` 

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

Reconsideration and Final Amendments; Non

- Hazardous Secondary Materials That Are Solid Waste:

Final Rule Volume 1: CISWI` December 2012



## Summary of Public Comments and Responses for Commercial and Industrial Solid Waste Incineration Units:
Reconsideration and Final Amendments; Non

- Hazardous Secondary Materials That Are Solid Waste: Final Rule Volume 1: CISWI

U. S. Environmental Protection Agency
Office of Quality Performance Standards
Sector Policies and Program Divi sion (MD E143

- 03)

Research Triangle Park, NCv FOREWORD
These documents provide EPA’s responses to public comments on EPA’s Proposed Commercial and Industrial Solid Waste Incineration (CISWI) Rule and Non

- Hazardous Secondary Materials That Are Soli d Waste (NHSM) Rule.
EPA published a notice of reconsideration and proposed amendments of the standards applicable to CISWI units in the Federal Register on December 23, 2011 (76 FR 80452). EPA received comments on these proposed rules via mail, e

- mail, an d facsimile. Copies of all comments submitted are available at the EPA Docket Center Public Reading Room and are also available electronically through http://www.regulations.gov by searching Docket ID EPA

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- 0329. This do cument is divided into two volumes, volume one responds to public comments received on the CISWI reconsideration proposal and volume two responds to public comments received on the NHSM amendment proposal. Each section of these documents provides the verba tim text of comments extracted from the original letter. For each comment, the name and affiliation of the commenter, the document control number (DCN) assigned to the comment letter, and the number of the comment excerpt is provided. In some cases the sam e comment excerpt was submitted by two or more commenters either by submittal of a form letter prepared by an organization or by the commenter incorporating by reference the comments in another comment letter. Rather than repeat these comment excerpts for each commenter, EPA has listed the comment excerpt only once and provided a list of all the commenters who submitted the same form letter or otherwise incorporated the comments by reference in table(s) at the end of the document. EPA’s responses
to comment s are generally provided immediately following each comment excerpt. However, in instances where several commenters raised similar or related issues, EPA has provided a single response after the first comment excerpt in the group and referenced this respon se in the other comment excerpts. In some cases, EPA provided responses to specific comments or groups of similar comments in the preamble to the final rulemaking. Rather than repeating those responses in this document, EPA has included tables in this docu ment that list the commenters that submitted comments on issues responded to in the preamble.vi

The primary contacts regarding questions or comments on this document are:

Amy Hambrick (919) 541

- 0964

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

- 03)
Research Triangle Park, NC

Toni Jones (919) 541

- 0316
U. S. Environmental Protection Agency
Office of Quality Performance Standards

Se ctor Policies and Program Division (MD E143

- 03)
Research Triangle Park, NCvii 

### TABLE OF CONTENTS

Section Page 2A. Revision of Subcategories

- General

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

................................ ................................ ................................ ................... 8
2B02. ERU Poll utants subcategorized

................................ ................................ .......................... 16
2B03. ERU emission limits

................................ ................................ ................................ .......... 18 2B04. ERUs Designed to Burn Non

- Coal Solid Materials

................................ ............................ 25
2C01. Waste

- Burning Kiln Inv entory

................................ ................................ ........................... 31
2C02. Waste

- Burning Kiln Pollutants subcategorized

................................ ................................ .. 37
2C03. Waste

- Burning Kiln emission limits

................................ ................................ .................. 38 2D. Establishment of Limitations on Fuel Switching Provisions

................................ .................. 46 2E01. Definitions of Cyclonic Burn Barrels, Burn

- off Ovens , Soil Treatment Units, Laboratory Analysis Units, and Space Heaters from CISWI Subcategories

................................ ................. 68 2E02. Specific definition comments

- cyclonic burn barrels

................................ ......................... 72 2E03. Specific definition comments

- Burn

- off ovens

................................ ................................ .. 75 2E04. Specific definition comments

- Soil treatment units

................................ ........................... 81 2E05. Specific definition comments

- Laboratory analysis units

................................ ................... 81 2E06. Specific definition comments

- Space heaters

................................ ................................ .... 83 2E07. Establishing a Definition of "Homogeneous Waste"

................................ .......................... 86
2E08. Definitions

- Foundry Sand Thermal Reclamation Unit

................................ ...................... 91
2E09. Definitions

- "Contained Gaseous Material"

................................ ................................ ....... 95
2E10. Definition s

- "Chemical Recovery Unit"

................................ ................................ .......... 103 2E11. Definition of Municipal Solid Waste

................................ ................................ ................ 105 2F. Providing an affirmative defense for malfunction events

................................ ................... 111 2G01. Revisions to the CO Monitoring Requirements

................................ ................................ 154 2G02. Optional CO CEMS provisions

................................ ................................ ....................... 154 2H. Establshing a Full

- load Stack Test Requirement for CO Coupled with Continuous Oxygen Monitoring

................................ ................................ ................................ ............................. 162 2J. Incorporating Fuel Variability Into Emission Limit Calculations

................................ .......... 171
2K. Review of D/F Data and Non

- Detect Methodology Using Three Times Detection Level

..... 177 2L. Providing an Option for Sources to use Emissions Averaging to Demonstrate Compliance

.. 184 2N. Allowances for Using Feed Stream Analysis or Other Supplemental Information to Demonstrate Compliance

................................ ................................ ................................ ....... 189
2O. Prov iding Percent Reduction Alternative Standards

................................ ............................. 197TABLE OF CONTENTS (Continued)

Section Page

viii 2P. Providing Parametric Monitoring Provisions for Additional Control Devices

....................... 202 2Q. Revisions to the Continuous Monitoring Provisions for Large ERUs

................................ ... 211 2S01. Extending Compliance Dates

................................ ................................ ........................... 221 2S02. Small remote incinerator compliance dates

................................ ................................ ...... 235 2S03. Applicability date for new and existing units

................................ ................................ .... 237 7J. Ingredients are not combusted in cement kilns.

................................ ................................ ..... 252 7R. Waste coal, legacy coal combustion units and associated recordkeeping for units that burn materials with non

- waste determinations (categorical or non)

................................ ................. 264 12D. Operating parameter limits comments (OPL)

................................ ................................ .... 276 2T. Miscellaneous Typographical Errors and Rule Language Corrections

................................ .. 285
2Z. Unaddressed comment claims

................................ ................................ .............................. 294 3A. Costs: Control Technology Cost Assumptions

................................ ................................ ..... 296 3E. Economic Impacts

................................ ................................ ................................ ............... 2 97 3G. Secondary Impacts

................................ ................................ ................................ .............. 298
3Z. Other

................................ ................................ ................................ ................................ ... 300 5F. Regulatory Flexibility Act as Amended by the Small Business Regulatory Enforcement Fairness Act (RFA) of 1996 SBREFA), 5 U.S.C. 601 et Seq.

................................ ................. 300 7A. Applicability/Regulated Entities

................................ ................................ .......................... 302 7B. Applicability of CISWI to marine vessel or outer continental shelf units (Denied Petition issue)

................................ ................................ ................................ ................................ ...... 302
7C. Applicability to gasification or pyrolysis units

................................ ................................ ..... 303 7F. Portable incinerators are not accounted for in the rule or data (Denied Pe tition issue)

.......... 304 7G. Provide "temporary use" exemption

................................ ................................ .................... 305

7H. De

- minimis Size or Waste Amount Thresholds

................................ ................................ ... 306 7L. Requests for extension of comment period

................................ ................................ ........... 314 7P. Expansion of startup, shutdown and malfunction periods

- work practice standards for SSM (Denied Petition issue)

................................ ................................ ................................ ... 316 7Q. CISWI does not satisfy CAA 112(c)(6) requirements (Denied Petition issue )

...................... 328
7Z. Other

................................ ................................ ................................ ................................ ... 329 8A. Methodology: General Approach (Denied Petition issue)

................................ .................... 332
8B. Non

- detect approach (Denied Petition issue)

................................ ................................ ....... 356 8C. Small remote incinerator emission limits/achievability/costs/impacts on wildlife (Denied Petition issue)

................................ ................................ ................................ ......................... 358
9A . General comments on beyond

- the

- floor analysis (Denied Petition issue)

............................. 366 12A. Testing and Monitoring

................................ ................................ ................................ ..... 366TABLE OF CONTENTS (Continued)

Section Page

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

................................ ................................ ...... 370 12E. Missing CEMS data provisions (Denied Petition issue)

................................ ...................... 372 14A. Data reporting requirements

................................ ................................ .............................. 373
14B. Records that must be retained

................................ ................................ ............................ 375 14C. Electronic Reporting Mechanism

................................ ................................ ....................... 375
15A. Other

................................ ................................ ................................ ................................ . 377

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

................................ ........ 378

APPENDIX A

................................ ................................ ................................ .............................. 1
1A. Non

- Hazardous Solid Waste Definition

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

................................ ................................ ................................ ............... 4
1D. Boiler

- Undesignated

................................ ................................ ................................ ........... 36
1E. Boiler Area Source

................................ ................................ ................................ ................ 57
1Z. Other

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



### 2A. Revision of Subcategories

- General

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 36

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

The June 20 10 proposed CISWI Rule provided sub

- categories for 1) Incinerators, 2) Energy Recovery Units ( ERUs ), 3) Waste Burning Kilns, 4) Small, Remote Incinerators, and 5) Burn

Off Ovens. Emission limits for all ERU were the same, with no differentiation by unit de sign or primary fuel type.
Response: This statement requires no response.

Commenter Name: Gretchen Brewer Commenter Affiliation: PT AirWatchers Document Control Number: EPA

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- A1 Comment Excerpt Number: 2

Comment: CISWI rules need to be harmonized in this regard: it is ridiculous to have different rules for the same burner and the same fuel depending on whether it was purposely brought to burn, either for heat or power ("not waste") or just brought to burn ("waste"). Again, it's all the same when they are burned and the pollution goes up and out of the stack. If a lower emissions limit can be met if what is being burned is considered waste, then it can also be achieved if what is being burned is not considered waste, and vice versa. The limits should be set at the lower of the two.
Response: CAA section 129 requires the Agency to establish standards applicable to solid waste incineration units and units that meet the definition of a solid waste incineration unit may not be subject to standards established pursuant to CAA section 112. See CAA section 129(h)(2). For this reason, EPA may not subject solid waste incineration units to standards established under section 112 and units that are not solid waste incineration units may not be subject to standards under CAA section 129. EPA has complied with the statute in establishing subcategories in the CISWI rule and in establishing standards for units in the different CISWI subcategories.

Commenter Name: Neil Gorley Commenter Affiliati on: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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- A2 Comment Excerpt Number: 22

Comment: All of EPA’s subcategories are unlawful and arbitrary for the reasons given in the 2010 C omments and the Petition. 2010 Comments, Ex. 1, at 9

– 10; Petition, Ex. 2, at 5

– 6. In the proposed reconsidered CISWI Rule, EPA compounds the errors made in the final rule with respect to subcategories, for example for treating coal and biomass ERUs separat ely for a larger number pollutants.
Section 129(a)(2) of the Clean Air Act allows EPA to “distinguish among classes, types (including mass

- burn, refuse

- derived fuel, modular and other types of units), and sizes of units within a category in establishing su ch [emissions] standards.” 42 U.S.C. § 7429(a)(2). The decision to subcategorize can significantly affect MACT floor determinations, which then greatly impacts the overall stringency of emissions standards. Since manipulation of subcategories can severely weaken MACT standards, the agency must carefully show that each proposed subcategory is necessary and well supported by the record. The Agency must offer a reasoned justification for the subcategories it has chosen. See, e.g.
, Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 947

– 50 (D.C. Cir. 2004) (remanding a decision to subcategorize in setting MACT standards because the Agency had not properly justified its subcategorization scheme). CISWI units are not of a different “class, type, or size” merely because they are allegedly “designed to burn” a type of fuel. In reality, these units (1) are otherwise the same as or closely similar to units that are allegedly “designed to burn” another type of fuel; (b) do in fact burn more than one ty pe of fuel; and (c) may actually burn a majority of fuel that is not the type they are allegedly “designed to burn.” Indeed, EPA freely admits that sources can “switch categories” based on the fuel they choose to burn at any given time. Revised MACT Floor Analysis for the Major Source Boiler Rule (2011), Ex. 5, at 5. Because such units are not of a different “class, type, or size,” EPA lacks authority to set separate emission standards for them and any claim that they are of a different class type or size i s arbitrary. If the fuel mixes of the subcategories EPA has defined did reliably differ, EPA’s subcategories would still be unlawful. By defining the subcategories on the basis of fuel mix and emissions profile, EPA sets up disincentives to meet the MACT s tandard through switching to cleaner fuels. MACT standards must be set to reflect the performance actually achieved by the best performers, however that performance is achieved, including through a change in inputs such as fuel. See Cement Kiln Recycling C oalition v. EPA , 255 F.3d 855, 861 (D.C. Cir. 2001) (addressing similar MACT requirements in § 112 of the Act and focusing on emission reductions achieved). Defining subcategories based on fuel inputs thus contravenes the Clean Air Act. Moreover, EPA must actually set its MACT floors on the basis of the subcategories it has defined, as it has defined them. Assuming arguendo that EPA’s subcategories are valid and can be maintained, the Agency’s standards for each one must actually reflect the emission level achieved by the relevant best performing sources in each one. Because EPA has chosen to base floors not on the best performers in its chosen subcategories but instead on a group within the category that is using a certain type of fuel or mix of fuels, EPA’ s standards contravene that requirement. The unlawfulness and arbitrariness of EPA’s subcategories is exacerbated by the Agency’s approach to establishing the statutory minimum stringencies (“floors”) for its standards. In order to ensure that top performe rs in each subcategory meet MACT emission standards almost all the time, EPA employs a statistical approach that makes predictions about emissions variability. 1 This statistical approach is based in part on the number of test runs for which EPA has data in each subcategory: the fewer the data points, the greater the upward adjustment in the limit. But EPA collected data first and defined its many subcategories later, with the result that EPA has very small quantities of emissions data for some of the subcat egories. This means that EPA’s3

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

[Footnotes]
(1) As explained below, EPA’s approach to variability is also unlawful and arbitrary per se.
Response: EPA notes that it has only opened for public comment in the proposed amendments to the CISWI rule the subcategories EPA specifically indicated that it was reconsidering. EPA does not agree with the commenter that the proposed subcategorization is not we ll founded for the reasons set forth in the proposed rule and this final action. Further, EPA responded to similar comments about the Agency’s authority to establish subcategories under section 129 when we issued the March 21, 2011 final CISWI rule (76 FR 15732).

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

In section II.E of the preamble to t he final rule, we provide our rationale for the subcategorization of solid ERUs and waste burning kilns. Our decision to subcategorize is based on the fuels that the units are designed to burn. EPA maintains that units are designed to combust certain typ es of fuel and that when burning those fuels the units function most effectively. However, units designed to burn one type of fuel may, in certain circumstances, be able to burn other types of fuel. Contrary to commenters assertions, this is a valid exer cise of the Agency’s authority to subcategorize. The commenter claims that it is “unlawful and arbitrary” to create different subcategories for units that are capable of burning more than one fuel or a mixture of fuels because such units are not of differ ent classes, sizes, or types. EPA disagrees with the commenter

. Given the broad statutory discretion to create subcategories, and the fact that some boilers do burn different fuels or a mixture of fuels at certain times, it is reasonable for EPA to estab lish criteria to distinguish among the different types of boilers, including boilers that combust different or a mixture of fuels at certain times. EPA did not, as the commenter suggests, subcategorize based on fuel type, however, the commenter is incorre ct in stating that subcategorizing based on material inputs is not consistent with the CAA. Nothing in the statute prohibits EPA from subcategorizing based on material inputs. See Sierra Club v. Costle , 657 F.2d 298, 318

- 19 (D.C. Cir. 1981) (differing po llutant content of input material can justify a different standard based on subcategorization authority to “distinguish among classes, types and4

sizes within categories of new sources”). EPA maintains that, had Congress intended to prohibit subcategorizat ion based on material inputs, it would have clearly stated that prohibition in the statute. The Agency does believe, however, that it could decline to exercise its subcategorization authority even if the potential result would be the prohibition of use of certain materials if the circumstances warranted.
ERUs use heat to convert water into steam for a variety of applications. Steam flow rates and operating conditions (e.g., temperature and pressure) are the principal design considerations. The primary fuel has perhaps the most significant impact on the ERU configuration and design. When fossil or biomass fuels are burned, widely differing provisions are made to account for differences in fuel handling and preparation, fuel combustion, heat recovery, fouling of heat transfer surfaces, corrosion of materials, and emission controls. For example, in a natural gas

fired boiler, only a small furnace (i.e., combustion chamber) is needed for combustion and closely spaced heat transfer surfaces may be used because of a lack of ash deposits (fouling). For units firing a solid fuel such as coal (which can contain a significant amount of noncombustible ash), the systems must include a much larger furnace, more widely spaced heat transfer surfaces, and an ash removal sys tem. The fuel and the combustion system define the design geometry of the furnace. The furnace volume is set to allow complete fuel combustion. Adequate clearances are specified to prevent flame impingement on the furnace surfaces, which could overheat t he tubes and cause tube failures. [1]

ERU systems are generally designed for specific fuel types and will frequently encounter combustion, slagging , fouli ng, or ash handling problems if a fuel with characteristics other than those originally specified is fired. [2] For example, the fuel feed rate for wood for a given heat input is about twice that of coal on a weight basis, and more than four times that of coal on a volume basis. Also, a combination of wood and coal firing often produces worse slagging and fouling conditions than coal firing alone. Wood comb ustion requires more excess air and more overfire air than coal combustion. [3] The National Energy Technology Laboratory of the Department of Energy has r ecommended when co

- firing with coal, biomass or other co

- firing materials should be limited to 10 percent on a weight basis to reduce or eliminate operation problems. (National Energy Technology Laboratory, 2009) The fuel has a major impact on ERU design d ue to fouling and erosion characteristics of the flyash and heat transfer properties of the fuel gas (including moisture content). Biomass requires significantly different combustion systems than coal, oil, or gas and can also result in different ERU corro sion characteristics. Changes to the fuel type would generally require extensive changes to the fuel handling and feeding system ( e.g., a stoker using wood as fuel would need to be redesigned to handle fuel oil or gaseous fuel). Additionally, the burners, combustion chamber, and combustion air system (i.e., fans) would need to be redesigned and modified to handle different fuel types and account for increases or decreases in the fuel volume. In some cases, the changes may reduce the capacity and efficiency of the ERU. An additional effect of these changes would be extensive retrofitting needed to operate using a different fuel.

The design of the ERU, which is dependent in part on the type of fuel being burned, also impacts the degree of combustion. ERUs em it a number of different types of emissions. Carbon monoxide and dioxins/furans are formed from incomplete combustion and are influenced by the design and operation of the unit. NOx formation likewise is primarily influenced by the design and operation of the unit. The degree of combustion may be greatly influenced by three general5

factors: time, turbulence, and temperature. In any energy application the combustion unit is designed to make the best use of time, turbulence, and temperature. All three of t hese aspects relate directly to the properties of the fuel to be used (moisture content, particle size, ash content, and heat value). On the other hand, the formation of fuel

- dependent pollutants (metals, mercury, SO 2 and HCl) is dependent upon the composition of the fuel. These fuel

- dependent pollutant emissions generally can be controlled by either changing the fuel property before combustion or by removing the pollutant from the flue gas after combustion.

We first e xamined the emissions results to determine if subcategorization by unit design type was warranted. We concluded that the data were sufficient for determining that a distinguishable difference in performance exists based on unit design type between liquid, solid

- coal and solid

biomass ERUs. Therefore, because different types of units have different emission characteristics which may influence the feasibility and effectiveness of emission control, they should be regulated separately ( i.e., subcategorized). Ac cordingly, we subcategorized ERUs based on unit design in order to account for these differences in emissions and applicable controls.

For example, differences between given types of units can lead to corresponding differences in the nature of emissions an d the technical feasibility of applying emission control techniques. The design, operating, and emissions information that EPA has reviewed indicates differences in unit design that distinguish different types of ERUs. Data indicate that there are signific ant design and operational differences between units that burn coal, biomass, and liquid fuels.

The commenter also provides comments on the MACT floor and variability methods used to establish emission limits, which have not been opened for reconsideration . Therefore, we are not responding to comments regarding emission limit methodology. Furthermore, it appears that the commenter is providing the same comments on the CISWI rule as it provided for the Major Source Boiler NESHAP. The commenters direct ref erence to that rule, the focus on and reference to boiler units instead of ERUs, and its reference to the many subcategories (CISWI establishes 7 subcategories, and only three for ERUs) all cause us to reach this conclusion. We do not believe it is approp riate for the commenter to provide comments in this manner; however, we have attempted to respond to the comments to the extent they can be addressed in the context of the CISWI rule.

[1] Steam/its generation and use, Edition 41, The Babcock & Wilcox Company, a McDermott Company

[2] Steam/its generation and use, Edition 41, page 19

- 4, The Babcock & Wilcox Company, a McDermott Company

[3] Lessons Learned from Existing Biomass Power Plants, G, Wiltsee

, Ap pel Consultants, Inc., Prepared for National Renewable Energy Laboratory, Department of Energy.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA)6

Document Control Number: EPA

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- A1 Comment Excerpt Number: 7

Comment: Under EPA’s current and proposed procedures, creating larger numbers of subcategories usually leads to higher MACT floors in two ways. First, if a small number of the best performers (e.g., fuel cells) can be culled from a larger group into its own subcategory, the MACT floor for the larger group (the wood

- fired boilers) will rise. Second, because the small group will have a small number of tests, the statistical variability of the small group will also increas e, leading to MACT floor increases for both the larger group and the smaller group. EPA’s decision to create separate subcategories for PM emissions based on the design of the combustion chamber creates a situation where a unit with highly variable emissio ns is classified as a top performer, based on EPA’s inappropriate definition of best performing unit. Since that unit has many more test results than others in the group, EPA’s pooled UPL process causes that unit to dominate and results in a limit that is technically invalid. The resulting proposed limits are often substantially higher than the highest emitting unit. See Chart 1. [See submittal for chart provided by commenter.] EPA has the means to objectively evaluate requests for subcategories and should do so for all subcategories incorporated in its rule. It should determine through the use of statistical techniques, such as a T

- test of significance, that the emissions performance of each proposed subcategory is in fact significantly different from the broader category or subcategory of which it is a member. If a significant difference is shown, EPA should determine whether the difference is a function of the design of the combustion unit itself or is related to the prevalence of post

- combustion controls that can be employed throughout the category. Where EPA determines that the emissions performance of the proposed subcategory is, in fact, significantly different from the broader category and is associated with the design of the combustion chamber itself , rather than post

- combustion controls, EPA should compute the arithmetic average of the best performing unit(s). However, unless the proposed subcategory has sufficient data (nominally 50 data points) upon which to determine the variability of performance , EPA should apply the variability factor from the broader category to the arithmetic average of the best source(s) in the new subcategory. Where EPA did not collect emissions data from a representative sample of all units within a proposed subcategory, EP A has no basis to assume that any particular unit is in the top 12 percent of that subcategory. It is therefore insufficient to establish a subcategory on the basis that a particular unit’s emissions are greater than the top 12 percent of the broader categ ory.

Response: As with the previous comment, it appears that these comments were written in response to the Major Source Boiler NESHAP and sent to the CISWI docket as well, which we believe is not appropriate.

We note, however, that EPA does not agree t hat the commenter’s suggested approach for determining subcategories is appropriate and the Agency maintains that it has complied with the statute in establishing the subcategories in the final CISWI rule. In section II.E of the preamble to the final rul e, we further discuss why subcategorization of solid ERUs and waste burning kilns is appropriate.

EPA did not propose to revise its statistical approach to setting MACT floors under section 129 in the reconsideration proposal, and we do not change the st atistical approach in the7

reconsideration proposal. Therefore, we are not responding to comments regarding emission limit methodology.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 4

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

Solid/Biomass ERUs are subject to an unprecedented hydrogen chloride standard, 0.5 ppmdv @ 7%O 2 , up to 99% or more control for ERUs combusting biomass wastes or combinations of biomass fuels and wastes. The standard, if achievable at all, would req uire installation and operation of high efficiency wet scrubbers necessitating a large water supply for scrubbing and evaporative loss makeup, and wastewater treatment and discharge capacity for scrubber loop blow down. ERC members operate biomass

- to

- energ y units located in California’s agricultural Central Valley 4 where water supply and wastewater treatment capacity is severely limited. In fact some facilities are already equipped with higher cost air

- cooled condensers instead of wet cooling towers because of these restrictions.
EPA should create a separate subcategory for ERUs located in areas where water is scarce and waste water treatment restricted, areas like the California Central Valley. The driving factor for the ability of a unit to meet emission limits is the availability of air pollution control ( APC ) technologies on which the limit is based. The APC needed to meet the hydrogen chloride standard is not available in California’s Central Valley and other water and wastewater treatment restricted ar eas. Creation of a separate subcategory based on availability is consistent with EPA’s separate MACT subcategory for small Hospital, Medical, and Infectious Waste Incinerators located in rural areas based on limited availability of alternative medical wast e treatment.
Without a separate subcategory to set standards for units that cannot operate wet scrubbing technology, facilities in water

- restricted areas will not be able to achieve the hydrogen chloride limit and will have no choice but to either cease co mbusting waste biomass (switch fuels), or shut down.

[Footnote: 4 Units include CAChineseStation

, CACovantaDelano Unit 1, CACovantaDelano Unit 2, and CACovantaMendota.]
Response: The limit for existing biomass ERUs for HCl is 0.2ppmdv @ 7% O2, which is sl ightly more stringent than the ERU solid limit in the March 2011 rule. We discuss rationale for ERU subcategorization in the preamble to the March 2011 rule (76 FR 15732). We have further included all pollutants in the subcategorization of units designed to burn biomass and coal in this final rule, as discussed in section II.E of the preamble to the final rule. In any case, we do not agree that the availability of water alone would warrant the creation of a subcategory for these units nor that the HCl lim it that would be applicable to these units can only be met with water intensive controls (for example, careful selection of fuels or a dry sorbent system). The8

commenter has not provided information that indicates HCl control for their units requires wet scrubber control. In addition, the commenter has not provided information to demonstrate that the emissions characteristics of these units are different such that a subcategory would be warranted.
Regarding the units that the commenter mentions in their comment, these do not appear to be within the current CISWI inventory and we have no information suggesting that these units combust solid waste as that term is defined in the NHSM final rule because the commenter does not explain how the biomass it combus ts is a waste. Please contact the Agency to determine if in fact these units would likely be subject to the CISWI regulation once implemented.



### 2B01. ERU Inventory

Commenter Name: Stephen R. Gossett, Senior Environmental Associate Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA

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- 2003

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- A2 Comment Excerpt Number: 1

Comment: The Combination Boiler #2 at Packaging Corporation of America’s ( PCA ) located in Counts, Tennessee does not burn solid waste and should be moved out of the CISWI database.
In Eastman’s petition for reconsideration, Eastman requested that several boilers be removed from the CISWI dataset. In response, EPA did move four of t he requested units, but did
not move PCA’s boiler even though Eastman pointed out that the secondary materials burned in the unit, tire

- derived fuel ( TDF ) and old corrugated containers (OCC) rejects, are not solid waste as determined from a review of the f inal Non

- Hazardous Secondary Materials that are Solid Wastes Rule ( NHSW rule). Eastman has found nothing in the record to the reconsideration proposal to explain EPA’s rationale in refusing to move this boiler out of the CISWI database. Therefore, Eastman offers the following discussion to add more detail to its request:
First, regarding TDF , the NHSM final rule states that scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection
pr ograms are not solid wastes (see 40 CFR 241.3(b)(2)(i)). Since PCA’s practice of burning TDF meets this exemption, Eastman assumes this is not the reason PCA’s boiler remains in the CISWI database, leaving only the practice of burning OCC rejects that coul d possibly be the reason.
The following excerpt from the preamble to the final rule supports Eastman’s position are that OCC rejects burned in PCA’s Combination Boiler #2 are not solid wastes.
Discussion on OCC Rejects 54 Federal Register 15486

Comment: Co mments argued that OCC rejects, also known in the industry as ``recycling process residuals,'' are never discarded, and therefore, should be considered a traditional fuel because they do not leave the plant, but are usually burned on

- site as a fuel. In som e cases, however, they do leave the plant to be burned in municipal or commercial energy facilities or employed as a fuel pellet ingredient.9

In addition, while some commenters argued that they did not believe OCC rejects are ever discarded, they provided i nformation on how OCC rejects are sufficiently processed to remove contaminants if they are determined to be discarded. For example, strings, wires, rags, and heavy objects are removed using manual and centrifugal force, while plastic and

non

- recyclable pa per fibers are removed through screens. Commenters also stated that OCC rejects meet the legitimacy criterion for contaminants as they have lower contaminants than traditional fuels. One comment provided data from 10 samples of OCC rejects from one
compan y and 16 samples of coal (of unknown type or origin) to substantiate that claim (see Table 2). [See submittal for data table 5.2 provided by commenter showing

-- Comparison of Contaminant Concentrations in Samples of Coal and OCC Rejects] 52

Commenters also claimed that OCC rejects meet the legitimacy criterion for being managed as a valuable commodity, as they are managed in the same manner as analogous fuels

-- bark. Prior to burning, this material is co

- mingled with bark on the bark pile.

Furthermore, commen ters stated that OCC rejects pass the legitimacy criterion for having a meaningful heating value. For example, a commenter submitted data that indicated that, on a dry basis, OCC rejects have a heating value of 9,100 Btu /lb, while, as fired, they have a heating value of 3,700 Btu /lb. 53 Another commenter submitted ten tests at plants from one company that found that the heating value of OCC rejects ranged from 8,700

- 13,600 Btu /lb on a dry basis. 54

Another commenter submitt ed a study by the National Council for Air and Stream Improvement to demonstrate that air emissions from burning OCC rejects are comparable to burning wood. In this study, emissions results were provided from three plants that burned 4.4

- 30% OCC rejects wi th 70%

- 95.6% wood and compared it to emissions from the same three plants when they only burned wood. Emissions were tested for total particulate matter ( TPM ), SO 2 , NO X , CO, and HCl . The results found that burning OCC rejects did not result in increased em issions of TPM
, SO 2 , NO X , or CO, but occasionally resulted in a small increase in HCl emissions. 55

EPA's Response: We do not agree with the commenters that OCC rejects should be considered a traditional fuel or alternative fuel since this non

- hazardous se condary material, consisting of recycled paper and paper products, has not historically been managed as a fuel

-

- that is, the recycling of OCC and the subsequent use of OCC rejects is a relatively recent activity, nor is it made from virgin materials. Howev er, we believe that these materials are not discarded when used within the control of the generator, such as at pulp and paper mills, since these non

- hazardous secondary materials are part of the industrial process.
The data submitted during the comment pe riod would seem to suggest that it would or could meet the legitimacy criteria. For example, the data received indicated that OCC rejects have contaminant concentrations that are comparable to, if not less than, coal, wood, and bark, which are all traditio nal fuels used at pulp and paper mills. While the meaningful heating value of the OCC rejects is lower than 5,000 Btu /lb, as fired, it can still meet this criterion if it can be demonstrated that the unit can cost

- effectively recover energy from a non

haza rdous secondary material. The information submitted also demonstrates that OCC rejects are managed as a valuable commodity as they are managed in the same manner as the analogous fuel

-- bark.10

This discussion by EPA would seem to be justification for conclud ing the OCC rejects burned by PCA are not solid wastes. However, to explore the issue further, we have extracted data for PCA’s OCC rejects from EPA’s CISWI database and shown it in the table below. [See submittal for data table by commenter showing the P CA OCC Rejects Fuel Data]
First, the OCC rejects burned by PCA definitely have meaningful heating value. Second, the OCC rejects are generated on

- site from old corrugated containers purchased by the mill from retail establishments that are processed to rec over and reuse the fibers in the mill production
process. The rejects are not discarded but are processed to dewater and remove ferrous materials, preparing them for burning as a fuel in the boiler. This operation has been in place for many years. Third, PCA’s Combination Boiler #2 burns both coal and bark. Therefore, when making a legitimacy determination, even under the March 21, 2011, NHSM final rule, the OCC rejects can be compared to either of these traditional fuels. When doing so, the only conclusi on that can be drawn is that PCA’s OCC rejects contain contaminants at levels comparable to or lower than the traditional fuels the boiler is designed to burn.
This conclusion is further verified when considering EPA’s proposed reconsideration. Here, EPA

c larifies in the proposed rule language that “persons can use ranges of traditional fuel contaminant levels compiled from national surveys, as well as contaminant level data from the specific traditional fuel being replaced.” EPA also placed in the docket a document to assist with this comparison titled “Contaminant Concentrations in Traditional Fuels: Tables for Comparison”. When using these tables, it is even more evident the PCA OCC rejects meet the legitimacy criteria.

Footnotes: (52) Source: EPA

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- 0774; Since the legitimacy criterion for contaminants compares concentrations per mass of the material (not per the heating value of the material), all concentrations reported in pounds per billion Btu (lb/billion Btu) were converted into parts per million (ppm) with the assumption that OCC rejects have a heating value of 3,700 Btu/lb (as fired) and that sub

- bituminous and bituminous coal (the most common types of coal to be utilized in combustion units) have a heating value of 8,500

- 14,000 Btu/ lb (per Preliminary Characterization Study Prepared In Support of the Proposed Rulemaking

-- Identification of Nonhazardous Secondary Materials That Are Solid Waste: Traditional Fuels and Key Derivatives, EPA

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- RCRA

- 2008

- 0329

- 0461.21).
(53) Source: EPA

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- 2008

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- 0871.1.
(54) Source: EPA

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- 0774.1.
(55) National Council for Air and Stream Improvement, Inc. Technical Bulletin (TB) 906, ``Alternative Fuels Used in the Forest Products Industry: Their Composition and Impact on Emissions.'' September 2005.

Response: Considering the claim and supporting information provided by Packaging Corporation of America, we have removed this unit from the CISWI inventory.11

Commenter Name: Richard Holland Commenter Affiliation: Packaging Corporation o f America (PCA) Document Control Number: EPA

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Comment:

PCA offers these comments in support of moving the Combination Boiler #2 at this facility from the CISWI category to the Industrial and Commercial Boilers category.

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

In preparation for the origi nal Boiler MACT regulation, PCA conducted testing of the OCC rejects being fired. In the current proposal (page 80480, December 23, 2011 FR) EPA stated that "To meet the contaminant legitimacy criterion, persons must compare contaminants in the NHSM they w ish to burn to contaminants in the traditional fuel the unit is designed to burn". EPA referenced a document "Contaminant Concentrations in Traditional Fuels: Tables for Commparison " in the proposed regulation. PCA has compared analytical data for OCC reje cts and the values listed in the EPA table as summarized below:

Parameter OCC Sample

(Average) OAQPS Average

Coal OAQPS Average

Biomass

Cl 370 * 992 259 Hg 0.012 0.09 0.03
As 1.035 8.2 6.3
Be 0.075 1.9 0.3 Cd 0.13 ** 0.6 0.6 Cr 1.87 13.4 5.9 Pb 2.01 8.7 4.5
Mn 31.0 26.2 302 Ni 0.50 21.5 2.8 Se 0.85 3.4 1.112

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

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

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

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

#2 at PCA

- Counce will definitely not be in the CISWI category.

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

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA

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- A2 Comment Excerpt Number: 8

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

WTI noted that EPA had made adjustments to the CISWI ERUs population based on supplemental data submitted by the Biomass Power Ass ociation. This data set identified Wheelabrator Shasta Energy Company as a possible CISWI facility based on the plant’s past combustion of small amounts of creosote treated wood. As result of this outdated information, EPA moved the Wheelabrator Shasta Ene rgy units from the Boiler MACT to CISWI unit population. We respectfully request that EPA remedy this error. The Wheelabrator Shasta Energy facility no longer combusts any non hazardous secondary materials (NHSM) that may now be considered solid waste unde r NHSM rule and has not done so for the past two years. This facility will continue to combust non waste materials and therefore will not be subject to final CISWI rules.13

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

Commenter Name: Stephen R. Gossett, Senior Environmental Associate Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA

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

- fired subcategory.
In the event EPA disagrees with our comment that the PCA Co mbination Boiler #2 is not a CISWI unit, we believe the test data from this unit should not be used in setting floors for the coal ERU subcategory. There are not stack test data for this unit in EPA’s database where the unit was burning more than 90 percen t coal. For the same reasons as EPA determined for the Boiler MACT (see November 2011 Revised MACT Floor memo, page 4), test data should not be used unless the unit was firing the minimum threshold of 90 percent for a particular subcategory.

Response: As we discuss in response to excerpt 1 from this commenter, we have removed the PCA unit from the CISWI inventory. The issue of excluding test results for units burning less than 90 percent coal is being denied under this reconsideration for the reasons discussed in the “CISWI Reconsideration Issues” memo in the CISWI docket.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: When a source combusts only one type of fuel at all times, determining which emission limit to apply is straightforward. However, many sources combust different types of fuels at different times and a substantial number of sources combust different mixtures of these fuels at different times. In developing its Model Permit Guidance, 35 NACAA attempted to address this issue by examining test results where only one type of fuel is employed to set the recommended range of suggested limi ts. It was anticipated that state and local permitting authorities would then determine the appropriate procedure for establishing permit limits on a

case

- by

- case basis, either by applying the limit that was the most stringent at all times, by determining the weighted average of relevant limits or by requiring a compliance demonstration based on full utilization of one fuel. EPA has taken a different approach. It has adopted a “designed to combust” test and a hierarchical scheme for determining the fuel cat egory of a source. [Footnote: 35 See http://www.4cleanair.org/Documents/RHAP.pdf.]
Response: As we discuss in the March 2011 rule (76 FR 15733), we were aware that some ERUs burn a combination of fuel types, but ERUs are designed based on the primary fuel type and can encounter operational problems if another fuel type that was not considered in its design14

is fired at more than 10 percent of the heat input of the unit. We therefore subcategorized units that burn at least 10 percent coal as being in the sol id fuel/coal subcategory, with the remainder of the units being in the biomass subcategory for ERUs. In doing so, we have acknowledged that combinations of fuels and wastes are acceptable and likely within the types of units found in the CISWI ERU populati on. The current population of CISWI units in this final rule is based on our knowledge of the final NHSM rule. The emission limits are based on data collected for units in the CISWI population. The methodology for establishing emission limits has been disc ussed in prior notices, and is not being reconsidered in this final rule. By analyzing the performance of the units in the CISWI inventory, we are accounting for the variety in fuel and waste feeds represented by these units. We disagree that the commenter ’s suggested approach must be adopted. EPA must establish standards for CISWI units based on the information available to it and EPA cannot delay the promulgation of the standards to collect the data suggested by the
commenter..

Commenter Name: Stephen R. Gossett, Senior Environmental Associate Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA

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

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

Our de terminations of secondary materials as solid waste were made using EPA’s preamble discussion (see pages 80746

- 80482 of the December 23, 2011, Federal Register) along with the document EPA placed in the docket and referenced with footnote 45 on page 80481 ( Contaminant Concentrations in Traditional Fuels: Tables for Comparison). This discussion includes use of comparisons to the upper end of a statistical range and comparing to any traditional fuel a unit is designed to burn (even if it is not permitted to bu rn) and having an appropriate feed mechanism.
[See submittal for data table showing the test results that appear to be non

- representative of CISWI units and should be excluded].
Response: The current population of CISWI units is based on our knowledge of the final NHSM rule. EPA has determined that it is only appropriate to remove units from the CISWI inventory if the commenter provides information showing that the unit(s) in question are combusting categorical non

- waste material and/or traditional fuel, or if the owner of a unit establishes that the secondary materials combusted in their unit are legitimate alternative fuels generated on site. If a unit in the CISWI database meets the definition of a solid waste incineration unit, the units data may be u sed in establishing the standards, unless the information15

in the test report indicates that the data was generated when the unit was not combusting solid waste at the time of the test. In this case, we would remove the data from emission limit calculation s for CISWI units because it was potentially not representative of emissions while the unit is combusting waste.
Furthermore, we have acknowledged in this rulemaking that units in the ERU and waste burning kilns subcategories may start and stop combusting solid waste, and we have accounted for that fact by including in the definition of CISWI unit a requirement that units remain subject to CISWI for 6 months after adding solid waste to the combustion unit. The rule does not require that waste be burned at all times and we understand that units will often operate without any solid waste inputs.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 1

Comment: The universe of units to be regulated as CISWI is based on a proposed rule “Identification of Non

- Hazardous Secondary Materials ( NHSM ) That Are Solid Wastes,” which is included in the same Fede ral Register notice as the proposed changes to the CISWI rules. Although EPA has proposed several changes that reduce the universe of regulated units from that previously contemplated under the 2010 proposed rule, comments being submitted on the two
propos ed rules by several parties demonstrate that some of the units EPA is still proposing to regulate under the CISWI rule do not in fact burn solid waste. Many of the NHSM that EPA presumes to be solid waste are in fact fuels. As EPA has not yet finalized the changes to the NHSM rule, we do not know how EPA can properly determine what units to include in the CISWI analysis. In fact, we suspect that EPA arbitrarily classified sources burning NHSM as CISWI if the sources indicated on their Information Collection Request ( ICR ) survey response that they would continue using the units to burn the NHSM for any materials that were determined to be solid waste, but would stop using them as boilers for any NHSM that were determined to be waste. Nonetheless, further chan ges are needed to the proposed CISWI rules to ensure the standards reflect what units will actually be able to achieve.
Response: The commenter appears to confuse the manner in which EPA determined whether units are included in the CISWI inventory with th e manner in which the Agency establishes the standards.
For CISW, the regulated community has the potential to shift due to changes in inputs, but EPA must establish standards based on the information available at the time of the rulemaking. Operators ha d ample opportunity to review the units EPA included in the CISWI inventory and correct any errors in the record, as many did. EPA included in the CISWI inventory units that indicated in the ICR that they combust solid waste as that term is defined in the NHSM rule. If a source provided information in the comment period that clearly demonstrated that the unit was combusting only non

- waste material, we removed the unit from the CISWI inventory. Otherwise, the unit was included in the inventory.16

The cur rent population of CISWI units is based on our knowledge of the final NHSM rule, as clarified in this final rule, and on the data and other information provided by the regulated community. As noted in response to EPA

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- A2, excerpt 8, so me sources have indicated their units no longer burn a material that could be a solid waste and we have therefore removed them from the CISWI population and their data was not considered in establishing the final CISWI standards.

Based on the units identi fied, EPA established standards at levels that have been achieved in practice by the best performing source or sources using data from those sources. We maintain that the final standards are established consistent with the statute as described in the rule making record. SEE _CITE TO MACT FLOOR METHODOLOGY.



### 2B02. ERU Pollutants subcategorized

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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- A1 Comme nt Excerpt Number: 19

Comment: EPA is taking comment on the proposed revisions to the subcategorization of ERUs
, including whether HCl and Hg should be subcategorized. 76 Fed. Reg . 80458. Fuel flexibility is an important factor in the operation of many i ndustrial facilities, and fuel cost is usually one of the top three costs of doing business. Many facilities have committed to a single solid fuel, such as coal, but other facilities burn a mixture of fuels. EPA should set limits for HCl and Hg for solid f uel

- fired units that ensure the maximum number of sources can achieve the limits and that do not disadvantage users of any one particular fuel. EPA has the discretion and should include a fuel variability factor in the MACT floor analysis for the solid fue l subcategory HCl and Hg limits so fuel pollutant content variability among the top performers is adequately considered. This approach would make achievability of these standards more viable, while reflecting the real world operational and fuel variability that boilers experience.
Response: EPA maintains that it has adequately accounted for variability in establishing final standards that are achieveable for sources in the different subcategories, and we note that we have not opened in this reconsideratio n proposal the methodology the Agency uses to establish the MACT floor level of control, including the variability analysis. The commenter has provided no data to indicate that sources will be unable to meet the standards in the final rule.

In the final rule, we have subcategorized coal and biomass ERUs for all 9 CAA section 129 pollutants, including Hg and HCl. For the comment responses to our decision to subcategorize all pollutants between coal and biomass

- fired units, we refer to section II.E of the preamble to the final rule . As we discuss elsewhere in this comment response document, we are not incorporating a fuel variability factor into our emission limit calculations for CISWI

.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Manageme nt (WM)17

Document Control Number: EPA

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- A2 Comment Excerpt Number: 7

Comment: EPA should establish a separate a SO 2 limit for an Energy Recovery Unit ( ERU ) subcategory that combusts biomass and tires.
WTI operates the Wheelabrator Ridge Energy Facility ( WREF ) in Polk County Florida. The facility began operation in 1994 and consists of a 630 MMBtu /hr multi

‐ fuel stoker fired boiler providing steam to a 50 MW generator for sale of electricity to the local utility. The boiler is fueled by a mixture of municipal solid waste including yard waste and tires, non ‐ municipal biomass including clean cellulosic biomass (agricultural waste and forest debris), biomass derived solid waste, and landfill gas. The facility typically combusts between 3 0, 000

‐ 40 ,000 tons of tires annually. Tires are received whole and chipped on site (belts are not removed) or as direct deliveries of chipped tires. Tires may or may not be derived from tire collection programs. Chipped tires are fired simultaneously with t he biomass fuels to ensure optimum combustion and boiler heat input. Tire combustion is limited by the air permit to 18,505 lbs/hr or approximately 40% of total boiler heat input. The boiler is equipped with selective non ‐ catalytic reduction ( SNCR ) for NO X control, a lime slurry spray dryer absorber ( SDA ) for SO 2 or acid gas control and a fabric filter. The SDA was designed for the control of SO 2 associated with combustion of tires. WTI conducted a variability analysis of the SO 2 hourly data to determine an achievable SO 2 emission limit for combustion of tires and biomass fuels. The findings are summarized below. WTI compiled hourly average CEM SO 2 outlet data in ppm @7%O 2 for the period of January 1, 2011 to June 6, 2011. Three different types of averages w ere used for variability analysis

— 30

‐ day rolling averages, 24

‐ hour block averages, and 3

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

‐ hour rolling average provides variability associated with running 3

‐ 1 hour stack tests to demonstrate compliance. The 99% upper confidence limit (UL) was calculated for three different averages in accordance with the following equation: [See submittal for following equation provided by commenter ]. Results of the averaging t ime variability analyses and 99% UL are summarized in the table below: [See submittal for data table provided by
commenter ]. Despite being equipped with a high efficiency SDA the variability analysis demonstrates the revised solid fuel ERU SO 2 limit of 7.3 ppm 7% O 2 is not achievable even using the alternative 30 day average provided in the revised rule.

An achievable SO 2 limit for the subcategory of solid Fuel ERUs combusting tires and biomass derived fuel based on the 99% UL would be 48 ppm 7% O2 using th e 30 day rolling average alternative. This proposed revised limit is an order of magnitude below 650
ppm limit allowed for coal fired solid fuel ERUs . The facility meets or exceeds all other limits for solid fuel fired ERUs . We believe incorporating a sepa rate SO 2 limit for a solid fuel subcategory for ERUs co ‐ combusting tires and biomass derive fuels is consistent with EPA’s intent for granting reconsideration of the sub

‐ categorization approach.
Response: We have not established a subcategory for biomass and tire

- derived fuel energy recovery unit as the commenter suggests. We note that this particular unit is not currently listed in the CISWI unit currently, and would encourage the commenter to review applicability of CISWI

, MWC rules and the boiler NESHA Ps with respect to their combustion unit.18



### 2B03. ERU emission limits

Commenter Name: Edward J. Wilusz Commenter Affiliation: Wisconsin Paper Council Document Control Number: EPA

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Comment: Although the manufacturing sector nationally is showing signs of life, much of the pulp and paper industry remains challenged by global competition and fundamental shifts in the marketplace. While we strongly believe that environmental and economic progres s are compatible goals, the proposed standards are simply not achievable. The agency has projected that only two units out of 95 existing units will meet the proposed limits.
Response : EPA established the standards consistent with the statute, we did not change the methodology between the 2011 Final CISWI rule and the reconsideration proposal, and we did not open the methodology for comment in the reconsideration proposal. We note that the fact that most facilities cannot presently achieve all of the nine pollutant limits does not mean that the standards are not achievable, and only shows that plants will need to reduce their emissions of certain pollutants to meet standards reflecting the average of best industry performers for that pollutant. The idea is to set limits that, as an initial matter, require all sources in a category to at least clean up their emissions to the level that their best performing peers have achieved. See CAA section 129(a)(2) With the appropriate control technologies in place, we maintain that these standards are achievable by the sources in the CISWI subcategories.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: The December 2011 CISWI reproposal contains the following limits for biomass, coal and solid fuel CISWI units, some of which we believe are extremely problematic, in that the limits may not be a chievable even with the most robust pollution control technologies available. [See submittal for tables of limits provided by commenter.]
Response: We do not agree the commenter that the standards are not achievable, and the commenter has not provided inf ormation or data that support the claim. W e believe that there are controls available that will achieve the final standards.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: The biomass CISWI limit for SO 2 of 7.3 ppmv was derived from 3 tests (3 runs each) corresponding to 3 biomass boilers ( ALIPRiverdale

, MEHuberEngineeredWoodL LC

,19

OKIPValliant ). Generally, when essentially 100% biomass with perhaps small amounts of extraneous sources of sulfur are burned in a boiler, the SO 2 emissions are expected to be minimal, as was the case for these 3 boilers. However, when NHSM containing sulfur are mixed in with the biomass, even accounting for the “in

- situ” sulfur capture that is inherent for most biomass/bark

- fired boilers, low levels of SO 2 , in the range of 50 to 100 ppm , could result in the boiler exit before any secondary control is a pplied. For such low, uncontrolled levels, it would be very difficult even for a very efficient SO 2 scrubber (such as a spray dryer absorber) to reduce the SO 2 - laden gases down to levels below 10 ppm . In other words, it is not too difficult to reduce the S O 2 levels in a coal

- fired boiler flue gas from about 500 or 1000 ppm down to 50 or 100 ppm (>90% removal), but the same level of control efficiency would be very difficult to obtain if the uncontrolled levels drop below about 100 ppm . We recommend that a c ommon limit for SO 2 be applied to coal and biomass CISWI units, since ultimately the level of control is dictated by technological limitations of flue gas SO 2 control.
Response: We have discussed the rationale for subcategorization in section II.E of the preamble to the final rule. The SO 2 emission limits were subcategorized in the March 2011 final rule, and the calculated emission limits are based on an analysis of the data from the best performing units within the subcategory. EP A established the final standards consistent with the requirements of the CAA and sources must determine whether to install controls to comply with the final standards, cease combusting solid waste and comply with any otherwise applicable section 112 stand ards, or cease operations. We further believe that there are controls available that will achieve the final standards.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. D ocument Control Number: EPA

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- A1 Comment Excerpt Number: 16

Comment: The biomass and coal (solid fuel) CISWI limit for HCl of 0.5 ppmv was derived from 4 tests (3 runs each) corresponding to 4 boilers ( ALIPRiverdale

, TXInternationalP aper QueenCity

, WALongviewFPP

, WINSPWAshland ). All four were biomass

- fired boilers.
The discussion provided above for SO 2 emissions and control at low levels of SO 2 also applies to HCl , although with HCl being a stronger acid, the level of control achievab le is generally much higher. Nevertheless, maintaining HCl emissions at levels below 0.5 ppm would be both a technological challenge in terms of control and an analytical challenge in terms of measurement. Unless great care is taken, the detection limits f or HCl could easily approach the 0.5 ppm level. Further, when the uncontrolled emission levels of HCl are on the order of 10 to 20 ppm , installing a scrubber for HCl emissions control is an economically infeasible option. In

- duct HCl control by injection o f lime or dolomite may not consistently yield results of HCl levels in the stack below 0.5 ppm . We suggest that the HCl limit be set at a level above the measurement (lab + stack) quantitative limit for HCl and above levels that can be met consistently by injection of
trona or other alkaline absorbents into the flue gas duct streams.
Response: We have discussed the rationale for subcategorization in section II.E of the preamble to the final rule. The HCl emission limits were subcategorized already, and th e calculated emission limits are based on the analysis for the best performing units within the subcategory.20

EPA established the final standards consistent with the requirements of the CAA and sources must determine whether to install controls to comply wi th the final standards, cease combusting solid waste and comply with any otherwise applicable section 112 standards, or cease operations. We further believe that there are controls available that will achieve the final standards.

Commenter Name: Ted Mic haels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA

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Comment: A comparison of the CISWI MACT ERU standards with Boiler MACT standards shows that the CISWI standards are irrational and biased against ERUs that recover renewable energy from biomass wastes. EPA should examine its CISWI MACT standards and identify and resolve irrational outcomes, including the bias against units that recover energy from waste.
A comparison of CISWI MACT ERU emission standards with Boiler MACT standards reveals a clear bias against CISWI ERUs . Consider a stoker

- fired boiler unit burning coal and biomass. Table 1 shows the applicable proposed standards; Boiler MACT standards apply when the unit burns coal or biomass fuel and CISWI ERU MACT standards apply when the unit burns any amount of biomass waste [see submittal for comparison table provided by commenter ]. The table presents emission limits in uniform concentration units which allow direct comparison (see table footnotes). As can be seen CISWI MACT standards are in nearly all cases more stringent, more than 30 times more stringent in the case of hydrogen chloride. 2

These comparisons show EPA’s rules clearly disadvantage units t hat combust biomass wastes to recover renewable energy as compared to those that burn fossil fuel and virgin biomass. Other than CO, which is related to fuel combustion properties, the differences in standards are irrational. MACT standards are based on te chnology, and the technology of the boiler unit in question is identical whether burning fuel biomass or waste biomass. Biomass contaminant levels could be a factor, but if they were the contaminant levels would be expected to be greater in waste than in f

uel 3 and therefore the CISWI MACT limits for a given technology, if different at all, should be higher than Boiler MACT limits since the air pollution control device would typically work on a first order kinetic (percent removal) principle. The obvious co nclusion is that these standards are inconsistent with logical expectations.
EPA should examine these dramatically different standards and revise them to remove the bias against CISWI ERUs . EPA should not blindly apply its methodology to produce standards that are irrational and contrary to sound public policy. EPA cannot say that the law requires individual numerical standards to be more stringent for CISWI units; both Sections 112 and 129 apply the same requirements

-- standards based on the emissions lim itations achieved by the best 12% performers.

[Footnotes:21

2 Even distillate fuel oil combustion generates hydrogen chloride emissions 20 times higher than the proposed CISWI ERU Solids/Biomass limit. (State of Maryland DNR , “Hydrogen Chloride Emissionsfro m Maryland Utility Boilers”, PPRP

- 118 , June 1999.)

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

- waste fuels.]

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

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: To the best of our current knowledge, the Dow energy recovery unit that will be subject to this rule currently and without retrofit can m eet all of the emission standards with the exception of the NO X standard. Although retrofit cost for this unit has not been estimated, manufacturing personnel expect that the cost of retrofitting this unit with NO X control would be very high. The credit re ceived for the steam the unit generates cannot overcome the expected retrofit cost and the long

- term increased operational costs (operation of NO X control, annual performances tests, etc.). It is also unknown if a retrofit would reach the 76 ppmv required level since the unit burns a solid waste that contains organic

- bound nitrogen. Therefore as the emission standards currently stand, the Dow energy recovery unit likely will be forced to shut down.
The manufacturing facility that operates the energy recover y unit also generates the solid waste that is burned in it but will most likely continue to operate and generate the same solid waste that contains organic

- bound nitrogen. Without the energy recovery unit, the solid waste will be diverted to a different ty pe of unit which also has no capability to recover energy. Dow believes that such an outcome is contrary to government policies that encourage energy conservation. It is also troubling that EPA stated in the proposed rule of June 4, 2010, (75 FR 31956) tha t the agency fully expected most CISWI to cease operation under the proposed emission standards. In22

the final CISWI rule, the emission standard for NO X actually decreased from 130 ppmv to 76 ppmv , thereby bearing to fruition EPA’s expectation specifically for Dow’s energy recovery unit.
In particular, with respect to NO X (75 FR 31957; June 4, 2010), EPA described that selective noncatalytic reduction technology is effective in reducing NO X by 30

- 50%, and that further reductions might require changes in comb ustion controls. However, EPA neglects to mention that much published literature admits that such combustion controls can increase carbon monoxide emissions, also a CISWI pollutant. For a unit that happens to burn a solid waste that contains organic

- bound nitrogen, such reductions are dubious at best and may not reach the 76
ppmv level in the March 21, 2011 rule without aggravating carbon monoxide emissions and requiring even more add

- on control.
For example, for a burner to successfully manage an organic

- b ound nitrogen material, the burner must be specifically designed for that purpose. Typically, such burners will combust the fuel in an oxygen starved chamber to minimize the oxygen available for NO X formation. However, this operation leads to very high CO levels. Subsequently, the combustion product is injected with additional air and steam in order to complete the combustion process, but without bound nitrogen and with combustion temperatures low enough to avoid formation of thermal NO X . This operation can not be accomplished by simply modifying burner design but by modifying the entire combustion chamber as well as the air injection points and the control system. It will also require a much larger chamber in order to insure adequate destruction at the reduc ed temperatures. All of these changes would be a significant capital investment, assuming space is available for the additional equipment.
Then to follow the redesigned burner chamber and to fully reach some performance below the 76
ppmv level using select ive, non

- catalytic reduction technology, there has to be sufficient residence time at the appropriate temperature to allow the SNCR chemistry to work. For a small unit such as Dow’s 24 MM BTU/hr unit, there would be insufficient time after the boiler secti on to allow the reaction to complete. The solution is to add stack or an additional chamber to allow time for the chemistry to work, assuming the space is available for an existing unit. These changes would also require a significant capital investment, an d would not really address the elevated CO caused by the burner modification described in the previous paragraph. Ultimately, EPA’s solution in the NO X discussion in the proposed rule is not useful.
Response: EPA established the final standards consistent with the requirements of the CAA and sources must determine whether to install controls to comply with the final standards, cease combusting solid waste and comply with any otherwise applicable section 112 s tandards, or cease operations. The commenter has not demonstrated that the final standards are unachievable, instead focusing on the costs of compliance. CAA 129 requires that the EPA determine minimum standards (i.e. MACT floor limit) for each pollutant without regard for cost . Regarding the inverse relationship between CO and NO X with regard to combustion control, it is incumbent upon the CISWI facility to determine whether combustion conditions can be adjusted to meet both standards and, if not, inst all add

- on NO X controls as necessary.

Commenter Name: Roger Martella Commenter Affiliation: National Alliance of Forest Owners (NAFO)23

Document Control Number: EPA

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Comment: With respect to the remaini ng emissions limits included in the proposed Major Source (and CISWI ) rule, NAFO urges EPA to consider both the necessity of imposing stringent emissions limits on biomass boilers from a public health perspective as well as the impact that expensive control technology will have in discouraging the use of this clean, renewable, and climate

- beneficial energy source. While EPA’s proposed emissions limits represent in some cases an improvement over current standards, they do not go far enough in correct ing the flaws in the current rule.

NAFO supports EPA’s proposal to impose less stringent emissions standards on new biomass boilers. This proposal remains consistent with EPA’s legal obligations under section 112 of the Clean Air Act, while removing comp liance

- based barriers to bioenergy development. With the exception of mercury, which is discussed above, the proposed emissions limits for new boilers represent a marked improvement over current standards and, at a minimum, we urge EPA to adopt these stand ards.
Response: To the extent these comments address the CAA section 112 standards applicable to boilers and process heaters, we need not respond in this document. In this final CISWI action, EPA is establishing standards for solid waste incineration uni ts located at commercial and industrial facilities. EPA must establish standards for units combusting biomass material that is solid waste consistent with CAA section 129, and those standards must reflect the MACT level of control. See CAA section 129 (a ).

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: The biomass CISWI limit f or Cd of 0.00078 mg/ dscm was derived from 3 tests (3 runs each) corresponding to 3 biomass boilers ( CAWheelabratorShasta

, LAIPMansfield

, MEHuberEngineered WoodLLC ). The biomass CISWI limit for Pb of 0.0019 mg/ dscm was also derived from 3 tests (3 runs each ) corresponding to 3 biomass boilers ( ALIPRiverdale

, CAWheelabratorShasta

, MEHuberEngineered WoodLLC ).
Figures 1 and 2 show the levels of Cd and Pb measured in the stack gases of 31 pulp mill boilers (from a total of 33) that were initially deemed to be CI SWI units following the ICR effort [see submittal for graphs containing Cd and Pb emissions data provided by commenter ]. These figures show that the majority of the boilers could not have met the current proposed limits of 0.00078 mg/ dscm for Cd and 0.0019 mg/ dscm for Pb

.
Cd and Pb are HAP metals that are present in the fuel burned in a boiler. As such, their concentrations could vary significantly across all kinds of biomass or NHSM from across the U.S that could be burned in a boiler. The boilers with the lowest Cd or Pb emissions are also the boilers having the lowest levels of Cd or Pb or both in the fuels burned, rather than the highest level of PM emissions control. The addition of a fuel variability factor, similar to that used in the24

Industrial Boile r MACT floor analysis, would help take the effect of fuel pollutant content into account and improve achievability

. Response: CAWheelabratoShasta units were removed from the ERU inventory and MACT floor analyses re

- run for biomass ERUs . The revised limits for Cd and Pb are 0.014 mg/ dscm and 0.0014 mg/ dscm , respectively. Changes to the emission limits for cadmium and lead are discussed in Section II.C. of the preamble to the final rule (“Summary of Significant Changes Since Proposal”). We address the fuel variability issue in the proposed rule and requested specific emissions information if commenters wanted EPA to consider fuel variability. See 76 FR 80462. The commenter has not provided the type of data that would allow the Agency to consider fuel variability in establishing the MACT floors for these pollutants.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: New and modified sources subject to section 165 of the CAA must install “the best available control technology” ( BACT ) for a number of criteria pollutants regulated under the CAA , including, as relevant here, CO, sulfur dioxide (“SO 2 ,”), nitrogen oxide (“NO X ”) and mercury. In the proposed rules EPA is setting limits for certain pollutants based on the application of “the maximum achievable control technology.” There is nothing in the plain text of the CAA or its legisl ative history that suggests that Congress intended MACT , which applies to emissions of highly toxic and carcinogenic pollutants, to be less stringent than BACT , which applies to criteria pollutants. Indeed, for new sources it is clear that Congress inten ded MACT 39 to be at least as stringent as the lowest achievable emission rate (LAER), which is generally recognized as being more stringent than BACT . Regulatory authorities are to consider costs when establishing both BACT and MACT limitations that are more stringent than the MACT floor. There is nothing in the CAA that speaks to how EPA and permitting authorities must weigh costs against other considerations in establishing BACT. However, there has been a substantial body of precedent that speaks to th is issue. In contrast, in establishing a requirement for a MACT floor, Congress effectively set a floor on what should be considered reasonable costs for MACT control technologies. Since MACT may be no less stringent than the performance level of the best

- performing 12 percent, the costs to those sources of achieving that level of performance (including the worst

- performing unit within a subcategory) must be within what was considered to be appropriate for MACT sources in that subcategory. This is of partic ular relevance to the set of rules under consideration, where the cost of control for similarly situated units is essentially the same but the calculated MACT floors are substantially different. In its MACT determinations EPA needs to explain how an emis sion limit imposed for a unit subject to section 129 (and therefore presumably meeting the reasonable cost test for MACT) is not reasonable for an identical unit subject to section 112. If the PM and mercury limits remain roughly as proposed for existing sources, 40 few sources will desire to be regulated under section 129. Most sources will argue that they get a "meaningful" contribution to the overall combustion process from what they burn. This will increase the level of disagreement over whether a
mat erial is a waste and may result in fewer sources burning waste materials. Some sources (with low CO levels) might find it in their interests to assert that they are incinerators rather than25

energy recovery units. Thus, the definitions of "solid waste" and "incinerator" may matter to a number of sources.

[Footnotes:
39 The MACT floor definition is essentially the same as the definition of LAER, which applies to new and modified sources in nonattainment areas.

40 NOx and SO2 limitations under section 129 ma y also discourage combustion of solid waste. This issue can be addressed by EPA when it adopts emission limitations for large industrial units under Phase II of its Transport Rules.]
Response: We have subcategorized units to the extent we determined app ropriate within the CISWI population, to reflect similar design considerations as subcategories for non

- CISWI units. In addition, the fact that certain solid waste incineration units are similar to units regulated pursuant to section 112 does not authorize EPA to set similar or the same existing source standards for such units under CAA section 112 and section 129. With respect to cost, although EPA is required to consider cost when evaluating whether standards should be more stringent than the MACT floors, EPA is prohibited from considering costs when determining the MACT floor emission limits. The MACT floor limits are based solely on actual test data from the best performing units within each subcategory for each pollutant. The commenter’s assertions that the CISWI limits are somehow flawed if they do not meet or exceed BACT or LAER limits applicable to criteria pollutants is without merit.

Commenter Name: Vickie Woods, Administrative Assistant Commenter Affiliation: NC Division of Air Quality (NC DAQ), North Carolina Department of Environment and Natural Resources (NCDENR) Document Control Number: EPA

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

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



### 2B04. ERUs Designed to Burn Non

- Coal Solid Materials

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: The definitions of coal and biomass ERU subcategories should be revised. EPA should reconcile the definitions of units designed to burn coal in Boiler MACT and CISWI . In the preambles to both the Boiler MACT and CISWI rules, EPA recog nizes and discusses that boilers and energy recovery units may switch back and forth between Boiler MACT and CISWI as a result of waste to

- non

- waste fuel or non

- waste

- fuel

- to

- waste switches. 76 Fed. Reg . 80501, 80655. Being able to switch between CISWI a nd Boiler MACT will help provide sources with flexibility in their selection of materials they chose to combust for energy recovery. In the reconsideration proposals for Boiler MACT and CISWI EPA provides definitions for units designed to burn coal and un its designed to burn biomass. However the definitions differ substantially and will create confusion and lead to achievability issues if multi

- fuel units are treated as biomass units under one rule and coal units under the other. In the CISWI reconsiderat ion proposal, EPA defines energy recovery units designed to burn coal and energy recovery units designed to burn biomass at §60.2265 (76 Fed. Reg . 80501) and §60.2875 as follows (76 Fed. Reg . 80521):
Energy recovery unit designed to burn biomass (Biomass ) means an energy recovery unit that burns solid waste, biomass, and non

- coal solid materials but less than 10 percent coal, on a heat input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuels.
Energ y 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.

The C ISWI definitions differ from the definitions in Boiler MACT at §63.7575 (76 Fed. Reg .80650):
Unit designed to burn biomass/ biobased solid subcategory includes any boiler or process heater that burns at least 10 percent biomass or bio

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

- based solids on an annual heat input basis.
Therefore, a combination unit burning equal amounts of coal and biomass would be regulated as a biomass boiler under the Boiler MACT but would be regulated as a coal ERU under the CISWI rules if it also burned some solid waste. A combination unit burning significant amounts of biomass but more than 10 per cent coal will not be able to comply with CISWI CO emission limits set using data for coal units. Conversely, a unit burning TDF would be regulated as a coal unit under Boiler MACT but would be regulated as a biomass unit under the CISWI rules if it also b urned some solid waste. A unit burning TDF will not be able to comply with CISWI 7.3 ppm SO 2 limit set based on biomass units. Units that are categorized as biomass units under Boiler MACT need to be considered biomass units under CISWI , and units that are categorized as coal units under Boiler MACT need to be considered coal units under CISWI . Therefore, we propose the following revised definitions under the CISWI rule:27

Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that burns solid waste, biomass, and non

- fossil solid materials on a heat input basis on an annual average, either alone or in combination with coal or other solid fossil fuel, liquid waste, liquid fuel, or gaseous fuels.

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that burns solid waste and at least 10 percent coal or other solid fossil fuel on a heat input basis on an annual average, either alone or in combination with liquid waste, liq uid fuel or gaseous fuels, or less than 10 percent biomass and bio

- based solids on an annual heat input basis. EPA should also provide definitions in the CISWI rules for “biomass” and “solid fossil fuel” that are the same as those definitions in the Boi ler MACT

. Response: As we discuss in the March 2011 rule (76 FR 15733), we were aware that some ERUs burn a combination of fuel types, but ERUs are designed based on the primary fuel type and can encounter operational problems if another fuel type that w as not considered in its design is fired at more than 10 percent of the heat input of the unit. We therefore subcategorized units that burn at least 10 percent coal as being in the solid fuel/coal subcategory, with the remainder of the units being in the b iomass subcategory for ERUs. We have finalized the definition of energy recovery unit designed to burn coal as proposed and in the March 2011 rule. We have revised the definition for energy recovery unit designed to burn biomass to clarify that these units combust waste, biomass, and non

- coal solid materials, but this is a clarification and does not affect our rationale and intent of our ERU subcategories. The definition in the final rule is as follows:

Energy recovery unit designed to burn biomass (Biomass ) means an energy recovery unit that burns solid waste, biomass, and non

- coal solid materials but less than 10 percent coal, on a heat input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuels.

The rat ionale for subcategories of boiler units may be found in the regulatory record for the Boiler NESHAP Docket #OAR

- 2002

- 0058.

The commenter is correct that sources are allowed to switch fuels and therefore switch between Boiler NESHAP and CISWI applicabilit y if the unit combusts solid wastes or not. We require that sources provide, in their notification of a waste

- to

- fuel switch, the currently applicable subcategory under CISWI, and any 40 CFR part 63 subpart and subcategory that will be applicable after th e CISWI unit ceases combusting solid waste ( § 60.2145(a) and § 60.2710(a)). This measure ensures that there is no confusion or misunderstanding between regulated entities and implementing agencies as to which regulatory requirements apply to units before an d after a
waste

- to

- fuel switch.

We disagree with the commenter’s position that the subcategories must be the same for the two rules. CAA sections 112 and 129 are distinct statutory provisions with differing requirements. While both require MACT standards for regulated pollutants, section 112 requires regulation of HAP emissions while section 129 requires numerical emission limits for a combination of 9 identified HAP and criteria pollutant emissions. See CAA section 129(a)(4). Section 129(a)(2) authoriz es EPA to subcategorize sources within a source category based on a difference in class,28

type, or size of units (similar to section 112(d)(1). The language of both provisions is broad and provides EPA with considerable discretion to decide whether and ho w to subcategorize sources within a source category. The EPA maintains that, normally, a difference in class, type, or size must also be related to an effect on the regulated pollutant that results from that difference in the units before subcategorizatio n is appropriate. See 76 FR 25036

- 25037. Therefore, when evaluating whether to establish subcategories, and how to do so, EPA looks to the information and other emissions data in the record. For CISWI, EPA determined that the data supported the subcateg ories that were established, and we have no data that suggests the standards are unachievable for sources in the subcategories. The Agency made a similar evaluation of the data in the record when establishing subcategories for the NESHAP applicable to ind ustrial boilers.
A key difference in these two rulemakings is that each section of the Act requires EPA to establish emissions standards for different pollutants. Specifically, EPA must establish emission limits for NOx and SO 2 under section 129, but is n ot required to do so under section 112. In addition, EPA must set numeric emissions limits for CO and dioxins and furans in the CISWI rule, but, under the boiler NESHAP, CO is regulated only as a surrogate for organic HAP emissions. Thus, in CISWI, EPA must consider emissions data for CO, NOx and SO 2 , along with emissions data for six other pollutants, when determining which subcategories to establish in the rulemaking . Certain pollutants for which standards are not established under the NESHAP (i.e. N Ox and SO 2 ) may affect the subcategorization approach the Agency adopts. For example, as certain commenters noted, the inter

- relationship between CO and NOx, where controls used to reduce CO emissions could inversely impact NOx, must be considered when establishing subcategories for CISWI units because EPA must establish a numeric emissions limit for each pollutant. In the CISWI record, data show that CO for coal ERUs averages around 60 ppm, with a NOx average of about 307 ppm. For ERU biomass units, h owever, the best performers have CO emission concentrations in the 150 ppm range, with NOx values around 100 ppm. In addition, EPA must consider SO 2 emissions when establishing subcategories for ERUs. Sulfur dioxide formation in an ERU is dependent upon the level of sulfur in the fuel. Units designed to burn coal generally have far greater emissions of sulfur than units designed to burn biomass, and those emissions must be considered in establishing the CISWI standards. In the final rule, biomass ERUs a re subject to a SO 2 limit of 7.3 ppmv and coal ERUs are subject to a SO 2 limit of 650 ppmv. In sum, EPA considered all the available data in establishing the CISWI subcategory definitions, and the data show that the sources in the different subcategories have different emissions characteristics that, when coupled with the differences in unit types, support the CISWI subcategories.
We also disagree that units will not be able to achieve certain CISWI standards if they move from the industrial boiler NESHAP to CISWI applicability due to a change in fuels and the commenters have provided no data to support their claim to the contrary. Operators will have to evaluate the implications of a switch in fuels that causes a source to change applicability between the industrial boiler NESHAP and the CISWI rule, but that would have been the case even if the subcategorization schemes in the two rules aligned perfectly. If, as the commenter suggests, an operator determines that a change in applicability will cause a sou rce to be out of compliance with the newly applicable standard, the operator will have to adjust the inputs to assure compliance. Such a result is not unreasonable as the commenter suggest. Conversely, it would arguably be unreasonable for EPA to establi sh subcategories that are identical when the data in the relevant records do not support such an approach.29

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Co ntrol Number: EPA

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Comment: Definitions of Coal and Biomass ERU Subcategories Should Be Revised
EPA should reconcile the definitions of units designed to burn coal in Boiler MACT and CISWI

. In the prea mble to both the Boiler MACT and CISWI rules, EPA recognizes and discusses that boilers and energy recovery units maybe switching back and forth between Boiler MACT and CISWI as a result of waste

- to

- non

- waste fuel or non

- waste

- fuel

- to

- waste switches. Being able to switch between CISWI and Boiler MACT will help provide sources with flexibility in their selection of materials they chose to combust for energy recovery.
In the reconsideration proposals for Boiler MACT and CISWI , EPA provides definitions for units designed to burn coal and units designed to burn biomass. However, the definitions differ substantially and will create confusion and lead to achievability issues if multi

- fuel units are treated as biomass units under one rule and coal units under the o ther.

In the CISWI reconsideration proposal, EPA defines energy recovery units designed to burn coal and energy recovery units designed to burn biomass at §60.2265 and §60.2875 as follows:
“Energy recovery unit designed to burn biomass (Biomass) means an e nergy 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 uni t 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.”

The CISWI definiti ons differ from the definitions in Boiler MACT at §63.7575:
“Unit designed to burn biomass/ biobased solid subcategory includes any boiler or process heater that burns at least 10 percent biomass or bio

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

- based solids on an annual heat input basis.”
Therefore, a combination unit burning equal amounts of coal and biomass would be reg ulated as a biomass boiler under the Boiler MACT , but would be regulated as a coal ERU under the CISWI rules if it also burned some solid waste. A combination unit burning significant amounts of biomass but more than 10 percent coal will not be able to com ply with CISWI CO emission limits set using data for coal units. Conversely, a unit burning TDF would be regulated as a coal unit under Boiler MACT , but would be regulated as a biomass unit under the CISWI rules if it also burned some solid waste. A unit burning TDF will not be able to comply with CISWI 7.330

ppm SO 2 limit set based on biomass units. Units that are categorized as biomass units under Boiler MACT need to be considered biomass units under CISWI

, and units that are categorized as coal units under Boiler MACT need to be considered coal units under CISWI

. We propose the following revised definitions under the CISWI rule:
Energy recovery unit designed to burn biomass (Biomass) means an energy recover y unit that burns solid waste and at least 10 percent biomass and non

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

- fossil solid materials on an annual heat input basis.
EPA should also provide definitions in the CISWI rules for “biomass” and “solid fossil fuel” that are the same as those definitions in the Boiler MACT

. Response : Please refer to the response to comment EPA

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Commenter Name: Annabeth Reitter Commenter Affiliation: NewPage Corporation Document Control Number: EPA

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Comment: In the reconsideration proposals for Boiler MACT and CISWI EPA provides definitions for units designed to burn coal. However the definitions differ substantially and will create confusion and lead to achievability issues if multi

- fuel units are treated as coal units under one rule and as biomass units under the other. In the CIS WI reconsideration proposal, EPA defines an Energy recovery unit designed to bum coal at §60.2265 and §60.2875 as follows:
Energy recovery unit designed to burn coal (Coal) means a n energy recovery unit that bums 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. This CIS WI definition differs from the definition of a unit designed to bum coal in Boiler MACT at §63.7575:
Unit designed to burn coal/solid fossil fuel subcategory includes any boiler or process heater that bums any coal or other solid fossil fuel alone or at least 10 percent coal or other solid fossil fuel on an annual heat input basis in combination with liquid fuels, gaseous fuels, or less than 10 percent biomass and bio

- based solids on an annual heat input basis. In the Boiler MACT reconsideration proposal (Industrial, Commercial, and Institutional Boilers and Process Heaters; 76 Fed. Reg . 80598, December 23, 2012) definition of a unit designed to bum coal EPA uses the phrase "10 percent coal or other solid fossil fuel". NewPage r equests EPA revise the CISWI definition for an Energy recovery unit designed to bum coal to also include the phrase "10 percent coal or other solid fossil fuel". As a result the CISWI definition is revised as follows to incorporate the bolded language:31

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that bums solid waste and at least 10 percent coal or other solid fossil fuel on a heat input basis on an annual average, either alone or in combination with liquid waste, li quid fuel or gaseous fuels. NewPage is requesting this revision so that EPA does not create situations where a multi

- fuel unit is considered to be a "coal" unit under Boiler MACT but then decides to bum a solid "waste" material and finds it is not a "co al" unit under CISWI but is a "biomass" unit. For instance, on an annual heat input basis a unit is burning 8% coal and greater then 3 %of other solid fossil fuel (such as TDF ) and less than 10% of clean biomass material. Under Boiler MACT this unit woul d be considered to be a coal unit. Once this unit begins to combust the solid "waste" material and continues to bum 8% coal and greater than 3% other solid fossil fuel and biomass, under CISWI this unit would be considered to be a biomass unit because i t is not burning at least 10% coal. A unit burning coal and other solid fossil fuels such as TDF will not be able to comply with the CIS WI subpart DDDD biomass energy recovery unit S02 emission standard of7.3 ppmdv. The definition of a coal unit under CIS WI should be revised to include the phrase "1 0 percent coal or other solid fossil fuel" so units that are categorized as coal units under Boiler MACT will be considered coal units under CISWI. In the CIS WI rules, EPA should also provide definition s for "biomass" and "solid fossil fuel" that are the same as those definitions in the Boiler MACT

. Response: Please refer to the response to comment EPA

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Commenter Name: Stuart A. Clark Commenter Affiliation: State of Wa shington Department of Ecology Document Control Number: EPA

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- A2 Comment Excerpt Number: 4

Comment: We are pleased that EPA proposed to segregate coal fired energy recovery units from other non

- hazardous waste, biomass based energy recovery units under the CISWI rule. This segregation will provide much more appropriate alignment of hazardous air pollutant emission limits with the type of fuel.
Response: We and are finalizing separate emission limits for all pollutants for coal fired ERUs and biomass burning ERUs

.



### 2C01. Waste

- Burning Kiln Inventory

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc. Document Control Number: EPA

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Comment: Prior to the final NHSM and CISWI rules promulgated on March 21, 2011, in the summer of 2009, EPA OAQPS submitted ICR (information collection request) letters to various cement kiln operators/owners, including units determined by EPA

- OAQPS to be waste

- burning kilns. The informat ion that was requested was split between two separate "Phases". The Phase 132

information request asked for details of the facility, which included information on the fuels burned in the kiln, including any materials burned that may be considered "solid wast e". EPA

OAQPS based their determination of CISWI units on the Advanced Noticed of Proposed Rulemaking ( ANPR ) defining solid waste under RCRA . This ANPR under RCRA was presumably through EPA

- OSWER . Note that the ANPR definition of solid waste has changed i n the final NHSM rule. For example, tires (whole or chipped) were expected to be solid waste in the ANPR but the current NHSM rule allows tires to be non

- waste fuel. EPA

- OSWER has developed specific criteria to identify secondary materials that are not sol id waste (see 40 CFR 241).
The Phase II information was for information that included required stack testing to develop emissions data for each kiln system in the Phase II request. The request implied that some kiln systems receiving the request were consi dered a "waste

- burning kiln" and required kiln operators to conduct specific air emissions testing using EPA

- OAQPS methods. However, the ICR did not specify that the operator must burn a specific type of fuel or secondary material while conducting the requ ired tests even though it was these fuels and/or secondary materials that identified the kilns as a CISWI unit. Additionally, the letter did not place any requirements on the operator, or provide any guidance of conditions related to the input of the mater ials/fuels while testing (e.g., fuel/feed input rates, material/fuel blending limitations, input location (front or back end on kiln), operating temperatures, pre

- testing input conditions, etc). In addition to the Phase II request, review of questions from operators and stack testing companies that were submitted to EPA

OAQPS in response to Phase II testing requests, it is apparent that the EPA

- OAQPS did not require emissions testing be conducted while burning a specific type or amount of secondary material or "solid waste". Understandably, EPA

- OAQPS did not have a final NHSM rule to guide such a request. The testing information that was gathered from each facility during Phase II was then compiled on the EPA's website 4

. Ultimately, the information from the Phase I and Phase II was used by EPA

- OAQPS to determine the CISWI MACT floor. Per requirements of the Clean Air Act, the emissions data were ranked. The EPA ranked within subcategories {e.g., waste

- burning kilns, incinerators, etc.} from lowest emissions t o highest emission and then the numerical average of the emissions data from the best performing 12 percent of sources was determined. For example, the final ranking for particulate matter emissions from "waste

- burning" kilns is as follows: [See submittal for table provided by commenter.]
The three highlighted facilities, as highlighted in yellow, produced the lowest emissions and were among the best performing 12 percent of the sources. Data from these kilns were then utilized to determine the CISWI MACT f loor value (for existing kilns, 9.2 mg/ dscm @ 7% O2).

In review of the data, it was discovered that the EPA

- OAQPS used emissions data to compile the rankings and determine the CISWI MACT floor that were from kilns that are specifically identified in the EP A docket to have only burned fuels that are clearly defined as traditional fuels (40 CFR 241

– both versions, March 21, 2011 and proposed revisions, December 23, 2011) during the test period. This includes fuels such as coal, pet coke and natural gas and n ot fuels that are identified as solid waste.
Specific examples of such occurrences include:33

TXAshGroveMidlothian

- Kiln 3, tested on August 15, 1996 and burned coal and coke

TXAshGroveMidlothian

- Kiln 1, tested on July 1, 2003 and burned bituminous coal, pe troleum coke and whole tires

FLCemexMiami , tested on August 7, 2009 and burned coal
Consequently, the emissions data from some kilns that were burning only traditional fuels were used by EPA

- OAQPS to determine the CISWI MACT floor, which is for waste

- burning kilns. These emissions data are clearly not applicable for determining the CISWI MACT floor.

[Footnotes]
(2) See D.C. Court decision 12/9/2011, page 10, reference to

- "raised with reasonable specificity during the period for public comment." 42 U.S.c. § 7607(d)(7)(B).5
(4) http://www.epa.gov/ ttn / atw /129/ ciwi

/ciwipg.html. CISWI Reconsideration Proposal Technical Support Documents, Dec 2011 Raw Facility Data
Response: EPA established the CISWI standards based on data that was generated by sources that we determined based on all available information are solid waste incineration units, i.e. units that burn solid waste as that term is defined pursuant to RCRA. EPA removed from the CISWI inventory any units that we determined , based on information obtained or identified since proposal, are not solid waste incineration units; and we added units that we determined are solid waste incineration units. We have not revised the inventory based on the commenter's preliminary assessmen t that the secondary materials combusted in these units meet the non

- waste fuel criteria of the final NHSM rule. We have, however, removed the one test for the FLCemex facility where it appears that only coal has been combusted from our emission limit calc ulations. Except during this particular test, this facility appears to combust solid waste materials, so the unit and other test data for this unit remain in the CISWI database. Furthermore, EPA does not agree that the data generated by a solid waste inci neration unit is invalid if no solid waste was combusted during the test. We have acknowledged in this rulemaking that units in the ERU and waste burning kilns subcategories may start and stop combusting solid waste, and we have accounted for that fact by including in the definition of CISWI unit a requirement that units remain subject to CISWI for 6 months after adding solid waste to the combustion unit. The rule does not require that waste be burned at all times and we understand that units will often o perate without any solid waste inputs.

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc. Document Control Number: EPA

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Comment: Potential mis

- identifications (per 40 CFR 241) apply to all the units the EPA

OAQPS used to determine the MACT floor for CISWI , Portland Cement NESHAP , and the Boiler MACT because all of the emission limits were determined from pools of emissions units that may or may not burn secondary materials that are identified as solid waste per 40 CFR 241.34

These few examples are not the only cases in question, however it should not be the burden of the public to determine whether any or all of the emissions data that were used to determine the CISWI MACT floor w ere from units that were burning materials identified as solid waste per 40 CFR 241.
Response: EPA established the CISWI standards based on data that was generated by sources that we determined based on all available information are solid waste incinerati on units, i.e. units that burn solid waste as that term is defined pursuant to RCRA. EPA removed from the CISWI inventory any units that we determined, based on information obtained or identified since proposal, are not solid waste incineration units; and we added units that we determined are solid waste incineration units.
The commenter is incorrect that the Agency cannot rely on the information provided by the regulated community in response to the CISWI ICR. EPA used that industry provided informatio n to determine whether sources are solid waste incineration units and in establishing the standards, and, if the submitter provided incorrect or incomplete information, it was their responsibility to correct that information during the comment period. In this case, where the ICR was several years ago, the industry submitters have no basis to complain for failing to correct incorrect or incomplete submissions.

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc. Document Control Nu mber: EPA

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Comment: The emissions data used in the MACT floor of kilns that burned materials that presumably were identified as solid waste by EPA

- OAQPS (e.g., plastics, seed corn) may be not be solid waste per 40 CFR 241.
Response: EPA established the CISWI standards based on data that was generated by sources that we determined based on all available information are solid waste incineration units, i.e. units that burn solid waste as that term is defined p ursuant to RCRA. EPA removed from the CISWI inventory any units that we determined, based on information obtained or identified since proposal, are not solid waste incineration units; and we added units that we determined are solid waste incineration unit s.

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc. Document Control Number: EPA

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Comment: The docket information is clearly missing a detailed evaluation of the methodology that was applied by EPA

- OAQPS to determine which kilns were supposedly waste

- burning kilns and what materials constituted NHSM . A memo dated April 25, 2011 from Keith Barn ett with EPA

- OAQPS to the Portland Cement Project Team, entitled "Revised Floors without Kilns that35

Would have been CISWI Kilns Had the Solid Waste Definition Applied" briefly discusses that EPA has made determinations based on the proposed NHSM rule but does not specify how these determinations were made. This commenter believes that EPA

- OAQPS inaccurately identified kilns to be "waste

- burning kilns" at the time of requiring information and testing in 2009 and subsequently during determination o f the CISWI MACT floor. After EPA

- OAQPS gathered the testing data required by the ICR in 2009, EPA

- OSWER developed the NHSM rule which was eventually published March 21, 2011. The criteria applied by EPA

- OAQPS to identify kilns as
waste

- burning kilns does not appear to be the same criteria as that of the NHSM rule which was developed separately by EPA

- OSWER . Given that EPA

- OAQPS could not have known how the

EPA RCRA group would define "solid waste," the kilns used to determine the CISWI MACT floor are very likley not applicable. Effectively the emissions data used to determine the MACT floor are incorrect if the data applied were not from waste

- burning kilns. EPA cannot enforce rules using inapplicable data. It appears that the EPA divisions of OAQPS and RCR A have made separate determinations of "solid waste" that do not coincide.
The recent D.C. Court of Appeals decision on December 9, 2011 states relevant comments:
Because EPA did not yet know what shape the CISWI rule would take, however, EPA said it would continue to assume no kilns were CISWI sources "until the solid waste definition

. . . is promulgated." 74 Fed. Reg

. 21,136, 21,138 (May 6, 2009). These statements left open a couple of possibilities. First, the re

- sorting of some kilns into CISWI was, wh ile likely, not inevitable. Id. ("EPA therefore cannot reliably determine at this time if the secondary materials combusted by cement kilns are to be classified as solid wastes."); see also Office of Air Quality Planning and Standards, Development of the M ACT Floors for the Proposed NESHAP for Portland Cement 4 (Apr. 15, 2009) ("Pending the outcome of other rule makings, there is a possibility that some of the kilns currently in the Portland Cement NESHAP source category will at some point become subject to the [CI

SWI ] regulation, and thus no longer subject to this regulation.") (emphasesadded). Second, EPA's conditional language

- "until the solid waste definition . . . is promulgated

- suggested that, should any kilns ultimately fall under the CISWI definitio n, EPA would adjust the NESHAP rule accordingly. In none of EPA's proposals, final rules, or briefs in this Court has EPA attempted to defend the principle that, in the face of a final and promulgated CISWI definition, data from CISWI kilns could now be co nsidered in setting NESHAP standards. And rightly so: it would certainly be arbitrary, as well as a violation of the CAA itself, for EPA to set one standard based on data already placed in another source category in light of the mutual exclusivity of the s tandards themselves. See North Carolina v. EPA, 531 F.3d 896, 930 (O.c. Cir. 2008) (noting that it is "entirely arbitrary" to base standards on "irrelevant factors#); 42 U.S.c. § 7412 (d)(l), (d)(3) (requiring EPA to set NESHAP standards based on emissions reductions achieved by similar sources within the same NESHAP category).
Basing its decision on a premise the agency itself has already planned to disrupt is arbitrary and capricious. Reasoned decision making requires an agenc y to "examine the relevant data and articulate a satisfactory explanation for its action[ sj . Motor Vehicles Mfrs

. Ass'n v. State Farm Mut . Auto. Ins. Co., 463 U.S. 29, 43 (1983). The impending definition of an undeniably related source category is clearly a "relevant factor[] or an "important aspect of the problem that must be considered. Id. Indeed, EPA stated as much in its proposed rule, describing the CISWI rulemaking as "relevant to the NESHAP proceeding. 74 Fed. Reg . 21,136,21,138 (May 6,2009).36

[Foot notes]
(5) (D.C. court case decision) Case No. 10

- 1358
Response: EPA established the CISWI standards based on data that was generated by sources that we determined based on all available information, including the NHSM rule, are solid waste incineration u nits, i.e. units that burn solid waste as that term is defined pursuant to RCRA. EPA removed from the CISWI inventory any units that we determined, based on information obtained or identified since proposal, are not solid waste incineration units; and we added units that we determined are solid waste incineration units. We do not agree with the commenter that we have misidentified units in the CISWI inventory based on the information available to the Agency, and we have not received information demonstrat ing that the current inventory is incorrect.

The commenter is also incorrect in its reliance on the D.C. Circuits decision in its review of the Portland cement NESHAP. In that case, the Agency determined that all kilns should be classified as non

- waste burning kilns until the Agency issued the final rule NHSM rule. The Agency did not assume any units were CISWI kilns, instead, as stated above, the Agency used the information provided by industry to determine whether the kilns combust waste as the term i s defined in the NHSM rule. Only those kilns that were determined to combust solid waste as defined were included in the CISWI database.

Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc. Document Control Number: EPA

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Comment: We find it necessary that:
1) EPA identify what secondary materials these kilns (at a minimum) combusted or input to the systems that identified them as "waste

- burning kilns" during the specific air emission s testing applied to the CISWI MACT floor,
2) EPA apply the criteria of the NHSM rule (i.e., criteria of processing and applicability of the legitimacy criteria per 40 CFR 241) and ensure that these kilns were "waste

- burning" at the time of the air emissi ons data that is used for the CISWI MACT floor.
3) EPA make these determinations of these secondary materials in accordance with the currently applicable 40 CFR 241 rule (issued March 21, 2011). If 40 CFR 241 is modified by this current proposed revision, EPA must re

- address these determinations for the secondary materials these 3 kilns (at a minimum) combusted or input to the systems that identified them as "waste

- burning kilns" during the specific air emissions test data applied to the CISWI MACT floor,

4 ) these determinations must remain valid for as long as these CISWI emission limits are based on the current MACT floor analysis, and
5) EPA make these determinations in items 1

- 4 above for other "waste" burning units for which CISWI MACT floor determinat ions have been completed. These determinations may impact other MACT floors which should be accordingly revised.37

6) Alternatively, in 2000 EPA correctly determined that if materials resulting from commercial or industrial activities are used for energy rec overy, then the CISWI rules are not triggered.
Consistent with the 2000 version of the CISWI rules, EPA should simply clarify that materials used for energy recovery are not waste.

Response: We do not agree with the commenter that these actions must be t aken and, as noted above, we identified the CISWI kilns based on the best information available and we do not have data that clearly demonstrates that any of the units we identified as waste

- burning kilns are not in fact waste burning kilns. Under the fin al rule, a unit is a CISWI unit if it combusted solid waste within the previous 6 months, thus, we do not agree that units must be combusting waste at the time of the testing in order for the unit to be considered a solid waste incineration unit. Therefor e, all data from units that are waste burning kilns as defined in the regulations are valid for purposes of establishing the CISWI standards.

Finally, the commenter’s assertion that EPA should maintain the 2000 CISWI rule exemption for
energy recovery un its is in direct conflict with NRDC v. EPA , 489 F.3d 1250, 1257

- 58 (D.C. Cir. 2004) (rejecting EPA’s CISWI definitions rule exempting energy recovery units burning solid waste under Chevron step 1 because CAA section 129 defines solid waste incineration un it to include any unit burning any solid waste, subject to 4 specific statutory exemptions). To the extent the commenter is suggesting that we define under RCRA materials that are used for energy recovery as non

- waste, that issue is addressed in the conte xt of the NHSM rule, not CISWI.



### 2C02. Waste

- Burning Kiln Pollutants subcategorized

Commenter Name: Michael D. Stevens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA

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C omment: National Cement supports EPA's proposal to create a subcategory for long kilns for the CO emissions limitation, as this recognizes the inherent differences between the combustion conditions and resulting emissions of the long and short kilns.
Resp onse: EPA has included separate CO emission limits for long kilns and preheater/ precalciner kilns in the final rule.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: PCA endorses the subcategory for CO for long kilns: PCA supports EPA's proposal to create a subcategory for long kilns for the CO emissions limitation, as this recognizes the38

inherent differences between the combustion conditions and resulting emissions of the long and short kilns.
Response: EPA has included separate CO emission limits for long kilns and preheater/ precalciner kilns in the final rule.

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA

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Comment: We note that the limits proposed for CISWI cement kilns are very close to those established in the Portland Cement MA CT rule. Universal has recently completed the arduous process of permitting a new cement plant including Portland Cement MACT limits and conditions, and have witnessed the almost paralyzing effect that complexity and continuous change has on the permitting process. We respectfully question the need for further subcategorization of cement kilns. The additional CISWI subcategory increases complexity and uncertainty while achieving no improvement in environmental stewardship. We suggest that a better approach would be to return cement kilns that use solid waste fuels to regulation under Portland Cement MACT

. Response: The CAA requires EPA to set standards for solid waste incineration units, as that term is defined under RCRA, and EPA may not subject solid wast e incineration units to standards issued pursuant to section 112. See CAA section 129(h)(2); see also NRDC v. EPA
, 489 F.3d 1250, 1257

- 58 (D.C. Cir. 2004) (rejecting EPA’s CISWI definitions rule exempting energy recovery units burning solid waste under Che vron step 1 because CAA section 129 defines solid waste incineration unit to include any unit burning any solid waste, subject to 4 specific statutory exemptions). Therefore, EPA may not regulate kilns combusting solid waste under CAA section 112.



### 2C03. W aste

- Burning Kiln emission limits

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA

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Comment: 60.2145(j)(3) indicates that the demonstration of initial compliance with the mercury limit be performed while the raw mill is on and while it is off. In Table 7 to Subpart CCCC of Part 60 the mercury limit is stated as a 30 day hourly rolling average. It is not clear that these requirem ents are congruent.
It is our understanding that the 30 day hourly rolling average limit for mercury is a health based limit that also takes into account the natural fluctuations of mercury emissions when the raw mill is shut down. Applying this limit to a shorter time period while the raw mill is down is not39

appropriate and is not supported by the data used to set the limit. EPA should make clear that the limit is not to be imposed on a specific mode of operation, but rather on the 30 day period.

Response: The initial test will be run over a 30 day period and will result in an average of the running total over the 30 day period. During this time, we expect that the raw mill will be off at least once. Therefore, we have revised the language in 60.2145(j)(3 ) and 60.2710(j)(3) to read as follows:

(3) The owner or operator of a waste

- burning kiln must 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 including at least one period when the raw mill is off.

We note that commenter is not correct in its assertion that the limit for mercury is a health based limit. The MACT standards promulgated in the final CISWI rule are technology based standards. EPA will conside rs residual risk for CISWI units consistent with CAA section 129(h)(3).

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: PCA sup ports the equation for Particulate Matter in a related NESHAP Rulemaking : PCA supports flexibility in laying out an equation for the PM standard under Sec. 129. In the context of the NESHAP rulemaking, stakeholders and EPA discussed the equation used to

c ompute a site

- specific PM emission limit for those facilities that commingle cooler and kiln gases. At issue was how to modify the equation to address those facilities that also commingle other (primarily coal mill) gases with cooler and kilns gases. EPA agreed that it makes sense to modify the equation to account for PM contributions from all sources contributing to particulate matter kiln emissions. PCA recommends that the equations below also be employed in the CISWI rule for waste burning kilns. PCA believes the flexibility proposed for NESHAP should also apply to CISWI

. PM alt = 0.004 x 1.65 x Qs /7000 ( Eq . I)
PM alt= 0.004 x 1.65 x ( Qs + Qb )/7000 ( Eq . 2)
Where: 0.004 is the PM exhaust concentration ( gr / dscf ) equivalent to 0.04 lb per ton clink er where clinker cooler and kiln exhaust gas are not combined.
1.65 is the conversion factor of lb feed per lb clinker
Qs = Qk + Qc + Qm + Qb (inputs to the equation based on plant's gas flow configuration vented to the main kiln stack, reflecting maximum kiln production)
Qb is the exhaust flow from an alkali bypass stack ( dscf /ton raw feed)
Qk is the exhaust flow of the kiln ( dscf /ton raw fee d)40

Qc is the exhaust flow of the clinker cooler ( dscf /ton raw feed)
Qm is the exhaust flow of the coal mill ( dscf /ton raw feed).
Equation 2 would be used by those plants equipped with a separate alkali bypass stack.
Response: We are not including the comm enter’s suggested equations in the final rule. However, we do want to clarify that an alkali bypass stack that vents to the atmosphere is considered a CISWI unit vent and, as specified in 60.2105(a) and 60.2760(a), must meet the emission limitations for t he CISWI unit. To the extent the commenter believes that this alternative protocol is appropriate, the commenter can seek an alternative method pursuant to 40 CFR 60.8.

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Con trol Number: EPA

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Comment: EPA granted reconsideration and approval to PC MACT as it related to PM, the NSPS for PM as applied to modified sources, and the alternative PM compliance alternative for

sourc es that commingle certain internal exhaust gas streams. Reference B.6 excerpt (below) from the May 17, 2011 Federal Register, page 28325:
"6. Alternative PM Limit. Some kilns combine kiln exhaust gas with exhaust gas from other unit operations, including t he clinker cooler. See 75 FR at 54988. The final cement NESHAPS seeks to accommodate these situations by providing for a site specific PM limit for commingled flows from the kiln and clinker cooler. Section 63.1343(b)(2). PCA points out, however, that othe r flows can be commingled as well. PCA Petition Exhibit 1 (referring to coal mill exhaust and exhaust from an alkali by

- pass as instances of additional flows). Without an allowance for these additional flows, the site specific PM limit could be stricter th an EPA intended (since the PM concentration will be divided by a lower number in the implementing equation), and could penalize the environmentally beneficial practice of commingling these flows, a practice resulting in significant energy savings. 75 FR at 54988. The EPA therefore grants reconsideration on this issue."
Request: There is no operational difference between a kiln burning solid waste under CISWI or PC MACT . We believe this omission of commingled gas streams is one of an oversight by EPA and req uest the same site specific calculation accounting for commingled flows (to a single control device) be included for CISWI cement kiln sources. Response: EPA limited comment in the reconsideration proposal to a specific set of issues and we did not take co mment on this issue. In any case, the commenter did not suggest an approach for addressing this issue and we do not believe it is appropriate to establish provisions addressing this issue in the final rule. However, we do want to clarify that an alkali b ypass stack that vents to the atmosphere is considered a CISWI unit vent and, as specified in 60.2105(a) and 60.2760(a), must meet the emission limitations for the CISWI unit. If the commenter believes an alternative approach for commingled gas streams is consistent with the regulations, similar to the41

comment of EPA

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- A1 excerpt 26, it may seek an alternative method pursuant to 40 CFR 60.8.

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Numbe r: EPA

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Comment: §60.2670 ...Table 8; Carbon Monoxide.

— 410 ppm for kilns with preheater/ precalciners
The purpose of establishing two populations of cement kilns, one burning alternate solid waste fuels and the second burning fossil fuels, assumes those burning alternate fuels would have a different emissions profile than those burning fossil fuels. In rea lity, emissions are defined by the combustion in the calciner while emissions produced in the preheater are due to progressive heating of raw materials with incomplete oxidation of carbon. The resulting CO is more related to site specific meal chemistry th an combustion of alternate fuels in the kiln.
It does not appear that EPA has considered the emissions resulting from raw materials in distinguishing between kilns burning alternate fuels and other kilns burning fossil fuels. The Argos (formerly Lafarge Co rporation) cement plant located in Harleyville (Dorchester County), SC, processes marl limestone with high levels of naturally occurring kerogen (organic) material. The plant typically fires 20%

— 25% of alternate solid waste materials to meet its combusti on requirements. CO emissions attributed to preheater emissions are a result of stripping the organics out of the (marl) meal and are on the order of 1,000 ppm

- 2,000 ppm . A more appropriate definition of emissions from burning alternate fuels should cons ider the emissions in process gases between the calciner and the point in the preheater where carbon monoxide is formed from the incomplete combustion of organic species contained in the raw meal.
EPA has set a precedent for this approach in determining co mpliance with emission limits for hazardous waste burning kilns by allowing the measurement of gas composition in the kiln between the fuel combustion zone and the kiln exit in determining compliance with that carbon monoxide limit. Reference Boiler and In dustrial Furnaces requirements for the Lafarge Paulding plant located in Paulding, Ohio.
As it should, EPA wants to ensure good combustion of alternate solid waste fuels in a kiln. As proposed and totally unrelated to the combustion of alternate solid wast e fuels, some kilns cannot and will never be able to meet the proposed CO limit solely due to higher levels of organics in their raw materials. Clearly, a one size fits all should not be the basis for this proposed rule.
Request: Argos request that the rul e be modified to allow an alternate method of demonstrating compliance via a Continuous Emission Monitor with the 410 ppm emission limit for preheater/ precalciner kilns in which emissions occurring from the preheating of meal results would otherwise result in non

- compliance with the proposed standard. (Note: It is surprising, if not disappointing, that no data from this plant was considered in setting the CO standa rd. Hence, we are requesting the alternate means to demonstrate compliance for CO emissions when42

combusting alternate solid waste fuel in the riser of the precalciner where the solid waste materials are actually combusted.)
Response: First, we note that t he CO limit for existing cement kilns has changed from 410
to 790 ppmvd @ 7% oxygen, based on revisions to the kiln inventory, emissions data, and span adjustment methodology. The methodology for adjusting CO emission test run data to reflect the limitatio ns from the instrument span used at testing is described in the “CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule" memorandum in the CISWI docket. Please see sections II.C.1 and II.C.5 of the preamble to the final rule for further discussion.
Regarding alternate compliance method for accounting for pre

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

Commenter Name: Michael L. Krancer Commenter Affiliation: Pennsylvania Department of Environmental Protection Document Control Number: EPA

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Comment: The EPA is soliciting comments on whether waste

- burning kiln emission limits should be expressed on a production basis (e.g., pounds per million tons clinker produced) instead of, or in addition to, concentration

- based limits . The DEP recommends that all of the emission limits be established on both a concentration

- basis and a production basis and that the owners and operators be allowed to demonstrate compliance either on a concentration basis or a production basis. The DEP believes that emission limits should be expressed in both fashions to provide an additional opportunity to owners and operators of those facilities that opt to engineer their systems to operate in an energy efficient manner.
Response: We thank the comment er for their input. As we discussed in the preamble to the March 2011 rule (76 FR 15735), CAA section 129 solid waste incineration rules, including the 2000 CISWI standards, have consistently included numeric limits in stack gas concentration bases. We ar e maintaining in the final CISWI rule emission limits presented as stack gas concentrations. H owever , emission limits for PM, NOx

, SO2 , and Hg are also provided on a production basis to facilitate comparison to emission limits contained within the Portland cement NESHAP and NSPS. These are presented in Table 4 of the preamble.

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA

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Comment: Cement kilns m ay periodically operate under either CISWI or NESHAP standards. EPA has recognized this and has requested comment on whether waste

- burning kiln emission limits should be expressed on a production (e.g., lb per million tons clinker produced) basis43

instead o f, or in addition to concentration based limits. 76 Fed. Reg . 80458. Lafarge appreciates EPA’s consideration of this issue but proposes a third option, that waste

- burning kilns be given the option of demonstrating compliance on a production basis or a conc entration basis. Lafarge proposes the third option based on the fact that some sources may choose to operate as CISWI units for a period of time and as NESHAP units for the remainder of time. Switching back and forth between different compliance units can be cumbersome and create a greater possibility of calculation errors. Lafarge opposes the option of adopting dual limits for waste

- burning kilns. Duplicity of these standards is unnecessary and only creates added regulatory burden to the cement companies. If EPA does not grant Lafarge’s proposed approach of allowing the source to choose which units to be regulated under, Lafarge would prefer that EPA leave the CISWI limits as a concentration basis.
Response: The final CISWI standards are concentration base d standards. Please see the response to EPA

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Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Co mment: EPA has improperly used hydrochloride ( HCl ) emissions data when setting the HCL Limit : PCA urges EPA to confine standard setting for HCI only to those test methods accepted by the agency, and to continue to reject methodologies that EPA has previo usly disallowed (76 Fed. Reg . at 80458). With respect to HCl limits, a PCA member has stated that the 3 ppm limit was set without HCl CEMS data (using only short

- term FTIR data). Therefore, there is no correspondence between limit and monitoring method. Furthermore, HCl results obtained vary dependent upon the monitoring method employed at low HCl concentrations, and hence may get a finding of non

- compliance even if the facility is actua1ly in compliance. We understand from CEMS vendors that 3 ppm is the detection limit of HCl monitoring devices. It is illogical then to set a limit of detection at 3 ppm . Other observations from PCA members include the following:

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

Response: We disagree with the commenter’s claims. W e have limited our data set to only HCl data obtained using Method 321 for the waste

- burning kiln subcategory. We note that the MACT floor limit setting methodology is not open for comment, and have discussed how we arrived at the 3 ppmvd limit for HCl in supporting memoranda for the December 2011 proposed rule. See the “CISWI Emission Limit Calculations for Existing and New Sources for Reconsideration Proposal” memo (November 3, 2011) for further details. We are confirming here that the 3 ppm limit is a n adjusted value and is dry, at 7% oxygen.44

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA

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Comment: 60.2105 sets a limit o n CO emissions but not THC emissions. EPA has more than 20 years of data on cement kilns that demonstrate that CO is not a good indicator of combustion conditions in cement kilns and cannot be used as a surrogate for organic HAPs . In fact neither CO nor TH C is an indicator of combustion conditions in the kiln but are impacted directly by the organics in the raw materials. Both the Hazardous Waste Combustor MACT rule and the Portland Cement MACT rule have acknowledged this fact by setting limits on THC inste ad of CO, since THC is a clear surrogate for organic HAPs . In order to be consistent in its approach to setting MACT limits on cement kilns (regardless of the MACT category), EPA should set a limit on THC rather than CO, just has been done in the Portland Cement MACT rule.
60.2105 establishes limits on lead and cadmium emissions. In a system with relatively high exit gas temperatures (such as many incinerator systems), these metals may be volatile enough to escape from the system. In a cement kiln, however, these metals condense in the lower temperature regions of the system and are emitted in the form of particulate.
It is likely that EPA has sufficient data, gathered in the context of the Portland cement MACT and hazardous waste combustor MACT rules, to de monstrate that emissions of these metals are correlated with particulate emissions and are independent of the type of fuel being used. For this reason, the same logic used for nonvolatile metals in this rule (and used in promulgating the PC MACT rule) that allows the use of particulate as a surrogate for metal HAPs (other than mercury) can be applied to lead and cadmium for cement kilns regardless of the type of fuel used.

60.2105 sets limits on HCl . We question whether EPA has authority to set limits on HC l for kilns that are area sources.
Response: CAA section 129 requires the Agency to establish numerical emission limits for 9 identified pollutants. See CAA section 129(a)(4). CO is one of the nine pollutants for which CAA section 129 requires emissions standards. Similarly, Cd and Pb are also among the nine pollutants the Agency is required to set numerical limits for under CAA section 129(a)(4 ) , regardless of whether or not particulate matter is used as a surrogate for metal HAPs under NESHAP standards (PM is also one of the nine pollutants)

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

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Ass ociation of Clean Air Agencies (NACAA)45

Document Control Number: EPA

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Comment: EPA should also consider its proposed MACT rules in light of BACT determinations for similarly situated units and explain wh y emission limitations deemed “available” as BACT are orders of magnitude more stringent than the (“maximum achievable”) MACT standards. A review of EPA’s RACT / BACT / LAER clearinghouse reveals a number of BACT decisions for cement kilns that are far more stringent than EPA’s proposed limits. 41 In addition, EPA’s control technologies guidelines for cement kilns, 42 published under section 108 of the CAA , document the existence of cost

- effective retrofit technolog ies available for control of SO 2 and NO X in cement kilns. EPA seems to assume either that there are no cost

- effective controls for these pollutants at cement kilns or that the CAA does not require MACT limits to be based on these controls. EPA should expla in its rationale in greater detail and set forth a basis for any final decision it makes. EPA should review each of its proposed MACT limits to ensure that they reflect the application of maximum achievable technology, not merely the MACT floor. In additio n, it would seem that MACT should be more stringent than either GACT or BACT

. Accordingly, MACT limits for cement kilns for SO 2 and NO X should be at least as stringent as BACT limits for such units. Moreover, the performance demonstrated by the best perfor ming units suggests that existing sources, if equipped with MACT level technology, would be capable of far better performance than suggested by EPA’s rules. Similarly, we note the very significant differences in the MACT limit that EPA applies to smaller u nits at area sources compared to similar units at major sources. Since the MACT limits for those units are presumed to meet the statutory effectiveness tests for MACT controls, unless the cost per ton for similar units at area sources is substantially diff erent it would seem that the test is met at those sources as well.

[Footnotes:

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

42 See, http://www.epa.gov/ttn/catc/dir1/cement_updt_1107.pdf See also additional studies by Northeast States for Coordinated Air Use Management (NESCAUM) http://www.nescaum.org/documents/ic i

- boilers

- 20081118

- final.pdf/; http://www.nescaum.org/documents/hg

- control

- and

- measurement

- techs

- at

- us

- pps_201007.pdf/.]
Response: EPA established the standards in the final rule consistent with the requirements of CAA section 129. MACT standards are te chnology based standards that are established based on emissions data from existing sources and EPA is not required as the commenter suggests to set standards that are at least as stringent as the BACT level of control. Furthermore, under CAA section 129, EPA is required to establish MACT standards for area/minor sources and may not set standards at the GACT level of control.

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA

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Comment: EPA has proposed revised emission limits for waste

- burning kilns that reflect updated inventories and additional data. The revision results in emission limits that, not surprisingly, are very closely aligned with the C AA Section 111 NSPS Subpart F and Section 112 NESHAP Subpart LLL limits. In proposing the revised emission limits, EPA states that it “performed an analysis of the materials being combusted in the entire inventory of Portland cement kilns in light of the f inal NHSM rule” , and “added 11 more kilns to the inventory of
waste

- burning kilns” . 76 Fed. Reg . 80458. However, EPA is coincidentally proposing changes to “the final NHSM rule” that will likely change again the inventory of waste

- burning kilns and potenti ally result in different calculated emission limits. Why must EPA continue to go down a path of creating emission limits based on “close

- enough” data? EPA appears to be making a leap

- of

- faith that it can identify waste

- burning kilns that combust solid wast e without yet completing “the final NHSM rule” . This approach would imply that EPA has pre

- determined the final NHSM rule and is forgoing any possible revisions associated with public comments (see discussion in Section II above). EPA has not justified why it must rush to establish the revised emission limits at this time. Lafarge believes that EPA should wait until the NHSM re

- proposed rule is finalized, then conduct the analysis it claimed it completed after the March 2011 NHSM final rule and only then pr opose revised emission limits for waste

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



### 2D. E stablishment of Limitations on Fuel Switching Provisions

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2265

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

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

. To ensure47

that this option is clear, we have made minor edits to the language at 60.2154(a)(2) and (a)(3) to clarify that a source has the option of either continuing to comply with CISWI or to begin to comply with the newly applicable subpart 6 months after the last time solid waste is added to the unit.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2145(a)(2)

- The term “cease” appears to be defined within this paragr aph as “when solid waste is not in the combustion chamber” and presumes that a fuel switch has occurred if solid waste is not combusted for more than 6 months. Paragraph (a)(3) then goes on to state that you must be in compliance with any newly applicable standards on the effective date of the waste

- to

- fuel switch (6 months after ceasing to combust solid waste). The definition of “cease” in the context of a waste

- to fuel switch must be revised to be activated by both the cessation of waste fuel use and the expressed intent to no longer combust solid waste. While this may not be important for some sources, cement kilns utilize a wide variety of fuels that are dependent upon availability and economics with respect to the cost of other fuels. A source should re tain the option to operate under the CISWI provisions as long it retains the ability and intent to feed solid waste derived fuels (or potentially, ingredients).
Response: Please see the response to EPA

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Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2145(a)

– These provisions do not appear to account for extended idling of a unit due t o economic conditions. Cement kilns have experienced idle periods extending many months in the most recent economic downturn. If a source has been idled for an extended period, solid waste fuels may not be introduced for some time after startup. Sources wi th the intent to continue

as CISWI units should not be recategorized as non

- CISWI units simply because they have been idle for more than 6 month. Sources should remain designated as CISWI units unless/until notification of intent to stop utilizing solid wa ste fuels (or ingredients).
Response: Please see the response to EPA

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Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2230(b)

– The discontinuation of solid waste combustion in kilns with multiple fuel sources should not trigger notifications or reports as if the unit has permanently ceased using solid waste fuels, but rather should hinge on the intent of the source to continue as a CISWI

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

. To ensure that this option is clear, we have made minor edits to the language at 60.2154(a)(2) and (a)(3) to clarify that a source has the option of either continuing to comply with CISWI or to begin to comply with the newly applicable subpar t 6 months after the last time solid waste is added to the unit.
EPA does not agree with the commenter that the notifications and reports required in the rule should be changed. EPA believes it is important to know the current applicability of CAA regulat ions and the notifications and reports associated with fuel switching provide the necessary information.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2145

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

Response: The rule already allows a time frame of 11

- 13 months from the previous test to provide operational flexibili ty. If a source will shut down for an extended period of time, beyond that window, the source should work with their delegated authority to establish a schedule for conducting the annual performance test.

Commenter Name: Michael L. Krancer Commenter Affi liation: Pennsylvania Department of Environmental Protection Document Control Number: EPA

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Comment: The EPA is soliciting comments on the fuel switching provisions included in the final CISWI rule, part icularly whether the provisions should include further clarification on the timeline and regulatory requirements of a fuel switch. Additionally, EPA is soliciting comments on an alternative time period for switching frequency (e.g., 12 months). Under the final rule promulgated in March 2011, an owner or operator that ceases combustion of solid waste can opt to remain subject to the CISWI requirements. In light of this discretion, the DEP believes that the fuel switching provisions included in the final rul e are adequate and should not be revised.49

Response: The EPA is finalizing the fuel switching provisions as proposed, with the exception of minor clarifying edits to the continued CISWI compliance option.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA

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Comment: EPA Should Amend its Definition of CISWI Unit and its Application of CISWI Requirements to Units that Cease Burning Solid Waste

The CISWI Re consideration Rule preamble at (76 FR 80459) states

– “For sources that cease burning solid waste, the effective date for the waste

‐ to

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

‐ burning units

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

‐ to

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

‐ to fuel. Both of these provisions provide abundant safeguards that units burning solid waste will be subject to protective environmental requirements designed f or such units. Given the stringent requirements of the CISWI Reconsideration Rule, units are highly unlikely to engage in frequent fuel

‐ switching without first obtaining a comfort letter or other Agency determination that the material they intend to burn i s considered a legitimate fuel. We respectfully recommend that the Agency strike the clause “or has combusted in the preceding 6 months” from the CISWI definition in parts 60.2265 and 60.2875. We further recommend that at part 60.2710 (a)(2) the Agency str ike “you are subject to the requirements of this subpart at least 6 months following the last date of solid waste combustion.”
Response : For the reasons stated in the 2011 CISWI rule, we are not revising the definition of commercial and industrial solid waste incineration unit in the 2011 CISWI rule. 76 FR 15714. We believe that providing a framework for compliance for units which switc h between burning fuel and waste is necessary for both the regulated entities and the Agency (or delegated authority). Providing such a framework ensures continued compliance, while minimizing the burden of testing necessary to assure continuous complianc e with the applicable standards..
We also note that we do not believe the comparison of the definition in CISWI to municipal solid waste combustors (MWC) is appropriate. We are not aware of any MWC units that start and cease combusting solid waste as is the case with CISWI units. We believe this is the case because such units are in our understanding designed and operated for the purpose of combusting solid waste, often times without energy recovery. The MWC situation is similar to the situation in the 2000 CISWI rule in which the Agency only regulated units whose purpose was the destruction of waste. We also determined not to adopt the approach taken in hazardous waste50

combustors (HWC) regulations. We maintain that the approach taken in the CISWI rul e is appropriate for these sources and consistent with the statute.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA

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Commen t: The EPA should allow a co

- fired unit to opt between the CISWI rule and the Boiler MACT Rule
The NAM supports the EPA’s proposal to allow a co

- fired unit to opt out of the CISWI rule and into the Boiler MACT rule, or vise versa. This will provide a ben eficial measure of flexibility to operators. However, the EPA should eliminate the arbitrary restriction in the proposal that would limit a facility from moving from being regulated under CISWI to being regulated under Boiler MACT for a six month period af ter it had stopped burning solid waste. As a policy matter, forcing operators to remain regulated under the one standard when there are reasons to switch would needlessly penalize them with little to no benefit gained.

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

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: 1. EPA must clarify the interplay between the CISWI and NESHAP / NSPS rules. PCA does not support EPA's fuel switching requirements, and thus does not agree with the 6

- month waiting period established in the proposed rule: EPA offers no reasonable basis for establishing a 6

- month waiting time as a fuel switching requirement. It wo uld be more appropriate to allow sources to switch as soon as they document compliance with the NESHAP

. The following provides examples of potential problematic impacts of including the waiting period requirement as proposed. a. An automatic 6

- month delay in the switch could result in a source that has ceased burning solid waste and is in the 6

- month waiting period and their performance test for CISWI is due within the 6

- month window. If the facility performs the test, the test is without purpose since the facility is switching to the different regime under the NESHAP . Also, if the facility performs the test using solid waste (since there is no other purpose of the test under CISWI ), this event will result in extending the time for the switch to 6 months fro m the test date. In essence, the 6

- month delay will result in the test data no longer being valuable for future compliance under NESHAP . b. For a proposed facility modification to a kiln51

system related to cement production needs, the change could trigger t he "new source" requirements under CISWI for a change that in actuality has nothing to do with CISWI . The requirement to wait 6 months may prevent the facility from reacting quickly to manufacturing or market trends or to develop additional production capa city in a timely manner to react to increased demand. To address the first example, PCA recommends an approach whereby the facility can switch to NESHAP without a waiting period. The facility would continue to be subject to CISWI requirements for any calendar day that a facility feeds NHSM to the kiln for any portion of the day. However, for the next full calendar day when NHSM is not utilized, the source will have the option of switching to and being subject to the Portland cemen t NESHAP

. The approach has been in place for almost a decade for hazardous waste burning kilns under the HWC NESHAP 40 C.F.R. part 63, subpart EEE ), whereby the facility can switch to the otherwise applicable requirements and standards of the PC NESHAP wit hout a waiting period. In addition, during the time period when not using hazardous waste fuel, the facility has the regulatory option of following an alternate (non

- hazardous) compliance regime. EPA should note, however, that this is one option. In the al ternative, a facility could (and should be permitted to) continue to be subject to the CISWI rules both during the burning of solid waste and in anticipation of future burning of solid waste. Should that be the facility's choice. Using the PCA suggested de scribed CISWI /PC NESHAP approach, the 30

- day rolling averages would be calculated separately. When operating as a CISWI source, the 30

- day average would be the average of the last 30 days when NHSM was utilized. When switching to PC NESHAP , or in the alter nate mode (e.g. NESHAP option), the 30

- day average would be based upon the full days that NHSM was not utilized. In other words, the source could switch fuel and transfer to NESHAP compliance without a complicating waiting period. And, the source could al so have the option for two operating modes with alternate compliance requirements, as described. PCA contends that in order to run a manufacturing facility to meet market demands, facilities will continue to need the flexibility to change and modify operat ions within the regulatory requirements and without excessive burden. Both the PC NESHAP and the CISWI rules reflect similar environmental controls; thus, there is no additional impact to the environment from removing the fuel

- switching waiting period.

Res ponse : We disagree with the commenter that EPA does not have a basis for its definition of CISWI unit, and for the reasons stated in the 2011 CISWI rule, we maintaining the definition of CISWI unit in the 2011 CISIWI rule. 76 FR 15714. We believe that p roviding a framework for compliance for units which switch between burning fuel and waste is necessary for both the regulated entities and the Agency (or delegated authority). Providing such a framework ensures continued compliance, while minimizing the b urden of testing necessary to assure continuous compliance with the applicable standards.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: Some ACC members operate units that intermittingly combust a solid waste generated on

- site from manufacturing operations. These units switch between burning solely a traditional fuel and burning both traditional fuel and non

- hazardous s olid waste fuel as needed.52

ACC appreciates EPA’s attempt to address fuel

- switching and we acknowledge that it presents some unique regulatory challenges as these units move from being regulated under § 129 as CISWI to being regulated under § 112 as boilers , and vice versa. Id. at 80458

– 60. However, we believe that the approach EPA has chosen to address such fuel switching is contrary to the plain language of § 129 and therefore unlawful.
EPA’s proposed approach is that “[u]nits that cease combusting solid waste remain subject to CISWI for at least six months after solid waste is added to the combustion chamber. After six 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, opt to remain subject to CISWI .” Id. at 80501 (to be codified at 40 C.F.R. § 60.2265). The proposed definition of CISWI unit in § 60.2265 reads in relevant part “any distinct operating unit of any commercial or industrial facility that combusts, or has combusted in the preceding 6 months , any solid waste.” (Emphasis added). The requirement that sources remain subject to CISWI for six months after their last combustion of solid waste is unlawful. Section 129(g)(1) defines solid waste incineration unit, in relevant part, as “a distinct operating unit of any facility which combusts any solid waste material.” (Emphasis added). Congress did not say “which combusts, or has combusted in the preceding 6 months

, any solid waste,” or more generally, “whic h recently combusted any solid waste material.” Instead, Congress chose the present tense “combust” to express its clear intent to regulate only units currently combusting solid waste. EPA must “give effect to the unambiguously expressed intent of Congre ss” under step 1 of the Chevron test. See Chevron USA v. NRDC , 467 U.S. 837, 842

- 43 (1984). Since Congress was clear in its intent to only regulate solid waste incineration units currently combusting waste, EPA’s expansion of the definition of CISWI to regulate units that have burned waste in the past but have stopped is impermissible.

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

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: EPA’s six month requirement could al so subject units that no longer burn solid waste to § 112 and 129 standards simultaneously. Under § 129(h)(2), Congress limited EPA’s authority to regulate CISWI units by stating that “no solid waste incineration unit subject to performance standards under [ CISWI

– sections 111 and 129] shall be subject to standards under [ NESHAP

– section 112].” The recent ruling from the D.C. Circuit Court of Appeals highlighted the mutual exclusivity of § 112 and § 129. In Portland Cement Ass’n v. EPA , 2011 U.S. App. LEX IS 24577, at *12 n.2 (D.C. Cir. Dec. 9, 2011) the court notes that some cement kilns would53

be regulated under NESHAP and other cement kilns combusting solid waste “...would be subject to standards under the CISWI rules rather than under the NESHAP rules, sin ce the two regimes are mutually exclusive. See also, NRDC v. EPA ,489 F.3d 1250, 1256 (D.C. Cir. 2007). The reconsidered CISWI proposal would subject some units that should be subject to regulation under § 112 (e.g., boilers), when and because they are com busting traditional fuels, to both §section 129 and § section 112 emission limits because of their intermittent combustion of solid
waste.
For example, the Boiler MACT rule applies to an industrial, commercial, or institutional boiler or process heater, as defined in 40 C.F.R. § 63.7575, that is a major source of hazardous air pollutants. 40 C.F.R. § 63.7485. The Boiler MACT states in § 63.7575 that a unit “combusting solid waste...is not a boiler.” In other words, as soon as a major source unit subject to § 129 regulation stops burning solid waste, it would be a combustion unit regulated by the Boiler MACT § 112 standards. But under EPA’s fuel

- switching approach, the unit would continue to be a “solid waste incinerator,” subject to § 129 standards for at least 6 months after the unit stops burning waste. This 6

- month overlap between the start of Boiler MACT applicability and the end of CISWI applicability is impermissible because it would subject a unit to both § 129 and § 112 standards in violation of th ose sections of the CAA and D.C. Circuit case law.

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

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: EPA has proposed a mechanism for sources to move between the boiler and CISWI rules, but sources must wait 6 months after cessation of solid waste burning to move back under Boiler MACT and must provide 30 day notice of intent t o re

- commence combustion of solid waste [see 40 CFR 60.2145(a)(2) and 40 CFR 63.7545(g)]. EPA appears to have arbitrarily chosen 6 months, as we can find no justification for this time period in the record. With the extensive monitoring and testing require d under both rules and the fact that any facility’s Title V permit will include extensive compliance assurance provisions, facilities will be able to adequately ensure compliance under either rule without being restricted on the frequency of fuel switching . Sources should be allowed to make the switch between waste and fuel as often as operational concerns require provided they keep adequate records.
Allowing more flexible fuel to waste switching would also serve to address the unachievability of certain CI SWI standards during startup. If an ERU is not burning solid waste during startup, it should be regulated as a boiler and therefore subject to work practice standards. Our comments on the Boiler MACT rule provide justification on why work practice standard s are appropriate for periods of startup and shutdown and provide feedback on the proposed definitions of startup and shutdown under that rule.
EPA has no authority to regulate a unit that is not burning any solid waste as a CISWI

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Response: We do not agre e that the definition of CISWI unit is inconsistent with the statute as the commenter suggests. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable tim e as explained in the preamble to the 2011 CISWI rule. 76 FR 15714. The Agency selected a six month time frame to ensure initial and continuance compliance by coinciding the initial performance test requirement to conduct a performance test within 180 of initial startup, or in the case of an existing source within 180 days of the compliance date. Allowing a switch on a shorter time frame could result in the situation where a unit switches between section 112 and 129 applicability without ever “hitting” t he requirement to conduct a performance test. We specifically reject the notion that a unit should be considered a boiler when it starts up and then, after startup, combust solid waste and become a solid waste incineration unit and comply with the CISWI s tandards thereafter. We believe that this proposed approach would be unreasonable and arbitrary in that it would circumvent section 129, because that provision does not authorize work practice standards for solid waste incineration units. In essence, the commenter is suggesting that CISWI units never startup if they use traditional fuels during that period, even if the unit operators fully intend to combust solid waste immediately after startup.

Commenter Name: Bart Sponseller Commenter Affiliation: Wisconsin DNR Document Control Number: EPA

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Comment: Currently, Wisconsin does not have any incinerators or boilers subject to the CISWI rule. Several boilers or sources could become subject to CISWI if certain materials are designated as NHSM . However, these sources have also indicated that they would discontinue firing these fuels in lieu of becoming subject to CISWI rules. As previously noted, discontinuing the firing of certain materials is not necessarily the best outcome. Although applicability to Wisconsin sources is limited, the Department has identified the following areas that EPA should consider further or clarify under the rule. The CISWI rule proposes that sources can, if starting or
st opping the firing of solid waste, move back and forth between the CISWI and boiler MACT rules. The emission and compliance requirements between the two rules are significantly different and the Department supports that a source should be able to comply wit h the appropriate rule based on the fired fuel. However, the CISWI rule requires that a source be subject to CISWI requirements for six months after stopping the firing of solid waste. The Department feels this is a prolonged and unjustified period. Beca use emission rates and parametric monitoring are based on 30

- day rolling averages under the MACT

, 30 days is the appropriate timeframe for switching between the two rules. If EPA is concerned with a source going back and forth multiple times between regula tions, a different approach should be pursued. The source needs to demonstrate compliance for each interim period of fuel or solid waste firing. If changing fuels somehow negates the basis for demonstrating compliance, such as the original stack test and parametric parameters, then new stack testing should be performed to re

- establish the necessary correlations. We anticipate that this type of event would occur only if switching to a fuel which has not been fired before at the source. Therefore, this conc ern may be best addressed separately under the boiler MACT emission monitoring requirements by requiring a new stack test based on a change in fuel or equipment.55

Response: We are not revising the final rule in response to this comment. The statute is ambi guous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as explained in the preamble to the 2011 CISWI rule. 76 FR 15714. The Agency selected a six month time frame to ensure initial and continuance compliance by coinciding the initial performance test requirement to conduct a performance test within 180 of initial startup, or in the case of an existing source within 180 days of the compliance. Allowing a switch on a sh orter time frame could result in the situation where a unit switches between section 112 and 129 applicability without ever “hitting” the requirement to performance test. While the approach suggested by the commenter has its merits, we believe that it cre ates an undue burden on the source where frequent switching may occur. Such a program would require frequent performance testing, or submittal of requests for waivers, some of which could not be completed within the actual time of a waste to fuel switch. For these reasons, we believe that a 6 month period provides operational flexibility, while ensuring continuous compliance with the standards.

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA

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Comment: EPA has proposed an arbitrary 6

- month period to opt out of CISWI applicability. EPA has stated that the 6

- month period is needed to ensure that frequent switching does not impede their ability to determine continuous compliance and create undue permitting and testing burdens on sources. 76 Fed. Reg . 80459. A 6

- month transition period is unnecessary for continuous compliance demonstrations for waste

- burning kilns for either the CISWI or applicable N ESHAP standards. EPA has proposed to allow cement kilns to remain CISWI units during periods when solid waste is not combusted if they intend to combust solid waste in the future. Therefore, cement kilns that select this option do not have to separate thei r emissions during different operating periods. However, a kiln that wishes to be regulated under the NESHAP standards when not combusting a solid waste should be allowed to move back and forth between CISWI and NESHAP compliance with no unnecessary time d elay. Cement kilns have only three regulated pollutants that overlap between the two programs (and their standards, as proposed, are nearly identical): mercury (Hg), hydrochloric acid (HCl) and total particulate matter (PM). Mercury and PM emissions are re quired under both programs to be monitored with continuous emission monitoring systems (CEMS). HCl emissions are required under both programs to be monitored with a CEMS or measured during a performance test. Limits for pollutants that use CEMS are based o n 30

- day rolling averages. Therefore, any day (or part thereof) that a cement kiln combusts a solid waste could be categorized as a CISWI day and all operating hours for that day could be used to calculate the value for that 30

- day compliance period. Any d ay when no solid waste is combusted could be designated a NESHAP day and would be included to calculate the 30

- day average for NESHAP compliance. If HCl compliance is demonstrated with a performance test, the testing would need to be conducted under both

o perating conditions (with and without solid waste combustion). The remaining CISWI pollutants are not regulated under NESHAP, and THC (regulated under the NESHAP program) is not regulated under CISWI. Therefore, performance testing for the remaining CISWI pollutants would be completed only under conditions when solid waste was being combusted and56

THC would be continuously monitored only during periods when the cement kiln was subject to NESHAP

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

Commenter Nam e: Mark Calmes Commenter Affiliation: Archer Daniels Midland Company Document Control Number: EPA

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Comment: The CISWI regulations were meant to control hazardous and toxic pollutants which are generated by combustion of municipal solid waste. Facilities burning traditional or non

- waste fuels should not be required to remain under the CISWI regulations for an arbitrary period of time ; they instead should be able to switch back and forth between appropriate standards based on the fuel combusted at any particular time

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

Response: We do not agree with the commenter’s assertion that the CISWI regulations are meant to control emissions from units combusting municipal solid waste, as section 129(a)(1) requires regulations applicable to such units that are separate and apart from the regulations applicable to CISWI units. Concerning the time sources remain CISWI units after combusting solid waste, we are not revising the final rule in response to this comment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combus ts solid waste and the Agency has established a reasonable time as explained in the preamble to the 2011 CISWI rule. 76 FR 15714.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA

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Comment: CEMEX feels strongly that the imposition of a 6

- month waiting period after ceasing to utilize “solid wastes” as fuels is arbitrary and unnecessary. Kilns should be able to switch to being regulated by the PC NESHAP as soon as they can demonstrate compliance with that regulation. CEMEX supports PCA’s comments on this issue as well as PCA’s proposed alternatives. Response: We do not agree that the time frame is arbitrary and unnecessary and we are not revising the final rule in response to this comment. The statute is ambiguous as to how57

long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as explained in the preamble to the 2011 CISWI rule. 76 FR 15714.

Commenter Name: Michael D. Stevens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA

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

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

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: EPA Should Create a Mechanism to clarify CISWI status: PCA asks that EPA add to the rule create a mechanism to declare a kiln to be covered by CISWI and clarify that status applies until the kiln under 40 CFR Part 60 Subpart DDDD for the operator takes actions of an existing cement kiln to notify the agency that it is subject to the NESHAP li mits in the alternative. Specifically, the rule should both the appropriate state that a kiln owner at any time can notify EPA and the agency with delegated or local air permitting authority for CISWI implementation that a kiln is and EPA of a kiln's stat us relative to this rule. This is needed so that a kiln operator can inform these agencies that the kiln is subject to this provision and, therefore, not subject to the CISWI rules and the facility owner can rely upon that notification and designation unti l such time as EPA and the agency with delegation are notified otherwise that the facility owner has determined that NESHAP will apply and that the owner no longer wants to be covered solely by the CISWI provisions. (In that circumstance, the owner may ex ercise the option that NESHAP apply intermittent when solid waste is not burned or continuously when solid waste burning is discontinued. cement kiln NESHAP

. Response: EPA has finalized provisions that address units that start and stop combusting solid

w aste.58

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA

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Comment: EPA should waive the six month minimum CISWI applicability and six month waste

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- non - waste fuel switch notification requirements in situations where combustion of waste was unintentional. EPA should also address practical material handling issues in its provisions.
It is appropriate for EPA to reconsider fuel switching provis ion limitations. The current structure and implementation of these limitations presents legal questions and legitimate compliance and economic concerns. First, we question EPA’s authority under the Clean Air Act to require units which do not burn wastes to meet regulations pertaining to units that do burn waste. EPA should justify its authority to do something that seems so intuitively contrary to the law.
Response: The Agency believes that the source is best suited to developing site specific material han dling procedures. If a source believes that it has inadvertently combusted solid waste in its fuel burning unit, it should work with the delegated authority to ensure compliance with the appropriate standard. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as explained in the preamble to the 2011 CISWI rule. 76 FR 15714

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA

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Comment: The minimum six

- month CISWI applicability period and six

- month notification period requirements present catastrophic economic conseq uences in the event a boiler operator inadvertently combusts even a tiny amount of waste or retrospectively gains knowledge that what he reasonably believed was non

- waste fuel was in fact solid waste. Consider, for example, the combustion unit operating as a biomass boiler under Major Source Boiler MACT which cannot meet the stringent Solids/Biomass ERU CISWI emission limitations. Suppose the unit received and combusted an NHSM such as processed construction and demolition (C&D) material which the operator has legitimate reason to believe was a fuel on the basis of applicable criteria in the NHSM rule, only to find out after

- the

- fact from either the processed C&D supplier or a regulatory agency that some portion of material he believed to be fuel was actuall y waste. Under the current fuel switching limitations the operator would have no choice given this retrospective knowledge but to shut down the unit for a full six months and along with employees bear the tremendous economic consequences of an idle facilit y. These consequences are extremely harsh. Circumstances like these warrant more reasoned treatment.
Given the vagaries of both the current and proposed NHSM rule, this type of circumstance is not so unlikely. Despite EPA’s assurances of flexibility and “r easonable methodologies” characterizing NHSM as fuel, the NHSM rule presumes NHSMs are solid waste and the rule’s59

language remains unclear with respect to implementation of the contaminant legitimacy criterion, making operators’ self

- determinations using t hese criteria subject to challenge by an agency or 3rd party. With the six month fuel switching provisions even a single successful challenge could jeopardize the operator’s economic viability.
The combustion unit operators, and not generators or processor s, bear all regulatory responsibility, penalties and damages for inadvertent waste combustion. Operators have recourse through contracts, but the recovery of damages under breach of contract, while significant, would not rise to the level of damages incurr ed by an idle facility. The loss is uninsurable since business interruption insurance only covers interruptions due to property damage. In short, the operator bears a unique and disproportionate penalty for even a singular event of inadvertent waste combus tion.
We are not opposed to a provision requiring boilers operating under Boiler MACT rules to report inadvertent combustion of wastes and be subject to reasonable penalties for noncompliance. But we strongly object to EPA’s disproportionate penalty of the six month unit shutdown. We propose that EPA waive the six month minimum CISWI designation and notification requirements in instances where an operator gains retrospective knowledge that the combusted material he thought was fuel was actually waste, so lo ng as the operator takes reasonable actions to cease combusting waste, reports the event, and implements reasonable steps to prevent

recurrence.

Response: As stated previously in response to EPA

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Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Docu ment Control Number: EPA

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Comment: There is a practical material handling issue associated with the proposed fuel switching limitations. Most biomass plants stack biomass in large piles. Fuel is taken fr om the piles with a re

- claimer and fed to the boilers. By design, there is an oversupply of fuel that is returned back to the fuel piles and restacked . With all this stacking, reclaiming, and restacking materials are mixed and there is no practical way to know exactly when a particular material source would be completely combusted. EPA should account for the reality of this operational situation in its fuel switching provisions.

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

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)60

Document Control Number: EPA

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

Response : We reject the notion that a unit should be considered a section 112 source when it starts up and then, after startup, when it combusts solid w aste it becomes a solid waste incineration unit subject to the CISWI standards until shutdown when it stops burning solid waste. We believe that this proposed approach would be unreasonable and arbitrary in that it would circumvent section 129, because th at provision does not authorize work practice standards for solid waste incineration units. In essence, the commenter is suggesting that CISWI units never startup or shutdown if they use traditional fuels during those periods.

Commenter Name: Robert D. B essette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: The practical effects of the regulation are far

- reaching. For example, if a facility bur ns a waste /fuel mix, which is typical, and is operating under the CISWI regulations, if for some reason the waste component of their fuel supply becomes unavailable, solid fuel boilers (e.g., coal) would not be able to meet the emission requirements under CISWI (e.g. sulfur dioxide) and would have to shut down operations (or find an alternate source of energy) until they are permitted to switch back to an appropriate standard for their solid fuel. Many waste streams are not available year round and their supply is dependent upon production schedules at other entities. Also, a facility may inadvertently burn a material that is a waste or later becomes classified as a waste, and might be forced to shut down or operate under the CISWI regulations for six months duri ng periods while no waste is being burned. This presents an additional and significant risk to attempting to burn alternative fuels. Another complication is that many units do not fire solid waste until the unit is started up and at steady state.
Response : We are not revising the final rule in response to this comment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as explained in the preambl e to the 2011 CISWI rule. 76 FR 15714. The commenter has not adequately explained why a source would be unable to continue to meet the CISWI standards after ceasing burning solid waste and we can think of no reason why the pollution control equipment wou ld be less effective when the source is operating on non

- solid waste fuels.61

Commenter Name: Mark Calmes Commenter Affiliation: Archer Daniels Midland Company Document Control Number: EPA

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

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

, and be as flexible as c hanges in fuel markets and operating conditions

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

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

. , coal boile r s) would likely not be able to meet the emission requirements under CISWI (e .g., sulfur dioxide, PM filterable and HCl ).
Response : We are not revising the final rule in response to this comment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as explained in the preamble to the 2011 CISWI rule. 76 FR 15714. The commenter has not adequately explained why a source would be unable to continue to meet the CISWI standards after ceasing burning solid waste and we can think of no reason why the pollution control equipment woul d be less effective when the source is operating on non

- solid waste fuels.

Commenter Name: Mark Calmes Commenter Affiliation: Archer Daniels Midland Company Document Control Number: EPA

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

, and then remain under CISWI regulations for a minimum of six months during which time the ma rket and availability of the material may change considerably

. Once under the CISWI , as mentioned above, this operator would have trouble meeting the CISWI emission requirements and would have to shut down operations (or find an alternate source of suitabl e energy) for a minimum of six months until it was permitted to switch back to an appropriate standard for its traditional solid fuel source. Many waste streams are not available year round and their supply is dependent upon production schedules out of the control of the ultimate fuel user. Also, a facility may inadvertently burn a material that is a waste or later becomes classified as a waste, and might be forced to shut down or operate under the CISWI regulations for six months during periods when

no was te is actually being combusted. These and many other operational examples present additional, significant and unintended risks related to attempting to burn alternative fuels.62

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

on non

- solid waste fuels. Further , if a source inadvertently combusted solid waste in a fuel burning unit, it should work with the delegated authority to ensure compliance with the appropriate standards

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boil er Owners (CIBO) Document Control Number: EPA

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Comment: To remedy these damaging effects, a provision should be added that allows a facility to elect to either (1) comply with CISWI at all times or (2) comply with CISWI while burning solid waste but comply with otherwise applicable standards under section 112 of the Clean Air Act while not burning solid waste. This approach would be consistent with the approach recommended for SSM periods. The Hazardous Waste Combustor MACT (see 40 CFR 63.1206(b)(1)(ii) and 63.1209(q)) provides a helpful referent. This will also alleviate another problem caused by the EPA’s decision that work practice standards are not adequate for the regulation of sources during their s tartup and shutdown periods. Because EPA has stated it cannot use work practice standards during periods of startup and shutdown, compliance with CO emission limits along with other parameters such as sorbent loading in spray dryer absorbers will be very problematic. EPA should resolve this problem by allowing sources that encounter these issues to elect to comply with section 112 standards during all times that solid waste are not being combusted or, alternatively, during just the startup and shutdown per iods. If a source elects one of these options, it would have to conduct all necessary performance testing and establish continuous compliance monitoring systems and recordkeeping systems to comply with both the section 129 ( CISWI ) and the section 112 rules . Facilities can easily document which mode of operation they are in (by tracking solid waste feed rates) and readily show compliance with the applicable standard. There are no compliance assurance issues with allowing this flexibility, as sources are able to demonstrate during what periods solid waste is in the combustor

. Response: We are not revising the final rule in response to this comment. The statute is ambiguous as to how long a unit is a solid waste incineration unit after it combusts solid waste and the Agency has established a reasonable time as explained in the preamble to the 2011 CISWI rule. 76 FR 15714. We address above the commenter’s assertions concerning startup and shutdown periods.

Commenter Name: Patricia Haederle Commenter Affilia tion: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: Fortunately, there is precedent for a fuel switching provision that is both lawful and workable, and would assure that a com bustion unit is subject to either the CISWI or the Boiler MACT rule requirements at all times, but not to both simultaneously. The fuel switching provisions in the 2005 NESHAP for Hazardous Waste Combustors (“ HWC MACT ”) have been in place for many years a nd are operating successfully. See 40 C.F.R. §§ 63.1200 et seq., 63.1206(b)(ii) & 63.1209(q). The HWC MACT allows units that intermittently combust hazardous waste to comply with either Subpart EEE at all times or with Subpart EEE while hazardous waste i s in the combustion chamber and, some other applicable subpart promulgated under § 112 or § 129, when no hazardous waste is in the combustion chamber 40 C.F.R. § 63.1206(b)(ii). 1 In relevant part, the emission standards and operating requirements set for th in the HWC MACT do not apply “when hazardous waste is not in the combustion chamber” and the unit’s compliance with other § 112 or 129 requirements has been documented. Id.

The HWC MACT requires that if the unit is going to operate under different mode s of operation, the owner/operator must establish operating parameter limits for each mode. Additionally, the owner/operator must document in the operating record when the unit changes a mode of operation and begins complying with the operating limits for an alternative mode of operation. In order to operate under otherwise applicable requirements promulgated under §§ 112 or 129, the owner/operator must specify the otherwise applicable requirements as a mode of operation in its Documentation of Compliance; its Notification of Compliance; and its Title V permit application. These requirements include the otherwise applicable requirements governing emission standards, monitoring and compliance, notification, reporting and recordkeeping. See 63.1209(q)(1). ACC recognizes that hazardous waste combustion units, unlike solid waste combustion units, are exempted from the definition of “solid waste incineration unit” in § 129(g) so EPA is not required to regulate these units under § 129. Nonetheless, if EPA can offe r regulatory flexibility for units that intermittently combust hazardous waste, it should certainly do the same for units that intermittently combust non

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

1 When hazardous waste is not in the combustion chamber (i.e., the hazardous waste feed to the combustor has been cut off for a period of time not less than the hazardous waste residence time) and you have documented in the operati ng record that you are complying with all otherwise applicable requirements and standards promulgated under authority of sections 112 (e.g., 40 CFR part 63, subparts LLL
, DDDDD , and NNNNN ) or 129 of the Clean Air Act in lieu of the64

emission standards under §§ 63.1203, 63.1204, 63.1205, 63.1215, 63.1216, 63.1217, 63.1218, 63.1219, 63.1220, and 63.1221; the monitoring and compliance standards of this section and §§ 63.1207 through 63.1209, except the modes of operation requirements of § 63.1209(q); and the

no tification, reporting, and recordkeeping requirements of §§ 63.1210 through 63.1212.]

Response: As stated above in response to EPA

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Commenter Name: Ste phen R. Gossett Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA

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- A2 Comment Excerpt Number: 6

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

- fired boilers that periodically run in an operating mode where a wastewater treatment sludge is co

- fired with the coal. During this mode of operation, NO X emissions drop significantly. Section 129 of the Clean Air Act requires EPA to set emission standards for sulfur dioxide and NO X under CISWI and such standards are not required under the Boiler and Process Heater MACT . Depending on the stringency of the CISWI NO X emission standard, it may not be possible to comply with the NO X standard while operating in the coal

- only mode without installing emission controls that are not otherwise authorized under the Clean Air Act. There will likely be other situations where burning solid waste results in lower emissions than burning 100 percent fuel and facilities should not be penalized for these circumstances. Another complication is that many units do not fire solid waste until the unit is started up and at steady st ate. Facilities can easily document which mode of operation they are in (by tracking solid waste feed rates) and readily show compliance with the applicable standard.
Also, as commented as elsewhere, since EPA has stated it cannot use work practice standar ds during periods of startup and shutdown, compliance with CO emission limits along with other parameters such as sorbent loading in spray dryer absorbers will be very problematic. EPA should resolve this problem by allowing sources that encounter these is sues to elect to comply with section 112 standards during all times that solid waste are not being combusted or, alternatively, during just the startup and shutdown periods.
If a source elects one of these options, it would have to conduct all necessary pe rformance testing and establish continuous compliance monitoring systems and recordkeeping systems to comply with both the 129 and the 112 rules. We see no compliance assurance issues with65

allowing this flexibility as we are able to demonstrate during what periods solid waste is in the combustor

. Response: As stated above in response to EPA

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- A1 excerpt 11, we determined not to adopt the approach set forth in the HWC rule and instead adopt an approach specific to CISWI units. We maint ain the approach is reasonable and consistent with the statute. We address the comments concerning startup and shutdown periods above in response to EPA

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Commenter Name: Michael D. Stevens Commenter Affiliation: Nati onal Cement Company, Inc. Document Control Number: EPA

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- A1 Comment Excerpt Number: 2

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

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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- A1 Comment Excerpt Number: 22

Comment: EPA should adopt specific substantive criteria for retesting when a waste use changes: EPA should establish a practical set of criteria for when retesting to demonstrate compliance under either Subpart CCCC or DDDD is required. For example, retesting should only be required if:
1. A new class of material that is deemed to be solid waste goes into use,
ii. The use level of the new class of material is likely to be significant (more than 10% of the total fuel used over the first year of its use), and
iii. The kiln operator should have at least 6 months to determine compliance from the date of the new class of materials first commercial use. (Short term testing of materials for production viability should not trigg er that clock.)

Response: In the final rule, we have further clarified what constitutes a “process change” that would require retesting as required under §60.2155(a)(2) and §60.2720(a)(2). We have not changed the provisions that require retesting within 60 days of a process change , however.66

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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- A1 Comment Excerpt Number: 27

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

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- A1 excerpt 22, we have further clarified what constitutes a “process change” that would require re testing as required under §60.2155(a)(2) and §60.2720(a)(2). In this clarification, one operational change to the CISWI unit where a new type of non

- hazardous secondary material is being combusted is considered to constitute a “process change.” The “new type of non

- hazardous secondary material” refers to a type of material that was not being combusted during the most recent performance test. In this regard, we interpret “type” to have the same meaning as the commenter’s “class” with respect to materials. As an example, a waste

- burning kiln burning coal and scrap plastic during the performance test, but then switching suppliers of scrap plastic, generally would not necessitate a retest. However, if the same unit then decided to also burn organic liquid w astes along with coal and scrap plastic, then the organic liquid would be a new “type” of waste and would therefore constitute a “process change.” The provision at issue further applies to energy recovery units because such units are defined by the type o f fuel a unit is designed to burn. For example, a coal

- fired ERU cannot burn only liquid oil during the performance test. Finally, as noted in earlier responses, we do not require sources to burn waste at all times.

Commenter Name: Patricia Haed erle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 3

Comment: Similar reasoning applies to EPA’s proposal in § 60.2145(a)(4) that a CISWI unit give EPA 30

- days’ no tice prior to the effective date of a fuel switch from a waste to a non

- waste fuel. This prior notice requirement also subjects a unit to continued regulation under § 129 after it has ceased burning waste. For example, a unit that stops combusting waste on January 1st and notifies EPA of its waste

- to

- fuel switch on that same date would continue to be regulated as a CISWI until January 31st . As stated above, this is an impermissible expansion of § 129 requirements for a unit not combusting waste material. See Chevron , 467 U.S. at 842

- 43.67

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

Commenter Name: Stuart A. Clark Commenter Affiliation: State of Washington Department of Ecology Do cument Control Number: EPA

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Comment: We are disappointed that EPA did not harmonize the CISWI and Major Source Boiler MACT requirements as they apply to units that may operate periodically as part of its final rule. Washington State appreciates the complexity involved in establishing NESHAP standards over the varied range of source types and sizes addressed by these proposed rules. EPA’s efforts to gather additional data, carefully consider that data and public comments is apparent. These efforts have resulted in a set of rules that reduce the burden on industry, clarify and streamline the rules to facilitate smoother implementation and still maintain public health protection.
Response : EPA maintains tha t the subcategory definitions in the CISWI rule and the Boiler NESHAP are appropriate for the respective regulations. The commenter has not explained a specific problem caused by the definitions and we therefore decline to make any changes. Regarding “har mony” of the CISWI and Major Source Boiler MACT, we believe that the waste to fuel switching requirements provide the flexibility needed for sources that burn both solid and

non

- solid waste.

Commenter Name: Annabeth Reitter Commenter Affiliation: Ne wPage Corporation Document Control Number: EPA

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Comment: EPA should reconcile the definitions of units designed to burn coal in Boiler MACT and CISWI . In the preamble and rule language for both Boiler MA CT and CISWI, EPA recognizes and discusses that boilers and energy recovery units may be switching back and forth between Boiler MACT and CISWI as a result of waste

- to

- non

- waste fuel or non

- waste fuel to waste switches. Being able to switch between CISWI and Boiler MACT will help provide sources with flexibility in their selection of materials they chose to combust for energy recovery.

Response: EPA maintains that the subcategory definitions in the CISWI rule and the Boiler NESHAP are appropr iate for the respective regulations. The commenter has not explained a specific problem caused by the definitions and we therefore decline to make any changes.68



### 2E01. Definitions of Cyclonic Burn Barrels, Burn

- off Ovens, Soil Treatment Units, Laboratory Analysis Units, and Space Heaters from CISWI Subcategories

Commenter Name: Michael L. Krancer Commenter Affiliation: Pennsylvania Department of Environmental Protection Document Control Number: EPA

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Com ment: The EPA is soliciting comments in regard to cyclonic bum barrels, bum

- off ovens, soil treatment units, laboratory analysis units, and space heaters and their definitions as set forth in the final rule. These definitions were not proposed for public review and comment prior to final rulemaking. EPA is seeking comments on the definitions promulgated in the March 2011 final rule to comply with the Administrative Procedure Act, 5 U.S.C. 553, which requires the agency to provide an opportunity for public review and comment. As proposed, EPA is clarifying in the definitions of cyclonic burn barrels, burn

- off ovens, soil treatment units, laboratory analysis units, and space heaters in the final rule that these units are not incinerators,
waste

- burning kiln s, energy recovery units or small, remote incinerators for purposes of Subpart CCCC. While the DEP believes that these units are incinerators, an exemption for purposes of this subpart is appropriate because of the limited data available at this time.
Resp onse: EPA is finalizing the definitions of these units as proposed.

Commenter Name: Richard G. Stoll, Foley & Lardner LLP Commenter Affiliation: Reusable Industrial Packaging Association (RIPA) Document Control Number: EPA

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Comment: EPA initially proposed its CISWI rule on June 4, 2010. 75 FR 31938. RIPA filed comments on August 23, 2010. A copy of RIPA’s comments is attached hereto (Exhibit A). [see DCN EPA

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- A3 for attachments pr ovided by commenter ] In its August 23, 2010 comments, RIPA explained why EPA’s CISWI proposal incorrectly placed drum reclamation units ( DRUs ) in the “burn

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

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

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

Pursuant to a “reconsideration” of the CISWI rule that EPA announced on the same day it issued the final rule (76 FR 15266), EPA has recently proposed amendments to its CISWI rule, 76 FR 80452, December 23, 2011.69

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

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

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

‐ off oven means any rack reclamation unit, part 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.
Proposed §60.2265, §60.2875, emphasis added.
EPA solicits comments in its preamble on (1) its determination not to propose standards for any of th e burn

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

‐ off oven. 76 FR 80460. RIPA hereby submits comments on these two issues.
(1) Determination not to propose standards

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

‐ off oven category, including DRUs

. Response: EPA is finalizing the definition of "burn

- off oven" as proposed.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: EPA discusses the definition of several types of units: cyclonic burn barrels, burn

off ovens, soil treatment units, laboratory analysis units, space heaters, foundry sand t hermal reclamation units, and chemical recovery units. EPA has also included a definition of chemical recovery unit in the Proposed Rule that more properly addresses sulfuric acid recovery units ( SARUs ) as well as other types of chemical recovery units. 7 6 Fed. Reg . 80460

- 80464.
Additionally, EPA discusses that each of these types of units are excluded from being classified as regulated CISWI units by definition. The revised definitions for these types of units are provided at §60.2265 and §60.2875. ACC su pports the revised definitions and agrees with EPA that these units should not be regulated under CISWI

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

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter A ffiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 670

Comment: EPA has appropriately determined that various types of units do not need to be regulated at this time. These include chemical recovery units, cyclonic burn barrels, burn

- off ovens (including foundry sand reclamation units), soil treatment units, laboratory analysis units, and space heaters. We support EPA’s decision not to regulate these units as CISWI for the m any reasons laid out in our comments on the June 2010 proposed rule.

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

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: Preamble Section I.C.3 [76 Fed. Reg . 80460] describes several types of units that will not be covered by this rule: cyclonic burn barrels, burn

- off ovens, soil treatment units, laboratory analysis units, and space heaters. EPA explains that these units are distinguishable from the units that are covered by the rule and that, by and large, the Agency does not have adequate data at this time to set standards for them. [76 Fed. Reg . at 80460]. Similarly, EPA proposes a definition of foundry sand thermal reclamation units and explains that such units are a subset of burn

- off ovens that will not be regulated at this time due to lack of sufficient emiss ions information. Id . at 80463. The revised definitions for these types of units are provided at §60.2265 and §60.2875.
We agree with the revised definitions of each of these types of units and agree that they should not be regulated at this time. Our comm ents on the June 2010 proposed rules (see for example AF&PA comments at EPA

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- 1951) provided detailed justification for this approach. We incorporate by reference those comments.

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

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: THE EXEMPTIONS FROM THE CISWI RULE ARE UNLAWFUL AND ARBITRARY.
EPA has failed to set standards for cyclonic burn barrels, burn

- off ovens (including foundry sand thermal reclamation units, 76 Fed. Reg . at 80463/2, and other parts reclamation units), chemical recovery units, soil treatm ent units, laboratory analysis units, and space heaters. EPA now admits that these exempt sources are far more numerous than previously recognized. 76 Fed. Reg . at 80460/1 (“there may be many more cyclonic burn barrels than those we have identified”); id. at 80460/2 (“there may be 15,000 more unit in the burn

- off oven subcategory than we had identified”); id. (“the Agency had significantly underestimated the number of [soil treatment] units currently in operation”). EPA’s failure violates Clean Air Act sect ion 129 and 112(c) and71

the Order in Sierra Club v. EPA , No. 01

- 1537, and is arbitrary. Section 129(a) directs EPA to set standards for “each category of solid waste incineration units.” Section 112(c)(6) requires emissions standards for sources accounting for 90% of the enumerated pollutants, which sources include CISWI . The Order in Sierra Club v. EPA , No. 01

- 1537, provides, “No later than December 15, 2007, EPA shall promulgate emission standards assuring that source categories accounting for not less tha n ninety percent of the aggregate emissions of each of the hazardous air pollutants enumerated in Section 112(c)(6) are subject to emission standards under Section 112(d)(2) or (d)(4).” There is no dispute that cyclonic burn barrels, burn

- off ovens, soil t reatment units, and space heaters are within the CISWI source category. They fit squarely within the statutory and regulatory definitions. 42 U.S.C. § 7429(g)(1); 40 C.F.R. § 60.2265; Natural Res. Def . Council v. E.P.A. , 489 F.3d 1250, 1257

- 58 (D.C. Cir. 2 007) (“[Section 129] unambiguously include[s] among the incineration units subject to its standards any facility that combusts any commercial or industrial solid waste material at all[.]”). They do not fall within any exemption. See 42 U.S.C. § 7429(g)(1); 40 C.F.R. § 60.2020. EPA is therefore under an obligation to set standards applicable to these sources. Instead, EPA has redefined the subcategories subject to standards to exclude these sources. 76 Fed. Reg . at 80460. EPA’s reasons for passing over these CISWI

— to the extent they can be called reasons at all

— are unlawful and arbitrary. First, EPA claims that it has determined that it does not need to regulate these sources to comply with 112(c)(6). This determination is unlawful, because Clean Air Act sect ion 112(c)(9) specifies the circumstances required for deletion of sources from the 112(c)(6) list. Section 112(c)(9) permits deletion of a source category only when the pollutant for which it was listed is determined not to be harmful. See New Jersey v. E PA , 517 F.3d 574, 582 (D.C. Cir. 2008) (EPA could not avoid delisting requirements of § 112(c)(9) just because a source category was listed under § 112(n)(1) instead of § 112(c)(1)). Because EPA has made no such determination for the pollutants for which t he CISWI categories were included in the final 112(c)(6) list, EPA may not subdivide the CISWI category and remove certain subcategories from the final list. The 112(c)(6) obligation to regulate all CISWI therefore remains fully applicable. In addition, ev en if EPA were permitted to remove sources from the list upon a determination that they are no longer required to reach ninety percent, EPA never explains how it was able to determine that such is the case for these sources given that it admits it has litt le or no data for them and lacks even a rough idea of how many units comprise each group. Moreover, even if EPA had lawfully removed these CISWI units from the 112(c)(6) list, that would have no effect on the obligation under section 129 to regulate all CI SWI units. Second, EPA claims that it lacks data to promulgate standards for these subcategories. EPA’s reliance on the lack of data is arbitrary because the lack of data is EPA’s own fault. EPA states only that it has not received data, not that it has ma de any effort to obtain the data it needs. See 76 Fed. Reg. at 80460/2 (“We have not received any new emission data for cyclonic burn barrels”); id . (“we have not received data that would allow us to establish standards for the various burn

- off oven subcat egories”). It is also unlawful: EPA’s statutory obligations are in no way conditional upon whether it has enough data to comply with them. Third, EPA suggests that the abundance of these units and the fact that industry has requested that they be further s ubcategorized excuses the failure to set standards. These considerations are completely irrelevant to EPA’s obligation to set standards for all CISWI. EPA should not further subdivide these subcategories, but if that were the correct approach, EPA would be under an obligation to do so and promulgate standards for each new subcategory, not merely throw up its hands because the task is complicated. EPA’s justifications for its failure to promulgate standards for laboratory analysis units are similarly unlawfu l and arbitrary. EPA first suggests that72

laboratory analysis units are not CISWI because their purpose is not the disposal of material. But neither the statute nor the regulation limits CISWI to units that have the primary purpose of disposing of material. If a unit burns waste in accordance with the applicable definitions, it is a CISWI unit and must be subject to standards. Second, EPA states that it “believe[s] . . . based on the information available . . . that the material that is combusted in such uni ts is likely not a solid waste[.]” 76 Fed. Reg. at 80460/3. This is arbitrary. The CISWI definitions already exclude units that do not burn waste. There is no justification for an additional and potentially overbroad exclusion for a class of units on the b asis that they may not burn waste. Moreover, for EPA categorically to exclude these units from regulation, it must actually determine, based on record evidence, that they do not burn any waste, not speculate that they “likely” do not. As the D.C. Circuit h as made clear, EPA must set § 129 emission standards for any unit that burns any solid
waste.

Response: The commenter is incorrect in its assertion that EPA violated its CAA section 112(c)(6) requirement when issuing the final CISWI rule without standard s applicable to cyclonic burn barrels, burn

- off ovens (including foundry sand thermal reclamation units and other parts reclamation units), chemical recovery units, soil treatment units, laboratory analysis units, and space heaters. The commenter’s argume nt hinges on its assertion that these units were listed pursuant to section 112(c)(6). This assertion is simply false. EPA did not list any of these units among the units necessary to satisfy the section 112(c)(6) requirement, and the Agency did not list CISWI units generally. Instead, EPA determined that units in the ERU and waste burning kilns subcategories were subject to the section 112(c)(6) deadline because such units were initially identified as industrial boilers and process heaters and cement ki lns, respectively, and such units were listed for regulation. Because the sources were never listed, the commenter is incorrect in its assertion that EPA must comply with 112(c)(9) to justify not issuing standards for such units in the final CISWI rule.

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

- ordered deadline to collect sufficient data to establish such standards.

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



### 2E02. Spe cific definition comments

- cyclonic burn barrels

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: Although Dow does not currently use cyclonic burn barrels, Dow supports the conclusions that EPA reached in the March 21, 2011 final rule in adding the clarifying language
at § 60.2265 (Subpart CCCC ) and § 60.2875 (Subpart DDDD ) that "a cyclonic burn barrel is not an incinerator, waste

- bu rning kiln, an energy recovery unit or a small, remote incinerator under this subpart" (76 FR 80460). Dow requests that this clarifying language be adopted as written in the March 21, 2011 final rule and as proposed in this reconsideration proposal for bot h subparts.
Response: EPA is finalizing the definition of these units as proposed.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: The definition of cyclonic burn barrels and the decision to separate them from traditional incinerators is logical. They are difficult units to test and EPA is justified in not establishing standards as there is no emission data fo r them.
Response: EPA is finalizing the definition of these units as proposed.

Commenter Name: Michael Colton, President Commenter Affiliation: Manufacturing Systems Corporation (MSC) Document Control Number: EPA

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Comment: The definition of cyclonic burn barrels should be revised further to include open cyclonic fireboxes operating under the same principles as cyclonic burn barrels.

MSC's Firebrand Cyclonic Firebox is a mobile device for combust ion of waste. It is constructed with a steel framework, consisting of four primary corner posts and two bottom side rails, two top side rails, two or more bottom cross members, front enclosed and insulated lockable mechanical room, insulated panels and ins ulated locking rear doors with header. Its interior geometry is markedly different from other firebox configurations, with interior walls angled to provide optimum reflection of heat and repeated rapid deflection of air in a cyclonic manner to enhance the mixing of waste and air.
The cyclonic firebox operates under the same thermodynamic principles as cyclonic burn barrels, using forced air introduced by a high velocity fan at a specific angle through a plenum located above one side of the upper firebox str ucture to create a horizontal cyclonic wind/circulation in the combustion chamber for maximum combustion efficiency of waste material. The high velocity forced air creates a boundary layer that acts as a ceiling or lid similar in principle to cyclonic burn barrels, causing re

- circulation of particulates over and over in the hottest part of the firebox at temperatures between 18000F and 2500oF . Because particulates remain in the cyclonic firebox for an extended period of time under intense internal heat, alm ost all pollutants are dissipated on a molecular level before exiting into the atmosphere.74

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

Also, the cyclonic action of air and intense heat created inside the cyclonic firebox causes almost complete consumption of waste resulting in a residual benign sterile ash after the combustion process is complete. When combustion is complete, waste is reduced 94% or more by weight and 80 % or more by volume. The high efficiency combustion of the cyclonic firebox is fashioned after the same b asic fundamental principles of airflow perfected by Babcock and Wilcox in 1942 with the cyclone burner, except on a larger scale and more refined fashion in an open refractory/ceramic lined firebox application. These are the same principles used by cycloni c burn barrels for combustion of waste, with the only difference that the cyclonic burn barrel's action is vertical, while the action of the cyclonic firebox is horizontal.
In its original proposed CISWI rule, the EPA included cyclonic burn barrels within the definition for incinerators. However, based on the information received during the comment period, the EPA determined that cyclonic burn barrels and traditional incinerators should be separate subcategories. The EPA noted a cyclonic burn barrel is not an incinerator, waste

- burning kiln, an ERU or a small, remote incinerator under subparts CCCC or DODD.
The EPA further noted that information it had obtained since the CISWI rule was proposed indicates that there may be many more cyclonic burn barrels than those it had identified and the EPA had almost no emission data on which to set emissions standards for cyclonic burn barrels. The EPA had received information that it is difficult, if not impossible, to test cyclonic burn barrels for the CAA section 129 pollutants using available test methods. For these reasons, the EPA concluded in the final rules that cyclonic burn barrels were not incinerators and that it could not establish standards for such units at the time it issued the final rules. It further det ermined in the final rule that it did not need to regulate cyclonic burn barrels to comply with section 112(c)(6) of the Clean Air Act for the reasons set forth in the preamble to the final rule.

[Footnotes]
(1)CA. Miller and P. Lemieux, 2007, Emissions f rom Burning of Vegetative Debris in Air Curtain Destructors,

J. AWMA , 57,959

- 967.
Response: We are not revising the definition of “cyclonic burn barrels” as the commenter suggests. We do not have sufficient information on the unit in question to make a d efinitive assessment at this time as to whether the “cyclonic firebox” unit should be captured under the “cyclonic burn barrel definition.” In fact, based on the brief description of the cyclonic firebox provided by the commenter, we offer that this type of unit may be more appropriately considered to be an air curtain incinerator. We point out that provisions for air curtain incinerators, including descriptions of such units, are found in §60.2245 and §60.2810 of the NSPS and EG, respectively. If questi ons remain regarding applicability of one of these units, we would encourage the commenter to work with the implementing agency to submit a request for an applicability determination to EPA’s Office of Enforcement and Compliance Assessment.75

Commenter Name : William C. Allison Commenter Affiliation: Air Pollution Control Division Document Control Number: EPA

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Comment: The State recommends that the EPA amend the Other Solid Waste Incinerators (“ OSWI ”) rul es, located in 40 C.F.R. Part 60, Subparts EEEE and FFFF , to include the definition of cyclonic burn barrel as proposed to be included in the CISWI rules. The CISWI Reconsideration specifies that a “cyclonic burn barrel is not an incinerator, waste

- burning kiln, an energy recovery unit or a small, remote incinerator under” the CISWI rules, including NSPS CCCC and DDDD.[ 76 Fed.Reg.80501 and 80522 ,§§60.2265and60.2875] In the preamble to the proposed rule, the EPA based the exclusion of cyclonic burn barrels fro m the CIWSI rules on the minimal emissions data available and the inability to test cyclonic burn barrels for Clean Air Act (“CAA”) Section 129 pollutants using currently available test methods. Instead, the EPA concluded that cyclonic burn barrels are not incinerators. If cyclonic burn barrels are not considered incinerators under the CISWI rules, then they should also be excluded from the definition of incinerator under the OSWI rules.
Response: This particular comment concerns provisions in the OSWI reg ulation, not the CISWI rule provisions which this document pertains to.



### 2E03. Specific definition comments

- Burn

- off ovens

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Numbe r: EPA

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Comment: It is common practice in industry (such as plastics or latex manufacturers, plastics or latex processors, polymer production facilities, as well as others) to use on

- site ovens (electric or gas

- fired) to clean solidified material off of small metal parts (extrusion dies, screen packs, extrusion screws, filters, gears, etc.) during maintenance so these parts can be reassembled properly after the maintenance is completed. Most of these unit s do not use incineration or combustion processes. Rather, they use lower temperature processes such as melting or pyrolysis to melt/decompose materials such as plastic or polymer. Some of these ovens are specifically designed to avoid flaming conditions w hich would damage the parts being cleaned. After loading, the oven is turned on and the temperature starts to rise to the optimum cleaning temperature. As the temperature rises, the initial cleaning is accomplished by melting the material and the molten ma terial is collected in a pan or separate chamber. At some point, the conditions are such that the physical change (melting) is replaced by a chemical change (pyrolysis) to any remaining material. A number of these units have water spray controls to prevent flames and to keep the materials on the parts from burning and increasing the temperature on the part. In many cases, the on

- site units may be no larger than a residential or commercial self

- cleaning oven and will have fossil fuel BTU ratings of 1MM BTU/HR or less.76

CRWI does not believe these units should be considered as CISWI units since no solid waste is being combusted.
Response: EPA is finalizing the definition of "burn

- off oven" as proposed. As the final rule does not establish standards for these units, we need not address whether the units the commenter discusses actually combust solid waste.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: Dow supports the conclusions that EPA reached in the March 21, 2011 final rule in adding the clarifying language at § 60.2265 (Subpart CCCC ) and § 60.2875 (Subpart DDDD ) that "a burn

- off oven is not an incinerator, waste

- burning kiln, an energy recovery unit or a small, remote incinerator under this subpart" (76 FR 80460). In addition to the reasons EPA gave for reaching this conclusion, Dow briefly refers to comments we made on the proposed CISWI amendments (June 4, 2010). These comme nts provided additional reasons for not regulating burn

- off ovens under CAA section 129 that EPA has not mentioned in this reconsideration proposal. Dow provided comments that burn

- off ovens (or at least those operated by Dow) do not practice the combustio n of solid waste and are operated at temperatures low enough to
repurpose metal articles without damage so that they can be reused, and that operating conditions are designed to prevent combustion so that damage to the metal articles does not occur. In add ition, should EPA have disagreed with Dow’s claim of not practicing combustion in these ovens, Dow also commented that CAA section 129.g.1 states that the term, "solid waste incineration unit" does not include materials recovery facilities which combust wa ste for the primary purpose of recovering metals. The primary purpose of Dow’s ovens is indeed to recover metals, although the metals are recovered in the intact form of a metal article. Dow believes that the CAA section 129.g.1 language could accommodate this practice. Dow appreciates the clarifying language of the March 21, 2011 final rule and requests that it be adopted as proposed in this reconsideration proposal for both subparts.
Response: EPA is finalizing the definition of "burn

- off oven" as propos ed. As the final rule does not establish standards for these units, we need not address whether the units the commenter discusses actually combust solid waste.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incine ration (CRWI) Document Control Number: EPA

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Comment: In the March 21, 2011, final rule, EPA modified the definition of burn

- off ovens to preclude them from being regulated as CISWI units. In the preamble of this proposed rule (76 Fed. Reg . at 80,460), the Agency states that they made that decision "based on the comments, the lack of data, and our determination that we did not need to regulate burn

- off ovens to comply with our CAA section 112(c)(6) obligat ion." CRWI supports that decision.77

Response: EPA is finalizing the definition of "burn

- off oven" as proposed.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: Section 129 of the Clean Air Act requires EPA to set numerical standards for solid waste incineration units. Congress defines a "solid waste incineration unit" as "a distinct operating unit of any f

acility which combusts any solid waste material..." Congress did not define "combust" or "pyrolysis." Combustion or burning is the sequence of exothermic chemical reactions between a fuel and an oxidant accompanied by the production of heat and conversion of chemical species. In combustion, the release of heat can result in the production of light in the form of either glowing or a flame. Pyrolysis is the chemical decomposition of condensed substances by heating that occurs spontaneously at certain temperatur es, or a chemical change or degradation of material brought about by the action of heat. Melting is a physical change brought on by heat. In fact, the prevention of combustion is particularly desired in a burn

- off oven so as not to damage the metals parts being cleaned. CRWI believes these units should not be included in this rule since they practice pyrolysis of solids, are purposely designed and operated to avoid combustion, and are already appropriately addressed under various state mechanisms due to the nature of the small potential for emissions. We believe that these units were appropriately excluded in the original CISWI rule and that they should continue to be excluded.
Even if EPA were to disagree with the claim that burn

- off ovens do not employ com bustion, section 129(g)(1) clearly identifies certain units that are not solid waste incineration units under the act. One such unit is a materials recovery facility which combusts waste for the primary purpose of recovering metals. These ovens definitely have a primary purpose to recover metals even though the metals they are recovering are intact metal articles.
Response: EPA is finalizing the definition of "burn

- off oven" as proposed. As the final rule does not establish standards for these units, we ne ed not address whether the units the commenter discusses actually combust solid waste or whether they qualify as materials recovery facilities under section 112(g)(1)(A).

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible W aste Incineration (CRWI) Document Control Number: EPA

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Comment: Many burn

- off ovens are not equipped with stacks because of the small size of the units. The small units may only have a vent of 2

- 3 inches in diameter, which cannot accommodate the methods requirements for sampling (Method 1 requires a minimum stack diameter of 12 inches

– Part 60, Appendix A). In addition, these units (both small and large) are batch operated and many run on short cycles. F or example, the cycle can consist of 2 hours of heat

- up, followed by 2

- 3 hours of pyrolysis, and finally by 2

- 3 hours of cool down. The sampling methods for a number of the regulated pollutants require a sample time of three or more hours78

which can easily exceed the pyrolysis time of the units. Thus, it may be impossible for these units to use approved testing methods to conduct their initial tests or to show future compliance.
Response: EPA is finalizing the definition of "burn

- off oven" as proposed.

Com menter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: If included in the CISWI rule, it would actually be a disincentive to reuse parts, especially small parts. This appears to be in conflict with resource recovery objectives and may show that these standards do not adequately consider cost and environmental impact necessary to
prom ulgate standards under section 111. If the added expense of cleaning can be justified, facilities will need to ship these small metal parts to larger commercial units and will be forced to keep more spare parts on hand (a prohibitively large expense for ma ny specialized machined parts). Of course, such shipment assumes even the larger ovens can comply, which is not certain since EPA expected most of these ovens to shut down (75 Fed. Reg . 31,956, June 4, 2010). CRWI believes that the transportation emissions would dwarf the emissions from these small units.
In many cases, industry began to use burn

- off ovens because the previous option of chemical cleaning of these parts involved chlorinated solvents, caustic solutions or other means that were much more envir onmentally unfriendly, resulting in greater potential for exposure to employees and generating a great deal more waste. Abrasive cleaning is not a viable option for machined parts since abrasion can damage the parts rendering them useless for further proce ss use. If the Agency were to regulate burn

- off ovens, EPA will be hindering a superior cleaning method. EPA’s expectation that industry will transition to other methods ignores the fact that the other cleaning methods are environmentally and physically in ferior.
Response: EPA is finalizing the definition of "burn

- off oven" as proposed.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: Some, if not most, states already realize that the potential for emissions from these units is inconsequential because of the small amount of material that they remove and the small amount of emissions that these units could conceivably produce. The vendor for one of the units advertises in their literature that many states have long recognized that regulating the emissions from these units is a somewhat useless activity. The vendor lists the states of Alabama, Connecticut, G eorgia, Hawaii, Iowa, Kansas, Maine, Minnesota, Montana, Nevada, North Carolina, Oklahoma, South Dakota, Tennessee, Texas, and Wisconsin as having various mechanisms for addressing this miniscule concern (exemptions based on amount of emissions, exemptions based BTU release rate, exemptions based on solids capacity, permits by rule with79

only minimal requirements, etc.). To include these units as CISWI regulated units would force these states, and likely others not listed, to regulate something that they hav e long known to be a useless activity.
Response: EPA is finalizing the definition of "burn

- off oven" as proposed.

Commenter Name: Richard G. Stoll, Foley & Lardner LLP Commenter Affiliation: Reusable Industrial Packaging Association (RIPA) Document Con trol Number: EPA

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

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

‐ off

ov en. 76 FR 80460. RIPA hereby submits comments on these two issues.
(2) Revised definition
With respect to the first sentence (which is from the current final CISWI rule), we have already demonstrated in our comments of August 23, 2010 that DRUs are not bur n ‐ off ovens. There are major and legally significant distinctions. At this point, the inclusion of DRUs within the burn

‐ off definition is not harmful, since EPA is not proposing CISWI standards for units it defines as burn

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

‐ category from burn

‐ off ovens. We support the proposed ne w second sentence of the definition and encourage EPA to include it in the final CISWI rule. It is important to clarify that any unit that is now defined as a burn

‐ off oven by the CISWI rule (such as DRUs ) could not erroneously be considered as a regulated unit in one of the other CISWI categories.
Response: EPA is finalizing the definition of "burn

- off oven" as proposed.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA

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Comment: The NAM agrees with the EPA’s decision not to apply the proposed incinerator MACT standards to small "burn

- off ovens." 76 Fed. Reg . 80,460. In addition to the reasons identified by the EPA , it is not appropriate to categorize burn

- off ovens as incinerators, as most burn

- off ovens are not actually combusting material. Instead they use lower temperature processes such as melting or pyrolysis and are specifically designed to avoid flaming cond itions, which would damage the parts being cleaned.80

Response: EPA is finalizing the definition of "burn

- off oven" as proposed. As the final rule does not establish standards for these units, we need not address whether the units the commenter discusses a ctually combust solid waste.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: EPA is also justified in not es tablishing standards for burn

- off ovens. With several different types of units and a lack of data, it is not feasible to regulate these units under one set of standards.
Response: EPA is finalizing the definition of "burn

- off oven" as proposed.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 7

Comment: In many applications, the material being removed is food grade material or other materials directly used by consumers (e.g., polyethylene, polypropylene, latex etc.). As such, these materials would not be expected to contain or generate most of the Section 129 substances of concern (sulfur, chloride, lead, cadmium, an d mercury). Because of the lower pyrolysis temperatures and the low potential for chloride content, the potential to generate dioxins and furans is likewise low. Even if EPA believes they must regulate these units, there should be ample opportunity for EPA to limit any emission standards to those constituents that might be expected instead of the full Section 129 list.
Response: EPA is finalizing the definition of "burn

- off oven" as proposed. We note however, that CAA section 129 directs EPA to establish n umerical standards for nine pollutants from solid waste incineration units. See CAA section 129(a)(4). As the final rule does not establish standards for these units, we need not address whether the units the commenter discusses actually combust solid was te.

Commenter Name: Frederick Fedri Commenter Affiliation: Occidental Chemical Corporation (OCC) Document Control Number: EPA

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Comment: EPA presented reasons for its decision not to finalize standards for burn

- off ovens at this time based on (1) the realization that there may be over 15,000 more units than what was originally identified, (2) the lack of data on these units, and (3) the determination that the EPA did not need to regulate burn

- off ovens t o comply with CAA section 112(c)(6) obligations.81

Comment: OCC agrees with EPA’s position that these units should not be regulated under the CISWI regulation. OCC supports the proposed revised definition of burn

- off oven, with a further clarification to th e definition.

The current rule definition states: "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 small remote incinera tor under this subpart."
EPA Fact Sheet from the Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Natural Resources and Commerce Group described burn

- off ovens as ovens that combust residual material off racks, parts, d rums, or hooks so those items can be re

- used in various production processes. In keeping with the Fact Sheet description, OCC suggests that the EPA amend the definition to the following: "Burn

- off oven means any rack reclamation unit, part reclamation unit , or drum reclamation unit that utilizes combustion for the burn

- off of residual material. A burn

- off oven is not an incinerator, waste burning kiln, an energy recovery unit or small remote incinerator under this subpart."
This recommended change would pr ovide a comprehensive definition and clarify that material in these types of units is burned off, as opposed to other oven operations that may, as an example, involve oven curing of coated parts.
Response: EPA is finalizing the definition of "burn

- off ov en" as proposed. We do not believe the commenter’s suggested change to the definition is necessary to define the category.



### 2E04. Specific definition comments

- Soil treatment units

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: Although Dow does not currently use soil treatment units, Dow supports the conclusions that EPA reached in the March 21, 2011 final rule and adding the clarifying language at § 60.2265 (Subpart CCCC ) and § 60.2875 (Subpart DDDD ) that "a soil treatment unit is not an incinerator, waste

- burning kiln, an energy recovery unit or a small, remote incinerator under this subpart" (76 FR 80460). Dow r equests that this clarifying language be adopted as written in the March 21, 2011 final rule and as proposed in this reconsideration proposal for both subparts.
Response: EPA is finalizing the definition of "soil treatment unit" as proposed.



### 2E05. Specifi c definition comments

- Laboratory analysis units

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)82

Document Control Number: EPA

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Comment: CIBO suppo rts the exclusion of laboratory analysis units from the rule, on the basis of a lack of data and on the characteristics of these units. These are highly specialized units not likely to burn solid waste and too small and diverse to justify development of st andards.
Response: EPA is finalizing the definition of "laboratory analysis unit" as proposed.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: Dow supports the conclusions that EPA reached in the March 21, 2011 final rule in adding the definition of laboratory analysis unit and the clarifying language at § 60.2265 (Subpart CCCC ) and § 60.2875 (Subpart DDDD ) that "a laboratory a nalysis unit is not an incinerator,
waste

- burning kiln, an energy recovery unit or a small, remote incinerator under this subpart" (76 FR 80460). Dow appreciates EPA’s recognition that samples used in laboratory analysis units have a separate purpose from the disposal of material. Dow also briefly refers to comments we made on the proposed CISWI amendments (June 4, 2010) that laboratory analysis units are usually very small pieces of equipment that would be difficult, if not impossible, to sample for CAA se ction 129 pollutants using available test methods. Dow requests that this clarifying language be adopted as written in the March 21, 2011 final rule and as proposed in this reconsideration proposal for both subparts.
Response: EPA is finalizing the defini tion of "laboratory analysis unit" as proposed.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 8

Comment: In th e March 21, 2011, final rule, EPA modified the definition of laboratory analysis units to preclude them from being regulated as CISWI units. In the preamble of this proposed rule (76 Fed. Reg . at 80,460), the Agency states that they have concluded that sam ples used in laboratory analysis units "have a purpose separate from the disposal of material" and as such are not a solid waste. We agree with that logic and decision. Materials being combusted for laboratory analysis units are not being abandoned, discar ded, recycled, disposed of, inherently waste like, or thrown away. See e.g ., 40 CFR § 261.2. While these materials are destroyed in the process of making the analysis, the purpose is not destruction but analysis. We agree with the Agency that destruction o f material in laboratory instruments should not be considered as discard and as a result, the materials combusted are not solid waste and laboratory analysis units should not be included in the CISWI rule. Thus, we support EPA’s current definition of labor atory analysis units.83

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



### 2E06. Specific definition comments

- Space heaters

Commenter Name: Susan Bodine Commenter Affiliation: Used Oil Management Association (UOMA) Doc ument Control Number: EPA

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Comment: The final CISWI rule that was published on March 21, 2011, included a definition of the term "space heater." See Standards of Performance for New Stationary Sources an d Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units, published at 76 Fed. Reg . 15704 (Mar. 21, 2011) ( CISWI Rule) and 40 C.F.R. 60.2265 and 40 C.F.R. 60.2875. According to the preamble to the CISWI Rule, the purpose of that definition is to exempt space heaters from the standards promulgated in the CISWI Rule. 76 Fed. Reg . at 15713. UOMA greatly appreciates the space heater exemption in the final CISWI Rule. In developing that rule, EPA did not consider space heaters. Space heaters are not mentioned in the June 2010 CISWI or NHSM proposed rules. See Identification of Non

- Hazardous Secondary Materials That Are Solid Waste, 75 Fed. Reg . 31844 (Jun. 4, 2010) ( NHSM Proposal) and Proposed Standards of Performance f or New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incinerators, 75 Fed. Reg . 31938 (June 4, 2010) ( CISWI Proposal).

In comments filed on the NHSM Proposal and the CISWI Proposal, UOMA brought to EPA’s attention the impact of these rules on space heaters specifically and used oil management generally and expressed concern over the adverse environmental consequences that would arise if EPA established barriers to used oil recycling. One such barrier would have been the de facto prohibition on the use of space heaters that would have resulted if space heaters were subject to the CISWI Rule. In particular, UOMA raised the concern that imposing CISWI standards on space heaters would likely h ave eviscerated the existing used oil collection system, leaving do

- it

your

- self oil changers with few options for the environmentally protective management of used oil. Comments of the Used Oil Management Association on the Identification of Non

- Hazardou s Secondary Materials That Are Solid Waste, 75 Fed. Reg . 31844 (Jun. 4, 2010) Docket ID No. EPA

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- 12.
In response to these concerns, EPA promulgated a space heater exemption from the CISWI Rule. EPA explained this exemption in t he preamble to the "Identification of Non

- Hazardous Secondary Materials That Are Solid Waste," final rule, published at 76 Fed. Reg . 15456 (Mar. 21, 2011) ( NHSM Rule):
[ ] EPA is specifically clarifying in this final rule that used oil combusted in an oil

- fired space heater that meets the provisions of 40 CFR 279.23 need not be tested to establish whether or not such oil is on or off

- spec. ..... This is because the CISWI regulations promulgated elsewhere in the Federal Register today do not establish emission s limits for such units, and therefore the concerns of the commenters that such units would have to comply with CAA Section 12984

standards have been addressed for this population of combustion units." 76 Fed. Reg . at 15502, 15504, 15506.
EPA also provided a n explanation of its intent in the "Frequent Questions" document accompanying that rule (available at http://www.epa.gov/ epawaste / nonhaz /define/faq

- final.htm ). The NHSM Rule Frequent Qu estions state:
Today’s final rules do not impact the regulation of used oil burned in space heaters. Specifically, EPA is clarifying that regulation of used oil combusted in oil fired space heaters that meets the provisions of 40 CFR 279.23 would not in an y way change the current regulatory scheme or operations for burning of used oil in space heaters. . . . This is because the CISWI regulations promulgated under the Clean Air Act do not establish emissions limits for such units.

UOMA strongly supports the space heater exemption, but offers these comments to ensure that this exemption is implemented as intended by EPA.
Response: EPA has clarified in the final rule definition of "space heater" that this type of unit meets the requirements of 40 CFR 279.23, a nd that space heaters are not an incinerator, waste

burning kiln, energy recovery unit, or small, remote incinerator as proposed. To the extent the comment addresses the NHSM rule, we need not respond to it in this document.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: Dow supports the conclusions that EPA reached in adding the definition of space heater in the Ma rch 21, 2011 final rule and in proposing the clarifying language at § 60.2265 (Subpart CCCC ) and § 60.2875 (Subpart DDDD ) that "a space heater is not an incinerator,
waste

- burning kiln, an energy recovery unit or a small, remote incinerator under this subpar t" (76 FR 80460). Dow requests that this clarifying language be adopted as proposed in both subparts.
Response: EPA is finalizing the proposed definition with a small clarification. See the response to EPA

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Commenter N ame: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 19

Comment: 60.2265

- We support the exclusion of space heaters from the definition of incinerator, wa ste

- burning kiln, energy recovery unit and small remote incinerator unit.
Response: EPA is finalizing the proposed definition with a small clarification. See the response to EPA

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Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: EPA lacked data on space heaters and noted that they were not needed to meet EPA’s section 112(c )(6) obligation, and therefore did not include them in the rule. CIBO supports that outcome based also on their very insignificant emissions would not justify the effort to inventory and develop standards for these units.
Response: EPA is finalizing the p roposed definition with a small clarification. See the response to EPA

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Commenter Name: Susan Bodine Commenter Affiliation: Used Oil Management Association (UOMA) Document Control Number: EPA

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Comment: In both the preamble to the NHSM Rule, and in its "Frequent Questions" document, EPA clearly states that it intends the space heater exemption to apply to space heaters that meet the requirements of 40 C.F.R. 279.23. Th at is, space heaters that:
(1) only burn used oil generated by the owner or operated of the space heater or received from household do

- it

- yourself oil generators,
(2) have a maximum capacity of not more than 0.5 million Btu per hour, and
(3) are vented to the ambient air.
However, rather than repeating or referencing this definition, in the CISWI Rule EPA defined space heaters as: "a usually portable appliance for heating a relatively small area." EPA does not provide a definition of "usually portable" or " relatively small area." Thus, the space heater definition in the CISWI Rule is subjective and could leave space heater operators vulnerable to conflicting interpretations by enforcement officials. In fact, despite EPA’s stated intent to exempt space heater s that meet the requirements of 279.23 from the CISWI Rule, this definition could be considered inconsistent with those requirements. In particular, an inspector could decide that a unit that is vented to the outside is not portable because the vent would have to be detached before the unit could be moved.

In the CISWI Reconsideration Rule, EPA is now taking comment on the definition of "space heater." To give effect to EPA’s intent to exempt space heaters from the CISWI Rule, UOMA strongly urges EPA to cla rify this definition. Specifically, we respectfully request that EPA revise the definition of "space heater" to expressly include units that meet the requirements of 40 C.F.R. 279.23 As revised, the definitions at 40 C.F.R. 60.2265 and 60.2875 could read a s follows:86

Space heater means a unit that meets the requirements of 40 C.F.R. 279.23. A space heater is not an incinerator, waste

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

In this revised definition, the limitations on the source of the oil imposed by Part 279 serves to ensure that the exemption serves the environmental purpose of encouraging proper management of used oil. The limitation on the capacity of the unit ensures that only very small oil

- fired un its are eligible for the exemption. The requirement that the unit be vented to the outdoors ensures that health is protected. In addition to these environmental and human health protections, this definition provides a clear and objective standard that is w ell known to regulators, space heater manufacturers, and space heater operators, reducing regulatory uncertainty for all of these entities.
Response: EPA is finalizing the proposed definition with a small clarification. See the response to EPA

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

Commenter Name: Traylor Champion Commenter Affiliation: Georgia

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Comment: W e note that the conditions EPA has proposed to place on mixtures of two homogeneous wastes are not only inconsistent with the statutory language, as discussed above, but also are inconsistent with the NHSM Rule. The CISWI Reconsideration preamble language says a mixture of two homogeneous wastes must be “conditioned or processed.” Does EPA intend the term “processed” to have the same meaning as in the NHSM Rule? Under the NSHM Rule, a material that is processed and meets the NHSM legitimacy criteria is not a waste and therefore need not meet the homogeneous waste definition. However, the definition of homogeneous waste could be relevant to a secondary material that does not meet the legitimacy criteria. In such a case, what level of processing is contemplate d?
Response:
The EPA included in the final 2011 CISWI Rule a definition of homogenous waste and a process for evaluating claims that a particular waste stream is homogenous. The definition was added to the 2011 CISWI rule in response to comment. Because t he determination of homogeneity of a waste stream is relevant to applicability of CAA section 129 to qualifying small power producers and qualifying cogeneration facilities, we determined it was reasonable to include a definition of “homogenous waste” and a process by which sources could obtain a determination that a waste stream is homogenous from the EPA.
In the 2011 CISWI Rule, the EPA stated that a determination concerning whether a waste is homogeneous is made on a case

- by

- case basis. The EPA added pr ovisions to the CISWI final rule that require source owners or operators seeking the exemption to submit a request for a homogeneous waste determination to the EPA, and that they support their request with87

information describing the materials to be combust ed and why they believe the waste is homogeneous. The 2011 CISWI rule also stated that the determination of what constitutes a homogeneous waste is not delegable to the state or local agencies. In the December 23, 2011, reconsideration proposal, we propose d for comment the definition of “homogeneous waste” and the provisions for making homogeneous waste determinations that were included in the 2011 CISWI rule.
Commenters generally did not agree with the proposed definition and provisions for making a homoge neous waste determination, arguing that the definition and provisions introduced ambiguities and stipulations that would prevent classification of many materials (including fossil fuels) as being “homogeneous.” We reevaluated the definition and provisions in light of the comments and determined that the definition and provisions could be interpreted in a manner that would be unduly restrictive; however, we also determined that commenters proposed alternative definitions and provisions were equally problema tic. Therefore, the final rule does not include a definition of “homogeneous waste”. We are also removing the requirement that qualifying small power producers and qualifying cogeneration facilities that combust solid waste obtain a determination from EP A that such waste is homogenous. Because the final rule does not include a homogenous waste definition or a process to obtain a determination from EPA, we believe that it is appropriate to inform the EPA when a unit qualifies as a small power generator or cogeneration facility as defined under section 129 because the site specific fact patterns for different types of waste may vary considerably. Therefore, the final rule requires qualifying small power producers and qualifying cogeneration facilities that combust solid waste notify the EPA that such waste is homogeneous. (40 CFR 60.2020 and 40 CFR 60.2555).
Section 129 states, in part, that the term “solid waste incineration unit” does not include:
...qualifying small power production facilities, as defined in section 796 (17)(C) of title 16, or qualifying cogeneration facilities, as defined in section 796 (18)(B) of title 16, which burn homogeneous waste (such as units which burn tires or used oil, but not including refuse

- derived fuel) for the production o f 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
pur poses... CAA Section 129(g)(1)(B) (emphasis added)
We believe that the parenthetical contained in the exemption that prohibits refuse derived fuel, which is made from municipal solid waste, from qualifying as homogenous waste and allows tires and used oil to qualify as homogenous wastes provides guidance on what constitutes a homogenous waste. We do not accept industry’s assertion that any waste from a common source is homogeneous, or that in all cases combining two homogeneous wastes results in a homogen eous waste, as doing so could result in almost any waste stream being homogenous. We do not believe that is consistent with the statute. Instead, we believe Congress intended this exemption to apply only when the waste stream has a consistent makeup that allows the source and the enforcement authority to predict the range of emissions from the combustion of the waste on an ongoing basis.88

In keeping with this interpretation, we maintain that the homogeneous wastes are generally material specific (e.g. ti res or used oil). We believe this means that a homogeneous waste is of known origin and that it can be identified as a specific material or materials

– using the example in the Act, certain used oils or scrap tires. By contrast, municipal solid waste can be identified as municipal solid waste as a general term, but it is not composed of only one or two specific type of waste; e.g. municipal solid waste cannot be identified as one specific material or group of materials. Regarding variability of the compos ition of homogeneous waste throughout, homogeneous waste may have variations in composition, but it should generally be within the range of operations which produce the waste (e.g. size, contaminant levels, state of matter.) We also believe that off

- spec materials may be homogeneous, even if they are not homogeneous to the on

- spec material, and that, if combusted together, both the on

- spec and off

- spec materials may require separate homogenous waste determinations. We also believe that homogeneous
waste s hould have predictable known contaminant levels, even if those contaminant levels vary within a range. We may question the homogeneity of a specific material if it is adulterated such that it takes on the characteristics of a different type of waste (e.g. used oil which is so contaminated with PCB’s from a leaking heat exchanger, such that the used oil takes on the characteristics of a waste PCB stream as opposed to a used oil stream) or where the BTU value of a waste is so altered that other fuels must be introduced to ensure combustion and preserve the purpose of combustion under the exemption, i.e. to produce energy.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Doc ument Control Number: EPA

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Comment: We note that the conditions that EPA has proposed to place on mixtures of two homogeneous wastes are not only inconsistent with the statutory language, as discussed above, but also are inconsistent with the NHSM Rule. The CISWI Reconsideration preamble l anguage says a mixture of two homogeneous wastes must be “conditioned or processed.” Does EPA intend the term “processed” to have the same meaning as in the NHSM Rule? Under the NSHM Rule, a material that is processed and meets the NHSM legitimacy criteria is not a waste and therefore need not meet the homogeneous waste definition. However, the definition of homogeneous waste could be relevant to a secondary material that does not meet the legitimacy criteria. In such a case, what level of processing is con templated?
Response: See the response to EPA

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Commenter Name: Mark Calmes Commenter Affiliation: Archer Daniels Midland Company Document Control Number: EPA

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- A2 Comment Excerpt Number: 889

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

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Commenter Name: Traylor Champion Commenter Affiliation: Georgia

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Comment: We ask EPA to clarify the relationship b etween gasification and the definition of homogeneous wastes. As EPA recognized in the NHSM Rule, synthesis gas produced from a gasification process that meets EPA’s legitimacy criteria is not a waste. 76 Fed. Reg . at 15538 (noting that synthesis gas is pr ocessed). In addition, as discussed above, unless contained in a container, synthesis gas cannot be considered a waste. However, the preamble to the March 21, 2011, CISWI rule included troubling language that implied that synthesis gas would have to meet E PA’s definition of “homogeneous waste.” 76 Fed. Reg . at 15715 (“Gasification processes that incorporate clean up technologies in the production of synthesis gas would generally result in a homogeneous product, however, a consistent waste input would still be necessary to ensure a consistent emissions profile of the synthesis gas.”) This language is not included in the preamble to the December 23, 2011, CISWI reconsideration rule. Please confirm that synthesis gas, and indeed any gas not contained in a conta iner, is not a waste and does not need to meet any criteria applied to homogeneous waste.
Response: As stated in the preamble to the final rule, we are finalizing the proposed definition of "contained gaseous material." Under that definition, only gaseou s material that are in a container when the container is combusted are considered contained gaseous materials.

Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 10

Comment: We also ask EPA to clarify the relationship between gasification and the definition of homogeneous wastes. EPA has reaffirmed that gaseous fuels are not solid wastes. However, the preamble to the March 2 1, 2011, CISWI rule included troubling language that implied that synthesis gas would have to meet EPA’s definition of "homogeneous waste." 76 Fed. Reg . at 15715 (" Gasification processes that incorporate clean up technologies in the production of synthesis gas would generally result in a homogeneous product, however a consistent waste input would still be necessary to ensure a consistent emissions profile of the synthesis gas."). This90

language is not included in the preamble to the December 23, 2011, CISWI Reconsideration Proposal. Please confirm that synthesis gas is not a waste and does not need to meet any criteria applied to homogeneous waste.
Response: As stated in the preamble to the final rule, we are finalizing the proposed definition of "contained gaseous material." Under that definition, only gaseous material that are in a container when the container is combusted are considered contained gaseous materials.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Ow ners (CIBO) Document Control Number: EPA

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- A1 Comment Excerpt Number: 17

Comment: EPA should remove the added requirement included in this revision for small power producers and qualifying co

- generation facilities to submit a request to EPA to combust homogenous waste under the 129 exemption [40 C.F.R. 60.2020 (e) 3 and f (3)]. This request is not necessary and duplicative of the existing requirement for these facilities to notify EPA that they are operating under the 129 exemption [4 0 C.F.R. 60.2555 (e) 3 and f (3)]. If indeed EPA will not remove this duplicative requirement, differentiated in its form as a request, rather than a notice, we suggest that the notice provision be dropped and the request provision include a mandatory resp onse from EPA within thirty (30) days of receipt or the request is automatically deemed as approved.
Response: See the response to EPA

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In addition, we are retaining the requirement for sources seeking the exemption for qualifying small power production facilities and qualifying cogeneration facilities to obtain a homogenous waste determination from EPA and the Agency will make such determinations on a case

- by

- case basis as explained in the preamble to this final rule. Due to the site specific nature of homogeneous determinations and the potential for sham declarations, we believe that case by case approval process is necessary. The Agency is mindful of the need to process these as expeditiously as possible, however as not all requests contain sufficient information, or may be otherwise complex, we are unable to “automatically” approve them within some default time frame. We further note that the commenter states that provisions in 60.2020 are duplicative of 60.2555. H owever, one of these sections applies to new sources under subpart CCCC , while the other applies to existing sources under subpart DDDD . We disagree that automatic approval provisions are a necessary provision to the final rule.

Commenter Name: Mark Calm es Commenter Affiliation: Archer Daniels Midland Company Document Control Number: EPA

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Comment: Finally, ADM requests EPA to remove the added requirement included in this revision for qualifying co

- generation facilities to submit a request to the USEPA to combust homogenous waste under the 129 exemption [40 C.F

. R.60.2020 (e) 3 and f(3)]. This request is91

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

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### 2E08. Definitions

- Foundry Sand Thermal Reclamation Unit

Commenter Name: Jerry Call Commenter Affiliation: American Foundry Society (AFS) Document Control Number: EPA

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Comment: In this reconsideration and proposed amendments for the CISWI rule, EPA proposed a definition of the term, “foundry sand thermal reclamation unit.” Specifically, the unit is defined as “a type of part reclamatio n unit that removes coatings that are on foundry sand. A foundry sand reclamation unit is not an incinerator, waste

- burning kiln, an energy recovery unit, or a small, remote incinerator under this subpart.” Proposed 40 CFR §§ 60.2265 and 60.2875. With this definition EPA is confirming that foundry sand thermal reclamation units are not subject to CISWI standards. EPA’s proposed action is appropriate because these units are not incinerators and EPA never considered or evaluated them as being potentially subj ect to CISWI standards. AFS supports the proposed definition and EPA’s position that foundry sand thermal reclamation units are not subject to CISWI standards. The thermal reclamation of foundry sand provides significant environmental benefits, in additio n to producing a higher quality casting. Simply reclaiming and reusing foundry sand in the metalcasting process provides numerous environmental benefits. Thermal sand reclamation also allows for the prolonged use of foundry sand, so less virgin sand is ne eded at the foundry. This means that less sand needs to be mined. In addition, by allowing more reuse of the foundry sand in the metalcasting process, less foundry sand needs to be disposed in landfills, thereby saving limited landfill space. As a result, when foundries buy less virgin sand and dispose less sand, the transportation of these materials is significantly reduced as well as the amount of fuel used and the potential emissions associated with the transportation. The savings associated with therma l sand reclamation can be substantial. One foundry indicates that with its thermal sand reclamation unit, it only needs to add new sand about once every three months. Without thermal sand reclamation, the facility would need to add new sand and dispose of sand approximately once a week. In addition, the thermal sand reclamation process alters the physical structure of the sand so that less binder is generally needed for the metalcasting process. Using less binder results in lower emissions in other
process es that may be associated with the binders and less transportation needed for deliveries of binders. EPA has estimated that the reuse of foundry sand can reduce the amount of greenhouse gas emissions generated and reduces the overall carbon footprint of t he metalcasting industry. Thermal sand reclamation clearly makes sense from a production and product quality point of view, but also results in substantially direct and indirect environmental benefits and should,92

therefore, be encouraged rather than discou raged by unintended, unnecessary, and burdensome regulatory requirements.

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

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Docume nt Control Number: EPA

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Comment: In the preamble to the final NHSM Rule, EPA asserted, for the first time, that it considered foundry sand recycled on

- site using a thermal sand reclamation (“TSR”) unit and reused in the same process loop a “solid waste,” thereby making TSR units subject to CAA Section 129’s emission standards. See CISWI and NHSM Rules , 76 Fed. Reg . at 15,519. This statement was the first instance in a publicly available document where EP A suggested that TSR units could become subject to the CISWI Rule as “solid waste.” In its petition for reconsideration and subsequent comments, AIF commented that EPA’s statement was arbitrary and contradictory to the CAA , and urged EPA to reconsider and revise it. AIF explained that, under EPA’s line of reasoning, a host of processes not previously contemplated by EPA could become regulated under the CISWI Rule. EPA’s statement, likewise, runs contrary not only to the purposes of the CAA as set forth in Section 101(c),36 AIF explained, but also to EPA’s policy to promote reducing, reusing and recycling, see 74 Fed. Reg . 41, 46 (Jan. 2, 2009). AIF articulated that EPA’s line of reasoning would promote increased sand mining, the purchase of virgin sands for the casting industry, and require the disposal, in landfills, of huge volumes of foundry sand, rather than its recycling and reuse. Accordingly, AIF requested EPA to reconsider its determination and clarify that (1) foundry sand being rec ycled is not a “solid waste” and (2) TSR units are not solid waste incineration units subject to the requirements in the CISWI Rule (either 2000 version or 2011 version). In the proposal, EPA concludes that TSR units are parts reclamation units as defined in the 2000 CISWI Rule (“unit[s] that burn coatings off parts (e.g., tools, equipment) so that parts can be reconditioned and reused”) because TSR units are “parts reclamation units” that are on foundry sand, which allows re

- use of the sand. CISWI and NHSM Rules Reconsideration Proposal , 76 Fed. Reg . at 80,463. EPA solicits comment on the proposed definition of TSR units, see id, and elects not to propose standards for TSR units on the basis that it does not currently have emissions data for TSR units and r egulation of such units is not required to comply with its CAA § 112(c)(6) obligation. See id. EPA proposes to define “foundry sand thermal reclamation unit” as: a type of part reclamation unit that removes coatings that are on foundry sand, [and] not an i ncinerator, waste

- burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. Id. at 80,502. EPA then proposes to define a “burn

- off oven” as: any rack reclamation unit, part reclamation unit, or drum reclamation unit. A burn

- o ff oven is not an incinerator, waste

- burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. Id. Based on these definitions, then, TSR units would not be regulated under the CISWI Rule because EPA has determined that it wil l not regulate burn

- off ovens under the regulation.37 See, e.g., id. at 80,460. While AIF does not believe that TSR units qualify as CISWI units more generally, it also agrees that TSR units should not be subject to CISWI requirements because they signific antly reduce landfill through reuse, such units are numerous and there are a lack of emissions data available for them. Just like burn

- off ovens,93

these are activities that EPA should create policies to encourage, rather than discourage by regulating them u nder CISWI.38 Accordingly, consistent with its prior submittals on this issue, AIF supports both EPA’s clarification that TSR units are not incinerators and its proposed definition of “foundry sand thermal reclamation unit” in that it results in TSR units not being subjected to the CISWI rule requirements.39

[Footnotes]
(36) “A primary goal of this chapter is to encourage or otherwise promote reasonable Federal, State, and local government actions, consistent with the provisions of this chapter, for pollu tion prevention.” CAA § 101(c); 42 U.S.C. § 7401(c).
(37) In fact, TSR units have never been contemplated as falling within the CISWI program since its inception. The purpose of a TSR unit is neither to “combust” the sand, nor to reduce the volume of the s and, nor to generate heat for reuse. The purpose is simply to reuse the sand in the making of new sand cores and molds. EPA never intended to include these types of processes in the CISWI Rule.
(38) EPA also noted it was not required to include such units to comply with their Section 112(c)(6) obligations to identify categories of sources of pollutants to assure that sources accounting for not less than 90 percent of the aggregate emissions of each such pollutant are subject to Section 112 standards. See CI SWI Rule, 76 Fed. Reg. at 15,708, 15,734. To the extent Section 112(c)(6) is relevant, the same rationale applies to TSR units.

(39) For the reasons explained in its petitions for rulemaking and reconsideration, AIF does not agree that TSR units are incinerators even should they not fall within the definition of parts reclamation units and our support for the proposed definition sh ould not be interpreted as conceding this point. However, since its members would not be affected by the rule given the proposed definition, AIF supports the exclusion (albeit on different grounds).

Response: EPA is finalizing the definition of foundry s and reclamation unit as proposed.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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

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

Commenter Name: Jerry Call Commenter Affiliation: American Foundry Society (AFS)94

Document Control Number: EPA

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- A2 Comment Excerpt Number: 2 Comment: While AFS supports EPA’s proposed definition clarifying that foundry sand thermal reclamation units are not subject to CISWI standards, AFS remains concerned that EPA has not corrected its position regard ing foundry sand thermal reclamation units in the preamble to the March 21, 2011 NHSM final rule. Consistent with its proposed action in this rulemaking and the comments below, EPA should correct this interpretation by clarifying that thermal reclamation o f foundry sand for reuse in the metalcasting process is not waste management. Foundry sand is used to make molds for pouring molten metal to form castings. The sand is reclaimed for reuse in the foundry as part of the metalcasting process by both mechanica l and thermal reclamation. In the preamble to the NHSM rule, EPA reaffirmed its position that mechanically reclaiming foundry sand is not waste management. Conversely, EPA in the preamble to the NHSM rule stated for the first time that processing foundry s and in a thermal reclamation unit for reuse in the foundry was “burning for discard,” and therefore, subject to waste management requirements. 76 Fed. Reg. 15456, 15519 (2011). EPA’s position in the preamble to the NHSM rule regarding thermal reclamation o f foundry sand is not consistent with RCRA and applicable case law because thermally reclaimed sand is not discarded. Accordingly, it cannot be subject to waste management standards. Furthermore, EPA should not distinguish between mechanical and thermal re clamation of foundry sand. Both processes separate materials from the foundry sand so the sand can be reused in the metalcasting process. Again, the foundry sand is not discarded in either case and cannot be regulated as a waste. Finally, regulation of fou ndry sand thermal reclamation units pursuant to RCRA is not necessary to protect human health and the environment. These units are already subject to applicable federal, state, and local air permitting requirements. As a result, regulation of these units
p ursuant to RCRA is not only unlawful, but it is also unnecessary to protect human health and the environment. In fact as discussed below, thermal reclamation of foundry sand provides many environmental benefits. These comments are consistent with the posit ions that AFS has taken in previous documents submitted to EPA regarding the NHSM and CISWI rules, including: 1) August 3, 2010, comments on EPA’s proposed Identification of Non

- Hazardous Secondary Materials that Are Solid Waste rule; 2) May 18, 2011, Peti tion for Administrative Reconsideration, Stay and Amendment of CISWI Rules; and 3) July 15, 2011, comments on the reconsideration of Standards and Performance for New Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Was te Incineration Units. For the reasons stated above, EPA should correct its interpretation in the preamble of the NHSM rule that thermal reclamation of foundry sand is waste management. By clarifying that thermal reclamation of foundry sand (like mechanica l reclamation of foundry sand) is not waste management, EPA would be consistent with its action in this proposed rulemaking, its statutory authority under RCRA, and applicable case law.

Response : The commenter primarily discussed issues that have been pre viously dealt with within the Identification of Non

- Hazardous Secondary Materials That Are Solid Waste rulemaking (NHSM). See Docket ID: EPA

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- 0329. However, EPA is finalizing the definition of foundry sand reclamation unit as proposed.95



### 2E09. Definitions

- "Contained Gaseous Material"

Commenter Name: Edward Repa Commenter Affiliation: National Solid Wastes Management Association (NSWMA) Document Control Number: EPA

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Comment: EPA should not define landfill gas as a waste or the management of a solid waste. Landfill gas is collected because it is a valuable material when combusted for heat or to generate electricity, no differently than natural gas. The combustion of landfill gas is not different than natural gas and should not be regulated differently. In fact, landfill gas is derived from biomass rather than fossil fuel and the combustion of landfill gas burns cleaner.
Response: EPA is not defining solid waste in the CISWI r ulemaking, but we have added a definition of solid waste in the final rule that references the NHSM rule at 40 CFR part 241.

Commenter Name: Angela D. Marconi Commenter Affiliation: Delaware Solid Waste Authority (DSWA) Document Control Number: EPA

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Comment: The confusion associated with the removal of the definition for "contained gaseous material," discussed above, largely originated from the response to the comments document for the NHSM rulemaking. Comments 3b

- I3

- 2 and 3b

- I3

- 4 retracted the previous definition for "contained gaseous materials," and suggested the LFG in a pipeline should be considered a solid waste. The EPA subsequently affirmed, via the August 5, 2011 letter to Sue Briggum of Wast e Management, which the removal of the definition of "contained gaseous material" was not done with the intent to change any of the Agency's previous statements and interpretations concerning LFG. The letter further states, "EPA did not solicit comment on landfill gas in the NHSM proposal, and did not analyze or address it in the preamble to the final rule because the Agency did not intend to issue a different interpretation than it had in the past." DSWA requests that the originally accepted definition of "contained gaseous material" (included above) be incorporated into the final NHSM rule. We also request that clear language clarifying the EPA's position be incorporated into the final NHSM rule.
Response: As noted in the preamble to the final rule, we have included the definition of "contained gaseous material" from the 2000 CISWI rule in this final rule. We are also adding a definition of solid waste in the final rule that references the NHSM rule at 40 CFR part 241. EPA's proposed reconsideration rul e referred to the definition of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commercial and industrial solid waste incineration unit”, “energy recovery unit”, and “waste

- burning kiln”), but we did not include a stand

- alo ne definition of the term. We believe it is appropriate to include a definition for solid waste because only units combusting solid waste are subject to standards issued pursuant to section 129.96

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA

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Comment: EPA must clarify that the CISWI Rule does not apply to the combustion of landfill gas, either when combusted for control (as in an enclosed flare) or combusted as a fuel (as in a boiler). WM’s Petition for Reconsideration of the final CISWI Rule promulgated in March of 20112 focused on EPA’s removal of the definition of “contained gaseous material” from the final CISWI Rule, and the significan t change that action made to EPA’s established interpretation of the scope of Section 129 of the CAA , as it relates to the definition of “solid waste” under the Resource Conservation and Recovery Act ( RCRA ). EPA’s statements in a related rulemaking record suggested that EPA’s final CISWI rule departed significantly from EPA’s established interpretation of Section 129 of the CAA . Specifically, in its Response to Comments for the NHSM Rule, EPA cast significant doubt on the continued vitality of its past inte rpretation of “contained gaseous materials” that may be considered solid waste, and suggested that the combustion of gaseous emission streams for pollution control may constitute the combustion of solid waste subject to the CISWI Rule. Further, EPA suggest ed that landfill gas may constitute “solid waste” simply because landfill gas is extracted from a waste mass, and if used as fuel may be subject to a demonstration of legitimacy under the NHSM Rule. Docket Id. EPA

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‐ 214 . T aken together, these two Agency actions signaled a significant change in policy and regulatory precedent and were made without any prior notice to regulated entities, and without opportunity for comment. For over twenty years, EPA has developed a comprehen sive regulatory structure to govern the collection, control and treatment of landfill gas under the CAA

— a structure based on the correct determination that landfill gas is not a solid waste under RCRA . EPA’s deletion of the definition of contained
gaseous material from CISWI and statements in the NHSM rulemaking record threaten to undercut the existing regulatory scheme established under the CAA by potentially subjecting landfill gas combustion to the CISWI Rule. Regulation of landfill gas as a solid waste also threatens to undermine the market for landfill gas as a fuel, in direct contradiction to the stated goals of EPA’s Landfill Methane Outreach Program and the administration’s broader goals to
encourage domestic, renewable energy sources. Notwithstanding these actions, it is clear from a review of the CISWI rulemaking record that the Agency did not contemplate the possibility that landfill gas combustion units may be subject to CISWI . EPA’s evaluation of regulatory impacts did not identify massive costs associated with application of the rule to thousands of landfill gas combustion sources. Regulation of landfill gas under Section 129 of the CAA would dramatically affect the cost of capture and control of landfill gas and neither these costs nor these units were addressed. Likewise, CISWI did not include a subcategory that would apply to combustion units primarily utilizing landfill gas as fuel. WM provided cost estimates to EPA on July 15, 2011 to assist the Agency in its reconsideration of CISWI . See Docket Id. EPA

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‐ 3355 . We provided estimates of both capital expenditures for new control equipment and annual operations and maintenance costs associated with possible regulation of landfill g as capture and control as solid waste incineration. As an initial matter, WM anticipated that current third party users of landfill gas would discontinue using landfill gas when faced with strict emission limits. Without an end market for the sale or trans fer of gas, WM and other landfill owners /operators would be left with greater quantities of landfill gas to97

control. For example, landfill gas flares (which are approved pollution control devices under the Landfill NSPS and Landfill MACT ) would need to be replaced with thermal oxidizers to meet Section 129 emission limits. For WM alone, we estimated our capital costs for installation of thermal oxidizers (about $412 million) to exceed the total EPA estimated costs identified in the CISWI Rule for all its i ntended sources. Based on EPA’s estimated annual costs of compliance for each facility ($186,000), we estimated WM’s annual compliance costs would exceed $50 million per year. Such costs would be a significant financial burden for WM , and would be ruinous to the many local governments that own and operate MSW landfills and combust landfill gas for control or as fuel.
[Footnotes] 2 Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Sol id Waste Incineration Units, 76 Fed. Reg

. 15704 (March 21, 2011)
Response: As noted in the preamble to the final rule, we have included the definition of "contained gaseous material" from the 2000 CISWI rule in this final rule. We are also adding a defini tion of solid waste in the final rule that references the NHSM rule at 40 CFR part 241. EPA's proposed reconsideration rule referred to the definition of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commercial and indus trial solid waste incineration unit”, “energy recovery unit”, and “waste

- burning kiln”), but we did not include a stand

- alone definition of the term. We believe it is appropriate to include a definition for solid waste because only units combusting solid waste are subject to standards issued pursuant to section 129.

Commenter Name: Richard G. Stoll Commenter Affiliation: Foley & Lardner LLP Document Control Number: EPA

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Comment: Since 2000, in several subparts of 40 C.F.R. part 60, EPA’s regulations have provided: “Contained gaseous material means gases that are in a container when that container is combusted.” In the March, 2011 CISWI final rule, however, EPA inexplicably (and without notice) deleted t his long

- standing definition from two subparts of part 60 (subparts CCCC and DDDD). 76 FR 15704 et seq., March 21, 2011. While EPA deleted this definition from subparts CCCC and DDDD, EPA retained the definition in other subparts. As I am sure you are awar e, this deletion has created massive confusion in the regulated community, and regulated parties and the agency have expended enormous effort in followup correspondence and meetings in efforts to clarify the situation.
Lafarge has been particularly active in this regard. On June 17, 2011, Lafarge filed a “Petition for New Rulemaking” with Administrator Jackson [see EPA

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- A2 for Lafarge petition letter]. Lafarge explained that it uses landfill gas as fuel at two of its portland
cement man ufacturing facilities, and that use of such fuel (as a direct replacement for coal) results in an overall reduction in air emissions, including greenhouse gas emissions. Lafarge urged EPA to reinstate its long

- standing definition of contained gaseous mater ial.98

On August 29, 2011, Lafarge sent followup letters to each of you [see EPA

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- up letters]. In those letters, Lafarge included additional points explaining why EPA’s long

- standing regulatory language was the correct construction of the statutory phrase “contained gaseous material” and why any change in direction in the current procedural context would be legally vulnerable.

We assumed that this issue had been properly resolved when EPA published its new proposed CISWI rule on December 23, 2011. In the preamble, EPA explained that it never intended to change its long

- standing interpretation, and that: “Accordingly, the proposed CISWI reconsideration rule includes the same definition of ‘contained gaseous material’ that was removed from the final CISWI rule.” 76 FR at 80463.
EPA’s December 23, 2011 proposal was fully consistent with Lafarge’s petition and supplemental filings, and in Lafarge’s rulemaking comments of February 21, 2012, we strongly supported this proposal. Moreover, our word

- search review of the Regulations.gov dockets for the December 23, 2011 CISWI and NHSM rulemakings indicates there were no public comments in opposition to EPA’s proposal to reinstate its long

- standing definition.

We have recently learned, however, that there still may be some confusion and/or equivocation among EPA personnel regarding this issue. An example of this situation is explained in a June 8, 2012 letter to Mr. Stanislaus from numerous trade as sociations and companies [see EPA

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- A4 for letter). We fully endorse the concerns and conclusions expressed in that letter.

For the reasons set forth in our August 29, 2011 letters to each of you, we believe reinstatement of the long

- st anding regulatory language

– just as EPA proposed to do on December23, 2011

– is the only legally supportable course for EPA to follow at this point. Thank you for your attention to this important issue.
Response: As noted in the preamble to the final rul e, we have included the definition of "contained gaseous material" from the 2000 CISWI rule in this final rule. We are also adding a definition of solid waste in the final rule that references the NHSM rule at 40 CFR part 241. EPA's proposed reconsiderati on rule referred to the definition of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commercial and industrial solid waste incineration unit”, “energy recovery unit”, and “waste

- burning kiln”), but we did not include a
sta nd

- alone definition of the term. We believe it is appropriate to include a definition for solid waste because only units combusting solid waste are subject to standards issued pursuant to section 129.

Commenter Name: Richard G. Stoll Commenter Affiliatio n: Foley & Lardner LLP Document Control Number: EPA

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Comment: We recently learned that EPA is refusing to advise state regulators that gases that are not contained in a container are not solid wastes, n otwithstanding the Agency’s long

- standing position that such gases are not solid wastes; the April 13, 2011, letter from Suzanne Rudzinski,99

Director, Office of Resource Conservation and Recovery to Tim Hunt, American Forest & Paper Association; and the pre amble discussion of this issue in the December 23, 2011, Reconsideration and Proposed Amendments to the Commercial and Industrial Solid Waste Incineration (CISWI) Rule and the Non

- Hazardous Secondary Materials (NHSM) Rule.

EPA created confusion over the re gulatory status of gases that are not contained in a container in a response to comments document accompanying the March 2011 NHSM Rule. Realizing its mistake, EPA clarified the status of such gases in both the April 13, 2011 letter and the December 23, 20 11, preamble. In these documents, EPA affirmatively states that the “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 t reatment or other management of a solid waste (as defined in RCRA section 1004(27).”
Following release of the April 13, 2011 letter, the regulated community thought the issue of what is a contained gas was settled. However, we now learn that it may not be. Notwithstanding this letter, it is our understanding that EPA has refused to clarify to North Carolina air pollution control regulators that the burning of gaseous fuel derived from landfill gas and the combustion of gases in flares is not the burning of a solid waste. As a result, North Carolina has determined that such burning may be the combustion of a solid waste, suggesting that a flare would have to meet CISWI standards and a gaseous fuel would have to meet the processing and legitimacy criteria of t he NHSM Rule.
For example, in addition to confusion over permits for landfills, we are aware of one title V permit application for a flare in North Carolina that has been halted over this issue. The subject permit application is for temporary short

- term in cineration of HVLC gases (2

- 3 weeks). Without an alternative source of control during this one

- time maintenance event, the facility would have to cease operation and the cost of lost production revenue could be as much as $6 million. Add to that the reperc ussions of potential loss of customers looking elsewhere for product when the manufacturing facility is down and the effects could be permanent. Further, if the state extends its new interpretation of “contained gaseous materials” to the primary units that control these types of gases, then facilities all over the state may have to shut down. Finally, if this state and others apply the same interpretation to all combustion of gases, the implications across all manufacturing sectors will be enormous.

North Carolina relies on both an August 5, 2011, letter from Suzanne Rudzinski to Sue Briggum of Waste Management, as well as the response to comments document accompanying the March 21, 2011 Non

- Hazardous Secondary Materials Rule to reach the conclusion that ga ses that are not contained in a container may still be solid wastes. The documents highlight the importance of clarifying that all gases are not solid wastes unless combusted while in a container. EPA needs to clarify that this is the position of the Agenc y not only under the Clean Air Act, but also under RCRA.
Please be aware that EPA’s unwillingness to provide clarification to state regulators regarding the RCRA status of gaseous materials is an issue that goes far beyond landfill gas. As demonstrated by the reaction of North Carolina regulators, discussed above, a statement by EPA that one gas that is not contained in a container is a solid waste brings into question the status of all such gases, and the regulatory status of the units in which they are co mbusted.100

It is our understanding that some at EPA have attempted to distinguish landfill gas from other uncontained gases by referencing the attached March 6, 1986, letter from Marcia Williams, Director, Office of Solid Waste, to Mr. Lanier Hickman, Execut ive Director, Governmental Refuse Collection and Disposal Association. However, that letter provides no basis for an EPA determination that landfill gas is a solid waste when combusted. In fact, in Volume U of the RCRA Definition of Solid Waste Compendium, this letter is included in the subtopic “un

contained gases” so it is clear that EPA has not interpreted this letter as authority for determining that landfill gas is solid waste.

Instead, the 1986 letter responds to a question regarding the regulation of gaseous emissions from both hazardous and non

- hazardous waste landfills. The letter asserts the authority to regulate such emissions, relying on 3004(n) and 4004(a) of RCRA.

Section 3004(n) is stand

- alone authority for EPA to promulgate regulations contro lling air emissions from hazardous waste treatment, storage, and disposal (TSD) facilities. This section of RCRA does not identify such emissions as solid wastes and the authority granted under this section of the statute is completely independent of EPA’s authority over solid wastes. EPA regulations promulgated under this authority do not purport to identify gases as solid wastes. Section 4004(a) is stand

- alone authority for EPA to promulgate regulations establishing criteria for sanitary landfills. This s ection of RCRA does not discuss gaseous emissions, much less identify them as solid wastes. EPA regulations promulgated under this section of RCRA require the control of explosive gases and compliance with the Clean Air Act. They do not purport to identify gases as solid wastes. If EPA now believes that this section of RCRA represents a determination that gases generated in landfills are solid wastes, then landfills would have to cease flaring methane gas, unless the flares comply with the 2000 CISIW Rule.
This issue has enormous consequences for the undersigned sectors of our nation’s economy. Thousands of facilities are operating today based on EPA’s interpretation of the definition of contained gaseous material in the April 13, 2011, letter to Tim Hunt. T his interpretation is now being called into question and EPA cannot let the present ambiguity continue. Should EPA define a gas that is not in a container a solid waste, then EPA will shut down significant portions of the manufacturing sector, disrupt the management of sanitary landfills and wastewater treatment plants, and potentially eliminate the future ability of communities and facilities to derive energy from landfill gas as well as biogas generated during wastewater treatment. The
same consequences w ill result from EPA inaction and refusal to clarify what constitutes a contained gas.

Given the fact that this issue is impacting pending permit applications, we respectfully urge you to immediately make it clear to state regulators and the regulated commu nity in the forthcoming CISWI and NHSM rules that, for all gases, neither a combustion device nor a conveyance such as a pipe or duct that delivers gas to a combustion device constitutes a container, and that a gas that is not contained in a container cann ot be considered a solid waste under RCRA and is not subject to regulation under the Clean Air Act Section 129 incinerator rules when combusted.
Response: As noted in the preamble to the final rule, we have included the definition of "contained gaseous ma terial" from the 2000 CISWI rule in this final rule. We are also adding a definition of solid waste in the final rule that references the NHSM rule at 40 CFR part 241.101

EPA's proposed reconsideration rule referred to the definition of solid waste in the NH SM rule in multiple CISWI definitions (e.g. definitions of “commercial and industrial solid waste incineration unit”, “energy recovery unit”, and “waste

- burning kiln”), but we did not include a stand

- alone definition of the term. We believe it is appropri ate to include a definition for solid waste because only units combusting solid waste are subject to standards issued pursuant to section 129.

Commenter Name: Erika H. Frank Commenter Affiliation: Calgon Carbon Corporation Document Control Number: EPA

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Comment: EPA should retain the definition of "contained gaseous material" in the CISWI Rule and add it to the NHSM Rule, as well as confirm that offgas and process gas are not "contained gaseous ma terial" when combusted. EPA should retain a definition of "contained gaseous material" in the CISWI Rule and add it to the NHSM Rule because it is of central relevance to both rules. "Contained gaseous material" describes a category of material that, when combusted, can subject a unit to CISWI standards by virtue of the solid waste definition at 40 C.F.R. 241, the NHSM Rule (incorporating by reference the definition of "solid waste" in 40 C.F.R. § 258.2, which defines solid waste in relevant part as "discar ded material, including solid, liquid, semi

solid, or contained gaseous material"). Thus, whether a combusted gas is a "contained gaseous material" significantly affects the applicability of the CISWI Rule, by virtue of the NHSM Rule. Calgon Carbon's handl ing of process offgas illustrates this point. As with many companies, Calgon Carbon's principal operating units generate offgas that is then transmitted through pipes to separate combustion units, such as afterburners, located at the same facility. These c ombustion units serve primarily as pollution control devices. At no point in this system is the offgas containerized. Calgon Carbon appreciates that EPA has reaffirmed its longstanding position that "contained gaseous material" includes only those gases th at are in a container when that container is combusted. In EPA's May 2011 letter to the American Forest and Paper Association (AFPA), EPA clarified its approach to regulating contained gases and indicated that "burning of gaseous material, such as in fume incinerators (as well as other combustion units, including air pollution control devices that may combust gaseous material) does not involve treatment or other management of a solid waste (as defined in RCRA section 1004(27))." EPA's overall response to AF PA suggests that the CISWI Rule cannot apply to an operating unit which combusts offgas for pollution control, because such offgas is not a "contained gaseous material" and therefore not a "solid waste." Because offgas combusted in Calgon Carbon's air poll ution control device is not considered a "contained gaseous material," it is not a "solid waste" under the NHSM Rule. Accordingly, this combustion device is not subject to the CISWI Rule. Please confirm that gaseous emission streams like Calgon Carbon's pr ocess gases are not "contained gaseous material." To promote further clarity, please also add the following definition of "contained gaseous material" to both the CISWI Rule and the NHSM Rule: Contained gaseous material means gases that are in a container when that container is combusted. Offgas and process gas in pipes, vents, or ductwork which is thereafter combusted is not contained gaseous material. Finally, please ensure that this definition is inserted directly into the regulatory text of the rules.102

E PA indicated in the preamble for the December 2011 proposed revisions to the CISWI Rule that the proposed rule includes a definition of "contained gaseous material," but this is not actually reflected in the proposed revisions to the CISWI Rule.
Response: As noted in the preamble to the final rule, we have included the definition of "contained gaseous material" from the 2000 CISWI rule in this final rule. We do not believe the addition of “offgas” and “process gas” to the definition of “contained gaseous m aterial” is necessary given that according to commenters assertions it is clear that the gas is not in a container when the container is combusted. We are also adding a definition of solid waste in the final rule that references the NHSM rule at 40 CFR pa rt 241. EPA's proposed reconsideration rule referred to the definition of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commercial and industrial solid waste incineration unit”, “energy recovery unit”, and “waste

- burning kiln”), but we did not include a stand

- alone definition of the term. We believe it is appropriate to include a definition for solid waste because only units combusting solid waste are subject to standards issued pursuant to section 129.

Commenter Name: Robert L. Greene Commenter Affiliation: INGENCO Document Control Number: EPA

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Comment: The definition of a CISWI unit in 40 CFR §60.2265 previously excluded combustion turbines and reciprocating interna l combustion engines from the definition of CISWI units. The revised definition appears to have removed this exclusion, however, the EPA does not appear to have considered these in the new rule. INGENCO believes that the exclusion should be

re ‐ instated as a minimum for combustion turbines and reciprocating internal combustion engines in landfill gas service. The CISWI rule does not appear to contemplate turbines or RICE in either the discussed CISWI devices or emissions standards. It should also be noted th at the estimated number of CISWI units does not include the almost 600 renewable energy landfill gas projects.
Response: Any unit at a commercial or industrial facility that combusts solid waste for energy recovery is a CISWI unit. The commenter should d etermine based on this final rule and the NHSM rule whether it is combusting solid waste and, if so, whether EPA promulgated standards for its unit.

Commenter Name: Robert L. Greene Commenter Affiliation: INGENCO Document Control Number: EPA

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Comment: INGENCO believes that landfill gas generated by biological activity from municipal solid wastes should not be classified as a solid waste. Landfill gas handling and treatment is covered under the NSPS (40 CFR §60 Subpart WWW) which requires for landfills of a certain size destruction of the gas in an open flare, enclosed flare or by treatment for subsequent sale or use. The NSPS contains NMOC destruction standards for enclosed flares. Combustion devices

us ing treated landfill gas are covered by a number of permitting and emissions standards.103

Response: EPA is not defining solid waste in the CISWI rule, instead the Agency is defining what is solid waste in the NHSM rule. Any unit at a commercial or industri al facility that combusts solid waste for energy recovery is a CISWI unit. The commenter should determine based on this final rule and the NHSM rule whether it is combusting solid waste and, if so, whether EPA promulgated standards for its unit.



### 2E10. Def

initions

- "Chemical Recovery Unit"

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Com ment: Preamble Section I.C.11c [76 Fed. Reg . 80463

- 4] discusses another type of potentially regulated combustion unit: chemical recovery units. Identified units have been burning sulfur

- bearing compounds that are classified as non

- hazardous waste. These u nits do not fit into the existing four sub

- categories for CISWI units. EPA therefore revised the definition of chemical recovery units and has decided not to regulate them at this time.
The definition of chemical recovery unit in both Subparts CCCC and DDDD is the same:
“Chemical recovery unit means combustion units burning materials to recover chemical constituents or to produce chemical compounds where there is an existing commercial market for such recovered chemical constituents or compounds. A chemi cal 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

c harcoal. (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 th at 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 burnin g only photographic film to recover silver.” [ CCCC §60.2265 at 76 Fed. Reg . 80501 and DDDD §60.2875 at 76 Fed. Reg

. 80522].
We agree with the revised definition of a “chemical recovery unit” and agree that such units should be not be regulated at this tim e. Response: EPA included the proposed definition of "chemical recovery unit" in the final CISWI rule.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company104

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Comment: Dow supports the conclusions that EPA reached in the March 21, 2011 final rule in adding the definition of chemical recovery unit and in now adding new clarifying language at both § 60.2265 (Subpart CCCC ) and § 60.2875 (Subpart DDDD ) that "a chemical recovery unit is not an incinerator, waste

- burning kiln, an energy recovery unit or a small, remote incinerator under this subpart" (76 FR 80463). Dow’s particular interest in this definition relates to sulfuric acid recovery units, which are included in the definition as a type of chemical recovery unit. Dow requests that this clarifying language be adopted as proposed in both subparts.

Response: EPA included the proposed definition of "chemical recovery unit" in the final CISWI rule.

Com menter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: CRWI supports the conclusions that EPA reached in the Ma rch 21, 2011, final rule in adding the definition of chemical recovery unit and in now adding new clarifying language at § 60.2265 (Subpart CCCC ) and § 60.2875 (Subpart DDDD ) that "a chemical recovery unit is not an incinerator, waste

- burning kiln, an ener gy recovery unit or a small, remote incinerator under this subpart" (76 FR 80463). CRWI’s particular interest in this definition relates to sulfuric acid recovery units, which are included in the definition as a type of chemical recovery unit. CRWI request s that this clarifying language be adopted as proposed in both subparts.

Response: EPA included the proposed definition of "chemical recovery unit" in the final CISWI rule.

Commenter Name: Seyfarth Shaw LLP Commenter Affiliation: Rhodia Inc. Document Control Number: EPA

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Comment: Rhodia operates sulfuric acid recovery units ( SARUs ) that combust spent sulfuric acid, other sulfur

- bearing materials, and fuels to make virgin sulfuric acid. The 2000 CISWI rule exempted "units burning only spent sulfuric acid to produce virgin sulfuric acid" as one of seven "chemical recovery units." 65 Fed. Reg . 75,337 (Dec. 1, 2000). After the publication of the original CISWI regulations, Rhodia asked the Agency to clari fy that SARUs are exempt even though SARUs combust more than simply spent sulfuric acid to produce virgin sulfuric acid. In response, the EPA wrote to Rhodia on August 27, 2004, explaining that the exemption in the 2000 CISWI rule covered Rhodia's SARUs and was based on the Agency's understanding that Rhodia's SARUs combust "spent sulfuric acid, air, an additional sulfur source (molten sulfur,105

hydrogen sulfide, disulfide oil, other sources), and fuel (natural gas, fuel oil, alternative non

hazardous fuel s)."
The 2010 proposed CISWI rules (75 Fed. Reg . 31,938) eliminated the explicit exemption for chemical recovery units. Without the exemption, and because some non

- hazardous sulfur

bearing materials and fuels burned in SARUs appeared to meet the definition of non

- hazardous "solid waste" under the proposed NHSM rule (7 5 Fed. Reg . 31 ,844 ), it appeared that the EPA intended to regulate SARUs as CISWI units.

Rhodia's comments on the 2009 ANPR and the 2010 proposed CISWI rule asked the EPA to re

incorporate t he explicit exemption for chemical recovery units (including SARUs ). Rhodia described various types of secondary materials combusted in SARUs , explaining that: Rhodia's sulfuric acid manufacturing process does not rely solely on virgin sulfur. Instead sulf ur is derived from a variety of sources, including spent sulfuric acid and other sulfur

- bearing materials. Other sulfur

- bearing materials are processed in the same manner as spent sulfuric acid in the production of virgin sulfuric acid.

Rhodia further comm ented that if the types of materials combusted in SARU s constituted non

hazardous secondary materials that are solid wastes, thereby subjecting SARUs to regulation as CISWI units, then the CISWI rule was unclear as to which category of regulated CISWI units would include SARUs . The EPA has addressed Rhodia's comments in the proposed revisions to the CISWI and NHSM rules published in the Federal Register on December 23, 2011. The proposed CISWI rule contains a definition of "chemical recovery unit" that spe cifically includes "units burning only spent sulfuric acid used to produce virgin sulfuric acid." 76 Fed. Reg

. 80,454, 80,501 (Dec. 23, 2011). The proposed rule on reconsideration specifically excludes chemical recovery units from the definition of the fou r CISWI categories subject to regulation under the CISWI rule. The EPA also notes in the Federal Register preamble that SARUs "may be burning sulfur

- bearing compounds which are classified as non

- hazardous waste at facilities that

are non

- RCRA part B permit ted SARUs ." 76 Fed. Reg . at 80,463. By including identical language in the December 23, 2011 proposed rule to what was in the original CISWI rule, the Agency clearly intends to interpret the definition of a "chemical recovery unit" consistently with the 20 04 guidance. As discussed above, the 2004 guidance clarified that Rhodia's SARUs are chemical recovery units. For these reasons, Rhodia supports the Agency's proposed revision to the definition of "chemical recovery unit" and exclusion of chemical recovery units (including Rhodia's SARUs ) from regulation as CISWI units. Rhodia believes that these revisions are consistent with the Agency's intent with respect to SARUs from the beginning.

Response: EPA included the proposed definition of "chemical recovery unit" in the final CISWI rule.



### 2E11. Definition of Municipal Solid Waste

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM)106

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Comment: In the CISWI Reconsideration Rule proposal, EPA identifies the proposed addition of the definition of “municipal solid waste” to the CISWI rule definition as a “technical correction” that would “further clarify applicability for MWC owners who question whether CISWI or MWC rules are applicable to their solid waste combustion unit.” 76 Fed. Reg . at 80465. As an initial matter, the Reconsideration proposal rule text does not include a definition of “municipal soli d waste” and therefore the proposed technical correction creates an ambiguity within the rule and does not provide an opportunity for review of the proposed revision. Further, addition of the “municipal solid waste” definition, without additional clarifica tion relating to the scope of CISWI relative to other CAA Section 129 standards, does not provide clarity to the regulated community.
Specifically, EPA should clarify that CISWI does not apply to any municipal solid waste combustion unit that is regulated under any of the municipal waste combustor standards, including OSWI. Further, EPA should clarify that CISWI does not apply to any combustion unit that is otherwise exempt from the municipal waste combustion standards because it is subject to a federally enforceable permit condition limiting the combustion of municipal solid waste to less than 30% of the total fuel input by weight. WM suggests that EPA clarify these concepts through the following revision to 40 CFR §60.2020: (c) Municipal Solid Waste Combu stion Units. The following municipal solid waste combustion units are exempt from this subpart:
(1) Combustion units that are subject to subpart Ea of this part (Standards of Performance for Municipal Waste Combustors); subpart Eb of this part (Standards of Performance for Large Municipal Waste Combustors); subpart Cb of this part (Emission Guidelines and Compliances Time for Large Municipal Waste Combustors); subpart AAAA of this part (Standards of Performance for Small Municipal Waste Combustion Units); subpart BBBB of this part (Emission Guidelines for Small Municipal Waste Combustion Units); subpart EEEE of this part (Standards of Performance for Other Solid Waste Incineration Units); or subpart FFFF of this part (Emission Guidelines and Compliance Time s for Other Solid Waste Incineration Units).
(2) Any combustion unit that is exempt from the standards identified in paragraph (c)(1) above on the basis that it is subject to a federally enforceable permit condition limiting the combustion of municipal sol id waste to 30% of the total fuel input by weight. In addition to the above

‐ referenced revision to 40 CFR §60.2020, WM suggests that EPA revise the definition of “commercial and industrial solid waste incineration unit” to include the following clarificati ons:

“ The definition of CISWI unit does not include municipal solid waste combustion units identified within 40 CFR §60.2020(c), and does not include internal combustion engines, gas turbines or other combustion devices that combust landfill gases collecte d by landfill gas collection systems .” WM believes these changes will further clarify the scope of CISWI relative to the CAA Section 129 municipal solid waste combustion standards. Additionally, the clarification with respect to landfill gas fired combusti on units is consistent with existing CAA Section 129 municipal waste combustion unit standards, and will appropriately reflect EPA’s long

‐ standing interpretation with respect to the regulation of landfill gas as an uncontained gaseous material rather than as a solid waste.107

Response: As stated in the reconsideration proposal, EPA intended to include a regulatory definition of municipal solid waste in CISWI to provide the clarity to the regulated community concerning applicability of the various CAA section 129 standards; however, the amendatory text for the proposed rule did not include a definition for municipal solid waste. We have corrected this oversight in the final rule by including the definition of "municipal solid waste" as defined in 40 CFR part 6 0, subpart AAAA applicable to small MWCs . We are also including in sections 60.2020 and 60.2555 of the final rule, as the commenter suggests, an exemption from CISWI for solid waste incineration units subject to OSWI . EPA has consistently exempted solid waste incineration units subject to other section 129 emissions standards from CISWI , and the lack of an exemption for OSWI units from the CISWI standards was an oversight. We do not agree with the commenter that the exemption for OSWI units should be inc luded in the exemption for units subject to section 129 standards specific to municipal waste combustion units because OSWI regulates units that are not municipal waste combustion units in addition to regulating very small municipal waste combustion units. For this reason, we are including an exemption specific to OSWI in this final rule.
Regarding the commenter’s request that CISWI not apply to units combusting less than 30% municipal solid waste ( MSW ) that are exempt from municipal waste combustion standards, this exemption was removed from the CISWI rule in the June 4, 2010 proposal, consistent with the D.C. Circuit’s decision that any unit burning any solid waste is subject to standards issued
pursu ant to CAA section 129, unless such unit is exempted pursuant to one of the four statutory exemptions. See Natural Resources Defense Council v. EPA , 489 F.3d 1250, 1257

- 58 (D.C. Cir. 2007) ( NRDC Decision). The exemption for units burning less 30% or less of MSW was not consistent with the NRDC Decision because units at commercial or industrial facilities that are combusting MSW are still combusting solid waste. The statutory exemption from the definition of “municipal solid waste” simply provides that un its burning MSW at those levels are not deemed to be combusting MSW such that the units should be subject to section 129 standards as municipal waste combustion units. EPA did not re

- open this issue in the reconsideration of the CISWI rule, and we are not revising the rule in response to this comment.
Landfill gas and contained gaseous material are discussed elsewhere within this document.

Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Cont rol Number: EPA

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Comment: EPA states that it is providing a definition of "municipal solid waste" in the CISWI rule. 76 Fed. Reg . at 80465. However, no such definition appears in the regulatory language . We agree that such a definition would be helpful in determining what units are subject to CISWI and what are subject to the municipal waste combustor rule and request EPA to include such a definition in the final rule.
Response: As stated in the reconsi deration proposal, EPA intended to include a regulatory definition of municipal solid waste in CISWI to provide the clarity to the regulated community concerning applicability of the various CAA section 129 standards; however, the amendatory text for the p roposed rule did not include a definition for municipal solid waste. We have108

corrected this oversight in the final rule by including the definition of "municipal solid waste" as defined in 40 CFR part 60, subpart AAAA applicable to small MWCs

.

Commente r Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA

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Comment: EPA Should Clarify the Provisions of CISWI that Reference Municipal Solid Waste Combustion

WM req uests that EPA clarify the extent to which CISWI may apply to municipal solid waste combustion units. In this context, WM notes that both the final rule and the Reconsideration proposal include changes that are confusing and potentially inconsistent with r espect to CISWI applicability for municipal waste combustors . By way of background, EPA has promulgated a series of regulations under Section 129 of the Clean Air Act, 42 U.S.C. §7429 (“CAA Section 129”) that would seem to cover the universe of sources that may be regulated as municipal waste combustion units. See, for example, 40 CFR Part 60 Subpart Ea , Standards of Performance for Municipal Waste Combustors for Which Construction is Commenced After December 20, 1989 and on or before September 20, 1994; 40 CFR part 60 Subpart Eb , Standards of Performance for Large Municipal Waste Combustors for Which Construction is Commenced After September 20, 1994 or for Which Modification or Reconstruction is Commenced After June 19, 1996; 40 CFR Part 60, Subpart AAAA Standards of Performance for Small Municipal Waste Combustion Units for Which Construction is Commenced After August 30, 1999 or for Which Modification or Reconstruction is Commenced After June 6, 2001; and 40 CFR Part 60, Subpart EEEE Standards of Performance for Other Solid Waste Incineration Units for Which Const ruction is Commenced After December 9, 2004, or for Which Modification or Reconstruction is Commenced on or After June 16, 2006 (“OSWI”). 4 Under the current regulations identified above, large, small and very small municipal waste combustors would be regul ated under CAA Section 129 standards. Note, however, that all of the above standards, including OSWI , exempt units that are subject to a federally enforceable limitation restricting the combustion of municipal solid waste to less than 30% of the total fuel input by weight, consistent with the language in CAA Section 129(g)(5). See e.g. 40 CFR §60.2887(b). As originally promulgated, 5 CISWI contained a provision in 40 CFR §60.2020(c) that exempted municipal waste combustion units that were either (1) regulate d under existing municipal waste combustor standards (at that time, Subparts Ea
, Eb , and AAAA and their Emission Guidelines counterparts), or (2) that combust greater than 30% municipal solid waste or refusederived fuel, and had the capacity to burn less t han 35 tons per day of municipal solid waste. Subsequently, EPA promulgated the OSWI standards, which regulated very small municipal waste combustion units (those with the capacity to combust less than 35 tons per day of municipal solid waste or refuse

‐ der ived fuel). In the currently effective CISWI rule, promulgated on March 21, 2011 (76 Fed. Reg . 15704), section 60.2020(c) was revised to remove the second part of the exemption that previously applied to municipal waste combustion units combusting greater than 30% municipal solid waste and with the capacity to combust less than 35 tons per day of municipal solid waste (which are now regulated under OSWI ). The removal of this provision created some confusion within CISWI with respect to the scope of CISWI re lative to other CAA Section 129 standards governing municipal solid waste109

combustion, because section 60.2020(c) does not reference OSWI , and it does not expressly maintain the 30% municipal solid waste exemption.

[Footnotes]
(4) Note that EPA has also pr omulgated Emission Guidelines for certain categories of municipal
waste combustors at 40 CFR Part 60, Subparts Cb

, BBBB and FFFF

. (5) CISWI was originally promulgated on December 1, 2000 at 65 Fed. Reg . 75350

. Response: As stated in the response to EPA

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Commenter Name: William C. Allison Commenter Affiliation: Air Pollution Control Division Document Control Number: EPA

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Comment: The State suggests that the definition of small, remote incinerators (“SRI”), as proposed in the CISWI Reconsideration, be revised to allow those SRI that also meet the definition of very small municipal waste combustion units (“VSMWC units”), as defined in the OSWI rules, to be excluded under the CISWI rules and subject only to the requirements of the OSW I rules.

In the CISWI Reconsideration, the EPA defines SRI as “an incinerator that combusts solid waste ... and combusts 3 tons per day or less solid waste and is more than 25 miles driving distance to the nearest municipal solid waste landfill.”[ 76 Fed.Reg. 80502 and 80523 ,§§60.2265and60.2875] The EPA defines solid waste as “any garbage, or refuse ... and other discarded material ... resulting from industrial, commercial, mining, and agricultural operations ...”[40 C.F.R.§258.2] Similarly, the EPA defines VSMWC units under the OSWI rules as “any municipal waste combustion unit that has the capacity to combust less than 35 tons per day of municipal solid waste or refuse

- derived fuel.”[40 C.F.R.§§60.2977and60.2875] The EPA defines municipal solid
waste as “refuse and re fuse derived fuel collected from the general public and from residential, commercial, institutional and industrial sources consisting of paper, wood, yard wastes, etc. ...” [40 C.F.R.§§60.2977and60.2875]
There is an overlap in these definitions where a waste could be considered both municipal solid
waste as defined in the OSWI rules and solid waste as defined in the CISWI rules, and therefore an incinerator could qualify as both a SRI and a VSMWC unit. Because the CISWI rules preempt the OSWI rules, those uni ts qualifying as SRI would be subject to the CISWI rules alone [40 C.F.R. §60.2887(d)]. In these situations, the State would instead prefer that the EPA regulate such small emission units under the OSWI rules as VSMWC units.
Response: As stated above, EP A is excluding from CISWI solid waste incineration units that are subject to OSWI . Based on this revision, units that meet the definition of an OSWI unit would not also be subject to CISWI . We understand that it is possible that units in the small
remote incinerator unit (SRI) subcategory would be subject to OSWI instead of CISWI if they110

combust MSW and that MSW accounts for more than 30 % of the inputs for the unit. EPA does not have information at this time to determine whether any units in the SRI subc ategory are very small MWCs subject to OSWI instead of CISWI and the commenter has not provided information to allow us to make such a determination. Owners and operators of units in the SRI subcategory that believe they meet the definition of a very small MWC should seek an applicability determination from EPA to determine the app ropriate section 129 standards applicable to their units.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA

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Comment: EPA Should Clarify that Secon dary Material Fuels May be Processed from Municipal Solid Waste

The NHSM Rule is clear on its face that secondary materials that have been discarded may be processed into legitimate non ‐ hazardous secondary material fuels. See 40 CFR §241.3(b)(4). Because t he definition of “secondary materials” is broad in scope, the NHSM Rule provides an opportunity for meaningful and innovative materials recovery and management. However, the rulemaking record indicates that the Agency has responded to questions and comment s expressing concerns that the NHSM Rule would allow for the combustion of “solid waste” in contravention of CAA Section 129. In responding to comments about the application of the NHSM Rule to municipal solid waste streams, EPA has looked to the language of CAA Section 129 to underpin its responses. EPA has stated that Section 129 of the CAA does not define “solid waste,” but instead provides under 129(g)(6) that the definition and scope of “solid waste” will be established by the Administrator under RCRA. EPA has clearly promulgated the NHSM Rule precisely for the purpose of defining solid waste, and for providing a rigorous framework under which solid wastes may be sufficiently processed, managed as valuable commodities, and have comparable contaminant le vels to those of traditional fuels, to be considered legitimate

non ‐ waste fuels. EPA has not applied the framework differently to various components of the solid waste stream. The Agency has established a framework in which the Agency maintains strict cont rol and oversight over the use of secondary materials as fuels so that it may prevent sham recycling or combustion for the sake of disposal. As companies continue to work to recover value from spent materials that would otherwise be disposed, they will foc us on all aspects of the solid waste stream as sources of valuable feedstock. These material streams will likely include components of the post

‐ consumer municipal solid waste stream that are difficult to recycle, as well as pre

‐ consumer industrial, commerc ial and other sorted waste materials. As part of its mission to support materials management and sustainability efforts of the public and private sectors, EPA should clarify that municipal solid waste, like any other solid waste fuel feedstock, is eligible for evaluation under the NHSM Rule legitimacy framework. WM has appended a legal analysis at Attachment B to assist in this effort.
Response: As we discussed in the December 2011 proposed CISWI rule, the definition of municipal solid waste is being inclu ded in the CISWI rule to clarify applicability for MWC owners who question whether CISWI or MWC rules are applicable to their solid waste111

combustion unit (76 FR 80465). The applicability section of the CISWI rule provides further clarification that sources subject to other CAA section 129 requirements are not subject to the CISWI standards. We have noted the oversight of not including amendatory language in the proposal that would include the definition of "municipal solid waste" into the CISWI rule. We ha ve corrected this oversight in the final rule and, as we intended, have included the definition of "municipal solid waste" as defined in the MWC rule subparts.

The commenter primarily discussed issues that are being dealt with within the Identification of Non

- Hazardous Secondary Materials That Are Solid Waste rulemaking ( NHSM ). To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.



### 2F. Providing an affirmative defense for malfunction events

Commen ter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: EPA states in the final CISWI rule that, “consistent with” the holding in Sie rra Club v. EPA , 551 F. 3d 1019 (D.C. Cir. 2008), cert. denied , 130 S. Ct. 1735 (2010) (“ Sierra Club ”), it has established emission standards that apply at all times, even during a period of malfunction. 76 Fed. Reg . at 15737

- 38. There are a number of flaws in this statement and in EPA’s approach to malfunctions experienced by CISWI units, rendering it contrary to the requirements of § 111 and § 129 of the Clean Air Act. More specifically: EPA misinterprets both the relevance and the holding of Sierra Club.
EPA failed to consider malfunctions in establishing CISWI numeric emission standards. EPA failed to present any rationale or justification for its decision to apply the same numeric emission standard established f

or normal operations during an abnormal event, i.e., a malfunction. The Clean Air Act gives EPA an appropriate tool for setting emission standards that apply during malfunctions: a “design, equipment, work practice or operational standard”. EPA’s inclusion of an affirmative defense is not a substitute for establishing a § 111 and § 129

- compliant standard for malfunction events. EPA’s affirmative defense requirements are potentially unconstitutional, but certainly unreasonable and not consistent with §§ 111 and 129.
Response: The EPA disagrees that the EPA must consider malfunctions in establishing CISWI standards. There is nothing in CAA section 111 or 129 that directs the Agency to consider malfunctions when setting emission standards. Moreover, while the EPA accounts for variability in setting emissions standards consistent with the CAA section 111 case law, nothing in that case law requires the Agency to consider malfunctions as part of that analysis. CAA section 111 does not require that emissions that o ccur during periods of malfunction be factored into development of CAA section 111 standards. This equates to the commenter asking that the EPA determine the likelihood, frequency, duration, and nature of a failure at the facility when setting the standar d. Such an approach is not required under section 111 or 129.112

As explained above, the EPA has determined that CAA sections 111 and 129 do not require that emissions that occur during periods of malfunction be factored into development of CAA section 129 s tandards.
The EPA disagrees that we failed to present any rationale to apply the same numeric standards to malfunctions as apply during normal operating periods. The EPA has provided a detailed justification for its approach to malfunctions in the preamble to the proposed rule, and in the preamble to this final rule. In addition, as we explained in the preamble to the proposed rule, we recognize that even equipment that is properly designed and maintained can fail and that such failure can cause an exceed ance of the relevant emission standard. We are including an affirmative defense in the final rule as we have in other recent section 112 and 129 rules so as to balance the tension, inherent in many types of air regulation, to ensure adequate compliance whi le simultaneously recognizing that despite the most diligent of efforts, emission limits may be exceeded under circumstances beyond the control of the source. Mont. Sulphur & Chem. Co. v. United States EPA, 2012 U.S. App. LEXIS 1056 (Jan 19, 2012) (reject ing argument that reliance on the affirmative defense was not adequate). EPA must establish emission standards that “limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” 42 U.S.C. § 7602(k)(defining “emission l imitation and emission standard”). See generally Sierra Club v. EPA , 551 F.3d 1019, 1021 (D.C. Cir. 2008) (emissions limitations under CAA section 112 must both continuously apply and meet section 112’s minimum stringency requirements, even during periods of startup, shutdown and malfunction). Thus, we are required to ensure that section 112 and 129 emissions limitations are continuous. As EPA further explained in those preambles, the EPA has determined that CAA sections 112 and 129 do not require that emi ssions that occur during periods of malfunction be factored into development of CAA section 112 and 129 standards. As the EPA further explained, accounting for malfunctions would be difficult, if not impossible, given the myriad different types of malfunct ions that can occur across all sources in the category and given the difficulties associated with predicting or accounting for the frequency, degree, and duration of various malfunctions that might occur.
CAA section 129 does not allow EPA the option of s etting work practice standards. Section 129 requires numeric emission standards for the pollutants specified in Section 129(a)(4). Thus, EPA does not agree with commenter’s suggestion that EPA apply work practices for malfunction
events.

The EPA’s view is that an affirmative defense to civil penalties for exceedances of applicable emission standards during periods of malfunction appropriately balances competing concerns. On the one hand, citizen enforcers are concerned about additional complications in t heir enforcement actions. On the other hand, industrial sources are concerned about being penalized for violations caused by malfunctions that could not have been prevented and were otherwise appropriately handled (as reflected in the affirmative defense c riteria). The EPA has utilized its Section 301(a)(1) authority to issue regulations necessary to carry out the Act in a manner that appropriately balances these competing concerns.EPA maintains that it has sufficiently explained the legal authority for the affirmative defense requirements and why the approach is reasonable in the rulemaking record, including within this response to comments document.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC)113

Document Control Number: EPA

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Comment: EPA states that it is requiring that sources meet numeric emission standards established for normal operations at all times, including during a malfunction event, “[c] onsistent with Sierra Club v. EPA .” 76 Fed. Reg . at 15738. The D.C. Circuit’s Sierra Club decision does not, however, compel or even support EPA’s position that the same numeric standards established for normal operations must also apply during a malfunction event. As an initial matter, the Sierra Club decision interpreted § 112, not § 129 (which incorporates by reference § 111 and is mutually exclusive of § 112). This is not a mere technical distinction.
The D.C. Circuit Court considered certain statutory language di spositive in interpreting EPA’s standards

- setting authority under § 112. Specifically, the statement in the definition of “emission limitation” and “emission standard”, i.e., that it “limits the quantity, rate, or concentration of emissions of air polluta nts on a continuous basis”. This statement has been in the statute since 1977. Throughout that time, EPA has exempted emissions during SSM events from compliance with NSPS under CAA § 111. See , 40 C.F.R. 60.8(c). In fact, Congress enacted the “continuo us basis” language in § 302(k) knowing that EPA’s emissions standards under § 111 exempted SSM periods. There is nothing in the legislative history of the 1977 amendments to the CAA that suggests Congress intended to overturn that practice. 5 Moreover, co urt decisions both before and after the Clean Air Act Amendments of 1977, some of which are cited below, have affirmed the appropriateness of including an SSM exemption in standards issued under § 111. Although EPA claims that by requiring that the CISWI s tandards be met at all times, thereby ignoring or assuming away a malfunction, it is acting “consistent with Sierra Club ,” that claim really does nothing to justify EPA’s actions in this proposed reconsideration since the Sierra Club decision relates to a different type of action (exempting emissions from any § 112 standard) under a different statutory provision (§ 112). Even if Sierra Club were relevant to and binding upon EPA’s promulgation of performance standards for CISWI units under §§ 111 and 129, h owever, it would not preclude EPA from establishing distinct requirements applicable during a malfunction. The Sierra Club ruling vacated the exemption for excess emissions during periods of SSM contained in the General Provisions, 40 C.F.R. part 63 subpar t A, for emission standards for hazardous air pollutants regulated under § 112. At issue was EPA’s determination that excess emissions during periods of SSM experienced by major sources are not violations as long as the owner/operator has prepared a SSM p lan and complies with a “general duty” to minimize emissions. The court concluded that the “general duty” was not a “section 112

- compliant standard.” However, the court did not imply much less state that the same emission limits that EPA establishes for no rmal operations must apply during SSM events. In fact, the court clearly indicated that § 302(k)’s “inclusion of [the] broad phrase” “any requirement relating to the operation or maintenance of a source to assure continuous emission reduction” in the defin ition of “emission standard” suggests that EPA can establish MACT standards consistent with § 112 “without necessarily continuously applying a single standard.” 551 F.3d 1019, 1021. The court accepted that “continuous” for purposes of § 302(k) “does not m ean unchanging....” Id. at 1021. The court also highlighted the fact that Congress recognized that it might not be feasible in all cases to prescribe or enforce a numeric emission standard. Congress therefore provided in § 112(h) for the establishment of a “ work practice” or “operational standard.” Id. at 1028. EPA is now soliciting comments on its determination in the final rule that CISWI units must meet the numeric emission standards established for steady

- state operations at all times, including periods114

o f malfunction, and that the only enforcement relief that may be available in the event of a malfunction is an “affirmative defense” to civil penalties. EPA is completely silent on why it is not exercising the discretion and authority provided by Congress in § 111(h) to address CISWI unit malfunctions; in fact, it does not even mention that statutory authority in discussing malfunctions. If EPA wants to act “consistent with” the court’s decision in Sierra Club, it should promulgate standards for periods of malfunction pursuant to its § 111(h) authority. If EPA chooses to reject the flexibility that Congress clearly intended the Agency to use when it is not feasible to prescribe or enforce a numeric emission standard, it needs to explain its legal authority f

or these affirmative defense requirements and why each of the requirements is reasonable and justified, taking into consideration alternative solutions. [Footnote: 5 Rather, the “continuous basis” language related to a debate in Congress about whether sou rces should be allowed to use temporary or intermittent pollution control technologies, as the Sierra Club court recognized. See 551 F.3d at 1027, citing Kamp v. Hernandez, 752 F.2d 1444, 1452 (9th Cir.1985). It had nothing to do with limitations applied d uring startup, shutdown, or malfunction, nor with EPA’s established practice of exempting excess emissions during SSM events from its performance standards.]
Response: With respect to meeting the same numeric emission standard during malfunctions, please see the response to comment EPA

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As for commenters that believe that Sierra Club v. EPA only applies to section 112 standards, we disagree. The EPA believes the reasoning in the D.C. Circuit’s decision in Sierra Club v. EPA applies equally to section 111 and 129 rules. The EPA’s proposed approach to SSM periods has been used consistently in CAA section 112, CAA section 111, and CAA section 129 rulemaking actions since the D.C. Circuit’s decision in Sierra Club v. EPA

, 551 F.3d 1019 (D.C. Cir. 2008) vacated the SSM exemption contained in CFR 63.6(f)(1) and 40 CFR 63.6(h)(1). (See, e.g., National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry and Standards of Performance fo r Portland Cement Plants, 75 FR 54970 (September 9, 2010); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units; Final Rule, 76 FR 15372 (March 21, 2011); National Emission Stand ards for Hazardous Air Pollutants from Coal

- and Oil

- fired Electric Utility Steam Generating Units and Standards of Performance for Fossil

- Fuel

Fired Electric Utility, Industrial

- Commercial

- Institutional, and Small Industrial

- Commercial

Institutional Steam Generating Units; Final Rule,77 FR 9304 (February 16, 2012).
As explained in the preamble to the proposed rule and this final rule, the EPA has determined that CAA sections 112 and 129 do not require that emissions that occur during periods of malfunction be factored into development of standards under any subsection of section 112 and 129. Section 129 of the CAA does not authorize the EPA to promulgate work practice standards under section 129. Section 129 requires numeric emission standards for the poll utants specified in Section 129(a)(4). Further, the EPA has maintained in this and prior rule makings, accounting for malfunctions on a category

- wide, 112 or 129

- wide basis would be difficult, if not impossible given the myriad different types of malfuncti ons that can occur across all sources in the category, and in the NESHAP and 129 programs.

.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC)1 15

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Comment: The affirmative defense regulatory language in § 63.2120 and § 63.2685 opens with the words: “In response to an action to enforce the standards set forth in...” and repeats this thought in paragraph (a) of the section: “To establish t he affirmative defense in any action to enforce such a limit...” (emphasis added). This opening language leaves a regulated party to believe that if any action is taken against that party to enforce an emission limit exceeded during a malfunction, the party may avail itself of an affirmative defense if it meets various criteria. However, this is not the way EPA’s affirmative defense would play out.

In § 63.2120(b), 9 EPA establishes strict notification requirements that must be followed for the owner/operator to be able even to raise an affirmative defense if and when an enforcement action is brought. First, the owner/operator must notify EPA by phone or FAX as soon as possible, but no later than two business days after the “initial occurrence of the malfuncti on.” Then, within 45 days of the “initial occurrence of the exceedance of the standard,” the owner/operator must submit a written report accompanied by all necessary supporting documentation to show that it has met each and every requirement set forth in p aragraph (a) of §63.2120. The regulations further state that these reports must be made if the source operator “wishes to avail itself of” the affirmative defense, § 63.2120(b), and “to establish the affirmative defense” the operator “must timely meet the notification requirements in paragraph (b),” §60.2120(a). Because of the short time frames prescribed for reporting, the reality is that EPA is requiring the facility to present its entire detailed defense in writing to EPA before the Agency has even dec ided whether to take any enforcement action. To require a party to lay out its entire defense to a potential future enforcement action before that action may be taken is wholly inappropriate and unacceptable.
EPA has cited no legal authority for its use of affirmative defense requirements that inappropriately and unlawfully shift the burden to the facility to prove by a preponderance of the evidence that any excess emissions were caused by a true malfunction and that the facility meets all of the other spec ified factors in § 63.2120. EPA’s affirmative defense places the facility in the position of proving its innocence, rather than EPA or other regulatory authority bearing the burden of proving that the facility violated the CAA

.
EPA states that the affirmative defense may be raised to a “claim for civil penalties” but does not define “civil penalties”. For example, are these meant to include a “civil administrative penalty” imposed by EPA under § 113(d) of the Clean Air Act? A “noncompliance” penalt y sought under § 120 of the Act? A “civil penalty” imposed by a court?
It is also unclear how the affirmative defense would apply to enforcement actions by state and local governments, or to private citizen enforcement actions brought under § 304 of the C AA

. While in no way endorsing EPA’s affirmative defense provision, ACC believes that if retained by the Agency after reconsideration, the provision should clearly state that it is applicable to any enforcement action.

Section 63.2120 states: “The affirmati ve defense shall not be available for claims for injunctive relief.” The preamble is silent as to why the affirmative defense would not apply to injunctive relief. If the facility meets the requirements of the affirmative defense provision, why may it not116

be raised as a defense to a claim for injunctive relief? EPA’s assertion to the contrary is unsupported by any explanation.
Turning to the individual requirements in § 63.2120(a)(1) through (9) that a facility must meet to be allowed to raise an affirmati ve defense, a number of these requirements are not relevant to whether a malfunction, as defined in 40 CFR 63.2 occurred.
Malfunction means any sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, pr ocess equipment, or a process to operate in a normal or usual manner which causes, or has the potential to cause, the emission limitations in an applicable standard to be exceeded. Failures that are caused in part by poor maintenance or careless operation are not malfunctions. Most of the conditions for establishing an affirmative defense in § 63.2120 may be relevant to determining whether the facility undertook appropriate and necessary measures to mitigate any excess emissions resulting from the specific malfunction, but do not in any way inform a determination of whether a piece of equipment has met the definition of a malfunction. For example, § 63.2120(a)(2) requires that “off

- shift and overtime labor, to the extent practicable” were used to make the r epairs needed. ACC does not understand how this requirement relevant to determining whether a piece of equipment has “malfunctioned”. See also (a)(3), (a)(5), (a)(6), (a)(7). (a)(8) and (a)(9). A number of the requirements are extremely subjective and fail to allow for consideration of reasonableness or cost

- effectiveness. For example, § 63,2120(a)(1)(ii) requires the owner/operator to show that the malfunction could not have been prevented through “careful planning,” “proper design” or “better operation an d maintenance practices.” This subjective requirement leaves open the possibility that an enforcement official could always find actions that “could” have been taken without any consideration of costs, resources or feasibility. Moreover, it fails to consid er that an owner/operator may have chosen to redesign a process or equipment configuration, or make other adjustments to achieve the emission reductions necessary to comply with the standard. In so doing, the owner/operator would have evaluated various op tions to determine which one was the most cost

- effective approach to achieve the emission standard, keeping in mind that cost

effectiveness would include long

- term safe and proper operation of the equipment or process. If a malfunction were to occur, it co uld be difficult if not impossible for the owner/operator to prove that the malfunction “could not have been prevented” if cost and resources were never an issue. Another subjective and particularly problematic requirement is (a)(8) which requires that: “A t all times, the facility was operated in a manner consistent with good practices for minimizing emissions.” ACC strongly objects to EPA reaching beyond the equipment that malfunctioned to require a party to prove by a preponderance of the evidence that “a t all times, the facility was operated in a manner consistent with good practices for minimizing emissions.” (Emphasis added.) First, EPA does not define “facility” or “affected facility” in the final CISWI rule; common usage of the term “facility” suggest s that it means the entire plant. 10 Second, and more importantly, EPA is requiring a party to comply with a requirement that is ambiguous, highly subjective, and impossible to meet. This is not reasoned decision

- making. We note that in its proposed reconsi deration of various provisions of the Chemical Manufacturing Area Source Rule (“CMAS”), 77 Fed. Reg . 4522 (January 30, 2012) EPA revised this requirement and changed the word “facility” to “affected source.” If the affirmative defense provision is included in the final reconsidered CISWI rule, EPA should follow an approach similar to what it has done in CMAS and change “facility” to “incineration unit.” Requirement (a)(4) would disallow the affirmative defense if a malfunction involved bypassing control equ ipment or a process, and the bypass was117

not taken “to prevent loss of life, severe personal injury, or severe property damage.” This language is both unyielding and subjective. It is unyielding in that it fails to allow any consideration of the fact that b ypassing the control equipment or the process may have been an appropriate exercise of good air pollution control practices. For example, a bypass can constitute the best air pollution control practice in response to an upset in order to prevent excess

em issions, e.g., to avoid fouling of pollution control equipment media that in turn would result in reduced pollution control equipment efficiency or increased pollution control equipment downtime. Additionally, in some cases the air emissions from a venting event are lower than if the facility had an uncontrolled shutdown to avoid venting. An uncontrolled shutdown could also impact other media, e.g., a wastewater dump from scrubbers, solid waste, etc. And, a shutdown would necessitate additional startup emi ssions. Arguably, venting for a short period due to malfunction could result in less emissions than a non

- orderly shutdown and subsequent restart. Yet, as worded, this requirement would discourage an owner/operator from taking the less

- impactful option bec ause it would mean that he could not avail himself of an affirmative defense for the malfunction.
This requirement is subjective in its use of the word “severe.” Reasonable minds could disagree on what constitutes “severe” property damage, or “severe” pers onal injury. Lastly, this requirement is not supported by any explanation as to why “bypassing” control equipment or a process is absolutely unacceptable except when an owner/operator is faced with these dire consequences. Requirement (a)(5) demands that a party prove that: “All possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health.” Again, the subjectivity of “all possible steps” is problematic in that it establishes a potentially unattainable standard with no clear direction as to how a party is to meet it. Requirement (a)(9) is problematic in that it requires a party to prepare a “written root cause analysis to determine, correct and eliminate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at issue.” This directive assumes that the cause of any and all malfunctions can be determined, corrected and eliminated. If a malfunction by definition is unavoidable, unforeseeable, and not r easonably preventable, it may be that the first time it happens its primary cause cannot be determined. If the cause cannot be determined, it cannot be corrected. So unless a party can figure out why something malfunctioned, it cannot claim to have had a “ malfunction.” Not only is this nonsensical, it is a significant departure in EPA policy with no justification provided. For example, in the General Provisions applicable to NSPS, EPA recognizes that the cause of a malfunction cannot always be known. See 40 CFR 60.7(b)(2) which requires that written reports of excess emissions include the “nature and cause of any malfunction, if known ....” (Emphasis added.) Lastly, requiring a party to eliminate the primary causes of the malfunction, without regard to “taking into consideration the cost of achieving such” elimination and the “non

- air quality health and environmental impacts and energy requirements” associated with its elimination is unreasonable and entirely inconsistent with the criteria for standards establi shed under § 129(a) of the CAA. 11

Turning to the 2

- day notification requirement in § 63.2120(b), ACC notes that EPA recently proposed almost identical affirmative defense requirements in the CMAS proposed reconsideration but omitted the 2

- day notification . It is ACC’s understanding that the Agency has been persuaded by comments submitted by ACC and others that the 2

- day notification requirement is onerous and unworkable. We also understand that EPA may be revisiting some of the other requirements in the af firmative defense provisions in order to further reduce the burden118

on facilities. We therefore request that in its reconsideration EPA abandon the 2

- day notification requirement in the final provisions for CISWI units. Unlike the 2

- day notification which i s triggered by the “initial occurrence of the malfunction,” the 45

- day period for submitting a written report demonstrating that the party qualifies for the affirmative defense commences on the date of “the initial occurrence of the exceedance of the stand ards.” Complying with this timeframe presents several challenges, specifically because most of the content of the report may not be able to be created until the malfunction has ended, which in some cases could be a number of days. While there is an opportu nity for requesting and obtaining an extension of the reporting deadline of up to 30 additional days, the owner/operator must comply with the original 45

- day requirement unless and until he hears back from EPA that the extension request is approved. Howeve r, there is no requirement for EPA to act timely in granting or denying an extension request. At a minimum, the rule should provide a timeframe within which EPA must act on a request and if it fails to do so, the request would be considered granted. For al l of the reasons above, and in keeping with the court’s holding in Sierra Club , we strongly encourage the Agency to abandon its affirmative defense approach as an appropriate and legal way to address excess emissions during a malfunction. We believe that t he Agency instead should use its authority under § 111(h) and 302(k) to establish a management practice, work practice or operational standard to address a malfunction event that may be experienced by a CISWI unit.

Footnotes:

9 The language of the affirm ative defense provision in the guidelines for existing sources, 40 C.F.R. 63.2685, is virtually identical to that for new and modified sources in § 63.2120. The remainder of these comments therefore will refer only to the latter section, although the

comme nts apply equally to § 63.2685.

10 The term “affected facility” is used in NSPS and is defined in the NSPS General Provisions at 40 CFR 60.2, but the CISWI standards apply to “new incineration units.” NESHAPs in Part 63 use the term “affected source,” and t he definition of affected source in 40 CFR 63.2 states: “Affected source may be defined differently for part 63 than affected facility and stationary source in parts 60 and 61, respectively.”

11 For example, it might be theoretically possible to eliminate t he excess emissions associated with the malfunction by installing totally redundant pollution control equipment, or pollution control equipment with far more capacity than needed for normal operations. But this would not reflect the performance of the best performers on which §129(a) standards are to be based, nor would it appear to take cost and non

- air quality health and environmental impacts and energy requirements into consideration as the statute requires. Moreover, the proposed requirement to eliminat e “the primary causes of the malfunction” and not just to eliminate “the excess emissions resulting from the malfunction event” lies entirely outside of EPA’s authority under the CAA, which is limited to establishing and enforcing emission limitations, not dictating plant operations.
Response: The criteria required to establish an affirmative defense ensure that the affirmative defense is available only where the event that causes the violation of the emission limit meets the narrow definition of malfuncti on, and where the source owner or operator has taken action to correct the malfunction and minimize emissions. In order to establish the affirmative defense and119

prove by a preponderance of evidence that the event meets the definition of malfunction, you

mu st meet the root cause analysis and reporting requirements.

The commenter expresses concern with the timeframe for reporting requirements in sections 60.2010(a)(9) and (b) and 60.2685(a)(9) and (b), and asserts that the facility must present its entire det ailed defense in writing before the Agency has decided to take any enforcement action. EPA believes the process of preparing the written report is facilitated by EPA's articulation of the defense criteria. Documentation of the events surrounding the violat ion is also facilitated and improved by timely recordkeeping.
Nonetheless, EPA has reconsidered the timing of the report. The EPA is revising the 45

- day deadline to allow sources to submit the report and the necessary supporting documentation in the first periodic compliance report, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard. If such compliance report, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the next periodic report due after the initial occurrence of the violation of the relevant standard. This change provides sources with sufficient time to demo nstrate that they have met the required affirmative defense criteria. The EPA does not agree that the affirmative defense provision requires a facility to prove its innocence or that the provision changes the enforcement authority's burden to prove a viola tion of the CAA . The affirmative defense provisions do not change the burden of proof with respect to establishing a violation. The affirmative defense applies to penalties and thus is only utilized where a violation has been established. The burden of pro of remains with the plaintiff in an enforcement action. See, e.g., 40 C.F.R. 22.24. If a violation has been established and a source wishes to assert the affirmative defense with respect to penalties, the source does bear the burden of establishing that th e elements of the affirmative defense have been met. This burden

- shifting is appropriate because the source is in a better position to determine the facts required to establish the defense. See, e.g., Arizona Pub. Serv . Co. v. EPA, 562 F.3d 1116, 1120, 112 9

- 30 ( 10th Cir. 2009) (rejecting industry challenge to the EPA’s use of an affirmative defense to address excess emissions during malfunction events). Further, it is at the source owner or operator's discretion whether they wish to claim this affirmative defense.
The affirmative defense applies to claims for civil penalties as part of a judicial or administrative enforcement proceeding, but does not apply to injunctive relief or criminal penalties. The civil penalties in question therefore may be adminis trative or imposed by a court. The affirmative defense is available in any action to enforce the standards set forth in this rule, whether such action is brought by EPA, a state or local authority or a citizen. There is nothing in the language of the regul atory text establishing the affirmative defense that suggests that the affirmative defense is limited to EPA enforcement actions. EPA is not extending the affirmative defense to injunctive relief. The EPA is required to ensure that emissions limitations ar e continuous. The affirmative defense for malfunction events meets this requirement by ensuring that even where there is a malfunction, the emission limitation is still enforceable through injunctive relief. Further, injunctive relief may be necessary to i mprove facility operations and improve the environmental performance of the facility, and these are viewed as critical steps in resolving a violation. If the affirmative defense applied to injunctive relief, as the commenter suggests, neither EPA nor the court could require a facility to correct failures at the facility that lead to excess emissions of air pollution.120

The commenter observes that a number of the affirmative defense criteria address how the exceedance was resolved, and objects that these ar e not relevant to whether a malfunction has occurred. The EPA believes that a demonstration of corrective action is a critical component of the affirmative defense. The regulation requires that to establish the affirmative defense the owner must prove by a preponderance of the evidence that repairs were made as expeditiously as possible when a violation occurs. In light of the above comment, we have re

- evaluated the language concerning the use of off

- shift and overtime labor to the extent practicable and b elieve that the language is not necessary. Although we believe that use of off

- shift or overtime labor could be cited as evidence that the owner or operator expedited repairs, we do not believe this level of detail is necessary in the regulatory text. T he commenter expresses concern that the criteria require actions to be taken that are costly or infeasible, use subjective words that create too onerous of a showing to meet, and that it is not possible to show that "all possible steps were taken minimize the impact of the excess emissions..." The EPA disagrees with comments that criticize the affirmative defense criteria as being arbitrary, capricious and overly vague or unduly restrictive and complex. The EPA believes that courts and administrative enfor cement proceedings are well equipped and often do evaluate and apply the type of criteria set forth in the affirmative defense. Many of the conditions were modeled after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several S tates have adopted into their SIPs . (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to enforcement proceedings have had any significant difficulties applying the terms of these SIP affirmative defenses, and the commenters have provided no information to suggest that application of the SIP based affirmative defense provisions are unreasonable or difficult to apply. In addition, the EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consi stent implementation of those rules and policies.

The EPA has defined affirmative defense such that the merits of the affirmative defense are independently and objectively evaluated in a judicial or administrative proceeding. The criteria proposed by EPA i mpose reasonable and attainable showings, and include language restricting their scope to safe operation, careful planning, and proper design. In response to commenter's question, the reference to "facility" in the affirmative defense pertains to the regul ated CISWI unit.

The commenter suggests that bypassing control equipment should be allowed as an affirmative defense to a malfunction if the bypass avoids fouling of air pollution control equipment, or avoids a plant shutdown that would cause more environ mental harm than the excess emissions from the malfunction.

The commenter also indicates that the restrictive bypass provisions may result in a non

- orderly shutdown, which could result in higher excess emissions than a control device bypass. The EPA disagrees that a non

- orderly shutdown is a necessary response to avoiding a bypass. A well operated facility has an orderly procedure that they are capable of following in shutdowns, and EPA has determined that the emission standards can be attained during startup and shutdown. Nonetheless the EPA cannot pre

- judge the validity of any justification for asserting affirmative defense beyond the guidance provided in the rule.121

The commenter also objects to the use of the word "severe" in the bypass provisions. In response, EPA notes that "severe" property damage is only one in a list of several reasons why control equipment may have been bypassed. The word "severe" i s not attached to the personal injury portion of the affirmative defense language. Again, the commenter is concerned that the written root cause analysis is not feasible since malfunctions are by definition unavoidable and unforeseeable, and that requiring correction of the malfunction without consideration of cost and energy impacts is unreasonable and inconsistent with section 129(a) of the CAA . The EPA disagrees with this characterization. The root cause analysis is to be undertaken after the malfunction occurs. It is reasonable to request a source to explore the cause of a malfunction to determine if it can be corrected to avoid future exceedances of the standard. The EPA acknowledges that the cause of some malfunctions may not be immediately known, but this does not mean that the source should take no effort to identify and resolve possible problems that lead to the malfunction. Costs and impacts associated with complying with the emissions standards have been considered by EPA consistent with section 129. Owners and operators are expected to make repairs that enable them to meet the emission standards. Further, a root cause analysis is not mandatory and is only required if a source seeks to assert an affirmative defense. Regarding the commenter's conc ern about the two day notification requirement, EPA has removed the requirement to notify EPA within two days of a violation in order for sources to avail themselves of the affirmative defense.

The commenter is also concerned that longer malfunctions would require more time to report than is allowed under the proposed rule. As indicated, EPA is revising the reporting deadline to coincide with the next periodic compliance report. If the next report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the next compliance, deviation, or excess emission report. Regarding the commenter's concern that 45 days may be insufficient time for a long, multiday malfunction, the commenter is reminded that timely resolution of the malfunction is one of the criteria for asserting an affirmative defense. Therefore it is not expected that a qualifying malfunction would be of such a long duration that it would impede with the drafting of the report.

. Se ction 129 requires numeric emission standards for the pollutants specified in Section 129(a)(4).
In summary, the EPA has determined that CAA sections 112 and 129 does not require that emissions that occur during periods of malfunction be factored into de velopment of standards under any subsection of section 112 and 129. Section 129 of the CAA does not authorize the EPA to promulgate work practice standards under section 129. Section 129 requires numeric emission standards for the pollutants specified in S ection 129(a)(4).

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 15

Comment: EPA’s proposed rule establishes an "affirmative defense" in place of the historic provisions for start

- ups, shutdowns and malfunctions. Dow recognizes that this is not unique to CISWI ; EPA is proposing the same in other rules. However, the "affirmative defense" as122

currently written imposes such onerous requirement s that the defense will be entirely useless as a practical matter. EPA should programmatically (including in this rule) revise the affirmative defense so that it is meaningful.
Dow has the following recommendations that we believe will improve this section of the rule.

1. There is sufficient connection between Section 129 and Section 111 of the statute that the provisions of Section 111(h) could be used in areas where it is not feasible to prescribe or enforce a standard of performance, particularly in area s where it is not practicable. For malfunctions that result in only small levels of excess emissions of Section 129(a)(4) substances or mixtures of concern, instead of requiring the regulated entity to establish and prove an affirmative defense, EPA should establish a work practice requirement that requires the owner/operator to stop the emissions, stop the malfunction, and to return to normal operations as soon as practical. For example, in cases involving the malfunction of a CISWI unit (caused by a varie ty of reasons such as loss of scrubber water pressure or a power failure), the process control computer could quickly shut off all solid waste feeds to the CISWI unit to prevent excess emissions. Again, these are the types of examples where a "malfunction" of an air pollution control or monitoring device would result in very low levels of excess emissions and in some cases no measurable levels of excess emissions.
2. The immediate notification (within 2 working days) requirement as a pre

- requisite for

asser ting the affirmative defense should be eliminated in §60.2120(b) of subpart CCCC and §60.2685(b) of subpart DDDD for at least the following reasons and replaced with a semi

- annual reporting requirement:

It is burdensome and duplicative of emergency response reporting requirements under SARA/ CERCLA

/ EPCRA and many state regulations for larger excess emission events. This new requirement will contradict many existing reporting rules by requiring the reporting of emission quantities well below CERCLA /SAR A/State Agency Reportable Quantities. Thus, agencies will be flooded with reports of very small excess emissions. The rule structure encourages reporting to the agency even if the owner/operator is not sure if an exceedance of an emission limit has occurre d for fear of not being able to claim the affirmative defense. Thus, agency reporting systems will become "clogged" with insignificant reports further complicating the ability of all resources to respond to a larger
event. The rule is not clear to whom the reports should be submitted (e.g., the EPA Regional Office, State or Local Agency, LEPC ).

3. In Section §60.2120(a) of subpart CCCC and Section §60.2685(a), EPA proposes that nine requirements be met in order for a facility to claim an affirmative defense for a malfunction. Some of these requirements are unreasonable, difficult to demonstrate, and subject to varying interpretation.
Response: The commenter suggests that EPA impose a design, work practice, or operational standard consistent with Section 111 (h) as a means of addressing malfunctions. The EPA’s rationale for its approach to malfunctions is discussed in the preambles to the proposed rule and this final action. As explained in the preamble to the proposed rule and this final rule, the EPA has det ermined that CAA sections 112 and 129 does not require that emissions that occur during123

periods of malfunction be factored into development of standards under any subsection of section 112 and 129. Section 129 of the CAA does not authorize the EPA to prom ulgate work practice standards under section 129. Section 129 requires numeric emission standards for the pollutants specified in Section 129(a)(4). Promulgating a work practice standard for malfunctions would itself constitute taking such emissions into account in setting standards under section 112 or 129. The EPA has maintained in this and prior rule makings that even if the EPA saw merit, accounting for malfunctions on a category

- wide, or 112 or 129

- wide basis would be difficult, if not impossible gi ven the myriad different types of malfunctions that can occur across all sources in the category, and in the NESHAP and 129 programs. The EPA disagrees that affirmative defense is unreasonable, difficult to demonstrate, and subject to varying interpretatio n. . EPA has reconsidered the reporting requirements for the affirmative defense and has eliminated the two day notification. We are also clarifying that any reports should be submitted to the Administrator. Since the reports are due on a regular schedule d basis with otherwise required reports, we do not anticipate the work load issue suggested by the commenter. While certain malfunctions may cause violations that are reported under the other statues cited by the commenter, the EPA does not consider this r eporting in conflict in need of resolution.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 10

Comment: While we prefer EPA use a rebuttable presumption, should the Agency keep the affirmative defense concept, CRWI suggests the following modifications to the language to make it more usable. CRWI understands that most of the provisions EPA has proposed for the affirm ative defense comes from earlier guidance memos. While these provisions were in guidance, the Agency did not need to be careful of the wording since they were only guidance and did not have the weight of regulation. However, if the Agency wants to codify t his guidance into regulatory language, several changes are needed. For example, EPA should drop the reference to "any" activity in this paragraph. There are also several references to "All" that would make it difficult to satisfy the requirements of an aff irmative defense. In addition, the language in the provision is contradictory. In paragraph (a), the phrase "preponderance of evidence" is used while later in that paragraph (iii), the language refers to "any activity" meaning that more than preponderance of evidence is needed. This same trend occurs in paragraphs (5)

– "All possible," (6) "All," (7) "All of the actions," and (8) "At all times." While "all" would include "preponderance," "preponderance" does not mean all of the time. CRWI suggests that the phrase "preponderance of evidence" is adequate and the references to "all" and "any" in the later paragraphs should be modified.
To many engineers, the term "root cause analysis" implies a specific formal process. For many malfunctions, the cause is immedi ately obvious and a formal process for determining the cause is not needed. When a malfunction occurs, the expectation is that the facility will correct the problem as quickly as possible and return to their operating window. A formal root cause124

analysis i s typically limited to very significant events or repeat events. For example, if a thermocouple fails, the most likely cause is a bad thermocouple. The first response is to simply replace the thermocouple. However, if a second thermocouple fails within a s hort period of time, then something else may be causing that event to happen and a more detailed analysis may be needed. It may take several failures before the real cause is identified. Here a formal root cause analysis may be needed, but it certainly is not needed to replace the first failed thermocouple. The proposed language assumes that all malfunctions are equally significant and need an identical degree of investigation. For example, a missing data point due to a malfunction of the data acquisition s ystem is not as significant as a power failure or a catastrophic event such as a fire or explosion. CRWI believes that a formal root cause analysis should only be used when other reasonable methods fail to show what caused the malfunction or when the serio us nature of an event might make such an analysis necessary. Moreover, other tools may be more appropriate (e.g., failure mode and effect, fault tree, etc.) or more powerful tools may be introduced in the future. The facility is the only one that can and s hould decide what tool to use to determine the cause of the malfunction.
Part of this problem may be in communications. To some companies and potentially to some local regulators, the term "root cause analysis" implies a specific formal process. There are several techniques that may be called "root cause analysis," depending on the author and industry. If EPA intends for the facility to investigate and fix the source of the malfunction so that it is less likely to recur, CRWI supports that concept but sugge sts that the Agency use an alternative term that does not carry a specific meaning. However, if the Agency envisions a formal process for determining the root cause for every malfunction, no matter how simple, CRWI believes this is unnecessary and would re sult in excess efforts with no environmental gains.
In a recently proposed rule (77 Fed. Reg . 4,522, 4,538, January 30, 2012), EPA proposed dropping the immediate notification process and simply requiring a written report within 45 days of the malfunction. CRWI suggests that the Agency adopt the same change in this regulation. If the Agency keeps the immediate notification requirement, faxing is an obsolete technology. EPA should allow notification by e

- mail or other electronic means. As facilities and EPA move toward electronic recordkeeping, it makes no sense to require keeping a "properly signed, contemporaneous operating logs" as a requirement for an affirmative defense. There are a number of electronic methods for maintaining records currently available (and more will likely be available in the future). As such, we suggest modifying this provision. In addition, it is impossible to eliminate the causes for certain malfunctions (e.g., lightning strikes).
Finally, CRWI notes that EPA does not allow facilities to assert an affirmative defense for the exceedance of an emission limit during malfunctions if EPA is seeking to enforce that emission limit through injunctive relief. Apparently the Agency takes that position based on a memorandum, State Implementation Pla ns: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown at 2 (Sept. 20, 1999). (SIP SSM Memo) CRWI asserts that this policy is wrong. The type of legal action or relief should have no bearing on the availability of this defense. A malfunction "is a sudden, infrequent, not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner." 40 CFR § 60.2. It is not affected by the type of enforcement action EPA may eventually bring. Indeed, because a malfunction is not reasonably preventable, enforcement125

actions, regardless of type, have no deterrent effect on them. Therefore, the type of legal action EPA uses to enforce a violation of its emission limits is sim ply irrelevant to whether the violation should be excused because of circumstances beyond the facilities control.
Consequently, CRWI believes that not allowing an affirmative defense in an action for injunctive relief is arbitrary and capricious. As the D. C. Circuit Court stated in Essex Chem . Corp. v. Ruckelshaus , 486 F.2d 427. 433 (D.C. Cir. 1973) a case reviewing a §111 rule, the court held that startup, shutdown, or malfunction (" SSM ") provisions are "necessary to preserve the reasonableness of the stan dards as a whole." The D.C. Circuit Court of Appeals has also noted that "[a] technology

- based standard discards its fundamental premise when it ignores the limits inherent in the technology." NRDC v. EPA , 859 F.2d 156, 208 (D.C. Cir. 1988). Therefore, EPA should not apply a policy drafted to "ensure that SIPs provide for attainment and maintenance of the national ambient air quality standards (" NAAQS ") and protection of prevention of significant deterioration ( PSD ) increments" and other risk

- based programs , SIP SSM Memo at 2, to the CAA § 129 technology

- based program.

CRWI suggests that EPA consider making the following modifications to the regulatory language in §§ 60.2120 and 60.2685 to address the concerns mentioned above and to make an affirmative defen se a more useful tool (using strikeout to show text deleted and underline to show text added).

§ 60.2120 Affirmative Defense for Exceedance of an Emission Limit During Malfunction.
In response to an action to enforce the standards set forth in paragraph § 60.2105, you may assert an affirmative defense to a claim for civil penalties 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 pr oving 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 equipm ent, or a process to operate in a normal or usual manner; and
(ii) Could not have been reasonably prevented through careful planning, proper design or better operation and maintenance practices; and
(iii) Did not stem from an y activity or event that could have been reasonably foreseen and avoided, or planned for; and
(iv) Were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and126

(2) Repairs were made as expeditiously as possible when the applicable emission limitat ions 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 du ring 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 Reasonable steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health; and
(6) All e E missions and/or parameter monitoring and systems, as well as control systems, were kept in operation if at all possible , consistent with safety and good air pollution control practices; and
(7) All of the a A ctions in response to the excess emissions were documented by properly signed, contemporaneous operating logs ; and
(8) At all times, t T he facility was operated in a man ner consistent with good practices for minimizing emissions; and
(9) A written root cause analysis report has been prepared, the purpose of which is to determine

, correct, and eliminate mitigate the primary causes of the malfunction and the excess emission s resulting from the malfunction event at issue. Facility personnel will determine the appropriate type of analysis required (may include but not limited to root cause analysis, failure mode and effect, fault tree, etc.) to identify the cause of the malfunction. The analysis report shall also specify, using best monitoring methods and engineering judgment, the amount of excess emissions that were the result of the malfunction.
(b) Notification. The owner or operator of the facility experiencing an exc eedance 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 avai l 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 b y 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 day s of the initial occurrence of the exceedance

. § 60.2685 Affirmative Defense for Exceedance of an Emission Limit During Malfunction.
In response to an action to enforce the standards set forth in paragraph § 60.2670 you may assert an affirmative defense to a claim for civil penalties for exceedances of such standards that are caused by malfunction, as defined at § 60.2. Appropriate penalties may be assessed, however, if127

you fail to meet your burden of proving all of the requirements in the affirmative defen se. 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 mu st 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 mann er; and
(ii) Could not have been reasonably prevented through careful planning, proper design or better operation and maintenance practices; and
(iii) Did not stem from an y activity or event that could have been reasonably foreseen and avoided, or planned for; and
(iv) Were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and
(2) Repairs were made as expeditiously as possible when 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
(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 Reasonable steps were taken to minimize the impact of the excess e missions on ambient air quality, the environment and human health; and
(6) All e E missions and/or parameter monitoring and systems, as well as control systems, were kept in operation if at all possible, consistent with safety and good air pollution control practices;
(7) All of the a A ctions in response to the excess emissions were documented by properly signed, contemporaneous operating logs ;
(8) At all times, t T he facility was operated in a manner consistent with good practices for minimizing emissions; and
(9) A written root cause analysis report has been prepared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at issue. Facility personnel will determine the appropriate type of analysis required (may include but not limited to root cause analysis, failure mode and effect, fault tree, etc.) to identify the cause of the malfunction. The analysis report shall also specify,128

using best monitoring meth ods 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 Administ rator by telephone or facsimile (FAX) transmission as soon as possible, but no later than two business days after the initial occurrence of the malfunction, if it wishes to avail itself of an affirmative defense to civil 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 docume ntation, 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 th e 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

. Response: The EPA has revised some provisions of the affirmative defense language since proposal and describes the basis for those changes in the preamble to the final rule. Overall, the changes have resulted in reducing the reporting requirements and clarifying some elements of the af firmative defense regulatory language. We believe the language is clear , not contradictory in nature, and provides an owner or operator a systematic and thorough approach for establishing an affirmative defense in the event of a malfunction that results in a violation of a standard. Many of the conditions were modeled after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several states have adopted into their SIPs. We do not have any indication that parties to enforcement procee dings have had any significant difficulties applying the terms of these SIP affirmative defenses. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emi ssions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). Other conditions were modeled after a Federal Implementation promulgated by EPA. ((40 CFR 50.1312). The EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.
The commenter suggests EPA remove references to "any" and "all" in the affirmative defense language and rely on the phrase "pre ponderance of evidence" noting that preponderance does not mean all the time. In response, EPA believes that the waiver of penalties is only appropriate in situations where, among other things, the source owner or operator is able to identify that all
pos sible steps are taken to minimize the impact of excess emissions, all emissions and systems are operated consistent with safety and good air pollution control practices, all actions in response to excess emissions were documented, and the facility is opera ted in a manner consistent with good practices for minimizing emissions at all times. This language does not require that impossible actions be taken, in contrast to one concern expressed by the commenter, but rather, all possible actions. The EPA requires proof by a preponderance of evidence that these objectives are met. The EPA does not agree that requiring a preponderance of evidence means that the criteria for the defense are intended to apply less frequently, or only some of the time. The EPA agrees that the cause of malfunctions vary in scope and necessary corrective action. The EPA does not agree that a root cause analysis is unnecessary for events that are129

simpler to address. The EPA's reference to root cause analysis is described simply as a pro cess the purpose of which is to determines, corrects, and eliminates the primary cause of the malfunction event. The tool the company decides to use to determine the root cause of the malfunction need be detailed enough to serve the purpose of accurately identify the problem, the correction, and eliminate the primary causes of the malfunction and excess emissions. If the company wishes to avail itself of the affirmative defense, EPA expects the company to perform an analysis that meets this purpose. The an alysis shall also specify, using best monitoring methods and engineering judgment, the amount of excess emissions that resulted due to the malfunction.
The term “root cause analysis” was used generically to imply an analysis of sufficient depth and compl exity to indicate whether a malfunction did indeed cause a failure to meet a standard, provide sufficient information on the nature and causes of a malfunction to determine whether the source had a malfunction that met the definition of a malfunction, and whether civil penalties are an appropriate sanction for the violation, if one occurred. The term “root cause analysis” is not defined in subparts A (the General Provisions of 111 or 112). The EPA did not intend to prescribe a specific methodology, given th at “root cause analysis” is not a defined term in the applicable subparts. Other analytical techniques that determine the root cause of a malfunction may be acceptable. In the situation the commenter described, for example, an explanation that the thermoc ouple failed and that there is no reason we can discern other than that it must have been a bad thermocouple may be sufficient. The EPA has evaluated the notification deadlines, and is revising both the immediate notification and 45

- day malfunction report . Instead, the final rule allows owners or operators seeking to assert an affirmative defense to demonstrate, with all necessary supporting documentation (as was required under the proposed 45

- day report), that it has met the affirmative defense criteria b y submittal of the affirmative defense report in the first periodic compliance report, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard. If such compliance report, deviatio n report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance report, deviation report or excess emission report due after the initial occu rrence of the violation of the relevant standard. The EPA is forgoing the two day notification.

As an alternative to the signed operating logs, the EPA accepts electronically signed operating logs where the format and method of submission meets the regulat ory criteria and are compatible with the EPA and the delegated authorities’ electronic submission systems. Any source submitting records electronically should exercise due diligence to assure receipt by the EPA and the delegated authority.

A comment indica tes that the affirmative defense option will effectively cause EPA to seek a judicial remedy to a violation so that injunctive relief may be obtained, and that it would be appropriate to extend the affirmative defense to injunctive relief so as not to affe ct the type of legal action sought. The EPA uses the term "injunctive relief" to refer to activity required by both court and administrative orders. The EPA proposes to allow the affirmative defense for any judicial or administrative enforcement proceedin gs for civil penalties. The decision as to what forum, judicial or administrative, EPA would use for any given violation depends on many factors, including the extent or type of injunctive relief sought. The EPA's decision to not extend the affirmative de fense to injunctive relief enables continued enforcement of emission violations.130

Seeking injunctive relief does not necessarily preselect the judicial forum as the means of pursuing the violation. By not extending the affirmative defense to injunctive rel ief, EPA ensures that even where there is a malfunction, the emission limit is still enforceable through injunctive relief. In light of the Sierra Club v. EPA, 551 F.3d 1019 (DC Cir.2008) decision, EPA proposed that sources be in continuous compliance with emissions limits at all times, even during startup, shutdown, and malfunction. 75 FR 31964. The affirmative defense provisions give EPA the flexibility to both ensure that its emission standards are “continuous” as required by 42 U.S.C. § 7602(k) by allo wing for enforcement, and account for unplanned upsets and thus support the reasonableness of the standard as a whole. Further, injunctive relief may be necessary to improve facility operations and improve the environmental performance of the facility, and these are viewed as critical steps in resolving a violation.
The EPA is not directly applying a SIP policy to the section 129 program as the commenter indicates, but rather builds on a well articulated and long implemented set of criteria presented in tha t policy. The EPA does not agree that not allowing an affirmative defense for injunctive relief is arbitrary and capricious. The EPA believes that courts as well as administrative proceedings are well equipped and often do evaluate and apply the type of cr iteria set forth in the affirmative defense. The EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA

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Comment: If despite our objection EPA proceeds with affirmative defense concept, it shou ld model its design after the State of New Jersey’s affirmative defense provisions or adopt an approach consistent with Ti tle V emergency condition and 40 CFR 60 NSPS malfunction provisions.
EPA’s affirmative defense provisions are unnecessarily burdensome on operators. Eligibility criteria terms like “unpreventable” and “could not have been foreseen” are unreasonable and make malfunctions of a similar type or cause occurring even years later fodder for agency action or citizen suits.

EPA should model its a ffirmative defense provisions after the State of New Jersey system under N.J.S.A. 26:2C

- 19.2 through 26:2C

- 19.5. The New Jersey program offers a reasonable approach and has been working for many years. New Jersey’s system relies on the concept of “due care ” which is a more appropriate standard.
Table 2 compares key elements of New Jersey and proposed EPA affirmative defense provisions [see submittal for table provided by commenter ].
Another alternative approach to the affirmative defense concept that is con sistent with the Title V emergency condition provisions and current NSPS malfunction definition would be:131

“To establish that an exceedance of an emission limit or operating standard was the result of a malfunction and therefore not a deviation you must tim ely meet the notification requirements in paragraph (b) of this section and demonstrate that: (1) the malfunction: (i) Was not caused by a sudden infrequent and unavoidable failure of air pollution control equipment or a process to operate in a normal or u sual manner (ii) was not caused by operator error or careless operation (iii) was not caused by improperly designed equipment or lack of preventative maintenance; and (2) corrective actions were taken immediately to minimize the duration and amount of exce ss emissions; and (3) all emission monitoring and control systems were kept in operation if possible in a manner consistent with safety requirements and good air pollution control practices; and (4) preventive measures were implemented to address the cause of the malfunction; and (5) the root cause analysis and actions in response to the excess emission event were documented in signed contemporaneous log. (b)...” We believe the notification requirements should be streamlined as EPA has asked for comment on in the Boiler MACT rule. The initial 2

- day notification should include telephone, facsimile or e

- mail. Facsimiles are all but nonexistent in this day and email notifications are simple and direct, and can be tracked easily and archived for recordkeeping
purp oses. ERC recommends that the initial 2

- day notification should include a brief summary of the nature of the malfunction and corrective action taken. Often the initial notification will include enough information for the regulators to confirm a malfunction meets the criteria. For example, a lightning strike on a utility interconnect transformer that causes a temporary facility power outage would be easily discernible as a malfunction. Following 30 days a full written report is prepared which includes a root cause analysis. If the agency needs more information, a request could be sent to the facility to provide a full report in 45 days or to include a full report in the next semiannual compliance report. Such streamlined requirements for malfunction events

wo uld be consistent with several states’ requirements and would ensure ample regulatory oversight.
Response: The EPA does not agree that the affirmative defense provisions are unnecessarily burdensome. These provisions only apply in the event of a violatio n and when the source wishes to raise the defense. The EPA does not agree that the affirmative defense criteria are unreasonable, difficult to demonstrate, and subject to varying interpretations. The EPA believes that courts and the Administrator are well equipped and often do evaluate and apply the type of criteria set forth is the affirmative defense. Many of the affirmative defense conditions were modeled after the conditions of the affirmative defense in EPA’s SIP SSM policy, which several states have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to enforcement proceedings have had any significant difficulties applying the terms of these SIP affirmative defenses. In addition, EPA’s view is that use of consistent terms in establishing affirmative de fense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.
The EPA does not agree that affirmative defense provisions will provide inappropriate fodder for future agency action or citize n suits due to future malfunctions of a similar type. These provisions are optional and provide an opportunity to the source for penalties to be waived for bonafide malfunctions meeting the specified criteria. Similar malfunctions would be reduced in futu re years if the root cause analysis and corrective actions of the affirmative defense provisions are properly implemented, thereby reducing the likelihood of similar violations in the future.132

The EPA appreciates the examples provided by the commenter of af firmative defense provisions from the State of New Jersey and the sample affirmative defense language. The EPA notes the absence of burden of proof provisions in both examples. If a violation has been established and a source wishes to assert the affirmati ve defense with respect to penalties, EPA believes the source bears the burden of establishing that the elements of the affirmative defense have been met. This is appropriate because the source is in a better position to determine the facts required to
est ablish the defense. See, e.g., Arizona Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1120, 1129

- 30 (10th Cir. 2009) (rejecting industry challenge to the EPA’s use of an affirmative defense to address excess emissions during malfunction events). Regarding the examp les for malfunction events and response criteria, the EPA proposed criteria are more specific than the Title V emergency provisions (see § 70.6(g) and provide a more detailed explanation as to what steps and practices are eligible or acceptable. The EPA's proposed malfunction event provisions, which refer to the exceedence being unpreventable by better O&M and not the result of a recurring pattern from inadequate maintenance, are also more specific than the referenced "due care" equipment maintenance provi sion. The EPA believes providing specific criteria assists in the evaluation of whether an affirmative defense applies. The EPA's approach, modeled after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several States have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maint enance, and Malfunctions (Feb. 15, 1983)) has also been working for many years. Upon further consideration, EPA has removed the requirement to notify EPA within two days of the violation in order for the source to avail itself of an affirmative defense cla im.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: Dow suggests the following revisions to the proposed regulatory text and pro vides supporting rationale for these revisions below. Double underlined text is Dow’s suggested language, while strikethrough text is Dow’s requested deletion:
Suggested Revisions to §60.2120(a) of subpart CCCC and §60.2685(a) of subpart DDDD
(a)(2) Repair s were made as expeditiously as practical possible when the applicable emission limitations were being exceeded. Off shift and overtime labor were used, to the extent practical to make these repairs ; and
Dow Comment on (a)(2): Responding to malfunctions is many times a case

- by

- case situation depending on the specifics of the malfunction and equipment to be repaired, and the language regarding off

- shift and overtime labor is unnecessary and confusing. The use of overtime or off

shift labor is only one consid eration in how to address a malfunction event. If EPA wants to point out that the use of overtime or off

- shift labor must be considered, then this language is best included in the preamble rather than the rule itself.133

(a)(7) All of the actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs ; and

Dow Comment on (a)(7): Electronic media to document actions in response to excess emissions is used in our plant that will be subject to this rule. Imposing a r equirement to print and sign a record of such action is outdated if one can document the response to actions in an electronic format.
(a)(9) A written root cause analysis has been prepared, the purpose of which is to determine, correct, and eliminate the p rimary 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 mal function.
Dow Comment on (a)(9): EPA should not require preparation and submission of a formal root cause analysis as this would have a chilling effect on internal communications regarding the root cause investigation and would detract from the goal of ens uring a candid inquiry into the event. The cause of even smaller malfunction events is routinely investigated within the industry, and no regulation is necessary to require this to happen.
(b) The owner or operator of the facility experiencing an exceedanc e 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 2 business days after the initial occurrence of the malfunction, if it wishes to avail itself of an affirmative defense to civil penalties for that malfunction. The owner or operator seeking to assert an affirmative defense must also submit a written report to the Administrator as part of the annual or more frequent report in §60.2765 and/or as pa rt of the semi

- annual deviation report of §60.2775 within 45 days of the initial occurrence of the exceedance of the standard in 60.2670 to demonstrate, with all necessary supporting documentation, that is has met the requirements set forth in paragraph (a ) of this section. The owner or operator may seek an extension of this deadline for up to 30 additional days by submitting a written request to the Administrator before the expiration of the applicable reporting 45 day period. Until a request for an extens ion has been approved by the Administrator, the owner or operator is subject to the requirement to submit such report within the required reporting timeframe 45 days of the initial occurrence of the exceedances

. Dow Comment on (b): Title V Operating Permit reporting requirements include reporting of events in which emission limits have been exceeded as part of the semi

- annual deviation report. Therefore, the Title V Operating Permit reporting program can be used to supply information on the affirmative defe nse criteria.
Dow requests these changes to both subpart CCCC and subpart DDDD

. Response: The commenter recommends deletion of the off shift and overtime labor provisions on the basis that this is only one consideration on how to address a malfunction eve nt.
The regulation requires that to establish the affirmative defense the owner must prove by a preponderance of the evidence that repairs were made as expeditiously as possible when a violation occurs. In light of the above comment, we have re

- evaluate d the language concerning the use of off

- shift and overtime labor to the extent practicable and believe that the language is134

not necessary. Although we believe that use of off

- shift or overtime labor could be cited as evidence that the owner or operator e xpedited repairs, we do not believe this level of detail is necessary in the regulatory text. A source may make other demonstrations as to how they made repairs as expeditiously as practical in the report required by Section 60.2120(b).

While EPA is reta ining the language that requires logs to be contemporaneous and properly signed, the EPA accepts electronically signed operating logs where the format and method of submission meets the regulatory criteria and are compatible with the EPA and the delegated authorities’ electronic submission systems. Any source submitting records electronically should exercise due diligence to assure receipt by the EPA and the delegated authority.
The commenter recommends deletion of the root cause analysis, and indicates tha t it would have a chilling effect on internal communications. The EPA sees no reason why requiring an analysis into the cause of a malfunction should chill internal communications. Indeed, EPA has specified in consent decrees that root cause analyses be co nducted and we have no complaints from the defendants saying that this chills internal communications.
We agree with the comment on the notification period related to the affirmative defense language. We also agree with the comments concerning the report ing requirements. The language has been changed in the final rule at paragraphs 60.2120 and 60.2685 to read as follows:
(b) Report. The owner or operator seeking to assert an affirmative defense shall submit a written report to the Administrator with all n ecessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. This affirmative defense report shall be included in the first periodic compliance, deviation report or excess emission report otherwise require d after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report or excess emission report due after the initial occurrence of the violation of the relevant standard.

Commenter Name: Melvin E. Keener Commenter Affili ation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: As EPA knows, malfunctions will occur. Even the best run facilities will have circumstances where events happen that are out of their control. While CRWI believes that EPA must take into account the conditions that occur during malfunctions and establish limits that consider these circumstances, CRWI also agrees that some form of enforcement discretion is needed for malfunctions. As such, we support EPA maintaining a regulatory provision for malfunctions. However, we are concerned that allowing a facility to interpose an affirmative defense for violations caused by malfunctions implies that the facility is guilty until proven innocent and improperly shifts the burden to the facility. Therefore, CRWI suggests that EPA establish a rebuttable presumption (rat her than affirmative defense) where it is presumed that any violation occurring during the malfunction was not the facility’s fault unless the Agency proves135

certain facts that are enumerated in the rules. This will allow the Agency to challenge the alleged deviation without compromising the legal rights of either party.
Response: The EPA agrees with the comment that supports maintaining a regulatory provision for malfunctions. The EPA will continue to exercise its enforcement discretion. In the event that a source fails to comply with the applicable CAA section 129 standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malf unction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source’s failure to comply with the CAA section 129 standard was, in fact, ‘‘ sudden, infrequent, not reasonably preventable’’ and was not instead ‘‘caused in part by poor maintenance or careless operation. ’’ 40 CFR 60.2 (definition of malfunction).
The EPA does not agree that the affirmative defense provision requires a facility to prove its innocence or with the implication that it does not require an enforcement authority to prove a violation of the CAA. The affirmative defense provisions do not change the burden of proof with respect to establishing a violation. The affirmativ e defense applies to penalties and thus is only utilized where a violation has been established. The burden of proof remains with the plaintiff in an enforcement action. See, e.g., 40 C.F.R. 22.24. If a violation has been established and a source wishes to assert the affirmative defense with respect to penalties, the source does bear the burden of establishing that the elements of the affirmative defense have been met. This burden

- shifting is appropriate because the source is in a better position to determi ne the facts required to establish the defense. See, e.g., Arizona Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1120, 1129

- 30 (10th Cir. 2009) (rejecting industry challenge to the EPA’s use of an affirmative defense to address excess emissions during malfunction events).

Commenter Name: Michael L. Krancer Commenter Affiliation: Pennsylvania Department of Environmental Protection Document Control Number: EPA

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Comment: The EPA has finalized affirmative defense p rovisions for malfunctions and as part of the reconsideration proposal is soliciting comments on the affirmative defense provisions that were included in the final rule. The March 21,2011, final rule defines affirmative defense as follows: "Affirmative def ense 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 administr ative proceeding." Ultimately, to assert the affirmative defense, the owner or operator of the source must prove by a preponderance of the evidence that excess emissions 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. The DEP believes that the burden of proof rests on the owners or operators of the sources to show that the emission limit exceedances are beyond their control and that they took every step necessary to prevent such occurrences from taking place. However, the criteria specified in section 60.2685 (a)(l)(ii) and136

section 60.2685 (a)(1)(iii) are too subjective and may preclude owners and operators from using the af firmative defense provisions.
Response: The EPA agrees with the commenter 's support of the burden of proof associated with the affirmative defense provisions. The EPA has reviewed the criteria in sections 60.2685 (a)(l)(ii) and 60.2685 (a)(1)(iii). These provisions require that the excess emissions could not have been prevented through careful planning, proper design or better operation and maintenance, and did not stem from any activity or event that could have been foreseen and avoided or planned for. This language is based on provisions in the EPA’s SIP SSM policy, which several States have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); P olicy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to enforcement proceedings have had any significant difficulties applying the terms of these SIP affirmative defe nses. The EPA does not believe the affirmative defense provisions are too subjective and while use of the affirmative defense provisions are at the option of the source who violates a standard, they are to the source's benefit. As such, EPA expects that s ources will want to invoke this defense.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: If EPA were to continue with the affirma tive defense approach, however, we believe the currently

- formulated version is excessively cumbersome and unworkable.

The SSM Coalition Comments (pp.l4

- 22) address problems with the proposed language. We highlight just a few of these points and add some of our own: a. The provision is set up at the outset as a mechanism to be used "in response to an action to enforce."' § 60.2685, introductory paragraph. Yet for a party to qualify for the defense, the party must submit notifications to EPA almost immediatel y after a malfunction occurs, and submit voluminous detailed written reports to EPA within 45 days after the malfuction

. This is putting the cart before the horse in an unwieldy manner. As EPA has enforcement discretion and many malfunctions may be brief and inconsequential, one might reasonably expect that many malfunctions may never become the subject of an enforcement action. It is extremely heavy handed, therefore, to require a facility to go through such immediate notice and burdensome reporting when it may have good reason to believe that an enforcement action may never be brought.
This immediate notice and quick development of extensive written reports appears to have its roots in the "'force majeure " provisions of EPA's enforcement consent decrees. In the context of such decrees, the requirements can make sense, as the defendant will be seeking EPA's approval to extend compliance deadlines and time will be of the essence. The statute of limitations for bringing an enforcement action, however, is g enerally five years. These immediate notice and quick written report requirements simply make no sense in the affirmative defense for137

malfunction context. We agree that EPA should take the approach suggested in the SSM Coalition Comments (at p. 22) to re quire malfunction reports each six months. Then, if and when EPA might decide to initiate an enforcement action, the substantive elements of the defense could come into play.
Response: The EPA has reconsidered the notification and reporting requirements , and is revising both the immediate notification and 45

- day malfunction report

. The final rule allows owners or operators seeking to assert an affirmative defense to demonstrate, with all necessary supporting documentation, that it has met the affirmative defense criteria by submittal of the affirmative defense report in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation rep ort or excess emission report due after the initial occurrence of the violation of the relevant standard. With respect to the concern that an owner operator of an affected facility must prepare the material and submit it to the EPA prior to the onset of enforcement proceedings, the EPA reminds the commenter that under existing requirements, records and reports of such events are currently required by existing rules. A list of reporting requirements can be found in Table 4 to Subpart CCCC of Part 60

— Summary of Reporting Requirements and Table 5 to Subpart DDDD of Part 60

— Model Rule

— Summary of Reporting Require ments. The applicability of such recording and reporting requirements to owners and operators should be accounted for when evaluating to what degree submitting a report to later assert affirmative defense is additional to current requirements. Much of the information required to prepare to assert an affirmative defense is already required, and may be best practices in use today. The additional requirement to perform a root cause analysis may in fact not be additional for many sources that use best practic es to review and evaluate operational problems.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: The litany of factors that mus t all be proven without exception could make the defense almost impossible to meet, even where it is clear that the malfunction occurred at a well

maintained plant and the operator took all reasonable steps to avoid it and correct it expeditiously. We agr ee with the SSM Coalition Comments (at p. 18) that these numerous factors should be listed as relevant criteria to be considered and weighed on a case

- by

- case basis, but that they should not be independent mandates to qualify for the defense.
Response: T he EPA disagrees that the affirmative defense is almost impossible to meet. Many of the conditions were modeled after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several States have adopted into their SIPs. (See, e.g., Stat e Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication tha t parties to enforcement138

proceedings have had any significant difficulties applying the terms of these SIP affirmative defenses. In addition, the EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies and will facilitate implementation.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: A particularly egregious mandate is in 60.2685(a)(4), where a malfunction related to bypassing control equipment cannot qualify for the defense unless "the bypass was unavoidable to prevent loss of life, persona l injury, or severe property damage." There may be many types of situations where good air pollution control practice would dictate a temporary bypass of control equipment that would not rise to avoidance of killing, maiming, or destruction, so the standar d set by this language is extreme overkill.
Response: The EPA disagrees that the criteria used to describe the substance of an affirmative defense are “extreme overkill.” The criteria articulate the gravity of the decision that owners/operators may face in choosing to emit hazardous and other air pollutants through a bypass. The third criterion speaks directly to how often and to what degree the bypass is employed. The EPA contends that repeated use of bypasses is indicative of lax attention to the seri ousness of releasing HAPS untreated to the atmosphere. The fourth criterion, the subject of the comment, balances this concern with a list of reasons where bypasses may be justified. The list is not exhaustive and exclusive; the EPA believes that other r easons may justify the use of a bypass that could be justified by good air pollution control practice. Criteria five and six similarly balance the objectives of taking “all possible steps” to protect human health and the environment while acknowledging (i n the following criterion in section 60.2120(a)(6)) that in extreme circumstances it will not always be possible to operate emission and control systems “consistent with safety and good air pollution control practices.” The EPA believes that our examples of possible reasons that a bypass could be employed by an owner operator appropriately conveys the seriousness of choosing to vent untreated HAPS to the atmosphere.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Docume nt Control Number: EPA

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Comment: The requirement to prepare and file a detailed "root cause" report is, as pointed out by the SSM Coalition ( pp . 20

- 21) in many respects illogical and unworkable. If a ma lfunction is, as EPA defines it "unavoidable'' and "unforeseeable," in many situations a facility may simply not be able to determine the "root cause" of a malfunction. If indeed the facility has taken all reasonable steps to respond and correct the situa tion, it would be inconsistent with the very concept of malfunction to deny the defense to a party who is unable to pinpoint the "root cause'' in a report.139

Response: The EPA disagrees with the characterization that a root cause report is infeasible becaus e malfunctions are by their nature unavoidable and unforeseeable. The root cause analysis is to be undertaken after the malfunction occurs. It is reasonable to request a source to explore the cause of a malfunction to determine if it can be corrected to av oid future exceedances of the standard. The EPA acknowledges that despite a thorough analysis the cause of some malfunctions may not be discovered. The wording used in the subject criterion states “ the purpose of which is to determine, correct, and elimin ate the primary causes of the malfunction ...” The criterion does not state that only root

- cause analyses that determine the cause may be submitted to assert affirmative defense. For example, certain fault analyses may only narrow the list of possible fai lures that led to the malfunction event, without being able to state with certainty which of a small number of failures caused the malfunction. Such a scenario would depend on the nature and configuration of the source.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: Alternatively, if EPA rejects such work practice standards and, instead, includes an affirmative defense for malfunctions, the terms of the defense need to be changed. First, a source should not have to prove it meets every criterion to successfully claim the affirmative defense. Rather, the different criteria should be factored in evaluating whether the excess emissions should be excused. The proposed criteria in the Reconsideration Rule for establishing an affirmative defense are poorly defined and do not reflect on whether a malfunction actually occurred. For example, the requirement that sources r ely on overtime workers to address the malfunction, 76 Fed. Reg

. 80,491, objectively proves nothing. The personnel onsite at the time of the malfunction event may not be the personnel with the expertise to resolve the malfunction, yet if they do not remain onsite as overtime personnel, under EPA's structure, that source fails to meet one of the indicia of a malfunction. Moreover, the affirmative defense criteria in some cases impose draconian obligations on malfunctioning sources without any regard for thei r cost

effectiveness. For example, the source must show “[r] epairs were made as expeditiously as possible . . . excess emissions (including any bypass) were minimized to the maximum extent practicable . . . [a] ll possible steps were taken to minimize the i mpact of the excess emissions on ambient air quality, the environment and human health.” 76 Fed. Reg . 80,461 (emphasis added). This could lead to the EPA or a court imposing extreme MACT regulations on sources during malfunctions. Overall, the provisions i mpose vague obligations on malfunctioning sources which will lead to inconsistent interpretations in different jurisdictions, and lack precision that is fundamental to an adequate defense in an enforcement proceeding.
Response: The EPA does not agree that the affirmative defense criteria are poorly defined, impose draconian obligations, and have no regard for cost

- effectiveness. Many of the conditions were modeled after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several S tates have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to enforcement proceedings have had any140

significant difficulties applying the terms of these SIP affirmative defenses. Costs and impacts associated with complying with the emissions standards ha ve been considered by EPA consistent with section 129. Owners and operators are expected to make repairs that enable them to meet those standards. Further, the commentor is reminded that these affirmative defense provisions are only required for those malf unctions for which the source chooses to assert an affirmative defense.
The EPA also disagrees with the statement that the criteria for establishing an affirmative defense do not reflect on whether a malfunction actually occurred. In contrast, the rule pro vides four criteria specific to identifying whether the excess emission constituted a malfunction (sections 60.2120(a)(1)(i)

- (iv) and 60.2685(a)(1)(i)

- (iv)). The EPA believes that the source should address all the criteria. The SIP SSM policy also requ ires that all the criteria be met, and that policy been in place and implemented for many years. The EPA disagrees with the commentor's claim that use of overtime workers is a useless indicator of whether repairs were made as expeditiously as practical. The criterion specifies that the workers were used to make the repairs and does not imply that unqualified workers who cannot make the repairs properly satisfies this criterion, or that workers be employed who are not necessary to fix the problem. The EPA bel ieves that rather than impair a source's response to a malfunction, the use of off

- shift and overtime labor supports the premise that urgency is necessary to minimize to the maximum extent practicable all excess emissions associated with a malfunction.

Com menter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA

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Comment: EPA should replace its proposed affirmative defense provisions with emission standa rds that take malfunctions into account.
The Clean Air Act does not permit EPA to substitute the affirmative defense concept for standards required under the Clean Air Act. The affirmative defense concept is also without merit within the context of a techn ology

- based standard like MACT . Malfunctions occur in the very best operated and maintained facilities. EPA’s affirmative defense concept presumes that the technology is perfect, and that any emissions occurring above the standards set using emission data obtained during normal operation are deviations, regardless of the legitimacy of the cause. The reality is that malfunctions do occur from time to time in even the best designed and operated CISWI units and, like startup and shutdown, should have appropria te standards that apply during these periods.
We understand the difficulty obtaining emission data for varying types of malfunction related events, but the response to lack of data should not be an imposition of a broad and burdensome regulatory system which expands the universe of “deviations” and al l the public image issues, bad press, employee morale, regulatory penalties, and citizen lawsuits that go with it. EPA has other options. It could set emission standards that define reasonable emission scenarios for combustion and air pollution control equ ipment failure, or it could lengthen time averages for CEMS

- based limits. To assure that the standards deter frequent and lasting events, EPA could141

establish standards based on a limited malfunction duration which requires the operator’s quick and effectiv e response in order to avoid ceasing operations to fix the problem.
The EPA’s system opens the door to unnecessary enforcement actions and citizen suits. The affirmative defense is not certain, even when followed to a tee, and still allows regulatory
agenc ies to pursue enforcement action. And it offers no protection from citizen suits taken against a conforming facility just because EPA’s approach creates unnecessary violations. We don’t think a system which inspires unnecessary lawsuits serves the public g ood.
Response: In the March 21, 2011 rulemaking (76 FR 15737), the EPA indicated that malfunctions should not be viewed as a distinct operating mode and therefore, any emissions that occur at such times do not need to be factored into development of CAA s ection 129 standards, which, once promulgated, apply at all times. The EPA's rationale for applying a standard that applies at all times, instead of crafting separate standards that apply to startup, shutdown, and malfunction, is also addressed in our res ponse to comment EPA

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In contrast to the comment that the affirmative defense concept presumes that the technology is perfect, the EPA in setting forth the affirmative defense provision stat ed, "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. The EPA therefore added to the final rule an affirmative def ense to civil penalties for exceedances of emission limits that are caused by malfunctions." [76 FR 80461].
The EPA does not agree that applying the standards during periods of malfunction will create unnecessary enforcement actions. The commenter stated that a conforming facility could be subject to citizen suits because the EPA’s approach creates violations. The EPA points out that an owner operator asserting affirmative defense would already have been found in violation, and thus not conforming, throug h the existing enforcement process. The EPA’s approach to affirmative defense does not create violations. The approach can only mitigate, or not, the sanctions imposed on a source found in violation. The EPA will continue to apply its enforcement discre tion. In the event that a source fails to comply with the applicable CAA section 129 standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimiz e emissions during malfunction periods, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source’s failure to comply with the CAA section 129 standard was, in fact ‘‘sudden, infrequent, not re asonably preventable ’’ and was not instead ‘‘caused in part by poor maintenance or careless operation. " 40 CFR 60.2 (definition of malfunction). The EPA does not expect the affirmative defense provisions to significantly alter the burden of bringing a c itizen enforcement action. For those cases that do proceed to trial, even in the absence of this affirmative defense, sources generally raise equitable arguments to argue for a low penalty and citizens often rebut such arguments. Therefore, as a practical matter, the EPA does not expect the affirmative defense provision to materially affect the practice of CAA enforcement.142

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: ACC believes that EPA should either revise the numeric emission limitations in the rule so that they are achievable during malfunction events, or use its statutory authority to establish a work practice or management standard under §§ 111(h) and 302(k) for a malfunction event. There is no language in §§ 111 or 129 (or elsewhere in the CAA ) that authorizes EPA to offer an owner/operator an “affirmative defense” to “c ivil penalties” to cure the fact that the Agency has finalized numeric emission standards that do not represent the emission levels actually “achieved” by the best performing sources “at all times”. Moreover, EPA’s offering of an affirmative defense does not bear a reasonable relationship to the purpose of §§ 111 and 129 or their mandates that EPA establish standards that consider and address the reality of a potential malfunction of technology. If EPA chooses to reject the flexibility that Congress clearl y intended the Agency to use when it is not feasible to prescribe or enforce a numeric emission standard, it needs to explain why its affirmative defense approach is a better alternative than using the statutory authority provided in §§ 111(h) and 302(k) t o establish a work or management practice for malfunction periods. In the final CISWI rule, EPA asserts that “it is reasonable to interpret section 129 as not requiring EPA to account for malfunctions in setting performance standards.” 76 Fed. Reg . at 157 37. EPA offers very little support for that assertion, however, other than stating its own, often counterintuitive, conclusions. For example, EPA says it “has determined that malfunctions should not be viewed as a distinct operating mode and, therefore, any emissions that occur at such times do not need to be factored into development of CAA section 129 standards, which, once promulgated, apply at all times.” Id. EPA provides no explanation for why it “believes” that malfunctions are not a distinct oper ating mode. Moreover, EPA offers no explanation of its contradictory position that, even though it believes malfunctions are not a distinct operating mode, emissions during malfunctions should not be used to characterize the source’s operating mode. On i ts face, asserting that malfunctions are part of normal operations, but then excluding emissions during malfunctions when determining emission limitations for normal operations, makes no sense. 8

EPA’s statement that “nothing in section 129 or in case law r equires that EPA anticipate and account for the innumerable types of potential malfunction events in setting emission standards,” id., has it backwards. There is nothing in § 129 that allows EPA to ignore malfunctions and set emissions standards, which ar e supposed to represent the performance actually achieved by the “best

- performing” sources, based on a level of emissions that even these best

- performing sources only achieve part of the time. EPA cannot rationally defend its articulated view that applying the concept of “best performing” is somehow inconsistent with a source experiencing a malfunction. See, 76 Fed. Reg . at 15737. This ignores that work practices, e.g., monitoring operating parameters to identify a malfunction and then stopping or cutting back the process accordingly, represent the best practices for minimizing emissions during a malfunction. While the measures that represent these best practices will depend on facility

- specific issues, such as process design, pollution control train, and other factors, they nonetheless represent the "the maximum degree of reduction in emissions of air pollutants ...achievable...through application of measures, processes, methods, systems or techniques" and reflect "the average emissions limitations143

achieved in practice by the best performing 12 percent of units in the category" CAA § 129(a)(2).

[Footnote: 8 The Weyerhaeuser Co. v. Costle decision EPA cites in the March 21, 2011 preamble, 590 F. 2d 1011 (D.C. Cir. 1978), does not support EPA’s position. See 7 6 Fed. Reg . at 15613. In that case, the court was discussing a “technology forcing” standard, rather than one, like MACT , that is to be based on what is already being “achieved” or has been demonstrated to be achievable. Also, the SSM events that EPA ackno wledges are expected to occur at sources subject to the MACT standards for CISWI units are a far cry from the “’uncontrollable acts of third parties,’ such as strikes, sabotage, operator intoxication, or insanity” that the Court was considering in the pass age quoted by EPA, see id. Industry is not requesting that the MACT standards provide relief from numerical emission limitations during those unusual types of events. Perhaps most importantly, the Weyerhaeuser decision came long before NRDC v. EPA, 859 F.2 d 156 (D.C. Cir. 1988) which, as noted above, affirmed the need for an upset provision to address circumstances where compliance with effluent limitations is impossible through no fault of the permittee , and which endorsed Marathon Oil.]
Response: While s ources may or may not be able to comply for any number of reasons, the EPA disagrees that §§ 111 or 129 authorize the EPA to do other than promulgate standards that apply at all times.

The EPA does not consider malfunctions a normal mode of operation, b ecause the definition of malfunction describes the failure of equipment to operate “in a normal or usual manner.” A device in abnormal operation cannot be expected to perform a normal function, in which normal means “to conform to a standard.” (American He ritage Dictionary, 3 rd Edition). Contrary to the assertion of the commenter, the EPA does believe that emissions may be used to characterize the operating mode of an affected source

- an affected source emitting over the standard is characterized to be in violation of the standard.

The commenter indicates that EPA should either revise the numeric emission limitations in the rule so that they are achievable during malfunction events, or establish a work practice or management standard. As explained directly above and supported in the Weyerhaeuser Co. v. Costle decision , the EPA has determined that malfunctions should not be viewed as a distinct operating mode and therefore, any emissions that occur at such times do not need to be factored into development of CAA section 129 standards, which, once promulgated, apply at all times. Moreover, Section 129 of the CAA does not authorize the EPA to promulgate work practice standards under section 129. Section 129 requires numeric emission standards for the pollutants specified in Section 129(a)(4). The EPA's rationale for applying a standard that applies at all times, instead of crafting separate standards that apply to startup, shutdown, and malfunction, is also addressed in our response to comment EPA

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- A1 excerpt 30 found later in this document. The EPA’s rationale for its approach to malfunctions is discussed in the preambles to the proposed rule and this final action. The EPA’s rationale does not turn on whether malfunctions should be viewed a s a distinct operating mode. Further, the EPA's rationale for its approach to malfunctions is not based on meeting the criteria that must be met to justify a finding that it is not feasible to prescribe or enforce an emission standard. Section 129 does not allow EPA the option of setting a work practice standard in place of a numerical standard. The EPA’s justification for its approach to malfunctions is unrelated to the findings144

required under section 111(h). As explained in the preamble to the proposed r ule and this final rule, the EPA has determined that CAA section 111 and 119 do not require that emissions that occur during periods of malfunction be factored into development of standards under any subsection of section 111 or 129. Promulgating a work pr actice standard for malfunctions would itself constitute setting a standard that takes such emissions into account.
The commenter states that it makes no sense to assert that malfunctions are part of normal operations, but then exclude emissions during mal functions when determining emission limitations for normal operations. The EPA does not consider malfunctions or the resulting emissions over a standard as intrinsic or part of normal operations, as explained above with respect to the reiteration of the me aning of normal. This further explains why the EPA excludes emissions from malfunctions when determining emissions limitations for normal operations, normal meaning in compliance with a standard.
The EPA further disagrees with the commenter’s assertion th at the Weyerhaeuser Co. v. Costl e decision cited in the March 21, 2011, preamble does not support EPA's position. While the commenter emphasizes the “technology forcing” language in the decision, the EPA would point out that the court’s decision went on t o support the EPA’s decision not to create standards that created exceptions for excessive emissions. In fact, the court wrote “denial of an excursion provision justifiably compels plants to develop monitoring, repair, and back

- up capabilities to avoid ex cessive discharges” a statement in which the court chose to list non

- technological solutions to excess emission events in support of their own assertion that “We consequently reject the argument that EPA must promulgate excursion provisions so that the ... limitations will reflect ... technology that is effective 100 percent of the time.”

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: In the March 21, 2011 final rule, EPA for the first time stated that CISWI units would be required to comply with emission limitations derived based on normal operations, even during periods of startup, shutdown, and malfunction. See, 40 C. F.R. §§ 60.2105, 2670, 76 Fed. Reg . at 15711. EPA asserts that, because of the way CISWI units are operated and the averaging times that apply to the CISWI standards, CISWI units that can meet the emission limitations in the final CISWI rule during normal operations can also meet those emission limitations during startups and shutdowns. Id. at 15738. With respect to malfunctions, however, EPA recognizes that some exceedances of the emission limitations established based on normal operations will almost certainly occur due to unavoidable malfunctions of incineration or pollution control equipment. Id. at 15737

- 38.
Instead of retaining the exemption for malfunction events that EPA previously applied to CISWI units in the 2000 CISWI rule, EPA reversed itself and stated that the numeric emission standards apply during malfunctions and included in the regulations an “affirmative defense” that may be available to avoid “civil penal ties” for exceedances associated with malfunctions. The affirmative defense provisions appear in §§ 63.2120 and 60.2685 of the final rule and require an owner/operator of a CISWI unit to prove by a preponderance of evidence that it has met each and145

every requirement in order to avail itself of the affirmative defense to a claim for civil penalties. For the reasons discussed below, ACC believes that EPA should abandon the approach it is taking to addressing malfunctions, that is, offering an affirmative def ense, and instead should use its statutory authority under §§ 111(h) and 302(k) to establish a work practice or operational standard that would reduce emissions during a malfunction event.
Response: The EPA’s rationale for its approach to malfunctions is discussed in the preambles to the proposed rule and this final action. The EPA’s rationale does not turn on whether malfunctions should be viewed as a distinct operating mode. Further, the EPA's rationale for its approach to malfunctions is not based on me eting the criteria that must be met to justify a finding that it is not feasible to prescribe or enforce an emission standard under section under section 111(h). As explained in the preamble to the proposed rule and this final rule, the EPA has determined that CAA section 111 does not require that emissions that occur during periods of malfunction be factored into development of standards under any subsection of section 111. Promulgating a work practice standard for malfunctions would itself constitute taki ng such emissions into account in setting standards under section 111.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA

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Com ment: As the NAM has previously commented, the EPA should establish work practices to address emissions during periods of malfunction. Given that the EPA’s floor data does not consider malfunctions and that the statute requires that the MACT standard be " achievable," The EPA should set work practice requirements to address periods of malfunctions as well. CAA Section 112(h) allows the EPA to set work practice standards for situations where "it is not feasible in the judgment of the Administrator to prescri be or enforce an emission standard . . . ." Malfunctions fit with the situations described in the definition of "not feasible to prescribe or enforce an emission standard" as any situation where "the application of measurement methodology to a particular c lass of sources is not practicable due to technological and economic limitations." Emission testing for malfunctions would be near impossible to conduct given the sporadic and unpredictable nature of the events. Section 112(h) work practice standards, ther efore, are well

- suited to address malfunction periods and the complexities and challenges surrounding collecting data and establishing numerical standards for those events.
The NAM disagrees with the EPA’s proposal to provide an affirmative defense for pe riods of malfunction. As has been discussed in various comments in this rulemaking, as well as others where the EPA has proposed a similar affirmative defense, the proposed affirmative defense is not a permissible substitute for setting emissions standards for periods of malfunction, and it is unreasonable and impracticable.
Response: The commenter's suggestion that EPA establish a work practice or management practice to address malfunctions instead of allowing an affirmative defense because “emissions
te sting would be near impossible to conduct” fails to address the issue of whether the EPA must address malfunctions by means of a standard, according to the language of 129. The EPA’s rationale for its approach to malfunctions is discussed in the preambles to the proposed rule and146

this final action. The EPA’s rationale does not turn on whether malfunctions should be viewed as a distinct operating mode. As explained in the preamble to the proposed rule and this final rule, the EPA has determined that CAA sect ion 129 does not require that emissions that occur during periods of malfunction be factored into development of standards under any subsection of section 129. Moreover, section 129 of the CAA does not authorize the EPA to promulgate work practice standard s under section 129. Section 129 requires numeric emission standards for the pollutants specified in Section 129(a)(4). Finally, the EPA has maintained in this and prior rule makings that even if the EPA saw merit in trying to regulate such emissions, acc ounting for malfunctions on a category

- wide, 129

- wide basis would be difficult, if not impossible given the myriad different types of malfunctions that can occur across all sources in the category, and in the 129 programs. This rationale is not based on th e factors set forth in section 112(h)(2), as that provision does not apply to section 129 standards. The affirmative defense is available only in those situations where an exceedance is due to a malfunction within the meaning of 40 CFR 60.2, and the sour ce has taken appropriate corrective action; whereas, the application of a work practice type standard would have the effect of replacing the emission standard with a requirement that effectively allows a broader range of exceedances . The affirmative defens e for malfunction events ensures that even where there is a malfunction, the emission limitation is still enforceable through injunctive relief. The affirmative defense provisions give EPA the flexibility to both ensure that its emission standards are “con tinuous” as required by 42 U.S.C. § 7602(k), and account for unplanned upsets and thus support the reasonableness of the standard as a whole. Further, Section 129 requires numeric emission standards for the pollutants specified in Section 129(a)(4). Additi onally, the affirmative defense is reasonable. The EPA’s judgment is that the affirmative defense criteria capture the appropriate considerations in determining whether penalties are appropriate when a violation occurs as the result of a malfunction. EPA d oes not agree with the commenter's assertion that the affirmative defense is not a permissible substitute for setting emission standards for periods of malfunction. EPA's rationale for applying a standard that applies at all times, instead of crafting sepa rate standards that apply to startup, shutdown, and malfunction, is also addressed in our response to comment EPA

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- A1 excerpt 30 found later in this document. The EPA must establish emission standards that “limit the quantity, rate, o r concentration of emissions of air pollutants on a continuous basis.” 42 U.S.C. § 7602(k)(defining “emission limitation and emission standard”). The affirmative defense for malfunction events meets this requirement by ensuring that even where there is a

m alfunction, the emission limitation is still enforceable through injunctive relief. Further, the affirmative defense is a permissible approach. Consistent with CAA sections 113(e) and 304. Section 304 gives district courts jurisdiction “to apply appropri ate civil penalties.” Section 113(e)(1) identifies the factors that the Administrator or a court shall take into consideration in determining the amount of a penalty to be assessed after it has been determined that a penalty is appropriate. Although the co mmenter states that the affirmative defense is unreasonable and impractical, no examples are provided. EPA believes the affirmative defense is reasonable. The EPA’s judgment is that the affirmative defense criteria capture the appropriate considerations i n determining whether penalties are appropriate when a violation occurs as the result of a malfunction. Many of the conditions were modeled after the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several States have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to147

enforcement proceedings have had any significant difficulties applying the terms of these SIP affirmative defenses.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: EPA’s proposal to provide an affirmative defense for periods of malfunction is without merit. EPA must instead establi sh work practices to address emissions during periods of malfunction. Comments recently submitted by the “SSM Coalition” on EPA’s proposed “Risk and Technology Review” rule for Mineral Wool and Wool Fiberglass manufacturing explain in detail that: (1) EPA must take malfunctions into accounts when setting §112 emissions standards; (2) the proposed affirmative defense is not a permissible substitute for setting emissions standards for periods of malfunction; and (3) the proposed affirmative defense in

unreaso nable and impracticable. 20 Several of the members of the coalition submitting this letter also are members of the SSM Coalition. We incorporate these comments of the SSM Coalition by reference. For these reasons, EPA should set aside the proposed affirmati ve defense for periods of malfunction and, instead, set a work practice standard for such periods.

[Footnote: 20 See Letter to EPA Docket Center from the American Chemistry Council, et al.

, Comments on Proposed National Emission Standards for Hazardous Air Pollutant Emissions: Mineral Wool Production and Wool Fiberglass Manufacturing (January 24, 2012).]
Response: The EPA’s rationale for its approach to malfunctions is discussed in the preambles to the proposed rule and this final action. The EPA’s ratio nale does not turn on whether malfunctions should be viewed as a distinct operating mode. Further, the EPA's rationale for its approach to malfunctions is not based on meeting the criteria that must be met to justify a finding that it is not feasible to pr escribe or enforce an emission standard under section under section 112(h). The EPA justification for its approach to malfunctions is unrelated to the findings required under section 112(h)(2). As explained in the preamble to the proposed rule and this fin al rule, the EPA has determined that CAA section 112 and 129 do not require that emissions that occur during periods of malfunction be factored into development of standards under any subsection of section 112 or 129. Further, section 129 of the CAA does n ot authorize the EPA to promulgate work practice standards under section 129. Section 129 requires numeric emission standards for the pollutants specified in Section 129(a)(4). Finally, the EPA has maintained in this and prior rule makings that even if th e EPA saw merit in trying to regulate such emissions, accounting for malfunctions on a category

- wide, 112 or 129

- wide basis would be difficult, if not impossible given the myriad different types of malfunctions that can occur across all sources in the cate gory, and in the NESHAP or 129 programs. This rationale is not based on the factors set forth in section 112(h)(2).

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA

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Comment: Although EPA acknowledges that malfunctions occur in well operated and maintained facilities equipped with the best technologies, EPA’s affirmative defense concept essentially presumes that malfunctions never occur. Under the ru le as written, any emissions occurring above the limits set using emission data obtained exclusively during normal operation (emphasis added) are considered deviations, regardless of the underlying root cause of the emissions. The reality is that malfuncti ons infrequently occur even on the best designed, maintained and operated units. Therefore, a facility should not be presumed guilty of having a deviation in the first place if it has experienced a legitimate malfunction. EPA admits it does not have emissi ons data for startup and shutdown periods sufficient to establish numeric emission limits, and due to this dearth of data has sensibly adopted a work practice standard for these periods. Malfunction periods are no different and should be treated similarly. Since EPA also lacks emissions data for malfunction periods, and would find it difficult to obtain sufficient emission data for all the varying types of malfunction

‐ related events, EPA should adopt work practice standards for malfunction periods. Malfunct ion work practice standards could include limitations on the duration to ensure quick and effective corrective action is taken, and if the malfunction cannot be quickly resolved the unit would be shut down for repair. Facilities should still be required to submit a notification of a malfunction excess emission event with the underlying root cause analysis. If EPA or the administering agency decides the excess emission event was not a malfunction, it would then be reported as a deviation of the limit and enf orcement action, including imposition of penalties, would still apply consistent with the deviation definition in 63.7575. EPA could also choose to take enforcement action should a facility report “excessive” malfunction events. Finally, the sheer number o f eligibility criteria that must be proven by a “preponderance of evidence and the vague terms such as “unpreventable,” “could not have been foreseen,” and “all possible steps were taken” all but guarantees that no malfunction event will ever meet the crit eria. WM suggests modifying the affirmative defense eligibility criteria in 40 CFR § 60.2685(a) as follows to make it more reasonable and eliminate such vague language: “To establish that an exceedance of an emission limit or operating standard was the res ult of a malfunction and therefore not a deviation you must timely meet the notification requirements in paragraph (b) of this section and demonstrate that: (1) the malfunction: (i) Was caused by a sudden infrequent and unavoidable failure of air pollution control equipment or a process to operate in a normal or usual manner (ii) was not caused by operator error or careless operation (iii) was not the result of inadequate design, maintenance or operating procedures; and (2) corrective actions were taken imm ediately to minimize the duration and amount of excess emissions; and (3) all emission monitoring and control systems were kept in operation if possible in a manner consistent with safety requirements and good air pollution control practices; and (4) preve ntive measure were implemented to address the root cause of the malfunction; and (5) the root cause analysis and actions in response to the excess emission event were documented in signed contemporaneous log. (b)...” We also believe the notification requirem ents should be streamlined. The initial 2

‐ day notification should include telephone, facsimile or e

‐ mail. Facsimiles are all but nonexistent in this day and email notifications are simple and direct, and can be tracked easily and archived for recordkeeping purposes. WM recommends that the initial 2

‐ day notification should include a brief summary of the nature of the malfunction, corrective action taken and root cause analysis. Often the initial notification will include enough information for the regulators to confirm a malfunction meets the criteria. For example, a lightning strike on a utility interconnect transformer that causes a temporary facility power outage would be easily discernible as a149

malfunction. If the agency needed more information, a request could sent to the facility to provide a full report in 45 days or to include a full report in the next semiannual compliance report. Such streamlined requirements for malfunction events would be consistent with several states’ requirements and would ensur e ample regulatory oversight.
Response: As a preliminary matter, we note that it appears that the commenter has submitted comments to this CISWI rule that were not developed for this rule, instead likely being developed for the NESHAP applicable to major source boilers. We base this conclusio n on the fact that the commenter cites to a 40 CFR part 63 regulatory provision and that the commenter incorrectly states that EPA established a work practice standard for periods of startup and shutdown in the final CISWI rule. That is not correct becaus e EPA is required pursuant to CAA section 129(a)(4) to establish numerical emission standards for the nine section 129 pollutants. EPA did establish work practice standards for startup and shutdown periods in the major source boilers NESHAP.
In any case , the EPA’s rationale for its approach to malfunctions is discussed in the preambles to the proposed rule and this final action. The EPA’s rationale does not turn on whether malfunctions should be viewed as a distinct operating mode. Further, the EPA's rat ionale for its approach to malfunctions is not based on meeting the criteria that must be met to justify a finding that it is not feasible to prescribe or enforce an emission standard under section under section 112(h). The EPA justification for its approa ch to malfunctions is unrelated to the findings required under section 112(h)(2). As explained in the preamble to the proposed rule and this final rule, the EPA has determined that CAA section 112 and 129 do not require that emissions that occur during per iods of malfunction be factored into development of standards under any subsection of section 112 or 129. Further, section 129 of the CAA does not authorize the EPA to promulgate work practice standards under section 129. Section 129 requires numeric emis sion standards for the pollutants specified in Section 129(a)(4). Finally, the EPA has maintained in this and prior rule makings that even if the EPA saw merit in trying to regulate such emissions, accounting for malfunctions on a category

- wide, 112 or 129

- wide basis would be difficult, if not impossible given the myriad different types of malfunctions that can occur across all sources in the category, and in the NESHAP or 129 programs. This rationale is not based on the factors set forth in section 112(h)( 2).
EPA does not agree that the affirmative defense criteria are impossible to meet. EPA believes that courts are well equipped and often do evaluate and apply the type of criteria set forth in the affirmative defense. Many of the conditions were modeled a fter the conditions of the affirmative defense in the EPA’s SIP SSM policy, which several States have adopted into their SIPs. (See, e.g., State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 20 , 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). We do not have any indication that parties to enforcement proceedings have had any significant difficulties applying the terms of these SIP affirm ative defenses. In addition, the EPA’s view is that use of consistent terms in establishing affirmative defense regulations and policies across various CAA programs will promote consistent implementation of those rules and policies.
EPA appreciates the eff

ort of the commenter to provide alternative language for the affirmative defense criteria. However, the language removes specific criteria that are useful in determining150

whether an event meets the definition of malfunction and was properly corrected. EPA h as retained the criteria in 60.2120(a)(1)

- (9) and 60.2685(a)(1)

- (9).
We agree that the notification requirements should be streamlined, and after consideration of the notification and reporting requirements, EPA is revising both the immediate notification and 45

- day malfunction report. Instead, the final rule allows owners or operators seeking to assert an affirmative defense to demonstrate, with all necessary supporting documentation, that it has met the affirmative defense criteria by submittal of the aff irmative defense report in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If suc h compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report or excess emission report due after t he initial occurrence of the violation of the relevant standard. EPA has removed the two day notifications.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 17

Comment: The text for the affirmative defense at §60.2120(a) of subpart CCCC and §60.2685(a) of subpart DDDD concerns exceedances of emission standards that are caused by malfunctions as defined by §60.2. That definition does not include monitoring system malfunctions within its scope. Malfunction means any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failu res that are caused in part by poor maintenance or careless operation are not malfunctions. [Text at §60.2] At §60.2170(a) of subpart CCCC and §60.2735(a) of subpart DDDD , it seems that EPA has defined a monitoring system malfunction separately from the general provisions definition of malfunction at §60.2. A monitoring system malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring syste m to provide valid data. Monitoring system failures that are cause in part by poor maintenance or careless operation are not malfunctions. 76 Fed. Reg . 80452 at 80498 and 80519 (Dec, 23, 2011) [§60.2170(a) and §60.2735(a)]
In addition at §60.2170(c) of su bpart CCCC and §60.2735(c) of subpart DDDD , ACC sees that failure to collect required data is a deviation from the monitoring requirements, but does not include periods of monitoring system malfunctions or out

- of

- control periods, repairs associated with mo nitoring system malfunctions or out

- of

- control periods, or required monitoring system QA/QC activities. Except for periods of monitoring system malfunctions or out

- of

- control periods, repairs associated with monitoring system 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. Id .[§60.2170(c) and §60.2735(c)]
Both §60.2120(a) of subpart CCCC and §60.2685(a) of subpart DDDD provide a way of asserting an affirmative defense for exceedances of standards caused by malfunctions as defined in §60.2; however, since this definition at §60 .2 does not include a reference to monitoring151

equipment, it seems that a malfunction of monitoring equipment is not considered to be an exceedance of a standard and would not necessarily trigger the potential use of the affirmative defense. As a result, i t seems that malfunctions of the continuous monitoring system would not be viewed with the same level of agency concern as malfunctions that caused exceedances of the emission standards. If this understanding is correct, it would alleviate some concern ov er using the affirmative defense provisions for very minor types of events. ACC would like clarification if this understanding is correct. In addition as it relates to reporting, ACC believes that the language of §60.2210(m) of subpart CCCC and §60.2770(m ) of subpart DDDD contradict the language of §60.2170(c) of subpart CCCC and §60.2735(c) of subpart DDDD . The text of §60.2210(m) and §60.2770(m) require reporting of out

- of

- control periods for monitoring systems as if they are deviations, while the text of §60.2170(c) and §60.2735(c) says that these periods are not deviations. ACC requests revisions to §60.2210(m) and §60.2770(m) so they do not contradict §60.2170(c) and §60.2735(c). In summary, ACC thinks EPA’s intent is to classify certain specified ty pes of monitoring system events differently from other types of events such that these specified types of monitoring systems events would not be deviations and would not automatically be equated to excess emissions where the assertion of an affirmative def ense would be needed, and ACC hopes that our understanding is actually EPA’s intent. However, some of the Proposed Rule language that we have cited above does not make that clear.
Response: Malfunctions of monitoring equipment are specifically defined in §60.2170(a) of subpart CCCC and §60.2735(a) of subpart DDDD . Data collected during these periods may not be used in calculations used to report emissions or operating levels [§60.2170(b) and §60.2735(b)]. Failure to collect data during monitoring malfunct ions as defined is not a deviation of the monitoring requirements [§60.2170(c) and §60.2735(c)]. As such, a monitoring malfunction of the monitoring device is not a deviation, and no defense is necessary.
Regarding the commenter's concern that the language in §60.2210(m) of subpart CCCC and §60.2770(m) of subpart DDDD contradict the language of §60.2170(c) of subpart CCCC and §60.2735(c) of subpart DDDD , we disagree. Paragraph (4) of §60.2210(m) of subpart CCCC and §60.2770(m) of subpart DDDD ensures that sources indicate whether the period of deviation occurred as a part of an out

- of

- control monitoring or monitoring malfunction event, or otherwise (i.e., during another period such as a control device malfunction). The provisions in §60.2170(c) of subpart CCCC and §60.2735(c) of subpart DDDD make it clear that out of control and monitoring malfunction periods are not considered deviations of the monitoring requirements. However, these periods must be documented under §60.2210(m) of subpart CCCC and §60.277 0(m) of subpart DDDD . A separate question is whether the affirmative defense would apply to an emissions exceedance due to a monitoring device failure. Upon reconsideration, EPA has decided that the emissions exceedance in such a case would be more accurat ely attributed to a failure of the underlying process or air pollution control equipment, and the language pertaining to a sudden, infrequent and unavoidable failure of the monitoring equipment is unnecessary. To avoid confusion with the manner in which ma lfunctions of monitoring equipment are treated in Subparts CCCC and DDDD as explained above, EPA is removing reference to monitoring equipment from §60.2120(a)(1)(i) and §60.2585(a)(1)(i).

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Gro ve Cement Company152

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Comment: 60.2685

– The affirmative defense provisions specified do not appear to acknowledge the existence of bypass systems in some cement kilns. As desc ribed earlier in these comments, the alkali bypass system used by some cement kilns is designed to allow the production of cement with low(er) alkali content (which is necessary to achieve certain product quality specifications. These systems allow removal of alkali material from the process and are not used to bypass pollution control devices or protect equipment, but rather are an integral and necessary part of the cement manufacturing process. Alkali bypass systems are designed to be used for most, if no t all, operating scenarios. Including the phrase “If the excess emissions resulted from a bypass of control equipment or a process , then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;” may make it impossible for a kiln with an alkali bypass to meet the affirmative defense criteria. This definition should be altered or expanded to include consideration of processes such as waste

- burning kilns that include process bypass systems that are necessary to produce th e desired specification product.
Response: We are clarifying here that the definition of “bypass stack” in today’s final rule does not have the same meaning as an “alkali bypass” used by some waste

- burning kilns that manufacture Portland cement. Additiona lly, we do want to clarify that an alkali bypass stack that vents to the atmosphere is considered a CISWI unit vent and, as specified in 60.2105(a) and 60.2760(a), must meet the emission limitations for the CISWI unit. Therefore, normal operation of an alk ali bypass system does not result in a violation. Where the alkali bypass allowed emissions that caused a failure to meet a standard, the source would need to show why the alkali bypass continued to be operated, and if operation of the alkali bypass was necessary for the safety and good air pollution control practices enumerated in 60.2120(a)(4).

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA

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- A2 Comment Excerpt Numbe r: 3

Comment: Affirmative defense for malfunctions . EPA should review the exposure estimates to recognize that significant air emissions are likely to result from malfunctioning equipment as well. Although some malfunctions may be unpredictable and sudde n, EPA must account for the harmful emissions that occur during malfunctions when determining whether or not a facility is in compliance with emissions standards. EPA needs to acknowledge that malfunctions are likely events which must be factored into the exposure estimates. EPA’s language implies that these are rare events, but such is not the case, as recent reports have shown (EPA, 2011d ). The historical industry evidence should provide more than adequate information on likely malfunctions and
exposures. Unfortunately, the proposed “affirmative defense” option creates a loophole that will not likely reduce the risk of malfunctions, provi ding facilities with a way to avoid penalties that could provide incentives to reduce malfunctions. The EPA needs to close this loophole as standards need to limit emissions during all phases of operation, including when equipment fails to work153

properly. A ssessing compliance with emissions standards based on the “good faith efforts” of boiler and incinerator operators to minimize emissions during malfunctions are not a sufficient safeguard against harmful air pollution.
Response: The EPA believes that the changes promulgated for affected sources forces owners and operators to determine whether a malfunction caused a failure to meet a standard.
While the EPA agrees that emissions data from malfunctions may in the future be available and suitable for inclus ion in assessing risk, the EPA disagrees that current data is available or suitable for such analyses. For example, owner operators have not been required to quantify the regulated emissions that were emitted during malfunction events, and certainly not i n a way that would allow its use in a regulatory finding such as potential exposure in a risk assessment. That said, the EPA does anticipate that the changes promulgated for CISWI sources may result in sources gathering important data on the nature and sc ope of emissions during malfunctions.
The EPA disagrees that the standards promulgated rely in any way on good faith efforts to comply. The general duty to minimize emissions and the provisions of affirmative defense require considerable effort to documen t and systematize the efforts of owners and operators to comply with the standards, and the general duty to minimize emissions.
The EPA does not believe that the affirmative defense provisions create a loophole that allows sources to avoid penalties while not reducing the risk of malfunctions. First, being able to enforce the standard at all times increases the likelihood that sources will pay closer attention to operations and reduce emissions. Second, penalties are only avoided for situations that meet, by a preponderance of evidence, all of the criteria that EPA has established for the affirmative defense. Additionally, injunctive relief is still available to address violations.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partners hip for Policy Integrity, and Clean Air Council Document Control Number: EPA

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- A2 Comment Excerpt Number: 21

Comment: EPA seeks comment on retention of the malfunction affirmative defense outlined in the final rule. Sierra Club comme nted on this issue extensively in the Petition. Petition, Ex. 2, at 10

– 12. That discussion is hereby incorporated by reference in full.
Response: The EPA maintains that it has sufficiently explained the legal authority for the affirmative defense requirem ents and why the approach is reasonable in the rulemaking record, including this response to comments.154



### 2G01. Revisions to the CO Monitoring Requirements

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA

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- A2 Comment Excerpt Number: 11

Comment: WTI Supports the Agency’s CO CEM Option for Demonstrating Compliance
We support the proposal to allow facilities to use CO CEMs for demonstrating compliance with the CO limit using a 30 day average. Many potential CISWI units are required to operate CO CEMS in accordance with Title V and/or state requirements.
Response: EPA is maintaining this provision in the final rule.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 41

Comment: We Support Changes to CO and O2 Monitoring.
Response: EPA is maintain ing this provision in the final rule.



### 2G02. Optional CO CEMS provisions

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 8

Comment: While EPA contends that CISWI units can meet the emission standards during SS periods, there is no factual support for this assertion in the administrative record, and indeed, ACC provided evidence to the contrary in its comments, which EPA did not address in the final rule. See ACC Comments at 43

- 46. Corrected (and even uncorrected) emission concentrations can be significantly higher during startup and shutdown due to the unavoidable less

- than

- optimal emissions control performance during transitional (non

- steady state) conditions. For example, at solid fuel ERUs combustion

- related emissions such as CO, particulate (smoke), and opacity increase during the startup period when load and temperature are coming up to full load steady

state conditions. EPA itsel f recognized in the Boiler MACT that “CEM data show that CO levels have a higher degree of variability than other pollutants” (76 Fed. Reg . 15646). It doesn’t matter whether these units are being fired with solid fuel or solid waste

– the equipment involve d is virtually identical and fuel combustion characteristic differences are minimal. Startup burners reduce emissions by preheating the combustion chamber and downstream equipment but are not sized to achieve full load temperatures; even if they were, they could not completely avoid155

temporary sub

- optimal combustion conditions as heat load shifts from auxiliary fuel to waste during startup and from waste to auxiliary fuel during shutdown. Air pollution control equipment goes through similar transient tempera ture and flow conditions, e.g., changing furnace temperature and velocity profiles make SNCR systems less effective during startup than during full load steady state conditions and ESPs and fabric filters must have adequate time to warm up before they can function optimally. These conditions are distinct from the less variable conditions that occur during typical steady

- state operations. EPA’s emission database excludes these periods and therefore does not capture this component of variability. Removing th e oxygen correction from the CO limit that applies during startup does not address this issue.
Response: We have expanded the provisions for uncorrected CEMS data during startup and shutdown and have discussed these changes in the preamble to the final ru le. Furthermore, as discussed elsewhere, we have made revisions to some of the operating parameter provisions to allow for adjustment during varying load conditions during startup and shutdown. We believe these revisions, with the variability that is inclu ded as part of the emission limit calculations, are adequate to address the commenter's concerns. Note that the emission limit calculation methodology is not being reconsidered, and comments on this issue will not be addressed.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 14

Comment: In the previous comment, Dow pointed out instances in which EPA overlooked additional areas whe re the oxygen correction factor and some CMS monitoring would be problematic during startup and shutdown. However, the types of design and operation in this CISWI category are so varied that changes to the definition of CEMS data during startup and shutdow n will not completely solve the issue of being able to startup or shutdown. Dow requests that the two subparts define these periods in a way that CISWI can actually use by adding definitions for them.
Startup means the setting in operation of a CISWI for a ny purpose and during which you comply with the emission standards by minimizing emissions and reaching normal operations in as timely a manner as practicable for the source.

Shutdown means the cessation of operation of the affected facility for any purpos e and during which you comply with the emission standards by minimizing emissions and reaching no operational status in as timely a manner as practicable for the source.
Response: We are not revising the definitions of Startup and Shutdown in the 2000 CIS WI rule, but have made revisions to the monitoring requirements that would likely address the commenter’s concerns. See the preamble to the final rule for discussion on revisions to the monitoring requirements and how the definition of " CEMS data during s tartup and shutdown" have been revised since proposal.156

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: At a minimum, reference s to this definition would also need to be added to the various sections in each subpart where CEMS and/or CMS data is specified, such as §60.2110, §60.2115, §60.2145, and §60.2165 of subpart CCCC and §60.2675, §60.2680, §60.2710, and §60.2730 of subpart D DDD , so that units would not experience deviations or violations during these necessary and unavoidable periods.
Should EPA believe that a time limit is required, Dow offers alternative time limits that should accommodate the issues we have discussed; howe ver, we still believe no time limit should be required to account for variability in how startup and shutdown can occur.

CEMS and CMS data during startup and shutdown means carbon monoxide CEMS and CMS data collected during the first two days 4 hours of op eration of energy recovery CISWI unit startup from a cold start and the first day hour of operation following the cessation of waste material being fed to the energy recovery CISWI unit during a unit shutdown.

Response: We have revised the monitoring req uirements and the definitions for CEMS data during startup and shutdown , as discussed in the preamble. See the preamble to the final rule for a discussion of the oxygen correction waiver during periods of startup and shutdown for sources demonstrating compliance with a CEMS.

We disagree, however, that similar allowances are necessary for operating parameters. Deviations from operating parameter limits must be reported in a deviation report, but determination that these deviations constitute a violation is at the discretion of implementing and enforcing agencies.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: CRWI believes a similar issue exists for other types of monitoring system as exists for the situation EPA is trying to correct by waiving the oxygen correction factor for CO CEMS during startup and shutdown periods. For example, § 60.2675(f) [an d the analogous §§ 60.2110(f)] and 60.2730(e) [and the analogous § 60.2165(e)] require a secondary chamber temperature operating limit set at the lowest 1

- hour average value during the most recent performance test. As a result of this requirement, such a C ISWI unit could never startup or shutdown without having to transition above or below this operating limit. In addition, CO CEMS are not the only CEMS that would use an oxygen correction factor, and data from those CEMS likewise need a waiver for the same reason. This issue is not restricted to energy recovery units but would happen for any unit using this type of system. One way to resolve this problem157

would be to expand the definition of " CEMS data during startup and shutdown" in § 60.2265 as follows:

CEM S and CMS data during startup and shutdown means carbon monoxide CEMS and CMS data collected during the first 4 hours of operation of energy recovery CISWI unit startup from a cold start and the hour of operation following the cessation of waste material b eing fed to the energy recovery CISWI unit during a unit shutdown.
We have not done an exhaustive search of all of the various CMS parameters to know if other examples exist but urge EPA to modify this definition and place its use in all the various sectio ns that need it. At a minimum, references to this definition would need to be added to the various sections in each subpart where CMS data is specified, such as §§ 60.2110, 60.2115, 60.2145, and 60.2165 of subpart CCCC and §§ 60.2675, 60.2680, 60.2710, and 60.2730 of subpart DDDD , so units would not experience deviations or violations during these necessary and unavoidable periods.
Response: See the response to EPA

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- A1 excerpt 13 and the preamble to the final rule for a discussion of t he oxygen correction waiver during periods of startup and shutdown for sources demonstrating compliance with a CEMS.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Docu ment Control Number: EPA

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- A1 Comment Excerpt Number: 30

Comment: In the proposed CISWI NSPS and Emission Guidelines, EPA did not provide separate treatment of startup and shutdown periods. The proposed CISWI rule stated that the emi ssion limits apply at all times, including startup, shutdown, and malfunction ( SSM ) periods [75 Fed. Reg . 31949] EPA stated in the preamble that the Agency was not proposing separate emission standards during startup or shutdown for the following reasons:

“ We determined that CISWI units will be able to meet the emission limits during periods of startup because most units use natural gas or clean distillate oil to start the unit and add waste once the unit has reached combustion temperatures. Emissions from burning natural gas or distillate fuel oil would generally be significantly lower than from burning solid wastes. Emissions during periods of shutdown are also generally significantly lower than emissions during normal operations because the materials in t he incinerator will be almost fully combusted before shutdown occurs.” [75 Fed. Reg . 31964]. 11

While this may be generally true for incinerators, this does not adequately characterize many energy recovery units (not all boilers startup on natural gas or distillate oil as evidenced by examining EPA’s CISWI database, which includes startup fuel for each unit that submitted an ICR response). In addition, it also does not account for the fact that oxygen levels at startup can be very high and result in very high pollutant concentrations when correction to 7 pe rcent oxygen is required. EPA recognized this fact in setting different emission standards for startup and shutdown under the recent revisions to the Portland Cement MACT standards and NSPS. 12158

Many commenters objected to EPA’s position and offered various alternatives, including establishing separate standards for these periods. In the March 2011 final rule, however, EPA maintained its position that the same emission standards applicable during other operating periods will also apply during startup and shut down. The preamble states:
“In establishing the standards in this final rule, EPA has taken into account startup and shutdown periods and have not established different standards for those periods. The standards that we are finalizing are based on short te rm stack tests for pollutants that generally are not expected to vary significantly at startup and shutdown. The possible exception here is CO, which in some subcategories such as ERUs , could vary at startup and shutdown. However, the percent oxygen operat ing limits will ensure that combustion conditions are optimized and the CO is minimized. Solid waste and fuel

- fired ERUs do not normally startup and shutdown more the once per day. Thus, we are not establishing a separate emission standard for these period s because startup and shutdown are part of their routine operations and, therefore, are already addressed by the standards. Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operation. We have evaluat ed whether it is appropriate to have the same standards apply during startup and shutdown as applied to normal operations, and as the rule is structured, well operated and controlled units should be able to meet the standards at all times.” 76 Fed. Reg. 15 738.
In presenting this petition it is important that we distinguish between EPA’s definitions of “startup period” and “shutdown” contained in the CISWI rule 13 which exclude all periods when waste is burning, and the broader scope of startup and shutdown w hich includes those periods of transition when firing auxiliary fuel and/or solid waste when the unit is operating under non

steady state load conditions. For example, for an ERU this includes the period when bringing the unit on line after solid waste has been “charged” and started burning but before reaching steady state steam load as well as periods after waste has ceased being charged and waste combustion is completed. It is these transition periods in which the greater concern exists regarding variabil ity of emissions and for which EPA has no emission data.

[Footnotes:

11 EPA also relied in part on the Sierra Club decision invalidating the Part 63 SSM general provisions, asserting that while the ruling “directly affects only [a particular] subset of CAA section 112(d) rules ..., the legality of source category

- specific SSM provisions such as those adopted in the 2000 CISWI rule is questionable.” 76 Fed. Reg. at 15737. This is flawed reasoning for three reasons. First, it does not necessarily follow that th e court’s holding extends beyond the bounds of § 112

– particularly in this case, where § 129 specifies that standards must be established pursuant to § 111, under which SSM provisions have been implemented since the early 1970’s. Second, the 2000 CISWI SS M provisions are work practices, which qualify as “emissions standards” under the Act. Lastly, as explained above, the available data indicate that emissions during periods of SSM are significantly different from emissions during normal operations

– even f

or the best performing sources. Therefore, some accommodation for SSM periods must be provided.

12 Rulemaking dockets EPA

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13 40 CFR 60.2265 and 40 CFR 60.2875 definitions: Startup period means the period of time be tween the activation of the system and the first charge to the unit. Shutdown means the period of time after all waste has been combusted in the primary chamber.]
Response: See the response to EPA

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pra ctices for periods of startup and shutdown.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA

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Comment: CEMEX feels strongly that the emissions standards shoul d not apply during startup and shutdown events, especially considering the lack of emissions data on which to base the establishment of emissions standards. Cement kilns are manufacturing equipment, not incinerators or process heaters or boilers. As such, the startup and shutdown times and procedures are more time consuming and complicated than other CISWI sources. In a cement kiln system, not only must you slowly heat the combustion chamber to prevent refractory damage, you must slowly begin the introduct ion of the raw materials while continuing to increase the fuels (heat) input to the kiln so that there is adequate heat to calcine and then clinker the raw materials before they exit the kiln. The heat input and raw material input must be carefully balanc ed in order to protect process equipment and minimize emissions. The kiln startup and shutdowns follow a detailed and carefully monitored set of procedures necessary to safely start the clinker manufacturing process and must follow these same procedures to protect process equipment regardless of whether or not alternative fuels will be used. Cement plants should be allowed to utilize work practices during startup and shutdown periods. \ \ / IBR See PCA's comments for more details on CEMEX’s position.
Respons e: See the response to EPA

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Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 4

Comment: Another element of the rule contributing to a lack of achievability is the lack of separate standards for periods of startup and shutdown. In the Boiler MAC T , EPA has justifiably proposed work practice standards that boiler operators must follow during periods of startup and shutdown, as it is impossible to comply with numeric standards during those periods and no160

startup or shutdown data were used to set the stack test

- based limits. The same applies for CISWI ERUs . Very little data is being used to set the CISWI standards, very little consideration of emissions variability is being incorporated into the calculations, and there has been no consideration of emi ssions during startup and shutdown in development of the standards. Simply removing the oxygen correction for the CO limit is not adequate to address this issue. EPA must either ensure that the data on which the standard is based include representative dat a from startup and shutdown or, alternatively, set a separate work practice standard.
Response: See the "CISWI Reconsideration Issues" memorandum in the CISWI docket for further discussion of work practices for periods of startup and shutdown.

Commenter N ame: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: Separate from these comments, Eastman Chemical Company is resubmitting its 2009 Bo iler 18 CEMS data, this time including the hourly average oxygen content and an evaluation of the effect of not correcting for oxygen during startups. We refer EPA to the detailed technical analyses in those comments, and point out that the Eastman data demonstrate that this non

- correction does not alleviate the concerns about higher CO levels during startups making compliance unachievable. In fact, this boiler, which is the top performing boiler, cannot meet the CO emission standard (which was based on data which included no startups or shutdowns) when including uncorrected CO emissions from startup periods. Eastman’s chart [see submittal for chart provided by commenter ] shows the significant effec t of including startups, with and without correcting for oxygen, and clearly supports our contention that EPA must eliminate periods of startup and shutdown from the compliance determination. Regarding the determination of an appropriate MACT floor based o n this one top performer, EPA must use all of the data submitted to properly account for the variability of CO emissions from this unit. It should use all of the hourly averages from normal operation included in the 2010 data set and determine a 99 percen tile Upper Prediction Limit ( UPL ) and a 99 percentile Upper Limit (UL). We disagree with EPA’s logic (see page 9 of the memo CISWI Emission Limit Calculation for Existing and New Sources for Reconsideration Proposal, November 3, 2011, EPA

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- 2498) that the UPL is more appropriate than the UL for the ERU subcategory because of the uncertainty in the population of affected sources. In this case, the MACT floor is determined based on one source. The UPL is barely above the maximum 30 day rolli ng average from the data. It is not certain that this one top performing unit could meet the emission limit at all times. Also, any other coal

- fired ERUs that were to enter CISWI applicability may be of a totally different design. The standard should inco rporate as much variability as can be technically justified to allow the greatest flexibility. Therefore, we believe the UL is more appropriate in this case. Eastman provides further detailed analyses regarding this approach in its comments on this Propo sed Rule, and ACC supports this analysis. Regardless, ACC and its members continue to believe it will prove problematic to include CO emissions during startups and shutdowns in compliance determinations. This is due to the unpredictability of startup emis sions and the unpredictable number of startups during a 30 day operating period, even when following manufacturers’ recommendations or other accepted boiler operating procedures. Of161

primary importance, boilers that burn solid waste do so along with tradit ional fuels. Further, most of these are started up on traditional fuels and only introduce solid wastes after startups are complete and the boiler is operating under safe and stable conditions. We understand that the Agency believes that it cannot set wor k practice standards under §129 of the Clean Air Act and the numeric standards established for steady

- state operations must apply during periods of startup and shutdown. As discussed in the comments above, we do not share that belief and we therefore rec ommend that EPA allow ERUs to comply with CISWI standards only between the end of a startup and the beginning of a shutdown and to comply with otherwise applicable standards under §112 of the Clean Air Act at other times. In fact, we believe the Agency m ay not legally require compliance with § 129 standards if the unit is not burning solid waste. Sources should have the option to comply with §112 during periods when solid wastes are not in the combustion unit, including these startup and shutdown periods

. Response: As stated above in response to other comments, EPA does not agree with the commenter that work practice standards may be set under section 129 or that EPA is prohibited from regulating sources under section 129 during startup and shutdown if t he sources are not combusting solid waste during those periods. See the “CISWI Reconsideration Issues” memorandum for further discussion of the methodology for establishing the MACT standards and for a discussion of work practices during startup and shutd own.
See the preamble to the final rule for a discussion of the oxygen correction waiver during periods of startup and shutdown for sources demonstrating compliance with a CEMS and the incorporation of additional CO emissions data for the best

- performi ng ERU in the solid

- coal ERU subcategory.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA

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Comment: Even if EPA has the authority, its p roposal to use uncorrected CO concentrations during startup and shutdown (SU/SD) periods dodges the law’s requirement that standards be set based on emissions limitations achieved by top performing units. EPA’s proposal fails to discuss actual emissions du ring SU/SD for the various subcategories. It simply acknowledges that concentration correction is an issue at high oxygen levels, references information gleaned from one combustion technology

– a coal

- fired unit

– and makes its limited proposal. Absence of SU/SD data should not be cause to place additional burdens on operators. EPA has authority to obtain the data it needs. EPA offers no evidence that the proposal in any way reflects actual emissions limitations achieved in practice.

Response: The commente r is incorrect that the Agency must collect additional data in order to establish standards for CISWI units. EPA complied with the statute in establishing the CISWI stanadards based on the data available to the Agency. If industry believed that additiona l data were necessary, it could have provided that data during the comment period and the Agency would have incorporated the data into its calculation to the extent possible. EPA continues to believe that the oxygen correction waiver is sufficient to allo w sources to demonstrate162

compliance with the final standards, including during periods of startup and shutdown, and the commenters have not provided data that call that conclusion into question. See the preamble to the final rule for a discussion of the o xygen correction waiver during periods of startup and shutdown for sources demonstrating compliance with a CEMS.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 32

Comment: Removing the oxygen correction as EPA has proposed to do in the reconsideration rule is not sufficient and does not reflect what CISWI ERUs achieve during startup.

Respons e: See the preamble to the final rule for a discussion of the oxygen correction waiver during periods of startup and shutdown for sources demonstrating compliance with a CEMS. The commenter has not provided any data during startup to support its assertio n that the standards are not achievable during startup.



### 2H. Establishing a Full

- load Stack Test Requirement for CO Coupled with Continuous Oxygen Monitoring

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (C IBO) Document Control Number: EPA

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Comment: It is also appropriate for EPA to remove the requirement that the oxygen monitor be located at the outlet of the boiler. As it has in the Reconsidered Boiler MACT Rule, EPA should allow the oxygen monitor to be located either within the combustion zone or at the outlet as a flue gas oxygen monitor. This type of flexibility will reduce the cost and burden of the continuous oxygen monitoring requirements by allow ing facilities to utilize existing oxygen trim systems rather than installing CEMS . Many existing boilers already utilize flue gas oxygen analyzers for indication, alarm, and oxygen trim control, where the fuel/air ratio is automatically controlled for opt imum combustion conditions. The sensing location for existing oxygen monitors is typically in the optimum location to sense flue gas composition as reliably as possible, because sensing of oxygen in these cases maintains proper excess air levels and helps prevent unsafe operating conditions. For many types of combustion units, that location is near the boiler furnace outlet in a position upstream of any potential air inleakage points to avoid erroneous excess air indications which would drive controls in an erroneous direction. This location is also upstream of air preheaters where utilized, thus avoiding the erroneous (high oxygen) indications due to inherent leakage across regenerative air preheater seals or potential tube leakage in recuperative air prehe aters . For those units equipped with existing oxygen sensors and oxygen trim control systems, flue gas composition at those locations would already be used for combustion tuning and control characterization. Therefore, if oxygen monitoring is163

desired for c ontinuous compliance, sensing oxygen at that current location would be logical and proper from a technical perspective. The Oxygen analyzer system is defined in §60.2265 in part as follows: Oxygen analyzer system means all equipment required to determine t he 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 syste m in accordance with the manufacturer’s recommendations. 76 Fed. Reg . 80,502. The optimum location of the sensor or sampling point is dependent on the specific boiler design. In different applications, that location might be at the furnace exit, in the con vection pass, at the boiler outlet, or at another downstream location. We recommend that this language be modified as follows to allow latitude in the exact location of the sensing point: Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler or process heater flue gas, boiler/process heater or firebox , or other appropriate intermediate location

. This definition includes oxygen trim systems. The source owner or operator is responsible to install, calibrate, maintain, and operate the oxygen analyzer system in accordance with the manufacturer’s recommendations. In paragraph 60.2145(w)(2) and again in paragraph 60.2165(q)(2), EPA specifies the level that the oxygen trim system should be set at. For many of the same reasons contained CIBO’s Comments on the 2011 Reconsidered Boiler MACT Rule, filed on February 21, 2012, EPA should revise the wording of these sections to include the italicized language below: You must operate the oxygen analyzer and trim system with the oxygen level set at or above the minimum percent oxygen by volume tha t is established as the operating limit for oxygen . . . when firing the fuel or fuel mixture utilized during the most recent CO performance stack test. Operation of oxygen trim control systems to meet these requirements shall not be done in a manner which compromises furnace safety.
Response: The EPA agrees with the commenter in that O 2 trim systems or O 2 CEMS are acceptable methods of compliance with the rule. The definition of an oxygen analyzer system has been modified to: “Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the b oiler or process heater flue gas, boiler/process heater, firebox, or other appropriate location. ”

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: EPA is proposing revisions to the continuous oxygen monitoring provisions that would give existing sources the ability to use current oxygen analyzer and oxygen trim systems to demonstrate continuous compliance (76 Fed. Reg . 804 61) This was an issue that ACC raised in its petition for reconsideration. We appreciate and support EPA’s proposal to add flexibility and reduce the cost and burden of the continuous oxygen monitoring requirements, as these changes allow facilities to uti lize existing oxygen trim systems rather than installing CEMS . In the March 21, 2011 final rule, EPA included continuous oxygen monitoring as the compliance method for ERUs >100 MMBtu /hr, instead of mandating the use of CO CEMS . EPA now proposes to amend t he oxygen monitoring requirements (76 FR 80515, Dec. 23, 2011) to allow for the use of continuous oxygen trim analyzer systems instead of oxygen CEMS . EPA is also164

removing the requirement that the oxygen monitor be located at the outlet of the boiler, so that it can be located either within the combustion zone or at the outlet as a flue gas oxygen monitor. Many existing boilers already utilize flue gas oxygen analyzers for indication, alarm, and O 2 trim control, where the fuel/air ratio is automatically co ntrolled for optimum combustion conditions. The sensing location for existing O 2 monitors is typically in the optimum location to sense flue gas composition as reliably as possible, because sensing of oxygen in these cases maintains proper excess air level s and helps prevent unsafe operating conditions. For many types of boilers, that location is near the boiler furnace outlet in a position upstream of any potential air inleakage points to avoid erroneous excess air indications which would drive controls in an erroneous direction. This location is also upstream of air preheaters where utilized, thus avoiding the erroneous (high O 2 ) indications due to inherent leakage across regenerative air preheater seals or potential tube leakage in recuperative air prehea ters . For those units equipped with existing O 2 sensors and O 2 trim control systems, flue gas composition at those locations would already be used for combustion tuning and control characterization. Therefore, if O 2 monitoring is desired for continuous com

pliance under the CISWI rule, sensing O 2 at that current location would be technologically sound. However, ACC recommends the following changes to the regulatory language so that clarity is provided and operability is not negatively impacted. These change s are discussed in the following subsections.

Response: See response to EPA

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Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 23

Comment: The oxygen analyzer system is defined in §60.2265 and 60.2875 in part as follows:
Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen i n the boiler flue gas or firebox. The optimum location of the sensor or sampling point is dependent on the specific boiler design. In different applications, that location might be at the furnace exit, in the convection pass, at the boiler outlet, or at an other downstream location. We recommend that this language be modified as follows to allow latitude in the exact location of the sensing point:
Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler or process heater flue gas, boiler/process heater or firebox , or other appropriate intermediate location

. Response: See response to EPA

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Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 24165

Comment: Paragraph 60.2165(q)(2) and 60.2730(q)(2) state:
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.
The wording of (q)(3) does provide needed operational flexibility relative to oxygen levels:

You must maintain th e oxygen level such that it is not below the lowest hourly average oxygen concentration measured during the most recent CO performance test.
However, solid or liquid fuel fired ERUs may also be equipped to fire other liquid or gas fuels that may allow the unit to operate at lower oxygen levels for improved boiler efficiency. Alternatively, they may also fire biomass or other traditional fuels that require higher excess air for improved combustion. Operators may also need to modify the oxygen setpoint or t rim system to accommodate boiler or fuel quality issues. EPA needs to recognize that oxygen trim systems not only provide a means for energy efficiency, but they also are integral to furnace combustion control and furnace safety. While use of a 30

- day ro lling average does provide some operating flexibility, this rule should not needlessly restrict operator flexibility relative to safety or operating efficiency. The real value for operations is to have an indication of excess oxygen available to operators , along with appropriate alarms so that corrective actions can be taken in a timely manner. Therefore, considering all of the above, it is recommended that the paragraph 60.2165(q)(2) and 60.2730(q)(2) wording be revised to read as follows: (2) You must o perate 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 when firing the fuel or fuel mixture utilized during the mos t recent CO performance test. Operation of oxygen trim control systems to meet these requirements shall not be done in a manner which compromises furnace safety.
Response: The EPA does not expect that a single fuel fired during a single stack test would be representative for setting emissions limits for compliance with all fuel firing configurations. The rule allows for testing while firing various fuel configurations to determine the most flexible compliance scenarios, and places no stipulations on time of year such tests are performed (as long as the tests are conducted within the specified timeframe). We recommend that source operators with varying fuels carefully consider the fuel condition they wish to test.
The EPA does not expect or intend for sou rce operators to compromise the safety of their operations, and we are confident that the requirements of the rule are flexible enough to allow sources to determine and meet compliance levels without jeopardizing the safety of their employees or facilities . The affirmative defense section in the rule provides for extenuating operational circumstances that necessitate deviations from compliance limits.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Fores t & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 43166

Comment: We recommend the following changes to the regulatory language so that clarity is provided and operability is not negatively impacted.
Oxygen Sensing Location
The Oxygen analyzer system is defined in the CISWI rules as follows:
“Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler flue gas or firebox. This definition includes oxygen trim systems. The source owner or operator is responsible to install, calibrate, maintain, and operate the oxygen analyzer system in accordance with the manufacturer’s recommendations.”
The optimum location of the sensor o r sampling point is dependent on the specific boiler design. In different applications, that location might be at the furnace exit, in the convection pass, at the boiler outlet, or at another downstream location. We recommend that this language be modified as follows to allow latitude in the exact location of the sensing point:
“Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler flue gas, boiler or firebox, or other ap propriate intermediate location. ...”
Response: See response to EPA

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Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 42

Comment: Many existing boilers and process heaters utilize flue gas oxygen analyzers for indication, alarm, and O 2 trim control, where the fuel/air ratio is automatically controlled for
op timum combustion conditions. For many types of combustion units, O 2 monitoring occurs upstream of potential air inleakage points like preheaters , thus minimizing the potential for erroneous measurements. For these units already equipped with existing O 2 an alyzer systems and/or O 2 trim systems, monitoring data from these locations are currently being used both for boiler tuning and combustion control. Therefore, if O 2 monitoring is provided as an alternative to demonstrate continuous compliance with CO limit s under the Boiler MACT rule, it would be logical and technically feasible for these facilities to continue monitoring O 2 at that current location. These O 2 analyzers are not compliance CEMS and therefore do not meet PS

- 3 requirements. However, they are ca librated and maintained to provide reliable and safe service for combustion unit operation. Proper maintenance and calibration routines are the only available option, given the inability to certify these monitors, according to applicable Performance Specif ications, when located at the outlet to the boiler. This inability to certify is caused by stratification of gases at the boiler/process heater outlet.
Therefore, the most cost effective and technically feasible approach for utilization of O 2 analyzer syst ems is to:167

Allow the continued use of existing O 2 analyzers

Allow the installation of new O 2 analyzers of appropriate design at optimal locations, and
Allow periodic sensor calibration as an alternative to certification and as a way to ensure accurate O 2 monitoring.
Boiler combustion and optimization experts indicate that most O 2 trim systems rely on O 2 measurements at the outlet of the boiler combustion chamber. These analyzers are not certified but are employed successfully to implement control strategies. The monitoring strategy proposed above is therefore viable even if it is not connected to an auto mated trim system.

While O 2 trim systems are viable for combustion control, there are limitations to its applicability that are especially pertinent for multi

- fuel and biomass boilers.

O 2 trim systems are best suited when the boiler predominantly burns o nly one type of fuel.
Feedback control loops in O 2 trim systems are generally developed only for the predominant fuel. This limits its applicability for multi

- fuel units.

O 2 trim systems are used as a means of “fine” control and are sometimes ineffecti ve when there are frequent changes in fuel quality and mix. This limitation would apply to combination boilers

co

- firing biomass fuels.
While it is theoretically possible to develop control systems for each individual fuel used in a multi

- fuel boiler, th is approach is often expensive and may be ineffective.
Given these factors, it is our recommendation that facilities be given the option to choose either the O 2 monitoring approach (install, calibrate, and monitor O2 without the requirement to certify) or the use of an O 2 trim system.
Response: The EPA agrees with the commenter and verifies that certified O 2 CEMS , O 2 monitors, and O 2 trim systems are permissible compliance systems for the short term compliance option in this rule.

Commenter Name: Neil Go rley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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- A2 Comment Excerpt Number: 15

Comment: EPA solicits comment on exempting oxygen monitoring systems from Performance Specification 3. If Performance Specification 3 for oxygen monitoring systems serves to assure compliance, it is arbitrary and contrary to section 129(c)(1) for EPA to waive it simply because it imposes some (unspecified) cost on sources. This is especially true in light of EPA’s proposal to allow sources to use oxygen monitoring in lieu of CO CEMS . It also appears that elimination of Performance Standard 3 to allow reliance on existing oxygen monitors located near the combustion chamber would directly contradict section 129(c)(1)’s express requirement that monitoring occur “at the point at which . . . emissions are emitted into the ambient air.” Nor can168

potential duplication with existing oxygen monitors justify the failure to require adherence to performance specifications. The Clean Air Act expressly contemplates that monitoring at more than one location on a CISWI unit may be necessary: section 129(c)(1) requires monitoring at the point of emissions “and at such other points as necessary to p rotect public health and the environment.”
Response: We do not agree with the comment that the oxygen monitoring requirement is flawed because it is not at the point the emissions are emitted to the air. CAA section 129(c)(1) that EPA must require solid waste incineration units “to monitor emissions from the unit at the point at shich such emissions are emitted into the ambient air (or within the stack, combustion chamber or pollution control equipment, as appropriate) . . . .” We also disagree that we e rred to the extent we are not requiring monitoring in more than one location. CAA section 129(c)(1) authorizes the Agency to require monitoring in more than one location if the Agency determines it is necessary, but the statute does not require it and the commenter has not demonstrated that such additional monitoring is necessary to protect public health or the environment.
Where continuous mass emissions measurements are required for compliance with EPA rules, PS

- 3 certification is a required element fo r installed diluent CEMS . In this rule, EPA is allowing PS

- 3 certified O 2 CEMS , stand alone O 2 monitors, or O 2 trim systems to function as parametric combustion monitors. PS

- 3 is appropriate for determining relative accuracy of stack

- exit CEMS locations, but is not appropriate for such assessments of O 2 monitoring systems installed in other monitoring locations in the flue. Carbon monoxide is monitored at the point of emission during an annual stack test, and a correlation of this value is dev eloped with O 2 monitors to assure appropriate combustion and compliance with the rule.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: We recommend the following changes to the regulatory language so that clarity is provided and operability is not negatively impacted.
Oxygen Trim System Set Point
Paragraphs 60.2145(w) and 60.2710 (w) state:
“(2) You must operate the oxygen trim system with the oxygen level set at the minimum percent oxygen by volume that is established as the operating limit for oxygen 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.”
This wording is more restrictive than the wording in paragraph (w)(4), which requires calculation of a 30

- day rolling ave rage O 2 concentration.169

The paragraph (w)(4) language specifies calculation of a 30

- day rolling average oxygen level while the (w)(2) and (w)(3) wording requires continuous operation at the minimum oxygen percent established during the prior test. Innate bo iler operating characteristics require operation with higher excess air (higher oxygen) at lower operating rates simply due to lower fuel and air velocities, degraded mixing of fuel and air as those flow rates decrease, and lower furnace temperatures. Ther efore, it is necessary for the actual oxygen trim system set point to vary over load, with the lowest set point typically occurring at or near full load operation. The language needs to be revised to provide this operating latitude by clarifying that the o perating limit is set as a 30

- day average.
Response: The EPA has modified the rule language to be consistent with the requirement of a 30

- day rolling average requirement.

Commenter Name: Lisa P. Higgins Commenter Affiliation: Maine Department of Enviro nmental Protection (DEP) Document Control Number: EPA

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Comment: Maine DEP does not support the requirement to conduct stack testing at full load conditions. Full load conditions in Maine usually occur du ring the winter, which can be unsafe for stack testing teams to test. Additionally, some of these units may be tied to process equipment which can have large variations in steam demand. Biomass boilers can also have variations in fuel quality making it dif ficult to conduct a stack test at "full load." Maine DEP believes it is more appropriate to require stack testing at normal operating load.
Response: The EPA recognizes the safety and operational restrictions some installations may face at different times of the year and while performance tests may be conducted at operational states below “full load” with approval of the permitting authority, we advise source operators to carefully choose test conditions as they will set combustion compliance parameters (l ow O 2 ) during the performance test. Operations at a later time which exceed the tested load may result in deviations from the limits determined during the stack test. The EPA recommends performance testing take place while operating at the normal maximum , or “full” operating load.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: EPA also pr oposes to eliminate the requirement that sources subject to a CO emission limit monitor CO directly. Instead, sources would be permitted to show compliance with the CO standard based on oxygen content. This is parametric monitoring. It thus violates sectio n 129(c)(1) to permit it in lieu of direct CO monitoring. Moreover, EPA must require monitoring that “provide[s] reasonable assurance of compliance with emission standards.” Sierra Club v. EPA , 353 F.3d 976, 990 (D.C. Cir. 2004) (quoting Natural Resources Defense Council Inc. v. EPA , 194 F.3d 130,136 (D.C. Cir. 1999)). Here, EPA has not concluded that the oxygen monitoring requirements provide reasonable assurance of compliance with CO limits, let alone170

supported such a determination with record evidence. E PA has not established that oxygen monitoring is a reliable proxy for CO. EPA does not show that a single performance test is sufficient to establish an oxygen content level that reliably corresponds to the CO emission limit. EPA’s conclusion is therefore arbitrary.

Response: The commenter is incorrect in its assertion that the CISWI rule does not require direct measurement of CO. Sources must monitor CO with annual stack tests in conjunction with parametric monitoring or with CO CEMS, and we maintain tha t the required monitoring is sufficient to assure compliance with the standards.

EPA rules require certified CEMS where continuous mass emissions measurements are required by rules. In this rule, EPA is allowing PS

- 3 certified O 2 CEMS , stand alone O 2 monitors, or O 2 trim systems to function as parametric combustion monitors. PS

- 3 is appropriate for determining relative accuracy of stack

- exit CEMS locations, but is not appropriate for such assessments of O 2 monitoring systems installed in other monito ring locations in the flue. Carbon monoxide is measured at the point of emission during an annual stack test, and a correlation of this value is developed with O 2 monitors to assure appropriate combustion and compliance with the rule. O 2 and CO trim syst ems are common combustion controls and establish a link between good combustion and lower CO emissions. As we stated in the Reconsideration Boiler MACT Rule, “the data from such devices is not only an appropriate control for efficient combustion and a les s burdensome alternative to monitoring stack oxygen concentration but also is a better system for many types of units that experience significant load swings and operate with high levels of excess air.” 76 Fed. Reg . 80,609. The EPA has a long history of i mproving source emissions through the use of parametric monitoring.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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C omment: As set forth in comments CIBO’s Petition for Reconsideration of the Final Boiler MACT Rule, EPA’s decision to allow oxygen monitoring is appropriate and EPA is justified in providing flexibility. Furthermore, EPA’s decision to revise the continuou s oxygen monitoring provisions to allow existing sources to use their current oxygen analyzer and oxygen trim systems to demonstrate continuous compliance is appropriate. As EPA reasoned in the Reconsidered Boiler MACT Rule, “the data from such devices is not only an appropriate control for efficient combustion and a less burdensome alternative to monitoring stack oxygen concentration but also is a better system for many types of units that experience significant load swings and operate with high levels of excess air.” 76 Fed. Reg . 80,609.
Response: The EPA is maintaining the use of oxygen monitoring in the rule.171



### 2J. Incorporating Fuel Variability Into Emission Limit Calculations

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Doc ument Control Number: EPA

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Comment: The SRI emission standards fail to account for the range of wastes burned in SRIs and the fact that different waste materials exhibit profoundly different emissions ch aracteristics. This comment is laid out in detail in Attachment B of this letter.
Response: EPA has taken into consideration the incorporation of fuel variability into emission limit calculations. However, EPA is not proposing the use of fuel variability in the emission limit methodology, with the exception of waste

- burning kiln Hg limits, due to the following.
By definition, Commercial and Industrial Solid Waste Incineration units burn wastes, usually in combination with various non

- waste fuels, and of ten with a variety of different waste streams. As a result, fuel variability data would only account for a fraction of the materials being input into the unit. In lieu of fuel variability, EPA has considered total material feed variability for establishi ng limits. In order to complete this analysis, material analyses for all materials being fed to a unit must be available. We only have such data needed to establish limits for Hg for
waste

- burning kilns (76 FR 15727). We did not, and do not still, have such data available for other pollutants and other types of CISWI units. EPA requested comments and supporting data that would allow the consideration of an approach similar to the waste

- burning kiln Hg limits for other pollutants and subcategories, howev er, only a limited amount of data for one subcategory, the coal ERUs, were submitted. We address our response to the commenter that submitted the coal ERU data elsewhere in this document.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Reco very Council (ERC) Document Control Number: EPA

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Comment: EPA should employ fuel variability factors to revise the CISWI standards, achieving the reasonable emission standard parity between CISWI MACT and Boiler MACT that would be expected for technology

- based standards.

ERC believes a principal reason for the irrational CISWI MACT standards is the failure to consider variable contaminant levels in the mix of fuels and wastes capable of being charged t o the best performing units. A good example is the CISWI hydrogen chloride standard, where best performing unit tests show emissions much less than one part per million. Such a low emission could only be achieved with very low chlorine inputs not reflectiv e of the range of biomass material chlorine contents.

CISWI standards should not be set on the basis of tests conducted burning “clean” wastes. Such an approach belies the very nature of waste, that it is expected to be more variable in content172

than fuels which have specifications. We could understand that CISWI units bear a bigger burden to be as clean as boilers burning fuels, but how can technology

- based standards be up to 34 times stricter when the combusted material contains higher levels of contaminan ts?
A fuel variability approach is required if units burning waste biomass are to be able to achieve emission limits. In the absence of achievable standards biomass boiler operators will have no choice but to seek other fuel sources to avoid CISWI MACT . EP A’s stated intent is not to require fuel switching to meet a standard (75 FR 32019), but, however unintended, that will be the effect.
Response: See response to EPA

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Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: Additional consideration of fuel and waste feed variability is also needed.
EPA has acknowledged that the composition of the fuels and NHSM burned in the units to be covered by the CISWI rule is a key factor in the profile of emissions from these units. EPA has further recognized the impact of fuel characteristics on variability from combustion units under the Industrial Boiler MACT by incorporating a fuel variability factor into many of the proposed emission limits under that rule. However, EPA has not to date included a fuel or waste stream variability factor in its standard setting process for CISWI units. This has resulted in emission limits that almost no existing sources in EPA’s CISWI database can meet. EPA should collect fuel and waste variability data for all top performers.

Response: See response to EPA

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Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: The effect of waste composition. In the final rule, the selected best performing CISWI units frequently combusted “solid wastes” in small proportion to total inputs, or burned wastes that did not contain significant amounts of the c onstituents that would cause emissions (e.g., chlorine in biomass generating hydrogen chloride emissions). As a result, stringent emission limits for hydrogen chloride, cadmium, lead, mercury and dioxin/ furan were driven more by waste characteristics and c omposition than the control technology employed at the best performing units. Stand

- alone biomass power plants (as opposed to ERUs located at manufacturing facilities) are economically driven to burn large proportions of “solid wastes” such as urban wood a nd are particularly disadvantaged by these limits where incremental emission reductions exceeding 99% would be required. EPA should consider waste content variability adjustments, percent reduction alternative standards (see #4 below), geographic173

factors ( e.g., biomass chloride content related to location) and other approaches that yield achievable standards and otherwise level the playing field for units trying to responsibly utilize the nation’s biomass residuals.

Response: See response to EPA

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Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: EPA takes the result of its 99th percentile UPL calculation and applies a second variability factor, what it styles as a “fuel variability factor,” to determine the overall variability to apply to a “best performing unit.” This const itutes double counting and should not be permitted. This double counting occurs because fuel variability is part of, and in many instances the major part of, the test

- to

- test variability that forms the basis of the 99th percentile UPL calculation. In the case of the liquid

- fired Hg limit, EPA applied a “Fuel Variability Factor” to the 99th percentile UPL to further increase its proposed MACT floor to 2.6 x 10

- 5 lb/ MMBtu

. EPA applies this factor, not because the data respecting the Hg f uel variability of the best units showed that the variability was too large, but because it was, in EPA’s view, too small. EPA acknowledged that, for solid

- fuel units, the variability in the amount of a pollutant in the fuel would be reflected in the emiss ions performance of the units but decided that “[f]or existing and new liquid fuel units, the fuels making up the best performing units demonstrated less variability in their composition and type, and there were a smaller pool of available test runs. EPA d etermined that an additional fuel variability factor was necessary in these cases.” EPA’s added emission factor makes only a slight (5 percent) difference in that case, but, if applied to solid fuel

- fired units, would increase the standard by an order of m agnitude. 22

[Footnote: 22 Memorandum, Eastern Research Group to Shrager , B, USEPA

, Revised MACT Floor Analysis (November 2011)
for the Industrial, Commercial, and Institutional Boilers and Process Heaters National Emission Standards for Hazardous Air Poll utants

– Major Source, November, 2011 (“MACT Floor Memo”) Appendix C

- 4

- (a)(i). p. 7.]
Response: See response to EPA

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Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: EPA asks whether it should adjust its floor calculations to account for fuel variability. To do so would be unlawful and arbitrary. Section 129(a)(2) directs that standards for new units “shall not be less stringent than the emissions control that is achie ved in practice” by the best controlled unit. 42 U.S.C. § 7429(a)(2). For existing units, standards “shall not be less stringent than the average emissions limitation achieved by the best performing” twelve percent of units. Id . The emissions standards mus t reflect a reasonable estimate of the actual performance of the best units. Sierra Club v. E.P.A. , 479 F.3d 875, 882 (D.C. Cir. 2007). The need to adjust for variability to capture the actual performance of the best sources must be supported by record evi dence. Id. at 881 (quoting Cement Kiln Recycling Coal. v. E.P.A. , 255 F.3d 855, 865 (D.C. Cir. 2001)) (EPA must point to “actual variability data” indicating “that the best performing sources ever experience a wide range of variability at all.”). As pointe d out in the Petition, EPA’s UPL approach already wildly overstates emissions variability and produces emissions limits far higher than those that a lawful approach would yield. Adjusting emissions standards to account for fuel variability would further ag gravate this problem. It also would be unlawful and arbitrary, because EPA’s emissions standards already account for fuel variability. EPA’s UPL approach to variability is based on emissions data, which necessarily reflect fuel variability. Fuel variabilit y, therefore, already appears as emissions variability. EPA would impermissibly double

- count fuel variability if it made a separate adjustment for fuel variability on top of its predictions of emissions variability.
Response: We do not agree with the comm enter that consideration of fuel variability is inconsistent with the statute, though EPA only considered fuel variability in the final CISWI rule in the one instance identified in the preamble to the proposed rule because the necessary data was only avail able in that one instance. As the commenter suggests, EPA believes that fuel variability is sufficiently accounted for in the emissions data and through application of the UPL, but EPA may not ignore data or information that indicates additional variabili ty adjustments are necessary.

Commenter Name: Stephen R. Gossett, Senior Environmental Associate Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA

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Comment: Eastman is provi ding data so that Fuel Variability Factors can be developed and applied for any of its ERUs that are top performers in the final CISWI standards.
Eastman submitted comments on the June 4, 2010 proposed rule that EPA should apply Fuel Variability Factors ( F VFs ) to the MACT floor levels as determined from short term stack test or CEMS data. Eastman also included this issue in its Petition for Reconsideration on CISWI submitted May 19, 2011.
On page 80462 of the reconsideration proposal, EPA states that it wou ld consider an approach similar to the waste

- burning kiln Hg limits for other pollutants and subcategories. EPA’s discussion from the preamble is shown below:
The proposed and final CISWI rule emission limits were calculated based primarily on emissions
te st data. Commenters urged the EPA to incorporate fuel variability into the emission limit175

calculations as was done in the boiler NESHAP . Petitioners have since claimed that the EPA did not adequately address comments regarding this issue. In today’s propos al, 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 variabili ty 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 f rom 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 propos ing 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 subcat egories.

Eastman has three coal

- fired ERUs in the CISWI database. Eastman provided historical contaminant (sulfur, lead, mercury, and chlorine) level data on the coal supply to these three ERUs in its comments on the proposed rule submitted August 23, 2010 that should be suitable for developing FVFs should any of these ERUs be a top performer in the MACT floor determinations. Based on our other comments in this comment package, we believe tha t EPA should remove the PCA Combination Boiler #2 from the CISWI database. When EPA does this, Eastman’s ERUs will become top performers in the MACT floor determinations for particulate matter, cadmium, and lead. Eastman’s Boiler 20 is alre ady the top performer in the floor determination for sulfur dioxide ( SO 2 ) and EPA could have already developed a FVF for SO 2 . Further, if EPA accepts commenters’ request that coal ERUs be in a separate subcategory from biomass ERUs for purposes of setting mercury and hydrogen chloride emission limits, Eastman’s ERUs will be top performers for those pollutants as well.
To assist EPA with developing these FVFs , Eastman is again submitting its coal data and has updated this dataset with analytical data obtain ed since the previous comments in 2010. Eastman’s ERUs (Boilers 18, 19, and 20) burn bituminous coal along with, at times, a non

hazardous secondary material (industrial sludge) and we are also submitting historical data on the pollutant levels in this ma terial as well.
Found also in Attachment 1 is a document we have prepared to determine FVFs for the units using the procedure EPA developed in the Boiler and Process Heater MACT (see Revised MACT Floor Analysis (2011) dated January 4, 201, starting on page 15).
We note EPA specifically requests data that would allow use of an approach similar to the waste

burning kiln Hg limits. The data we have provided could also serve EPA’s purposes should they choose to apply this approach.
Response: We thank the c ommenter for providing data for our consideration. We have considered these data and have decided, for several reasons, that we are going to finalize our approach at proposal in not include a fuel variability factor in our determination of emission176

limits for the subcaregories at issue. To begin with, as discussed elsewhere, we have subcategorized biomass and coal ERUs for all nine pollutants, which ensures the resulting emission limits accurately account for differences in the units designed to burn coal or biomass, respectively. In addition, we are not changing the definition of coal or biomass ERUs as the commenter has suggested, therefore the commenter’s units are not the best performer for several pollutants within the ERU coal subcategory. In doing so, we recognize that CISWI ERU units may combust a variety of fuel and solid wastes within their units. Since we have fuel variability data for one facility within the subcategory of coal ERUs, we would be applying this fuel variability factor for sourc es that may not be reflective of materials being combusted by other sources within the ERU coal subcategory. As discussed in the preamble to the proposed rule and in response to EPA

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accou nt for a fraction of the materials being input into the unit, and the commenter’s data on the solid waste would only apply to the particular waste material that they are combusting, not to coal ERUs in general. In contrast, with the waste

- burning kilns we have material input data for several of the units within the pool of best performers, so that the data are more widely accounting for the variety of materials (i.e., fuels, wastes, and raw materials) the best performers are feeding to the kiln.

Commente r Name: Stephen R. Gossett, Senior Environmental Associate Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA

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Comment: Following the procedure EPA developed for the Boiler MA CT , the Fuel Variability Factors can be developed by comparing historical pollutant concentration data with data paired to the top performer emission test period. In this case, since there is only one unit in the floor determination, the FVF is determined by dividing the average plus three standard deviations from the historical concentration data by the concentration data from the emission test period for the top performing unit.
Shown below are stack test data reported in the 2008 ICR Phase I Survey for B oilers 19 and 20 for HCl , Hg, Lead, and Cadmium:[See Submittal for table].
Between these two boilers, Boiler 19 would be the top performer for mercury, lead, and cadmium and Boiler 20 would be the top performer for hydrogen chloride.

First the feedrates of the pollutants during these top performing stack tests are shown below from both the coal and the industrial sludge.[See Submittal for tables].

HCl Top Performing Stack Test; Boiler 20 on December 1, 2004 (see enclosed stack test report: Stationary Source Sampling Report for Boiler 20, Building 83 dated April 22, 2005):[See Submittal for table].
Hg Top Performing Stack Test; Boiler 19 on December 14, 2005 (see enclosed stack test report: Stationary Source Sampling Report for Boiler 19, Building 83 Conducte d December 14 2005) [See Submittal for table].177

Pb , and Cd Top Performing Stack Test; Boiler 19 on March 9, 2005 (see enclosed stack test report: Stationary Source Sampling Report for Boiler 19, Building 83 Conducted March 8

- 9, 2005) [See Submittal for tabl e].

For SO 2 , Eastman has submitted as part of the ICR Phase II Testing program 30 days of SO 2 CEMS data from Boiler 18. This data was very consistent (ranging from 596 to 660 ppm ) based on the coal being burned in the Building 83 Powerhouse during that per iod. The sulfur content in the coal during this period was 0.85 percent. The industrial sludge has an average sulfur content of 0.18 percent. Based on their typical relative feedrates , coal would account for about 95 percent of the sulfur loading.

EPA’s m ethod in the Boiler MACT for determining Fuel Variability Factor basically identifies as outliers all fuel data that is above the average plus three standard deviations of the population of pollutant concentration data. For multi

- fuel boilers, they select the predominant fuel for each pollutant to determine its FVF . In this method presented here, the coal is clearly predominant over the industrial sludge for relative loadings of sulfur, so we will follow the EPA method. For the remaining pollutants, we ar e doing a more accurate analysis by determining the weighted
average FVF considering the population of pollutant concentrations from each material fed. Cadmium is not detected in either the coal or the industrial sludge, so no FVF will be determined for it

. The average plus three standard deviations of the ratios of the historical data to the emission test paired data for the coal and industrial sludge were determined from the past several years (2003

- 2011 for industrial sludge and 2005

- 2011 for coal) of ro utine sampling and analysis that Eastman has performed on these materials. This data and calculations are shown in the attached Excel Files (Coal Variability Data for Boilers 18

- 20 and Eastman Industrial Sludge Variability). The results are shown below: [S ee Submittal for table summarizing ratios of historical data to paired data]. The FVFs we have determined using this methodology are shown below [ FVF for SO 2 = 1.4, HCL = 2.4, Mercury = 3.3 and Lead = 1.2] (see the attached Excel file “FVFs for Coal ERUs” for the spreadsheet calculations) and should be multiplied by the 99 percentile Upper Predicted Level ( UPLs ) to derive the emission standard. It is appropriated to apply the FVF since there is only one test result for each pollutant and only a short 30 da y period of consistent SO2 CEMS data. In this way, the normal variability of the feeds can be properly incorporated into the standard setting process:

Response: We thank the commenter for providing data for our consideration. See the response to EPA

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### 2K. Review of D/F Data and Non

- Detect Methodology Using Three Times Detection Level

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: EPA requested comments and data on whether 0.3 ng TEQ / dscm is sufficient to reflect the quantifiable concentration levels (76 Fed. Reg . at 80,463). Before discussing the relative merits of a s pecific concentration level, a few terms need to be defined. When Method 301 was initially promulgated (58 Fed. Reg . 27,338, June 13, 1991), it defined the practical quantification limit ( PQL ) as the lowest limit above which quantitative results may be obt ained with an acceptable degree of confidence. The Method defines PQL as 10 times the standard deviation at a blank level. This PQL corresponds to an uncertainty of ±30% at a 99% confidence limit. The method goes on to say that the PQL will be used to esta blish the lower limit of the test method. In 2011 (76 Fed. Reg . 28,664, May 18, 2011), EPA revised this method to use a Level of Detection ( LOD ) which was three times the standard deviation of a blank. When this rule was proposed (69 Fed. Reg . 76,642, Dece mber 22, 2004), commenters suggested that this would correlate to a ±100% uncertainty at a 99% confidence limit. Based on the uncertainty estimate, CRWI believes that the 2011 modification is inappropriate and should not be used.
The results of all sample analysis are an estimation of the true mean. To make sure that the facility and the laboratory do not create a number of either false positives (true mean is below a standard but the test results show a value above the standard) o r false negatives (true mean is above the standard but the test results show a value below the standard), facilities and the Agency must be confident that the results presented are a reasonable estimate of the true mean.

CRWI is aware of two sets of data t hat can address this issue. The first is the paired train data for dioxins and furans that is included in the ReMAP study (American Society of Mechanical Engineers, Reference Method Accuracy and Precision ( ReMAP ): Phase1 , Precision of Manual Stack Emission Measurements, CRTD Vol . 60, February 2001). In this analysis, they determined that the average standard deviation for paired samples (majority of the data is below 0.4 ng TEQ / dscm ) was 0.027. If one multiplies this standard deviation by 10 (i.e., accordi ng to the 1991 PQL definition), it would give a value of 0.27 ng TEQ / dscm , an approximation of a PQL for dioxin/ furans . The second set of data was compiled by Analytical Perspectives. This company specializes in the analysis of various organic pollutants i ncluding dioxins and furans . The company has a significant amount of data that allows them to estimate the predicted and upper and lower uncertainty limits associated with different concentrations of dioxins/ furans . "[See submittal for Figures 1 and 2 provided by commenter showing the analysis for a large number of actual Method 23 data (presented at SETAC North America 32 nd Annual Meeting in Boston, MA, November 2011 )]
As one can see from the data, the uncertainty increases as the concentrations of dioxin/ furans decrease. This is consistent with the conclusions in the ReMAP study. This data set has sufficient number of points (greater than 400) to develop predictive equations for the expected, lower, and
upper uncer tainty limits. Using these equations, we can make independent estimates of the uncertainty levels for various concentrations. "[See submittal for the data table provided by
commenter showing the predicted and ranges of uncertainties for several estimates.]
The data in this table represent the uncertainties of the mean. To get to the 99% confidence limit of the uncertainty, you must multiply by three. This is to make it comparable to the ±30% uncertainty at a 99% confidence limit of a PQL . As one can see, if the 2011 version of Method 301 LOD is used, it would result in a central estimate of uncertainty to be ±60% (20 times 3) but could be as low as ±45% (15 times 3) or as high as ±81% (27 times 3). This is similar to the uncertainty suggested by commenters w hen this change was proposed. Even the 1991 version of179

Method 301 falls short of having a central estimate of ±30% uncertainty (central estimate

– ±42%, lower estimate

– ±30%, and upper estimate

– ±57%). To get to a ±30% central estimate at 99% confidence c omparable to a PQL , one has to go to 258 pg TEQ / dscm . This is remarkably close to the 0.27 ng TEQ / dscm as estimated from the ReMAP data.
Two different data sets analyzed in different manners have been used to estimate the lowest value that can be reliably measured for dioxin/ furans . One estimate is 0.27 ng TEQ / dscm while the other estimate is 0.26 ng TEQ / dscm . If rounded up, both would produce a lowest value that can be determined at a ±30% uncertainty at a 99% confidence would be 0.3 ng TEQ / dscm

. CRWI beli eves that any estimate below that value would violate data quality objectives and would pose an unnecessary level of uncertainty on any test results, allowing for too many false positives.
Response: In the Note in the docket entitled “ Data and procedure f or handling below detection level data in analyzing various pollutant emissions databases for MACT and RTR emissions limits”, (Westlin & Merrill, 2011), we describe how we pooled available reported pollutant specific method detection levels for best perfor ming units to develop representative detection levels (RDLs) for each pollutant. This note describes the process used to calculate three times the RDL and compare that value with the calculated MACT floor limit. The lowest calculated dioxin/furan TEQ emi ssion limit for any new or existing CISWI unit in any subcategory in the final rule is 0.0029 ng/dscm at 7% O 2 for the waste burning kiln subcategory

. For waste burning kilns, the rule specifies collection of a minimum volume of 4 dry standard cubic mete rs which corresponds to 0.012 ng/dscm @ 7% O 2 (e.g. 0.0029*4 = 0.012ng/dscm @ 7% O 2 ) which is less than the estimated three times RDL of 0.075 ng/dscm@ 7% O 2. Therefore, EPA believes that measurement variability is adequately addressed in setting dioxin furan TEQ limits using three times the RDL.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: EPA must rework its data on Dioxin / Furans (D/F ): In response to EPA's request for comment on the revised limit for D/F, PCA remains concerned regarding the use of limits at the detection limits despite EPA 's revised approach to address these concerns (76 Fed. Reg . at 80462). To support o ur comments, PCA consulted with Yves Tondeur of Analytical Perspectives, an expert on laboratory analyses of dioxin/ furan (D/F) stack testing sample trains. Analytical Perspectives has analyzed a data set of several hundred stack test samples, with the

re sults presented as follows.
Analysis points:
• In order to establish meaningful quantitative emissions limits for compliance, the uncertainty at the 99% confidence level must not exceed 30% for measurements at the limit.180

• Graph 1, [See submittal for graph 1 provided by commenter.], illustrates that the ability to make a correct determination whether stack testing results comply with or exceed an emissions limit significantly increases when the uncertainty decreases.
• Graph 2 [See submittal for graph 2 pr ovided by commenter.] plots the percent uncertainty (% uc ; combined standard uncertainty) versus the emissions rate for several hundred data points from actual stack test data. The blue line on the graph represents the predicted percent uncertainty. The r ed and green lines represent the upper and lower limits, respectively, of uncertainty. When you move across the I 0% uncertainty line, it intersects with the blue line (predicted uncertainty) at an emissions rate of 495 pg TEQ /train at I 2% 02• This emis sions rate, when converted to a regulatory limit, becomes 258 pg TEQ / dscm at 7% 02.
As documented by the graphs, the analysis of a significant amount of actual D/F stack test data indicates that the lowest emissions rate limit that can be justified from th e existing data with a 99% confidence that the actual test data can accurately be determined to be above or below the limit with a 30% uncertainty (10% x 3 standard deviations for 99% confidence) is an emission rate of 0.258 ng TEQ / dscm (values corrected to 7% 02). Under these conditions there is a 99% confidence that a measurement of 0.258 ng TEQ / dscm corrected to 7%02 reflects a true value between 0.181 and 0.335 ng TEQ / dscm corrected to 7% 02•
EPA recommended this concept in the 2004 Method 301 revision of the proposed method as a goal, and should adopt this approach in developing an emissions limit for kilns. When developing regulatory limits close to levels of detection, the data on Graph 2 shows that the uncertainty increases and the confidence of de monstrating compliance becomes very low. This continues to be a significant concern for PCA members.

PCA appreciates EPA's attempt to set emissions limits that address the limits of detection for D/F. However, PCA requests that EPA should not additionall y lower the emission standard for D/F either new or existing waste burning kilns. In fact, based on the discussion above, we believe it is critical for EPA to reconsider, and establish standards at or above 0.258 ng TEQ / dscm corrected to 7% 02 for both ex isting and new waste burning kilns.
Response: For response on procedures for setting the RMDL please see EPA

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Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA

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Comment: The emissions limits for D/F for kilns contained in the December 23, 2011 Federal Register are below a level that can be measured with an acceptable level of certainty. PCA’s comments add ress this concern in more detail. CEMEX believes that the emissions rate of 0.258ng TEQ / dscm , corrected to 7% O 2 as recommended by Dr. Tondeur , a recognized expert in the analysis of D/F data, is a more appropriate D/F emissions limit. We are very concer ned that anything lower cannot be measured with reasonable certainty.181

Response: For response on procedures for setting the RMDL please see EPA

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Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA C ommenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: Although EPA has stated its intention to develop standards that are at least three times the detec tion limits of the test methods that sources must use to demonstrate compliance, its procedure for doing so is flawed. The procedure for developing a “representative detection limit” takes into account only the capabilities demonstrated by a limited number of laboratories and does not factor in the uncertainty associated with stack sampling.
Response: For response on procedures for setting the RMDL please see EPA

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Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: EPA Has Improperly Determined the Representative Detection Limit for Floor Settin g In the December 23, 2011 proposal, EPA explained that to establish the stack test

- based emission standards for different pollutants, they used the following procedure:
1. EPA utilized the data provided by source operators to identify the best performing sources for each subcategory and for each pollutant.
2. Using the data for the best performers, EPA calculated the 99 percent UPL for each pollutant and source subcategory.
3. The above calculated values were compared to three times the representative detection limit ( RDL ) for each pollutant, and the emission standards were set at the higher of the UPL or the three times RDL value.

4. EPA calculated the RDL for each pollutant by averaging the detection limits for that pollutant which were reported by th e best performing sources in all subcategories.
We support EPA’s decision to multiply the representative detection limit by three to determine the lowest level at which the emission standard for any pollutant could be set. We are, however, concerned that E PA’s approach in calculating the representative detection limits for various pollutants by averaging the detection limits achieved by the best performers is based only on partial information on method detection limits and is, consequently, incorrect and ne eds to be modified.182

In response to EPA’s reconsideration of the boiler MACT and CISWI standards, NCASI submitted extensive comments to EPA which noted that (1) source emission testing has three components, namely source sampling, sample recovery, and sampl e analysis, (2) the errors associated with sample collection and recovery are much greater than those associated with sample analysis, and (3) to determine the source test method detection and quantitation limit, EPA procedures must account for the variabi lity associated with source sampling and sample
recovery.

These issues were also identified in an ASME report entitled “Reference Method Accuracy and Precision ( ReMAP ), Phase 1,” which examined the precision of selected EPA source emission test methods. Th e report, which is referenced in the December 23, 2011 EPA proposal, makes several important points: (1) there are both random errors and systematic errors (bias in the measurement process, (2) “the magnitude of random errors associated with extraction and recovery of the sample from the stack might be expected to vary in proportion to stack concentrations,” and (3) “estimation of method precision must be based on data from special tests where multiple sampling trains are used simultaneously to determine th e stack pollutant concentration.” In its proposal, EPA has ignored these issues and considered only the precision of laboratory analytical measurements in establishing method RDLs . We urge EPA to carefully evaluate the method quantitation limited

- related i ssues raised by NCASI in its July 15, 2011 comments and the comments submitted in response to the December 23, 2011 proposal.
We believe that consideration of these issues will result in higher RDL values for several of EPA’s reference test methods and wil l raise the emission standards for many source categories.
Response: The EPA thanks the commenter for their support of using 3x RMDL in determining the floor levels. For response on procedures for setting the RMDL please see EPA

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Regarding the additional concern that the RMDL determination does not take into account the error associated with sampling procedures, we expect the combined sampling error (from measurement of sample flow, volume, temperature, moisture, et c.) to be relatively minor (3 to 5%) in comparison to that for the sample analysis.

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA

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Comment: Section I(C)(9) of the preamble of the proposed rule (on page 80463 FR) indicates that the dioxin limit was created using three times the laboratory detection limit as the quantitation limit for measurements. EPA has specifically invited comments on this approach in comparison with an alternative provided by a petitioner. The EPA approach is overly simplistic and does not take into account all of the factors that are needed to properly determine a quantitation limit for dioxins. Specifically, this approach does not account for differences in the quantitation limits for individual dioxin congeners. It does not take into account factors that183

impact both the detection limit and quantitation limit for actual field samples that are subject to interferences and matrix effects, nor does this approach take into account the actual stack sampling and subsequent sample handling impacts on detection and quantitation limits in the emissions. In order for EPA to set a scientifically defensible MACT limit on dioxins, all of these factors must be taken into account.
In a peer reviewed paper by Rigo and Chandler, duplicate sampling trains were used to calculate the quantitation limit. Rigo and Chandler fou nd in this study, published by the Journal of Air and Waste Management1 , that the Reference Method Quantitation Limit for PCDD / PCDF TEQ in a municipal waste combustor may be as high as 0.51 ng / dscm . We note that this value is very similar to the petitioner ’s suggested limit of 0.3 ng / dscm TEQ that EPA references on page 80463 FR of the preamble. We support such a limit value statistically derived from a large number of actual stack tests on cement kilns which takes into account the sampling and matrix effec ts on the quantitation limit, rather than the seemingly arbitrary approach suggested by EPA.

[Footnotes]
(1) Rigo , H. G. and A. J. Chandler. 1999. “Quantitation Limits for Reference Methods 23, 26, and 29,” J. Air & Waste Manage. Assoc

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Respons e: For response on procedures for setting the RMDL please see EPA

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Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Cont rol Number: EPA

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Comment: In setting limits under this rule, EPA has attempted to ensure that they are not set at less than 3 times a “representative detection limit” or RDL .[ 76 Fed. Reg . 80463] Theref ore, EPA has not set out procedures for handling non

- detect data obtained from fuel analyses or stack testing. The RDL was determined based on only the laboratory analysis data from the top performing units, and does not take into account the error associa ted with sampling procedures. We have not had adequate time to evaluate all of the limits against what our members typically experience as non

- detect levels from the companies used by our members. However, we request that EPA include a provision in the rul e that states if a facility does a stack test or fuel analysis using the appropriate methods and procedures set out in the rule and obtains a result that is labeled as non

- detect but is above the emission limit, the source has 60 days to retest and demonst rate that emissions or fuel constituents are below the standard.
Response: We do not agree with the commenter’s suggested approach . We believe that qualified sampling firms and laboratories should be able to obtain and analyze samples so to be able to ob tain quantifiable results equal to an RMDL emission limit.

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc.184

Document Control Number: EPA

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Comment: Table 7 to Subpart CCCC of Part 60 and Table 8 to Subpart DDDD of Part 60 present the same limit for existing and new CISWI cement plants for dioxins on a TEQ basis but establish a radically different limit on a total dioxin basis. This result is counter

- intuitive, and may indicate a fundamental problem in the underlying calculations and analysis performed to establish these limits. EPA should reexamine the ana lysis of the data for dioxins (both TEQ and total) and explain the discrepancy or clarify the limits.
Response: We agree with the commenter's observation that the emission limit for total mass of Dioxins/Furans in Table 8 to Subpart DDDD of Part 60 for e xisting sources is higher than its counterpart for new sources in Table 7 to Subpart CCCC of Part 60 while the TEQ weighted limit is the same for both new and existing sources. Though this seems counter intuitive, there is an explanation for the existing s ource total dioxin/furan limit. The limits in Tables 7 and 8 come from a consistent approach for handling data that include results below the detection limit as described in the Note included in the Docket entitled "Data and procedure for handling below de tection level data in analyzing various pollutant emissions databases for MACT and RTR emissions limits"

, (Westlin & Merrill, 2011)

. In regard to the new source limit, the sum of the congener

- specific dioxin and furan ICR test data contributing to both th e total mass limit and the TEQ weighted emission limit were reported at concentrations below three times the representative detection level (3 X RDL) for total mass and TEQ. Following our approach for handling data at or near the detection limit we set the emission limits at 3 X RDL for both new source limits shown in Table 7.
For development of the existing source limits, some of the congener

- specific dioxin and furan data used in the calculation of the total mass and the TEQ weighted emission limits were reported at concentrations below the measurement detection limit. The existing source TEQ weighed emission limit was estimated at less than 3 X RDL. Therefore we based the existing source TEQ weighted emission limit on 3 X RDL value which is why it is the same as the new source TEQ weighed emission limit. For the total mass emission limit for dioxins and furans from existing sources, there were sufficient congener

- specific dioxin and furan data reported above the representative detection limit which result ed in the higher limit found in Table 8.



### 2L. Providing an Option for Sources to use Emissions Averaging to Demonstrate Compliance

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number : EPA

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Comment: EPA’s rationale for denying requests to include emissions averaging is not a correct interpretation of its authorities. EPA has already incorporated emissions averaging into the existing section 129 rules and should do so in this rule. In the Proposed Reconsidered rule, EPA185

states, “[t]he 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 av eraging 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.” 76 Fed. Reg . 80463. First, there is precedent for the Agency to include emissio ns averaging in a section 129 rule. This is found at 40 CFR 60 Subpart Cb

– Emissions Guidelines and Compliance Times for Large Municipal Waste Combustors that are Constructed on or Before September 20, 1994: From §60.33b: (d) For approval, a State plan sh all include emission limits for nitrogen oxides at least as protective as the emission limits listed in table 1 of this subpart for designated facilities. Table 1 provides emission limits for the nitrogen oxides concentration level for each type of designa ted facility. (1) A State plan may allow nitrogen oxides emissions averaging as specified in paragraphs (d)(1)(i) through (d)(1)(v) of this section. (i) The owner or operator of a municipal waste combustor plant may elect to implement a nitrogen oxides emi ssions averaging plan for the designated facilities that are located at that plant and that are subject to subpart Cb , except as specified in paragraphs (d)(1)(i)(A) and (d)(1)(i)(B) of this section. (A) Municipal waste combustor units subject to subpart E a or Eb cannot be included in the emissions averaging plan. (B) Mass burn refractory municipal waste combustor units and other municipal waste combustor technologies not listed in paragraph (d)(1)(iii) of this section may not be included in the emissions a veraging plan. (ii) The designated facilities included in the nitrogen oxides emissions averaging plan must be identified in the initial compliance report specified in §60.59b(f) or in the annual report specified in §60.59b(g), as applicable, prior to impl ementing the averaging plan. The designated facilities being included in the averaging plan may be redesignated each calendar year. Partial year redesignation is allowable with State approval. (iii) To implement the emissions averaging plan, the average da ily (24

- hour) nitrogen oxides emission concentration level for gases discharged from the designated facilities being included in the emissions averaging plan must be no greater than the levels specified in table 2 of this subpart. Table 2 provides emission limits for the nitrogen oxides concentration level for each type of designated facility. This subpart does not use the term “affected facility”, but rather “designated facility” to define each individual combustor . But that does not stop the Agency from a llowing emissions averaging. Note, however, the rule does not allow averaging outside the Subpart. We agree that emissions averaging should not cross a Subpart as the differing Subparts have different compliance deadlines. EPA should not let these differin g and uncertain terms restrict its application of emissions averaging, an concept that provides equal or better environmental outcomes while allowing sources to select the most cost

- effective compliance strategies. The preamble to the HON (Hazardous Organi c NESHAP for the Synthetic Organic Chemicals Manufacturing Industry ( SOCM )) provides EPA’s rationale for the emissions averaging provisions. 59 Fed. Reg . 19425. It states that the Agency has broad discretion to define “source” and, in the case of the HON, it is defined as all emission points relating to SOCMI production at a facility. It allows all emission points that have numerical emission standards to participate in an average. Only equipment leaks, which have no defined allowable emission level, are ex cluded. Process vents, storage vessels, transfer rack, and wastewater streams are all allowed and they all have differing emission standards. EPA has all the latitude it needs to allow emissions averaging across all units at a given facility that are subje ct to a given Subpart, so long as they have an applicable numeric emission limit. EPA should follow the HON’s provisions (see §63.150(e)) by setting up debit and credit equations to track twelve month moving average emissions.186

Response: The commenter iden tifies the one instance in a section 129 standard where EPA allowed averaging in which we allowed averaging for one pollutant, NO X , in 40 CFR Part 60, Subpart Cb. Notwithstanding subpart Cb, we do not believe we have the legal authority to allow emissions averaging in CISWI or under section 129 generally because each individual unit is an affected facility, as stated in the proposed reconsideration rule. EPA has not authorized emissions averaging in other section 129 standards since promulgation of subpar t Cb.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: In its petition for reconsideration, ACC requested that EPA allow emissions averaging in the CISWI rule similar to what it allowed in the major source boiler rule. EPA indicates in the Proposed Rule that: The applicability of CISWI is such that each uni t 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 (76 Fed. Reg

. 80463).
ACC believes that EPA’s rationale for denying requests to include emissions averaging, that a “unit” is an “affected facility”, makes little sense as there may be multiple “units” at an “affected facility.” A unit is not the same thing as a facility. Moreover EPA has already incorporated emissions averaging into at least one § 129 rule and should do so in this rule.
First, there is precedent for the Agency to include emissions averaging in a §129 rule. Thi s is found at 40 CFR 60 Subpart Cb

– Emissions Guidelines and Compliance Times for Large Municipal Waste Combustors that are Constructed on or Before September 20, 1994: (d) For approval, a State plan shall include emission limits for nitrogen oxides at le ast as protective as the emission limits listed in table 1 of this subpart for designated facilities. Table 1 provides emission limits for the nitrogen oxides concentration level for each type of designated facility. (1) A State plan may allow nitrogen oxi des emissions averaging as specified in paragraphs (d)(1)(i) through (d)(1)(v) of this section. (i) The owner or operator of a municipal waste combustor plant may elect to implement a nitrogen oxides emissions averaging plan for the designated facilities t hat are located at that plant and that are subject to subpart Cb , except as specified in paragraphs
(d)(1)(i)(A) and (d)(1)(i)(B) of this section. (A) Municipal waste combustor units subject to subpart Ea or Eb cannot be included in the emissions averaging plan. (B) Mass burn refractory municipal waste combustor units and other municipal waste combustor technologies not listed in paragraph (d)(1)(iii) of this section may not be included in the emissions averaging plan. (ii) The designated facilities include d in the nitrogen oxides emissions averaging plan must be identified in the initial compliance report specified in §60.59b(f) or in the annual report specified in §60.59b(g), as applicable, prior to implementing the averaging plan. The designated facilitie s being included in the averaging plan may be redesignated each calendar year. Partial year187

redesignation is allowable with State approval. (iii) To implement the emissions averaging plan, the average daily (24

- hour) nitrogen oxides emission concentration level for gases discharged from the designated facilities being included in the emissions averaging plan must be no greater than the levels specified in table 2 of this subpart. Table 2 provides emission limits for the nitrogen oxides concentration level f or each type of designated facility. (Emphasis added.) The preamble to the HON (Hazardous Organic NESHAP for the Synthetic Organic Chemicals Manufacturing Industry ( SOCM )) Final Rule (provides EPA’s rationale for the emissions averaging provisions. See 59 Fed. Reg . 19425 (April 22, 1994). It states that the Agency has broad discretion to define “source” and, in the case of the HON, it is defined as all emission points relating to SOCMI production at a facility. It allows all emission points that have

nume rical emission standards to be included in an average. Only equipment leaks, which have no defined allowable emission level, are excluded. Process vents, storage vessels, transfer rack, and wastewater streams are all allowed and they all have differing e mission standards. EPA has all the latitude it needs to allow emissions averaging across all units at a given facility that are subject to a given Subpart, so long as units are regulated with an applicable numeric emission limit. We suggest EPA follow th e HON’s provisions (see §63.150(e)) by setting up debit and credit equations to track twelve month moving average emissions.

Response : The commenter identifies the one instance in a section 129 standard where EPA allowed averaging in which we allowed ave raging for one pollutant, NO X , in 40 CFR Part 60, Subpart Cb. Notwithstanding subpart Cb, we do not believe we have the legal authority to allow emissions averaging in CISWI or under section 129 generally because each individual unit is an affected facili ty, as stated in the proposed reconsideration rule. EPA has not authorized emissions averaging in other section 129 standards since promulgation of subpart Cb.

Commenter Name: Stephen R. Gossett Commenter Affiliation: Eastman Chemical Company Document C ontrol Number: EPA

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Comment: Eastman has three CISWI units and could conceivably utilize emissions averaging. On page 80463 of the reconsideration proposal, EPA states “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.”
First, there is precedent for the Agency to include emissions averaging in a section 129 rule. This is found at 40 CFR 60 Subpart Cb

– Emissions Guidelines and Compliance Times for Large Municipal Waste Combustors that are Constructed on or Before September 20, 1994:

From §60.33b:
(d) For approval, a State plan shall include emission limits for nitrogen oxides at least as protective as the emission limits listed in table 1 of this subpart for designated facilities. table 1188

provides emission limits for the nitrogen oxides concentration level for each type of designated facility.
(1) A State plan may allow nitrogen oxides emissions averaging as specified in paragraphs (d)(1)(i) through (d)(1)(v) of this section.
(i) The owner or operator of a municipal waste combustor plant may elect to implement a nitrogen oxides emissions averaging plan for the designated facilities that are located at that plant and that are subject to subpart Cb , except as specified in paragraphs (d)(1)(i)(A) and (d)(1)(i)(B) of this section.
(A) Municipal waste combustor units subject to subpart Ea or Eb cannot be included in the emissions averaging plan.
(B) Mass burn refractory municipal waste combustor units and other municipal waste combustor technologies not listed in paragraph (d)(1)(iii) of this section may not be included in the emissions averaging plan.
(ii) The designated facilities included in the nitrogen oxides emissions averaging plan must be identified in the initial compl iance report specified in §60.59b(f) or in the annual report specified in §60.59b(g), as applicable, prior to implementing the averaging plan. The designated facilities being included in the averaging plan may be redesignated each calendar year. Partial
ye ar redesignation is allowable with State approval.
(iii) To implement the emissions averaging plan, the average daily (24

- hour) nitrogen oxides emission concentration level for gases discharged from the designated facilities being included in the emission s averaging plan must be no greater than the levels specified in table 2 of this subpart. table 2 provides emission limits for the nitrogen oxides concentration level for each type of designated facility.
This subpart does not use the term “affected facil ity”, but rather “designated facility” to define each individual combustor . But that does not stop the Agency from allowing emissions averaging. Note, however, the rule does not allow averaging outside the Subpart. We agree that emissions averaging should not cross a Subpart as the differing Subparts have different compliance deadlines.
EPA should not let these differing and uncertain terms restrict its application of emissions averaging, an concept that provides equal or better environmental outcomes while allowing sources to select the most cost

- effective compliance strategies.
The preamble to the HON (Hazardous Organic NESHAP for the Synthetic Organic Chemicals Manufacturing Industry ( SOCM )) Final Rule (Federal Register, April 22, 1994, starting on page 1 9425) provides EPA’s rationale for the emissions averaging provisions. It states that the Agency has broad discretion to define “source” and, in the case of the HON, it is defined as all emission points relating to SOCMI production at a facility. It allows all emission points that have numerical emission standards to participate in an average. Only equipment leaks, which have no defined allowable emission level, are excluded. Process vents, storage vessels, transfer rack, and wastewater streams are all allo wed and they all have differing emission standards.189

EPA has all the latitude it needs to allow emissions averaging across all units at a given facility that are subject to a given Subpart, so long as they have an applicable numeric emission limit. We sugge st EPA follow the HON’s provisions (see §63.150(e)) by setting up debit and credit equations to track twelve month moving average emissions.

Response: The commenter identifies the one instance in a section 129 standard where EPA allowed averaging in whic h we allowed averaging for one pollutant, NO X , in 40 CFR Part 60, Subpart Cb. Notwithstanding subpart Cb, we do not believe we have the legal authority to allow emissions averaging in CISWI or under section 129 generally because each individual unit is an affected facility, as stated in the proposed reconsideration rule. EPA has not authorized emissions averaging in other section 129 standards since promulgation of subpart Cb.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: EPA correctly rejects the request by industry for latitude to determine compliance by averaging emissions across variou s CISWI units. As EPA recognizes, such an approach would be contrary to the Clean Air Act, because each CISWI unit is a facility. Section 129 requires EPA to ensure compliance by each facility with emissions limits, not merely reductions in the aggregate e missions of the CISWI category.
Response: EPA is not authorizing emissions averaging in the final CISWI rule.



### 2N. Allowances for Using Feed Stream Analysis or Other Supplemental Information to Demonstrate Compliance

Commenter Name: Melvin E. Keener Comm enter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: In the existing rule, EPA establishes a list of monitoring parameters for facilities using specified devices such as a fabric filter, electrostatic precipitator, or activated carbon injection. In its proposed rule, EPA asks whether there are additional types of control where they should identify monitoring parameters. 76 Fed. Reg . 80,464. CRWI s ays, yes. While noting that some CISWI units may not have air pollution control devices and might need to use material balance operating limits to demonstrate compliance, EPA does not provide routine procedures for the affected source to implement. Instead, it allows the facility to petition f or specific operating limits. 76 Fed. Reg . 80,464; 40 CFR § 60.2680. If a CISWI unit does not need an air pollution control device, it is most likely because the feeds have very low concentrations of a number of pollutants of concern. It seems odd that such low emitting190

facilities will have to go through more administrative procedure to establish emission limits than other units.
A material balance simply consists of determining the amount of a pollutant entering the combustion source in the feed or the maximum allowable amount of a pollutant that could enter in the feed, and then ass uming that 100% of it is emitted. If a source can use this method for some or all of the pollutants, it could greatly simplify continuous compliance as well as the complexity and cost of a performance test. Such an approach would only involve knowing the f eed rate (charge rate is already a requirement), a periodic analysis of the feed (such as an annual analysis), and a combustion air flow rate. From the flue gas flow rate and the relevant emission standard, the source could back calculate what the maximum allowable feed rate of the pollutant could be and then demonstrate that they don’t or can’t exceed that value by analyzing feeds. Some pollutants that are created in the combustion process such as nitrogen oxides, dioxin/ furan

, and CO, would not be amenabl e to this method, but others such as sulfur, chloride, lead, cadmium, mercury, and ash (for PM) would be. CRWI requests that EPA provide such a mechanism in § 60.2015 and § 60.2680. In doing so, EPA could avoid requiring sources to petition for operating l imits thereby conserving agency resources in reviewing the petitions.
To implement such an approach, CRWI suggests the following revisions to the regulatory text at § 60.2680. CRWI also requests similar text at § 60.2015 for subpart CCCC for the same reaso n. Underlined text is CRWI’s suggested language, while strikethrough text is CRWI’s requested deletion:
(a) If you use an air pollution control device other than a wet scrubber, activated carbon injection, selective noncatalytic reduction, fabric filter, o r an electrostatic precipitator or limit emissions in some other manner, including by mass balances balancing under paragraph (b) of this section , to comply with the emission limitations under § 60.2670, you must petition the EPA Administrator for specific operating limits to be 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.

* * * * *
(b) [Reserved] If you limit emissions of cadmium, hydrogen chloride, lead, mercury, and/or sulfur dioxide by using a mass balancing approach, you must do the following:
(1) Esta blish a charge rate of solid waste feed and fuel (unless a fuel such as natural gas would not be expected to be a source of the pollutants for which the mass balance is used). The operating limit is the highest 1

- hour average rate measured during the most recent performance
test.
(2) Establish an air flow rate for the emission point. The operating limit is the highest 1

- hour average rate measured during the most recent performance test.
(3) Establish a concentration of cadmium, chloride, lead, mercury, and/ or sulfur in the solid waste and fuel (unless a fuel such as natural gas would not be expected to be a source of the pollutants for which the mass balance is used) by analysis of samples collected during the performance test (on a 30

- minute frequency and c omposited for analysis).191

(4) Use the charge rate, air flow rate, and pollutant concentration to calculate and demonstrate that emissions of the respective pollutants are less than the respective emission standard for the pollutant.
(5) Operate at limits le ss than the charge rate and air flow rate once those limits are established during the most recent performance test.
If EPA does not include such provisions in the rule, CRWI asks that EPA acknowledge in the preamble to the reconsideration final rule that a material balance approach could be approvable even though a petition might still be needed. This statement is necessary to clear up any confusion that may exist over EPA’s statement that it does not have authority to allow material balance under Section 129. Such preamble language could ease the review process for petitions should EPA not agree to our request for changes to the regulatory text.

Response: As we discussed in the preamble to the proposed rule, EPA has not proposed allowances for using feed stream analysis or other supplemental information to demonstrate compliance because EPA believes that direct measurement of emissions is the most comprehensive and accurate method to ascertain compliance with the final standards. Sources must monitor pollu tants with annual stack tests in conjunction with parametric monitoring or with CEMS. We do not believe that the regulatory text suggested by the commenter is appropriate, in the final rule, for sources that do not require air pollution control devices to comply with the rule. In Section §60.2115, we require sources to petition the EPA Administrator for specific operating limits for equipment other than wet scrubbers, activated carbon injection, selective noncatalytic reduction, and electrostatic precipitat ors. We believe that this alternative monitoring petition procedure also applies to scenarios where no APCD is used for compliance and we have added specific language to that effect in Section 60.2115. Because these parameters are set on a site

- specific b asis, we have reserved this authority believing that there is a need to maintain national consistency in implementing this section. “The Good Practices Manual for Delegation of NSPS and NESHAPS” (February 1983) reserves for the EPA Administrator specific a reas of rules that impact national consistency. A source may petition the Administrator to establish operating parameters and parameter averaging periods in a manner suggested by the commenter if they choose to do so.We further note that the rule contains provisions to allow for less frequent testing for sources with demonstrated good performance (see Sections §60.2155 and §60.2720). We believe that these provisions adequately address the commenter's concerns about the complexity and costs of performance t esting.

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 ambi ent air ... and at such other points as necessary to protect public health and the environment." Thus, even if the source is able to demonstrate that monitoring material inputs is sufficient to assure compliance, the source must still condust periodic sta ck testing.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company192

Document Control Number: EPA

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Comment: At 76 FR 80464, EPA asks whether there are additional types of control devices where they should identify monitoring parameters. In this Preamble section, EPA recognizes that there are CISWI units that may not have air pollution control devices and might need to use material balance operating limits to demonstrate compliance. If a CISWI does not need an air pollution control device, it will likely be because the feeds have very low concentrations of a number of pollutants of concern, such as a combination of some or all the following: sulfur, chloride, lead, cadmium, mercury, and ash (for PM). A material balance could simply consist of determining 1) the amount of a pollutant entering the source in the feed, or 2) the maximum allowable amount of a pollutan t that could enter in the feed, and then assuming that 100% is emitted. If a source can use this method for some or all of the pollutants that we have listed, it could greatly simplify continuous compliance as well as the complexity and cost of a performan ce test. Dow believes such an approach would only involve knowing the feed rate (charge rate is already a requirement), a periodic analysis of the feed (such as an annual analysis as part of the annual performance testing protocol), and a combustion air fl ow rate. From the combustion air flow rate and the relevant emission standard, the source could back calculate what the maximum allowable feed rate of the pollutant could be and then demonstrate that they do not or cannot exceed that value by analyzing fee ds. Some pollutants would not be amenable to this method, such as nitrogen oxides, dioxin/ furan , and CO, but the others Dow has listed would be. Dow requests that EPA provide such a mechanism in § 60.2015 and § 60.2680. In doing so, EPA could avoid requiring sources to petition for operating limits to be established in a performance test, and could also conserve agency resources in reviewing the petitions.
Response: See response to EPA

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Commenter Name: Darryl Sanderson Co mmenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: For such a mass balance approach, Dow suggests the following revisions to the proposed regulatory text at § 60.2680 a nd provides supporting rationale for these revisions below. Dow also requests similar text at § 60.2015 for subpart CCCC for the same reason. Double underlined text is Dow’s suggested language, while strikethrough text is Dow’s requested deletion:
(a) If yo u 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 other than mass balances under paragraph (b) of this section , to comply with the emission limitations under§60.2670, you must petition the EPA Administrator for specific operating limits to be established during the initial performance test and continuously monitored thereafter. You mu st 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.193

(1) Identification of the specific parameters yo u propose to use as additional operating limits.
(2) A discussion of the relationship between these parameters and emissions of regulated pollutants, identifying how emissions of regulated pollutants change with changes in these parameters and how limits o n 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 identify ing 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] If you limit an emission of cadmium, hydrogen chloride, lead, mercury, and/or sulfur dioxide by using mass balances, you must do the following:
(1) Establish a charge rate of soli d waste feed and fuel (unless a fuel such as natural gas would not be expected to be a source of the pollutants for which the mass balance is used). The operating limit is the highest 1

- hour average rate measured during the most recent performance
test.
(2 ) Establish an air flow rate for the emission point. The operating limit is the highest 1

- hour average rate measured during the most recent performance test.
(3) Establish a concentration of cadmium, chloride, lead, mercury, and/or sulfur in the solid
wast e and fuel (unless a fuel such as natural gas would not be expected to be a source of the pollutants for which the mass balance is used) by analysis of samples collected during the performance test (on a

30

- minute frequency and composited for analysis).
(4) Use the charge rate, air flow rate, and pollutant concentration to calculate and demonstrate that emissions of the respective pollutants are less than the respective emission standard for the pollutant. Since the air rate is an actual emission flow fro m the source, the amount of pollutant in the feed (charge rate X concentration) can be used to demonstrate compliance with the respective emission standard.
(5) Operate at limits less than the charge rate and air flow rate once those limits are established during the most recent performance test.
Response: See response to EPA

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Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company194

Document Control Number: EPA

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Comment: As an alternative to providing regulatory language for such an approach, Dow requests that EPA acknowledge in the Preamble to the reconsideration final rule that a material balance approach such that Dow has described could be approvable even though a petition might still be needed. Such Preamble language could ease the review process for petitions should EPA not agree to our request for changes to the regulatory text. Nevertheless, Dow suggests that the better approach would b e to provide regulatory language such as we have provided above so that petitions would not be needed.
Response: See response to EPA

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Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible W aste Incineration (CRWI) Document Control Number: EPA

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Comment: Using material balancing or feed stream analysis is just as accurate as other methods of judging compliance. This method is well known and EPA often uses it to judge compliance with air standards in combustion units. For example, the Agency allows it in a "Tier 1 Analysis" for hazardous waste boilers and industrial furnaces. 40 CFR § 266.106. EPA also allows it to judge compliance with stand ards in the hazardous waste combustion MACT

. See e.g., 40 CFR § 63.1220(a)(2) and 70 Fed. Reg . 59,402, 59,410, Fn . 11 (October 12, 2005). CRWI notes that gas sampling techniques are simple and the calculation for determining compliance is easy. The concept , of course, is also simple. It measures the amount of pollutant in the material and assumes that all of it will be emitted. If the amount of pollutant in the material is less than the limit when conducting the performance test, then the facility need only monitor feedrate and flue gas rate to remain in compliance. Thus, EPA knows that this is a reliable method of judging compliance.
Response: As we discussed in the preamble to the proposed rule, EPA has not proposed allowances for using feed stream analys is or other supplemental information to demonstrate compliance because EPA believes that direct measurement of emissions is the most comprehensive and accurate method to ascertain compliance with the final standards. Sources must monitor pollutants with a nnual stack tests in conjunction with parametric monitoring or with CEMS.

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 emission s 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 statue in our ability to implement the commen ter's proposed monitoring approach.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC)195

Document Control Number: EPA

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Comment: The rule provides only two complia nce methods for the feed dependent pollutants (cadmium, lead, mercury, sulfur dioxide, and hydrogen chloride): stack testing/parameter monitoring or CEMS . Now that the CISWI rule is being expanded to include energy recovery units (boilers) that co

- fire sol id waste with fossil fuels, ACC requests that EPA provide other compliance options, such as the development of a feed stream analysis plan. Any feed stream analysis plan option should allow for a 12

- month moving average to account for the long

- term fluctua tions in the fuel supplies. Under this option, a source would develop a feed stream sampling plan customized for its specific wastes and fuel types. For a unit that does rely on system control efficiency, the source should be allowed to establish an allowa ble feed rate based on a successful performance test by extrapolating from the actual feed rate and actual emission rate measured during the test. This approach would follow closely with the compliance program used to comply with the HWC MACT . In the HWC M ACT , each source develops and implements a Feed Stream Analysis Plan to adequately characterize the materials to be incinerated and then track the feed rates of parameters such as chlorine, metals, and ash to ensure they stay below the allowable feed rates established from a Comprehensive Performance Test. We note particularly that Subpart EEE specifies up to an annual rolling average for mercury for liquid fuel boilers (see 40 CFR 63.1209(l)(1)(ii)). It is important to note that it is possible that

some en ergy recovery units may be able to comply with a CISWI emission standard without installing an air pollution control device or technology to reduce the pollutant concentration in the boiler effluent. Such a unit may be able to comply by employing feed cont rols (e.g., minimizing the amount of metals, sulfur, and/or chloride in the fuel/feed). However, if a source were to rely on periodic performance tests, it would always run the risk of testing during a period of relatively high pollutant concentration in t he fuel/feed, particularly as EPA has not properly accounted for fuel variability when setting the standard. Also, while EPA provides the CEMS option, a source may prefer a feed stream analysis option rather than incurring the expense of a CEMS or uncertai nty related to performance of CEMS technology in a particular application. It is for these reasons ACC believes that EPA should add the option of a feed stream analysis plan.
Response: See response to EPA

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Commenter N ame: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 16

Comment: In its proposal, EPA notes that some petitioners have asked EPA to allow facilities to use feed stream analysis or other "supplemental information" to demonstrate compliance. 76 Fed. Reg . at 80,464. EPA responds by declining to propose any such monitorin g noting that it believes "direct measurement of emissions is the most comprehensive and accurate method to ascertain compliance with the final standards. Id . In addition, citing Section 129(c), EPA further declares that even if the Agency wanted to allow facilities to use feed stream analysis or other information, it would be "constrained" by the statute. CRWI believes EPA has authority to allow facilities to use material balancing as a method of demonstrating compliance.196

EPA has the authority to allow use of feed stream analysis to demonstrate compliance.
In the preamble, EPA explains that petitioners want to "use a material analysis to show that only minimal amounts of a pollutant compound enter the 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." Id

. CRWI asserts that EPA clearly has the authority to allow this compliance mechanism in the CISWI rule.

CAA section 129(c) states that EPA ‘‘shal l . . . 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 (or within the stack, combustion chamber or p ollution control equipment, as appropriate) and at such other points as necessary to protect public health and the environment;
Since material analysis calculations are made based on data collected within the combustion chamber and the stack, it is clearly lawful. While the method does not monitor emissions where they are emitted into the ambient air, it does monitor the emissions within the stack and combustion chamber, locations clearly authorized by the statute. These locations are on an equal legal foot ing with the monitoring of emissions at their point of release into the ambient air.
The Agency may be concerned that materials analysis measures feedrate and flue gas instead of directly measuring "emissions" as required by statute. CRWI notes that EPA do es not require direct measurement of emissions in other monitoring regimes used in this rule. For example, if a facility is using an electrostatic precipitator, EPA requires the operator to judge compliance for PM based on feedrate and the (secondary) volt age and amperage. 40 CFR § 60.2675(d). Direct measurement of the emission into the ambient air is not required.

CRWI also notes that despite EPA’s hesitance to authorize this practice, the Agency actually authorizes use of material balance other places in the rule. For example, in § 60.2680, EPA allows an affected source to petition for its use. See discussion at 76 Fed. Reg . 80,464/3. ("These provisions also allow specific operating limits to be established for CISWI units without any air pollution control devices, such as material balance operating limits to demonstrate continuous compliance.") Clearly, if the facility can petition to use material balance, EPA has already determined it has the authority to allow it.
Response: As we discussed in the preamb le to the proposed rule, EPA has not proposed allowances for using feed stream analysis or other supplemental information to demonstrate compliance because EPA believes that direct measurement of emissions is the most comprehensive and accurate method to a scertain compliance with the final standards. Sources must monitor pollutants with annual stack tests in conjunction with parametric monitoring or with CEMS, including for PM. In Sections §60.2115 and §60.2680, we require sources to petition the EPA Admi nistrator for specific operating limits for equipment other than wet scrubbers, activated carbon injection, selective noncatalytic reduction, and electrostatic precipitators. Because these parameters are set on a site

- specific basis, we have reserved this authority believing that there is a need to maintain national consistency in implementing this section. “The Good Practices Manual for Delegation of NSPS and NESHAPS” (February 1983) reserves for the EPA Administrator specific areas of197

rules that impact na tional consistency. A source may petition the Administrator to establish operating parameters in a manner suggested by the commenter if they choose to do so, however, any approvable request would have to include periodic stack testing or other direct meas urement of emissions. We further note that the rule contains provisions to allow for less frequent testing for sources with demonstrated good performance (see Sections §60.2155 and §60.2720).

Commenter Name: Neil Gorley Commenter Affiliation: Earthjus tice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: EPA is correct to reject industry commenters request to eliminate the requirement of emissions monito ring in favor of input monitoring. Such an approach would plainly violate section 129(c)(1)’s requirement that sources “monitor emissions . . . at the point at which such emissions are emitted.”
Response: We are finalizing emissions monitoring requirement s as proposed.



### 2O. Providing Percent Reduction Alternative Standards

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: In the preamble, EPA explained why it declined to promulgate percentage reduction standards as an alternative to the "numeric" emission limits it established for affected sources. 76 Fed. Reg . at 80,464. One of its reasons appears to be Agency doubts about the legality of such a standard, and they directed readers to their discussion of this issue in the Portland Cement MACT proposal at 74 Fed. Reg . 21,149. Id

. CRWI believes that the Agency’s doubts are misplaced.
A. EPA has already re cognized that the court’s Brick MACT decision does not prevent a percent reduction standard.
EPA’s discussion of its authority to set percent reduction standards in the Portland Cement MACT proposal presented valid policy reasons for establishing such a st andard while noting EPA’s concern that a court decision, Sierra Club v. EPA , 167 F.3d 658 (D.C. Cir. 2007) ( Brick MACT ), may prevent the Agency from setting such standards. Id . Despite EPA’s concerns, however, the Agency proceeded to establish a percent

re duction standard in the final Portland Cement rule for SO 2 , noting that Clean Air Act § 111(b) "specifically indicates that standards may be expressed as numerical limits or as percent reductions." 75 Fed. Reg . at 54,995, fn . 38, 55,017. Since CISWI rules are also § 111 rules, this logic applies to the instant rule as well.198

Response: We do not agree with the commenters position concerning percent reduction standards for CISWI. The commenter argues that, since the CISWI regulations are also CAA §111 rules, the percent reductions available in the Portland Cement MACT proposal apply to CISWI as well. On this point we disagree, and note that the requirements of CAA §129(a)(1)(A) requires that “The Administrator shall establish performance standards and other requirements pursuant to section 7411 of this title and this section for each category of solid waste incineration units.” Further, CAA §129(a)(4) requires that “The performance standards promulgated under section 7411 of this title and this sectio n and applicable to solid waste incineration units shall specify numerical emission limitations....” Nowhere in CAA §129 is the language “or as percent reductions” that is found in CAA §111(b) found. Therefore, in light of our concerns regarding the Sierra Club v. EPA , 167 F.3d 658 (D.C. Cir. 2007) ( Brick MACT ) decision and the requirements specified in CAA §129(a), we are not finalizing percent reduction alternative standards.
In addition, even if EPA had the authority to establish such standards, the EPA does not have the information necessary to establish percent reduction standards as explained in the preamble to the proposed rule (76 FR 80464). For example, percent reduction standards are appropriately applied when there is a specified control device that potential emission streams must be routed through. In these cases a percent reduction alternative provides a design and performance metric for the required type of control device. For CISWI , EPA does not specify the control devices necessary to meet numeric limits. Sources may evaluate their source emissions and determine the appropriate control strategy or devices needed to comply with the emission limits.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Inc ineration (CRWI) Document Control Number: EPA

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Comment: Even though EPA disavowed a percent reduction standard in the Portland Cement MACT for some pollutants (75 Fed. Reg . at 55,003) it still set such standards for SO 2 , irrespective of the Court’s Brick MACT decision. EPA never explains why it did so. Perhaps it is because, as EPA noted in the preamble to the proposal, the language in the Brick MACT decision causing concern is dicta , and therefore not b inding on the Agency. 74 Fed. Reg . 21,136, 21,149, fn . 20 (May 6, 2009). ("The issue of whether best performers can be based on source’s removal efficiency was not presented in Brick MACT

, or any of the other decided cases.")

CRWI agrees that this particul ar interpretation of Brick MACT is not binding on the Agency. Not only is it dicta , the Court’s decision does not signify "that best performers are those emitting the least HAP." 74 Fed. Reg . at 21,149. This erroneous interpretation is based on a misreadin g of a parenthetical statement in the court’s decision that says: ‘‘section [112 (d)(3)] requires floors based on emission levels actually achieved by best performers (those with the lowest emission levels).’’ The full quote from the Brick MACT decision is :

But EPA cannot circumvent Cement Kiln's holding that section 7412(d)(3) requires floors based on the emission level actually achieved by the best performers (those with the lowest emission levels), not the emission level achievable by all sources, simply by redefining "best performing" to mean those sources with emission levels achievable by all sources. See 255 F.3d at 861.199

Brick MACT

, supra , at 880

- 81. Consequently, the Brick MACT court was ruling that a prior case, Cement Kiln Recycling Coalition v. EP A , 255 F.3d. 855, 861 (D.C. Cir. 2001) (" Cement Kiln" ) already held that EPA was required to set emission limits equivalent to the lowest emission levels. An examination of the Cement Kiln case, however, reveals that it does not hold that section 112(d)(3) requires floors based on the lowest emission levels. The relevant quote in the Cement Kiln case is:
Though section 7412(d)(2) does direct EPA to require the "maximum emission reduction" that it determines to be achievable, section 7412(d)(3) provides that "the maximum degree of reduction in emissions that is deemed achievable ... shall not be less stringent than" what the best

performing sources "achieve." Section 7412(d)(3) therefore limits the scope of the word "achievable" in section 7412(d)(2). While standards achievable by all sources using the MACT control might also ultimately reflect what the statutorily relevant sources achieve in practice, EPA may not deviate from section 7412(d)(3)'s requirement that floors reflect what the best performers actua lly achieve by claiming that floors must be achievable by all sources using MACT technology.

Cement Kiln at 861. As is readily apparent, the court never stated that the statute requires EPA to set floor standards based on lowest emissions. Instead, it stat ed that EPA cannot base floor standards on what it believes is achievable by all sources. This conclusion is verified by the court’s discussion immediately after this portion of the opinion:
This interpretation is required by our decisions in Sierra Club v . EPA, 334 U.S. App. D.C. 421, 167 F.3d 658 (D.C. Cir. 1999), and National Lime II, 344 U.S. App. D.C. 97, 233 F.3d 625. In Sierra Club , we held that CAA section 7429(a)(2), which (in language virtually identical to the terms of section 7412(d)(3)) directs EPA to set emission floors for medical waste incinerators, requires EPA "to make a reasonable estimate of the performance of the top 1 2 percent of units." * * * * * While acknowledging that EPA has authority to devise the means of deriving this estimate, we made clear that the method the Agency selects must "allow a reasonable inference as to the performance of the top 12 percent of unit s." Id. at 663. We emphasized that EPA must show not only that it believes its methodology provides an accurate picture of the relevant sources' actual performance, but also why its methodology yields the required estimate. Id . In evaluating EPA's new

- sour ce floors in particular, which the Agency based on emission levels achieved by the worst

- performing sources using a given control technology, we concluded that EPA had not explained "why the phrase 'best controlled similar unit' encompasses all units using the same technology as the unit with the best observed performance, rather than just that unit itself, as the use of the singular in the statutory language suggests." Id. at 665. In National Lime II , we addressed a Sierra Club petition challenging emissio n standards set under section 7412(d) for non

- hazardous waste

- burning portland cement kilns. In evaluating EPA's standards, we reiterated Sierra Club 's central holding that "to comply with the statute, EPA's method of setting emission floors must reasonabl y estimate the performance of the relevant best performing plants." 233 F.3d at 632 (citing Sierra Club, 167 F.3d at 665).

Cement Kiln , at 861

- 862 (emphasis supplied). Consequently, nowhere in the opinion did the court say that EPA must set floor

- standards equivalent to the lowest emissions in their database. Therefore, the Brick MACT court’s reference to the Cement Kiln case was not about requiring standards to reflect lowest emissions. Instead, the parenthetical phrase in Brick MACT is irrelevant to the C ement Kiln case and inconsistent with Cement Kiln’s holding that EPA is free20 0

to use whatever method it desires to set floor standards as long as it results in reasonable estimates of performance.
Furthermore, EPA has never interpreted Cement Kiln to requir e a lowest emissions approach. In the HWC MACT rule, promulgated four years after the Cement Kiln decision, EPA stated that lowest emissions do not always reflect best performers and recognized that such an approach can lead to "the nonsensical result of u ncontrolled units being classified as best performers." 70 Fed. Reg . 59,402, 59,448 (October 12,2005). See also discussion at 70 Fed. Reg . at 59,442

- 43.
The court recently gave EPA another reason to doubt the precedential value of the Brick MACT decision. In an eerily similar situation where the court was relying on the Brick MACT court’s interpretation of another case, Judge Brown cast a decidedly negative eye on that panel’s ability to interpret MACT cases. In Portland Cement Association v. EPA , (D.C. Ci r. 2011), Judge Brown stated:

Sierra Club [ Brick MACT ] relied on our holding in National Lime Ass’n v. EPA , 233 F.3d 625, 640 (D.C. Cir. 2000), that the CAA does not require "that [the] achievement . . . be the product of a specific intent." But I do not r ead National Lime to have held that the achievement need not be the product of any intent. Instead, context reveals that the National Lime Court was referring to emissions of one sort that are "controlled only incidentally by controls placed upon" another sort of emission. Id. The incidental control of one emission as the result of controlling another still certainly counts as an "achievement" of emission control. But the Court did not state

—or even imply

— that emissions levels determined by inputs alone cou nt as an "achievement" of emission control within the meaning of the statute.
Thus, Judge Brown cast considerable doubt on the astuteness of the Brick MACT panel’s analysis of prior cases. Continuing on, Judge Brown declared that
Our holding in Sierra Club was a self

- inflicted wound, and the result of a series of interpretive leaps that I simply cannot follow. I regret that we have ignored Congress’s wishes and made life more difficult

— for industry and its employees, for EPA, and for ourselves.

CRWI , theref

ore, urges EPA to avoid perpetuating this "self

- inflicted" wound, and to avoid putting too much credence in the Brick MACT decision, particularly when the Agency understands that the language it relies upon is dicta

.

Response: EPA provides its bases for not establishing percent reduction standards above and in the preamble to the proposed rule. See the response to EPA

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In addition, we note that the commenter incorrectly states that EPA esta blished a percent reduction standard in the Portland cement NESHAP. The percent reduction standard to which the commenter refers was in the New Source Performance Standard portion of the rulemaking.

Commenter Name: Paul Noe, Vice President for Public Pol icy, AF&PA Commenter Affiliation: American Forest & Paper Association et al.201

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Comment: Alternative percent reduction standard for hydrogen chloride, sulfur dioxide, and

mer cury. EPA’s final emission standards are set as stack discharge concentrations. In the final CISWI rule preamble, EPA did not address comments requesting an alternative percent reduction standard, but did reject a similar comment in the Boiler MACT rule on the basis that it has no best performing unit data with which to determine appropriate values. We believe EPA is looking at this alternative too narrowly. If data specific to these units are unavailable, EPA should look beyond CISWI units to determine dem onstrated emission reduction performance capabilities of air pollution control devices on combustion sources. EPA could rely on engineering calculations and vendor representations of achieved

- in

- practice results to define numerical best control efficiency performance of air pollution control equipment under Section 129(a)(3) provisions, which allow standards to be based on “methods and technologies for removal or destruction of pollutants before, during, and after combustion.” EPA should establish emission reduction (percent removal efficiency) standards for sulfur dioxide, hydrogen chloride and mercury as compliance alternatives to the concentration

- based standards.
Response: EPA provides its bases for not establishing percent reduction standards above and in the preamble to the proposed rule. See the response to EPA

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Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: EPA is also correct to reject requests by industry commenters to require percent reductions in emissions in lieu of setting emissions limits. Standards based on pe rcentage reductions would be contrary to the Act. The Act requires that standards be set to reflect “the emissions control that is achieved in practice” by the best controlled units. 42 U.S.C. § 7429(a)(2). There is no way to determine the percent reductio n achieved by the best controlled units, because there is no way to calculate a baseline, i.e., the emissions that they would release without any control measures. Control measures are defined broadly by the Act and construed broadly by the courts. There i s no way to determine what the best

- performing sources’ emissions would be without them. And emissions standards based on percent reductions would therefore be arbitrary and unlawful.
Response: The EPA is not establishing percent reduction standards in th is rule.202



### 2P. Providing Parametric Monitoring Provisions for Additional Control Devices

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: EPA, in response to ACC’s petition for reconsideration and requests from others, is soliciting comment on the need to specify monitoring provisions for dry sorbent injection and any other control devices not already addressed (76 Fed. Reg. , 80464). In response, ACC believes parametric monitoring provisions are needed for acid gas controls including dry sorbent injection, as well as options to use SO 2 emission rate and a SO 2 continuous monitoring system correlated to HCl emissions. Dry sorb ent injection or spray dryer absorbers (using hydrated lime) are two technologies that could be used to reduce HCl and/or SO 2 emissions. ACC recommends that EPA employ a similar approach as the one provided in the Boiler MACT . 76 Fed. Reg

. 80598 at 80668 ( Table7 ) (Dec 23, 2011) ACC also requests an alternative Continuous Parameter Monitoring System ( CPMS ) utilizing SO 2 continuous monitoring. In the Boiler MACT , EPA solicits comment on petitioners’ request to allow use of SO 2 CEMS for demonstration of conti nuous compliance with the HCl emission limits for sources that are equipped with acid gas controls: While the EPA does not have enough information to propose specific requirements, we believe that a reasonable approach would be to allow for the use of SO 2 CEMS provided that the source demonstrates a correlation between SO 2 control and control of other acid gases emitted from each specific unit that chooses to use SO 2 CEMS . Such a relationship is expected because the available add

- on controls for acid gases would provide better control efficiencies for the acid
gas HAP than for SO 2 , and, therefore, demonstration of SO 2 control using CEMS would provide assurance that the aci d gas HAP are being controlled. Therefore, the EPA is soliciting comment on the use of SO 2 CEMS for demonstrating continuous compliance with the HCl emission limits with the condition noted above. 76 Fed. Reg . 80598 at 80610 (Dec 23, 2011) We agree with EP A’s conclusions that acid gas HAP control efficiencies would be better than SO 2 control efficiency (for a given acid gas control device) and that it should be possible to demonstrate a correlation between the two control efficiencies and then to rely on an SO 2 CEMS to demonstrate continuous compliance. EPA drew this same conclusion in the recently finalized Utility MACT and set alternative SO 2 emission limits. In this case, we agree that there is not enough information to set an alternative SO 2 limit that correlates with the HCl emission standard, such as was done in Utility MACT . One key difference is that the Utility MACT HCl emission limit (0.002 lb/ mmBtu ) is about ten times lower than the proposed Boiler MACT HCl limit (0.022 lb/ MMBtu ) for solid

- fuel b oilers. ACC recommends that in both the Boiler MACT and the CISWI rule, SO 2 continuous monitoring be allowed as a continuous parametric monitoring system ( CPMS ), and that the maximum 30 day rolling average SO 2 operating parameter limit to be set during a 3

- run performance test where HCl emissions are demonstrated to comply with the final HCl emission limit. This method of continuous compliance should be allowed on any unit that utilizes an acid

- gas control technology including wet scrubber, dry scrubbers, and duct sorbent injection. If this option is incorporated into the final rule, ACC recommends that the SO 2203

CEMS be allowed to select either Part 60 or Part 75 for compliance procedures as many of the existing SO 2 CEMS already use Part 75 quality assuranc e procedures.
Response: We agree that it is appropriate to add in monitoring parameters for dry acid gas scrubbers, and that the monitoring of these devices should be similar to what was proposed for major source boilers. We are amending the final rule t o add in monitoring of minimum sorbent injection rate for these units. While we did take comment on the use of a SO 2 Continuous Parameter Monitoring System ( CPMS ) as an alternative for demonstrating compliance with the HCl emission limit for major source boilers, we do not have enough information to determine whether a SO2 CEMS would be a viable CPMS system for HCl emissions from CISWI units covered in this rulemaking. In addition, even if EPA were able to provide for the use of SO2 CEMS as a CPMS for HCl, sources would still have to conduct period stack testing for HCl because CAA section 129(c)(1) states that EPA must require direct monitoring of the section 129 pollutants.

Commenter Name: Curtis D. Lesslie Commenter Af

filiation: Ash Grove Cement Company Document Control Number: EPA

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Comment: We support EPA’s position that HCl CEMS are not required if an acid gas scrubber is used to comply, however we encourage the ex pansion of this provision to include dry acid gas scrubbers, so long as surrogate operating parameter limits are established during performance testing and monitored continuously in lieu of directly monitoring HCl with CEMs.
Response: We agree that it is reasonable to expand the exemption of HCl CEMS to dry acid gas scrubbers. We are amending the language in the final rule to include this exemption.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number : EPA

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Comment: EPA has granted an exemption for the application of HCl CEMS for those facilities equipped with a wet scrubber, but not for those employing dry sorbent injection ( DSI ). EPA should note that DSI is assumed to refer to all HCl control processes upstream of the existing dust collector (including SLI ). Given that there is no difference in the HCl control performance of DSI relative to wet scrubber (and that operating parameter monitoring can be used to assess DSI performance just as it is used for the wet scrubber), there is no reason not to extend the HCl CEMS exemption to kilns equipped with DSI

. Response: We agree that it is reasonable to expand the exemption of HCl CEMS to dry acid gas

s crubbers. We are amending the language in the final rule to include this exemption.204

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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- A1 Comment Excer pt Number: 28

Comment: Parametric monitoring provisions are needed for acid gas controls including dry sorbent injection. Also, an option to use SO 2 emission rate and a SO 2 continuous monitoring system correlated to HCl emissions is needed. In the Propos ed Reconsidered Rule, EPA, in response to Petitioners’ requests, is soliciting comment on the need to specify monitoring provisions for dry sorbent injection and any other control devices not already addressed. 76 Fed. Reg . 80464. Dry sorbent injection or spray dryer absorbers (using hydrated lime) are two technologies that could be used to reduce HCl and/or SO 2 emissions. CIBO suggest a similar approach as in the Boiler MACT

– (see Table 7). 76 Fed. Reg . 80668. CIBO will take this opportunity to also request an alternative CPMS utilizing SO 2 continuous monitoring. EPA solicits comment on petitioners’ request to allow use of SO 2 CEMS for demonstration of continuous compliance with the HCl emission limits for sources t hat are equipped with acid gas controls: While the EPA does not have enough information to propose specific requirements, we believe that a reasonable approach would be to allow for the use of SO 2 CEMS provided that the source demonstrates a correlation be tween SO 2 control and control of other acid gases emitted from each specific unit that chooses to use SO 2 CEMS . Such a relationship is expected because the available add

- on controls for acid gases would provide better control efficiencies for the acid
gas HAP than for SO 2 , and, therefore, demonstration of SO 2 control using CEMS would provide assurance that the acid gas HAP are being controlled. Therefore, the EPA is soliciting comment on the use of SO 2 CEMS for demonstrating continuous compliance with the H Cl emission limits with the condition noted above. 76 Fed. Reg . 80610. CIBO agrees with EPA’s conclusions that acid gas HAP control efficiencies would be better than SO 2 control efficiency (for a given acid gas control device) and that it should be possibl e to demonstrate a correlation between the two control efficiencies and then to rely on an SO 2 CEMS to demonstrate continuous compliance. EPA drew this same conclusion in the recently finalized Utility MACT and set alternative SO 2 emission limits. In this case, CIBO agrees there is not enough information to set an alternative SO 2 limit that correlates with the HCl emission standard, such as was done in Utility MACT

. One key difference is that the Utility MACT HCl emission limit (0.002 lb/ mmBtu ) is about ten times lower than the proposed Boiler MACT HCl limit for solid

- fuel boilers (0.022 lb/ mmBtu ). CIBO would suggest in both the Boiler MACT and the CISWI rule that SO 2 continuous monitoring be allowed as a continuous parametric monitoring system ( CPMS ) and that the maximum 30 day rolling average SO 2 operating parameter limit to be set during a 3

- run performance test where HCl emissions are demonstrated to comply with the final HCl emission limit. This method of continuous compliance should be allowed o n any unit that utilizes an acidgas control technology including wet scrubber, dry scrubbers, and duct sorbent injection. If this option is incorporated into the Final Rule, we request that the SO 2 CEMS be allowed to select either Part 60 or Part 75 for co mpliance procedures as many of the existing SO 2 CEMS already use Part 75 quality assurance procedures.
Response: For response, see DCN EPA

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- A1 , Excerpt No. 28.205

Commenter Name: Stephen R. Gossett Commenter Affiliation: Eastman Chemi cal Company Document Control Number: EPA

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- A2 Comment Excerpt Number: 9

Comment: Parametric monitoring provisions are needed for acid gas controls including dry sorbent injection. Also, an option to use SO 2 emission rate and a SO 2 co ntinuous monitoring system correlated to HCl emissions is needed.

Discussion: On page 80464 of the reconsideration proposal preamble, EPA, in response to Petitioners’ requests, is soliciting comment on the need to specify monitoring provisions for dry

sor bent injection and any other control devices not already addressed.
Dry sorbent injection or spray dryer absorbers (using hydrated lime) are two technologies that could be used to reduce HCl and/or SO 2 emissions. We suggest a similar approach as in the Boi ler MACT

– see Table 7 on page 80668 of the December 23, 2011 Federal Register.
We take this opportunity to also request an alternative CPMS utilizing SO 2 continuous monitoring. On page 80610 of the reconsideration proposal for the Boiler MACT , EPA solicit s comment on petitioners’ request to allow use of SO 2 CEMS for demonstration of continuous compliance with the HCl emission limits for sources that are equipped with acid gas controls:
While the EPA does not have enough information to propose specific requ irements, we believe that a reasonable approach would be to allow for the use of SO 2 CEMS provided that the source demonstrates a correlation between SO 2 control and control of other acid gases emitted from each specific unit that chooses to use SO 2 CEMS . Such a relationship is expected because the available add

- on controls for acid gases would provide better control efficiencies for the acid
gas HAP than for SO 2 , and, therefore, demonstration of SO 2 control using CEMS would provide assurance that the aci d gas HAP are being controlled. Therefore, the EPA is soliciting comment on the use of SO 2 CEMS for demonstrating continuous compliance with the HCl emission limits with the condition noted above.
We agree with EPA’s conclusions that acid gas HAP control efficiencies would be better than SO 2 control efficiency (for a given acid gas control device) and that it should be possible to demonstrate a correlation between the two control efficiencies and then to rely on an SO 2 CEMS to demonstrate continuous compli ance. EPA drew this same conclusion in the recently finalized Utility MACT and set alternative SO 2 emission limits.
In this case, we agree there is not enough information to set an alternative SO 2 limit that correlates with the HCl emission standard, such as was done in Utility MACT . One key difference is that the Utility MACT HCl emission limit (0.002 lb/ mmBtu ) is about ten times lower than the proposed Boiler MACT HCl limit for solid

- fuel boilers.
We would suggest in both the Boiler MACT and the CISWI rul e that SO 2 continuous monitoring be allowed as a continuous parametric monitoring system ( CPMS ) and that the maximum 30 day rolling average SO 2 operating parameter limit be set during a 3

- run performance test where HCl emissions are demonstrated to comply with the final HCl emission limit. This method of continuous compliance should be allowed on any unit that utilizes an acid

- gas control technology206

including wet scrubber, dry scrubbers, and duct sorbent injection. If this option is incorporated into the fi nal rule, we request that the SO 2 CEMS be allowed to select either Part 60 or Part 75 for compliance procedures as many of the existing SO 2 CEMS already use Part 75 quality assurance procedures.
Response: For response, see DCN EPA

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- A1 , Excerpt No. 28.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 26

Comment: In the same section for which EPA is requesting comm ent on adding other types of parametric monitoring, EPA mentions the provision for petitioning for alternative compliance approaches that EPA has not specified (76 Fed. Reg . 80464). If some other mechanism or approach is needed to comply with emission lim itations other than a wet scrubber, fabric filter, activated carbon injection, selective noncatalytic reduction, or an electrostatic precipitator, EPA must be petitioned for specific operating limits to be established during the initial performance
test. In the past and for other air testing protocols, EPA has clearly and repeatedly demonstrated an inability to approve petitions, requests, alternate monitoring applications, test plans (as applicable) in a timely manner, such that a facility is often faced with a potential temporary shutdown and disruption of operations. ACC members have frequently experienced this dilemma and are acutely aware of its potential impact. For example, one ACC member company experienced difficulty during the recent implementat ion of HWC MACT (63 Subpart EEE ) and receiving test plan approvals from EPA Region VI. The member had 11 plans needing approval in this region. The plans had to be submitted one year in advance of the proposed testing date, and all of the plans were submit ted in mid

- 2007, well in advance of one year before the October 14, 2008 compliance date. The regulation also allowed for testing to be completed after the compliance date but no later than 6 months after October 14, 2008, and none of the member’s 11 plans were approved by that time (March of 2009). The regulation also provided for as long as one additional year for testing extensions. For 10 of the 11 plans, the member had to use that entire extension period that expired in March 2010. In addition, a compl iance date extension of several months had been given for several units due to Hurricane Gustav and Hurricane Ike in 2008, and the company had to use the entire hurricane extension period for those units, which expired in June 2010. The testing contractor was very concerned about this timing because they could only staff two stack sampling crews simultaneously, and were fearful that all of the testing would be compressed into such a short period that they could not get it completed on time. All of the appro vals ultimately came; however, not without a significant consumption of resources by both the member company and their testing contractor. Particularly frustrating was that the company had sent copies of these plans to their state agencies. One of these st ates, Louisiana, had reviewed these plans in great detail and had no issues with them, but the company’s efforts to persuade Region VI were largely ignored. Virtually all approvals came within a few days or weeks of the unit’s respective deadline, with one approval only arriving on the day before the test had to begin. This company was only one of many companies in Region VI with the same issue. Finally, in cases where a company must use some other method to comply with the emission limitations, the require ment at §60.2680(a) of subpart DDDD [§60.2115 of subpart207

CCCC ] that it must not conduct the initial performance until after approval of a petition by the appropriate administrator, is in direct conflict with §60.2705 of subpart DDDD [§60.2140 of subpart CC CC ], should the administrator fail to provide timely approval. ACC is therefore not confident that EPA will be able to efficiently conduct this petition process under CISWI . In this case, the facility would have to either fail to comply with the prohibiti on to test without an approved petition, or fail to comply with the deadline to test no later than 180 days after the final compliance date. The fact that these deadlines are still a few years away is somewhat irrelevant since facilities are not yet sure of what might be required under CISWI at their facilities, much less if or when they might need to submit a petition. When these approval authorities have been delegated to state agencies, the urgency of reviewing and approving these types of petitions or plans or requests in a timely manner has usually been much more evident and successful. We urge EPA to delegate the authority to approve these petitions to states. At a minimum, should EPA not delegate this authority, EPA must provide relief by adding a n exception to the deadline for conducting the initial performance test when the petition is still under review. ACC recommends the following at the end of sections §60.2680(a) [and §60.2115(a)]: ...You must not conduct the initial performance test until af ter the petition has been approved by the Administrator (or delegated state authority). Should the deadline to conduct the test no later than 180 days after the final compliance date be reached during this petition review process, the testing deadline is waived until the petition review process is completed and the reviewing authority has established an alternative deadline. Your petition must include the five items ....
Response: We are not revising the regulations as the commenter suggests. In Section § 60.2115, we require sources to petition the EPA Administrator for specific operating limits for equipment other than wet scrubbers, activated carbon injection, selective noncatalytic reduction, and electrostatic precipitators. Because these parameters are set on a site

- specific basis, we have reserved this authority believing that there is a need to maintain national consistency in implementing this section. “The Good Practices Manual for Delegation of NSPS and NESHAPS” (February 1983) reserves for the EPA Administrator specific areas of rules that impact national consistency. Furthermore, as the Agency has established consistently in the “National Stack Testing Guidance”, the Part 60 General Provisions do not allow for performance test extensions. We are c onfident that sources and the delegated authority will be able to work with each other to provide the information needed for an approval or denial, within the timeframe to conduct a performance test. In the extreme situations where this is not possible,

a lso as discussed in the National Stack Testing Guidance, the Agency has the option of using its enforcement discretion to provide additional time for conducting the performance test.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 21

Comment: In cases where you must use some other method to comply with the emission limitations, the requirement at §60.2680(a) of subpart DDDD [§ 60.2115 of subpart CCCC ] that you must not conduct the initial performance until after approval of a petition by the administrator is in direct conflict with §60.2705 of subpart DDDD [§60.2140 of subpart CCCC ], should the Administrator fail to provide time ly approval.208

In the same section for which EPA is requesting comment on adding other types of parametric monitoring, EPA has the provision for petitioning for alternative compliance approaches that EPA has not specified. If you need to use some other mecha nism or approach to comply with emission limitations other than a wet scrubber, fabric filter, activated carbon injection, selective noncatalytic reduction, or an electrostatic precipitator, you must petition EPA for specific operating limits to establish during the initial performance test. In the past and for other air testing protocols, EPA has clearly and repeatedly demonstrated an inability to approve petitions, requests, alternate monitoring applications, and test plans (as applicable) in a timely man ner, such that a facility is oftentimes faced with a choice of either shutdown and disruption of operations or noncompliance. In the case of this rule, the facility would have to either fail to comply with the prohibition to test without an approved petiti on or fail to comply with the deadline to test no later than 180 days after the final compliance date. The fact that these deadlines are still a few years away is somewhat irrelevant since facilities are not yet sure of what might be required, much less if or when they might need to submit a petition.
It should be noted, however, that when the approval authority to approve these types of petitions has been delegated to state agencies, the urgency of reviewing and approving these such requests in a timely ma nner has usually been much more evident. We therefore urge EPA to delegate the authority to approve these petitions to the states. At a minimum, should EPA not delegate this authority, EPA must provide relief by adding an exception to the deadline for cond ucting the initial performance test when the petition is still under review. Dow suggests the following at the end of sections §60.2680(a) [and §60.2115(a)]:
...You must not conduct the initial performance test until after the petition has been approved by
t he Administrator (or delegated state authority)

. Should the deadline to conduct the test no later than 180 days after the final compliance date be reached during this petition review process, the testing deadline is waived until the petition review process is completed and the reviewing authority has established an alternative deadline. Your petition must include the five items ....
Response: For response, see DCN EPA

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- A1 , Excerpt No. 26.

Commenter Name: Andrew O'Hare Commenter Affilia tion: Portland Cement Association Document Control Number: EPA

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- A1 Comment Excerpt Number: 12

Comment: EPA should allow sources to petition for the use of parametric monitoring in lieu of CEMS where appropriate: PCA anticipates that other types of air pollution control devices ( APCDs ) in addition to those listed by EPA may be used for CISWI compliance for waste burning cement kilns (76 Fed. Reg . 80464). As EPA is aware, additional APCD technologies may be employ ed for compliance with the CISWI standards. Nevertheless, we do anticipate the possibility of additional types of controls devices for which monitoring parameters have not yet been established in the rule. Based upon industry experience, the approval p rocess for alternative parametric monitoring criteria (that will be necessary for alternative APCDs ) can be burdensome and does not result in timely approval of the operating parameters for the technology. We are concerned that this process could thus d elay a facility's demonstrations of209

compliance as the performance testing cannot occur until the operating parameters are approved by EPA.

In addition, PCA believes that the requirements should be revised to allow parametric monitoring in lieu of HCl CEMS for waste burning kilns utilizing either an acid gas wet scrubber or a dry sorbent injection system. The rule currently allows for this substitution only for kilns equipped with wet scrubbers. (40 CFR 60.2145(j))
Response: You may make a written applicat ion for alternative monitoring under §60.13(i). In general the requested alternative must provide for the same level of assurance of compliance with the emission limit as the monitoring stated in the rule or must provide adequate explanation on why the re quired monitoring is infeasible. For response on the approval process for monitoring parameter for air pollution control devices not included in the rule, see DCN EPA

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- A1

, Excerpt No. 28.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 9

Comment: 60.2145(q)(2)

– It is unclear why there is a need for the source to conduct a performance evaluation of the sorbent injection rate monitoring system, except where the sorbent injection rate is the sole method for demonstrating continuo us compliance with the emission limit. For pollutants that are directly monitored continuously, the sorbent injection rate is irrelevant as long as the emission rate demonstrates compliance. This provision should be limited only to pollutants that are not directly monitored continuously. 60.2165(d)

– It is unclear why it is necessary for a source with a mercury CEM is required to continuously track the mercury sorbent injection rate each hour. This is an unnecessary duplication of monitoring and should be

r emoved for sources with CEMs . 60.2165(e)

– If a source has NO X CEMs , reagent injection rate tracking is unnecessary and should not be required.
Response: As proposed, 40 CFR 60.2145(q) states that if you have an operating limit that requires the use of a monitoring system to measure sorbent injection rate, then you must comply with paragraphs (q)(1) and (q)(2). If the pollutants are monitored directly with a CEMS , there should be no requirement to have such an operating limit in place, and therefore the source would not be subject to paragraphs (q)(1) and (q)(2)
We agree that facilities that continuously monitor emissions should not be required to perform continuous parametric mentoring. We have revised the final rule to remove the requirements for
param etric monitoring for compliance with emissions limits for facilities which use CEMS to demonstrate compliance with those emissions limits

.

Commenter Name: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc.210

Document Control Number: EPA

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- A2 Comment Excerpt Number: 6

Comment: 60.2110 establishes operating limits on specific emissions control equipment. Such limits are unnecessary in cases where CEMs are used to monitor and maintain compliance. In a kiln system, there are multiple factors in the operation of the kiln system and air pollution control devices that impact emissions of one or more pollutants. Controls that restrict parameters on an emission control device may unnecessarily increase emissions o f another pollutant without any corresponding benefit. For example, there are multiple ways to control NO X emissions from a cement kiln system. Low NO X burners, staged combustion, raw material mix design and details about how an SNCR system are operated al l can contribute to changes in NO X emission levels. The proposed regulation would set operating limits on the SNCR system that would not encourage the use of alternative control strategies that could reduce the dependence on the SNCR system and thereby red uce emissions of both greenhouse gasses and fine particulate. Similar situations arise for both SO 2 and CO. EPA should eliminate requirements to set process operating limits for emissions that are continuously monitored with a CEM , since such limits reduce flexibility without a corresponding benefit.
60.2115 establishes a complex and probably lengthy petition process for using an emissions control technology other than those listed. This approach increases barriers to innovation and decreases incentives to use innovative and advanced technologies to reduce emissions. Especially for those systems used to control emissions of pollutants for which a CEM is used to determine compliance, this petition process should not be required, as it adds to the regulatory b urden without a corresponding benefit.
Response: For response on the use of parametric monitoring for facilities that use CEMS to directly monitor emissions, see DCN EPA

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- A1 , Excerpt No. 9. For response on the approval process for mo nitoring parameter for air pollution control devices not included in the rule, see DCN EPA

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- A1 , Excerpt No. 26.

Commenter Name: Michael L. Krancer Commenter Affiliation: Pennsylvania Department of Environmental Protection Document Control Number: EPA

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- A1 Comment Excerpt Number: 6

Comment: The March 2011 final rule added monitoring parameters for sources that use wet scrubbers, electrostatic precipitators, activated carbon sorbent injection, or selective catal ytic reduction ( SCR ) systems. The EPA recognizes that dry sorbent injection for acid gas control may add one additional type of control that affected sources may use, and is requesting comment on whether EPA should specify monitoring provisions for this ty pe of control and recommendation on which parameters should be specified. EPA is also requesting comment on whether there are any other additional types of control devices for which EPA should identify monitoring parameters in the rule. The discussion in the preamble concerning parametric monitoring is not consistent with the regulatory language in section 60.2165(c) (relating to what monitoring equipment must I install and what parameters must I monitor?), which specifies that "if you are using something other than a wet scrubber, activated carbon, selective non

- catalytic reduction ...211

". The preamble refers to SCR instead of selective non

- catalytic reduction (76 FR 80496, December 23, 2011). DEP recommends that EPA clarify this inconsistency. Additionally , EPA should consider amending section 60.2165(c) to include SCR systems.
Response: We agree that the preamble should have stated selective non

- catalytic reduction instead of selective catalytic reduction. We are not amending section §60.2165(c) to inclu de SCR systems at this time. We believe that it is more appropriate to determine the operating parameters for these systems on a site specific basis, and therefore we are requiring the source to petition the EPA Administrator using the procedures establis hed in §60.2115.



### 2Q. Revisions to the Continuous Monitoring Provisions for Large ERUs

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 39

Comment: Additional Changes Are Needed to the PM CEMS Requirements
EPA is proposing to require particulate matter (PM) continuous monitors as parametric rather than direct emissions compliance monitoring for PM emissions for large ERUs and seeks
comment:
“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 maj or industrial boilers and utility boilers.” 76 Fed. Reg . 80464

- 5.
However, based our experience with these monitoring systems, we believe that EPA should not require PM CPMS or PM CEMS on any biomass or multi

- fuel ERU . A recent study was carried out by Ge orgia

- Pacific and NCASI . This study consisted of installing PM CEMS on multi

- fuel boilers at two different facilities. During this study, calibration testing was performed for both PM CEMS , and a follow

- up Relative Response Audit ( RRA ) was also carried out on both PM CEMS . Two different fuel mixtures were burned during the calibration testing for each PM CEMS , and fuel mixtures burned during the RRA were slightly different than those combusted during the calibration testing. Although the two monitoring syst ems worked reasonably well and required minimal routine maintenance, the study identified two major problems with the backscattering monitoring system:
1. The relationship between stack gas PM concentration as measured by the PM CEMS and the manual referen ce method varied when the fuel mixtures were changed. This resulted in several different calibration equations for different fuel combinations.212

2. The PM monitoring system failed to meet EPA’s relative response audit criteria when the monitoring system was tested three months after the initial installation and calibration.
In addition to the PM monitoring instrument calibration issue, the study also identified a significant challenges associated with calibrating stack PM monitors when a source is operating at very low stack gas PM concentrations. For example, NCASI observed high variability in EPA Method 5 measured values during tests when dual sampling trains are used simultaneously on a stack with low PM concentrations.
The findings of this study support EPA’s conclusion that the currently available stack gas PM monitors a re not capable of being used as compliance monitors on biomass boilers. The study results also show that because the relationship between stack gas PM concentration and instrument response varies with fuel mix, in order to develop a parameter which would i ndicate that the source was in compliance with the PM standards, the facility would have to carry out PM CPMS calibration tests using every possible fuel combination and fuel ratio. This would require months of testing with varying fuel mixes and would be very expensive and disruptive to a facility’s operation. Even after carrying out such a study, the facility would not be able to establish a parameter not to be exceeded during routine operations to ensure compliance with the PM emission standards. The res ults of these studies are being submitted to EPA directly by NCASI. The results of the GP/NCASI study also raise significant doubts regarding the feasibility of installing and calibrating PM CPMS on coal

- fired ERUs that also burn other fuels such as petrol eum coke, wastewater treatment system residuals, recycling process residuals, TDF, and various types of biomass.
EPA discusses the reasons why these monitors cannot be feasibly applied to biomass units in the preamble to the Boiler MACT rule:
“The EPA agre es that PM CEMS are not demonstrated for biomass units and that significant technical concerns exist regarding the technology’s ability to monitor emissions from biomass units. The technical concerns include the fact that PM CEMS are calibrated and certifi ed to measure emissions from a single fuel type. A change in fuel would require a change in the calibration curve of the PM CEMS instrument. The unpredictable variety of biomass fuel constituents as well as biomass fuel moisture content make relying on a s ingle calibration point problematic in terms of compliance assessment when these fuel components change. Furthermore, it is impracticable to replicate, during performance testing, all of the varying fuel conditions necessary for calibrating the monitor.” 7 6 Fed. Reg. 80609.
If EPA continues to require these monitors, they must clarify the requirements for installing and operating them. Although EPA states these monitors do not have to comply with Performance Specification 11 when used as CPMS instead of CEM S , EPA’s proposed rule language requires sources to “certify” the monitors and include the same host of requirements in a site

- specific monitoring plan as any other continuous monitoring system (see for example §60.2145(x)). We are not clear on how a sourc e should “certify” their PM CPMS other than through the use of PS 11. While EPA has required PM monitors in the Utility MACT , those boilers are many times larger than ICI boilers with commensurately larger PM emissions and associated impact. They also oper ate at relatively steady loads compared to industrial and institutional boilers that have to respond to frequent load swings, and typically burn a single fuel. EPA should remove the requirement to install PM monitors for all industrial boilers.213

Response: For a response about the rational for using PM CPMS please see section II.E of the preamble to the final rule.
As discussed in previous comments, in the final rule PM CEMS is one of the options available to large ERUs that do not burn biomass. With respec t to that option, EPA has recently issued a memo that is available in the docket on the capabilities of PM CEMS . That memo from Conniesue Oldham to Bob Schell, dated June 13, 2012, states that developing an acceptable PM CEMS correlation on a unit with ve ry low emissions, or that burns multiple fuels, is possible but requires special care. For instance, one must select the best technology available for the job. EPA has reviewed the study conducted by Georgia

- Pacific and NCASI and would like to point
out that the GP testing was done using only light scattering, or “backscattering” technology. If a source owner is concerned about the ability of a light based PM CEMS to meet the requirements of PS 11 because of variable physical characteristics of particles in the stack, there is at least one other PM CEMS technology based more directly on mass measurement rather than on the light
scatter or “backscattering” technology.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Cont rol Number: EPA

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- A2 Comment Excerpt Number: 12

Comment: WTI Supports EPA Revisions to the Continuous Monitoring Provision for Large ERUs

WTI supports EPA’s decision to eliminate the mandatory use of particulate matter CEMS (PM CEMs ) for continuous particulate monitoring. EPA has acknowledged that the PM CEM technology is not sufficient to accurately monitor PM concentrations in the ranges emitted by large ERUs . EPA’s decision is consistent with Section 129(c), which requires that mo nitoring and test methods be validated on solid waste incinerators. For these reasons we also do not believe EPA can require the installation and certification of continuous parameter monitoring systems (PM CPMS ) on large ERUs . A PM CPMS is for all practic al purposes a PM CEMs

. Importantly PM CPMS have not been validated on solid waste incineration units as required by CAA 129 (c). PM CPMS requires the use of light scatter, light scintillation or beta attenuation measurement techniques

‐ the same measurement techniques used by PM CEMs. Thus, there is no basis to believe that a “PM CPMS” will achieve greater measurement accuracy. Further we are not aware of any PM CPMS performance specification that would allow a CISWI to verify the accuracy or representativene ss of measured data for purposes of certification. We believe that the latest continuous opacity monitoring system (COMS) technology combined with other parameter monitoring (e.g., ESP power levels, baghouse leak detectors) are sufficient to maintain peak efficiency of particulate control devices and to assure that the PM limit is being continuously achieved.
Response: EPA decision to remove the mandatory requirement for PM CEMS . For a response about the rationale for using PM CPMS please seesection II.E o f the final rule preamble.. For a response to the comment regarding Section 129(c), the EPA does not expect increased accuracy or precision from PM CPMS monitoring, but rather continuous qualitative measure of214

compliance with an operating limit, rather th an quantitative measure of compliance with an emission limit.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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- A1 Comment Excerpt Number: 34

Commen t: PM CEMS are not technically effective across a range of conditions as discussed above and are a very expensive method for achieving EPA’s objective of assuring ongoing compliance with Boiler MACT and CISWI requirements. Costs 14 for the light scattering PM CEMS , which is lower operating and maintenance costs vs. the Beta Attenuation technology was estimated by EPA contractor data to cost between $103,000 to 133,000 in 2004, with substantial annual operating costs as shown below: [See submittal for data t able 3 provided by commenter.] The above costs are high in and of itself. However, these costs do not include what might be required to establish correlation curves for multiple fuel and work to try to find a way to make this technology work effectively in scenarios it has never been successfully applied. Given the range of fuels, production rates and other variables in a given installation that would have to be accounted for, this cost is believed to be a small fraction of the true cost for applying this
t echnology. There are much more effective tried and true technologies that are currently used for assuring compliance that have been demonstrated to be effective in a variety of situations. For example, bag leak detection systems, baghouse pressure drop and many other technologies which EPA has included in their Compliance Assurance Monitoring Guidance would be much more effective and accurate indicators of problems with control technology. These tried and true and less costly approaches should be adopted to assure compliance. EPA should not force industry to use an unproven technology which is unlikely to be effective in a variety of situations when a simpler more elegant technological solution is already at hand. For the above reasons, EPA must abandon its proposal to use PM CPMS as an indicator of effective operation.

[Footnotes]
(14) Status of Particulate Matter Continuous Emission Monitoring Systems for Application to Electric Utility Steam Generating Units, Prepared for: Emission Standards Division Offi ce of Air Quality Planning and Standards U.S.
Environmental Protection Agency, September 7, 2004.
Response: As discussed in section II.E. of the preamble to the final rule, PM CEMS is one of the options available to large ERUs that do not burn biomass. F or instance, ERUs with an average heat input greater than 250 MMBtu /hr, that burn coal or liquid/gas for fuel, have the option of using either PM CEMS or PM CPMS . (However, large ERUs that burn biomass are required to install PM CPMS .) ERUs with an averag e heat input of less than or equal to 250 MMBtu /hr have the option to measure PM with a PM CEMS , a PM CPMS , or to conduct periodic testing, regardless of fuel. If a source feels that one option is not suitable or practical for their unit, then the source i s encouraged to select the option most applicable to their specific site.215

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: As an alternative to the extremely expensive particulate matter CEMS installation EPA proposes, EPA should allow the installation and operation of bag leak detection systems in accordance with the proposed rule’s §63.7525(j)(1) throug h (8) in addition to the existing opacity monitors and pressure drop monitoring. The bag leak detection system provides ongoing monitoring of the bag house component performance and provides for continuous compliance demonstration. Method 5 stack testing i s performed at the rated capacity of the boiler. At this rated capacity, all systems for particulate control are maximized as well (e.g., the air/cloth ratio in the baghouse, the ID fan output, ductwork losses, etc.). Hence, for particulate matter, stack
t esting conditions are the worst case operating conditions. At lower loads, the basic design parameters for the particulate collection system and for the combustion air management are not as taxed so it would be reasonable to expect that at lower loads, par ticulate emissions on a lb/MMBTU basis would be lower than the stack test. If all systems that were operating during the stack test continue to operate properly during normal operation, continuous compliance with the stack test can be determined due to the nature of particulate matter emissions behavior. One CIBO member already operates and maintains PS1 certified opacity monitors on all three units as well as monitoring baghouse pressure drop.
Response: Please see response to DCN EPA

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Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: PM CEMS do not measure mass. Because PM mo nitors do not measure mass directly, they must be calibrated against some manual, PM reference method measurement procedure like EPA Methods 5, 5i or 17. The fundamental problem arises when the characteristics of the emitted PM exhibit significant variabil ity and this variability in the particulate properties translates into a shift or alteration in the instrument’s calibration curve. Biomass, as well as CISWI units, which combust a mixture of fuels and which operate at variable loadings pose significant ch allenges in establishing meaningful correlations. In order to establish a calibration curve, one needs to source test the emissions from the stack and correlate those to specific instrument readings. As fuel and fuel mixes vary, particle size distributions generated vary significantly. Biomass combustion emission distributions are characterized by a bimodal particulate distribution. 12 [See submittal for Figure 1 provided by commenter.] This is due to the vaporization of volatile ash species in the wood

- li ke potassium and sodium biomass ash that yields a bimodal characteristic with peaks of nominally 0.5 and 20 to 40 microns. Coal ash, on the other hand, tends to exhibit a more mono modal distribution without the submicron peak. Data available for PM CEMs e ffective is primarily limited to coal, and data on how PM CEMS will respond to monitoring biomass emissions is expected to be problematic. In addition to the variability of the fuels and fuel mixtures the operating load (firing rate) of the boiler will216

pro duce varying particulate loading which will challenge the robustness of any PM CEM correlation and calibration. This has been demonstrated during a study conducted by the Electric Power Research Institute ( EPRI ) of PM CEMS . The results of the study indicat e that when inlet loading to ESP’s are changed due to different fuel mixtures, the exhaust emissions have a different particle size and distributions. Therefore, a single or even a few correlation curves cannot be used to provide representative compliance correlations over an extensive range of fuels, fuel mixtures and loads. The results of the EPRI Study indicate that when a protocol is developed to simulate varying particle sizes and loads it results in inaccurate mass emissions estimates 13 . For units suc h as biomass units, which may use a variety of biomass materials and vary production, or for CISWI units, which combust a varying mixture of materials, testing every possible fuel mixture to develop calibration curves for each is infeasible, given the exte nsive range of possible fuel mixtures. In practice, changing the fuel mix for the purpose of correlation testing may alter the loadings; however, it would be difficult to do in a systematic way, and in order to gather the reference data needed to develop a n acceptable correlation. Thus, for variable fuel and production rate units with variable emission characteristics in the stack where the PM CEMs is being used as a monitor, we conclude that establishing meaningful curves, figuring out how to match those t o the fuel and production mixes and finally correlating these with emissions in any meaningful way is impractical. Basically, for each fuel mix that may be used, one would need to be able to establish a correlation curve. Then, the instrument would need to use the right calibration curve for the proper fuel mixture in order for any meaningful correlation with particulate to be established. This solution is not technically feasible. Beyond this, there are a number of correlation issues. For instance, the PM response to the light scattering instruments are very dependent on particle size, shape and even color. Other technologies have other limitations.

[Footnotes]
(12) “BIO

- AEROSOLS

– Aerosols in Fixed Bed Biomass Combustion,” Presented by Professor Ingewald Oberberger

, Ph.D., Graz University of Technology, Budapest, October 2003.
(13) The Varying Load Simulations in the EPRI study consisted of turning off fields in the ESP.
Response: For a response about the rationale for using PM CPMS and to questions regar ding the capabilities of PM CEMS , please see section II.E of the preamble to the final rule, as well as the memo from Conniesue Oldham to Bob Schell, dated June 13, 2012, available in the docket.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: Subpart CCCC and DDDD proposed rule language requires either a 3

- hour average basis for listed operating parameters or no specific time period except for oxygen as the operating parameter for demonstrating compliance with the CO emission limit (which is a 30

- day rolling averag e basis). The proposed rule does specify use of 30

- day rolling averages for217

CEMS compliance purposes. Use of 3

- hour averages for operating parameters where CISWI units routinely modulate is simply unworkable. The 3 hour block averaging periods will cause

o perators to consider shutdown of units that have some bobble or short term problem with a parameter in an attempt to avoid a potential permit deviation. These shutdowns and restarts will result in more impact on the environment and plant operation. Use of 30

- day rolling averages for all operating parameters as proposed by EPA in the Boiler MACT rule will allow operators to intervene and correct a problem without shutting down. We agree with EPA in their Boiler MACT discussion that major issues such as ESP t ransformer failure will show up in a 30 day rolling average and prevent continued operation with malfunctioning control equipment.
Response: We recognize the commenter's support for 30

- day rolling averages for CISWI energy recovery units, and have includ ed language in 60.2145(c) and 60.2710(c) in the final rule that specifies parametric monitoring for energy recovery units are on a 30

- day rolling average basis.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 31

Comment: In the preamble to this Proposed Rule, EPA states that it is proposing to incorporate 30

- day averaging periods for operating parameters for ERUs

. Likewise, to be consistent with these other rules, we have revised all operating parameter averaging for ERU units to be on a 30

- day rolling average. Due to the relatively long operational campaigns of ERUs , the longer averaging time will allow operators sufficient flexi bility 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 appropriate for this rule. The operating limits est ablished 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 i nfrequent hours of needed operation prompted us to look at longer averaging periods on which to base operating compliance determination. 76 Fed. Reg . 80465.

We concur that 30

- day averaging periods are appropriate for ERUs for the reasons EPA provides abo ve. However, these changes were not made to the regulatory text (60.2165, Table 4 to Subpart CCCC , 60.2730, and Table 5 to Subpart DDDD ), which still specifies 3

- hour block averages for operating parameters. EPA should make sure the regulatory language i s clear on how to establish all operating parameter ranges and the required averaging periods. The use of 3

- hour averages for operating parameters where CISWI units routinely modulate is simply unworkable. The 3

- hour block averaging periods will cause op erators to consider shutdown of units that exhibit fluctuations or short term problems with a parameter in an attempt to avoid a potential permit deviation. These shutdowns and restarts will result in more impact on the environment and plant operation than allowing continued operation and a longer averaging period would. Use of 30

- day rolling averages for all operating parameters will allow operators to intervene and correct a problem without shutting down. We agree with EPA in their Boiler MACT discussio n that major issues such as ESP transformer failure will show up in a 30

- day218

rolling average and prevent continued operation with malfunctioning control equipment. (See 76 Fed. Reg . 80610.)
Response: See response to EPA

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Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 45

Comment: We concur that 30

- day ave raging periods are appropriate for ERUs for the reasons EPA provides in the preamble. However, these changes were not made to the regulatory text (60.2165, Table 4 to Subpart CCCC , 60.2730, and Table 5 to Subpart DDDD ), which still specifies 3

- hour block a verages for operating parameters. EPA should make sure the regulatory language is clear on how to establish all operating parameter ranges and the required averaging periods.
Response: See response to EPA

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Commenter Name: Stephen R. Gossett Commenter Affiliation: Eastman Chemical Company Document Control Number: EPA

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- A2 Comment Excerpt Number: 11

Comment: We support 30 day averages for all parametric monitoring but the proposed rule language is inconsistent.

Discussion: EPA’s discussion of this issue is found on page 80465 of the preamble to the reconsideration proposal. We fully agree and support EPA’s reasoning for this change. This will provide needed operational flexibility. The previous 3 hour block averaging periods would have likely caused operators to consider shutdown of units that had some bobble or short term problem with a parameter in an attempt to avoid a potential permit deviation. These shutdowns and restarts would have resulte d in more impact on the environment and the plant operation. A 30 day rolling average will allow operators to intervene and correct a problem without shutting down. We agree with EPA that major issues such as ESP transformer failure will show up in a 30 da y rolling average and prevent continued operation with malfunctioning control equipment.
However, we have found one reference at §60.2165(f) remaining in the proposed rule language indicating 3

- hour averages.
Response: See response to EPA

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Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 9219

Comment: EPA has proposed that owner s and operators use parametric monitoring (i.e., pH, pressure drop, scrubbant flow rate, etc.) based on stack testing to demonstrate continuous compliance with applicable emission limits. The averaging period used for the parametric monitoring in the origi nal Boiler MACT finalized in March 2011 was a 12

- hour average. In the currently proposed amendments, EPA is requiring proposing that owners and operators instead use a 30

- day rolling average. This creates an averaging period for parametric monitoring that is grossly inconsistent with the emission standard set through initial performance test (stack testing). The averaging period for a stack test for an emission standard, such as particulate, is typically determined from the average of three stack test runs, which would be only one

- to two hour long runs. Where the emission standard is based on the average of three, one

- hour stack tests, parametric monitoring with a 30

- day rolling average (or even a 12

- hour average) will not ensure compliance as the affected unit could be operated outside of the range (and presumably above its three

- hour emission limit) for half the month. We do not object to the use of long

- term averages per se , as such averages can be a solution to the variability issue. However, there is th en no technical justification for the very large variability factors adopted by EPA (based on one

hour test runs) in a system that permits 30

- day averages to be used for compliance.
Response: See response to EPA

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- day average for parametric monitoring for energy recovery units. For the reasons stated in the December 2011 proposal and for the Boiler MACT rule, we have finalized this approach for energy recovery units. The variability analysis used to establish e mission limits is not being reconsidered, and therefore comments related to this approach and 30

- day rolling averages for parametric monitoring are out

- of

- scope.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Int egrity, and Clean Air Council Document Control Number: EPA

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- A2 Comment Excerpt Number: 6

Comment: EPA proposes to allow sources to demonstrate compliance with emissions limits by averaging emissions data over a longer time period. Specifically, EPA proposes to permit compliance determinations to be made on the basis of a 30

- day rolling average. Altho ugh rolling averages are better than block averages, which allow polluters to comply based on the entirely fortuitous circumstance of a new block period beginning between elevated test runs, EPA has failed to adjust the applicable emissions limits to accou nt for a 30

- day averaging period. Instead, sources are now in compliance with the standard if their average emissions are below the standard set based on one

- hour test runs. Compare MACT Floor Analysis for the Commercial and Industrial Solid Waste Incinera tors Source Category, EPA

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- 1 (“CISWI MACT floor memo”) with 76 Fed. Reg . at 80528 (Table 8 to Subpart DDDD of Part 60). This is a major methodological error. When EPA calculated the emissions limits for CISWI units, it used st atistical methods to determine the highest possible one

- hour emission level from those sources and set the standard at that level. CISWI MACT floor memo at 6

– 7 (emissions limits calculated based on “run

- specific data” adjusted for statistical variability). The 30

- day averaged emissions for those sources are necessarily much lower because, as EPA recognizes, “[30

- day] average emissions . . . have a variability of about half of that represented by the results of short

- term testing.” 76 Fed. Reg . at 80465/1. “ Short

- term tests,” by contrast,220

“are representative of distinct points along a continuum of that inherent operational variability.” Id. The failure to adjust the emissions limit upwards to account for a longer compliance period thus permits a source to dem onstrate compliance with the standard when the source’s one

- hour and 30

- day

- averaged measured emissions are both much higher than those of the best performing units that the standard is required to reflect. EPA’s switch to a 30

- day average compliance deter mination impermissibly weakens the standard in another respect also. EPA selected the best performers on the basis of one

- hour test runs, not 30

- day averages. Units not selected as the best performers may actually have yielded lower 30

- day average emission s limits than those selected. To comply with the requirement to set the MACT floor based on the best performers, EPA must use the same methodology both in selecting the best performers and then in calculating the limits. 2 The failure to do so is unlawful a nd arbitrary.

[Footnotes]
(2) For the same reasons, EPA may not adjust for variability in setting emissions limits without doing so in selecting the best performers.
Response: The variability analysis used to establish emission limits is not being recons idered, and therefore comments related to this approach and 30

- day rolling averages for parametric monitoring are out

- of

- scope. We presented our rationale and intent for being consistent with boilers in using the 30

- day rolling average for parametric moni toring at 76 FR 80465. In that discussion, we note that our monitoring requirements are similar to those required by major industrial boilers and utility boilers. While we did not note the cite directly at proposal, a further discussion of why this avera ging time is appropriate for CISWI ERUs (i.e., boilers and process heaters that combust solid waste) may be found in the preamble to the December 2011 proposed rule for industrial boilers (76 FR 80610).

Commenter Name: Mary Sullivan Douglas Commenter Aff

iliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: EPA has proposed to delete the requirement that compliance monitors for PM limits conduct annual RATA testing to demonstrate the accuracy of the results. NACAA opposes this proposal as it will diminish the protectiveness of the standards and potentially render the standard unenforceable.
Response: Please see section II.E of the preamble to the final rul e for changes to continuous PM monitoring requirements.

For a discussion on PM CEMS operational capabilities, please see section II.E of the preamble to the final rule, as well as the memo from Conniesue Oldham to Bob Schell, dated June 13, 2012, available in the docket.221



### 2S01. Extending Compliance Dates

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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- A1 Comment Excerpt Number: 2

Comment: Sources need a substantial period to come into compliance and CIBO strongly supports resetting the dates. Internal planning for compliance with major rules requires involvement of personnel at all levels of the company, and in the case of this major rule , will require major capital projects at many facilities covered by this rule. CIBO has commented in earlier comments at length on the need for sufficient time for the complex undertaking of retrofitting a major boiler facility, including compliance planni ng, engineering design, capital approval, equipment purchase, installation and testing, all in advance of the compliance date. Here, because EPA issued an immediate Notice of Reconsideration of the rule, 8 sources understood as of the publication of the Mar ch 2011 Final Rule that there would be amendments to the rule that could very well alter compliance strategies. At the time, it was unclear whether the rule would change considerably from the final version, and with respect to which sources and emission li mits. One significant element of the CISWI rule that would clearly undergo change, based in part on EPA’s flawed data, was the inventory of units in the CISWI category. In addition, several clear problems in the March 2011 Final NHSM rule made it clear tha t the definitions of NHSM and fuel were highly likely to be amended. Changes to correct data and likely revisions to the fuel definition would clearly affect the populations of units in CISWI subcategories and therefore floor calculations and emission limi ts. Under those circumstances, it would not have been rational for sources to develop compliance strategies and begin the complicated, costly process of compliance with a rule that EPA had announced would be changed. As anticipated, EPA has addressed sever al significant elements of the March 2011 Final NHSM rule, which have the effect of reclassifying sources between the incinerator and boiler categories and among subcategories in each rule. Even during the development of and comment period on the Proposed Reconsidered NHSM rule, EPA issued three interpretive letters that directly affected subcategory populations. 76 Fed. Reg . 80473. Among the sources whose classifications were directly affected are CIBO members. And EPA went on to propose other significant changes in the fuel definition that must be accounted for by sources in their compliance plans. Even the Final Reconsidered NHSM rule published, however, will not fully determine the status as waste or NHSM of many materials currently being used as fuel, a nd that rule provides a petition process to make those determinations. Sources that are unsure about the status of their materials will petition EPA for determinations of the status of their materials, and on the basis of those determinations, the sources will then know whether their continued use of those materials will classify the source as an incinerator or boiler. CIBO has urged EPA to establish a timeline for completion of the initial round of waste/fuel determinations, although the Proposed Reconside red NHSM Rule does not indicate a date

- certain by which sources will have final decisions regarding the status of their materials. In addition to uncertainties faced by sources themselves, their source compliance plans directly affect States. As EPA points out, incinerator NSPS standards under CISWI must be built into State programs. Unless EWA resets the compliance dates, the “compliance dates from the final rule would essentially provide less than 2 years for states to implement a revised state plan and f or increments of progress to be222

scheduled.” Until sources define their compliance plans, “states will be uncertain on an appropriate schedule for increments of progress, which includes submittal of a final control plan.” 76 Fed. Reg. 80465.

[Footnotes]
(8 ) National Emission Standards for Hazardous Air Pollutants; Notice of Reconsideration, 76 Fed. Reg . 15266 (March 21, 2011).
Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: EPA proposes to reset the compliance date for existing sources to 5 years from the effective date of the final reconsidered CISWI rule, or 3 years after a state plan is approved, whichever is earlier (76 Fed. Reg., 80465). For new sources, EPA proposes t o revise the compliance date to 6 months after promulgation of the final reconsidered rule. 76 Fed. Reg . at 80465. ACC strongly supports EPA including these proposed compliance deadlines in the final rule so that facilities will have the needed time to ma ke compliance related decisions, install equipment, undertake testing and complete other required actions. EPA clearly has authority to reconsider and revise standards pursuant to § 307 of the Clean Air Act. After such reconsideration and revision to the s tandards, “there will be circumstances where EPA changes a rule so extensively that the amended rule should be regarded as a new standard.” Pesticide Active Ingredient ( PAI ) NESHAP , 67 Fed. Reg . 38200, 38201 (June 3, 2002). Sources need time to come into compliance with such “new standards.” Id.
As noted above, EPA used its authority in the revised PAI rule to establish a new compliance deadline for existing sources that was an additional 16 months from the deadline in the original final rule. Id. EPA to ok similar action in establishing a new compliance deadline after reconsideration and promulgation of revised standards in the Miscellaneous Organic Chemicals Manufacturing (MON) NESHAP , 71 Fed. Reg . 10439, 10440 (Mar. 1, 2006). While this authority was un der § 112(i)(3), the regulatory structure of §§ 111, 112 and 129 are similar enough that the authority should be the same when revising a § 129 standard.
Section 129(f) requires EPA to establish compliance deadlines for new and existing sources when promul gating “performance standards and other requirements” pursuant to § 129 and § 111. The provision is ambiguous as to whether a compliance deadline initially established in a CISWI rule must continue to apply when that rule has been substantially revised an d changed through the reconsideration process. Arguably it does not.
Section 129(a)(5) requires EPA to review and if appropriate, revise a § 129/111 standard at 5 year intervals after the initial promulgation of the rule. If the underlying standard is rev ised, it is axiomatic that a new compliance deadline would have to be established pursuant to § 129(f) to223

allow sources to come into compliance with the revised “performance standards and other requirements.” ACC believes the same holds true when a rule i s substantially revised pursuant to a § 307 consideration such that the final reconsidered rule is a “new” rule triggering a new effective date.
Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final ru le.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: We agree with EPA’s prop osal to extend the compliance dates for new and existing units. EPA proposed to revise the CISWI , Boiler MACT , and Non

- Hazardous Secondary Materials ( NHSM ) rule in December 2011, so facilities are still facing significant regulatory uncertainty, in that th ey are not sure if their NHSM are fuels or waste and they are not sure what the final emission limits will be for their boilers/energy recovery units. Owner/operators of units that may be regulated by CISWI or by Boiler MACT , depending on the way the fuels are defined as provided by the NHSM rule, will need additional time to:
potentially obtain additional characterization data on their fuels;
follow the requirements of the new NHSM rule to determine if the material is a solid waste or not;
potentiall y prepare, submit, and get approval for an application for a non

- waste determination;
determine if they can meet the CISWI standards or the Boiler MACT standards or both;
determine how they can comply with the overlapping compliance requirements of Boi ler MACT and CISWI if they intend to take advantage of fuel switching provisions; and
potentially engineer, install, and start

- up new air pollution controls and CPMS to be able to comply with the emission and operating limits of either CISWI , Boiler MACT , or both, depending on the materials that the unit will burn.
We note that EPA is proposing changes to several emissions standards, changes to the number and type of subcategories, and changes to the criteria that will be used in the first instance to det ermine whether a unit is covered by the Boiler MACT or the CISWI rule . All of these proposed changes will affected the level of the standards and the manner in which these standards will be applied to affected sources. This means that EPA’s proposal to res et the compliance deadlines is justified by the facts and wholly consistent with the holding in NRDC v. EPA , 489 F.3d 1364 (D.C. Cir. 2007).
Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.224

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI rulemaking is all the more compelling because of some unique circumstances. Due to the
vacatur of the stay, the regulated community has lost almost a year from the original com pliance time frame. The regulated community relied in good faith on EPA’s administrative stay and we will be significantly prejudiced if EPA does not reset or extend the compliance date in the final reconsidered CISWI rule. Given the complexity of this rul e and all of the necessary actions that an undetermined number of affected sources will have to take, meeting the initial compliance deadline is going to be impossible for most sources and will severely impact limited industry and
state resources.
Response : As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI rulemaking is all the more compelling because of some unique circumstances. It is still unclear how many sources will be regulated under CISWI , as opposed to the § 112 boiler rules, and this uncertainty will remain until EPA finalizes its reconsideration of the Non

- Hazardous Secondary Materials ( NHSM ) Rule. The continued lack of clarity on whether a secondary material being combusted is a fuel or a “waste” has precluded sources from being able to make applicability determinations and move forward.
Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI rulemaking is all the more c ompelling because of some unique circumstances. Exacerbating the compliance challenges that will be presented in the final reconsidered rule is the fact that EPA is promulgating the first NESHAP rule applicable to electric generating utilities ( EGU ) along the same time frame as this rule. As EPA correctly notes, the sheer volume of sources that will need to devise new compliance strategies and install new equipment pursuant to this rulemaking, the boiler major source rulemaking, and the EGU rulemaking wil l outstrip the availability of the225

vendors who can do this work. 76 Fed. Reg.at 80465. In its discussion in the preamble to this proposed reconsidered rule, EPA has accurately highlighted most of the reasons why the compliance date needs to be revised in the final reconsidered rule. Id. For the reasons stated in the preamble and in these comments, ACC strongly supports the Agency finalizing its proposed revisions to the compliance deadlines for new and existing CISWI sources. Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA

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Comment: Lafarge agrees that the compliance dates should be extended due to the significant confusion and uncertainty within the regulated community arising from EPA’s immediate reconsideration and stay of the final CISWI rule and changes to th e emission standards for wasteburning kilns. See 76 Fed. Reg . 80465.
Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemi cal Company Document Control Number: EPA

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Comment: Dow appreciates and supports EPA’s plan to extend the compliance date for existing sources in the incinerator, waste

- burning kiln, and energy recovery unit subcategories and to base that date on the date of publication of the final reconsideration rule. Dow agrees with the reasons EPA provided at 76 FR 80465 and agrees with the proposed changes to this date at § 60.2505, § 60.2535, § 60.2545, and Tables 1, 2, 6, 7, 8, and 9 of subpart DDDD

. Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: PCA Supports EPA's Extension of the Compliance Deadline: PCA agrees with EPA's proposed changes that the existing source CISWI compliance deadline, which should begin five years following promulgation of the final rule. The compliance dates should be extended due to the significant confusion and uncertainty within the regulated community arising226

from EPA 's immediate reconsideration and stay of the final CISWI rule and changes to the emission standards for waste

- burning kilns. See 76 Fed. Reg . 80465.
Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Indu stry Forum (AIF) Document Control Number: EPA

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Comment: The Notice of Reconsideration appropriately recognized that the final rules that were issued required revision due to numerous technical, legal and policy issues that the Agency had not had sufficient time to address in its final rulemakings. By the same token, however, the notice created uncertainty on multiple levels as to the final limits and standards of the Boiler MACT and CISWI Rules. First, it created uncertainty as to the final composition of “a number of issues” EPA enumerated in the Notice of Reconsideration. Those included fundamental aspects of the Boiler MACT and CISWI Rules, e.g., revisions to the proposed subcategories and to the fuel s pecification through which gas

- fired boilers using a fuel other than natural gas (“NG”) can qualify as Gas 1 units in the Major Source Boiler MACT

. See id . Second, the Notice of Reconsideration created uncertainty as to which other elements not enumerated by EPA would become part of the reconsideration process and how reconsideration might alter the form of those elements as finalized on March 21, 2011. This is because EPA explicitly set forth that it was still “in the process” of determining the full exten t of those subjects and that it was committed to including “all additional issues” appropriate for reconsideration, including those raised in any then

- prospective petitions for reconsideration. Even to the extent that the Notice of Reconsideration enumerat ed certain, specific subjects as under reconsideration, it acknowledged that the list was only a portion of the subjects that EPA would ultimately reconsider. See id. Indeed, the scope of the issues that EPA intended to reconsider was not identified until the 3 December 23, 2011, reconsideration proposal, some 9 months later than the publication of the final rule (and a substantial portion of the way into the compliance planning period for affected sources). The Notice of Reconsideration, therefore, literal ly put affected sources, including those owned and/or operated by AIF members, on notice that they should not

– and, indeed, could not

– initiate selections of control technologies or make other compliance decisions because elements of the Boiler MACT and CISWI Rules were subject to change. The subsequent Delay Notice reinforced the notion that affected sources should postpone the start of internal compliance procedures because it expressly delayed the May 20, 2011, effective date of the Boiler MACT and CIS WI Rules, pending the conclusion of judicial review or EPA’s reconsideration process. See Delay Notice , 76 Fed. Reg. at 28,662. In the notice, EPA again reiterated that a reconsideration proposal would be forthcoming and that the full extent of the subject s under reconsideration would not be known until issuance of that proposal. See id. at 28,663. In the Delay Notice, therefore, EPA induced reasonable reliance on the part of affected sources, including those owned and/or operated by AIF members, to put off making the necessary compliance decisions until further notice. When weighing various energy strategies to comply with the Boiler MACT, automotive companies face a number of choices. For instance, facilities with coal

- fired boilers must decide between sev eral options for meeting the anticipated227

rules and optimizing energy usage, including adding control equipment to current boilers; converting less efficient steam

- powered heaters to NG

- fired units; and eliminating coal boilers altogether by either converti ng them to, or replacing them with, NG

- fired units or resource

preserving, landfill gas

- fired boilers. The control options associated with the CISWI rule will be even more numerous due to the higher emission restrictions involved. Uncertainty as to the fin al form of the regulations

– including which controls, work practices, and emission standards will apply

– inhibits automotive companies from judiciously making these involved energy policy decisions. Once the rules are finalized, implementation of the cha nges required to achieve compliance can require significant time, beginning with the company’s internal review process. First, the automotive company’s legal and technical personnel must analyze the newly promulgated requirements to determine the best cour se of action based on the company’s production requirements and its short

- and long

- term financial situation. After selecting a strategy, the technical staff must compile and present a budget and informational package to facilitate the managerial decision

- making process. Next, the automaker’s management must review and approve the compliance strategy. Management approval is followed by compilation of a bid package and vendor list to assist the company in identifying the best equipment and value. The automak er then submits bid packages to identified bidders and, after several rounds of clarifications and negotiations, selects and hires a bidder. It can easily take 6

- 8 months after the rule is finalized to select a control option and hire an installation contr actor, assuming a qualified vendor is available to begin work immediately. Under current regulatory timetables, this would give all affected sources slightly more than a year to design, build, install, and test required control equipment, an insufficient p eriod of time.
Even after a company hires a vendor, it needs additional time to order and install equipment. The length of time depends on the types of equipment or controls chosen, and obtaining certain pieces of equipment sometimes involves significant l ead times. In addition, as EPA acknowledges, only a limited number of vendors are qualified to fabricate and install the equipment that the Boiler MACT and CISWI and NHSM Rules will ultimately require. 3 A short implementation window would result in floodin g these vendors with bid requests and aggressive equipment delivery and installation demands, causing increased wait times and increasing compliance risk for owners and operators. Moreover, as EPA is aware, installation of controls or changes to a process to comply with a rule typically requires air construction permits to be issued under the state implementation plan (“SIP”) and revision of Title V operating permits. Construction permit processing times can range from 3 months to over a year and revision o f operating permits typically takes no less than 6 months but can take longer. After the required permits are issued and the requisite equipment is delivered, the speed of installation can depend on the weather in northern climates (where many of AIF membe rs’ facilities are located), which inhibits the pouring of concrete foundations depending on the season. A start

- up time follows equipment installation and then, generally, the vendor must test the equipment to demonstrate that it meets performance claims. Moreover, as EPA is aware, the rules, once finalized, will require some type of third

- party equipment performance testing. Regulated entities will need to select those third

- party testing companies by a process similar to vendor

- selection process describe d above and, again, the regulated community would expect shortages of qualified testing vendors in any truncated or expedited rule

- implementation window. If, as evaluated through the testing process, the equipment does not meet performance requirements, th en it may need additional modification or adjustment. In the reconsideration proposals, EPA recognizes in general terms the effect of the Notice of Reconsideration and the Delay Notice, describing the228

“resulting uncertainty” as having “limited the ability of affected sources to begin making appropriate selections of control technologies and other compliance decisions.” E.g., Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. As described above, the compliance process for regulated entities like f acilities owned and/or operated by AIF members is protracted and involves many interconnected steps. Given that the regulated community cannot begin the compliance process without knowing the final contours of the rules, any delay in EPA finalizing the Boi ler MACT and CISWI Rules necessitates a corresponding delay in the beginning of the compliance period. Otherwise, affected sources, including those owned and/or operated by AIF members, will have insufficient time to comply. Therefore, AIF supports EPA’s p roposal for the compliance period to begin 60 days after it publishes the final reconsideration rules.

[Footnotes]
(3) In the Boiler MACT Reconsideration Proposal, EPA notes that, even under the statutory maximum of 3 years, the availability of control eq uipment and vendors to facilitate installation of control technologies is likely to pose a problem, given the thousands of facilities across multiple, diverse industries that will become subject to the final reconsideration rules. See Boiler MACT Reconside ration Proposal , 76 Fed. Reg. at 80,616. The potential scarcity in availability of equipment and vendors promises to be exacerbated, as EPA recognizes, by the “large number of units requiring controls in conjunction with the parallel rulemaking for electri c generating units that will require controls from many of the same vendors.” Id.
Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA

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Comment: As EPA acknowledges, even after issuance of the reconsideration proposals, affected sources’ uncertainty as to the final form of the Boil er MACT and CISWI Rules persists because the reconsideration proposals put forward a number of substantive revisions to the definitions, subcategories, emission limits, work practice standards and other components of the rules. See CISWI and NHSM Rules Rec onsideration Proposal , 76 Fed. Reg . at 80,465; Boiler MACT Reconsideration Proposal , 76 Fed. Reg . at 80,616. In the Boiler MACT Reconsideration Proposal, for example, EPA “proposed changes to emission limits for units in every subcategory.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616 (emphasis added). Revision to emission limits and standards across the subcategories will trigger different compliance responses and control selection than would have flowed from the final rules of March 21, 2011. Those proposed changes, coupled, for example, with the shift to work practice standards for dioxin/furan emissions for all subcategories, significantly impacts the ability of affected sources, including those owned and/or operated by AIF members, to develop and decide upon final compliance strategies while the reconsideration process remains ongoing. See id. As EPA notes, facilities must design emission controls to work properly when operated together, so they cannot initiate appropriate design of th ose controls (and make corresponding compliance decisions) until the final limits and standards are known and fixed. See id. The fact that the229

Boiler MACT and CISWI and NHSM Rules all simultaneously remain in development adds a special level of complicatio n to system analysis prior to the finalized rules. For example, in one process, a company must analyze a system to evaluate which materials the NHSM Rule might be interpret as a “solid waste.” This determination will dictate whether the equipment must ulti mately meet the Boiler MACT or the CISWI Rule. In the case of the CISWI Rule, a particular process would likely require addition of an afterburner or recuperative oxidizer, selective catalytic reduction (“SCR”), a scrubber, activated carbon injection and a baghouse. If the material is considered a fuel and not subject to CISWI, however, it would have to meet the Boiler MACT requirements, which would likely involve only a scrubber and a baghouse. Moreover, uncertainty regarding the final limits required by t he rule complicates decisions on the process order of the equipment layout. Determination of the final pollutant emission limits dictates, for instance, whether to use a SCR and spray dryer combination versus a multi

pollutant, Tri

- NOx system followed by a n acid gas scrubber. The regulated community, including AIF members, simply cannot make these decisions until EPA finalizes the reconsideration proposals. Therefore, such persistent uncertainty delays the start of the implementation process. Once EPA final izes the Boiler MACT and CISWI Rules, the compliance strategy process for affected sources, including those owned and/or operated by AIF members, must begin anew. As EPA does not expect to finalize the reconsideration proposals until later this Spring, mai ntaining the original compliance dates would provide affected sources with an insufficient amount of time to meet the standards of the forthcoming final reconsideration rules. For the Boiler MACT, for example, maintaining the original compliance date of Ma rch 21, 2014, would effectively provide affected sources with less than 2 years. Even under the maximum time of 3 years from the effective date allotted under Section 112 of the Clean Air Act (“CAA”), with which EPA sought to provide affected sources in th e March 21, 2011, final rule, EPA characterized the compliance timetable as “pressing.” Delay Notice , 76 Fed. Reg. at 28,663. AIF concurs. As EPA suggests in the reconsideration proposals, if the Agency does not key the compliance period to the final recon sideration rules, sources will have insufficient time to achieve compliance. EPA should finalize its proposal to begin the compliance period 60 days after publication of the final reconsideration rules. 4

[Footnotes]
(4) Consistent with its proposal as to a ffected sources, EPA proposes to delay the start of the compliance period for new sources until 60 days after publication of the final reconsideration rules. See CISWI and NHSM Rules Reconsideration Proposal , 76 Fed. Reg. at 80,465; Boiler MACT Reconsidera tion Proposal , 76 Fed. Reg. at 80,616. AIF supports this proposal for many of the same reasons articulated with respect to affected sources.
Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI rulemaking is all the more compelling because of some unique circumstances. EPA administratively stayed the CISWI rule on May 18, 2011, two days before the rule was to become effective. See, 76 Fed. Reg . 28662 (May 18, 2011). EPA stayed the rule be cause it had already determined that significant requirements of the rule needed to be reconsidered and needed additional public comment. Additionally, the Agency received a number of petitions for reconsideration from interested parties, including ACC, as king the Agency to reconsider additional provisions. That stay remained in place until January 9, 2012, when it was vacated by a federal district court. Sierra Club v. EPA , No. 11

- 1278

- PLF , 2012 U.S. Dist . LEXIS 2457, (D.D.C. Jan. 9, 2012).
Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: EPA has proposed to extend the compliance date for all sources and all limits. We agree that such an extension is appropriate where more stringent limits are imposed following reconsideration, since sour ces should not have to comply with standards that ratchet in stringency after only one year. We note that EPA’s stay pending reconsideration has been rejected by the Court and caution that an effort to provide an extended compliance deadline for sources wh ose emission limits are not made more stringent may invite litigation that affects an extension for sources facing more stringent limits. We further note that the CAA provides the option of an additional year for compliance where a source demonstrates a ne ed for more time.
Response: In the final rule, the EPA is extending the compliance date for the incinerator, energy recovery unit, waste

- burning kiln, and small remote incinerator subcategories to 5 years after the date of publication of the final reconsi deration rule or 3 years after the state plan is approved, whichever is earlier. The date is being extended for the same reasons stated in the preamble to the proposed rule (76 FR 80465, December 23, 2011) and in section II.C.8 of the preamble to the final rule. 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. Second, when the EPA announced the reconsideration and issued the stay of t he effective date, uncertainty was created surrounding categorization and corresponding emission limits. This uncertainty limited the ability of affected sources to begin making appropriate selections of control technologies and other compliance strategy d ecisions. Even if significant changes were not being proposed for a subcategory of units, an extended compliance date would likely be necessary to provide enough time for facilities to achieve compliance after a final reconsideration was issued. In additio n, 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 implem enting agencies will be unable to adequately update and implement a state plan. Further, the EPA has received comments that the availability of control equipment and vendors to install231

control equipment for CISWI units is in question due to the large numbe r 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. Finally, as indicated by other
commenters , sources generally evaluate a ll applicable standards when determining the appropriate compliance approach, so any change in the standards for a source category have the potential to alter the compliance strategy for the source category. For these reasons, the EPA is extending the com

pliance date in the final rule.

Note that the final CISWI emission guidelines still contain the requirement to achieve final compliance “as expeditiously as practicable,” but not later than the earlier of the two specified dates. Thus, CISWI units must sti ll achieve final compliance as expeditiously as practicable. In addition, the commenter’s reference to an extension of time to comply appears to be a reference to CAA section 112(i)(3)(B), which allows the title V permitting authority to provide a one yea r extension of the compliance date if necessary for the installation of controls for compliance with a NESHAP issued pursuant to CAA section 112. Section 129 of the CAA does not contain a similar provision.

Commenter Name: Mark Calmes Commenter Affilia tion: Archer Daniels Midland Company Document Control Number: EPA

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Comment: EPA had delayed the effective dates of the March 2011 Final Boiler MACT and CISWI rules. However, on January 9, 2012, the U.S. District Court for the District of Columbia vacated EPA's Delay Notices, and any compliance obligations for sources covered by the Boiler MACT and CISWI rules became effective immediately. EPA recognized that the vacatur triggered some compliance obligations, and in February

, EPA announced in a letter to Senator Wyden its plan to address the implications of the vacatur

. Subsequently, EPA issued a No Action Assurance memorandum that addresses som e

- but not all

- of the implications of the vacatur and does not alleviate many pressing continuing compliance concerns faced by sources because the rules remain in effect.

This ongoing uncertainty is created by the timing of the four interrelated rulemakin g proceedings and the fact that the rules are now in effect and will be in effect until EPA completes the rulemaking proceedings and issues Final Reconsidered Rules. One issue, for example, that EPA did not address in its memorandum is the circumstance fac ed by sources that combust alternative material in their boilers. With the March 2011 definitions of "fuel" and NHSM now in effect and boiler and incinerator standards in effect, a source that currently combusts a material that has been defined as waste wo uld presumably be subject to CIS WI standards. However, that same material may be redefined as a fuel under the Final Reconsidered NHSM Rule, and the unit would be classified as a boiler.

The effectiveness of the rules, and the imposition thereby of regulat ory obligations, have created compliance exposure for sources that EPA could and should eliminate by staying the effect of the rules during this interim period and issuing further guidance or no enforcement assurance that addresses these concerns.232

Response : As commenter suggests, the “no action assurance” letter that EPA issued was limited to the timeliness of obligations of CISWI owners/operators to submit notifications prior to construction, notification of construction, and notification of start

- up as required in subpart CCCC . These particular notifications were determined to be the only requirements that could occur between the effective date of the March 2011 CISWI rule and the effective date of this final rule. However, as noted in Section I.A.4 of the preamble to the final rule, we did not identify any new CISWI units that commenced construction since the June 4, 2010, CISWI proposal date, which would be considered new CISWI units subject to the requirements of subpart CCCC. We are unsure of the provisions the CISWI rule that concern the commenter, in addition to those for which the Agency issued the no action assurance, and we do not understand the concern the commenter has with the NHSM rule since only new sources would be currently responsible for complying with the CISWI NSPS standards.
In this final rule, we have accounted for the final NHSM rulemaking when determining which sources are subject to CISWI and we are extending the compliance date for CISWI sources. These actions makes the commenter’s concerns and request for a stay moot.

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and Industry Document Control Number: EPA

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Comment: Compliance timetables and non

- enforcement of violations of the March 2011 rules should be clarified in light of the vacated stay. The recently vacated stay of the effective date for the initial final Major Source ICI Boiler Rule and CISWI Rule has introduced much uncertainty for businesses that are now faced with compliance deadlines, some already past, which cannot be met. In the revised final rule, EPA should clarify that compliance timetables will be based on the effective date established by the re

- promulgated final rules, rather than the initial March 2011 promulgation date, meaning compliance deadlines will fall in 2015 (assuming a 2012 re

- promulgat ion effective date) instead of 2014. Furthermore, as already indicated in the February 7, 2012 "no action" memo from Gina McCarthy at EPA, the revised final rule should reaffirm that technical violations of the March 2011 regulations will not be subject to enforcement.
Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance date in the final rule.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number : EPA

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Comment: EPA should stay the effect of the March 2011 CISWI rule and issue additional guidance or no enforcement assurance to address compliance exposure faced by sources during the period before EPA issues a Final Reconsideration Rule. EPA had delayed the effective dates of the March 2011 Final Boiler MACT and CISWI rules. 4 However, on January 9, 2012, the U.S.233

District Court for the District of Columbia vacated EPA’s Delay Notices, 5 and any compl iance obligations for sources covered by the Boiler MACT and CISWI rules became effective immediately. EPA recognized that the vacatur triggered some compliance obligations, and on January 18, 2012 EPA announced in a letter to Senator Wyden 6 its plan to ad dress the implications of the vacatur . Then on February 7, 2012, EPA issued a No Action Assurance memorandum that addresses some

– but not all

– of the implications of the vacatur. 7 EPA’s memorandum assures sources in a limited scope of circumstances that their failure to have met a deadline to file an initial notification would not be the basis of an enforcement action brought by EPA, given that the deadline fell during the period when the Boiler MACT and CISWI rules were not in effect. In the letter to Se nator Wyden , EPA asserts that for any “permitting or compliance challenges” arising from the vacatur , EPA will issue a stay for 90 days or longer, and in the event of lawsuits arising from the vacatur , EPA is “confident” that it has the legal tools to addr ess those matters. Notwithstanding its assurances, EPA’s memorandum does not alleviate many pressing continuing compliance concerns faced by sources because the rules remain in effect. This ongoing uncertainty is created by the timing of the four interrela ted rulemaking proceedings and the fact that the rules are now in effect and will be in effect until EPA completes the rulemaking proceedings and issues Final Reconsidered Rules in Spring 2012. One issue, for example, that EPA did not address in its memora ndum is the circumstance faced by sources that combust alternative materials in their boilers. With March 2011 definitions of “fuel” and NHSM now in effect, and boiler and incinerator standards in effect, a source that currently combusts a material that ha s been defined as waste would presumably be subject to CISWI standards. However, that same material may be redefined as fuel under the Final Reconsidered NHSM Rule, and the unit would be classified as a boiler. The effectiveness of the rules, and the impos ition thereby of regulatory obligations, have created compliance exposure for sources that EPA could and should eliminate. CIBO and other organizations in meetings and discussions with EPA have explained the ongoing compliance exposure during this interim period between the rules going into effect and issuance of final rules that will replace the March 2011 rules. EPA should alleviate these concerns by staying the effect of the rules during this interim period and issuing further guidance or no enforcement assurance that addresses these concerns.

[Footnotes]
(4) Industrial, Commercial, and Institutional Boilers and Process Heaters and Commercial and Industrial Waste Incineration Units; Delay Notice, 76 Fed. Reg . 28662 (May, 21, 2011).
(5) Opinion, Sierra Cl ub v. EPA, No. 11

- 1278 ( DDC Jan. 9, 2012).
(6) See EPA Letter to Sen. Wyden , Jan. 18, 2012. Appendix A.
(7) See EPA No Action Assurance letter, Feb 7, 2012. Appendix B.
Response: In this final rule, we have accounted for the NHSM rulemaking when determining which sources are subject to CISWI and we are extending the compliance date for CISWI sources. These actions makes the commenter’s concerns and request for a stay moot.

Commenter Name: Neil Gorley Commenter Affiliation: Ear thjustice, Partnership for Policy Integrity, and Clean Air Council234

Document Control Number: EPA

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Comment: EPA proposes to extend the effective date of the CISWI standards for existing
sources to the ful lest extent permitted by law

— five years after promulgation of the final reconsideration rule or three years after an applicable state plan is approved. Section 129 of the Clean Air Act establishes these time limits as an outer bound; they are not presumpti vely appropriate. EPA should not allow this further delay in the implementation of controls given that these standards are many years overdue under both section 129 and section 112(c). Moreover, section 129(f)(2) provides that standards shall be made effec tive “as expeditiously as practicable” following promulgation. Here, EPA has not departed significantly from the approach outlined in the 2011 final rule. More importantly, few standards have become more stringent in the proposed reconsidered rule. Accordi ngly, EPA has not shown that faster implementation of these standards is not “practicable.” EPA should simply restart the compliance schedule that was stayed on May 18, 2011. If EPA decides to extend the compliance deadline to the outer bound permitted by section 129, it should do only for those sources that are likely to install different controls under the proposed reconsidered standards than they would have under the standards in the 2011 final rule.
Response: In the final rule, the EPA is extending the compliance date for the incinerator, energy recovery unit, waste

- burning kiln, and small remote incinerator subcategories to 5 years after the date of publication of the final reconsideration rule or 3 years after the state plan is approved, whichever is earlier. The date is being extended for the same reasons stated in the preamble to the proposed rule (76 FR 80465, December 23, 2011) and in section II.C.8 of the preamble to the final rule. First, changes to the emission limits for the subcategories will have a significant impact on the compliance strategies that are selected by the affected sources. Second, when the EPA announced the reconsideration and issued the stay of the effective date, uncertainty was created surrounding subcategorization and corres ponding emission limits. This uncertainty limited the ability of affected sources to begin making appropriate selections of control technologies and other compliance strategy decisions. Even if significant changes were not made for a subcategory of units, an extended compliance date would still be necessary to provide enough time for facilities to achieve compliance after the final reconsideration is issued. In addition, not extending the compliance date may be problematic for states and implementing agenci es 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 were not able to adequately update and implement the state plans. Further, EPA received comments that the availability of control equipment and vendors to install control equipment for CISWI units is problematic due to the large number of units requiring controls in conjunction with the parallel rulemaking for industrial boilers and the NESHAP for electric generating units that will require controls from many of the same vendors. Finally, as indicated by other commenters , sources generally evaluate all applicable standards when determining the appropriate compliance approach, so any change in the standards for a source category have the potential to alter the compliance strategy for the source category. For these reasons, the EPA is extending the compliance date in the final rule.

Note that the final CISWI emission guidelines sti ll contain the requirement to achieve final compliance “as expeditiously as practicable,” but not later than the earlier of the two specified235

dates. Thus, CISWI units must still achieve final compliance as expeditiously as practicable. In addition, the com menter suggests that EPA only extend the compliance period for sources that are likely to install different controls pursuant to the reconsideration. The commenter did not provide a legal basis for providing facility specific compliance extensions under s ection 129. In addition, the commenter did not identify the sources that are likely to install different controls for compliance purposes, and EPA does not have such information. To the extent the commenter assumes EPA has such information based on the R IA for the CISWI rule, we note that the control estimates information contained in the RIA are estimates by EPA of what companies are likely to do in order to comply with the final rule and may not reflect what companies will actually do to comply with the final rule. For these reasons, we decline to make facility specific compliance extensions.



### 2S02. Small remote incinerator compliance dates

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA

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Comment: §60.2535(b) gives the dates by which CISWI units in the incinerator, energy recovery unit, and waste burning kilns subcategory must be in compliance with the emission guidelines. They must be in complian ce either five years after publication of the final CISWI in the Federal Register or three years after the effective date of state plan approval, whichever is earlier. Since we don’t expect Alaska to develop a state plan implementing these guidelines, the compliance date for units in these subcategories, if any exist in Alaska, is essentially five years after EPA develops a federal implementation plan (i.e., sometime in 2017). Alaska CISWI units in the small remote incinerator (SRI) subcategory that were bu ilt between 1999 and 2010, however, must be in compliance at least one year sooner. §60.2535(c) states the units in the SRI category must be in compliance by March 21, 2016. We do not understand why units in the SRI category must be in compliance sooner. I t will certainly be no easier for these units to comply given the extensive overhaul of waste management practices that will be necessary as well as the engineering of controls that are, insofar as we know now, quite likely technically infeasible. Therefor e, we believe units in the SRI subcategory should get at least the same compliance schedule as the units covered by §60.2535(b); i.e., 5 years after date of final rule publication in the FR.
Response: As explained in section II.C.8 of the preamble to the final rule, EPA extended the compliance times for small remote incinerators to be consistent with CISWI units in the incinerator subcategory: achieve final compliance as expeditiously as practicable after approval of the state plan, but not later than the date 5 years after publication of the final rule in the Federal Register or 3 years after the effective date of state plan approval, whichever is earlier.

Commenter Name: Alice Edwards, Director, Division of Air Quality Commenter Affiliation: Department of Environmental Conservation, State of Alaska236

Document Control Number: EPA

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Comment: ADEC requests that EPA also explore with Alaskan industries whether flexibility or extended compliance dates are warranted for the operators of small remote incinerators.
Response: In the December 23, 2011 proposed rule, the EPA requested public comment
regar ding the compliance date for small remote incinerator subcategory. Specifically, the EPA solicited comment on the need to extend the compliance date for this subcategory and requested additional data to supports the need to revise the emission standards fo r the small remote incinerator subcategory. The EPA received and considered public comment on the proposed rules, including compliance timing. As explained in section II.C.8 of the preamble to the final rule, EPA extended the compliance times for small rem ote incinerators to be consistent with CISWI units in the incinerator subcategory: achieve final compliance as expeditiously as practicable after approval of the state plan, but not later than the date 5 years after publication of the final rule in the Fed eral Register or 3 years after the effective date of state plan approval, whichever is earlier.

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA

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Co mment: 40 CFR 60.2535 excludes from rule coverage, SRIs that commenced construction prior to November 30, 1999. We support this exclusion on the basis of our previously submitted and extensive comments on the difficulty of achieving compliance for these s ources. Response: As earlier comment responses indicate, EPA has extended the compliance times for small remote incinerators to be consistent with CISWI units in the incinerator subcategory, thereby eliminating paragraph 40 CFR 60.2535(c) which contained the small remote incinerator compliance dates. This paragraph also contained language that was intended to make clear that small remote incinerators constructed between November 30, 1999 and June 4, 2010 were different from inc inerators, but did not intend to provide an exemption for small remote incinerators that commenced construction prior to November 30, 1999 as the commenter believes. Our intent to regulate small remote incinerators, and how we interpreted applicability be tween the 2000 CISWI rule and the CISWI rule amendments finalized today, was made clear in the preamble to the March 2011 CISWI rule (76 FR 15711), “Incinerators and small remote incinerators that are existing sources under the 2000 EG must continue to com ply with those standards until the applicable compliance date for the revised EG , at which time those sources must be in compliance with the applicable EG .” Units that meet the definition for small remote incinerators must comply with the EG once effectiv e, even if the units were constructed prior to November 13, 1999, and we have revised the regulatory text to clarify applicability.237



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

Commenter Name: Richard G. Stoll Commenter Affiliation: Foley & Lardne r LLP on behalf of Portland Cement Association (PCA) Document Control Number: EPA

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Comment: EPA totally failed to respond, however, to critical issues we had raised regarding how “existing” CISWI sources might trigger “new” CISWI source status. Please see sections VIII (D) and (F) from PCA’s 2010 Comments attached, pages 53

- 56 [included below], and 58

- 59 [included below].
[Pages 53

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What Type of Modification Would Make An Existing CISWI Source a "New " CISWI Source?
The proposed CISWI rules would be codified in 40 C.F.R. part 60 (subpart CCCC for new, reconstructed, and modified sources and subpart DDDD for existing sources). In the general provisions to part 60, the definition of "modification" state s: Modification means any physical change in, or change in the method of operation of, an existing facility which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that facility or which results in the e mission of any air pollutant (to which a standard applies) into the atmosphere not previously emitted.

40 C.F.R. 60.2.
Under the wording of this provision, any physical change or change in method of operation that "increases the amount" of emissions of a p ollutant would be considered a "modification." Thus, literally, an increase of a few pounds of pollutant per year could make an existing source into a

new source. EPA's part 60 regulations go on to provide, however (emphasis added):
§ 60.14 Modification.
(a) Except as provided under paragraphs (e) and (f) of this section, any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be consid ered a modification within the meaning of section 111 of the Act.

. . . (b) Emission rate shall be expressed as kg/hr of any pollutant discharged into the atmosphere for which a standard is applicable.
We understand that EPA has always applied the 60.14 test as controlling for CAA NSPS purposes. Thus, despite the fact that the literal wording of 60.2 would make any increase in238

emissions a modification, EPA has applied its part 60 regulations for NSPS pu rposes to be limited to increases in hourly emission rates.
The Proposed CISWI Rule is not clear on this point. First, EPA has not included any new definition of "modification" in either its proposed CCCC and DDDD regulatory sections in the Proposed CISWI Rule. EPA is thus proposing to retain the definition of "modification" that appears in the currently

- existing subparts CCCC and DDDD

. The definitions of "modification" in the current CCCC and DDDD provide: Modification or modified CISWI unit means a CIS WI unit you have changed later than June 1, 2001 and that meets one of two criteria:
(1) The cumulative cost of the changes over the life of the unit 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 o perating

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.
60.2265 ( CCCC

), 60.2875 ( DDDD ).
[Page 56]
There is nothing in parts CCCC or DDDD , however, that refle cts the permitted "hourly rate" qualification of 60.14. And there is absolutely nothing in the Proposed CISWI Rule about any of this. EPA proposes no amendments or clarifications to the existing definitions, and never even discusses the issues.

One is th us left with this major critical question unanswered: Will CISWI units be considered modified if they do anything to increase their emissions in any way, as suggested by the current provisions in 60.2 and in CCCC and DDDD , or will the 60.14 qualification (regarding hourly emission rate) override?
We assume that the better reading of EPA's regulations would be to apply the permitted "hourly rate" qualification of 60.14 to CISWI units under subparts CCCC and DDDD . This is such a critical issue , however, that we think it is highly inappropriate for the regulations to leave this as an open question, and we urge EPA to add language in subparts CCCC and DDDD to make this clear and propose its final decision through notice and comment.

EPA should al so specify in this rulemaking what would constitute a physical change or change in the method of operation. At a minimum, EPA should make clear that changing of ingredients and routine changes to accommodate specialty products or different types of cement are not physical changes or changes in the method of operation. Kilns are constructed to manufacture many types of cement with different properties, each requiring a unique raw material mix design. The usage of raw material or NHSW changes s ignificantly from one year to the other based on market conditions and its availability. It is possible that a material is not used for a few years before being used again. Kiln operators should continue to be allowed to operate239

kilns to meet normal cons umer demands without the fear of triggering the modification provisions of the Proposed Rule as long as they remain below the permitted levels.
[Pages 58

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Additional "Modification" Issues

The CISWI modification trigger possesses several complications to CISWI units that may not continuously combust solid waste and/or make a principal product through direct firing of NHSWs (e.g., kilns). In cement kiln operations, unlike most other CISWI units, the CISWI regulated pollutants can be emitted and can change when no solid waste is being combusted or used. As a result, understanding how the modification trigger will be implemented must be clarified by EPA in the final rules. Again, EPA appears to have f ailed to account for these significant aspects that CISWI kiln operators would be bound to comply with in this proposed rulemaking.

The CISWI modification definition under CAA § 129 generally follows the definitions contained in CAA § 111 (

NSPS ). One nota ble difference with the implementation of the term "modification" in the CISWI rules is that EPA has defined certain modification or reconstruction activities as exempt (see 40 CFR 60.2015(b) under Subpart CCCC ). These exemptions principally relate to pro

jects designed to bring units into compliance with CISWI requirements.
Below is an illustration of some of the potential scenarios that kiln operators could face that result in regulatory ambiguity in CISWI applicability that EPA has failed to account for in the proposed rule:
• An existing CISWI kiln undertakes a physical change or change in the method of operation that is unrelated to an existing use of a NHSW (e.g., a new alternate raw material is source d to meet product quality requirements that is new to the kiln). And, this change increases the hourly emissions of a CISWI regulated pollutant. Based on the current definitions, it appears that the CISWI kiln may become subject to the new source Subpart CCCC requirements without undertaking any change whatsoever related to NHSW usage or emissions from usage of those materials.
• An existing non

- CISWI kiln adds a NHSW fuel after June 4, 2010 that decreases the hourly emissions of a CISWI regulated pollutan t. In this case, the cement kiln could be considered a "new" CISWI kiln despite reducing CISWI regulated pollutants and possibly without making any expenditures. This outcome seems wholly in contradiction with the object of § 129 of the CAA in how modifi cations or new sources should be subject to regulations under CISWI

. • An existing CISWI cement kiln wants to increase the use of a historically used NHSW fuel (and it does not have a permit restriction on its usage amount). The hourly emissions from the kiln do not increase but it is possible that the portion of the CISWI regulated emissions attributable to the NHSW fuel did increase on an hourly basis. Under the current regulatory structure, it appears that this source may be subject to Subpart CCCC req uirements

– again possibly without a expenditure and without emission increases related to combustion of solid wastes.

• An existing CISWI kiln undertakes a physical change to comply with other federal240

emissions standards (e.g., NSPS Subpart F ) that will result in an increase of a CISWI pollutant. This may constitute a modification under the current CISWI Subpart CCCC rules.
In the event EPA pursues final regulation of CISWI kilns, PCA believes that EPA should include specific exempt ions from the definition of modification and reconstruction under the CISWI rules to avoid what PCA believes would be unintended and inappropriate application of the modification definition to CISWI kilns. This should include, but not be limited to, the following:
• Modifications that do not increase the hourly potential emission rate above permitted levels of CISWI regulated pollutants resulting from NHSW combustion.
• Modificatio ns related to new or increased use of NHSWs that do not result in hourly increases in CISWI regulated pollutants above permitted levels.
• Modifications to CISWI kilns that are required to comply with any other federally required air pollutant control prog rams (e.g., NESHAP LLL or NSPS Subpart F).
• Modifications in volume, amount, or type of NHSW that do not increase hourly potential emissions above permitted levels from the CISWI kiln.
• Modifications that meet the exemptions included under 40 CFR 60.14(e )(1

- 6).
You will see that, beginning on the bottom of page 54 [included above in pages 53

- 56], we explain how existing regulatory language creates major ambiguities on what types of activities could trigger new source CISWI status. We raise several relate d “modification” issues in need of clarification under the heading “Additional Modification Issues” on page 58. PCA’s 2010 Comments in fact offered five specific solutions that we urged EPA to include in the final CISWI regulations to resolve these issues and provide greater clarity. See page 59.
Unfortunately, EPA failed to respond to any of our comments on these “existing” vs. “new” source issues, and the final rule language leaves the major ambiguities intact. While EPA’s February 2011 CISWI “Response to Comment” document reprinted our various comments in
cut

- and

- paste fashion at pages 1220

- 25, the “response” to each such comment simply directed the reader to Section III of the final rule preamble. Yet neither Section III nor any other portion of the fin al rulemaking document offered any response to those issues.
Response: The commenter maintains that EPA failed to respond to its comments concerning the commenter’s position that the agency must incorporate the modification provisions of 40 C.F.R. 60.14 i nto the CISWI rule to provide clarity for the regulated community. We do not agree that the final CISWI rule should be revised to specifically incorporate the provisions of 40 C.F.R. 60.14 into the CISWI rule because, as explained below, that provision al ready applies to the CISWI standards.

EPA finalized the definition of modification contained in the CISWI standards in the December 2000 CISWI rule. The definition contained in the CISWI rules is derived directly from the statutory definition of modified solid waste incineration unit contained in CAA section 129(g)(3). Similarly, 40 C.F.R. 60.2 contains a definition for modification that aligns with the statutory definition of that term as set forth in CAA section 111(a)(4). These definitions are similar and, in both cases, they do not provide any level of detail concerning what constitutes a241

modification under CAA sections 111 and 129. For this reason, the 40 C.F.R. Part 60, Subpart A General Provisions contain a section titled “Modification” at 40 C.F. R 60.14, which provides a regulatory structure for determining which events constitute modification under Part 60. The General Provisions apply to all Part 60 sources unless the agency specifically provides otherwise or a provision directly conflicts with the General Provisions. See 40 C.F.R. 60.1; see, e.g. 60.14(f) (stating that “[s] pecial provisions set forth under an applicable subpart of this part shall supersede any conflicting provisions of this section”). For these reasons, 40 CFR 60.14 provides the governing standards for determining if a modification has occurred at sources subject to subparts CCCC and DDDD . The CISWI provisions that address modification (40 CFR 60.2265 and 60.2875) work in conjunction with 40 CFR 60.14, and 40 CFR 60.14 continu es to apply with the promulgation of the revisions to subparts CCCC and DDDD because EPA did not make 40 CFR 60.14 inapplicable. This interpretation of the applicability of 40 C.F.R. 60.14 is further demonstrated in practice in the context of a December 21 , 2009, applicability letter from EPA Region 4 to the Florida Department of Environmental Protection ( FDEP ). In the letter, EPA Region 4 was responding to a question from FDEP concerning the re

- rating of a municipal waste combustion unit subject to 40 C.F.R. Part 60, Subpart Cb (Emissions Guidelines and Compliance Times for Large Municipal Waste Combustors That are Constructed on or Before September 20, 1994), and inquiring whe ther that change in the facility constituted a modification triggering the applicability of 40 C.F.R. Part 60, Subpart Eb (Standards of Performance for Large Municipal Waste Combustors for Which Construction is Commenced After September 20, 1994, or for Wh ich Modification or Reconstruction is Commenced After June 19,1996). Subpart Eb contains a definition of modification substantially similar to the CISWI definition of modification and that subpart does not expressly incorporate the provisions of 40 C.F.R. 60.14. 1 Notwithstanding the fact that 40 C.F.R. 60.14 is not expressly incorporated into Subpart Eb , EPA Region 4’s analysis focused on whether the change at issue would constitute a modification pursuant to the provisions of 40 C.F.R. 60.14. The comment er raises a number of potential scenarios that waste burning kilns may face and maintains that EPA must provide guidance on the potential for the various changes to constitute a modification that would trigger applicability of the NSPS . To the extent such scenarios are not addressed in 40 C.F.R. 60.14, we maintain that they should generally be addressed through a site specific applicability determination pursuant to 60.5. While we generally decline to address the commenter’s numerous hypothetical applicabi lity issues, we note that in the preamble to the proposed rule (76 FR 80459, December 23, 2011), we stated that an existing source will not be considered a new source solely due to the combustion of solid waste. Existing sources that begin combusting solid waste within six months of, or after, the compliance date of the emissions guidelines are considered existing sources for purposes of CISWI . Such units must demonstrate compliance with CISWI and establish operating parameters for the CISWI unit consisten t with the applicable performance testing and

1 We note that 40 C.F.R. Part 60, Subparts Cb , Cd, and Ce do not directly define modification but instead refer to definitions located in the CAA , 40 C.F.R. Subparts A and B, and 40 C.F.R. Subparts Eb (for Subpart Cb ) or Ec (for Subparts Cd and Ce ) for terms that are used but not defined in those regulations. Subparts Eb and Ec contain modification definitions that are substantially similar to the CISWI rule definitions and the CAA section 129 definition of modification. Because Subparts Cb , Cd, and Ce are CAA section 129 standards, we maintain that the CAA se ction 129 specific definitions contained in Subparts Eb and Ec would control for Subparts Cb , Cd, and Ce instead of the definitions contained in the general provisions in Subparts A and B, to the extent terms are defined in both provisions.242

compliance assurance provisions. Solid waste incineration units, including waste burning kilns, are designed to combust solid waste and CISWI does not require sources to combust or not combust any particular s olid waste material. For this reason, a change in solid waste inputs alone will not trigger the modification provisions of the emissions guidelines, though sources must continue to comply with the applicable emissions standards.

Commenter Name: William V oshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA

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Comment: We note and are sure that EPA recognizes that there any number of non hazardous solids waste materials that might be suitable for firing as an alternate fuel material. In a strict reading, a CISWI kiln could be required to retest when a different company supplies off specification wrapping paper. Clearly, this is not the intent. We suggest that each CISWI kiln be able t o identify its waste streams and either group or categorize them into similar categories (i.e. plastics, carpet, wood, paper, etc.). Similar to what has already been accepted for PC MACT , if there is a substantive change in the type of fuel (i.e. categoric al waste streams) being processed that could affect emissions, then the company has the obligations to retest and recertify compliance.
Request: Provide a statement that allows for the "categorizing" of similar waste streams. This approach would lessen the confusion with regard for a facility needing to re

- permit or stack test as a result of new and similar materials coming from different suppliers.
Response: Consistent with the preamble to the proposed rule (76 FR 80459, December 23, 2011), an existing so urce will not be considered a new source solely due to the combustion of solid waste. Existing sources that begin combusting solid waste within six months of the compliance date of the emissions guidelines, such that they are solid waste incineration units on the compliance date of the emissions guidelines, or after the compliance date of the emissions guidelines are considered existing sources for purposes of CISWI . Such units must then demonstrate compliance with CISWI and establish operating parameters for the CISWI unit consistent with the applicable performance testing and compliance assurance provisions. Solid waste incineration units are designed to combust solid waste and CISWI does not require sources to combust or not combust any particular solid waste material. In certain cases, as with waste burning kilns and ERUs , solid waste may constitute all or a part of the fuel stream for the source and a change to the constituents of the solid waste does not constitute a change in the fuel. Accordingly, for such units a change in the mix of solid wastes cannot reasonably be seen as a change in the method of operation and therefore, a change in solid waste inputs alone will not trigger the modification provisions of the emissions guidelines, though sources must continue to comply with the applicable emissions standards.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2265

– Th e term “modification” encompasses any physical change, or change in the method of operating the CISWI unit that increases the amount of any air pollutant for which section 129 or section 111 applied. It is unclear how pollutants under section 111 are appli cable to the operation of a section 129 source. Furthermore, it is maddening for sources to keep track of all the various nuances related to the term “modification” and its meaning under each possible air regulation. Please consider strongly the need to unify and simplify compliance with newly applicable regulations and the terminology used, with an eye towards terms that can share a common meaning under all applicable uses of the term. It is simply ridiculous to add yet another meaning of the term “modif ication” in this rulemaking and we encourage you to consider matching the CSIWI term with the meaning applied in NSPS

. Response: The commenter appears to take issue with the different definitions of modification in standards issued pursuant to CAA section s 111 and 129 and standards issued pursuant to the authority of section 111 alone. While the statutory definitions of modification in CAA sections 129 and 111 are similar, they are not identical, and EPA has incorporated the definitions into the final CIS WI rule consistent with terms of section 129. EPA appreciates the commenter’s concern about confusion the commenter maintains exists because of the different definitions, but the
commenter has not provided any specific suggestions concerning how to make th e term modification clearer and we are maintaining the definition as finalized in the 2000 CISWI rule.

Commenter Name: Michael D. Stevens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA

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Comment: In light of the assortment of materials that can be utilized as fuel for cement kilns in a safe manner and the environmental benefits of using such materials as fuel rather than placing them in landfills, EPA and National Cem ent share a common interest in allowing kiln operators to use a variety of materials at existing kilns without triggering either the new source limits or unnecessary, frequent and expensive retesting of emissions. Therefore, we ask for the following revisi ons to Subparts CCCC and DDDD :

a. The definition of "modification or modified CISWI unit" that will trigger Subpart CCCC at an existing kiln should be clarified and set in a manner where only significant changes to a kiln's ability to utilize solid waste a s fuel triggers the provisions of Subpart CCCC . In that context, we propose three amendments to the definition.

1. First, the assessment of cost being over 50% of the cost of the unit in current dollars should apply on a project basis only. This makes practic al sense because many kilns have a very long history and the owners will not have adequate records for historical "changes," either to quantify the cost or determine which activities represent "changes" under this provision. 2. Second, this assessment should only apply to a project if the project changes the inherent ability of the unit to utilize a "solid waste." Specifically, Subpart CCCC should not be triggered by a project that is unrelated to the utilization of solid waste in the kiln.244

3. If these first two criteria are met, then the limits under Subpart CCCC should only apply to the pollutants for which a "significant" emissions increase is occurring. (Applicability should not be based on "any" increase.) For all other pollutants, the limits under Subpart DD DD would continue to apply.

b. EPA should establish a practical set of criteria for when retesting to demonstrate compliance under either Subpart CCCC or DDDD is required. For example, retesting should only be required if:

1. A new class of material that is deemed to be solid waste goes into use; 2. The use level of the new class of material is likely to be significant (more than 10% of the total fuel used over the first year of its use); and 3. The kiln operator should have at least 6 months to determine complianc e from the date of the first commercial use of the new class of materials. (Short term testing of materials for production viability should not trigger that clock.)

Response: The EPA is not revising the regulation in response to this comment. The EPA mai ntains that revising the provisions to accommodate these comments does not appear consistent with the statute and/or it may cause unintended and unforeseen consequences for the application of the modification provisions. On the specific suggestions, we fir st note that CAA section 129(g)(3) and subparts CCCC and DDDD (40 CFR 60.2265 and 60.2875) define modification under 129(g)(3)(A) in terms of the life of the unit, not in terms of individual projects. Specifically, in addition to the modification provision discussed above, a CISWI unit is considered to be modified if the cu mulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building and installing the CISWI unit (not including the cost of land) updated to current costs (current dollars). In addition, we do not believe it is appr opriate to limit the changes at the facility that are considered only to those changes that relate to the utilization of solid waste because nothing in the statute suggests that the modification determination should be limited in that manner. The changes that should be considered are all the changes to the CISWI unit and would not include facility changes that do not alter the CISWI unit as defined in the regulations. 2

Regarding compliance demonstrations for fuel switches, consistent with the preamble to t he proposed rule (76 FR 80459), 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 s ources and, as such, they must be in compliance on the date they begin combusting the new fuel or material. For a unit that is a CISWI unit and changes solid waste or other inputs, the source must maintain compliance with the applicable emission standards and continue to conduct performance testing and monitoring consistent with the requirements of the final standards.

2 The part 60 G eneral Provisions at 40 C.F.R. 60.15 address “reconstruction” under CAA section 111. Unlike the modification provision in 40 C.F.R. 60.14, the reconstruction provision conflicts with the CAA section 129(g)(3) definition of modification and thus would not apply to standards applicable to solid waste incineration units, including the CISWI standards.245

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA

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Comment: Lafarge also believes that additional rule clarification is needed on whether an existing source will be considered a “modified” source, subject to the new source standards, due to a change in combustion material. EPA recogni zes in the preamble that a change in combustion material should not trigger "modified" source requirements under Subpart CCCC for wasteburning kilns when it states: “An existing source will not be considered a new source solely due to a combustion material switch (emphasis added)” . 76 Fed. Reg . 80459. However, the language in the rule creates an ambiguity that needs to be clarified in this regard. Subpart CCCC

, rather than defaulting to Subpart A provisions defining "modification" under NSPS , includes its

o wn definitional language: “any physical change in the CISWI unit or change in the method of operating it that increases the amount of any air pollutant emitted for which Section 129 or Section 111 of the Clean Air Act has established standards” . 40 C.F.R 6 0.2265. While this language is consistent with Subpart A's definition of modification, the Subpart CCCC language does not expressly incorporate the appropriate exclusion from "modification" found within 40 C.F.R. 60.14(e)(4):
“Use of an alternative fuel or raw material if, prior to the date any standard under this part becomes applicable to that source type, as provided by §60.1, the existing facility was designed to accommodate that alternative use. A facility shall be considered to be designed to accommod

ate an alternative fuel or raw material if that use could be accomplished under the facility's construction specifications as amended prior to the change” . Instead, Subpart CCCC specifes simply that “Terms used but not defined in this subpart are defined i n the Clean Air Act and Subpart A (General Provisions) of this part" . 40 CFR Part 60.2265.
While the preamble as referenced above clearly reflects an intention by EPA to incorporate the exclusionary lanaguage of §60.14(e)(4) into the CISWI rule, the provis ions of §60.2265 by defining “modification” and then only incorporating Subpart A’s definitions as to terms not otherwise defined in §60.2265, could be read as reflecting an intention not to exclude as a “modification” changes in combustion materials used as alternate fuels at an existing cement kiln capable of accomodating the new combustion materials. Lafarge recommends that the language in §60.2265 (with conforming changes in Subpart DDDD) be clarified as follows:
Modification or modified CISWI unit mean s a CISWI unit you have changed later than June 1, 2001 and that meets one of two criteria:
(1) * * *, or
(2) Except as provided for in §60.14(e)(4) , any physical change in the CISWI unit or change in the method of operating it that increases the amount of any air pollutant emitted for which section 129 or section 111 of the Clean Air Act has established standards.
Response: As explained above, we do not believe a change in the final rule is necessary in response to this comment. Solid waste incineration units, including waste burning kilns, are designed to combust solid waste and a change in the types of solid waste combusted does not in246

itself constitute a modification that would trigger applicability of the NSPS . Sources must be able to maintain compli ance with the emissions guidelines after the change in solid waste inputs. Please see the response to EPA

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Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Numbe r: EPA

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Comment:
EPA failed to clarify which events may trigger application of the NSPS standards. EPA has suggested that only one new CISWI kilns may be expected in the future and thus provides little guidance on this issue. However, since a modification that triggers an increase in any of the regulated pollutants places a source under "new " CISWI limits with which they must immediately com

ply. PCA requests that the Agency provide additional guidance on the triggering and timing of "new" CISWI source application. PCA asks that rule state that new

source CISWI can only apply to a modification that meets four criteria:

• includes costs greater than 50% of the replacement cost of the unit;
• the primary purpose of the modification is to accommodate the burning of a solid waste ;
• the waste cannot be used in the unit prior to the modification; and

• the modification will re sult in an increase in the peak emissions of a pollutant under this rule.
In any such instance, the new source limit would only apply for the pollutants for which an increase is anticipated under the fourth criterion.
Response: We are not making a change in the final rule in response to this comment for the reasons set forth above in response to other comments on this issue. Please see the response to EPA

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Commenter Name: Andrew O'Hare Commenter Affiliation: Por tland Cement Association Document Control Number: EPA

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Comment: EPA should amend the criteria for existing sources triggering Subpart CCCC through a modification: In light of the assortment of materia ls that can be utilized as fuel for cement kilns in a safe manner and the environmental benefits of using such materials as fuel rather than placing them in landfills, it is in both the agency's and PCA's interest that kiln operators be able to use a vari ety of materials at existing kilns without trigger either the new source limits and unnecessary, frequent and expensive retesting of emissions. Therefore, we ask for the following revisions to Subparts CCCC and DODD. The definition of 'modification or247

mo dified CISWI unit'' that will trigger Subpart CCCC at an existing kiln should be clarified and set in a manner where only significant changes to a kiln's ability to utilize solid waste as fuel triggers the provisions of Subpart CCCC . In that context, we p ropose three amendments to the definition.
First, the assessment of cost being over 50% or the cost of the unit in current dollars should apply on a project basis, only. This makes practical sense for two reasons. First, many kilns have a very long histo ry and the owners will not have adequate records for historical ·'changes", either to quantify the cost or determine which activities represent ''changes" under this provision.
Response: The EPA is not making the suggested change to the definition of mod ification for the reasons set forth above in response to similar comments on this issue. Please see the response to EPA

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Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: This assessment should only apply to a project if the project changes the inherent ability of the unit to utilize a "solid waste." Specifically, Subpart CCCC should not be triggered by a project that is unrelated to the utilization of solid waste in the kiln.
Response: The EPA is not making the suggested change to the definition of modification for the reasons set forth above in response to similar comments on this issue. Please see the response to EPA

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Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: The lim its under Subpart CCCC should only apply to the pollutants for which a ''significant” emissions increase is occurring. (Applicability should not be based on "any" increase.) For all other pollutants, the limits under Subpart DDDD would continue to apply.
Response: The EPA is not making the change suggested by the commenter . The statute does not require an emissions increase to be significant and the commenter has not provided any support for the inclusion of such a term or explained what the term would mean in the context of the modification provisions of the CISWI standards.

Commenter Name: Felix Mestey, Chair, on behalf of Donald R. Schregardus, Environment Deputy Assistant Secretary of the Navy Commenter Affiliation: Clean Air Act Services Steering Committee, Department of Defense (DoD)248

Document Control Number: EPA

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Comment: 1. One or more of the dates in §60.2015 of subpart CCCC ( NSPS ) and §60.2505 of subpart DDDD ( EG ) are not correct and the latter may even be missing a date for reconstructed

sources.

Discussion Based on the proposed amendments, neither rule would apply to: 1) incinerators constructed after June 4, 2010, and before the date 60 days after the final amendments are published, or 2) CISWI units other than incinerators that were constructed after June 4, 2010, and also reconstructed or modified before the date 6 months after the final amendments are published (an admittedly unlikely scenario). As proposed in §60.2015 of subpart CCC C , the NSPS applies to units constructed after [the date 60 days after the final amendments are published], yet the tables in subpart CCCC indicate that they apply to units constructed after June 4, 2010. Changing “[the date 60 days after the final amendme nts are published]” to “June 4, 2010” in §60.2015(a)(1) would eliminate the first applicability gap. To address the second applicability gap, section §60.2505(d) should also cover modified and reconstructed units to address the unlikely scenario where a no n

- incinerator was both constructed and reconstructed in the gap. It would be helpful if both of the rules or their preambles contained a table that shows which rule applies to any CISWI unit.

Recommendation

Revise sections §60.2015 and §60.2505 as follows, if warranted, to close the applicability gaps.
§ 60.2015 What is a new incineration unit?
(a) A new incineration unit is an incineration unit that meets any of the criteria specified in paragraph (a)(1) through (a)(2) of this section.
(1) A CISWI unit tha t commenced construction after [DATE OF 60 DAYS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] June 4, 2010.
(2) A CISWI unit that commenced reconstruction or modification on or after [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
(b) You must submit the state plan to EPA by December 3, 2001 for 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 pl an that meets the requirements of this subpart and contains the more stringent emission limit for the respective pollutant in table 6 of this subpart or table 1 of subpart CCCC of this part to EPA by [DATE 1 YEAR AFTER 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 [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].249

(d) You must submit a state plan to EPA that meets the requirements of this subpart and contains the emission limits in tables 7 through 9 of this subpart by [DATE 1 YEAR AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] f or CISWI units other than incinerator units that commenced construction on or before June 4, 2010, or commenced modification or reconstruction after June 4, 2010 but no later than [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
Response: The commenter correctly points out a typographical error in the applicability sections of subpart CCCC (40 CFR 60.2015) and subpart DDDD (40 CFR 60.2505). These errors have been corrected in the final rule to be consistent with CAA section 129 . For example, 40 CFR 60.2015(a)(1) has been corrected to read “A CISWI unit that commenced construction after June 4, 2010.”

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: In the December 2011 Re

- Proposed Rule, the following text appears:

§ 60.2015 What is a new incineration unit?

(a)(2) A CISWI unit that commenced reconstruction or modification after [DATE 6 MONTHS AF TER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]. 76 Fed. Reg . 80452 at 80489, (Dec 23, 2011) However, in the rule definitions, the following text appears: § 60.2265 What definitions must I know?

Modification or modified CISWI unit means a CISWI unit that has been changed later than June 1, 2001, and that meets one of two criteria: Id. 80502. These two regulatory statements contradict each other regarding the date that is considered as the deadline by which a unit is considered modified. ACC assum es the deadline date to be considered a modified unit should be 6 months after the publication of the final rule in the Federal Register. EPA should clarify this in the Final Rule.
Response: The EPA has revised the rule to be consistent with the statutory definitions of “new solid waste incineration unit” and “modified solid waste incineration unit.” CAA sections 129(g)(2) and (3), respectively. For purposes of section 129, reconstructed solid waste incineration units are considered modified solid waste incineration units. However, because the EPA finalized standards in December 2000 for certain types of CISWI units, the dates identified by the commenter may remain in certain provisions to properly account for units subject to the 2000 CISWI standards.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: An apparent discrepancy exist s regarding the date that separates an existing unit from a modified/new unit. In the December 2011 re

- proposed rule, the following text appears [76 Fed. Reg . 80489]:

§ 60.2015 What is a new incineration unit?
(a)(2) A CISWI unit that commenced reconstruct ion or modification after [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
But, in the definitions, the following text appears [76 Fed. Reg . 80502]:

§ 60.2265 What definitions must I know?

Modification or modified CISWI unit means a CISWI unit that has been changed later than June 1, 2001, and that meets one of two criteria...
These two statements contradict each other regarding the date that is considered for modification. We assume the date provided in the definition at § 60.2265 needs to be modified to agree with § 60.2015.
Response: As indicated above, EPA has revised the dates in the final rule to the extent required to be consistent with the statutory requirements.

Commenter Name: Michael Pelan Commenter Affiliatio n: Lafarge North America Document Control Number: EPA

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Comment: Lafarge requests clarification on ambiguous language in this section of the rulemaking related to compliance dates with the emission stand ards for existing waste

- burning kilns that begin combusting a solid waste after June 4, 2010, or kilns that have combusted solid wastes prior to June 4, 2010 but stopped combusting prior to June 4, 2010 and have recommenced (or wish to) use of these materi als after that date. 76 Fed. Reg . 80459

- 60. The ambiguity originates from the failure by EPA to specify how compliance would apply during the period between June 4, 2010 and the first substantive compliance date (e.g., the effective date of the state program or 5 years after publication of the revised final rule). In the preamble, EPA
states:

“ Assuming new source applicability is not triggered, existing sources that change fuels or materials are considered existing sources and, as such, they must be in compliance on the date they begin c ombusting 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”

. 76 Fed. Reg . 80459

- 60.
This is not ambiguous if applied after the first substant ive compliance date (i.e., more than 5 years from now). However, if applied between June 4, 2010 and the first substantive compliance date, it could be misinterpreted to indicate that if an existing CISWI source makes a change in fuels or materials between June 4, 2010 and the first substantive compliance date, or if a source251

began combusting a new solid waste after June 4, 2010 and neither case triggered new source applicability, that the existing source CISWI limits become applicable on the date the fuel switch occurs, rather than the first substantive compliance date. For example, if an existing CISWI source made a change in fuel on March 1, 2011 and did not trigger new source applicability, it is Lafarge’s understanding that the initial compliance date f or this source would be the first substantive compliance date (the effective date of the applicable state program or 5 years after publication of the revised final rule), not March 1, 2011. However, the preamble language is far from clear on this point. La farge requests that EPA make changes to this language that ties the compliance date for any changes that do not trigger new source applicability to “ the date after the first substantive compliance date they begin combusting the new fuel or material .”
Respo nse: The preamble language at 76 FR 80459 as cited by the commenter is preceded by the following statement: “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 fo r 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.” Thus, the preamble language cited by the
commenter should be considered in the context of “after the first substantive compliance date.” Therefore, assuming new source applicability is not triggered, existing sources that begin combusting solid waste after the first substantive compliance date (or within 6 months of the first subst antive compliance date consistent with the definition of solid waste incineration unit) are considered existing sources and, as such, they must be in compliance on the date they begin combusting the new fuel or material (or on the first substantive complia nce date if the unit begins combusting solid waste within 6 months of the first substantive compliance date). If such a source combusting solid waste before the first substantive compliance date, and continues combusting solid waste, and new source applica bility is not triggered, the CISWI requirements become applicable and the unit must begin complying with the CISWI requirements upon the first substantive compliance date once it occurs.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2265

– The term “process change” includes the provision that a “significant permit revision” must be involved. It is difficult to understand why a permit revision has anything to do with a process change. Furthermore, one example provided is a “change in the sorbent used for activated carbon injection.” This example is too vague.
Response: EPA agrees with the commenter that the proposed definiti on of "process change" was unclear and therefore has clarified it to mean certain physical or operational changes as written in 60.2265. Additionally, the definition provides more specific examples of physical and operational changes that would warrant re

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

Commenter Name: Jim Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA

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Comment: EPA S hould Codify and Clarify the Memorandum on the Combustion of Solid Waste for Purposes of Triggering CISWI Regulation
Shortly after the publication of the final CISWI and NHSM rules last spring, EPA issued a response to a petition to reconsider the NESHAP s tandards for the Portland cement industry (76 Fed. Reg . 28318 (May 17, 2011)) which had substantial direct implications for the NHSM and CISWI rules that had just been finalized. This notice and an interpretive memorandum on which it was based provided nec essary guidance on the application of both the CISWI and NHSM rules and greatly clarified the framework established by the NHSM rule. Under the statutory framework, CISWI units are only those units that “combust[] any solid waste material.” Clean Air Act § 129 (g)(1). Under the statute and consistent with EPA’s framework, combustion units are regulated as CISWI units subject to the CISWI rule, if they both (i) have an inpu t material that is identified as a solid waste pursuant to the NHSM rule, and (ii) are actually combusting that material. Even though the NHSM rule established which materials are solid waste for purposes of this subsection and the CISWI rule established t he applicable CISWI requirements, nowhere in either rule did EPA ever define or address the operative meaning of the term “combust”

— thus leaving one of the two key elements defining a § 129(g)(1) CISWI unit. The response to the petition and interpretive me morandum jointly addressed this key and undefined component of the statutory mandate, namely what type of activities constitutes the “combustion” of solid waste for purposes of this statutory provision. Although industry representatives have requested guid ance on the meaning of combustion, the Agency has addressed this critical component of the statutory scheme only in guidance issued to the Portland cement industry. The implications of this guidance, however, are by no means limited to the Portland cement industry ; EPA’s interpretation of the meaning of the term “combustion” has wide

- ranging practical impacts on the operations of other industries and therefore warrants more formal documentation than a response to a petition issued to one industrial sector a nd a related EPA internal memorandum directed to that sector. EPA’s response to the cement industry’s request for reconsideration addressed the petitioners’ claim that some cement kilns would be covered by the CISWI standards. The Agency responded to this claim by performing an assessment of whether particular cement kilns would be subject to CISWI regulation. In the Federal Register notice, EPA explained that “none of [the] cement kilns would have been potentially CISWI [units] due to the use of secondary material ingredients (though some kilns would potentially have been CISWI [units] due to secondary fuels burned). 76 Fed. Reg . at 28322. The Agency reasoned that “none of [the] secondary ingredient materials identified by [petitioners] as being used in cem ent kilns is considered to be combusted.” Id. EPA defined the term “combustion” as “an act or instance of burning” or “a chemical process (as an oxidation) accompanied by the evolution of light and heat.” Id. Because the Clean Air Act statute limits the ap plicability of CISWI standards to those units that “combust any solid waste material,” secondary material ingredients must be burned or oxidized in a way that yields light and heat to be classified as a CISWI unit. In253

applying the definition of “combustion ” to the operations of cement kilns, the Agency found that the processing of secondary materials in the cold end of the kilns involved “cooking as opposed to burning,” notwithstanding the fact that the materials placed in the “cold end” include low
concent rations of organic content that undergo oxidation and are heated to above 2500 °F as they proceed through the kiln. EPA also determined that cement kiln dust introduced in the hot end of the cement kiln is “inorganic” with an “essentially inert composition ” so that it too was not being combusted in the kiln. Id. Based on this application of the definition of “combustion,” EPA found that these typical practices of using secondary materials in cement kilns did not constitute “combustion” and would not trigger application of CISWI standards under the statutory scheme. Critical for this analysis is that this interpretation applies regardless of whether the secondary materials are identified as solid waste. The interpretive scheme directly follows from the statut e and appeared to be missing from the Agency’s rulemakings prior to its development for the cement kiln industry. EPA provided a more detailed clarification of what constitutes “combustion” for purposes of the statutory underpinnings of the CISWI standards in an interpretive memorandum on which the analysis in the response to the Portland cement industry’s petition was based. Memorandum to the Rulemaking Docket from Keith Barnett, US EPA, Environmental Engineer entitled “Combustion in a Cement Kiln and Ceme nt Kilns’ Use of Tires as Fuel” dated April 25, 2011. In the memorandum, the Agency addresses the two basic types of inputs, fuels and ingredients, which are introduced into cement kilns. EPA describes the covered ingredients as kiln feed or raw meal which are introduced in the cold end of the kiln (at around 300 to 500 °F) and move down the kiln for 60

- 90 minutes and increase in temperature to around 2600 to 2700 °F. The Agency notes that because the chemical reactions that occur are endothermic energy

- abs orbing reactions the mix of ingredient inputs is difficult to heat to a higher temperature until the reactions are complete. EPA finds that this process (as well as similar ingredient processes also covered) is not combustion because it is “not a chemical process marked by the evolution of light and heat.” Id. at 3 of 12. In the interpretive memorandum, EPA distinguishes the “cooking” of ingredients in lower temperature areas of kilns from the input of fuels (particularly tire

- derived fuels) into hotter tem perature areas which does generate light and heat from the materials’ combustion. Even though the ingredient materials contain low concentrations of carbon which is oxidized, the key issue for EPA is that light and heat is not generated from the introducti on of these materials in the cold end of the kiln. We note that EPA distinguishes these two scenarios primarily from the lack of light and heat generated from the secondary materials as well the endothermic nature of the reactions that the ingredient secon dary materials undergo rather than the temperature to which the materials are exposed or the oxidation of the minimal carbon content of the secondary materials present in kiln feedstock. Of course, carbon content and temperatures can be determinative in wh ether a particular material can yield light and heat, but what it critical is that the ingredient materials did not yield light and heat in this scenario. This point is best elucidated in the next section of the memorandum where EPA addresses the introduct ion of ingredient secondary materials in the hot end of the kilns. Here too, the Agency finds that combustion is not occurring. These heterogeneous materials identified broadly as cement kiln dust are removed from kiln exhaust gases and are comprised of in completely calcined material or fine

- grained, solids used to meet quality standards. Based on industry data, this material has previously been heated or partially calcined. As a result, EPA views this material as “expected to be inert from the standpoint o f combustion, i.e., it would not oxidize producing heat and light. In fact, cement kiln dust injected in [the] hot end of the kiln within or in close proximity to the flame has the effect of cooling the254

flame. This demonstrates the fact that these material s do not create heat and thus do not combust.” Id. at 4

- 5 of 12. USWAG notes although cement kiln dust cannot be combusted to yield light and heat (depending on the emission control equipment used, and the composition of the feedstocks of the kiln), it can contain limited amounts of carbon content as well as other organic compounds which presumably would be oxidized at the ambient temperatures in the hot end of the kiln. See, e.g. , EPA’s Summary of Environmental and Cost Impacts for Final Portland Cement NE SHAP and NSPS dated August 6, 2010 at 3 and Report to Congress on Cement Kiln Dust Waste , Chapter 3, CKD Generation and Characteristics at 3

- 30. Even though this cement kiln dust has organic content and would be oxidized, EPA still labels this material as “essentially inert” because it would not yield light and heat and accordingly would not trigger CISWI standards. 76 Fed Reg. at 28322. Besides noting that the combustion of tires as fuel (a reaction that will yield heat and light in cement kilns) is combus tion and could potentially trigger CISWI standards, the remainder to the interpretive memorandum is not applicable to addressing whether materials are combusted. Two important and broadly applicable conclusions necessarily follow from the analysis of combu stion in EPA’s response to the Portland cement industry’s petition for reconsideration and the related interpretive memorandum: (i) “combustion” (as used in § 129(g)(1)) is construed as an exothermic reaction that produces light and heat, and (ii) EPA will assess the combustibility of a specific material based on the materials as a whole (as opposed to an assessment of each of its separate constituents). These conclusions have important consequences for other industries that introduce secondary materials in to their combustion units for various purposes. These interpretations critically identify the principle that secondary materials are only “combusted” for purposes of triggering CISWI standards when they are burned or oxidized and yield heat and light. What appears to be the key issue under this framework is whether the material viewed as a whole when introduced in the combustion unit actually yields heat and light or whether it has the opposite effect of absorbing heat and causing the cooling of the flame. The temperature of the unit and the presence of organic and/or carbon containing materials appear to be relevant only if they are present in sufficient concentrations so that the entire mixture or solution, viewed as a whole, yields heat and light when pla ced in a combustion unit.
The scope of the types of activities that constitute “combustion” is a necessary component of the CISWI rules which is unclear from the text of the CISWI regulations. This step in determining the CISWI rule’s applicability is perh aps most important for those secondary materials that are not obviously fuels or ingredients when introduced in the combustion unit. The NHSM rule framework only identifies those secondary materials that are legitimate fuels or ingredients, while ignoring important materials that are introduced into combustion units for various other
purposes, e.g ., emission control, fuel conditioning, etc. This framework also does not take into consideration various industrial processing where materials are managed in boil ers without being combusted. As it is currently drafted, EPA’s response to the Portland cement industry petition and the related guidance document ostensibly apply only to this one specific industrial sector. EPA’s framework, however, is critical for the e ntire potentially regulated community, including the utility sector. USWAG strongly supports EPA’s development of this critical framework which is necessary for determining the applicability of the CISWI final rule and believes that EPA should codify this framework in the CISWI rule and provide guidance to other industries that do not combust secondary materials in their combustion units.2

[Footnotes]255

(2) EPA proposed to partially codify this framework in the definition of “Waste

- burning kiln” which EPA def

ined as “a kiln that is heated, in whole or in part, by combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241). A waste

- burning kiln does not include a kiln that is feeding non

- hazardous secondary ingredients exclusively i nto the cold end of the kiln.” 76 Fed. Reg. at 80503 (proposed to be codified at 40 C.F.R. § 60.2265). This appears to exclude all those materials that do not actually provide heat, but does not impact the applicability of other combustion units that are n ot kilns and that may similarly be introducing materials that do not provide heat.
Response: In section II.B. of the preamble to the final rule, we discuss revisions to the definition of waste

- burning kiln. In the preamble discussion, we note that EPA in tended to codify principles set out in a previous action granting and denying reconsideration of the NESHAP for Portland cement kilns. The preamble also discusses how, in essence, combustion does not occur in any region of a cement kiln except the hot end, or in the combustion zone of a precalciner or riser duct burner. Furthermore, cement kiln dust added to the hot end of a cement kiln also is not combusted since it is inorganic and inert. We have revised the definition of “waste

- burning kiln” in the fin al rule to address the commenter’s concerns.
To the extent the commenter asks about secondary materials used in combustion units other than cement kilns, we do not believe a categorical definition of combustion is appropriate, in part, because the commente r appears to confuse what the Agency determined as it relates to cement kiln dust. The determination in that case was that the dust does not contain combustable material, not that the material had to have meaningful heat value in order to be combusted. T here are many solid wastes that do not have meaningful heat value that operators may choose to combust to destroy the material, which is the express purpose of incinerators and small remote incinerators. If the commenter believes material combusted in a p articular unit is unable to be combusted because it is inert (e.g. sand or dust), we advise the commenter to consult with EPA on the specific nature of the material to determine whether introduction of the material into the unit constitutes combustion of s olid waste. If a source believes that it is not combusting the solid waste used in its process, the source should seek an applicability determination from the Agency.

Commenter Name: Erika H. Frank Commenter Affiliation: Calgon Carbon Corporation Docu ment Control Number: EPA

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Comment: The CISWI Rule applies to any commercial and industrial operating unit which "combusts, or has combusted in the preceding 6 months," any solid waste as defined by the N HSM Rule. Likewise, the NHSM Rule provides that "non

- hazardous secondary materials that are combusted are solid wastes." This regulatory language creates an important threshold issue relating to combustion, in that CISWI only applies when the operating uni t combusts the material in question. However, where commenters have raised this concern in the past, EPA has declined to address it. Additionally, neither the March 2011 final CISWI and NHSM Rules, nor the December 2011 proposed revisions define "combusts" or "combusted." As a result, it remains unclear whether an operating unit can be subject to the CISWI Rule merely because it applies heat to ingredients.256

EPA recently acknowledged the significance of the meaning of combustion for CISWI applicability in th e context of the Portland cement air regulations. The final Portland cement rules were published in the Federal Register on September 9, 2010. More recently on April 25, 2011, EPA issued a memorandum through Mr. Keith Barnett, EPA Environmental Engineer, d iscussing whether certain secondary materials used in the Portland cement production process are combusted in the cement kiln (Document No. EPA

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- 3582). After acknowledging that combustion is not defined in the Clean Air Act, EPA relied on a common dictionary definition of combust as an act or instance of burning" or "a chemical process (as an oxidation) accompanied by the evolution of light and heat." EPA recognized a distinction between ingredients, which are introduced into the cold end of the kiln, and fuels, which are introduced into the hot sections of the cement kiln. According to EPA, secondary materials that are placed into the cold end of the kiln as ingredients and heated gradually through a controlled process analogous to cooking ( as opposed to burning) are not combusted. EPA also explained that inert secondary materials introduced into the hot areas of the kiln as ingredients are not combusted, apparently because they do not create heat. Ultimately, EPA concluded that a cement kiln cannot be subject to the CISWI Rule based on its use of secondary materials as ingredients, as these ingredients are not combusted.
We request that EPA incorporate the principles of this memorandum into the CISWI and NHSM Rules by adding a definition of " combust" to both rules. This is important to Calgon Carbon because regardless of whether our carbon process material is a "solid waste" under the NHSM Rule, we must first resolve the antecedent question of whether it is combusted.

Response : We believe the commenter has misinterpreted the Portland cement memo. See the response to EPA

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Commenter Name: Erika H. Frank Commenter Affiliation: Calgon Carbon Corporation Document Control Number: EPA

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Comment: The CISWI Rule applies to any commercial and industrial operating unit which "combusts, or has combusted in the preceding 6 months, " any solid waste as defined by the NHSM Rule

. Likewise, the NHSM Rule provides that "non

- hazardous secondary materials that are combusted are solid wastes ." This regulatory language creates an important threshold issue relating to combustion, in that CISWI only applies when the operating unit combusts the material in question. However, where commenters have raised this concern in the past, EPA has declined to address it. Additionally

, neither the March 2011 final CISWI and NHSM Rules

, nor the December 2011 proposed revisions define "combusts" or" combu sted." As a result

, it remains unclear whether an operating unit can be subject to the CISWI Rule merely because it applies heat to ingredients.
EPA recently acknowledged the significance of the meaning of combustion for CISWI applicability in the context of the Portland cement air regulations. The final Portland cement rules were published in the Federal Register on September 9, 2010. More recently on April 25,257

2011, EPA issued a memorandum through Mr. Keith Barnett, EPA Environmental Engineer, discussing whether certain secondary materials used in the Portland cement production process are combusted in the cement kiln (Document No. EPA

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- 3582). After acknowledging that combustion is not defined in the Clean Air Act, EPA relied on a common di ctionary definition of combust as an act or instance of burning" or "a chemical process (as an oxidation) accompanied by the evolution of light and heat." EPA recognized a distinction between ingredients, which are introduced into the cold end of the kiln, and fuels, which are introduced into the hot sections of the cement kiln. According to EPA, secondary materials that are placed into the cold end of the kiln as ingredients and heated gradually through a controlled process analogous to cooking (as opposed to burning) are not combusted

. EPA also explained that inert secondary materials introduced into the hot areas of the kiln as ingredients are not combusted, apparently because they do not create heat. Ultimately, EPA concluded that a cement kiln cannot be subject to the CISWI Rule based on its use of secondary materials as ingredients, as these ingredients are not combusted.
We request that EPA incorporate the principles of this memorandum into the CISWI and NHSM Rules by adding a definition of "combust" t o both rules. This is important to Calgon Carbon because regardless of whether our carbon process material is a "solid waste" under the NHSM Rule, we must first resolve the antecedent question of whether it is combusted.
Response: See the response to EPA

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Commenter Name: Erika H. Frank Commenter Affiliation: Calgon Carbon Corporation Document Control Number: EPA

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Comment: Additionally, we request that the definition of "combust" accommodate the burning of contaminants in industrial thermal treatment processes that are not intended to dispose of or discard the raw material or ingredient. Calgon Carbon manufactures activated carbon which is used by its customers in applications such as drinking water purification, and then receives the spent carbon back for regeneration

. During carbon regeneration

, the spent carbon feed material is gradually heated in a controlled process (sim ilar to how a cement kiln operates)

, in order to drive off the contaminants that became adsorbed to the carbon during the customer ' s application. As contaminants are desorbed from the carbon, some of the contaminants are oxidized in the reactivation furnac e or thereafter in afterburners. The primary purpose of the regeneration process is to produce a valuable product in the form of reactivated carbon, which is then sold anew. The burning of contaminants is a necessary step of the thermal treatment process t o create reactivated carbon product.
Calgon Carbon should not be subject to the CISWI Rule based on this thermal treatment process. Calgon Carbon is requesting that EPA clarify in the final rulemaking that

, for purposes of the CISWI and NHSM Rules, combust ion does not include oxidation or burning of contaminants in an industrial thermal treatment process. For the reasons set forth above, we request that EPA add the following definition of "combust" to both the CISWI Rule and the NHSM Rule:258

Combust means a c hemical process (as an oxidation) accompanied by the evolution of light and heat. For purposes of this rule, oxidation or burning of contaminants in an industrial thermal treatment process that is not intended to dispose of or discard the raw material or i ngredient is excluded from this definition.
Response: As stated above, EPA is not adding the definition of combustion that the commenter suggests. Pursuant to section 129(g)(1), any unit burning any solid waste is a solid waste incineration subject to st andards under section 129, but the definition suggested by the commenter on its face includes the burning of material that may be solid waste. Thus, the suggested definition is not consistent with the statute. To the extent the commenter is unsure about applicability of the final CISWI rule to its units, it should consult EPA or the state enforcement authority. See the response to EPA

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Commenter Name: Jim Roewer Commenter Affiliation: Utility Solid Waste Activiti es Group (USWAG) Document Control Number: EPA

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Comment: EPA Should Clarify that the Use of Cement Kiln Dust in Utility Operations Does Not Constitute Combustion

Electric utilities also introduce other t ypes of secondary materials into their boilers which are similarly not combusted pursuant to EPA’s framework and should not trigger regulation of these boilers as CISWI units pursuant to Clean Air Act § 129(g)(1). One secondary material that is critical fo r current and emerging utility operations is cement kiln dust that is used to reduce air emissions from boilers. This material directly corresponds to what we understand is the identical material introduced in the hot end of cement kilns which was identifi ed (but not fully described) in the memorandum and petition response EPA issued for the Portland cement kiln industry. We assume that under EPA’s framework for determining what constitutes combustion for purposes of triggering Clean Air Act § 129(g)(1), th e introduction of an identical material, which was considered “essentially inert” would have the same regulatory consequence ( i.e., not trigger CISWI regulation) regardless of the type of combustion unit (kiln or boiler) or the purpose (inclusion into Port land cement or reduced air emissions) for which the cement kiln dust was being introduced into the combustion unit. As EPA is well aware, companies have developed processes whereby coal can be refined using one or more added materials so that the air emiss ions that result from combusting the coal contain significantly lower levels of certain pollutants than the air emissions that would otherwise result without the addition of the these ingredients. While many of these added materials are not secondary mater ials, significant amounts of cement kiln dust are added in the process of refining the coal. Among other things, the cement kiln dust provides aluminosilicates that help to retain oxidized mercury in a ceramic matrix so that it (and other metals) are not e mitted as air pollutants. Many USWAG member facilities are using or plan to use refined coal

- containing cement kiln dust. There are significant environmental and financial benefits to using refined coal in place of traditional coal inputs. Due to the benef

its of such materials, Congress has provided a significant incentive for utilities to replace traditional coal with refined coal. In particular, Congress authorized and extended a tax credit for those utilities that use refined coal and can certify that a reduction of at least 20 percent259

of the emissions of nitrogen oxide and at least 40 percent of the emissions of either sulfur dioxide or mercury released as compared with feedstock coal. 26 U.S.C. §§ 45(c)(7) & (e)(8). Utilities meet these emission reducti on targets through the use of refined coal which includes the secondary material cement kiln dust. Just like the cement kiln dust included in EPA’s analysis for the cement kiln industry, when introduced into utility boilers this material is essentially ine rt, will not generate light or heat, and will cool the boiler flame. For the purposes of determining whether combustion occurs, the only real difference between introducing the exact same material in a cement kiln and a utility boiler might be the operatio nal temperature of the combustion unit. However, given that both types of combustion units would be hot enough to cause the combustion of materials to generate light and heat (which cannot occur for cement kiln dust) this factor appears irrelevant for dete rmining whether combustion occurs. Consistent with the Agency’s analysis of cement kiln dust used by the cement kiln industry, USWAG is requesting that EPA issue an interpretation or codify in the CISWI regulations that the introduction of cement kiln dus t into a combustion unit (of any type) does not trigger CISWI standards.
Response: See the response to EPA

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- A1 excerpt 1 above. If the commenter is correct that the cement kiln dust used in its processes is the same as the cement kiln dust discussed in the context of Portland cement facilities, we agree that the material is inert and it is not combusted for that reason. However, if the cement kiln dust introduced into the boiler units contains organic or other contaminants that are co mbustable, the facility operator should seek an applicability determination from the Agency concerning the ability of the unit to use the material without triggering CISWI applicability.

Commenter Name: Fadi K. Mourad, P.E. Commenter Affiliation: DTE E nergy Services, Inc. Document Control Number: EPA

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Comment: Addition of Definition of "Combustion" to CISWI Rule Indicating that CKD is Inert and does not Combust (Docket 10 No. EPA

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DTEES requests that EPA clarify and codify that the scope of the CISWI rule is limited to combustion units that (1) have an input material that is a solid waste and (2) actually combust that material.
In the response to the petition to reconsider portions of the Portland Cement NESHAP , EPA states that the typical dictionary definition of "combustion" can be used to understand whether a secondary material was being combusted in a cement kiln. 1 EPA should apply that same definition of combustion to the CISWI rule so that it is clear that only "chemical process[ es ] marked by the evolution of heat and light" are included in the scope of the CISWI rule. 2 In that reconsideration response, EPA states : Cement kiln dust is also used as an ingredient and is sometime s processed in the hot end of the cement kiln. Due to its inorganic, essentially inert composition, this material is not combusted. 3

Furthermore, EPA's interpretive Memorandum entitled "Combustion in a Cement Kiln and Cement Kilns' Use of Tires as Fuel," d ated April 25, 2011, states:260

Cement kiln dust may be added to higher temperature zone regions (mid

- kiln and the hot end). Cement kiln dust in this case mainly consists of a material that has previously been heated and even partially calcined . Therefore, th is material would be expected to be inert from the standpoint of combustion, i.e. it would not oxidize producing heat and light. In fact, cement kiln dust injected in hot end of the kiln within or in close proximity to the flame has the effect of cooling t he flame. This demonstrates the fact that these materials do not create heat and thus do not combust.
Based on the definition of combustion and EPA's previous determination about the inert nature of CKD, even when introduced in the hot end of a kiln, DTEES requests that EPA clarify that inert materials such as CKD that are introduced into utility boilers do not combust and in turn do not cause the combustion unit to become subject to the CISWI standard under§ 129 (g)(1) of the Clean Air Act.

1 76 Fed. Reg a

t 28322, Denial in part and grant in part of petitions to reconsider: National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants

2 76 Fed

. Reg at 28322

3 76 Fed

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Response: See the response to EPA

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Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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- A1 Comment Excerpt Number: 29

Comment: The "ingredients" issue is still unresolved and needs to be clarified once and for all: In a May 17, 2011 decision responding to PCA's petition for reconsideration of the NESHAP Portland cement final rule, 76 Fed. Reg. 28318, Administrator Jackson agre ed with PCA's position that cement kilns utilizing non hazardous secondary ingredient material are not potentially CISWI, because none of these secondary materials identified by PCA as being used in cement kilns is considered to be "combusted." Id . at 2832 2. 13 EPA supported this perspective by noting that materials which kilns use as ingredients are inorganic in nature and, therefore, not combustible. The Agency, consequently, excluded from the jurisdiction of CAA section 129 , all such materials.

However , the definition of"waste burning kiln" which EPA is now proposing, 76 Fed. Reg. at 80523, appears to take a step back and narrow the Administrator's May 17, 2011 decision, and does so without providing any explanation for doing so. PCA strongly believes that the policy EPA announced in its May 17 decision was appropriate and should be codified by EPA in its reconsideration of the NHSM final rule.

[Footnote]261

(13) A copy of the Administrator's May 17, 2011 final decision was previously submitted to EPA on M ay 20, 2011, as an accompaniment to PCA 's petition for reconsideration of the CISWI final rule. The petition for reconsideration,together with the copy of the Administrator's May 17, 2011 decision and several other related documents, were posted to the do cket on August 12, 2011 and assigned document identification number EPA

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- 2514. A copy of the Administrator's May 17, 2011 decision was also submitted to EPA as Attachment A to PCA 's petition for new rulemaking re the NHSM final rule. The l atter petition was submitted to EPA on June 16, 20 I I. EPA posted to new rulemaking petition, together with the copy of the Administrator's May 17, 2011 and other related documents to the docket on August 17, 2011 and assigned the combined documents docum ent identification number EPA

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- 1840. Also included as part of PCA 's transmittal of its petition for new NHSM rulemaking was a copy of PCA's petition for reconsideration of the CISWI rule (as Attachment B) and copy of PCA's August 3, 2010 , initial NHSM comments (as Attachment C).
Response: See the response to EPA

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Commenter Name: Fadi K. Mourad, P.E. Commenter Affiliation: DTE Energy Services, Inc. Document Control Number: EPA

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- A1 Comment Excerpt Number: 1

Comment: EPA's NHSM rule addresses the use of non

- hazardous secondary materials in two applications: (1) as a fuel, and (2) as an ingredient in combustion units. DTEES understands that CISWI units are any distinct operati ng unit of any commercial or industrial facility that combusts, or has combusted in the preceding 6 months, any solid waste as determined by the NHSM rule. DTEES believes that a non combustion manufacturing process that produces a refined fuel which involv es the mixing of inert non hazardous secondary materials and other additives with coal is outside the scope of the NHSM rule.
The specific process we are considering involves mixing CKD and a liquid additive with coal to produce a new fuel product ("Refin ed Coal"). This new product is then used by utility boilers to reduce emissions. The mixing process is a purely mechanical process that occurs without added heat or combustion in a pug mill or other mixer. The Refined Coal, once produced, is then burned in a utility boiler. The non

- hazardous secondary material (e.g. CKD) is an inert product with no BTU value and, therefore, is not a fuel itself and does not increase electricity production from the power plant. DTEES believes that the use of CKD as one of th ree material ingredients used to produce Refined Coal in a non combustion process is outside the scope of the NHSM rule, and therefore, does not require further applicability analysis as described in the rule (e.g. determination of whether the material has been discarded in the first instance, review of legitimacy criteria).
This conclusion is supported by EPA's NHSM applicability which relies heavily on legitimacy criteria to ensure that fuels/ingredients, that otherwise would be considered a solid waste, are not disposed of in the guise of recycling by destroying it in a combustion unit or incorporating it into a product through a process that utilizes combustion. In 76 FR 15540 (First Column), EPA's response on the "Application of Legitimacy Criteria" st ates:262

First, we would note that there are two questions that the Agency needs to answer: (1} Whether or not the nonhazardous secondary material is a fuel product or ingredient product, or whether the material has been discarded and is therefore a solid was te, which includes waste

- derived fuels or ingredients and (2} whether the non

- hazardous secondary material is being legitimately and beneficially used or recycled. With respect to the legitimacy question, EPA believes it important and crucial to develop a set of legitimacy criteria to make sure that the fuel product and ingredient product are being legitimately and beneficially used and not simply being discarded via sham recycling.
This is not the case with the use of CKD for the production of Refine Coal which in turn is burned in a utility boiler. The CKD is not being destroyed by the combustion process nor is being incorporated into a product/intermediate to avoid disposal. In fact, the CKD is purchased as a raw material for the production of Refined Co al and is a critical component of the Refined Coal to reduce emissions from utility boilers. The ultimate fate of CKD after it helps reduce emissions is in the bottom ash and fly ash which are either sold to cement manufacturer for their use as an ingredie nt in the clinker manufacturing process and/or sent to a landfill for disposal.
Response: For a combustion unit to be a CISWI unit, it must combust solid waste as that term is defined in the NHSM rule. The commenter in this case provides some information about the production of refined coal and indicates that its use should not constitute the combustion of solid waste. If commenter is correct that only inert secondary materials are used in the production of refined coal, then the source may not be combus ting solid waste and CISWI may not apply. EPA does not believe it is appropriate in the context of this rulemaking to provide a response to what is in essence is a request for an applicability determination without having a more detailed description of th e materials used in the development of the refined coal. The commenter should seek an applicability determination from the Agency if it believes it is not combusting solid waste and thus not subject to CISWI. See the response to EPA

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Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 18

Comment: 60.2265

– We support the changes made to the definition of “wast e

– burning kiln” to exclude alternative raw material ingredients introduced exclusively into the “cold end of the kiln.” We encourage EPA to consider further expanding the exclusion to include the introduction of any alternative raw material ingredient, r ecognizing that material recovery in kilns is no different than material recovery in primary or secondary smelters. It is unclear why EPA has determined that material recovery facilities (including primary and secondary smelters) are excluded from the term “solid waste incineration units” yet cement kilns were only provided a conditional exclusion for raw material alternatives fed at the cold end of the kiln. Providing blanket exclusion for raw material alternatives use anywhere in the process is both justi fied by the facts (they are not combusted) and appropriate and it encourages resource recovery and conservation, one of the primary objectives of RCRA . Excluding only certain materials feed263

locations unnecessarily narrows a kilns opportunity to utilize alt ernative raw materials both now and in the future.
Response: In section II.B. of the preamble to the final rule, we discuss revisions to the definition of waste

- burning kiln. In the preamble discussion, we note that EPA intended to codify principles set out in a previous action granting and denying reconsideration of the NESHAP for Portland cement kilns. The preamble also discusses how, in essence, combustion does not occur in any region of a cement kiln except the hot end, or in the combustion zone of a precalciner or riser duct burner. Furthermore, cement kiln dust added to the hot end of a cement kiln also is not combusted since it is inorganic and essentially inert.
In addition,with regard to primary and secondary smelters, CAA section 129(g)(1)(A) co ntains a statutory exemptions for materials recovery facilities that combust waste to recover metals and in a parenthetical the statute identifies primary and secondary smelters as examples of the types of units exempted under that provision.

Commenter Nam e: Rex Jameson Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc. Document Control Number: EPA

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Comment: 60.2265 exempts cement kilns that feed non

- hazardous secondary “ingredients

exc lusively into the cold end of the kiln.” In addition, EPA has sent a letter to the docket dated April 25, 2011 that further explains its understanding regarding the use these materials in both long kilns and preheater kiln systems. The letter and the langu age in the proposed regulation do not adequately clarify the exemption.
There are many factors that determine the appropriate place for introducing materials into the kiln system. This is especially true for those materials that have already been calcined

. These factors include particle size, emissions profile, calcination characteristics, required conveying equipment, impact on material flows, impact on gas flows, impact on temperature profile, etc. To optimize its operation and minimize emissions (especia lly CO 2 ), a facility may introduce a raw material ingredient at a variety of locations along the preheater / precalciner system or into the kiln itself.
In order to avoid confusion among the industry, permit writers, states and enforcement personnel, EPA s hould clearly state that kilns using non

- hazardous secondary materials in the process as ingredients are exempt, regardless of the feed location.
Response: We do not agree with the commenters proposed revisions because EPA may not exempt sources that combust solid waste, even if the waste is an ingredient; however, as explained above, we are revising the definition of waste

- burning kiln in the final rule. See the response to EPA

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Commenter Name: Max Lee Commenter Affiliation: Koogler & Associates, Inc.264

Document Control Number: EPA

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Comment: We note and support that EPAOAQPS has determined the materials introduced at the cold end of the kiln are not combusted. 6

[Footnotes]
(6) Memo dated April 25, 2011 from Keith Barnett with EPS

- OAQPS to the Portland Cement Project Team, entitled "Revised Floors without Kilns that Would have been CISWI Kilns Had the Solid Waste Definition Applied"
Response: EPA is finalizing the definition of waste

- burning kiln with some revisions that do not affect the issue raised by the commenter. See the response to EPA

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.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA

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- A2 Comment Excerpt Number: 2

Comment: CEMEX utilizes many non

- hazardous materials as alternative fuels, and also as ingredients in the P ortland cement manufacturing process. We do not agree that the use of these materials should result in cement kilns being regulated as waste incinerators and ask that EPA reconsider their inclusion under the CISWI regulations and/or by additionally clarify ing the NHSM rule. We think it is important that EPA understand that our programs include the ability to, and reliance on, acceptance of a large number of different materials from different generators. Over time, we feel confident that non

- hazardous mater ial collections systems will be further developed for these types of beneficial use programs; however, at this time our ability to beneficially use materials as fuel is dependent on the ability to have flexibility for a number of different types of materia ls.

Response: See the response to EPA

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### 7R. Waste coal, legacy coal combustion units and associated recordkeeping for units that burn materials with non

- waste determinations (categorical or non)

Commenter Name: Kerry Ke lly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA

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Comment: EPA Should Add Clean C&D Wood to the List of Non

‐ Waste Fuels Under §241.4(a)265

EPA has recognized in the initial NH SM Rule and in the NHSM Rule Amendment that scrap tires are not wastes and are not discarded when managed in tire collection programs. The Agency has also recognized that contractual arrangements can ensure that scrap tires are not discarded and are handle d as valuable commodities through arrival at the combustion facility. So too should clean construction and demolition (C&D) wood qualify and be listed as a non ‐ waste fuel under §241.4(a). Many local governments as part of their recycling and landfill diver sion initiatives operate programs or otherwise encourage collection and recycling of clean C&D wood. One such use is conversion to fuel. Purchasers of the clean wood fuel provide fuel specifications as part of their contracts with C&D recycling facilities. WM recommends that EPA list as non

‐ waste fuel, clean C&D wood that has been processed to remove treated and painted wood and processed to meet contractual fuel specifications. EPA has received and evaluated considerable information describing the processi ng and typical fuel specifications required by wood combustors as evidenced by its extensive preamble description and its Materials Characterization Paper In Support of the Proposed Rulemaking

– Identification of Nonhazardous Secondary Materials That Are S olid Waste: Construction and Demolition Materials

– Building

- Related C&D Materials contained in the rulemaking docket. EPA has also evaluated analytical data on the comparable contaminant levels found in clean C& D wood versus the solid fossil fuels that it would replace. EPA’s preamble to the proposed NHSM Rule Amendments described the typical clean C&D wood processing operations and the likelihood that the fuel product meets the rule requirements to be deemed a n on ‐ waste fuel. (at 76 Fed. Reg

. 80470) Additionally, construction and demolition wood that has been processed (e.g., sorted) to remove contaminants (such as leadpainted wood, treated wood containing contaminants such as arsenic and chromium, metals and othe r nonwoodmaterials), and is sizereduced prior to burning likely meets the processing and legitimacy criterion for contaminants, and thus can be combusted as a nonwaste fuel.[emphasis added] We believe that EPA has demonstrated in its rulemaking record that the Agency has sufficient information to determine the legitimacy of clean C&D wood as a non ‐ waste fuel. We respectfully urge the Agency to list clean C&D wood

as a non ‐ waste fuel under §241.4(a) when it finalizes its NHSM Rule Amendments. The CISWI Rec onsideration Rule recordkeeping and CISWI unit definition create considerable compliance risks for combustion sources burning non ‐ hazardous secondary materials as fuels without sufficient comfort that EPA considers the materials to be legitimate fuel. The definition of CISWI unit (76 Fed. Reg . 80501) under §60.2265 states that “if the unit burns materials other than traditional fuels as defined in §241.2 that have been discarded, and you do not keep and produce records as required by §60.2175(v), the materi al is a solid waste and the operating unit a CISWI unit.” The record keeping requirements require records of how the secondary material meets each of the legitimacy criteria, how the operations that produced the fuel satisfy the definition of processing, a nd if the fuel received a non ‐ waste determination, how the fuel met the requirements of the petition process. Under these provisions as written, a source could lose its
status as a fuel

‐ fired boiler, if it fails to maintain adequate records. WM believes th at this recordkeeping requirement is therefore unduly burdensome, and is inconsistent with EPA’s enforcement authority and practices established under the CAA . As an initial matter, a combustion unit that does not burn solid waste cannot be categorized as a CISWI unit and should not be subject to its provisions, recordkeeping or otherwise. Further these provisions would create a presumption of CISWI applicability as an automatic result of a recordkeeping violation. Such a result is inconsistent with EPA’s e stablished enforcement response policies that would266

otherwise provide a framework for addressing such recordkeeping violations. Automatic CISWI applicability is not an appropriate result for such a violation.
Response: The commenter primarily discussed is sues relating to Identification of Non

Hazardous Secondary Materials That Are Solid Waste rulemaking ( NHSM ) aspects (Docket ID: EPA

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- 0329). To the extent that the commenter has provided these comments to today’s Identification of Non

- Hazardous Secondary Materials That Are Solid Waste portion of the rulemaking, they may be addressed there or were addressed in the rulemaking record for the March 21, 2011, NHSM Final Rule. As stated in the preamble 76 FR 80470

- 80474, the Agency did not reopen the e ntire NHSM rule for reconsideration and will not respond to comments directed toward rule provisions that were not specifically identified in the December 23, 2011, proposal. For more information regarding the intent of the December 23, 2011 proposed rule, see 76 FR 80469.
In regards to the definition for CISWI unit, the definition has been revised so that failure to maintain a record does not, by itself, make a material a solid waste. We further note that the similar recordkeeping requirement is included in the boiler rule for units that are combusting a material that received a non

- waste determination. This record assists implementing agencies in clarifying applicability for the unit. The same types of records may be used to fulfill both the CISWI and bo iler recordkeeping requirement, so we disagree that this is an undue burden.

Commenter Name: Jeff A. McNelly Commenter Affiliation: ARIPPA Document Control Number: EPA

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Comment: EPA should revise the Proposed CISWI Reconsideration to clarify that the recordkeeping requirements for CISWI units do not apply to any non - hazardous secondary materials that are expressly identified as nonwaste fuels, pursuant to 40 C.F.R. § 241.4(a).

Pur suant to Section 60.2175(v)3 of the Proposed CISWI Reconsideration, owners and operators of combustion units that burn certain types of materials would be required to maintain specified records for a period of at least five years. Specifically, “[f]or oper ating units that combust non

hazardous secondary materials that have been determined not to be solid waste pursuant to § 241.3(b)(1) of this chapter, you must keep a record which documents how the secondary material meets each of the legitimacy criteria. I f 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.” 76 Fed. R eg. 80,499. This regulatory provision would appear to require source owners and operators to keep records when several specific types of non

- hazardous secondary materials are combusted, notwithstanding that the units burning such materials may not actually be classified as CISWI units. This regulatory language corresponds to and cross references certain provisions of the NHSM Rule, which separately identifies procedures pursuant to which certain non

- hazardous secondary materials267

may be determined not to con stitute solid wastes at the point of combustion. The objective of relating the recordkeeping provisions of the CISWI standards to corresponding material classification provisions of the NHSM Rule is clearly appropriate. However, likely due to the continuin g evolution of the specific language of the NHSM Rule, the Proposed CISWI Reconsideration does not currently address all such relevant provisions from the NHSM Rule. Notably, the Proposed NHSM Reconsideration would include a specific section, Section 241.4 (a), to expressly designate within the NHSM Regulation classes of nonhazardous secondary materials that do not constitute solid waste at the point of combustion. Currently, Section 60.2175(v) of the Proposed CISWI Reconsideration includes no reference to n on

- hazardous secondary materials that would be expressly identified as non

- waste fuels under Section 241.4(a) of the Proposed NHSM Reconsideration. The omission from the Proposed CISWI Reconsideration of any recordkeeping related reference to Section 241.4 (a) of the Proposed NHSM Reconsideration may be intentional; EPA should impose no recordkeeping requirements through the CISWI regulation on owners and operators of combustion units that burn only non

hazardous secondary materials that are identified as no n

- waste fuels in Section 241.4(a) of the Proposed NHSM Reconsideration. In short, if the source combusts material identified by regulation as non

- waste fuel, then no CISWI

- based requirements (including relative to recordkeeping) would attach. However, othe r regulatory provisions of the Proposed CISWI Reconsideration create ambiguity with respect to the scope of any recordkeeping requirements under CISWI for units combusting material designated as non

- waste fuels under Section 241.4(a) of the NHSM regulation . A principle source of the uncertainty regarding the applicability of the recordkeeping provisions in Section 60.2175(v) is the definition of term “CISWI unit” under the Proposed CISWI Reconsideration. Specifically, the definition of “CISWI unit” in the F inal CISWI Rule (and the Proposed CISWI Reconsideration) provides, in relevant part, that “[i]f the operating unit burns materials other than traditional fuels as defined in § 241.2 that have been discarded, and you do not keep and produce records as requi red by § 60.2175(v), the material is a solid waste and the operating unit is a CISWI unit.” 76 Fed. Reg. 80,501. According to this definition, if an operating unit burns any materials other than “traditional fuels”, and the unit’s owner or operator does no t keep and produce records as required by Section 60.2175(v), then the material burned would be considered a solid waste subject to regulation under the Final CISWI Rule, irrespective of whether the material has been identified and/or qualifies as a non

- wa ste fuel (under Section 241.4(a) or otherwise) pursuant to the NHSM Rule. At a minimum, the current reference within the definition of CISWI Unit to an obligation to retain records in order to avoid classification as a CISWI unit arguably implies that the recordkeeping provisions under Section 60.2175(v) of CISWI extend to the combustion of all materials that do not qualify as a traditional fuel, if the source operator wishes to preserve its position that such material is not a solid waste. As stated above, EPA’s changes in the recordkeeping provisions through the Proposed CISWI Reconsideration do not expressly address any recordkeeping requirements for materials determined by EPA as a matter of regulation to be non

- waste fuels under Section 241.4(a). Theref ore, these recordkeeping and definitional provisions of the Proposed CISWI Reconsideration appear to be ambiguous, and may in fact be intentionally inconsistent.

[Footnotes]
(3) EPA’s Final CISWI Rule includes (1) performance standards that apply directly to new CISWI units (codified at 40 C.F.R. pt. 60, Subpart CCCC), and (2) emission guidelines that apply to the states for establishing standards for existing CISWI units through the states’268

implementation plans (codified at 40 C.F.R. pt. 60, Subpart DDDD). In an effort to present these comments to EPA in the most concise manner possible, ARIPPA is citing only to the regulatory provisions in Subpart CCCC. However, ARIPPA’s comments apply equally to the corresponding provisions of the Emission Guidelines in S ubpart DDDD, and, therefore, any changes made to Subpart CCCC in response to these comments should likewise be made to Subpart DDDD

. Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, th e CISWI unit definition has been revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA

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Commenter Name: Jeff A. McNelly Com menter Affiliation: ARIPPA Document Control Number: EPA

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Comment: EPA should revise the definition of “CISWI unit” to ensure that the regulatory language is consistent with the recordkeeping requirement s in Section 60.2175(v) of the Proposed CISWI Reconsideration.

In the Final CISWI Rule, the recordkeeping provisions in Section 60.2175(v) and the definition of the term “CISWI unit” in Section 60.2265 both incorporate the same regulatory terms relating
to the obligation imposed on unit owners and operators to maintain records. Specifically, Section 60.2175(v) of the Final CISWI Rule provides, in relevant part, that “[f]or operating units that burn materials other than traditional fuels in § 241.2, a descri ption of each material burned, and a record which documents how each material that is not a traditional fuel meets each of the legitimacy criteria in §241.3(d)” must be maintained. 76 Fed. Reg. 15,760. Similarly, the definition of CISWI unit in Section 60. 2265 of the Final CISWI Rule requires, in relevant part, that “[i]f the operating unit burns materials other than traditional fuels as defined in § 241.2 that have been discarded, and you do not keep and produce records as required by § 60.2175(v), the
mat erial is a solid waste and the operating unit is a CISWI unit . . . .” 76 Fed. Reg. 15,762. By contrast, in the Proposed CISWI Reconsideration, EPA has apparently proposed to narrow the scope of the recordkeeping requirements in Section 60.2175(v) by elimi nating the reference to traditional fuels. As proposed, the applicability of the recordkeeping requirements in Section 60.2175(v) is limited to three specific categories of materials: (1) non

- hazardous secondary materials that have been determined not to b e solid waste pursuant to § 241.3(b)(1); (2) fuels that have been processed from discarded non

- hazardous secondary materials pursuant to § 241.3(b)(4); and (3) fuels that received a non

- waste determination pursuant to the petition process under § 241.3(c). In effect, these recordkeeping requirements would not apply generally to any materials that have not been identified as traditional fuels under Section 241.2, as was the case under the Final CISWI Rule.
However, EPA has not proposed, through the CISWI rec onsideration, to carry corresponding textual revisions through to the definition of CSIWI unit in Section 60.2265. Instead, the Proposed CISWI Reconsideration continues to provide, in relevant part, that “[i]f the operating unit burns materials other than traditional fuels as defined in § 241.2 that have been discarded, and you do not keep and produce records as required by § 60.2175(v), the material is a solid269

waste and the operating unit is a CISWI unit.” 76 Fed. Reg. 80,501. ARIPPA supports EPA’s
proposa l to revise the recordkeeping provisions in Section 60.2175(v), as set forth in the Proposed CISWI Reconsideration. However, the proposed revisions must also be reflected in corresponding revisions to the definition of CISWI unit, so that the relevant regu latory provisions remain consistent and, together, consistently and unambiguously impose CISWI’s recordkeeping requirements on the same categories of combustible materials. Specifically, if, as EPA has proposed, the applicability of the recordkeeping requi rements in Section 60.2175(v) of the Proposed CISWI Reconsideration is revised to apply only to three specific categories of nonhazardous secondary materials, then the applicability of the recordkeeping requirements incorporated into (and imposed through) the definition of CISWI unit must also be limited to same categories of materials. Therefore, as currently written, the Proposed CISWI Reconsideration creates confusion about which non

- hazardous secondary materials trigger recordkeeping requirements under the CISWI rule

– i.e., are CISWI’s recordkeeping requirements limited to the three categories of materials identified in Section 60.2175(v), or, alternatively, do they extend generally to “materials other than traditional fuels as defined in § 241.2 that h ave been discarded”, in accordance with the definition of CISWI unit? Such uncertainty is of particular importance for operations combusting nonhazardous secondary materials that have previously been discarded, but that EPA has nonetheless determined to be

non

- waste fuels under Section 241.4(a). As described above, EPA has concluded that legacy coal refuse, though initially discarded, 4 satisfies the processing standards and legitimacy criteria at the point of combustion. EPA has appropriately therefore prop osed through the Proposed NHSM Reconsideration to expressly identify legacy coal refuse as a non

- waste fuel in Section 241.4(a). ARIPPA therefore is specifically interested in ensuring that the regulatory definition (relative to applicability) and recordke eping obligations imposed through the final CISWI Rule are clear and consistent with EPA’s classification of nonhazardous secondary materials under the final NHSM Rule. To resolve the apparent internal inconsistency in the regulatory text of the Proposed C ISWI Reconsideration, ARIPPA requests that EPA revise the definition of CISWI unit in Section 60.2265 of the Proposed CISWI Reconsideration as follows: 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.

In addition, materials shall be deemed to constitute a solid waste, and the operating unit combusting such material shall be a CISWI unit, if both (a) and (b) apply: (a) The operating unit burns any of the following materials: (1) nonhazardous secondary materials that have been determined not to be solid waste pursuant to §241.3(b)(1); (2) fuels that have been processed from discarded non

- hazardous secondary materials pursuant to § 241.3(b)(4); and (3) fuels that received a non

- waste determination pursuant to the petition process under § 241.3(c), and (b) You do not keep and produce records as required by § 60.2175(v).

[Footnotes]
(4) ARIPPA disputes EPA’s characterization of legacy coal refuse as constituting discarded material. However, for purposes of discussing the Proposed CISWI Reconsideration, ARIPPA will not re

- state the basis for its disagreement.
Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has been revised to address concerns about270

making a material a solid waste by failing to keep a record. Se e the response to EPA

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Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Control Number: EPA

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Comment: In the CISWI Rule, the definition of CISWI unit states that: "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 materi al is a solid waste and the operating unit is a CISWI unit." Proposed 40 C.F.R. 60.2265 (emphasis added). Thus, it appears that even materials that are being legitimately used as fuels and therefore are not discarded would become solid wastes under the CIS WI Rule based on a mere record

- keeping violation. 4

In the NHSM Proposal and the CISWI Reconsideration Proposal, EPA would require combustors to meet certain conditions (including record

- keeping conditions) before identifying most NHSM as non

- wastes. 5 In fa ct, the only NHSM that EPA is not proposing to identify as waste when used as fuel or ingredients in combustion units are tires managed under an established tire collection program and resinated wood, which are proposed to be listed as non

waste at 40 C.F .R. 241.4(a). Because this regulatory framework would regulate materials that are not discarded ( e.g . materials that are being legitimately used as fuels or ingredients), it exceeds EPA’s authority under RCRA.

[Footnotes]

(4) The recordkeeping requirement under proposed 40 C.F.R. 60.2175(v) applies to NHSM that is combusted under the control of the generator (40 C.F.R. 241.3(b)(1), NHSM that has been processed (40 C.F.R. 241.3(b)(4), and NHSM that has received a non

- waste determination to allow transfers to third parties while still meeting the legitimacy criteria (40 C.F.R. 241.3(c)). It does not apply to ingredients. 40 C.F.R. 60.2265 describes these materials as "materials other than traditional fuels as defined in §241.2 that have been discarded." This l anguage could mean EPA is taking the position that such materials are discarded, which would be consistent with EPA’s claimed authority to impose conditions on these materials. An alternative reading of this language is that the words "that have been disca rded" puts the burden on EPA to show that discard has taken place, and that, absent such a demonstration a combustor does not need to document and maintain records regarding the status of NHSM that is combusted as fuel. Please clarify how EPA intends this language to be interpreted.

(5) As discussed below, we do not dispute that EPA can use recycling legitimacy criteria to evaluate whether materials are wastes. However, EPA may not regulate a non

- waste as a condition of identifying it as a non

- waste. Theref ore, EPA cannot place the burden of proof on a combustor to prove that his material is a non

- waste.271

Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has been revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA

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Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and R emediation Coalition (FRRC) Document Control Number: EPA

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Comment: The preamble discussion on precursors provides another example of how far removed EPA’s rationale for this rulemaking is from the conc ept of discard. EPA is requiring combustors to document and keep records regarding the fact that CO is not present in NHSM, and, under CISWI, would identify the NHSM as waste if this documentation is not maintained. We fail to see how this has anything to do with a determination that a material is a waste under RCRA. EPA’s failure to expressly exclude opacity from the definition of contaminant is similar. Does EPA intend a combustor to document and keep a record of an explanation that opacity cannot be meas ured in a fuel or an ingredient and is only relevant to emissions? Would failure to document and maintain a record of this explanation make the NHSM a waste under the CISWI rule?

Response: The recordkeeping provisions have been revised in the final rule t o address the final NHSM rule. Furthermore, the CISWI unit definition has been revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA

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Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Control Number: EPA

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Comment: EPA states that the legitimacy criteria are used to ide ntify when a material is a waste. However, under the NHSM Proposal, material can meet the legitimacy criteria and still be identified as solid waste. This position is invalid under RCRA . Under ABR , EPA cannot impose conditions such as record

- keeping requir ements on the combustion of non

- waste material that would result in the classification of the material as a waste.

Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit defin ition has been revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA

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Commenter Name: Kerry Kelly Commenter Affiliation: Waste Man agement (WM)272

Document Control Number: EPA

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Comment: EPA Should Clarify that Comfort Letters Issued by the Agency Meet the Documentation Requirements of the CISWI Rule at §60.2175(v) and Boiler MACT Rule at §63.7555(d)(2) EPA has issued a number of “comfort letters,” which it has posted on the official NHSM Rulemaking web site. These letters have been carefully crafted to discuss how various secondary materials meet the processing definition and legitimac y criteria of the NHSM Rule. However, the preamble and rule language in the NHSM Final Rule and the proposed NHSM Rule Amendments do not discuss whether a combustion source may rely on the comfort letters to meet its recordkeeping requirements. We respectf ully urge the Agency to address this issue in its final NHSM Rule Amendments and on its rulemaking web site. EPA should clarify that combustion sources burning a secondary material fuel that meets the processing and legitimacy criteria circumstances as des cribed in an EPA “comfort letter” may use the letter to meet the recordkeeping requirements of §60.2175(v) and §63.7555(d)(2). Further, EPA should clarify that no additional petitions for a non

‐ waste determination from either the Regional Administrator or Administrator are necessary where the secondary material fuel meets the circumstances described in the comfort letter. Failure to adequately clarify the status and use of comfort letters to demonstrate fuel legitimacy determinations will create enormous di sincentives to recovering energy value from materials which otherwise would be landfilled

. Response: We would consider “comfort letters” issued by the Agency on various secondary materials to be sufficient to satisfy the documentation requirements of the CISWI Rule at §60.2175(v) and §60.2740(u), and in the Boiler MACT Rule at §63.7555(d)(2). If the secondary material in question meets the circumstances described in the comfort letter, then no additional petition for a non

- waste determination is required for the secondary material.

Commenter Name: Jeff A. McNelly Commenter Affiliation: ARIPPA Document Control Number: EPA

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Comment: Coal refuse should be classified as a traditional fuel for purposes of both the Final NHSM Rule and CISWI , rather than as a solid waste. ARIPPA offered several justifications in support of this classification, which are detailed in ARIPPA’s pending Petition for Regulation of the Final NHSM Rule. Although ARIPPA continues t o believe that legacy coal refuse is indistinguishable from currently

- mined coal refuse (which is appropriately expressly identified as a traditional fuel under the Final NHSM Rule) and should also be classified as a traditional fuel, ARIPPA stated in its comments on the Proposed NHSM Reconsideration that it supports EPA’s proposal, as articulated in the preamble to the Proposed NHSM Reconsideration, to expressly identify legacy coal refuse as a non

- waste fuel in Section 241.4(a) of the Proposed NHSM Recons ideration. 2 ARIPPA’s comments on the Proposed CISWI Reconsideration reflect ARIPPA’s support for EPA’s proposed changes to the NHSM regulation through the Proposed NHSM Reconsideration, subject to ARIPPA’s comments on that reconsideration effort.273

In general, ARIPPA proposes revisions to CISWI through EPA’s reconsideration effort to ensure that the combustion of coal refuse, including legacy coal refuse, is not inadvertently rendered subject to regulation under CISWI , or that such regulation remains subject to differing interpretations because of the ambiguity of the regulatory text. Expressly clarifying that the combustion of legacy coal refuse qualifies as combustion of a non

- waste fuel and therefore is not subject to CISWI would also be consistent with EPA’s stated expectation published in the context of the Agency’s Utility MACT and NSPS regulations. In particular, EPA commented that a unit combusting coal refuse, including legacy coal refuse, would be subject to regulation under EPA’s Utility MAC T rules as long as the unit qualifies as an electric generating unit (“EGU”), rather than subject to regulation under Section 129 of the CAA . 76 Fed. Reg . 25,026. Specifically, for purposes of the Proposed Utility MACT and NSPS , the Agency “assumed that al l units that combust coal refuse and otherwise meet the definition of a coal refuse

- fired EGU combust newly mined coal refuse or coal refuse from legacy piles that has been processed such that it is not a solid waste.” Id. EPA specifically requested commen t on this assumption and whether there are any units combusting coal refuse that qualifies as a solid waste, such that the units would be solid waste incineration units (subject to regulation under CAA Section 129) instead of EGUs

. Id. In the preamble to t he final Utility MACT and NSPS , EPA confirms that “[the Agency] did not receive any information since [the Proposed Utility MACT and NSPS ] that would cause [it] to revise this determination in the final rule.” “National Emission Standards for Hazardous Air Pollutants from Coal

- and Oil

- fired Electric Utility Steam Generating Units and Standards of Performance for Fossil

- Fuel

- Fired Electric Utility, Industrial

- Commercial

Institutional, and Small Industrial

- Commercial

- Institutional Steam Generating Units; Fi nal rule”. 77 Fed. Reg . 9,304, 9,310 (Feb. 16, 2012) (to be codified at 40 C.F.R. pts . 60 and 63). Therefore, EPA should support ARIPPA’s proposed revisions to the regulatory text of CISWI to ensure application of the appropriate and intended regulatory st andards to the combustion of coal refuse for energy production.

[Footnotes]
(2) In its comments on the Proposed NHSM Reconsideration, ARIPPA identified proposed revisions to EPA’s suggested regulatory text, to ensure that such text is clearly consistent w ith EPA’s appropriate regulatory objectives to clarify, through the regulation, that legacy coal refuse satisfies EPA’s legitimacy criteria for fuels, and constitutes a non

- waste fuel at the point of combustion. To the extent applicable, ARIPPA incorporate s these comments on the Proposed NHSM Reconsideration herein.
Response: These comments concern the NHSM rule, not CISWI, in that they request a definition of solid waste that excludes all coal refuse. For this reason, we are not responding to the commen t in this RTC. We note that, just because no source subject to the Utility NESHAP indicated that it was combusting coal refuse that is solid waste, this does not preclude the possibility that some combustion units are burning coal refuse that is solid was te. Not all boiler units are utility units subject to the Utility NESHAP, However, we are not aware of any industrial boiler units that are combusting coal refuse that is a solid waste.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council o f Industrial Boiler Owners (CIBO)274

Document Control Number: EPA

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Comment: EPA per the preamble to its Proposed Reconsidered Non Hazardous Solid Material ( NHSM ) Rule is considering defining currently mined coal refuse as well as legacy coal refuse that is post

- processed to be a non

- waste fuel. If this definition is implemented in the NHSM Rule, then EPA can eliminate coal refuse facilities from the CISWI Rule. O n the other hand, if EPA does not implement such a definition in the NHSM rule and requires a case by case determination as to whether legacy coal refuse is sufficiently processed to be categorized as a fuel, then all facilities using coal refuse are at ri sk of potentially being subject to the CISWI rule. In this event, it is clear that the CISWI Rule does not adequately address the emissions from facilities firing coal refuse. The EPA data base for CISWI references only one facility burning coal refuse (sp ecifically an Anthracite coal refuse). The quality of coal refuse varies substantially from anthracite to bituminous coal and varies considerably within these categories as well. As such, the testing of one unit is inadequate to determine what the emission s limits should be for units burning coal refuse.

Specifically, for purposes of the Proposed Utility MACT and NSPS , the Agency “assumed that all units that combust coal refuse and otherwise meet the definition of a coal refuse

- fired EGU combust newly mined coal refuse or coal refuse from legacy piles that has been processed such that it is not a solid waste. As such, EPA in addressing CSAPR and MATS for EGUs evaluated data from multiple facilities burning coal refuse.

To resolve this lack of data issue, we strongly recommend that EPA simply state that coal refuse from active and legacy sites is a fuel and should not be considered a waste. By making the determination that coal refuse is a fuel, coal refuse burning electric generation units would be covered by CSAPR and MATS. EPA had conducted testing of numerous coal refuse fired facilities in setting limits under these rules. Further, the preamble to these rules anticipated that coal refuse would be a classified a fuel.

The alternative woul d be to conduct comprehensive study to examine emissions from units burning legacy coal refuse that has not been adequately processed. These units should include both anthracite and bituminous waste coal.

Response: The recordkeeping provisions have been r evised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has been revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA

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Commenter Name: Jeff A. McNelly Commenter Affiliation: ARIPPA Document Control Number: EPA

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Comment: To the extent that EPA determines not to expressly identify legacy coal re fuse

as a non - waste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration, ARIPPA275

requests that the Agency revise CISWI’s recordkeeping provisions to ensure that the regulatory text is consistent with EPA’s prior determination that legacy coal refu se is a

non - waste fuel at the point of combustion. Based on the preamble to the Final NHSM Rule, it is clear that EPA has appropriately concluded that legacy coal refuse would not constitute a solid waste at the point of combustion, based upon EPA’s determ ination that the processing of legacy coal refuse is directly comparable to the processing of virgin coal prior to combustion of either material. See 76 Fed. Reg. 15,509; 15,537. For this reason, EPA determined that legacy coal refuse satisfies the process ing standards imposed under the Final NHSM Rule, and ultimately meets the legitimacy criteria set forth at Section 241.3(d)(1), prior to the point of combustion. EPA reaffirmed its position in the preamble to the Proposed NHSM Reconsideration. As expressed in its comments on the Proposed NHSM Reconsideration, ARIPPA supports EPA’s proposal to expressly identify legacy coal refuse as a non

- waste fuel under Section 241.4(a). If EPA nonetheless determines not to include legacy coal refuse among the non

- waste f uels listed in Section 241.4(a), the final CISWI regulation should nonetheless ensure that the combustion of legacy coal refuse is not inadvertently made subject to CISWI, and avoid unnecessary ambiguity with respect to the applicability of CISWI to coal r efuse

- fired units. Consistent with this reasonable desire for regulatory clarity, no separate demonstration nor recordkeeping should be required under CISWI where EPA has already determined that the subject material is not a solid waste at the point of com bustion. Since EPA has already reached such determination relative to the combustion of legacy coal refuse, sources combusting coal refuse are not subject to the emission and operational standards under the Final CISWI Rule, and EPA should ensure that its final regulation clearly reflects this intended regulatory outcome. ARIPPA’s arguments in this context are detailed more fully in its Petition for Reconsideration of the Final CISWI Rule. To ensure that the CISWI rule ultimately reflects EPA’s classificati on of legacy coal refuse as a

non

- waste fuel, ARIPPA requests that EPA revise the recordkeeping provisions in Section 60.2175(v) of the Proposed CISWI Reconsideration as follows: (v) Except as provided by Section 60.2175(v)(1), f

or operating units that com bust non

- hazardous secondary materials that have been determined not to be solid waste pursuant to § 241.3(b)(1) of this chapter, you must keep a record which documents how the secondary material meets each of the legitimacy criteria. 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. I f 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.
(1) In lieu of maintaining rec ords pursuant to Section 60.2175(v) to demonstrate the source is not subject to CISWI, an operating unit combusting legacy coal refuse must keep records demonstrating that the unit combusts legacy coal refuse which has been processed in a similar
manner to the processing of currently

- generated coal refuse.
Response: The recordkeeping provisions have been revised in the final rule to address the final NHSM rule. Furthermore, the CISWI unit definition has been revised to address concerns about making a mate rial a solid waste by failing to keep a record. See the response to EPA

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Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management (WM) Document Control Number: EPA

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Commen t: WM Supports the Proposed NHSM Categorical Non

‐ Waste Determination Process Proposed §241.4(b) provides a new rulemaking petition process for the Administrator to identify additional non

‐ waste fuels under §241.4(a). Combustion units using listed non

‐ waste fuels do not need to obtain site

‐ specific non

‐ waste determinations from their Regional Administrators or other NHSM requirements for demonstrating legitimacy, including recordkeeping requirements to document sufficient processing and conformance to t he legitimacy criteria. WM commends EPA for developing the process, and for recognizing therein that it is appropriate to balance the legitimacy factors with other relevant factors when making a

non ‐ waste determination. EPA’s legitimacy analysis should foc us on the heating value of the fuel product, whether material management and processing is conducted in a safe and protective manner, and whether the material’s use as a fuel will extract value from the material and reduce landfill disposal. In particular, extremely rigid adherence to contaminant comparisons, without consideration of other relevant factors, may unfairly eliminate otherwise viable and environmentally beneficial fuels. WM recommends that the Agency also clarify that the Regional Administrator s should balance the legitimacy criteria with other relevant factors in considering petitions submitted pursuant to 40 CFR §241.3(c).
Response: The commenter primarily discussed issues relating to Identification of Non

Hazardous Secondary Materials That A re Solid Waste rulemaking ( NHSM ) aspects (Docket ID: EPA

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- 0329). To the extent that the commenter has provided these comments to today’s Identification of Non

- Hazardous Secondary Materials That Are Solid Waste portion of the rulemaking, they ma y be addressed there or were addressed in the rulemaking record for the March 21, 2011 NHSM Final Rule. As stated in the preamble 76 FR 80470

- 80474, the Agency did not reopen the entire NHSM rule for reconsideration and will not respond to comments directe d toward rule provisions that were not specifically identified in the December 23, 2011, proposal. For more information regarding the intent of the December 23, 2011 proposed rule, see 76 FR 80469.
The recordkeeping provisions have been revised in the fina l rule to address the final NHSM rule. Furthermore, the CISWI unit definition has been revised to address concerns about making a material a solid waste by failing to keep a record. See the response to EPA

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### 12D. Operating parameter limits comments (OPL)

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA

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Comment: The cement industry fires alternat e supplemental fuels to maintain a consistent heating value to the kiln preheater/ precalciner system. By way of example, individual tires are actually weighed to account for the difference in BTU value as a result of the size of the tire. Likewise, the fee d rate for other alternate solid fuels is closely monitored and controlled depending on the BTU mix of the alternate fuel material being fired. We seek clarification on the use of this terminology since it's based more on traditional incineration "campaign s" and waste charging methods.
Response: We intend for the term ”charge rate,” as applied in the situation described by the commenter, to mean the amount, by weight, of each type of fuel and solid waste material being fed to the combustion unit each hour.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2165(e)(1) and (2)

– It is unclear how the “charge rate” is applied to a wa ste burning kiln. It would be clearer to present this concept as the “feed rate” with continuous feed systems rather than “charges.”
Response: See the response to EPA

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Commenter Name: Darryl Sanderson Commenter Affiliat ion: The Dow Chemical Company Document Control Number: EPA

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Comment: In the proposed rule (June 4, 2010), EPA required that the source continuously monitor operating parameter limits ( OPLs ), and determ ined that any operation above or below parameter requirements would be a deviation. In its response to comments, EPA stated that the final rule (March 21, 2011) waives the applicability of operating limits during performance testing:

EPA has revised the ru le to waive the operating limits during source testing so that sources may adjust their operating limits to provide increased operating flexibility provided the emissions limits are met. The intention behind reassessing operating limits with new performanc e testing is to ensure that the limits remain appropriate for the source. By allowing the source to conduct performance test with less stringent operating levels that may have been initially determined, the source will be able to set the limits at levels a ppropriate for their operations while ensuring emissions limits are met. [Response to Comments, at 1111 (Feb. 20, 2011)]
In the final rule (March 21, 2011), EPA did revise the regulatory language for Subpart CCCC to reflect the above response to comments w ith text as follows [60.2145(c)]:
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 a278

deviation from your operating limits s ubpart, 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.
However, EPA did not revise similar language for Subpart DDDD . Dow participated in preparation of the ACC petition for reconsideration submitted May 20, 2011 which included a request that EPA reconsider and correct what we believe to be an oversight with r espect to subpart DDDD

. Dow continues to be concerned that the ongoing testing requirements, particularly for existing units (subpart DDDD ), could result in a continual reduction of operating limits if facilities have to reset the operating limits to more stringent values every time a stack test is done so as to avoid a deviation during the actual test.
Response: The same language in 60.2145(c) has been added to Subpart DDDD at 60.2710(c) to make the emission guidelines consistent with the NSPS

.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: In addition, ACC described a concern about the status of pre

- testing associated with performance testing since pre

- testing is usually an integral part of a performance test. Dow continues to be concerned about this issue. It is common to conduct pretesting prior to conducting a performance test, particularly when there are numerous st ack sampling trains to be used. For a unit to be able to operate at a new condition during a performance test, it must be allowed to operate at that condition for a period of time before the actual test so that the operator can determine if the condition i s feasible and to work out any site

- specific preparations. If the condition is outside the existing operating limits, there is no way for the operator to do this. Therefore, existing operating limits need to be waived for pre

- testing associated with subseq uent performance tests.
Dow requests that EPA correct language in subpart DDDD to match what was provided in the March 21, 2011 final rule for subpart CCCC . Dow also requests that EPA revise the language in the final CISWI reconsideration rule for both sub part CCCC and subpart DDDD to clarify that operator parameter limits are also waived during pretesting prior to performance testing.
Suggested language from §60.2145(c) for what we believe to be missing from §60.2710(c) is provided in single underlined tex t based on what EPA stated in the March 21, 2011 final rule. In addition, Dow requests EPA add the clarifying phrase about pre

- testing identified below as double underlined text, which would need addition to both 60.2145(c) and 60.2710(c).
Operation above the established maximum, below the 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 subpart , except during performance tests (including pre

-279

testing) 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.
Response: See the response to EPA

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Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: In the March 21, 2011, final rule, the Agency included a provision that allows new sources to operate outside their established operating parameter limits during subsequent performance tests. The exact language from § 60.2145(c) is included below.
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 dete rmine compliance with the emission and operating limits or to establish new operating limits

. (76 Fed. Reg . at 15,754, emphasis added). CRWI supports this idea. Otherwise, the operating limits for each subsequent performance test would ratchet down until t he facility could no longer operate. We believe the Agency understands this concept since the response to comments document supports the concept that operating parameters do not apply during subsequent performance tests (see page 1108 of the Response to Co mments Document). In the comparable section for existing sources, the phrase allowing the unit to exceed current operating parameters is not included. CRWI believes this is a simple oversight and suggests that the Agency correct this by adding similar lang uage to § 60.2710(c) then the rule is finalized. CRWI also requests the agency to clarify that pre

- testing is a normal part of the testing regimen and that the waiver includes it.
Response: EPA has revised the regulation to correct the oversight. See the response to EPA

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Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: In the Proposed Rule, EPA required that sources continuously monitor operating parameter limits ( OPLs ), and determined that any operation above or below parameter requirements would be a deviation. See Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units; Proposed Rule, 75 Fed. Reg . 31938, 31976 & 31992 (proposed June 4, 2010). In its response to comments submitted by ACC and others on these provisions, E PA stated that the final rule waives the applicability of operating limits during performance testing: EPA has280

revised the rule to waive the operating limits during source testing so that sources may adjust their operating limits to provide increased opera ting flexibility provided the emissions limits are met. The intention behind reassessing operating limits with new performance testing is to ensure that the limits remain appropriate for the source. By allowing the source to conduct performance test with l ess stringent operating levels that may have been initially determined, the source will be able to set the limits at levels appropriate for their operations while ensuring emissions limits are met. Response to Comments, at 1111 (Feb. 20, 2011). In the Fina l Rule and this Proposed Rule, EPA appropriately revised the regulatory language to reflect the above response to comments for Subpart CCCC as follows: Operation above the established maximum, below the established minimum, or outside the allowable range o f the operating limits specified in paragraph (a) of this section constitutes a deviation from your operating limits subpart, except during performance tests conducted to determine compliance with the emission and operating limits or to establish new opera ting limits. Operating limits are confirmed or reestablished during performance tests. See, Final Rule, 76 Fed. Reg . 15704 at 15753

– 54 (Mar 21, 2011) and 76 Fed. Reg . 80452 at 80492 (Dec 23, 2011) (§60.2145(c) (emphasis added) EPA did not, however, revise similar language for Subpart DDDD in the Final Rule or in this Proposed Rule. See, Final Rule, 76 Fed. Reg . 15704 at 15774 (Mar 21, 2011) and 76 Fed. Reg

. 80452 at 80513 (Dec 23, 2011) (§60.2710(c)) ACC recommends that EPA reconsider and correct what ACC b elieves to be an oversight with respect to Subpart DDDD

. Response: EPA has revised the regulation to correct the oversight. See the response to EPA

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Commenter Name: Patricia Haederle Commenter Affiliation: American C hemistry Council (ACC) Document Control Number: EPA

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Comment: ACC is concerned that, as written, the ongoing testing requirements, particularly for existing units (subpart DDDD ), could result in a conti nual reduction of operating limits if facilities have to reset the operating limits every time a stack test is done. Facilities typically operate with a safety margin with respect to operating limits. Therefore, if the operating limits are reset with each performance test, they will continue to change, requiring a continual increase in energy and operating costs. Other combustion

- related MACT rules, for example, HWC MACT , explicitly waives current OPLs during subsequent comprehensive performance testing. Se e, 40 C.F.R. § 63.1207(h)(1). The same waiver should be made explicit in the CISWI rule.
Response: See the response to EPA

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Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Doc ument Control Number: EPA

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Comment: ACC is concerned about the status of pre

- testing associated with performance testing since pre

- testing is usually an integral component of testing. The proposed CISWI rule281

was silent on the issue. It is common to conduct pretesting prior to conducting a performance test, particularly when there are numerous stack sampling trains to be used. For a unit to be able to operate at a new condition during a performance test, it must be allowed to operate at that condition for a period of time before the actual test so that the operator can determine if the condition is feasible. If the condition is outside the existing operating limits, there is no way for the operator to do t his. Therefore, existing operating limits need to be waived for pre

- testing associated with subsequent performance tests. Section 63.1207(h)(2) of the HWC MACT states:
...current operating parameter limits are also waived during pretesting prior to comprehe nsive performance testing for an aggregate time not to exceed 720 hours of operation...
ACC urges EPA to reconsider and revise the language in the final CISWI rule to clarify that operator parameter limits are also waived during pretesting prior to performan ce testing.
Response: Sources are encouraged to establish operating parameters over a range of operations that are expected for the unit during their initial performance tests to minimize scenarios such as described. This may include establishing differen t parameters for different modes of operation. Regarding subsequent process changes and performance tests to establish compliance under those new conditions, the rule requires compliance with the standard at all times, which is determined through complianc e with the operating limits. Waiving these monitoring requirements inhibits the ability to do so. However, we also recognize that requiring a source to operate within the previously established operating window during subsequent performance tests, would ov er time, results in a shrinking operating window. It could also limit process improvement. For these reasons, we finalized the language in 60.2145(c) and 60.2710(c) that waives operating parameter limits “... during performance tests conducted to determine

c ompliance with the emission and operating limits or to establish new operating limits.” The source should work with the delegated authority to establish the agreed upon steps and time frame needed to bring the source to steady state and representative oper ating conditions for any particular operating scenario and establish this as part of the site specific test plan; however expanding this beyond actual scope of the performance test is inconsistent with the concepts of continuous parametric monitoring to as sure continuous compliance.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2265

– The terms “annual heat input” and “average annual heat input” rely on operation of the source over the previous 12 month compliance demonstration, which could vary. These terms should rely on the design value where it has the potential to impac t applicability of various CISWI provisions.
Response: The rule already allows a time frame of 11

- 13 months from the previous test to provide operational flexibility. If a source will shut down for an extended period of time, beyond that window, the sour ce should work with their delegated authority to establish a schedule for conducting the annual performance test and determination of the “annual heat input” and “average annual heat input.”282

Commenter Name: Robert D. Bessette Commenter Affiliation: Counc il of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: Additional flexibility for operating parameter limits
EPA needs to allow for varying Operating Parameter Levels with load (e. g., sorbent injection rate) and fuel mix. The CISWI rules require development of operating parameter limits ( OPLs ) based on the values achieved during the performance test. In many cases, these levels will be appropriate only for certain modes of operation . For example, the absolute sorbent injection rate observed during the performance test conducted under full load and using the worst case fuel mix will not correlate to the sorbent injection rate necessary during startup or periods of lower load. Frequent ly, sorbent injection rates are set using a feedback loop from a CEMS or CPMS to avoid wasting sorbent . EPA has acknowledged in the Boiler MACT that the sorbent injection rate will vary with load, which allows sources to adjust the sorbent injection rate b y a load fraction. However, as the fuel/waste mix during the initial performance test may differ from the typical day to day fuel/waste mix, EPA should also allow adjustments to sorbent injection rates based on fuel mix. For example, if an ERU is capable o f burning both coal and biomass and tested at 100% coal firing for the mercury performance test, the carbon injection rate for periods of normal operation should not only be adjusted based on load but also by the percentage of coal being fired. If a boiler is burning natural gas or other clean fuel during a certain operational period, sorbent injection is not necessary.
Response: As we discuss in section II.C of the preamble to the final rule, we have revised the sorbent injection monitoring provisions to allow adjustments due to reduced operating loads in a manner consistent with that found in the industrial boiler NESHAP. We would expect sources to establish operating parameters using a fuel/waste mix that is typical for the unit. We note that a

source may re

- test and re

- establish new operating parameter limits as necessary to adjust for changes in the feed stream to the unit, as specified in §60.2160 and §60.2725. The feed stream change would have to involve a new type of non

- hazardous secondary materia l being combusted to be considered a “process change”that triggers the requirement to conduct a new performance test. Sources should evaluate the new materials to determine whether their introduction into the process is in fact a process change.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: The proposed rule requires development of operating paramete r limits ( OPLs ) based on the values achieved during the performance test. In many cases, these levels will be appropriate only for certain modes of operation. For example, the absolute sorbent injection rate observed during the performance test conducted u nder full load and using the worst case fuel mix will not correlate to the sorbent injection rate necessary during startup or periods of lower load. Frequently, sorbent injection rates are set using a feedback loop from a CEMS or CPMS to283

avoid wasting sorb ent . EPA has acknowledged that the sorbent injection rate will vary with load in Table 7 of the Boiler MACT rule, which allows sources to adjust the sorbent injection rate by a load fraction. That approach is not included in the CISWI rule, however, In add ition, as EPA requires sources to test at the worst case fuel mix for chloride and mercury and this fuel mix may differ from the typical day to day fuel mix, EPA should also allow adjustments to sorbent injection rates based on fuel mix. For example, if a boiler is capable of burning both coal and biomass as well as solid waste, and tested with coal firing for the mercury performance test, the carbon injection rate for periods of normal operation should not only be adjusted based on load but also by the per centage of coal being fired. If a boiler is burning natural gas or other clean fuel during a certain operational period, sorbent injection may not be necessary. Therefore, additional flexibility needs to be allowed where justified based on fuel and operati onal requirements.
Response: As stated above, we have made revisions to the final rule to address this comment. See the response to EPA

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Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: An allowance for operating parameter limit variation due to CISWI unit load fraction is also applicable to all CISWI units and operation param eters. Variations with load and other operating conditions also occur for other operating parameters

- e.g., wet scrubber pressure drop, pH, and liquid flow rate, ESP voltage and secondary amperage. Flue gas flow rate and characteristics vary over load and with other operating variables such as fuel quality, to the extent that the single hourly average value determined during the high load steady state performance test will not apply to other conditions if overall performance is optimized. EPA should provide an allowance for any operating parameters to vary with unit load fraction as applicable to the operating parameter and specific affected source, and recognize that those operating parameters do not necessary vary in a linear relationship with load, e.g., pressure drop typically varies with the (flow).
Response: We have made adjustments for sorbent injection as discussed above. See the response to EPA

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- A1 excerpt 22. We disagree that a similar allowance is necessary for all other operating parameter limits, as they do not pose the same
ope rational issues as sorbent injection does. We note that a source may retest and re

- establish new operating parameter limits, as specified in §60.2160 and §60.2725.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: The Proposed Rule requires development of operating parameter limits ( OPLs ) based on the values achieved during the performance test. In many cases, these levels will be appropriate only for certain modes of operation. For example, the absolute sorbent injection rate284

observed during the performance test conducted under full load and using the worst case fuel mix will not correlate to the sorbent injection rate ne cessary during startup or periods of lower load. Frequently, sorbent injection rates are set using a feedback loop from a CEMS or CPMS to avoid wasting sorbent . EPA has acknowledged that the sorbent injection rate will vary with load in Table 7 of the Boi ler MACT rule (76 Fed. Reg . 80653), which allows sources to adjust the sorbent injection rate by a load fraction; however, that approach is not included in the CISWI rule, and ACC requests that EPA include such an approach.
In addition, as EPA requires sou rces to test at the worst case fuel mix for chloride and mercury, and this fuel mix may differ from the typical day to day fuel mix, EPA should also allow adjustments to sorbent injection rates based on fuel mix. For example, if a boiler is capable of bur ning both coal and biomass as well as solid waste, and tested with coal firing for the mercury performance test, the carbon injection rate for periods of normal operation should not only be adjusted based on load but also by the percentage of coal being fi red. If a boiler is burning natural gas or other clean fuel during a certain operational period, sorbent injection may not be necessary. Therefore, additional flexibility needs to be allowed where justified, based on fuel and operational requirements.

Re sponse: As stated above, we have made revisions to the final rule to address this comment. See the response to EPA

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Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Co ntrol Number: EPA

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Comment: An allowance for operating parameter limit variation due to CISWI unit load fraction is also applicable to all CISWI units and operation parameters. Variations with load and other operating conditions also occur for other operating parameters, such as wet scrubber pressure drop, pH, liquid flow rate, electrostatic precipitator voltage and secondary amperage. Flue gas flow rate and characteristics vary over load and with othe r operating variables such as fuel quality, to the extent that the single hourly average value determined during the high load steady state performance test will not apply to other conditions if overall performance is optimized. EPA should provide an allo wance for any operating parameters to vary with unit load fraction as applicable to the operating parameter and specific affected source, and recognize that those operating parameters do not necessary vary in a linear relationship with load, for example,
p ressure drop, which typically varies with flow.
Response: We have made adjustments for sorbent injection as discussed above. See the response to EPA

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- A1 excerpt 22. We disagree that a similar allowance is necessary for all other ope rating parameter limits, as they do not pose the same operational issues as sorbent injection does. We note that a source may retest and re

- establish new operating parameter limits, as specified in §60.2160 and §60.2725.

Commenter Name: Paul Noe, Vice Pr esident for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al.285

Document Control Number: EPA

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Comment: The CISWI rules require development of operating parameter limi ts ( OPLs ) based on the values achieved during the performance test. In many cases, these levels will be appropriate only for certain modes of operation. For example, the absolute sorbent injection rate observed during the performance test conducted under f ull load and using the worst case fuel mix will not correlate to the sorbent injection rate necessary during startup or periods of lower load. Frequently, sorbent injection rates are set using a feedback loop from a CEMS or CPMS to avoid wasting sorbent . E PA has acknowledged in the Boiler MACT that the sorbent injection rate will vary with load, which allows sources to adjust the sorbent injection rate by a load fraction. However, as the fuel/waste mix during the initial performance test may differ from the typical day to day fuel/waste mix, EPA should also allow adjustments to sorbent injection rates based on fuel mix. For example, if an ERU is capable of burning both coal and biomass and tested at 100% coal firing for the mercury performance test, the carb on injection rate for periods of normal operation should not only be adjusted based on load, but also by the percentage of coal being fired. If a boiler is burning natural gas or other clean fuel during a certain operational period, sorbent injection is no t necessary.
Response: We have made adjustments for sorbent injection as discussed above. See the response to EPA

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### 2T. Miscellaneous Typographical Errors and Rule Language Corrections

Commenter Name: Felix Mestey, Chair, on behalf of Donald R. Schregardus, Environment Deputy Assistant Secretary of the Navy Commenter Affiliation: Clean Air Act Services Steering Committee, Department of Defense (DoD) Document Control Number: EPA

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Comment: Where appropriate, the definitions in the 40 CFR part 60 subparts CCCC and DDDD should be identical.

Discussion
There are slight differences in some of the definitions in 40 CFR part 60 subparts CCCC and DDDD . While some definitions such as those that reference specific provisions in the respective subparts will differ, most should be identical. Having identical definitions will minimize the need to duplicate definitions when summarizing these rules. The following ar e recommended changes to definitions that should be identical.
In subpart CCCC : Chemical recovery unit means combustion units burning materials to recover chemical constituents or to produce chemical compounds where there is an existing commercial market286

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) Un its burning only wood or coal feedstock for the production of charcoal.
(4) Units burning only manufacturing byproduct streams/residue containing catalyst metals which that are reclaimed and reused as catalysts or used to produce commercial grade catalysts.
( 5) Units burning only coke to produce purified carbon monoxide that is used as an intermediate in the production of other chemical compounds.
(6) Units burning only hydrocarbon liquids or solids to produce hydrogen, carbon monoxide, synthesis gas, or other gases for use in other manufacturing processes.
(7) Units burning only photographic film to recover silver. Incinerator means any furnace used in the process of combusting solid waste (as that term isdefined by the Administrator under 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. 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.
In subpart DDDD:
Energy recovery unit mea ns 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
pro cess heaters if they did not combust solid waste.
Energy recovery unit designed to burn liquid waste materials and gas (Liquid/ gas) means an energy recovery unit that burns a liquid waste with liquid or gaseous fuels not combined with any solid fuel or w

aste materials. Energy recovery unit designed to burn solid materials (Solid s ) includes energy recovery units designed to burn coal and energy recovery units designed to burn biomass.
Incinerator means any furnace used in the process of combusting solid wa ste (as the that term is defined by the Administrator in 40 CFR part 241) for the purpose of reducing the volume of the waste by removing combustible matter. Incinerator designs include single chamber and two

chamber.
Modification or modified CISWI unit mean s 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 life287

of the unit exceeds 50 percent of the original cost of building and installing the CISWI unit (not includ ing 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 of the Clean Air Act has established standards. Solid waste incineration unit means a distinct operating unit of any facili ty which combusts any solid waste (as that term is defined by the Administrator in 40 CFR part 241) waste material from commercial or industrial establishments or the general public (including single and multiple residences, hotels and motels). Such term do es not include incinerators or other units required to have a permit under section 3005 of the Solid Waste Disposal Act. The term ‘‘solid waste incineration unit’’ does not include : ( A 1 ) m M aterials recovery facilities (including primary or secondary smelter s) which combust waste for the primary purpose of recovering metals

, ; ( B 2 ) q Q ualifying small power production facilities, as defined in section 3(17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying cogeneration facilities, as defined in se ction 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous waste (such as units which burn tires or used oil, but not including refuse

- derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes

, ; or ( C 3 ) a A ir curtain incinerators provided that such i ncinerators 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.

Recommendation: Change the definitions identified in the discussion as appropriate.
Response: The suggested edits have been incorporated into the final rule.

Commenter Name: Arthur Marin Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM) Document Control Number: EPA

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Comment: Inconsistencies between the Area Source Rule, Major Source Rule, and CISWI Rule Definitions
The EPA is proposing several definitions in the area source boiler rule, major source boiler rule (both under consideration separately), and CISWI rule that are designed to clarify the applicable fuels under the appropriate section of the Clean Air Act reg ulating a combustion device (i.e., Section 112 or 129). NESCAUM notes that there are inconsistencies between the area source rule, major source rule, and CISWI rule, and requests that the EPA harmonize the definitions between the rules so there is no ambig uity as to which rule a source is subject. For example, the following definitions for liquid fuel are inconsistent between the three rules:
1. In the proposed area source boiler rule, liquid fuel is defined as follows: Liquid fuel includes, but is not lim ited to, distillate oil, residual oil, any form of liquid fuel derived from petroleum,

on

- spec used oil, liquid biofuels, biodiesel, and vegetable oil.288

2. In the proposed major source boiler rule, liquid fuel is defined as follows:
Liquid fuel includes, bu t is not limited to, distillate oil, residual oil, onspec used oil, biodiesel and vegetable oil.
3. Under the CISWI and NHSM rules, liquid fuel is classified under “traditional fuel” as follows (excerpted as noted):
Traditional fuels means materials that a re produced as fuels and are unused products that have not been discarded and therefore, are not solid wastes, including: (1) ... fossil fuels (e.g., coal, oil and natural gas)...; and (2) alternative fuels developed from virgin materials that can now be used as fuel products, including used oil which meets the specifications outlined in 40 CFR 279.11.... NESCAUM understands that all of these definitions are intended to encompass all

non

- waste liquid fuels that the EPA has deemed to be traditional fuels when burn ed in a combustion device and should be regulated under Section 112. NESCAUM recommends that the definitions be harmonized to all say the same thing (i.e., reference 40 CFR 279.11 for defining used oil) to the extent possible and list the same examples (i. e., list liquid biofuels and vegetable oil in all three definitions).
Response: We are not implementing the commenter's suggested change for the CISWI rule. The liquid fuel definitions in the boiler rules are out of scope to this CISWI rulemaking. Moreo ver, CISWI does not contain separate subcategories for various types of liquid fuels, but does distinguish between solid energy recovery units and those burning only liquids or gases.

Commenter Name: Arthur Marin Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM) Document Control Number: EPA

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Comment:

NESCAUM believes that new EPA rules affecting the viability of alternative fuels must be carefully crafted to be flex ible enough to accommodate new alternative fuels. As new fuels gain popularity, NESCAUM recommends that the EPA develop clear guidance in the rules to encompass future alternative fuels.
For example, some NESCAUM states have seen increased interest in use of re

- refined oil. Provided that re

- refined oil meets the contaminant limits detailed in 40 CFR 279.11 (e.g., 4,000 ppmw of total halogens, which are typically higher in re

- refined oil than in traditional oil), then it should meet the definition of “used o il” (a “traditional fuel” under the CISWI rule) rather than solid waste. While individual sources can request a formal determination, the NESCAUM states suggest that the definition of used oil be clearly defined in the CISWI rule (as well as the area and m ajor source boiler rules) to include used or re

- refined oil that meets the specifications outlined in 40 CFR 279.11. Clarity and consistency between the rules will reduce confusion and will treat alternative fuels fairly.

Response: EPA reiterates the foll owing positions from the March 2011 final rule (76 FR at 15502):289

1) Used oil meeting the specifications in 40 CFR Part 279.11 (i.e., on

- specification used oil) is a traditional fuel, as defined in § 241.2, and is not required to meet the legitimacy criteri a. Contaminant comparisons are therefore unnecessary.

2) Since the regulations under CAA section 129 do not currently establish emission limits for space heaters, used oil combusted in an oil

- fired space heater that meets the provisions of 40 CFR 279.23 ne ed not be tested to establish whether or not such oil is on or off

- spec, and contaminant comparisons are therefore unnecessary. This includes used oil generated by small facilities such as auto repair shops and machine shops that have such units, and used oil generated by homeowners who change their own oil (referred to as "do

- it

- yourself" of "DIY" oil) that is burned in such units.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2145(v) specifically identifies the use of a bypass stack at any time as a deviation for PM, HCl, Pb, Cd, Hg, NO X , SO 2 and dioxin/furans. While 60.2875 defines “bypass” for subpart DDDD, subpart CCCC d oes not appear to contain a definition. Many cement kilns utilize alkali bypass systems, but their purpose is to remove high alkali material from the process, not to prevent damage to the APCD or other equipment. It would then appear that under DDDD, an al kali bypass would not meet the definition of “bypass” as it is used in DDDD. It is nuclease however what is intended by CCCC. This must be corrected, as alkali bypass systems are necessary in some areas to produce Portland cement meeting quality standards.
60.2165(p) requires use of a device that measures the use of a bypass stack. This is unnecessary for an alkali bypass stack as previously discussed in these comments. 60.2175(q) requires records that record the use of a bypass. 60.2220(c)(2)

– Cement kiln s with alkali bypass systems operate with use of the bypass in order to produce quality low alkali cement, with use of the bypass as a normal operating condition. As such, no “corrective action” for this normal operating condition is necessary, nor is it a “deviation” that should be reported as such in the “deviation” report. This provision should be clarified such that it does not include normal operation of an alkali bypass on a waste burning kiln.

60.2265

– The term “bypass” is narrowly defined to only those devices that are used to avoid severe damage to air pollution control device or other equipment. We support this definition, but request that it be specified that sources with bypass systems des igned for product quality purposes are not deemed “bypass stacks” under the CISWI provisions. Cement kilns with alkali bypass systems (including air pollution control devices) are used to produce low alkali cement products, not used to prevent equipment da mage. This distinction should be clearly recognized and allowed for in the rules.
60.2670(a)

– See discussion on bypass stacks [above].
Response: To begin with, we note that the term “bypass stack” is also defined in 60.2265 in subpart CCCC, as found at 7 6 FR 80501. As we clarify in section II.D of the preamble to the290

final rule, the definition of “bypass stack” does not have the same meaning as an “alkali bypass” used by some waste

- burning kilns that manufacture Portland cement. Therefore, the

measureme nt device requirements and deviation reporting provisions that apply to bypass stacks do not apply to normal operation of an alkali bypass system on a waste

- burning kiln. However, we do want to clarify that an alkali bypass stack that vents to the atmosph ere is considered a CISWI unit vent and, as specified in 60.2105(a) and 60.2760(a), must meet the emission limitations for the CISWI unit.

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA

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Comment: Some cement plants may have an "alkali bypass" as it relates to meeting product specifications. Generally, the alkali bypass handles 5

— 15% of the kiln system's gas flow in order to withdraw enough dust which allows for the process control of excess alkali material_ Without exception, these "bypass systems" are all controlled for PM. As a point of clarification, EPA should note that the CISWI reference to bypass stacks does not apply to the cement industr y. Response: Please see section II.D of the preamble to the final rule and the response to EPA

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Commenter Name: Felix Mestey, Chair, on behalf of Donald R. Schregardus, Environment Deputy Assistant Secretary of the Na vy Commenter Affiliation: Clean Air Act Services Steering Committee, Department of Defense (DoD) Document Control Number: EPA

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Comment: Change the definitions identified in the discussion as appropriate

. 3. Corrections
During review DoD identified the following typographical errors. Correct as necessary.
Subpart CCCC
• Tables 6 and 7: EPA deleted most of the specified span values throughout the tables, presumably because the test methods identify span ga s parameters. The few that remain should probably be deleted also. In Table 6, Carbon Monoxide row, 4th column, delete “Use a span gas with a concentration of 300 ppm or less for liquid/gas boilers and coal

- fed boilers.” In Table 7, Oxides of Nitrogen row, 4th column, delete “Use a span value of 400 ppm .” In Table 7, Sulfur Dioxide row, 4th column, delete “Use a span gas value of 260 ppm.”
Subpart DDDD291

• §60.2710(w): Change “an” to “a” prior to “Carbon Monoxide CEMS...”

• Ta bles 6, 7 and 9: In the Mercury rows, in the 3rd column, the table footnote letter following “ASTM D6784

- 02 (

Reapproved 2008)” is incorrect. It should be the same footnote letter that is shown in the 4th column.
• Table 8: EPA deleted most of the specified span values throughout the tables, presumably because the test methods identify span gas parameters. The one that remains should probably be deleted also. In the Oxides of Nitrogen row, 4th column, delete “Use a span gas with a concentration of 1000 ppm o r less.”
Response: The suggested edits have been incorporated into the final rule.

Commenter Name: Melvin E. Keener Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI) Document Control Number: EPA

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Comment: CRWI believes that the language of §§ 60.2210(m) and 60.2770(m) contradict the language of §§ 60.2170(c) and 60.2735(c) as it relates to reporting. The text of §§ 60.2210(m) and 60.2770(m) require reporting of out

- of

- control periods for monitoring systems as if they are deviations, while the text of §§ 60.2170(c) and §60.2735(c) says that these periods are not deviations. CRWI requests revisions to §§ 60.2210(m) and 60.2770(m) so they do not contradict §§ 60.2170(c) and 60.27 35(c).
Response: We disagree with the commenter's interpretation that these provisions contradict one another. Paragraph 60.2170(c) provides the necessary detail for determining deviations due to failure to collect data. The periods that are not consider ed to be deviations are clarified in 60.2170(c). The requirement to report these deviations for failure to collect data is specified in 60.2210(m). A similar construct is used in subpart DDDD

.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2265 The Raw Mill definition should be rephrased as follows “Raw

Mill means a ball and or tube mill...”.
Response: We have made the sugg ested edit.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 22292

Comment: Tables 1 and 5 and 6 differ in the sample collection volume for dioxin sampling (2 m3 vs. 4 m3 minimum). It is unclear if this was intentional (and if so, the reason should be explained).
Response: We have revised these in the final rule. The required sample volume for dioxin sampling for waste

- burning kilns is 4 cub ic meters.

Commenter Name: Patricia Buonviri Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ) Document Control Number: EPA

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Comment: Both 60.2145(x) and 60.2165(r) refer to "paragraphs (1) through (5) of this section ... ",
but in both sections, only paragraphs (1), (3) and (4) appear. Please revise the numbering as appropriate.
Response: These rule sections have been revised. The numbering error identified by the
commenter has been corrected.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 50

Comment: There a re Discrepancies Between the Preamble and the Regulatory Text
Two discrepancies exist between the emission limit tables provided in the preamble and the emission limit tables provided in the rules.
1) Existing Liq /Gas ERU Hg: Preamble Table 1 [76 Fed. Reg . 80457]: 0.0031 mg/ dscm

vs
Table 7 [76 Fed. Reg . 80527]: 0.031 mg/ dscm
1) New Incinerator D/F(Total): Preamble Table 2 [76 Fed. Reg . 80457]: 0.058 ng / dscm

vs
Table 5 [76 Fed. Reg . 80504]: 0.58 ng / dscm
The coalition assumes the lower values given in the preamble tables are correct.
Response: These have been corrected in the final rule. The existing liquid/gas ERU Hg limit is 0.031 mg/ dscm and 0.58 ng / dscm is the new incinerator D/F total mass basis limit.293

Commenter Name: Patricia Buonviri Commenter Af

filiation: Virginia Department of Environmental Quality (VADEQ) Document Control Number: EPA

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Comment: The preamble and 60.2165(n) describe PM CEMS as optional for ERUs >250 MMBtulhr . However
, Table 6 still seems to require PM CEMS for ERUs > 250 MMBtulhr . V ADEQ recommends EPA amend Table 6 to specify that PM CEMS are optional for ERUs > 250 MMBtulhr

. Response: This oversight has been corrected and the PM CEMS requirements have been revised. Ple ase see section II.E of the preamble to the final rule for more details.

Commenter Name: Patricia Buonviri Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ) Document Control Number: EPA

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Comment: The way 60.2165(r) currently reads, it appears that " other " ERUs (presumably <250 MMBtu/hr ) are allowed to operate a 2165(r) compliant PM CPMS instead of other CMS monitoring for PM compliance ( baghouse leak detectors, etc.). However, that same allowance does not appear to be available to ERUs with heater capacities greater than or equal to 250 MMBtu/hr and that non

- "other" ERUs have to operate both the 2165(r) CPMS as well as the appropriate control technology specific PM CMS. V ADEQ sees no reason why ERUs >2 50 MMBtu/hr should be required to maintain both types of PM monitoring systems and recommends EPA adjust the language in 60.2165(r) language to clarify that only PM CPMS is required.
Response: The PM CEMS provisions have been changed since proposal, and the commenter's issue has been addressed as part of this change. See section II.E of the preamble to the final rule for more details on continuous PM monitoring requirements.

Commenter Name: Michael D. St evens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA

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Comment: National Cement notes that the proposed language in 60.2710 (n) and 60.2710 (o) is identical and this ma y mean that some provision has been omitted. We request that this be corrected.
Response: This has been corrected in the final rule.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association294

Document Control Number: EPA

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Comment: EPA should correct repetitive language in the rule: PCA notes that the proposed language in 60.2710 (n) and 60.2710 (o) is identical and this may mean that some provision has been omitted. We reques t that this be corrected.
Response: This has been corrected in the final rule.

Commenter Name: Patricia Buonviri Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ) Document Control Number: EPA

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Comment: To demonstrate continuous compliance, 60.2165(h) allows a facility to substitute use of a PM CEMS in lieu of conducting the PM annual performance test and monitoring the minimum pressure drop across the wet scrubber, if applica ble. V ADEQ recommends that the reference to a "wet scrubber" in 60.2165(h) be broadened to include monitoring parameters for other types of PM air pollution control devices such as voltage and amperage of collection plates for electrostatic precipitators.
Response: We disagree with providing the same allowance for wet scrubbers, as these may also be used for acid gas control in addition to particulate matter.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners ( CIBO) Document Control Number: EPA

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- A1 Comment Excerpt Number: 30

Comment: CIBO asks EPA to confirm that the boiler size threshold for determination of whether or not a PM CPMS must be installed is the average annual heat input, i.e., annual heat input divided by the number of actual operating hours in the year. Similar to the Utility MATS rule, CIBO suggests that this value be determined using three consecutive years beginning after the compliance date to determine average annual heat input.
Response: We have confirmed that the PM CPMS size threshold for energy recovery units is based on the annual average (or average annual) heat input, but disagree on determining this value u sing three consecutive years after the compliance date as the commenter suggests. "Average annual heat input" is defined in the rule and specifies what this value means.



### 2Z. Unaddressed comment claims

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America295

Document Control Number: EPA

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Comment: Lafarge wants to object to the fact that EPA has limited comments to only those issues specifically identified in the December 23, 2011 noti ce. We refer to PCA’s comments for greater detail, but Lafarge believes that several of the issues which were commented on in our August 3, 2010 NHSM and August 23, 2010 CISWI comments were not fully addressed and require additional discussion. In addition PCA and Lafarge both filed petitions for new rulemaking (on June 16 and June 17, 2011 respectively, to amend the NHSM rule, and EPA has yet to respond to, or take any action on those petitions (other than the contained gas issue, as discussed below). We r ecognize that comments Lafarge, PCA , and others previously filed on the June 2010 CISWI and NHSM proposals will remain part of the record for judicial review via the pending judicial petitions for review now being held in abeyance in the D.C. Circuit. Once EPA issues the new NHSM and CISWI rules in final form, parties may file new judicial petitions for review which can then be consolidated with the current judicial petitions. The cases filed on the original and amended rules can then proceed to briefing an d argument, and parties would then be able to raise before the Court any issues raised in the prior rulemakings. We believe, however, that EPA’s attempt to limit the scope of public comments is inappropriate in the situation of the pending CISWI and NHSM r ules. We recognize that EPA often limits public comments to newly proposed provisions of already

- final rules. However, this usually is done in situations in which EPA proposes changes to final rules that have been effective and in force for several years. The
current CISWI and NHSM situations are entirely different. Neither rule has yet been implemented or undergone judicial review

– rather, EPA has proposed major changes right out of the box. Moreover, the administrative petitions for new rulemaking Lafarg e and PCA filed months ago

– if acted upon

– could further dramatically change the NHSM solid waste universe. But despite the fact that EPA is mandated under RCRA to take action on such petitions within a reasonable time ( RCRA § 7004(a)), EPA’s NHSM re

- pro posal makes no mention of Lafarge’s and PCA’s petitions and does not

– with the exception of the “contained gaseous material” issue discussed below

– address the issues we raised. In addition, for both the CISWI and NHSM rules, changes that EPA is now prop osing are closely related to and may significantly affect provisions of the rule for which EPA is not currently proposing changes. It is arbitrary and impractical to dissect these complex rules in such a disjointed manner by making some inter

related provi sions out

- of

- bounds for further consideration. Lafarge believes that in this situation, it is appropriate for parties to re

- submit comments filed on the original proposal and to submit comments included in administrative petitions which EPA has thus far ig nored. Lafarge believes EPA should consider and respond to these comments as well as our current comments if it is purporting to engage in reasoned decision making.
Response: In the proposed rulemaking, EPA clearly stated it would only open up further
op portunity to comment on the issues identified in the proposal. In addition, we provided responses to certain comments that petitioners indicated were not responded to in the 2011 final rule. The commenter has not provided any specific comments to which the y believe have been ignored, either to the CISWI rule or the NHSM rulemaking. Therefore, we are unable to assess the merits of their argument.296

Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North America Document Control Number: EPA

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- A1 Comment Excerpt Number: 8

Comment: Lafarge also notes there are many additional ambiguities in the current CISWI regulations relating to the issue of how and when an existing CISWI source may trigger new
source status. PCA submitted e xtensive comments on these issues in the first round of CISWI rulemaking, and in its final CISWI rulemaking of March 21, 2011, EPA simply failed to respond to the comments. On January 17, 2012, PCA re

- submitted these comments in connection with the current rulemaking and called EPA’s attention to the fact that EPA had previously failed to respond to them. We strongly encourage EPA finally to respond to these comments and provide the necessary clarifications, as they involve critical implementation issues.
Response: This particular comment deals with the issue of modification and new source applicability. This has been addressed elsewhere in the response to comment document.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Associati on of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 39

Comment: NACAA has reviewed EPA’s Response to Comments submitted in the 2011 rulemaking. We recognize that responding in detail to the many thousands of comments received in that rulemaking would be an enormous undertaking. As a consequence, however, EPA has not provided a meaningful response to most of the comments submitted by NACAA . This makes it difficult to advance the issues that carry forward from that rulemaking to the present activity.
Response: We believe that under the proposed rulemaking we addressed comments submitted under the 2011 rule that petitioners indicated the Agency did not respond. The commenter did not specify which comments they refer to, so we cannot determine whether their assertions have merit.



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

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American F orest & Paper Association et al. Document Control Number: EPA

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Comment: We are very concerned that the proposed standards will cost much more to implement than EPA predicts. EPA’s cost analyses are disc ussed in the ERG memorandum “Compliance Cost Analyses for CISWI Units” (November 10, 2011)[EPA

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- on control equipment of $517 million for ERUs, but we believe the cost will be closer to $643 million. A difference of this magnitude297

(nearly 25 percent) is very meaningful any time, but particularly during times like now when economic conditions are difficult and there is fierce competition for funding. The methodology used to develop the se cost estimates, which were developed by AF&PA, was discussed in AF&PA’s comments on the proposed rules.
EPA’s CO cost analysis for ERUs is clearly flawed. For liquid/gas

- burning units, a tune

- up was assigned for units under 36 ppmvd , advanced combustion controls ( linkageless boiler management system) for units in the 36 to 96 ppmvd range, and a CO oxidation catalyst for units over 96 ppmvd . For biomass

- burning units, a tune

- up was assigned for units under 735 ppmvd

, advanced combustion controls ( linkagel ess boiler management system) for units in the 735 to 1,960 ppmvd range, and a CO oxidation catalyst for units over 1,960 ppmvd . For coal

- burning units, a tune

- up was assigned for units under 69 ppmvd , advanced combustion controls ( linkageless boiler manag ement system) for units in the 69 to 184 ppmvd range, and a CO oxidation catalyst for units over 184 ppmvd

. There are several problems with this analysis. First, installation of a combustion control system will not be sufficient to reduce biomass ERU CO em issions below 490 ppm from levels up to 1960 ppm . There are many factors that cause high CO emissions, and often combustion air and fuel delivery system retrofits are necessary to reduce CO emissions, at costs exceeding $500,000. Second, EPA has not shown that CO catalysts can be installed on biomass ERUs and achieve reductions from above 1960 ppm CO to below 490 ppm CO. EPA has also not considered the impact of reheating the stack gas to the temperature window in which a CO catalyst will be effective in co ntrolling emissions in its analysis. There are also trade

- offs between CO and NO X emissions that need to be considered when determining the appropriate CO emissions reduction strategy. This is particularly important under § 129, where both CO and NO X are e xpressly required to be regulated.
Response: EPA established the final standards consistent with the requirements of the CAA and sources must determine whether to install controls to comply with the final standards, cease combusting solid waste and comply with any otherwise applicable section 112 standards, or cease operations. The commenter has not demonstrated that the final standards are unachievable, instead focusing on the costs of compliance. However, EPA is prohibited from considering costs when d etermining the minimum standards (i.e. MACT floor limit) for each pollutant, and EPA established the final standards based on the MACT floor level of control. Regarding the inverse relationship between CO and NO X with regard to combustion control, it is i ncumbent upon the CISWI facility to determine whether combustion conditions can be adjusted to meet both standards and, if not, install add

- on NO X controls as necessary. Lastly, this is a limited reconsideration, and cost methodology is considered out of s cope to this rulemaking.



### 3E. Economic Impacts

Commenter Name: Edward J. Wilusz Commenter Affiliation: Wisconsin Paper Council Document Control Number: EPA

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Comment: Further, the proposed regulation of secondary materials as biomass

- based energy appears to be more stringent than regulations in place anywhere else in the world. This will create a competitive disadvantage for pulp and paper mills in Wisconsin and throughout the United States. Wisconsin has seen the closure of seven mills and the loss of 20,000 papermaking jobs in the past dozen years. Our state cannot afford further mill and job losses.
Response: See the Regulatory Impact Analysis: Standards of Performance for New Stationary Sources and E mission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units and the Final Reconsideration Compliance Cost Analyses for CISWI Units in the docket.

Commenter Name: Edward J. Wilusz Commenter Affiliation: Wisconsin Paper Council Document Control Number: EPA

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Comment: EPA must recognize that energy is a commodity and part of the raw materials used by industry to create products. By proposing standards th at are not achievable, EPA fails to take account of the energy marketplace and the competitive needs of U.S. manufacturers. Manufacturers need regulators to partner with them to maintain competitive

– and clean

– industries that can thrive in the future.
We urge EPA to make significant changes to the proposed CISWI rule, as well as the definition of non

- hazardous secondary materials and the industrial boiler MACT rule, that will result in achievable standards that protect the competitiveness of U.S. manufa cturers.
Response: EPA established the final CISWI standards consistent with the statute. Under the statute, EPA is required to establish the standards at a level that is achieved by the best performing source or sources and EPA does not have discretion to consider costs when establishing the minimum level of control, or MACT floor, which all of the CISWI limits reflect. See the Regulatory Impact Analysis: Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Co mmercial and Industrial Solid Waste Incineration Units and the Final Reconsideration Compliance Cost Analyses for CISWI Units in the docket.



### 3G. Secondary Impacts

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: Am erican Forest & Paper Association et al. Document Control Number: EPA

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Comment: If facilities with boilers, kilns, and incinerators burning solid waste cannot achieve the limits and cannot afford to install the multiple, costly controls required by this rule, they will stop burning these valuable secondary materials and many of thes e materials will be disposed in landfills, thus increasing greenhouse gas emissions and increasing our reliance on fossil fuels.299

This is not the intent of the Clean Air Act or the Resource Conservation and Recovery Act, nor is it consistent with the goals of the President and Congress in steering our country toward greater use of alternative fuels.
Response: EPA established the final standards consistent with the requirements of the CAA and sources must determine whether to install controls to comply with the final standards, cease combusting solid waste and comply with any otherwise applicable section 112 standards, or cease operations. The commenter has not demonstrated that the final standards are not achievable, instead focusing on the costs of complia nce. However, EPA is prohibited from considering costs when determining the minimum standards (i.e. MACT floor limit) for each pollutant, and all of the CISWI limits were established at the MACT floor level of control. The EPA has updated the estimated s econdary impacts associated with this rule based on the revised inventory of units and emission limits.

Commenter Name: Lisa P. Higgins Commenter Affiliation: Maine Department of Environmental Protection (DEP) Document Control Number: EPA

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- A2 Comment Excerpt Number: 2

Comment: The EPA and all states, including Maine, have goals to conserve resources and to maximize the diversion of materials from disposal. The Maine DEP is concerned that the effect of the proposed solid waste defin ition and CISWI standards will be diversion of pulp and paper mill sludge from its current combustion in boilers to disposal in landfills. Emission tests have shown no significant differences in emissions with or without the combustion of these residuals i n boilers. Dewatered sludge has net energy value as a usable form of fuel, and provides a valued source of energy to the mills. This material has been licensed by the Maine DEP as a boiler fuel for many years and received beneficial use determinations. The Maine DEP estimates that regulation of boilers combusting paper mill sludge under the CISWI standards will at least double the mills' landfill capacity needs. Increased landfilling of sludge will increase production of methane, a powerful greenhouse gas. Maine has aggressive statutory greenhouse gas emission reduction goals to eventually achieve 75 to 85 % reductions from 2003 levels. Increasing the landfill disposal rate of pulp and paper mill sludge, thereby increasing the production of methane gas, is counter

-

productive to this effort. Maine recommends that EPA categorically exempt boilers combusting Pulp and Paper mill sludge from the CISWI standards.
Response: The characterization of a secondary material as either a waste or non

- waste is beyond th e scope of the CISWI rulemaking. The CISWI regulations apply to units that combust solid wastes. To the extent that the units described by the commenter combust solid waste and meet the definition of a CISWI unit, they are subject to regulation under the CISWI rule. The
commenter primarily discussed issues that are being dealt with within the Identification of Non

Hazardous Secondary Materials That Are Solid Waste rulemaking ( NHSM ). To the extent that the commenter has provided these comments to that rule making, they will be addressed there. EPA established the final standards for CISWI units consistent with the requirements of the CAA and sources must determine whether to install controls to comply with the final standards, cease combusting solid waste an d comply with any otherwise applicable section 112 standards, or cease operations.300



### 3Z. Other

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA

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Comment: CEMEX b elieves that the public perception of our kilns being classed as “incinerators” under the CISWI rules will be perceived as negative, and is not a productive outcome of the rule applicability. CEMEX has worked with the local communities surrounding our faci lities and has built a positive public image. However, we are very concerned that could change should CEMEX’s kilns become known as incinerators, and we stand to lose the progress on community trust that is key to our operations. The emissions limitations contained in the CISWI regulations for waste burning kilns, and those found in the Portland cement NESHAP regulations are not significantly different. Regulating non

- hazardous waste burning kilns under the NESHAP instead of the CISWI rules will not result in any significant differences in the environmental impacts from the facilities. Therefore, CEMEX feels strongly that we should be allowed to remain known as cement plants regulated under PC NESHAP while fulfilling our commitment to sustainability by reduc ing CEMEX’s use of traditional fossil fuels and raw materials and emissions of CO 2 . Our cement plants in the U.S. do not want to be in the position of not being able to keep pace with our plants outside of the U.S. when it comes to implementing our corporate sustainability goals due to the possibility of misapplied regulation.
Respons e: The EPA has defined kiln to include cement kilns that produce clinker by heating limestone and other materials for the production of Portland Cement. Kilns that burn solid waste are therefore considered to be “waste

- burning kilns” subject to regulatio n under the CISWI rule. We disagree with the commenter’s assertion that CISWI regulations would be misapplied to cement kilns that are combusting solid wastes. CAA section 129(g)(1) defines any unit combusting any solid waste as a solid waste incineratio n unit, subject to 4 exemptions, and cement kilns combusting solid waste are not among the exempt units. Finally, any public image ramifications due to solid waste combustion in waste

- burning kilns are outside the scope of this regulation.



### 5F. Regulatory F lexibility Act as Amended by the Small Business Regulatory Enforcement Fairness Act (RFA) of 1996 SBREFA), 5 U.S.C. 601 et Seq.

Commenter Name: Dan Bosch Commenter Affiliation: National Federation of Independent Business (NFIB) Document Control Number: EPA

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Comment: Regulation affects small businesses in a substantially different way than it does large businesses. When a large business needs to comply with a new regulation, it designates its301

regulatory compliance officer

– or officers

– with the task. These individuals know their way around regulatory technicalities that most lay persons do not easily understand.

For the small

- business owner, there is no regulatory compliance officer. This burden falls squarely on the owner, who, more times than not, is responsible for everything from ordering inventory and hiring employees, to taking out the trash at the end of the day. And while they may be expert in their craft, comprehending regulations, formalizing plans for their implementation and filling out paperwork is an extremely burdensome exercise.
Even beyond the significant time regulations take away from a small

- business owner trying to make a living, the per

- employee cost of regulation is significantly greater for small businesses. The U.S. Small Business Administration’s Office of Advocacy released a study in 2010 that showed the smallest businesses

– those with fewer than 20 employees

– spend 36 percent more per employee per year complying with federal regulations 1 . Alarmingly, that disproportionality increases to 364 percent when it comes to environmental regulation. These findings do not suggest that all regulation is bad or unnecessary, but rather clearly demonstrate that agencies need to take extra care to make sure their regulations are well

- reasoned and flexible. Without such flexibility, the ability of small businesses to grow and create jobs is severely inhibited.
This regulatory scheme is among the most complex in recent memory and as such, the compliance burdens presented by these rules are vast. Small

- business owners will need to spend significant time to attempt to understand these rules, make expenditures to expensive consultants to bring the facility up to compliance, and greatly increase t he amount of time he or she spends on paperwork compliance. The result will have serious and harmful consequences for the small businesses forced to comply with these rules.

NFIB suggests that to improve these rules further, the EPA should adopt the sugge stions the small

- entity representatives provided the agency during the Small Business Advocacy Review ( SBAR ) panel held in 2009. Though some of these suggestions have been proposed, such as additional subcategories for boilers, other recommendations have n ot been proposed that we believe would lessen the compliance burden for small businesses. These recommendations include:
Allowing facilities meeting the SBA definition of a small business to have reduced and less frequent monitoring, testing and reporti ng requirements;
Allowing facilities to use work practice standards rather than emission limits for additional pollutants;
Adopting health

- based compliance options in areas where there is no significant risk to nearby residents;
Requiring annual b oiler tune

- ups as a way to improve boiler efficiency instead of emissions standards; and
Exempting area sources from Title V permitting requirements.
Response: To begin with, it appears that the commenter suggests recommendations that are applicable p rimarily to industrial boilers subject to the NESHAP. For CISWI, the EPA has302

estimated that the impacts of the final CISWI rule on small entities will be small. For further explanation, see Chapter 4 of the “ Regulatory Impact Analysis: Standards of Perfo rmance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units” in the CISWI docket.



### 7A. Applicability/Regulated Entities

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2265

– The definition of “small remote incinerator” relies upon both its size and its distance to the nearest municipal solid waste lan dfill. It is unclear if a small remote incinerator’s regulatory status would change if a municipal solid waste landfill were to be added within 25 miles of the source at some point in the future. This is disturbing and leads to regulatory uncertainty for t he source that could be avoided by selecting criteria that are within the control of the owner/operator.
Response: The commenter presents a situation but does not indicate if this is actually happening. We recognize the commenter’s concern and suggest tha t if such a situation should arise and a source feels that rule applicability regarding the appropriate subcategories is not clear, the owner/operator of the source can contact EPA and submit a formal applicability determination.



### 7B. Applicability of CISWI to marine vessel or outer continental shelf units (Denied Petition issue)

Commenter Name: Kate Williams Commenter Affiliation: Alaska Oil and Gas Association (AOGA) Document Control Number: EPA

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Commen t: We believe EPA violated the Clean Air Act by failing to clarify the applicability of the CISWI rule to incinerators on marine vessels and outer continental shelf ("OCS") sources, instead leaving the issue up to regions to decide. On this last issue, we emphasize that no incinerators operating on marine vessels or OCS sources were included in the MACT floor analysis for SRI units and we suspect that a separate subcategory will be warranted should data be collected. All of these issues should be addressed in the new final CISWI rule.
Response: See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.303

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA

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Comment: EPA must clarify whether the CISWI standards apply to temporary and portable man camps, marine vessels, and offshore sources. It is worth noting that, in rule development, these source categories were not considered.
Response: See the “CISWI Reconsideration Issues” memorandum, dated Dece mber 19, 2012, in the CISWI docket for further discussion.



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

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: Finally, we ask EPA to clarify the relationship between gasification and the definition of homogeneous wastes. As EPA recognized in the NHSM Rule, synthesis gas produced fr om a gasification process that meets EPA’s legitimacy criteria is not a waste. 76 Fed. Reg . at 15538 (noting that syntheses gas is processed). In addition, as discussed above, unless contained in a container, synthesis gas cannot be considered a waste. How ever, the preamble to the March 21, 2011, CISWI rule included troubling language that implied that synthesis gas would have to meet EPA’s definition of “homogeneous waste.” 76 Fed. Reg . at 15715 (“Gasification processes that incorporate clean up technologi es in the production of synthesis gas would generally result in a homogeneous product, however a consistent waste input would still be necessary to ensure a consistent emissions profile of the synthesis gas.”). This language is not included in the preamble to the December 23, 2011, CISWI Reconsideration rule. Please confirm that synthesis gas, and indeed any gas not contained in a container, is not a waste and does not need to meet any criteria applied to homogeneous waste.
Response: As noted in the preamb le to the final rule, we have included the definition of "contained gaseous material" from the 2000 CISWI rule in this final rule. We are also adding a definition of solid waste in the final rule that references the NHSM rule at 40 CFR part 241. EPA's p roposed reconsideration rule referred to the definition of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commercial and industrial solid waste incineration unit”, “energy recovery unit”, and “waste

- burning kiln”), but we did not include a stand

- alone definition of the term. We believe it is appropriate to include a definition for solid waste because only units combusting solid waste are subject to standards issued pursuant to section 129. The definitions of solid waste a nd contained gaseous material, taken together, mean that gaseous material is only a solid waste for purposes of CISWI if the material is in a container when the container is combusted. The owner/operator of the source can contact EPA and submit a formal a pplicability determination if it is uncertain whether combustion of a particular gaseous material triggers CISWI applicability.304

Commenter Name: William C. Allison Commenter Affiliation: Air Pollution Control Division Document Control Number: EPA

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Comment: The State suggests that the EPA revise its rules to exclude combustors designed to utilize biomass as a fuel or feedstock from the incinerator rules, CISWI and OSWI. 7 At a minimum, the State requests that the EPA be at least as lenient toward such units as it has been toward air curtain destructors.
The current rules discourage or are prohibitive to endeavors utilizing small combustion units to dispose of biomass while also making use of the energy and /or carbon content in the biomass. By subjecting these combustors to the strict standards in CISWI and OSWI , innovators are not able to overcome the costs of complying with the incinerator rules. Alternative methods of disposal for biomass, including dispo sal via landfill or open burning, are not regulated to the same extent and thus these options are less costly.
The State believes there is a potential environmental, public health, and safety benefit to combusting biomass in a contained setting, as opposed to biomass disposal in landfills or via open burning. A contained combustion unit promotes complete combustion while rendering fewer emissions, including visible emissions, than open burning. A contained combustion unit can also be utilized to maintain a controlled, oxygen

- deprived burn (i.e. via pyrolysis), where greenhouse emissions may be significantly reduced as much of the carbon is retained for use in agricultural or other industrial applications. These environmental benefits can be obtained while al lowing for the potential economic benefit of using the biomass as a resource rather than a
waste.
[Footnote : 7 i.e. pyrolysis units, for the disposal of beetle

- kill wood]
Response: We have added a definition of solid waste in the final rule that reference s the NHSM rule at 40 CFR part 241. EPA's proposed reconsideration rule referred to the definition of solid waste in the NHSM rule in multiple CISWI definitions (e.g. definitions of “commercial and industrial solid waste incineration unit”, “energy recove ry unit”, and “waste

- burning kiln”), but we did not include a stand

- alone definition of the term. We believe it is appropriate to include a definition for solid waste because only units combusting solid waste are subject to standards issued pursuant to se ction 129. From the description of the materials described by the commenter, we are unsure as to whether these materials would be considered to be solid waste to begin with (i.e., possibly clean cellulosic biomass). Furthermore, if the commenter believes its use of solid waste does not constitute combustion, it should contact EPA to discuss the matter or submit a request for an applicability determination.



### 7F. Portable incinerators are not accounted for in the rule or data (Denied Petition issue)

Commente r Name: Clint Gill Commenter Affiliation: ConocoPhillips Company305

Document Control Number: EPA

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Comment: EPA must clarify whether the CISWI standards apply to temporary and portable man camps, marine ve ssels, and offshore sources. It is worth noting that, in rule development, these source categories were not considered.
Response: See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.



### 7G. P rovide "temporary use" exemption

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and Industry Document Control Number: EPA

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Comment: EPA proposes to exempt temporary boilers, as was done in the final rule for major sources. We agree that temporary boilers should be exempted from both rules if they are to be exempted from any. However, we believe that the definition of temporary boiler s should include emergency use boilers or safety related boilers. Such consideration has been provided for other MACT source categories as IC engines. Further, EPA should clarify whether "temporary" means use for start

- up as well as back

- up purposes. Respo nse: The comment appears to be centered on proposed provisions to the industrial and commercial boiler NESHAPs, and not to CISWI. To the extent the commenter intends the comment to apply to CISWI energy recovery units, we disagree with providing such an exemption in the CISWI rule. To our knowledge, none of the units in the CISWI energy recovery unit population serve as emergency use boilers or safety related boilers that the commenter has concerns about.

Commenter Name: Clint Gill Commenter Affiliation : ConocoPhillips Company Document Control Number: EPA

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Comment: EPA must clarify whether the CISWI standards apply to temporary and portable man camps, marine vessels, and offshore sources. It is worth noting that, in rule development, these source categories were not considered.
Response: See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.306



### 7H. De

- minimis Size or Waste Amount Threshol ds

Commenter Name: Basil G. Constantelos Commenter Affiliation: Edison Mission Energy (EME) et al. Document Control Number: EPA

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Comment: EPA SHOULD ALLOW A DE MINIMIS EXEMPTION FROM TREATMENT AS AN I NCINERATOR FOR UNITS BURNING MATERIALS GENERATED IN THE NORMAL COURSE OF BOILER OPERATION

As EME noted in its petitions, EPA has a long history of de minimis authority, with the seminal case being Alabama Power Co. v. Costle

. 47 Both in its initial comments on the Solid Waste Rule proposal and in its petition for reconsideration, EME has noted EPA’s de minimis authority under a variety of statutes and circumstances. In the interests of brevity, EME will not repeat here its summary of EPA’s de minimis authori ty, but will instead incorporate by reference its petitions for reconsideration to the CISWI and Solid Waste Rules for the relevant case law summaries. EME simply notes that its initial comments on this issue under the Solid Waste Rule were not addressed, nor were either of EME’s petitions for reconsideration addressing the de minimis issue. Although courts have upheld similar exercises of EPA’s authority, and although EPA allows a similar de minimis exemption for other materials under the Solid Waste Rule, EPA has not addressed EME’s repeated comments and petitions on this issue.

A. EPA Allows Similar De Minimis Exemptions Under The Solid Waste Rule And Other Rules Under RCRA
EPA already uses its de minimis authority under RCRA , and, indeed, has applied it in the Solid Waste Rule. EPA allows a de minimis exemption for contaminants, including paper, insulation, and other items that may be included in construction wastes and demolition derived wood (“C&D wood”): C& D

- derived wood can contain de minimis amounts of contaminants and other materials provided it meets the legitimacy criterion for contaminant levels. 48 EPA has also applied its de minimis authority under RCRA in the hazardous waste context, allowing listed wastes to be discharged to a wastewater treatment facility as long as the total concentration of the chemicals does not exceed a certain threshold. 49 EPA allows similar exemptions from characterization as solid wastes for condensates derived from overhead gases from kraft mill steam strippers that are used to comply with 40 C.F.R. § 63.446(e) where the exemption applies only to combustion at the mill generating the condensates, 40 C.F.R. § 262.4(a)(16), or pulping liquors that are reclaimed in a pulping liq uor recovery furnace and then reused in the pulping process, 40 C.F.R. § 261.4(a)(6). One of the requirements under 40 C.F.R. § 63.446(e) is for the condensate to be treated so it is either managed in specified equipment or in a manner that ensures the HAP s are destroyed to specified levels. Similar requirements could be used in a de minimis exemption under Section 129 of the CAA , limiting any exemption to onsite materials that do not significantly impact emissions.
B. An Exemption For Materials Generated I n The Course Of Normal Boiler Operations Would Fit Squarely Within The Scope Of EPA’s De Minimis307

Authority

1. The Emissions Impacts Of An Exemption Would Be Trivial
Combusting and evaporating boiler cleaning wastes and other materials generated in the cour se of normal boiler operations is standard practice, and currently part of most electrical generating units’ air permits in North America. 50 Allowing this practice to continue would not increase emissions. Further, without a de minimis exemption, to mainta in their status as generators, not incinerators, generating unit operators would be required to transport cleaning wastes and other materials to an offsite disposal site, incurring additional expenses, generating more emissions in the process, creating pot ential safety issues associated with transportation of materials, and disposing of the wastes without necessarily destroying them. There is little to no environmental benefit to requiring alternative disposal of materials in control of the generator that h ave only a de minimis impact on emissions. The emissions impact from evaporating boiler cleaning materials, for example, is comparatively small and the resulting total variation in emission of pollutants from their combustion would likely be similar to tha t from normal variation resulting from differences in coal composition. 51 Emissions tests of the electrostatic precipitator outlet flue gas conducted by the Electric Power Research Institute (“EPRI”) during evaporation of boiler cleaning wastes showed no s tatistically significant increases in metal concentrations over baseline data. In addition, the concentrations of NO X , HCl, and HF present in the flue gas were also not statistically affected. 52 In monitoring studies conducted by EPRI on evaporation of boi ler cleaning wastes in utility boilers, chromium levels in the stack gas were 0.076 lb/hr at baseline vs. 0.080 lb/hr during evaporation. 53 Chromium is the metal typically of the highest concentration in boiler cleaning wastes and the boiler cleaning waste s are tested prior to combustion to ensure the concentrations are below the hazardous level. Results for other metals, PM, and trace organics were similarly low. 54 Water treatment resins are used to demineralize boiler feed water. Like home water softeners , utility

- scale water treatment resins are used to remove minerals and other compounds that would lead to scaling and clogging of boiler equipment. Although resins can be reused multiple times, they eventually become spent and can no longer effectively cyc le to capture minerals and release them, at which point they must be replaced. Resins typically have significant fuel value, and are relatively low in contaminants, as they are repeatedly flushed to remove mineral contents. Further, any contaminants they c ontain would be from the water supply, not the fuel supply, and thus with limited potential for hazardous materials to be included. Indeed, boiler cleaning wastes and other non

- hazardous materials have routinely been allowed to be evaporated in onsite util ity boilers because they do not appreciably increase emissions and thus pose minimal risk to the environment. As an example, EME provides the following permit condition, included in its Illinois facility air operating permits: The permittee is allowed to b urn boiler cleaning wastes only when the boiler is in a normal mode of operation and generating no less than 105 megawatts (gross). Burning of boiler cleaning wastes is not allowed during startup, shutdown, malfunction or breakdown. 55 Operating information submitted by the generating station to obtain the permit indicates that to ensure steady boiler operations, the maximum boiler cleaning waste feed rate to the boilers is up to 200 gpm depending on the size of the unit. 56 With respect to the volumes of ons ite generated materials such as boiler cleaning wastes that would be evaporated in the boilers, EME’s experience is that the waste volumes range from approximately 250 to 1835 tons per boiler per boiler cleaning event, but would only be fed to the boiler a t a rate of up to 0.8 tons per minute. 57 This contrasts with a total amount of coal burned on average in each boiler of between 1,420 and308

8,220 tons per day. The boiler cleaning frequency can vary from every two to ten years, depending on the type of boile r and the coal burned. Other materials generated include resins from water treatment; however, those materials are even more limited in amounts than the boiler cleaning wastes. Regardless, the annual amount of boiler cleaning wastes generated for each indi vidual boiler is relatively small

– a mere fraction of a percent on an annual basis

– even assuming boilers are cleaned every year, which they are not. The application of de minimis authority where emissions impacts are trivial is consistent with how court s have addressed the authority in the context of similar situations. Here a de minimis exemption for materials generated in the normal course of boiler operation would have minimal or no impact on the level of emissions. Since this does not affect the purp ose of the CAA, i.e. reducing emissions, allowing such an exemption would be a proper exercise of EPA’s de minimis authority.

2. Requiring Application Of Section 129 To De Minimis Amounts Of Secondary Materials Would Be A Mandate Of Pointless Expenditure

W hile the volumes of solvents are minuscule compared to the overall volume of fuel burned, the costs of the disposal for a boiler cleaning event can exceed $1 million per event in EME’s experience, and as a result the costs to the industry may exceed $50 mi llion per year. The amounts generated that would require offsite disposal are estimated at 125,100 tons per year. 58 This compares to annual coal burned of over 1 trillion tons per year. EME questions whether there is sufficient treatment capacity for this volume of material, which EPA may not have considered because the volumes and frequency of occurrence per facility are relatively low. As in Alabama Power , the flexibility to prevent these kinds of needless expenditures and unnecessary burdens are exactly the reasons that the courts originally applied de minimis exemptions. Given the trivial impact on emissions, the environmental and economic costs generated by treating generators as incinerators because of common utility practice is simply not justified. E ME requests that EPA apply its de minimis authority to prevent this unnecessary regulatory burden.

[Footnotes]
(47) 636 F.2d 323 (D.C. Cir. 1979).
(48) See 76 Fed. Reg. 15,487.
(49) See 40 C.F.R. 261.3 (a)(2)(iv)(F) and (G).
(50) See ELECTRIC POWER RESEAR CH INSTITUTE, GUIDELINES FOR CHEMICAL CLEANING OF CONVENTIONAL FOSSIL PLANT EQUIPMENT, 9

- 4 (2001).
(51) See ELECTRIC POWER RESEARCH INSTITUTE, BOILER CHEMICAL CLEANING WASTE MANAGEMENT MANUAL 3

- 6 (1992).
(52) Id. at 8

- 15.
(53) Id. at 8

- 16.
(54) Id.309

(55) EME’s IL station permits all include the same language, but this was taken from Crawford Unit 7’s permit. Crawford Unit 7, Crawford Electric Generating Station, Operating Permit, Special Condition 14 (June 25, 2001).
(56) Id.
(57) Assuming boiler cleaning wastes have the same density as water.
(58) Again assuming the density of boiler cleaning wastes is identical to water.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memoran dum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Jim Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA

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Co mment:

EPA Should Clarify that the Introduction of Waterside Boiler Chemical Cleaning Wastes into Utility Boilers is Not Combustion Triggering CISWI Standards

As USWAG has previously informed EPA, one routinely generated secondary material that is commonly manag ed by being evaporated in utility boilers is waterside boiler chemical cleaning waste. This secondary material is generated through the cleaning of metal deposits (primarily iron) that form inside metal tubing found in utility boilers. These deposits reduc e heat transfer and diminish the boiler’s efficiency. Over the long term, failure to regularly remove these deposits can result in the need to burn more primary fuel to generate the same amount of electricity. These deposits can also cause accelerated corr osion of tube surfaces and overheating resulting in tube failures and force outage of boilers. Utilities remove these deposits through the use of various types of chemical solvents (primarily organic and inorganic acids). Solvents are selected based on the composition of the tubing and the metal deposits targeted for removal. Utilities clean the boiler tubes on a regular but infrequent schedule ranging from every year to every fifteen years, but normally cleaning occurs every three to four years. The cleani ng process removes metal oxide deposits that form on the interior of the boiler tubes and the solvent solution used is subsequently flushed with demineralized water rinses. The solvent and rinses are collected in a series of connected tanks. The volumes of the aggregate can range from 35,000 gallons of water to more than a million gallons. The aggregate is composed almost exclusively of water. The cleaning chemicals used make up between .8 and 3.5 percentage of the aggregate. The aggregate is evaporated by being fed at rates that typically range from 20 to 80 gallons per minute into the boiler’s firebox simultaneously with the fossil fuels that are the normal fuel mix for the boiler. The aggregate mixture is fed at such low rates because the energy required to perform the evaporation of the water significantly lowers the efficiency and energy generated by the boiler. Under EPA’s framework for determining whether materials are being combusted, the310

key issue is whether light and heat is being generated from the introduction of secondary materials. While the mixture is being introduced into the boiler firebox which has a very high temperature, any secondary material that is at least 97 percent water will not yield light and heat. The water solution will be expect ed to quench the generation of any light and heat from any small portion of the wastewater material that might otherwise be independently combustible. Much like cement kiln dust introduced to the hot end of a cement kiln, the evaporation of boiler chemical cleaning waste requires significant energy reducing the efficiency of the boiler and cooling the flame. This material is not only essentially inert from a standpoint of combustion, but results in the use of significant energy to evaporate the material. Th e net heat impact of evaporating wastewater varies based on the injection rate and the efficiency of the boiler, but can require as much as 1.5 Million BTUsper minute.

While fossil fuels are combusted in the boiler firebox, a solution that is almost exclus ively water cannot be combusted to yield light and heat. Even if a small portion of the mixture consists of an organic solvent, this solution cannot be burned to yield light and heat. This situation is indistinguishable from the secondary materials used in cement kilns that contain low concentrations of carbon content. Accordingly, the introduction of this wastewater mixture should not trigger application of the CISWI rules on these boilers. This is especially apparent when evaluating the use of inorganic a cids ( e.g., hydrochloric acid) used to clean boiler tubing. When inorganic acids are used and then mixed with water rinsate and later injected into a boiler firebox, the resulting mixture contains no (or only trace) organic content that is theoretically

ca pable of combustion during to the evaporation process. The introduction of boiler chemical cleaning waste into utility boilers as described above does not result in combustion that yields heat and light. As such, utility boilers are not combusting a solid waste as identified in Clean Air Act § 129 (g)(1) and are not subject to CISWI emission and operational standards. We are seeking confirmation that our understanding is consistent with EPA’s interpretation of combustion as set forth the Federal Register no tice and interpretive memorandum issued to the Portland cement industry.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docke t for further discussion. To the extent the commenter asks about secondary materials used in combustion units other than cement kilns, we would advise the commenter to request consultation with EPA on the specific nature of the material and its intended u se in the combustion unit.

Commenter Name: Jim Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA

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Comment: EPA Should Clarify that the Introduction of Fireside Wastewater into Utility Boilers Does Not Trigger Application of CISWI Standards
Another secondary material that is managed in utility boilers are wastewaters associated with the fireside cleanings ( i. e ., originating as boiler blowdown and fireside boiler tubes). Typically, pure water with no solvents or other added chemicals is used to rinse out the interior of a boiler. The311

only secondary materials present in this wastewater are previously combusted m aterials from the fireside portion of utility boilers. Because these secondary materials have been exposed to high temperatures for extended periods of time, they are not expected to contain organics or measurable unburned carbon content. For certain types of boilers these wash waters are collected in sumps and tanks and then can be reintroduced into the boilers for evaporation. Much like the waterside chemical cleaning mixture, the fireside wastewater will not combust to yield heat and light. This material will require significant energy to evaporate reducing the boiler’s efficiency and cooling the flame. Like the waterside wastewater, this material is not being combusted (as that term has been identified by EPA) and does not trigger regulation of these boi lers as CISWI units. We are requesting an interpretation from EPA to this effect.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CI SWI docket for further discussion. To the extent the commenter asks about secondary materials used in combustion units other than cement kilns, we would advise the commenter to request consultation with EPA on the specific nature of the material and its in tended use in the combustion unit.

Commenter Name: Bart Sponseller Commenter Affiliation: Wisconsin DNR Document Control Number: EPA

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Comment: The Department believes that sources firing very small amo unts of solid waste or specifically identified wastes should be exempt from the CISWI MACT as long as the source is complying with its categorical MACT standard. For example municipalities or law enforcement may need to dispose of confiscated materials or drugs. Small hospitals, local clinics or dentists will generate small amounts of medical wastes. In both of these cases, when handled properly, the best approach may be to dispose of the material in an authorized and well controlled boiler. This alternat ive could avoid significant cost for communities while safely disposing of the material. We believe EPA could establish a process for such authorization. One criteria may be to restrict the quantity of material which can be fired in any given hour or day

. Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Ken Kanger Commenter Affili ation: Omaha Police Department Document Control Number: EPA

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Comment: In December 2009 the Omaha Police Department began using Ash Grove Cement Company, Louisville, NE to properly dispose of illegal nar cotics. Nebraska State Statute, 29

- 820 requires contraband to be destroyed when it is no longer needed as evidence. This has been a very beneficial relationship for the Omaha Police Department and to my understanding, several312

law enforcement agencies in th e region. We are tasked with the responsibility of removing illegal narcotics from the streets and out of our community. With that task comes the necessity to dispose of the items properly. This department has explored many options in order to find a solut ion that is allowable within EPA guidelines and cost efficient. For years Ash Grove has been the best option, as it is free of charge, in close proximity, and allowable under EPA guidelines. With the current state of the economy, the cost factor is even mo re of a consideration for our department. The service provided by Ash Grove is beneficial to the Omaha Police Department and more importantly, the service we are providing the citizens of Omaha. We would ask the EPA to strongly consider the addition of a s mall quantity exemption on the CISWI rule to allow this service to continue.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Lisa P. Higgins Commenter Affiliation: Maine Department of Environmental Protection (DEP) Document Control Number: EPA

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Comment: Both the Major Source Boi ler Rule and the Area Source Boiler Rule have a provision for small units which EPA has expanded. In the proposed Boiler rules, boilers are exempt from the rule if they meet the definition of a hot water heater.

Hot water heater means a closed vessel with a capacity of no more than 120 U.S. gallons in which water is heated by combustion of gaseous or liquid fuel and hot water is withdrawn for use external to the vessel. Hot water boilers (i.e., not generating steam) combusting gaseous or liquid fuel with a heat input capacity of less than 1.6 million Btu per hour are included in this definition.

Maine DEP believes that all boilers with a heat input capacity below 1.6 MMBtu/hr , regardless fuel type, should be be exempt from the CISWI standards and recommend t hat th e 1.6 MMBtu /hr threshold be a stand alone exemption.

Response: In Natural Resources Defense Council v. EPA, the Court held that the term “solid waste incineration unit” in CAA section 129(g)(1 ) “unambiguously include[s] among the incineration units subject to its standards any facility that combusts any commercial or industrial solid waste material at all

— subject to the four statutory exceptions identified [in CAA section 129(g)(1 )].” 489 F.3d 125 0, 1257

– 58 (D.C. Cir. 2007). Combustion units located at commercial or industrial facilities that combust solid waste as that term is defined in the Nonhazardous Solid Waste Definition Rulemaking may be subject to CISWI, unless the unit is expressly exempt pursuant to section 129(g)(1). EPA is establishing st andards for units at commercial or industrial facilities that meet the definition of “incinerators”, “energy recovery units”, “waste

- burning kilns”, or “small

- remote incinerators” in this final rule,313

and sources should consult the rule or their permitting authority to determine whether their combustion unit will be subject to the final standards issued today.

Commenter Name: Lisa P. Higgins Commenter Affiliation: Maine Department of Environmental Protection (DEP) Document Control Number: EPA

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Comment: Some mills in Maine receive treated municipal wastewater and landfill leachate in their wastewater treatment facilities. Maine recommends that EPA establish a de minimis level of 5% of annual municipal wast ewater flows that would allow for the processing of these wastes and the beneficial reuse (combustion) of the resulting sludge in properly licensed boilers through air quality and solid waste permits.
Response: EPA did not open this issue for comment in t he proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Lisa P. Higgins Commenter Affiliation: Maine Department of Environmental Protection (DEP) Document Control Number: EPA

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Comment: Maine supports EPA's proposal to categorically treat waste oil that meets the criteria outlined in 40 CFR 279.11 as a fuel. There are more than one hundred bo ilers in Maine licensed to combust waste oil as a fuel. However, many of these facilities blend off

- specification oil into

on

- specification waste oil, or they blend off

- specification oil with normal fuel oil to meet on

specification waste oil standards. Th e proposed CISWI standards contain no de minimis quantity for applicability. Many of our industrial facilities bum waste oil generated onsite, some of which may be off

- specification waste oil. These facilities are licensed to bum waste oil and are required to have controls such as scrubbers and electrostatic precipitators to do so. Therefore, EPA should allow a minimal amount of off

- specification waste oil to be burned in these boilers; Maine proposes EPA consider a limit restricting off

- specification waste oil combustion content to be less than 1% of an annual fuel input of a unit. Not creating a de minimis threshold for off

specification waste oil combustion in licensed units would increase the volume of waste oil that must be shipped to processing facilit ies. This would increase transportation emissions, and would likely increase the rates of improper disposal, spills, and resultant groundwater contamination. Units that bum residual oil are subject to less onerous standards under the proposed Area and Majo r Boiler Source MACT standards while that fuel type produces equivalent or higher HAP emissions than off

- specification waste oil.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.314



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

Commenter N ame: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: Under basic principles of due process and administrative law, EPA has an obligation to provide the public with a reasonable opportunity to comment on proposed rules. Specifically, Congress requires EPA to give the public “a reasonable period . . . of at least 30 days” in which to comment on “any regulation” promulgated under t he CAA. 9 By the clear terms of the CAA

, Congress indicates that 30 days is the minimum time necessary to give the public a reasonable opportunity to evaluate a proposed rule and provide adequate feedback to the Agency. Thus, a comment period meeting the st atutory 30

- day minimum would be reasonable for a single, ordinary proposed rule. Here, EPA has violated the clear terms of the CAA and deprived sources of a means to adequately protect their interests and rights in the administrative and judicial
processes by providing 60 days of comment for four complex interrelated rules. Under reconsideration, the rules are no less complex then when they were first proposed in June 2010. A 60

- day comment period is particularly inadequate given their complexity, breadth o f applicability, and economic impact. EPA has added data on reconsideration for 300 additional sources that must be reviewed and sources face the pressures of sorting complex data and developing thorough comments that address very technical issues. Althoug h EPA released the signed rule proposals almost one month prior to their publication in the Federal Register, it did not provide the majority of the supporting documentation for the proposed rules until publication on December 23, 2011, just two days befor e the holidays, effectively shortening the comment period. The four proposed rules under reconsideration make for an enormously broad and costly proposal, which would have a significant economic impact across numerous and diverse sectors of the US economy, with the boiler MACT rule alone imposing capital costs of more than $5 billion and affecting nearly 200,000 sources, according to EPA. 76 Fed. Reg. 80622. This economic impact alone, which CIBO estimates to be over $14 billion, 10 requires a comment period sufficient to ensure thorough consideration of the proposed rules. CIBO joined with 26 other entities and trade associations, representing tens of thousands of affected sources, to ask EPA to extend the comment period by 30 days and explaining in detail w hy the extra 30 days was needed and justified. 11 On February 14, 2011, just seven days before the comments were due, EPA denied the request. Sources have done the best under the circumstances to develop thoughtful comments on their concerns and the specifi c requests for comment EPA made in the four rules, and where necessary or appropriate, and where time permitted, to compile data to support its positions.

[Footnotes]
(9) 42 U.S.C. § 7607(h) (2006).
(10) How Costs Were Determined for CIBO Boiler MACT Study, January 2012, Appendix C.

(11) See January 18, 2011 letter of 27 organizations to EPA, Appendix D.315

Response: EPA provided 60 days for public comment, which is more than is required under the CAA . Section 307(h). EPA maintains that the comment peri od was sufficient.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: As EPA is well aware, the proposed rules have raised an unprecedented number of complex issues in determining the appropriate MACT floors for these very large, diverse source categories. The simultaneous proposal of the rules greatly complicates the analysis of whet her the standards can be achieved by affected sources. A large percentage of sources must first apply a complex set of factors under the NHSM rule to each material they combust, to determine whether EPA is likely to consider the material a waste or a fuel. If the materials would be considered solid waste , the source combusting those materials would be considered an incinerator , and it must then consider the applicability and achievability of the CISWI standards. On the other hand, if under the NHSM rule, th e materials are characterized as fuel , the source combusting those materials would be considered a boiler , and the source must then consider the applicability and potential achievability of the Boiler rule (for a major source) or Area Source rule (for a no n

- major source).
When EPA initially proposed these rules for comment on June 4, 2010, the Agency provided 60 days of comment. As multiple entities explained in letters to EPA then, 60 days is inadequate for sources to review voluminous data and EPA’s analy sis and to assess the achievability and impact of all four rules on the full range of affected sources at each facility.
In response to our request on the initial rule, EPA provided additional time for comments. Now on reconsideration, the rules are no les s complex, EPA has added data that must be reviewed for 300 additional sources, and sources face the same pressures of sorting complex data and developing thorough comments that address very technical issues. Although requesting a public hearing would have extended the comment period, we decided our time was better spent in developing comments. There is an extensive amount of data within the docket that takes many hours to sort through in order to produce comprehensive comments. Also, because EPA only allow ed a few weeks, during the holidays, for review of the four proposals before the hearing would have been held, there was effectively less time to sort data in advance of a hearing. We were doubtful that we could have produced enough specific information to have a meaningful discussion by that date. For all these reasons, rather than use a procedural tool to achieve an extension, we decided to seek, in a straightforward fashion, additional time to prepare comments.
Understanding that EPA has made public comm itments for an accelerated process to complete these rules, we only asked for 30 additional days for the Boiler MACT

, CISWI and NHSM rules. We did not expect to need additional time for comment on the Area Source rule. EPA has an obligation to provide the public with a reasonable opportunity to comment on proposed rules. We have identified many issues with the proposed rules, but the lack of an extension has resulted in less time to fully develop our arguments and detailed justification for each of our comm ents.316

Response: EPA provided 60 days for public comment, which is more than is required under the CAA . Section 307(h). EPA maintains that the comment period was sufficient.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ER C) Document Control Number: EPA

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Comment: In general, the Energy Recovery Council believes that the comment period was inadequate given the complexity, breadth of applicability, and economic impact of th e rules as proposed on December 23, 2011. The proposed rules are complex, driven by intensive data collection and calculation. While ERC joined other groups in requesting an extension of the deadline for public comments, EPA refused the extension request.
Sixty days is simply insufficient especially given that the rules were published immediately prior to the holidays.
Response: EPA provided 60 days for public comment, which is more than is required under the CAA . Section 307(h). EPA maintains that the co mment period was sufficient.



### 7P. Expansion of startup, shutdown and malfunction periods

- work practice standards for SSM (Denied Petition issue)

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: E PA

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Comment: PCA disagrees that emissions limits should apply during startup/shutdown events and requests that work practices address these operating periods: EPA should exempt kilns from emissions limit s during startup and shutdown and instead follow the compliance regime in the EGU NESHAP proposed rules which were finalized based on startup/shutdown workplace practices in lieu of numerical emissions limits. PCA recommends that EPA utilize the same
appr oach used by the industry for years in defining appropriate time periods for startup and shutdown by kilns subject to the hazardous waste combustor NESHAP . The definitions are based upon percentages of production (as the production is required to be ramped up, and ramped down due to critical system operations) rather than specific time periods.
In its May 20, 2011 administrative petition, PCA stated:
With respect to startup and shutdown, PCA continues to object to EPA 's approach for the reasons stated in i ts rulemaking comments, and notes that at least in the recent final NESHAP rules for cement kilns, EPA's final rule makes adjustments to the standards for startup and shutdown periods. 7 5 FR at 54991. While PCA does not agree with or endorse the specific

n umeric standards for startup and shutdown in the NESHAP rule (and in fact is challenging them317

in the currently pending D.C. Circuit litigation), PCA notes that EPA's approach shows that there are certainly rational ways on which to approach startup and shu tdown issues other than blindly applying the basic emission standards to such periods.
One such ''rational way" to approach startup and shutdown that PCA had suggested in its comments is for the rule to require "appropriate work practices" during SSM event s. See pp . 92

- 93 of PCA's August 23,2010 Comments (EPA

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comments on SSM issues in its initial final CISWI rule, EPA neither acknowledged nor responded to PCA's (or others') comments advocating the work practice a pproach. 76 Fed. Reg

. 15737

- 78.
EPA's failure to respond to these comments would of course render the final CISWI rule vulnerable on judicial review. As noted earlier, PCA and many other parties have judicial review petitions pending in the D.C. Circuit, which are being held in abeyance until EPA issues its revised CISWI rule. We therefore urge EPA in the context of this rulemaking to fully consider the work practice approach PCA and others had previously suggested. We urge EPA to include provisions for work practices that would apply during SSM events instead of the rule's emission standards.
It is important to point out that this is exactly what EPA has done for startups and shutdowns in a companion CAA rule proposed on the same day of the CISWI re pr oposal. In the so

- called "Boiler MACT " re

- proposal published at 76 Fed. Reg . at 80598, EPA 's proposed regulatory language in § 63.7500 provides that the rule's emission limitations "apply at all times, except during periods of startup and shutdown, during which time you must comply only with Table 3 to this subpart." (Emphasis added.) Proposed§ 63.7500 (e), 76 Fed. Reg . 80629.
And Table 3 specifies the following work practices that must be employed during periods of startup and shutdown:
You must employ good combustion practices and demonstrate that good combustion practices

ar e maintained by monitoring O 2 concentrations and optimizing those concentrations as specified by the boiler manufacturer; you must ensure that boiler operators are trained in startup and shutdown procedures, including maintenance and cleaning, safety, cont rol device startup, and procedures to minimize emissions; and you must maintain records during periods of startup and shutdown and include in your compliance reports the O 2 conditions/data for each event, length of startup/shutdown and reason for the star tup/shutdown (i.e., normal/ routine, problem/malfunction, outage).
There can be no rational basis for EPA to adopt this work practice approach in the Boiler MACT rule while refusing to apply it in the CISWI rules. Certainly EPA offers no such basis in its CISWI preamble, and we believe that the final CISWI rule would accordingly be vulnerable on judicial review for this unexplained disparate approach in two companion rules.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.318

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: The 2010 proposed CISWI rule required compliance with emission limitations at all times, including during startup, shutdown and malfunction ( SSM ). This is contrary to a long history of recognition by EP A and the courts that technology

- based requirements like those issued under CAA §§ 111 and 112 (and by extension, § 129) need to account for unavoidable excess emissions associated with SSM events. ACC and others urged EPA instead to use its statutory auth ority to establish emission standards based on work practices for SSM events. See, ACC Comments at 24

- 25, 43

- 46. EPA rejected these comments, and finalized its proposal. EPA provided the rationale for its action on startup and shutdown in the preamble to t he CISWI final rule as follows:

We concluded that CISWI units would be able to meet the emissions limitations during periods of startup because most units used natural gas or clean distillate oil to start their incinerators and only add waste after the incinerator has reached combustion temperatures. Id. We pr oposed that emissions from burning natural gas or distillate fuel oil would generally be significantly lower than from burning solid waste. Id . We further proposed that emissions during shutdown would also be generally significantly lower because the waste would be almost fully combusted before the unit began shutting down. Id. We proposed that these factors, in conjunction with the variability built into the MACT standards and the longer averaging periods, meant that sources would be able to comply with th e standards during periods of startup and shutdown. Id. 76 Fed. Reg

. at15737

- 38

.
EPA assumes that because CISWI units burn natural gas or distillate oil during periods of startup and shutdown (“SS”) it is technically feasible for these units to meet the st rict emissions standards established for periods of normal operation, which included emissions resulting from the burning of waste, during startup and shutdown. This assumption is flawed for several

reasons.
First, because CISWI units are burning fossil fu els, and not waste, during SS periods, they are no different than the combustion units covered by the major source and area source boiler rules. 2 In both of those rules, EPA determined that it was not feasible to require stack testing during SS periods due to physical limitations and the short duration of those periods and therefore used its authority to require work practice standards (compliance with the manufacturer‘s recommended procedures or procedures for a similar design) during periods of startup an d shutdown. See, §63.7530(h) (major source); and § 63.11201(b) (area source). 3 These same technical limitations apply to CISWI units during SS periods, and EPA has failed to explain in the Final Rule why these units should be treated differently than major and area source combustion units. As stated above, since ACC could not have known that EPA would finalize work practices for major/area sources during periods of startup and shutdown in those final rules, and then arbitrarily treat combustion units under CISWI differently, we believe the issue is ripe for reconsideration. In addition, in this proposed reconsideration of various CISWI provisions EPA has made a number of changes to the final CISWI rule that reintroduce the issue of SS and how those events s hould319

be regulated. We therefore believe it is appropriate for EPA to consider our additional comments on SS herein.

[Footnotes:]

2 National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boile rs, 76 Fed. Reg 15608 (March 21, 2011) and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers, 76 Fed. Reg . 15554 (March 21, 2011) (hereinafter major source boiler rule

or area sourc e boiler rule).

3 In the preamble to the final major source boiler rule, EPA states: ―Consistent with Sierra Club v. EPA , EPA has established standards in this final rule that apply at all times. In establishing the standards in this final rule, EPA has ta ken into account startup and shutdown periods and, for the reasons explained below, has established different standards for those periods. EPA has revised this final rule to require sources to meet a work practice standard, which requires following the

man ufacturer‘s recommended procedures for minimizing periods of startup and shutdown, for all subcategories of new and existing boilers and process heaters (that would otherwise be subject to numeric emission limits) during periods of startup and shutdown. .. . we considered whether performance testing, and therefore, enforcement of numeric emission limits, would be practicable during periods of startup and shutdown. EPA determined that it is not technically feasible to complete stack testing

— in particular, to repeat the multiple required test runs

— during periods of startup and shutdown due to physical limitations and the short duration of startup and shutdown periods. Therefore, we have established the separate work practice standard for periods of startup and shutdown. Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source‘s operations. 76 Fed. Reg . at 15613.]
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Clint Gill Commenter Affiliation: Cono coPhillips Company Document Control Number: EPA

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Comment: EPA violated §129 by excluding from its MACT floor calculations of SRI emissions during startup and shutdown periods. EPA does not have the neces sary data to support an emissions standard during startup and shutdowns so it is unlawful to do so. We provided data to EPA showing this in the attached petition. It is, however, lawful for EPA to set an appropriate work practice standard during SSM period s so we very strongly recommend that EPA do this

- as done with the major source boiler MACT at proposed section 63.7500(e). This comment is laid out in more detail in Attachment B of this letter.
Response: EPA did not open this issue for comment in the p roposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.320

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Contr ol Number: EPA

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Comment: As we set forth in Attachment 1 to our August 2011 Petition for Reconsideration (Docket OAR

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- 0119), when the CISWI emission limits are averaged in the same manner as the majo r source boiler rule limits, it is apparent that some of the CISWI limits are actually more stringent than the major source boiler rule limits for similar subcategories. EPA‘s assertion that CISWI sources could meet the emission limits during startup and s hutdown periods is unfounded and further disproved when comparing the stringency of the CISWI emission limits with those established for major sources in the final boiler rule. EPA concluded, and rightly so, that major source boilers could not meet emissio ns standards established for normal operations during periods of startup and shutdown. It stands to reason therefore that CISWI units, which like boilers burn fossil fuels during startup and shutdown, will not be able to meet numerical emission limits esta blished for normal operations that are even more stringent than the limits set for boilers. For all of these reasons we strongly urge EPA to establish work practice standards for CISWI units during periods of startup and shutdown. 4

[Footnote: 4 ACC also ad dresses the issue of startup and shutdown and proposed ways to define these periods in our comments on EPA’s proposed definition of “CEMS data during startup and shutdown.”]
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: The CISWI provisions for startup/shutdown (Subpart CCCC and DDDD ) should be revised to be similar to the provisions in the Boiler MACT rule (Subpart DDDDD ) and Area Source (Subpart JJJJJJ ). If a source is burning nonwaste , it should use gact standards, and ss provisions would apply. The startup/shutdown provisions in CISWI in §§ 60.2145(a)(1) and 60.2710(a)(1) continue to state "[t]he emission standards and operating requirements set forth in this subpart apply at all times.” 76 Fed. Reg . 80492, 80512. EPA provided a summary, insufficient response to this issue in its Response to Comments, simply referencing the preamble of the rule: We concluded that CISWI units would be able to meet the emis sions limitations during periods of startup because most units used natural gas or clean distillate oil to start their incinerators and only add waste after the incinerator has reached combustion temperatures. Id. We proposed that emissions from burning na tural gas or distillate fuel oil would generally be significantly lower than from burning solid waste. Id . We further proposed that emissions during shutdown would also be generally significantly lower because the waste would be almost fully combusted befo re the unit began shutting down. Id. We proposed that these factors, in321

conjunction with the variability built into the MACT standards and the longer averaging periods, meant that sources would be able to comply with the standards during periods of startup and shutdown. Id. For violations caused by malfunction events, EPA stated at proposal that we would consider relevant factors in determining the appropriate action to take. We have eliminated the SSM exemption in this rule. Consistent with Sierra Club v. EPA , EPA has established standards in this rule that apply at all times. 76 Fed. Reg. 15,737. As CIBO mentioned in its Petition, although CISWI units do typically utilize conventional fossil fuels for startup/shutdown periods, and that during those periods th ey do not fire waste, CISWI units are combustion devices that have similar operational characteristics and limitations as boilers and process heaters subject to Subparts DDDDD and JJJJJJ, even during startup and shutdown periods.
Response: EPA did not op en this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chem istry Council (ACC) Document Control Number: EPA

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Comment: The court in Sierra Club did not state that EPA must apply the same standards it establishes for normal operations during periods of SSM . The c ourt’s holding is clear that “some” § 112 standard must “govern” SSM events but it did not specify which § 112 standard. In this rulemaking, EPA concluded that the numeric emission limitations established for normal operations also must be attained during a malfunction event. However, EPA has provided no explanation as to why it believes that CISWI units reasonably could be expected to meet the emissions standards applicable to steady

- state operations during a malfunction event. EPA claims in the final CISW I rule that it “presents significant difficulties” to attribute malfunctions to a “best performing” source. 76 Fed. Reg. at 15737. To the contrary, it “presents significant difficulties” when EPA ignores the undisputed existence of malfunctions even at b est

performing sources, and claims falsely that the best

- performing sources “achieve” emission levels that they undisputedly do not and cannot achieve part of the time. Since EPA describes malfunctions as being sometimes unavoidable or “not reasonably pr eventable,” despite proper design and maintenance of equipment, id., there is no basis for EPA’s conclusion that malfunction events are not representative of best

- performing sources. True, one goal (although not “the goal”) “of best performing sources is to operate in such a way as to avoid malfunctions of their units.” Id. But that is all the more reason why EPA must acknowledge the fact that those sources nevertheless experience malfunction events, and look at how they minimize emissions during a malfun ction, rather than assume those emissions away. In failing to articulate the basis for its decision not to establish a § 111(h) work practice for malfunctions, the Agency also ignores the comments submitted by ACC and others on the 2010 proposal describing the error of EPA’s plan to ignore the effect of malfunctions on an achievable emission limitation and encouraging EPA to establish a work practice standard for malfunction events. 7 EPA’s affirmative defense approach to malfunctions is not reasoned decisi on

- making and we hope that the Agency’s “reconsideration” of its approach will prompt it to give reasonable consideration to322

the fact that a CISWI unit that has a malfunction is unlikely to achieve the same level of emission reductions that it achieved and can achieve while operating at steady

- state.
[Footnote: 7 76 Fed. Reg. at 15737. ACC believes that EPA’s recitation of the comments makes a compelling case for establishing emission limitations that recognize the effect of malfunctions, either directly or through establishment of a work practice standard, and ACC endorses those comments.]
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in th e CISWI docket for further discussion on work practice standards. Comments on affirmative defense provisions are addressed elsewhere within this document.

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIB O) Document Control Number: EPA

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Comment: EPA has determined that malfunctions should not have work practice standards and has instead provided for an affirmative defense. 76 Fed. Reg . 80,461. For the sa me reasons identified by CIBO in prior versions of this rulemaking, CIBO opposes this approach as not reasonable. Given that malfunctions are essentially the same as periods of startup and shutdown, work practice standards should also apply. As CIBO points out in its Petition, EPA recognizes in both the Boiler MACT and Area Source rule, “that it is not feasible to require stack testing

– in particular, to complete the multiple required test runs

– during periods of startup and shutdown due to physical limit ations and the short duration of startup and shutdown periods. Operating in startup and shutdown mode for sufficient time to conduct the required test runs could result in higher emissions than would otherwise occur.” 76 Fed. Reg . 15577, 15642. It is irrat ional to view malfunctions any differently than startup/shutdown periods. As such, EPA should establish work practice standards for malfunctions. The rule is unreasonable as it is and subjects sources to the risk of noncompliance especially given the fact that malfunctions are unavoidable and unpredictable. By treating a malfunctions as something other than an operating condition, EPA has inappropriately placed the burden on the source to prove that excess emissions were caused by a malfunction. Malfunction s clearly meet the Clean Air Act definition for work practice standards. CAA section 112(h). EPA should establish a work practice standard that requires predetermined malfunction plans with practices and procedures for potential malfunctions; require repor ting of any malfunctions; address any malfunctions not contemplated and add to the plan and address as appropriate.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion on work practice standards. Comments on affirmative defense provisions are addressed elsewhere within this document.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association323

Document Control Number: EPA

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Comment: Our first preference, consistent with the SSM Coalition comments, that EPA imposes work practices that would apply during periods of malfunctions in pl ace of the numeric emission limitations that the CISWI rule now provides. As the SSM Coalition notes by way of example, "there are work practices

- such as monitoring operating parameters to identify a malfunction and stopping or cutting back the process a ccordingly

- that represent the best practices for minimizing emissions during a malfunction." SSM Coalition Comments at p. 12.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: In the Boiler MACT rule, EPA had also proposed that standards apply at all times. However, in the final Boiler MACT rule, EPA responded differently to commenters’ objections. In the final rule EPA incorp orated a work practice standard in lieu of numerical limits for periods of startup and shutdown. The work practice standard requires sources to minimize periods of startup and shutdown following manufacturers’ recommended procedures.
Because EPA recognized the need to modify startup and shutdown provisions in the Boiler MACT , it would be arbitrary not to take the same approach in the CISWI rule. The very same equipment and combustion conditions (boiler, air pollution control equipment, fuel/waste characteristics) that prompted EPA to change startup and shutdown provisions in the Boiler MACT also exist with the units regulated under the CISWI rule. EPA even acknowledges in both rules that sources can alternate between being boilers and i ncinerators based on whether they burn “fuels” or “solid wastes”. Yet EPA gave no explanation why the change made in the Boiler MACT wasn’t considered an issue in the CISWI rule. Accordingly, EPA should make accommodations for startup and shutdown in the CISWI rule just as it has under the Boiler MACT

. EPA should expand definitions of “startup period” and “shutdown” in 40 CFR 60.2265 and 40 CFR 60.2875 to include time periods of non

- steady state operation after initial waste charging during startup and bef

ore auxiliary fuel firing during shutdown. Current definitions include only those periods when solid waste is not burning. These more limited definitions may have been appropriate for some categories which move seamlessly from auxiliary fuel to waste, but need to be changed to accommodate all units now included in the CISWI rule.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI do cket for further discussion. Also, we have expanded the provisions for uncorrected CEMS data during startup and shutdown and have discussed these changes in the preamble to the final324

rule. Furthermore, as discussed elsewhere, we have made revisions to som e of the operating parameter provisions to allow for adjustment during varying load conditions.

Commenter Name: Patricia Haederle Commenter Affiliation: American Chemistry Council (ACC) Document Control Number: EPA

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Comment: CAA § 129 (a)(2), which incorporates the same MACT standard setting requirements for solid waste incinerators as § 112(d), mandates that the emission standards be “achievable.” Moreover, if EPA sets the emission standards based on the “best performing 12% of units in the category” (the “ MACT floor”), those limitations must on average be “achieved” by the best performers. An emission limitation that applies during a malfunction event does not meet the requirement of § 129(a)(2) that “emission standards” under that section be “achievable”, if EPA has not demonstrated that the limitation is “achievable” with available technology, “taking into consideration the cost of achieving such emission reduction, and any

non

- air quality health a nd environmental impacts and energy requirements. Similarly, an emission limitation that applies during a malfunction event has not been demonstrated to be “achieved” by the best

- performing 12% of units in the category” unless EPA can show that those best performers actually meet that emission limitation during a malfunction. Similarly, § 111(a)(1), which also applies to emission standards under § 129, requires that any emission limitation be “achievable through the application of” emission reduction techn ology that “the Administrator determines has been adequately demonstrated.” EPA therefore must demonstrate that a numerical limitation, if it is to apply during a malfunction, is in fact achievable with available technology during such events. Based on our review of documents in the docket for this rulemaking it appears that EPA did not to consider any data identifying the level of HAP emissions that may result when a best performing source experiences a malfunction. EPA therefore has failed to show that em ission numeric emission limits that apply at all times reflect the reductions that are “achieved” by best performing sources during a malfunction. Despite the fact that EPA and the courts historically have recognized the inherent limits of technology based standards in promulgating standards under both the Clean Air Act and the Clean Water Act, in this rule EPA chooses to ignore the fact that, despite an owner/operator’s best efforts, technology sometimes fails and that even a best performing source could e xperience a malfunction. 6 Because EPA failed to consider the level of emissions that may result from a malfunction and incorporate that consideration in the numeric emission limitations, which apply at all times (other than during startup and shutdown), E PA’s actions are arbitrary and capricious and not in accordance with law. Furthermore, EPA’s failure to establish emissions standards consistent with §§ 111 and 129 of the CAA also raises the issue of denial of due process. By establishing standards that are not attainable “at all times”, EPA is subjecting thousands of CISWI units to potential penalties and worse for failing to comply with numeric emission standards that are unattainable during a malfunction. [Footnote: 6 See 40 C.F.R. § 60.8(c). For exam ple, the D.C. Circuit recognized, in Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 398 (D.C. Cir. 1973), a decision reviewing standards under CAA section 111, that “‘start

- up’ and ‘upset’ conditions due to plant or emission device malfunction, is an inescapable aspect of industrial life and that allowance must be made for such factors in the standards that are promulgated.” Id. at 399. Similarly, in Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 432 (D.C. Cir. 1973), cert.325

denied, 416 U.S. 969 (1974) , another section 111 case, the court held that SSM provisions are “necessary to preserve the reasonableness of the standards as a whole.” Id. at 433. In National Lime Ass’n v. EPA, 627 F.2d 416 (D.C. Cir. 1980), another case reviewing emission standards
p romulgated under CAA section 111, the court held that the CAA requirement that
NSPS be “achievable” means that the standards must be capable of being met “on a regular basis,” including “under most adverse circumstances which can reasonably be expected to recur,” including during periods of SSM. 627 F.2d at 431 n.46. See also Marathon Oil Co. v. EPA, 564 F.2d 1253, 1273

- 74 (9th Cir. 1977); NRDC v. EPA, 859 F.2d 156, 207

- 208 (D.C. Cir. 1988) (similar conclusion when considering analogous Clean Water Act requ irements).]
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Ted Michaels Comme nter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA

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Comment: EPA’s requirement that emission limitations apply at all times oversteps legal authority, and even if legal the pr oposed standards for startup and shutdown periods do not meet the achievability criteria of Section 129.
EPA states that emission standards apply at all times including during periods of startup, shutdown and malfunction ( SSM ). This position flows from a 2 008 court decision (Sierra Club v. EPA) related to General Provisions under 40 CFR Part 63. EPA has acknowledged that the Court’s decision did not specifically address category

- specific SSM provisions. The case also did not deal with Section 129. As such, we believe that EPA is over

- stepping its authority to void longstanding category

- specific and Section 129 SSM provisions.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memora ndum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Ted Michaels Commenter Affiliation: Energy Recovery Council (ERC) Document Control Number: EPA

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Comment: EPA’ s standards should allow States to set alternative mass emission rate standards applicable during SU/SD.
EPA should allow an alternative approach in which each State could address SU/SD emission standards in its State Implementation Plan (SIP). The SIP wou ld specify a procedure which would be used to set mass rate emission based standards for each subcategory and unit case

- by

case based on emissions reductions achieved using accepted SU/SD procedures. For example, for326

a unit using SNCR NO X reduction technol ogy the SU/SD NO X standard would be set considering the SNCR system would not be fully operable for a period of time after startup until the furnace temperature profile stabilizes. SU/SD emissions would be minimized by the same emission reduction technolog ies that would enable units to comply with all MACT standards and would thus represent a small component of a unit’s annual emissions. The case

- by

- case SU/SD emission limits would be written into facility permits and become federally enforceable mass emiss ion standards. The unit’s CEMS would be used to calculate and report mass emissions during SU/SD periods.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated Dece mber 19, 2012, in the CISWI docket for further discussion. Also, we have expanded the provisions for uncorrected CEMS data during startup and shutdown and have discussed these changes in the preamble to the final rule. Furthermore, as discussed elsewhere, we have made revisions to some of the operating parameter provisions to allow for adjustment during varying load cond itions. Taken together, these may address some of the commenter’s concerns on this issue. Finally, we note that the authority to approve alternatives to the emission limitations and operating limits, as the commenter suggests, may not be delegated to Stat e, local or tribal agencies, as specified in §60.2030(c).

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment E xcerpt Number: 31

Comment: We disagree with EPA’s unsupported assertions that the standards address startup and shutdown periods. Corrected (and even uncorrected) emission concentrations can be significantly higher during startup and shutdown due to the unavoidable less

- than

- optimal emissions control performance during transitional (non

- steady state) conditions. For example, at biomass ERUs combustion

- related emissions such as CO, particulate (smoke), and opacity increase during the startup period when lo ad and temperature are coming up to full load steady

state conditions. The Maine Department of Environmental Protection has stated “Wood and multi

- fueled boilers produce large CO variations during startups as the boiler heats up. Start

- ups can take up to 1 4 hours for some units. Shutdowns can also result in significant CO variability.” 14 EPA itself recognized in the Boiler MACT that “CEM data show that CO levels have a higher degree of variability than other pollutants” (76 Fed. Reg . 15646). It doesn’t matt er whether these units are being fired with biomass fuel or biomass solid waste

– the equipment involved is virtually identical and fuel combustion characteristic differences are minimal. Startup burners reduce emissions by preheating the combustion chambe r and downstream equipment but are not sized to achieve full load temperatures; even if they were, they could not completely avoid temporary sub

- optimal combustion conditions as heat load shifts from auxiliary fuel to waste during startup and from waste to auxiliary fuel during shutdown. Air pollution control equipment goes through similar transient temperature and flow conditions, e.g., changing furnace temperature and velocity profiles make SNCR systems less effective during startup than during full load steady state conditions. These conditions are distinct from the less variable conditions that occur during typical steady

- state operations. EPA’s emission database excludes these327

periods and therefore does not capture this component of variability, leading to MACT floors that have not been achieved in practice.
EPA should reconsider the standards that are applicable during startup and shutdown periods. EPA should include review CEMS and other data and conduct an engineering assessment of combustor and air p ollution control equipment practices to establish performance capabilities. If EPA cannot use best operating practices under Section 129 as it has under Section 112, then it should consider several options for separate and distinct startup and shutdown sta ndards including:
Uncorrected concentration standards that reflect actual performance (simply removing the oxygen correction as EPA has proposed to do in the reconsideration rule is not sufficient and does not reflect what CISWI ERUs achieve during start up);
Corrected concentration standards developed from data obtained during startup and shutdown periods with longer averaging times to accommodate short term swings; and
For existing units requiring State Implementation Plans (SIP), a process that sets case

- by

- case numerical mass

- based emission standards.

[Footnote: 14 Letter James P. Brooks, Bureau Director, State of Maine Bureau of Air Quality to James Eddinger

, USEPA , February 4, 2010.]
Response: EPA did not open this issue for comment in the propos ed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion. Also, we have expanded the provisions for uncorrected CEMS data during startup and shutdown and have discussed these changes in the preamble to the final rule. Furthermore, as discussed elsewhere, we have made revisions to some of the operating parameter provisions to allow for adjustment during varying load conditions.

Commenter Name: Mary Sullivan Douglas Comm enter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: NACAA agrees that a definition limiting the period of “startup” is appropriate. We recommend that such a definition be based on a percentage of the normal operating load of the unit as some sources may operate for extended periods of time at far less than the full rated capacity of the unit.

Response: EPA did not open this issue for comment in t he proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion. Also, we have expanded the provisions for uncorrected CEMS data during startup and shutdown and have discussed these changes in the preamble to the final rule. Furthermore, as discussed elsewhere, we have made revisions to some of the operating parameter provisions to allow for adjustment during varying load conditions.328



### 7Q. CISWI does not satisfy CAA 112 (c)(6) requirements (Denied Petition issue)

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: THE CISWI RULE DOES NOT SATISFY CLEAN AIR ACT § 112(C)(6).
As pointed out in the 2010 Comments and the Petition, EPA failed to set emission standards for polychlorinated biphenyls (PCBs) and polycyclic organic matter ( POM ). EPA has an obligation to set numerical emissions standards for all hazardous air pollutants emitted by sources subject to the CISWI Rule because EPA has counted source categories covered by the Rule toward meeting its obligations under section 112(c)(6). See Memorandum, Emissio n Standards for Meeting the Ninety Percent Requirement Under Section 112(c)(6) of the Clean Air Act, EPA

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- 0505 (February 18, 2011). Section 112(c)(6) expressly provides that EPA must “list categories and subcategories of sources assuring that so urces accounting for not less than 90 per
centum of each [enumerated] pollutant are subject to standards . . . .” 42 U.S.C. § 7412(c)(6) (emphasis added). EPA must therefore assure that a source category counted towards the (c)(6) ninety

- percent requiremen t is subject to standards for each hazardous air pollutant that a category emits. See National Lime Ass’n v. EPA , 233 F.3d 625, 634 (D.C. Cir. 2000); Mossville Environmental Action Network , 370 F.3d 1232, 1242 (D.C. Cir. 2004). Even if EPA were not required to set standards for all hazardous air pollutants emitted by CISWI sources

— which it is

— it would at least be required to set standards for the specific hazardous air pollutants enumerated in section 112(c)(6). EPA’s claim that it has satisfied its § 112(c)(6) obligations with respect to these pollutants by setting standards for other pollutants that “effectively” control PCBs and POM is legally irrelevant and arbitrary. The Clean Air Act d oes not authorize EPA to set surrogate standards for § 112(c)(6) pollutants. Even if it did, however, those surrogates would have to satisfy the well established test for valid surrogacy . Specifically, EPA must demonstrate that: 1) the target HAP is “invar iably” present in the surrogate pollutant; 2) methods to control or capture the surrogate pollutant “indiscriminately” control or capture the target HAP as well; and 3) the controls for the surrogate are the “only means” by which facilities “achieve” reduc tions of the target HAP

. Sierra Club v. EPA , 353 F.3d 976, 984 (D.C. Cir. 2004) (quoting National Lime

, 233 F.3d at 639). Neither dioxins nor CO satisfy this test as a surrogate for either PCBs or POM

. Specifically, neither PCBs nor POM is ever present in dioxins or CO. Accordingly, measures to reduce dioxin and CO emissions might actually produce increases in emissions of PCBs and POM . Moreover, controls on dioxins and CO are not the only means by which sources achieve reductions in PCBs and POM . In partic ular, although EPA seeks to rely on the combustion controls that units use to reduce CO emissions and add

- on technologies units use to reduce dioxin emissions, sources may “achieve” lower PCBs and POM emissions within the Clean Air Act’s meaning through ot her means such as burning different wastes or fuels. Accordingly, EPA’s claims that controls for dioxins and CO also control PCBs and POM do not suffice.329

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISW I Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.



### 7Z. Other

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: Rather than pursuing the NHSM

, CISWI and cement NESHAP rulemakings simultaneously as it is currently doing, EPA should be pursuing the three rulemakings sequentially: As EPA is well aware, the Agency is now under judic ial order to reconsider the
cement NESHAP rule it issued on September 9, 2010. 75 Fed. Reg . 54970 et seq

. EPA is also aware that, in PCA v. EPA (D.C. Cir. cases 10

- 1358, 10

- 1359, slip opinion issued December 9, 2011), the D.C. Circuit ruled that the formul ation of NESHAP and CISWI rules are "truly interdependent efforts.'' slip opinion at 10, and remanded the NESHAP rule to EPA so that the
cement NESHAP and pending CISWI rules can be formulated in a consistent manner. The key to achieving the court's obje ctive of a consistent formulation of the CISWI and cement NESHAP rules is clearly the outcome of the NHSM rulemaking. Indeed, the NHSM rule is of paramount importance to the outcome of the court's remand, because the sole demarcation line that can be dra wn between CISWI and NESHAP sources, which are "mutually exclusive," is whether a source is (or is not) combusting a "solid waste" defined under the NHSM rule. To that end, on January 5, 2012, PCA made such a recommendation to EPA Assistant Administrator M cCarthy with respect to the cement NESHAP . The reasons we cited in support are equally applicable here. Therefore, to avoid repeating the content of our January 5, 2012 1etter verbatim herein, a copy of our letter to Administrator McCarthy is included with these comments as Appendix B and is also incorporated by reference into these comments. 4

As that letter demonstrates, EPA cannot properly comply with the court's remand unles s it finalizes the NHSM rule before proceeding to finalize the NESHAP rule. For similar reasons, EPA would need to finalize the NHSM rule before finalizing the CISWI rule.
Response: We have not reopened this issue for reconsideration. We originally discus sed this issue in section V. of the preamble to the March 2011 final rule in our responses on comments on the CISWI Promulgation Schedule and 112(c)(6) obligations. Furthermore, EPA has considered the final definition of non

- hazardous solid waste in issuin g the final CISWI standards. As a result, we have revised the CISWI inventory but we have not changed our approach to setting the standards. For this reason, we maintain the public could fairly evaluate the CISWI rule and identify any concerns with the app roach taken. The fact that the standards may have changed as the result of a changed inventory, without a change in the analytical approach, is of no consequence. Standards often change after proposal based on the submission of additional information and w e see no substantive difference between that situation and the situation we have in this case.330

Commenter Name: Susan Bodine Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC) Document Control Number: EPA

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- A1 C omment Excerpt Number: 13

Comment: Section 129 of the Clean Air Act provides that a unit that is a commercial and industrial solid waste incinerator is subject to the CISWI Rule, and no other MACT standards. 42 U.S.C. 7429(h)(e). If a unit combusts solid waste, it is a CISWI unit. The NHSM Rule is intended to provide the basis for distinguishing between CISWI units and other combustion units by identifying what material is a solid waste when combusted. Unfortunately, the proposed revisions to the NHSM Rul e do not add the clarity and certainty needed to by both EPA and the regulated community to determine what units are CISWI units and what units are subject to other MACT standards.

As the D.C. Circuit Court of Appeals recently recognized, EPA cannot finali ze any MACT rule for combustion units without first identifying what units will be classified as CISWI units, based on the NHSM Rule. In the context of developing National Emission Standards for Hazardous Air Pollutants for Portland cement facilities based on the maximum achievable control technology (Portland Cement MACT ), EPA argued that it could finalize MACT standards for cement kilns based on its understanding of the universe of cement kilns subject to the MACT at the time of the rulemaking. 76 Fed. Re g . 28318, 28321 (May 17, 2011) (denying in part and granting in part petitions for reconsideration). In that rulemaking, EPA finalized the Portland Cement MACT in September 2010, six months before finalizing the NHSM Rule. Under the NHSM Rule, some units t hat had been considered units subject to the Portland Cement MACT became CISWI units. However, EPA included emissions data from those units when establishing the MACT standards for cement kilns. Granting the Portland Cement Association’s petition for revie w of those MACT standards, the D.C. Circuit stated: "Basing its decision on a premise [the premise that all kilns would be subject to the Portland Cement MACT ] the agency itself has already planned to disrupt is arbitrary and capricious." Portland Cement A ss’n v. EPA, Case No. 10

- 1358 (D.C. Cir. Dec. 9, 2011), slip op. at 13.

The same issue is presented by EPA’s development of both its CISWI standards and its Boiler MACT standards. EPA is once again changing the NHSM Rule and other MACT standards at the same time, "disrupting the premise," of what units fall into what categories. In fact, EPA not only "disrupts the premise," it adopts contradictory premises in these various rulemakings, rendering these rulemakings arbitrary and capriciou s. Specifically, in the NHSM Proposal, the premise adopted by EPA is that all NHSM is waste, unless a combustor makes a series of complex demonstrations and meets the record

- keeping requirements of the CISWI and Boiler MACT Rules. Proposed 40 C.F.R. 241.3 (establishing a presumption that material is a waste). In contrast, in the CISWI and Boiler MACT Proposals, the premise adopted by EPA is that most NHSMs are non

- wastes. This inconsistency threatens the validity of these MACT rules and undermines EPA’s abi lity to claim that its rules are based on reasoned decision

- making. See Portland Cement Ass’n v. EPA, slip op. at 15.

To avoid arbitrary and capricious rulemaking, the undersigned strongly urge EPA to complete final action on the NHSM Proposal before promu lgating the CISWI and Boiler MACT Rules331

and, in the NHSM rule, to presume that materials used as fuel or ingredients in combustion units

are non

- wastes or to categorically list as non

- waste all the fuels and ingredients used by units that EPA has determine d to be subject to the Boiler MACT , including all the categories of fuels and ingredients discussed above.

Response: For response, see DCN EPA

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Commenter Name: Michael Pelan Commenter Affiliation: Lafarge North Am erica Document Control Number: EPA

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Comment: Lafarge would like to comment on the procedural issues resulting from EPA’s approach to undertaking the NHSM and CISWI reconsideration rulemakings simultaneou sly. Revisions to the NHSM rule will have a direct effect on which materials combusted in cement kilns are solid wastes. Until the revision to the NHSM rule is completed, it is impossible for EPA to determine which cement kilns utilizing alternative fuels actually combust solid waste and which do not. Through the notice

- and

- comment process, EPA is obligated to seriously consider and evaluate comments and data submitted by parties. If this process is to have any meaning, EPA cannot responsibly pre

- determine its final resolution before the process runs its course. Without knowing which waste

- burning kilns combust solid waste, it is impossible to accurately derive MACT

- based floors emissions levels and establish CISWI standards. We note that EPA is now under ju dicial order to reconsider a third rule which inter

- locks with the CISWI and NHSM rules: the “National Emission Standards for Hazardous Air Pollutants” (“NESHAP”) rule EPA issued for Portland cement manufacturing on September 9, 2010. 75 Fed. Reg . 54970, e t seq

. Quite recently, in PCA v. EPA (D.C. Cir. cases 10

- 1358, 10

- 1359, slip opinion issued December 9, 2011), the D.C. Circuit unanimously ruled that the formulation of NESHAP and CISWI rules are “truly interdependent efforts.” (Slip opinion page 10.) The Court remanded the NESHAP rule to EPA to require that EPA formulate the NESHAP and pending CISWI rules in a consistent manner. The pending NHSM rule is of paramount importance to this e xercise, for the dividing line between “mutually exclusive” CISWI and NESHAP sources is drawn solely by whether a source is combusting a “solid waste” as defined in the NHSM rule. On January 5, 2012, PCA made such a recommendation and request, together wit h a discussion of the supporting reasons, to Assistant Administrator McCarthy. A copy of that letter is included with these comments as Appendix A. As that letter demonstrates, EPA cannot comply with the Court’s remand unless it finalizes the NHSM rule bef ore proceeding to finalize the NESHAP rule. (See page 2 of the attached letter.) Similarly, EPA would need to finalize the NHSM rule before it could finalize the CISWI rule.
Response: We do not agree with the commenter. For response, see DCN EPA

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Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 8332

Comment : We are very concerned that EPA is not leaving itself sufficient time to evaluate the substantive comments including new data, make appropriate revisions, and finalize within a couple of months after an important interagency review process. Cutting corne rs and rushing major rules such as these to the Federal Register greatly increases the chance of errors and oversights that would either make it vulnerable under court review or require further modifications after promulgation. That does not serve the publ ic or the Agency well.
Response: This comment requires no response.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA

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- A2 Comment Excerpt Number: 14

Comment: In the event that EPA continue s to regulate kilns that utilize non

- hazardous secondary materials as under CISWI

, CEMEX is concerned that there is still a lot of work to do on the overall CISWI regulation, not just those portions revised in the December 23, 2011 Federal Register. The ce ment industry has worked cooperatively with EPA to apply the hazardous waste incineration rules ( HWC NESHAP , proceeded by RCRA’s BIF rules) to a manufacturing industry which resulted in rules that at least contemplate the terminology and operations specifi c to our plants. That has not been an easy or quick process, but there are nearly 25 years of experience of working through these issues with EPA. This same process will be critical to embark on with EPA on the CISWI rule, as EPA has only so far requested comments on specific new portions/standards applicable to the newly drawn in industries. As a result we want to make sure EPA understands the work that will need to be done quickly to work through the rules to allow a manufacturer to be able to comply wit h rules written for incinerators.
Response: EPA understands that compliance with this final rule will take time and the Agency has extended to compliance date to provide sufficient time for the regulated community to come into compliance with the final r ule.



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

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: EPA has studied its approved reference testing methods for years and has amassed significant information about the performance of those methods. Based on this body of knowledge, EPA reports that, where the result of a test is near the detect ion level applied, most of its test procedures are accurate to within +/

- 50 percent; at other times EPA asserts that these tests are accurate to within +/

- 15 percent. Monitoring devices, such as CO monitors, must meet stringent requirements for drift and must be calibrated to within 2 percent of the full scale value of the expected emission level of the unit. The paired testing data and other data in the record of333

this case show that, especially at the better performing sources, the variability in Hg and other specific pollutants is quite low. Similarly, years of testing of pollution control devices found in this sector, such as PM controls (fabric filters and electrostatic precipitators (“ESP”), show highly consistent performance. Thus far, EPA has not fa ctored any of these facts into its determination of the performance of the best performing units. In order to evaluate whether EPA’s procedure for calculating variability is appropriate, one first has to examine what “variability” EPA is calculating and wh ether it is relevant under sections 112 or 129. EPA’s procedure involved determining the 99th percentile UPL of the difference in performance between all test runs for all units in the top 12 percent. This calculation improperly combines two factors: (1) t he inter

- unit difference between the “best performers” and “the best of the best performers” and (2) the expected variability in performance for each of the best

- performing units. EPA does not have the resources to evaluate each of these situations in deta il to determine whether the difference represented inherent variability in performance of the unit or is a consequence of factors (such as fuel composition or specific hardware design) that are within the control of the source, and so it simply, and incorr ectly, assumes that each of the units within the top 12 percent is identical and that all of the difference in performance is a “variability” in performance that is essentially random and therefore susceptible to statistical analysis. This can be addressed by normalizing the data so that one only examines the variability in performance. Replicate compliance method testing of the best performing units over a period of years and varying operating conditions would likely be the best method for determining whic h units are among the best performing units and for assessing the variability of the performance of such units. However, EPA does not have such information and development of this information is infeasible at this time. Moreover, EPA does not have sufficie nt data of any sort to make an accurate assessment of the variability of either individual units or subcategories with relatively limited data. As discussed earlier, the problem is readily apparent for new sources, where EPA’s attempts to determine the var iability in the performance of the “best” unit based on a single reference test clearly produce an incorrect result. This problem also exists in a large number of existing source subcategories where EPA has insufficient test data to apply its method. EPA h as acknowledged this problem and attempted to partially respond to it by using its “beyond the floor” MACT authority to raise the new source MACT limit to the level of the existing source MACT floor in 24 subcategories. While directionally correct, we beli eve it is unlikely that this will be found to be sufficient, since common sense and basic arithmetic demonstrate that the result is still wrong

– the performance of the “best” individual unit cannot be the same as the average of the larger group. Moreover, EPA does not make a similar adjustment to existing source MACT floors that are also based on limited data. NACAA recommends that EPA examine a number of additional options for assigning a variability factor, including a return to the philosophy underlying its 2004 determination of variability of performance. We provide more detailed recommendations later in this section. EPA compounds the error associated with attempting to employ its statistical procedures to extremely limited data sets by applying a ser ies of multipliers and alternate tests of variability. In most, but not all instances, EPA selects the test that leads to the least stringent MACT floor determination. Moreover, the basis for several key decisions respecting data management (discussed belo w) is not well supported. The lack of a consistent, reasoned basis for EPA’s choices creates a risk that the rule will be overturned and in some instances, the resulting floor calculation will be substantially different if other, equally reasonable, factor s are used in developing the final determination. We discuss a number of these issues in detail below, but the impact of EPA’s new statistical approach in categories with334

relatively small numbers of tests is clearly illustrated by the Hg limit EPA calculat ed for liquid

fired boilers. While these factors affect all of EPA’s MACT floor calculations, they are most apparent in the calculations for new sources, which, under EPA’s methodology, always involve single units with limited testing. The following discus sion sets out our best understanding of the relative impacts of several EPA choices on the overall effectiveness of the resulting MACT floor for other subcategories. We have included herein and attached as Appendix 1 a series of charts setting out EPA’s te st data as provided as appendices to its MACT floor memo for each unit, along with EPA’s proposed limit for the applicable subcategory. These charts provide a basis for the assessment of the effectiveness of the proposed limit. EPA’s appendices included on ly the “lowest test result” for a given unit rather than all test results. In most instances, the difference in effectiveness is minimal, as most sources were only tested once, so the “lowest test result” is also the highest test result. Where a significan t number of units were subjected to more than one test, we have also produced a chart including all test results for the top 12 percent to assist in gauging the effectiveness of the proposed limit. We encourage EPA to produce similar charts, including all test results, for all units for the rules it ultimately adopts.
Definition of “Best Performing Unit”
More than any other factor, EPA’s definition of “Best Performing Unit” leads to overestimates of performance of the best performing units. It creates a situation where units with high UPLs are designated as “best performing units” and displace better performing units in the “top 12 percent” category. EPA is obliged to base the existing source MACT floor on the performance of the “best performing units” an d has offered no plausible explanation for its decision.
EPA has used two (or three) different methods for establishing the “performance” of the average of the best

- performing 12 percent. In selecting the units to be included in the top 12 percent, EPA ass umed that the performance of those units was demonstrated by the best test result. Thereafter, in calculating the average of the selected units, EPA assumes that the performance of a selected unit is defined by all test results 6 available for that unit. EPA then multiplies these results by a fuel variability factor to establish the final number that it uses to calculate the floor. This fuel variability factor is also different for different units, and so, again, the unit with the lowest single test result is not necessarily the “best performer” as used in EPA’s calculations. NACAA believes that EPA should use either the best test result for both purposes or use the best average of all test results for both purposes. This use of in consistent definitions of performance has resulted in at least one MACT floor that is higher than it should be, as units with better average performance over all tests were excluded in favor of other units with a lower individual test result but higher ove rall emissions. We also believe that use of the average of all test results for an individual unit is an appropriate measure of the performance of that unit, provided that the subsequent analysis of variability does not then treat that average as a single test result. One way to address this issue may be to use the average of all test results to identify the best performing units in the calculation of the average of the top 12 percent, but then include all test results of the “best performers” in the determ ination of the potential variability of that average. 7 The identification of the “best performers” should take place after all of the variability adjustments have been made to the universe of “candidate best performers.” In this way the MACT floor would no t be artificially increased by the use of data from sources that are ultimately not the best performers within a subcategory.
The Upper Probability Limit (“UPL”)335

In the development of the 2004 rule for this sector, EPA determined the base performance level of the median unit in the top 12 percent and then applied a variability factor that was calculated on the average of the variance in performance for all units with similar pollution technologies. The U.S. Court of Appeals determined that EPA’s method for identifying the base performance level was inappropriate, but did not opine on the method for determining the variability factor. 8 In developing the 2010 final rule, EPA attempted to calculate the anticipated variation in performance of each of the units i n its “best performing” group on an individual unit or subcategory basis. Rather than simply determining the variance in performance, EPA chose to calculate the UPL of the best performing units, that is, the emission level that each unit in the top 12 perc ent could be expected to meet at a 99th percentile confidence level. EPA’s procedure also errs by attempting to determine the emission level that the bottom half of the top 12 percent will meet 99 percent of the time. However, EPA should not expect these u nits to meet the MACT floor limit since nominally half of the top 12 percent do not meet the average and therefore are not complying units. 9 The development of a compliance margin should be limited to an evaluation of the variability of the top 6 percent p erforming units under the compliance conditions imposed by the regulation.
Failure to Require Sufficiently Precise Testing and Subsequent Treatment of BDL Test Results
The first step in any scientifically sound measurement process is to ensure that the pr ocedures employed are sufficiently precise to determine meaningful differences. In response to questions from industry as to whether they should extend sampling periods to ensure more precise results, EPA advised them that they did not need to and that the agency would address it the final rulemaking. EPA defines the method detection limit as, "the minimum concentration of a substance that can be measured and reported with 99% confidence that the analyte concentration is greater than zero and is determined from analysis of a sample in a given matrix containing the analyte." Where the “adjusted” average emissions of the top 12 percent is “near” the method detection level, EPA now proposes 10 to increase the calculated average so that the floor is not less than 300 percent of the detection level. To justify this increase EPA observes that when measurements are near the detection level the measurement uncertainty can be as high as (+/

- ) 40 percent, while such uncertainty is reduced to (+/

- ) 15 percent if the meas ured value is three times (300 percent) the detection level. However, since such measurement uncertainties are necessarily part of the overall variability determined in step one of EPA’s procedure, there is no need or basis to substitute this arbitrary fig ure for the actual emission data that the statute requires be used. Additionally, it also makes no technical sense to introduce a known error of 300 percent in the MACT floor in order to avoid a possible error of 25 percent 11 in any individual measurement. This step constitutes yet one more bias in favor of allowing higher levels of HAP emissions. In this rulemaking EPA proposes to compound this error by “adjusting” the detection level reported by the laboratory in accordance with established protocols, eve n where EPA has no information that the detection levels reported by the laboratory are incorrect.
Pooling Variability
Pooled variance is a method for estimating variance given several different samples taken in different circumstances where the mean may vary between samples but the true variance (or precision) is assumed to remain the same. Under EPA’s revised UPL procedure, fuel analyses results are disaggregated from emission test results and further disaggregated by the number of336

unique sources. As a r esult, the method is highly sensitive to the number of tests and the number of units that are tested. However, in some subcategories the majority of the test and fuel analysis results were BDL and the detection limits for the emission test results are seve ral times lower than those for the fuel analyses. EPA’s pooled variance process generates high levels of variability, based largely on differences in the degree of precision of the measuring process and EPA’s treatment of BDL data (where the results are kn own to be less than the BDL). This leads to unreasonable results where the sample size is relatively small. In addition to generating unrealistic results for a broad array of new source subcategories, EPA’s proposed new statistical approach also appears to lead to results for PM and CO that are not consistent with the in

- use performance of units in a number of other subcategories with limited data.

[Footnotes:]

6 EPA includes all test results of “best performers” in its calculation of the MACT floor for ea ch subcategory. This effectively over weights the contribution of sources that have been tested multiple times compared to those that may have been tested only once.

7 This is not the same as using the 99th percentile UPL of the individual runs as a factor to multiply the average.

8 It did agree that EPA could apply a variability factor to take into account expected variation in performance of such units.

9 Those units in the top 12 percent, but with emission levels greater than the average of the top 12
perce nt (i.e., the 6th through 12th percent best performers), do not “comply.”

10 EPA employed this technique in the cement kiln New Source Performance Standard rule.

11 This is the difference between the potential error at the detection level and that at three times the detection level.]
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mi chael D. Stevens Commenter Affiliation: National Cement Company, Inc. Document Control Number: EPA

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Comment: For a number of the emissions limits proposed in Subparts CCCC and DDDD , EPA has based the li mitation on an analysis of stack test data, but compliance with the limit will be demonstrated based on monthly averaging of emissions, using a Continuous Emissions Monitoring System ( CEMS ). National understands that the variability in emissions performanc e that will be recorded using a CEMS is greater than the variability EPA has estimated in its analysis of stack test data. Further, this higher degree of variability has been demonstrated in CEMS data for Total Hydrocarbon (THC) and Particulate Matter (P M) that are now in the record for the PC NESHAP regulation. With this in mind, the proposed CISWI standards are more337

stringent than EPA intended under its current analysis. Therefore, National Cement asks that EPA revise upward all of the proposed standard s that are stack test data based but must be met with CEMS , to reflect the higher variability that is inherent in CEMS data.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” mem orandum, dated December 19, 2012 in the CISWI docket for further discussion.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: EPA has improperly based its floor analysis on individual test runs, rather than on complete stack tests (i.e., the average of 3 test runs), which are the basis on which the standards are stated and will be enforced: PCA argued in prior comments that EPA CI SWI data and associated floor analyses were inadequate and fell short of providing an accurate characterization of emissions from solid waste

- burning kilns. PCA suggested that EPA should restart the process of standards development. We note that in EPA's filings before the federal district court in December, 2010 (as discussed above), EPA essentially agreed with us. We thus urge EPA on reconsideration

- if in fact EPA proposes to include any cement kilns within the CISWI rule

- to propose an entirely new set of standards on an appropriate database consistent with PCA's comments attached and consistent with EPA's own statements before the federal district court.
Response: See the “CISWI Reconsideration Issues” memorandum, d ated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: EPA has “cherry picked” the best data in setting each standard, without regard for the sources from which the data come. The result is a set of standards that reflect the performance of a hypothetical set of best perfo rming sources that simultaneously achieve the greatest emission reductions for each and every pollutant rather than the actual performance of a set of top performers. A “source

- based” approach would result in emission limits that a real

world incinerator, kiln, or energy recovery unit could actually achieve.
Even if EPA rejects the source

- based approach, there are other adjustments to the standard setting process that would help improve achievability . Use of an upper limit (UL) instead of an upper predictiv e limit ( UPL ) or incorporation of a percent reduction standard are two options.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISW I docket for further discussion.338

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Commen t: Based on the data available to EPA, the Agency has projected that only 2 units will meet the CISWI limits for existing units:

1 of 26 solid ERUs
1 of 6 liquid ERUs

0 of 26 incinerators

0 of 14 small incinerators

0 of 23 kilns

This is clear evidence that the CISWI rules are unachievable and, therefore, unjustifiably stringent. EPA itself admits that this regulation will likely cause many units to cease operation due to the costs of controls required, that it will prevent the bui lding of new units, and that it will increase costs to many other units that have to substitute purchased fossil fuels for secondary materials currently burned as fuels. Such statements further demonstrate that the standards are unwarranted. The biggest pr oblem with EPA’s approach to setting the standards is that they are being set using a very small amount of data from a very small number of sources. For the incinerator subcategory, the reason a small number of units are being used to set the limits is tha t the existing standard caused many units to shutdown. The remaining units would have installed or improved controls in order to comply with the original CISWI standards, effectively resulting in the new limits being set based on the top performers among t he already top performers. None of these units, all of which comply with the current limits from the 2000 CISWI rule, comply with the revised limits.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Re consideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Nu mber: EPA

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Comment: EPA Should Adjust its Floor Setting Process
Section 129 of the Clean Air Act requires MACT standards for new and existing units to be based on “maximum degree of reduction in emissi ons” considering cost, and non

- air health and environment impacts and energy requirements. It also requires minimum standards that are at least as stringent as the emissions limitations achieved by best performing unit(s) in a category,339

commonly referred t o as “MACT floor limits.” In its CISWI rule proposal, EPA used a step

- by

step statistically

- based methodology to establish MACT floor limits for both new and existing units in each of four CISWI categories. Methodology steps included ranking units based on average performance as determined from EPA’s emissions database, selecting best performing unit(s), pooling test run data for the selected unit(s), characterizing the data as normally or log

normally distributed, and calculating an upper limit, all on a p ollutant

- by

- pollutant basis.

Commenters stated that the methodology EPA used was flawed, especially in light of EPA’s very limited database developed through its Information Collection Request, and that it resulted in overly stringent standards. This strin gency was evidenced by the fact that in each and every case, over 100 in all, EPA’s floor limit (the minimum standard) ultimately became the final standard despite EPA’s detailed assessment of beyond

- the

- floor options. Of central relevance was whether the methodology properly accounted for the full range of emissions variability. Commenters suggested many changes and corrections to the methodology and its implementation and encouraged EPA to ensure its floor limits reflected previously achieved standards.

I n the final rule EPA used the same basic approach and steps in setting the MACT floors as in the proposal, but made two changes

– 1) pooled data were judged log

- normally distributed unless conclusively demonstrated otherwise, and 2) units with more data we re adjusted to weight their influence on the pooled data calculations. EPA also employed its proposed alternate case upper predictive limit ( UPL ) instead of the base case upper limit (UL) to calculate the floors.
EPA’s methodology is still flawed. When cou pled with its very limited database, typically a single 3

- run test per pollutant for only some of the CISWI units, EPA’s rigid statistical approach has resulted in inconsistent, sometimes irrational, and economically challenging if not unachievable emissio n standards. EPA has a responsibility to obtain emissions data that represent the actual range and variability of operating conditions. It is not rational for EPA to turn a blind eye toward the inadequacy of the existing emissions data and unwarranted for the Agency to claim that the mere use of “available data” exonerates the Agency from obtaining additional data when needed to avoid facially implausible results. 6 These standards also encourage practices counter to EPA’s own solid waste management and ener gy policies. For example:
Existing biomass power plants combusting clean forest

- derived biomass and subject to Boiler MACT rules must meet a hydrogen chloride emission limit of 0.022 lb/ MMBTU , equivalent to about 17 ppmdv 77 . Add even small amounts of biomass of a type that EPA has now deemed “solid waste,” such as treated wood, to the fuel mix and the boiler becomes subject to CISWI Energy Recovery Unit ( ERU ) rules where the limit drops to 0.45 ppmdv 7 , 38 times more stringen t. The CISWI mercury limit is twice as stringent. On the other hand, the CISWI PM limits for coal and liquid ERUs are less stringent than all but one of the Boiler MACT coal and liquid subcategory PM limits. While we understand why there is not likely to b e perfect harmony between Boiler MACT and CISWI standards, the sheer magnitude of differences casts serious doubt on the viability of EPA’s floor

- setting methodology. MACT is after all a technology

driven standard and there is no fundamental difference bet ween the equipment or combustion properties of biomass

- to

- energy boilers subject to Boiler MACT and those subject to CISWI that would justify the radically diverse standards.340

In the above example, the exceedingly low CISWI hydrogen chloride and mercury limits, among others, will drive biomass power plants to abandon burning biomass “solid wastes” that would subject them to the CISWI standard or, due to economic constraints, cease operating altogether. This would result in landfilling of urban wood and la ndfilling or open burning of agricultural residues, in contradiction to EPA’s own Solid Waste Management Hierarchy, federal and state air pollution control programs, renewable energy policies, solid waste landfill “diversion” programs, and mandated permit requirements to generate emissions offsets from combusted biomass.

EPA’s CO standard for the new CISWI biomass category is based on a single 3

- hour test of the one unit identified as the best performer. The test consisted of three runs having identical r esults at 153 ppmdv 7 . In this case and for other CO floor limits EPA had adjusted any measured CO data below a calculated method detection level, which resulted in some higher values being used in floor calculations, but also resulted in lower variability (especially for new source floors), since the same value was utilized in all 3 runs for calculation of the UPL . EPA conducted its statistical analysis and set the limit at 160 ppmdv 7 , less than 5% above the average test result. It’s hard to understand how this limit reflects emission variability, especially since EPA itself recognizes that CO in particular is a variable pollutant stating “CEM data show that CO levels have a higher degree of variability than other pollutants” (76 Fed. Reg . 15646). Here and

e lsewhere EPA has applied its methodology to very limited data with seemingly no check on whether the resulting floor limit is rational.
Section 129 requires new units to meet standards which are equivalent to or more stringent than existing units, but EP A’s methodology resulted in CISWI MACT floors for new solid/biomass ERUs that were much less stringent for six of ten pollutants. EPA “fixed” this problem by lowering the new unit limits down to the level calculated for the existing units for these six pol lutants explaining in table footnotes: “The NSPS limit exceeds [i.e., is less stringent than] the EG limit. The EG limit was selected as the NSPS limit.” (76 Fed. Reg . 15710, 15726, 15727). This is a further example of application of statistics to a small database yielding irrational results.
Given these types of unusual outcomes and the apparent limitations of EPA’s database and methodology EPA should reconsider its CISWI MACT floor

- setting methodology. EPA must examine the reasonableness of derived MACT f loor limits, erring on the side of achievability ; otherwise, it risks setting standards that have not been achieved in practice, in contradiction to the law.

[Footnotes:

6 We note that, unlike § 112(d)(3)(A), EPA’s standard setting obligations under § 129 (a)(2) are not limited to sources “for which the Administrator has emissions information.” The lack of such a qualification in § 129 is a clear signal that EPA must actively seek to obtain comprehensive data on the sources covered by § 129 standards.

7 Par ts per million dry volume corrected to 7 percent oxygen.]341

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further d iscussion.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: Selection of upper limit value. In the final rule, EPA selected the 99th percentile upper predictive limit of the pooled best performer data as the MACT floor for each pollutant. To the lay person, 99% may sound like a very high compliance probability. T o the CISWI operator, however, it means a 1% probability of failure, per pollutant, per performance test and represents an unacceptable compliance risk with numerous attendant consequences. For a two unit facility and nine pollutant limits non

- compliance r isk of a single performance test is 1

- (0.99)18 = 17%, or approximately one failure every six years. In addition, setting the standard right at the selected upper limit does not allow for any compliance margin that every operator needs. For floors set using statistical metrics EPA should reconsider using a 99.9% upper limit as the MACT floor, as it did with the CO limit in the March 2011 Boiler MACT rule.
Upper Predictive Limit ( UPL ) versus Upper Limit (UL). In the final rule, EPA determined the MACT floor l imit for each pollutant using individual test runs and a UPL calculation. The UPL as a statistical tool is misapplied in this case and should not have been used. The UPL’s fundamental premise is that run

- to

- run performance test results are randomly distrib uted over the entire population distribution. EPA acknowledges this random premise (76 Fed. Reg . 15724), yet it provides no evidence supporting it. In fact, run

- to

- run results within performance tests at many CISWIs are not likely to be distributed randoml y across the entire distribution. Rather, each of the three runs conducted during a performance test reflects conditions affecting a unit’s emissions at the time of the test. Many of these conditions (e.g., waste characteristics, condition of combustor and air pollution control equipment, season of the year) are likely to remain the same or at least similar over the short duration (up to a few days) of a performance testing program. Results for individual runs in a short term performance test will therefore not vary randomly across the entire distribution of emissions that would be observed over longer (monthly or annual) time periods. Accordingly, when using the statistical approach to establish MACT floor limits EPA should use the UL, as originally propose d in the CISWI rule, instead of the UPL

. EPA’s upper limit (UL) and upper predictive limit ( UPL ) calculations do not properly account for both intra

- unit and inter

- unit variability. In its UL and UPL calculations EPA has used the square root of sample var iance instead of the total variance. By substituting sample variance for total variance EPA has not properly accounted for total variability. Total variability is the sum of both within (intra) and between (inter) unit variability. Inter

- unit variability i s an additive value because the variance in emissions from each of the top performing sources is independent of one another and dependent on each individual unit’s waste composition, combustor type, air pollution control type, test conditions and sample ma trix. Intra

- unit variability is the variability observed in test results from the same unit due to differences in waste composition, and process342

and air pollution control operation conditions during each test run. As such, if total variability is not addre ssed MACT floors will not represent limitations that can be achieved. Whether EPA uses the UPL or UL approach to determine MACT floors it should use the modified UPL or UL that accounts for total variance as used in the proposed Portland Cement Rule 8 and t he HWC MACT Rule 9 . EPA provided no rationale for why it did not use total variance instead of sample variance in the UPL or UL MACT limit calculations. Its response only addressed use of UPL

. The HWC MACT Rule estimated MACT floors that were achievable by the average of the best performing sources by using total sample variance.
The equation for the Modified UPL or UL that addresses total variance is:

UPL or UL = Mean + t √ VT

Where Mean is the average of the best performing MACT unit averages and VT is the total variance determined as the sum of the within (intra) source variance and the between (inter) source variance.

Total Variance of VT = VB + Vw
, Where VB is the variance of the average of the best performing unit averages. As described above VB is additive because the variance of each unit is independent of one another and dependent on individual units waste composition, combustor type, air polluti on control type and sample matrix affects when sampling. VW is the within or intra source variance and is calculated as the sum of the variances of individual runs within each of the best performing sources since individual unit test results will vary with waste composition, and process and air pollution control operation conditions during each test run.

[Footnotes:

8 Development of the MACT Floor for the Proposed NESHAP for Portland Cement, April 2009. EPA

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- 2011.

9 Technical Support Document for HWC MACT Standards, Volume III: Selection of MACT Standards. U.S. Environmental Protection Agency, Office of Solid Waste and Emergency Response. September 2005, Pages 7

- 5 to 7

- 7. EPA

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- 0453.]
Response: EPA did not open this issue for c omment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clea n Air Agencies (NACAA) Document Control Number: EPA

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Comment: EPA has proposed to use an array of calculations, adjustments and defaults to determine the new and existing MACT floors and has provided most of the calculations underlying its proposed floors. Our review of the detailed calculation process leads us to343

conclude that EPA’s approach is flawed in several significant respects and in almost every instance overstates the variability in emissions performance that is shown in EPA’s data set and other readily available information. These inflated calculations have resulted in the establishment of excessively lenient MACT floors. Ironically, for a few subcategories, EPA inexpl icably failed to provide any allowance for variability or arbitrarily assigned a variability that is far too low to account for expected operational differences in performance over time.
In light of the significant errors related to variability, NACAA stro ngly recommends that EPA revisit each of its MACT floor calculations, especially where the proposed floor is so lenient that a large majority of existing sources already meet the limit. We believe EPA has sufficient information available to EPA to correct the errors in its current proposal and issue a final rule on reconsideration in the next few months.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Commen t: Where EPA has data from testing at levels of precision sufficient to determine the actual variation in performance of a reasonably significant number of units, and where the agency’s approach to identifying the “best performing units” does not skew th e results too significantly, the resulting calculations lead to proposed limits that would lead to significant emission reductions from some of the highly polluting subcategories. However, where these factors are not present, EPA’s procedures and assumptio ns lead to gross overestimates of the variability in performance of the best performing units and proposed emission limits that are higher than current emissions. Such limits simply create testing and paperwork burdens without providing any public health b enefit. Moreover, these limits clearly do not meet the requirements of section 112 and are likely to lead to additional litigation that delays reduction in HAP emissions from the entire sector. No single factor is responsible for the EPA overestimates. In its comments on the 2010 proposal for this sector, NACAA identified several errors in the proposed EPA calculation methodology, including:
• use of inconsistent definitions of “best performing unit”;
• use of the Upper Probability Limit (“UPL”) statistical approach for units that are not expected under section 112 to currently meet a MACT floor, especially in data sets with small numbers of test results;
• treatment of “Below Detection Limit (“BDL”) emission test results; and
• creation of large numbers of subcategories with limited numbers of emission test results.
In the final rule EPA declined to correct the errors identified by NACAA and provided no explanation for its decision to persist in those errors. EPA did, however, revise its calculation344

procedur e, in response to comments from industry, and “pooled” the statistical variation shown by individual units. The public was not provided an opportunity to comment on this change, even though it led to a significant upward revision of a number of proposed li mits. On reconsideration of the final rule, EPA now proposes to retain the procedure used in the final rule and create additional subcategories for particulate matter (“PM”) emissions, which would cause very large increases in PM limits for a number of sub categories of sources. The magnitude of these errors is demonstrated by two key facts. First, EPA’s methodology results in a situation where, in a majority of EPA’s proposed subcategories, the calculated new source MACT floor (based on the best performing unit) is higher (less stringent) than that for existing sources (based on the average of the top 12 percent of units in the subcategory). Common sense and basic arithmetic provide that the rate of emissions of the “best” unit (i.e., the lowest emitter in the group) must be less than the average of that unit and the emission rates of a group whose emissions are higher. At a minimum, the procedure adopted by EPA must achieve this result.
Second, EPA’s methodology leads to emission limitations that are curren tly being met by almost all units subject to the regulation. This is inconsistent with the statutory requirement that the existing source MACT floor be set at the performance that reflects the 94th percentile (average of the top 12 percent) of the best per forming units. A determination of the variability of each of the sources in the top 12 percent is a worthwhile goal. However, the cost of conducting sufficient testing to do so reliably for each of the sources in the top 12 percent of each of the large num ber of subcategories that EPA proposes is too high for the benefit that would be achieved and would further delay issuance of final rules for several years. EPA did not design its test program with the subcategories it now proposes in mind and therefore di d not require testing of a sufficient number of sources within each of the subcategories it is proposing. Thus, not only does EPA not have sufficient data to determine the variability in the performance of each of the individual units in the group, in many instances it does not have sufficient data to reasonably apply statistics to the subgroup as a whole. In the most extreme instance EPA acknowledges that it does not have any data for mercury for one of its proposed subcategories. EPA also acknowledges tha t it does not have meaningful data for two of the regulated metals that should be included in its alternate total selected metals (“TSM”) limit in any of its proposed subcategories. We offer several suggestions below for potential methods of developing rea sonable estimates of the average variability of performance that one might anticipate from better performing units, rather than attempting to calculate the variability of performance of each individual unit where the data are not available to do so. We als o offer several suggestions to correct the larger sources of error in EPA’s approach.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in th e CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: EPA has rec ommended the use of the 99th percentile UPL of pre

- regulation testing and argued that its use is justified because the agency adopted the same approach in the medical waste incinerator MACT rule. This rationale does not explain why EPA believes the 99th
pe rcentile UPL is appropriate and not the 50th

, 15 90th or, for that matter the 99.99th percentile. 16 The decision matters because with each increase in the “guaranteed” compliance margin, the standard increases, and there comes a point where the compliance m argin is so great that sources can merely accept the risk of a failed compliance test rather than reduce emissions. If a source fails a compliance test it will ordinarily be afforded the opportunity for a retest and only if a source has a confirmed deficie ncy in its control equipment will a modification be ordered. We are unaware of any situation where a source that is willing to make such modifications as are necessary to meet an applicable limit has ever been ordered to permanently cease operation on the basis of a single failed stack test. In contrast, where an excessive compliance margin is provided emission standards can be ineffective. , The degree to which emission tests results can vary are not truly random, but are constrained by the laws of physics and chemistry and, in many instances, the performance of pollution control devices. EPA’s statistical analyses of the data show that, if the data were randomly distributed, there would be a substantial number of instances where emission rates are less tha n zero. We know that this is not possible and so the data are “skewed” to the right. One method used by statisticians to adjust for this form of distribution is to assume what is known as a log

- normal distribution. See Figure 1[see submittal for graph prov ided by commenter]. With the assumption of a log

- normal distribution, one then evaluates the distribution of the logarithm of the number rather than the number itself. EPA has employed this method in a number of instances. One feature of log

- normal distrib utions is that they have “tails” that become very long as the variance increases. That is, the difference between the mean and the value that represents the 90th percentile probability is much greater where one assumes a log

- normal distribution than otherw ise. However, we know that the emission rate of specific pollutants, such as mercury (“Hg”), can never be larger than the amount of Hg in the fuel and that emission rates are also influenced by the operational characteristics of installed pollution control devices. Yet, EPA’s calculations routinely predict results that are inconsistent with these facts. .They also lead to results, cited above, where the performance of the best performing unit is calculated to be worse than the average of the top 12 percent and where the calculated performance of the best units approximates the demonstrated performance of the worst units. These examples illustrate the point that in order to properly determine whether a particular statistical method is appropriate for a data s et, one must determine whether the results of the method employed make sense. We submit that EPA’s decision to use the 99 th percentile leads to unrealistically large calculated variations in performance of the best performing units, especially when assumed to be log

- normal and especially where the sample size is small so that relatively large variances are computed.
Fortunately, there are additional facts to help guide EPA’s determination of a standard compliance margin to be applied to all subcategories

– the compliance obligations and testing conditions that are imposed by the standard. An equitable balance is struck when the same conditions used to establish the compliance margin are thereafter used to set the compliance obligation (and vice versa). If a source is required to be regularly tested under conditions that represent the 99th percentile “worst

- case” conditions, then a 99th percentile compliance margin might well be appropriate. Additionally, a larger compliance margin is ordinarily appropriate fo r standards with short averaging periods and continuous emission monitors (“CEMs”) than for standards that have long averaging periods or where compliance is determined by scheduled346

stack tests conducted by the source. 17 We also agree with EPA that a large r compliance margin is warranted where the emission limit is at or near the detection limit of the reference method. EPA observes that standards are to be complied with “at all times,” but this is a truism that is not particularly helpful. 18 What are helpf ul are the provisions in the rules that set out the conditions under which compliance will be determined. In years past, facilities were to be tested under “reasonable worst case conditions.” Today, that standard has been reduced to “representative” condit ions

– a phrase that suggests that a compliance margin based on a 99th percentile projection 19 of possible emissions may be too large and that industry projections of severe test conditions may be overstated. Moreover, the structure of the compliance oblig ations itself suggests that the 99th percentile may be too stringent. The following factors, among others set out in the proposed rules, bear on a determination of the appropriate compliance margin:
1. For sources that intend to comply with mercury and hy drogen chloride (“HCl”) fuel sampling, the rules require that a source conduct a stack test and demonstrate compliance using 90th percentile worst

- case fuel (employing Student’s t

- test to determine that percentile);
2. For other purposes (e.g., PM and CO c ompliance), the source may select a “representative” operating condition (suggesting that neither a 90th percentile nor a 99th percentile worst

- case test is required for these pollutants);
3. A source whose emissions during a test are less than 75 percent of the applicable limit is entitled to a reduced frequency of stack testing (suggesting that EPA does not really believe that replicate testing of sources will vary by more than 33 percent);
4. Parametric operating limits may not generally be less effecti ve than demonstrated during the stack test (a useful provision, but also one that suggests that EPA believes that in

- use emissions variability is zero);
5. Many of the applicable standards and other requirements contain exclusions from full compliance at all times (e.g., six

- minute exclusion under opacity requirements, 5

- percent exclusion for bag leak detection systems);
6. Power (voltage or amperage) to electrostatic precipitators (“ESPs”) may not fall to less than 90 percent of that employed during a sta ck test 20 (for which we can think of no justification); and
7. Parametric limits are allowed to be based on the lowest (least effective) hourly parameters of the three runs of the compliance test. On its face this will not lead to compliance since it will be less than the average flow rate during the test. Moreover, such parametric limits do not provide any allowance for the variations employed in setting the standard. EPA should provide that the operating parameters be set at thelevels employed during the test run that yielded the lowest emission rate, plus some additional margin to account for in

- use variability.
While EPA may have used the 99th percentile UPL in one recent New Source Performance Standard (“NSPS”), in other NSPS rulemakings, such as the mercury limits under the utility NSPS 40 CFR Part 60, Subpart Da, 21 it has employed a 90th percentile statistical test (t

- test) coupled with the same test for the fuel

- sampling compliance demonstration.

[Footnotes:347

15 Civil enforcement of environmental sta ndards is based on a “preponderance of the evidence,” which merely requires that a violation be more likely than not (51st percentile).

16 Some in industry have argued that the levels should be set so that there is no significant probability that a facility would fail a compliance test at any point in its useful life.

17 We do not intend to suggest that there is widespread cheating during compliance testing. Our point is that the source has substantial prior notice of such tests and is in control of the opera ting conditions during the test.

18 EPA also asserts that the failure of a compliance test is not a violation of a standard until and unless some governmental authority agrees. We understand the reference in the context of the annual certification of compli ance (where EPA does not intend sources to have to “confess” to a violation of law), but not otherwise.

19 We understand that a 99th percentile UPL is not precisely the same as a 99th percentile worst

case condition, but the differences are extremely subtl e.

20 If power to the ESP falls below that employed during the test, PM control efficiency would be reduced. The amount of this reduction is presumably unit

- specific and so we can think of no justification for this provision.

21 See, Memorandum from Robert Wayland, OAQPS, to William Maxwell, OAQPS, “Revised new source performance standard (NSPS) statistical analysis for mercury emissions” (sic), May 31, 2006.]
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “C ISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: RECOMMENDATIONS CONCERNING CALCULATION OF THE MACT FLOOR
In the absence of sufficient data to make determinations of the variability of individual units and subcategories with limited dat a, EPA should develop a reasonable compliance margin to apply to the best

- complying sources. The underlying issues are sufficiently complex that, in the absence of truly comprehensive data, no single analysis will likely prove to be dispositive.

For this r eason we recommend that EPA perform a series of analyses and examine the central tendency of the results of those analyses. From these results EPA can establish one or more default variability factors to apply where the limited number of test results affec ts the calculation of variability in a given subcategory. One such group of analyses , but by no means the only approach that could prove useful, is to start with the most comprehensive data set to determine a348

broad “default” variability factor and examine more specific data sets to determine whether a more limited variability factor can be assigned based on the data available. 27 Such an approach could proceed as follows:
• Commence the process by identifying all units that may reasonably be found to be in t he top 12 percent. This might include the top 25

– 33 percent of units based on their mean test result and all units whose mean test emissions are within an order of magnitude of the best performing unit.
• Calculate the nominal “performance” of each unit; by summing the mean and one standard deviation 28 of the unit specific data.
• Average the performance of the top performing 12 percent, understanding that this is likely an overestimate, based on the low number of test runs for most units.
Since this appr oach is likely to overestimate the variability to some degree, the results of the first assessment should be considered an upper bound of potential MACT floors, EPA should then look to see if the variability of the broad group is less than that calculated above.
• Using the pool of “best performers” identified above, normalize the emission test results for all sources for which EPA has data, including those not in the top 12 percent and determine the average variability in the performance for the broad grou p. EPA could accomplish this by dividing the variance for each unit by the mean of the data for that unit and average the results, not the UPL. It has been argued that sources in the top 12 percent have less variability than the population at large and so this variance should be considered to represent an upper bound of a permissible variance.
• Repeat the above

- described analyses for the three basic subgroups

– solid, liquid and gas. This then would form a second set of possible default variability factors for the subgroups for which sufficient data are available. Since there are more tests available for the entire liquid

- fired set of units, it may prove possible to develop a separate variability factor for liquid

- fired units, which, while likely larger tha n that for the best performing units, is more accurate than that based on limited data for the best performing units.
• Repeat the above

- described analyses using data for the top best

- performing, 50 percent, 25 percent, 12 percent and 6 percent of the basi c subgroups. Employ these results if the average variance is less than that for the larger group or if it can be established that the calculated increase in variance is due to differences in performance and not the consequence of the reduced sample size. I teration in this fashion should identify a point where the reduction in sample size outweighs the improvements normally expected from better performing units.
• For purposes of determining the arithmetic average, results reported at a detection limit shoul d be employed as recorded, however, for purposes of determining variance such results should be excluded as they artificially reduce the variance.
• For purposes of determining the arithmetic average of the best performing top 12 percent, all test results should be employed to identify the best performers, not the best single result. This will increase the arithmetic average, but is a more reasonable estimate of the performance of units with multiple tests than the lowest single result currently employed by EPA.349

• Once the variance of the data has been determined, it should be applied to the arithmetic average of the top 12 percent, not to any unit in the data set. Consistent with most of the enforcement expectations, we recommend that it be applied at the 9 0th percentile level.
• For those subcategories where the data are sufficiently robust, a variability factor specific to the subcategory may be applied; for all others the applicable MACT floor would be the arithmetic average of the data for the subcategor y, as adjusted by the applicable default variability factor.
• Where a source or group of sources wishes to maintain that a different variability factor should apply, those parties should be responsible for providing sufficient data to develop a factor tha t is not dominated by the paucity of data.
• Additionally, EPA could determine the “normalized” variance for each unit where more than a certain number of tests (perhaps 10) are available and average those values.
EPA should examine the performance of simi lar units in the electric generating unit sector and other sectors and review relevant BACT and LAER determinations. EPA should also examine the overall distribution of the data set at issue to determine a reasonable variability factor. Where there are a l arge number of units with similar emission levels, a large variability adjustment should not be applied.
Where EPA determines that a source category’s emissions are highly variable over a short period (e.g., CO), EPA should consider longer averaging period s, such as 30

- day rolling averages, that reflect and accommodate this form of variability, while still preserving the environmental benefits the CAA contemplates. However, under no circumstances should 30

- day CEM

- based limits be higher than the correspondi ng reference method (three

- hour) limit. [Footnotes:

27 We have not conducted these sorts of analyses and have no way of anticipating their results.

28 It may be more appropriate to use Student’s t

- test at a similar level of confidence.]
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Neil Gorley Commenter Affiliation: Ear thjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: As described at length in the Petition, EPA’s approach to variability in setting MACT floors for the CISWI Rule is seriously flawed. Petition, Ex. 2, at 2

– 4. Those arguments are fully incorporated by reference herein. EPA does not propose any changes to its UPL methodology.
Response: EPA did not open this issue for comment in the proposed reconsidera tion rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.350

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Do cument Control Number: EPA

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Comment: As a practical matter, EPA’s inconsistent approach to identifying the best sources and measuring these sources’ performance substantially decreases the protectiveness of its standards.
By using different methods to identify sources as best performing on the one hand and to estimate these sources’ performance on the other, EPA selects sources with relatively high variation as the “best”

– even though these sources would not be labeled best if the agency ranked them under its own approach to measuring performance. Next, EPA uses that variability of performance in the sources it picked as best

– sources that necessarily have higher variability in performance than do the so urces that would be “best” under the agency’s own approach to measuring performance

– to inflate the floors. If EPA used a consistent approach to identifying the best sources and to estimating these sources’ performance, the standards would be far more
pro tective. If EPA selected as best the sources with the single lowest emission test and then

– consistent with that approach

– also measured sources’ performance based on their single lowest emissions test, its standards would be far more protective. Likewis e, if EPA identified the best sources based on its statistical analysis of all their emissions tests and

– consistent with that approach

– measured their performance the same way, its standards would be far more protective. Only by changing its measurement approach part way through the floor setting process does the agency arrive at floors that so greatly exceed the actual performance of the relevant best sources.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Darryl Sanderson Commenter Affiliation: The Dow Chemical Company Document Control Number: EPA

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Comment: [Regarding commenter’s statements about a unit that can meet all of the proposed limits except for NOx ] This type of outcome is also a direct result of EPA’s continued use of the pollutant

- by

- pollutant approach to determ ining emission standards. The continued cherry

picking of performance to create a maze of emission standards that few affected units, if any, can successfully navigate and remain economically viable ultimately results in the shutdown of operations. If EP A’s desire is not to eliminate industrial activity, Dow encourages EPA to use the discretion already allowed under the Clean Air Act and to abandon such an approach.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. S ee the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.351

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA

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Comment: EPA’s HAP by HAP approach to setting the MACT floor violates the Clean Air Act
The EPA ignored the record evidence of the performance of actual “sources” when establishing the suite of emissions limits. Instead, for each subcategory, the EPA set individual limits for each HAP that reflect the best performing source only for that indi vidual HAP . The EPA then combined the HAP limits into a suite of emissions standards for each subcategory. This methodology results in a combined set of standards reflecting purely hypothetical boilers that have never actually been achieved by any single, real world source, and possibly never will. Creating hypothetical “best performing” units that demand compliance with emission standards not achieved by any actual source in a subcategory (let alone the necessary 12% of sources for a true floor) is arbitra ry and capricious and violates the EPA’s statutory obligation to establish limits that are based on actual the performance of “sources.”
The proposed MACT standards for industrial boilers and process heaters are based on pollutant

by

- pollutant analyses tha t rely on a different set of best performing sources for each separate HAP standard. See, e.g., 76 Fed. Reg . at 15,621

- 23. In other words, the EPA “cherry picked” the best data in setting each standard, without regard for the sources from which the data ca me. This approach violates the language of § 112, which is focused on the performance of “sources,” and produces arbitrary and capricious standards.
The statute unambiguously directs the EPA to set standards based on the overall performance of

“ sources .”8 Sections 112(d)(1), (2), and (3) specify that emissions standards must be established based on the performance of “sources” “in practice” for the category or
subcategory and that the EPA’s discretion in setting standards for such units is limited to distin guishing among classes, types, and sizes of sources. In particular, Section 112(d)(3) emphasizes that the EPA must focus on what emissions reductions are achievable “in practice” for a “source,” using the word “source” no fewer than nine times.
These provi sions make clear that standards must be based on actual sources, and cannot be the product of pollutant

- by

- pollutant parsing which results in a set of composite standards that do not necessarily reflect the overall performance of any actual source. Congres s provided express limits on the EPA’s authority to parse units and sources for purposes of setting standards under § 112 and that express authority does not allow the EPA to “distinguish” units and sources by individual pollutant as is proposed in this ru le. Sierra Club v. EPA , 551 F.3d 1019, 1028 (D.C. Cir. 2008) (noting statutory limitations on EPA’s authority to distinguish sources).
Further, the EPA has calculated its proposed MACT floors solely on the basis of emission data. The EPA utterly ignored th e plain mandate of the Clean Air Act by entirely neglecting to determine whether there was emission control equipment in use in each subcategory that could actually achieve those inordinately strict emission limits, a critical and necessary analysis requir ed by the Clean Air Act.352

The EPA’s focus on individual HAPs has resulted in a failure to recognize the critical interplay between emissions controls and emissions of other pollutants. For example, the NAM is concerned that the controls necessary to meet th e stringent emissions limitations for CO will result in increased energy usage, with the concomitant increase in emissions of NOx and other pollutants. Further, the EPA failed to account for this interrelationship in its economic analysis.

[Footnotes]
(8) In the proposed CISWI rule, EPA similarly failed to follow the statutory mandate under Section 129 to examine the performance of “units.” For the reasons discussed above, the CISWI standards must be based on actual sources (“units”), and cannot be the prod uct of pollutant

- by

pollutant parsing.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commen ter Name: Roger Martella Commenter Affiliation: National Alliance of Forest Owners (NAFO) Document Control Number: EPA

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Comment: In order to properly reflect the health and climate benefits of biomass and provide proper incentives for the continued development of this important source of energy, EPA must make additional modifications beyond its current proposals. Therefore, we reiterate and incorporate herein our previous comments urging alternative and less stringent emissions limitations for biomass boilers and incinerator units. 28

First, we urge EPA to adopt health

- based compliance alternatives for HCl and manganese under section 112(d)(4) of the Clean Air Act in order to provide environmental health benefits while avoiding extreme costs to the industry. Biomass contains very small amounts of HCl and the proposed numerical standards will require expensive technological adjustments that provide very little benefit to public health or the environment. In addition, EPA has long recognized that manganese is emitted from many facilities in amounts that do not expose anyone in surrounding population to concentrations above the established health thresholds and therefore the emissions do not pose a significant risk to the surrounding population. 29 Providing an alternative health

based approach will ensure that high compliance costs are not imposed on the industry unless commensurate health benefits are provided.
Second, we urge EPA to adopt more reasonable emis sions limits for CO and PM that are less stringent and less costly, but still achieve statutory requirements. Again, the costs required to meet the proposed emissions limits are unreasonably high in comparison to the public health and environmental benefit s that will accrue. EPA can encourage, rather than discourage, the use of clean, renewable biomass fuels by imposing less stringent standards that will still comply with EPA’s statutory mandates under the Clean Air Act. Third, we urge EPA to focus on emis sions standards that can actually be achieved in practice by considering all relevant pollutant emissions together rather than adopting a pollutant

- by

- pollutant approach that ignores trade

- offs between353

emission control technologies and produces standards t hat cannot currently by met by any biomass boilers. EPA establishes the MACT floor for each source category by calculating the numerical average of the emissions from the best performing (lowest emitting) 12 percent of sources. By adopting a pollutant

- by

- p ollutant approach, EPA selects different sources as the best performing 12 percent for each pollutant and ignores the trade

- offs that inevitably occur when some emissions are minimized at the expense of others. When all of the MACT standards are evaluated together, they do not reflect the actual emissions of the best performing sources.

[Footnotes:

28 Id. at 7

- 11.

29 69 Fed. Reg . 55,218, 55,241 (Sept. 13, 2004).]
Response: This comment appears to address the industrial boiler NESHAP, not CISWI, to the extent the comment suggest adoption of a section 112(d) standard, To the extent the comment takes issue with the pollutant

- by

- pollutant approach for establishing standards, EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Paul Noe, Vice President for Public Polic y, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

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Comment: Pollutant

- by

- pollutant approach. This issue has been vetted in other forums, but it bea rs repeating the request here on the basis of legal arguments presented by multiple
commenters . EPA’s pollutant

- by

- pollutant approach has significant impact on the achievability of the CISWI standards. EPA should reconsider its pollutant

- by

- pollutant appro ach, instead using unit

- by

- unit composite performance to rank and select best performing unit(s), especially considering the fact that EPA’s database demonstrates that only 2 of 95 units have “achieved in practice” all of the final emission standards.
Resp onse: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Af

filiation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: EPA’s approach to “rounding” introduces an additional inappropriate bias to the calculation of MACT floors and should be revised to reflect technically correct rounding procedures and the requirements of the statute. In the calculation of the MACT floor, such as the application of calculated UPLs , EPA “rounded” the interim values and in each such instance rounded the values up. In most engineering calculations, rounding protocols provide for rounding354

down as well as up. Rounding ordinarily includes truncating the number of significant digits that are employed in a calculation and occurs at the end of the calculation process. EPA justifies its decision to only round up by asserting that to do otherwise would deprive sources of the “variability” cushion they were otherwise entitled to. Again, this ar gument ignores the public interest in reducing emissions of hazardous air pollutants, as well as normal engineering protocols. It would also seem to be contrary to written EPA policy concerning rounding for NSPS compliance purposes. 36 This policy, which ha s not been revised to our knowledge, adopts ASTM standard rounding protocols

– carry at least five significant digits throughout all intermediate calculations and employ ASTM Procedure E 380 (round down if less than 5; round up if greater than 5) for the f inal calculation. Where a MACT floor would otherwise be calculated at 2.27, it would seem that “rounding” a final standard to 3.00 would be technically unjustifiable and would not comply with the requirement of section 112 that the MACT standard be not les s stringent than the average of the top 12 percent. In the proposed calculations of MACT floors for CO for biomass sources EPA significantly alters the reported data to account for what it styles as “measurement span errors.”
This appears to be double coun ting of variability, since any random errors in the measurement system will be reflected in the variability of the resulting data. Moreover, the method relies on the highest reported values of computed errors rather than an average of those errors.

EPA has provided no rationale for selecting the maximum emission factor in a group of tests in developing its fuel variability factors. Other examples of an upward bias can be found in EPA’s calculation process 37 including: (1) exclusion of test results where the result provided is “zero” or “non

- detect,” but the detection limit is not provided, and (2) failure to include homogeneous waste material combusted by some biomass boilers in the fuel variability analysis (EPA argued that such data should be excluded beca use it is not a representative material for other boilers in the biomass subcategory).
EPA’s proposed standards are also highly sensitive to the decisions to exclude clean sources without sufficient basis and to retain highly variable results that are more properly treated as outliers. This is especially true in EPA’s ew source MACT floor calculations. By way of example, for one new source subcategory 38 , the source had been tested twice, for a total of six runs. Results from five of the six runs were low a nd consistent; but the results of the sixth run were 100 times greater than any of the other five runs. Since this result is outside the 99th percent confidence level of the rest of the data set, under EPA’s methodology it should have been excluded. EPA re tained this value and the result is an extremely high new source MACT floor calculation.

[Footnotes:

36 See, “Memorandum: Performance Test Calculation Guidelines”, William Laxton
, OAQPS , and John Seitz

, OAQPS

.

37 The rounding process employed by EPA can incr ease MACT floor results significantly. The other biases we mention are unlikely to have a large impact on the MACT floor. The use of log

normal statistical procedures may or may not result in lower MACT limits than would otherwise be the case, but is techn ically justified where nonnormal distributions are observed.355

38 Biomass Dutch Oven Filterable PM.]
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: NACAA believes that EPA’s proposal to establish emission limits to two significant digits is a step in the right direction, but recommends that those limits be set to three significant digits. No reason has been advanced by EPA for not doing so.
Response : See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion. Significant digits has been discussed in the June 2010 proposed rule notice.

Commenter Name: Neil Gorley Commenter Affiliation: Ear thjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: EPA persists in its unlawful approach to rounding. As explained in the Petition, the Act requires the MACT floor for existing sources to be set at a level “no less stringent” than the average of the best

- performing 12 percent of sources in a given subcategory. 42 U.S.C. § 7429(a). Rounding up the number in every instance means that the average is alwa ys higher than the emissions of the best performers. The Act requires that it be lower. The Act therefore requires EPA to round emissions limits down, or not at all. At the very least, EPA should follow a normal approach to rounding in which it maintains s everal significant digits and rounds up or down according to the first insignificant digit.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Satish Sheth Commenter Affiliation: Ce mex USA Document Control Number: EPA

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Comment: We believe EPA has worked hard and accomplished more achievable standards with the reconsideration, but 1) they aren’t necessary as cement kilns, regardles s of their use of NHSM , are adequately regulated by the PC NESHAP and do not require regulation under356

CISWI . In fact, there is no environmental benefit to the additional regulation under CISWI as the standards in the two regulations are nearly the same (se e above); and, 2) there are still significant issues, such as CO (which has been a long

- term cement industry issue in comparison to incinerators who monitor CO to demonstrate good combustion), D/F (per PCA’s comments, detection limits are still driving fla wed standards), and individual metals standards can be an issue. CEMEX brought these issues to EPA’s attention in a meeting with EPA at Research Triangle Park after the March 2011 regulations were published. That meeting was followed by additional phone c onversations. CEMEX is available to further meet on these topics.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.



### 8B. Non

- detect approach (Denied Petition issue)

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: In the proposed calculations of MACT floors for CO for biomass sources EPA significantly alters the reported data to account for what it styles as “measurement span errors.” This appears to be double counting of variability, since any ra ndom errors in the measurement system will be reflected in the variability of the resulting data. Moreover, the method relies on the highest reported values of computed errors rather than an average of those errors.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “Measurement Detection Capabilities for EPA for Instrumental Test Methods” memorandum dated April 10, 2012 in the CISWI docket for further discussion.

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: EPA also has failed to fix its flawed approach to non

- dete ction values, explained in the 2010 Comments and the Petition. 2010 Comments, Ex. 1, at 1

– 4; Petition, Ex. 2, at 3

– 4. Those arguments are hereby incorporated by reference. EPA does, however, solicit comment on whether it should select a lower quantificatio n boundary for pollutants the emissions of which are lower than detection limits for the best sources. EPA should. Currently, EPA uses the highest detection limit reported for each pollutant by any of the reporting laboratories, rather than just those used by the best performing source or sources, discarding as “outliers” only those detection limits above the average emissions value for the category as a whole. This approach sets the floor

— which is required to be “no less stringent” than the performance of the best sources

— based on an a detection level that is indisputably higher than the detection level

— and thus the357

emissions

— of the best sources. This is contrary to the Act and arbitrary. EPA should set emissions limits for these pollutants at the lowest no n

- detect level, not the highest.
Response: Although we are denying reconsideration on this methodology (See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket), we will elaborate some here to address the commenter’ s concerns on this process.

During the data collection request, we specified sampling times and/or volumes where appropriate. These times/volumes were calculated to provide reasonable assurance of detecting compounds that were present. EPA manual testing methods are designed to be conducted over an hour of sampling, but may be conducted with extended testing times to collect additional sample volume and provide for increased measurement sensitivity. Our guidance to ICR respondents for reporting pollutan t emissions used to support floor development has been to require them to provide test

- specific method detection limit ( MDL ) values in the reports. Also, in accordance with our guidance, source owners are to identify emissions data which were measured belo w the MDL and report those values as equal to the MDL determined for that test. This is done to provide for minimum pollutant concentrations when evaluating the emission floor, o therwise the measured concentration values as reported in the testing were use d in calculating the floor.

Not all test reports that include instrumental test method data included test

- specific MDL values. In cases where the report does not include test

- specific MDL data measured with an instrumental test method, the test

- specific MD L values were determined using the reported calibration span values.

The EPA accounted for the effect of measurement imprecision in calculating a floor using a database that includes reported MDL data by first defining an MDL value that is representative of all the data to be used in establishing the floor or emissions limit. This value is termed the representative method detection limit ( RDL ). The second step in the process was to calculate three times the RDL and compare that value to the calculated fl oor or emissions limit. The value of 3 x RDL is necessary to gauge the performance test methods’ level of quantitation , or that point at which the test method begins to return values within expected levels of confidence. The EPA recognizes that values be tween the method detection limit and the level of quantitation have more uncertainty than values at or above the level of quantitation , therefore we make this determination to provide a value to the floor setting decision process that describes the level o f quantitation for the compliance determination method. If 3x RDL was less than the calculated floor or emissions limit calculated from the upper prediction limit ( UPL ), we concluded that measurement variability was adequately addressed and the calculated f loor or emissions limit was not adjusted. If, on the other hand, the value equal to 3x RDL was greater than the floor value or emission limit, we concluded that the calculated floor or emission limit does not account entirely for measurement uncertainty, a nd the value equal to 3x RDL was substituted for the adjusted floor or emissions limit (i.e., increasing the floor to be equal to 3x RDL ). This adjusted value ensures measurement uncertainty is adequately addressed in the floor or the emissions limit and that the test method used to determine compliance with the emission standard will be appropriate for quantitative determination of emissions concentrations at, and above, the level of the emission standard.358

We note that in the proposal preamble (76 FR 8046 3) we were intending to solicit comment on other commenter’s suggestions of selecting a dioxin/furan limit of 0.3 ng/dscm as a minimum value. We realize that our preamble language reads more generally to any emission limit. Considering the discussion abov e, and in response to this, we are not selecting the 0.3 ng/dscm limit or any other lower limits that are below levels that may be quantitatively determined.



### 8C. Small remote incinerator emission limits/achievability/costs/impacts on wildlife (Denied Pet ition issue)

Commenter Name: Alice Edwards, Director, Division of Air Quality Commenter Affiliation: Department of Environmental Conservation, State of Alaska Document Control Number: EPA

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Comment: ADE C acknowledges that in this proposed rule, EPA responded to the petition for reconsideration submitted by the Alaska Oil and Gas Association ( AOGA ) and the Alaska Miners Association (AMA) on May 20, 2011. The AOGA /AMA reconsideration request focused on Mar ch 2011 rule provisions related to small, remote incinerators and whether the requirements were achievable for Alaskan incinerators within that subcategory. In this proposal, EPA made no major changes to the emission standards for small, remote incinerator s. However, EPA did request additional data to support the need to revise the standards and requested comment on the need to extend the compliance date for this subcategory.

ADEC remains concerned about the ability of Alaska’s small remote incinerators to meet the emission standards. These incinerators are critically important to the management of solid waste in Alaska. Incineration is currently the preferred waste management alternative in remote areas of Alaska because it minimizes attraction of wildlife to facilities. Access to landfills is difficult in remote locations due to lack of road access, and in many cases, landfill space is limited. Landfill management in remote Alaska is very challenging, particularly for villages with limited resources; theref

ore, waste minimization via incineration for wastes generated in rural Alaska, either from villages or from remote camps is essential. If incinerators cannot viably meet the new EPA requirements, more waste would need to be stored on site and then backhaul ed via air or water increasing operational costs and potentially increasing interactions with animals.

ADEC appreciates the opportunity EPA is providing in the proposed rule to submit additional information on small remote incinerators in support of the ne ed to revise the emission standards for this subcategory

. ADEC understands that EPA has been in dialogue with Alaskan small incinerator operators and encourages EPA to continue that effort to obtain and evaluate additional data from Alaskan sources that co uld result in final emission standards that are both achievable and protective of air quality and public health.
Response: We note that no emissions test data was submitted for us to consider. Regarding other issues applicabile to small remote incinerator s, see the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.359

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA

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Comment: Our incinerators are located within the Kuparuk and Alpine oil fields, the latter of which is inaccessible by road except for 3 months of the year when roads may be constructed of ice.

The incinerators and their emissions are summarized in the table below. [See submittal for table of NO X , SO 2 , and CO emissions provided by commenter ]
The proposed CISWI rule would impose on each of these four very small units, the following minimum compliance obligations:

• 11 emission limits , one of which we know we cannot comply given existing configuration (CO), one of which we have no data to tell whether compliance is achievable (dioxins/ furan

– toxic equivalency basis), and several that we may not comply with if given a waste stream diff erent than that burned on the date of the §114 testing or during startups, shutdowns, or malfunctions;
• Annual source testing to demonstrate compliance with all of these 11 emission limits;
• Ongoing operating and emissions or parametric monitoring;

• Dev elopment of a waste management plan that details waste management measures and waste reduction methods as well as costs; and
• Implementation of an operator training and qualification program as well as annual refresher training for operators.
There are my riad other requirements that are very detailed and prescriptive. The above are merely the bigger picture obligations around which we can broadly discuss costs and feasibility.
We are aware of EPA’s belief that costs cannot be factored into establishing th e emission “floors” for existing units under §129 of the Clean Air Act but we are unable to refrain from pointing out the absurdity of this conclusion

– at least in this context. Taking a leap and assuming it is possible for existing SRIs to achieve compli ance with the proposed emission limits, we estimate the cost will be close to $1,000,000 per year per unit. And these costs do not include any controls other than the existing afterburners already on the units. Rather, the majority of these costs are in th e annual source testing, compliance monitoring, and waste management practices that will be necessary to ensure compliance with the standards. To ensure compliance with the very tight emission limits, we believe it will be necessary to segregate and haul a way the waste that has been heretofore burned. This will require new waste handling facilities that will have to be constructed on wetlands (there’s insufficient available space on the existing pads) and large amounts of fuel burned for transport. And agai n, we are uncertain of our ability to comply with the limits given what we know now. Considerable effort will be expended over the next 2

- 3 years to learn whether compliance with the limits is achievable. If so, this may prove to be the prudent way to proc eed. But this is a very large unknown that will, in the best case, buy a little360

time. The incinerators will eventually reach the end of their life and we’ll have to consider buying new ones. That does not appear to be an option under this rule. New units i n the SRI category must meet a sulfur dioxide emission limit of 1.2 ppm . We simply cannot conceive how to achieve this for two reasons: 1) it requires a scrubber control efficiency in excess of the 80

- 95% ascribed to this technology by EPA 1 ; and 2) use of wet scrubber technology in the Arctic is a very uncertain and certainly untested proposition.
So, this rule forces the inevitability of shutting down our incinerators by 2016 or shortly thereafter. The annual costs we’ll incur for this will likely exceed $ 10,000,000

– principally for the new waste handling practices and facilities as well as for aviation and highway vehicle fuel. That is well over $1,000,000 per ton of pollutant controlled. And it defies reason to consider the prospect of flying garbage to a landfill when burning, on site in a small incinerator, is the most efficient and environmentally friendly manner of management. And this does not speak to the wildlife impacts that are already well documented in Attachment B to this letter. [see submitta l for AOCA and AMA petition for reconsideration, attached by commenter ] [Footnote: 1 http://www.epa.gov/ apti

/ bces / module6 /sulfur/control/control.htm; note also that, depending on the application, EPA estimates control efficiencies of wet scrubbers can rang e from 50

‐ 99 %: http://cfpub.epa.gov/ oarweb / mkb /contechnique.cfm? ControlID =29]
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Clint Gill Commenter Affiliation: Cono coPhillips Company Document Control Number: EPA

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Comment: For new units in the SRI category, EPA proposes an impossible SO 2 emission limit

– and on the basis of flawed analysis. Subpart CCCC establishes a sulfur dioxide emission limit for new SRI units of 1.2 ppmvd. 2 1.2 ppm is a very small emission rate from point sources that might be considered "in the noise" when evaluating emissions from most sources. The mechanics of developing this sta ndard were reviewed and many deficiencies were found. These are detailed in Appendix 2 of Attachment B. We believe a more appropriate new unit SO 2 standard lies somewhere between 100 and 130 ppm . This comment is very important since, unless addressed adeq uately, the option of employing new SRIs in Alaska is effectively closed.

[Footnote: 2 Table 8 to 40 CFR Part 60, Subpart CCCC.]
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues ” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Kate Williams Commenter Affiliation: Alaska Oil and Gas Association (AOGA)361

Document Control Number: EPA

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Comment: The SRI subcategory was specifically established to address the unique operating and waste management conditions in Alaska, yet the existing source standards cannot be achieved in practice (to the best of our knowledge) by any existing SRI unit in the state. This is a clear violation of the Clean Air Act which mandates that emission standards for existing units reflect the performance achieved by the best performing 12 percent of units in the category. Furthermore, given Alaska’s extreme climate , it is not clear whether new SRI units could meet the new source standards. During a 2011 meeting between AOGA and EPA to discuss the CISWI Rule, even EPA acknowledged they could not identify new technology that could meet the new source SRI standards.

Th e SRI emission standards are not achievable (in part) because they do not account for the range of wastes burned in SRI units, which operating and waste management conditions require in Alaska, or the fact that different waste materials exhibit profoundly different emissions characteristics. The existing test data supports this conclusion. Instead, the SRI standards are based on very limited "snapshot in time" emissions at a particular unit, given the particular waste stream burned at that time. This contra sts to the other CISWI units where waste streams are less variable and standards were set based on more emissions data. We emphasize that additional testing data is extremely costly, problematic and time

- consuming to collect in Alaska due the remoteness of operations, harsh weather conditions and lack of providers to conduct such tests. We urge EPA to take these considerations into account in setting the SRI standards in the new final rule, particularly in light of the overall level of emissions from SRI un its compared to other CISWI units EPA regulates.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion

.

Commenter Name: Kate Williams Commenter Affiliation: Alaska Oil and Gas Association (AOGA) Document Control Number: EPA

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Comment: The Clean Air Act mandates that the cost of achieving emission reduct ion be taken into account when setting emission standards. On the contrary, cost was not adequately taken into account in setting the SRI standards; EPA’s estimates of the cost of compliance for SRI units are too low. Furthermore, the SRI standards impose a disproportionate compliance burden on SRI units compared to the other CISWI units. For example, using EPA’s data (prepared by Eastern Research Group, "ERG"), the lowest cost option for compliance for SRI units is $234,200 per ton more than the average co st of compliance over all of the subcategories. In addition, these numbers do not include other potential costs such as costs associated with constructing and permitting the additional footprint that would be required for controls (acknowledged by ERG) or annual landfilling costs for SRI units which ERG estimated at362

between $433,000 per year to $24.6 million per year. These issues should be considered in revising the SRI standards.
Response: EPA did not open this issue for comment in the proposed reconside ration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Kate Williams Commenter Affiliation: Alaska Oil and Gas Association (AOGA) Document Control Number: EPA

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Comment: The Clean Air Act also requires that non

- air quality health and environmental impacts be taken into consideration in setting emission limits for CISWI units. We believe EPA failed to adequately take these impacts into account and remain concerned about unintended consequences if SRI units across Alaska are forced to shutdown, a very real possibility if the SRI standards are not revised in the new final rule. Oil and gas and other remote operation s rely on SRI units to manage solid waste for several reasons, including limited, if any, access to land disposal options, the high cost of and safety concerns associated with transporting waste to alternative disposal sites, and the need to minimize wildl ife interactions with waste, and any related interactions with humans. The proposed rule does not address any of these issues which will arise in case of forced shutdowns.
For example, many operations utilizing SRI units are not located on the road system necessitating transport of waste via barge, small aircraft and even helicopter in areas where aircraft cannot land if incineration is not possible. Important to remember is that these transport options are all highly dependent on Alaska’s extreme weather c onditions, especially during the winter season, which in the Arctic lasts the majority of the year. Clearly, costs will quickly escalate due to the necessity of multiple trips to transport waste between remote operations and disposal sites. Safety will als o be compromised due to increased travel back and forth in harsh weather conditions. Additionally, EPA failed to consider the potentially significant increased emissions associated with transport of waste from remote operations to disposal sites, which

cou ld easily exceed emissions associated with SRI units, or the increased volume of waste at area landfills, both inevitable adverse consequences of decreased waste incineration.
Likewise, if SRI units are forced to shutdown, significantly more waste will hav e to be stockpiled onsite until transport to a disposal site is possible, adversely impacting wildlife, including species listed as threatened under the Endangered Species Act (e.g., polar bears and spectacled eiders), attracted to stored waste. This will lead to increased wildlife

- human interactions and decreased safety for onsite personnel. All of these issues could be avoided by onsite incineration.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Re consideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.363

Commenter Name: Clint Gill Commenter Affiliation: ConocoPhillips Company Document Control Number: EPA

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Comment: We do not understand the massive compliance burden placed on SRIs and believe the Monitoring, Reporting & Recordkeeping (MR&R) should be limited to testing for just one or two pollutants, say CO or NO X , every 5 years. SRIs are too small to wa rrant annual testing for the entire suite of 11 pollutants (in Alaska, this level of testing costs about $100,000), annual operator training, waste management plans, and ongoing compliance monitoring. Indeed, in the absence of a rule such as CISWI

, SRIs ar e very close to being and in fact could be, with minor changes, insignificant emission units under §71.5(c)(11)(ii)(A). Limiting the CISWI monitoring, recordkeeping, and reporting to simple assurance testing once every five years of a Title V permit term i s the most sensible way to regulate these very small sources.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for furth er discussion.

Commenter Name: Kate Williams Commenter Affiliation: Alaska Oil and Gas Association (AOGA) Document Control Number: EPA

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Comment: Finally, we believe EPA violated the Clean Air Act by fa iling to exclude emissions during startup and shutdown periods from the maximum achievable control technology (" MACT ") floor calculations for SRI units and employing flawed data analysis and statistical protocols to derive the Subpart CCCC sulfur dioxide e mission limit for new sources.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Kara Moriarty and Deantha Crockett, Executive Directors Commenter Affiliation: Alaska Oil and Gas Association (AOGA) and Alaska Miners Association (AMA) Document Control Number: EPA

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Comment: We apprec iate the willingness of the U.S. Environmental Protection Agency (EPA) to consider these comments so that more technically accurate new small remote incinerator (SRI) emission limits and existing SRI emission guidelines can be developed.

We have developed a list of 32 known SRIs located in Alaska. This list is provided on the attached inventory. Twenty two of these 32 SRIs cannot be accessed via the Federal Aid Highway364

System. Our list is not exhaustive as we only represent two industry groups, oil and gas and mining. EPA has tentatively identified approximately 30 additional incinerators in Alaska that may or may not be SRIs. We have not been able to determine whether these additional units are SRIs.
Even discounting the EPA

- identified units that may be SRI s, our set of 32 SRIs is much larger than the set of fourteen units on which EPA based the existing SRI emission guidelines. As a result, the methodology that EPA followed to develop the emission guidelines does not include an adequate number of performanc e test results, resulting in incorrect emission guidelines that are overly restrictive.
Response: We reviewed the data submitted on potential additional SRI units. During this review, we attempted to confirm the operational status of additional units. I f we could reasonable confirm that these units existed and were in operation, then we added them to the SRI inventory. Note that we have no information on unit design, size or emissions information from these additional units. Following this review, we n ow have an estimated 28 SRIs in our inventory, effectively doubling the number of sources during reconsideration proposal. Taking 12% of 28, we now include emissions information for the top four performing sources in our MACT floor calculations, whereas w e previously used information for only the top two sources. The MACT floor methodology is not being reconsidered, but the emission limits were re

calculated to address this new information on the number of sources within the CISWI SRI inventory.

Commenter Name: Kara Moriarty and Deantha Crockett, Executive Directors Commenter Affiliation: Alaska Oil and Gas Association (AOGA) and Alaska Miners Association (AMA) Document Control Number: EPA

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Comment: EPA did not follow generally accepted statistical methodologies and criteria in selecting and proposing the new source CISWI standards in the regulation. The subset of data used to develop the new source standards (from this smaller group of 14 units) comprised too few samples to have confidence that the values accurately reflect industry emission standards. EPA’s ProUCL software program, which is the standard source to use for stati stical analysis of environmental data under EPA oversight, states in the User Guide to version 4.1 (May 2010): “ProUCL 4.00.02 and higher versions will not compute any decision statistics such as UCLs or UPLs for data sets of size less than 5 (without NDs) .” In response to user complaints about not calculating statistics for sample sizes of 3 or 4, the authors of the User Guide responded “that is fine as one should not be computing decision statistics based upon such small samples.” None of the new source s tandards are based on as many as 5 samples since only data from the “best” performers were used to generate the standards. Additionally, use of zero values for some data points is inconsistent with this program. Including zero values in place of actual dat a would further increase the required minimum sample size for statistical analysis to be considered usable.365

Response: EPA did not open the MACT floor methodology issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues ” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Kara Moriarty and Deantha Crockett, Executive Directors Commenter Affiliation: Alaska Oil and Gas Association (AOGA) and Alaska Miners Association (AMA) Do cument Control Number: EPA

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Comment: We note that two of the incineration units included in EPA’s SRI emission data base
are not SRIs. The Entech Alaska incinerator is not an SRI because the unit is loca ted in Anchorage, Alaska, and is approximately 15 miles from the Anchorage Regional Landfill. The OIT incinerator is not an SRI because the unit is located in Moose Creek, Alaska, and is approximately 16 miles from the Fairbanks North Star Borough Landfill . The inclusion of the Entech Alaska incinerator performance test data in the data base is of particular concern because the measured emissions from this unit were the lowest or second lowest for several pollutants. As a result, these test results were inc orrectly used to establish the existing SRI emission guidelines, as well as the new source performance standards for new units, even though the unit is not an SRI. The attached table [see submittal] offers an analysis of the currently available data removi ng the data for the Entech incinerator, completed using three statistical methods.
Response: We have removed the Entech unit from the SRI subcategory inventory and placed it in the Incinerator subcategory, as it appears to meet the definition of an incine rator. We note that the OIT unit has not been included in the SRI or incinerator inventory, as this unit appears to be a soil treatment unit. The status of soil treatment units with respect to CISWI is discussed in the final rule preamble (76 FR 15713).

Commenter Name: Kara Moriarty and Deantha Crockett, Executive Directors Commenter Affiliation: Alaska Oil and Gas Association (AOGA) and Alaska Miners Association (AMA) Document Control Number: EPA

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Com ment: We are concerned about the quality of the performance test data because of the lack of consistent test procedures among the various SRI performance tests. SRIs are generally batch units. Each unit has a variable air pollutant emission profile that i s dependent on the type and amount of material in the incinerator and the point in time during the batch cycle. For example, the emission profile at the start of the batch cycle is different than the emission profile as the cycle comes to an end. Because t he various performance tests were performed without regard to waste type or where in the batch cycle the unit was operating, the performance tests do not provide a data set that can be reasonably compared to reach a conclusion regarding the general perform ance of the set of SRIs.366

Based on the information provided above, we believe that EPA must re

- evaluate and recalculate the Subpart DDDD emission guidelines, as well as the Subpart CCCC emission limits. Although performance test data are available, these da ta are not fully representative of existing SRI emissions. We would like to work with EPA to develop and implement an existing SRI performance test program that will return representative data that can be used to calculate technically supported emission gu idelines.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion. However, as discussed in the respons e to EPA

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### 9A. General comments on beyond

- the

- floor analysis (Denied Petition issue)

Commenter Name: Neil Gorley Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council Document Control Number: EPA

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Comment: Section 129 of the Clean Air Act requires EPA to conduct a “beyond the floor” analysis that determines the maximum degree of emissions reductions “achievable” in light of considerations such as non

- air quality health and environmental impacts, energy requirements, and costs of compliance. 42 U.S.C. § 7429(a)(2). For reasons given in comments and the Petition, 2010 Comments, Ex. 1, at 6, 11

– 16; Petition, Ex. 2, at 6

– 10, and incorporated fully herein by reference, EPA’s beyond the floor analysis for the CISWI rule is arbitrary and unlawful.
Response: As the commenter noted, EPA must consider cost, non

- air quality health and environmental impacts, and energy requirements in connection with any standards that are more stringent than the MACT floor (beyond

- the

- floor controls). EPA’s beyond the floor analyses did evaluat e these factors in determining whether it was appropriate to establish more stringent standards. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion on our prior beyond the floor analyses. See the “Final Reconsideration Beyond

- the

- MACT

- Floor Analysis for CISWI Units” memorandum dated December 19, 2012 for the analysis for those limits that are less stringent than the March 2011 final rule limits.



### 12A. Testing and Monitoring

Commenter Name : Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2145(n)(4)

– The requirement to perform daily checks of the pressure monitoring system seem s overly specific, since a site

- specific continuous monitoring plan is required. Since source is required to identify the nature and cause of each CMS malfunction event and take steps to reduce recurrence of preventable events, daily checks of this nature would occur for those sites that blockage is a problem, regardless of a specific requirement to do so. Removal of this requirement would reduce the burden on sites not having blockage problems.
Response: While we believe frequent, ongoing systems checks a re important for ensuring compliance with rule requirements, rather than mandating a specific frequency for this rule, we require you to develop performance evaluations in your site

- specific monitoring plans. Those site

- specific monitoring plans, among ot her things, are to be used by you to ensure that systems such as pressure measurement continue to provide relevant data which enable you to demonstrate continuous compliance with rule requirements. Given the rule's requirement for you to develop these sit e

- specific monitoring plans, we have revised the final rule to not require a specific frequency for performing checks of the pressure monitoring system.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control N umber: EPA

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Comment: 60.2670(b)

– For kilns that do not utilize a wet scrubber, the requirement to maintain a continuous opacity monitor is duplicative of the PM CEMS requirement.
Response: We are not requiring the use of both continuous opacity monitors and particulate matter (PM) continuous emissions monitoring systems ( CEMS ) on any units. Under section §60.2675(g), an opacity operating limit is only required for units that do not determine complianc e with a particulate matter emission limitation using a PM CEMS . Although §60.2670(b) contains an opacity limit, per Table 2, this limit applies only to incinerators subject to the CISWI standards through a state plan or the Federal plan prior to June 4, 2010. Table 2 requires determining compliance with the opacity limit by conducting a performance test. For units subject to the opacity limit in Table 2, the limit will be phased out in the revised state plans. Units that operate a PM CEMS to determine compliance with a particulate matter emission limitation will not be required to monitor opacity once the limit is phased out.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2675

– Any source that utilizes CEMS should not be required to monitor operating parameters of pollution control equipment as well. For pollutants that require performance testing as the compliance basis, sources should be allowed the option to choose to install CEMS in lieu of stack testing and operating parameters for pollution control devices.368

Response: Section §60.2165 allows facilities to choose to install continuous emissions monitoring systems ( CEM S ) in lieu of stack testing. We agree that facilities that continuously monitor emissions should not be required to perform continuous parametric monitoring. We have revised the final rule to remove the requirements for parametric monitoring for faciliti es with CEMS

.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

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Comment: 60.2680

– This provision appears to dampen innovative control t echnology and techniques by imposing a petition and approval process for technologies not specified in this paragraph. As noted above, if a source installs continuous monitors, there should be no such requirement for petition and approval as long as the sp ecified emission limits are documented through use of continuous direct monitoring.
Response: It is not our intent to dampen innovative control technology and techniques. In Section §60.2680, we require sources to petition the EPA Administrator for speci fic operating limits for equipment other than wet scrubbers, activated carbon injection, selective noncatalytic reduction, and electrostatic precipitators. Because these parameters are set on a site

- specific basis, we have reserved this authority believing that there is a need to maintain national consistency in implementing this section. “The Good Practices Manual for Delegation of NSPS and NESHAPS” (February 1983) reserves for the EPA Administrator specific areas of rules that impact national consistency.
Currently, there are not standard performance specifications for continuous emissions monitoring systems ( CEMS ) for all of the pollutants that are covered by this rule. Use of a CEMS for pollutants that are not covered by an EPA performance specification also requires the Administrator's approval.

Commenter Name: Andrew O'Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

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Comment: PCA is concerned with the requirement that stack flow monitors comply with a 2% sensitivity limit: PCA believes that the requirement to utilize a flow sensor with a measurement sensitivity of no greater than 2 percent of the expected process flow rate is n ot practicable. In the Portland cement process, stack flow measurement devices are either ultrasonic or pitot tube based devices. The manufacturers of these devices provide accuracy specifications of less than 10% and less than 5% for ultrasonic and pilot units, respectively. This accuracy is based upon full scale of the device. These devices do not operate at full scale. Thus, at expected operating ranges (usually at roughly 75 to 89% of full scale), there would be no way to meet the measurement sensitivi ty requirement of 2%. EPA needs to revise this requirement to match the current technology accuracy limitations for flow measurement devices utilized in the cement369

industry and base them on the accuracy specifications of the manufacturers. This accuracy n eeds to be based on the full scale rating of the unit to match the manufacturer's specifications.
Response: We intended for the 2% sensitivity requirement of the flow monitor to be 2% sensitivity at full scale. We have clarified this in the final rule. We believe that there are widely available flow monitors that can meet this requirement.

Commenter Name: Satish Sheth Commenter Affiliation: Cemex USA Document Control Number: EPA

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Comment: CEMEX is concerned with the requirement for stack flow monitors to comply with a 2% sensitivity limit. We have evaluated these devices and have determined that it is not possible to meet the sensitivity requirement on a consistent basis. Manufacturers of these de vices provide accuracy specifications that are based on the full scale rating of the unit. The units do not operate at full scale and thus there is no way for the devices to meet the sensitivity specification of 2% at the expected operating ranges. The ac curacy requirement needs to be based on full scale to match the manufacturer specifications.
Response: For response, see DCN EPA

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Commenter Name: Michael A. Klein Commenter Affiliation: N/A Document Control Numb er: EPA

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Comment: The regulation should specify that Estimated Maximum Possible Concentrations ( EMPCs ) must be counted in determining total dioxins/ furans . In many cases, testers/labs are counting EMPCs as zero in determining totals. Per direction we have received from EPA, if the Source (facility) includes EMPCs in the total reported for dioxins/ furans and is still in compliance with the emission limit, then the results can be accepted. If the Source includ es EMPCs in the total reported for dioxins/ furans and is above the emission limit for total dioxins/ furans , it may be because of a positive interference. However, the interference cannot be quantified and the interference will prevent the lab results from meeting the quality assurance requirements for identifying and quantifying their results. In this case, the only options are for the laboratory to re

- analyze the sample if they archived a sample fraction, or for the Source to repeat the test. The re

- anal ysis would involve re

- cleaning the sample to remove the interfering substances.
Response: Section 9.9 of Method 23 states, “Any PCDDs or PCDFs that are reported as non

detected (below the DL) shall be counted as zero for the purpose of calculating the tot al concentration of PCDDs and PCDFs in the sample.” The term EMPC does not appear in Method 23; it appears in SW

- 846 Method 8290A , the analytical method for the sampling of dioxins/ furans by SW

- 846 Method 0023A . However, we are aware that laboratories ar e applying EMPC to Method 23 as well as SW

- 846 8290A . The EMPC represents a compound370

that is actually detected and measured, and therefore, it does not represent a compound that is reported below the detection limit. As such, Method 23 does not allow for compounds reported

as EMPC to be discounted as zero. We are also aware that it is sometimes possible for laboratories to reanalyze samples to obtain more accurate measurements of compounds that are originally labeled as EMPC . We are clarifying this posi tion in the final rule. The revised language does not specifically contain the term EMPC , as this term does not appear in Method 23, but we believe that the language will address this issue.



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

Commenter Name: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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Comment: EPA should ensure consistency in testing requirements for this Rule an d 5

- year Title V permit review cycle. EPA did not coordinate these provisions in the Proposed Reconsidered Rule. Annual compliance testing is extremely expensive and the benefits of conducting emission tests more frequently then every 5 years do not justif y the costs.
A significant amount of testing will be required by sources to determine the compliance status with respect to the rule and to evaluate and select available control strategies. Capital projects to install necessary control equipment cannot pro ceed until the testing and evaluation is complete. Due to the high number of sources affected by the rule that have the same concerns, it is likely that availability of stack testing personnel and laboratory facilities to conduct tests will be limited, add ing to the time required to complete this essential first step. As outlined below, annual frequent compliance testing requiring multiple test runs for purposes of compliance will further reduce the availability of testing and laboratory resources.

EPA ackn owledges that the cost of testing small boilers and process heaters is prohibitive. While the cost of emissions testing larger units is less prohibitive, EPA must consider these costs when establishing the frequency of testing.
The benefits of testing more frequently than every 5 years do not justify the costs. HAP emissions change only when operating parameters change (e.g., firing rate, maximum contaminant input limits for chloride and mercury, type of fuel, combustion efficiency, oxygen content, etc.) or when design changes occur. Absent these changes to an affected source, operating parameters established by implementation of CISWI Rule are more than sufficient to ensure that emissions will not significantly change over time.
Other regulations support a 5

- year testing cycle. For example, 40 CFR §75 requires low mass emissions units to establish NO X emissions curves based on testing conducted every 5 years. Several states require that testing be conducted upon each 5

- year Title V permit renewal. All affect ed major sources subject to Boiler MACT are required to have Title V Permits. The Title V permitting program provides the appropriate vehicle to implement a 5

- year test requirement.3 71

Response: EPA did not open this issue for comment in the proposed reconsi deration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2576

- A1 Comment Excerpt Number: 6

Comment: 60.2145(j)

– Annual stack testing for cadmium, lead, dioxins/ furans , and hydrogen chloride is burdensome, costly and unnecessary to represent emissions from waste burning kilns. Stack testing to should be no more frequent than 30 months.
Response: EPA did not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum,dated December 19, 2012, in the CISWI docket for further discussion.

Commenter N ame: Robert D. Bessette Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2605

- A1 Comment Excerpt Number: 26

Comment: Under the Final CISWI Rule, units were required to conduct stack tests on a frequent basis. 76 Fed. Reg . 31,981. While EPA has made some improvements to the stack testing requirements in the 2012 Reconsidered CISWI Rule, the frequency of testing is still unreasonable and burdensome. In its Petition for Reconsideration of the Final CISWI Rule, CIBO provided extensive comment on why stack testing is not reasonably related to environmental improvement and unnecessarily duplicates other compliance requirements.
Response: EPA did not open this issue for comment in the proposed rec onsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2576

- A1 Comment Excerpt Number: 28

Comment: 60.2705(b) and other sections of the rule should acknowledge previously mentioned market conditions that may preclude testing based on market conditions based on solid waste availability or econom ic downturns.
Response: To the extent this comment pertains to fuel switching issues, those comments are discussed elsewhere in this document. As we note in a response to a similar comment within that section, the rule already allows a time frame of 11

- 13 months from the previous test to provide372

operational flexibility. If a source will shut down for an extended period of time, beyond that window, the source should work with their delegated authority to establish a schedule for conducting the annual perfo rmance test.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2614

- A1 Comment Excerpt Number: 32

Comment: EPA has proposed reduced testing fre quency for sources whose emission tests are at or below 75 percent of the emission limit. This suggestion is inconsistent with EPA’s determination that emissions from well

- controlled sources routinely vary by more than an order of magnitude.
Response: We note that the reduced testing provisions have not been re

- opened in this reconsideration. See the discussion on this topic in the preamble to the 2011 final rule [76 FR 15714] for more details on how we arrived at the final provisions for reduced testing.



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

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA Commenter Affiliation: American Forest & Paper Association et al. Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2611

- A1 Comment Excerpt Number: 46

Comment: EPA should add minimum monitoring system data availability requirements for all continuous monitoring systems. There will be times, even with a well maintained continuous monitoring system, when the system will be out of oper ation. Lengthening averaging periods to 30 days is not adequate to address this issue. 16 Even the final CISWI rule provided minimum data availability requirements for PM CEMS of 85 percent of the hours per day, 90 percent of the hours per calendar quarter, and 95 percent of the hours per calendar year that the affected facility is operated. 17 The final Large Municipal Waste Combustor rule also has data availability requirements: valid continuous monitoring system hourly averages shall be obtained at least 9 0 percent of the operating hours per calendar quarter and 95 percent of the operating hours per calendar year. 18 The Petroleum Refinery MACT , Subpart UUU , states that each continuous parameter monitoring system must have valid hourly average data from at l east 75 percent of the hours during which the process operated. 19

EPA's response that the need for minimum data availability provisions such as those in NSPS Subpart Da no longer exists due to EPA's better understanding of the need for continuous data coll ection and the dramatic improvement in CEMS data availability (citing Acid Rain Program) is not persuasive. SO 2 CEMS used under the Acid Rain Program would differ starkly from some of the other CEMS (Hg, HCl , PM) that might be used under the Boiler MACT

. S O 2 CEMS are a mature technology in widespread use, but even mature CEMS technologies such as SO 2 , NO X , and CO should be provided some reasonable amount of downtime. The Acid Rain rules373

recognize that NO X and SO 2 monitors have downtime by including missing data procedures in Appendix C to 40 CFR 75. All equipment will malfunction at some point in time, and EPA should acknowledge this fact by providing a minimum data availability requirement in the CISWI rules for continuous monitoring systems.

[Footnotes:

16 EPA responded that, "[r] egarding comments on PM CEMS , we have modified the language from the proposed 24

- hour block to a 30

- day rolling average. We disagree with the commenter about applying the data availability used in Da to the PM CEMS data collection. The Agency has developed a better understanding of the need for continuous data collection since Da was published and the equipment and software have dramatically improved as shown by the acid rain program CEMS data availability success. The monitoring sy stem must operate at all time the process is operating." Response to Comments, EPA

- HQ

- OAR

- 2002

- 0058

- 2908.1, excerpt number 31.

17 See 40 CFR 60.2165(n)(14) and 60.2730(n)(14).

18 See 40 CFR 60.58b(c)(10)(viii).

19 See 40 CFR 63.1572(c)(3).]
Response: EPA di d not open this issue for comment in the proposed reconsideration rule. See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI docket for further discussion.



### 14A. Data reporting requirements

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2573

- A2 Comment Excerpt Number: 1

Comment: §60.2060 ...Waste Management Plan

— You must submit a waste management plan prior to commencing construct ion.
Comment: We seek clarification on the applicability of this requirement as it relates to the Cement industry. In most cases, ( CISWI ) cement manufacturing operations will only be accepting secondary non

- hazardous solid waste streams from generators for beneficial use of the material as a supplemental fuel. For Argos, the framework of the Waste Management Plan focuses on the up

- front screening of those streams prior to acceptance and then the proper and safe use of the material once it has been received. By way of example, the alternate non hazardous "Waste Management Plan" is to determine the acceptance of a material is as follows:

Is the material of sufficient volume and suitable for use as an alternate supplemental fuel material in the cement manufactu ring process?374

What are the safety considerations from an employee standpoint, if any? (A MSDS must be provided before any material will be considered.) Is the alternate fuel source material approved for use as a condition of the facility's Title V air oper ating permit? Can the material be properly managed on

- site from receipt, to processing (if needed) and ultimate firing as an alternate supplemental fuel material?

On a related note, cement plants do not generate a wide variety of waste types. The predomina te (limited) industrial waste stream for kilns is generally from the older technology (i.e. wet and/or long dry kilns) in generating cement kiln dust (CKD). The maximum amount of CKD is recycled internal to the process while excess CKD is removed in order to meet ASTM product specifications. CKD is generally land filled on site. Upon the last review, all active CKD piles in the US were noted as being under permit by state agencies with each having the necessary authority for corrective action. The new, more modern preheater/ precalciner operations generally do not waste CKD.
Request: The cement industry is not the typical incineration operation for which the rule is targeted. We request a lessening of Waste Management Plan requirements as the industry

consume s most if not all of our received alternate solid waste materials and only a small subset of kilns generate any significant amount of wastes (i.e. CKD) and those operations are already regulated by their respective state solid waste agency.
Response: We agree to a certain degree that a waste management plan that applies to waste

burning kilns accepting solid waste materials for use in producing cement will not be the same as one that applies to an incineration unit burning waste generated at an industrial or commercial facility. The requirements for a waste management plan are not very prescriptive in nature, so that facilities have the flexibility to develop a plan that is most applicable to their operations. We are confident that sources and the delega ted authority will be able to work with each other to provide the information needed to develop an acceptable waste management plan that makes sense for the facility, yet also addresses the applicable elements specified in §60.2065 or §60.2630.

Commenter N ame: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2576

- A1 Comment Excerpt Number: 7

Comment: 60.2145(l)

- The requirement to develop and submit a site

- specific monitoring plan is reaso nable, however requiring approval by the Administrator is an unnecessary burden for both the EPA and the source. It is unlikely the EPA will be able to review and approve these plans within the time allowed (the plans must be submitted 60 days prior to the test) and there appears to be no provision for what the source is supposed to do if approval of the plan is not received prior to initiating the test. This specific requirement in the HWC MACT has led to substantial delay and conflict in Region 6. It is b etter to test a source sooner rather than delaying due to unnecessary administrative hurdles. It is recommended that the requirement for EPA approval be removed.375

Response : The Agency is mindful of the need to process these as expeditiously as possible, however as not all requests contain sufficient information, or may be otherwise complex, we are unable to “automatically” approve them within some default time frame. We disagree that automatic approval provisions are a necessary provision to the final ru le.

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2576

- A1 Comment Excerpt Number: 12

Comment: 60.2210(k)

– This provision appears to require detailed reporting of malfun ctions even if there was no exceedance of an applicable standard. This is an unnecessary level of reporting on events that have no impact on emissions and should be removed.
Response: We disagree that reporting of these malfunctions is unnecessary. As the regulatory language specifies “brief descriptions” of the malfunction and steps taken to minimize emissions, we do not see this as being overly burdensome. The level of detail suffic ient to satisfy this requirement may vary depending on the nature of the malfunction and the potential for the malfunction to have caused an exceedance.



### 14B. Records that must be retained

Commenter Name: Curtis D. Lesslie Commenter Affiliation: Ash Grove Cement Company Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2576

- A1 Comment Excerpt Number: 27

Comment: The definitions [in 60.2685] also appear to make paper operating logs a requirement, as it includes the term “properly signed, contempor aneous operating logs.” Please clarify that electronic systems may be used to meet this requirement.
Response: We are clarifying here that electronic systems may be used to meet the operating log documentation requirement specified for establishing an aff irmative defense, provided that the owner or operator can sign a statement certifying the truth and accuracy of the electronic records. The signed statement must be included in the affirmative defense report.



### 14C. Electronic Reporting Mechanism

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2630

- A2 Comment Excerpt Number: 4376

Comment: Public records for monitoring and compliance with emissions limits. The Lung Association re commends that the records and reports of monitoring and compliance measures for emissions limits be made easily and readily accessible to the public. The public has an established right to know about the emissions of toxic substances. For 25 years, EPA has required companies to make public information on toxic chemicals released into the community through the Toxic Release Inventory (TRI). We support a system similar to TRI, where facilities are required to report toxic emissions to the database and make da ta relating to those emissions available online.
EPA should require boiler operators to publicly disclose and report all monitoring data and compliance documentation

— including with required work practices standards

— and submit those data reports to EPA for public access online. These would include data and results from performance tests of facilities and emissions that occur during malfunctions of boiler equipment. Communities have a right to know what toxic air pollutants are emitted by boilers and incinera tors, the quantities of each type of pollutant being emitted, when those emissions are occurring, particularly when the emissions exceed limits set by EPA.
Response: The EPA agrees with the commenter and plans to have many of the required reports be submi tted to the EPA directly where they will be available in a public database for access and review by all users, including the public. This regulation does not require that submitted data be made public but the EPA will make any data submitted publicly avail able. State permitting authorities include pertinent data in title V permit reports but electronic availability of these data varies by state.

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2630

- A2 Comment Excerpt Number: 5

Comment: EPA’s proposed use of the WebFIRE database to store performance test data for use in developing emissions factors and submission of emissions test data through the Electronic Reporting Tool ( ER T ) are good first steps in facilitating the organization and analysis of emissions data (EPA, 2011d ). Furthermore, this should also include measureable steps under the work practice standards as well, since so many facilities will be permitted to use that compliance method. These data must then be made public online in the form of annual reports, similar to the TRI data reports. Along with other measures to enforce emissions limits, we believe this offers a community or “Wiki” enforcement approach to assist in reducing toxic air emissions from boilers and incinerators.
Response: Although the EPA will require the electronic submission of some compliance reports, the EPA does not plan to require electronic submission of all reports Again, all reports that ar e electronically submitted to the EPA will be made available to all users on the WebFIRE database.377



### 15A. Other

Commenter Name: William Voshell Commenter Affiliation: Argos Cement LLC Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2573

- A2 Comment Excerpt N umber: 2

Comment: The original regulation states that no CISWI unit can be operated unless a fully trained and qualified CISWI unit operator is accessible. Additionally, this qualification must be obtained through a state

- approved program or by completin g the requirements in 60.270(c). Pursuant to 60.2885, operator qualifications must be refreshed annual.

Comment: Cement kiln control room operators are vastly different than a typical incinerator operator. A cement kiln and preheater/ precalciner tower syst em alone is valued well in excess of $ 125M . As the "plant quarterback", these operators serve as the minute by minute person responsible for on

- going operational parameters in successfully producing a quality clinker product that will meet ASTM cement prod uct standards while also responsible for maintaining compliance with the many on

- going continuously monitored emission limits It is not unusual for cement companies to have their own control room operator certification program that goes well above and beyo nd the eleven training elements prescribed in 60.2070(c).
Request: EPA should be willing to accept via certification, that a cement company's control room operator program equals or exceeds those requirements that are prescribed in §60.2070(c).
Response : This training program must be approved by the delegated authority. However, a company’s site

- specific operator training program, provided it meets the criteria specified in §60.2070(c) or §60.2635(c), as appropriate, may be submitted for approval to th e delegated authority for use in meeting the operator training and qualification requirements.378



### Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preamble

Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preamble

Comment Topic DCN Comment Excerpt Number Commenter Affiliation Commenter Name Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2571

- A1 9 The Dow Chemical Company Darryl Sanderson

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2572

- A1 15 Coalition for Responsible Waste Incineration (CRWI) Melvin E. Keener

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2577

- A1 5 Utility Solid Waste Activities Group (USWAG) Jim Roewer

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2581

- A1 2 Georgia

- Pacific LLC (GP) Traylor Champion

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2594

- A1 2 Occidental Chemical Corporation (OCC) Frederick Fedri

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2597

- A1 7 Federal Recycling and Remediation Coalition (FRRC) Susan Bodine

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2597

- A1 8 Federal Recycling and Remediation Coalition (FRRC) Susan Bodine

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2602

- A1 16 Auto Industry Forum (AIF) Shannon S. Broome

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2603

- A1 15 Port land Cement Association Andrew O'Hare

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2605

- A1 4 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2609

- A1 1 National Solid Wastes Management Association (NSWMA) Edward Repa

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2609

- A1 2 National Solid Wastes Management Association (NSWMA) Edward Repa

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2609

- A1 3 National Solid Wastes Management Association (NSWMA) Edward Repa

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2611

- A1 18 American Forest & Paper Association et al. Paul Noe, Vice President for Public Policy Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2615

- A1 9 Lafarge North America Michael Pelan

Definitions

- "Contained EPA

- HQ

- OAR

- 2003

- 0119

- 2617

- 1 Delaware Solid Waste Authority Angela D. Marconi379



### Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preamble

Comment Topic DCN Comment Excerpt Number Commenter Affiliation Commenter Name Gaseous Material" A2 (DSWA) Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2619

- A1 1 American Forest & Paper Association et al. Paul Noe, Vice President for Public Policy Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2622

- A2 4 National Association of Clean Water Agencies (NACWA) Chris Hornback

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2628

- A2 2 Waste Management (WM) Kerry Kelly

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2628

- A2 3 Waste Management (WM) Kerry Kelly

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2633

- A2 2 Calgon Carbon Corporation Erika H. Frank

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2637

- A1 1 INGENCO Robert L. Greene

Definitions

- "Contained Gaseous Material" EPA

- HQ

- OAR

- 2003

- 0119

- 2657

- A1 1 Lafarge North America Inc Richard G. Stoll

ERU Pollutants subcategorized EPA

- HQ

- OAR

- 2003

- 0119

- 2591

- A1 1 Pennsylvania Department of Environmental Protection Michael L. Krancer

ERU Pollutants subcategorized EPA

- HQ

- OAR

- 2003

- 0119

- 2606

- A1 1 American Chemistry Council (ACC) Patricia Haederle

ERU Pollutants subcategorized EPA

- HQ

- OAR

- 2003

- 0119

- 2611

- A1 37 American Forest & Paper Association et al. Paul Noe, Vice President for Public Policy ERU Pollutants subcategorized EPA

- HQ

- OAR

- 2003

- 0119

- 2631

- A2 1 NC Division of Air Quality (NC DAQ), North Carolina Department of Environment and Natural Resources

(NCDENR) Vickie Woods, Administrative Assistant

ERU Pollutants subcategorized EPA

- HQ

- OAR

- 2003

- 0119

- 2640

- A2 1 Eastman Chemical Company Stephen R. Gossett

ERU Pollutants subcategorized EPA

- HQ

- OAR

- 2003

- 0119

- 2640

- A2 2 Eastman Chemical Company Stephen R. Gossett

ERU Pollutants subcategorized EPA

- HQ

- OAR

- 2003

- 0119

- 2640

- A2 3 Eastman Chemical Company Stephen R. Gossett

ERU Pollutants subcategorized EPA

- HQ

- OAR

- 2003

- 0119

- 2640

- A2 4 Eastman Chemical Company Stephen R. Gossett

ERU Pollutants EPA

- HQ

- OAR

- 2003

- 0119

- 2640

- 5 Eastman Chemical Company Stephen R. Gossett380



### Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preamble

Comment Topic DCN Comment Excerpt Number Commenter Affiliation Commenter Name subcategorized A2 Establishing a Definition of "Homogeneous W aste" EPA

- HQ

- OAR

- 2003

- 0119

- 2581

- A1 4 Georgia

- Pacific LLC (GP) Traylor Champion

Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2581

- A1 5 Georgia

- Pacific LLC (GP) Traylor Champion

Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2597

- A1 9 Federal Recycling and Remediation Coalition (FRRC) Susan Bodine

Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2605

- A1 14 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2605

- A1 15 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2605

- A1 16 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2611

- A1 19 American Forest & Paper Association et al. Paul Noe, Vice President for Public Policy Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2611

- A1 20 American Forest & Paper Association et al. Paul Noe, Vice President for Public Policy Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2611

- A1 21 American Forest & Paper Association et al. Paul Noe, Vic e President for Public Policy Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2618

- A2 5 Archer Daniels Midland Company Mark Calmes

Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2618

- A2 6 Archer Daniels Midland Company Mark Calmes

Establishing a Definition of "Homogeneous Waste" EPA

- HQ

- OAR

- 2003

- 0119

- 2618

- A2 7 Archer Daniels Midland Company Mark Calmes

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2571

- A1 10 The Dow Chemical Company Darryl Sanderson

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2571

- A1 11 The Dow Chemical Company Darryl Sanderson

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2571

- A1 12 The Dow Chemical Company Darryl Sanderson

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2572

- A1 12 Coalition for Responsible Waste Incineration (CRWI) Melvin E. Keener381



### Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preamble

Comment Topic DCN Comment Excerpt Number Commenter Affiliation Commenter Name Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2596

- A1 6 National Cement Company, Inc. Michael D. Stevens

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2599

- A1 13 Energy Recovery Council (ERC) Ted Michaels

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2599

- A1 14 Energy Recovery Council (ERC) Ted Michaels

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2603

- A1 11 Portland Cement Association Andrew O'Hare

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2605

- A1 6 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2606

- A1 18 American Chemistry Council (ACC) Patricia Haederle

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2606

- A1 20 American Chemistry Council (ACC) Patricia Haederle

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2606

- A1 21 American Chemistry Council (ACC) Patricia Haederle

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2614

- A1 23 National Association of Clean Air Agencies (NACAA) Mary Sullivan Douglas

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2627

- A2 6 Pennsylvania Chamber of Business and Industry Shawn Good

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2628

- A2 10 Waste Management (WM) Kerry Kelly

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 17 Cemex USA Satish Sheth

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2640

- A2 7 Eastman Chemical Company Stephen R. Gossett

Optional CO CEMS provisions EPA

- HQ

- OAR

- 2003

- 0119

- 2642

- A2 2 Universal Cement, LLC and Ozinga Bros., Inc. Rex Jameson

Revisions to the Continuous Monitoring Provisions for Large ERUs EPA

- HQ

- OAR

- 2003

- 0119

- 2572

- A1 22 Coalition for Responsible Waste Incineration (CRWI) Melvin E. Keener

Revisions to the Continuous Monitoring Provisions for Large ERUs EPA

- HQ

- OAR

- 2003

- 0119

- 2599

- A1 16 Energy Recovery Council (ERC) Ted Michaels382



### Table 1. Commenters that have submitted comments on topics addressed in section II.E of the preamble

Comment Topic DCN Comment Excerpt Number Commenter Affiliation Commenter Name Revisions to the Continuous Monitoring Provisions for Large ERUs EPA

- HQ

- OAR

- 2 003

- 0119

- 2605

- A1 29 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

Revisions to the Continuous Monitoring Provisions for Large ERUs EPA

- HQ

- OAR

- 2003

- 0119

- 2605

- A1 31 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

Revisions to the Continuous Monitoring Provisions for Large ERUs EPA

- HQ

- OAR

- 2003

- 0119

- 2605

- A1 33 Council of Industrial Boiler Owners (CIBO) Robert D. Bessette

Revisions to the Continuous Monitoring Provisions for Large ERUs EPA

- HQ

- OAR

- 2003

- 0119

- 2606

- A1 29 American Chemistry Council (ACC) Patricia Haederle

Revisions to the Continuous Monitoring Provisions for Large ERUs EPA

- HQ

- OAR

- 2003

- 0119

- 2606

- A1 30 American Chemistry Council (ACC) Patricia Haederle

Revisions to the Continuous Monitoring Provisions for Large ERUs EPA

- HQ

- OAR

- 2003

- 0119

- 2611

- A1 40 American Forest & Paper Association et al. Paul Noe, Vice President for Public Policy

Revisions to the Continuous Monitoring Provisions for Large ERUs EPA

- HQ

- OAR

- 2003

- 0119

- 2638

- A2 13 Earthjustice, Partnership for Policy Integrity, and Clean Air Council Neil Gorley

Revisions to the Continuous Monitoring Provisions for Large ERUs EPA

- HQ

- OAR

- 2003

- 0119

- 2640

- A2 10 Eastman Chemical Company Stephen R. Gossett

## APPENDIX A

Out of Scope CommentsA

- 1



### 1A. Non

- Hazardous Solid Waste Definition
A number of comments were submitted to the CISWI docket for the 2011 proposed rule (Docket ID EPA

- HQ

- OAR

- 2003

- 0119) but the commenter primarily discussed issues relating to the NHSM aspects (Docket ID: EPA

- HQ

- RCRA

- 2008

- 0329).
Table 2 identifies comments that primarily discussed issues that are on Non

- Hazardous Secondary Materials topics. To the extent that the commenters have provided these comments to today's Identification of Non

- Hazardous Secondary Materials That Are Solid Waste portion of the rulemaking, they may be addressed there or were addressed in the rulemaking record for the March 21, 2011, NHSM Final Rule. As stated in the preamble 76 FR 80470

- 80474, the Agency did n ot reopen the entire NHSM rule for reconsideration and will not respond to comments directed toward rule provisions that were not specifically identified in the December 23, 2011, proposal. For more information regarding the intent of the December 23, 2011 proposed rule, see 76 FR 80469.



### Table 2. Comments on Non

- Hazardous Secondary Materials Topics

Document ID Number Excerpt Number Commenter Affilitation Commenter Name

EPA

- HQ

- OAR

- 2003

- 0119

- 2567

- A1 1 GenOn Energy, Inc. (GenOn) John P. Shimshock, Sr. Air Environmental Specialist EPA

- HQ

- OAR

- 2003

- 0119

- 2576

- A1 1 Ash Grove Cement Company Curtis D. Lesslie

EPA

- HQ

- OAR

- 2003

- 0119

- 2576

- A1 29 Ash Grove Cement Company Curtis D. Lesslie

EPA

- HQ

- OAR

- 2003

- 0119

- 2577

- A1 6 Utility Solid Waste Activities Group (USWAG) Jim Roewer

EPA

- HQ

- OAR

- 2003

- 0119

- 2578

- A1 1 Maine Pulp & Paper Association (MPPA) John S. Williams

EPA

- HQ

- OAR

- 2003

- 0119

- 2581

- A1 1 Georgia

- Pacific LLC (GP) Traylor Champion

EPA

- HQ

- OAR

- 2003

- 0119

- 2581

- A1 3 Georgia

- Pacific LLC (GP) Traylor Champion

EPA

- HQ

- OAR

- 2003

- 0119

- 2581

- A1 8 Georgia

- Pacific LLC (GP) Traylor Champion

EPA

- HQ

- OAR

- 2003

- 0119

- 2581

- A1 9 Georgia

- Pacific LLC (GP) Traylor Champion

EPA

- HQ

- OAR

- 2003

- 0119

- 2586

- A1 1 Edison Mission Energy (EME) et al. Basil G. Constantelos

EPA

- HQ

- OAR

- 2003

- 0119

- 2592

- A1 3 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur MarinA

- 2



### Table 2. Comments on Non

- Hazardous Secondary Materials Topics

Document ID Number Excerpt Number Commenter Affilitation Commenter Name

EPA

- HQ

- OAR

- 2003

- 0119

- 2592

- A1 4 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur Marin

EPA

- HQ

- OAR

- 2003

- 0119

- 2592

- A1 5 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur Marin

EPA

- HQ

- OAR

- 2003

- 0119

- 2592

- A1 6 Northeast States for Coordinated Air Use Management (NESCAUM) Arthur Marin

EPA

- HQ

- OAR

- 2003

- 0119

- 2595

- A1 2 National Alliance of Forest Owners (NAFO) Roger Martella

EPA

- HQ

- OAR

- 2003

- 0119

- 2596

- A1 8 National Cement Company, Inc. Michael D. Stevens

EPA

- HQ

- OAR

- 2003

- 0119

- 2597

- A1 1 Federal Recycling and Remediation Coalition (FRRC) Susan Bodine

EPA

- HQ

- OAR

- 2003

- 0119

- 2597

- A1 2 Federal Recycling and Remediation Coalition (FRRC) Susan Bodine

EPA

- HQ

- OAR

- 2003

- 0119

- 2597

- A1 3 Federal Recycling and Remediation Coalition (FRRC) Susan Bodine

EPA

- HQ

- OAR

- 2003

- 0119

- 2597

- A1 4 Federal Recycling and Remediation Coalition (FRRC) Susan Bodine

EPA

- HQ

- OAR

- 2003

- 0119

- 2597

- A1 5 Federal Recycling and Remediation Coalition (FRRC) Susan Bodine

EPA

- HQ

- OAR

- 2003

- 0119

- 2597

- A1 6 Federal Recycling and Remediation Coalition (FRRC) Susan Bodine

EPA

- HQ

- OAR

- 2003

- 0119

- 2597

- A1 12 Federal Recycling and Remediation Coalition (FRRC) Susan Bodine

EPA

- HQ

- OAR

- 2003

- 0119

- 2599

- A1 5 Energy Recovery Council (ERC) Ted Michaels

EPA

- HQ

- OAR

- 2003

- 0119

- 2602

- A1 15 Auto Industry Forum (AIF) Shannon S. Broome

EPA

- HQ

- OAR

- 2003

- 0119

- 2603

- A1 2 Portland Cement Association Andrew O'Hare

EPA

- HQ

- OAR

- 2003

- 0119

- 2610

- A1 3 Used Oil Management Association (UOMA) Susan Bodine

EPA

- HQ

- OAR

- 2003

- 0119

- 2612

- A1 1 Wisconsin DNR Bart Sponseller

EPA

- HQ

- OAR

- 2003

- 0119

- 2615

- A1 11 Lafarge North America Michael Pelan

EPA

- HQ

- OAR

- 2003

- 0119

- 2622

- A2 1 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA

- HQ

- OAR

- 2003

- 0119

- 2622

- A2 2 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA

- HQ

- OAR

- 2003

- 0119

- 2622

- A2 3 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA

- HQ

- OAR

- 2003

- 0119

- 2622

- A2 5 National Association of Clean Water Agencies (NACWA) Chris Hornback

EPA

- HQ

- OAR

- 2003

- 0119

- 2627

- A2 2 Pennsylvania Chamber of Business and Industry Shawn Good

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 3 Cemex USA Satish Sheth

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 4 Cemex USA Satish Sheth

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 5 Cemex USA Satish ShethA

- 3



### Table 2. Comments on Non

- Hazardous Secondary Materials Topics

Document ID Number Excerpt Number Commenter Affilitation Commenter Name

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 6 Cemex USA Satish Sheth

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 7 Cemex USA Satish Sheth

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 8 Cemex USA Satish Sheth

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 9 Cemex USA Satish Sheth

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 10 Cemex USA Satish Sheth

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 11 Cemex USA Satish Sheth

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 12 Cemex USA Satish Sheth

EPA

- HQ

- OAR

- 2003

- 0119

- 2632

- A2 13 Cemex USA Satish Sheth

EPA

- HQ

- OAR

- 2003

- 0119

- 2635

- A2 1 The Commonwealth of Massachusetts, Bureau of Environmental Health Suzanne K. Condon

EPA

- HQ

- OAR

- 2003

- 0119

- 2636

- A2 2 State of Washington Department of Ecology Stuart A. Clark

EPA

- HQ

- OAR

- 2003

- 0119

- 2636

- A2 3 State of Washington Department of Ecology Stuart A. Clark

EPA

- HQ

- OAR

- 2003

- 0119

- 2638

- A2 17 Earthjustice, Partnership for Policy Integrity, and Clean Air Council Neil Gorley

EPA

- HQ

- OAR

- 2003

- 0119

- 2638

- A2 18 Earthjustice, Partnership for Policy Integrity, and Clean Air Council Neil Gorley

EPA

- HQ

- OAR

- 2003

- 0119

- 2638

- A2 19 Earthjustice, Partnership for Policy Integrity, and Clean Air Council Neil Gorley

EPA

- HQ

- OAR

- 2003

- 0119

- 2638

- A2 20 Earthjustice, Partnership for Policy Integrity, and Clean Air Council Neil Gorley

EPA

- HQ

- OAR

- 2003

- 0119

- 2641

- A2 1 Maine Department of Environmental Protection (DEP) Lisa P. Higgins

EPA

- HQ

- OAR

- 2003

- 0119

- 2648

- A1 1 PT AirWatchers Gretchen BrewerA

- 4



### 1C. Boiler Major Source

Commenter Name: John S. Williams Commenter Affiliation: Maine Pulp & Paper Association (MPPA) Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2578

- A1 Comment Excerpt Number: 2

Comment: A. CO Standards should be based on Correction to 11 or 12% oxygen Boiler MACT requires that the CO limit be standardized to 3% oxygen which is well below where most biomass boilers normally operate. This biases the stack CO higher when the adjustment from operating CO to the 3% standard is made. Oxygen correction percents should be representative of normal stack conditions under normal operation. Three percent is not normal of most combustion units. This is not normal for the location where a certified CEMS needs to be installed to meet performance specification 1 requirements. CEMS need to be installed in stacks,
not at the boiler outlet. Section 7525 needs to be corrected to require the CEMS to be installed in a boiler stack (or boilers outlet may be used for boilers with shared stacks). "63. 7525 The oxygen analyzer system or the CO CEMS must be installed by the compliance date specified in§ 63.7495. If a CO CEMS is used, the carbon monoxide level shall be monitored at the outlet of the boiler or process heater." B. CO Standards are problematic. The new CO limits are particularly problematic for stoker boilers burning wet biomass1 (such as those at the S.D. Warren Somerset, Lincoln Paper & Tissue, Verso Paper and Old Town Fuel & Fiber mills). Boiler adjustments and costly combustion air reconfigurations (which are not even physical ly possible on some older boilers) are not likely to be sufficient for some biomass stoker boilers to meet the CO limits. Further, CO catalysts which convert CO to C0 2 (a greenhouse gas) and which typically cost over one million dollars may get poisoned, m aking them ineffective. The Boiler MACT CO limits would necessitate combinations of emission controls that would have adverse effects on each other, and even then are unachievable for certain biomass boilers at Maine mills. For example, the conditions that affect the optimum emissions of CO may run contrary to minimizing emissions of NO X . Although NO X is not addressed in the Boiler MACT, for years the northeastern states, including Maine, have focused on the control and reduction of NO X emissions to improve ozone. Minimizing CO emissions conflicts with the State's efforts to minimize NO X . C. EPA should not limit boilers to 110% of the operating load achieved during the last performance test. It appears that, under the Boiler MACT rule, mills must conduct a compliance test for CO and, thereafter, meet an oxygen limit which is the lowest oxygen level recorded during the three one

- hour test runs for CO. The rule requires that a boiler must then be operated at not more than 110% of the operating load achieved du ring the performance test. The highest operating load in a multi fuel boiler often does not correspond with the lowest oxygen condition. This approach is difficult if not impossible to meet in a multifuel boiler, such as those in use at most of Maine's mil ls. If wet fuels happen to be burned during the stack test (EPA requires 60 day notice prior to testing and the weather cannot be predicted) higher levels of oxygen are required and the resulting increase will affect the ability to comply with the CO limit

. When burning biomass, stack oxygen concentrations will be much higher than when firing fuel oil. EPA's stack test compliance approach appears based on the incorrect premise that COA

- 5

emissions from a biomass boiler exhibit low variability. It is unreasonab le to establish a CO emission limit based on a single hourly emission value. Additionally, the rule imposes limitations on boiler steam output operation to that achieved during the CO testing. Paper mill boilers are operated at variable loads based on the process steam demands. It will be impractical to operate at maximum loads during every stack test. Limiting boiler capacity to 110% of the value achieved during a performance test undermines the economic survival of a mill. The rule appears to require mult iple stack test runs for each parameter to demonstrate compliance with each emission limit (two or more tests for CO, two tests for HCL, two tests for Hg, one or more tests for PM ... these tests will not run concurrently). The worst case fuel mix for CO i s likely not the same fuel mix needed to establish minimum 0 2 parameter or the boiler steaming that is needed for normal operation. If performance testing needs to be at the worst case mix for a pollutant, that worst case fuel mix cannot then be tied to a steaming rate limit of 11 0% achieved during the performance test. (Table 7 in the proposed rule limits the operation capacity to 110% for all pollutants tested). The proposed rule will allow units that demonstrate compliance for a particular pollutant at a level at or below 75 percent of the emission limit for 2 consecutive years to forego stack testing for up to 37 months. Since most pollutant testing will be completed during worst case scenarios, this allowance will likely provide no relief of the perfor mance test requirement's costly burden. Also, because of the worst cast fuel mix and operating limit requirements, many multiples of stack testing scenarios will be required. D. EPA should retain a 30

- day rolling average basis for compliance with CO limit s. In the March 21,2011 Boiler MACT regulation, EPA included CO emissions limits based on 30

- day rolling averages and operation of a continuous emission monitor system (CEMS) for boilers 100 MMBtu/hr and greater. The December 23, 2011 proposed amendments w ould shorten the averaging time for CO to a 1 0

- day rolling average basis. Boiler MACT rule establishes CO limits with compliance based on stack tests, which does not provide time to average out inevitable swings in operation and resulting variable CO emis sions. EPA also made changes to its methodology for establishing the final CO limits as compared to the methods used to establish the proposed limits. EPA should reconsider the CO limits because MPPA, its members and the Maine DEP could not reasonably disc ern at the time of proposal the way in which EPA would develop the limits and require compliance with the final standard and therefore did not have a meaningful opportunity to comment on these issues. MPPA members are aware that NCASI has extensively revie wed the methodology used by EPA in the development of the long term CO limit and finds that the data is auto correlated. When the data is assessed using a longer averaging period a higher CO limit is justified. We understand they will be providing recommen dations and urge EPA to adopt this more scientifically based approach. MPPA strongly urges that EPA either return to a 30

- day rolling average for CO limits from biomass boilers equipped with CO continuous emissions monitors and establish more appropriate C O limits for wet biomass fuel boilers.

[Footnote:

1For the purposes of this letter, "wet biomass" is biomass (including bark, sawdust, and wood chips) with approximately 50% moisture. Note that the moisture content of the wet biomass used in the mill boi lers varies based on season, weather, and other variables.]

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial,A

- 6

Commercial, and Ins titutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Roger Martella Commenter Affiliation: National Alliance of Forest Owners (NAFO) Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2595

- A1 Comment Excerpt Number: 3

Comment:
III. Proposed Emissions Limits for Major Sources
Even if EPA properly finalizes the regulations in a way that classifies biomass energy feedstocks

as non

- waste, this clean, renewable, and climate

- beneficial energy supply will not be developed without significant changes to the current emissions limits imposed on biomass boilers under the Major Source rule. Despite the fact that biomass energy is a clean, renewable alternative to fossil fuel combustion, the current regulations impose stringent emissions limits on biomass boilers that will require installation of expensive control technology while providing minimal (and sometimes undetectable) environmental and healt h benefits. Unless changes are made to the existing emissions limits, the high costs of compliance for biomass boilers will inevitably cause energy producers to turn to fossil fuel alternatives with lower compliance costs.

The proposed changes to the Maj or Source rule offer a number of improvements that will reduce compliance costs without sacrificing environmental and health benefits, particularly with respect to dioxin/furan emissions limits and the standards for new biomass boilers. However, these chan ges will not be sufficient to properly encourage and incentivize biomass energy development. NAFO urges EPA to consider additional changes with respect to emissions limits for other HAPs

– including particulate matter standards for existing boilers. Withou t additional changes, future growth in the biomass energy sector will be discouraged and the potential climate benefits of biomass energy will not be fully realized.

A. Work Practice Standards for Dioxin/Furan and Mercury, 40 C.F.R. Part 63, Subpart DDDD D, Table 3

In its Major Source rule comments, NAFO urged EPA to adopt work practice standards for dioxin/furan,26 and we support EPA’s decision to do so now. As EPA recognizes, baseline dioxin/furan emissions from biomass are already extremely low and, i n many cases, are below detection limits. As a result, stringent emissions limits, such as those currently in effect, will require the installation of extremely expensive control technology while providing little if any health benefit. Further given the cu rrent detection limits, it will be impossible to distinguish between compliant and non

- compliant facilities. For these reasons, we support EPA’s proposal invoking its authority under section 112(h)(2)(B) of the Clean Air Act to issue work practice standard s in lieu of emissions limits for dioxin/furan emissions.A

- 7

For the same reasons, EPA should adopt work practice standards in lieu of emissions limits for mercury emissions from biomass boilers. As explained in our Major Source rule comments, EPA’s proposed mercury emissions limits were also below detection limits and would require expensive control technology while providing little if any health benefit.27 Thus, EPA should also adopt work practice standards in lieu of emissions limits for mercury emissions f rom biomass boilers.
B . Emissions Limits for Particulate Matter, 40 C.F.R. Part 63 ,Subpart DDDDD, Tables 1

- 2.
While EPA’s proposed revisions to the PM emissions limits demonstrate an attempt at increasing flexibility and reducing regulatory burdens, it f ails to produce this effect for many existing biomass boilers. EPA’s decision to create PM subcategories for coal

- and biomass

- fired boilers, resulted in uneven results and in several cases we are concerned that the emissions limits included in the propose d rule remain too stringent. As explained in our prior comments, the current PM emissions limits will require biomass facilities to install costly new control technology and incur higher operating costs, creating a risk that facilities will avoid biomass f uels and turn instead to fossil fuel alternatives. But, rather than relieving this burden, the proposed PM emissions limits for existing “stokers/sloped grate/others designed to burn wet biomass fuel”

– the most common type of biomass boiler currently in u se

– are actually more stringent than those under the current rule. Further reductions in PM emissions limits for the majority of existing biomass boilers will have a significant and detrimental effect on the viability of these boilers as alternatives to f ossil fuel boilers. The wood products industry, which employs the majority of the wet stoker boilers, was significantly impacted by the recession and is still struggling to recover. EPA must reassess the emissions limits for existing wet biomass stoker boi lers and adopt more reasonable standards that can be achieved in practice and will satisfy legal requirements, without prohibitive costs that will further threaten the health and viability of this important industry.

Footnotes:
26NAFO Major Source Rule Comments, at 7, 9. 27Id.26
Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process He aters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

C ommenter Name : Ted Michaels Commenter Affiliation : Energy Recovery Council (ERC) Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2599

- A1 Comment Excerpt Number: 16

Comment: On July 12, 2011, in response to EPA’s May 18, 2011 call for emission data, the Biomass Power Association (BPA) submitted emission data for 15 biomass units. (EPA

- HQ

OAR

- 2003

- 0119

- 2531) The submittal included a descri ption of all materials combusted during each of the tests for which data were provided. Of the 15 units, seven combusted “urban wood” 5A

- 8

from processors during the emission tests. In its submittal BPA stated that all units were “CISWIs or possible CISWIs” a nd explained that the basis for that determination was a conservative reading of the confusing March 21, 2011 final NHSM rule. In its December 23 proposal and MACT floor calculations EPA has categorized 12 of these biomass units as either Major Boilers or Area Source Boilers. This includes the seven units combusting processed C&D wood. These units are noted in the Major Source Boiler MACT database as: CAChineseStation, CACovantaDelano Unit 1, CACovantaDelano Unit 2, CACovantaMendota, CAPacificOroville Boil er 1, CAPacificOroville Boiler 2, and CAThermalEnergyDev.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Ins titutional Boilers and Process Heaters. However, we note that the BPA data of July 12, 2011 the commenter refers to was incorporated in the respective inventories. Based on our understanding of the NHSM rule and the information available on these units fr om BPA, we had moved the Wheelabrator Shasta ERUs to the CISWI inventory. However, as pointed out by the operator of these unit (see comment excerpt 8 from EPA

- HQ

- OAR

- 2003

- 0119

- 2628

- A2), the BPA data was outdated and the Wheelabrator units have not been combusting waste materials and were not planning on combusting any materials that may be considered waste. Therefore, these units have been removed from the CISWI inventory and instead placed in the Major Source boiler inventory for the final rule.

Comme nter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2602

- A1 Comment Excerpt Number: 2

Comment: The Notice of Reconsideration appropriately recognized that the final rules that wer e issued required revision due to numerous technical, legal and policy issues that the Agency had not had sufficient time to address in its final rulemakings. By the same token, however, the notice created uncertainty on multiple levels as to the final lim its and standards of the Boiler MACT and CISWI Rules. First, it created uncertainty as to the final composition of “a number of issues” EPA enumerated in the Notice of Reconsideration. Those included fundamental aspects of the Boiler MACT and CISWI Rules, e.g., revisions to the proposed subcategories and to the fuel specification through which gas

- fired boilers using a fuel other than natural gas (“NG”) can qualify as Gas 1 units in the Major Source Boiler MACT

. See id . Second, the Notice of Reconsideration created uncertainty as to which other elements not enumerated by EPA would become part of the reconsideration process and how reconsideration might alter the form of those elements as finalized on March 21, 2011. This is because EPA explicitly set forth t hat it was still “in the process” of determining the full extent of those subjects and that it was committed to including “all additional issues” appropriate for reconsideration, including those raised in any then

- prospective petitions for reconsideration. Even to the extent that the Notice of Reconsideration enumerated certain, specific subjects as under reconsideration, it acknowledged that the list was only a portion of the subjects that EPA would ultimately reconsider. See id. Indeed, the scope of the i ssues that EPA intended to reconsider was not identified until the 3 December 23, 2011, reconsideration proposal, some 9 months later than theA

- 9

publication of the final rule (and a substantial portion of the way into the compliance planning period for affec ted sources). The Notice of Reconsideration, therefore, literally put affected sources, including those owned and/or operated by AIF members, on notice that they should not

– and, indeed, could not

– initiate selections of control technologies or make othe r compliance decisions because elements of the Boiler MACT and CISWI Rules were subject to change. The subsequent Delay Notice reinforced the notion that affected sources should postpone the start of internal compliance procedures because it expressly dela yed the May 20, 2011, effective date of the Boiler MACT and CISWI Rules, pending the conclusion of judicial review or EPA’s reconsideration process. See Delay Notice , 76 Fed. Reg. at 28,662. In the notice, EPA again reiterated that a reconsideration propos al would be forthcoming and that the full extent of the subjects under reconsideration would not be known until issuance of that proposal. See id. at 28,663. In the Delay Notice, therefore, EPA induced reasonable reliance on the part of affected sources, i ncluding those owned and/or operated by AIF members, to put off making the necessary compliance decisions until further notice. When weighing various energy strategies to comply with the Boiler MACT, automotive companies face a number of choices. For insta nce, facilities with coal

- fired boilers must decide between several options for meeting the anticipated rules and optimizing energy usage, including adding control equipment to current boilers; converting less efficient steam

- powered heaters to NG

- fired un its; and eliminating coal boilers altogether by either converting them to, or replacing them with, NG

- fired units or resource

preserving, landfill gas

- fired boilers. The control options associated with the CISWI rule will be even more numerous due to the h igher emission restrictions involved. Uncertainty as to the final form of the regulations

– including which controls, work practices, and emission standards will apply

– inhibits automotive companies from judiciously making these involved energy policy dec isions. Once the rules are finalized, implementation of the changes required to achieve compliance can require significant time, beginning with the company’s internal review process. First, the automotive company’s legal and technical personnel must analyz e the newly promulgated requirements to determine the best course of action based on the company’s production requirements and its short

- and long

- term financial situation. After selecting a strategy, the technical staff must compile and present a budget a nd informational package to facilitate the managerial decision

- making process. Next, the automaker’s management must review and approve the compliance strategy. Management approval is followed by compilation of a bid package and vendor list to assist the c ompany in identifying the best equipment and value. The automaker then submits bid packages to identified bidders and, after several rounds of clarifications and negotiations, selects and hires a bidder. It can easily take 6

- 8 months after the rule is fina lized to select a control option and hire an installation contractor, assuming a qualified vendor is available to begin work immediately. Under current regulatory timetables, this would give all affected sources slightly more than a year to design, build, install, and test required control equipment, an insufficient period of time. 4 Even after a company hires a vendor, it needs additional time to order and install equipment. The length of time depends on the types of equipment or controls chosen, and obtai ning certain pieces of equipment sometimes involves significant lead times. In addition, as EPA acknowledges, only a limited number of vendors are qualified to fabricate and install the equipment that the Boiler MACT and CISWI and NHSM Rules will ultimatel y require.3 A short implementation window would result in flooding these vendors with bid requests and aggressive equipment delivery and installation demands, causing increased wait times and increasing compliance risk for owners and operators. Moreover, a s EPA is aware, installation of controls or changes to a process to comply with a rule typically requiresA

- 10

air construction permits to be issued under the state implementation plan (“SIP”) and revision of Title V operating permits. Construction permit proce ssing times can range from 3 months to over a year and revision of operating permits typically takes no less than 6 months but can take longer. After the required permits are issued and the requisite equipment is delivered, the speed of installation can de pend on the weather in northern climates (where many of AIF members’ facilities are located), which inhibits the pouring of concrete foundations depending on the season. A start

- up time follows equipment installation and then, generally, the vendor must te st the equipment to demonstrate that it meets performance claims. Moreover, as EPA is aware, the rules, once finalized, will require some type of third

- party equipment performance testing. Regulated entities will need to select those third

- party testing co mpanies by a process similar to vendor

- selection process described above and, again, the regulated community would expect shortages of qualified testing vendors in any truncated or expedited rule

- implementation window. If, as evaluated through the testing process, the equipment does not meet performance requirements, then it may need additional modification or adjustment. In the reconsideration proposals, EPA recognizes in general terms the effect of the Notice of Reconsideration and the Delay Notice, descr ibing the “resulting uncertainty” as having “limited the ability of affected sources to begin making appropriate selections of control technologies and other compliance decisions.” E.g., Boiler MACT Reconsideration Proposal, 76 Fed. Reg. at 80,616. As desc ribed above, the compliance process for regulated entities like facilities owned and/or operated by AIF members is protracted and involves many interconnected steps. Given that the regulated community cannot begin the compliance process without knowing the final contours of the rules, any delay in EPA finalizing the Boiler MACT and CISWI Rules necessitates a corresponding delay in the beginning of the compliance period. Otherwise, affected sources, including those owned and/or operated by AIF members, will have insufficient time to comply. Therefore, AIF supports EPA’s proposal for the compliance period to begin 60 days after it publishes the final reconsideration rules. [Footnotes] (3) In the Boiler MACT Reconsideration Proposal, EPA notes that, even under the statutory maximum of 3 years, the availability of control equipment and vendors to facilitate installation of control technologies is likely to pose a problem, given the thousands of facilities across multiple, diverse industries that will become subj ect to the final reconsideration rules. See Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. The potential scarcity in availability of equipment and vendors promises to be exacerbated, as EPA recognizes, by the “large number of units requiring controls in conjunction with the parallel rulemaking for electric generating units that will require controls from many of the same vendors.” Id.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission St andards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. However, to the extent their comment concerns CISWI, we have responded below.

CAA section 129(g)(2) defines a “new solid waste i ncineration unit” as a “solid waste incineration unit for which construction is commenced after the Administrator proposes requirements under section [129] establishing emissions standards or other requirements which would be applicable to such unit or a m odified solid waste incineration unit.” There is some ambiguity in the language of the statute and such language could refer to different dates in different circumstances, such as the time the Agency first proposes any standards for the sourceA

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category, t he time the Agency first proposes standards under a particular rulemaking record for the source category, or the time the Agency first proposes a particular standard.

In the proposed reconsideration rule, the EPA proposed to extend the compliance dates fo r CISWI sources, but we did not propose or take comment on changing the June 4, 2010, date that determines new source eligibility, nor did we solicit comment on this issue. Although CISWI commenters did not make this assertion, industry commenters to the major source boiler rule stated that we should change the date for determining new source status from June 4, 2010 to December 23, 2012, the date of the proposed reconsideration rule. In support, they asserted that they will not know what the final standa rds are until we finalize the reconsideration rule. We disagree with the commenters’ suggestion and are retaining the June 4, 2010 date as the date that determines whether a source is a new source under CAA section 129(g)(2) for the CISWI rule.

It is r easonable to retain the June 4, 2010 date as the date the Agency proposed requirements standards for this source category. This is the date that EPA proposed standards for these sources under this particular rulemaking record. Today’s action is a reconsi deration action, and although it revises several of the new source standards, it is premised on the same general rulemaking record. It is thus reasonable to view the date EPA proposed standards for these sources to be the June 4, 2010 date. Further, indu stry commenters essentially advocate an approach whereby any time the Agency changes a new source standard, in any way, on reconsideration, the new source trigger date would change. Such a result is not consistent with Congress’ intent in defining the ter m “new source” in section 129(g)(2), to be the date the Agency proposes requirements for solid waste incineration units. Furthermore, EPA notes that the standards finalized today are ones that can be met, in our view, using the same or similar control tec hnologies as would be used to meet the final standards issued in March 2011.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA

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Comment : As EPA acknowledges, even after issuance of the reconsideration proposals, affected sources’ uncertainty as to the final form of the Boiler MACT and CISWI Rules persists because the reconsideration proposals put forward a number of substantive revisions to the definitions, subcategories, emission limits, work practice standards and other components of the rules. See CISWI and NHSM Rules Reconsideration Proposal , 76 Fed. Reg. at 80,465; Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. In the Boiler MACT Reconsideration Proposal, for example, EPA “proposed changes to emission limits for units in every subcategory.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616 (emphasis added). Revision to emission limits and standards across the subcategories will trigger different compliance responses and control selection than would have flowed from the final rules of March 21, 2011. Those proposed changes, coupled, for example, with the shift to work practice standards for dioxin/furan emissio ns for all subcategories, significantly impacts the ability of affected sources, including those owned and/or operated by AIF members, to develop and decideA

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upon final compliance strategies while the reconsideration process remains ongoing. See id. As EPA notes, facilities must design emission controls to work properly when operated together, so they cannot initiate appropriate design of those controls (and make corresponding compliance decisions) until the final limits and standards are known and fixed. Se e id. The fact that the Boiler MACT and CISWI and NHSM Rules all simultaneously remain in development adds a special level of complication to system analysis prior to the finalized rules. For example, in one process, a company must analyze a system to eval uate which materials the NHSM Rule might be interpret as a “solid waste.” This determination will dictate whether the equipment must ultimately meet the Boiler MACT or the CISWI Rule. In the case of the CISWI Rule, a particular process would likely require addition of an afterburner or recuperative oxidizer, selective catalytic reduction (“SCR”), a scrubber, activated carbon injection and a baghouse. If the material is considered a fuel and not subject to CISWI, however, it would have to meet the Boiler MAC T requirements, which would likely involve only a scrubber and a baghouse. Moreover, uncertainty regarding the final limits required by the rule complicates decisions on the process order of the equipment layout. Determination of the final pollutant emissi on limits dictates, for instance, whether to use a SCR and spray dryer combination versus a multi

pollutant, Tri

- NOx system followed by an acid gas scrubber. The regulated community, including AIF members, simply cannot make these decisions until EPA final izes the reconsideration proposals. Therefore, such persistent uncertainty delays the start of the implementation process. Once EPA finalizes the Boiler MACT and CISWI Rules, the compliance strategy process for affected sources, including those owned and/o r operated by AIF members, must begin anew. As EPA does not expect to finalize the reconsideration proposals until later this Spring, maintaining the original compliance dates would provide affected sources with an insufficient amount of time to meet the s tandards of the forthcoming final reconsideration rules. For the Boiler MACT, for example, maintaining the original compliance date of March 21, 2014, would 6 effectively provide affected sources with less than 2 years. Even under the maximum time of 3 yea rs from the effective date allotted under Section 112 of the Clean Air Act (“CAA”), with which EPA sought to provide affected sources in the March 21, 2011, final rule, EPA characterized the compliance timetable as “pressing.” Delay Notice , 76 Fed. Reg. at 28,663. AIF concurs. As EPA suggests in the reconsideration proposals, if the Agency does not key the compliance period to the final reconsideration rules, sources will have insufficient time to achieve compliance. EPA should finalize its proposal to begi n the compliance period 60 days after publication of the final reconsideration rules.4 [Footnotes] (4) Consistent with its proposal as to affected sources, EPA proposes to delay the start of the compliance period for new sources until 60 days after publica tion of the final reconsideration rules. See CISWI and NHSM Rules Reconsideration Proposal , 76 Fed. Reg. at 80,465; Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,616. AIF supports this proposal for many of the same reasons articulated with respe ct to affected sources.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commen ter has provided these comments to that rulemaking, they will be addressed there. However, to the extent their comment concerns CISWI, see the response to EPA

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Commenter Name: Shannon S. Broome Commenter Affiliatio n: Auto Industry Forum (AIF) Document Control Number: EPA

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Comment: CAA § 112(i)(3)(A); 42 U.S.C. § 7412(i)(3)(A) (emphasis added). The plain language of § 112(i)(3)(A) directs EPA to establish a compli ance date “no later than 3 years after the effective date” of any emission standard, limitation, or regulation. Here, consistent with that directive, for the Boiler MACT, EPA initially set a compliance date for the Boiler MACT of March 21, 2014, or 3 years after the March 21, 2011, publication of the final rule in the Federal Register and slightly less than 3 years after the initial effective date of May 20, 2011. Now, as discussed above, EPA proposes to start the 3

- year compliance period beginning 60 days after publication of the final reconsideration rule. As discussed above, the rationale is that EPA proposes substantial revisions of the reconsideration proposals and that the Notice of Reconsideration, along with the Delay Notice, generated uncertainty as to the final form of the rules throughout the regulatory community. As a result of this process, affected sources have not been able to initiate the compliance process

— the composition of the final rule remains unclear and those sources continue to operate in reliance on EPA’s representations that the effect of the Boiler MACT is stayed and that the 3

- year compliance period will begin only after publication of the final reconsideration rule. Looking first to the statute, while Section 112 provides that emis sion standards or other regulations promulgated under Section 112(d) “shall be effective upon promulgation,” CAA § 112(d)(10); 42 U.S.C. § 7412(d)(10),5 the statute does not address what that means in the current context, in which EPA is revising

– and doi ng so in a substantial
way

– a previously promulgated standard and promulgating a new standard. It does not state, when it directs EPA to establish a compliance date within 3 years of the “effective date,” whether the effective date must be the date on whi ch the emission standard is effective as first promulgated or as subsequently revised on reconsideration. EPA’s final action will essentially act as a new issuance of an emissions standard, which itself will have a new “effective date.” Under Section 112(i ), therefore, EPA may, indeed must, determine the compliance date for existing sources based on that effective date. Case law does not prohibit the Agency form taking this approach. The D.C. Circuit has not squarely taken up this issue; instead, it has mer ely consideration EPA’s authority to extend compliance deadlines beyond the 3

- year statutory maximum. See NRDC v. EPA, 489 F.3d 1364, 1373

- 74 (D.C. Cir. 2007). Specifically, in NRDC, the D.C. Circuit vacated a portion of an EPA rulemaking that had extended the original compliance date by one year for sources in the lowrisk subcategory of the MACT for plywood and composite wood products (40 C.F.R. § 63, Subpart DDDD ). See id. The court held that EPA had not relied on Section 112(i)(3)(B) for this extension

– the provision that addresses extensions

– but instead had relied on Section 112(i)(3)(A), which addresses the compliance period keyed to the effective date of an emissions standard. See id. In NRDC, according to the court’s holding, EPA went astray when i t promulgated emission standards in 2004, setting a compliance deadline for 3 years later (2007) and then endeavored to extend the compliance deadline for 2008

– or 4 years after the effective date

– based on a finalized reconsideration proposal but withou t undergoing the case

- by

- case extension process provided in Section 112(i)(3)(B). See id. By contrast, here EPA is resetting the clock on the emissions standard because it is repromulgating the action. In the case of the Boiler MACT, for example, EPA propo ses the following amendments to § 63.7495, concerning “When do I have to comply with this subpart?”: (a) If youA

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have a new or reconstructed boiler or process heater, you must comply with this subpart by [DATE 60 DAYS AFTER THE FINAL RULES IS PUBLISHED IN T HE Federal Register] or upon startup of your boiler or process heater, whichever is later. (b) If you have an existing boiler or process heater, you must comply with this subpart no later than [DATE 3 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE Federa l Register], except as provided in § 63.6(i). Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,628 (formatting in original). The reconsideration proposal, then, avoids the problem created by EPA’s approach to extending the compliance deadlines in N RDC because it does not stretch the compliance deadlines beyond 3 years after the effective date. Instead, this proposal sets a new effective date of 60 days after publication of the final reconsideration rule and then fixes the compliance deadline to 3 ye ars after that date. As a corollary, it fixes the date on which new or reconstructed sources must comply with the emission standards as 60 days after the final reconsideration rule, which adheres to the mandates of § 112(i). EPA’s proposal, therefore, is c onsistent with the holding of NRDC and the statutory directive of § 112(i)(c)(A). EPA has the legal authority to finalize the proposed regulations as to the compliance period.6 [Footnotes] (5) Note that the Congressional Review Act had the effect of delay ing this date by 60 days to allow time for congressional review. 5 U.S.C. § 801(a)(3). (6) In the alternative, at a minimum, EPA could invoke authority under Section 112(i)(3)(B) and create a streamlined case

- by

- case process for granting extensions of one year.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA

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Comment: In the final rule, EPA defined “gaseous fuel” to include landfill gas (“LFG”) but excluded it from the “Gas 1 fuel” category, instead characterizing it as an “other process gas” in the “Gas 2 fuel” category. See Boiler MACT , 76 Fed. Reg

. at 15,639, 15,684. As a result, the final rule initially designates any boiler or process heater firing any percentage of heat input from LFG as a unit designed to burn Gas 2 fuel, which would subject the source to the Gas 2 category’s stringent emission l imits. See id. at 15,688

- 91. Despite this initial designation, EPA promulgated a “demonstration mechanism” or “other Gas 1 fuel” specification that would allow Gas 2 fuels to meet a specification for EPA to identify them as “other Gas 1 fuels.” See id.
at 15,639. To utilize this mechanism, the final rule required units to demonstrate that the levels of hydrogen sulfide (H 2 S) and mercury (Hg) in the other gases they combust besides NG and refinery gas (“RG”)

– the Gas 1 fuels

– are no higher than those found in Gas 1 units. See id. Specifically, EPA utilized NG as the baseline for comparison. See id. Under the final rule, then, units were required demonstrate that the LFG they combust emits less than 4 parts per million volume (“ppmv”) H 2 S and 40 micrograms p er cubic meter (“μg/m3”) Hg for the LFG to qualify for classification in the Gas 1 category. See id. In its petition for reconsideration and subsequent comments, AIF raised several concerns with EPA’s regulatory classification of LFG:

- First, AIFA

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commented that subjecting the use of LFG to the emission limits of the Gas 2 category was not feasible as AIF reported that its members with units utilizing LFG anticipated they would not be able to meet the Gas 2 category’s stringent emission limits ( e.g., for CO) , particularly in the case of units designed and permitted to minimize emissions of NO X (for ozone attainment).

- Second, AIF advised EPA that the demonstration mechanism would not likely offer relief to those units’ source operators because their LFG strea ms would likely test well above the demonstration mechanism’s limit of 4 ppmv H 2 S. 7

- Third, AIF set forth that the Boiler MACT, therefore, creates disincentives for the use of LFG, contrary to EPA’s own stated policy of encouraging the beneficial use of LF G. See, e.g., U.S. EPA, Basic Information, Landfill Methane Outreach Program (“LMOP”), http://www.epa.gov/lmop/basic

- info/index.html (last checked February 21, 2012).

- Fourth, AIF commented that the demonstration mechanism was arbitrary and capricious beca use it created more stringent requirements for the use of LFG than the use of those gases

– NG and RG

– automatically classified in the Gas 1 category. For example, AIF noted that the demonstration mechanism required LFG to meet an H 2 S emission limit of 4 ppmv or less for classification as a Gas 1 even while the regulations allowed RG emissions of up to 162 H 2 S and yet automatically classified RG as a Gas 1. AIF explained that such classification was arbitrary and capricious because emissions from LFG are c omparable to those from NG and RG . To that end, AIF attached to its comments a report published in July 2011 by CH2M Hill and entitled Boiler MACT Fuel Classification Review for Landfill Gas that showed the comparability of LFG to NG and RG in the relevant emission measures. The report, thus, demonstrated the absence of a rational basis for EPA to regulate the use of LFG differently than the use of NG and RG, i.e., require LFG to meet the demonstration requirement for classification in the Gas 1 category. AIF, therefore, commented that LFG should qualify automatically for classification under the Gas 1 category. In the reconsideration proposal, EPA proposes to eliminate the H 2 S specification but would retain the Hg specification for a fuel to qualify in the Gas 1 category. As explained in detail below, AIF supports the elimination of the H 2 S specification but believes that retention of the Hg specification, at least as to LFG, is unnecessary and inappropriate based upon the technical information before the A gency and that the proposal discourages the beneficial use of LFG (a gas formerly flared at the landfill) in boilers and process heaters. Instead, the proposed rule will create barriers to using LFG, a renewable fuel, and lead companies that have sought to put LFG to beneficial use to move back toward exclusive use of NG. This will result in combustion of neglected LFG by the landfills that will:

- increase emissions to the environment overall since the landfill gas must still be burned or flared,

- waste a v aluable fuel source further depleting NG reserves, and

- run counter to EPA’s policies and programs for encouraging the beneficial use of LFG. AIF urges EPA to revisit its proposed specifications. Moreover, AIF urges the Agency to recognize the importance o f minimizing liability for users of LFG and not impose certification requirements on content of the gas that are not within the control of the certifying entity. 1. While AIF Supports EPA’s Proposal to Eliminate the H 2 S Specification, Given Landfill Gas’ R elative Equivalence to Natural Gas and Refinery Gas in Relevant Emission Measures, EPA Should Automatically Classify Landfill Gas as a Gas 1 Fuel. In the reconsideration proposal, EPA does not propose to change the Gas 1 category to automatically include L FG ; it still proposes to classify use of LFG in the Gas 2 category. See Boiler MACT Reconsideration , 76 Fed. Reg . at 80,641, 80,652, 80,655. Yet, as EPA offers no sound science or policy rationale supporting its proposed listing of LFG as a Gas 2 fuel, AIF urges EPA to automatically identify LFG in the Gas 1 fuel category in the final reconsideration rule. As noted above, the CH2M Hill report attached to AIF’s July 15, 2011, comments concluded that LFG isA

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comparable to the Gas 1 fuels NG and RG in the relev ant emission measures. In the updated version, dated December 2011, CH2M Hill provides further support as to its relative equivalence. See CH2M Hill, Boiler MACT Fuel Classification Review for Landfill Gas (December 2011), Attachment C (attached to these c omments). CH2M Hill conducted a comparison of the emission properties of boilers firing LFG as fuel to those of boilers firing Gas 1 fuels NG and RG, and examined the readily available public information to compare those fuels. As reflected in the report, CH2M Hill concludes that sufficient data were readily available for EPA to establish that LFG is comparable to NG and RG with regard to HAP emissions, and that both emissions and raw gas analysis data support classification of LFG as a Gas 1 fuel. Accordin gly, EPA cannot reasonably treat LFG differently from the Gas 1 fuels NG and RG. It should identify LFG as a Gas 1 fuel in the final reconsideration rule. 2. As Extensive Data Reflect Hg Concentrations in Landfill Gas as Consistently and Considerably Below the 40 μg/m3 Limit in the “Other Gas 1 Fuel” Specification, EPA Should Automatically Classify Landfill Gas as a Gas 1 Fuel. As discussed in greater detail below, EPA proposes to eliminate the H 2 S fuel specification and use a fuel specification for “other Gas 1 fuel” based only on the Hg level in the gaseous fuel (using the same level as EPA included in the final rule). See Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,653. EPA proposes a new definition of “other Gas 1 fuel” in 40 C.F.R. § 63.757 5 as: a gaseous fuel that is not natural gas or refinery gas and does not exceed the maximum concentration of 40 micrograms/cubic meters of mercury. Id. Under this proposal, LFG

– as well as other gaseous fuels besides NG and RG

– still would still initial ly fall under a Gas 2 fuel classification but could now gain classification in the “other Gas 1 fuel” category with a demonstration of not exceeding the previously published Hg limit of 40 μg/m3. The large quantity of available data, including data develop ed by EPA in 2008, demonstrates that LFG consistently tests for concentrations of Hg well below the 40 μg/m3 threshold. 8 The Hg concentrations reported in the numerous studies listed in Attachment D (attached to these comments) provide sufficient evidence, in accordance with § 63.7521(i), and without the need to conduct further studies, to identify LFG as a Gas 1 fuel along with NG and RG. As is articulated in Attachment D, based on the individual data measurements reported in the numerous published studies , the mean concentration of Hg in LFG is 2 μg/m3 and the 95% upper confidence limit is 2.7 μg/m3

— i.e., well below the 40 μg/m3 threshold. 9 The abundant published data on Hg levels in LFG, including the many studies sponsored by EPA, support an automatic Ga s 1 categorization for LFG as a Gas 1 fuel. The data demonstrate that Hg concentrations in LFG are consistently below the 40 μg/m3 fuel specification level. There are far more data on the record demonstrating LFG as containing concentrations of Hg well bel ow the 40 μg/m3 threshold than data demonstrating, for example, concentrations of RG as falling below that threshold. EPA’s determination to automatically classify RG as a Gas 1 fuel based on that dataset indicates that LFG should be treated similarly give n the dataset on its emissions levels. 10 There is no rational basis to subject units that utilize LFG to the certification and monthly testing provisions of the demonstration mechanism (discussed in more detail in the succeeding sections). 3. Compelling Po licy Reasons Support EPA Automatically Classifying Landfill Gas as a Gas 1 Fuel. LFG functions as a viable replacement for fossil fuel and AIF’s members have chosen to purchase LFG and utilize it as an alternate fuel to NG, in part in response to EPA progr ams encouraging its use in this manner. For some members, this can function as a key element in their corporate sustainability goals. The imposition of new and unreasonable regulatory burdens on LFG combustion would undercut LFG’s viability as a renewable alternative fuel and the investment made in its use by many companies, including AIF’s members. EPA’s failure to identify LFG asA

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a Gas 1 fuel would subject units utilizing LFG to stringent emission limits, which many facilities, including those owned and/o r operated by AIF members, would struggle to meet, thereby creating strong disincentives to the use of LFG in boilers. 11 Such an outcome would conflict with EPA’s stated policy of encouraging the beneficial use of LFG. See LMOP, supra

. Under the Boiler MAC T, units designed to burn Gas 2 fuels are subject to strict numeric emission limits for certain HAPs. By EPA’s own analysis, the estimated control costs for Gas 2 units are higher than the combined compliance capital costs for boilers and process heaters i n all other categories. See LMOP, supra . Many of the facilities owned and/or operated by AIF members would be forced to consider using only NG or some other fossil fuels if LFG

- firing in boilers is subjected to Gas 2 emission limits. Discouraging the use o f LFG as an alternate to NG could lead to detrimental environmental impacts. As of September 20, 2011, EPA’s LMOP contained data on 60 boiler projects and 17 boiler

- steam turbine projects that utilize LFG. EPA estimates reflect the 60 boiler projects as ut ilizing approximately 1900 Million British Thermal Units per hour (“MMBtu/hr”) of LFG and the 17 boiler

- steam turbine projects as utilizing approximately 2400 MMBtu/hr of LFG. 12 If those project owners and/or operators were to stop combusting LFG and inste ad combust NG, the landfills could not simply cease producing the LFG those projects use; rather, the landfills would have to combust the neglected LFG, increasing emissions of greenhouse gases and criteria pollutants. Based on EPA’s own calculations, the resulting net increase in overall fossil fuel

- based CO 2 emissions from those boiler and boiler

- turbine projects would be 2,025,698 tons. Further, the nation would experience additional emissions of 12,841 tons of CO, 291 tons of PM and 684 tons of NO X , as well as slight increases in SO 2 and Hg emissions. Unless EPA amends the reconsideration proposal, the regulated community, including AIF’s members, would likewise incur significant financial costs combusting NG rather than LFG to comply with the Boiler MAC T. For boiler and boiler

- turbine projects now using LFG, the order

- of

- magnitude estimate of the total direct costs of switching to NG is $ 1.064 billion. See CH2M Hill, Boiler MACT Economic Impact Evaluation (Nov. 9, 2011), Attachment B (attached to these comments). Moreover, project owners would lose the value of the LFG processing and transport equipment that they would have to abandon in ceasing to use LFG. See id. The total estimated capital assets lost for existing projects would be $87 million. See id

. These compelling policy reasons indicate that EPA should automatically identify LFG as a Gas 1 fuel in the final reconsideration rule. As a corollary, AIF urges EPA to clarify that the CISWI Rule does not apply to the combustion of LFG when combusted for control or as fuel in a boiler, i.e., the combustion of LFG is not a “contained gaseous material” and, therefore, it is not a “solid waste” and not regulated under the CISWI Rule. LFG is not a “sold waste” because, even if it considered to have been deriv ed from “solid waste,” it is a newly generated material that has never been discarded. EPA should add clarifying language to that effect in the CISWI and NHSM Rules. 13 4. If EPA Persists in Listing Landfill Gas in the Gas 2 Category and Subjecting It to th e Demonstration Mechanism, EPA Should Still Make a Categorical Determination to Automatically Classify Landfill Gas as an “Other Gas 1 Fuel.” As noted above, LFG is equivalent to Gas 1 fuels NG and RG in the relevant emission measures, abundant data show H g levels for LFG as consistently, substantially below the “other Gas 1 fuel” specification limit for Hg, and compelling policy reasons support classifying LFG as a Gas 1 fuel. If, however, EPA fails to list LFG in that category and, instead, persists in li sting LFG as a Gas 2 that can qualify for the Gas 1 category only through the demonstration mechanism, then EPA should make a categorical determination that LFG qualifies as an “other Gas 1 fuel.” AIF, therefore, recommends EPA modify § 63.7521(f) as follo ws: To demonstrate that a gaseous fuelA

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other than natural gas or refinery gas qualifies as an other gas 1 fuel, as defined in § 63.7575, you must conduct a fuel specification analysis for mercury . . . except as specified in paragraph (f)(1) through (3) of this section. (1) You are not required to conduct the fuel specification analyses in paragraphs (g) through (i) of this section for natural gas, or refinery gas or landfill gas. Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,633 (strikethrough r eflecting suggested deletions; underline reflecting suggested additions). 5. To the Extent that Landfill Gas (or Any Gaseous Fuel) May Qualify as Gas 1 Only Through the “Other Gas 1 Fuel” Specification, EPA Should Finalize the Proposed Elimination of the H 2 S from the Specification Because H 2 S is Not Directly Related to Potential HAP from the Combustion of Gaseous Fuel. As noted above, EPA proposes to revise the fuel specification analyses requirements for the demonstration mechanism. See id. at 80,609, 80,6 41. Specifically, EPA reexamined the fuel specification and concluded that (1) the H 2 S fuel specification from the final rule does not provide a direct indication of potential HAP from combustion of gaseous fuel and (2) the key contaminant for demonstratio n of comparability from a HAP perspective is Hg. See id. Upon reexamination, then, EPA proposes to eliminate the H 2 S fuel specification and use an “other Gas 1 fuel” specification based only on an Hg level in the gaseous fuel of 40 μg/m3, i.e., the same le vel as EPA included in the final rule of March 21, 2011. See id. Under this proposal, LFG (and other gaseous fuels besides NG and RG) still would initially fall into the Gas 2 fuel category but could now qualify as an “other Gas 1 fuel” with merely a demon stration of not exceeding the previously published Hg limit of 40 μg/m3. Boiler MACT

, 76 Fed. Reg. at 15,639. As articulated above, AIF urges EPA to automatically classify LFG as a Gas 1. If, however, EPA retains the demonstration mechanism and still classifies LFG (and/or other gaseous fuels) in the Gas 2 category, AIF supports the proposed elimination of H 2 S from the fuel specification, i.e. , EPA’s proposed “other Gas 1 fuel” specification based solely on a Hg concentration of 40 μg/m3. AIF concurs w ith EPA that the H 2 S fuel specification from the final rule does not provide a direct indication of potential HAP from the combustion of gaseous fuel. Moreover, as stated in AIF’s prior comments, the prior formulation of the demonstration mechanism arbitra rily and capriciously required LFG to meet an H 2 S emission limit of 4 ppmv or less for classification as a Gas 1 even while the regulations allowed RG emissions of up to 162 H 2 S and still automatically treated RG as a Gas 1. If EPA elects to retain the dem onstration mechanism as the method for LFG (and other gaseous fuels) to attain “other Gas 1 fuel” classification, AIF, therefore, supports the proposed elimination of the H 2 S fuel specification. 6. As to the “Other Gas 1 Fuel” Specification, EPA Should Ame nd the Certification Option to Make It More Workable and Amend the Monthly Testing Option to Allow for Additional Flexibility. Even with the proposed elimination of H 2 S, the “other Gas 1 fuel” specification does not provide a viable avenue for relieving LF G (and other gaseous fuels in the Gas 2 category) of the regulatory burdens associated with unnecessarily stringent emission limits, sampling, and testing. In its current form, the demonstration mechanism still creates a significant disincentive for compan ies to purchase and use LFG as a renewable fuel alternative to NG. It provides facilities using fuels in the Gas 2 category and seeking to qualify those fuels for classification in the Gas 1 category with a choice between a certification or monthly testing

. Specifically, proposed § 63.7530(g) states: If you elect to demonstrate that a gaseous fuel meets the specifications of an other gas 1 fuel as defined in §63.7575, you must conduct an initial fuel specification analyses according to §63.7521(f) through ( i). If the mercury constituents in the gaseous fuels will never exceed the specification included in the definition (40 ug/cm) you will include a signed certification with the Notification of Compliance Status that the initial fuel specification test meets the specification outlined in the definition of other gas 1 fuels. If yourA

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gas constituents could vary above the specification, you will conduct monthly testing according to the procedures in §63.7521(f)

- (i) and §63.7540(c) and maintain records of results of the testing as outlined in §63.7555(g). Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,641 (emphasis added). As indicated in this proposed regulatory language, the certification option requires the fuel user to sign a certification, based on the results of an initial fuel specification analysis according to § 63.7521(f)

- (i), that the gaseous fuel will never exceed the regulatory fuel specification. See id. The alternative, if the gas constituents in the fuel could vary, is conducting monthly t esting per § 63.7521(f)

- (i) and keeping the requisite, corresponding records. See id . EPA proposes retaining these provisions in the same form as promulgated in the final rule of March 21, 2011, however, with the elimination of the H 2 S fuel specification, affected sources now would only need to make a certification or conduct the monthly testing as to the Hg constituents. See id. AIF objects to the language of the certification requirement as unworkably absolute and inconsistent with other compliance approa ches in the Boiler MACT, and to the alternative of monthly testing as onerous and, as applied to LFG, not supported by the consistently low concentrations of Hg from available analyses. • AIF’s Comments on the Certification Option The absoluteness of the c ertification option EPA imposes

– a promise that LFG will never exceed the Hg specification

– is problematic because it asks the user of the gas to certify what will occur in the future based on actions the user does not control. A facility’s responsible o fficial may well conclude that he or she cannot guarantee the future given the absolute language, even though there is no reasonable expectation that Hg content will exceed the specification level. EPA should revise the language and/or clarify it to be cle ar that initial tests below the 40 μg/m3 level are sufficient to make the certification (or some percentage of that level, e.g., if the initial test is less than 80% of the 40 μg/m3 level, a facility is not required to do testing). Such an approach would p rovide an objective criterion for facilities to know whether or not they are required to conduct periodic testing. Otherwise, even if the Hg constituents in the fuel consistently test far below the specification, the absolute formulation of the certificati on could be read in the future to potentially impose liability on the source not only for gas that exceeds the specification but also for a “false certification,” should the highly unlikely circumstance outside of the representative’s control arise in whic h the constituents of a purchased fuel like LFG exceed the regulatory specification. Further, it is simply substantively unreasonable to impose the term “never” as a qualification to limit testing obligations in this case, since certifications under Sectio n 112 and Title V are intended to be based on information and belief formed after reasonable inquiry. See, e.g., 40 C.F.R. § 70.5(c). Finally, the compliance benchmark for Hg in gas fuels other than NG or RG is flatly inconsistent with compliance approache s used to demonstrate compliance with emission limits and work practice standards. It unfairly subjects all other gaseous fuels other than NG or RG to a fuel specification that the Gas 1 fuels are not even required to address in the most cursory manner. It suggests that even one aberrant or anomalous fuel measurement, would function as sufficient basis for failing to demonstrate the Hg specification is met and subjecting the unit to Gas 2 limits. This conflicts with the compliance demonstration methods pres ented elsewhere in the same reconsideration proposal, including in § 63.7520(e), 14 in § 63.7522, 15 and in § 63.7530. 16 All of these fuel analysis

- based compliance methods involve performing some type of statistical data analysis of multiple fuel samples. M oreover, the certification option is inconsistent with the very definition of “other Gas 1 fuel,” which states that such fuel “does not exceed the maximum concentration of 40 micrograms/cubic meters of mercury.” Boiler MACT Reconsideration Proposal , 76 Fed

. Reg. at 80,653. The definition does not discuss future events, nor should it, and, therefore, it isA

- 20

unreasonable based on this definition to impose a certification as to future conditions as a compliance tool. For these reasons, there should be no certif ication option. At a minimum, EPA should amend the compliance method for demonstrations that gaseous fuels other than NG or RG qualify as a Gas 1 fuel to ensure that it is consistent with these other approaches. As a corollary, to the extent EPA retains a certification option, EPA should provide that companies can make the certification based on an initial fuel specification analysis that shows Hg content below the specification level or based on contractual terms with the landfill that require the LFG to b e below the level. Otherwise, companies that are unwilling to use LFG if they would be subject to Gas 2 limits may simply opt not to continue combusting LFG. And EPA must ensure comparison to a single maximum value reported among a group of samples does no t determine compliance (or more importantly, non

- compliance). AIF’s Comments on the Monthly Testing Option If a fuel’s gas constituents “could vary above the [fuel] specification,” then, under the proposed regulations, monthly testing is required. See id. EPA should revise this option for several reasons. First, EPA fails to provide any explanation as to why other options beyond monthly sampling as to each individual facility could not reliably demonstrate compliance with the Hg fuel specification limit. As conveyed in the discussion of the categorical determination approach outlined above, EPA could allow for the performance of a one

- time, fuel specification compliance study, performed following applicable EPA sampling guidance, for fuel types like LFG, i.e

., for use of the fuel across all facilities. By including a representative number of facilities and collecting numerous samples, such a study could reliably characterize the variability of Hg concentrations so as to obviate the need for monthly testing. W ith respect to LFG, as discussed elsewhere in these comments, the numerous published studies that have evaluated Hg in LFG provide a sufficient database for demonstrating compliance with the Hg fuel specification limit. However, as the reconsideration prop osal does not address this type of study, AIF recommends that EPA revise it to incorporate this approach as an option for classification as an “other Gas 1 fuel.” Second, in the alternative, EPA fails to provide any explanation as to why it does not allow, at the facility

- specific level, an equivalent, one

- time fuel specification analysis, performed following applicable EPA sampling guidance, for demonstrating compliance with the Hg fuel specification limit. The absence of such an option is inconsistent wit h other compliance requirements in the proposed reconsideration rule, including performance stack tests annually and tune

- ups annually, biennially or every five years. Consistent with those compliance requirements, in the alternative, EPA should amend the reconsideration rule to allow each facility to qualify a fuel as an “other Gas 1 fuel,” if the initial fuel specification analysis demonstrates Hg concentration a certain percentage below the specified limit. Third, in the alternative, EPA fails to provide any explanation as to why it does not allow a gradual, performance

- based reduction in the monthly testing frequency as facilities obtain successive positive results as to a particular fuel. As an example, if a source reports less than a certain percentage of the Hg fuel specification for several consecutive months ( e.g., less than 80% of the 40 μg/m3 level), the regulations could provide for an automatic reduction in testing frequency to every other month; then, after a certain duration of continued positi ve testing, the frequency would decrease to every six months, and so on. There is no rational basis to indefinitely require monthly testing when a fuel regularly tests well below the Hg fuel specification for qualifying as an “other Gas 1 fuel.” EPA has ut ilized such compliance flexibility in other contexts. See, e.g., 40 C.F.R. § 63.1161 (NESHAP for Steel Pickling, Subpart CCC; EPA allows the permitting authority to approve an alternative schedule for performance testing that allows testing less frequently than annually); 40 C.F.R. § 63.1543(e) (NESHAP forA

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Primary Lead Smelting, Subpart TTT; EPA allows less

- frequent testing when facilities demonstrate consistent compliance with the standards); 40 C.F.R. § 265.1057(c)(1) (Subpart BB of the Resource Conservat ion and Recovery Act (“RCRA”) Regulations, valves in gas/vapor service; EPA permits sources to monitor valves for leaks less frequently if a leak is not detected for two successive months and allows sources to skip quarterly leak detection periods if a low percentage of valves are leaking). Consistent with those regimes, in the alternative, EPA should finalize a gradual, performance

- based reduction in the monthly testing frequency for the “other Gas 1 fuel” specification as facilities obtain successive posi tive results as to a particular fuel. 17 7. EPA Should Amend the “Other Gas 1 Fuel” Specification Analysis to Make It More Feasible and Allow for Use of Additional Test Methods. The reconsideration proposal appears to prevent gaseous fuel suppliers from usi ng alternative test methods, which are available for use by the boiler owner/operator if they conduct the requisite analysis for using an “other Gas 1 fuel.” See Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,633 (proposed § 63.7521(g)(2)(vi)). E PA provides no explanation or rationale for this inflexible requirement. While, in the context of the Boiler MACT, AIF members are gaseous fuel purchasers

– not suppliers

– it appears likely to affect the majority of fuel specification analysis. This is be cause it is likely that purchasers of gaseous fuels will require their fuel suppliers to develop the fuel specification analyses and documentation necessary to qualify fuels as in “other Gas 1 fuel” category. Accordingly, AIF urges EPA amend the language a t § 63.7521(g)(2)(iv) so that all analyses conducted for the demonstration mechanism may utilize all methods listed in § 63.7521(f)

- (i). As a corollary, AIF requests that EPA incorporate additional test methods for use under § 63.7521. That subsection limi ts the fuel testing to qualify a gaseous fuel other than NG or RG as an “other Gas 1 fuel” to methods laid out in Table 6. See id. Table 6 requires measurement of the Hg concentration through one of the following test methods: “ASTM D5954, ASTM D6350, ISO 6978

– 1:2003(E) or ISO 6978

– 2:2003(E) (or an equivalent test method).” See id. at 80,666. EPA requires use of these methods unless it specifically approves an alternative analytical method. See id. at 80,633 (proposed § 63.7521(g)(v)). EPA offers no explana tion as to why it failed to include EPA Method 30B, the method it prescribed for facilities, including those owned and/or operated by AIF members, to use in gathering the Hg data supplied to EPA in response to its Section 114 requests. The required test me thods listed in Table 6 were developed for NG analyses and their use is typically restricted as such. They have not been proven appropriate for analyzing, e.g., Hg in LFG and the composition and physical properties of LFG differ from those of NG. 18 Further

, as gaseous fuel suppliers are not allowed to use alternative methods in the reconsideration proposal, the regulations would force them to use

– and gaseous fuel purchasers like AIF’s members to rely on

– an unproven method to demonstrate the compliance o f gaseous fuels like LFG with the Hg fuel specification. The complexity of component fuels typically encountered in sampled LFG often renders the methods typically used for NG characterizations inappropriate. 19 As reported by Waste Management, a supplier o f LFG, the performance of these methods in an LFG matrix has yet to be demonstrated. As a result, there is no rational basis for EPA to categorically restrict fuel analysis for gaseous fuels like LFG, in the absence of a pre

- approval process, to the four m ethods listed in Table 6. Numerous studies have been conducted to measure mercury in LFG, including several that were conducted for EPA. The table that accompanies these comments at Attachment E (attached to these comments) lists the test methods used in
t hese studies and the methods specified in Table 6, and, for each method, whether it was included in the Boiler MACT Reconsideration Proposal. This table shows that none of the methods used in the publicly available, published LFG studies for Hg, including those sponsoredA

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by EPA, were included in Table 6 of the reconsideration proposal. Conversely, none of the LFG studies for Hg relied on the methods in Table 6. This examination of fuel testing methods clearly indicates that EPA should expand Table 6 to incl ude additional options for measuring Hg in gaseous fuels. At a minimum, EPA should include the methods tested and proven reliable in LFG studies for Hg, particularly EPA Method 30B and EPA Method 1631. The Agency may also want to consider including stack s ampling and analysis methods for Hg approved by EPA and the State of California

— CARB Method 436, EPA Method 101 and EPA Method 29. Additionally, AIF recommends that the Agency consider and evaluate the accuracy, precision, selectivity and sensitivity of th e methods currently included in Table 6, taking into account their applicability to gas fuels other than NG or RG. AIF’s comments demonstrate the appropriateness of incorporating into the final reconsideration rule additional methods for gathering data as to the concentration of Hg in a gaseous fuel. AIF urges EPA to amend the reconsideration proposal accordingly. [Footnotes] (7) One of AIF’s members’ test of available LFG streams yielded H2S emissions levels ranging from 6 to 34 ppmv and AIF reported that typical LFG streams from a limited sample group range from between 7 and 105 ppmv for H2S. (8) This data is outlined in greater detail in the attached document entitled “Studies of Mercury Concentrations in Landfill Gas,” Attachment D (attached to these c omments). (9) The overall mean concentration of Hg in LFG and the highest 95% upper confidence limit, calculated from one study that presents only summary statistics as opposed to individual test results, is 4 μg/m3 and 12 μg/m3, respectively. (10) The AIF agrees that RG should be treated as Gas 1. EPA should treat similar fuels similarly and cannot justify imposing a higher testing or “proof” standard to LFG. (11) AIF members with units presently utilizing LFG anticipate they would not be able to meet the Gas 2 category’s stringent emission limits ( e.g., for CO), particularly in the case of units designed and permitted to minimize emissions of NOx (for ozone attainment). (12) See EPA Landfill Methane Outreach Program (LMOP) Environmental Analysis (provided to Waste Management), Attachment A (attached to these comments). (13) The Boiler MACT Reconsideration Proposal already implies that EPA takes this position in that it includes LFG in the definition of “gaseous fuel” at the proposed § 63.7575. See Boiler MA CT Reconsideration Proposal, 76 Fed. Reg. at 80,652. Moreover, EPA’s own outreach program recognizes LFG as a fuel. See LMOP, supra. (14) Referencing Method 19 at 40 CFR part 60, appendix A

- 7. (15) Discussing emissions averaging. (16) Directing that the ar ithmetic average Hg concentration in each fuel type should be used and also providing an equation for calculating a 90 percent upper confidence limit fuel concentration from sample data. (17) Moreover, to the extent EPA retains any form of the monthly test ing option, it should more clearly articulate to facilities how the monthly testing option works, e.g., if a facility tests below the “other Gas 1 fuel” specification level one month but then above the specification level the next month, whether it can, th en, test back into the Gas 1 category the succeeding month with a test result below the specification level. (18) For example, NG is primarily methane with lower concentrations of related alkanes and carbon oxides, and trace quantities of other hydrocarbon s. LFG typically contains 45% to 60% methane and 40% to 60% carbon dioxide. LFG also includes small amounts of nitrogen, oxygen, ammonia, sulfides, hydrogen, and carbon monoxide. (19) Either interferences or target analyte levels may disqualify natural gas methods when attempting to acquire representative Hg data in LFG

. Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial,A

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Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Cont rol Number: EPA

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- 0119

- 2602

- A1 Comment Excerpt Number: 7

Comment: In the final rule, pursuant to CAA Section 112, EPA imposed a work practice standard for boilers and process heaters with a heat input capacity of less than 10 MMBtu/hr, those i n the Gas 1 fuel and metal process furnace subcategories, and limited

- use units. See Boiler MACT, 76 Fed. Reg . at 15,613. The final rule dictated that facilities with such units must conduct biennial tune

- ups to “demonstrate continuous compliance.” Id. at 15,678 (detailing § 63.7540(a)(11)). Moreover, under the final rule, facilities must submit notifications to EPA or the governing state agency certifying compliance with those tune

- up requirements. See id. at 15,676, 15,679 (detailing §§ 63.7530(d) and 63.7545(e)(8)). EPA stated that the work practice standard stemmed from its determination that numerical emission limits for Gas 1 units are impracticable due to technological and economic limitations. In its petition for reconsideration and subsequent com ments, AIF asked EPA to reconsider the merits and disadvantages of imposing the work practice standard because emissions from the units to which it applies are insignificant and to eliminate the biennial tune

- up requirements for those units as well as for NG

- fired hot water heaters with capacity greater than 120 U.S. gallons. AIF articulated that, contrary to EPA’s claim that it lacks authority to exempt such units altogether from the final work practice standard, nothing in the cases on which EPA relied ov erruled Alabama Power Co. v. Costle , 636 F.2d 323, 400 (D.C. Cir. 1979), which clearly establishes EPA’s authority to fashion de minimis and administrative necessity exemptions. AIF noted that EPA’s approach of subjecting those small units to work practice standards, including biennial
tune

- ups, is extremely burdensome and costly without providing for corresponding, significant emission

- reduction benefits. EPA’s approach, AIF commented, would actually create incentives for facilities to switch from NG

- fired water heaters to electric water heaters, which are far

- less energy efficient. Therefore, AIF urged EPA to reconsider its decision not to exempt NG

- fired boilers and large hot water heaters with heat input capacities of 10 MMBtu/hr or less from the infeasi ble and minimally beneficial work practice standards EPA promulgated. Consistent with that comment, AIF advocated for the elimination of biennial tune

- up requirements on NG

- fired hot water heaters with capacity greater than 120 U.S. gallons, given the extr eme burdens imposed and the lack of emission

- reduction benefits. In the reconsideration proposal, EPA proposes to amend the definition of “hot water heater” at § 63.7575 to add the following sentence: “Hot water boilers ( i.e., not generating steam) combust ing gaseous or liquid fuel with a heat input capacity of less than 1.6 million Btu per hour are included in this definition.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,652. Under the Boiler MACT applicability provisions of § 63.7491, which a re unchanged in the reconsideration proposal from the final rule of March 21, 2011, hot water heaters are not subject to the Boiler MACT. See id. at 80,628. EPA, however, does not propose a de minimis exemption for small NG

- fired and light

- oil fired units, i.e., those that commenters and petitioners defined as having heat input capacities between 2 MMBtu/hr and 10 MMBtu/hr. See id. at 80,601

- 02, 80,614. Instead, EPA posits that decreased
tune

- up frequency is appropriate for the smallest NG

- fired, RG, other clean gas such as LFGA

- 24

(that meets the “other Gas 1 fuel” specification) and light liquid

- fired units. See id. at 80,614. Accordingly, for units in that grouping equal to or less than 5 MMBtu/hr, EPA proposes to change the biennial tune

- up requirement to a tune

- up once every 5 years, with the initial compliance date and subsequent tune

- ups being required at intervals no greater than 5 years from the previous tune

- up. See id. at 80,614, 80,644. 1. Under Alabama Power, EPA Appropriately Proposes to Change the Definition of “Hot Water Heater” to Include Those Combusting Gaseous or Liquid Fuel with a Heat Input Capacity of Less Than 1.6 MMBtu/hr. As noted above, the reconsideration proposal modifies the definition of “hot water heater” to include hot water boiler s that combust gaseous or liquid fuel and that have a heat input capacity measuring less than 1.6 MMBtu/hr. Hot water heaters are not subject to the Boiler MACT, so EPA’s proposal functions as a de minimis exemption for those types of hot water boilers. AI F supports the proposed change to the definition because the administrative (and economic) burdens of regulating those types of small, NG

- fired hot water boilers

– which include those hot water boilers for the showers that assembly workers use to clean up after their shifts

– are excessively burdensome without a meaningful, corresponding benefit in terms of reducing HAP emissions. Given those factors, EPA clearly has the authority to finalize its proposal under Alabama Power Co. v. Costle , 636 F.2d 323, 360

- 61, 400 (D.C. Cir. 1979). 20 Alabama Power‘s essential holding relevant to this context is that agencies like EPA have the authority to issue de minimis exemptions as a rational approach for relieving severe administrative (and economic) burdens that blind adherence to the literal terms of a statute would otherwise create. 21 See 636 F.2d at 360

- 61, 400. Under Alabama Power, EPA has the inherent power to overlook trifling matters, such as the de minimis HAP emissions, to the extent such emissions are even me asurable, from these types of small, NG

- fired hot water boilers. See id. at 360

- 61. As the D.C. Circuit emphasized in New York v. EPA , 444 F.3d 880, 888 (D.C. Cir. 2006), and as the U.S. Supreme Court held in Wisc. Dep’t of Rev. v. William Wrigley, Jr., Co

. , 505 U.S. 214, 231 (1992), the de minimis doctrine is a legal principal that forms part of the established background against which all statutes are enacted. Agencies, therefore, may diverge from the plain meaning of the statute as far as is necessary to avoid its futile application. 22 See New York, 444 F.3d at 888. Section 112 “permits” EPA to issue this de minimis exemption. See EDF v. EPA, 82 F.3d 451, 466 (D.C. Cir. 1996). As the EDF court explained, the availability of a de minimis exemption depends on whether Congress has not been “extraordinarily rigid” in drafting a statute; if it has not, then there is an implication of the agency’s authority to provide such an exemption, if “the burden of regulation yield[s] a gain of trivial or no value.” Id. (q uoting Alabama Power, 636 F.2d at 360

- 61) (internal quotation marks omitted). Section 112 sets forth that EPA “shall publish, and shall from time to time, but no less often than every 8 years, revise ... a list of all categories and subcategories of major so urces and area sources.” CAA § 112(c)(1); 42 U.S.C. § 7412(c)(1). It then directs EPA to “establish emission standards under subsection (d)” as to those categories and subcategories. CAA § 112(c)(2); 42 U.S.C. § 7412(c)(2). Subsection (d) directs EPA to “p romulgate regulations establishing emission standards for each category or subcategory of major sources and area sources of [HAPs] listed for regulation pursuant to subsection (c).” CAA § 112(d)(1); 42 U.S.C. § 7412(d)(1). Critically, it then proceeds to s tate the following: Emissions standards promulgated under this subsection and applicable to new and existing sources of [HAPs] shall require the maximum degree of reduction in emissions of [HAPs] subject to this section (including a prohibition on emission s, where achievable) that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non

- air quality health and environmental impacts and energy requirements, determines is achievable for new orA

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existing sources in the category or subcategory to which such emission standard applies, through application of measures, processes, methods, systems or techniques ... CAA § 112(d)(2); 42 U.S.C. § 7412(d)(2). The framework of this statutory scheme, then, permits EPA to define t he units within the source categories and subcategories it is regulating in such a way as to exclude or exempt those units whose emission of HAPs is de minimis . This is because the CAA directs EPA to promulgate emission standards that require regulated sou rces to achieve a maximum degree of reduction in emission of HAPs but it expressly permits EPA to take into consideration the cost of achieving that reduction. It cannot be said that the statutory scheme is so extraordinarily rigid that it does not contemp late a potential de minimis exemption where the burden of regulation would yield a gain of trivial or no value, particularly considering “the cost of achieving such emission reduction.” CAA § 112(d)(2); 42 U.S.C. § 7412(d)(2). The EDF decision supports the de minimis exemption for which AIF advocates because, there, the D.C. Circuit upheld EPA’s definition of the CAA’s prohibition of federal activities that do not conform to SIPs as exempting or excluding those federal activities that would produce either n o or a trivial level of emissions. See 82 F.3d at 466. Beyond AIF’s arguments about the regulatory burden

– on EPA, state agencies that must include the requirements in Title V permits and conduct enforcement of such requirements, and regulated entities th at must comply with them

– of including small, NG

- fired hot water boilers within the scope of the Boiler MACT, therefore, there is a rational basis for EPA to find that HAPs from those units, to the extent such emissions are even measurable, are de minimis . As EPA has the authority to make that finding, it has the corresponding authority to finalize the proposed revision to the definition of “hot water heater” and AIF supports EPA finalizing that proposed revision. 2. Alabama Power Also Supports a De Minimi s Exemption for Small, Natural Gas

- Fired Hot Water and Process Heaters with Heat Input Capacities of Up to 10 MMBtu/hr or Less. Consistent with the above analysis as to EPA’s authority under Alabama Power, EPA should finalize a de minimis exemption from th e Boiler MACT for small, NG

- fired hot water and process heaters with heat input capacities of 10 MMBtu/hr or less. AIF recommends that EPA further change the definition of “hot water heater” to include any hot water boilers with heat input capacities of 10 MMBtu/hr or less and exclude from the definition of “process heater” any NG

- fired process heaters with heat input capacities of 10 MMBtu/hr or less. In its response to comments as to the proposed rule for the Boiler MACT final rule of March 21, 2011, EPA argued that it lacks the authority to issue a de minimis exemption as to emission standards established under Section 112. See Response to Comments on Boiler MACT, Vol. 1, at p. 339, Document Control No: EPA

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- 0058

- 3289. In making that argument, EPA cited to the statutory language of Section 112(d) and case law from the D.C. Circuit that it described as requiring EPA to set emission standards for all HAP emitted from a source. EPA contended that this requirement precludes it from establishing a de minimis threshold below which HAP emitted by a source would not be regulated. EPA cited to the following cases:

- Sierra Club v. EPA , 479 F.3d 875, 883 (D.C. Cir. 2007) (“EPA has a ‘clear statutory obligation to set emission standards for each listed HAP,’ which does not allow it to ‘avoid setting standards for HAPs not controlled with technology.” quoting Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 634 (D.C. Cir. 2000) (“Nat’l Lime II”)).

- NRDC v. EPA , 489 F.3d 1364, 1371 (D.C. Cir. 2007) (holding that EPA must establish emission standards for listed HAP emitted from a category, citing the Sierra Club and Nat’l Lime II decisions). In its petition for reconsideration and subsequent comments, AIF pointed out that nothing in those cases overruled Judge Leventhal’s decision for the Court in Alabama Power, which, as described above, clearly establishes EPA’s authority to exempt de minimis situations and create exemptions based onA

- 26

administrative necessity. Had the Court intended to overrule Alabama Power in its subsequ ent decisions, it surely would have been more clearly. EPA fails to address this contention in the reconsideration proposal, instead merely stating that it disagrees withcommenters that advocate for a de minimis exemption for small units. See Boiler MACT R econsideration Proposal , 76 Fed. Reg. at 80,616. As articulated above, the position previously argued by AIF was sound, and EPA failed to substantively respond to it in the reconsideration proposal. EPA has the authority to promulgate a de minimis exemptio n as to small hot water and process heaters, and any other source for which the burdens of regulation would be high and the emission

- reduction benefits would be insignificant. This is not a context where the best performers use no emission control technolo gy, see Sierra Club, 479 F.3d at 883; Nat’l Lime, 233 F.3d at 633, nor where the mechanism being advocated is EPA promulgating a risk

- based subcategory, see NRDC v. EPA, 489 F.3d at 1368

- 71. Moreover, none of those cases disturbed or much less considered t he essential holding of Alabama Power

, i.e., that agencies like EPA have the authority to issue de minimis exemptions as a rational approach for relieving severe administrative (and economic) burdens that blind adherence to the literal terms of a statute w ould otherwise create. See 636 F.2d at 360

- 61, 400. EPA appears to concede as correct AIF’s reading of the case law and EPA’s authority under the CAA in that it now proposes to change the definition of “hot water heaters” in a way that effectively creates a de minimis exemption for hot water boilers with heat input capacities of less than 1.6 MMBtu/hr. Accordingly, consistent with its authority under Alabama Power, EPA should finalize a de minimis exemption for small, NG

- fired hot water and process heaters with heat input capacities of 10 MMBtu/hr or less. The work practice standards for these types of small and clean units, even with EPA’s proposed reduction in tune

- up frequency for certain units, remain infeasible from the standpoint of administration and cost, and provide minimal, if any, HAP emission reductions. In the experience of AIF members, tuning of NG

fired hot water and process heaters with heat input capacities of 10 MMBtu/hr or less has a limited effect on combustion efficiency, so the work prac tice standards only create additional burden without any corresponding, meaningful benefit in terms of HAP reductions. Providing support for the conclusion that a de minimis exemption is appropriate for these small units, one automotive facility currently spends an estimated $40,000 annually to perform safety inspections on the various gas burners and gas trains in the facility. Almost all of these inspected burners are under 10 MMbtu/hr input and the vast majority of inspected units are between 1.6 and 5 M MBtu/hr. The facility projects that the additional cost for the tune

- ups proposed in § 63.7540(10) could be of a similar magnitude. The present, annual cost of safety inspections does not include the myriad of small heaters less than 1.6 MMBtu/hr scattered throughout the plant as to which no inspections are currently required or performed. Without a de minimis exemption, many more of these small heaters would require tune

- ups, which would further increase the cost impact on plant maintenance budgets with on ly a small reduction of HAP emissions. For example, a typical, well

- tuned 10 MMBtu/hr burner emitting HAPs at the rate published in EPA’s AP

- 42 NG emissions factor tables 23 would emit around 160 pounds of HAP per year. Even the most poorly

- tuned unit of th is size (which is unlikely to be encountered) could only emit HAPs at twice the rate of a well

- tuned unit. A facility with twenty poorly

- tuned 10 MMBtu/hr burners could collectively emit HAP at a rate of about 1.6 ton per year in excess of a well

- tuned uni t. Therefore, using the typical costs noted above, the cost of biennial inspections for such units would effectively cost at least $12,500 per ton of HAP abated. 24 Similarly, inspections on a five

- year schedule for twenty 10 MMBtu/hr burners would cost at least $25,000 per ton abated. A hypothetical facility operating two 100 MMBtu/hr boilers and three 12A

- 27

MMBtu/hr boilers, in addition to the twenty 10 MMBtu/hr burners in the example above, would be spending around 50% of its tune

- up budget on the smallest u nits to minimize 8% of its HAP emissions due to biennial tune

- up requirements. AIF believes that units are generally not “poorly tuned,” so the cost per ton, in fact, will be dramatically higher than even estimated here. Moreover, because such units do not generally deteriorate over time in any meaningful way, EPA’s approach, as articulated above, could actually increase emissions because it creates incentives for facilities to switch from NG

- fired water heaters to electric water heaters, which are far

- less energy efficient. 25 Facilities retaining their small NG

- fired hot water and process heaters, which EPA has acknowledged sometimes number in the hundreds in a single facility, see Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,614, would face a l arge recordkeeping burden to track the compliance requirements and complete annual compliance certifications. And facilities would incur additional cost to account for such units as part of the Boiler MACT’s one

time energy assessment, assuming EPA retains it in the final reconsideration rule. These burdens would result from EPA’s failure to promulgate a de minimis exemption because the majority of SIPs exclude these small units from permit

- to

- install regulations, i.e., they are not presently listed in faci lities’ Title V permits due to their insignificance, and such units are, likewise, not covered by the scope of the industrial boiler NSPS, see 40 C.F.R. § 60.40c(a). There is no rational basis for EPA to not finalize the Boiler MACT consistent with those o ther regulatory programs. As the HAP emissions of small NG

- fired hot water and process heaters with heat input capacities of 10 MMBtu/hr or less are insignificant and the consequent administrative burdens from subjecting them to the Boiler MACT are high, E PA should fashion a de minimis exemption to exclude them. 26 See Alabama Power, 636 F.2d at 360

- 61, 400. 3. In the Alternative, AIF Supports a Less

- Frequent Tune

- Up Requirement for Certain Units with Heat Input Capacities of 5 MMBtu/hr or Less. To the exten t that, in lieu of promulgating a de minimis exemption, EPA elects to retain work practice standards for most units with heat input capacities of 10 MMBtu/hr of less, AIF supports EPA’s proposed change of the biennial tune

- up requirement for certain units 2 7 with heat input capacities equal to or less than 5 MMBtu/hr. As explained above, this proposed change fails to account for AIF’s analysis that, due to the insignificance of emissions from those units and the considerable administrative burdens associated with regulating them, 28 EPA should exempt from the final reconsideration rule NG

- fired hot water and process heaters with heat input capacities up to 10 MMBTU/hr. To the extent that EPA finalizes the work practice standards, however, there is a rational b asis for decreasing the frequency of the tune

- ups for NGfired, RG, other clean gas such as LFG (that meets the “other Gas 1 fuel” specification) and light liquid

- fired units with heat

- input capacities of 5 MMBtu/hr or less. In the alternative, then, EPA sh ould finalize the proposed, less

- frequent tune

- up requirement for those units. 29 A final, related, technical issue for comment is that EPA states in the preamble that it is changing the tune

- up frequency for units that are equal to or less than 5 MMBtu/hr, the proposed regulatory language applies only to units less than 5 MMBtu/hr. 30 EPA should revise the final regulatory language to reflect the change to the tune

- up frequency for those units as stated in the preamble. [Footnotes] (20) Moreover, nothing in the statute compels EPA to regulate every possible emission point at a major s ource. Alabama Power simply provides additional justification for EPA’s action here. (21) EPA has indicated that it believes the literal terms of the statute compel it to regulate these sources. While AIF does not concede that the literal terms require reg ulation of these small units, to the extent they do, Alabama Power’s de minimis authority still would be available. (22) See supra, note 21. (23) U.S. EPA, Compilation of Air Pollutant Emission Factors, Table 1.4

- 3, “Emission Factors for Speciated Organic CompoundsA

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from Natural Gas Combustion,” available at http://www.epa.gov/ttn/chief/ap42/ch01/final/c01s04.pdf. (24) If one assumes a more typical tuning profile, the cost per ton would be more akin to $12,500 to $25,000 per ton. (25) In part, the loss in en ergy efficiency would result from the electricity that would power those replacement electric heaters coming from coal

- fired power plants, instead of from the NG supply that now powers the small units. (26) To the extent that EPA decides not to fashion a d e minimis exemption for NG

- fired hot water and process heaters with heat input capacities of 10 MMBtu/hr or less, in the alternative, it should promulgate a de minimis exemption for such units at a cutoff of 5 MMBtu/hr or less, consistent with EPA’s recogn ition of such a cutoff as the dividing line for less

- frequent tune

- ups in the reconsideration proposal. See Boiler MACT Reconsideration Proposal, 76 Fed. Reg. at 80,614. To the extent EPA does not promulgate such a de minimis exemption, in the alternative, it should issue a NG

- fired de minimis exemption for NG

- fired process heaters at the same cutoff of less than 1.6 MMBtu/hr it already proposed for hot water boilers. See id. at 80,652. (27) NG

- fired, RG, other clean gas such as LFG (that meets the fuel
spe cification) and light liquid

- fired units. (28) Expounding on the cost analysis outlined above, a typical, well

- tuned 1 MMBtu/hr burner emitting HAPs at the rate published in EPA’s AP

- 42 NG emissions factor tables, see Compilation of Air Pollutant Emission Factors, supra , would emit around 16 pounds of HAP per year. Although highly unlikely, a poorly

- tuned unit of this size could emit HAPs at about twice the rate of a well

- tuned unit. Then, a facility with twenty poorly

tuned 1 MMBtu/hr burners could collect ively emit HAP at a rate of about 1/8 ton per year in excess of well

- tuned units. Therefore, using the typical costs noted above, the cost of inspections on a five

- year schedule for such units would effectively cost at least $64,000 per ton abated (or $160 ,000 to $320,000 per ton abated if one assumes a more

- typical tuning profile). A hypothetical facility operating two 100 MMBtu/hr boilers and three 12 MMBtu/hr boilers, in addition to the twenty 1 MMBtu/hr burners in the example above, would be spending ar ound 50% of its tune

- up budget on the small units to minimize 8% of its HAP emissions due to tune

up requirements. AIF believes that units are generally not “poorly tuned,” so the cost per ton, in fact, will be dramatically higher than even estimated here. (29) Moreover, to the extent that EPA finalizes its proposed work practice standards in lieu of emission limits for certain units, EPA clearly possesses the authority under Section 112(h) of the CAA to issue such standards. The plain text of Section 112(h ) provides that EPA may adopt work practice standards instead of emission standards “if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a [HAP].” CAA § 112(h)(1); 42 U.S.C. § 7412(h)(1). T he section further explains that it is “not feasible” to set an emission standard when the “application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.” CAA § 112(h)(2)(B); 42 U. S.C. § 7412(h)(2)(B). AIF supports the explanation put forth by EPA that it is not feasible with the meaning of the CAA to prescribe or enforce an emission standard for the control of HAP as to the source categories and subcategories for which EPA has pres cribed work practice standards in lieu of emission standards. (30) Proposed § 63.7540(a)(12) provides: If your boiler or process heater has a heat input capacity of less than 5 million Btu per hour, and the unit is in the units designed to burn natural gas , refinery gas or other gas 1 fuels, units designed to burn gas 2 (other), or units designed to burn light liquid subcategories, you must conduct a tuneup of the boiler or process heater every 5 years as specified in paragraphs (a)(10)(i) through (a)(10)(v i) of this section to demonstrate continuous compliance. You may delay the burner inspection specified in paragraph (a)(10)(i) of this section until the next scheduled or unscheduled unit shutdown, but you mustA

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inspect each burner at least once every 72 mo nths. Boiler MACT Reconsideration Proposal , 76 Fed. Reg . at 80,644 (emphasis added).

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commen ter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA

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Comment : In the final rule, EPA imposed an additional obligation on operators of Gas 1 units during periods of NG curtailment or supply interruption. In the newly proposed 40 C.F.R. § 63.7545(f), EPA required these Gas 1 unit operators to provide notification of their use of an alternative, non

- Gas 1 fuel within 48 hours of the commencement of such periods. See Boiler MACT, 76 Fed. Reg . at 15,679, 15,685. In its petition for reconsideration and subsequent comments, AIF advocated for the elimination of this requir ement and recommended that EPA modify any notification requirements to comport with the 6

- month reporting deadlines under Title V. See 40 C.F.R. § 70.6(c) (including the notification as to a NG curtailment from the previous 6

- month period in the Title V se mi

- annual report of required monitoring). AIF made this suggestion because of its concerns regarding the feasibility of EPA imposing on facilities such a short timeframe for notification and the fact that backup fuels are allowed by existing permits, rende ring this requirement unnecessary. In the proposal, § 63.7545(f) continues to contain this requirement. See Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,646. Further, EPA does not explain why it did not include this issue in the preamble or oth erwise acknowledge this subject as one as to which AIF petitioned for reconsideration. AIF reiterates the position conveyed in its petition for reconsideration and subsequent comments: EPA should eliminate this requirement. It simply is not feasible to imp ose on facilities such a short timeframe for notification. EPA has previously stated that, as “curtailments are an unlikely event, so the burden of this requirement should be minimal.” EPA’s Responses to Public Comments on Boiler MACT , Vol. 2, Comment Exce rpt No: 6 (Mar. 21, 2011), Document Control No: EPA

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- 2894.1. The fact that such a situation may occur only infrequently, however, does not change the severity of the burden on a facility, including those owned and/or operated by AIF members , when it does occur. EPA, therefore, should eliminate the notification requirement. In the final rule, EPA sought to justify it as functioning to “ensure that only those units that qualify as Gas 1 units remain in the Gas 1 subcategory.” See id. , Vol. 1, at p. 895, Document Control No: EPA

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- 3289. This concern, however, does not justify a 48

- hour notification requirement

— the selection of that notification timeframe is arbitrary and capricious; EPA fails to explain how its stated concern supp orts imposing 48 hours as the timeframe for the requisite notification. If EPA elects to retain the requirement, it can still clearly achieve its stated goal by receiving any information regarding NG curtailment in Title V reports. There is no rational bas is to add to facilities’ monitoring burdens when Title V already requires them to report NG curtailments from the previous 6 months in their semi

- annual reports of required monitoring. If it elects to retain the notification requirement, therefore, EPA sho uld amend it toA

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operate consistently with the timeframe of Title V’s reporting regime for required monitoring, relying on reporting of changes in the semi

- annual report of required monitoring, rather than imposing a 48

- hour notification requirement. Moreov er, EPA fails to provide a rational basis as to why, even in light of its stated concern, it should require any notification when facilities, in instances of NG curtailment, merely burn backup fuels. When facilities burn backup fuels, notification is unnec essary because existing permits allow the burning of backup fuels. Burning a backup fuel is not like burning a new fuel. At most, then, if EPA elects to retain the notification requirement, it should restrict the requirement to circumstances where, during instances of NG curtailment, facilities burn a fuel that was not previously identified in a permit. There is, otherwise, no rational basis for it. Therefore, EPA should eliminate the notification requirement of alternative fuel use during NG curtailment. I n the alternative, EPA should amend the timeframe of § 63.7545(f) to one that is consistent with Title V’s semi

- annual report of required monitoring. Moreover, EPA should only require facilities to report when they burn a new fuel, i.e., one that was not p reviously identified or allowed under their Title V permit.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Ins titutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Num ber: EPA

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Comment: In the final rule, EPA promulgated a “beyond the floor” requirement for one

time “energy assessment” performed by a qualified energy assessor. See Boiler MACT

, 76 Fed. Reg. at 15,683 ( definitions for “energy assessment” and “energy use system” in § 63.7575); id. at 15,692 (enumerating the 8 components of the assessment in the Table 3 work practice standards). Specifically, the energy assessment was structured to apply not just to “boile r systems” but also to their “energy use systems,” which include but are not limited to “process heating; compressed air systems; machine drive (motors, pumps, fans); process cooling; facility heating, ventilation, and air

- conditioning systems; hot heater systems; building envelop; and lighting.” Id. at 15,683. In its petition for reconsideration and subsequent comments, AIF argued that EPA should eliminate the requirement because it does nothing to reduce HAP emissions and, therefore, Section 112 of the CA A does not justify it. Moreover, AIF articulated that the requirement exceeds EPA’s authority under the CAA because it appears to regulate sources beyond those strictly in the source category, i.e., those not regulated by the Boiler MACT

. AIF noted that th e Boiler MACT regulates industrial, commercial and institutional boilers and process heaters, not manufacturing facilities as a whole. Yet, as conveyed above, EPA structures the assessment to include a variety of systems throughout facilities beyond the bo ilers and process heaters themselves. AIF suggested that, at a minimum, EPA should curtail the assessment to apply only to the boiler and/or process heater, not to the broader range of processes at a plant. EPA does not propose to eliminate the energy asse ssment nor does it propose to limit the assessment to the boiler and/or process heater only. In fact, EPA proposes no changes to the components of the assessment on which AIF commented. Instead, EPA merely clarifies that it did not intend in theA

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final rule for the assessment to include energy use systems using electricity purchased from an offsite source or energy use systems located offsite, indicating by the energy assessment still includes energy use systems on

- site, i.e., the assessment still extends be yond the boiler and/or process heater itself. Specifically, EPA proposes to amend the prior language of the third component of the energy assessment enumerated in Table 3 from “[a]n inventory of the major energy consuming systems” to: An inventory of major systems consuming energy from affected boilers and process heaters and which are under the control of the boiler/process heater owner/operator. Boiler MACT Reconsideration Proposal , 76 Fed. Reg. at 80,664; see also id. at 80,614

- 15 (relevant discussion in the preamble). EPA also proposes adding clarifying language to § 63.7510’s initial compliance requirements to the effect that existing affecting sources must “complete the one

- time energy assessment specified in Table 3 to this subpart ... no later than the compliance date specified in § 63.7495,” 31 i.e., no later than 3 years after publication of the final reconsideration rule. Id. at 80,631. To the extent that the Agency retains the assessment in the final reconsideration rule, AIF supports the clarificati on that the assessment does not include energy use systems using electricity purchased from an offsite source or energy use systems located offsite and urges EPA to place this clarification in the final reconsideration rule itself, not just in the preamble . The regulations themselves must clarify the scope of the assessment. Beyond that clarification, however, EPA fails entirely to address the points previously raised by AIF. First, the energy assessment is impermissible under Section 112 of the CAA because the assessment is not an “emission standard” and it does not operate to reduce HAP emissions. EPA does not and cannot demonstrate that merely conducting an energy assessment will actually reduce HAP emissions or even that implementing the findings of such an assessment will lead to reduction in HAP emissions. EPA should eliminate the assessment on that ground alone. If EPA elects to retain the assessment, however, it exceeds EPA’s authority under the CAA, even with the revision to certain language in Table 3. The energy assessment still operates to regulate sources beyond those strictly in the source category, i.e., those not regulated by the Boiler MACT. The Boiler MACT does not regulate manufacturing facilities as a whole, therefore, EPA cannot properly i nclude a variety of systems throughout facilities beyond the boilers and process heaters themselves. Therefore, to the extent it elects to retain the assessment, EPA should curtail the assessment to apply only to the boiler and/or process heater, not to th e broader range of processes at a plant. Moreover, as conveyed in the reconsideration proposal, the energy assessment requirement creates uncertainty in the regulated community, including AIF members, as to how to effectuate it, including with respect to t he following issues:

- Are facilities supposed to conduct the assessment as to individual boilers or as to the facility as a whole? The reconsideration proposal appears to suggest that facilities should conduct the assessment on an individual boiler basis; however, Table 3 creates confusion as to the scope because it mixes references to boilers and process heaters in the singular and the collective, and it refers to the assessment being conducted “on” the facility as opposed to “at” the facility. 32 Id. at 80 ,664.

- The threshold in the “energy assessment” definition appears based on actual heat input use as opposed to potential heat input use, however, again, the reconsideration proposal is not entirely clear on this point. 33 See id. at 80,651. If it is actual, what base year should facilities use and may facilities permissibly estimate actual use from centralized NG meters? AIF requests that, to the extent it retains the energy assessment requirement, the Agency provides clarity on th ese issues in the final reconsideration rule. [Footnotes] (31) Note that EPA does not appear to state anywhere in the proposal that it proposes to amend § 63.7510 to add the quoted language. (32) Moreover, Table 3, in listing the requirements of the asses sment, refers to an evaluation of theA

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“specification of energy using systems ,” id. , 76 Fed. Reg. at 80,664 (emphasis added), which is an undefined term, although it is similar to the defined term, “energy use systems.” EPA should clarify what it means by t he phrase, “energy using systems” or revise the phrase to refer to the defined term “energy use systems.” (33) As a corollary, the definition of “energy use assessment” refers to “facilities with affected boilers and process heaters using” certain amounts of heat output without clarifying whether “using” refers to actual use or rated capacity. Id. at 80,651.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for M ajor Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: A uto Industry Forum (AIF) Document Control Number: EPA

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Comment: In the table of proposed technical corrections in the Boiler MACT Reconsideration Proposal, EPA indicates that it proposes to “[r] evise th e definition of ‘process heater’ to include ‘units heating hot water as a process heat transfer medium.’” Id. at 80,620. The following underlined portion reflects the proposed additions to the definition: Process heater means an enclosed device using contr olled flame, and the unit’s primary purpose is to transfer heat indirectly to a process material (liquid, gas, or solid) or to a heat transfer material for use in a process unit, instead of generating steam. Process heaters include units heating hot water as a process heat transfer medium. Process heaters are devices in which the combustion gases do not come into direct contact with process materials. A device combusting solid waste, as defined in §241.3, is not a process heater unless the device is exempt from the definition of a solid waste incineration unit as provided in section 129(g)(1) of the Clean Air Act. Process heaters do not include units used for comfort heat or space heat, food preparation for on

- site consumption, or autoclaves. Waste heat proc ess heaters that use only natural gas, refinery gas, or other gas 1 fuels for supplemental fuel are excluded from this definition. Id. at 80,653 (underline added). The absence of a rational basis or explanation of any kind as to the proposed revision is tr oubling in light of the substantive changes to the definition of “process heater” that EPA seeks to effectuate. The proposed revision is likely to lead to confusion for affected sources, including those owned and/or operated by AIF members. In bringing “un its heating hot water as a process heat transfer medium” into the definition of “process heater,” EPA’s proposal creates the confusing circumstance whereby the regulations could classify a hot water heater as both a boiler and a process heater. Traditional , centralized boilers, for example, serve to heat facility buildings both for comfort and for some processes. Even though the majority of the annual heat load is related to comfort heat and not process heat, and the definition of “process heater” otherwise endeavors to exclude from its ambit those “units used for comfort heat,” the proposed, revised regulations would identify those units as both a boiler and a process heater. The confusion

– and additional regulation

– that would flow from EPA’s proposed re vision is unnecessary and lacks any rational basis. It would be simpler to keep all hot water heaters classified first as boilers, regardless of whether they heat a process, see, e.g., id. at 80,650 (“Boiler means an enclosed device usingA

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controlled flame combustion and having the primary purpose of recovering thermal energy in the form of steam or hot water”), and then exclude from regulation under the Boiler MACT those units that meet § 63.7575’s definition of “hot water heater,” see, e.g., id. at 80,641 (including a hot water heater as defined at § 63.7575 as one of the types of boilers and process heaters that is not subject to the Boiler MACT ). EPA should rescind this proposed revision.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they w ill be addressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AIF) Document Control Number: EPA

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Comment: In the June 4, 2010, proposal for the Boiler MACT, the definition of “unit designed to burn gas 1 subcategory” was formulated as follows: Unit designed to burn gas 1 (NG/RG) subcategory includes any boiler or process heater that burns at least 90 percent natural gas and/or refinery gas on a heat input basis o n an annual average. National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters , 75 Fed. Reg . 32,006, 32,065 (June 4, 2010) (the “Proposed Boiler MACT ”) (underline added ). The Boiler MACT Reconsideration Proposal contains the following revised formulation to the definition: 34 Unit designed to burn gas 1 subcategory includes any boiler or process heater that burns only natural gas, refinery gas, and/or other gas 1 fuels; w ith the exception of liquid fuels burned for periodic testing not to exceed a combined total of 48 hours during any calendar year, or during periods of gas curtailment and gas supply emergencies. Boiler MACT Reconsideration Proposal , 76 Fed. Reg . at 80,655 (underline added to indicate revisions). AIF supports the proposed exclusion in this definition for periods of time that a NG fired unit combusts fuel oil for testing purposes and when needed as an “emergency back

- up” fuel. However, AIF is concerned about the 48

- hour restriction associated with “periodic testing” and that gas curtailment and/or gas supply emergencies may not address all of the foreseeable emergency situations. Accordingly, AIF urges EPA to amend this definition to allow units in the Gas 1 category to burn up to 10% other fuels annually, thereby returning to the prior formulation of the definition from the Boiler MACT Proposal. See Proposed Boiler MACT

, 75 Fed. Reg . at 32,065. With respect to the 48

- hour restriction for “periodic testing,” c onsider, for example, the request by a state agency to conduct emission testing using fuel oil to demonstrate compliance with emission limits that would be imposed when combusting fuel oil pursuant to state regulations. In AIF members’ experience, boilers in such a circumstance may have to operate on fuel oil for approximately one week to ensure that they have achieved representative operation to allow for an acceptable emission test using the federal reference test methods. It would be inappropriate to the n consider the boiler no longer covered by the NG category because of such emission testing. Thus, while 48 hours may be adequate to confirm that a boiler could operate using fuel oil as designed, it is insufficient to provide adequate operation to perform emission testing when required by a state regulatory agency. With regard to the exclusion of NG curtailment and/or supply emergencies, AIFA

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members recall events during the 1980’s when there was extensive uncertainty regarding the availability of a continu ous supply of NG and fear about potential NG shortages and interruptions. To be clear that fuel oil can be used during periods of inadequate NG supply or interruption, AIF believes that the exception provided in the definition needs to be expanded to allow for periods of potential supply interruption. Therefore, AIF urges EPA to amend the definition to allow for units in the Gas 1 category to burn up to 10% other fuels annually. If EPA does not revise the definition as AIF urges, it will result in taking un its that would otherwise fall within the ambit of this definition

– and that are designed to burn Gas 1

– outside of it. There is no rational basis for such a result. [Footnotes] (34) The formulation for this definition in the Boiler MACT Reconsideration Proposal is consistent with the formulation in the final rule. See Boiler MACT

, 76 Fed. Reg . at 15,686.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Ma jor Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Au to Industry Forum (AIF) Document Control Number: EPA

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Comment: EPA proposes exempt from the Boiler MACT those units that facilities use as control devices to comply with the standards of part 60, part 6 1 or part 63 of the CAA, provided that “at least 50 percent of the heat input to the boiler is provided by the gas stream that is regulated under another subpart.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg . at 80,615

- 16. In the final rule, EPA had merely promulgated this exemption in the part 63 context, however, it now proposes to extend the exemption to parts 60 and 61 because of their respective relevance to the NESHAP program. See id. EPA, therefore, proposes to revise accordingly the provision at § 63.7491(i) that enumerates the boilers and process heaters not subject to the Boiler MACT. See id. at 80,628. 35 AIF supports extending the exemption to cover units required by parts 60 and 6 1 in addition to part 63 of the CAA and to units used as integral to control devices. Consider, for example, boilers used as part of VOC control devices for the purpose of desorbing the VOC that is adsorbed onto a carbon bed or wheel, such that the VOC

can be concentrated and routed to a thermal oxidizer. Without the use of the boiler, this VOC control system would be extremely inefficient and require much larger thermal oxidizers and waste more NG in the destruction of VOC . Therefore, EPA should finalize i ts proposed amendment to the exemption for units serving as control devices. [Footnotes] (35) “The types of boilers and process heaters listed in paragraphs (a) through (n) of this section are not subject to this subpart: . . . (i) Any boiler or process he ater that is used as a control device to comply with another subpart of this part, or part 60 or part 61 of this chapter provided that at least 50 percent of the heat input to the boiler or process heater is provided by the gas stream that is regulated und er another subpart.” Boiler MACT Reconsideration Proposal , 76 Fed. Reg . at 80,628.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industri al,A

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Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shannon S. Broome Commenter Affiliation: Auto Industry Forum (AI F) Document Control Number: EPA

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Comment: Based on the request of petitioners that EPA clarify the timing of tune

- ups with respect to the compliance dates for new sources, EPA proposes to require comple tion of the initial tune

- up after startup within one year of startup. See id. at 80,614. EPA makes this proposal based on its recognition that, generally, units are tuned as part of installation. See id. In the experience of AIF’s members, EPA is correct i n recognizing that, generally, units are tuned as part of the installation process. Accordingly, AIF supports EPA’s proposal in principle, however, EPA should amend it to make the deadline for the first tune

- up after installation consistent with the tune

- u p cycle germane to the specific unit. For example, under the proposed reconsideration rule, units such those fired by NG, RG, other clean gas like LFG (that meets the “other Gas 1 fuel” specification) and light liquid operate on a five

- year tune

- up cycle. See id. Consistent with that requirement, EPA should amend the proposal to require units fitting within that classification that are located at new sources to complete their initial tune

- up after installation within five years of startup

— as opposed to with in one year after startup under the reconsideration proposal. As EPA correctly acknowledges that, generally, units are tuned as part of installation, it would be arbitrary and capricious for EPA to require a unit to conduct its initial
tune

- up after instal lation on a different timetable than the cycle otherwise germane to that specific type of unit. Therefore, while AIF supports the principle underlying EPA’s proposal, it recommends that EPA finalize the proposal with the suggested amendment that would key the initial tune

- up requirement to the tune

- up cycle that is germane to the specific unit.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Stuart A. Clark Commenter Affiliation: State of Washingt on Department of Ecology Document Control Number: EPA

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Comment: We are pleased that EPA segregated biomass boilers by design type under the Major Source Boiler MACT Rule. This segregation better reflects the capabilities of the various boiler designs. The clear separation of biomass from coal units has provided particulate emission limits that better reflect the capabilities of units burning coal and biomass. We support EPA’s decision to not establish num erical emission limits for dioxin/ furan emissions from major source biomass boilers, since all emissions reports are at or below the detection limit for the test method. WeA

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also support EPA’s recognition that good combustion practices and boiler design are a reasonable way to control for particulate matter, carbon monoxide, and dioxin.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industria l, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.



### 1D. Boiler

- Undesignated

Commenter Name: Alicia Meads Commenter Affiliation: Na tional Association of Manufacturers (NAM) Document Control Number: EPA

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Comment: The NAM supports the EPA’s decision to establish work practice standards in lieu of emission limits for certain gas

- fired boilers, for dioxin/ furan and for periods of startup and shutdown
The EPA has properly exercised its authority by proposing to rely on work practice standards in lieu of emission limits for certain gas

- fired boilers (units that combust only natural gas, r efinery gas, or equivalent fuel (other gas that qualifies as Gas 1 fuel)). 76 Fed. Reg . 80,601. The EPA is also proposing a work practice standard for dioxin/ furan emissions from all subcategories. Id. at 80,602. In addition, the EPA is proposing revised w ork practice standards for periods of startup and shutdown. Id. at 80,602. By taking these steps, the EPA will help to make sure that these rules do not unduly harm segments of the nation’s critical manufacturing base.
The EPA has ample legal authority to set the standard in terms of a work practice. First, section 112(d)(1) authorizes

– if not requires

– the EPA to set "emission standards" for each category or subcategory, and section 302(k) defines "emission standard" to include work practice standards. Thus, if the EPA determines that the best performing sources achieved their emissions performance through work practices rather than control equipment, those work practices should be identified as the "floor." Second, section 112(h)(2)(b) independently aut horizes the EPA to use a work practice standard where, as here, the application of a system for measuring the effect of the control measure for enforcement purposes is not practicable.
The EPA has independent authority to promulgate work practices as emission standards under CAA §302(k) as long as the work practices provide a continuous limit on emissions or are part of a set of regulations that provide a continuous limit on emissions. A s required by CAA § 112(d), the EPA must promulgate "emission standards" for the control of hazardous air pollutants at major sources. Originally, these "emission standards" were found to be limited to only numeric emission limits. See, e.g.
, Adamo Wrecking Co. v. U.S. , 434 U.S. 275 (1978). However, in the 1990 Amendments, Congress expanded the definition of "emission standards" in §302(k) to expressly include work practices. As a result, the plain language of the Clean Air Act nowA

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authorizes the pr omulgation of work practices: (1) as direct emission standards under §302(k), and (2) in lieu of emission standards under CAA §112(h).
That statutory authority greatly simplifies the development of work practice standards for boiler units. Instead of turn ing to the alternate stop

- gap provisions in §112(h) that apply when continuous emissions standards are not feasible, the EPA can focus on the direct establishment of work practices that existing sources use to ensure continuous compliance under §§112(d) an d 302(k). For example, if the top 12% of existing natural gas

- fired boilers are using tune

- ups to achieve their "best performing" status, then the EPA has the authority to establish that protocol as a work practice

- based emission standard. Tune

- ups are an appropriate emission standard for these units because, if conducted with adequate frequency, they provide continuous reduction of the quantity and rate of HAP emissions from boilers by ensuring that they operate properly.
The NAM agrees with the EPA’s con clusions regarding the basis for relying on work practices for units that combust only natural gas, refinery gas, or equivalent fuels. As the EPA recognizes, the capital cost of emissions controls for the numerous existing gas

- fired boilers would be
extrao rdinarily high. See 75 Fed. Reg . at 32,025, 32,029. Further, the EPA correctly concluded that imposing emission limitations on gas

- fired boilers would create a disincentive for switching to gas from oil, coal or biomass as a control technique. Id. In fact, it could create an incentive for facilities to switch away from gas to other fuels. Both outcomes should be avoided. Finally, the EPA recognized that "[t]he inability to accurately measure emission from Gas 1 units and the related economic impracticabilit y associated with measuring levels that are so low that even carefully conducted tests do not accurately measure emissions warrant setting a work practice standard under CAA section 112(h)." 76 Fed. Reg . at 15,638.

In addition, the EPA is correct that wor k practices are appropriate for dioxin/ furan , as the large majority of the dioxin/ furan measurements are below the level that can be accurately measured. 76 Fed. Reg . at 80,606. This is consistent with the approach that the EPA correctly took in the
recent ly finalized Mercury and Air Toxics Standard.
Finally, the NAM agrees with the EPA’s rationale for justifying work practice standards for periods of startup and shutdown, as described in the preamble to the final rule. 76 Fed. Reg

. 15,642. The EPA’s ratio nale, along with the concerns raised in prior comments by the NAM and others, justify reliance on work practices.
Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollut ants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the exten t that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA

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- A1 Com ment Excerpt Number: 2A

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Comment: The NAM supports the EPA’s creation of additional subcategories

The CAA unequivocally authorizes the EPA to establish appropriate subcategories of sources. CAA §112(c)(1) instructs EPA to establish "categories and subcate gories" of sources for regulation under Section 112. CAA §112(d)(1) then further provides that the EPA "may distinguish among classes, types and sizes of sources within a category or subcategory" when establishing MACT standards. These provisions vest the EPA with the clear authority to group like units for purposes of establishing emissions limitations. Further, the EPA’s ability to subcategorize is a key tool in ensuring that MACT floors are achievable. See Sierra Club v. EPA

, 479 F.3d 875, 884

- 85 (D.C. C ir. 2007) (Judge Williams’ concurrence noting the need to use subcategorization to avoid imposing unreasonable or unachievable MACT floors).
Thus, the NAM supports the EPA’s conclusion that certain additional subcategories are warranted. For example, the E PA’s division of the liquid subcategory into light and heavy liquid subcategories for PM and CO is warranted because of the differences in equipment design, operations and emissions between the subcategories. In addition, the EPA’s establishment of a limit ed use subcategory subject to work practices is warranted for a variety of reasons previously highlighted by the NAM, including the fact that these units spend a far greater percentage of their time starting up and shutting down than other units, leading t o different emission profiles and control options.
Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutiona l Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemak ing, they will be addressed there.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA

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- A1 Comment Excerpt Number: 4

Comment: The EPA proposes to set the co mpliance deadline for existing affected sources at three years after the date of publication of the Final Rule in the Federal Register. 76 Fed. Reg . at 80,605. It will be extraordinarily difficult

– if not impossible

– for all of the entities with existing boilers to make the changes necessary to comply with this rule in the three year timeframe that the EPA proposes. Put simply, the task of performing a boiler retrofit in three years will be made nearly impossible by the competition for critical resources and the likely gridlock in many state permitting processes that the broad application of this rule will create. Many boiler owners will be simply unable to secure equipment and assistance and/or to obtain the state/local permits needed to retrofit their un its within three years.
Even under the best of circumstances, a major retrofit of a boiler takes years from project start to finish. The EPA has estimated that the installation of an activated carbon injection control system on one combustion unit

– a comp aratively simple installation

– takes about 15 months.3 However, the EPA expects a range of control devices will be used to meet the standards,A

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including fabric filters, carbon bed adsorbers , activated carbon injection, electrostatic precipitators, wet scr ubbers, replacement burners, and combustion controls.4
Further, the sheer number of boilers impacted by the rule will make finding

– and then scheduling

– the design and construction resources almost impossible. The EPA estimates that approximately 5,500 b oilers would need to meet emission limits under the rules.5 Many, if not all, of these boilers would need to be retrofitted. Boiler owners will need to hire engineers to assist them in designing and performing the retrofit. Thus, across the various industr y sectors impacted by this rule, boiler owners will be competing for qualified engineers to design, permit and perform the retrofits necessary to make boilers compliant with this stringent rule. There will be a similar scarcity in equipment vendors, constr uction contractors, construction equipment (e.g, heavy lifting cranes), skilled labor (e.g., boilermakers), and other critical suppliers.
Companies may even be unable to secure the basic building materials and control equipment (e.g., baghouses and scrubbe rs).
In order to retrofit a boiler, the owner will need to line up the capital necessary to pay for the retrofit. In these difficult economic times, just securing the necessary capital may take significant time. In addition, the owner will need to go thoug h the relevant permitting process( es ), which will take a number of months. Finally, once the finances are secure and the permitting is complete, the owner will actually need to perform the retrofit. The design, procurement, installation, and shakedown of a retrofit project (e.g., installing a scrubber on a large boiler) can easily take multiple years.
In addition, the timing of the retrofit work needs to be carefully planned, particularly for boilers that provide the primary and/or base load energy supply f or their facilities. A facility owner will only shut down a boiler when everything is properly staged to ensure minimal disruption of the facility’s operation. Based on a discussions with a number of potentially affected companies, the turnaround or shutdo wn cycles for boilers at many of the facilities is so long as to make this type of precise staging exceedingly difficult to do in a three year period without substantial business interruption.
Finally, in many instances, the installation of pollution contr ol equipment and associated charges to boiler must be permitted under state air pollution statutes and/or construction codes (building permits, etc.). The proposed rule will result in an increase in the number of permit applications, potentially swamping t he state and local agencies. Even in those areas where the rule may not result in significant increases in permitting work, the normal delays associated with permitting may make meeting the three year compliance deadline impossible.
In light of the difficu lty in meeting a three year compliance deadline, the EPA and authorized states should be prepared to readily grant one

- year extensions under CAA § 112(i)(3)(B) to those units that have problems installing the necessary control equipment to comply with the industrial Boiler MACT rule.

In addition, the EPA should establish an extended two

- step compliance period for situations where a boiler owner voluntarily elects to replace or retrofit a boiler to burn a cleaner fuel source.6 If a facility decides to switch to a cleaner fuel, the replacement or retrofit work required to make that switch will potentially take years, for all of the reasons discussed above. Rather thanA

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require the facility to add emissions controls to its existing boiler in time for the propose d three year compliance deadline

– likely eliminating the possibility that the facility would switch to a cleaner fuel source

– the EPA should allow five years total for facilities to change their boilers and meet the MACT requirements for the cleaner fuel source. This five year period would occur in two steps; a no

- backsliding provision would apply for two years from publication of the rule in the Federal Register, and then the facility would have three years to comply with MACT standard for the subcategor y for the cleaner fuel subcategory. The EPA promulgated exactly this type of extended MACT compliance deadline for certain facilities that voluntarily elected to install new technology as part of the Pulp and Paper Cluster Rule. See Pulp and Paper Cluster Rule, 60 Fed. Reg. 18503, 18,508 (Apr. 15, 1998).7 In addition to providing an incentive for facilities to switch to cleaner fuel sources, this approach would reduce some of the competition for resources discussed above by extending the deadline to complet e the work to replace or retrofit certain boilers.

[Footnotes]
(3) EPA, Engineering and Economic Factors Affecting the Installation of Control Technologies for Multipollutant Strategies (2002).
(4) EPA, Regulatory Impact Analysis: National Emission Standar ds for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters , 3

- 1 (April 2010) (“The control analysis considered fabric filters, carbon bed adsorbers, and activated carbon injection to be the primary control dev ices for mercury control, electrostatic precipitators for units meeting mercury limits but requiring additional control to meet the PM limits, wet scrubbers to meet the HCl limits, tune

- ups, replacement burners, and combustion controls for CO and organic H AP control, and carbon injection for dioxin/furan control.”)
(5) http://www.epa.gov/airquality/combustion/docs/20111202presentation.pdf. (6) EPA recognizes the MACT rule should be crafted to encourage the use of cleaner fuels, such as natural gas. 75 Fed. Reg. 32025.
(7) This two

- step approach for the MACT standard is consistent with the D.C. Circuit’s decision in NRDC v. EPA, 89 F.3d 1364 (D.C. Cir. 2007) (finding invalid EPA’s decision to extend the compliance deadline for a promulgated MACT rule by a ye ar because of the substantial changes that the agency made to the rule). Rather than functioning as an extension of the compliance deadline, this MACT standard for certain facilities would become applicable in two steps. For the first three years, a no

- ba cksliding MACT standard would be applicable, then the three year deadline to implement the MACT standard for the applicable “cleaner” source would begin to

run. Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standard s for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.A

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Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA

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- A1 Comment Excerpt Number: 5

Comment: EPA should change 40 CFR 63.11196 to allow three years, rather than two, for sources subje ct to the tune

- up requirement to demonstrate compliance
The EPA is proposing to amend 40 CFR 63.11196 to specify that all existing boilers subject to the tune

- up requirement would have two years (by March 21, 2013) in which to demonstrate initial compliance, instead of one year to demonstrate initial compliance. The EPA requested comment on wheth er the initial compliance period for the tune

- up requirement should be extended to three years. 76 Fed. Reg . 80,535.
For many of the same reasons discussed above, the NAM recommends that this compliance period should be extended to three years. See 76 Fed

. Reg . 15579, Table 4 (identifying 183,000 existing area source boilers). Combining a potential shortage of environmental engineers with the long range planning required for testing and work at facilities, it will be difficult to schedule and complete the testing needed to comply with the tune

- up requirements in time to meet a two year deadline, particularly for facilities with multiple boilers.
Response: The commenter primarily discussed issues that are being dealt with within the National Emission Stand ards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Alicia Meads Commenter Affiliation: National Association of Manufacturers (NAM) Document Control Number: EPA

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Comment: The EPA’s proposed energy assessment is too broad in scope
The NAM continues to believe that the EPA’s proposed energy assessment requirements are unwarranted. Further, although the EPA has in dicated that it is limiting the scope of its energy assessment requirements, the NAM believes that the measures still exceed the scope of the EPA’s authority. Section 112(d) of the Clean Air Act is focused entirely on regulation of "sources." It requires t he EPA to set emissions standards that are "applicable to new or existing sources" § 112(d)(2). Thus, it reaches no further than the specific "sources." The "affected source" regulated by this NESHAP is the specified emission unit

– boilers

– not any other portions of the plant. Thus, if the EPA retains the energy assessment requirements, they should be clearly limited to addressing only the boiler and auxiliaries.
Response: The commenter primarily discussed issues that are being dealt with within the Nat ional Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial,A

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Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Instit utional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies ( NACAA) Document Control Number: EPA

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Comment: EPA has proposed to retain its “work practice” standards for carbon monoxide (“CO”) emissions for certain subcategories and for emissions of dioxins and fura ns (“D/F”) for all subcategories on the basis that measuring emissions of these pollutants is impracticable. However, EPA has not identified the specific work practices that the regulated community must employ. Given the complex nature of D/F formation, th e development, implementation and enforcement of a meaningful D/F work practice requirement is itself impracticable. The fact that many sources have shown a “below the detection limit” (“BDL”) test result does not make such testing impracticable nor will s uch results be a violation. EPA should address the issue of an unnecessary testing burden for “clean units” head on and not suggest that an unspecified work practice obligation will achieve the emission reductions. Where EPA believes that emissions from so me sources are truly insignificant, it should say so and use the authorities available to it for de minimis emissions.
Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air P ollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 4

Comment: In response to comments on the 2010 rule, EPA adopted a different approach for calculating the Upper Probability Limit (“UPL”) to provide for calculation of the “pooled” variability of units in a subca tegory, rather than the simple variability of those units. On the basis of this change and without additional notice to interested parties, EPA then adopted MACT floors that were significantly different from those in the 2010 proposal. On reconsideration, EPA proposes to use the same procedure as in the final rule. EPA’s misapplication of this new technique leads it to calculate mercury (“Hg”) MACT floors for existing oil

- fired units that are seven times higher (less stringent) than would have occurred unde r the 2010 approach and far more lenient than the underlying data would suggest. EPA states that it is seeking public comment only on the issues specifically identified in its 64

- page list of proposed changes andA

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that it will not respond to any comments ad dressing other aspects of the final rule or any other related rulemakings. However, EPA also argues that the changes it is proposing are so comprehensive that it should provide a new three

- year compliance period for all sources. While we agree that certain issues, such as “risk

- based exemptions,” need not be revisited, interested parties have not had an opportunity to comment on EPA’s change in procedure. We think it is unwise for EPA to suggest that it will not consider any and all comments related to the substance of the rulemaking.
Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addr essed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: NACAA supports the development of subcategories in MACT rule development, where such subcategories are based on meaningful differences in anticipated fuels and unit designs. EPA has received a significant number of comments from sources making general assertion s and theoretical arguments in support of additional subcategories; accordingly, the agency has proposed to greatly expand the number of subcategories for several pollutants. NACAA agrees that EPA’s proposal to establish four broad categories based on fuel type

– coal, biomass, liquid and gas

– is reasonable.
EPA proposes, however, to subdivide these broad categories into 38 subcategories for existing and new units. In support of the explosion in the number of subcategories, EPA explains the differences in design between, for example, a coal

- fired stoker boiler and a coal fired pulverized coal (“PC”) boiler. However, large boilers do not come off an assembly line 12 and can last for up to 50 years. Almost every large boiler will have differences in design fro m every other large boiler. Even smaller boilers will have differences in design from small boilers produced by other manufacturers. As a result, it is insufficient to simply identify design differences. Where EPA seeks to establish additional subcategorie s it must explain why those differences matter and point to information in the record that supports its conclusion. For example, within the Boiler MACT “coal

- fired” category, EPA proposes separate subcategories for stoker, fluidized bed and pulverized coal designs. However, we know of no reason why well

- controlled units of these designs should differ significantly in levels of HAP emissions. Similarly, EPA proposes to establish seven subcategories of wood

- fired boilers 13

– wet stoker, dry stoker, fluidized b ed, suspension, dutch oven, fuel cell and hybrid suspension

– based on differences in the design of the combustion chamber of these units

. However, most boilers and. in particular, the best

performing units, are equipped with PM control devices ranging in e ffectiveness from cyclones and multi

- cyclones to electrostatic precipitators and fabric filters. The performance of the installed PM control device governs the level of PM and TSM emissions to a far greater extentA

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than differences in design of the combusti on unit itself. Indeed, in the stoker/sloped/other dry biomass subcategory we note that each of the units in the subcategory is only served by cyclone or multiclone particulate matter control devices, while in other subcategories most of the units are equi pped with more effective fabric filer or electrostatic precipitator control devices. We do not believe that EPA is authorized to create a class of “poorly controlled units” and recommend that no separate subcategories be authorized for PM or TSM. 14

[Footn otes:

12 Even mass

- produced automobiles will exhibit design differences within and between models and manufacturers.

13 NACAA has raised a concern that differences in the combustion properties of “wet” wood and “dry” wood might warrant development of a separ ate subcategory.
14 These devices, along with sulfur dioxide and nitrogen oxide controls may also affect emission levels of hydrogen chloride and mercury.]
Response: The commenter primarily discussed issues that are being dealt with within the National Em ission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) D ocument Control Number: EPA

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- A1 Comment Excerpt Number: 11

Comment: EPA’s proposed limits for Hg emissions from liquid

- fired boilers reveal the magnitude of EPA’s decisions respecting (1) the level of precision to be employed in

con ducting emission testing and fuel analysis, (2) determining variability of “best” sources with insufficient data, (3) “pooling” variance among different sources where there is no reason to believe that each of those sources has the same amount of variabili ty, and (4) determining the UPL based on emission data where the source is not “in compliance.” Distillate oil (#2 oil) is commonly understood to contain far less Hg than coal or biomass; while residual oil (#6 oil) contains somewhat less Hg than solid fue ls. EPA’s existing source MACT floor is based on a series of test results from ten sources combusting four different types of oil. 23 Six sources submitted the results of a single compliance test and four sources submitted 41 fuel analyses . The arithmetic a verage of these results is 3.70 x 10

- 7 lb/MMBtu and the standard deviation is 3.07 x 10

- 7 lb/TBtu, suggesting that a reasonable MACT floor would be in the range of 1.0

- 1.5 x 10

- 6 lb/MMBtu (a variability factor of 300 to 500 percent). 24 EPA’s earlier UPL calculation led to the final rule MACT standard of 3.4 x 10

- 6 lb/MMBtu

– a variability factor of over 900 percent. EPA’s newly proposed statistical procedure results in a proposed UPL of 2.49 x 10

- 5, using the same data. This number is more than 100 times the arithmetic average of the data and more than 100 times the standard deviation of the data set 25 . As a consequence, of theA

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71 sources for which EPA has data, only four sources will have to reduce emissions. As Table 1 demonstrates [see submittal for com parison table provided by commenter], many of the characteristics of the data for the liquid fuel

- fired subcategory are similar to those in the solid fuel

- fired subcategory and yet EPA’s proposed MACT floor for liquid fuel

- fired boilers is nearly ten times higher than the proposed limit for solid fuel

- fired units. Charts 2 and 3 [see submittal for charts provided by commenter] demonstrate the impact of EPA's determination of variability on the effectiveness of the rule. The average of the top 12 percent (lo west test value) in each case is well below 1.0 x 10

- 6 lb/MMBtu. If EPA had set the limit for coal

- fired units at that level, approximately 25 percent of the subcategory would meet the limit and the balance would be required to take some steps to reduce em issions. At the proposed level of 3.1 x 10

- 6 lb/MMBtu, while the gross emitters would have to take steps to comply, approximately two thirds of the units in the subcategory would not need to reduce emissions. For the oil

- fired subcategory, only four of 71 units would have to reduce emissions at all; the proposed limit is five times higher than the emission rate of the fifth highest emitting unit in the subcategory. These results do not appear to be consistent with EPA’s obligation to set MACT floors at leve ls that represent the average of the performance of the top 12 percent. NACAA attempted to discern why EPA’s procedure generated such different results when the overall distribution of the Hg emissions data for coal and oil

- fired units was so similar. The largest single reason for this vast difference appears to be a simple error in importing the data

– EPA incorporates the emissions data for HCl instead of Hg into its UPL calculation. 26 With the correct data, EPA’s 99th percentile UPL calculation yields a MACT floor of 4.58 x 10

- 7 lb/MMBtu. [Footnotes: 23 MACT Floor Memo, Appendix C

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- (a)(i). 24 A somewhat higher limit may be appropriate as many of the reported results were below detection limits, thereby constraining the variability that would have been d emonstrated by more precise analyses. This effect is offset by the fact that the arithmetic average would be lower with more precise analyses, but the degree to which these factors offset is not known. 25 Sources routinely maintain, and EPA agrees, that fu el variability is so small that sources only have to conduct new fuel analyses when they change suppliers. 26 The error can be found in MACT Floor Memo, Appendix C, Worksheet “C

- 4(a)(iv)&C

- 4b(iv)” which is then carried over into Worksheet “C

- 4(a)(ii).”]

Re sponse: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission S tandards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: In 2004, EPA candidly admitted that it could not develop CO work p ractice standards for ICI Boilers: Consequently, any uniform requirements or set of work practices that would meaningfully reflect the use of good combustion practices or that could be meaningfully implemented across any subcategory of boilers and process heatersA

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could not be identified. 29 EPA has nonetheless asserted that measuring CO levels is impracticable 30 and has set out what it describes as a work

- practice standard. What EPA has adopted and continues to propose is not a set of good combustion practic es that could be meaningfully implemented across a subcategory, but a requirement to follow the manufacturer’s recommendation for good combustion practices. This assumes that manufacturers can do what EPA could not

– identify a set of good combustion pract ices applicable to boilers designed and built over the past 50 years. It also assumes that the manufacturers of these units are still in business and will invest the resources needed to do so voluntarily. These assumptions are patently incorrect. There is no obligation on the part of manufacturers to develop any meaningful set of broadly applicable good combustion practices or to determine the set of work practices employed by the best performers in the sector or to determine whether any particular set of w ork practices approximates the emission performance of the best performers in a subcategory. Conceivably, an organization like The National Board of Boiler & Pressure Vessel Inspectors might be able to provide a certification/best practices review of any l egacy boiler, even if the original manufacturer is no longer in business and individual sources can retain consulting firms to study the operation of individual boilers and recommend a set of best practices for that boiler. We submit that such a program, t hat imposes obligations on relatively clean boilers as well as high emitters, if conducted in a technically sound manner, may prove to be more costly overall and provide far less environmental benefit than a defined numerical limit that requires significan t emission reductions from gross emitters. CO CEMs are available, relatively inexpensive and used by industry for process control. These devices should be required for all combustion units covered by the major source and CISWI rules. Further, EPA’s asserti on that CO monitoring is infeasible is inconsistent with its proposed reliance on CO optimization for D/F control. EPA now proposes to adopt a similar “work practice” standard for dioxin and furan emissions, again asserting that enforcing a numerical limit is impracticable, notwithstanding the hundreds of D/F emission tests in the rulemaking record. EPA argues that this is demonstrated by the large number of results that are “non

- detect” (“ND”), detection level limited (“DLL”) or BDL. First, we note that th is problem is of EPA’s creation. EPA knew, before testing was to be conducted, that many results would be at or below detection limits if it only required sample periods of one hour per run. Indeed, industry sources specifically raised this issue and inqui red whether they should extend sample periods to ensure more precise results. EPA’s response was that sources need not do so and that EPA would “address” the issue in its rulemaking. Testing for D/F and other pollutants often included detection and quantif ication limits that are quite high

– one source reported a detection limit for mercury that equates to 6.57 lb of mercury emissions per year, 31 while several sources reported D/F detection limits several orders of magnitude larger than the levels of regula tory interest. Further, if the standard is set at the most common detection limit, plus an appropriate variability factor, no harm is done, since a subsequent emission test that is BDL would not constitute a violation. Retaining such a limit would not requ ire any change in performance for relatively clean units, but would at least require gross emitters to reduce emissions. Developing a meaningful work

- practice standard for controlling D/F emissions is far more difficult and resource intensive than merely r educing CO levels. According to the Industrial Combustion Coordinated Rulemaking (“ICCR”) study 32 , control of CO levels is not sufficient; one must also examine the interaction of several factors in a complex combustion environment. The ICCR study conclude s that CO monitoring can help confirm that current operating conditions are the same as during a D/F emissions test, but are not a direct indicator of low D/F emissions; equivalent dioxin levels can be found at 1 ppm as are found at 4,000 ppm CO levels.A

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Ot her factors were found to be more important and, based on the ICCR workgroup results, meaningful work

- practice standards would have to include good combustion practices (including total hydrocarbon and CO concentrations, soot formation and particle entrain ment), quench rate, air pollution control device temperature and fuel and waste parameters. 33 Large ICI boilers will have far higher flow rates than medical waste incinerators and so may actually emit a substantial amount of dioxin on an hourly (or certain ly annual) basis. . As discussed above, such a task would require significant resources. Indeed, such an effort would likely be more expensive than testing. There is no reason to suspect that manufacturers would voluntarily do so (even if it could be done) and no authority to require that they invest in such an effort. 34 Some manufacturers may, as a courtesy to their clients, publish “nominal” good combustion practices. However, there is no way for federal, state or local enforcement authorities to require that such practices have any practical impact. The end result would be additional paperwork demands on sources and permitting authorities and no environmental benefit. EPA’s real argument appears to be that setting D/F limits for these sources is “not wort h it” because emission levels are “small.” If this is the case, EPA should make this argument clearly and support it with objective facts. It should, at least, compare daily/annual D/F emissions from medical waste incinerators (and other source categories) with D/F limits with anticipated D/F emissions from high emitters to see if those emissions are de minimis. Additionally, EPA should explore options to reduce testing burdens for the sector. Potential areas for reduced testing costs are pooled testing for units of similar designs and reduced testing frequencies for sources whose emissions are below a certain threshold. Additionally EPA could attempt to review operating conditions for better performing units to determine whether there are readily discernibl e operating conditions (such as maximum boiler temperature, oxygen levels or chlorine content of fuel and designed residence time) where parametric monitoring can be employed in lieu of reference testing. EPA might also consider a threshold where, if sourc es demonstrate very low D/F emission rates, a one

- time test, combined with parametric monitoring might suffice.

[Footnotes: 29 Memorandum, Eddinger, J., USEPA to Docket No. OAR

- 2002

- 0058, February, 2004,” Revised MACT Floor Analysis for the Industrial, C ommercial, and Institutional Boilers and Process Heaters National Emission Standards for Hazardous Air Pollutants Based on Public Comments” p.18. 30 NACAA has commented that this representation is incorrect. CO emissions’ testing has been conducted for sev eral decades on thousands of different sources. 31 This is roughly equivalent to a quantification limit of more than 60 lb/yr. EPA refers to the quantification limit as the level at which emissions can be measured accurately. 32 See, Gullet, B,, USEPA, and Seeker, Randy, EER Corp “Chlorinated Dioxin and Furan Formation, Control and Monitoring”1997. 33 Id, slide 79. 34 It is also likely that the manufacturers of a large number of boilers are no longer in business.]

Response: The commenter primarily discusse d issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.A

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Commenter Name: Mary Sullivan Douglas Commenter Affiliati on: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: When a source combusts only one type of fuel at all times, determining which emission limit to apply is straightforward. However, many sources combust different types of fuels at different times and a substantial number of sources combust different mixtures of these fuels at different times. In developing its Model Permit Guidance, 35 NACAA attempted to addre ss this issue by examining test results where only one type of fuel is employed to set the recommended range of suggested limits. It was anticipated that state and local permitting authorities would then determine the appropriate procedure for establishing permit limits on a

case

- by

- case basis, either by applying the limit that was the most stringent at all times, by determining the weighted average of relevant limits or by requiring a compliance demonstration based on full utilization of one fuel. EPA has taken a different approach. It has adopted a “designed to combust” test and a hierarchical scheme for determining the fuel category of a source. 1. If a source generates more than 10 percent of its heat from biomass, it is in the biomass category. 2. If it uses less than 10 percent biomass and more than 10 percent coal it is in the coal category. 3. If it burns oil, but less than 10 percent coal and less than 10 percent biomass it is in the liquid

- fired category. 4. If it burns any amount of gas other than natural gas (Gas 1) it is in the Gas 2 category. EPA has not explained the rationale for this approach, which places many sources in fuel categories other than those that dominate emissions. This approach also appears to invite “category shopping” and does not seem to address all possible combinations. For example, if a fluidized bed boiler burns 91 percent coal and 9 percent biomass, the proposed CO limits are 56 ppm. If that same boiler combusts 90 percent coal and 10 percent biomass, the proposed CO limi ts are 370 ppm. This change is far larger than what one would expect based on such a small difference in the fuel combusted. In its most recent proposals EPA has employed a different approach to the determination of the emission limit to be applied. Wherea s, in the 2011 rulemaking any test result where the source was combusting more than 10 percent coal was used in determining the MACT floor for the coal subcategories, in its most recent calculation of MACT floors EPA only used data from tests where the sou rce was burning 90 percent or more coal during the test for existing sources and 100 percent coal for new sources. We believe that a 90

- percent threshold is appropriate for the definition of this subcategory and appropriate for establishing a limit for “co al

- fired” units, but see no reason to have a higher threshold for new units. Having done so, however, EPA needs to revise its definition of the subcategory to be consistent with its approach in setting standards. EPA may not exclude results from testing of clean sources within the subcategory. We recommend that fuel

- based subcategory limits and subcategory definitions each be based on a minimum (e.g., 85

- 95 percent) usage of the fuel type and that EPA devise an approach for establishing emission limits for units that burn mixed fuels in lesser amounts. [Footnote: 35 See http://www.4cleanair.org/Documents/RHAP.pdf.]

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutant s for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers andA

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Process Heaters. To the extent t hat the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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Comment: NACAA has long supported the general notion of output

- based standards as a way to encourage energy efficiency and mitigate emissions of air pollutants. However, unlike the EGU sector, det ermining energy efficiency improvements from a variety of industrial processes is a complex task that EPA has not yet addressed. Moreover, EPA has not developed the MACT floors using net output

- based data and is not proposing to promulgate mandatory output

- based MACT limits. Rather, it has converted the results of MACT data for sources selected as best performing units on an input

- basis and proposes to offer sources the option of complying with either the input

- based limits or the converted limits. In addit ion, the uncertainties associated with past and future determinations of the unit’s net heat rate are larger than potential efficiency gains that may result from adoption of output

- based standards for existing units using common factors. NACAA believes tha t the most significant effect of offering existing sources the option of output

- based standards based on a pre

- determined conversion factor will be a reduction in the effectiveness of the rule, rather than any measureable improvement in efficiency of exist ing or new sources. For existing units, the principal effect of an “optional” output

- based standard would be to establish a class of “winners” that qualify for lower emission rates based on their currently existing condition, rather than providing an incen tive to reduce emissions. Since facilities with low efficiencies (high heat rates) may elect to comply with the input

- based limit, the only “losers” in this process are the members of the public who are subjected to higher emissions of HAPs than would othe rwise be the case. For this reason EPA should not allow an output

- based standard as an option for existing sources to employ, but should set standards based on net output emissions data. This could be accomplished at the next review of the standard, as
req uired by the CAA every eight years and discussed below. Opportunities for improvement in the heat rate of existing sources are relatively small. In addition, many efficiency improvement options, such as soot removal, are not permanent and require ongoing m aintenance to sustain improved performance. Before proceeding in this area EPA should develop a record that would enable accurate measurement and determination of sustainable efficiency improvements. The record in this rulemaking is not sufficient to estab lish such procedures.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed t here.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA)A

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Document Control Number: EPA

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Comment: NACAA recommends that the frequency of man dated tune ups be based on objective data concerning decay of performance after a tune up.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Exce rpt Number: 26

Comment: NACAA agrees with the industry suggestion and EPA proposal that sources be allowed 30 days to make the adjustments in order to allow for multiple adjustments to optimize CO emissions.

Response: The commenter primarily discussed i ssues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Ar ea Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 27

Comment: NACAA agrees with the suggestion that, where burner inspection is impossible without destroying the unit, it sh ould not occur. In such instances, however, the source should conduct CO monitoring to determine whether the burner has deteriorated to the point that it should be replaced. We do not believe that burner inspections should be waived where they are merely “ difficult” as this term is unenforceable. We suggest that such sources be allowed to determine CO baseline emissions after a tune up and thereafter substitute CO testing in lieu of inspection if they prefer.

Response: The commenter primarily discussed iss ues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards forA

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Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: N ational Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 28

Comment: NACAA notes that EPA’s rationale for the establishment of a non

- continental liquid subcategory (without emission data for each pollutant) is undercut by the use of continental liquid data for missing pollutant data.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Maj or Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the c ommenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 29

Comment: NACAA agrees that sources may employ automated fuel

- sampling equipment, but notes that the 90th percentile compliance obligation is inconsistent with EPA’s determination that MACT floors must be set at a 99th percentil e level.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Comment er Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 30

Comment: EPA has solicited comment on an industry proposal to all ow units that switch to natural gas as a compliance option to average emissions with similar units that do not switch to natural gas. NACAA does not see how this concept could be authorized under the Act.A

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Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area So urces: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: Nati onal Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 31

Comment: EPA has requested comment on a stakeholder proposal that EPA consider creating a subcategory for units that are installed and used in place of flares that are currently used to combust process gases. The stakeholders also suggested that it would be appropriate to assume that the emissions from process gases diverted from flares to boilers have ‘‘zero emissions’’ for the purposes of classifying the boiler in which they are combusted. Since the process gases must be combusted in either event, they r equested that the EPA develop an approach where it uses a concept similar to the emissions averaging provisions, for example, to simply assume that combustion of such process gases in a boiler rather than a flare should not be counted as emissions from the boiler because there is no net increase in emissions. NACAA supports the use of well

- controlled closed combustion devices in lieu of open. However, it appears that such devices would be governed by Gas 2 limits. EPA provides an exemption for combustion de vices used as pollution control devices where 50 percent of the heat value of the device is provided by the exhaust stream that is being controlled. The stakeholder proposal would effectively remove the 50

- percent limit. NACAA believes this is excessive an d would substantially eliminate HAP emission reductions in the Gas 2 category.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided th ese comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 35

Comment: EPA has solicited comment on the use of continuous Hg monitors rather than fuel testing. NACAA supports this proposal; as discussed herein fuel sampling is insufficiently precise to monitor compliance at appropriate emission levels.A

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Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standard s for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 36

Comment: NACAA is supportive of EPA efforts to afford maximum flexibility to affected sources in demonstrating compliance, in order to allow lowest cost emission reductions and the best use of limited state and local resources. We agree that properly functioning SO 2 controls will also reduce HCl emissions and so chlorine levels can be correlated with HCl emissions in such units and in such instances. Sources with existing SO 2 monitors should not have to install separate HCl monitors. However, low sulfur concentration in fuels does not guarantee low chlorine levels in those fuels , especially in biomass fuels. NACAA does not support the use of continuous SO 2 monitors as a surrogate for HCl monitoring in units that do not have active SO 2 controls.

Response: The commenter primarily discussed issues that are being dealt with within t he National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agenc ies (NACAA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 37

Comment: EPA has proposed MACT floors for CO emissions from three subcategories that are either at, or very close to, the sole test result for the subcategory, effectively providing no allowance for in

- use variation in performance. No reason is offered for EPA’s decision and we assume that some correction will be made.

Response: The commenter primarily discussed issues that are being dealt with within the Nation al Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Instituti onal Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.A

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Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACA A) Document Control Number: EPA

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Comment: EPA has not proposed a TSM alternative “because of the limited emission test data for TSM and the large variability in the TSM data for these subcategories. Usi ng the EPA’s maximum achievable control technology (MACT) floor methodology, the alternative TSM limits resulted in MACT floor values which do not appear to represent the actual performance of the best performing units.” NACAA agrees with EPA’s recommendat ion and the rationale for not proposing such limits. While EPA has sent follow

- on inquiries to some sources for additional data, there is insufficient opportunity to meaningfully review and comment on any data that may be provided at this time.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and Industry Document Control Number: EPA

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Comment: A number of our members have expressed support for the creation of the seasonally

- operated bo iler subcategory, which, like many of the changes, will reduce requirements on boilers that operate infrequently or otherwise are likely to be insubstantial sources of HAPs . However, EPA proposes that seasonal boilers would include boilers that undergo “a shutdown for a period of at least 7 consecutive months (or 210 consecutive days) due to seasonal market conditions.” Seasonal changes affect differing parts of the US. The seven month shutdown period benefits only facilities in the southern part of the cou ntry. The definition should be based upon differing regional climate conditions to allow for northern seasonal variances or shortened to five month shutdown criteria.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Ins titutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and IndustryA

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Documen t Control Number: EPA

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- A2 Comment Excerpt Number: 5

Comment: EPA should clarify that required energy assessments are limited to the regulated boiler/unit, and are not applicable to the entire facility.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standard s for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shawn Go od Commenter Affiliation: Pennsylvania Chamber of Business and Industry Document Control Number: EPA

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- A2 Comment Excerpt Number: 7

Comment: EPA requested comments on whether to include the use of specific fuels during shutdown and startup periods. We also oppose this provision as a standard requirement, since it would be impractical to implement in many occasions.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will be addressed there.

Commenter Name: Shawn Good Commenter Affiliation: Pennsylvania Chamber of Business and Industry Document Control Number: EPA

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Comment: The Pennsylvania Chamber supports EPA’s proposal to extend by 365 days the compliance date of the initial tune

- up for new and reconstructed sources. However, we urge EPA to harmonize this extension with the definition of new/reconstructed sources by resetting the proposal date for defining such sources from June 2010 to the re

- proposal date of December 2011. This will allow more reasonable lead time for covered sources to factor changes reflecting those revisions into construction plans.

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Pr ocess Heaters and National Emission Standards forA

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Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that the commenter has provided these comments to that rulemaking, they will b e addressed there. However, to the extent their comment concerns CISWI, see the response to EPA

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- A1, excerpt 2. Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA

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Comment: The American Lung Association is troubled by the EPA’s continued reliance on work practice standards, particularly as they would be the sole means of reducing toxic emissions for 13 percent of boilers and heaters and for dioxins and furans . Although Section 112(h) of the Clean Air Act permits EPA to establish work practice standards as an option for reducing emissions, the Act intentionally limits their use, with explicit instructions that these are to be used only if it is infeasible to prescribe or enforce emission standards and further requires that any work practice standards be consistent with actual emission standards that EPA would set under § 112(d) if it were feasible to do so. Here, EPA has not sh own and cannot show that it is infeasible to set emission standards for boilers, and the work practice standards it issued are not consistent with § 112(d). Rather, EPA has merely used work practice standards as an excuse to rationalize allowing industry t o keep doing the same thing they currently do as being consistent with setting emissions standards on 195,000 boilers. In the prior final rule issued March 21, 2011, and in this proposed rule, the EPA argues against measuring emissions in these boilers fro m the stacks and justifies the use of work practice standards as the only remaining option. Even if the EPA could demonstrate that the Agency could not set emission standards for boilers, the Agency misses the opportunity to take one of the other options a vailable under Section 112(h): that is, to “promulgate a design, equipment,” or “operational standard” that might ensure that these toxic emissions are reduced. Requiring the adoption of equipment that is in use in the lowest emitting facilities would be m uch more likely to reduce exposure than just ordering a periodic “tune up.” Instead, the EPA argues that “tuned up” boilers will suffice to address toxic emissions from 195,000 boilers (EPA, 2011d ). We support fully encouraging plants to follow the manufac turer’s instructions for preventing emissions from getting worse, but that is not the same as reducing already harmful emissions. Unfortunately, the proposed rule does not seek to improve work practice standards or to assess whether they effectively reduce toxic air emissions from those facilities. It is hard to imagine that emissions standards cannot be successfully incorporated that would actually reduce emissions from one in eight boilers. The removal of emissions limits for dioxins and furans is especia lly troubling. Contrary to EPA’s claim dioxin emissions can be measured and are being measured. But even if dioxins could not be accurately measured using the required test measurement, the EPA should set design or equipment requirements to accomplish the task, as is authorized in the same list as work practice standards in Section 112(h). The EPA should not simply default to “an annual tune up” (EPA, 2011d). We support steps to improve work practices to ensure emissions do not increase. However, that is no t enough. Work practice standards do not reflect measures that yield the maximum achievable degree of reduction in these pollutants nor, at a minimum, reflect the measures adopted by facilities with the lowest emission levels. If EPA were to set work pract ice standards, it would have to require the use of these technologies at a minimum. Moreover, the proposed rule provides no means to enforce compliance with even these limited requirements.A

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Work Practice Standards for Startup and Shutdown . We welcome the decision to address the startup and shutdown periods and ensure that boiler operators are trained in startup and shutdown procedures, particularly in procedures to minimize emissions. However, the proposal relies only on work practice standards during the startup and shutdown phases while not establishing numeric emission limits or other performance metrics for units for those phases. As suggested in the proposed reconsideration, we would support requiring the use of specific fuels during the startup and s hutdown phases that would reduce harmful air emissions in the absence of emissions standards (EPA, 2011d ).

Response: The commenter primarily discussed issues that are being dealt with within the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters and National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. To the extent that t he commenter has provided these comments to that rulemaking, they will be addressed there.



### 1E. Boiler Area Source

Commenter Name: Mary Sullivan Douglas Commenter Affiliation: National Association of Clean Air Agencies (NACAA) Document Control Number: E PA

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Comment: EPA has requested public comment on whether the compliance date for boiler tuneups for area sources should be extended to March 2013, as EPA is currently proposing, or if the compliance date should be extended to March 2014. To be consistent with the initial compliance date for boiler tune

- ups at major sources, EPA should extended the compliance date for area sources to March 2014. Although the tune

- up requirements do not appear overly burden some, affected sources will still need sufficient time to determine what needs to be included in the tuneup protocol, when to schedule the initial tune

- up, and to develop the reporting protocol that needs to be submitted to EPA or to the delegated state or local agency. Further, there appears to be no reason why the smaller area sources should not have the full three years to comply that is currently afforded to major sources. Extending the compliance date for
tune

- ups would also allow extra time for states to identify and provide outreach and compliance assistance to area source facilities. This assistance is very important, because many of these sources have had little prior experience in understanding and complying with complex air regulations. EPA is not providing states additional funding to implement these new standards. Having sufficient time before the compliance deadline to assistance affected area sources will help ease the implementation burden for states and will almost certainly minimize violatio ns after the compliance date.

Response: This comment deals primarily with the Identification of Non

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Pollutants for Area Sources: Industrial, Commercia l, and Institutional Boilers. These comments will be addressed within those rulemakings.



### 1Z. Other

Commenter Name: Roger Martella Commenter Affiliation: National Alliance of Forest Owners (NAFO) Document Control Number: EPA

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Comment: 4I. Forest Biomass Is a Valuable Renewable Energy Supply and Is an Essential Part of Our National Energy Policy

A. Forest biomass is an important renewable fuel source leading to lower GHG lifecycle emissions than conve ntional fuels Wood from sustainably managed forests provides a renewable, low

- carbon alternative to fossil fuels. According to U.S. Energy Information Administration (“EIA”) data, biomass already supplies more than 50% of the nation’s renewable
energy. 2 F orests can provide ample sustainable, domestic supplies of biomass to produce liquid transportation fuels, electricity, thermal energy (heat and power for manufacturing and other industrial uses), and synthetic natural gas. 3 When evaluating the GHG emissi ons associated with fuels, a lifecycle analysis incorporates all steps in a “product system” to evaluate broader environmental impacts of products and processes. Using forest biomass as a renewable fuel source has significant carbon benefits because its li fecycle GHG emissions are more favorable than those of petroleum and other fossil fuels. For example, the Department of Energy (“DOE”) estimates that “[c] ellulosic ethanol use could reduce GHGs by as much as 86%.” 4 In addition, EPA has determined, in conju nction with its Renewable Fuel Standard Program, that the lifecycle GHG emissions reductions associated with cellulosic ethanol may be as much as 92.7 percent. 5 Lifecycle analyses of biomass feedstocks used for electricity generation have produced similar results. 6 In addition to reducing GHG emissions through the displacement of fossil fuel, biomass energy can provide additional climate benefits. For example, combusting biomass for energy can avoid emi ssions of other biogenic GHGs (such as methane) that would result from alternative disposal fates of biomass residues and replace them with lower potency CO 2 emissions from energy production. 7 Thus the prevailing science

– in both the public and private

se ctors

– acknowledges the significant carbon benefits of energy produced using renewable biomass from managed forests.

B. The combustion of forest biomass is part of the ongoing carbon cycle The prevailing view in the science community is that, when fore sts are managed sustainably, CO 2 emissions from forest biomass are part of the natural carbon cycle and are balanced by carbon sequestration as forests grow. In other words the carbon that enters the atmosphere when forest biomass is combusted was previous ly absorbed from the atmosphere by the forest biomass and will be reabsorbed when new biomass is grown. As EPA has concluded, there is “[s] cientific consensus . . . that the CO 2 emitted from burning biomass will not increase total atmospheric CO 2 if this consumption isA

- 59

done on a sustainable basis.” 8 Recognizing that CO 2 emissions from biomass combustion are inextricably tied to the forests where biomass is grown, EPA follows international convention and does not include emissions from biomass combustion in its national emissions totals. 9 Instead, EPA accounts for CO 2 emissions from biomass combustion by measuring changes in forest carbon stocks over time, recognizing that there is no net climate impact as long as forest carbon stocks are stable or increasin g. 10 Similarly, DOE’s Voluntary Reporting of Greenhouse Gases Program, authorized by Section 1605(b) of the Energy Policy Act of 1992, provides for exclusion emissions from the combustion of biomass fuels. 11 More recently, EPA has affirmed the climate ben efits of biomass energy combustion when compared to fossil fuels by reconsidering its treatment of biogenic CO 2 emissions under the Prevention of Significant Deterioration (“PSD”) and Title V Programs. 12 Recognizing that imposing regulatory burdens on the biomass energy sector would discourage development of this important renewable fuel supply, EPA has deferred regulation of CO 2 emissions from stationary sources

– including boilers and incinerator units

– for three years while it seeks to identify a method to quantify the climate benefits offered by biomass energy. 13 EPA has also convened a Biogenic Carbon Emissions Panel under the auspices of the Science Advisory Board to provide advice and recommendations as EPA completes the reconsideration process. 14 E PA has consistently recognized the climate benefits of biomass energy and is committed to a regulatory approach that rewards bioenergy facilities for the climate benefits that they provide in relation to fossil fuel facilities. EPA must ensure that the tre atment of biomass boilers and incinerators under these proposed rules is consistent with its overarching regulatory approach.

C. The promotion of renewable energy is a national policy that EPA must follow As described above, forests and forest products c an play an important role in reducing and managing GHG emissions. Expanding the sources of renewable energy is a central feature of both national and international policy to reduce reliance on fossil fuels. EPA, in considering approaches toward addressing climate change, has long recognized that responsibly managed forests are considered one of five key “groups of strategies that could substantially reduce emissions between now and 2030.” 15 Similarly, the United Nation’s Intergovernmental Panel on Climate Change (“IPCC”) report on mitigation technologies highlights forest management as a primary tool to reduce GHG emissions. 16 In fact EIA projects that biomass energy will account for 30% of the growth in electricity produced by renewable fuels between now a nd 2035. 17 President Obama has repeatedly emphasized that renewable energy derived from feedstocks such as forest biomass hold the key to transitioning the nation to a “sustainable, low carbon energy future.” 18 Recognizing the benefits of all types of bio mass, he recently stated that “another substitute for oil that hold tremendous promise is renewable biomass

– not just ethanol, but biofuels made from things like switchgrass and wood chips and biomass.” 19 And in last month’s State of the Union Address the President advocated an “all

- out, all

- of

- the

- above strategy that develops every available source of American energy,” specifically referencing a “clean energy standard” that would encourage the development of clean renewable energy including biomass. 20 Wi th Presidential endorsement, if not direction, of national renewable energy policy and the role of biomass in that policy, EPA must conduct its programs in manner consistent with that policy. In light of this policy, EPA must avoid mandatory environmental controls, such as those included in the existing Major Source, CISWI, and NHSM rules, that will require large expenditures of time and resources by industry, but are not necessary to protect human health and the environment. Similarly, to act consistently with the nation’s renewable energy policy, EPA must not imposeA

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restrictions on biomass boilers and incinerator units that are not legally required and will disadvantage the use of biomass as a fuel source. The proposed rules are a significant step in

corre cting the errors of the existing rules and conforming them to the administration’s policies. Still the proposed rules do not go far enough and, as explained below, there are several ways in which the proposed rules can be altered to ensure consistency with the administration’s policies and the legal requirements of the Clean Air Act.

[Footnotes:

2 See
, EIA , Annual Energy Review (Oct. 19, 2011), available at http://www.eia.gov/to talenergy/data/annual/showtext.cfm?t=ptb1001

. 3See NAFO, Carbon Neutrality of Energy from Forest Biomass, available at http://nafoalliance.org/carbon

- neutrality

- of

- ener gy

- from

- forest

- biomass/

. 4Department of Energy, Ethanol Benefits, available at http://www.afdc.energy.gov/ afdc /ethanol/benefits.html (last visited Jan. 30, 2012).

5 See EPA, DPA420

- D

- 06

- 008

, Renewable Fuel Standard Program: Draft Regulatory Impact Analysi s at 191 (Sept. 2006).

6Cherubini , et al

., Energy

- and greenhouse gas

- based LCA of biofuel and bioenergy systems: Key issues, ranges and recommendations , Resources, Conservation and Recycling 535: 434

- 447 (2009) (90

- 95% emissions reductions relative to fossil fuel systems); Zhang, et al ., Life cycle emissions and cost of producing electricity from coal, natural gas, and wood pellets in Ontario, Canada, En vironmental Science and Technology 44(1): 538

- 544 (2010) (91% and 78% emissions reductions relative to coal and natural gas systems); Raymer, A.K.P., A comparison of avoided greenhouse gas emissions when using different kinds of wood energy, Biomass and Bi oenergy 30: 605

- 617 (2006) (81

- 89% emissions reductions relative to fossil fuel alternatives).

7Gregory Morris, Bioenergy and Greenhouse Gases (Pacific Institute, 2008), available at http://www.pacinst.org/reports/Bioenergy_and_Greenhouse_Gases/Bioenergy_and_Greenhouse_ Gases.pdf

. 8Environmental Protection Agency Combined Heat and Power Partnership, Biomass Combined Heat and Power Catalog of Techn ologies , 96 (Sept. 2007), available at http://www.epa.gov/chp/documents/biomass_chp_catalog.pdf

. 9EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990

- 2009 3

- 59 (April 15, 2 011).

10 Id. Chapter 7.

11See DOE, Technical Guidelines: Voluntary Reporting of Greenhouse Gases (1605(b)) Program (January 2007) at 77 (“Reporters that operate vehicles using pure biofuels within their entity should not add the carbon dioxide emissions f rom those fuels to their inventory of mobileA

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source emissions because such emissions are considered biogenic and the recycling of carbon is not credited elsewhere.”).

12Letter from Gina McCarthy to Roger Martella (Jan. 12, 2011) granting NAFO’s Petition f or Reconsideration, available at http://www.epa.gov/nsr/ghgdocs/McCarthytoMartella.pdf

. 13Deferral for CO2 Emissions From Bioenergy and Other Biogenic Sources Under the Prevention of Sign ificant Deterioration (PSD) and Title V Programs, 76 Fed. Reg. 43,490 (July 20, 2011).

14See generally EPA, Carbon Dioxide Accounting for Emissions from Biogenic Sources, http://yosemite.epa.gov/sab/SABPRODUCT.NSF/81e39f4c09954fcb85256ead006be86e/2f9b57 2c 712ac 52e8525783100704886!OpenDocument (last visited Jan. 31, 2012).

15Regulating Greenhouse Gas Emissions Under the CAA, 73 Fed. Reg. 44,354, 44,405 (July 30, 2008).

16 Id. at 44,405

- 06; see also, NAFO, Carbon Mitigation Benefits of Working Forests (iden tifying trading platforms and registries that recognize forest management), available at http://nafoalliance.org/mitigationbenefits

- working

- forests/

. 17EIA, Annual Energy Outlook 20 12 Early Release Overview 7, available at http://www.eia.gov/forecasts/aeo/er/pdf/0383er(2012).pdf.

18Letter from President Barack Obama to Governors John Hoeven and Chet Culver (May 27, 2009), available at http://www.governorsbiofuelscoalition.org/assets /files/President%20Obama’s@20Response5

- 27

- 09.pdf;see also President Barack Obama, Memorandum for the Secretary of Agriculture, the Secretary of Energy, and the Administrator of the Environmental Protection Agency, 74 Fed. Reg. 21,531

- 32 (May 5, 2009).

19 President Barack Obama, Remarks by the President on America’s Energy Security, March 30, 2011,available at http://www.whitehouse.gov/the

- press

- off ice/2011/03/30/remarks

- president

americas

- energysecurity

.
20President Barack Obama, Remarks by the President in State of the Union Address , January 24, 2012, available at http://www.whitehouse.gov/the

- press

- office/2012/01/24/remarks

- president

state

- unionad dress.

Response: EPA thanks the commenter for their input. For the purposes of this rulemaking this comment is out of scope.

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2630

- A2 Comment Excerpt Number: 1A

- 62

Comment: We agree with the strong evidence the EPA provides to support their decision that action under Section 112 of the Clean Air Act is both appropriate and necessary to protect public health. The Clean Air Act requires that the EPA review and revise standard s to see if they adequately protect public health from new sources of pollution and from hazardous air pollutants. Industrial, commercial, and institutional boilers and incinerators represent sources of such emissions that must be addressed under the law. It is long past time.

The Public Needs Protection from Toxic Air Pollution The EPA estimates that 1.5 million boilers and 95 solid waste incinerators are in use throughout the United States (EPA, 2011b ; EPA, 2011c ). Boilers and process heaters comprise some of the most common industrial equipment, but they also provide heat and power to commercial buildings and institutions, such as churches, colleges and hospitals. Because boilers are so widely used, their toxic emissions can threaten local communities, especially lower income or minority communities that are often located closer to the larger industrial sources. Cleaning up these toxic emissions will provide substantial health benefits. The EPA’s analysis estimates the health benefits each year beginnin g in 2015, which includes the prevention of up to 8,100 premature deaths, the avoidance of 5,100 nonfatal heart attacks and the prevention of 52,000 asthma attacks (EPA, 2011b). In fact, these estimates undercount the total benefits. Studies that would ena ble researchers to quantify many health endpoints affected by these toxics were not available for modeling. For example, critical, real benefits such as reductions in the number of infants born with low birthweight or impaired cognitive development were no t included in the projections. However, the benefits to public health that can be estimated alone provide powerful support to require facilities to meet the strongest possible limits on these toxic emissions. The evidence shows that the strongest possible limits on the emissions of these toxics are both appropriate and necessary.

Millions of people face higher risk Many face greater risk because of their age, health conditions, or rate of exposure to the pollutants. They include: infants, children and tee nagers; older adults; pregnant women; people with asthma and other lung diseases; people with cardiovascular diseases; diabetics; people with low incomes; and people who work or exercise outdoors (EPA 1997, 2009b ). The discussion below highlights special c oncerns for several of these groups.

Children face quite different risks from air pollutants than adults. The lungs and their alveoli are not fully grown until children become adults ( Dietert et al., 2000). Biological defenses that help adults fight off in fections are still developing in young bodies (WHO, 2005). Furthermore, children don’t behave like adults, and their behavior also affects their vulnerability. They are outside for longer periods and are usually more active when outdoors. Consequently, the y inhale more polluted outdoor air than adults typically do ( AAP , 2004). Toxic substances may put children more at risk than adults. For example, the California Environmental Protection Agency explored improved methodologies to determine susceptibility to carcinogens in utero and childhood after finding in 2001 that the existing approaches did not adequately reflect the risks to children. Their subsequent research found that the children generally display greater sensitivity to environmental carcinogens tha n did adults (CalEPA, 2009).

People with chronic diseases , including cardiovascular diseases, respiratory diseases and diabetes, face higher risk regardless of age. Their diseases make them at much higher risk forA

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harm. Current estimates include these gro ups: ( Asthma

- 24.6 million people, including 7.0 million under age 18 (American Lung Association, 2011)

Cardiovascular diseases

– 82.6 million people (Roger et al., 2011) ( Diabetes

– 25.8 million people (CDC, 2011) As adults age, their body’s physio logical process declines naturally, placing even healthy older adults at risk from airborne pollutants. In addition, many older adults also have one or more chronic diseases that increase their susceptibility (EPA, 2009b).

Toxic Air Pollution Disproportio nately Threatens Many Communities Communities of color and poorer people also appear to face higher risk, underscoring the need to properly assess this margin of safety. Research indicates that minorities live in greater concentrations both in areas that do not meet federal air quality standards and in areas with above average numbers of air

- polluting facilities (NAS, 1999). Both African Americans and Hispanics have been found to be more likely than Caucasians to live in areas with high levels of air toxic s (Morello

- Frosch and Lopez, 2006).

A study in Maryland found that the risk of cancer related to air toxics was greatest in areas with the largest African American population proportions and lowest among those with the smallest African American populat ion proportions. In addition, the estimated cancer risk decreased for every 10 percent increase in the percentage of Caucasians living in an area. Having a low income also increased the risk among African Americans more so than among Caucasians (Apelberg B J et al., 2005).

In Houston, Houston is home to one of the world’s largest petrochemical complexes, researchers found that the risk of cancer in an area increased along with the proportion of the population that was Hispanic and as measures of social disadvantage increase d (Linder et al., 2008).

Socioeconomic position has been more consistently associated with greater harm from air pollution. Recent studies show evidence of that link. Low socioeconomic status consistently increased the risk of premature death from fine p article pollution among 13.2 million Medicare recipients studied in the largest examination of mortality associated with particulate matter levels nationwide (Zeger et al., 2008).

Response: EPA thanks the commenter for their input. For the purposes of thi s rulemaking this comment is out of scope.

Commenter Name: Janice E. Nolen Commenter Affiliation: American Lung Association Document Control Number: EPA

- HQ

- OAR

- 2003

- 0119

- 2630

- A2 Comment Excerpt Number: 6

Comment: Hazardous Air Pollutants from Boilers and Incinerators Cause Wide

- ranging Health Harm During the process of burning coal, oil, and biomass, boilers and incinerators emit highly toxic chemicals that threaten human health through the air we breathe, the water we drink, and the food we eat. The se hazardous air pollutants that harm human health include:A

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corrosive substances (acid gases, such as hydrogen chloride); carcinogens (formaldehyde, benzene, toluene, and other compounds); organic carbon

- based toxics (formaldehyde, dioxins, furans ); metals (such as arsenic, nickel, and beryllium); and neurotoxins (such as mercury and lead) (EPA 2007; ATSDR 2011a ). They also include criteria air pollutants: sulfur dioxide, carbon monoxide, and fine particulate matter. Some hazardous pollutants, such as acid gases, mercury, and sulfur dioxide, have immediate impacts on people, neighborhoods, and towns located near boilers or incinerators. However, other pollutants, such as dioxins and metals, can travel much farther from the pollution source. When they adhere to fine particles, these pollutants can remain in the air for more than a week and be carried away by winds to distant locations. This makes toxic air pollution dangerous to public health and human health near and far from these sources (EPA, 2009b). The d iscussion below summarizes the evidence that these toxics pose serious threats to health and must be reduced.

Carbon Monoxide Carbon Monoxide is a colorless, odorless, nonirritating gas that occurs in outdoor and indoor air through both natural and human

- made sources ( ATSDR , 2009). Exposure to moderate or high levels of this gas can be fatal by causing severe damage to the heart and/or brain ( ATSDR , 2009). Breathing high levels may cause a miscarriage for women who are pregnant, and exposure to lower level s can cause permanent damage to the mental development of the fetus (ATSDR, 2009). Dioxins and Furans (Example: 2,3,7,8

- tetrachlorodibenzo

- p dioxin, known as TCDD) Dioxins and furans are a family of toxic chemicals that primarily arise from the burning of fossil fuels, such as coal, and exist in the atmosphere both as a gas and particles. (Oh et al., 2001). As particles, they may remain airborne for more than ten days, spreading widely from their source, and depositing in water and soil (Atkinson, 1991). D ioxins have been found in the U.S. food supply; in 2002

- 2003, the U.S. Department of Agriculture found dioxin

- like substances in meat and poultry (Hoffman et al., 2006). Researchers have found dioxins in the breast milk of nursing mothers (Lorber and Phill ips, 2002). Short

- term exposures can cause liver damage and skin lesions, while long

- term exposures can harm the immune system, the developing nervous system, the reproductive system, and disrupt hormone function. One form of dioxin

— 2,3,7, 8

- Tetrachlorodibe nzo

- p

- dioxin , or TCDD

— is recognized as a known human carcinogen. ( NTP 2011). (WHO, 2010, 2011; ATSDR , 1994, 1998a

, 2000b ). Researchers are currently exploring the potential for dioxins to act as endocrine disrupters, by mimicking natural hormones in the bo dy and altering their normal function ( Casals

- Casas and Desvergne
, 2011). Last year, the World Health Organization concluded that the developing fetus and the newborn child were the most vulnerable to dioxin and furan exposure because of the rapid growth o f their organ systems (WHO, 2010).

Mercury (Including Methylmercury) Mercury is a primary metal emitted from coal

- fired boilers and incinerators . Mercury emissions occur in three forms: as a vaporous gas of elemental mercury; oxidized, and bound with pa rticles. Elemental mercury stays airborne, resulting in widespread distribution. Oxidized and particle

- bound mercury deposit nearer to the sources. Once released to the atmosphere, mercury returns to the earth in rain or snowfall, and pollutes waterways an d the wildlife in them (EPA, 2011) Microorganisms convert mercury into methylmercury , a highly toxic form of mercury that bioaccumulates in fish and shellfish ( ATSDR

, 1999b ; Grandjean , 2010). Although a person can be exposed to mercury through breathing co ntaminated air or through skin contact, methylmercury is most easily absorbed by eating contaminated food, especially fish or shellfish. The long

- term, low

- level exposure toA

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methylmercury that results from the regular consumption of contaminated fish is a primary health concern (EPA, 1997). Eating foods containing methylmercury can expose the brains of adults, children and developing fetus to harm. Critical periods are during pregnancy and in the early months after children are born ( ATSDR 1999b ). Mercury e xposure can lead to developmental birth defects and interfere with neurological development ( Bose

- O’Reilly et al., 2010). Pregnant women who consume fish and shellfish can transmit that methylmercury to their developing fetuses, and infants can ingest meth ylmercury in breast milk. Children can also become exposed by eating contaminated fish ( ATSDR 1999). Each year, more than 300,000 children born in the US have levels of mercury in their blood high enough to impair performance on brain development test and permanently affect intelligence ( Trasande et al., 2005; Axelrad et al., 2007). Mercury can damage the kidneys, liver, brain, and nervous system as a potent neurotoxin , even in adults ( ATSDR

, 1999b

, 2011a ; WHO, 2011). A recent study has also found that meth ylmercury exposure may lessen the cardiovascular benefits of regular fish consumption (Domingo, 2007).

Fine Particulate Matter (PM2.5) Reductions in sulfur dioxide and nitrogen oxides through the final boiler and incinerator standards would provide a crucial collateral benefit: reduction in secondary fine particulate matter. Sulfates formed from sulfur dioxide comprise the majority of fine particulate matter in much of the United States, especially in the summer months. Nitrates from nitrogen oxides ar e also a major source of fine particulate matter in the fall, winter and spring (EPA, 2011). PM2.5 is made up of microscopic particles, including aerosols, that can bypass the body’s natural defenses and lodge deep within the lungs (EPA, 2004, 2009). Fine particles elevate risk of heart attacks and strokes ( Dominici et al., 2002; Hong et al., 2002; Franklin et al., 2007; D’Ippoliti et al., 2003; Miller et al., 2007); stunt lung function and development ( Gauderman et al., 2002; Gauderman et al., 2004); infla me and damage lung tissue and airways ( Ghio et al., 2000; Churg et al., 2003); increase hospital visits for respiratory and cardiovascular problems ( Dominici et al., 2006; Tsai et al., 2003); and aggravate asthma attacks (Lin M et al., 2002; Norris et al., 1999; Tolbert et al., 2000; Slaughter et al., 2003; Lin S et al., 2002). The evidence shows that PM 2.5 causes cardiovascular harm and is likely to cause respiratory harm. More seriously, PM2.5 can cause premature death from lung cancer and cardiovascular effects and is likely to cause death from respiratory effects as well (Pope et al., 2002; Pope et al., 2004). The most vulnerable populations, including children, teens, senior citizens, people with low incomes and people with chronic lung disease, such a s asthma, chronic bronchitis, and emphysema, are at risk of being sickened by fine particulate matter. People with diabetes, heart disease, high blood pressure, coronary artery disease, and congestive heart failure, are also at risk (EPA, 2004, 2009). The evidence suggests that long

- term exposure to PM2.5causes reproductive and developmental effects as well as cancer, mutagenicity and genotoxicity (EPA, 2009).

Non

- Mercury Metals Non

- mercury metals and metal

- like substances (e.g. arsenic and selenium) comp rise a significant part of fine particulate matter (PM2.5) emitted from boilers and incinerators. These primary particles come in addition to the secondary particles formed as a result of chemical reactions in sulfur dioxide and nitrogen oxide emissions. T hose secondary particles, notably sulfates and nitrates, pose similar life

- threatening risks. Inhaled particles deposit along the respiratory tract or penetrate deeply into the gas

- exchange region of the lung. The EPA has already concluded that exposure to fine particulate matter (PM2.5) causesA

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cardiovascular effects and premature mortality and is likely to cause respiratory harm. They concluded that the evidence suggests that long

- term exposure to PM2.5 causes reproductive and developmental effects as well as cancer, mutagenicity and genotoxicity (EPA, 2009). The risks of cardiovascular harm include acute myocardial infarction, congestive heart failure, cardiac arrhythmias and strokes. Risks of respiratory harm include coughing, wheezing, difficulty breathi ng, asthma exacerbations , and increased hospitalization for chronic obstructive pulmonary disease ( COPD ) (EPA 2009). Evidence has also grown to warn that long

- term exposure to PM 2.5 can increase the risk of low birth weight and infant mortality, as well a s cancer, especially lung cancer (EPA, 2009). The level of toxicity of fine particles varies and is likely impacted by the presence of metals or other pollutants (Bell et al., 2007). Metals interact with particles to
create ―reactive oxygen species ‖ which l imit the body’s ability to repair damage to its cells and contribute to tissue inflammation (Carter et al., 1997; Gurgueira et al., 2002; Wilson et al., 2002). Research has shown that sulfate, selenium, iron, nitrate, and organic carbon affect immune cell response and heart variability (Huang et al., 2003; Chuang et al., 2007). Elevated presence of chromium, lead, and other metals in PM has been associated with greater effects on hospital admissions for cardiovascular disease, according to a study of Medica re recipients in 26 communities ( Zanobetti et al., 2009). Zanobetti et al. found that admissions for heart attacks were higher where the PM was enriched in arsenic, chromium, manganese, nickel, and organic carbon. The same study found that high levels of a rsenic, organic carbon, and sulfate in PM

— potential indicators of coal combustion

— were associated with increased hospital admissions for diabetics ( Zanobetti et al., 2009). A large study of 25 U.S. communities found more deaths when the fraction of aluminu m, sulfate, and nickel in PM was highest (Franklin et al., 2008). This study found additional evidence warning that the combination of metals in particles, a common occurrence, may increase their toxicity. Arsenic Arsenic exposure can occur through the de rmal, oral, and inhalation routes. As a known carcinogen, inhalation of arsenic has been strongly associated with lung cancer ( HHS , 2011). Short

- term inhalation can harm the gastrointestinal tract, cause nausea and diarrhea, and even adversely affect the n ervous system. Long

- term inhalation has been associated with irritation of the skin and mucous membranes. Exposure can lead to respiratory tract irritation and conjunctivitis, and damage nasal tissue ( ATSDR

, 1998b ). Similar to effects of inhaling arsenic, arsenic in drinking water has also been linked to skin, bladder, lung, and liver cancer ( HHS , 2011). Over a long period, the metal

- like substance can result in anemia, lesions, liver, kidney, and nerve damage, and affect the digestive system (ATSDR, 2007c)

. Beryllium Beryllium is a known carcinogenic metal ( HHS , 2011). Inhaled beryllium has been found to increase the risk of lung cancer ( Steenland and Ward 1991, Ward et al

. , 1992). Breathing large amounts of beryllium compounds can damage the lungs and cau se the lungs to resemble pneumonia with reddening and swelling. Long

- term exposure over many years may cause chronic beryllium disease, when a chronic inflammatory reaction, called a granuloma

, within people who are allergic to beryllium occurs. People wit h chronic beryllium disease may experience weakness, fatigue, difficulty breathing, anorexia, weight loss, and blueness of the hands and feet. The disease can lead to heart enlargement, heart disease, and even death (ATSDR, 2002). Cadmium Cadmium is anoth er known carcinogenic metal ( HHS , 2011). Exposure to airborne cadmium causes lung cancer, as the International Agency for Research on Cancer reaffirmed in 2009 ( Straif , et al., 2009). Prolonged inhalation of cadmium can also lead to gradual accumulation of the metal in the kidneys, resulting in kidney disease (ATSDR, 2008a). Chromium Chromium occurs in three main forms, one of which, chromium (IV) is a known carcinogen that can increase the risk of lung cancer ( ATSDR

, 2008b ; HHS , 2011). TheA

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metal primarily affects the respiratory system, though chromium (VI) can impact the gastrointestinal, immunological, hematological, reproductive and developmental systems, particularly if ingested. Inhaling chromium (VI) can cause coughing and wheezing, shortness of brea th, bronchitis, pneumonia, decreased lung function, and other respiratory conditions. In some workers, inhaled chromium (VI) caused them to develop asthma and have asthma attacks (ATSDR, 2008b). Lead The health effects of lead exposure mainly focus on the nervous system and damaging its functions. Lead may cause weaknesses in the joints, anemia, and increases in blood pressure ( ATSDR

, 2007d ). Although lead is harmful to both adults and children, children are most susceptible to the effects of lead exposure . Lead exposure can cause developmental disorders whose effects can persist beyond childhood ( ATSDR

, 2007e ). Exposure can affect a child’s physical and mental growth, resulting in slower mental development and lower levels of intelligence. Lead is also a p robable carcinogen (HHS, 2011). Manganese Similar to lead, manganese mostly affects the nervous system. For example, adverse effects to hand

- eye coordination, hand steadiness, and visual reaction time were observed in humans exposed to manganese ( ATSDR

, 2 008c ). High exposure levels may result in feelings of lethargy and weakness, psychological impacts, and tremors. Nickel Compounds containing nickel have been determined to be carcinogenic ( HHS , 2011). A known health effect of nickel exposure is the increa sed risk of lung and nasal cancers from nickel dust (ATSDR, 2005b). Selenium Selenium exposure can harm the respiratory system by irritating mucous membranes and causing pneumonia, bronchitis, and pulmonary edema ( ATSDR

, 2003a ). One selenium compound, selenium sulfide, is also considered to be a probable human carcinogen (HHS, 2011).

Volatile Organic Compounds (Examples: acetaldehyde, benzene, formaldehyde, toluene, xylene) Volatile organic hazardous air pollutants are specif ic toxic gases that react easily with other gases and particles. These take in a host of chemicals that include carcinogens and other toxins. While many of these toxic air pollutants can cause cancer, they can also irritate the eyes, skin, and respiratory tract, impair lung function, and affect vital organs. Benzene and formaldehyde are recognized as known human carcinogens, while ethylbenzene and acetaldehyde are considered probable carcinogens ( HHS , 2011). Long

- term exposures to benzene can cause leukemia , a blood cancer, and other blood disorders such as anemia and depressed lymphocyte count in blood. Exposure to formaldehyde can also cause chronic bronchitis and nasal epithelial lesions. A recent review of the research found evidence that formaldehyde ma y increase the risk of asthma, particularly in the young ( McGwin et al., 2010). Non

- cancer effects associated with exposure to these organics range from irritation of the skin, eyes, nose, throat, and respiratory tract, and dizziness, nausea, and vomiting. These compounds can also cause difficulty in breathing, impaired lung function and respiratory symptoms, damage to the liver and kidneys, and stomach discomfort. They may also cause developmental disorders, adverse effects to the nervous system, impairmen t of memory and neurological function, and slow response to visual stimuli. These pollutants can also affect hearing, speech, vision, and motor coordination (ATSDR, 1999a, 1999c, 2000a, 2007a, 2007b, 2010a).

Sulfur Dioxide ( SO 2 ) Sulfur dioxide ( SO 2 ) a gas eous air pollutant composed of sulfur and oxygen. The sulfur dioxide standard will help reduce this harmful pollutant, long recognized for its harm to health. Sulfur dioxide causes a range of harmful effects on the lungs, including wheezing, coughing, shor tness of breath and chest tightness, and other problems, especially during exercise or physical activity. Continued exposure at high levels aggravates asthma,A

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increases respiratory symptoms, and reduces the ability of the lungs to function. Short exposures to peak levels of SO 2 in the air can make it difficult for people with asthma to breathe when they are active outdoors. Rapid breathing during exercise helps SO 2 reach the lower respiratory tract, as does breathing through the mouth. SO 2 pollution increas es the risk of hospital admissions or emergency room visits, especially among children, older adults, and people with asthma (EPA, 2009a ). In addition, sulfur dioxide poses another threat to human health by reacting in the air to form sulfates (SO 4 ) which exist as aerosolized fine particulate matter (PM 2.5), another harmful air pollutant discussed below (EPA, 2009).

Nitrogen Oxides ( NO X ) Nitrogen oxides ( NO X ) are a class of gaseous air pollutants composed of nitrogen and oxygen. NO X is emitted during the combustion of natural gas in engines, turbines, heaters, and boilers during production and processing operations for oil and gas wells. NO X is also emitted during pit flaring of VOC emissions from well completions. The pollutant itself can inflame the airw ays and reduce lung function, worsened cough and wheezing, increase asthma attacks and hospital visits; and increase risk of respiratory infection (EPA, 2008). EPA’s own review of the science found that exposure to NO X can increase the risk of hospitalizat ion by up to 20 percent (EPA, 2008). Nitrogen oxides are also precursors to nitrates ( NO 3 ) which also are recognized as aerosolized fine particulate matter (PM 2.5) and discussed below. (EPA 2008)

Hydrogen chloride ( HCl ) Hydrogen chloride is a strong acid gas that reacts with moisture to form hydrochloric acid. Hydrogen chloride intensely irritates the mucous membranes of the respiratory system. At high concentrations, hydrogen chloride can cause swelling and spasms in the throat and suffocation. In additi on, inhaled hydrogen chloride can lead to a chemical

- or irritant

- induced form of asthma called Reactive Airway Dysfunction Syndrome ( RADS ). ( ATSDR

, 2010b ). Both hydrogen chloride and hydrogen fluoride can irritate the eyes, nasal passages, and lungs (EPA 2000a

, 2000b ).

Response: EPA thanks the commenter for their input. For the purposes of this rulemaking this comment is out of scope.