPA continues 

to believe that these pulp and paper sludges meet the legitimacy 

criteria and can be burned as a non-waste fuel in accordance 

with existing section 241.3(b)(1) provided such combustion units 

are within the control of the generator. In this section, we 

discuss the information we currently have on these sludges, and 

the additional information that the Agency needs before we could 
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categorically list these materials in section 241.4(a) as a nonwaste fuel. If such information is provided to the EPA, and 

after balancing the legitimacy criteria with other relevant 

factors that the EPA believes that these sludges are not solid 

wastes when combusted, the EPA is prepared to add pulp and paper 

sludges to the list of non-waste fuels in section 241.4(a). 

Pulp and paper mill sludges, both primary and secondary, 

are produced from the wastewater treatment of process effluents. 

In the pulping and papermaking process, maximizing wood fiber 

recovery is essential in making the process efficient and costeffective. However, there are fibers that end up being too short 

(fines) that can be detrimental to paper quality and that 

inhibit the papermaking capacity of the paper machine. Mills 

thoroughly clean and screen the wood fibers to retain the 

suitable fibers and remove the excess fines. These fines end up 

in the wastewater stream and, eventually, in the sludge. 

Therefore, these sludges, which are approximately 90-95 percent

biomass on a dry weight basis, are essentially no different than 

the biomass-based wood fibers that enter the pulping or 

papermaking process, except that the fibers are too short to be 

suitable for papermaking; these sludges also contain 

microorganisms that feed on organic material in the wastewater 

stream. 
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The EPA compared the contaminant concentrations in pulp and 

paper sludges to levels found in coal and untreated wood, since 

both these traditional fuels can be burned in pulp and paper 

mills. As we discussed in the preamble to the final NHSM rule, 

chlorine levels from one set of pulp and paper sludge samples 

submitted in the public comments had an arithmetic mean of 465 

ppm, a median of 318 ppm, a maximum level among mill means of 

2,399 ppm, and a maximum among individual analyses of 4,800 ppm 

(all on a dry weight basis). Other samples had chlorine 

concentrations of between 1,050-4,800 ppm (dry basis). When 

comparing information on pulp and paper sludge to the 

information that we have compiled on coal, we found that 

chlorine levels in coal are reported to be as high as 7,400 ppm, 

and that average chlorine values for bituminous and subbituminous coal are 1,200 ppm and 140 ppm, respectively. Thus, 

the average chlorine levels reported in most pulp and paper

sludge are likely to be comparable with average chlorine levels 

found in bituminous coal. We also determined that the chlorine 

levels in pulp and paper sludge would be comparable to untreated 

wood, given that untreated wood had chlorine levels as high as 

11,890 ppm.59 We note that there is one sample in the submitted 

 

59 Since promulgation of the 2011 NHSM final rule, the EPA has updated and 

reorganized its traditional fuel data to reflect data supporting the 2011 

Major Source Boiler final rule and the 2011 CISWI final rule, whereas the 

previous version of the paper relied on data supporting the 2010 Major Source 
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data set for a pulp and paper sludge that has a chlorine 

concentration of 16,550 ppm. However, since this was the only 

sample with such a high concentration of chlorine, we did not 

think that it was representative of pulp and paper sludges 

generally. Since promulgation of the 2011 NHSM final rule, EPA 

has received additional contaminant data regarding these pulp 

and paper sludges from the forest products industry, which 

demonstrate even more clearly that this one sample is anomalous. 

Regarding chlorine levels in particular, the forest products 

industry provided data for 93 samples of pulp and paper sludges. 

This data set shows the mean value for chlorine to be 361 ppm, 

with a standard deviation of 661 ppm, and a 90 percent 

confidence interval at 1,217 ppm. We also determined that the 

levels of metals were lower in pulp and paper sludges than in 

both untreated wood and coal. Such data further support the 

conclusions outlined in the final NHSM rule that, based on 

information received by the Agency, pulp and paper sludge meets 

the contaminant legitimacy criterion (76 FR 15488).

While pulp and paper sludges can have a heating value below 

5,000 Btu/lb, pulp and paper mills typically improve the heating 

 

Boiler proposed rule and the 2010 CISWI proposed rule. Contaminant data have 

also been reorganized to better reflect revisions to the definition of 

“contaminants” and the contaminant legitimacy criterion in today’s proposed 

NHSM rule. The updated data can be found at 

www.epa.gov/epawaste/nonhaz/define/index. The Agency will update this 

information as appropriate. 
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value through dewatering. Data from the Boiler/CISWI database 

established for those rules indicate that Btu/lb values exceeded 

5,000 Btu/lb for pulp and paper sludge measured on a dry weight 

basis. Thus, we believe that pulp and paper sludges meet the 

meaningful heating value legitimacy criterion when dewatered. 

Also, since pulp and paper sludges are handled promptly (i.e., 

not stored for long periods of time and are contained in storage 

units along with traditional fuels (such as wood and bark) with 

minimal loss (similar to a valuable commodity), the EPA believes 

that pulp and paper sludges are managed as a valuable commodity 

(see 76 FR 15488-89, March 21, 2011). 

Thus, based on the current record, the EPA believes that 

these pulp and paper sludges meet the legitimacy criteria and 

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)60. As noted in section II. D., facilities are 

not required to test contaminant levels to demonstrate such 

legitimacy, but rather, persons can use expert or process 

knowledge, as well as data generated from similar facilities, to 

make those determinations. 

 

60 We also note that 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.
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To the extent industry and other commenters believe that 

these pulp and paper sludges should be categorically listed in 

section 241.4(a), they will need to provide the Agency with 

appropriate information, as discussed later in this section. In 

such instances, the Agency can list a NHSM as a non-waste fuel 

by balancing the legitimacy criteria and such other relevant 

factors that the Administrator may identify. 

For example, the Agency is proposing to list categorically 

resinated wood residuals as a non-waste fuel balancing the 

legitimacy criteria with other relevant factors. These other 

additional factors include, but are not limited to, whether the 

NHSM’s use as a fuel has been integrally tied to the industrial 

production process and the extent to which the NHSM is 

consistent with that of a fuel product. Specifically, as 

discussed in section II.D.3.b, we are relying on information 

about the high Btu values, the fact that wood product plants 

have been designed to specifically utilize these residuals that 

the wood manufacturing process creates and without which they 

would not be able to operate as designed, and information about 

how the materials are managed off-site as an indication that 

these materials are not being discarded. 

For pulp and paper sludges, we would need similar 

information to support adding these materials to section 
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241.4(a). Specifically, the types of information that would be 

particularly helpful include: (1) documentation of how the use 

of pulp and paper sludges that are used as a fuel are integrated 

into the industrial production process and the steps taken 

industry-wide to ensure that this NHSM is consistently used as a 

legitimate fuel and is not discarded, including when transferred 

to a different person for use as a fuel, (2) documentation on 

the amount of pulp and paper sludges burned as a fuel (whether 

within the control of the generator or outside the control of 

the generator), and what determines which pulp and paper sludges 

are burned as a fuel, as opposed to being land applied or 

disposed, 61 (3) additional data regarding the contaminant levels 

of the various HAP, such as chlorine and metals, and what steps 

the industry has taken to ensure the quality of these sludges 

when used as a fuel are consistent with that of fuel product, 

(4) information on standard practices used to ensure that these 

sludges have a meaningful heating value, including the types of 

dewatering and other processing steps that these sludges are 

subject to, as well as information on whether any pulp and paper 

sludges that are burned as a fuel are done so without any 

processing, including dewatering, and (5) when shipped to a 

different person for use as a fuel, how these sludges are 

 

61 The Agency’s latest data indicate that between 20 and 25 percent of these 

pulp and paper sludge are burned as a fuel. 
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managed, including how they are shipped, any processing that may 

occur, and how long these sludges are typically stored prior to 

being burned as a fuel. If the information that the EPA receives 

suggests that after a balancing of the legitimacy criteria and 

any other relevant factors, such that when the facts are viewed, 

as a whole, the sludges are non-waste fuels, the EPA will 

consider adding pulp and paper sludge to the list of non-waste 

fuels in 40 CFR 241.4(a).

F. Effect of This Proposed Rule on Other Programs

1. Clean Air Act

During the 2011 NHSM final rulemaking, the EPA assessed the 

effects of that final rule on other programs. See 76 FR 15545-

15546. The reconsideration proposals for the CISWI and boiler 

rules are consistent with the proposed revisions. These proposed 

NHSM revisions resulted in only minimal changes to the 

inventories for CISWI and boilers. 

2. Subtitle C Hazardous Waste Program/Definition of Solid Waste 

Rule

The result of this rule will have no effect on the RCRA 

subtitle C hazardous waste program because it does not address 

hazardous waste. The RCRA subtitle C hazardous waste federal 

program has a long regulatory history in defining “solid waste” 

for purposes of the hazardous waste regulations. However, the 40 
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CFR 261.2 definition of solid waste explicitly applies only to 

wastes that also are hazardous for purposes of the subtitle C 

regulations (see 40 CFR 261.1(b)(1)). Section 129 of the CAA 

also specifically excludes subtitle C combustion units from 

coverage under that section. 

Section 7003 of the RCRA gives the EPA the authority to 

compel actions to abate conditions that may present an “imminent 

and substantial endangerment” involving both solid and hazardous 

wastes. The EPA uses this authority on a case-by-case basis. The 

Agency can determine in a specific factual context whether a 

NHSM causes an imminent and substantial endangerment to human 

health and the environment. Also, RCRA sections 3007 and 3008 

establish the EPA’s inspection and federal enforcement authority 

to address violations of the subtitle C hazardous waste 

regulations. Nothing in this rule shall impact the EPA’s ability 

to act pursuant to RCRA sections 3007, 3008 and 7003. The rule 

also does not limit or otherwise affect the EPA's ability to 

pursue potentially responsible persons under section 107 of 

CERCLA for releases or threatened releases of hazardous 

substances. 

G. State Authority

1. Relationship to State Programs
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This proposal does not change the relationship to state 

programs as described in the 2011 NHSM final rule. Refer to 

section IX of the 2011 NHSM final rule (76 FR 15546) for the 

discussion on state authority including: “Applicability of State 

Solid Waste Definitions and Beneficial Use Determinations” and 

“Clarifications on the Relationship to State Programs.” The 

Agency, however, would like to reiterate a few points. 

Section 129 of the CAA states that the term “solid waste” 

shall have the meaning “established by the Administrator 

pursuant to [RCRA].” Consequently, the EPA issued the final 

NHSM rule to provide a definition of “solid waste” under RCRA in 

order to determine which NHSMs would be subject to the emissions 

standards under sections 112 and 129 of the CAA. In short, if a 

NHSM is not a “solid waste” under RCRA, and is burned in a 

combustion unit, then the combustion unit that burns the 

material would be subject to the applicable CAA section 112 

requirements. On the other hand, if the NHSM is considered a 

“solid waste,” then the combustion unit that burns the material 

would be subject to the applicable CAA 129 requirements, even if 

energy or material recovery also occurs. The part 241 waste 

determination only applies to those NHSMs that are combusted and 

does not address other uses. 
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This proposed rule (like the March 2011 final rule) is not 

intended to interfere with a state’s program authority over the 

general management of waste. For a further discussion on the 

relationship to state authority, see the discussion in the 

preamble to the 2011 NHSM final rule at 76 FR 15546.

2. State Adoption of the Rulemaking 

No federal approval procedures for state adoption of 

today's proposed rule are included in this rulemaking action 

under RCRA subtitle D. Although the EPA does promulgate criteria 

for solid waste landfills and approves state MSW landfill 

permitting programs, RCRA does not provide the EPA with 

authority to approve state programs beyond MSW landfill 

permitting programs. While states are not required to adopt 

regulations promulgated under RCRA subtitle D, some states 

incorporate federal regulations by reference or have specific 

state statutory requirements that their state program can be no 

more stringent than the federal regulations. In those cases, the 

EPA anticipates that, if required by state law, the changes 

being proposed today, if finalized, will be incorporated (or 

possibly adopted by authorized state air programs) consistent 

with the state’s laws and administrative procedures.

H. Cost and Benefits of the Proposed Rule
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The RCRA aspects of this proposed 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 current CISWI action, and 

the corresponding CISWI and Boiler MACT (area source and major 

source) final rules. As such, the Agency has not prepared a 

separate cost-benefit assessment in support of this part of the 

proposal. Consequently, any potential costs or benefits, 

including impacts to small entities, indirectly associated with 

the RCRA aspects of this proposal are addressed in the 

corresponding impacts 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 OMB for review under Executive Order 

12866 and Executive Order 13563 (76 FR 3821, January 21, 2011). 
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Any changes made in response to OMB recommendations have been 

documented in the docket for this action. 

B. Paperwork Reduction Act

This proposed rule does not impose any new information 

collection burden. However, OMB has previously approved the 

information collection requirements contained in the existing 

CISWI and NHSM62 regulations (40 CFR part 60, subparts CCCC and 

DDDD, and 40 CFR part 241) under the provisions of the PRA, 44 

U.S.C. 3501, et seq., and has been assigned EPA ICR number 

2384.03 for subpart CCCC, 40 CFR part 60, EPA ICR number 2385.03 

for subpart DDDD, 40 CFR part 60, and EPA ICR number 2382.03 for 

40 CFR part 241. 

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.

C. Regulatory Flexibility Act

 

62 Identification of Non-Hazardous Secondary Materials That Are Solid Waste, Final 

Rule. March 11, 2011.
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The RFA generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice 

and comment rulemaking requirements under the APA 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 the rule on small 

entities, small entity is defined as: (1) A small business as 

defined by the SBA’s regulations at 13 CFR 121.201; (2) a small 

governmental jurisdiction that is a government of a city, 

county, town, school district or special district with a 

population of less than 50,000; or (3) a small organization that 

is any not-for-profit enterprise that is independently owned and

operated and is not dominant in its field.

After considering the economic impacts of this proposed 

rule on small entities, I certify that this action will not have 

a significant economic impact on a substantial number of small 

entities. This proposed 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 
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significant economic impact on a substantial number of small 

entities. In this proposed action, there are three fewer small 

entities in the CISWI than in the March 2011 final CISWI rule, 

as discussed in the “Economic Impact Analysis: Reconsideration 

Proposal Inputs Comparison” memorandum in the CISWI docket. We 

continue to be interested in the potential impacts of the 

proposed rule on small entities and welcome comments on issues 

related to such impacts.

D. Unfunded Mandates Reform Act

This proposed rule 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 proposes 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 final 

CISWI rule contains 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 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). 
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This action is 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 proposed 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.

In the spirit of Executive Order 13132 and consistent with 

the EPA policy to promote communications between the EPA and 

state and local governments, the EPA specifically solicited 

comment on the proposed CISWI and NHSM regulations from state 

and local officials.

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 
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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.

The EPA specifically solicits additional comment on this 

proposed action from tribal officials.

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 proposed rule 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 a “significant energy action” as defined 

in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because 

it is not likely to result in a significant adverse effect on 
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the supply, distribution, or use of energy. The EPA estimates 

that the requirements in this rule would cause most CISWI in the 

ERU and waste-burning kiln subcategories to modify existing air 

pollution control devices (e.g., increase the horsepower of 

their wet scrubbers) or install and operate new control devices, 

resulting in approximately 242,283 MW-hours per year of 

additional electricity being used. 

Given the negligible change in energy consumption expected 

to result from this rule, the EPA does not expect any 

significant price increase for any energy type. The cost of 

energy distribution should not be affected by this rule at all 

since the rule would not affect energy distribution facilities. 

We also expect that any impacts on the import of foreign energy 

supplies, or any other adverse outcomes that may occur with 

regards to energy supplies, would not be significant. We, 

therefore, conclude that if there were to be any adverse energy 

effects associated with this rule, they would be minimal. 

I. National Technology Transfer and Advancement Act

Section 12(d) of the NTTAA of 1995, Public Law No. 104-113, 

12(d) (15 U.S.C. 272 note) directs the EPA to use VCS 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 
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specifications, test methods, sampling procedures, and business 

practices) that are developed or adopted by VCS bodies. The 

NTTAA directs the EPA to provide Congress, through OMB, 

explanations when the agency decides not use available and 

applicable VCS.

This proposed rulemaking 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 

VCS for this proposal.

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 EJ. Its main provision 

directs federal agencies, to the greatest extent practicable and 

permitted by law, to make EJ part of their mission by 

identifying and addressing, as 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 proposed rule will not 

have disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 
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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 proposed 

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

Standards of Performance for New Stationary Sources and 

Emission Guidelines for Existing Sources:

Commercial and Industrial Solid Waste Incineration Units

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List of Subjects40 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.
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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.

* * * * *

(h) * * *
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(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, 

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).
Page 180 of 379

(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 [THE 

DATE OF 60 DAYS AFTER PUBLICATION OF THE FINAL RULE IN THE 

FEDERAL REGISTER].
Page 181 of 379

(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 182 of 379

(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 as that term is defined in §60.2265. 

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 as that term is defined in §60.2265. 
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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 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).
Page 184 of 379

c. Adding paragraphs (c)(8) through (c)(10).

§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 as that term is defined in 

§60.2265.

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].
Page 185 of 379

(c) You must prepare a siting analysis if you are required 

to submit an initial application for a construction permit under 

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?
Page 186 of 379

(a) You must meet the emission limitations for each CISWI 

unit, including bypass stack or vent, specified in table 1 of 

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 (g).

§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. 
Page 187 of 379

* * * * *

(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.

(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 
Page 188 of 379

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.

(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 lowest 1-hour 

average charge rate, secondary chamber temperature, and reagent 

flow rate measured during the most recent performance test 
Page 189 of 379

demonstrating compliance with the nitrogen oxides emission 

limitations. 

(g) 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, or 

an electrostatic precipitator 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, or an electrostatic precipitator 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 must 

not conduct the initial performance test until after the 

petition has been approved by the Administrator. Your petition 
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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 Exceedance of an Emission Limit 

During Malfunction.

In response to an action to enforce the standards set forth 

in paragraph §60.2105, you may assert an affirmative defense to 
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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 limit, you must timely meet the notification 

requirements in paragraph (b) of this section, and must prove by 

a preponderance of evidence that:

(1) The excess emissions: 

(i) Were caused by a sudden, infrequent, and unavoidable 

failure of air pollution control and monitoring equipment, 

process equipment, or a process to operate in a normal or usual 

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) Were not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; and

(2) Repairs were made as expeditiously as possible when the 

applicable emission limitations were being exceeded. Off-shift 
Page 192 of 379

and overtime labor were used, to the extent practicable to make 

these repairs; and

(3) The frequency, amount and duration of the excess 

emissions (including any bypass) were minimized to the maximum 

extent practicable during periods of such emissions; and

(4) If the excess emissions resulted from a bypass of 

control equipment or a process, then the bypass was unavoidable 

to prevent loss of life, personal injury, or severe property 

damage; and

(5) All possible steps were taken to minimize the impact of 

the excess emissions on ambient air quality, the environment and 

human health; and

(6) All emissions and/or parameter monitoring and systems, 

as well as 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 excess emissions 

were documented by properly signed, contemporaneous operating 

logs; and

(8) At all times, the 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 excess emissions 
Page 193 of 379

resulting from the malfunction event at issue. The analysis 

shall also specify, using best monitoring methods and 

engineering judgment, the amount of excess emissions that were 

the result of the malfunction. 

(b) Notification. The owner or operator of the facility 

experiencing an exceedance of its emission limit(s) during a 

malfunction shall notify the Administrator by telephone or 

facsimile (FAX) transmission as soon as possible, but no later 

than two business days after the initial occurrence of the 

malfunction, if it wishes to avail itself of an affirmative 

defense to civil penalties for that malfunction. The owner or 

operator seeking to assert an affirmative defense shall also 

submit a written report to the Administrator within 45 days of 

the initial occurrence of the exceedance of the standard in 

§60.2105 to demonstrate, with all necessary supporting 

documentation, that it has met the requirements set forth in 

paragraph (a) of this section. The owner or operator may seek an 

extension of this deadline for up to 30 additional days by 

submitting a written request to the Administrator before the 

expiration of the 45 day period. Until a request for an 

extension has been approved by the Administrator, the owner or 

operator is subject to the requirement to submit such report 

within 45 days of the initial occurrence of the exceedance.

16. Section 60.2125 is amended by:
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a. Revising paragraph (c). 

b. Revising paragraphs (g)(1) and (g)(2).

c. Adding paragraphs (h) and (i) to read as follows:

§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.
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(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, 

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 
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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:

§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. 
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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?

(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 
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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 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:
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(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 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 
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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. 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 
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alarms) unless a different averaging period is established under

§60.2115. 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: 
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(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) For waste-burning kilns, demonstrate continuous 

compliance with the particulate matter emissions limit using a 

particulate matter CEMS according to the procedures in 

§60.2165(n). Energy recovery units with design heat input 

capacities greater than or equal to 250 MMBtu/hr 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 
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continuous parameter monitoring system (CPMS) specified in 

§60.2145.

(i) For energy recovery units with design heat input 

capacities greater than or equal to 10 MMBtu/hour and less than 

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. You 

must determine compliance with nitrogen oxides, sulfur dioxide, 

carbon monoxide, and particulate matter using CEMS. 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. 
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(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. This 

requirement also applies to you if you petition the EPA 

Administrator for alternative monitoring parameters under 

§60.13(i).
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(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).

(v) Ongoing data quality assurance procedures in accordance 

with the general requirements of §60.13.
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(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 each 

continuous 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.
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(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 performance 
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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.
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(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, 
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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 and 

calculating a 30-day rolling average emission concentration 

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 
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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.

(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 
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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 

and calculating a 30-day rolling average emission concentration 

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 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 
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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 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 re-established during 

performance compliance tests.
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(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, 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 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, 

NOx, SO2, and dioxin/furans.
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(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 with the oxygen 

level set at the minimum percent oxygen by volume that is 

established as the operating limit for oxygen according to 

paragraph (w)(3) of this section.

(3) You must maintain the oxygen level such that it 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 design heat input 

capacities greater than or equal to 250 MMBtu/hour, you must 

install, certify, maintain, and operate a PM CPMS monitoring 

emissions discharged to the atmosphere and record the output of 

the system as specified in paragraphs (x)(1) through (5) of this 

section. For other energy recovery units, you may elect to use 

PM CPMS operated in accordance with this section in lieu of 
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using other CMS for monitoring PM compliance (e.g., bag leak 

detectors, ESP secondary power, PM scrubber pressure)

(1) Install, certify, 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, or 

beta attenuation of the exhaust gas or representative exhaust 

gas 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.

(3) Collect PM CPMS hourly average output data for all 

energy recovery unit 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 
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recovery unit operating hours data (e.g., milliamps, PM 

concentration, raw data signal).

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.

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.
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(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. 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, 

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. 
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(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).

b. Revising paragraph (c).

c. Adding paragraphs (d) through (r) 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 
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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, or an 

electrostatic precipitator to comply with the emission 

limitations under §60.2105, 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 §60.2115.

(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.

(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 
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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, 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 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, 

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, and 

monitoring the minimum scrubber liquor pH.

(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 
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performance test and monitoring the minimum pressure drop across 

the wet scrubber, if applicable.

(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/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).

(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 
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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).

(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. 

(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 
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expressed in parts per million by volume (dry basis) and used to 

calculate the 30-day rolling average concentrations. 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) and 

used to calculate the 30-day rolling average emission 
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concentrations and daily geometric average emission percent 

reductions. 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 design heat input 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.

(3) As specified in §60.13(e)(1), each continuous opacity 

monitoring system must complete a minimum of one cycle of 
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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 design capacities 

greater than 250 MMBtu/hr, 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. For wasteburning kilns, a CEMS for monitoring particulate matter 

emissions is required. 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 install, calibrate, maintain 

and operate a CEMS and must comply with the requirements 

specified in paragraphs (n)(1) through (n)(14) 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.
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(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 matter 

emissions as required under §60.2125. Compliance with the 

particulate matter emission limit must be determined by using 
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the CEMS specified in paragraph (n) of this section to measure 

particulate matter and calculating a 30-day rolling average 

emission concentration 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. 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 
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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. 

(14) When particulate matter emissions data are not 

obtained because of CEMS breakdowns, repairs, calibration 

checks, and zero and span adjustments, emissions data must be 

obtained by using other monitoring systems as approved by the 

Administrator or EPA Reference Method 19 at 40 CFR part 60, 

appendix A-7 to provide, as necessary, valid emissions data for 

a minimum of 85 percent of the hours per day, 90 percent of the 

hours per calendar quarter, and 95 percent of the hours per 

calendar year that the affected facility is operated and 

combusting waste.

(o) To demonstrate continuous compliance with the carbon 

monoxide emissions limit, you may elect to use a continuous 

automated sampling system.
Page 230 of 379

(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’ 
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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 with the oxygen 

level set at the minimum percent oxygen by volume that is 

established as the operating limit for oxygen according to 

paragraph (q)(3) of this section.

(3) You must maintain the oxygen level such that it 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 design heat input 

capacities greater than or equal to 250 MMBtu/hour, you must 

install, certify, maintain, and operate a PM CPMS monitoring 

emissions discharged to the atmosphere and record the output of 
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the system as specified in paragraphs (r)(1) through (5) 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 in lieu of using other 

CMS for monitoring PM compliance (e.g., bag leak detectors, ESP 

secondary power, PM scrubber pressure)

(1) Install, certify, 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, or 

beta attenuation of the exhaust gas or representative exhaust 

gas 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.
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(3) Collect PM CPMS hourly average output data for all 

energy recovery unit 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 operating hours data (e.g., milliamps, PM 

concentration, raw data signal).

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 required 

except 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, 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 
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are caused in part by poor maintenance or careless operation are 

not malfunctions. You are required to effect monitoring system 

repairs 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.

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).
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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 (f) 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 (f) or §60.2115 with a 

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 
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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.

(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.
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(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 air 

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 
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the legitimacy criteria. 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 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.

* * * * *

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?

* * * * *

(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 
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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.

(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.
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(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.

(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.
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(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. 

(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.
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(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:

§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:
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(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 of 

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) As of January 1, 2012, and within 60 days after the 

date of completing each performance test, as defined in §63.2, 
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conducted to demonstrate compliance with this subpart, you must 

submit relative accuracy test audit (i.e., reference method) 

data and performance test (i.e., compliance test) data, except 

opacity data, electronically to EPA’s Central Data Exchange 

(CDX) by using the Electronic Reporting Tool (ERT) (see 

http://www.epa.gov/ttn/chief/ert/ert tool.html/) or other 

compatible electronic spreadsheet. Only data collected using 

test methods compatible with ERT are subject to this requirement 

to be submitted electronically into EPA’s WebFIRE database.

* * * * *

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.
Page 245 of 379

(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:

§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 “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”, 
Page 246 of 379

“Cyclonic burn barrel”, “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”, “Homogeneous wastes” “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”, “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”, “dioxin/furans”, 

“Modification or modified CISWI unit”, and “Wet scrubber”.

c. Removing paragraph (3) of the definition for 

“Deviation.”

d. Removing the definition for “Agricultural waste”, 

“Commercial or industrial waste”, and “Solid waste”.

§60.2265 What definitions must I know?

* * * * *

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 
Page 247 of 379

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.

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 carbon monoxide 

CEMS data collected during the first 4 hours of operation of 

energy recovery unit startup from a cold start and the hour of 

operation following the cessation of waste material being fed to 

the energy recovery unit during a unit shutdown.

Chemical recovery unit means combustion units burning 

materials to recover chemical constituents or to produce 

chemical compounds where there is an existing commercial market 
Page 248 of 379

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 which 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 249 of 379

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 250 of 379

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 is 
Page 251 of 379

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.

* * * * *

Energy recovery unit means a combustion unit combusting 

solid waste (as that term is defined by the Administrator under 

the Resource Conservation and Recovery Act in 40 CFR part 241) 

for energy recovery. Energy recovery units include units that 

would be 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.

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 
Page 252 of 379

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.

* * * * *

Homogeneous wastes are stable, consistent in formulation, 

have known fuel properties, have a defined origin, have 

predictable chemical and physical attributes, and result in 

consistent combustion characteristics and have a consistent 

emissions profile. 

Incinerator means any furnace used in the process of 

combusting solid waste (as that term is defined by the 

Administrator under 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. 

Kiln means an oven or furnace, including any associated 

preheater or precalciner devices, used for processing a 
Page 253 of 379

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 June 1, 2001, and that meets one of 

two criteria:

(1) The cumulative cost of the changes over the life of the 

unit exceeds 50 percent of the original cost of building and 

installing the CISWI unit (not including the cost of land) 

updated to current costs (current dollars). To determine what 

systems are within the boundary of the CISWI unit used to 

calculate these costs, see the definition of CISWI unit.
Page 254 of 379

(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 flue gas or firebox. This definition 

includes oxygen trim systems. The source owner or operator is 

responsible to install, calibrate, maintain, and operate the 

oxygen analyzer 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/or 

carbon monoxide monitor that automatically provides a feedback 

signal to the combustion air controller.

* * * * *
Page 255 of 379

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 and tube mill, vertical roller mill 

or other size reduction equipment, that is not part of an inline kiln/raw mill, used to grind feed to the appropriate size. 

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 
Page 256 of 379

dryer. The raw mill also includes the air separator associated 

with the raw mill.

* * * * *

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. 

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 
Page 257 of 379

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 such 

incinerators only burn wood wastes, yard wastes, and clean 

lumber and that such air curtain incinerators comply with 

opacity limitations to be established by the 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 in 40 CFR part 241). A waste-burning kiln does 
Page 258 of 379

not include a kiln that is feeding non-hazardous secondary 

ingredients exclusively into the cold end of the kiln. 

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 Which 

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

limitationa

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 part 

60, 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 part 

60, appendix A4). 

Dioxin/Furan 

(toxic 

equivalency 

basis)

0.41 

nanograms 

per dry 

standard 

cubic meter

3-run average 

(collect a minimum 

volume of 2 dry 

standard cubic meters 

per run)

Performance 

test (Method 23 

of appendix A-7 

of this part).

Hydrogen 

Chloride

62 parts per 

million by 

3-run average (For 

Method 26, collect a 

Performance 

test (Method 26 
Page 259 of 379

For the air 

pollutant

You must 

meet this 

emission

limitationa

Using this averaging 

time

And determining 

compliance 

using this 

method

dry volume minimum volume of 120 

liters per run. For 

Method 26A, collect a 

minimum volume of 1 

dry standard cubic 

meter per run)

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 part 

60, 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 

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)b.

Opacity 10 percent Three 1-hour blocks 

consisting of ten 6-

minute averages 

opacity values

Performance 

test (Method 9 

at 40 CFR part 

60, 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 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic meter 

Performance 

test (Method 5 

or 29 at 40 CFR 

part 60, 
Page 260 of 379

For the air 

pollutant

You must 

meet this 

emission

limitationa

Using this averaging 

time

And determining 

compliance 

using this 

method

cubic meter per run) 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. 

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 

Requirementsa

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 

§§60.2205 

and 

60.2210
Page 261 of 379

Report Due date Contents Reference

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 periods 

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 

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 

§60.2215 

and 

60.2220
Page 262 of 379

Report Due date Contents Reference

for monitor downtime 

incidents

* * * * *

a This table is only a summary, see the referenced sections 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

limitationa

Using this 

averaging time

And determining 

compliance using 

this method

Cadmium 0.0023 

milligrams per 

dry standard 

cubic meter

3-run average 

(collect a minimum 

volume of 4 dry 

standard cubic 

meter per run)

Performance test 

(Method 29 at 40 

CFR part 60, 

appendix A-8 of 

this part).

Use ICPMS for 

the analytical 

finish.

Carbon 

Monoxide

12 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 

meterc

3-run average 

(collect a minimum 

volume of 4 dry 

standard cubic 

meter per run)

Performance test 

(Method 23 at 40 

CFR part 

60,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 part 

60,appendix A7).

Hydrogen 

Chloride

0.091 part per 

million by dry 

3-run average (For 

Method 26, collect 

Performance test 

(Method 26 or 
Page 263 of 379

For the air 

pollutant

You must meet 

this emission

limitationa

Using this 

averaging time

And determining 

compliance using 

this method

volume a minimum volume of 

360 liters per run. 

For Method 26A, 

collect a minimum 

volume of 3 dry 

standard cubic 

meter per run)

26A at 40 CFR

part 60, 

appendix A-8). 

Lead 0.0019 

milligrams per 

dry standard 

cubic meter

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 meterc

3-run average 

(collect enough 

volume to meet a 

detection limit 

data quality 

objective of 0.03 

ug/dry standard 

cubic meter)

Performance test 

(Method 29 or 

30B at 40 CFR 

part 60, 

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 part 

60, 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 part 

60, appendix A4. 
Page 264 of 379

For the air 

pollutant

You must meet 

this emission

limitationa

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 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 that 

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

limitationa Using this 

averaging 

time

And determining 

compliance using 

Liquid/Gas Solids this method

Cadmium 0.023 

milligrams 

per dry 

standard 

cubic meter

Biomass -

0.00014 

milligrams 

per dry 

standard 

cubic meter

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 
Page 265 of 379

For the air 

pollutant

You must meet this 

emission

limitationa

Using this 

averaging 

time

And determining 

compliance using 

this method

Coal –

0.058 

milligrams 

per dry 

standard 

cubic meter

per run) finish.

Carbon 

monoxide

36 parts 

per million 

dry volume

Biomass –

160 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). 

Coal – 46 

parts per 

million dry 

volume

Dioxins/furans 

(Total Mass 

Basis)

No Total 

Mass Basis 

limit, must 

meet the 

toxic 

equivalency 

basis limit 

below

Biomass -

0.52 

nanograms 

per dry 

standard 

cubic meterc

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).

Coal – 0.51 

nanograms 

per dry 

standard 

cubic meterc

Dioxins/furans 

(toxic 

equivalency 

basis)

0.093 

nanograms 

per dry 

standard 

cubic meterc

Biomass -

0.076 

nanograms 

per dry 

standard 

cubic meterc

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 meterc

Hydrogen 

chloride

14 parts 

per million 

0.50 parts 

per million 

3-run average 

(For Method 

Performance test 

(Method 26 or 
Page 266 of 379

For the air 

pollutant

You must meet this 

emission

limitationa

Using this 

averaging 

time

And determining 

compliance using 

this method

dry volume dry volume 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)

26A at 40 CFR 

part 60, 

appendix A-8).

Lead 0.096 

milligrams 

per dry 

standard 

cubic meter

Biomass -

0.0019 

milligrams 

per dry 

standard 

cubic meter

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.

Coal -

0.0031 

milligrams 

per dry 

standard 

cubic meter

Mercury 0.00091 

milligrams 

per dry 

standard 

cubic meterc

0.0020 

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.

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 per 
Page 267 of 379

For the air 

pollutant

You must meet this 

emission

limitationa

Using this 

averaging 

time

And determining 

compliance using 

this method

million dry 

volume

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 

a design 

capacity less 

than 250 

MMBtu/hr; or PM 

CEMS 

(performance 

specification 11 

of appendix B 

and procedure 2 

of appendix F of 

this part) if 

the unit has a 

design capacity 

equal to or 

greater than 250 

MMBtu/hr. Use 

Method 5 or 5I 

of Appendix A of 

this part and 

collect a 

minimum sample 

volume of 1 dscm 

per test run for 

the PM CEMS 

correlation 

testing.

Coal - 86 

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 

Performance test 

(Method 6 or 6C 

at 40 CFR part 

60, appendix A4. 

Coal – 650 

parts per 
Page 268 of 379

For the air 

pollutant

You must meet this 

emission

limitationa

Using this 

averaging 

time

And determining 

compliance using 

this method

million dry 

volume

hour minimum 

sample time 

per run)

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 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 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

limitationa

Using this 

averaging 

time

And determining 

compliance using 

this method

Cadmium 0.00082 

milligrams per 

dry standard 

cubic meter

3-run average 

(collect a 

minimum 

volume of 4 

Performance test 

(Method 29 at 40 CFR

part 60, appendix A8). Use ICPMS for 
Page 269 of 379

For the air 

pollutant

You must meet 

this emission

limitationa

Using this 

averaging 

time

And determining 

compliance using 

this method

dry standard 

cubic meters 

per run)

the analytical 

finish.

Carbon monoxide 90 (long kilns) 

/ 320 

(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 A4).

Dioxins/furans 

(total mass 

basis)

0.51 nanograms 

per dry 

standard cubic 

meterb

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 A7).

Dioxins/furans 

(toxic 

equivalency 

basis)

0.075 nanograms 

per dry 

standard cubic 

meterb

3-run average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic meters)

Performance test 

(Method 23 at 40 CFR 

part 60, appendix A7).

Hydrogen 

chloride

3.0 parts per 

million dry 

volumeb

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 is not 

used.

Lead 0.0043 

milligrams per 

dry standard 

cubic meter

3-run average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic meters)

Performance test 

(Method 29 at 40 CFR 

part 60, appendix A8). Use ICPMS for 

the analytical 

finish.
Page 270 of 379

For the air 

pollutant

You must meet 

this emission

limitationa

Using this 

averaging 

time

And determining 

compliance using 

this method

Mercury 0.0037 

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

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). Use a span 

value of 400 ppm.

Particulate 

matter

(filterable)

8.9 milligrams 

per dry 

standard cubic 

meter

30-day 

rolling 

average

PM Continuous 

Emissions Monitoring 

System (performance 

specification 11 of 

appendix B and 

procedure 2 of 

appendix F of this 

part)

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). Use a span 

value of 260 ppm.

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 
Page 271 of 379

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 that 

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

limitationa

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 

part 60, appendix A8). 

Carbon monoxide 12 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). 

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 part 

60, 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 part 

60, appendix A7).

Hydrogen 

chloride

200 parts per 

million by 

dry volume

3-run average (For 

Method 26, collect a 

minimum volume of 60 

liters per run. For 

Performance 

test (Method 26 

or 26A at 40 

CFR part 60, 
Page 272 of 379

For the air 

pollutant

You must meet 

this emission

limitationa

Using this averaging 

time

And determining 

compliance 

using this 

method

Method 26A, collect 

a minimum volume of 

1 dry standard cubic 

meter per run)

appendix A-8).

Lead 0.26 

milligrams 

per dry 

standard 

cubic meter

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic)

Performance 

test (Method 29 

at 40 CFR part 

60,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, 
Page 273 of 379

For the air 

pollutant

You must meet 

this emission

limitationa

Using this averaging 

time

And determining 

compliance 

using this 

method

appendix A-4. 

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 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.
Page 274 of 379

44. Section 60.2505 is revised to read as follows:

§60.2505 Am I affected by this subpart?

(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 
Page 275 of 379

tables 7 through 9 of this subpart by [INSERT THE DATE 1 YEAR 

AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] for 

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 
Page 276 of 379

will be automatically withdrawn when your state plan is 

approved.

46. Section 60.2535 is amended by:

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 
Page 277 of 379

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].

(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 (b)(1) and 

(b)(2) of this section.

(1) March 21, 2016.

(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?

* * * * *
Page 278 of 379

(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 the 

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, 
Page 279 of 379

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, 

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.
Page 280 of 379

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?

* * * * *

(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:
Page 281 of 379

§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.

* * * * *

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 
Page 282 of 379

part (Standards of Performance for Large Municipal Waste 

Combustors); subpart Cb of this part (Emission Guidelines and 

Compliance Time for Large Municipal Combustors); 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 as that term is defined in §60.2875. 

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 as that term is defined §60.2875. 

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.
Page 283 of 379

(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). 

§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) * * *
Page 284 of 379

(1) * * *

(vii) Actions to prevent and correct malfunctions or to 

prevent conditions that may lead to malfunctions.

* * * * *

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.
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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).

c. Adding paragraphs (d), (e), (f), and (g) 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 
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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 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 
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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 lowest 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 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 
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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, or 

an electrostatic precipitator 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, or an electrostatic precipitator 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 not conduct the 

initial performance test until after the petition has been 

approved by the Administrator. Your petition must include the 

five items listed in paragraphs (a)(1) through (5) of this 

section.

(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 
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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 Exceedance of an Emission Limit 

During Malfunction

In response to an action to enforce the standards set forth 

in paragraph §60.2670 you may assert an affirmative defense to a 

claim for civil penalties for exceedances of such standards that 

are caused by malfunction, as defined at §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.
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(a) To establish the affirmative defense in any action to 

enforce such a limit, you must timely meet the notification 

requirements in paragraph (b) of this section, and must prove by 

a preponderance of evidence that:

(1) The excess emissions: 

(i) Were caused by a sudden, infrequent, and unavoidable 

failure of air pollution control and monitoring equipment, 

process equipment, or a process to operate in a normal or usual 

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) Were not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; and

(2) Repairs were made as expeditiously as possible when the 

applicable emission limitations were being exceeded. Off-shift 

and overtime labor were used, to the extent practicable to make 

these repairs; and

(3) The frequency, amount and duration of the excess 

emissions (including any bypass) were minimized to the maximum 

extent practicable during periods of such emissions; and
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(4) If the excess emissions resulted from a bypass of 

control equipment or a process, then the bypass was unavoidable 

to prevent loss of life, personal injury, or severe property 

damage; and

(5) All possible steps were taken to minimize the impact of 

the excess emissions on ambient air quality, the environment and 

human health; and

(6) All emissions and/or parameter monitoring and systems, 

as well as 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 excess emissions 

were documented by properly signed, contemporaneous operating 

logs; and

(8) At all times, the 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 excess emissions 

resulting from the malfunction event at issue. The analysis 

shall also specify, using best monitoring methods and 

engineering judgment, the amount of excess emissions that were 

the result of the malfunction.
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(b) Notification. The owner or operator of the facility 

experiencing an exceedance of its emission limit(s) during a 

malfunction shall notify the Administrator by telephone or 

facsimile (FAX) transmission as soon as possible, but no later 

than two business days after the initial occurrence of the 

malfunction, if it wishes to avail itself of an affirmative 

defense to civil penalties for that malfunction. The owner or 

operator seeking to assert an affirmative defense shall also 

submit a written report to the Administrator within 45 days of 

the initial occurrence of the exceedance of the standard in 

§60.2670 to demonstrate, with all necessary supporting 

documentation, that it has met the requirements set forth in 

paragraph (a) of this section. The owner or operator may seek an 

extension of this deadline for up to 30 additional days by 

submitting a written request to the Administrator before the 

expiration of the 45 day period. Until a request for an 

extension has been approved by the Administrator, the owner or 

operator is subject to the requirement to submit such report 

within 45 days of the initial occurrence of the exceedances.

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?
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* * * * *

(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:
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§60.2695 How are the performance test data used?

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?
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(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.

(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 
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rate at which it will operate, but no later than 180 days after 

the final compliance date for meeting the amended emission 

limitations.

(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 
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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 §60.2710(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;
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(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-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 
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performance test deadline for PM CEMS. 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 CEMSs 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. Operating limits 

are confirmed or reestablished during performance tests.
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(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:

(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 
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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) For waste-burning kilns, demonstrate continuous 

compliance with the particulate matter emissions limit using a 

particulate matter continuous emissions monitoring system 

according to the procedures in §60.2730(n). Energy recovery 

units with design heat input capacities greater than 250 

MMBtu/hr 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 design capacities 

greater than or equal to 10 MMBTU/hour but less than 250 

MMBtu/hr you must install, operate, certify and maintain a 

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 
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waste-burning kiln is not equipped with a wet scrubber, you must 

determine compliance with the hydrogen chloride emission limit 

using a CEMS as specified in §60.2730. You must determine 

compliance with the mercury emissions limit using a mercury CEMS 

according to the following requirements:

(1) Operate a CEMS in 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. 

(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 
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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. 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 
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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).

(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 each 

continuous 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.
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(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. 

(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).
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(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 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 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.
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(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 performance 

requirements in your monitoring plan. Alternatively, install and 

verify the operation of a new pressure sensor.

(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.

(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.
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(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 absolute 

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 
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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 and 

calculating a 30-day rolling average emission concentration 

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 
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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.

(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 
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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 

and calculating a 30-day rolling average emission concentration 

using Equation 19-19 in section 12.4.1 of EPA 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.
Page 312 of 379

(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. 

(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 
Page 313 of 379

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 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, 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 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, NOx, 

SO2, and dioxin/furans.
Page 314 of 379

(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. 

(2) You must operate the oxygen trim system with the oxygen 

level set at the minimum percent oxygen by volume that is 

established as the operating limit for oxygen according to 

paragraph (w)(3) of this section.

(3) You must maintain the oxygen level such that it 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 design heat input 

capacities greater than or equal to 250 MMBtu/hour, you must 

install, certify, maintain, and operate a PM CPMS monitoring 

emissions discharged to the atmosphere and record the output of 

the system as specified in paragraphs (x)(1) through (5) of this 

section. For other energy recovery units, you may elect to use 

PM CPMS operated in accordance with this section in lieu of 
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using other CMS for monitoring PM compliance (e.g., bag leak 

detectors, ESP secondary power, PM scrubber pressure)

(1) Install, certify, 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.

(i) The operating principle of the PM CPMS must be based on 

in-stack or extractive light scatter, light scintillation, or 

beta attenuation of the exhaust gas or representative exhaust 

gas 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.

(3) Collect PM CPMS hourly average output data for all 

energy recovery unit 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 
Page 316 of 379

recovery unit operating hours data (e.g., milliamps, PM 

concentration, raw data signal).

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:

§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.
Page 317 of 379

(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 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. 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. 
Page 318 of 379

(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.

69. Section 60.2730 is amended by revising paragraphs 

(b)(6) and (c) and adding paragraphs (d) through (r) 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.
Page 319 of 379

* * * * *

(c) If you are using something other than a wet scrubber, 

activated carbon, selective non-catalytic reduction, or an 

electrostatic precipitator 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.

(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.
Page 320 of 379

(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, 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 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, 

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 and monitoring the minimum scrubber 

liquor pH.

(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 
Page 321 of 379

test and monitoring the minimum pressure drop across the wet 

scrubber, if applicable.

(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 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/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).

(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 
Page 322 of 379

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 (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 the requirements specified 

in §60.58b(p) and (q).

(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. 

(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 completed 

under §60.2690, compliance with the emission limit for nitrogen 
Page 323 of 379

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 (dry basis) and used to 

calculate the 30-day rolling average concentrations. 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.

(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 
Page 324 of 379

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. 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 perform 

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.
Page 325 of 379

(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 design capacities 

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 must 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 install, calibrate, maintain and operate a 

CEMS and must comply with the requirements specified in 

paragraphs (n)(1) through (n)(14) 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.
Page 326 of 379

(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 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 §60.2710(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 must be determined by using 

the CEMS specified in paragraph (n) of this section to measure 

particulate matter and calculating a 30-day rolling average 
Page 327 of 379

emission concentration 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 dry 

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. 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 
Page 328 of 379

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. 

(13) Quarterly accuracy determinations and daily 

calibration drift tests must be performed in accordance with 

procedure 2 in appendix F of this part. 

(14) When particulate matter emissions data are missing 

because of CEMS breakdowns, repairs, calibration checks and zero 

and span adjustments, you must collect emissions data by using 

other monitoring systems as approved by the Administrator or EPA 

Reference Method 19 at 40 CFR part 60, appendix A-7 to provide, 

as necessary, valid emissions data for a minimum of 85 percent 

of the hours per day, 90 percent of the hours per calendar 

quarter, and 95 percent of the hours per calendar year that the 

affected facility is operated and combusting waste.

(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 
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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 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). 
Page 330 of 379

(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 with the oxygen 

level set at the minimum percent oxygen by volume that is 

established as the operating limit for oxygen according to 

paragraph (q)(3) of this section.

(3) You must maintain the oxygen level such that it 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 design heat input 

capacities greater than or equal to 250 MMBtu/hour, you must 
Page 331 of 379

install, certify, maintain, and operate a PM CPMS monitoring 

emissions discharged to the atmosphere and record the output of 

the system as specified in paragraphs (r)(1) through (5) of this 

section. For other energy recovery units, you may elect to use 

PM CPMS operated in accordance with this section in lieu of 

using other CMS for monitoring PM compliance (e.g., bag leak 

detectors, ESP secondary power, PM scrubber pressure)

(1) Install, certify, 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, or 

beta attenuation of the exhaust gas or representative exhaust 

gas 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 332 of 379

(2) Collect PM CPMS hourly average output data for all 

energy recovery unit operating hours. Express the PM CPMS output 

as millamps, PM concentration, or other raw data signal value.

(3) Calculate the arithmetic 30-day rolling average of all 

of the hourly average PM CPMS output collected during all energy 

recovery unit operating hours data (e.g., milliamps, PM 

concentration, raw data signal).

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:

(a) You must operate the monitoring system and collect data 

at all required intervals at all times compliance is required 

except 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 
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are caused in part by poor maintenance or careless operation are 

not malfunctions. You are required to effect monitoring system 

repairs 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. 

(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).
Page 334 of 379

§60.2740 What records must I keep?

You must maintain the items (as applicable) as specified in 

paragraphs (a), (b), and (e) through (v) 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 (f) or §60.2680, 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 3 of 

this subpart or a deviation from other operating limits 

established under §60.2675(d) through (f) 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 
Page 335 of 379

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.

(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. 
Page 336 of 379

(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.

(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. If you combust a fuel that has been 

processed from a discarded non-hazardous secondary material 
Page 337 of 379

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. 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.

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.
Page 338 of 379

(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.

(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.
Page 339 of 379

(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.

(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.
Page 340 of 379

(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 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.
Page 341 of 379

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:

(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;
Page 342 of 379

(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 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) After December 31, 2011, within 60 days after the date 

of completing each performance evaluation or performance test, 

as they are defined in §63.2, conducted to demonstrate 

compliance with this subpart, the owner or operator of the 

affected facility must submit the relative accuracy test audit 

data and performance test data, except opacity data, to EPA by 

successfully submitting the data electronically to EPA’s Central 

Data Exchange (CDX) by using the Electronic Reporting Tool (ERT) 

(see http://www.epa.gov/ttn/chief/ert/ert_tool.html). 
Page 343 of 379

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. 

* * * * * 

78. Section 60.2870 is amended by revising paragraph 

(c)(2) to read as follows:
Page 344 of 379

§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 “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,” 

“Cyclonic burn barrel”, “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,” “Homogeneous wastes,” 

“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,” 

“Small remote incinerator,” “Soil treatment unit,” “Solid waste 
Page 345 of 379

incineration unit,” “Space heater” and “Waste-burning kiln,” in 

alphabetical order.

b. Revising the definition for “Commercial and industrial 

solid waste incineration (CISWI) unit,” “Modification,” and “Wet 

scrubber.” 

c. Removing paragraph (3) of the definition for 

“Deviation.”

d. Removing the definition for “Agricultural waste,” 

“Commercial or industrial waste,” and “Solid waste.”

§60.2875 What definitions must I know?

* * *

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.

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 
Page 346 of 379

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 carbon monoxide 

CEMS data collected during the first 4 hours of operation of 

energy recovery unit startup from a cold start and the hour of 

operation following the cessation of waste material being fed to 

the energy recovery unit during a unit shutdown.

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.
Page 347 of 379

(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.

* * * * *

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 
Page 348 of 379

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.

* * * * *

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 
Page 349 of 379

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 is 

included in the operating permit for any affected source 

required to obtain such a permit.

* * * * *

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 
Page 350 of 379

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 material 

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 

(Solid) 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.

* * * * *

Homogeneous wastes are stable, consistent in formulation, 

have known fuel properties, have a defined origin, have 

predictable chemical and physical attributes, and result in 
Page 351 of 379

consistent combustion characteristics and have a consistent 

emissions profile. 

Incinerator means any furnace used in the process of 

combusting solid waste (as the 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. 

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.
Page 352 of 379

Modification or modified CISWI unit means a CISWI unit that 

has been changed later than June 1, 2001, and that meets one of 

two criteria:

(1) The cumulative cost of the changes over the life of the 

unit exceeds 50 percent of the original cost of building and 

installing the CISWI unit (not including the cost of land) 

updated to current costs (current dollars). To determine what 

systems are within the boundary of the CISWI unit used to 

calculate these costs, 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 Clean Air Act section 129 or section

111 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 flue gas or firebox. This definition 

includes oxygen trim systems. The source owner or operator is 

responsible to install, calibrate, maintain, and operate the 
Page 353 of 379

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/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).
Page 354 of 379

* * * * *

Raw mill means a ball and tube mill, vertical roller mill 

or other size reduction equipment, that is not part of an inline kiln/raw mill, used to grind feed to the appropriate size. 

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.

* * * * *

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.

Solid waste incineration unit means a distinct operating 

unit of any facility which combusts any solid (as that term is 

defined by the Administrator in 40 CFR part 241) waste material 
Page 355 of 379

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 refusederived 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 such incinerators only 

burn wood wastes, yard wastes and clean lumber and that such air 

curtain incinerators comply with opacity limitations to be 

established by the Administrator by rule.

Space heater means a usually portable appliance for heating 

a relatively small area. A space heater is not an incinerator, 
Page 356 of 379

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 in 40 CFR part 241). A waste-burning kiln does 

not include a kiln that is feeding non-hazardous secondary 

ingredients exclusively into the cold end of the kiln. 

* * * * * 

80. Table 1 to Subpart DDDD of Part 60 is revised to read 

as follows: 

Table 1 to Subpart DDDD of Part 60—Model Rule—Increments of 

Progress and Compliance Schedules

Comply with these increments of 

progress By these datesa

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.
Page 357 of 379

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 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 Before [Date to be specified in state 

plan]b

For the 

air 

pollutant

You must meet 

this emission 

limitationa

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)
Page 358 of 379

For the 

air 

pollutant

You must meet 

this emission 

limitationa

Using this averaging 

time

And determining 

compliance using 

this method

* * * * * * *

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 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.

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 

Requirementsa 

Report Due date Contents Reference

* * * * * * *

Annual 

report

No later than 12 

months following the 

submission of the 

• Name and address

• Statement and signature 

by responsible official

§§60.2765 

and 

60.2770
Page 359 of 379

Report Due date Contents Reference

initial test report. 

Subsequent reports 

are to be submitted 

no more than 12 

months following the 

previous report

• 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 

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 By August 1 of that • Dates and times of §60.2775 
Page 360 of 379

Report Due date Contents Reference

limitation 

or operating 

limit 

deviation 

report

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

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

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:

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

limitationb

Using this averaging 

time

And determining 

compliance using 

this method

Cadmium 0.0026 

milligrams 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 36 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).
Page 361 of 379

For the air 

pollutant

You must meet 

this emission

limitationb

Using this averaging 

time

And determining 

compliance using 

this method

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 0.0036 

milligrams 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.

Mercury 0.0054 

milligrams per 

dry standard 

cubic meter

3-run average (For 

Method 29 an ASTM 

D6784-02 (Reapproved 

2008)b, 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

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 part 

60, 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-3 

or 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 part 

60, appendix A4. 
Page 362 of 379

For the air 

pollutant

You must meet 

this emission

limitationb

Using this averaging 

time

And determining 

compliance using 

this method

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 part 

60, 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 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

limitationb Using this 

averaging 

time

And 

determining 

compliance 

using this 

Liquid/Gas Solids method

Cadmium 0.023 

milligrams 

per dry 

standard 

cubic meter

Biomass -

0.00078 

milligrams 

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. Coal -

0.058 

milligrams 

per dry 

standard 

cubic meter
Page 363 of 379

For the air 

pollutant

You must meet this 

emission

limitationb Using this 

averaging 

time

And 

determining 

compliance 

using this 

Liquid/Gas Solids method

Carbon 

monoxide

36 parts 

per million 

dry volume

Biomass –

490 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). 

Coal – 46 

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 

cubic meterc

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).

Coal -0.51 

nanograms 

per dry 

standard 

cubic meterc

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 A-7).

Coal -

0.075 

nanograms 

per dry 

standard 

cubic meterc

Hydrogen 

chloride

14 parts 

per million 

dry volume

0.50 parts 

per million 

dry volume

3-run 

average (for 

Method 26, 

collect a 

minimum of 

120 liters; 

for Method 

Performance 

test (Method 

26 or 26A at 

40 CFR part 

60, appendix 

A-8).
Page 364 of 379

For the air 

pollutant

You must meet this 

emission

limitationb Using this 

averaging 

time

And 

determining 

compliance 

using this 

Liquid/Gas Solids method

26A, collect 

a minimum 

volume of 1 

dry standard 

cubic meter) 

Lead 0.096 

milligrams 

per dry 

standard 

cubic meter

Biomass -

0.0019 

milligrams 

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. Coal -

0.0031 

milligrams 

per dry 

standard 

cubic meter

Mercury 0.031 

milligrams 

per dry 

standard 

cubic meter

0.0020 

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 

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.
Page 365 of 379

For the air 

pollutant

You must meet this 

emission

limitationb Using this 

averaging 

time

And 

determining 

compliance 

using this 

Liquid/Gas Solids method

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 

volume

Particulate 

matter

filterable

110 

milligrams 

per dry 

standard 

cubic meter

Biomass -

11 

milligrams 

per dry 

standard 

cubic meter 

or 30-day 

rolling 

average if 

PM CEMS is 

required or 

being used

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 A8) if the unit 

has a design 

capacity less 

than or equal 

to 250 

MMBtu/hr; or 

PM CEMS 

(performance 

specification 

11 of appendix 

B and
Page 366 of 379

For the air 

pollutant

You must meet this 

emission

limitationb Using this 

averaging 

time

And 

determining 

compliance 

using this 

Liquid/Gas Solids method

Coal - 86 

milligrams 

per dry 

standard 

cubic meter 

or 30-day 

rolling 

average if 

PM CEMS is 

required or 

being used

procedure 2 of 

appendix F of 

this part) if 

the unit has a 

design 

capacity 

greater than 

250 MMBtu/hr. 

Use Method 5 

or 5I of 

Appendix A of 

this part and 

collect a 

minimum sample 

volume of 1 

dscm for the 

PM CEMS 

correlation 

testing.

Sulfur dioxide 720 parts 

per million 

dry volume

Biomass –

7.3 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. 

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]
Page 367 of 379

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:

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

limitationb

Using this 

averaging 

time

And determining 

compliance using this 

method

Cadmium 0.00082 

milligrams 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 A8).

Carbon monoxide 120 (long 

kilns) / 410 

(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 A4). 

Dioxins/furans 

(total mass 

basis)

3.6 nanograms 

per dry 

standard cubic 

meter

3-run average 

(collect a 

minimum 

volume of 1 

dry standard 

cubic meters)

Performance test 

(Method 23 at 40 CFR 

part 60, appendix A7).

Dioxins/furans 0.075 3-run average Performance test 
Page 368 of 379

For the air 

pollutant

You must meet 

this emission

limitationb

Using this 

averaging 

time

And determining 

compliance using this 

method

(toxic 

equivalency 

basis)

nanograms per 

dry standard 

cubic meterc

(collect a 

minimum 

volume of 1 

dry standard 

cubic meter)

(Method 23 at 40 CFR 

part 60, appendix A7).

Hydrogen 

chloride

3.0 parts per 

million dry 

volumec

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 0.0043 

milligrams 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 A8).

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). Use a span gas 

with a concentration 

of 1000 ppm or less.

Particulate 

matter 

filterable

9.2 milligrams 

per dry

standard cubic 

meter

30-day 

rolling 

average

PM CEMS (performance 

specification 11 of 

appendix B and 

procedure 2 of 
Page 369 of 379

For the air 

pollutant

You must meet 

this emission

limitationb

Using this 

averaging 

time

And determining 

compliance using this 

method

appendix F of this 

part; Use Method 5 or 

5I of Appendix A of 

this part and collect 

a minimum sample 

volume of 2 dscm for 

the PM CEMS 

correlation 

testing.).

Sulfur dioxide 830 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.

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:
Page 370 of 379

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

limitationb

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 part 

60, appendix A8).

Carbon monoxide 20 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). 

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 part 

60, 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 part 

60, 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. 

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 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 part 

60, appendix A8).

Mercury 0.0057 3-run average (For Performance 
Page 371 of 379

For the air 

pollutant

You must meet 

this emission

limitationb

Using this averaging 

time

And determining 

compliance 

using this 

method

milligrams 

per dry 

standard 

cubic meter

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 sample as 

specified in Method 

30B at 40 CFR part 

60, appendix A)

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). 

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].
Page 372 of 379

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.”

§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); 
Page 373 of 379

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.

* * * * *

Contaminants means all pollutants listed in Clean Air Act 

sections 112(b) and 129(a)(4), with modifications outlined in 

this definition to reflect constituents found in non-hazardous 

secondary materials prior to combustion. The definition includes 

the following elemental contaminants that commonly form Clean 

Air Act section 112(b) and 129(a)(4) pollutants: antimony, 

arsenic, beryllium, cadmium, chlorine, chromium, cobalt, 

fluorine, lead, manganese, mercury, nickel, nitrogen, selenium, 
Page 374 of 379

and sulfur. The definition does not include the following Clean 

Air Act section 112(b) and 129(a)(4) pollutants that are either 

unlikely to be found in non-hazardous secondary materials prior 

to combustion or are adequately measured by other parts of this 

definition: hydrogen chloride (HCl), chlorine gas (Cl2), hydrogen 

fluoride (HF), nitrogen oxides (NOx), sulfur dioxide (SO2), fine 

mineral fibers, particulate matter, coke oven emissions, 

diazomethane, white phosphorus, titanium tetrachloride, mcresol, o-cresol, p-cresol, m-xylene, o-xylene, and p-xylene.

* * * * *

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 

from the point of removal from the vehicle or the point at which 

they are generated at a tire manufacturer (including retailers 

or other parties involved in the distribution and sale of new 

tires) through arrival at the combustion facility. 

* * * * *

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),

b. Revise paragraphs (b)(2)(i) and (b)(2)(ii),
Page 375 of 379

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 Regional 

Administrator 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) * * *

(2) * * *

(i) [Reserved]

(ii) [Reserved] 

* * * * *

(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 
Page 376 of 379

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 traditional fuel. In comparing 

contaminants between traditional fuel(s) and a non-hazardous 

secondary material, persons can use ranges of traditional fuel 

contaminant levels compiled from national surveys, as well as 

contaminant level data from the specific traditional fuel being 

replaced. 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.

* * * * *

91. Add §241.4 to read as follows:

§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.

(b) Any person may submit a rulemaking petition to the 

Administrator to identify additional non-hazardous secondary 
Page 377 of 379

materials to be listed in paragraph (a) of this section. 

Contents and procedures for submittal of the petitions include 

the following: 

(1) Each petition must be submitted to the Administrator by 

certified mail and must include:

(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.
Page 378 of 379

(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 any 

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.
Page 379 of 379