`

Summary of Public Comments and 

Responses for Commercial and Industrial 

Solid Waste Incineration Units: 

Reconsideration and Final Amendments; Non-Hazardous 

Secondary Materials That Are Solid Waste: 

Final Rule Volume 1: CISWI 
`

December 2012

Summary of Public Comments and Responses for 

Commercial and Industrial Solid Waste Incineration Units:

Reconsideration and Final Amendments; Non-Hazardous 

Secondary Materials That Are Solid Waste: 

Final Rule Volume 1: CISWI

U. S. Environmental Protection Agency

Office of Quality Performance Standards

Sector Policies and Program Division (MD E143-03)

Research Triangle Park, NC
v

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 Solid 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, and 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-HQOAR-2003-0119 and EPA-HQ-RCRA-2008-0329. This document 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 verbatim 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 same 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 comments 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 response 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 document 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

Sector Policies and Program Division (MD E143-03)

Research Triangle Park, NC
vii

TABLE OF CONTENTS

Section Page

2A. Revision of Subcategories-General......................................................................................... 1

2B01. ERU Inventory ................................................................................................................... 8

2B02. ERU Pollutants subcategorized..........................................................................................16

2B03. ERU emission limits..........................................................................................................18

2B04. ERUs Designed to Burn Non-Coal Solid Materials............................................................25

2C01. Waste-Burning Kiln Inventory...........................................................................................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. Definitions - "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. Providing Percent Reduction Alternative Standards.............................................................197
TABLE 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...............................................................................................................297

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 Petition 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 .....................................................................................................366
TABLE 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.....................................................................................................................................58
1

2A. Revision of Subcategories-General

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 36

Comment: We Support the Additional Breakout of Coal and Biomass ERU Subcategories 

for PM, Cd, Pb, and Dioxin/Furan

The June 2010 proposed CISWI Rule provided sub-categories for 1) Incinerators, 2) Energy 

Recovery Units (ERUs), 3) Waste Burning Kilns, 4) Small, Remote Incinerators, and 5) BurnOff Ovens. Emission limits for all ERU were the same, with no differentiation by unit design or 

primary fuel type.

Response: This statement requires no response.

Commenter Name: Gretchen Brewer

Commenter Affiliation: PT AirWatchers

Document Control Number: EPA-HQ-OAR-2003-0119-2648-A1

Comment Excerpt Number: 2

Comment: CISWI rules need to be harmonized in this regard: it is 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 Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 2
2

Comment: All of EPA’s subcategories are unlawful and arbitrary for the reasons given in the 

2010 Comments and the Petition. 2010 Comments, Ex. 1, at 9–10; 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 separately 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 such [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 type 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 is 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 standard 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 Coalition v. EPA, 255 F.3d 855, 861 (D.C. Cir. 2001) (addressing similar MACT

requirements in § 112 of the Act and focusing on emission 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 performers in each subcategory meet MACT emission standards almost all the time, 

EPA employs a statistical approach that makes predictions about emissions variability.1This 

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 subcategories. This means that EPA’s 
3

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 approach.

[Footnotes]

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

Response: EPA notes that it has only opened for public comment in the proposed amendments 

to the CISWI rule the subcategories EPA specifically indicated that it was reconsidering. EPA 

does not agree with the commenter that the proposed subcategorization is not well founded for 

the reasons set forth in the proposed rule and this final action. Further, EPA responded to similar 

comments about the Agency’s authority to establish 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 can encounter operational problems if operated on a different fuel than 

specified for that boiler design. The commenter provides no specific characteristics that support 

its assertion that ERUs burning different fuels are in 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 the 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 types of fuel and that when burning those fuels the units function most 

effectively. However, units designed to burn one type of fuel may, in certain circumstances, be 

able to burn other types of fuel. Contrary to commenters assertions, this is a valid exercise of the 

Agency’s authority to subcategorize. 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 different 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 establish 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 incorrect in stating that 

subcategorizing based on material inputs is not consistent with the CAA. Nothing in the statute 

prohibits EPA from subcategorizing based on material inputs. See Sierra Club v. Costle, 657 

F.2d 298, 318-19 (D.C. Cir. 1981) (differing pollutant content of input material can justify a 

different standard based on subcategorization authority to “distinguish among classes, types and 
4

sizes within categories of new sources”). EPA maintains that, had Congress intended to prohibit 

subcategorization based on material inputs, it would have clearly stated that prohibition in the 

statute. The Agency does believe, 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 gasfired 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 system. The fuel and the combustion system define the 

design geometry of the furnace. The furnace volume is set to allow complete fuel combustion.

Adequate clearances are specified to prevent flame impingement on the furnace surfaces, which 

could overheat the tubes and cause tube failures.[1] 

ERU systems are generally designed for specific fuel types and will frequently encounter 

combustion, slagging, fouling, 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 combustion requires more excess air and more 

overfire air than coal combustion.[3] The National Energy Technology Laboratory of the 

Department of Energy has recommended when co-firing with coal, biomass or other co-firing 

materials should be limited to 10 percent on a weight basis to reduce or eliminate operation 

problems. (National Energy Technology Laboratory, 2009) The fuel has a major impact on ERU 

design due 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 corrosion 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 emit 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 general 
5

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 these aspects 

relate directly to the properties of the fuel to be used (moisture content, particle size, ash content, 

and heat value). On the other hand, the formation of fuel-dependent pollutants (metals, mercury, 

SO2 and HCl) is dependent upon the composition of the fuel. These fuel-dependent pollutant

emissions generally can be controlled by either changing the fuel property before combustion or 

by removing the pollutant from the flue gas after combustion.

We first examined the emissions results to determine if subcategorization by unit design type 

was warranted. We concluded that the data were sufficient for determining that a distinguishable 

difference in performance exists based on unit design type between liquid, solid-coal and solidbiomass ERUs. Therefore, because different types of units have different emission characteristics 

which may influence the feasibility and effectiveness of emission control, they should be 

regulated separately (i.e., subcategorized). Accordingly, 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 and 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 significant 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 reference 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 appropriate 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, Appel 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-HQ-OAR-2003-0119-2614-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 

increase, leading to MACT floor increases for both the larger group and the smaller group. 

EPA’s decision to create separate subcategories for PM emissions based on the design of the 

combustion chamber creates a situation where a unit with highly variable emissions 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, EPA 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 category.

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 that 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 rule, 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 statistical approach in the 
7

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-HQ-OAR-2003-0119-2599-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%O2, 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 require 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-energy units located in California’s agricultural 

Central Valley4 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 areas. 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 waste 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 combusting waste biomass (switch fuels), or 

shut down.

[Footnote: 4 Units include CAChineseStation, CACovantaDelano Unit 1, CACovantaDelano Unit 2, and 

CACovantaMendota.]

Response: The limit for existing biomass ERUs for HCl is 0.2ppmdv @ 7% O2, which is 

slightly more stringent than the ERU solid limit in 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 limit 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). The 
8

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 combusts 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-HQ-OAR-2003-0119-2569-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 the 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 final 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 

programs 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 could 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: Comments 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 some

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 information 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 paper 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 

company 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, commenters 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 submitted 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 with 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), SO2, NOX, CO, and HCl. The results found that burning OCC rejects did not result 

in increased emissions of TPM, SO2, NOX, or CO, but occasionally resulted in a small 

increase in HCl emissions. 55

EPA's Response: We do not agree with the commenters that OCC rejects should be 

considered a traditional fuel or alternative fuel since this non-hazardous secondary material, 

consisting of recycled paper and paper products, has not 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. However, we believe that these materials are 

not discarded when used within the control of the generator, such as at pulp and paper mills, 

since these non-hazardous secondary materials are part of the industrial process.

The data submitted during the comment period 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 traditional fuels used at pulp and paper mills. While the meaningful heating 

value of the OCC rejects is lower than 5,000 Btu/lb, as fired, it can still meet this criterion if 

it can be demonstrated that the unit can cost-effectively recover energy from a nonhazardous 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 concluding 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 PCA 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 recover 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 conclusion that can be 

drawn is that PCA’s OCC rejects contain contaminants at levels comparable to or lower than the 

traditional fuels the boiler is designed to burn.

This conclusion is further verified when considering EPA’s proposed reconsideration. Here, EPA 

clarifies in the proposed rule language that “persons can use ranges of traditional fuel 

contaminant levels compiled from national surveys, as well as contaminant level data from the 

specific traditional fuel being replaced.” EPA also 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-HQ-RCRA-2008-0329-0774; 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-HQ-RCRA-2008-0329-0461.21).

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

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

(55) National Council for Air and Stream Improvement, 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 of America (PCA)

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

Comment Excerpt Number: 1

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 original 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 wish 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 rejects 

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 1.1
12

*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 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. Therefore, PCA believes that this unit should be 

properly classified in the Boiler MACT category. When 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 under 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-HQ-OAR-2003-0119-2628-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 Association. This data set identified 

Wheelabrator Shasta Energy Company as a possible CISWI facility based on the plant’s past 

combustion of small amounts of creosote treated wood. As result of this outdated information, 

EPA moved the Wheelabrator Shasta Energy units from 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 under 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-HQ-OAR-2003-0119-2569-A2

Comment Excerpt Number: 2

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

floor setting for the coal-fired subcategory.

In the event EPA disagrees with our comment that the PCA Combination 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 percent 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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 14

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 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. [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 design 
14

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 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 population. 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 discussed in 

prior notices, and is not being reconsidered in this final rule. By analyzing the performance of the 

units in the CISWI inventory, we are accounting for the 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-HQ-OAR-2003-0119-2569-A2

Comment Excerpt Number: 3

Comment: Test results from tests conducted with no solid waste (as determined using EPA’s 

proposed clarifications) burning during the test should be removed from EPA’s floor 

determinations.

Discussion: From our review of EPA’s database and ICR survey and test reports, we have 

identified several test results used in EPA’s MACT floor determinations (see Appendices B and 

C to the MACT Floor Memo) during which no solid waste was being combusted. Such test data 

should be removed from EPA’s MACT floor analysis. 

Our determinations of secondary materials as solid 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 burn) 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 used in establishing the standards, unless the information 
15

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 

calculations 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-HQ-OAR-2003-0119-2611-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 Federal 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 

proposed 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 changes 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 the 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 had 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 current 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-HQ-OAR-2003-0119-2628-A2, excerpt 8, some 

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 identified, 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-HQ-OAR-2003-0119-2605-A1

Comment 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 industrial 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 fuel-fired units that ensure the maximum number of sources can achieve the limits and that 

do not disadvantage users of any one particular fuel. EPA has the discretion and should include a 

fuel variability factor in the MACT floor analysis for the solid fuel 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 reconsideration 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 Management (WM)
17

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 7

Comment: EPA should establish a separate a SO2 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 30,000‐40,000 tons 

of tires annually. Tires are received whole and chipped on site (belts are not removed) or as 

direct deliveries of chipped tires. Tires may or may not be derived from tire collection programs. 

Chipped tires are fired simultaneously with the 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 NOX control, a lime slurry spray dryer absorber (SDA) for SO2 or acid gas control 

and a fabric filter. The SDA was designed for the control of SO2 associated with combustion of 

tires. WTI conducted a variability analysis of the SO2 hourly data to determine an achievable 

SO2 emission limit for combustion of tires and biomass fuels. The findings are summarized 

below. WTI compiled hourly average CEM SO2 outlet data in ppm @7%O2 for the period of 

January 1, 2011 to June 6, 2011. Three different types of averages were used for variability 

analysis—30‐ day rolling averages, 24‐hour block averages, and 3‐hour rolling averages. The 

averaging times were based on the on the following: 1) use of 30 day rolling average SO2 CEM

compliance option in CSIWI rule, 2) 24 hour block 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 time 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 SO2 limit of 7.3 ppm 7% O2 is not achievable even 

using the alternative 30 day average provided in the revised rule.

An achievable SO2 limit for the subcategory of solid Fuel ERUs combusting tires and 

biomass derived fuel based on the 99% UL would be 48 ppm 7% O2 using the 30 day 

rolling average alternative. This proposed revised limit is an order of magnitude below 650 

ppm limit allowed for coal fired solid fuel ERUs. The facility meets or exceeds all other limits 

for solid fuel fired ERUs. We believe incorporating a separate SO2 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 NESHAPs 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-HQ-OAR-2003-0119-2582-A2

Comment Excerpt Number: 1

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 progress 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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 13

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 achievable 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 information or data that support the claim. We 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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 14

Comment: The biomass CISWI limit for SO2 of 7.3 ppmv was derived from 3 tests (3 runs 

each) corresponding to 3 biomass boilers (ALIPRiverdale, MEHuberEngineeredWoodLLC, 
19

OKIPValliant). Generally, when essentially 100% biomass with perhaps small amounts of 

extraneous sources of sulfur are burned in a boiler, the SO2 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 SO2, in the range of 50 to 100 ppm, could result in the 

boiler exit before any secondary control is applied. For such low, uncontrolled levels, it would be 

very difficult even for a very efficient SO2 scrubber (such as a spray dryer absorber) to reduce 

the SO2-laden gases down to levels below 10 ppm. In other words, it is not too difficult to reduce 

the SO2 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 common limit for SO2 be 

applied to coal and biomass CISWI units, since ultimately the level of control is dictated by 

technological limitations of flue gas SO2 control.

Response: We have discussed the rationale for subcategorization in section II.E of the preamble 

to the final rule. The SO2 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. 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. 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.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 16

Comment: The biomass and coal (solid fuel) CISWI limit for HCl of 0.5 ppmv was derived 

from 4 tests (3 runs each) corresponding to 4 boilers (ALIPRiverdale, TXInternationalPaper

QueenCity, WALongviewFPP, WINSPWAshland). All four were biomass-fired boilers.

The discussion provided above for SO2 emissions and control at low levels of SO2 also applies to 

HCl, although with HCl being a stronger acid, the level of control achievable 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 for 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 of 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 the 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 with the final standards, cease combusting 

solid waste and comply with any otherwise applicable section 112 standards, or cease operations. 

We further believe that there are controls available that will achieve the final standards. 

Commenter Name: Ted Michaels

Commenter Affiliation: Energy Recovery Council (ERC)

Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 2

Comment: A comparison of the CISWI MACT ERU standards with Boiler 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 that combust biomass wastes to 

recover renewable energy as compared to those that burn fossil fuel and virgin biomass. Other 

than CO, which is related to fuel combustion properties, the differences in standards are 

irrational. MACT standards are based on technology, 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 fuel 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 conclusion 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 limitations 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 

Emissionsfrom 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 traditional 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 received 

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-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 1

Comment: To the best of our current knowledge, the Dow energy recovery unit that will be 

subject to this rule currently and without retrofit can meet all of the emission standards with the 

exception of the NOX standard. Although retrofit cost for this unit has not been estimated, 

manufacturing personnel expect that the cost of retrofitting this unit with NOX control would be 

very high. The credit received for the steam the unit generates cannot overcome the expected 

retrofit cost and the long-term increased operational costs (operation of NOX 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 recovery 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 type 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) that the 

agency fully expected most CISWI to cease operation under the proposed emission standards. In 
22

the final CISWI rule, the emission standard for NOX 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 NOX (75 FR 31957; June 4, 2010), EPA described that selective 

noncatalytic reduction technology is effective in reducing NOX by 30-50%, and that further 

reductions might require changes in combustion 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-bound 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 NOX 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 NOX. This 

operation cannot 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 reduced 

temperatures. All of these changes would be a significant capital investment, assuming space is 

available for the additional equipment.

Then to follow the redesigned burner chamber and to fully reach some performance below the 76 

ppmv level using selective, 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 section 

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, and would not really address the 

elevated CO caused by the burner modification described in the previous paragraph. Ultimately, 

EPA’s solution in the NOX 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 standards, 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 NOX with regard to combustion control, it is 

incumbent upon the CISWI facility to determine whether combustion conditions can be adjusted 

to meet both standards and, if not, install add-on NOX controls as necessary. 

Commenter Name: Roger Martella

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

Document Control Number: EPA-HQ-OAR-2003-0119-2595-A1

Comment Excerpt Number: 4

Comment: With respect to the remaining 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 correcting 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 compliance-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 standards.

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 units 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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 15

Comment: The biomass CISWI limit for 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 CISWI 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 the 
24

Industrial Boiler 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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 19

Comment: New and modified sources subject to section 165 of the CAA must install “the best 

available control technology” (BACT) for a number of criteria pollutants regulated under the 

CAA, including, as relevant here, CO, sulfur dioxide (“SO2,”), nitrogen oxide (“NOX”) 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 legislative history that suggests that Congress intended MACT, which applies 

to emissions of highly toxic and carcinogenic pollutants, to be less stringent than BACT, which 

applies to criteria pollutants. Indeed, for new sources it is clear that Congress intended MACT39 

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 this 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 

particular 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 emission 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 

material 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 than 
25

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 may 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 appropriate 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-HQ-OAR-2003-0119-2631-A2

Comment Excerpt Number: 2

Comment: Change the basis of the ERU standards from exhaust concentration (e.g., ppmv) to 

emissions per unit of heat input (e.g., lb/MMBtu). These sources have traditionally been subject 

to standards based on heat input and the ERU standards should be consistent with this historical 

approach.

Response: As we discussed in the preamble to the March 2011 final rule (76 FR 15735), CAA 

section 129 solid waste incineration rules, including the 2000 CISWI standards, have 

consistently presented numeric limits in stack gas concentration bases. We are maintaining in 

the final CISWI standards emission limits as stack gas concentrations.

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

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 20
26

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 recognizes 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 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 other. In the CISWI

reconsideration proposal, EPA defines energy recovery units designed to burn coal and energy 

recovery units designed to burn biomass at §60.2265 (76 Fed. Reg. 80501) and §60.2875 as 

follows (76 Fed. Reg. 80521): 

Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that 

burns solid waste, biomass, and non-coal solid materials but less than 10 percent coal, on a heat 

input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or 

gaseous fuels. 

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that burns 

solid waste and at least 10 percent coal on a heat input basis on an annual average, either alone or 

in combination with liquid waste, liquid fuel or gaseous fuels.

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

Reg.80650):

Unit designed to burn biomass/biobased solid subcategory includes any boiler or process heater 

that burns at least 10 percent biomass or bio-based solids on an annual heat input basis in 

combination with solid fossil fuels, liquid fuels, or 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 percent coal will not be able to comply with CISWI CO emission 

limits set using data for coal units. Conversely, a unit burning TDF would be regulated as a coal 

unit under Boiler MACT but would be regulated as a biomass unit under the CISWI rules if it 

also burned some solid waste. A unit burning TDF will not be able to comply with CISWI 7.3 

ppm SO2 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, liquid 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 Boiler MACT.

Response: As we discuss in the March 2011 rule (76 FR 15733), we were aware that some 

ERUs burn a combination of fuel types, but ERUs are designed based on the primary fuel type 

and can encounter operational problems if another fuel type that was not considered in its design 

is fired at more than 10 percent of the heat input of the unit. We therefore subcategorized units 

that burn at least 10 percent coal as being in the solid fuel/coal subcategory, with the remainder 

of the units being in the biomass subcategory for ERUs. We have finalized the definition of 

energy recovery unit designed to burn coal as proposed 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 rationale 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 applicability 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 the 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 and 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) 

authorizes 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 how 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 subcategorization 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 

subcategories that were established, and we have no data that suggests the standards are 

unachievable for sources in the subcategories. The Agency made a similar evaluation of the data 

in the record when establishing subcategories for the NESHAP applicable to industrial 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 SO2 under section 129, but is not required to do so under section 112. In 

addition, EPA must set numeric emissions limits for CO and dioxins and furans in the CISWI 

rule, but, under the boiler NESHAP, CO is regulated only as a surrogate for organic HAP 

emissions. Thus, in CISWI, EPA must consider emissions data for CO, NOx and SO2, 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. NOx and SO2) 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, however, the best 

performers have CO emission concentrations in the 150 ppm range, with NOx values around 100 

ppm. In addition, EPA must consider SO2 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 are subject to a SO2 limit of 7.3 ppmv and coal ERUs are subject to a 

SO2 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 source 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 establish 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 Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 38

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 preamble to both the Boiler MACT and CISWI rules, EPA recognizes and discusses that 

boilers and energy recovery units maybe switching back and forth between Boiler MACT and 

CISWI as a result of waste-to-non-waste fuel or non-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 other.

In the CISWI reconsideration proposal, EPA defines energy recovery units designed to burn coal 

and energy recovery units designed to burn biomass at §60.2265 and §60.2875 as follows:

“Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that 

burns solid waste, biomass, and non-coal solid materials but less than 10 percent coal, on a heat 

input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or 

gaseous fuels.

Energy recovery unit designed to burn coal (Coal) means an energy recovery unit that burns 

solid waste and at least 10 percent coal on a heat input basis on an annual average, either alone or 

in combination with liquid waste, liquid fuel or gaseous fuels.”

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

“Unit designed to burn biomass/biobased solid subcategory includes any boiler or process heater 

that burns at least 10 percent biomass or bio-based solids on an annual heat input basis in 

combination with solid fossil fuels, liquid fuels, or 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 percent coal will not be able to comply with CISWI CO emission 

limits set using data for coal units. Conversely, a unit burning TDF would be regulated as a coal 

unit under Boiler MACT, but would be regulated as a biomass unit under the CISWI rules if it 

also burned some solid waste. A unit burning TDF will not be able to comply with CISWI 7.3 
30

ppm SO2 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 recovery unit that 

burns solid waste and at least 10 percent biomass and non-fossil solid materials on a heat input 

basis on an annual average, either alone or in 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 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-HQ-OAR-2003-0119-2605-A1, above.

Commenter Name: Annabeth Reitter

Commenter Affiliation: NewPage Corporation

Document Control Number: EPA-HQ-OAR-2003-0119-2645-A2

Comment Excerpt Number: 2

Comment: In the reconsideration proposals for Boiler MACT 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 an 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 requests 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, liquid 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 "coal" 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 would be considered to be a coal unit. Once this unit begins to combust the 

solid "waste" material and continues to bum 8% coal and greater than 3% other solid fossil fuel 

and biomass, under CISWI this unit would be considered to be a biomass unit because it is not 

burning at least 10% coal. A unit burning coal and other solid 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 definitions 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-HQ-OAR-2003-0119-2605-A1, above.

Commenter Name: Stuart A. Clark

Commenter Affiliation: State of Washington Department of Ecology

Document Control Number: EPA-HQ-OAR-2003-0119-2636-A2

Comment Excerpt Number: 4

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

from other non- hazardous waste, biomass based energy 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-HQ-OAR-2003-0119-2652

Comment Excerpt Number: 1

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 information that was requested was split between two separate "Phases". The Phase 1 
32

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 waste". EPAOAQPS 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 in 

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 solid 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 considered 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 required 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 materials/fuels while testing (e.g., 

fuel/feed input rates, material/fuel blending limitations, input location (front or back end on kiln), 

operating temperatures, pre-testing input conditions, etc). In addition to the Phase II request, 

review of questions from operators and stack testing companies that were submitted to EPAOAQPS in response to Phase II testing requests, it is 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 website4.

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 to 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 floor 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 EPA docket to have only burned fuels that are clearly defined as traditional fuels 

(40 CFR 241 – both versions, March 21, 2011 and proposed revisions, December 23, 2011) 

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

are identified as solid waste.

Specific examples of such occurrences include:
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, petroleum 

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 assessment 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 calculations. 

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 incineration 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 operate 

without any solid waste inputs. 

Commenter Name: Max Lee

Commenter Affiliation: Koogler & Associates, Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2652

Comment Excerpt Number: 2

Comment: Potential mis-identifications (per 40 CFR 241) apply to all the units the EPAOAQPS 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 were 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 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. 

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 

information 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 Number: EPA-HQ-OAR-2003-0119-2652

Comment Excerpt Number: 3

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 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. 

Commenter Name: Max Lee

Commenter Affiliation: Koogler & Associates, Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2652

Comment Excerpt Number: 4

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 Barnett with 

EPA-OAQPS to the Portland Cement Project Team, entitled "Revised Floors without Kilns that 
35

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 of 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 RCRA 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, while likely, not inevitable. Id. 

("EPA therefore cannot reliably determine at this time if the secondary materials combusted by 

cement kilns are to be classified as solid wastes."); see also Office of Air Quality Planning and 

Standards, Development of the MACT 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 [CISWI] 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 definition, EPA 

would adjust the NESHAP rule accordingly. In none of EPA's proposals, final rules, or briefs in 

this Court has EPA attempted to defend the principle that, in the face of a final and promulgated 

CISWI definition, data from CISWI kilns could now be considered 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 standards themselves. See North Carolina v. EPA, 531 F.3d 896, 930 

(O.c. Cir. 2008) (noting that it is "entirely arbitrary" to base standards on "irrelevant factors#); 

42 U.S.c. § 7412 (d)(l), (d)(3) (requiring EPA to set NESHAP standards 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 agency 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

[Footnotes]

(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 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 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 demonstrating 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 is 

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-HQ-OAR-2003-0119-2652

Comment Excerpt Number: 5

Comment: We find it necessary that:

1) EPA identify what secondary materials these kilns (at a minimum) combusted or input to the 

systems that identified them as "waste-burning kilns" during the specific air emissions 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 emissions 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 these3

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 determinations 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 recovery, 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 taken and, as noted 

above, we identified the CISWI kilns based on the best information available and we do not have 

data that clearly demonstrates that any of the units we identified as waste-burning kilns are not in 

fact waste burning kilns. Under the final rule, a unit is a CISWI unit if it combusted solid waste 

within the previous 6 months, thus, we do not agree that units must be combusting waste at the 

time of the testing in order for the unit to be considered a solid waste incineration unit. 

Therefore, 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 units is in direct conflict with NRDC v. EPA, 489 F.3d 1250, 1257-58 (D.C. Cir. 

2004) (rejecting EPA’s CISWI definitions rule exempting energy recovery units burning solid 

waste under Chevron 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). 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 context of the NHSM rule, not 

CISWI.

2C02. Waste-Burning Kiln Pollutants subcategorized

Commenter Name: Michael D. Stevens

Commenter Affiliation: National Cement Company, Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2596-A1

Comment Excerpt Number: 5

Comment: National Cement supports EPA's proposal to create a 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.

Response: 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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 18

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 the 
38

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-HQ-OAR-2003-0119-2642-A2

Comment Excerpt Number: 1

Comment: We note that the limits proposed for CISWI cement kilns are very close to those 

established in the Portland Cement MACT 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 waste 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 Chevron 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. Waste-Burning Kiln emission limits

Commenter Name: Rex Jameson

Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2642-A2

Comment Excerpt Number: 7

Comment: 60.2145(j)(3) indicates that the demonstration of initial compliance with the 

mercury limit be performed while the raw mill is on and while it is off. In Table 7 to Subpart 

CCCC of Part 60 the mercury limit is stated as a 30 day hourly rolling average. It is not clear that 

these requirements 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 not 
39

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 considers 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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 26

Comment: PCA supports the equation for Particulate Matter in a related NESHAP Rulemaking: 

PCA supports flexibility in laying out an equation for the PM standard under Sec. 129. In the 

context of the NESHAP rulemaking, stakeholders and EPA discussed the equation used to 

compute 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 clinker 

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 feed)
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 commenter’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 the 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 Control Number: EPA-HQ-OAR-2003-0119-2573-A2

Comment Excerpt Number: 3

Comment: EPA granted reconsideration and approval to PC MACT as it related to PM, the 

NSPS for PM as applied to modified sources, and the alternative PM compliance alternative for 

sources 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 the 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 other 

flows can be commingled as well. PCA Petition Exhibit 1 (referring to coal mill exhaust and 

exhaust from an alkali by-pass as instances of additional flows). Without an allowance for these 

additional flows, the site specific PM limit could be stricter than 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 request 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 comment on this issue. In any case, the commenter did not suggest an approach for 

addressing this issue and we do not believe it is appropriate to establish provisions addressing 

this issue 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 the CISWI unit. If the commenter believes an 

alternative approach for commingled gas streams is consistent with the regulations, similar to the 
41

comment of EPA-HQ-OAR-2003-0119-2603-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 Number: EPA-HQ-OAR-2003-0119-2573-A2

Comment Excerpt Number: 4

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

precalciners

The purpose of establishing two populations of cement kilns, 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 reality, 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 than 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 Corporation) 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 combustion 

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 consider 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 compliance 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 Industrial 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 waste 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 rule 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 standard. Hence, 

we are requesting the alternate means to demonstrate compliance for CO emissions when 
42

combusting alternate solid waste fuel in the riser of the precalciner where the solid waste 

materials are actually combusted.)

Response: First, we note that the CO limit for existing cement kilns has changed from 410 

to 790 ppmvd @ 7% oxygen, based on revisions to the kiln inventory, emissions data, and span 

adjustment methodology. The methodology for adjusting CO emission test run data to reflect the 

limitations from the instrument span used at testing is 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 with the regulations, it may seek an alternative method 

pursuant to 40 C.F.R. 60.8.

Commenter Name: Michael L. Krancer

Commenter Affiliation: Pennsylvania Department of Environmental Protection

Document Control Number: EPA-HQ-OAR-2003-0119-2591-A1

Comment Excerpt Number: 2

Comment: The EPA is soliciting comments on whether waste-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 commenter 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 are maintaining in the final CISWI rule emission limits presented as stack gas 

concentrations. However, emission limits for PM, NOx, SO2, and Hg are also provided on a 

production basis to facilitate comparison to emission 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-HQ-OAR-2003-0119-2615-A1

Comment Excerpt Number: 4

Comment: Cement kilns may 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) basis 
43

instead of, or in addition to concentration based limits. 76 Fed. Reg. 80458. Lafarge appreciates 

EPA’s consideration of this issue but proposes a third option, that waste-burning kilns be given 

the option of demonstrating compliance on a production basis or a concentration 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 based standards. Please see the 

response to EPA-HQ-OAR-2003-0119-2591-A1 excerpt 2 above. 

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association

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

Comment Excerpt Number: 13

Comment: EPA has improperly used hydrochloride (HCl) emissions 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 previously 

disallowed (76 Fed. Reg. at 80458). With respect to HCl limits, a PCA member has stated that 

the 3 ppm limit was set without HCl CEMS data (using only short-term FTIR data). Therefore, 

there is no correspondence between limit and monitoring method. Furthermore, HCl results 

obtained vary dependent upon the monitoring method 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. We 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 an 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-HQ-OAR-2003-0119-2642-A2

Comment Excerpt Number: 5

Comment: 60.2105 sets a limit on 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 THC is an indicator of combustion conditions in the kiln but are impacted directly by the 

organics in the raw materials. Both the Hazardous Waste Combustor MACT rule and the 

Portland Cement MACT rule have acknowledged this fact by setting limits on THC instead of 

CO, since THC is a clear surrogate for organic HAPs. In order to be consistent in its approach to 

setting MACT limits on cement kilns (regardless of the MACT category), EPA should set a limit 

on THC rather than CO, just has been done in the 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 demonstrate 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 HCl 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 Association of Clean Air Agencies (NACAA)
45

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 20

Comment: EPA should also consider its proposed MACT rules in light of BACT

determinations for similarly situated units and explain why emission limitations deemed 

“available” as BACT are orders of magnitude more stringent than the (“maximum achievable”) 

MACT standards. A review of EPA’s RACT/BACT/LAER 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 technologies available for control 

of SO2 and NOX 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 explain 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 

addition, it would seem that MACT should be more stringent than either GACT or BACT. 

Accordingly, MACT limits for cement kilns for SO2 and NOX should be at least as stringent as 

BACT limits for such units. Moreover, the performance demonstrated by the best performing 

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 units 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 different it would seem that the test is met at those sources as well.

[Footnotes:

41Many of these decisions are for new units, but are based on technologies suitable for retrofit 

(albeit at somewhat greater cost).

42See, 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/ici-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 technology 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-HQ-OAR-2003-0119-2615-A1

Comment Excerpt Number: 3
46

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 CAA 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 final NHSM rule”, and “added 11 more kilns to the inventory of 

waste-burning kilns”. 76 Fed. Reg. 80458. However, EPA is coincidentally proposing changes to 

“the final NHSM rule” that will likely change again the inventory of waste-burning kilns and 

potentially result in different calculated emission 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 waste without yet 

completing “the final NHSM rule”. This approach would imply that EPA has pre-determined the 

final NHSM rule and is forgoing any possible revisions 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 propose 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 improperly 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. Establishment of Limitations on Fuel Switching Provisions

Commenter Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 15

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 reasons. 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 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 
47

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-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 2

Comment: 60.2145(a)(2) - The term “cease” appears to be defined within this paragraph as 

“when solid waste is not in the combustion chamber” and presumes that a fuel switch has 

occurred if solid waste is not combusted for more than 6 months. Paragraph (a)(3) then goes on 

to state that you must be in compliance with any newly applicable standards on the effective date 

of the waste-to-fuel switch (6 months after ceasing to combust solid waste). The definition of 

“cease” in the context of a waste-to fuel switch must be revised to be activated by both the 

cessation of waste fuel use and the expressed intent to no longer combust solid waste. While this 

may not be important for some sources, cement kilns utilize a wide variety of fuels that are 

dependent upon availability and economics with respect to the cost of other fuels. A source 

should retain the option to operate under the CISWI 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-HQ-OAR-2003-0119-2576-A1 excerpt 15 above.

Commenter Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 3

Comment: 60.2145(a) – These provisions do not appear to account for extended idling of a unit 

due to 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 with 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 waste fuels (or ingredients).

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

Commenter Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 13
48

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 subpart 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 

regulations 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-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 4

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 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 performance test.

Commenter Name: Michael L. Krancer

Commenter Affiliation: Pennsylvania Department of Environmental Protection

Document Control Number: EPA-HQ-OAR-2003-0119-2591-A1

Comment Excerpt Number: 3

Comment: The EPA is soliciting comments on the fuel switching provisions included in the 

final CISWI rule, particularly 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 rule 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-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 6

Comment: EPA Should Amend its Definition of CISWI Unit and its Application of CISWI

Requirements to Units that Cease Burning Solid Waste

The CISWI Reconsideration 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 must remain in continuous 

compliance with CISWI until the effective date of the switch from waste‐to fuel. Both of these 

provisions provide abundant safeguards that units burning solid waste will be subject to 

protective environmental requirements designed for 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 is 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 strike “you are subject to the requirements of this subpart at least 6 months following the 

last date of solid waste combustion.”

Response: For the reasons stated in the 2011 CISWI rule, we are not revising the definition of 

commercial and industrial solid waste incineration unit in the 2011 CISWI rule. 76 FR 15714. 

We believe that providing a framework for compliance for units which switch between burning 

fuel and waste is necessary for both the regulated 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 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 waste 
50

combustors (HWC) regulations. We maintain that the approach taken in the CISWI rule is 

appropriate for these sources and consistent with the statute. 

Commenter Name: Alicia Meads

Commenter Affiliation: National Association of Manufacturers (NAM)

Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1

Comment Excerpt Number: 9

Comment: The EPA should allow a co-fired unit to opt between the 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 beneficial 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 after 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 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 compliance with the applicable standards..

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association

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

Comment Excerpt Number: 3

Comment: 1. EPA must clarify the interplay between the 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 would be more 

appropriate to allow sources to switch as soon as they document compliance with the NESHAP. 

The following provides examples of potential problematic 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 

from the test date. In essence, the 6-month delay will result in the test data no longer being 

valuable for future compliance under NESHAP. b. For a proposed facility modification to a kiln 
51

system related to cement production needs, the change could trigger the "new source" 

requirements under CISWI for a change that in actuality has nothing to do with CISWI. The 

requirement to wait 6 months may prevent the facility from reacting quickly to manufacturing or 

market trends or to develop additional production capacity in a timely manner to react to 

increased demand. To address the first example, PCA 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 cement NESHAP. 

The approach has been in place for almost a decade for hazardous waste burning kilns under the 

HWC NESHAP 40 C.F.R. part 63, subpart EEE), whereby the facility can switch to the 

otherwise applicable requirements and standards of the PC NESHAP without a waiting period. In 

addition, during the time period when not using hazardous 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 alternative, a facility could (and should be permitted 

to) continue to be subject to the CISWI rules both during the burning of solid waste and in 

anticipation of future burning of solid waste. Should that be the facility's choice. Using the PCA

suggested described CISWI/PC NESHAP approach, the 30-day 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 

alternate mode (e.g. NESHAP option), the 30- day average would be based upon the full days 

that NHSM was not utilized. In other words, the source could switch fuel and transfer to 

NESHAP compliance without a complicating waiting period. And, the source could also have 

the option for two operating modes with alternate 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 operations 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.

Response: 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 providing a framework for 

compliance for units which switch between burning fuel and waste is necessary for both the 

regulated entities and the Agency (or delegated authority). Providing such a framework ensures 

continued compliance, while minimizing the burden of testing necessary to assure continuous 

compliance with the applicable standards.

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 2

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 solid 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, “which recently combusted any solid waste material.” 

Instead, Congress chose the present tense “combust” to express its clear intent to regulate only 

units currently combusting solid waste. EPA must “give effect to the unambiguously expressed 

intent of Congress” under step 1 of the Chevron test. See Chevron USA v. NRDC, 467 U.S. 837, 

842-43 (1984). Since Congress was clear in its intent to only regulate solid waste incineration 

units currently combusting waste, EPA’s expansion of the definition of 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 switch between burning fuel and waste is necessary 

for both the regulated entities and the Agency (or delegated authority). Providing such a 

framework ensures continued compliance, while minimizing the burden of testing necessary to 

assure continuous compliance with the applicable standards. 

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 4

Comment: EPA’s six month requirement could also subject units that no longer burn solid 

waste to § 112 and 129 standards simultaneously. Under § 129(h)(2), Congress limited EPA’s 

authority to regulate CISWI units by stating that “no solid waste incineration unit subject to 

performance standards under [CISWI – sections 111 and 129] 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. 

LEXIS 24577, at *12 n.2 (D.C. Cir. Dec. 9, 2011) the court notes that some cement kilns would 
53

be regulated under NESHAP and other cement kilns combusting solid waste “...would be 

subject to standards under the CISWI rules rather than under the NESHAP rules, since the two 

regimes are mutually exclusive. See also, NRDC v. EPA,489 F.3d 1250, 1256 (D.C. Cir. 2007). 

The reconsidered CISWI proposal would subject some units that should be subject to regulation 

under § 112 (e.g., boilers), when and because they are combusting 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 those 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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 49

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 to 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 required 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 CISWI 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 standards are appropriate 

for periods of startup and shutdown and provide feedback on the proposed definitions of startup 

and shutdown under that rule.

EPA has no authority to regulate a unit that is not burning any solid waste as a CISWI.
54

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. 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” the 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 standards 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-HQ-OAR-2003-0119-2612-A1

Comment Excerpt Number: 2

Comment: Currently, Wisconsin does not have any incinerators or boilers subject to the CISWI

rule. Several boilers or sources could become subject to CISWI if certain materials are 

designated as NHSM. However, these sources have also 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 

stopping 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 with 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. Because 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 regulations, 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 concern 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 

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 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 shorter 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 creates 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-HQ-OAR-2003-0119-2615-A1

Comment Excerpt Number: 5

Comment: EPA has proposed an arbitrary 6-month period to opt out of CISWI applicability. 

EPA has stated that the 6-month period is needed to ensure that frequent switching does not 

impede their ability to determine continuous compliance and create undue permitting and testing 

burdens on sources. 76 Fed. Reg. 80459. A 6-month transition period is unnecessary for 

continuous compliance demonstrations for waste-burning kilns for either the CISWI or 

applicable NESHAP 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 their 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 delay. 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 required 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 on 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 day 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 

operating 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 and 
56

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

NESHAP. 

Response: We are not revising the final rule in response to this 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 Name: Mark Calmes

Commenter Affiliation: Archer Daniels Midland Company

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

Comment Excerpt Number: 4

Comment: The CISWI regulations were meant to control hazardous and toxic pollutants which 

are generated by combustion of municipal solid waste. 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 used to verify compliance 

with the appropriate standard during times of combustion of materials classified as wastes, and 

those classified as fuels, or any combination thereof. We therefore support the removal of any 

requirement that is arbitrarily limited and instead support requirements that are driven by 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 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: Satish Sheth

Commenter Affiliation: Cemex USA

Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2

Comment Excerpt Number: 18

Comment: CEMEX feels strongly that the imposition of a 6-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 how 
57

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-HQ-OAR-2003-0119-2596-A1

Comment Excerpt Number: 1

Comment: EPA should create a mechanism under 40 CFR Part 60 Subpart DDDD for 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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 16

Comment: EPA Should Create a Mechanism to clarify CISWI status: PCA asks that EPA add 

to the rule create a mechanism to declare a kiln to be 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 limits 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 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 CISWI rules and the facility owner can rely upon that notification and 

designation until 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 exercise 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 

waste. 
58

Commenter Name: Ted Michaels

Commenter Affiliation: Energy Recovery Council (ERC)

Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 6

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

waste-to-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 provision 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 

handling 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-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 7

Comment: The minimum six-month CISWI applicability period and six-month notification 

period requirements present catastrophic economic consequences 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 actually waste. 

Under the current fuel switching limitations the operator would have no choice given this 

retrospective knowledge but to shut down the unit for a full six months and along with 

employees bear the tremendous economic consequences of an idle facility. 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 “reasonable methodologies” 

characterizing NHSM as fuel, the NHSM rule presumes NHSMs are solid waste and the rule’s 
59

language remains unclear with respect to implementation of the contaminant legitimacy criterion, 

making operators’ self-determinations using these criteria subject to challenge by an agency or 

3rd party. With the six month fuel switching provisions even a single successful challenge could 

jeopardize the operator’s economic viability.

The combustion unit operators, and not generators or processors, 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 incurred 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 

combustion.

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 long 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-HQ-OAR-2003-0119-2599-A1 excerpt 6, if a 

source believes that it has inadvertently combusted solid waste in a fuel burning unit, they should 

work with the delegated authority to ensure compliance with the appropriate standards.

Commenter Name: Ted Michaels

Commenter Affiliation: Energy Recovery Council (ERC)

Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 8

Comment: There is a practical material handling issue associated with the proposed fuel 

switching limitations. Most biomass plants stack biomass in large piles. Fuel is taken from the 

piles with a re-claimer and fed to the boilers. By 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-HQ-OAR-2003-0119-2605-A1

Comment Excerpt Number: 9

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 the 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, and 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 waste 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 that 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. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 10

Comment: The practical effects of the regulation are far-reaching. For example, if a facility 

burns a waste /fuel mix, which is typical, and is operating under the CISWI regulations, if for 

some reason the waste component of their fuel supply becomes unavailable, solid fuel boilers 

(e.g., coal) 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 during 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 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 would 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-HQ-OAR-2003-0119-2618-A2

Comment Excerpt Number: 2

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

demand or boiler operating requirements. Therefore, any environmental regulatory constraints 

related to fuel switching decisions must take into account, and be as flexible as changes in fuel 

markets and operating conditions. EPA should not insert itself into economic decisions related to 

supply and demand and should instead focus on appropriate environmental regulatory matters 

while allowing the regulated community the flexibility to make sound economic decisions 

related to its operation.

For example, if a facility burns a waste /fuel mix, which is typical, and is operating under the 

CISWI regulations, if for some reason the waste component of their fuel supply becomes 

unavailable, solid fuel boilers (e.g., coal boilers) 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 would 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-HQ-OAR-2003-0119-2618-A2

Comment Excerpt Number: 3

Comment: If a boiler owner is not operating under CISWI and wishes to take advantage of a 

favorable "waste" material market, they would be required to give thirty days' notice, and then 

remain under CISWI regulations for a minimum of six months during which time the market and 

availability of the material may change considerably. Once under the CISWI, as mentioned 

above, this operator would have trouble meeting the CISWI emission requirements and would 

have to shut down operations (or find an alternate source of suitable energy) for a minimum of 

six months until it was permitted to switch back to an appropriate standard for its traditional solid 

fuel source. Many waste streams are not available year round and their supply is dependent upon 

production schedules out of the control of the ultimate fuel user. Also, a facility may 

inadvertently burn a material that is a waste or later becomes classified as a waste, and might be 

forced to shut down or operate under the CISWI regulations for six months during periods when 

no waste is actually being combusted. These and many other operational examples present 

additional, significant and unintended risks related to 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 Boiler Owners (CIBO)

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

Comment Excerpt Number: 11

Comment: To remedy these damaging effects, a provision should 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 startup 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 periods. 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 Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 5
63

Comment: Fortunately, there is precedent for a fuel switching provision that is both lawful and 

workable, and would assure that a combustion 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 and are operating successfully. See 40 C.F.R. §§ 63.1200 et seq., 

63.1206(b)(ii) & 63.1209(q). The HWC MACT allows units that intermittently combust 

hazardous waste to comply with either Subpart EEE at all times or with Subpart EEE while 

hazardous waste is in the combustion chamber and, some other applicable subpart promulgated 

under § 112 or § 129, when no hazardous waste is in the combustion chamber 40 C.F.R. § 

63.1206(b)(ii).1 In relevant part, the emission standards and operating requirements set forth 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 modes 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 offer 

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 applied 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 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 §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:

1When 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 operating 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 the 
64

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 

notification, reporting, and recordkeeping requirements of §§ 63.1210 through 63.1212.] 

Response: As stated above in response to EPA-HQ-OAR-2003-0119-2605-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 maintain the approach is reasonable and consistent with the statute. 

We address the comments concerning startup and shutdown periods above in response to EPAHQ-OAR-2003-0119-2605-A1 excerpt 9. 

Commenter Name: Stephen R. Gossett

Commenter Affiliation: Eastman Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2640-A2

Comment Excerpt Number: 6

Comment: A provision should be added that allows a facility to 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, NOX emissions drop significantly. 

Section 129 of the Clean Air Act requires EPA to set emission standards for sulfur dioxide and 

NOX under CISWI and such standards are not required under the Boiler and Process Heater 

MACT. Depending on the stringency of the CISWI NOX emission standard, it may not be 

possible to comply with the NOX 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 state. Facilities 

can easily document which mode of operation they are in (by tracking solid waste feed rates) and 

readily show compliance with the applicable standard.

Also, as commented as elsewhere, since EPA has stated it cannot use work practice standards 

during periods of startup and shutdown, compliance with CO 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 periods.

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 129 and the 112 rules. We see no compliance assurance issues with 
65

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-HQ-OAR-2003-0119-2605-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 maintain the approach is reasonable and consistent with the statute. 

We address the comments concerning startup and shutdown periods above in response to EPAHQ-OAR-2003-0119-2605-A1 excerpt 9. 

Commenter Name: Michael D. Stevens

Commenter Affiliation: National Cement Company, Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2596-A1

Comment Excerpt Number: 2

Comment: National Cement supports EPA's proposal that allows a kiln operator to retain the 

applicability of the CISWI standards, until notice is filed, 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 NESHAP 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-HQ-OAR-2003-0119-2603-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 trigger 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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 27

Comment: EPA should Clarify Initial Performance Testing Requirements: Section 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 of 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 

classes of categories, such as, for example, organic liquids, refuse derived fuels, scrap plastic. 

Response: As noted in response to EPA-HQ-OAR-2003-0119-2603-A1 excerpt 22, we have 

further clarified what constitutes a “process change” that would require retesting as required 

under §60.2155(a)(2) and §60.2720(a)(2). In this clarification, one 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 wastes 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 of 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 Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 3

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

give EPA 30- days’ notice prior to the effective date of a fuel switch from a waste to a non-waste 

fuel. This prior notice requirement also subjects a unit to continued regulation under § 129 after 

it has ceased burning waste. For example, a unit that 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

Document Control Number: EPA-HQ-OAR-2003-0119-2636-A2

Comment Excerpt Number: 5

Comment: We are disappointed that EPA did not harmonize the CISWI and Major Source 

Boiler MACT requirements as they apply to units that 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 that 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 “harmony” of the CISWI and Major Source Boiler MACT, we believe that the waste 

to fuel switching requirements provide the flexibility needed for sources that burn both solid and 

non-solid waste. 

Commenter Name: Annabeth Reitter

Commenter Affiliation: NewPage Corporation

Document Control Number: EPA-HQ-OAR-2003-0119-2645-A2

Comment Excerpt Number: 1

Comment: EPA should reconcile the definitions of units designed to burn coal in Boiler MACT

and CISWI. In the preamble and rule language for both Boiler MACT 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 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. 
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-HQ-OAR-2003-0119-2591-A1

Comment Excerpt Number: 4

Comment: 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 kilns, 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.

Response: 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-HQ-OAR-2003-0119-2583-A2

Comment Excerpt Number: 1

Comment: EPA initially proposed its CISWI rule on June 4, 2010. 75 FR 31938. RIPA filed 

comments on August 23, 2010. A copy of RIPA’s comments is attached hereto (Exhibit A). [see 

DCN EPA-HQ-OAR-2003-0119-2583-A3 for attachments provided by commenter] In its 

August 23, 2010 comments, RIPA explained why EPA’s CISWI 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 whatever 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 reclamation units.” 76 FR 15734.

Pursuant to a “reconsideration” of the CISWI rule that EPA announced on the same day it issued 

the final rule (76 FR 15266), EPA has recently proposed 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 types of 

units. 76 FR 80460. EPA also proposed to clarify the definition of “burn‐off oven” by adding the 

italicized sentence as follows: Burn‐off oven means any rack reclamation unit, part 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 the burn‐off oven subcategories and (2) the revised definition of burn‐off oven. 76 FR 80460. 

RIPA hereby submits comments on these two issues.

(1) Determination not to propose standards

RIPA fully supports EPA’s determination. For all the 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 subcategories 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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 6

Comment: EPA discusses the definition of several types of units: cyclonic burn barrels, burnoff ovens, soil treatment units, laboratory analysis units, space heaters, foundry sand thermal 

reclamation units, and chemical recovery units. EPA has also included a definition of chemical 

recovery unit in the Proposed Rule that more properly addresses sulfuric acid recovery units 

(SARUs) as well as other types of chemical recovery units. 76 Fed. Reg. 80460-80464.

Additionally, EPA discusses that each of these types of units are excluded from being classified 

as regulated CISWI units by definition. The revised definitions for these types of units are 

provided at §60.2265 and §60.2875. ACC supports the revised definitions and agrees with EPA 

that these units should not be regulated under CISWI.

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

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 6
70

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 many 

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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 17

Comment: Preamble Section I.C.3 [76 Fed. Reg. 80460] describes several types of units that 

will not be covered by this rule: cyclonic burn barrels, burn-off ovens, soil treatment units, 

laboratory analysis units, and space heaters. EPA 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 emissions 

information. Id. at 80463. The revised definitions for these types of units are provided at 

§60.2265 and §60.2875.

We agree with the revised definitions of each of these types of units and agree that they should 

not be regulated at this time. Our comments on the June 2010 proposed rules (see for example 

AF&PA comments at EPA-HQ-OAR-2003-0119-1951) provided detailed 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-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 3

Comment: THE EXEMPTIONS FROM THE CISWI RULE ARE UNLAWFUL AND 

ARBITRARY.

EPA has failed to set standards for cyclonic burn barrels, burn-off ovens (including foundry sand 

thermal reclamation units, 76 Fed. Reg. at 80463/2, and other parts reclamation units), chemical 

recovery units, soil treatment 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 section 129 and 112(c) and 
71

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 than 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 treatment 

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. 2007) (“[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 section 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. EPA, 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 the 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, even 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 little 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 CISWI 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 made any effort to obtain 

the data it needs. See 76 Fed. Reg. at 80460/2 (“We have not received any new emission data for 

cyclonic burn barrels”); id. (“we have not received data that would allow us to establish 

standards for the various burn-off oven subcategories”). 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 subcategorized 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 unlawful and arbitrary. EPA first suggests that 
72

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 units 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 basis that they may not burn waste. Moreover, for EPA 

categorically to exclude these units from regulation, it must actually determine, based on record 

evidence, that they do not burn any waste, not speculate that they “likely” do not. As the D.C. 

Circuit has 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 standards 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 argument 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 kilns, 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. Specific definition comments - cyclonic burn barrels

Commenter Name: Darryl Sanderson

Commenter Affiliation: The Dow Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 3
73

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-burning 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 both 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-HQ-OAR-2003-0119-2605-A1

Comment Excerpt Number: 36

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 for 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-HQ-OAR-2003-0119-2566-A2

Comment Excerpt Number: 1

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 combustion 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 insulated 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 structure to create a horizontal cyclonic wind/circulation in 

the combustion chamber for maximum combustion efficiency of waste material. The high 

velocity forced air creates a boundary layer that acts as a ceiling or lid similar in principle to 

cyclonic burn barrels, causing re-circulation of 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, almost 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 basic 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 cyclonic 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 determined in 

the final rule that it did not need to regulate cyclonic burn barrels to comply with section 

112(c)(6) of the Clean Air Act for the reasons set forth in the preamble to the final rule.

[Footnotes]

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

Curtain Destructors,

J. AWMA, 57,959-967.

Response: We are not revising the definition of “cyclonic burn barrels” as the commenter 

suggests. We do not have sufficient information on the unit in question to make a definitive 

assessment at this time as to whether the “cyclonic 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 questions 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-HQ-OAR-2003-0119-2601-A1

Comment Excerpt Number: 1

Comment: The State recommends that the EPA amend the Other Solid Waste Incinerators 

(“OSWI”) rules, located in 40 C.F.R. Part 60, Subparts EEEE and FFFF, to include the definition 

of cyclonic burn barrel as proposed to be included in the 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.80501and80522,§§60.2265and60.2875] In the preamble to the 

proposed rule, the EPA based the exclusion of cyclonic burn barrels from 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 regulation, 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 Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 2

Comment: It is common practice in industry (such as plastics or latex manufacturers, plastics or 

latex processors, polymer production facilities, as 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 units 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 which would damage the parts being cleaned. After 

loading, the oven is turned on and the temperature starts to rise to the optimum cleaning 

temperature. As the temperature rises, the initial cleaning is accomplished by melting the 

material and the molten material is collected in a pan or separate chamber. At some point, the 

conditions are such that the physical change (melting) 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-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 4

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 comments 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 combustion 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 

addition, should EPA have disagreed with Dow’s claim of not practicing combustion in these 

ovens, Dow also commented that CAA section 129.g.1 states that the term, "solid waste 

incineration unit" does not include materials recovery facilities which combust waste for the 

primary purpose of recovering metals. The primary purpose of Dow’s ovens is indeed to recover 

metals, although the metals are recovered in the 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 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: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 1

Comment: In the March 21, 2011, final rule, EPA modified the 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) obligation." 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-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 3

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 facility 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 temperatures, 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 combustion, 

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 need 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 Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 4

Comment: Many burn-off ovens are not equipped with stacks because 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. For 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 hours 
78

which can easily exceed the pyrolysis time of the units. Thus, it may be impossible for these 

units to use approved testing methods to conduct their initial tests or to show future compliance.

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

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 5

Comment: If included in the CISWI rule, it would actually be a 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 

promulgate 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 many specialized machined 

parts). Of course, such shipment assumes even the larger ovens can comply, which is not certain 

since EPA expected most of these ovens to shut down (75 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 environmentally unfriendly, resulting in greater potential for exposure to employees 

and generating a great deal more waste. Abrasive cleaning is not a viable option for machined 

parts since abrasion can damage the parts rendering them useless for further process 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 inferior.

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

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 6

Comment: Some, if not most, states already realize that the potential for emissions from these 

units is inconsequential because of the small amount of material that they remove and the small 

amount of emissions that these units could conceivably 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, Georgia, 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 with 
79

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 have long known to be a 

useless activity.

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

Commenter Name: Richard G. Stoll, Foley & Lardner LLP

Commenter Affiliation: Reusable Industrial Packaging Association (RIPA)

Document Control Number: EPA-HQ-OAR-2003-0119-2583-A2

Comment Excerpt Number: 2

Comment: EPA solicits comments in its preamble on (1) its determination not to propose 

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

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

(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 burn‐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 new 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-HQ-OAR-2003-0119-2593-A1

Comment Excerpt Number: 3

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 conditions, 

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 actually combust solid waste.

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 37

Comment: EPA is also justified in not establishing standards for burn-off ovens. With several 

different types of units and a lack of data, it is not feasible to regulate these units under one set of 

standards.

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

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 7

Comment: In many applications, the material being removed is 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, and 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 numerical standards for nine pollutants from solid 

waste incineration units. See CAA section 129(a)(4). As the final rule does not establish 

standards for these units, we need not address whether the units the commenter discusses 

actually combust solid waste.

Commenter Name: Frederick Fedri

Commenter Affiliation: Occidental Chemical Corporation (OCC)

Document Control Number: EPA-HQ-OAR-2003-0119-2594-A1

Comment Excerpt Number: 1

Comment: EPA presented reasons for its decision not to finalize 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 to 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 the definition. 

The current rule definition states: "Burn-off oven means any rack reclamation unit, part 

reclamation unit, or drum reclamation unit. A burn-off oven is not an incinerator, waste burning 

kiln, an energy recovery unit, or small remote incinerator 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, drums, 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 provide 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 oven" 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-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 5

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 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 definition of "soil treatment unit" as proposed.

2E05. Specific definition comments - Laboratory analysis units

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
82

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

Comment Excerpt Number: 38

Comment: CIBO supports the exclusion of laboratory analysis units from the rule, on the basis 

of a lack of data and on the characteristics of these units. These are highly specialized units not 

likely to burn solid waste and too small and diverse to justify development of standards. 

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-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 6

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 analysis 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 section 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 definition of "laboratory analysis unit" as proposed. 

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 8

Comment: In the March 21, 2011, final rule, EPA modified the 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 samples 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, discarded, 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 of 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 laboratory 

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)

Document Control Number: EPA-HQ-OAR-2003-0119-2610-A1

Comment Excerpt Number: 1

Comment: The final CISWI rule that was published on March 21, 2011, included a definition of 

the term "space heater." See Standards of Performance for New Stationary Sources and 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 for 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 have eviscerated the existing used oil collection system, leaving do-ityour-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-Hazardous 

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

EPA-HQ-RCRA-2008-0329-1686, at 11-12.

In response to these concerns, EPA promulgated a space heater exemption from the CISWI Rule. 

EPA explained this exemption in the 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 emissions limits for such units, and therefore the 

concerns of the commenters that such units would have to comply with CAA Section 129 
84

standards have been addressed for this population of combustion units." 76 Fed. Reg. at 15502, 

15504, 15506.

EPA also provided an explanation of its intent in the "Frequent Questions" document 

accompanying that rule (available at http://www.epa.gov/epawaste/nonhaz/define/faq-final.htm). 

The NHSM Rule Frequent Questions state:

Today’s final rules do not impact the regulation of used 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 any 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, and that space heaters are not an incinerator, wasteburning 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-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 7

Comment: Dow supports the conclusions that EPA reached in adding the definition of space 

heater in the March 21, 2011 final rule and in proposing the clarifying language at §60.2265 

(Subpart CCCC) and §60.2875 (Subpart DDDD) that "a space heater is not an incinerator, 

waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart" 

(76 FR 80460). Dow requests that this clarifying language be adopted as proposed in both 

subparts.

Response: EPA is finalizing the proposed definition with a small clarification. See the response 

to EPA-HQ-OAR-2003-0119-2610-A1 excerpt 1. 

Commenter Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 19

Comment: 60.2265 - We support the exclusion of space heaters from the definition of 

incinerator, waste-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-HQ-OAR-2003-0119-2610-A1 excerpt 1. 
85

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 39

Comment: EPA lacked data on space heaters and noted that they 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 proposed definition with a small clarification. See the response 

to EPA-HQ-OAR-2003-0119-2610-A1 excerpt 1.

Commenter Name: Susan Bodine

Commenter Affiliation: Used Oil Management Association (UOMA)

Document Control Number: EPA-HQ-OAR-2003-0119-2610-A1

Comment Excerpt Number: 2

Comment: In both the preamble to the NHSM Rule, and in its "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. That 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 heaters 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 clarify 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 as 

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 units 

are eligible for the exemption. The requirement that the unit be vented to the outdoors ensures 

that health is protected. In addition to these environmental and human health protections, this 

definition provides a clear and objective standard that is well known to regulators, space heater 

manufacturers, and space heater operators, reducing regulatory uncertainty for all of these 

entities.

Response: EPA is finalizing the proposed definition with a small clarification. See the response 

to EPA-HQ-OAR-2003-0119-2610-A1 excerpt 1.

2E07. Establishing a Definition of "Homogeneous Waste"

Commenter Name: Traylor Champion

Commenter Affiliation: Georgia-Pacific LLC (GP)

Document Control Number: EPA-HQ-OAR-2003-0119-2581-A1

Comment Excerpt Number: 6

Comment: We note that the conditions EPA has proposed to place on mixtures of two 

homogeneous wastes are not only inconsistent with the 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 contemplated?

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 the determination of homogeneity of a 

waste stream is relevant to applicability of CAA section 129 to qualifying small power producers 

and qualifying cogeneration facilities, we determined it was reasonable to include a definition of 

“homogenous waste” and a process by which sources could obtain a determination that a waste 

stream is homogenous from the EPA. 

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 provisions 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 with 
87

information describing the materials to be combusted 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 proposed 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 

homogeneous 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 problematic. 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 EPA 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 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...

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 

homogeneous waste, as doing so could result in almost any waste stream being homogenous. 

We do not believe that is consistent with the statute. Instead, we believe Congress intended this 

exemption to apply only when the waste stream has a 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. tires 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 composition 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 should 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.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 22

Comment: We note that the conditions that EPA has proposed to place on mixtures of two 

homogeneous wastes are not only inconsistent with the 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 contemplated?

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

Commenter Name: Mark Calmes

Commenter Affiliation: Archer Daniels Midland Company

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

Comment Excerpt Number: 8
89

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 sufficiently 

processed materials which meet the legitimacy criteria are not wastes at all. If a material is 

indeed classified as a homogenous "waste", any requirement for its further processing is 

inappropriate and should instead be determined by operating criteria of the specific combustion 

device (shredding or sizing). Therefore, ADM requests that its concern over this language be 

addressed in any subsequent preamble or modifications to the definition of homogenous waste.

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

Commenter Name: Traylor Champion

Commenter Affiliation: Georgia-Pacific LLC (GP)

Document Control Number: EPA-HQ-OAR-2003-0119-2581-A1

Comment Excerpt Number: 7

Comment: We ask EPA to clarify the relationship between 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 processed). In addition, as discussed above, unless contained in a 

container, synthesis gas cannot be considered a waste. However, the preamble to the March 21, 

2011, CISWI rule included troubling language that implied that 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.”) 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 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: Susan Bodine

Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC)

Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1

Comment Excerpt Number: 10

Comment: We also ask EPA to clarify the relationship between gasification and the definition 

of homogeneous wastes. EPA has reaffirmed that gaseous fuels are not solid wastes. However, 

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 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 
90

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 Owners (CIBO)

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

Comment Excerpt Number: 17

Comment: EPA should remove the added requirement included in this 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 [40 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 response from EPA within thirty (30) days of receipt or the request is automatically 

deemed as approved.

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

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. However, 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 Calmes

Commenter Affiliation: Archer Daniels Midland Company

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

Comment Excerpt Number: 9

Comment: Finally, ADM requests EPA to remove the added requirement included in this 

revision for qualifying co-generation facilities to submit a request to the USEPA to combust 

homogenous waste under the 129 exemption [40 C.F.R.60.2020 (e) 3 and f(3)]. This request is 
91

not necessary and is duplicative 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.

Response: See the response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 17.

2E08. Definitions - Foundry Sand Thermal Reclamation Unit

Commenter Name: Jerry Call

Commenter Affiliation: American Foundry Society (AFS)

Document Control Number: EPA-HQ-OAR-2003-0119-2624-A2

Comment Excerpt Number: 1

Comment: In this reconsideration and proposed amendments for the CISWI rule, EPA proposed 

a definition of the term, “foundry sand thermal reclamation unit.” Specifically, the unit is defined 

as “a type of part reclamation 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 subject to CISWI standards. 

AFS supports the proposed definition and EPA’s position that foundry sand thermal reclamation

units are not subject to CISWI standards. The thermal reclamation of foundry sand provides 

significant environmental benefits, in addition to 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 needed 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 thermal 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 

processes 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 the 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 discouraged 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)

Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 14

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 EPA 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 recycled 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 regulation of such units is not 

required to comply with its CAA § 112(c)(6) obligation. See id. EPA proposes to define 

“foundry sand thermal reclamation unit” as: a type of part reclamation unit that removes coatings 

that are on foundry sand, [and] not an incinerator, waste-burning kiln, an energy recovery unit or 

a small, remote incinerator under this subpart. Id. at 80,502. EPA then proposes to define a 

“burn-off oven” as: any rack reclamation unit, part 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. Id. Based on these definitions, then, TSR units would not 

be regulated under the CISWI Rule because EPA has determined that it will not regulate burn-off 

ovens under the regulation.37 See, e.g., id. at 80,460. While AIF does not believe that TSR units 

qualify as CISWI units more generally, it also agrees that TSR units should not be subject to 

CISWI requirements because they significantly 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 under 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 pollution 

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 sand, nor to generate heat for reuse. The purpose is simply to reuse the sand in the 

making of new sand cores and molds. EPA never intended to 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 CISWI 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 should 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 sand reclamation unit as proposed.

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 40

Comment: In the Proposed Reconsidered NHSM rule, EPA proposes an amended approach to 

thermal sand reclamation, with the result that 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-HQ-OAR-2003-0119-2624-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 regarding 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 of 

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 mechanical 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 sand 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 of 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 reclamation 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 foundry sand thermal reclamation units pursuant to RCRA is not necessary 

to protect human health and the environment. These units are already subject to applicable 

federal, state, and local air permitting requirements. As a result, regulation of these units 

pursuant 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 positions 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, Petition 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 Waste Incineration Units.

For the reasons stated above, EPA should correct its interpretation in the preamble of the NHSM 

rule that thermal reclamation of foundry sand is waste management. By clarifying that thermal 

reclamation of foundry sand (like mechanical reclamation of foundry sand) is not waste 

management, EPA would be consistent with its action in this proposed rulemaking, its statutory 

authority under RCRA, and applicable case law.

Response: The commenter primarily discussed issues that have been previously dealt with 

within the Identification of Non-Hazardous Secondary Materials That Are Solid Waste 

rulemaking (NHSM). See Docket ID: EPA-HQ-RCRA-2008-0329. 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-HQ-OAR-2003-0119-2609-A1

Comment Excerpt Number: 4

Comment: EPA should not define landfill gas as a waste or the management of a solid waste. 

Landfill gas is collected because it is a valuable 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 rulemaking, 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-HQ-OAR-2003-0119-2617-A2

Comment Excerpt Number: 2

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 Waste 

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 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.
96

Commenter Name: Kerry Kelly

Commenter Affiliation: Waste Management (WM)

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 1

Comment: EPA must clarify that the CISWI Rule does not apply to the combustion of

landfill gas, either when combusted for control (as in an 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 significant 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 

interpretation 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 suggested 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‐HQ‐RCRA‐2008‐0329‐1837 at pages 211‐214. Taken 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 comprehensive regulatory structure to govern the collection, control 

and treatment of landfill gas under the CAA —a structure based on the correct determination that 

landfill gas is not a solid waste under RCRA. EPA’s 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‐HQ‐OAR‐2003‐0119‐3355. We provided estimates of both capital expenditures for new 

control equipment and annual operations and maintenance costs associated with possible 

regulation of landfill gas 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 transfer of gas, WM

and other landfill owners /operators would be left with greater quantities of landfill gas to 
97

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 intended 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 Solid 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 

definition 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 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: Richard G. Stoll

Commenter Affiliation: Foley & Lardner LLP

Document Control Number: EPA-HQ-OAR-2003-0119-2657-A1

Comment Excerpt Number: 1

Comment: Since 2000, in several subparts of 40 C.F.R. part 60, EPA’s regulations have 

provided: “Contained gaseous material means gases that are in a container when that container is 

combusted.” In the March, 2011 CISWI final rule, however, EPA inexplicably (and without 

notice) deleted this long-standing definition from two 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 aware, 

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-HQ-OAR-2003-0119-2657-A2 for 

Lafarge petition letter]. Lafarge explained that it uses landfill gas as fuel at two of its portland 

cement manufacturing facilities, and that use of such 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 material.
98

On August 29, 2011, Lafarge sent followup letters to each of you [see EPA-HQ-OAR-2003-

0119-2657-A3 and EPA-HQ-OAR-2003-0119-2657-A4 for Lafarge follow-up letters]. In

those letters, Lafarge included additional points 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 associations and companies [see EPA-HQOAR-2003-0119-2657-A4 for letter). We fully endorse the concerns and conclusions expressed 

in that letter.

For the reasons set forth in our August 29, 2011 letters to each of you, we believe reinstatement 

of the long-standing 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 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 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: Richard G. Stoll

Commenter Affiliation: Foley & Lardner LLP

Document Control Number: EPA-HQ-OAR-2003-0119-2657-A2

Comment Excerpt Number: 1

Comment: We recently learned that EPA is refusing to advise state regulators that gases that are 

not contained in a container are not solid wastes, notwithstanding 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 preamble 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 regulatory 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, 2011, 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 treatment or other 

management of a solid waste (as defined in RCRA section 1004(27).”

Following release of the April 13, 2011 letter, the regulated community thought the issue of what 

is a contained gas was settled. However, we now learn that it may not be. Notwithstanding this 

letter, it is our understanding that EPA has refused to 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 the NHSM Rule.

For example, in addition to confusion over permits for landfills, we are aware of one title V 

permit application for a flare in North Carolina that has been halted over this issue. The subject 

permit application is for temporary short-term incineration 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 repercussions 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 gases that are 

not contained in a container may still be solid wastes. The documents highlight the importance of 

clarifying that all gases are not solid wastes unless combusted while in a container. EPA needs to 

clarify that this is the position of the Agency not only under the Clean Air Act, but also under 

RCRA.

Please be aware that EPA’s unwillingness to provide 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 combusted.
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, Executive Director, Governmental 

Refuse Collection and Disposal Association. However, that letter provides no basis for an EPA 

determination that landfill gas is a solid waste when combusted. In fact, in Volume U of the 

RCRA Definition of Solid Waste Compendium, this letter is included in the subtopic “uncontained 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 controlling 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 section 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. This 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 will 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 community 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 cannot 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 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. 
101

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: Erika H. Frank

Commenter Affiliation: Calgon Carbon Corporation

Document Control Number: EPA-HQ-OAR-2003-0119-2633-A2

Comment Excerpt Number: 1

Comment: EPA should retain the definition of "contained gaseous material" in the CISWI Rule 

and add it to the NHSM Rule, as well as confirm that offgas and process gas are not "contained 

gaseous material" 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 "discarded material, including solid, liquid, semisolid, 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 handling 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 combustion 

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 that 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 

AFPA 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 pollution control device is not 

considered a "contained gaseous material," it is not a "solid waste" under the NHSM Rule. 

Accordingly, this combustion device is not subject to the CISWI Rule. Please confirm that 

gaseous emission streams like Calgon Carbon's process 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

EPA 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 material” 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 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 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-HQ-OAR-2003-0119-2637-A1

Comment Excerpt Number: 2

Comment: The definition of a CISWI unit in 40 CFR §60.2265 previously excluded 

combustion turbines and reciprocating internal 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 that 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 determine based on this final rule and the 

NHSM rule whether it is combusting solid waste and, if so, whether EPA promulgated standards 

for its unit. 

Commenter Name: Robert L. Greene

Commenter Affiliation: INGENCO

Document Control Number: EPA-HQ-OAR-2003-0119-2637-A1

Comment Excerpt Number: 3

Comment: INGENCO believes that landfill gas generated by 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 

using treated landfill gas are covered by a number of permitting and emissions standards.
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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 industrial facility that 

combusts solid waste for energy recovery is a CISWI unit. The commenter should determine 

based on this final rule and the NHSM rule whether it is combusting solid waste and, if so, 

whether EPA promulgated standards for its unit.

2E10. Definitions - "Chemical Recovery Unit"

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 24

Comment: Preamble Section I.C.11c [76 Fed. Reg. 80463-4] discusses 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 units do not 

fit into the existing four sub-categories for CISWI units. EPA therefore revised the definition of 

chemical recovery units and has decided not to regulate them at this time.

The definition of chemical recovery unit in both Subparts CCCC and DDDD is the same:

“Chemical recovery unit means combustion units burning materials to recover chemical 

constituents or to produce chemical compounds where there is an existing commercial market 

for such recovered chemical constituents or compounds. A chemical recovery unit is not an 

incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under 

this subpart. The following seven types of units are considered chemical recovery units: (1) Units 

burning only pulping liquors (i.e., black liquor) that are reclaimed in a pulping liquor recovery 

process and reused in the pulping process. (2) Units burning only spent sulfuric acid used to 

produce virgin sulfuric acid. (3) Units burning only wood or coal feedstock for the production of 

charcoal. (4) Units burning only manufacturing byproduct streams/residue containing catalyst 

metals which are reclaimed and reused as catalysts or used to produce commercial grade 

catalysts. (5) Units burning only coke to produce purified carbon monoxide that is used as an 

intermediate in the production of other chemical compounds. (6) Units burning only 

hydrocarbon liquids or solids to produce hydrogen, carbon monoxide, synthesis gas, or other 

gases for use in other manufacturing processes. (7) Units burning only photographic film to 

recover silver.” [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 time.

Response: EPA included the proposed definition of "chemical recovery unit" in the final CISWI 

rule. 

Commenter Name: Darryl Sanderson

Commenter Affiliation: The Dow Chemical Company
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Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 8

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.

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 24

Comment: CRWI supports the conclusions that EPA reached in the March 21, 2011, final rule 

in adding the definition of chemical recovery unit and in now adding new clarifying language at 

§ 60.2265 (Subpart CCCC) and § 60.2875 (Subpart DDDD) that "a chemical recovery unit is not 

an incinerator, waste-burning kiln, an energy recovery unit or a small, 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

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. 

Commenter Name: Seyfarth Shaw LLP

Commenter Affiliation: Rhodia Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2579-A1

Comment Excerpt Number: 1

Comment: Rhodia operates sulfuric acid recovery units (SARUs) 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 clarify 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 nonhazardous fuels)."

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 sulfurbearing 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 reincorporate the 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 sulfur is derived 

from a variety of sources, including spent sulfuric acid and other sulfur-bearing materials. Other 

sulfur-bearing materials are processed in the same manner as spent sulfuric acid in the 

production of virgin sulfuric acid.

Rhodia further commented that if the types of materials combusted in SARU s constituted nonhazardous 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 specifically includes 

"units burning only spent sulfuric acid used to produce virgin sulfuric acid." 76 Fed. Reg. 

80,454, 80,501 (Dec. 23, 2011). The proposed rule on reconsideration specifically excludes 

chemical recovery units from the definition of the four 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 permitted 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 2004 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

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 5

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 solid 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 clarification relating to the 

scope of CISWI relative to other CAA Section 129 standards, does not provide clarity to the 

regulated community. 

Specifically, EPA should clarify that CISWI does not apply 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 Combustion Units. The following municipal solid waste combustion units are 

exempt from this subpart: 

(1) Combustion units that are subject to subpart Ea of this part (Standards of Performance for 

Municipal Waste Combustors); subpart Eb of this part (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 Times 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 solid 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 clarifications: 

“The definition of CISWI unit does not include municipal solid waste combustion units identified 

within 40 CFR §60.2020(c), and does not include internal combustion engines, gas turbines or 

other combustion devices that combust landfill gases collected by landfill gas collection 

systems.” WM believes these changes will further clarify the scope of CISWI relative to the 

CAA Section 129 municipal solid waste combustion standards. Additionally, the clarification 

with respect to landfill gas fired combustion units is 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 60, 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 included in the 

exemption for units subject to section 129 standards specific to municipal waste combustion 

units because OSWI regulates units that are not municipal 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 

pursuant to CAA section 129, unless such unit is exempted pursuant to one of the four statutory 

exemptions. See Natural Resources Defense Council v. EPA, 489 F.3d 1250, 1257-58 (D.C. Cir. 

2007) (NRDC Decision). The exemption for units burning less 30% or less of MSW was not 

consistent with the NRDC Decision because units at 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 units 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 Control Number: EPA-HQ-OAR-2003-0119-2597-A1

Comment Excerpt Number: 11

Comment: EPA states that it is providing a definition of "municipal solid waste" in the CISWI

rule. 76 Fed. Reg. at 80465. However, no such definition appears in the regulatory language. We 

agree that such a definition would be helpful in determining what units are subject to CISWI and 

what are subject to the municipal waste combustor rule and request EPA to include such a 

definition in the final rule.

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 
108

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. 

Commenter Name: Kerry Kelly

Commenter Affiliation: Waste Management (WM)

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 4

Comment: EPA Should Clarify the Provisions of CISWI that Reference Municipal Solid 

Waste Combustion

WM requests that EPA clarify the extent to which CISWI may apply to municipal solid waste 

combustion units. In this context, WM notes that both the final rule and the Reconsideration 

proposal include changes that are confusing and potentially inconsistent with respect to CISWI

applicability for municipal waste combustors. By way of background, EPA has promulgated a 

series of regulations under Section 129 of the Clean Air 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 Construction 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 regulated 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) regulated 

under existing municipal waste combustor standards (at that time, Subparts Ea, Eb, and AAAA

and their Emission Guidelines counterparts), or (2) that combust greater than 30% municipal 

solid waste or refusederived fuel, and had the capacity to burn less than 35 tons per day of 

municipal solid waste. Subsequently, EPA promulgated the 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‐derived fuel). In the currently effective CISWI

rule, promulgated on March 21, 2011 (76 Fed. Reg. 15704), section 60.2020(c) was revised to 

remove the second part of the exemption that previously 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 relative to other CAA Section 129 standards governing municipal solid waste 
109

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 promulgated 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-HQ-OAR-2003-0119-2628-A2, excerpt 5, EPA is 

including in the final rule an exemption for units subject to OSWI and a definition of “municipal 

solid waste.” 

Commenter Name: William C. Allison

Commenter Affiliation: Air Pollution Control Division

Document Control Number: EPA-HQ-OAR-2003-0119-2601-A1

Comment Excerpt Number: 2

Comment: The State suggests that the definition of small, remote incinerators (“SRI”), as 

proposed in the CISWI Reconsideration, be revised to 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 

OSWI rules.

In the CISWI Reconsideration, the EPA defines SRI as “an incinerator that combusts solid waste 

... and combusts 3 tons per day or less solid waste and is more than 25 miles driving distance to 

the nearest municipal solid waste landfill.”[76 Fed.Reg.80502and80523,§§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 refuse 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 units 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, EPA 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 they 
110

combust MSW and that MSW accounts for more than 30 % of the inputs for the unit. EPA does 

not have information at this time to determine whether any units in the SRI subcategory are very 

small MWCs subject to OSWI instead of CISWI and the 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 appropriate section 129 standards 

applicable to their units. 

Commenter Name: Kerry Kelly

Commenter Affiliation: Waste Management (WM)

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 16

Comment: EPA Should Clarify that Secondary Material Fuels May be 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 the 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 comments 

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 levels 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 control and oversight over the use of secondary materials as fuels so that it may prevent 

sham recycling or combustion for the sake of disposal. As companies continue to work to 

recover value from spent materials that would otherwise be disposed, they will focus on all 

aspects of the solid waste stream as sources of 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, commercial 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 included in the CISWI rule to clarify applicability for MWC

owners who question whether CISWI or MWC rules are applicable to their solid waste 
111

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 

have 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 

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 11

Comment: EPA states in the final CISWI rule that, “consistent with” the holding in Sierra Club 

v. EPA, 551 F. 3d 1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (2010) (“Sierra Club”), it 

has established emission standards that apply at all 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 for 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 occur 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 

standard. 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 standards.

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 exceedance 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 

while simultaneously recognizing that despite the most diligent of efforts, emission limits may be 

exceeded under circumstances beyond the control of the source. Mont. Sulphur & Chem. Co. v. 

United States EPA, 2012 U.S. App. LEXIS 1056 (Jan 19, 2012) (rejecting argument that reliance 

on the affirmative defense was not adequate). EPA must establish emission standards that “limit 

the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” 42 

U.S.C. § 7602(k)(defining “emission limitation and emission standard”). See generally Sierra 

Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008) (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 emissions 

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 malfunctions that can occur across all sources 

in the category and given the difficulties associated with predicting or accounting for the 

frequency, degree, and duration of various malfunctions that might occur. 

CAA section 129 does not allow EPA the option of setting 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 their 

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 criteria). 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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 12

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 dispositive 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 pollutants 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 “continuous 

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, court 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 standards be met at all times, thereby ignoring or 

assuming away a malfunction, it is acting “consistent with Sierra Club,” that claim really does 

nothing to justify EPA’s actions in this proposed 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, however, 

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 subpart 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 plan 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 normal operations must apply during SSM events. In fact, the court clearly 

indicated that § 302(k)’s “inclusion of [the] broad phrase” “any requirement relating to the 

operation or maintenance of a source to assure continuous emission reduction” in the definition 

of “emission standard” suggests that EPA can establish 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 mean 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 periods 
114

of 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 for 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 sources 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 during 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-HQ-OAR-2003-0119-2606-A1 excerpt 11. 

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 for 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 Standards for Hazardous Air Pollutants from Coal- and 

Oil-fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-FuelFired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-CommercialInstitutional Steam Generating Units; Final Rule,77 FR 9304 (February 16, 2012).

As explained in the preamble to the proposed rule and this final rule, the EPA has determined 

that CAA sections 112 and 129 do not require that emissions that occur during periods of 

malfunction be factored into development of standards 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 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 malfunctions 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)
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Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 16

Comment: The affirmative defense regulatory language in § 63.2120 and § 63.2685 opens with 

the words: “In response to an action to enforce the standards set forth in...” and repeats this 

thought in paragraph (a) of the section: “To establish the 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),9EPA 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 malfunction.” 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 paragraph (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 decided whether to take 

any enforcement action. To require a party to lay out its entire defense to a potential future 

enforcement action before that action may be taken is wholly inappropriate and unacceptable.

EPA has cited no legal authority for its use of 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 specified 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” penalty 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 CAA. 

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 affirmative 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 not
116

be raised as a defense to a claim for injunctive relief? EPA’s assertion to the contrary is 

unsupported by any explanation.

Turning to the individual requirements in § 63.2120(a)(1) through (9) that a facility must meet to 

be allowed to raise an affirmative defense, a number 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, process 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 repairs 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 and 

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 consider 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 options to determine which one was 

the most cost-effective approach to achieve the emission standard, keeping in mind that costeffectiveness would include long-term safe and proper operation of the equipment or process. If 

a malfunction were to occur, it could be difficult if not impossible for the owner/operator to 

prove that the malfunction “could not have been prevented” if cost and resources were never an 

issue. Another subjective and particularly problematic requirement is (a)(8) which requires that: 

“At 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 “at all times, the facility was 

operated in a manner consistent with good practices for minimizing emissions.” (Emphasis 

added.) First, EPA does not define “facility” or “affected facility” in the final CISWI rule; 

common usage of the term “facility” suggests that it 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 reconsideration 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 equipment or a process, and the bypass was 
117

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 bypassing 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 

emissions, 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 emissions. 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 because 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” personal 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 reasonably 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 established 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 affirmative defense provisions in order to further reduce the burden 
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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 is 

triggered by the “initial occurrence of the malfunction,” the 45-day period for submitting a 

written report demonstrating that the party qualifies for the affirmative defense commences on 

the date of “the initial occurrence of the exceedance of the standards.” 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 opportunity 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. 

However, 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 all of the reasons 

above, and in keeping with the court’s holding in Sierra Club, we strongly encourage the Agency 

to abandon its affirmative defense approach as an appropriate and legal way to address excess 

emissions during a malfunction. We believe that the 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 affirmative 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 

comments apply equally to § 63.2685.

10The 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 the 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.”

11For example, it might be theoretically possible to eliminate the 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 

eliminate “the primary causes of the malfunction” and not just to eliminate “the excess emissions 

resulting from the malfunction event” lies entirely outside of EPA’s authority under the CAA, 

which is limited to establishing and enforcing emission 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 malfunction, and where the source owner or operator has taken action to 

correct the malfunction and minimize emissions. In order to establish the affirmative defense and 
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prove by a preponderance of evidence that the event meets the definition of malfunction, you 

must 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 detailed 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 violation 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 demonstrate 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 violation 

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 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 determine the facts required to 

establish the defense. See, e.g., Arizona Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1120, 1129-30 

(10th Cir. 2009) (rejecting industry challenge to the EPA’s use of an affirmative defense to 

address excess emissions during malfunction events). 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 administrative 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 regulatory 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 are continuous. The 

affirmative defense for malfunction events meets this requirement by ensuring that even where 

there is a malfunction, the emission limitation is still enforceable through injunctive relief. 

Further, injunctive relief may be necessary to improve facility operations and improve the 

environmental performance of the facility, and these are viewed as critical steps in resolving a 

violation. If the affirmative defense applied to 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. 
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The commenter observes that a number of the affirmative defense criteria address how the 

exceedance was resolved, and objects that these are not relevant to whether a malfunction has 

occurred. The EPA believes that a demonstration of 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 believe 

that the language is not necessary. Although we believe that use of off-shift or overtime labor 

could be cited as evidence that the owner or operator expedited repairs, we do not believe this 

level of detail is necessary in the regulatory text. The 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 enforcement 

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 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, 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 consistent 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 impose reasonable and attainable showings, and include language restricting 

their scope to safe operation, careful planning, and proper design. In response to commenter's

question, the reference to "facility" in the affirmative defense pertains to the regulated 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 environmental 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" is 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 concern 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.

. Section 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 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 pollutants specified in Section 129(a)(4). 

Commenter Name: Darryl Sanderson

Commenter Affiliation: The Dow Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 15

Comment: EPA’s proposed rule establishes an "affirmative defense" in place of the historic 

provisions for start-ups, shutdowns and malfunctions. Dow recognizes that this is not unique to 

CISWI; EPA is proposing the same in other rules. However, the "affirmative defense" as 
122

currently written imposes such onerous requirements 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 areas 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 

variety 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 

asserting the affirmative defense should be eliminated in §60.2120(b) of subpart CCCC and 

§60.2685(b) of subpart DDDD for at least the following 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/SARA/State Agency Reportable 

Quantities. Thus, agencies will be flooded with reports of very small excess emissions.

The rule structure encourages reporting to the agency even if the owner/operator is not 

sure if an exceedance of an emission limit has occurred 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 determined that CAA sections 112 and 129 does not require that emissions that occur during 
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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 

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 given the myriad different types of malfunctions that can occur 

across all sources in the category, and in the NESHAP and 129 programs. The EPA disagrees 

that affirmative defense is unreasonable, difficult to demonstrate, and subject to varying 

interpretation. .

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 scheduled 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 reporting in conflict in need of resolution.

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 10

Comment: While we prefer EPA use a rebuttable presumption, should the Agency keep the 

affirmative defense concept, CRWI suggests the following modifications to the language to 

make it more usable. CRWI understands that most of the provisions EPA has proposed for the 

affirmative defense comes from earlier guidance memos. While these provisions were in 

guidance, the Agency did not need to be careful of the wording since they were only guidance 

and did not have the weight of regulation. However, if the Agency wants to codify this guidance 

into regulatory language, several changes are needed. For example, EPA should drop the 

reference to "any" activity in this paragraph. There are also several references to "All" that would 

make it difficult to satisfy the requirements of an affirmative 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 immediately 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 cause 
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analysis is 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 short 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 system is not as significant as a power failure or a catastrophic event such as a 

fire or explosion. CRWI believes that a formal root cause analysis should only be used when 

other reasonable methods fail to show what caused the malfunction or when the serious 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 should 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 suggests that the Agency use an 

alternative term that does not carry a specific meaning. However, if the Agency envisions a 

formal process for determining the root cause for every malfunction, no matter how simple, 

CRWI believes this is unnecessary and would result 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 Plans: 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, enforcement 
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actions, regardless of type, have no deterrent effect on them. Therefore, the type of legal action 

EPA uses to enforce a violation of its emission limits is simply irrelevant to whether the violation 

should be excused because of circumstances beyond the 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 standards 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 defense a more useful tool (using strikeout to show text deleted and underline to 

show text added).

§ 60.2120 Affirmative Defense for Exceedance of an Emission Limit During Malfunction.

In response to an action to enforce the standards set forth in paragraph § 60.2105, you may assert 

an affirmative defense to a claim for civil penalties for exceedances of such standards that are 

caused by malfunction, as defined at 40 CFR 60.2. Appropriate penalties may be assessed, 

however, if you fail to meet your burden of proving all of the requirements in the affirmative 

defense. The affirmative defense shall not be available for claims for injunctive relief.

(a) To establish the affirmative defense in any action to enforce such a limit, you must timely 

meet the notification requirements in paragraph (b) of this section, and must prove by a 

preponderance of evidence that:

(1) The excess emissions:

(i) Were caused by a sudden, infrequent, and unavoidable failure of air pollution control and 

monitoring equipment, process equipment, or a process to operate in a normal or usual manner; 

and

(ii) Could not have been reasonably prevented through careful planning, proper design or better 

operation and maintenance practices; and

(iii) Did not stem from any activity or event that could have been reasonably foreseen and 

avoided, or planned for; and

(iv) Were not part of a recurring pattern indicative of inadequate design, operation, or 

maintenance; and
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(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 emissions on 

ambient air quality, the environment and human health; and

(6) All eEmissions 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 aActions in response to the excess emissions were documented by properly signed, 

contemporaneous operating logs; and

(8) At all times, tThe 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 mitigate 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, using best monitoring methods and engineering judgment, the amount of excess 

emissions that were the result of the malfunction.

(b) Notification. The owner or operator of the facility experiencing an exceedance of its emission 

limit(s) during a malfunction shall notify the Administrator by telephone or facsimile (FAX) 

transmission as soon as possible, but no later than two business days after the initial occurrence 

of the malfunction, if it wishes to avail itself of an affirmative defense to civil penalties for that 

malfunction. The owner or operator seeking to assert an affirmative defense shall also submit a 

written report to the Administrator within 45 days of the initial occurrence of the exceedance of

the standard in § 60.2105 to demonstrate, with all necessary supporting documentation, that it 

has met the requirements set forth in paragraph (a) of this section. The owner or operator may 

seek an extension of this deadline for up to 30 additional days by submitting a written request to 

the Administrator before the expiration of the 45 day period. Until a request for an extension has 

been approved by the Administrator, the owner or operator is subject to the requirement to 

submit such report within 45 days of the initial occurrence of the exceedance.

§ 60.2685 Affirmative Defense for Exceedance of an Emission Limit During Malfunction.

In response to an action to enforce the standards set forth in paragraph § 60.2670 you may assert 

an affirmative defense to a claim for civil penalties for exceedances of such standards that are 

caused by malfunction, as defined at § 60.2. Appropriate penalties may be assessed, however, if 
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you fail to meet your burden of proving all of the requirements in the affirmative defense. The 

affirmative defense shall not be available for claims for injunctive relief.

(a) To establish the affirmative defense in any action to enforce such a limit, you must timely 

meet the notification requirements in paragraph (b) of this section, and must prove by a 

preponderance of evidence that:

(1) The excess emissions:

(i) Were caused by a sudden, infrequent, and unavoidable failure of air pollution control and 

monitoring equipment, process equipment, or a process to operate in a normal or usual manner; 

and

(ii) Could not have been reasonably prevented through careful planning, proper design or better 

operation and maintenance practices; and

(iii) Did not stem from any activity or event that could have been reasonably foreseen and 

avoided, or planned for; and

(iv) Were not part of a recurring pattern indicative of inadequate design, operation, or 

maintenance; and

(2) Repairs were made as expeditiously as possible when 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 emissions on 

ambient air quality, the environment and human health; and

(6) All eEmissions 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 aActions in response to the excess emissions were documented by properly signed, 

contemporaneous operating logs;

(8) At all times, tThe 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, 
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using best monitoring methods and engineering judgment, the amount of excess emissions that 

were the result of the malfunction.

(b) Notification. The owner or operator of the facility experiencing an exceedance of its emission 

limit(s) during a malfunction shall notify the Administrator by telephone or facsimile (FAX) 

transmission as soon as possible, but no later than two business days after the initial occurrence 

of the malfunction, if it wishes to avail itself of an affirmative defense to civil penalties for that 

malfunction. The owner or operator seeking to assert an affirmative defense shall also submit a 

written report to the Administrator within 45 days of the initial occurrence of the exceedance of 

the standard in § 60.2670 to demonstrate, with all necessary supporting documentation, that it 

has met the requirements set forth in paragraph (a) of this section. The owner or operator may 

seek an extension of this deadline for up to 30 additional days by submitting a written request to 

the Administrator before the expiration of the 45-day period. Until a request for an extension has 

been approved by the Administrator, the owner or operator is subject to the requirement to 

submit such report within 45 days of the initial occurrence of the exceedances.

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 

affirmative 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 proceedings 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 Emissions 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 "preponderance 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 

possible 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 operated in a manner 

consistent with good practices for minimizing emissions at all times. This language does not 

require that impossible actions be taken, in contrast to one concern expressed by the commenter, 

but rather, all possible actions. The EPA requires proof by a preponderance of evidence that 

these objectives are met. The EPA does not agree that requiring a preponderance of evidence 

means that the criteria for the defense are intended to apply less frequently, or only some of the 

time. The EPA agrees that the cause of malfunctions vary in scope and necessary corrective 

action. The EPA does not agree that a root cause analysis is unnecessary for events that are 
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simpler to address. The EPA's reference to root cause analysis is described simply as a process 

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 analysis shall also specify, using best monitoring 

methods and engineering judgment, the amount of excess emissions that resulted due to the 

malfunction. 

The term “root cause analysis” was used generically to imply an analysis of sufficient depth and 

complexity to indicate whether a malfunction did indeed cause a failure to meet a standard, 

provide sufficient information on the nature and causes of a malfunction to determine whether 

the source had a malfunction that met the definition 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 that “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 thermocouple 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 by 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, 

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 report, 

deviation report or excess emission report due after the initial occurrence of the violation of the 

relevant standard. The EPA is forgoing the two day notification.

As an alternative to the signed operating logs, the EPA accepts electronically signed operating 

logs where the format and method of submission meets 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.

A comment indicates 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 affect 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 proceedings 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 defense 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 relief, 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 allowing 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 

that 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 criteria 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-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 10

Comment: If despite our objection EPA proceeds with affirmative defense concept, it should 

model its design after the State of New Jersey’s affirmative defense provisions or adopt an 

approach consistent with Title 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 affirmative 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 consistent with the Title 

V emergency condition provisions and current NSPS malfunction definition would be:
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“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 timely 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 usual 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 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) 

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 

purposes. 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 

would 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 violation and when the source wishes 

to raise the defense. The EPA does not agree that the affirmative defense criteria are 

unreasonable, difficult to demonstrate, and subject to 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 defense 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 citizen 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 

future 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 affirmative 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 affirmative 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 

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). Regarding the examples for malfunction 

events and response criteria, the EPA proposed criteria are more specific than the Title V 

emergency provisions (see § 70.6(g) and provide a more detailed 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 provision. 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, Maintenance, 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 claim.

Commenter Name: Darryl Sanderson

Commenter Affiliation: The Dow Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 16

Comment: Dow suggests the following revisions to the proposed regulatory text and provides 

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) Repairs 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 offshift labor is only one consideration in how to address a malfunction event. If EPA wants to 

point out that the use of overtime or off-shift labor must be considered, then this language is best 

included in the preamble rather than the rule itself.
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 requirement 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 primary causes of the malfunction and the excess emissions resulting 

from the malfunction event at issue. The analysis shall also specify, using best monitoring 

methods and engineering judgment, the amount of excess emissions that were the result of the 

malfunction.

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 ensuring 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 exceedance of its emission limit(s) 

during a malfunction shall notify the Administrator by telephone or facsimile (FAX) 

transmission as soon as possible, but no later than 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 part of the semi-annual deviation report of §60.2775 within 45 days of the initial

occurrence of the exceedance of the standard in 60.2670 to demonstrate, with all necessary 

supporting documentation, that is has met the requirements set forth in paragraph (a) of this 

section. The owner or operator may seek an extension 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 extension 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 defense 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 event. 

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 believe that the language is 
134

not necessary. Although we believe that use of off-shift or overtime labor could be cited as 

evidence that the owner or operator expedited repairs, we do not believe this level of detail is 

necessary in the regulatory text. A source may make other demonstrations as to how they made 

repairs as expeditiously as practical in the report required by Section 60.2120(b).

While EPA is retaining the language that requires logs to be contemporaneous and properly 

signed, the EPA accepts electronically signed operating logs where the format and method of 

submission meets the regulatory criteria and are 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 that 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 conducted 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 reporting requirements. The 

language has been changed in the final rule at paragraphs 60.2120 and 60.2685 to read as 

follows:

(b) Report. The owner or operator seeking to assert an affirmative defense shall submit a written 

report to the Administrator with all necessary supporting documentation, that it has met the 

requirements set forth in paragraph (a) of this section. This affirmative defense report shall be 

included in the first periodic compliance, deviation report or excess emission report otherwise 

required after the initial occurrence of the violation of the relevant standard (which may be the 

end of any applicable averaging period). If such compliance, deviation report or excess emission 

report is due less than 45 days after the initial occurrence of the violation, the affirmative defense 

report may be included in the second compliance, deviation report or excess emission report due 

after the initial occurrence of the violation of the relevant standard. 

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 9

Comment: As EPA knows, malfunctions will occur. Even the best run facilities will have 

circumstances where events happen that are out of their control. While CRWI believes that EPA 

must take into account the conditions that occur during 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 (rather than affirmative defense) where it is presumed that any 

violation occurring during the malfunction was not the facility’s fault unless the Agency proves 
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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 malfunction periods, 

including preventative and corrective actions, as well as root cause analyses to ascertain and 

rectify excess emissions. The EPA would also consider whether the source’s failure to comply 

with the CAA section 129 standard was, in fact, ‘‘sudden, infrequent, not reasonably 

preventable’’ and was not instead ‘‘caused in part by poor 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 affirmative defense applies to penalties and thus is 

only utilized where a violation has been established. The burden of proof remains with the 

plaintiff in an enforcement action. See, e.g., 40 C.F.R. 22.24. If a violation has been 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 determine the facts 

required to establish the defense. See, e.g., Arizona Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1120, 

1129-30 (10th Cir. 2009) (rejecting industry challenge to the EPA’s use of an affirmative defense 

to address excess emissions during malfunction events).

Commenter Name: Michael L. Krancer

Commenter Affiliation: Pennsylvania Department of Environmental Protection

Document Control Number: EPA-HQ-OAR-2003-0119-2591-A1

Comment Excerpt Number: 5

Comment: The EPA has finalized affirmative defense provisions for malfunctions and as part 

of the reconsideration proposal is soliciting comments on the affirmative defense provisions that 

were included in the final rule. The March 21,2011, final rule defines affirmative defense as 

follows: "Affirmative defense means, in the context of an enforcement proceeding, a response or 

defense put forward by a defendant, regarding which the defendant has the burden of proof, and 

the merits of which are independently and objectively evaluated in a judicial or administrative 

proceeding." 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) and 
136

section 60.2685 (a)(1)(iii) are too subjective and may preclude owners and operators from using 

the affirmative 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); 

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. 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 sources will want to invoke this defense.

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association

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

Comment Excerpt Number: 6

Comment: If EPA were to continue with the affirmative 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 immediately 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 generally five years. These immediate notice and 

quick written report requirements simply make no sense in the affirmative defense for 
137

malfunction context. We agree that EPA should take the approach suggested in the SSM

Coalition Comments (at p. 22) to require 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 report or excess 

emission report due after the initial occurrence of the violation of the relevant standard. With 

respect to the concern that an owner operator of an 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 Requirements. 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 practices to 

review and evaluate operational problems. 

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association

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

Comment Excerpt Number: 7

Comment: The litany of factors that must all be proven without exception could make the 

defense almost impossible to meet, even where it is clear that the malfunction occurred at a wellmaintained plant and the operator took all reasonable steps to avoid it and correct it 

expeditiously. We agree with the SSM Coalition 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: The 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., 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 
138

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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 8

Comment: A particularly egregious mandate is in 60.2685(a)(4), where a malfunction related to 

bypassing control equipment cannot qualify for the defense unless "the bypass was unavoidable 

to prevent loss of life, personal injury, or severe 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 standard 

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 

seriousness 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 reasons 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 (in 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

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

Comment Excerpt Number: 9

Comment: The requirement to prepare and file a detailed "root cause" report is, as pointed out 

by the SSM Coalition (pp. 20-21) in many respects illogical and unworkable. If a malfunction is, 

as EPA defines it "unavoidable'' and "unforeseeable," in 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 situation, it would be inconsistent with the very 

concept of malfunction to deny the defense to a party who is unable to pinpoint the "root cause'' 

in a report.
139

Response: The EPA disagrees with the characterization that a root cause report is infeasible 

because 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 avoid 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 eliminate 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 failures 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-HQ-OAR-2003-0119-2605-A1

Comment Excerpt Number: 8

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 rely 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 their costeffectiveness. For example, the source must show “[r]epairs were made as expeditiously as 

possible . . . excess emissions (including any bypass) were minimized to the maximum extent 

practicable . . . [a]ll possible steps were taken to minimize the impact 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 impose 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 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 
140

significant difficulties applying the terms of these SIP affirmative defenses. 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 

those standards. Further, the commentor is reminded that these affirmative defense provisions are 

only required for those malfunctions 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 provides 

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 requires 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 believes 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.

Commenter Name: Ted Michaels

Commenter Affiliation: Energy Recovery Council (ERC)

Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 9

Comment: EPA should replace its proposed affirmative defense provisions with emission 

standards that take malfunctions into account.

The Clean Air Act does not permit EPA to substitute the affirmative defense concept for 

standards required under the Clean Air Act. The affirmative defense concept is also without 

merit within the context of a technology-based standard like MACT. Malfunctions occur in the 

very best operated and maintained facilities. EPA’s 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 appropriate standards that 

apply during these periods.

We understand the difficulty obtaining emission data for varying types of malfunction related 

events, but the response to lack of data should not be an imposition of a broad and burdensome 

regulatory system which expands the universe of “deviations” and all the public image issues, 

bad press, employee morale, regulatory penalties, and 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 equipment failure, or it could lengthen time averages for 

CEMS-based limits. To assure that the standards deter frequent and lasting events, EPA could 
141

establish standards based on a limited malfunction duration which requires the operator’s quick 

and effective response in order to avoid ceasing operations to fix the problem.

The EPA’s system opens the door to unnecessary enforcement actions and citizen suits. The 

affirmative defense is not certain, even when followed to a tee, and still allows regulatory 

agencies 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 good.

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 section 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 response to comment EPA-HQ-OAR-2003-0119-2611-A1 

excerpt 30 found later in this document.

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 stated, "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 defense 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, through 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 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 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 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 expect the affirmative defense provisions to 

significantly alter the burden of bringing a citizen 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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 15

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 “civil 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 clearly 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) to 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 15737. 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 operating 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 its 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 requires 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 are 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 limitations 
143

achieved in practice by the best performing 12 percent of units in the category" CAA § 

129(a)(2).

[Footnote: 8The 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 76 Fed. Reg. at 

15613. In that case, the court was discussing a “technology forcing” standard, rather than one, 

like MACT, that is to be based on what is already being “achieved” or has been demonstrated to 

be achievable. Also, the SSM events that EPA acknowledges 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 passage 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.2d 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 sources 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, because 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 Heritage Dictionary, 3rd 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-HQ-OAR-2003-0119-2611-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 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 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 findings 
144

required 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 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 practice 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 malfunctions 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 meaning 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 that the Weyerhaeuser Co. v. Costle 

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 to 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 excessive 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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 10

Comment: In the March 21, 2011 final rule, EPA for the first time stated that CISWI units 

would be required to comply with emission limitations 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 penalties” 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 and 
145

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 defense, and instead should use 

its statutory authority under §§ 111(h) and 302(k) to establish a work practice or operational 

standard that would reduce emissions during a malfunction 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 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 

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 taking 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-HQ-OAR-2003-0119-2593-A1

Comment Excerpt Number: 7

Comment: 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 prescribe 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 class 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, 

therefore, 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 periods 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 

testing 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 and 
146

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 section 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 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 the EPA saw merit in trying to regulate such emissions, accounting 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 the 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 source 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 defense 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 “continuous” as required by 42 U.S.C. § 7602(k), 

and account for unplanned upsets and thus support the reasonableness of the standard as a whole. 

Further, Section 129 requires numeric emission standards for the pollutants specified in Section 

129(a)(4). Additionally, 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 does 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 separate standards that apply to startup, shutdown, 

and malfunction, is also addressed in our response to comment EPA-HQ-OAR-2003-0119-2611-

A1 excerpt 30 found later in this document. The 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 limitation and emission standard”). 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, the

affirmative defense is a permissible approach. Consistent with CAA sections 113(e) and 304. 

Section 304 gives district courts jurisdiction “to apply appropriate civil penalties.” Section 

113(e)(1) identifies the factors that the Administrator or a court shall take into consideration in 

determining the amount of a penalty to be assessed after it has been determined that a penalty is 

appropriate. Although the commenter 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 in 

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 to 
147

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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 48

Comment: EPA’s proposal to provide an affirmative defense for periods of malfunction is 

without merit. EPA must instead establish 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 

unreasonable 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 affirmative defense for 

periods of malfunction and, instead, set a work practice standard for such periods.

[Footnote: 20 See Letter to EPA Docket Center from the American 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 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 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 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 final 

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 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). 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). 

Commenter Name: Kerry Kelly

Commenter Affiliation: Waste Management (WM)

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 9
148

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 rule as written, any emissions 

occurring above the limits set using emission data obtained exclusively during normal operation 

(emphasis added) are considered deviations, regardless of the underlying root cause of the 

emissions. The reality is that malfunctions 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 emissions 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. Malfunction 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 

enforcement 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 of eligibility criteria 

that must be proven by a “preponderance of evidence and the vague terms such as 

“unpreventable,” “could not have been foreseen,” and “all possible steps were taken” all but 

guarantees that no malfunction event will ever meet the criteria. WM suggests modifying the 

affirmative defense eligibility criteria in 40 CFR § 60.2685(a) as follows to make it more 

reasonable and eliminate such vague language: “To establish that an exceedance of an emission 

limit or operating standard was the result 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 immediately 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) preventive measure were 

implemented to address the root cause of the malfunction; and (5) the root cause analysis and 

actions in response to the excess emission event were documented in signed contemporaneous 

log. (b)...” We also believe the notification requirements 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 a 
149

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 ensure 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 conclusion 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 because 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 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 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 final 

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 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). 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 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 to 

enforcement 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.

EPA appreciates the effort of the commenter to provide alternative language for the affirmative 

defense criteria. However, the language removes specific criteria that are useful in determining 
150

whether an event meets the definition of malfunction and was properly corrected. EPA has 

retained the criteria in 60.2120(a)(1)-(9) and 60.2685(a)(1)-(9).

We agree that the notification requirements should be streamlined, and after consideration of the 

notification and reporting requirements, EPA is revising 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 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 report or excess emission report due after the 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-HQ-OAR-2003-0119-2606-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. Failures that are caused in part by poor maintenance or careless 

operation are not malfunctions. [Text at §60.2] At §60.2170(a) of subpart CCCC and 

§60.2735(a) of subpart DDDD, it seems that EPA has defined a 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 

system 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 subpart 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 monitoring system malfunctions or out-of-control periods, or required monitoring system 

QA/QC activities. Except for periods of monitoring system malfunctions or out-of-control 

periods, repairs associated with monitoring system 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 monitoring 
151

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, it 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 over using 

the affirmative defense provisions for very minor types of events. ACC would like clarification 

if this understanding is correct. In addition as it 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 types 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 defense 

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 malfunctions 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 

§60.2770(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 accurately 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 malfunctions 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 Grove Cement Company
152

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 26

Comment: 60.2685 – The affirmative defense provisions specified do not appear to 

acknowledge the existence of bypass systems in some cement kilns. As described 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 not 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 the 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. Additionally, 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 alkali 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-HQ-OAR-2003-0119-2630-A2

Comment Excerpt Number: 3

Comment: Affirmative defense for malfunctions. EPA should review the exposure estimates 

to recognize that significant air emissions are likely to result from malfunctioning equipment as 

well. Although some malfunctions may be unpredictable and sudden, 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, providing facilities with a way to avoid penalties that could 

provide incentives to reduce malfunctions. The EPA needs to close this loophole as standards 

need to limit emissions during all phases of operation, including when equipment fails to work 
153

properly. Assessing 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 inclusion 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 in 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 scope 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 document 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, Partnership for Policy Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 21

Comment: EPA seeks comment on retention of the malfunction affirmative defense outlined in 

the final rule. Sierra Club commented on this issue 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 requirements and why the approach is reasonable in the rulemaking record, 

including this response to comments.
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2G01. Revisions to the CO Monitoring Requirements

Commenter Name: Kerry Kelly

Commenter Affiliation: Waste Management (WM)

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 11

Comment: WTI Supports the Agency’s CO CEM Option for 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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 41

Comment: We Support Changes to CO and O2 Monitoring.

Response: EPA is maintaining this provision in the final rule.

2G02. Optional CO CEMS provisions

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 8

Comment: While EPA contends that CISWI units can meet the 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 steadystate conditions. EPA itself recognized in the Boiler MACT that “CEM data show that CO levels 

have a higher degree of variability than other pollutants” (76 Fed. Reg. 15646). It doesn’t matter 

whether these units are being fired with solid fuel or solid waste – the equipment involved 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 avoid 
155

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 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 the 

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 rule. 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 included as part of the emission limit calculations, are 

adequate to address the commenter's concerns. Note that the emission limit calculation 

methodology is not being reconsidered, and comments on this issue will not be addressed. 

Commenter Name: Darryl Sanderson

Commenter Affiliation: The Dow Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 14

Comment: In the previous comment, Dow pointed out instances in which EPA overlooked 

additional areas where the oxygen correction factor and some CMS monitoring would be 

problematic during startup and shutdown. However, the types of design and operation in this 

CISWI category are so varied that changes to the definition of CEMS data during startup and 

shutdown 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 any purpose and during which you comply 

with the emission standards by minimizing emissions and reaching normal operations in as 

timely a manner as practicable for the source.

Shutdown means the cessation of operation of the affected facility for any purpose 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 CISWI 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 startup and shutdown" 

have been revised since proposal. 
156

Commenter Name: Darryl Sanderson

Commenter Affiliation: The Dow Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 13

Comment: At a minimum, references to this definition would also need to be added to the 

various sections in each subpart where CEMS and/or CMS data is specified, such as §60.2110, 

§60.2115, §60.2145, and §60.2165 of subpart CCCC and §60.2675, §60.2680, §60.2710, and 

§60.2730 of subpart DDDD, so that units would not experience 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; however, 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 operation of energy recovery CISWI unit 

startup from a cold start and the first day hour of operation following the cessation of waste 

material being fed to the energy recovery CISWI unit during a unit shutdown.

Response: We have revised the monitoring requirements 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-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 13

Comment: CRWI believes a similar issue exists for other types of monitoring system as exists 

for the situation EPA is trying to correct by waiving the oxygen correction factor for CO CEMS

during startup and shutdown periods. For example, § 60.2675(f) [and the analogous §§ 

60.2110(f)] and 60.2730(e) [and the analogous § 60.2165(e)] require a 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 CISWI unit could never startup or 

shutdown without having to transition above or below this operating limit. In addition, CO 

CEMS are not the only CEMS that would use an oxygen 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 problem 
157

would be to expand the definition of "CEMS data during startup and shutdown" in § 60.2265 as 

follows:

CEMS and CMS data during startup and shutdown means carbon monoxide CEMS and CMS

data collected during the first 4 hours of operation of energy recovery CISWI unit startup from a 

cold start and the hour of operation following the cessation of waste material being 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 sections 

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-HQ-OAR-2003-0119-2571-A1 excerpt 13 and 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. 

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 30

Comment: In the proposed CISWI NSPS and Emission Guidelines, EPA did not provide 

separate treatment of startup and shutdown periods. The proposed CISWI rule stated that the 

emission 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 the 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 percent 

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.12
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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 shutdown. 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 term 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 operating 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 periods 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 evaluated whether it is appropriate to have the 

same standards apply during startup and shutdown as applied to normal operations, and as the 

rule is structured, well operated and controlled units should be able to meet the standards at all 

times.” 76 Fed. Reg. 15738.

In presenting this petition it is important that we distinguish between EPA’s definitions of 

“startup period” and “shutdown” contained in the CISWI rule13 which exclude all periods when 

waste is burning, and the broader scope of startup and shutdown which includes those periods of 

transition when firing auxiliary fuel and/or solid waste when the unit is operating under nonsteady 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 variability 

of emissions and for which EPA has no emission data.

[Footnotes:

11EPA 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 the 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 SSM 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 for the best performing sources. Therefore, some accommodation for SSM 

periods must be provided.

12 Rulemaking dockets EPA-HQ-OAR-2007-0877 and EPA-HQ-OAR-2002-0051
159

13 40 CFR 60.2265 and 40 CFR 60.2875 definitions: Startup period means the period of time 

between the activation of the system and the first 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-HQ-OAR-2003-0119-2571-A1 excerpt 13 and 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. See the "CISWI 

Reconsideration Issues" memorandum in the CISWI docket for further discussion of work 

practices for periods of startup and shutdown.

Commenter Name: Satish Sheth

Commenter Affiliation: Cemex USA

Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2

Comment Excerpt Number: 16

Comment: CEMEX feels strongly that the emissions standards should 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 introduction 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 balanced 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. 

Response: See the response to EPA-HQ-OAR-2003-0119-2571-A1 excerpt 13 and 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. See the "CISWI 

Reconsideration Issues" memorandum in the CISWI docket for further discussion of work 

practices for periods of startup and shutdown.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 4

Comment: Another element of the rule contributing to a lack of achievability is the lack of 

separate standards for periods of startup and shutdown. In the Boiler MACT, 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 no 
160

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 emissions 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 data 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 Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 19

Comment: Separate from these comments, Eastman Chemical Company is resubmitting its 

2009 Boiler 18 CEMS data, this time including the hourly average oxygen content and an 

evaluation of the effect of not correcting for oxygen 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 effect 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 on 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 percentile 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-HQ-OAR2003-0119-2498) 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 rolling 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 incorporate as much variability as can be 

technically justified to allow the greatest flexibility. Therefore, we believe the UL is more 

appropriate in this case. Eastman provides further detailed analyses regarding this approach in 

its comments on this Proposed Rule, and ACC supports this analysis. Regardless, ACC and its 

members continue to believe it will prove problematic to include CO emissions during startups 

and shutdowns in compliance determinations. This is due to the unpredictability of startup 

emissions and the unpredictable number of startups during a 30 day operating period, even when 

following manufacturers’ recommendations or other accepted boiler operating procedures. Of 
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primary importance, boilers that burn solid waste do so along with traditional 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 work 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 recommend 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 may 

not legally require compliance with § 129 standards if the unit is not burning solid waste. 

Sources should have the option to comply with §112 during periods when solid wastes are not in 

the combustion unit, including these startup and shutdown 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 the 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 shutdown. 

See the preamble to the final rule for a discussion of the oxygen correction waiver during periods 

of startup and shutdown for sources demonstrating compliance with a CEMS and the 

incorporation of additional CO emissions data for the best-performing ERU in the solid-coal 

ERU subcategory. 

Commenter Name: Ted Michaels

Commenter Affiliation: Energy Recovery Council (ERC)

Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 12

Comment: Even if EPA has the authority, its proposal to use 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 during 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 commenter 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 additional data 

were necessary, it could have provided that data during the comment period and the Agency 

would have incorporated the data into its calculation to the extent possible. EPA continues to 

believe that the oxygen correction waiver is sufficient to allow sources to demonstrate 
162

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 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.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 32

Comment: Removing the oxygen correction as EPA has proposed to do in the reconsideration 

rule is not sufficient and does not reflect what CISWI ERUs achieve during startup.

Response: See the preamble to the final rule for a discussion 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 assertion 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 (CIBO)

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

Comment Excerpt Number: 13

Comment: It is also appropriate for EPA to remove the 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 allowing 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 optimum 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 preheaters. 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 is 
163

desired for continuous 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 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. 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 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 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 that 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 O2 trim systems or O2 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 boiler 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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 22

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. 80461) This was an issue that ACC raised 

in its petition for reconsideration. We appreciate and support EPA’s proposal to add flexibility 

and reduce the cost and burden of the continuous oxygen monitoring requirements, as these 

changes allow facilities to utilize existing oxygen trim systems rather than installing CEMS. In 

the March 21, 2011 final rule, EPA included continuous oxygen monitoring as the compliance 

method for ERUs >100 MMBtu/hr, instead of mandating the use of CO CEMS. EPA now 

proposes to amend the oxygen monitoring requirements (76 FR 80515, Dec. 23, 2011) to allow 

for the use of continuous oxygen trim analyzer systems instead of oxygen CEMS. EPA is also 
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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 O2 trim 

control, where the fuel/air ratio is automatically controlled for optimum combustion conditions. 

The sensing location for existing O2 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 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 O2) indications due to inherent leakage across regenerative air preheater seals or 

potential tube leakage in recuperative air preheaters. For those units equipped with existing O2

sensors and O2 trim control systems, flue gas composition at those locations would already be 

used for combustion tuning and control characterization. Therefore, if O2 monitoring is desired 

for continuous compliance under the CISWI rule, sensing O2 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 changes 

are discussed in the following subsections.

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 13.

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 23

Comment: The oxygen analyzer system is defined in §60.2265 and 60.2875 in part as follows: 

Oxygen analyzer system means all equipment required to determine the oxygen content of a gas 

stream and used to monitor oxygen in the boiler flue gas or firebox. The optimum location of the 

sensor or sampling point is dependent on the specific 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 or process heater flue gas, boiler/process heater 

or firebox, or other appropriate intermediate location.

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 13. 

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 24
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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 the 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 trim 

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 rolling 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 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 when 

firing the fuel or fuel mixture utilized during the most recent CO performance test. Operation of 

oxygen trim control systems to meet these requirements shall not be done in a manner which 

compromises furnace safety.

Response: The EPA does not expect that a single fuel fired during a single stack test would be 

representative for setting emissions limits for 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 source 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 Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 43
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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 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 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 another downstream location. We recommend that this language be modified

as follows to allow latitude in the exact location of the sensing point:

“Oxygen analyzer system means all equipment required to determine the oxygen content of a gas 

stream and used to monitor oxygen in the boiler flue gas, boiler or firebox, or other appropriate 

intermediate location. ...”

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 13. 

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 42

Comment: Many existing boilers and process heaters utilize flue gas oxygen analyzers for 

indication, alarm, and O2 trim control, where the fuel/air ratio is automatically controlled for 

optimum combustion conditions. For many types of combustion units, O2 monitoring occurs 

upstream of potential air inleakage points like preheaters, thus minimizing the potential for 

erroneous measurements. For these units already equipped with existing O2 analyzer systems 

and/or O2 trim systems, monitoring data from these locations are currently being used both for 

boiler tuning and combustion control. Therefore, if O2 monitoring is provided as an alternative to 

demonstrate continuous compliance with CO limits under the Boiler MACT rule, it would be 

logical and technically feasible for these facilities to continue monitoring O2 at that current 

location. These O2 analyzers are not compliance CEMS and therefore do not meet PS-3 

requirements. However, they are calibrated 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 

Specifications, 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 O2 analyzer 

systems is to:
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Allow the continued use of existing O2 analyzers

Allow the installation of new O2 analyzers of appropriate design at optimal locations, and

Allow periodic sensor calibration as an alternative to certification and as a way to ensure 

accurate O2 monitoring.

Boiler combustion and optimization experts indicate that most O2 trim systems rely on O2

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 automated trim system.

While O2 trim systems are viable for combustion control, there are limitations to its applicability 

that are especially pertinent for multi-fuel and biomass boilers.

O2 trim systems are best suited when the boiler predominantly burns only one type of fuel.

Feedback control loops in O2 trim systems are generally developed only for the predominant 

fuel. This limits its applicability for multi-fuel units.

O2 trim systems are used as a means of “fine” control and are sometimes ineffective when there 

are frequent changes in fuel quality and mix. This 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, this 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 O2 monitoring approach (install, calibrate, and monitor O2 without the requirement to 

certify) or the use of an O2 trim system.

Response: The EPA agrees with the commenter and verifies that certified O2 CEMS, O2 

monitors, and O2 trim systems are permissible compliance systems for the short term compliance 

option in this rule. 

Commenter Name: Neil Gorley

Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-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 can
168

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 protect 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 erred 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 for installed diluent CEMS. In this rule, EPA is allowing 

PS-3 certified O2 CEMS, stand alone O2 monitors, or O2 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 O2 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 developed with O2 monitors to assure 

appropriate combustion and compliance with the rule.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 44

Comment: We recommend the following changes to the regulatory 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 average O2 concentration.
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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 boiler 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. Therefore, 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 operating 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 Environmental Protection (DEP)

Document Control Number: EPA-HQ-OAR-2003-0119-2641-A2

Comment Excerpt Number: 6

Comment: Maine DEP does not support the requirement to conduct stack testing at full load 

conditions. Full load conditions in Maine usually occur during the winter, which can be unsafe 

for stack testing teams to test. Additionally, some of 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 difficult to conduct a stack test at "full load." Maine DEP

believes it is more appropriate to require stack testing at normal operating load.

Response: The EPA recognizes the safety and operational 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 (low O2) 

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-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 14

Comment: EPA also proposes 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 

section 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 alone
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supported such a determination with record evidence. EPA 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 that 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 O2 CEMS, stand alone O2 monitors, or O2

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 O2

monitoring systems installed in other monitoring 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 O2 monitors to assure appropriate combustion and compliance with the rule. O2

and CO trim systems 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 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. The EPA has a long history of improving source emissions 

through the use of parametric monitoring. 

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 12

Comment: As set forth in comments CIBO’s Petition for 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 continuous 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.
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2J. Incorporating Fuel Variability Into Emission Limit Calculations

Commenter Name: Clint Gill

Commenter Affiliation: ConocoPhillips Company

Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2

Comment Excerpt Number: 7

Comment: The SRI emission standards fail to account for the range of wastes burned in SRIs

and the fact that different waste materials exhibit profoundly different emissions characteristics. 

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 often with a variety of different waste streams. 

As a result, fuel variability data would only account for a fraction of the materials being input 

into the unit. In lieu of fuel variability, EPA has considered total material feed variability for 

establishing limits. In order to complete this analysis, material analyses for all materials being 

fed to a unit must be available. We only have such data 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, however, 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 Recovery Council (ERC)

Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 3

Comment: EPA should employ fuel variability factors to revise the 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 to 

the best performing units. A good example is the CISWI hydrogen chloride standard, where best 

performing unit tests show emissions much less than one part per million. Such a low emission 

could only be achieved with very low chlorine inputs not reflective 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 content 
172

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 contaminants?

A fuel variability approach is required if units burning waste biomass are to be able to achieve 

emission limits. In the absence of achievable standards biomass boiler operators will have no 

choice but to seek other fuel sources to avoid CISWI MACT. EPA’s stated intent is not to 

require fuel switching to meet a standard (75 FR 32019), but, however unintended, that will be 

the effect.

Response: See response to EPA-HQ-OAR-2003-0119-2584-A2 excerpt 7 on fuel variability. 

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 3

Comment: Additional consideration of fuel and waste feed 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-HQ-OAR-2003-0119-2584-A2 excerpt 7 on fuel variability.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 26

Comment: The effect of waste composition. In the final rule, the selected best performing 

CISWI units frequently combusted “solid wastes” in small proportion to total inputs, or burned 

wastes that did not contain significant amounts of the constituents that would cause emissions 

(e.g., chlorine in biomass generating hydrogen chloride emissions). As a result, stringent 

emission limits for hydrogen chloride, cadmium, lead, mercury and dioxin/furan were driven 

more by waste characteristics and composition than the control technology employed at the best 

performing units. Stand-alone biomass power plants (as opposed to ERUs located at 

manufacturing facilities) are economically driven to burn large proportions of “solid wastes” 

such as urban wood and 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), geographic 
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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-HQ-OAR-2003-0119-2584-A2 excerpt 7 on fuel variability. 

Concerning the other suggestions, we did not take comment on the MACT methodology in the 

reconsideration proposal so we are not responding to comments on that issue. In any case, EPA 

does not have the information the commenter suggests should be used in determining variability.

Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 10

Comment: EPA takes the result of its 99th percentile UPL 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 constitutes 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 fuel variability of the best units 

showed that the variability was too large, but because it was, in EPA’s view, too small. EPA 

acknowledged that, for solid-fuel units, the variability in the amount of a pollutant in the fuel 

would be reflected in the emissions performance of the units but decided that “[f]or existing and 

new liquid fuel units, the fuels making up the best performing units demonstrated less variability 

in their composition and type, and there were a smaller pool of available test runs. EPA 

determined that an additional fuel variability factor was necessary in these cases.” EPA’s added 

emission factor makes only a slight (5 percent) difference in that case, but, if applied to solid 

fuel-fired units, would increase the standard by an order of magnitude.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 Pollutants – Major Source, November, 2011 (“MACT Floor 

Memo”) Appendix C-4-(a)(i). p. 7.]

Response: See response to EPA-HQ-OAR-2003-0119-2584-A2 excerpt 7 on fuel variability. In 

addition, we note that this comment appears to address actions taken in the boiler NESHAP, not 

this final CISWI rule.

Commenter Name: Neil Gorley

Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 5
174

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 achieved in practice” by 

the best controlled unit. 42 U.S.C. § 7429(a)(2). For existing units, standards “shall not be less 

stringent than the average emissions limitation achieved by the best performing” twelve percent 

of units. Id. The emissions standards must 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 

evidence. Id. at 881 (quoting Cement Kiln Recycling Coal. v. E.P.A., 255 F.3d 855, 865 (D.C. 

Cir. 2001)) (EPA must point to “actual variability data” indicating “that the best performing 

sources ever experience a wide range of variability at all.”). As pointed 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 aggravate 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 variability, 

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 commenter 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 available 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 variability adjustments are 

necessary. 

Commenter Name: Stephen R. Gossett, Senior Environmental Associate

Commenter Affiliation: Eastman Chemical Company

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

Comment Excerpt Number: 4

Comment: Eastman is providing data so that Fuel Variability 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 (FVFs) 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 would 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 

test data. Commenters urged the EPA to incorporate fuel variability into the emission limit 
175

calculations as was done in the boiler NESHAP. Petitioners have since claimed that the EPA did 

not adequately address comments regarding this issue. In today’s proposal, we are providing 

further clarification on our response to this issue.

In the preamble to the final CISWI rule, we explained the methodology used to establish the final 

emission limits, which relied almost exclusively on direct measurements. Commercial and 

Industrial Solid Waste Incineration units by definition are burning wastes, usually in 

combination with various non-waste fuels, and often with a variety of different waste streams. As 

a result, fuel variability data would only account for a variability found in a fraction of the 

materials being input into the unit. We have, in fact, considered total material feed variability in 

establishing limits for Hg for waste burning kilns (76 FR 15727). To enable this analysis, we had 

to rely on data available from sources that provided materials analysis for all materials being 

fed into Portland cement kilns over a 30-day span. We did not, and do not still, have such data 

available for other pollutants and other types of CISWI units. Therefore, we are not proposing 

the use of fuel variability in our emission limit methodology, except as noted above. We are 

requesting comments and supporting data that would allow us to consider an approach similar 

to the waste-burning kiln Hg limits for other pollutants and subcategories.

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 that EPA 

should remove the PCA Combination Boiler #2 from the CISWI database. When EPA does 

this, Eastman’s ERUs will become top performers in the MACT floor determinations for 

particulate matter, cadmium, and lead. Eastman’s Boiler 20 is already the top performer in the 

floor determination for sulfur dioxide (SO2) and EPA could have already developed a FVF for 

SO2. 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 obtained since the previous comments in 2010. 

Eastman’s ERUs (Boilers 18, 19, and 20) burn bituminous coal along with, at times, a nonhazardous secondary material (industrial sludge) and we are also submitting historical data on 

the pollutant levels in this material as well.

Found also in Attachment 1 is a document we have prepared to determine FVFs for the units 

using the procedure EPA developed in the Boiler and Process Heater MACT (see Revised 

MACT Floor Analysis (2011) dated January 4, 201, starting on page 15).

We note EPA specifically requests data that would allow use of an approach similar to the wasteburning kiln Hg limits. The data we have provided could also serve EPA’s purposes should they 

choose to apply this approach.

Response: We thank the commenter for providing 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 emission 
176

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 sources 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-HQ-OAR-2003-0119-2584-A2 excerpt 7, fuel variability data would only 

account 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. 

Commenter Name: Stephen R. Gossett, Senior Environmental Associate

Commenter Affiliation: Eastman Chemical Company

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

Comment Excerpt Number: 5

Comment: Following the procedure EPA developed for the Boiler MACT, 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 Boilers 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 Conducted 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 table].

For SO2, Eastman has submitted as part of the ICR Phase II Testing program 30 days of SO2

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 period. 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 method 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 are 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 routine 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: [See Submittal for table summarizing ratios of historical data to paired 

data].

The FVFs we have determined using this methodology are shown below [FVF for SO2 = 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 day 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-HQ-OAR-2003-0119-2569-A2 excerpt 4.

2K. Review of D/F Data and Non-Detect Methodology Using Three Times 

Detection Level

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 14
178

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 specific concentration level, a few terms need to be defined. When Method 

301 was initially promulgated (58 Fed. Reg. 27,338, June 13, 1991), it defined the practical 

quantification limit (PQL) as the lowest limit above which quantitative results may be obtained 

with an acceptable degree of confidence. The Method defines PQL as 10 times the standard 

deviation at a blank level. This PQL corresponds to an uncertainty of ±30% at a 99% confidence 

limit. The method goes on to say that the PQL will be used to establish the lower limit of the test 

method. In 2011 (76 Fed. Reg. 28,664, May 18, 2011), EPA revised this 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, December 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) or 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 that 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., according 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 including 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 32nd 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 uncertainty 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 when this change was proposed. Even the 1991 version of 
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Method 301 falls short of having a central estimate of ±30% uncertainty (central estimate –

±42%, lower estimate– ±30%, and upper estimate – ±57%). To get to a ±30% central estimate at 

99% confidence comparable to a PQL, one has to go to 258 pg TEQ/dscm. This is remarkably 

close to the 0.27 ng TEQ/dscm as estimated from the 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 believes 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 for 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 performing units to develop representative detection 

levels (RDLs) for each pollutant. This note describes the process used to calculate three times 

the RDL and compare that value with the calculated MACT floor limit. The lowest calculated 

dioxin/furan TEQ emission limit for any new or existing CISWI unit in any subcategory in the 

final rule is 0.0029 ng/dscm at 7% O2 for the waste burning kiln subcategory. For waste burning 

kilns, the rule specifies collection of a minimum volume of 4 dry standard cubic meters which 

corresponds to 0.012 ng/dscm @ 7% O2 (e.g. 0.0029*4 = 0.012ng/dscm @ 7% O2) which is less 

than the estimated three times RDL of 0.075 ng/dscm@ 7% O2. 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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 10

Comment: EPA must rework its data on Dioxin/Furans (D/F): In response to EPA's request for 

comment on the revised limit for D/F, PCA remains 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 our 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 

results presented as follows.

Analysis points:

• In order to establish meaningful quantitative emissions limits for compliance, the uncertainty at 

the 99% confidence level must not exceed 30% for measurements at the limit.
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• 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 provided 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 red 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 emissions rate, 

when converted to a regulatory limit, becomes 258 pg TEQ/dscm at 7% 02.

As documented by the graphs, the analysis of a significant amount of actual D/F stack test data 

indicates that the lowest emissions rate limit that can be justified from the 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 demonstrating 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 additionally 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 existing and new waste burning kilns.

Response: For response on procedures for setting the RMDL please see EPA-HQ-OAR-2003-

0119-2572-A1, excerpt No. 14.

Commenter Name: Satish Sheth

Commenter Affiliation: Cemex USA

Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2

Comment Excerpt Number: 19

Comment: The emissions limits for D/F for kilns contained in the December 23, 2011 Federal 

Register are below a level that can be measured with an acceptable level of certainty. PCA’s

comments address this concern in more detail. CEMEX believes that the emissions rate of 

0.258ng TEQ/dscm, corrected to 7% O2 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 concerned that 

anything lower cannot be measured with reasonable certainty. 
181

Response: For response on procedures for setting the RMDL please see EPA-HQ-OAR-2003-

0119-2572-A1, excerpt No. 14.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 5

Comment: Although EPA has stated its intention to develop standards that are at least three 

times the detection 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-HQ-OAR-2003-

0119-2572-A1, excerpt No. 14.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 34

Comment: EPA Has Improperly Determined the Representative Detection Limit for Floor 

Setting 

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 the 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 EPA’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 needs to be 

modified.
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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 sample 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 variability 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. The 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 the 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 issues 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 will 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-HQ-OAR-2003-0119-2572-

A1, excerpt No. 14.

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, etc.) to be relatively minor (3 to 

5%) in comparison to that for the sample analysis.

Commenter Name: Rex Jameson

Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2642-A2

Comment Excerpt Number: 3

Comment: Section I(C)(9) of the preamble of the proposed rule (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 that 
183

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 found 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 

effects 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. 49:399-410 

Response: For response on procedures for setting the RMDL please see EPA-HQ-OAR-2003-

0119-2572-A1, excerpt No. 14.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 35

Comment: In setting limits under this rule, EPA has attempted to ensure that they are not set at 

less than 3 times a “representative detection limit” or RDL.[ 76 Fed. Reg. 80463] Therefore, 

EPA has not set out procedures for handling non-detect 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 associated 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 rule 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 

demonstrate 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 obtain 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-HQ-OAR-2003-0119-2642-A2

Comment Excerpt Number: 4

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 analysis 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 existing sources is higher than its 

counterpart for new sources in Table 7 to Subpart CCCC of Part 60 while the TEQ weighted 

limit is the same for both new and existing sources. Though this seems counter intuitive, there is 

an explanation for the existing source total dioxin/furan limit. The limits in Tables 7 and 8 come 

from a consistent approach for handling data that include results below the detection limit as 

described in the Note included in the Docket entitled "Data and procedure for handling below 

detection level data in analyzing various pollutant 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 the 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 resulted 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-HQ-OAR-2003-0119-2605-A1

Comment Excerpt Number: 21

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, EPA 
185

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 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. 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 1 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 compliance report specified in §60.59b(f) or in the 

annual report specified in §60.59b(g), as applicable, prior to implementing the averaging plan. 

The designated facilities being included in the averaging plan may be redesignated each calendar 

year. Partial year redesignation is allowable with State approval. (iii) To implement the 

emissions averaging plan, the average daily (24-hour) nitrogen oxides emission 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 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)) 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 excluded. 

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 subject 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 identifies 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 subpart Cb.

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 25

Comment: In its petition for reconsideration, ACC requested 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 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 (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. 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: (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 1 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 compliance report specified in §60.59b(f) or in the annual report specified in 

§60.59b(g), as applicable, prior to implementing the averaging plan. The designated facilities 

being included in the averaging plan may be redesignated each calendar year. Partial year 
187

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 for 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 

numerical 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 emission standards. EPA has 

all the latitude it needs to allow emissions averaging across all units at a given facility that are 

subject to a given Subpart, so long as units are regulated with an applicable numeric emission 

limit. We suggest EPA follow the HON’s provisions (see §63.150(e)) by setting up debit and 

credit equations to track twelve month moving average emissions. 

Response: The commenter identifies the one instance in a 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 subpart Cb.

Commenter Name: Stephen R. Gossett

Commenter Affiliation: Eastman Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2640-A2

Comment Excerpt Number: 8

Comment: Eastman has three CISWI units and could conceivably 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 1 
188

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 compliance report specified in §60.59b(f) or in the annual report 

specified in §60.59b(g), as applicable, prior to implementing the averaging plan. The designated 

facilities being included in the averaging plan may be redesignated each calendar year. Partial 

year redesignation is allowable with State approval. 

(iii) To implement the emissions averaging plan, the average daily (24-hour) nitrogen oxides 

emission 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 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 

19425) 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 allowed 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 suggest EPA follow the HON’s provisions (see §63.150(e)) by setting up debit and credit 

equations to track twelve month moving average emissions. 

Response: The commenter identifies the one instance in a 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 subpart Cb.

Commenter Name: Neil Gorley

Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 10

Comment: EPA correctly rejects the request by industry for latitude to determine compliance 

by averaging emissions across various CISWI units. As EPA recognizes, such an approach 

would be contrary to the Clean Air Act, because each CISWI unit is a facility. Section 129 

requires EPA to ensure compliance by each facility with emissions limits, not merely reductions 

in the aggregate emissions 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 

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 18

Comment: In the existing rule, EPA establishes a list of 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 says, 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 

for 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 emitting 
190

facilities will have to go through more administrative procedure to establish emission limits than 

other units.

A material balance simply consists of determining the amount of a pollutant entering the 

combustion source in the feed or the maximum allowable amount of a pollutant that could enter 

in the feed, and then assuming that 100% of it is emitted. If a source can use this method for 

some or all of the pollutants, it could greatly simplify continuous compliance as well as the 

complexity and cost of a performance test. Such an 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), 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 amenable 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 limits 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 reason. 

Underlined text is CRWI’s suggested language, while strikethrough text is CRWI’s requested 

deletion:

(a) If you use an air pollution control device other than a wet scrubber, activated carbon 

injection, selective noncatalytic reduction, fabric filter, or an electrostatic precipitator or limit 

emissions in some other manner, including by mass balances balancing under paragraph (b) of 

this section, to comply with the emission limitations under § 60.2670, you must petition the EPA 

Administrator for specific operating limits to be 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) Establish 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 composited 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 less than the charge rate and air flow rate once those limits are established 

during the most recent performance test.

If EPA does not include such provisions in the rule, 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 pollutants 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 precipitators. 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 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. 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 testing.

CAA section 129 (c) states that the EPA "shall ... promulgate regulations requiring the owner or 

operator of each solid waste incineration unit - (1) To monitor emissions from the unit at the 

point at which such emissions are emitted into the ambient air ... and at such other points as 

necessary to protect public health and the environment." Thus, even if the source is able to 

demonstrate that monitoring material inputs is sufficient to assure compliance, the source must 

still condust periodic stack testing. 

Commenter Name: Darryl Sanderson

Commenter Affiliation: The Dow Chemical Company
192

Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 18

Comment: At 76 FR 80464, EPA asks whether there are additional types of control devices 

where they should identify monitoring parameters. In 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 pollutant that could enter in the feed, and then assuming that 100% is 

emitted. If a source can use this method for some or all of the pollutants that we have listed, it 

could greatly simplify continuous compliance as well as the complexity and cost of a 

performance test. Dow believes such an approach would only involve knowing the feed rate 

(charge rate is already a requirement), a periodic analysis of the feed (such as an annual analysis 

as part of the annual performance testing protocol), and a combustion air flow rate. From the 

combustion air flow rate and the relevant emission 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 feeds. Some pollutants would not be amenable 

to this method, such as nitrogen oxides, dioxin/furan, and CO, but the others Dow has listed 

would be. Dow requests that EPA provide such a mechanism in §60.2015 and §60.2680. In 

doing so, EPA could avoid requiring sources to petition for operating limits to be established in a 

performance test, and could also conserve agency resources in reviewing the petitions.

Response: See response to EPA-HQ-OAR-2003-0119-2572-A1 excerpt 18.

Commenter Name: Darryl Sanderson

Commenter Affiliation: The Dow Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 19

Comment: For such a mass balance approach, Dow suggests the following revisions to the 

proposed regulatory text at §60.2680 and 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 you use an air pollution control device other than a wet scrubber, activated carbon 

injection, selective noncatalytic reduction, fabric filter, or an electrostatic precipitator or limit 

emissions in some other manner, including 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 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.
193

(1) Identification of the specific parameters you propose to use as additional operating limits.

(2) A discussion of the relationship between these parameters and emissions of regulated 

pollutants, identifying how emissions of regulated pollutants change with changes in these 

parameters and how limits on these parameters will serve to limit emissions of regulated 

pollutants.

(3) A discussion of how you will establish the upper and/or lower values for these parameters 

which will establish the operating limits on these parameters.

(4) A discussion identifying the methods you will use to measure and the instruments you will 

use to monitor these parameters, as well as the relative accuracy and precision of these methods 

and instruments.

(5) A discussion identifying the frequency and methods for recalibrating the instruments you will 

use for monitoring these parameters.

(b) [Reserved] If you limit an emission of cadmium, hydrogen chloride, lead, mercury, and/or 

sulfur dioxide by using mass balances, you must do the following:

(1) Establish a charge rate of solid waste feed and fuel (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 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 from 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-HQ-OAR-2003-0119-2572-A1 excerpt 18.

Commenter Name: Darryl Sanderson

Commenter Affiliation: The Dow Chemical Company
194

Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 20

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 be to provide regulatory language such as we have provided above so that 

petitions would not be needed.

Response: See response to EPA-HQ-OAR-2003-0119-2572-A1 excerpt 18.

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 17

Comment: Using material balancing or feed stream analysis is 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 standards 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 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 pollutants with annual 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 emissions from the 

unit at the point at which such emissions are emitted into the ambient air ... and at such other 

points as necessary to protect public health and the environment." The EPA is thus constrained 

by the statue in our ability to implement the commenter's proposed monitoring approach. 

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)
195

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 27

Comment: The rule provides only two compliance 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 solid 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 

fluctuations 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 allowable 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 MACT, 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 energy recovery units may be able to comply with a CISWI emission standard without 

installing an air pollution control device or technology to reduce the pollutant concentration in 

the boiler effluent. Such a unit may be able to comply by employing feed controls (e.g., 

minimizing the amount of metals, sulfur, and/or chloride in the fuel/feed). However, if a source 

were to rely on periodic performance tests, it would always run the risk of testing during a period 

of relatively high pollutant concentration in the 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 uncertainty 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-HQ-OAR-2003-0119-2572-A1 excerpt 17. 

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 16

Comment: In its proposal, EPA notes that some petitioners 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 monitoring 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 ‘‘shall . . . promulgate regulations requiring the owner or 

operator of each solid waste incineration unit—

(1) to monitor emissions from the unit at the point at which such emissions are emitted into the 

ambient air (or within the stack, combustion chamber or pollution 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 footing 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 does 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) voltage 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 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 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 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 
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rules that impact national consistency. A source may petition the Administrator to establish 

operating parameters in a manner suggested by the commenter if they choose to do so, however, 

any approvable request would have to include periodic stack testing or other direct measurement 

of emissions. We further note that the rule contains provisions to allow for less frequent testing 

for sources with demonstrated good performance (see Sections §60.2155 and §60.2720). 

Commenter Name: Neil Gorley

Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 16

Comment: EPA is correct to reject industry commenters request to eliminate the requirement of 

emissions monitoring in favor of input monitoring. Such an approach would plainly violate 

section 129(c)(1)’s requirement that sources “monitor emissions . . . at the point at which such 

emissions are emitted.”

Response: We are finalizing emissions monitoring requirements 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-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 19

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 recognized that the court’s Brick MACT decision does not prevent a percent 

reduction standard.

EPA’s discussion of its authority to set percent reduction standards in the Portland Cement 

MACT proposal presented valid policy reasons for establishing such a standard while noting 

EPA’s concern that a court decision, Sierra Club v. EPA, 167 F.3d 658 (D.C. Cir. 2007) (Brick 

MACT), may prevent the Agency from setting such standards. Id. Despite EPA’s concerns, 

however, the Agency proceeded to establish a percent

reduction standard in the final Portland Cement rule for SO2, 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.
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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 section 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 Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 20

Comment: Even though EPA disavowed a percent reduction standard in the Portland Cement 

MACT for some pollutants (75 Fed. Reg. at 55,003) it still set such standards for SO2, 

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 binding on the Agency. 74 Fed. Reg. 21,136, 21,149, 

fn. 20 (May 6, 2009). ("The issue of whether best performers can be based on source’s removal 

efficiency was not presented in Brick MACT, or any of the other decided cases.")

CRWI agrees that this particular interpretation of Brick MACT is not binding on the Agency. Not 

only is it dicta, the Court’s decision does not signify "that best performers are those emitting the 

least HAP." 74 Fed. Reg. at 21,149. This erroneous interpretation is based on a misreading of a 

parenthetical statement in the court’s decision that says: ‘‘section [112 (d)(3)] requires floors 

based on emission levels actually achieved by best 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.
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Brick MACT, supra, at 880-81. Consequently, the Brick MACT court was ruling that a prior case, 

Cement Kiln Recycling Coalition v. EPA, 255 F.3d. 855, 861 (D.C. Cir. 2001) ("Cement Kiln") 

already held that EPA was required to set emission 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 bestperforming 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 actually achieve by claiming that floors must be achievable by all sources using 

MACT technology.

Cement Kiln at 861. As is readily apparent, the court never stated that the statute requires EPA to 

set floor standards based on lowest emissions. Instead, it stated that EPA cannot base floor 

standards on what it believes is achievable by all sources. This conclusion is verified by the 

court’s discussion immediately after this portion of the opinion:

This interpretation is required by our decisions in Sierra Club v. EPA, 334 U.S. App. D.C. 421, 

167 F.3d 658 (D.C. Cir. 1999), and National Lime II, 344 U.S. App. D.C. 97, 233 F.3d 625. In 

Sierra Club, we held that CAA section 7429(a)(2), which (in language 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 12 percent of units." 

* * * * * While acknowledging that EPA has authority to devise the means of deriving this 

estimate, we made clear that the method the Agency selects must "allow a reasonable inference 

as to the performance of the top 12 percent of units." Id. at 663. We emphasized that EPA must 

show not only that it believes its methodology provides an accurate picture of the relevant 

sources' actual performance, but also why its methodology yields the required estimate. Id. In 

evaluating EPA's new-source floors in particular, which 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 emission 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 reasonably estimate the performance of the relevant best performing 

plants." 233 F.3d at 632 (citing Sierra Club, 167 F.3d at 665).

Cement Kiln, at 861-862 (emphasis supplied). Consequently, nowhere in 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 Cement Kiln case and inconsistent with Cement Kiln’s holding that EPA is free 
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to use whatever method it desires to set floor standards as long as it results in reasonable 

estimates of performance.

Furthermore, EPA has never interpreted Cement Kiln to require a lowest emissions approach. In 

the HWC MACT rule, promulgated four years after the Cement Kiln decision, EPA stated that 

lowest emissions do not always reflect best performers and recognized that such an approach can 

lead to "the nonsensical result of uncontrolled units 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. Cir. 2011), Judge 

Brown stated:

Sierra Club [Brick MACT] relied on our holding in National Lime Ass’n v. EPA, 233 F.3d 625, 

640 (D.C. Cir. 2000), that the CAA does not require "that [the] achievement . . . be the product 

of a specific intent." But I do not read National Lime to have held that the achievement need not 

be the product of any intent. Instead, context reveals that the National Lime Court was referring 

to emissions of one sort that are "controlled only 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 count 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, therefore, urges EPA to avoid perpetuating this "self-inflicted" wound, and to avoid 

putting too much credence in the Brick MACT decision, particularly when the Agency 

understands that the language it relies upon is dicta.

Response: EPA provides its bases for not establishing percent reduction standards above and in 

the preamble to the proposed rule. See the response to EPA-HQ-OAR-2003-0119-2572-A1 

excerpt 19.

In addition, we note that the commenter incorrectly states that EPA established a percent 

reduction standard in the Portland cement NESHAP. The 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 Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.
201

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 28

Comment: Alternative percent reduction standard for hydrogen chloride, sulfur dioxide, and 

mercury. EPA’s final emission standards are set as 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 demonstrated 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-HQ-OAR-2003-0119-2572-A1 

excerpt 19. Further, we note that the commenter’s suggested approach seems to directly conflict 

with the requirement in section 129(a)(2) to the extent it does not appear to require the Agency to 

consider the performance of the best performing source or sources when establishing the limits.

Commenter Name: Neil Gorley

Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 11

Comment: EPA is also correct to reject requests by industry commenters to require percent 

reductions in emissions in lieu of setting emissions limits. Standards based on percentage 

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 reduction achieved by the best controlled 

units, because there is no way to calculate a baseline, i.e., the emissions that they would release 

without any control measures. Control measures are defined broadly by the Act and construed 

broadly by the courts. There is 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 this rule.
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2P. Providing Parametric Monitoring Provisions for Additional Control 

Devices

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 28

Comment: EPA, in response to ACC’s petition for 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 SO2 emission rate and a SO2 continuous monitoring system 

correlated to HCl emissions. Dry sorbent injection or spray dryer absorbers (using hydrated lime) 

are two technologies that could be used to reduce HCl and/or SO2 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 SO2 continuous monitoring. In the Boiler MACT, EPA 

solicits comment on petitioners’ request to allow use of SO2 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 requirements, we 

believe that a reasonable approach would be to allow for the use of SO2 CEMS provided that the 

source demonstrates a correlation between SO2 control and control of other acid gases emitted 

from each specific unit that chooses to use SO2 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 SO2, and, therefore, demonstration of SO2 control using CEMS would provide 

assurance that the acid gas HAP are being controlled. Therefore, the EPA is soliciting comment 

on the use of SO2 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 

EPA’s conclusions that acid gas HAP control efficiencies would be better than SO2 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 SO2 CEMS to 

demonstrate continuous compliance. EPA drew this same conclusion in the recently finalized 

Utility MACT and set alternative SO2 emission limits. In this case, we agree that there is not 

enough information to set an alternative SO2 limit that correlates with the HCl emission standard, 

such as was done in Utility MACT. One key difference is that the Utility MACT HCl emission 

limit (0.002 lb/mmBtu) is about ten times lower than the proposed Boiler MACT HCl limit 

(0.022 lb/MMBtu) for solid-fuel boilers. ACC recommends that in both the Boiler MACT and 

the CISWI rule, SO2 continuous monitoring be allowed as a continuous parametric monitoring 

system (CPMS), and that the maximum 30 day rolling average SO2 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 SO2
203

CEMS be allowed to select either Part 60 or Part 75 for compliance procedures as many of the 

existing SO2 CEMS already use Part 75 quality assurance 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 to add in monitoring of minimum sorbent

injection rate for these units. While we did take comment on the use of a SO2 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 Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 5

Comment: We support EPA’s position that HCl CEMS are not required if an acid gas scrubber 

is used to comply, however we encourage the expansion of this provision to include dry acid gas 

scrubbers, so long as surrogate operating parameter limits are established during performance 

testing and monitored continuously in lieu of directly 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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 14

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 

scrubbers. We are amending the language in the final rule to include this exemption.
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Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 28

Comment: Parametric monitoring provisions are needed for acid gas controls including dry 

sorbent injection. Also, an option to use SO2 emission rate and a SO2 continuous monitoring 

system correlated to HCl emissions is needed. In the Proposed 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 SO2 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 SO2 continuous monitoring. EPA 

solicits comment on petitioners’ request to allow use of SO2 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 requirements, we 

believe that a reasonable approach would be to allow for the use of SO2 CEMS provided that the 

source demonstrates a correlation between SO2 control and control of other acid gases emitted 

from each specific unit that chooses to use SO2 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 SO2, and, therefore, demonstration of SO2 control using CEMS would provide 

assurance that the acid gas HAP are being controlled. Therefore, the EPA is soliciting comment 

on the use of SO2 CEMS for demonstrating continuous compliance with the HCl 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 SO2 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 SO2 CEMS to demonstrate continuous compliance. 

EPA drew this same conclusion in the recently finalized Utility MACT and set alternative SO2

emission limits. In this case, CIBO agrees there is not enough information to set an alternative 

SO2 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 SO2 continuous 

monitoring be allowed as a continuous parametric monitoring system (CPMS) and that the 

maximum 30 day rolling average SO2 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 

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 SO2 CEMS be allowed to 

select either Part 60 or Part 75 for compliance procedures as many of the existing SO2 CEMS

already use Part 75 quality assurance procedures.

Response: For response, see DCN EPA-HQ-OAR-2003-0119-2606-A1, Excerpt No. 28. 
205

Commenter Name: Stephen R. Gossett

Commenter Affiliation: Eastman Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2640-A2

Comment Excerpt Number: 9

Comment: Parametric monitoring provisions are needed for acid gas controls including 

dry sorbent injection. Also, an option to use SO2 emission rate and a SO2 continuous 

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 

sorbent 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 SO2 emissions. We suggest a similar approach as in the 

Boiler 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 SO2 continuous 

monitoring. On page 80610 of the reconsideration proposal for the Boiler MACT, EPA solicits 

comment on petitioners’ request to allow use of SO2 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 requirements, we believe 

that a reasonable approach would be to allow for the use of SO2 CEMS provided that the source 

demonstrates a correlation between SO2 control and control of other acid gases emitted from 

each specific unit that chooses to use SO2 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 SO2, and, therefore, demonstration of SO2 control using CEMS would provide 

assurance that the acid gas HAP are being controlled. Therefore, the EPA is soliciting comment 

on the use of SO2 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 

SO2 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 SO2 CEMS

to demonstrate continuous compliance. EPA drew this same conclusion in the recently finalized 

Utility MACT and set alternative SO2 emission limits.

In this case, we agree there is not enough information to set an alternative SO2 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 rule that SO2 continuous monitoring 

be allowed as a continuous parametric monitoring system (CPMS) and that the maximum 30 day 

rolling average SO2 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 technology 
206

including wet scrubber, dry scrubbers, and duct sorbent injection. If this option is incorporated 

into the final rule, we request that the SO2 CEMS be allowed to select either Part 60 or Part 75 

for compliance procedures as many of the existing SO2 CEMS already use Part 75 quality 

assurance procedures.

Response: For response, see DCN EPA-HQ-OAR-2003-0119-2606-A1, Excerpt No. 28. 

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 26

Comment: In the same section for which EPA is requesting comment 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 limitations 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 implementation 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 submitted 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 compliance 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 approvals 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 states, Louisiana, 

had reviewed these plans in great detail and had no issues with them, but the company’s efforts 

to persuade Region VI were largely ignored. Virtually all 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 requirement at §60.2680(a) of subpart DDDD [§60.2115 of subpart 
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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 CCCC], should the administrator fail to provide timely approval. ACC is therefore not 

confident that EPA will be able to efficiently conduct this petition process under CISWI. In this 

case, the facility would have to either fail to comply with the prohibition 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 an 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 after 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 confident 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, 

also 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-HQ-OAR-2003-0119-2571-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 timely 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 mechanism 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 manner, 

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 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, 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 manner has usually been much more evident. We therefore urge EPA to delegate the 

authority to approve these petitions to the states. At a minimum, should EPA not delegate this 

authority, EPA must provide relief by adding an exception to the deadline for conducting 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 

the Administrator (or delegated state authority). Should the deadline to conduct the test no later 

than 180 days after the final compliance date be reached during this petition review process, the 

testing deadline is waived until the petition review process is completed and the reviewing 

authority has established an alternative deadline. Your petition must include the five items ....

Response: For response, see DCN EPA-HQ-OAR-2003-0119-2606-A1, Excerpt No. 26. 

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association

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

Comment Excerpt Number: 12

Comment: EPA should allow sources to petition for the use of 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 employed 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 process for 

alternative parametric monitoring criteria (that will be necessary for alternative APCDs) can be 

burdensome and does not result in timely approval of the operating parameters for the 

technology. We are concerned that this process could thus delay a facility's demonstrations of 
209

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 application 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 required monitoring is infeasible. For response on the approval process for 

monitoring parameter for air pollution control devices not included in the rule, see DCN EPAHQ-OAR-2003-0119-2606-A1, Excerpt No. 26. For response on use of parametric monitoring 

in lieu of HCl CEMS for dry scrubbing systems, see DCN EPA-HQ-OAR-2003-0119-2606-A1, 

Excerpt No. 28. 

Commenter Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 9

Comment: 60.2145(q)(2) – It is unclear why there is a need for the source to conduct a

performance evaluation of the sorbent injection rate monitoring system, except where the sorbent

injection rate is the sole method for demonstrating continuous 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 

removed for sources with CEMs. 60.2165(e) – If a source has NOX 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 

parametric 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-HQ-OAR-2003-0119-2642-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 of another pollutant without any 

corresponding benefit. For example, there are multiple ways to control NOX emissions from a 

cement kiln system. Low NOX burners, staged combustion, raw material mix design and details 

about how an SNCR system are operated all can contribute to changes in NOX 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 reduce emissions of both greenhouse gasses and fine particulate. Similar 

situations arise for both SO2 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 

burden 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-HQ-OAR-2003-0119-2576-A1, Excerpt No. 9. For 

response on the approval process for monitoring parameter for air pollution control devices not 

included in the rule, see DCN EPA-HQ-OAR-2003-0119-2606-A1, Excerpt No. 26. 

Commenter Name: Michael L. Krancer

Commenter Affiliation: Pennsylvania Department of Environmental Protection

Document Control Number: EPA-HQ-OAR-2003-0119-2591-A1

Comment Excerpt Number: 6

Comment: The March 2011 final rule added monitoring parameters for sources that use wet 

scrubbers, electrostatic precipitators, activated carbon sorbent injection, or selective catalytic 

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 type 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 include 

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 established 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-HQ-OAR-2003-0119-2611-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 major 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 Georgia-Pacific and NCASI. This study consisted of installing PM CEMS on multi-fuel 

boilers at two different facilities. During this study, calibration testing was performed for both 

PM CEMS, and a follow-up Relative Response Audit (RRA) was also carried out on both PM 

CEMS. Two different fuel mixtures were burned during the 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 systems 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 reference 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 are not capable of being used as compliance monitors on biomass boilers. The study 

results also show that because the relationship between stack gas PM concentration and 

instrument response varies with fuel mix, in order to develop a parameter which would indicate 

that the source was in compliance with the PM standards, the facility would have to carry out PM 

CPMS calibration tests using every possible fuel 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 results 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 

petroleum coke, wastewater treatment system residuals, recycling process residuals, TDF, and 

various types of biomass.

EPA discusses the reasons why these monitors cannot be feasibly applied to biomass units in the 

preamble to the Boiler MACT rule:

“The EPA agrees that PM CEMS are not demonstrated for biomass units and that significant 

technical concerns exist regarding the technology’s ability to monitor emissions from biomass 

units. The technical concerns include the fact that PM CEMS are calibrated and certified 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 single 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.” 76 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 CEMS, 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 source 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 operate 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 respect 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 very 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 Control Number: EPA-HQ-OAR-2003-0119-2628-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 monitoring 

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 practical 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 representativeness 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 of the final rule preamble.. For a 

response to the comment regarding Section 129(c), the EPA does not expect increased accuracy 

or precision from PM CPMS monitoring, but rather continuous qualitative measure of 
214

compliance with an operating limit, rather than 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-HQ-OAR-2003-0119-2605-A1

Comment Excerpt Number: 34

Comment: PM CEMS are not technically effective across a range of conditions as discussed 

above and are a very expensive method for achieving EPA’s objective of assuring ongoing 

compliance with Boiler MACT and CISWI requirements. Costs14 for the light scattering PM 

CEMS, which is lower operating and maintenance costs vs. the Beta Attenuation technology was 

estimated by EPA contractor data to cost between $103,000 to 133,000 in 2004, with substantial 

annual operating costs as shown below: [See submittal for data table 3 provided by commenter.] 

The above costs are high in and of itself. However, 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 

technology. 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 Office of Air 

Quality Planning and Standards U.S.

Environmental Protection Agency, September 7, 2004.

Response: As discussed in section II.E. of the preamble to the final rule, PM CEMS is one of 

the options available to large ERUs that do not burn biomass. For instance, ERUs with an 

average heat input greater than 250 MMBtu/hr, that burn coal or liquid/gas for fuel, have the 

option of using either PM CEMS or PM CPMS. (However, large ERUs that burn biomass are 

required to install PM CPMS.) ERUs with an average heat input of less than or equal to 250 

MMBtu/hr have the option to measure PM with a PM CEMS, a PM CPMS, or to conduct 

periodic testing, regardless of fuel. If a source feels that one option is not suitable or practical for 

their unit, then the source is 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-HQ-OAR-2003-0119-2605-A1

Comment Excerpt Number: 35

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) through (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 is 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 

testing 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, particulate emissions on a 

lb/MMBTU basis would be lower than the stack test. If all systems that were operating during 

the stack test continue to operate properly during normal 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-HQ-OAR-2003-0119-2605-A1, excerpt 34. 

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 32

Comment: PM CEMS do not measure mass. Because PM monitors do 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 variability 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 challenges 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-like potassium and sodium biomass 

ash that yields a bimodal characteristic with peaks of nominally 0.5 and 20 to 40 microns. Coal 

ash, on the other hand, tends to exhibit a more mono modal distribution without the submicron 

peak. Data available for PM CEMs effective is primarily limited to coal, and data on how PM 

CEMS will respond to monitoring biomass emissions is expected to be problematic. In addition 

to the variability of the fuels and fuel mixtures the operating load (firing rate) of the boiler will 
216

produce 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 indicate that when inlet 

loading to ESP’s are changed due to different fuel mixtures, the exhaust emissions have a 

different particle size and distributions. Therefore, a single or even a few correlation curves 

cannot be used to provide representative compliance 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 

estimates13. For units such 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 extensive 

range of possible fuel mixtures. In practice, changing the fuel mix for the purpose of correlation 

testing may alter the loadings; however, it would be difficult to do in a systematic way, and in 

order to gather the reference data needed to develop an 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 to 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 regarding 

the capabilities of PM CEMS, please see section II.E of the preamble to the final rule, as well as 

the memo from Conniesue Oldham to Bob Schell, dated June 13, 2012, available in the docket. 

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 23

Comment: Subpart CCCC and DDDD proposed rule language requires 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 average basis). The proposed rule does specify use of 30-day rolling averages for 
217

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 

operators 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 transformer 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 included 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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 31

Comment: In the preamble to this Proposed Rule, EPA states that it is proposing to incorporate 

30-day averaging periods for operating parameters for ERUs. 

Likewise, to be consistent with these other rules, we have revised all operating parameter 

averaging for ERU units to be on a 30-day rolling average. Due to the relatively long operational 

campaigns of ERUs, the longer averaging time will allow operators sufficient flexibility for 

operational and control device adjustments should they 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 established through performance testing in this 

rule represent short term process and control operating conditions representative of compliance. 

Concerns of variability outside the operators control such as fuel content, seasonal factors, load 

cycling, and infrequent hours of needed operation prompted us to look at longer averaging 

periods on which to base operating compliance determination. 76 Fed. Reg. 80465. 

We concur that 30-day averaging periods are appropriate for ERUs for the reasons EPA provides 

above. 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 is 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 operators 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 discussion that major issues such as ESP transformer failure will show up in a 30-day 
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rolling average and prevent continued operation with malfunctioning control equipment. (See 76 

Fed. Reg. 80610.)

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 23. 

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 45

Comment: We concur that 30-day averaging periods are appropriate for ERUs for the reasons 

EPA provides in the preamble. However, these changes 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 is clear on how to establish all operating parameter ranges and the required averaging 

periods.

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 23. 

Commenter Name: Stephen R. Gossett

Commenter Affiliation: Eastman Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2640-A2

Comment Excerpt Number: 11

Comment: We support 30 day averages for all parametric monitoring but the proposed 

rule language is inconsistent. 

Discussion: EPA’s discussion of this issue is found on page 80465 of the 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 resulted 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 

day 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-HQ-OAR-2003-0119-2605-A1, excerpt 23. 

Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 9
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Comment: EPA has proposed that owners 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 original 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 then 

no technical justification for the very large variability factors adopted by EPA (based on onehour test runs) in a system that permits 30-day averages to be used for compliance.

Response: See response to EPA-HQ-OAR-2003-0119-2605-A1, excerpt 23 on the 30-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 emission 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 Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-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. Although 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 account 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 Incinerators Source Category, EPA-HQ-OAR-2003-0119-0059, Table 

2-1 (“CISWI MACT floor memo”) with 76 Fed. Reg. at 80528 (Table 8 to Subpart DDDD of 

Part 60). This is a major methodological error. When EPA calculated the emissions limits for 

CISWI units, it used statistical methods to determine the highest possible one-hour emission 

level from those sources and set the standard at that level. CISWI MACT floor memo at 6–7 

(emissions limits calculated based on “run-specific data” adjusted for statistical variability). The 

30-day averaged emissions for those sources are 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 demonstrate 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 

determination 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 emissions 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.2The failure to do so is unlawful and 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 reconsidered, 

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 monitoring at 76 FR 80465. In that 

discussion, we note that our monitoring requirements are similar to those required by major 

industrial boilers and utility boilers. While we did not note the cite directly at proposal, a further 

discussion of why this averaging time is appropriate for 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 Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 34

Comment: EPA has proposed to delete the requirement that 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 rule 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-HQ-OAR-2003-0119-2605-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 planning, 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,8sources 

understood as of the publication of the March 2011 Final Rule that there would be amendments 

to the rule that could very well alter compliance 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 limits. 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 that 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 limits. 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 several 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, and 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 Reconsidered NHSM Rule does not indicate a date-certain by which sources will have 

final decisions regarding the status of their materials. In addition to uncertainties faced by 

sources themselves, their source compliance plans 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 for increments of progress to be 
222

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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 34

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 to 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 make 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 standards, “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 took 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 under § 112(i)(3), the regulatory structure of §§ 111, 112 and 129 are similar 

enough that the authority should be the same when revising a § 129 standard.

Section 129(f) requires EPA to establish compliance deadlines for new and existing sources 

when promulgating “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 and changed 

through the reconsideration process. Arguably it does not.

Section 129(a)(5) requires EPA to review and if appropriate, revise a § 129/111 standard at 5 

year intervals after the initial promulgation of the rule. If the underlying standard is revised, it is 

axiomatic that a new compliance deadline would have to be established pursuant to § 129(f) to 
223

allow sources to come into compliance with the revised “performance standards and other 

requirements.” ACC believes the same holds true when a rule is substantially revised pursuant to 

a § 307 consideration such that the final reconsidered rule 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 rule. 

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 9

Comment: We agree with EPA’s proposal 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 they are not sure if their NHSM are fuels or waste and they are not sure what 

the final emission limits will be for their boilers/energy recovery units. Owner/operators of units 

that may be regulated by CISWI or by Boiler MACT, 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;

potentially 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 Boiler 

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 

determine whether a unit is covered by the Boiler MACT or the CISWI rule. All of these 

proposed changes will affected the level of the standards and the manner in which these 

standards will be applied to affected sources. This means that EPA’s proposal to reset the 

compliance deadlines is justified by the facts and wholly consistent with the holding in NRDC v. 

EPA, 489 F.3d 1364 (D.C. Cir. 2007).

Response: As explained in section II.C.8 of the preamble, EPA is extending the compliance 

date in the final rule. 
224

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 36

Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI

rulemaking is all the more compelling because of some unique circumstances. Due to the 

vacatur of the stay, the regulated community has lost almost a year from the original compliance 

time frame. The regulated community relied in good faith on EPA’s administrative stay and we 

will be significantly prejudiced if EPA does not reset or extend the compliance date in the final 

reconsidered CISWI rule. Given the complexity of this rule and all of the necessary actions that 

an undetermined number of affected sources will have to take, meeting the initial 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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 37

Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI

rulemaking is all the more compelling because of some 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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 38

Comment: The need for EPA to reset the compliance deadline in this reconsidered CISWI

rulemaking is all the more compelling because of some 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 will outstrip the availability of the 
225

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-HQ-OAR-2003-0119-2615-A1

Comment Excerpt Number: 10

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 the 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 Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 17

Comment: Dow appreciates and supports EPA’s plan to extend the 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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 28

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 arising 
226

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 Industry Forum (AIF)

Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 1

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 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 that it was still 

“in the process” of determining the full extent of those subjects and that it was committed to 

including “all additional issues” appropriate for reconsideration, including those raised in any 

then-prospective petitions for reconsideration. Even to the extent that the Notice of 

Reconsideration enumerated certain, specific subjects as under reconsideration, it acknowledged 

that the list was only a portion of the subjects that EPA would ultimately reconsider. See id.

Indeed, the scope of the issues that EPA intended to 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, 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 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 CISWI Rules, pending the conclusion of judicial review or EPA’s 

reconsideration process. See Delay Notice, 76 Fed. Reg. at 28,662. In the notice, EPA again 

reiterated that a reconsideration proposal would be 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, 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 several options for meeting the anticipated 
227

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 converting them to, or replacing them with, NG-fired units or resourcepreserving, landfill gas-fired boilers. The control options associated with the CISWI rule will be 

even more numerous due to the higher emission 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 

decisions. Once the rules are finalized, implementation of the changes required to achieve 

compliance can require significant time, beginning with the company’s internal review process. 

First, the automotive company’s legal and technical personnel must analyze 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 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 automaker then submits bid packages to identified bidders and, after several rounds of 

clarifications and negotiations, selects and hires a bidder. It can easily take 6-8 months after the 

rule is finalized to select a control option and hire 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.

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 lead times. In addition, as EPA 

acknowledges, only a limited number of vendors are qualified to fabricate and install the 

equipment that the Boiler MACT and CISWI and NHSM Rules will ultimately require.3 A short 

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, 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 of 

operating permits typically takes no less than 6 months but can take longer. After the required 

permits are issued and the requisite equipment is delivered, the speed of installation can depend 

on the weather in northern climates (where many of 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 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 

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, describing the 
228

“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 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 subject to the final reconsideration rules. See Boiler 

MACT Reconsideration Proposal, 76 Fed. Reg. at 80,616. The potential scarcity in availability of 

equipment and 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: 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-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 3

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 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 those controls (and make corresponding compliance 

decisions) until the final limits and standards are known and fixed. See id. The fact that the 
229

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 evaluate 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 MACT 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 emission limits 

dictates, for instance, whether to use a SCR and spray dryer combination versus a multipollutant, Tri-NOx system followed by an 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 finalizes 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, maintaining 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 March 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 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 begin 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 publication of the final reconsideration 

rules. See CISWI and NHSM Rules Reconsideration Proposal, 76 Fed. Reg. at 80,465; Boiler 

MACT Reconsideration Proposal, 76 Fed. Reg. at 80,616. AIF supports this proposal for many 

of the same reasons articulated with respect to 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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 35
230

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 because 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, asking 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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 21

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 sources 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 whose 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 need 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 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, 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 the 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 decisions. 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 addition, not extending the compliance date may be problematic 

for states and implementing agencies since the increments of progress for rule compliance are 

keyed off of the approval date of the revised state plan. Without a final rule in place, states and 

implementing agencies will be unable to adequately update and implement a state plan. Further, 

the EPA has received comments that the availability of control equipment and vendors to install 
231

control equipment for CISWI units is in question due to the large number of units requiring 

controls in conjunction with the parallel rulemaking for industrial boilers and electric generating 

units that will require controls from many of the same vendors. 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 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 still 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 year 

extension of the compliance date if necessary for the installation of controls for compliance with 

a NESHAP issued pursuant to CAA section 112. Section 129 of the CAA does not contain a 

similar provision. 

Commenter Name: Mark Calmes

Commenter Affiliation: Archer Daniels Midland Company

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

Comment Excerpt Number: 1

Comment: EPA had delayed the effective dates of the March 2011 Final 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 some- 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 rulemaking proceedings 

and the fact that the rules are now in effect and will be in effect until EPA completes the 

rulemaking proceedings and issues Final Reconsidered Rules. One issue, for example, that EPA 

did not address in its memorandum is the circumstance faced by sources that combust alternative 

material in their boilers. With the March 2011 definitions of "fuel" and NHSM now in effect and 

boiler and incinerator standards in effect, a source that currently combusts a material that has 

been defined as waste would presumably be subject to CISWI standards. However, that same 

material may be redefined as a fuel under the Final Reconsidered NHSM Rule, and the unit 

would be classified as a boiler.

The effectiveness of the rules, and the imposition thereby of regulatory obligations, have created 

compliance exposure for sources that EPA could and should eliminate by staying the effect of 

the rules during this interim period and issuing further guidance or no enforcement assurance that 

addresses these concerns.
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-HQ-OAR-2003-0119-2627-A2

Comment Excerpt Number: 1

Comment: Compliance timetables and non-enforcement of violations of the March 2011 

rules should be clarified in light of the vacated stay. The recently vacated stay of the effective 

date for the initial final Major Source ICI Boiler 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-promulgation 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-HQ-OAR-2003-0119-2605-A1

Comment Excerpt Number: 1

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,5and 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 on 

January 18, 2012 EPA announced in a letter to Senator Wyden6its plan to address the 

implications of the vacatur. Then on February 7, 2012, EPA issued a No Action Assurance 

memorandum that addresses some – but not all – of the 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 Senator 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 

address those matters. Notwithstanding its assurances, EPA’s memorandum does not alleviate 

many pressing continuing compliance concerns faced by sources because the rules remain in 

effect. This ongoing uncertainty is created by the timing of the four interrelated rulemaking 

proceedings and the fact that the rules are now in 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 memorandum 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 has 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 

imposition 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 Club v. EPA, No. 11-1278 (DDC Jan. 9, 2012).

(6) See EPA Letter to Sen. Wyden, Jan. 18, 2012. Appendix A.

(7) See EPA No Action Assurance letter, Feb 7, 2012. Appendix B.

Response: In this final rule, we have accounted for the NHSM 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: Earthjustice, Partnership for Policy Integrity, and Clean Air Council
234

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 22

Comment: EPA proposes to extend the effective date of the CISWI standards for existing 

sources to the fullest 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 presumptively 

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 effective “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. Accordingly, EPA has not shown that faster 

implementation of these standards is not “practicable.” EPA should simply restart the 

compliance schedule that was stayed on May 18, 2011. If EPA decides to extend the compliance 

deadline to the outer bound permitted by section 129, it 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 corresponding 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 

agencies since the increments of progress for rule compliance are keyed off of the approval date 

of the revised state plan. Without a final rule in place, states and implementing agencies 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 still contain the requirement to achieve final 

compliance “as expeditiously as practicable,” but not later than the earlier of the two specified 
235

dates. Thus, CISWI units must still achieve final compliance as expeditiously as practicable. In 

addition, the commenter suggests that EPA only extend the compliance period for sources that 

are likely to install different controls pursuant to the reconsideration. The commenter did not 

provide a legal basis for providing facility specific compliance extensions under section 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 RIA 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-HQ-OAR-2003-0119-2584-A2

Comment Excerpt Number: 2

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 compliance 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 built 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. It 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. 

Therefore, 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 Alaska
236

Document Control Number: EPA-HQ-OAR-2003-0119-2590-A1

Comment Excerpt Number: 2

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 

regarding 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 for 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 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: Clint Gill

Commenter Affiliation: ConocoPhillips Company

Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2

Comment Excerpt Number: 3

Comment: 40 CFR 60.2535 excludes from rule coverage, SRIs that 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 sources.

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 incinerators, 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 

between the 2000 CISWI rule and the CISWI rule amendments finalized today, was made clear 

in the preamble to the March 2011 CISWI rule (76 FR 15711), “Incinerators and small remote 

incinerators that are existing sources under the 2000 EG must continue to comply 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 effective, 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 & Lardner LLP on behalf of Portland Cement Association 

(PCA)

Document Control Number: EPA-HQ-OAR-2003-0119-2563-A2

Comment Excerpt Number: 1

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 53-56] 

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" states:

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 emission of any air pollutant (to which 

a standard applies) into the atmosphere not previously emitted.

40 C.F.R. 60.2.

Under the wording of this provision, any physical change or change in method of operation that 

"increases the amount" of emissions of a pollutant 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 considered 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 in 
238

emissions a modification, EPA has applied its part 60 regulations for NSPS purposes 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 CISWI unit you have changed later than June 1, 2001 and that 

meets one of two criteria:

(1) The cumulative cost of the changes over the life of the unit exceeds 50 percent of the original 

cost of building and installing the CISWI unit (not including the cost of land) updated to current 

costs (current dollars). To determine what systems are within the boundary of the CISWI unit 

used to calculate these costs, see the definition of CISWI unit.

(2) Any physical change in the CISWI unit or change in the method of operating

it that increases the amount of any air pollutant emitted for which 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 reflects 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 thus left with this major critical question unanswered: Will CISWI units be considered 

modified if they do anything to increase their emissions in any way, as suggested by the current 

provisions in 60.2 and in CCCC and DDDD, or will the 60.14 qualification (regarding 

hourly emission rate) override?

We assume that the better reading of EPA's regulations would be to apply the permitted "hourly 

rate" qualification of 60.14 to CISWI units under subparts CCCC and DDDD. This is such a 

critical issue, however, that we think it is highly inappropriate 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 also specify in this rulemaking what would constitute a physical change or change 

in the method of operation. At a minimum, EPA should make clear that changing of ingredients 

and routine changes to accommodate specialty products or different types of 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 significantly 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 operate 
239

kilns to meet normal consumer demands without the fear of triggering the modification 

provisions of the Proposed Rule as long as they remain below the permitted levels.

[Pages 58-59]

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 failed 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 notable 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 projects 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 sourced 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 pollutant. 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 modifications 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 requirements – 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 federal 
240

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 exemptions 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.

• Modifications 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 programs (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 related “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 final 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 into 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 already 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 a 
241

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 continues 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 whether 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 

Which 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 commenter 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 applicability 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 consistent 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 section 129 specific definitions contained in Subparts Eb and Ec would control for Subparts Cb, Cd, and Ce

instead of the definitions contained in the general 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 solid 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 Voshell

Commenter Affiliation: Argos Cement LLC

Document Control Number: EPA-HQ-OAR-2003-0119-2573-A2

Comment Excerpt Number: 7

Comment: We note and are sure that EPA recognizes that there 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 to 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. categorical 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 source will not be considered a new source solely due to the combustion of 

solid waste. Existing sources that begin combusting solid waste within six months of the 

compliance date of the emissions guidelines, such that 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-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 16
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Comment: 60.2265 – The 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 applicable 

to the operation of a section 129 source. Furthermore, it is maddening for sources to keep track 

of all the various nuances related to the term “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 “modification” 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 sections 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 CISWI 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 the 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-HQ-OAR-2003-0119-2596-A1

Comment Excerpt Number: 7

Comment: In light of the assortment of materials that can be utilized as fuel for cement kilns in 

a safe manner and the environmental benefits of using such materials as fuel rather than placing 

them in landfills, EPA and National Cement share a 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 

revisions to Subparts CCCC and DDDD:

a. The definition of "modification or modified CISWI unit" that will trigger Subpart CCCC at an 

existing kiln should be clarified and set in a manner where only significant changes to a kiln's 

ability to utilize solid waste as fuel triggers the 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 practical 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 

DDDD 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 compliance 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 

maintains 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 first 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 cumulative cost of the changes over the life of the unit exceeds 

50 percent of the original cost of building and installing the CISWI unit (not including the cost of 

land) updated to current costs (current dollars). In addition, we do not believe it is appropriate to 

limit the changes at the facility that are considered only to those changes that relate to the 

utilization of solid waste because nothing in the 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 the 

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 sources 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 General Provisions at 40 C.F.R. 60.15 address “reconstruction” under CAA section 111. Unlike the 

modification provision in 40 C.F.R. 60.14, the 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-HQ-OAR-2003-0119-2615-A1

Comment Excerpt Number: 7

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 recognizes 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 

own definitional language: “any physical change in the CISWI unit or change in the method of 

operating it that increases the amount of any air pollutant emitted for which Section 129 or 

Section 111 of the Clean Air Act has established standards”. 40 C.F.R 60.2265. While this 

language is consistent with Subpart A's definition of 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 

accommodate an alternative fuel or raw material if that use could be accomplished under the 

facility's construction specifications as amended prior to the change”. Instead, Subpart CCCC 

specifes simply that “Terms used but not defined in this subpart are defined in the Clean Air Act 

and Subpart A (General Provisions) of this part". 40 CFR Part 60.2265.

While the preamble as referenced above clearly reflects an intention by EPA to incorporate the 

exclusionary lanaguage of §60.14(e)(4) into the CISWI rule, the provisions of §60.2265 by 

defining “modification” and then only incorporating Subpart A’s definitions as to terms not 

otherwise defined in §60.2265, could be read as reflecting an 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 means a CISWI unit you have changed later than June 1, 

2001 and that meets one of two criteria:

(1) * * *, or

(2) Except as provided for in §60.14(e)(4), any physical change in the CISWI unit or change in 

the method of operating it that increases the amount 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 in 
246

itself constitute a modification that would trigger applicability of the NSPS. Sources must be 

able to maintain compliance with the emissions guidelines after the change in solid waste inputs. 

Please see the response to EPA-HQ-OAR-2003-0119-2563-A2 excerpt 1 above. 

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association

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

Comment Excerpt Number: 4

Comment: 

EPA failed to clarify which events may trigger 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 comply. 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 result 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-HQ-OAR-2003-0119-2596-A1 excerpt 7 above. 

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association

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

Comment Excerpt Number: 19

Comment: EPA should amend the criteria for existing sources triggering Subpart CCCC 

through a modification: 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, it is in both the agency's and PCA's interest that kiln 

operators be able to use a variety 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 or 
247

modified CISWI unit'' that will trigger Subpart CCCC at an existing kiln should be clarified and 

set in a manner where only significant changes to a kiln's ability to utilize solid waste as fuel 

triggers the provisions of Subpart CCCC. In that context, we propose 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 history and the owners will not have adequate records for historical ·'changes", 

either to quantify the cost or determine which activities represent ''changes" under this provision. 

Response: The EPA is not making the suggested change to the definition of modification for the 

reasons set forth above in response to similar comments on this issue. Please see the response to 

EPA-HQ-OAR-2003-0119-2596-A1 excerpt 7 above.

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association

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

Comment Excerpt Number: 20

Comment: This assessment should only apply to a project if the project changes the inherent 

ability of the unit to utilize a "solid waste." 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-HQ-OAR-2003-0119-2573-A2 excerpt 7 above.

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association

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

Comment Excerpt Number: 21

Comment: The limits under Subpart CCCC should only apply to the pollutants for which a 

''significant” emissions increase is occurring. (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-HQ-OAR-2003-0119-2568-A1

Comment Excerpt Number: 1

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 CCCC, the NSPS applies 

to units constructed after [the date 60 days after the final amendments are published], yet the 

tables in subpart CCCC indicate that they apply to units constructed after June 4, 2010. Changing 

“[the date 60 days after the final amendments are 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 non-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 that 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 plan that meets the requirements of this subpart and contains the

more stringent emission limit for the respective pollutant in table 6 of this subpart or table 1 of

subpart CCCC of this part to EPA by [DATE 1 YEAR AFTER 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] for 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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 42

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 

AFTER 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 assumes 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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 51
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Comment: An apparent discrepancy exists 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 reconstruction 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 Affiliation: Lafarge North America

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

Comment Excerpt Number: 6

Comment: Lafarge requests clarification on ambiguous language in this section of the 

rulemaking related to compliance dates with the emission standards for existing waste-burning 

kilns that begin combusting a solid waste after June 4, 2010, or kilns that have combusted solid 

wastes prior to June 4, 2010 but stopped combusting prior to June 4, 2010 and have 

recommenced (or wish to) use of these materials after that date. 76 Fed. Reg. 80459-60. The 

ambiguity originates from the failure by EPA to specify how compliance would apply during the 

period between June 4, 2010 and the first substantive 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 combusting the new fuel or material. For all sources that commence combustion of 

solid waste, the CISWI requirements become applicable on the date that the fuel switch occurs”. 

76 Fed. Reg. 80459-60.

This is not ambiguous if applied after the first substantive compliance date (i.e., more than 5 

years from now). However, if applied between June 4, 2010 and the first substantive compliance 

date, it could be misinterpreted to indicate that if an existing CISWI source makes a change in 

fuels or materials between June 4, 2010 and the first substantive compliance date, or if a source 
251

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 for 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. Lafarge 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.”

Response: 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 for incineration units), sources 

must be in compliance with the standard that is applicable to the source based on the type of unit 

and the fuels or materials that are combusted.” 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 

substantive 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 compliance 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 applicability 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-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 17

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 definition 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-testing. 
252

7J. Ingredients are not combusted in cement kilns.

Commenter Name: Jim Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OAR-2003-0119-2577-A1

Comment Excerpt Number: 1

Comment: EPA Should Codify and Clarify the Memorandum on the 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 standards 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 necessary 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 input 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 the 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 memorandum 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 guidance on the meaning of combustion, the Agency has addressed this critical 

component of the statutory scheme only in guidance issued to the Portland cement industry. The 

implications of this guidance, however, are by no means limited to the Portland cement industry; 

EPA’s interpretation of the meaning of the term “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 and 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 cement 

kilns is considered to be combusted.” Id. EPA defined the term “combustion” as “an act or 

instance of burning” or “a chemical process (as an oxidation) accompanied by the evolution of 

light and heat.” Id. Because the Clean Air Act statute limits the applicability 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. In 
253

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 

concentrations 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 statute 

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 Cement 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-absorbing 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 temperature 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 introduction 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 secondary 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 whether 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 introduction 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 incompletely 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 of 

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 the 
254

flame. This demonstrates the fact that these materials do not create heat and thus do not 

combust.” Id. at 4-5 of 12. USWAG notes although cement kiln dust cannot be combusted to 

yield light and heat (depending on the emission control 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 NESHAP and NSPS dated August 6, 2010 at 3 and Report to Congress on Cement Kiln 

Dust Waste, Chapter 3, CKD Generation and Characteristics at 3-30. Even though this cement 

kiln dust has organic content and would be oxidized, EPA 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 combustion 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 combustion 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 into 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 placed 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 perhaps 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 boilers without being 

combusted. As it is currently drafted, EPA’s response to the Portland cement industry petition 

and the related guidance document ostensibly apply only to this one specific industrial sector. 

EPA’s framework, however, is critical for the entire potentially regulated community, including 

the utility sector. USWAG strongly supports EPA’s 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 defined as “a kiln that is heated, in whole or in part, by combusting solid waste (as 

that term is defined by the Administrator in 40 CFR part 241). A waste-burning kiln does not 

include a kiln that is feeding non-hazardous secondary ingredients exclusively into the cold end 

of the kiln.” 76 Fed. Reg. at 80503 (proposed to be codified at 40 C.F.R. § 60.2265). This 

appears to exclude all those materials that do not actually provide heat, but does not impact the 

applicability of other combustion units that are not kilns and that may similarly be introducing 

materials that do not provide heat. 

Response: In section II.B. of the preamble to the final rule, we discuss revisions to the definition 

of waste-burning kiln. In the preamble discussion, we note that EPA intended to codify 

principles set out in a previous action granting and denying 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 final 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 commenter 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. 

There are many solid wastes that do not have meaningful heat value that operators may choose to 

combust to destroy the material, which is the express purpose of incinerators and small remote 

incinerators. If the commenter believes material combusted in a particular unit is unable to be 

combusted because it is inert (e.g. sand or dust), we advise the commenter to consult with EPA 

on the specific nature of the material to determine whether introduction of the material into the 

unit constitutes combustion of solid waste. If a source believes that it is not combusting the solid 

waste used in its process, the source should seek an applicability determination from the Agency. 

Commenter Name: Erika H. Frank

Commenter Affiliation: Calgon Carbon Corporation

Document Control Number: EPA-HQ-OAR-2003-0119-2633-A2

Comment Excerpt Number: 3

Comment: The CISWI Rule applies to any commercial and 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 "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 the context of the Portland cement air regulations. The final Portland cement 

rules were published in the Federal Register on September 9, 2010. More recently on April 25, 

2011, EPA issued a memorandum through Mr. Keith Barnett, EPA Environmental Engineer, 

discussing whether certain secondary materials used in the Portland cement production process 

are combusted in the cement kiln (Document No. EPA-HQ-OAR-2002-0051-3582). After 

acknowledging that combustion is not defined in the Clean Air Act, EPA relied on a common 

dictionary definition of combust as an act or instance of burning" or "a chemical process (as an 

oxidation) accompanied by the evolution of light and heat." EPA recognized a distinction 

between ingredients, which are introduced into the cold 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-HQ-OAR-2003-0119-2577-A1 excerpt 1 above.

Commenter Name: Erika H. Frank

Commenter Affiliation: Calgon Carbon Corporation

Document Control Number: EPA-HQ-OAR-2003-0119-2633-A2

Comment Excerpt Number: 4

Comment: The CISWI Rule applies to any commercial and industrial operating unit which 

"combusts, or has combusted in the preceding 6 months," any solid waste as defined by the 

NHSM Rule. Likewise, the NHSM Rule provides that "non-hazardous 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" 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.

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-HQ-OAR-2002-0051-3582). After 

acknowledging that combustion is not defined in the Clean Air Act, EPA relied on a common 

dictionary definition of combust as an act or instance of burning" or "a chemical process (as an 

oxidation) accompanied by the evolution of light and heat." EPA recognized a distinction 

between ingredients, which are introduced into the cold 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: See the response to EPA-HQ-OAR-2003-0119-2577-A1 excerpt 1 above.

Commenter Name: Erika H. Frank

Commenter Affiliation: Calgon Carbon Corporation

Document Control Number: EPA-HQ-OAR-2003-0119-2633-A2

Comment Excerpt Number: 5

Comment: Additionally, we request that the definition of "combust" accommodate the burning 

of contaminants in industrial thermal treatment processes that are not intended to dispose of or 

discard the raw material or ingredient. Calgon Carbon manufactures activated carbon which is 

used by its customers in applications such as drinking water purification, and then receives the 

spent carbon back for regeneration. During carbon regeneration, the spent carbon feed material is 

gradually heated in a controlled process (similar to how a cement kiln operates), in order to drive 

off the contaminants that became adsorbed to the carbon during the customer's application. As 

contaminants are desorbed from the carbon, some of the contaminants are oxidized in the 

reactivation furnace or thereafter in afterburners. 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 to 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, combustion 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 chemical 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 ingredient 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 standards 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-HQ-OAR-2003-0119-2577-A1 excerpt 1 above.

Commenter Name: Jim Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OAR-2003-0119-2577-A1

Comment Excerpt Number: 4

Comment: EPA Should Clarify that the Use of Cement Kiln Dust in Utility Operations 

Does Not Constitute Combustion

Electric utilities also introduce other types 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 for 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 identified (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), the 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 Portland 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 

emissions that result from combusting the coal contain significantly lower levels of certain 

pollutants than the air emissions that would otherwise result without the addition of the these 

ingredients. While many of these added materials are not secondary materials, significant 

amounts of cement kiln dust are added in the process of refining the coal. Among other things, 

the cement kiln dust provides aluminosilicates that help to retain oxidized mercury in a ceramic 

matrix so that it (and other metals) are not emitted as air pollutants. Many USWAG member 

facilities are using or plan to use refined coal-containing cement kiln dust. There are significant 

environmental and financial benefits to using refined coal in place of traditional coal inputs. Due 

to the benefits of such materials, Congress has provided a significant incentive for utilities to 

replace traditional coal with refined coal. In 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 percent 
259

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 reduction 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 inert, 

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 operational 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 determining 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 dust into a combustion unit (of any type) does not trigger CISWI standards. 

Response: See the response to EPA-HQ-OAR-2003-0119-2577-A1 excerpt 1 above. If the 

commenter is correct that the cement kiln dust used in 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 combustable, the facility operator 

should seek an applicability determination from the Agency concerning the ability of the unit to 

use the material without triggering CISWI applicability. 

Commenter Name: Fadi K. Mourad, P.E.

Commenter Affiliation: DTE Energy Services, Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2598-A1

Comment Excerpt Number: 2

Comment: Addition of Definition of "Combustion" to CISWI Rule Indicating that CKD is 

Inert and does not Combust (Docket 10 No. EPA-HQ-RCRA-2003-Q119)

DTEES requests that EPA clarify and codify that the 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 sometimes 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," dated 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, this 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 the flame. This demonstrates the fact that these materials do not create heat and thus do 

not combust.

Based on the definition of combustion and EPA's previous 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 at 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. Reg at 28322

Response: See the response to EPA-HQ-OAR-2003-0119-2577-A1 excerpt 1 above.

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association

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

Comment Excerpt Number: 29

Comment: The "ingredients" issue is still unresolved and needs 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 agreed 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 28322.13 EPA supported this perspective 

by noting that materials which kilns use as ingredients are inorganic in nature and, therefore, not 

combustible. The Agency, consequently, excluded from the jurisdiction of CAA section 129 , all 

such materials.

However, the definition of"waste burning kiln" which EPA is now proposing, 76 Fed. Reg. at 

80523, appears to take a step back and narrow the Administrator's May 17, 2011 decision, and 

does so without providing any explanation for doing so. PCA 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 May 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 docket on August 12, 2011 and 

assigned document identification number EPA-HQ-OAR-2003-0119-2514. A copy of the 

Administrator's May 17, 2011 decision was also submitted to EPA as Attachment A to PCA 's 

petition for new rulemaking re the NHSM final rule. The latter petition was submitted to EPA on 

June 16, 20 I I. EPA posted to new rulemaking petition, 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 document identification number EPA-HQ-RCRA2008-0329-1840. 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-HQ-OAR-2003-0119-2577-A1 excerpt 1 above.

Commenter Name: Fadi K. Mourad, P.E.

Commenter Affiliation: DTE Energy Services, Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2598-A1

Comment Excerpt Number: 1

Comment: EPA's NHSM rule addresses the use of non-hazardous 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 operating 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 involves 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 ("Refined Coal"). This new product is then used by utility boilers to 

reduce emissions. The mixing process is a purely mechanical process that occurs without added 

heat or combustion in a pug mill or other mixer. The 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 three material ingredients 

used to produce Refined Coal in a non combustion process is outside the scope of the NHSM 

rule, and therefore, does not require further 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" states:
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 waste, 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 Coal 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 ingredient 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 combusting 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 the materials used in the development of the refined coal. The commenter should 

seek an applicability determination from the Agency if it believes it is not combusting solid 

waste and thus not subject to CISWI. See the response to EPA-HQ-OAR-2003-0119-2577-A1 

excerpt 1.

Commenter Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 18

Comment: 60.2265 – We support the changes made to the definition of “waste – burning kiln” 

to exclude alternative raw material ingredients introduced exclusively into the “cold end of the 

kiln.” We encourage EPA to consider further expanding the exclusion to include the introduction 

of any alternative raw material ingredient, recognizing 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 justified 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 feed 
263

locations unnecessarily narrows a kilns opportunity to utilize alternative raw materials both now 

and in the future.

Response: In section II.B. of the preamble to the final rule, we discuss revisions to the definition 

of waste-burning kiln. In the preamble discussion, we note that EPA intended to codify 

principles set out in a previous action granting and denying 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) contains 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 Name: Rex Jameson

Commenter Affiliation: Universal Cement, LLC and Ozinga Bros., Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2642-A2

Comment Excerpt Number: 8

Comment: 60.2265 exempts cement kilns that feed non-hazardous secondary “ingredients 

exclusively into the cold end of the kiln.” In addition, EPA has sent a letter to the docket dated 

April 25, 2011 that further explains its understanding regarding the use these materials in both 

long kilns and preheater kiln systems. The letter and the language in the proposed regulation do 

not adequately clarify the exemption.

There are many factors that determine the appropriate 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 (especially CO2), 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 should 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-HQ-OAR-2003-0119-2576-A1 excerpt 18.

Commenter Name: Max Lee

Commenter Affiliation: Koogler & Associates, Inc.
264

Document Control Number: EPA-HQ-OAR-2003-0119-2652

Comment Excerpt Number: 6

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-HQ-OAR-2003-0119-2576-

A1 excerpt 18.

Commenter Name: Satish Sheth

Commenter Affiliation: Cemex USA

Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2

Comment Excerpt Number: 2

Comment: CEMEX utilizes many non-hazardous materials as alternative fuels, and also as 

ingredients in the Portland cement manufacturing process. We do not agree that the use of these 

materials should result in cement kilns being regulated as waste incinerators and ask that EPA 

reconsider their inclusion under the CISWI regulations and/or by additionally clarifying the 

NHSM rule. We think it is important that EPA understand 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 material 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 materials.

Response: See the response to EPA-HQ-OAR-2003-0119-2576-A1 excerpt 18.

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 Kelly

Commenter Affiliation: Waste Management (WM)

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 14

Comment: EPA Should Add Clean C&D Wood to the List of Non‐Waste Fuels Under

§241.4(a)
265

EPA has recognized in the initial NHSM Rule and in the NHSM Rule Amendment that scrap 

tires are not wastes and are not discarded when managed in tire collection programs. The Agency 

has also recognized that contractual arrangements can ensure that scrap tires are not discarded 

and are handled as valuable commodities through arrival at the combustion facility. So too 

should clean construction and demolition (C&D) wood qualify and be listed as a non‐waste fuel 

under §241.4(a). Many local governments as part of their recycling and landfill diversion 

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 processing 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 Solid Waste: Construction and Demolition 

Materials – Building-Related C&D Materials contained in the rulemaking docket. EPA has also 

evaluated analytical data on the comparable contaminant 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 non‐waste fuel. (at 76 Fed. Reg. 

80470) Additionally, construction and demolition wood that has been processed (e.g., sorted) to 

remove contaminants (such as leadpaintedwood, treated wood containing contaminants such as 

arsenic and chromium, metals and other nonwoodmaterials), and is sizereduced prior to burning 

likely meets the processing and legitimacy criterion for contaminants, and thus can be 

combusted as a nonwaste fuel.[emphasis added] We believe that EPA has demonstrated in its 

rulemaking record that the Agency has sufficient 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

Reconsideration Rule recordkeeping and CISWI unit definition create considerable compliance 

risks for combustion sources burning non‐hazardous secondary materials as fuels without 

sufficient comfort that EPA considers the materials to be legitimate fuel. The definition of 

CISWI unit (76 Fed. Reg. 80501) under §60.2265 states that “if the unit burns materials other 

than traditional fuels as defined in §241.2 that have been discarded, and you do not keep and 

produce records as required by §60.2175(v), the material is a solid waste and the operating unit 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, and 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 that this 

recordkeeping requirement is therefore unduly burdensome, and is inconsistent with EPA’s 

enforcement authority and practices established under the CAA. As an initial matter, a 

combustion unit that does not burn solid waste cannot be categorized as a CISWI unit and should 

not be subject to its provisions, recordkeeping or otherwise. Further these provisions would 

create a presumption of CISWI applicability as an automatic result of a recordkeeping violation. 

Such a result is inconsistent with EPA’s established enforcement response policies that would 
266

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 issues relating to Identification of NonHazardous Secondary Materials That Are Solid Waste rulemaking (NHSM) aspects (Docket ID: 

EPA-HQ-RCRA-2008-0329). To the extent that the commenter has provided these comments to 

today’s Identification of Non-Hazardous Secondary 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 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.

In regards to the definition for CISWI unit, the definition has been revised so that failure to 

maintain a record does not, by itself, make a material a solid waste. We further note that the 

similar recordkeeping requirement is included in the boiler rule for units that are combusting a 

material that received a non-waste determination. This record assists implementing agencies in 

clarifying applicability for the unit. The same types of records may be used to fulfill both the 

CISWI and boiler recordkeeping requirement, so we disagree that this is an undue burden. 

Commenter Name: Jeff A. McNelly

Commenter Affiliation: ARIPPA

Document Control Number: EPA-HQ-OAR-2003-0119-2575-A1

Comment Excerpt Number: 2

Comment: EPA should revise the Proposed CISWI Reconsideration to 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).

Pursuant 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 operating units that combust nonhazardous 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. 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. Reg. 80,499. This regulatory 

provision would appear to require source owners and operators to keep records when several 

specific types of non-hazardous secondary materials are combusted, notwithstanding that the 

units burning such materials may not actually be classified as CISWI units. This regulatory 

language corresponds to and cross references certain provisions of the NHSM Rule, which 

separately identifies procedures pursuant to which certain non-hazardous secondary materials 
267

may be determined not to constitute 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 

continuing 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 non-hazardous 

secondary materials that would be expressly identified as non-waste fuels under Section 241.4(a) 

of the Proposed NHSM Reconsideration. The omission 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 nonhazardous secondary materials that are identified as non-waste fuels in Section 241.4(a) of the 

Proposed NHSM Reconsideration. In short, if the source combusts material identified by 

regulation as non-waste fuel, then no CISWI-based requirements (including relative to 

recordkeeping) would attach. However, other 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 Final 

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 required by § 60.2175(v), the material is a 

solid waste and the operating unit is a CISWI unit.” 76 Fed. Reg. 80,501. According to this 

definition, if an operating unit burns any materials other than “traditional fuels”, and the unit’s 

owner or operator does not 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-waste 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). 

Therefore, 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 Subpart 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, 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-HQ-OAR2003-0119-2628-A2 excerpt 14 above for additional details. 

Commenter Name: Jeff A. McNelly

Commenter Affiliation: ARIPPA

Document Control Number: EPA-HQ-OAR-2003-0119-2575-A1

Comment Excerpt Number: 3

Comment: EPA should revise the definition of “CISWI unit” to ensure that the regulatory 

language is consistent with the recordkeeping requirements in Section 60.2175(v) of the 

Proposed CISWI Reconsideration.

In the Final CISWI Rule, the recordkeeping provisions in 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 description 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 

material 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 eliminating 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 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). 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 reconsideration, 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 solid 
269

waste and the operating unit is a CISWI unit.” 76 Fed. Reg. 80,501. ARIPPA supports EPA’s 

proposal to revise the recordkeeping provisions in Section 60.2175(v), as set forth in the 

Proposed CISWI Reconsideration. However, the proposed revisions must also be reflected in 

corresponding revisions to the definition of CISWI unit, so that the relevant regulatory 

provisions remain consistent and, together, consistently and unambiguously impose CISWI’s 

recordkeeping requirements on the same categories of combustible materials. Specifically, if, as 

EPA has proposed, the applicability of the recordkeeping requirements in Section 60.2175(v) of 

the Proposed CISWI Reconsideration is revised to apply only to three specific categories of 

nonhazardous secondary materials, then the applicability of the recordkeeping requirements 

incorporated into (and imposed through) the definition of CISWI unit must also be limited to 

same categories of materials. Therefore, as currently written, the Proposed CISWI 

Reconsideration creates confusion about which non-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 have 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,4satisfies the processing standards and legitimacy criteria at the 

point of combustion. EPA has appropriately therefore proposed 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 recordkeeping 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 

CISWI 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 about 
270

making a material a solid waste by failing to keep a record. See the response to EPA-HQ-OAR2003-0119-2628-A2 excerpt 14 above for additional details. We are not making the specific 

changes requested by the commenter but we believe the changes in the final rule address the 

commenter’s concerns.

Commenter Name: Susan Bodine

Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC)

Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1

Comment Excerpt Number: 14

Comment: In the CISWI Rule, the definition of CISWI unit 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 material is a solid waste 

and the operating unit is a CISWI unit." Proposed 40 C.F.R. 60.2265 (emphasis added). Thus, it 

appears that even materials that are being legitimately used as fuels and therefore are not 

discarded would become solid wastes under the CISWI 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 fact, 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 nonwaste 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 language 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 discarded" 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. Therefore, 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-HQ-OAR2003-0119-2628 excerpt 14 for additional details. 

Commenter Name: Susan Bodine

Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC)

Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1

Comment Excerpt Number: 15

Comment: The preamble discussion on precursors provides another example of how far 

removed EPA’s rationale for this rulemaking is from the concept of discard. EPA is requiring 

combustors to document and keep records regarding the fact 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 measured in a fuel or an ingredient and is only relevant to emissions? Would failure to 

document and maintain a record of this explanation make the NHSM a waste under the CISWI 

rule?

Response: The recordkeeping provisions have been revised in the final rule to address the final 

NHSM rule. Furthermore, the CISWI unit definition has been revised to address concerns about 

making a material a solid waste by failing to keep a record. See the response to EPA-HQ-OAR2003-0119-2628 excerpt 14 for additional details. 

Commenter Name: Susan Bodine

Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC)

Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1

Comment Excerpt Number: 16

Comment: EPA states that the legitimacy criteria are used to identify when a material is a 

waste. However, under the NHSM Proposal, material can meet the legitimacy criteria and still be 

identified as solid waste. This position is invalid under RCRA. Under ABR, EPA cannot impose 

conditions such as record-keeping requirements 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 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-HQ-OAR2003-0119-2628 excerpt 14 for additional details. 

Commenter Name: Kerry Kelly

Commenter Affiliation: Waste Management (WM)
272

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 15

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 legitimacy criteria of the NHSM Rule.

However, the preamble and rule language in the NHSM Final Rule and the proposed NHSM

Rule Amendments do not discuss whether a combustion source may rely on the comfort letters to

meet its recordkeeping requirements. We respectfully urge 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 described in an EPA “comfort letter” may use the letter to meet the

recordkeeping requirements of §60.2175(v) and §63.7555(d)(2). Further, EPA should clarify that 

no additional petitions for a non‐waste determination from either the Regional 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 disincentives 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-HQ-OAR-2003-0119-2575-A1

Comment Excerpt Number: 1 

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 to 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 Reconsideration.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 MACT 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 

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.” Id. EPA specifically requested comment on this assumption and 

whether there are any units combusting coal refuse that qualifies as a solid waste, such that the 

units would be solid waste incineration units (subject to regulation under CAA Section 129) 

instead of EGUs. Id. In the preamble to the 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- CommercialInstitutional, and Small Industrial-Commercial-Institutional Steam Generating Units; Final rule”. 

77 Fed. Reg. 9,304, 9,310 (Feb. 16, 2012) (to be codified at 40 C.F.R. pts. 60 and 63). Therefore, 

EPA should support ARIPPA’s proposed revisions to the regulatory text of CISWI to ensure 

application of the appropriate and intended regulatory standards 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 with 

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 incorporates these comments on the Proposed 

NHSM Reconsideration herein. 

Response: These comments concern the NHSM rule, not CISWI, in that they request a 

definition of solid waste that excludes all coal refuse. For this reason, we are not responding to 

the comment in this RTC. We note that, just because no source subject to the Utility NESHAP 

indicated that it was combusting coal refuse that is solid waste, this does not preclude the 

possibility that some combustion units are burning coal refuse that is solid waste. 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 of Industrial Boiler Owners (CIBO)
274

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

Comment Excerpt Number: 18

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. On 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 risk of potentially being subject to the CISWI rule. 

In this event, it is clear that the CISWI Rule does not adequately address the emissions from 

facilities firing coal refuse. The EPA data base for CISWI references only one facility burning 

coal refuse (specifically an Anthracite coal refuse). The quality of coal refuse varies substantially 

from anthracite to bituminous coal and varies considerably within these categories as well. As 

such, the testing of one unit is inadequate to determine what the emissions limits should be for 

units burning coal refuse.

Specifically, for purposes of the Proposed Utility MACT and NSPS, the Agency “assumed that 

all units that combust coal refuse and otherwise meet 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 would 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 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-HQ-OAR2003-0119-2628 excerpt 14 for additional details.

Commenter Name: Jeff A. McNelly

Commenter Affiliation: ARIPPA

Document Control Number: EPA-HQ-OAR-2003-0119-2575-A1

Comment Excerpt Number: 4

Comment: To the extent that EPA determines not to expressly identify legacy coal refuse 

as a non-waste fuel in Section 241.4(a) of the Proposed NHSM Reconsideration, ARIPPA
275

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 refuse 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 determination 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 processing standards imposed under the Final NHSM Rule, and ultimately 

meets the legitimacy criteria set forth at Section 241.3(d)(1), prior to the point of combustion. 

EPA reaffirmed its position in the preamble to the 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 fuels 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 refuse-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 combustion. 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 classification 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), for operating units that combust non-hazardous secondary materials that 

have been determined not to be solid waste pursuant to § 241.3(b)(1) of this chapter, you must 

keep a record which documents how the secondary material meets each of the legitimacy criteria. 

If you combust a fuel that has been processed from a discarded non-hazardous secondary 

material pursuant to § 241.3(b)(4) of this chapter, you must keep records as to how the 

operations that produced the fuel satisfies the definition of processing in § 241.2 of this chapter. 

If the fuel received a non-waste determination pursuant to the petition process submitted under § 

241.3(c) of this chapter, you must keep a record that documents how the fuel satisfies the 

requirements of the petition process.

(1) In lieu of maintaining records pursuant to Section 60.2175(v) to demonstrate the source is 

not subject to CISWI, an operating unit combusting legacy coal refuse must keep records

demonstrating that the unit combusts legacy coal refuse which has been processed in a similar 

manner to the processing of currently-generated coal refuse.

Response: The recordkeeping provisions have been revised in the final 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-HQ-OAR2003-0119-2628 excerpt 14 for additional details. We are not revising the regulation as the 

commenter suggests; however, we believe that the level of recordkeeping necessary for coal 

refuse would be in line with the regulatory provision commenter suggests including.
276

Commenter Name: Kerry Kelly

Commenter Affiliation: Waste Management (WM)

Document Control Number: EPA-HQ-OAR-2003-0119-2628-A2

Comment Excerpt Number: 13

Comment: WM Supports the Proposed NHSM Categorical Non‐Waste Determination

Process Proposed §241.4(b) provides a new rulemaking petition process for the Administrator to 

identify additional non‐waste fuels under §241.4(a). Combustion units using listed non‐waste 

fuels do not need to obtain site‐specific non‐waste determinations from their Regional 

Administrators or other NHSM requirements for demonstrating legitimacy, including 

recordkeeping requirements to document sufficient processing and conformance to the 

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 focus 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 Administrators 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 NonHazardous Secondary Materials That Are Solid Waste rulemaking (NHSM) aspects (Docket ID: 

EPA-HQ-RCRA-2008-0329). To the extent that the commenter has provided these comments to 

today’s Identification of Non-Hazardous Secondary 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 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.

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-HQ-OAR-2003-

0119-2628 excerpt 14 for additional details.

12D. Operating parameter limits comments (OPL) 

Commenter Name: William Voshell

Commenter Affiliation: Argos Cement LLC

Document Control Number: EPA-HQ-OAR-2003-0119-2573-A2

Comment Excerpt Number: 6
277

Comment: The cement industry fires alternate supplemental fuels to maintain a consistent 

heating value to the kiln preheater/precalciner system. By way of example, individual tires are 

actually weighed to account for the difference in BTU value as a result of the size of the tire. 

Likewise, the feed rate for other alternate solid fuels is closely monitored and controlled 

depending on the BTU mix of the alternate fuel material being fired. We seek clarification on the 

use of this terminology since it's based more on traditional incineration "campaigns" 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-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 11

Comment: 60.2165(e)(1) and (2) – It is unclear how the “charge rate” is applied to a waste 

burning kiln. It would be clearer to present this concept as the “feed rate” with continuous feed 

systems rather than “charges.”

Response: See the response to EPA-HQ-OAR-2003-0119-2573-A2 excerpt 6.

Commenter Name: Darryl Sanderson

Commenter Affiliation: The Dow Chemical Company

Document Control Number: EPA-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 22

Comment: In the proposed rule (June 4, 2010), EPA required that the source continuously 

monitor operating parameter limits (OPLs), and determined 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 rule 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 performance 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 appropriate 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 with 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 a 
278

deviation from your operating limits subpart, except during performance tests conducted to 

determine compliance with the emission and operating limits or to establish new operating limits. 

Operating limits are confirmed or reestablished during performance tests.

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 respect 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-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 23

Comment: In addition, ACC described a concern about the status of pre-testing associated with 

performance testing since pre-testing is usually an 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 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 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 subsequent 

performance tests.

Dow requests that EPA correct language in subpart DDDD to match what was provided in the 

March 21, 2011 final rule for subpart CCCC. Dow also requests that EPA revise the language in 

the final CISWI reconsideration rule for both subpart 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 text 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-HQ-OAR-2003-0119-2571-A1 excerpt 22.

Commenter Name: Melvin E. Keener

Commenter Affiliation: Coalition for Responsible Waste Incineration (CRWI)

Document Control Number: EPA-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 23

Comment: In the March 21, 2011, final rule, the Agency included a 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 determine 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 the facility could no longer 

operate. We believe the Agency understands this concept since the response to comments 

document supports the concept that operating parameters do not apply during subsequent 

performance tests (see page 1108 of the Response to Comments Document). In the comparable 

section for existing sources, the phrase allowing the unit to exceed current operating parameters 

is not included. CRWI believes this is a simple oversight and suggests that the Agency correct 

this by adding similar language to § 60.2710(c) then the rule is finalized. CRWI also requests the 

agency to clarify that pre-testing is a normal part of the testing regimen and that the waiver 

includes it.

Response: EPA has revised the regulation to correct the oversight. See the response to EPAHQ-OAR-2003-0119-2571-A1 excerpt 22.

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 39

Comment: In the Proposed Rule, EPA required that sources 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, EPA stated that 

the final rule waives the applicability of operating limits during performance testing: EPA has 
280

revised the rule 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 performance 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 appropriate for their operations while ensuring emissions limits 

are met. Response to Comments, at 1111 (Feb. 20, 2011). In the Final Rule and this Proposed 

Rule, EPA appropriately revised the regulatory language to 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 of 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 operating limits. Operating limits are confirmed or 

reestablished during performance tests. See, Final Rule, 76 Fed. Reg. 15704 at 15753–54 (Mar 

21, 2011) and 76 Fed. Reg. 80452 at 80492 (Dec 23, 2011) (§60.2145(c) (emphasis 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 believes to be an oversight with respect to Subpart DDDD.

Response: EPA has revised the regulation to correct the oversight. See the response to EPAHQ-OAR-2003-0119-2571-A1 excerpt 22.

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 40

Comment: ACC is concerned that, as written, the ongoing 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 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. 

See, 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-HQ-OAR-2003-0119-2571-A1 excerpt 22.

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 41

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 rule 
281

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 this. 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 comprehensive 

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 performance 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 different 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 compliance 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 over 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 

compliance 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 operating 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 assure continuous compliance.

Commenter Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 14

Comment: 60.2265 – The terms “annual heat input” and “average annual 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 impact 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 source 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: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 22

Comment: Additional flexibility for operating parameter limits

EPA needs to allow for varying Operating Parameter 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. Frequently, 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 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 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 material 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-HQ-OAR-2003-0119-2605-A1

Comment Excerpt Number: 24

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 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. Frequently, sorbent injection rates are set using a feedback loop from a CEMS or CPMS to 
283

avoid wasting sorbent. 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 addition, as EPA 

requires sources to test at the worst case fuel mix for chloride and mercury and this fuel mix may 

differ from the typical day to day fuel mix, EPA should 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 percentage 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 operational requirements.

Response: As stated above, we have made revisions to the final rule to address this comment. 

See the response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 22.

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 25

Comment: An allowance for operating parameter limit variation due to CISWI unit load 

fraction is also applicable to all CISWI units and operation parameters. 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-HQ-OAR-2003-0119-2605-A1 excerpt 22. We disagree that a similar 

allowance is necessary for all other operating parameter limits, as they do not pose the same 

operational issues as sorbent injection does. We note that a source may retest and re-establish 

new operating parameter limits, as specified in §60.2160 and §60.2725.

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 32

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 rate 
284

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. 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 Boiler 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 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 percentage 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 operational requirements.

Response: As stated above, we have made revisions to the final rule to address this comment. 

See the response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 22.

Commenter Name: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 33

Comment: An allowance for operating parameter limit variation due to CISWI unit load 

fraction is also applicable to all CISWI units and 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 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, for example, 

pressure drop, which typically varies with flow.

Response: We have made adjustments for sorbent injection as discussed above. See the 

response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 22. We disagree that a similar 

allowance is necessary for all other operating parameter limits, as they do not pose the same 

operational issues as sorbent injection does. We note that a source may retest and re-establish 

new operating parameter limits, as specified in §60.2160 and §60.2725.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.
285

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 47

Comment: 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. Frequently, 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 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 carbon injection rate for periods 

of normal operation should not only be adjusted based on load, but also by the percentage of coal 

being fired. If a boiler is burning natural gas or other clean fuel during a certain operational 

period, sorbent injection is not necessary.

Response: We have made adjustments for sorbent injection as discussed above. See the 

response to EPA-HQ-OAR-2003-0119-2605-A1 excerpt 22.

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-HQ-OAR-2003-0119-2568-A1

Comment Excerpt Number: 2

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 are 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 market
286

for such recovered chemical constituents or compounds. A chemical recovery unit is not an

incinerator, waste-burning kiln, an energy recovery unit or a small, remote incinerator under

this subpart. The following seven types of units are considered chemical recovery units:

(1) Units burning only pulping liquors (i.e., black liquor) that are reclaimed in a pulping liquor 

recovery process and reused in the pulping process.

(2) Units burning only spent sulfuric acid used to produce virgin sulfuric acid.

(3) Units burning only wood or coal feedstock for the production of charcoal.

(4) Units burning only manufacturing byproduct streams/residue containing catalyst 

metalswhichthatare 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 underin40 

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 means a combustion unit combusting solid waste (as that term is defined by 

the Administrator under the Resource Conservation and Recovery Act in 40 CFR part 241) for 

energy recovery. Energy recovery units include units that would be considered boilers and

process heaters if they did not combust solid waste.

Energy recovery unit designed to burn liquid waste materials and gas (Liquid/ gas) means an

energy recovery unit that burns a liquid waste with liquid or gaseous fuels not combined with

any solid fuel or waste materials. Energy recovery unit designed to burn solid materials (Solids) 

includes energy recovery units designed to burn coal and energy recovery units designed to burn 

biomass.

Incinerator means any furnace used in the process of combusting solid waste (as thethatterm 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 twochamber.

Modification or modified CISWI unit means a CISWI unit that has been changed later than June 

1, 2001, and that meets one of two criteria: (1) The cumulative cost of the changes over the life 
287

of the unit exceeds 50 percent of the original cost of building and installing the CISWI unit (not 

including the cost of land) updated to current costs (current dollars). To determine what systems 

are within the boundary of the CISWI unit used to calculate these costs, see the definition of 

CISWI unit. (2) Any physical change in the CISWI unit or change in the method of operating it 

that increases the amount of any air pollutant emitted for which Clean Air Act section 129 or 

section 111 of the Clean Air Act has established standards. Solid waste incineration unit means a 

distinct operating unit of any facility which combusts any solid waste(as that term is defined by 

the Administrator in 40 CFR part 241) waste material from commercial or industrial 

establishments or the general public (including single and multiple residences, hotels and 

motels). Such term does not include incinerators or other units required to have a permit under 

section 3005 of the Solid Waste Disposal Act. The term ‘‘solid waste incineration unit’’ does not 

include:(A1) mMaterials recovery facilities (including primary or secondary smelters) which 

combust waste for the primary purpose of recovering metals,;(B2) qQualifying small power 

production facilities, as defined in section 3(17)(C) of the Federal Power Act (16 U.S.C. 

769(17)(C)), or qualifying cogeneration facilities, as defined in section 3(18)(B) of the Federal 

Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous waste (such as units which burn 

tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in 

the case of qualifying cogeneration facilities which burn homogeneous waste for the production 

of electric energy and steam or forms of useful energy (such as heat) which are used for 

industrial, commercial, heating or cooling purposes,;or (C3) aAir curtain incinerators provided 

that such incinerators only burn wood wastes, yard wastes, and clean lumber and that such air 

curtain incinerators comply with opacity limitations to be established by the Administrator by 

rule.

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-HQ-OAR-2003-0119-2592-A1

Comment Excerpt Number: 1

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 regulating 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 ambiguity 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 limited 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, but 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 are 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 burned 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. 

Moreover, 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-HQ-OAR-2003-0119-2592-A1

Comment Excerpt Number: 2

Comment: 

NESCAUM believes that new EPA rules affecting the viability of alternative fuels must be 

carefully crafted to be flexible 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 oil” (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 major 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 following 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 criteria. 

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 need 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-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 10

Comment: 60.2145(v) specifically identifies the use of a bypass stack at any time as a deviation 

for PM, HCl, Pb, Cd, Hg, NOX, SO2 and dioxin/furans. While 60.2875 defines “bypass” for 

subpart DDDD, subpart CCCC does 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 

alkali bypass would not meet the definition of “bypass” as it is used in DDDD. It is nuclease 

however what is intended by CCCC. This must be corrected, as alkali bypass systems are 

necessary in some areas to produce Portland cement 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 kilns with alkali bypass systems 

operate with use of the bypass in order to produce quality low alkali cement, with use of the 

bypass as a normal operating condition. As such, no “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 designed 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 damage. This distinction should be clearly recognized 

and allowed for in the rules.

60.2670(a) – See discussion on bypass stacks [above].

Response: To begin with, we note that the term “bypass stack” is also defined in 60.2265 in 

subpart CCCC, as found at 76 FR 80501. As we clarify in section II.D of the preamble to the 
290

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 

measurement 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 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. 

Commenter Name: William Voshell

Commenter Affiliation: Argos Cement LLC

Document Control Number: EPA-HQ-OAR-2003-0119-2573-A2

Comment Excerpt Number: 5

Comment: Some cement plants may have an "alkali bypass" as 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 

industry.

Response: Please see section II.D of the preamble to the final rule and the response to EPA-HQOAR-2003-0119-2576-A1 excerpt 10. 

Commenter Name: Felix Mestey, Chair, on behalf of Donald R. Schregardus, Environment 

Deputy Assistant Secretary of the Navy

Commenter Affiliation: Clean Air Act Services Steering Committee, Department of Defense 

(DoD)

Document Control Number: EPA-HQ-OAR-2003-0119-2568-A1

Comment Excerpt Number: 3

Comment: Change the definitions identified in the discussion as appropriate.

3. Corrections

During review DoD identified the following typographical 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 gas 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 DDDD
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• §60.2710(w): Change “an” to “a” prior to “Carbon Monoxide CEMS...”

• Tables 6, 7 and 9: In the Mercury rows, in the 3rd column, the table footnote letter following 

“ASTM D6784-02 (Reapproved 2008)” is incorrect. It should be the same footnote letter that is 

shown in the 4th column.

• Table 8: EPA deleted most of the specified span values 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 or 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-HQ-OAR-2003-0119-2572-A1

Comment Excerpt Number: 11

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 60.2735(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 considered 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-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 21

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 suggested edit. 

Commenter Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 22
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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 cubic meters. 

Commenter Name: Patricia Buonviri

Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ)

Document Control Number: EPA-HQ-OAR-2003-0119-2580-A1

Comment Excerpt Number: 4

Comment: Both 60.2145(x) and 60.2165(r) refer to "paragraphs (1) through (5) of this section 

... ",

but in both sections, only paragraphs (1), (3) and (4) appear. Please revise the numbering as 

appropriate.

Response: These rule sections have been revised. The numbering 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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 50

Comment: There are 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 Affiliation: Virginia Department of Environmental Quality (VADEQ)

Document Control Number: EPA-HQ-OAR-2003-0119-2580-A1

Comment Excerpt Number: 1

Comment: The preamble and 60.2165(n) describe PM CEMS as optional for 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. Please see section II.E of the preamble to the final rule for more details. 

Commenter Name: Patricia Buonviri

Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ)

Document Control Number: EPA-HQ-OAR-2003-0119-2580-A1

Comment Excerpt Number: 2

Comment: The way 60.2165(r) currently reads, it appears that "other" ERUs (presumably <250

MMBtu/hr) are allowed to operate a 2165(r) compliant PM CPMS instead of other CMS

monitoring for PM compliance (baghouse leak detectors, 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 >250 

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. Stevens

Commenter Affiliation: National Cement Company, Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2596-A1

Comment Excerpt Number: 3

Comment: National Cement notes that the proposed language in 60.2710 (n) and 60.2710 (o) is 

identical and this may mean that some provision has been omitted. We request that this be 

corrected.

Response: This has been corrected in the final rule. 

Commenter Name: Andrew O'Hare

Commenter Affiliation: Portland Cement Association
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Document Control Number: EPA-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 17

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 request that this be corrected.

Response: This has been corrected in the final rule. 

Commenter Name: Patricia Buonviri

Commenter Affiliation: Virginia Department of Environmental Quality (VADEQ)

Document Control Number: EPA-HQ-OAR-2003-0119-2580-A1

Comment Excerpt Number: 3

Comment: To demonstrate continuous compliance, 60.2165(h) allows a facility to substitute 

use of a PM CEMS in lieu of conducting the PM annual performance test and monitoring the 

minimum pressure drop across the wet scrubber, if applicable. VADEQ 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-HQ-OAR-2003-0119-2605-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 using 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 America
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Document Control Number: EPA-HQ-OAR-2003-0119-2615-A1

Comment Excerpt Number: 1

Comment: Lafarge wants to object to the fact that EPA has limited comments to only those 

issues specifically identified in the December 23, 2011 notice. 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 recognize 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 and 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 rules. 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 Lafarge and PCA filed 

months ago – if acted upon – could further dramatically change the NHSM solid waste universe. 

But despite the fact that EPA is mandated under RCRA to take action on such petitions within a 

reasonable time (RCRA § 7004(a)), EPA’s NHSM re-proposal 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 proposing 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 interrelated provisions 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 ignored. Lafarge believes 

EPA should consider and respond to these comments as well as our current comments if it is 

purporting to engage in reasoned decision making. 

Response: In the proposed rulemaking, EPA clearly stated it would only open up further 

opportunity 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 they 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-HQ-OAR-2003-0119-2615-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 extensive comments on these issues in the first round of CISWI

rulemaking, and in its final CISWI rulemaking of March 21, 2011, EPA simply failed to respond 

to the comments. On January 17, 2012, PCA re-submitted these 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 Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 39

Comment: NACAA has reviewed EPA’s Response to Comments submitted in the 2011 

rulemaking. We recognize that responding in detail to the many thousands of comments received 

in that rulemaking would be an enormous undertaking. As a 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 Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 12

Comment: We are very concerned that the proposed standards will cost much more to 

implement than EPA predicts. EPA’s cost analyses are discussed in the ERG memorandum 

“Compliance Cost Analyses for CISWI Units” (November 10, 2011)[EPA-HQ-OAR-2003-0119-

2552]. EPA has estimated an installed capital cost for add-on control equipment of $517 million 

for ERUs, but we believe the cost will be closer to $643 million. A difference of this magnitude 
297

(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 these cost estimates, which were developed by AF&PA, was discussed in 

AF&PA’s comments on the proposed rules.

EPA’s CO cost analysis for ERUs is clearly flawed. 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 (linkageless 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 management system) for units in the 69 to 184 ppmvd range, and a CO 

oxidation catalyst for units over 184 ppmvd.

There are several problems with this analysis. First, installation of a combustion control system 

will not be sufficient to reduce biomass ERU CO emissions 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 controlling emissions in its analysis. There are also trade-offs between CO and NOX

emissions that need to be considered when determining the appropriate CO emissions reduction 

strategy. This is particularly important under § 129, where both CO and NOX are expressly 

required to be regulated.

Response: EPA established the final standards consistent with the requirements of the CAA and 

sources must determine whether to install controls to 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 determining 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 NOX with regard to combustion control, it is incumbent upon the 

CISWI facility to determine whether combustion conditions can be adjusted to meet both 

standards and, if not, install add-on NOX controls as necessary. Lastly, this is a limited 

reconsideration, and cost methodology is considered out of scope to this rulemaking.

3E. Economic Impacts

Commenter Name: Edward J. Wilusz

Commenter Affiliation: Wisconsin Paper Council

Document Control Number: EPA-HQ-OAR-2003-0119-2582-A2

Comment Excerpt Number: 2
298

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 Emission 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-HQ-OAR-2003-0119-2582-A2

Comment Excerpt Number: 3

Comment: EPA must recognize that energy is a commodity and part of the raw materials used 

by industry to create products. By proposing standards that 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. manufacturers.

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: Commercial 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: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 11

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 these 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 compliance. However, EPA is prohibited from 

considering costs when determining the minimum standards (i.e. MACT floor limit) for each 

pollutant, and all of the CISWI limits were established at the MACT floor level of control. The 

EPA has updated the estimated secondary impacts 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-HQ-OAR-2003-0119-2641-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 definition 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 

in 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 the 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 NonHazardous 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. 

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 and comply with any otherwise applicable section 112 standards, or 

cease operations.
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3Z. Other

Commenter Name: Satish Sheth

Commenter Affiliation: Cemex USA

Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2

Comment Excerpt Number: 1

Comment: CEMEX believes that the public perception of our kilns 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 facilities 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 reducing CEMEX’s use of traditional fossil fuels and raw 

materials and emissions of CO2. 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. 

Response: 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 regulation 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 incineration 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 Flexibility 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-HQ-OAR-2003-0119-2574-A2

Comment Excerpt Number: 1

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 its 
301

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 regulations1. 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 the amount of time he or she spends 

on paperwork compliance. The result will have serious and harmful consequences for the small 

businesses forced to comply with these rules. 

NFIB suggests that to improve these rules further, the EPA should adopt the suggestions the 

small-entity representatives provided the agency during the Small Business Advocacy Review 

(SBAR) panel held in 2009. Though some of these suggestions have been proposed, such as 

additional subcategories for boilers, other recommendations have not 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 reporting 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 boiler 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 primarily to industrial boilers subject to the NESHAP. For CISWI, the EPA has 
302

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 Performance 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-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 20

Comment: 60.2265 – The definition of “small remote incinerator” relies upon both its size and 

its distance to the nearest municipal solid waste landfill. 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 the 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 that 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-HQ-OAR-2003-0119-2620-A1

Comment Excerpt Number: 5

Comment: 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-HQ-OAR-2003-0119-2584-A2

Comment Excerpt Number: 8

Comment: EPA must clarify whether the CISWI standards apply to temporary and portable 

man camps, marine vessels, and offshore sources. It 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. 

7C. Applicability to gasification or pyrolysis units

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 23

Comment: Finally, we ask EPA to clarify the relationship between 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 syntheses gas is processed). In addition, as discussed above, unless 

contained in a container, synthesis gas cannot be considered a waste. However, the preamble to 

the March 21, 2011, CISWI rule included troubling language that implied that 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.”). 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 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 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 and 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 applicability 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-HQ-OAR-2003-0119-2601-A1

Comment Excerpt Number: 3

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 disposal via landfill or open burning, are not regulated to the same extent 

and thus these options are less costly.

The State believes there is a potential environmental, 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 

allowing for the potential economic benefit of using the biomass as a resource rather than a 

waste.

[Footnote: 

7 i.e. pyrolysis units, for the disposal of beetle-kill wood]

Response: We have added a definition of solid waste in the final rule that references the NHSM 

rule at 40 CFR part 241. EPA's proposed reconsideration 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. 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)

Commenter Name: Clint Gill

Commenter Affiliation: ConocoPhillips Company
305

Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2

Comment Excerpt Number: 9

Comment: EPA must clarify whether the CISWI standards apply to temporary and portable 

man camps, marine vessels, and offshore sources. It is worth noting that, in rule development, 

these source categories were not considered.

Response: See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, 

in the CISWI docket for further discussion.

7G. Provide "temporary use" exemption 

Commenter Name: Shawn Good

Commenter Affiliation: Pennsylvania Chamber of Business and Industry

Document Control Number: EPA-HQ-OAR-2003-0119-2627-A2

Comment Excerpt Number: 4

Comment: EPA proposes to exempt temporary boilers, as was done 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 boilers 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.

Response: 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-HQ-OAR-2003-0119-2584-A2

Comment Excerpt Number: 10

Comment: EPA must clarify whether the CISWI standards apply to temporary and portable 

man camps, marine vessels, and offshore sources. It is worth noting that, in rule development, 

these source categories were not considered. 

Response: See the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, 

in the CISWI docket for further discussion.
306

7H. De-minimis Size or Waste Amount Thresholds 

Commenter Name: Basil G. Constantelos

Commenter Affiliation: Edison Mission Energy (EME) et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2586-A1

Comment Excerpt Number: 2

Comment: EPA SHOULD ALLOW A DE MINIMIS EXEMPTION FROM 

TREATMENT AS AN INCINERATOR FOR UNITS BURNING 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 authority, 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 liquor 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 HAPs 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 In The Course Of Normal Boiler Operations 

Would Fit Squarely Within The Scope Of EPA’s De Minimis
307

Authority

1. The Emissions Impacts Of An Exemption Would Be Trivial

Combusting and evaporating boiler cleaning wastes and other materials generated in the course 

of normal boiler operations is standard practice, and 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 maintain 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 potential 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 have 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 that 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 statistically significant increases in metal concentrations over 

baseline data. In addition, the concentrations of NOX, HCl, and HF present in the flue gas were 

also not statistically affected.52 In monitoring studies conducted by EPRI on evaporation of 

boiler cleaning wastes in utility boilers, chromium 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 wastes are tested prior to 

combustion to ensure the concentrations are below the hazardous level. Results for other metals, 

PM, and trace organics were similarly low.54 Water treatment resins are used to demineralize 

boiler feed water. Like home water softeners, utility-scale water treatment resins are used to 

remove minerals and other compounds that would lead to scaling and clogging of boiler 

equipment. Although resins can be reused multiple times, they eventually become spent and can 

no longer effectively cycle 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 contain 

would be from the water supply, not the fuel supply, and thus with limited potential for 

hazardous materials to be included. Indeed, boiler cleaning wastes and other non-hazardous 

materials have routinely been allowed to be evaporated in onsite utility 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 burn boiler cleaning wastes only when the boiler 

is in a normal mode of operation and generating no less than 105 megawatts (gross). Burning of 

boiler cleaning wastes is not allowed during startup, 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 onsite generated 

materials such as boiler cleaning wastes that would be evaporated in the boilers, EME’s 

experience is that the waste volumes range from approximately 250 to 1835 tons per boiler per 

boiler cleaning event, but would only be fed to the boiler at a rate of up to 0.8 tons per minute.57

This contrasts with a total amount of coal burned on average in each boiler of between 1,420 and 
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8,220 tons per day. The boiler cleaning frequency can vary from every two to ten years, 

depending on the type of boiler and the coal burned. Other materials generated include resins 

from water treatment; however, those materials are even more limited in amounts than the boiler 

cleaning wastes. Regardless, the annual amount of boiler cleaning wastes generated for each 

individual boiler is relatively small – a mere fraction of a percent on an annual basis – even 

assuming boilers are cleaned every year, which they are not. The application of de minimis 

authority where emissions impacts are trivial is consistent with how courts have addressed the 

authority in the context of similar situations. Here a de minimis exemption for materials 

generated in the normal course of boiler operation would have minimal or no impact on the level 

of emissions. Since this does not affect the purpose of the CAA, i.e. reducing emissions, 

allowing such an exemption would be a proper exercise of 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

While the volumes of solvents are minuscule compared to the overall volume of fuel burned, the 

costs of the disposal for a boiler cleaning event can exceed $1 million per event in EME’s 

experience, and as a result the costs to the industry may exceed $50 million per year. The 

amounts generated that would require offsite disposal are estimated at 125,100 tons per year.58

This compares to annual coal burned of over 1 trillion tons per year. EME questions whether 

there is sufficient treatment capacity for this 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. EME requests that EPA apply its de minimis authority to prevent this unnecessary 

regulatory burden.

[Footnotes]

(47) 636 F.2d 323 (D.C. Cir. 1979).

(48) See 76 Fed. Reg. 15,487.

(49) See 40 C.F.R. 261.3 (a)(2)(iv)(F) and (G).

(50) See ELECTRIC POWER RESEARCH 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” memorandum, 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-HQ-OAR-2003-0119-2577-A1

Comment Excerpt Number: 2

Comment: 

EPA Should Clarify that the Introduction of Waterside Boiler Chemical Cleaning Wastes 

into Utility Boilers is Not Combustion Triggering CISWI Standards 

As USWAG has previously informed EPA, one routinely generated secondary material that is 

commonly managed 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 reduce 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 corrosion 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 cleaning process 

removes metal oxide deposits that form on the interior of the boiler tubes and the solvent solution 

used is subsequently flushed with demineralized water rinses. The solvent and rinses are 

collected in a series of connected tanks. The volumes 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, the 
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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 expected 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. The 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 exclusively 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 acids (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 

capable 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 notice and interpretive memorandum issued to the 

Portland cement industry. 

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI 

docket for further discussion. To the extent the commenter asks about secondary materials used 

in combustion units other than cement kilns, we would advise the commenter to request 

consultation with EPA on the specific nature of the material and its intended use in the 

combustion unit.

Commenter Name: Jim Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OAR-2003-0119-2577-A1

Comment Excerpt Number: 3

Comment: EPA Should Clarify that the Introduction of Fireside Wastewater into Utility Boilers 

Does Not Trigger Application of CISWI Standards 

Another secondary material that is managed in utility 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. The 
311

only secondary materials present in this wastewater are previously combusted materials 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 boilers 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 CISWI 

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 intended use in the 

combustion unit.

Commenter Name: Bart Sponseller

Commenter Affiliation: Wisconsin DNR

Document Control Number: EPA-HQ-OAR-2003-0119-2612-A1

Comment Excerpt Number: 3

Comment: The Department believes that sources firing very small amounts 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 alternative 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 Affiliation: Omaha Police Department

Document Control Number: EPA-HQ-OAR-2003-0119-2649-A2

Comment Excerpt Number: 1

Comment: In December 2009 the Omaha Police Department began using Ash Grove Cement 

Company, Louisville, NE to properly dispose of illegal narcotics. 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, several 
312

law enforcement agencies in the 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 

solution that is allowable within EPA guidelines and cost efficient. For years Ash Grove has 

been the best option, as it is free of charge, in close proximity, and allowable under EPA 

guidelines. With the current state of the economy, the cost factor is even more of a consideration 

for our department. The service provided by Ash Grove is 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 small 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-HQ-OAR-2003-0119-2641-A2

Comment Excerpt Number: 5

Comment: Both the Major Source Boiler Rule and the Area Source Boiler Rule have a 

provision for small units which EPA has expanded. In the proposed Boiler rules, boilers are 

exempt from the rule if they meet the definition of a hot water heater.

Hot water heater means a closed vessel with a capacity of no more than 120 U.S. gallons in

which water is heated by combustion of gaseous or liquid 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 that the 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-HQ-OAR-2003-0119-2641-A2

Comment Excerpt Number: 3

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 wastewater 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 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-HQ-OAR-2003-0119-2641-A2

Comment Excerpt Number: 4

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 boilers 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 onspecification waste oil standards. The 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 offspecification waste oil combustion in licensed units would increase the volume of waste oil that 

must be shipped to processing facilities. 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 

Major Boiler Source MACT standards while that fuel type produces equivalent or higher HAP

emissions than off-specification waste oil.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI 

docket for further discussion.
314

7L. Requests for extension of comment period

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 3

Comment: Under basic principles of due process and administrative law, EPA has an obligation 

to provide the public with a reasonable opportunity to comment on proposed rules. Specifically, 

Congress requires EPA to give the public “a reasonable period . . . of at least 30 days” in which 

to comment on “any regulation” promulgated under the CAA.9 By the clear terms of the CAA, 

Congress indicates that 30 days is the minimum time 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 statutory 30-day minimum would be reasonable for a single, 

ordinary proposed rule. Here, EPA has violated the clear terms of the CAA and deprived sources 

of a means to adequately protect their interests and 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 of 

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. Although 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 before 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 why 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 specific requests for comment EPA made in the 

four rules, and where necessary or appropriate, and where time permitted, to compile data to 

support its positions. 

[Footnotes]

(9) 42 U.S.C. § 7607(h) (2006).

(10) How Costs Were Determined for CIBO Boiler MACT Study, January 2012, Appendix C.

(11) See January 18, 2011 letter of 27 organizations to EPA, Appendix D.
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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: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 7

Comment: As EPA is well aware, the proposed rules have 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 whether 

the standards can be achieved by affected sources. A large percentage of sources must first apply 

a complex set of factors under the NHSM rule to each 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, the 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 non-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 analysis and to assess the achievability and impact 

of all four rules on the full range of affected sources at each facility.

In response to our request on the initial rule, EPA provided additional time for comments. Now 

on reconsideration, the rules are no less 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 

allowed 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 commitments 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 comments.
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 (ERC)

Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 1

Comment: In general, the Energy Recovery Council believes that the comment period was

inadequate given the complexity, breadth of applicability, and economic impact of the rules as 

proposed on December 23, 2011. The proposed rules are complex, driven by intensive data 

collection and calculation. While ERC joined other groups in requesting an extension of the 

deadline for public comments, EPA refused the extension 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 comment 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: EPA-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 23

Comment: PCA disagrees that emissions limits should apply during startup/shutdown events 

and requests that work practices address these operating periods: EPA should exempt kilns from 

emissions limits during startup and shutdown and instead 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 

approach used by the industry for years in defining appropriate time periods for startup and 

shutdown by kilns subject to the hazardous waste combustor NESHAP. The definitions are 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 its 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. 75 FR at 54991. While PCA does not agree with or endorse the specific 

numeric standards for startup and shutdown in the NESHAP rule (and in fact is challenging them 
317

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 shutdown 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 events. See pp. 92-

93 of PCA's August 23,2010 Comments (EPA-HQ-OAR-2003-0119-1972). In its response to 

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 approach. 76 Fed. Reg. 

15737-78.

EPA's failure to respond to these comments would of course render the final CISWI rule 

vulnerable on judicial review. As noted earlier, PCA 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 proposal. In the so-called 

"Boiler MACT" re-proposal published at 76 Fed. Reg. at 80598, EPA 's proposed regulatory 

language in § 63.7500 provides that the rule's emission 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 

are maintained by monitoring O2 concentrations and optimizing those concentrations as specified 

by the boiler manufacturer; you must ensure that boiler operators are trained in startup and 

shutdown procedures, including maintenance and cleaning, safety, control device startup, and 

procedures to minimize emissions; and you must maintain records during periods of startup and 

shutdown and include in your compliance reports the O2 conditions/data for each event, length of 

startup/shutdown and reason for the startup/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-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 7

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 EPA 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 authority 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 the 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 proposed 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 the 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 strict 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 fuels, and not waste, during SS periods, they are no 

different than the combustion units covered by the major source and area source boiler rules.2In 

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 and shutdown. See, 

§63.7530(h) (major source); and § 63.11201(b) (area source).3These 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 should 
319

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 Boilers, 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 source boiler rule).

3

In the preamble to the final major source boiler rule, EPA states: ―Consistent with Sierra Club 

v. EPA, EPA has established standards in this final rule that apply at all times. In establishing the 

standards in this final rule, EPA has taken into account 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 

manufacturer‘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: ConocoPhillips Company

Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2

Comment Excerpt Number: 6

Comment: EPA violated §129 by excluding from its MACT floor calculations of SRI emissions 

during startup and shutdown periods. EPA does not have the necessary 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 periods 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 proposed 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 Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 9

Comment: As we set forth in Attachment 1 to our August 2011 Petition for Reconsideration 

(Docket OAR-2009-0119), when the CISWI emission limits are averaged in the same manner as 

the major 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 shutdown 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 emissions 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 established 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 addresses 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-HQ-OAR-2003-0119-2605-A1

Comment Excerpt Number: 5

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 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 proposed 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 
321

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 they 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 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: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 14

Comment: The court in Sierra Club did not state that EPA must apply the same standards it 

establishes for normal operations during periods of SSM. The court’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 CISWI 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 bestperforming 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 preventable,” 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 malfunction, 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 decision-making and we hope that 

the Agency’s “reconsideration” of its approach will prompt it to give reasonable consideration to 
322

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: 776 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 the 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 (CIBO)

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

Comment Excerpt Number: 7

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 same reasons 

identified by CIBO in prior versions of this rulemaking, CIBO opposes this approach as not 

reasonable. Given that malfunctions are essentially the same as periods of startup and shutdown, 

work practice standards should also apply. As CIBO points out in its Petition, EPA recognizes in 

both the Boiler MACT and Area Source rule, “that it is not feasible to require stack testing – in 

particular, to complete the multiple required test runs – during periods of startup and shutdown 

due to physical limitations and the short duration of startup and shutdown periods. Operating in 

startup and shutdown mode for sufficient time to conduct the required test runs could result in 

higher emissions than would otherwise occur.” 76 Fed. Reg. 15577, 15642. It is irrational to 

view malfunctions any differently than startup/shutdown 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. Malfunctions 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 reporting 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 Association
323

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

Comment Excerpt Number: 5

Comment: Our first preference, consistent with the SSM Coalition comments, that EPA 

imposes work practices that would apply during periods of malfunctions in place of the numeric 

emission limitations that the CISWI rule now provides. As the SSM Coalition notes by way of 

example, "there are work practices- such as monitoring operating parameters to identify a 

malfunction and stopping or cutting back the process accordingly -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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 33

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 incorporated 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 incinerators 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 before 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 

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 
324

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: Patricia Haederle

Commenter Affiliation: American Chemistry Council (ACC)

Document Control Number: EPA-HQ-OAR-2003-0119-2606-A1

Comment Excerpt Number: 13

Comment: CAA § 129 (a)(2), which incorporates the same MACT 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 and 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 technology 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 emission 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 experience a malfunction.6 

Because EPA failed to consider the level of emissions that may result from a malfunction and 

incorporate that consideration in the numeric emission limitations, which apply at all times (other 

than during startup and shutdown), EPA’s actions are 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 example, the D.C. 

Circuit recognized, in Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 398 (D.C. Cir. 

1973), a decision reviewing standards under CAA section 111, that “‘start-up’ and ‘upset’ 

conditions due to plant or emission device malfunction, is an inescapable aspect of industrial life 

and that allowance must be made for such factors in the standards that are promulgated.” Id. at 

399. Similarly, in Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 432 (D.C. Cir. 1973), cert. 
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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 

promulgated 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 requirements).]

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

Commenter Affiliation: Energy Recovery Council (ERC)

Document Control Number: EPA-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 11

Comment: EPA’s requirement that emission limitations apply at all times oversteps legal 

authority, and even if legal the proposed 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 2008 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” memorandum, 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-HQ-OAR-2003-0119-2599-A1

Comment Excerpt Number: 15

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 would specify a procedure which 

would be used to set mass rate emission based standards for each subcategory and unit case-bycase based on emissions reductions achieved using accepted SU/SD procedures. For example, for 
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a unit using SNCR NOX reduction technology the SU/SD NOX 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 technologies 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 

emission 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 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. 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 State, local or tribal agencies, as specified in 

§60.2030(c).

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 31

Comment: We disagree with EPA’s unsupported assertions that the 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 load and temperature are coming up to full load steadystate conditions. The Maine Department of Environmental Protection has stated “Wood and 

multi-fueled boilers produce large CO variations during startups as the boiler heats up. Start-ups 

can take up to 14 hours for some units. Shutdowns can also result in significant CO 

variability.”14 EPA itself recognized in the Boiler MACT that “CEM 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 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 chamber 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 these 
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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 pollution control equipment practices to establish performance capabilities. If 

EPA cannot use best operating practices under Section 129 as it has under Section 112, then it 

should consider several options for separate and distinct startup and shutdown standards 

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 startup);

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 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. 

Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 24

Comment: NACAA agrees that a definition limiting the period of “startup” is appropriate. We 

recommend that such a definition be based on a percentage of the normal operating load of 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 the 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.
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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-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 1

Comment: THE CISWI RULE DOES NOT SATISFY CLEAN AIR ACT § 112(C)(6).

As pointed out in the 2010 Comments and the Petition, EPA 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, Emission Standards for Meeting the 

Ninety Percent Requirement Under Section 112(c)(6) of the Clean Air Act, EPA-HQ-OAR2004-0505 (February 18, 2011). Section 112(c)(6) expressly provides that EPA must “list 

categories and subcategories of sources assuring that sources 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 requirement is subject to standards for each hazardous air pollutant that a category 

emits. See National Lime Ass’n v. EPA, 233 F.3d 625, 634 (D.C. Cir. 2000); Mossville

Environmental Action Network, 370 F.3d 1232, 1242 (D.C. Cir. 2004). Even if EPA were not 

required to set standards for all hazardous air pollutants emitted by CISWI sources—which it 

is—it would at least be required to set standards for 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 does 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 “invariably” 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” reductions 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 particular, 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 other 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 “CISWI 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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 1

Comment: Rather than pursuing the NHSM, CISWI and cement NESHAP rulemakings 

simultaneously as it is currently doing, EPA should be pursuing the three rulemakings 

sequentially: As EPA is well aware, the Agency is now under judicial order to reconsider the 

cement NESHAP rule it issued on September 9, 2010. 75 Fed. Reg. 54970 et seq. EPA is also 

aware that, in PCA v. EPA (D.C. Cir. cases 10-1358, 10-1359, slip opinion issued December 9, 

2011), the D.C. Circuit ruled that the formulation of 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 objective 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 

drawn 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 McCarthy 

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 unless 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 discussed this 

issue in section V. of the preamble to the March 2011 final rule in our responses on comments on 

the CISWI Promulgation Schedule and 112(c)(6) obligations. Furthermore, EPA has considered 

the final definition of non-hazardous solid waste in issuing 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 approach taken. The fact that the standards may have changed as 

the result of a changed inventory, without a change in the analytical approach, is of no 

consequence. Standards often change after proposal based on the submission of additional 

information and we see no substantive difference between that situation and the situation we 

have in this case.
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Commenter Name: Susan Bodine

Commenter Affiliation: Federal Recycling and Remediation Coalition (FRRC)

Document Control Number: EPA-HQ-OAR-2003-0119-2597-A1

Comment Excerpt Number: 13

Comment: Section 129 of the Clean Air Act provides that a unit that is a commercial and 

industrial solid waste incinerator is subject to the 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 Rule 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 finalize 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. Reg. 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 that 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 review of those MACT

standards, the D.C. Circuit stated: "Basing its decision on a premise [the premise that all kilns 

would be subject to the Portland Cement MACT] the agency itself has already planned to disrupt 

is arbitrary and capricious." Portland Cement Ass’n v. EPA, Case No. 10-1358 (D.C. Cir. Dec. 9, 

2011), slip op. at 13.

The same issue is presented by EPA’s development of both its CISWI standards and its Boiler 

MACT standards. EPA is once again changing the NHSM Rule and other MACT standards at 

the same time, "disrupting the premise," of what units 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 capricious. 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 ability 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 promulgating the CISWI and Boiler MACT Rules 
331

and, in the NHSM rule, to presume that materials used as fuel or ingredients in combustion units 

are non-wastes or to categorically list as non-waste all the fuels and ingredients used by units that 

EPA has determined to be subject to the Boiler MACT, including all the categories of fuels and 

ingredients discussed above.

Response: For response, see DCN EPA-HQ-OAR-2003-0119-2603-A1, Excerpt No. 1.

Commenter Name: Michael Pelan

Commenter Affiliation: Lafarge North America

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

Comment Excerpt Number: 2

Comment: Lafarge would like to comment on the procedural issues resulting from EPA’s 

approach to undertaking the NHSM and CISWI reconsideration rulemakings simultaneously. 

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 judicial 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, et seq. 

Quite recently, in PCA v. EPA (D.C. Cir. cases 10-1358, 10- 1359, slip opinion issued December 

9, 2011), the D.C. Circuit unanimously ruled that the 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 exercise, for the dividing 

line between “mutually exclusive” CISWI and NESHAP sources is drawn solely by whether a 

source is combusting a “solid waste” as defined in the NHSM rule. On January 5, 2012, PCA

made such a recommendation and request, together with 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 before 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-HQ-OAR-2003-

0119-2603-A1, Excerpt No. 1. 

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 8
332

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 corners 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 public or the Agency well.

Response: This comment requires no response.

Commenter Name: Satish Sheth

Commenter Affiliation: Cemex USA

Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2

Comment Excerpt Number: 14

Comment: In the event that EPA continues to regulate kilns 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 cement 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 specific 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 with 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 rule. 

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

Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 5

Comment: EPA has studied its approved reference testing methods 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 detection level applied, most 

of its test procedures are accurate to within +/- 50 percent; at other times EPA asserts that these 

tests are accurate to within +/- 15 percent. Monitoring devices, such as CO monitors, must meet 

stringent requirements for drift and must be calibrated 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 of 
333

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 factored any of these facts into its 

determination of the performance of the best performing units. In order to evaluate whether 

EPA’s procedure for calculating variability is appropriate, one first has to examine what 

“variability” EPA is calculating and whether it is 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) the 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 detail to determine 

whether the difference represented inherent variability in performance of the unit or is a 

consequence of factors (such as fuel composition or specific hardware design) that are within the 

control of the source, and so it simply, and incorrectly, 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 which 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 sufficient 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 variability 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 has 

acknowledged this problem and attempted to partially respond to it by using its “beyond the 

floor” MACT authority to raise the new source MACT limit to the level of the existing source 

MACT floor in 24 subcategories. While directionally correct, we believe 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 series 

of multipliers and alternate tests of variability. In most, but not all instances, EPA selects the test 

that leads to the least stringent MACT floor determination. Moreover, the basis for several key 

decisions respecting data management (discussed below) 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, factors 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 with 
334

relatively small numbers of tests is clearly illustrated by the Hg limit EPA calculated for liquidfired boilers. While these factors affect all of EPA’s MACT floor calculations, they are most 

apparent in the calculations for new sources, which, under EPA’s methodology, always involve 

single units with limited testing. The following discussion 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 test 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 only the 

“lowest test result” for a given unit rather than all test results. In most instances, the difference in 

effectiveness is minimal, as most sources were only tested once, so the “lowest test result” is also 

the highest test result. Where a significant number of units were subjected to more than one test, 

we have also produced a chart including all test results 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” and 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 assumed 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 results6available 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 inconsistent 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 overall 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 determination of the potential variability of that average.7The 

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 not 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 in 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 percent 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 units 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.9The development of a compliance margin should be limited to an 

evaluation of the variability of the top 6 percent performing 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 procedures 

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 proposes10 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 measured 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 figure 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 percent11 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, even where EPA has no information 

that the detection levels reported by the laboratory are incorrect.

Pooling Variability

Pooled variance is a method for estimating variance 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 of 
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unique sources. As a result, the method is highly sensitive to the number of tests and the number 

of units that are tested. However, in some subcategories the majority of the test and fuel analysis 

results were BDL and the detection limits for the emission test results are several times lower 

than those for the fuel analyses. EPA’s pooled variance process generates high levels of 

variability, based largely on differences in the degree of precision of the measuring process and 

EPA’s treatment of BDL data (where the results are known 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 each 

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 

percent (i.e., the 6th through 12th percent best performers), do not “comply.”

10EPA 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: Michael D. Stevens

Commenter Affiliation: National Cement Company, Inc.

Document Control Number: EPA-HQ-OAR-2003-0119-2596-A1

Comment Excerpt Number: 4

Comment: For a number of the emissions limits proposed in Subparts CCCC and DDDD, EPA 

has based the limitation on an analysis of stack test data, but compliance with the limit will be 

demonstrated based on monthly averaging of emissions, using a Continuous Emissions 

Monitoring System (CEMS). National understands that the variability in emissions performance 

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 (PM) that are now in the record 

for the PC NESHAP regulation. With this in mind, the proposed CISWI standards are more 
337

stringent than EPA intended under its current analysis. Therefore, National Cement asks that 

EPA revise upward all of the proposed standards 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” memorandum, 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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 24

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 CISWI data and 

associated floor analyses were inadequate and fell short of providing an accurate characterization 

of emissions from solid waste-burning kilns. PCA suggested 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, 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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 2

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 performing 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 realworld 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 predictive limit (UPL) or incorporation of a percent reduction standard are two options.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI 

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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 10

Comment: 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 building of new units, and that it will 

increase costs to many other units that have to substitute purchased fossil fuels for secondary 

materials currently burned as fuels. Such statements further demonstrate that the standards are 

unwarranted. The biggest problem 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 that 

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 the 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 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-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 25

Comment: EPA Should Adjust its Floor Setting Process 

Section 129 of the Clean Air Act requires MACT standards for new and existing units to be 

based on “maximum degree of reduction in emissions” 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 to as “MACT floor limits.” In its CISWI rule proposal, EPA used a step-bystep 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 lognormally distributed, and calculating an upper limit, all on a pollutant-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 stringency 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.

In 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 were 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 coupled 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 emission 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.6These standards also 

encourage practices counter to EPA’s own solid waste management and energy 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 ppmdv77. 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 ppmdv7, 38 times more 

stringent. 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 be 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 technologydriven standard and there is no fundamental difference between 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 landfilling 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 results 

at 153 ppmdv7. 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 ppmdv7, 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 

elsewhere EPA has applied its methodology to very limited data with seemingly no check on 

whether the resulting floor limit is rational.

Section 129 requires new units to meet standards which are equivalent to or more stringent 

than existing units, but EPA’s methodology resulted in 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 pollutants 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 floor limits, erring on the side of achievability; 

otherwise, it risks setting standards that have not been achieved in practice, in contradiction to 

the law.

[Footnotes:

6 We note that, unlike § 112(d)(3)(A), EPA’s standard 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 Parts 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 discussion.

Commenter Name: Paul Noe, Vice President for Public Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 27

Comment: Selection of upper limit value. In the final rule, EPA selected the 99th percentile 

upper predictive limit of the pooled best performer data as the MACT floor for each pollutant. 

To the lay person, 99% may sound like a very high compliance probability. To the CISWI

operator, however, it means a 1% probability of failure, per pollutant, per performance test and 

represents an unacceptable compliance risk with numerous attendant consequences. For a two 

unit facility and nine pollutant limits non-compliance risk of a single performance test is 1-

(0.99)18 = 17%, or approximately one failure every six years. In addition, setting the standard 

right at the selected upper limit does not allow for any compliance margin that every operator 

needs. For floors set using statistical metrics EPA 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 limit 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 distributed over the 

entire population distribution. EPA acknowledges this random premise (76 Fed. Reg. 15724), yet 

it provides no evidence supporting it. In fact, run-to-run results within performance tests at many 

CISWIs are not likely to be distributed randomly 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 proposed 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 variance 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 is 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 matrix. Intra-unit variability is the variability 

observed in test results from the same unit due to differences in waste composition, and process 
342

and air pollution control operation conditions during each test run. As such, if total variability is 

not addressed 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 Rule8and the HWC

MACT Rule9. 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 pollution control type and 

sample matrix affects when sampling. VW is the within or intra source variance and is calculated 

as the sum of the variances of individual runs within 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:

8Development of the MACT Floor for the Proposed NESHAP for Portland Cement, April 2009. 

EPA-HQ-OAR-2002-0051-2011.

9 Technical Support Document for HWC MACT Standards, Volume III: Selection of MACT

Standards. U.S. Environmental Protection Agency, Office of Solid Waste and Emergency 

Response. September 2005, Pages 7-5 to 7-7. EPA-HQ-OAR-2004-0022-0453.]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated 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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 1

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 to 
343

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 inexplicably 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 strongly 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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 2

Comment: 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 the 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 assumptions lead to gross overestimates of the 

variability in performance of the best performing units and proposed emission limits that are 

higher than current emissions. Such limits simply create testing and paperwork burdens without 

providing any public health benefit. 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 calculation 
344

procedure, in response to comments from industry, and “pooled” the statistical variation shown 

by individual units. The public was not provided an opportunity to comment on this change, even 

though it led to a significant upward revision of a number of proposed limits. 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 subcategories 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 currently being met by almost 

all units subject to the regulation. This is inconsistent with the statutory requirement that the 

existing source MACT floor be set at the performance that reflects the 94th percentile (average 

of the top 12 percent) of the best performing 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 number 

of subcategories that EPA proposes is too high for the benefit that would be achieved and would 

further delay issuance of final rules for several years. EPA did not design its test program with 

the subcategories it now proposes in mind and therefore did 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 that 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 reasonable 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 also offer several suggestions to correct the larger sources of error in 

EPA’s approach.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated 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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 8
345

Comment: EPA has recommended the use of the 99th percentile UPL of pre-regulation testing 

and argued that its use is justified because the agency adopted the same approach in the medical 

waste incinerator MACT rule. This rationale does not explain why EPA believes the 99th

percentile UPL is appropriate and not the 50th,

15 90th or, for that matter the 99.99th percentile.16

The decision matters because with each increase in the “guaranteed” compliance margin, the 

standard increases, and there comes a point where the compliance margin is so great that sources 

can merely accept the risk of a failed compliance test rather than reduce emissions. If a source 

fails a compliance test it will ordinarily be afforded the opportunity for a retest and only if a 

source has a confirmed deficiency 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 than 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 provided 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 distributions 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 otherwise. 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 set, one must determine whether the results 

of the method employed make sense. We submit that EPA’s decision to use the 99th 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 for 

standards with short averaging periods and continuous emission monitors (“CEMs”) than for 

standards that have long averaging periods or where compliance is determined by scheduled 
346

stack tests conducted by the source.17 We also agree with EPA that a larger 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 helpful are the provisions in the rules that set out the conditions 

under which compliance will be determined. In years past, facilities were to be tested under 

“reasonable worst case conditions.” Today, that standard has been reduced to “representative” 

conditions – a phrase that suggests that a compliance margin based on a 99th percentile 

projection19 of possible emissions may be too large and that industry projections of severe test 

conditions may be overstated. Moreover, the structure of the compliance obligations itself 

suggests that the 99th percentile may be too stringent. The following factors, among others set 

out in the proposed rules, bear on a determination of the appropriate compliance margin: 

1. For sources that intend to comply with mercury and hydrogen 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 compliance), 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 effective than demonstrated during the 

stack test (a useful provision, but also one that suggests that EPA believes that in-use emissions 

variability is zero); 

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 stack test20 (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

15Civil enforcement of environmental standards is based on a “preponderance of the evidence,” 

which merely requires that a violation be more likely than not (51st percentile).

16Some 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.

17We 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 operating 

conditions during the test.

18EPA 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 compliance (where EPA does not intend sources to have to “confess” to a 

violation of law), but not otherwise.

19 We understand that a 99th percentile UPL is not precisely the same as a 99th percentile worstcase condition, but the differences are extremely subtle.

20If 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 “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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 12

Comment: RECOMMENDATIONS CONCERNING CALCULATION OF THE MACT 

FLOOR

In the absence of sufficient data to make determinations of the variability of individual units and 

subcategories with limited data, EPA should develop a 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 reason 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 affects 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 a 
348

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 the top 12 

percent. This might include the top 25 – 33 percent of units based on their mean test result and 

all units whose mean test emissions are within an order of magnitude of the best performing unit.

• Calculate the nominal “performance” of each unit; by summing the mean and one standard 

deviation28 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 approach 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 group. 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 than 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 basic 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. Iteration in this fashion should identify a point where the reduction in sample size 

outweighs the improvements normally expected from better performing units.

• For purposes of determining the arithmetic average, results reported at a detection limit should 

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 90th 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 subcategory, 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 that 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 similar 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 large 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 periods, 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 corresponding reference method (three- hour) limit. [Footnotes:

27We have not conducted these sorts of analyses and have no way of anticipating their results.

28It 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: Earthjustice, Partnership for Policy Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 4

Comment: As described at length in the Petition, EPA’s approach to variability in setting 

MACT floors for the CISWI Rule is seriously flawed. 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 reconsideration 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

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 7

Comment: As a practical matter, EPA’s inconsistent approach to identifying the best sources 

and measuring these sources’ performance substantially 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 sources 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 

protective. 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. Likewise, if EPA identified the best 

sources based on its statistical analysis of all their emissions tests and – consistent with that 

approach – measured their performance the same way, its 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-HQ-OAR-2003-0119-2571-A1

Comment Excerpt Number: 2

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 determining emission standards. The continued cherrypicking 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 EPA’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. See 

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-HQ-OAR-2003-0119-2593-A1

Comment Excerpt Number: 6

Comment: EPA’s HAP by HAP approach to setting the MACT floor violates the Clean Air 

Act 

The EPA ignored the record evidence of the performance 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 individual 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 arbitrary 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 pollutantby-pollutant analyses that rely on a different set of best performing sources for each separate 

HAP standard. See, e.g., 76 Fed. Reg. at 15,621-23. In other words, the EPA “cherry picked” the 

best data in setting each standard, without regard for the sources from which the data came. This 

approach violates the language of § 112, which is focused on 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 

distinguishing 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 provisions make clear that standards must be based on actual sources, and cannot be the 

product of pollutant-by-pollutant parsing which results in a set of composite standards that do not 

necessarily reflect the overall performance of any actual source. Congress provided express 

limits on the EPA’s authority to parse units and sources for purposes of setting standards under § 

112 and that express authority does not allow the EPA to “distinguish” units and sources by 

individual pollutant as is proposed in this rule. Sierra Club v. EPA, 551 F.3d 1019, 1028 (D.C. 

Cir. 2008) (noting statutory limitations on EPA’s authority to distinguish sources).

Further, the EPA has calculated its proposed MACT floors solely on the basis of emission data. 

The EPA utterly ignored the 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 

required 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 the 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 product of pollutant-bypollutant parsing. 

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI 

docket for further discussion.

Commenter Name: Roger Martella

Commenter Affiliation: National Alliance of Forest Owners (NAFO)

Document Control Number: EPA-HQ-OAR-2003-0119-2595-A1

Comment Excerpt Number: 5

Comment: In order to properly reflect the health and climate 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 healthbased approach will ensure that high compliance costs are not imposed on the industry unless 

commensurate health benefits are provided.

Second, we urge EPA to adopt more reasonable emissions limits for CO and PM that are less 

stringent and less costly, but still achieve statutory requirements. Again, the costs required to 

meet the proposed emissions limits are unreasonably high in comparison to the public health and 

environmental benefits that will accrue. EPA can encourage, rather than discourage, the use of 

clean, renewable biomass fuels by imposing less stringent standards that will still comply with 

EPA’s statutory mandates under the Clean Air Act. Third, we urge EPA to focus on emissions 

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 between 
353

emission control technologies and produces standards that 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-pollutant 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:

28Id. 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 Policy, AF&PA

Commenter Affiliation: American Forest & Paper Association et al.

Document Control Number: EPA-HQ-OAR-2003-0119-2611-A1

Comment Excerpt Number: 29

Comment: Pollutant-by-pollutant approach. This issue has been vetted in other forums, but it 

bears repeating the request here on the basis of legal arguments presented by multiple 

commenters. EPA’s pollutant-by-pollutant approach has significant impact on the achievability

of the CISWI standards. EPA should reconsider its pollutant-by-pollutant approach, 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.

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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 16

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 rounding 
354

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 argument ignores the public 

interest in reducing emissions of hazardous air pollutants, as well as normal engineering 

protocols. It would also seem to be contrary to written EPA policy concerning rounding for 

NSPS compliance purposes.36 This policy, which has not been revised to our knowledge, adopts 

ASTM standard rounding protocols – carry at least five 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 final 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 less 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 counting 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 process37 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 because 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 subcategory38, the source had been tested twice, for a total of six 

runs. Results from five of the six runs were low and 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 retained this value and the result is an extremely high new source MACT

floor calculation.

[Footnotes:

36See, “Memorandum: Performance Test Calculation Guidelines”, William Laxton, OAQPS, and 

John Seitz, OAQPS.

37The rounding process employed by EPA can increase MACT floor results significantly. The 

other biases we mention are unlikely to have a large impact on the MACT floor. The use of lognormal statistical procedures may or may not result in lower MACT limits than would otherwise 

be the case, but is technically justified where nonnormal distributions are observed.
355

38Biomass 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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 33

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: Earthjustice, Partnership for Policy Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 9

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 always higher than

the emissions of the best performers. The Act requires that it be lower. The Act therefore

requires EPA to round emissions limits down, or not at all. At the very least, EPA should follow

a normal approach to rounding in which it maintains several 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: Cemex USA

Document Control Number: EPA-HQ-OAR-2003-0119-2632-A2

Comment Excerpt Number: 15

Comment: We believe EPA has worked hard and accomplished more achievable standards with 

the reconsideration, but 1) they aren’t necessary as cement kilns, regardless of their use of 

NHSM, are adequately regulated by the PC NESHAP and do not require regulation under 
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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 (see 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 flawed 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 conversations. 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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 17

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 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.

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-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 8

Comment: EPA also has failed to fix its flawed approach to non-detection values, explained in 

the 2010 Comments and the Petition. 2010 Comments, Ex. 1, at 1–4; Petition, Ex. 2, at 3–4. 

Those arguments are hereby incorporated by reference. EPA does, however, solicit comment on 

whether it should select a lower quantification boundary for pollutants the emissions of which 

are lower than detection limits for the best sources. EPA should. Currently, EPA uses the highest 

detection limit reported for each pollutant by any of the reporting laboratories, rather than just 

those used by the best performing source or sources, 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 the 
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emissions—of the best sources. This is contrary to the Act and arbitrary. EPA should set 

emissions limits for these pollutants at the lowest non-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 pollutant 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 below 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, otherwise the measured concentration values as reported in the testing were used 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 MDL 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 floor 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 between the method detection limit and the level of quantitation have 

more uncertainty than values at or above the level of quantitation, therefore we make this 

determination to provide a value to the floor setting decision process that describes the level of 

quantitation for the compliance determination method. If 3xRDL was less than the calculated 

floor or emissions limit calculated from the upper prediction limit (UPL), we concluded that 

measurement variability was adequately addressed and the calculated floor or emissions limit 

was not adjusted. If, on the other hand, the value equal to 3xRDL 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, and the value equal to 3xRDL was substituted for the 

adjusted floor or emissions limit (i.e., increasing the floor to be equal to 3xRDL). This adjusted 

value ensures measurement uncertainty is adequately 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.
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We note that in the proposal preamble (76 FR 80463) we were intending to solicit comment on 

other commenter’s suggestions of selecting a dioxin/furan limit of 0.3 ng/dscm as a minimum 

value. We realize that our preamble language reads more generally to any emission limit. 

Considering the discussion above, and in response to this, we are not selecting the 0.3 ng/dscm 

limit or any other lower limits that are below levels that may be quantitatively determined. 

8C. Small remote incinerator emission limits/achievability/costs/impacts on 

wildlife (Denied Petition issue)

Commenter Name: Alice Edwards, Director, Division of Air Quality

Commenter Affiliation: Department of Environmental Conservation, State of Alaska

Document Control Number: EPA-HQ-OAR-2003-0119-2590-A1

Comment Excerpt Number: 1

Comment: ADEC 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 March 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 incinerators. However, 

EPA did request additional data to support the need to revise the standards and requested 

comment on the need to extend the compliance date for this subcategory.

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; therefore, 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 backhauled 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 need 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 could result in final emission standards that are both 

achievable and protective of air quality and public health.

Response: We note that no emissions test data was submitted for us to consider. Regarding 

other issues applicabile to small remote incinerators, see the “CISWI Reconsideration Issues” 

memorandum, dated December 19, 2012, in the CISWI docket for further discussion.
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Commenter Name: Clint Gill

Commenter Affiliation: ConocoPhillips Company

Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2

Comment Excerpt Number: 1

Comment: Our incinerators are located within the Kuparuk and Alpine oil fields, the latter of 

which is inaccessible by road except for 3 months of the year when roads may be constructed of 

ice.

The incinerators and their emissions are summarized in the table below. [See submittal for table 

of NOX, SO2, 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 

different 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;

• Development 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 myriad 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 the emission 

“floors” for existing units under §129 of the Clean Air Act but we are unable to refrain from 

pointing out the absurdity of this conclusion – at least in this context. Taking a leap and 

assuming it is possible for existing SRIs to achieve compliance 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 the 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 away 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 again, 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 proceed. But this is a very large unknown that will, in the best case, buy a little 
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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 in the SRI 

category must meet a sulfur dioxide emission limit of 1.2 ppm. We simply cannot conceive how 

to achieve this for two reasons: 1) it requires a scrubber control efficiency in excess of the 80-

95% ascribed to this technology by EPA1; 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 submittal 

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 range from 50‐99%: 

http://cfpub.epa.gov/oarweb/mkb/contechnique.cfm?ControlID=29]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI 

docket for further discussion.

Commenter Name: Clint Gill

Commenter Affiliation: ConocoPhillips Company

Document Control Number: EPA-HQ-OAR-2003-0119-2584-A2

Comment Excerpt Number: 5

Comment: For new units in the SRI category, EPA proposes an impossible SO2 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.21.2 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 standard were reviewed and many deficiencies were found. These are detailed 

in Appendix 2 of Attachment B. We believe a more appropriate new unit SO2 standard lies 

somewhere between 100 and 130 ppm. This comment is very important since, unless addressed 

adequately, the option of employing new SRIs in Alaska is effectively closed.

[Footnote: 2 Table 8 to 40 CFR Part 60, Subpart CCCC.]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI 

docket for further discussion.

Commenter Name: Kate Williams

Commenter Affiliation: Alaska Oil and Gas Association (AOGA)
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Document Control Number: EPA-HQ-OAR-2003-0119-2620-A1

Comment Excerpt Number: 1

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.

The 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 contrasts 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 units compared to other 

CISWI units EPA regulates.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated 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-HQ-OAR-2003-0119-2620-A1

Comment Excerpt Number: 2

Comment: The Clean Air Act mandates that the cost of achieving emission reduction be taken 

into account when setting emission standards. On the 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 cost 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 at 
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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 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-HQ-OAR-2003-0119-2620-A1

Comment Excerpt Number: 3

Comment: The Clean Air Act also requires that non-air quality health and environmental 

impacts be taken into consideration in setting emission limits for CISWI units. We believe EPA 

failed to adequately take these impacts into account and 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 operations 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 wildlife 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 conditions, 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 also 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 

could 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 have 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 Reconsideration 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-HQ-OAR-2003-0119-2584-A2

Comment Excerpt Number: 4

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 NOX, every 5 years. SRIs are too small to warrant annual testing for 

the entire suite of 11 pollutants (in Alaska, this level of testing costs about $100,000), annual 

operator training, waste management plans, and ongoing compliance monitoring. Indeed, in the 

absence of a rule such as CISWI, SRIs are very close to being and in fact could be, with minor 

changes, insignificant emission units under §71.5(c)(11)(ii)(A). Limiting the CISWI monitoring, 

recordkeeping, and reporting to simple assurance testing once every five years of a Title V 

permit term is the most sensible way to regulate these very small sources.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated 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-HQ-OAR-2003-0119-2620-A1

Comment Excerpt Number: 4

Comment: Finally, we believe EPA violated the Clean Air Act by failing to exclude emissions 

during startup and shutdown periods from the maximum achievable control technology 

("MACT") floor calculations for SRI units and employing flawed data analysis and statistical 

protocols to derive the Subpart CCCC sulfur dioxide emission 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-HQ-OAR-2003-0119-2658-A2

Comment Excerpt Number: 1

Comment: We appreciate 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 Highway 
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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 SRIs, 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 performance 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. If 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 now 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 we previously used information for only the top two sources. 

The MACT floor methodology is not being reconsidered, but the emission limits were recalculated 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-HQ-OAR-2003-0119-2658-A2

Comment Excerpt Number: 2

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 statistical 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 standards 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 data 

would further increase the required minimum sample size for statistical analysis to be 

considered usable.
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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)

Document Control Number: EPA-HQ-OAR-2003-0119-2658-A2

Comment Excerpt Number: 3

Comment: We note that two of the incineration units included in EPA’s SRI emission data base 

are not SRIs. The Entech Alaska incinerator is not an SRI because the unit is located in 

Anchorage, Alaska, and is approximately 15 miles 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 incorrectly 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 

removing 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 incinerator. 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-HQ-OAR-2003-0119-2658-A2

Comment Excerpt Number: 4

Comment: 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 is 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 the various performance tests were 

performed without regard to waste type or where in the batch cycle the unit was operating, the 

performance tests do not provide a data set that can be reasonably compared to reach a 

conclusion regarding the general performance of the set of SRIs.
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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 data are not fully representative of 

existing SRI emissions. We would like to work with EPA to develop and implement an 

existing SRI performance test program that will return representative data that can be used to 

calculate technically supported emission guidelines.

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated December 19, 2012, in the CISWI 

docket for further discussion. However, as discussed in the response to EPA-HQ-OAR-2003-

0119-2658-A2 excerpt 1, we have recalculated the emission limits based on new inventory 

information received.

9A. General comments on beyond-the-floor analysis (Denied Petition issue)

Commenter Name: Neil Gorley

Commenter Affiliation: Earthjustice, Partnership for Policy Integrity, and Clean Air Council

Document Control Number: EPA-HQ-OAR-2003-0119-2638-A2

Comment Excerpt Number: 12

Comment: Section 129 of the Clean Air Act requires EPA to conduct a “beyond the floor” 

analysis that determines the maximum degree of emissions reductions “achievable” in light of 

considerations such as non-air quality health and 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 

evaluate 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-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 8
367

Comment: 60.2145(n)(4) – The requirement to perform daily checks of the pressure monitoring 

system seems 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 are 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 other 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 site-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 Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 23

Comment: 60.2670(b) – For kilns that do not utilize a wet scrubber, 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 

compliance 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-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 24

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 (CEMS) 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 facilities 

with CEMS. 

Commenter Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 25

Comment: 60.2680 – This provision appears to dampen innovative control technology and 

techniques by imposing a petition and approval process for 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 specified 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 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.

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-HQ-OAR-2003-0119-2603-A1

Comment Excerpt Number: 25

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 not 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 sensitivity requirement of 2%. EPA needs to revise this requirement to match the 

current technology accuracy limitations for flow measurement devices utilized in the cement 
369

industry and base them on the accuracy specifications of the manufacturers. This accuracy needs 

to be based on the full scale rating of the unit to match the manufacturer's specifications.

Response: We intended for the 2% sensitivity requirement of 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-HQ-OAR-2003-0119-2632-A2

Comment Excerpt Number: 20

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 

devices 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 accuracy requirement needs to be 

based on full scale to match the manufacturer specifications.

Response: For response, see DCN EPA-HQ-OAR-2003-0119-2603-A1, Excerpt No. 25.

Commenter Name: Michael A. Klein

Commenter Affiliation: N/A

Document Control Number: EPA-HQ-OAR-2003-0119-2621

Comment Excerpt Number: 1

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 includes 

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- analysis 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 nondetected (below the DL) shall be counted as zero for the purpose of calculating the total 

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 are 

applying EMPC to Method 23 as well as SW-846 8290A. The EMPC represents a compound 
370

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 position in the final rule. The revised 

language does not specifically contain the term EMPC, as this term does not appear in Method 

23, but we believe that the language will address this issue.

12B. Testing too frequent (Denied Petition issue)

Commenter Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 27

Comment: EPA should ensure consistency in testing requirements for this Rule and 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 justify 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 proceed 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, adding 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 acknowledges 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 NOX emissions curves based on testing conducted every 5 years. 

Several states require that testing be conducted upon each 5-year Title V permit renewal. All 

affected major sources subject to Boiler MACT are required to have Title V Permits. The Title V 

permitting program provides the appropriate vehicle to implement a 5-year test requirement.
371

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: 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 Name: Robert D. Bessette

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

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

Comment Excerpt Number: 26

Comment: Under the Final CISWI Rule, units were required to conduct stack tests on a 

frequent basis. 76 Fed. Reg. 31,981. While EPA has made some 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 reconsideration 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 economic 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 provide 
372

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 performance test.

Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 32

Comment: EPA has proposed reduced testing frequency for sources 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 operation. 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 90 

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 least 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 

collection and the dramatic improvement in CEMS data availability (citing Acid Rain Program) 

is not persuasive. SO2 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. SO2 CEMS are a 

mature technology in widespread use, but even mature CEMS technologies such as SO2, NOX, 

and CO should be provided some reasonable amount of downtime. The Acid Rain rules 
373

recognize that NOX and SO2 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 system 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).

18See 40 CFR 60.58b(c)(10)(viii).

19See 40 CFR 63.1572(c)(3).]

Response: EPA did not open this issue for comment in the proposed reconsideration rule. See 

the “CISWI Reconsideration Issues” memorandum, dated 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 construction.

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 manufacturing 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 operating 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 predominate 

(limited) industrial waste stream for kilns is generally from the older technology (i.e. wet and/or 

long dry kilns) in generating cement kiln dust (CKD). The 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 

consumes 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 wasteburning 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 delegated 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 Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 7

Comment: 60.2145(l) - The requirement to develop and submit a site-specific monitoring plan 

is reasonable, 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 better 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 rule.

Commenter Name: Curtis D. Lesslie

Commenter Affiliation: Ash Grove Cement Company

Document Control Number: EPA-HQ-OAR-2003-0119-2576-A1

Comment Excerpt Number: 12

Comment: 60.2210(k) – This provision appears to require detailed reporting of malfunctions 

even if there was no exceedance of an applicable 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 sufficient 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, contemporaneous operating logs.” Please clarify that 

electronic systems may be used to meet this requirement.

Response: We are clarifying here that electronic systems may be used to meet the operating log 

documentation requirement specified for establishing an affirmative 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: 4
376

Comment: Public records for monitoring and compliance with emissions limits. The Lung 

Association recommends 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 data 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 

incinerators, 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 submitted 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 available. 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 (ERT) 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 are 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 Number: 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 completing 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 system 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 product 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 beyond 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 the 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 Portland 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. Marconi
379

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. Gossett
380

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 Waste"

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, Vice 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. Keener
381

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 Michaels
382

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-2003-0119-2605-

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 Comments
A-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 not 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 Marin
A-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 Sheth
A-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 Brewer
A-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 physically 

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 C02 (a greenhouse gas) and 

which typically cost over one million dollars may get poisoned, making them ineffective. The 

Boiler MACT CO limits would necessitate combinations of emission controls that would have 

adverse effects on each other, and even then are 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 NOX. Although NOX is not addressed in the Boiler MACT, 

for years the northeastern states, including Maine, have focused on the control and reduction of 

NOX emissions to improve ozone. Minimizing CO emissions conflicts with the State's efforts to 

minimize NOX. 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 during the performance test. The 

highest operating load in a multi fuel boiler often does not correspond with the lowest oxygen 

condition. This approach is difficult if not impossible to meet in a multifuel boiler, such as those 

in use at most of Maine's mills. If wet fuels happen to be burned during the stack test (EPA 

requires 60 day notice prior to testing and the weather 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 CO 
A-5

emissions from a biomass boiler exhibit low variability. It is unreasonable to establish a CO 

emission limit based on a single hourly emission value. Additionally, the rule imposes 

limitations on boiler steam output operation to that 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 multiple 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 is likely not 

the same fuel mix needed to establish minimum 02 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 performance 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 limits. 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 would 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 emissions. 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 discern 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 reviewed 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 recommendations and urge EPA to adopt this more 

scientifically based approach. MPPA strongly urges that EPA either return to a 30-day rolling 

average for CO limits from biomass boilers equipped with CO continuous emissions monitors 

and establish more appropriate CO limits for wet biomass fuel boilers. 

[Footnote:

1For the purposes of this letter, "wet biomass" is biomass (including bark, sawdust, and wood 

chips) with approximately 50% moisture. Note that the moisture content of the wet biomass used 

in the mill boilers varies based on season, weather, and other variables.]

Response: The commenter primarily discussed issues that are being dealt with within the 

National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, 
A-6

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: 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 health 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 Major 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 

changes 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. Without 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 DDDDD, Table 3

In its Major Source rule comments, NAFO urged EPA to adopt work practice standards for 

dioxin/furan,26 and we support EPA’s decision to do so now. As EPA recognizes, baseline 

dioxin/furan emissions from biomass are already extremely low and, in 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 current 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 

standards 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 from 

biomass boilers.

B . Emissions Limits for Particulate Matter, 40 C.F.R. Part 63 ,Subpart DDDDD, Tables 1-2.

While EPA’s proposed revisions to the PM emissions limits demonstrate an attempt at

increasing flexibility and reducing regulatory burdens, it fails 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 proposed 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 fuels 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 use – 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 fossil 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 

boilers and adopt more reasonable standards that can be achieved in practice and will satisfy 

legal requirements, without prohibitive costs that will further threaten the health and viability of 

this important industry.

Footnotes:

26NAFO Major Source Rule Comments, at 7, 9.

27Id.26

Response: The commenter primarily discussed issues that are 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: 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-HQOAR-2003-0119-2531) The submittal included a description of all materials combusted during 

each of the tests for which data were provided. Of the 15 units, seven combusted “urban wood” 5 
A-8

from processors during the emission tests. In its submittal BPA stated that all units were 

“CISWIs or possible CISWIs” and 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 Boiler 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 Institutional 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 from BPA, 

we had moved the Wheelabrator Shasta ERUs to the CISWI inventory. However, as pointed out 

by the operator of these unit (see comment excerpt 8 from EPA-HQ-OAR-2003-0119-2628-A2), 

the BPA data was outdated and the Wheelabrator units have not been combusting waste 

materials and were not planning on combusting any materials that may be considered waste. 

Therefore, these units have been removed from the CISWI inventory and instead placed in the 

Major Source boiler inventory for the final rule. 

Commenter Name: Shannon S. Broome

Commenter Affiliation: Auto Industry Forum (AIF)

Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 2

Comment: The Notice of Reconsideration appropriately 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 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 that it was still “in the process” of determining the full extent of those subjects 

and that it was committed to including “all additional issues” appropriate for reconsideration, 

including those raised in any then-prospective petitions for reconsideration. Even to the extent 

that the Notice of Reconsideration enumerated certain, specific subjects as under reconsideration, 

it acknowledged that the list was only a portion of the subjects that EPA would ultimately 

reconsider. See id. Indeed, the scope of the issues that EPA intended to reconsider was not 

identified until the 3 December 23, 2011, reconsideration proposal, some 9 months later than the 
A-9

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, 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 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 CISWI Rules, pending the conclusion of judicial review or EPA’s 

reconsideration process. See Delay Notice, 76 Fed. Reg. at 28,662. In the notice, EPA again 

reiterated that a reconsideration proposal would be 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, 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 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 units; and eliminating coal boilers 

altogether by either converting them to, or replacing them with, NG-fired units or resourcepreserving, landfill gas-fired boilers. The control options associated with the CISWI rule will be 

even more numerous due to the higher emission 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 

decisions. Once the rules are finalized, implementation of the changes required to achieve 

compliance can require significant time, beginning with the company’s internal review process. 

First, the automotive company’s legal and technical personnel must analyze 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 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 automaker then submits bid packages to identified bidders and, after several rounds of 

clarifications and negotiations, selects and hires a bidder. It can easily take 6-8 months after the 

rule is finalized to select a control option and hire 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 obtaining certain pieces of equipment sometimes involves 

significant lead times. In addition, as EPA acknowledges, only a limited number of vendors are 

qualified to fabricate and install the equipment that the Boiler MACT and CISWI and NHSM 

Rules will ultimately 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, as EPA 

is aware, installation of controls or changes to a process to comply with a rule typically requires 
A-10

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 of operating permits typically takes no less than 6 months but can take 

longer. After the required permits are issued and the requisite equipment is delivered, the speed 

of installation can depend on the weather in northern climates (where many of 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 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 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, describing 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 described 

above, the compliance process for regulated entities like facilities owned and/or operated by AIF 

members is protracted and involves many interconnected steps. Given that the 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 subject to the final 

reconsideration rules. See Boiler MACT Reconsideration Proposal, 76 Fed. Reg. at 80,616. The 

potential scarcity in availability of equipment and 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 Standards 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 incineration 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 modified 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 source 
A-11

category, the 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 

for CISWI sources, but we did not propose or take comment on changing the June 4, 2010, date 

that determines new source eligibility, nor did we 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 standards 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 reasonable 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 reconsideration action, 

and although it revises several of the new source standards, it is premised on the same general 

rulemaking record. It is thus reasonable to view the date EPA proposed standards for these 

sources to be the June 4, 2010 date. Further, industry 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 term “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 technologies 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-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 4

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 emissions for all subcategories, significantly impacts the ability of 

affected sources, including those owned and/or operated by AIF members, to develop and decide 
A-12

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. See 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 evaluate 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 MACT 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 emission limits 

dictates, for instance, whether to use a SCR and spray dryer combination versus a multipollutant, Tri-NOx system followed by an 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 finalizes 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, maintaining 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 March 21, 2014, would 6 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 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 begin 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 publication of the final reconsideration 

rules. See CISWI and NHSM Rules Reconsideration Proposal, 76 Fed. Reg. at 80,465; Boiler 

MACT Reconsideration Proposal, 76 Fed. Reg. at 80,616. AIF supports this proposal for many 

of the same reasons articulated with respect to 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 commenter 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-HQ-OAR-2003-0119-2602-A1, 

excerpt 2. 
A-13

Commenter Name: Shannon S. Broome

Commenter Affiliation: Auto Industry Forum (AIF)

Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 5

Comment: CAA § 112(i)(3)(A); 42 U.S.C. § 7412(i)(3)(A) (emphasis added). The plain 

language of § 112(i)(3)(A) directs EPA to establish a compliance 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 

emission 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 doing so in a substantial 

way – a previously promulgated standard and promulgating a new standard. It does not state, 

when it directs EPA to establish a compliance date within 3 years of the “effective date,” 

whether the effective date must be the date on which 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 merely 

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 it 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 without 

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 proposes the following 

amendments to § 63.7495, concerning “When do I have to comply with this subpart?”: (a) If you 
A-14

have a new or reconstructed boiler or process heater, you must comply with this subpart by 

[DATE 60 DAYS AFTER THE FINAL RULES IS PUBLISHED IN THE 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 Federal 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 NRDC 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 years after that date. As a corollary, it fixes the date on which new or reconstructed 

sources must comply with the emission standards as 60 days after the final reconsideration rule, 

which adheres to the mandates of § 112(i). EPA’s proposal, therefore, is consistent with the 

holding of NRDC and the statutory directive of § 112(i)(c)(A). EPA has the legal authority to 

finalize the proposed regulations as to the compliance period.6 [Footnotes] (5) Note that the 

Congressional Review Act had the effect of delaying 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-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 6

Comment: In the final rule, EPA defined “gaseous fuel” to include landfill gas (“LFG”) 

but excluded it from the “Gas 1 fuel” category, instead 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 limits. See id. at 15,688-91. Despite this initial designation, 

EPA promulgated a “demonstration mechanism” or “other Gas 1 fuel” specification that would 

allow Gas 2 fuels to meet a specification for EPA to 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 (H2S) 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”) H2S and 40 micrograms per 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, AIF 
A-15

commented that subjecting the use of LFG to the emission limits of the Gas 2 category was not 

feasible as AIF reported that its members with units 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 NOX (for ozone attainment). -Second, 

AIF advised EPA that the demonstration mechanism would not likely offer relief to those units’ 

source operators because their LFG streams would likely test well above the demonstration 

mechanism’s limit of 4 ppmv H2S.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 LFG. 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 

because 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 H2S emission limit of 4 ppmv or less for 

classification as a Gas 1 even while the regulations allowed RG emissions of up to 162 H2S and 

yet automatically classified RG as a Gas 1. AIF explained that such classification was arbitrary 

and capricious because emissions from LFG are comparable 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 H2S 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 H2S 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 Agency 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 valuable 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 of 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 H2S Specification, 

Given Landfill Gas’ Relative 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 LFG; it still proposes to classify use of LFG in the Gas 2 category. See Boiler MACT

Reconsideration, 76 Fed. Reg. at 80,641, 80,652, 80,655. Yet, as EPA offers no 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 is 
A-16

comparable to the Gas 1 fuels NG and RG in the relevant 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 comments). 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. 

Accordingly, 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 H2S 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. § 63.7575 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 initially 

fall under a Gas 2 fuel classification but could now gain classification in the “other Gas 1 fuel” 

category with a demonstration of not exceeding the previously published Hg limit of 40 μg/m3. 

The large quantity of available data, including data developed by EPA in 2008, demonstrates that 

LFG consistently tests for concentrations of Hg well below the 40 μg/m3 threshold.8The 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.9The abundant published data on Hg levels 

in LFG, including the many studies sponsored by EPA, support an automatic Gas 1 

categorization for LFG as a Gas 1 fuel. The data 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 below 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 given 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 

Policy 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 programs 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 as 
A-17

a Gas 1 fuel would subject units utilizing LFG to stringent emission limits, which many 

facilities, including those owned and/or 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 MACT, 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 in all 

other categories. See LMOP, supra. Many of the facilities owned and/or operated by AIF 

members would be forced to consider using only NG or some other fossil fuels if LFG-firing in 

boilers is subjected to Gas 2 emission limits. Discouraging the use of 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 utilizing 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 instead 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 CO2 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 NOX, as well as 

slight increases in SO2 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 MACT. For boiler and boiler-turbine 

projects now using LFG, the order-of-magnitude estimate of the total direct costs of switching to 

NG is $ 1.064 billion. See CH2M Hill, Boiler MACT Economic Impact Evaluation (Nov. 9, 

2011), Attachment B (attached to these comments). Moreover, project owners would lose the 

value of the LFG processing and transport equipment that 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 derived 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 the 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 Hg levels for LFG as consistently, substantially below the “other Gas 1 fuel” 

specification limit for Hg, and compelling policy reasons support classifying LFG as a Gas 1 

fuel. If, however, EPA fails to list LFG in that category and, instead, persists in listing LFG as a 

Gas 2 that can qualify for the Gas 1 category only through the demonstration mechanism, then 

EPA should make a categorical determination that LFG qualifies as an “other Gas 1 fuel.” AIF, 

therefore, recommends EPA modify § 63.7521(f) as follows: To demonstrate that a gaseous fuel 
A-18

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 reflecting suggested 

deletions; underline reflecting suggested additions). 5. To the Extent that Landfill Gas (or Any 

Gaseous Fuel) May Qualify as Gas 1 Only Through the “Other Gas 1 Fuel” Specification, EPA 

Should Finalize the Proposed Elimination of the H2S from the Specification Because H2S 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, 80,641. Specifically, EPA reexamined the fuel specification and concluded that 

(1) the H2S 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 demonstration of 

comparability from a HAP perspective is Hg. See id. Upon reexamination, then, EPA proposes to 

eliminate the H2S 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 level as EPA included in the final rule of 

March 21, 2011. See id. Under this proposal, LFG (and other gaseous fuels besides NG and RG) 

still would initially fall into the Gas 2 fuel category but could now qualify as an “other Gas 1 

fuel” with merely a demonstration of not exceeding the previously published Hg limit of 40 

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 H2S 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 with EPA that the 

H2S 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 arbitrarily and capriciously required LFG to meet 

an H2S emission limit of 4 ppmv or less for classification as a Gas 1 even while the regulations 

allowed RG emissions of up to 162 H2S and still automatically treated RG as a Gas 1. If EPA 

elects to retain the demonstration 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 

H2S fuel specification. 6. As to the “Other Gas 1 Fuel” Specification, EPA Should Amend the 

Certification Option to Make It More Workable and Amend the Monthly Testing Option to Allow 

for Additional Flexibility. Even with the proposed elimination of H2S, the “other Gas 1 fuel” 

specification does not provide a viable avenue for relieving LFG (and other gaseous fuels in the 

Gas 2 category) of the regulatory burdens associated with unnecessarily stringent emission 

limits, sampling, and testing. In its current form, the demonstration mechanism still creates a 

significant disincentive for companies to purchase and use 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 your 
A-19

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 testing 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 H2S 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 approaches in the Boiler MACT, 

and to the alternative of monthly testing as onerous and, as applied to LFG, not supported by the 

consistently low concentrations of Hg from available analyses. • AIF’s Comments on the 

Certification Option The absoluteness of the certification 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 official 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 clear 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 provide 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 certification 

could be read in the future to potentially impose liability on the source not only for gas that 

exceeds the specification but also for a “false certification,” should the highly unlikely 

circumstance outside of the representative’s control arise in which the constituents of a 

purchased fuel like LFG exceed the regulatory specification. Further, it is simply substantively 

unreasonable to impose the term “never” as a qualification to limit testing obligations in this 

case, since certifications under Section 112 and Title V are intended to be based on information 

and belief formed after reasonable inquiry. See, e.g., 40 C.F.R. § 70.5(c). Finally, the compliance 

benchmark for Hg in gas fuels other than NG or RG is flatly inconsistent with compliance 

approaches used to demonstrate compliance with emission limits and work practice standards. It 

unfairly subjects all other gaseous fuels other than NG or RG to a fuel specification that the Gas 

1 fuels are not even required to address in the most cursory manner. It suggests that even one 

aberrant or anomalous fuel measurement, would function 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 presented 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. Moreover, 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 is 
A-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 certification 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 be 

below the level. Otherwise, companies that are unwilling to use LFG if they would be subject to 

Gas 2 limits may simply opt not to continue combusting LFG. And EPA must ensure comparison 

to a single maximum value reported among a group of samples does not determine compliance 

(or more importantly, non-compliance). AIF’s Comments on the Monthly Testing Option If a 

fuel’s gas constituents “could vary above the [fuel] specification,” 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. With 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 proposal does not address this type of 

study, AIF recommends that EPA revise it to incorporate this approach as an option for 

classification as an “other Gas 1 fuel.” Second, in 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 with 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 positive 

testing, the frequency would decrease to every six months, and so on. There is no rational basis 

to indefinitely require monthly testing when a fuel regularly tests well below the Hg fuel 

specification for qualifying as an “other Gas 1 fuel.” EPA has utilized such compliance 

flexibility in other contexts. See, e.g., 40 C.F.R. § 63.1161 (NESHAP for Steel Pickling, Subpart 

CCC; EPA allows the permitting authority to approve an alternative schedule for performance 

testing that allows testing less frequently than annually); 40 C.F.R. § 63.1543(e) (NESHAP for 
A-21

Primary Lead Smelting, Subpart TTT; EPA allows less-frequent testing when facilities 

demonstrate consistent compliance with the standards); 40 C.F.R. § 265.1057(c)(1) (Subpart BB 

of the Resource Conservation and Recovery Act (“RCRA”) Regulations, 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 positive results as to a particular fuel.17 7. 

EPA Should Amend the “Other Gas 1 Fuel” Specification Analysis to Make It More Feasible 

and Allow for Use of Additional Test Methods. The reconsideration proposal appears to prevent 

gaseous fuel suppliers from using alternative test methods, which are available for use by the 

boiler owner/operator if they conduct the requisite 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)). 

EPA 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 because 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 at § 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 

limits 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 explanation 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 methods 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 of 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 of 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 methods 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 

these studies and the methods specified in Table 6, and, for each method, whether it was 

included in the Boiler MACT Reconsideration Proposal. This table shows that none of the 

methods used in the publicly available, published LFG studies for Hg, including those sponsored 
A-22

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 include 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 sampling 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 the 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 comments). (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 MACT Reconsideration Proposal, 76 Fed. Reg. at 80,652. 

Moreover, EPA’s own outreach program recognizes LFG as a fuel. See LMOP, supra. (14) 

Referencing Method 19 at 40 CFR part 60, appendix A-7. (15) Discussing emissions averaging. 

(16) Directing that the arithmetic 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 testing 

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, then, test back into the Gas 1 category the 

succeeding month with a test result below the specification level. (18) For example, NG is 

primarily methane with lower concentrations of related alkanes and carbon oxides, and trace 

quantities of other hydrocarbons. LFG typically contains 45% to 60% methane and 40% to 60% 

carbon dioxide. LFG also includes small amounts of 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, 
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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 Control Number: EPA-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 7

Comment: In the final rule, pursuant to CAA Section 112, EPA imposed a work practice 

standard for boilers and process heaters with a heat input capacity of less than 10 

MMBtu/hr, those in the Gas 1 fuel and metal process furnace subcategories, and 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 comments, 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 overruled 

Alabama Power Co. v. Costle, 636 F.2d 323, 400 (D.C. Cir. 1979), which clearly establishes 

EPA’s authority to fashion de minimis and administrative necessity exemptions. AIF noted that 

EPA’s approach of subjecting those small units to work 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 

infeasible 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 extreme 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) combusting gaseous or liquid fuel with a 

heat input capacity of less than 1.6 million Btu per hour are included in this definition.” Boiler 

MACT Reconsideration Proposal, 76 Fed. Reg. at 80,652. Under the Boiler MACT applicability 

provisions of § 63.7491, which are unchanged in the 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 LFG 
A-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 

boilers that combust gaseous or liquid fuel and that have a heat input capacity measuring less 

than 1.6 MMBtu/hr. Hot water heaters are not subject to the Boiler MACT, so EPA’s proposal 

functions as a de minimis exemption for those types of hot water boilers. AIF supports the 

proposed change to the definition because the 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 measurable, from 

these types of small, NG-fired hot water boilers. See id. at 360-61. As the D.C. Circuit 

emphasized in New York v. EPA, 444 F.3d 880, 888 (D.C. Cir. 2006), and as the U.S. Supreme 

Court held in Wisc. Dep’t of Rev. v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992), the de 

minimis doctrine is a legal principal that forms part of the established background against which 

all statutes are enacted. Agencies, therefore, may 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. (quoting 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 sources and area sources.” CAA § 112(c)(1); 42 U.S.C. § 7412(c)(1). It 

then directs EPA to “establish emission standards under subsection (d)” as to those categories 

and subcategories. CAA § 112(c)(2); 42 U.S.C. § 7412(c)(2). Subsection (d) directs EPA to 

“promulgate 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 state 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 emissions, 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 or 
A-25

existing sources in the category or subcategory to which such emission standard applies, through 

application of measures, processes, methods, systems or techniques ... CAA § 112(d)(2); 42 

U.S.C. § 7412(d)(2). The framework of this statutory scheme, then, permits EPA to define the 

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 sources to achieve a maximum 

degree of reduction in emission of HAPs but it expressly permits EPA to take into consideration 

the cost of achieving that reduction. It cannot be said that the statutory scheme is so 

extraordinarily rigid that it does not contemplate 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 no 

or a trivial level of emissions. See 82 F.3d at 466. Beyond AIF’s arguments about the regulatory 

burden – on EPA, state agencies that must include the requirements in Title V permits and 

conduct enforcement of such requirements, and regulated entities that 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 

Minimis Exemption for Small, Natural Gas-Fired Hot Water and Process Heaters with Heat 

Input Capacities of Up to 10 MMBtu/hr or Less. Consistent with the above analysis as to EPA’s 

authority under Alabama Power, EPA should finalize a de minimis exemption from the Boiler 

MACT for small, NG-fired hot water and process heaters with heat input capacities of 10 

MMBtu/hr or less. AIF recommends that EPA further 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-HQ-OAR-2002-0058-3289. 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 on 
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administrative necessity. Had the Court intended to overrule Alabama Power in its subsequent 

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 Reconsideration Proposal, 76 Fed. 

Reg. at 80,616. As articulated above, the position previously argued by AIF was sound, and EPA 

failed to substantively respond to it in the reconsideration proposal. EPA has the authority to 

promulgate a de minimis exemption as to small hot water and process heaters, and any other 

source for which the burdens of regulation would be high and the emission-reduction benefits 

would be insignificant. This is not a context where the best performers use no emission control 

technology, see Sierra Club, 479 F.3d at 883; Nat’l Lime, 233 F.3d at 633, nor where the 

mechanism being advocated is EPA promulgating a risk-based subcategory, see NRDC v. EPA, 

489 F.3d at 1368-71. Moreover, none of those cases disturbed or much less considered the 

essential holding of Alabama Power, i.e., that agencies like EPA have the authority to issue de 

minimis exemptions as a rational approach for relieving severe administrative (and economic) 

burdens that blind adherence to the literal terms of a statute would 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 NGfired 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 practice 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 

MMBtu/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 only 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 tables23 would emit around 160 pounds of HAP per year. 

Even the most poorly-tuned unit of this 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 unit. 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 12 
A-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 units to minimize 8% of its HAP 

emissions due to biennial tune-up requirements. AIF believes that units are generally not “poorly 

tuned,” so the cost per ton, in fact, will be 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 large 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 onetime 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 facilities’ 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 other 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, EPA 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 extent 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 

units27 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 basis 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 should 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 source. 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 regulation 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 Compounds 
A-28

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 energy 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 de minimis 

exemption for NG-fired hot water and process heaters with heat input capacities of 10 MMBtu/hr 

or less, in the alternative, it should promulgate a de minimis exemption for such units at a cutoff 

of 5 MMBtu/hr or less, consistent with EPA’s recognition of such a cutoff as the dividing line for 

less-frequent tune-ups in the reconsideration proposal. See Boiler MACT Reconsideration 

Proposal, 76 Fed. Reg. at 80,614. To the extent EPA does not promulgate such a de minimis 

exemption, in the alternative, it should issue a NG-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 

specification) 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 poorlytuned 1 MMBtu/hr burners could collectively emit HAP at a rate of about 1/8 ton per year in 

excess of well-tuned units. Therefore, using the typical costs noted above, the cost of inspections 

on a five-year schedule for such units would effectively 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 around 

50% of its tune-up budget on the small units to minimize 8% of its HAP emissions due to tuneup requirements. AIF believes that units are generally not “poorly tuned,” so the cost per ton, in 

fact, will be dramatically higher than even estimated here. (29) Moreover, to the extent that EPA 

finalizes its proposed work practice standards in lieu of emission limits for certain units, EPA 

clearly possesses the authority under Section 112(h) of 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). 

The section further explains that it is “not feasible” to set an emission standard when the 

“application of measurement methodology to a particular class of sources is not practicable due 

to technological and economic limitations.” CAA § 112(h)(2)(B); 42 U.S.C. § 7412(h)(2)(B). 

AIF supports the explanation put forth by EPA that it is not feasible with the meaning of the 

CAA to prescribe or enforce an emission standard for the control of HAP as to the source 

categories and subcategories for which EPA has prescribed work practice standards in lieu of 

emission standards. (30) Proposed § 63.7540(a)(12) provides: If 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)(vi) 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 must 
A-29

inspect each burner at least once every 72 months. Boiler MACT Reconsideration Proposal, 76 

Fed. Reg. at 80,644 (emphasis added).

Response: The commenter primarily discussed issues that are 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-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 8

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 requirement 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 semi-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, rendering 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 otherwise 

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 impose 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 Excerpt No: 6 (Mar. 21, 2011), Document Control No: EPA-HQ-OAR2002-0058-2894.1. 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-HQ-OAR-2002-0058-3289. 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 supports 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 basis 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 should amend it to 
A-30

operate consistently with the timeframe of Title V’s reporting regime for required monitoring, 

relying on reporting of changes in the semi-annual report of required monitoring, rather than 

imposing a 48-hour notification requirement. Moreover, EPA fails to provide a rational basis as 

to why, even in light of its stated concern, it should require any notification when facilities, in 

instances of NG curtailment, merely burn backup fuels. When facilities burn backup fuels, 

notification is unnecessary 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. In 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 previously 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 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-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 9

Comment: In the final rule, EPA promulgated a “beyond the floor” requirement for onetime “energy assessment” performed by a qualified energy 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 “boiler systems” but also 

to their “energy use systems,” which include but are not limited to “process heating; compressed 

air systems; machine drive (motors, pumps, fans); process cooling; facility heating, ventilation, 

and air-conditioning systems; hot heater systems; 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 CAA 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 the 

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 boilers and process heaters 

themselves. AIF suggested that, at a minimum, EPA should curtail the assessment to apply only 

to the boiler and/or process heater, not to the broader range of processes at a plant. EPA does not 

propose to eliminate the energy assessment nor does it propose to limit the assessment to the 

boiler and/or process heater only. In fact, EPA proposes no changes to the components of the 

assessment on which AIF commented. Instead, EPA merely clarifies that it did not intend in the 
A-31

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 beyond 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 clarification 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 include 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 the 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 the following issues: -Are facilities supposed 

to conduct the assessment as to individual boilers or as to the facility as a whole? The 

reconsideration proposal appears to suggest that 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 these issues 

in the final reconsideration rule. [Footnotes] (31) Note that EPA does not appear to state 

anywhere in the proposal that it proposes to amend § 63.7510 to add the quoted language. (32) 

Moreover, Table 3, in listing the requirements of the assessment, refers to an evaluation of the 
A-32

“specification of energy using systems,” id., 76 Fed. Reg. at 80,664 (emphasis added), which is 

an undefined term, although it is similar to the defined term, “energy use systems.” EPA should 

clarify what it means by the 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 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-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 10

Comment: In the table of proposed technical corrections in the Boiler MACT 

Reconsideration Proposal, EPA indicates that it proposes to “[r]evise the definition of ‘process 

heater’ to include ‘units heating hot water as a process heat transfer medium.’” Id. at 80,620. The 

following underlined portion reflects the proposed additions to the definition: Process heater 

means an enclosed device using controlled flame, and the unit’s primary purpose is to transfer 

heat indirectly to a process material (liquid, gas, or 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 process 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 troubling 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 “units 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 revision is unnecessary and lacks any rational 

basis. It would be simpler to keep all hot water heaters classified first as boilers, regardless of 

whether they heat a process, see, e.g., id. at 80,650 (“Boiler means an enclosed device using 
A-33

controlled flame combustion and having the primary purpose of recovering thermal energy in the 

form of steam or hot water”), and then exclude from 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 will be addressed there.

Commenter Name: Shannon S. Broome

Commenter Affiliation: Auto Industry Forum (AIF)

Document Control Number: EPA-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 11

Comment: In the June 4, 2010, proposal for the Boiler MACT, the definition of “unit 

designed to burn gas 1 subcategory” was formulated as follows: 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 on an annual average. National 

Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, 

and Institutional Boilers and Process Heaters, 75 Fed. Reg. 32,006, 32,065 (June 4, 2010) (the 

“Proposed Boiler MACT”) (underline added). The Boiler MACT Reconsideration Proposal 

contains the following revised formulation to the 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; with the exception of liquid fuels burned for periodic testing not to exceed a 

combined total of 48 hours during any calendar year, or during 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,” consider, 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 then 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, AIF 
A-34

members recall events during the 1980’s when there was extensive uncertainty regarding the 

availability of a continuous 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 units 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 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-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 12

Comment: EPA proposes exempt from the Boiler MACT those units that facilities use as 

control devices to comply with the standards of part 60, part 61 or part 63 of the CAA, 

provided that “at least 50 percent of the heat input to the boiler is provided by the gas 

stream that is regulated under another subpart.” Boiler MACT Reconsideration Proposal, 76 

Fed. Reg. at 80,615-16. In the final rule, EPA had merely 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 61 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 its 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 heater 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 

under 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: Industrial, 
A-35

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-HQ-OAR-2003-0119-2602-A1

Comment Excerpt Number: 13

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 completion of the 

initial tune-up after startup within one year of startup. See id. at 80,614. EPA makes this proposal 

based on its recognition that, generally, units are tuned as part of installation. See id. In the 

experience of AIF’s members, EPA is correct in 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-up 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 within 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 installation 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 Washington Department of Ecology

Document Control Number: EPA-HQ-OAR-2003-0119-2636-A2

Comment Excerpt Number: 1

Comment: We are pleased that EPA segregated biomass boilers by 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 numerical 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. We 
A-36

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: 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.

1D. Boiler - Undesignated

Commenter Name: Alicia Meads

Commenter Affiliation: National Association of Manufacturers (NAM)

Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1

Comment Excerpt Number: 1

Comment: The NAM supports the EPA’s decision to establish work 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, refinery 

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 work 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 authorizes 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. As 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 now 
A-37

authorizes the promulgation 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 turning 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) and 

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 conclusions 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 

extraordinarily high. See 75 Fed. Reg. at 32,025, 32,029. Further, the EPA correctly concluded 

that imposing emission limitations on gas-fired boilers would create a disincentive for switching 

to gas from oil, coal or biomass as a control technique. Id. In fact, it could create an incentive for 

facilities to switch away from gas to other fuels. Both outcomes should be avoided. Finally, the 

EPA recognized that "[t]he inability to accurately measure emission from Gas 1 units and the 

related economic impracticability associated with 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 work 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 

recently finalized Mercury and Air Toxics Standard. 

Finally, the NAM agrees with the EPA’s rationale for justifying work practice standards for 

periods of startup and shutdown, as described in the preamble to the final rule. 76 Fed. Reg. 

15,642. The EPA’s rationale, along with the concerns 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 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-HQ-OAR-2003-0119-2593-A1

Comment Excerpt Number: 2
A-38

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 subcategories" 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. Cir. 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 EPA’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 

limited 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 to 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 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-HQ-OAR-2003-0119-2593-A1

Comment Excerpt Number: 4

Comment: The EPA proposes to set the compliance 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 units 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 comparatively simple installation – takes about 15 months.3 

However, the EPA expects a range of control devices will be used to meet the standards, 
A-39

including fabric filters, carbon bed adsorbers, activated carbon injection, electrostatic 

precipitators, wet scrubbers, 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 boilers 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 industry 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, construction 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 scrubbers).

In order to retrofit a boiler, the owner will need to line up the capital necessary to pay for the 

retrofit. In these difficult economic times, just securing the necessary capital may take significant 

time. In addition, the owner will need to go though the relevant permitting process(es), which 

will take a number of months. Finally, once the 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 for 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 shutdown cycles for boilers at many of the facilities is so long as to make this type 

of precise staging exceedingly difficult to do in a three year period without substantial business 

interruption.

Finally, in many instances, the installation of pollution control 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 the 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 difficulty 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 than 
A-40

require the facility to add emissions controls to its existing boiler in time for the proposed 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 subcategory 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 complete 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 Standards 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 devices 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 HAP 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 year because of the substantial changes 

that the agency made to the rule). Rather than functioning as an extension of the compliance 

deadline, this MACT standard for certain facilities would become applicable in two steps. For 

the first three years, a no-backsliding MACT standard 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 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-41

Commenter Name: Alicia Meads

Commenter Affiliation: National Association of Manufacturers (NAM)

Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1

Comment Excerpt Number: 5

Comment: EPA should change 40 CFR 63.11196 to allow three years, rather than two, for 

sources subject to the tune-up requirement to 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 whether 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 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: Alicia Meads

Commenter Affiliation: National Association of Manufacturers (NAM)

Document Control Number: EPA-HQ-OAR-2003-0119-2593-A1

Comment Excerpt Number: 8

Comment: The EPA’s proposed energy assessment is too broad in scope 

The NAM continues to believe that the EPA’s proposed energy assessment requirements are 

unwarranted. Further, although the EPA has indicated that it is limiting the scope of its energy 

assessment requirements, the NAM believes that the 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 the 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 

National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, 
A-42

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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 3

Comment: EPA has proposed to retain its “work practice” standards for carbon monoxide 

(“CO”) emissions for certain subcategories and for emissions of dioxins and furans (“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, the 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 such 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 some 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 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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 4

Comment: In response to comments on the 2010 rule, EPA adopted a different approach for 

calculating the Upper Probability Limit (“UPL”) to provide for calculation of the “pooled” 

variability of units in a subcategory, rather than the 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 under 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 and 
A-43

that it will not respond to any comments addressing other aspects of the final rule or any other 

related rulemakings. However, EPA also argues that the 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 addressed there. 

Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 6

Comment: NACAA supports the development of subcategories in MACT rule development, 

where such subcategories are based on meaningful differences in anticipated fuels and unit 

designs. EPA has received a significant number of comments from sources making general 

assertions 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 line12 and can last for up 

to 50 years. Almost every large boiler will have differences in design from every other large 

boiler. Even smaller boilers will have differences in design from small boilers produced by other 

manufacturers. As a result, it is insufficient to simply identify design differences. Where EPA 

seeks to establish additional subcategories it must explain why those differences matter and point 

to information in the record that supports its conclusion. For example, within the Boiler MACT 

“coal-fired” category, EPA proposes separate 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 boilers13–wet stoker, dry stoker, fluidized bed, 

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 bestperforming units, are equipped with PM control devices ranging in effectiveness from cyclones 

and multi-cyclones to electrostatic precipitators and fabric filters. The performance of the 

installed PM control device governs the level of PM and TSM emissions to a far greater extent 
A-44

than differences in design of the combustion 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 equipped 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

[Footnotes:

12Even mass-produced automobiles will exhibit design differences within and between models 

and manufacturers.

13NACAA has raised a concern that differences in the combustion properties of “wet” wood and 

“dry” wood might warrant development of a separate 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 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-HQ-OAR-2003-0119-2614-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 

conducting 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 variability, 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 fuels. EPA’s existing source MACT 

floor is based on a series of test results from ten sources combusting four different types of oil.23

Six sources submitted the results of a single compliance test and four sources submitted 41 fuel 

analyses. The arithmetic average of these results is 3.70 x 10-7 lb/MMBtu and the standard 

deviation is 3.07 x 10-7 lb/TBtu, suggesting that a reasonable 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 set25. As a consequence, of the 
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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 comparison 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 (lowest test value) in each case 

is well below 1.0 x 10-6 lb/MMBtu. If EPA had set the limit for coal-fired units at that level, 

approximately 25 percent of the subcategory would meet the limit and the balance would be 

required to take some steps to reduce emissions. 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 levels that represent the 

average of the performance of the top 12 percent. NACAA attempted to discern why EPA’s 

procedure generated such different results when the 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-4-(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 

demonstrated 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 fuel 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).”]

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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 13

Comment: In 2004, EPA candidly admitted that it could not develop CO work practice 

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 heaters 
A-46

could not be identified.29 EPA has nonetheless asserted that measuring CO levels is 

impracticable30 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 practices 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 practices 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 work 

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 legacy 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, that 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 significant 

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 assertion that CO monitoring is 

infeasible is inconsistent with its proposed reliance on CO optimization for D/F control. EPA 

now proposes to adopt a similar “work practice” standard for dioxin and furan emissions, again 

asserting that enforcing a numerical limit is 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 this 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 inquired 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 quantification 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 regulatory 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 require 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 reducing CO levels. According to the Industrial 

Combustion Coordinated Rulemaking (“ICCR”) study32, control of CO levels is not sufficient; 

one must also examine the interaction of several factors in a complex combustion environment. 

The ICCR study concludes 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-47

Other 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 entrainment), quench rate, 

air pollution control device temperature and fuel and waste parameters.33 Large ICI boilers will 

have far higher flow rates than medical waste incinerators and so may actually emit a substantial 

amount of dioxin on an hourly (or certainly annual) basis. . As discussed above, such a task 

would require significant resources. Indeed, such an effort would likely be more expensive than 

testing. There is no reason to suspect that 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 worth 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 discernible 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 sources 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, Commercial, 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 several decades on thousands of different sources. 31 

This is roughly equivalent to a quantification limit of more than 60 lb/yr. EPA refers to the 

quantification limit as the level at which emissions 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 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. 
A-48

Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 15

Comment: When a source combusts only one type of fuel at 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 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 limits 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. Whereas, in the 2011 

rulemaking any test result where the source was combusting more than 10 percent coal was used 

in determining the MACT floor for the coal subcategories, in its most recent calculation of 

MACT floors EPA only used data from tests where the source 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 “coal-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 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 
A-49

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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 18

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, determining 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 addition, the uncertainties 

associated with past and future determinations of the unit’s net heat rate are larger than potential 

efficiency gains that may result from adoption of output-based standards for existing units using 

common factors. NACAA believes that 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 existing 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 incentive 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 otherwise 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 

required by the CAA every eight years and discussed below. Opportunities for improvement in 

the heat rate of existing sources are relatively small. In addition, many efficiency improvement 

options, such as soot removal, are not permanent and require ongoing maintenance 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 establish 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 there. 

Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
A-50

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 25

Comment: NACAA recommends that the frequency of mandated tune ups be based on 

objective data concerning decay of performance after a tune up.

Response: The commenter primarily discussed issues that are 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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 26

Comment: NACAA agrees with the industry suggestion and EPA proposal that sources be 

allowed 30 days to make the adjustments in order to allow for multiple adjustments to 

optimize CO emissions.

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-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 27

Comment: NACAA agrees with the suggestion that, where burner inspection is impossible 

without destroying the unit, it should 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 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 
A-51

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-HQ-OAR-2003-0119-2614-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 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-HQ-OAR-2003-0119-2614-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 percentile 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.

Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 30

Comment: EPA has solicited comment on an industry proposal to allow units that switch 

to natural gas as a compliance option to average emissions with similar units that do not 

switch to natural gas. NACAA does not see how this concept could be authorized under the Act.
A-52

Response: The commenter primarily discussed issues that are 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-HQ-OAR-2003-0119-2614-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 requested 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 devices used as pollution control devices where 50 percent of the heat value of the 

device is provided by the exhaust stream that is being controlled. The stakeholder proposal 

would effectively remove the 50-percent limit. NACAA believes this is excessive and 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 these comments to that 

rulemaking, they will be addressed there.

Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 35

Comment: EPA has solicited comment on the use of 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.
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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 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-HQ-OAR-2003-0119-2614-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 SO2 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 SO2 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 SO2 monitors as a surrogate for HCl monitoring in units that do not have active SO2

controls.

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-HQ-OAR-2003-0119-2614-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 

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.
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Commenter Name: Mary Sullivan Douglas

Commenter Affiliation: National Association of Clean Air Agencies (NACAA)

Document Control Number: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 38

Comment: EPA has not proposed a TSM alternative “because of the limited emission test 

data for TSM and the large variability in the TSM data for these subcategories. Using the EPA’s 

maximum achievable control technology (MACT) floor 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 recommendation 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-HQ-OAR-2003-0119-2627-A2

Comment Excerpt Number: 3

Comment: A number of our members have expressed support for the creation of the 

seasonally-operated boiler subcategory, which, like many of the changes, will reduce 

requirements on boilers that operate infrequently or 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 country. 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 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
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Document Control Number: EPA-HQ-OAR-2003-0119-2627-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 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-HQ-OAR-2003-0119-2627-A2

Comment Excerpt Number: 7

Comment: EPA requested comments on whether to include the use of specific fuels during 

shutdown and startup periods. We also oppose this provision 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-HQ-OAR-2003-0119-2627-A2

Comment Excerpt Number: 8

Comment: The Pennsylvania Chamber supports EPA’s proposal to extend by 365 days the 

compliance date of the initial tune-up for new and 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 Process Heaters and National Emission Standards for 
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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. However, to the extent their comment concerns 

CISWI, see the response to EPA-HQ-OAR-2003-0119-2602-A1, excerpt 2.Commenter Name: 

Janice E. Nolen

Commenter Affiliation: American Lung Association

Document Control Number: EPA-HQ-OAR-2003-0119-2630-A2

Comment Excerpt Number: 2

Comment: The American Lung Association is troubled by the EPA’s continued reliance on 

work practice standards, particularly as they would be the sole means of reducing toxic 

emissions for 13 percent of boilers and heaters and for dioxins and furans. Although Section 

112(h) of the Clean Air Act permits EPA to establish work practice standards as an option for 

reducing emissions, the Act intentionally limits their use, with explicit instructions that these are 

to be used only if it is infeasible to prescribe or enforce emission 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 shown and cannot show that it is 

infeasible to set emission standards for boilers, and the work practice standards it issued are not 

consistent with § 112(d). Rather, EPA has merely used work practice standards as an excuse to 

rationalize allowing industry to keep doing the same thing 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 

from the stacks and justifies the use of work practice standards as the only remaining option. 

Even if the EPA could demonstrate that the Agency could not set emission standards for boilers, 

the Agency misses the opportunity to take one of the other options available under Section 

112(h): that is, to “promulgate a design, equipment,” or “operational standard” that might ensure 

that these toxic emissions are reduced. Requiring the adoption of equipment that is in use in the 

lowest emitting facilities would be much 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 

manufacturer’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 especially 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 not 

enough. Work practice standards do not reflect measures that yield the maximum achievable 

degree of reduction in these pollutants nor, at a minimum, reflect the measures adopted by 

facilities with the lowest emission levels. If EPA were to set work practice standards, it would 

have to require the use of these technologies at a minimum. Moreover, the proposed rule 

provides no means to enforce compliance with even these limited requirements. 
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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 shutdown 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 the 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: EPA-HQ-OAR-2003-0119-2614-A1

Comment Excerpt Number: 22

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 

burdensome, affected sources will still need sufficient time to determine what needs to be 

included in the tuneup protocol, when to schedule the initial tune-up, and to develop the 

reporting protocol that needs to be submitted to EPA or to the delegated state or local agency. 

Further, there appears to be no reason why the smaller 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 violations 

after the compliance date.

Response: This comment deals primarily with the Identification of Non-Hazardous Secondary 

Materials That Are Solid Waste and the National Emission Standards for Hazardous Air 
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Pollutants for Area Sources: Industrial, Commercial, 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-HQ-OAR-2003-0119-2595-A1

Comment Excerpt Number: 1

Comment: 4I. Forest Biomass Is a Valuable Renewable Energy Supply and Is an Essential 

Part of Our National Energy Policy

A. Forest biomass is an important renewable fuel source leading to lower GHG lifecycle 

emissions than conventional fuels Wood from sustainably managed forests provides a 

renewable, low-carbon alternative to fossil fuels. According to U.S. Energy Information 

Administration (“EIA”) data, biomass already supplies more than 50% of the nation’s renewable 

energy.

2 Forests can provide ample sustainable, domestic supplies of biomass to produce liquid 

transportation fuels, electricity, thermal energy (heat and power for manufacturing and other 

industrial uses), and synthetic natural gas.3 When evaluating the GHG emissions associated with 

fuels, a lifecycle analysis incorporates all steps in a “product system” to evaluate broader 

environmental impacts of products and processes. Using forest biomass as a renewable fuel 

source has significant carbon benefits because its lifecycle 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%.”4In addition, 

EPA has determined, in conjunction with its Renewable Fuel Standard Program, that the 

lifecycle GHG emissions reductions associated with cellulosic ethanol may be as much as 92.7 

percent.5Lifecycle analyses of biomass feedstocks used for electricity generation have produced 

similar results.6In 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 emissions of other biogenic GHGs (such as methane) that would result from 

alternative disposal fates of biomass residues and replace them with lower potency CO2

emissions from energy production.7Thus the prevailing science – in both the public and private 

sectors – acknowledges the significant carbon benefits of energy produced using renewable 

biomass from managed forests. 

B. The combustion of forest biomass is part of the ongoing carbon cycle The prevailing view in 

the science community is that, when forests are managed sustainably, CO2 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 previously absorbed from the atmosphere by the forest biomass and will be reabsorbed when 

new biomass is grown. As EPA has concluded, there is “[s]cientific consensus . . . that the CO2

emitted from burning biomass will not increase total atmospheric CO2 if this consumption is 
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done on a sustainable basis.”8 Recognizing that CO2 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 CO2 emissions from biomass combustion by measuring changes in 

forest carbon stocks over time, recognizing that there is no net climate impact as long as forest 

carbon stocks are stable or increasing.10 Similarly, DOE’s Voluntary Reporting of Greenhouse 

Gases Program, authorized by Section 1605(b) of the Energy Policy Act of 1992, provides for 

exclusion emissions from the combustion of biomass fuels.11 More recently, EPA has affirmed 

the climate benefits of biomass energy combustion when compared to fossil fuels by 

reconsidering its treatment of biogenic CO2 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 CO2 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 EPA has consistently 

recognized the climate benefits of biomass energy and is committed to a regulatory approach that 

rewards bioenergy facilities for the climate benefits that they provide in relation to fossil fuel 

facilities. EPA must ensure that the treatment of 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 can 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 and 2035.17 President Obama has 

repeatedly emphasized that renewable energy derived from feedstocks such as forest biomass 

hold the key to transitioning the nation to a “sustainable, low carbon energy future.”18

Recognizing the benefits of all types of biomass, he 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 With 

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 impose 
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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 

correcting 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: 

2See, EIA, Annual Energy Review (Oct. 19, 2011), available at 

http://www.eia.gov/totalenergy/data/annual/showtext.cfm?t=ptb1001. 

3See NAFO, Carbon Neutrality of Energy from Forest Biomass, available at 

http://nafoalliance.org/carbon-neutrality-of-energy-from-forest-biomass/. 

4Department of Energy, Ethanol Benefits, available at 

http://www.afdc.energy.gov/afdc/ethanol/benefits.html (last visited Jan. 30, 2012). 

5See EPA, DPA420-D-06-008, Renewable Fuel Standard Program: Draft Regulatory Impact 

Analysis at 191 (Sept. 2006).

6Cherubini, et al., Energy- and greenhouse gas-based LCA of biofuel and bioenergy systems: 

Key issues, ranges and recommendations, Resources, Conservation and Recycling 535: 434-447 

(2009) (90-95% emissions reductions relative to fossil fuel systems); Zhang, et al., Life cycle 

emissions and cost of producing electricity from coal, natural gas, and wood pellets in Ontario, 

Canada, Environmental Science and Technology 44(1): 538-544 (2010) (91% and 78% 

emissions reductions relative to coal and natural gas systems); Raymer, A.K.P., A comparison of 

avoided greenhouse gas emissions when using different kinds of wood energy, Biomass and 

Bioenergy 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 Technologies, 96 (Sept. 2007), available at 

http://www.epa.gov/chp/documents/biomass_chp_catalog.pdf. 

9EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2009 3-59 (April 15, 

2011). 

10Id. 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 from those fuels to their inventory of mobile 
A-61

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 for 

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 Significant 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

2c712ac 52e8525783100704886!OpenDocument (last visited Jan. 31, 2012).

15Regulating Greenhouse Gas Emissions Under the CAA, 73 Fed. Reg. 44,354, 44,405 (July 

30, 2008). 

16Id. at 44,405-06; see also, NAFO, Carbon Mitigation Benefits of Working Forests (identifying 

trading platforms and registries that recognize forest management), available at 

http://nafoalliance.org/mitigationbenefits-working-forests/. 

17EIA, Annual Energy Outlook 2012 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-office/2011/03/30/remarks-presidentamericas-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-presidentstate-unionaddress.

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: 1
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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 standards 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 beginning 

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 enable 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 not included in the projections. However, the benefits to public 

health that can be estimated alone provide powerful support to require facilities to meet the 

strongest possible limits on these toxic emissions. 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 teenagers; 

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 concerns 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 infections 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, they inhale 

more polluted outdoor air than adults typically do (AAP, 2004). Toxic substances may put 

children more at risk than adults. For example, the 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 than 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 for 
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harm. Current estimates include these groups: ( Asthma - 24.6 million people, including 7.0 

million under age 18 (American Lung Association, 2011) 

Cardiovascular diseases – 82.6 million people (Roger et al., 2011) ( Diabetes – 25.8 million 

people (CDC, 2011) As adults age, their body’s physiological 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 Disproportionately 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 toxics (Morello-Frosch and 

Lopez, 2006). 

A study in Maryland found that the risk of cancer related to air toxics was greatest in areas 

with the largest African American population proportions and lowest among those with the 

smallest African American population proportions. In 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 BJ 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 increased (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 particle 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 this rulemaking this 

comment is out of scope. 

Commenter Name: Janice E. Nolen

Commenter Affiliation: American Lung Association

Document Control Number: EPA-HQ-OAR-2003-0119-2630-A2

Comment Excerpt Number: 6

Comment: Hazardous Air Pollutants from Boilers and 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. These hazardous air pollutants that harm human health include: 
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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 discussion below summarizes the evidence that these 

toxics pose serious threats to health and must be reduced. 

Carbon Monoxide Carbon Monoxide is a colorless, odorless, 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 levels can cause permanent damage to the mental development 

of the fetus (ATSDR, 2009). Dioxins and Furans (Example: 2,3,7,8-tetrachlorodibenzo-pdioxin, known as TCDD) Dioxins and furans are a family of toxic chemicals that 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). Dioxins 

have been found in the U.S. food supply; in 2002-2003, the U.S. Department of Agriculture 

found dioxin-like substances in meat and poultry (Hoffman et al., 2006). Researchers have found 

dioxins in the breast milk of nursing mothers (Lorber and Phillips, 2002). Short-term exposures 

can cause liver damage and skin lesions, while long-term 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-Tetrachlorodibenzo-p-dioxin, or TCDD—is recognized as a known 

human carcinogen. (NTP 2011). (WHO, 2010, 2011; ATSDR, 1994, 1998a, 2000b). Researchers 

are currently exploring the potential for dioxins to act as endocrine disrupters, by mimicking 

natural hormones in the body and altering their normal function (Casals-Casas and Desvergne, 

2011). Last year, the World Health Organization concluded that the developing fetus and the 

newborn child were the most vulnerable to dioxin and furan exposure because of the rapid 

growth of their organ systems (WHO, 2010). 

Mercury (Including Methylmercury) Mercury is a primary metal emitted from coal-fired 

boilers and incinerators . Mercury emissions occur in three forms: as a vaporous gas of elemental 

mercury; oxidized, and bound with particles. 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 and 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 contaminated air or through skin contact, methylmercury is most easily absorbed by 

eating contaminated food, especially fish or shellfish. The long-term, low-level exposure to 
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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 exposure 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 methylmercury in breast milk. Children can also 

become exposed by eating contaminated fish (ATSDR 1999). Each year, more than 300,000 

children born in the US have levels of mercury in 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 methylmercury 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 are 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); inflame 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 as asthma, chronic 

bronchitis, and emphysema, are at risk of being sickened by fine particulate matter. People with 

diabetes, heart disease, high blood pressure, coronary 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) comprise 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. Those secondary 

particles, notably sulfates and nitrates, pose similar life-threatening risks. Inhaled particles 

deposit along the respiratory tract or penetrate deeply into the gas-exchange region of the lung. 

The EPA has already concluded that exposure to fine particulate matter (PM2.5) causes 
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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 

breathing, 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 as 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 limit 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 Medicare 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 arsenic, 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 aluminum, 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 dermal, 

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 nervous 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 cause 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 with 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 another known carcinogenic metal (HHS, 2011). 

Exposure to airborne cadmium causes lung cancer, as the International Agency for Research on 

Cancer reaffirmed in 2009 (Straif, et al., 2009). Prolonged 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). The 
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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 

breath, 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 probable 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, 2008c). 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 

increased 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 specific 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 may 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, impairment 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 (SO2) Sulfur dioxide (SO2) a gaseous 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, shortness of breath and chest tightness, and other problems, especially 

during exercise or physical activity. Continued exposure at high levels aggravates asthma, 
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increases respiratory symptoms, and reduces the ability of the lungs to function. Short exposures

to peak levels of SO2 in the air can make it difficult for people with asthma to breathe when they 

are active outdoors. Rapid breathing during exercise helps SO2 reach the lower respiratory tract, 

as does breathing through the mouth. SO2 pollution increases 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 (SO4) which exist as aerosolized fine particulate matter (PM 2.5), another harmful 

air pollutant discussed below (EPA, 2009). 

Nitrogen Oxides (NOX) Nitrogen oxides (NOX) are a class of gaseous air pollutants composed 

of nitrogen and oxygen. NOX is emitted during the combustion of natural gas in engines, 

turbines, heaters, and boilers during production and processing operations for oil and gas wells. 

NOX is also emitted during pit flaring of VOC emissions from well completions. The pollutant 

itself can inflame the airways and reduce lung function, worsened cough and wheezing, increase 

asthma attacks and hospital visits; and increase risk of respiratory infection (EPA, 2008). EPA’s 

own review of the science found that exposure to NOX can increase the risk of hospitalization by 

up to 20 percent (EPA, 2008). Nitrogen oxides are also precursors to nitrates (NO3) 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 addition, 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.