Vol. 78 Thursday, 

No. 26 February 7, 2013 

Part II 

Environmental Protection Agency 

40 CFR Parts 60 and 241 

Commercial and Industrial Solid Waste Incineration Units: Reconsideration 

and Final Amendments; Non-Hazardous Secondary Materials That Are 

Solid Waste; Final Rule 

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9112 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 60 and 241 

[EPA–HQ–OAR–2003–0119 and EPA–HQ– 

RCRA 2008–0329; FRL–9764–1] 

RIN 2060–AR15 and 2050–AG44 

Commercial and Industrial Solid Waste 

Incineration Units: Reconsideration 

and Final Amendments; NonHazardous Secondary Materials That 

Are Solid Waste 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule; notice of final action 

on reconsideration. 

SUMMARY: This action sets forth the 

EPA’s final decision on the issues for 

which it granted reconsideration in 

December 2011, which pertain to certain 

aspects of the March 21, 2011, final rule 

titled ‘‘Standards of Performance for 

New Stationary Sources and Emissions 

Guidelines for Existing Sources: 

Commercial and Industrial Solid Waste 

Incineration Units’’ (CISWI rule). This 

action also includes our final decision 

to deny the requests for reconsideration 

with respect to all issues raised in the 

petitions for reconsideration of the final 

commercial and industrial solid waste 

incineration rule for which we did not 

grant reconsideration. Among other 

things, this final action establishes 

effective dates for the standards and 

makes technical corrections to the final 

rule to clarify definitions, references, 

applicability and compliance issues. In 

addition, the EPA is issuing final 

amendments to the regulations that 

were codified by the Non-Hazardous 

Secondary Materials rule (NHSM rule). 

Originally promulgated on March 21, 

2011, the non-hazardous secondary 

materials rule provides the standards 

and procedures for identifying whether 

non-hazardous secondary materials are 

solid waste under the Resource 

Conservation and Recovery Act when 

used as fuels or ingredients in 

combustion units. The purpose of these 

amendments is to clarify several 

provisions in order to implement the 

non-hazardous secondary materials rule 

as the agency originally intended. 

DATES: The May 18, 2011 (76 FR 28662), 

delay of the effective date amending 

subparts CCCC and DDDD at 76 FR 

15703 (March 21, 2011) is lifted 

February 7, 2013. The amendments in 

this rule to 40 CFR part 60, subpart 

DDDD, are effective February 7, 2013, 

and to 40 CFR part 60, subpart CCCC, 

are effective August 7, 2013. The 

amendments in this rule to 40 CFR part 

241 are effective April 8, 2013. The 

incorporation by reference of certain 

publications listed in that rule is 

effective February 7, 2013. 

ADDRESSES: The EPA established a 

single docket under Docket ID Number 

EPA–HQ–OAR–2003–0119 for this 

action on the commercial and industrial 

solid waste incineration rule. The EPA 

also established a single docket under 

Docket ID Number EPA–HQ–RCRA– 

2008–0329 for this action on the nonhazardous secondary materials rule. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the EPA Docket Center, EPA West 

Building, Room 3334, 1301 Constitution 

Ave. NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744 and the telephone 

number for the Docket Center is (202) 

566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

further information regarding the 

commercial and industrial solid waste 

incineration reconsideration and final 

amendments, contact Ms. Toni Jones, 

Fuels and Incineration Group, Sector 

Policies and Programs Division (E143– 

05), Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number: (919) 541– 

0316; fax number: (919) 541–3470; 

email address: jones.toni@epa.gov, or 

Ms. Amy Hambrick, Fuels and 

Incineration Group, Sector Policies and 

Programs Division (E143–05), 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number: (919) 541– 

0964; fax number: (919) 541–3470; 

email address: hambrick.amy@epa.gov. 

For further information regarding the 

Non-Hazardous Secondary Materials 

final rule, contact Mr. George Faison, 

Program Implementation and 

Information Division, Office of Resource 

Conservation and Recovery, 5303P, 

Environmental Protection Agency, Ariel 

Rios Building, 1200 Pennsylvania 

Avenue NW., Washington, DC 20460– 

0002; telephone number: 703–305–7652; 

fax number: 703–308–0509; email 

address: faison.george@epa.gov. 

I. Organization of This Document 

The following outline is provided to 

aid in locating information in this 

preamble. 

I. Organization of This Document 

A. Supplementary Information 

B. Does this action apply to me? 

C. Where can I get a copy of this 

document? 

D. Judicial Review 

E. Executive Summary 

II. CISWI Reconsideration and Final Rule 

A. Background Information 

1. What is the history of the CISWI 

standards? 

2. How is the definition of solid waste 

addressed in the final CISWI rule? 

3. What is the relationship between this 

rule and other combustion rules? 

4. What is the response to the vacatur of 

effective dates? 

B. Summary of This Final Rule 

1. Subcategories of Affected Units and 

Emission Standards 

2. Fuel Switching Provisions 

3. Definitions of Cyclonic Burn Barrels, 

Burn-off Ovens, Soil Treatment Units, 

Laboratory Analysis Units and Space 

Heaters 

4. Affirmative Defense for Malfunction 

Events 

5. Oxygen Correction Requirements and 

CO Monitoring Requirements 

6. Full-load Stack Test Requirement for CO 

Coupled With Continuous O2 Monitoring 

7. Non-detect Methodology Using Three 

Times the Detection Level 

8. Definitions for Foundry Sand Thermal 

Reclamation Unit and Chemical 

Recovery Unit 

9. Definition of Contained Gaseous 

Material 

10. Parametric Monitoring Provisions for 

Additional Control Device Types 

11. Particulate Matter Continuous 

Monitoring Provisions for Large ERUs 

and Waste-burning Kilns 

12. Revised Definition of Waste-burning 

Kiln 

13. Revised Definition of Solid Waste 

14. Compliance Dates 

15. Revised New Source Performance 

Standards 

C. Summary of Significant Changes Since 

Proposal 

1. Revision of the Subcategories 

2. Revisions to the Monitoring 

Requirements 

3. Oxygen Monitoring Requirements 

4. Removal of the Definition of 

Homogeneous Waste 

5. Non-detect Methodology Using Three 

Times the Detection Level 

6. Parametric Monitoring for Additional 

Control Device Types 

7. Particulate Matter Continuous 

Monitoring Provisions for Large ERUs 

and Waste-burning Kilns 

8. Compliance Dates 

9. Definition of Waste-burning Kiln 

10. Exemption for Other Solid Waste 

Incineration (OSWI) Units 

D. Technical Corrections and Clarifications 

E. Major Public Comments and Responses 

F. What other actions are we taking? 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9113 

G. What are the impacts associated with 

the amendments? 

1. What are the primary air impacts? 

2. What are the water and solid waste 

impacts? 

3. What are the energy impacts? 

4. What are the secondary air impacts? 

5. What are the cost and economic 

impacts? 

6. What are the benefits? 

III. NHSM Final Revisions 

A. Statutory Authority 

B. NHSM Rule History 

C. Introduction—Summary of Regulations 

Being Finalized 

1. Revised Definitions 

a. Clean Cellulosic Biomass 

b. Contaminants 

c. Established Tire Collection Programs 

d. Resinated Wood 

2. Contaminant Legitimacy Criterion for 

NHSM Used as Fuels 

3. Categorical Non-Waste Determinations 

for Specific NHSM Used as Fuels 

a. Scrap Tires 

b. Resinated Wood 

c. Coal Refuse 

d. Pulp and Paper Sludge 

4. Rulemaking Petition Process for Other 

Categorical Non-Waste Determinations 

(40 CFR 241.4(b)) 

5. Streamlining of the 40 CFR 241.3(c) 

Non-Waste Determination Petition 

Process 

6. Revised Introductory Text for 40 CFR 

241.3(a) 

D. Comments on the Proposed Rule and 

Rationale for Final Decisions 

1. Revised Definitions 

a. Clean Cellulosic Biomass 

b. Contaminants 

c. Established Tire Collection Programs 

2. Contaminant Legitimacy Criterion for 

NHSMs Used as Fuels 

a. General Comments on the Revised 

Contaminant Legitimacy Criterion 

b. Grouping of Contaminants 

c. Meaning of Designed to Burn 

d. Contaminant Comparisons Allowed 

3. Categorical Non-Waste Determinations 

for Specific NHSM Used as Fuels 

a. Scrap Tires 

b. Resinated Wood 

4. Rulemaking Petition Process for Other 

Categorical Non-Waste Determinations 

(40 CFR 241.4(b)) 

5. Materials for Which Additional 

Information was Requested 

a. Pulp and Paper Sludge 

b. Coal Refuse 

c. Manure 

d. Other Materials for Which Additional 

Information was Not Requested 

6. Streamlining of the 40 CFR 241.3(c) 

Non-Waste Determination Petition 

Process 

7. Revised Introductory Text for 40 CFR 

241.3(a) 

E. Cost and Benefits of the Final Rule 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

A. Supplementary Information 

Acronyms and Abbreviations. The 

following acronyms and abbreviations 

are used in this document. 

ACI activated carbon injection 

AF&PA American Forest & Paper 

Association 

ANPRM Advanced Notice of Proposed 

Rulemaking 

ANSI American National Standards 

Institute 

APA Administrative Procedure Act 

ARIPPA Anthracite Region Independent 

Power Producers Association 

ASME American Society of Mechanical 

Engineers 

AST activated sludge treatment 

ASTM American Society for Testing and 

Materials 

ATCM Air Toxic Control Measure 

Btu British thermal unit 

CAA Clean Air Act 

CARB California Air Resources Board 

CBI Confidential Business Information 

CCA chromated copper arsenate 

Cd cadmium 

C&D construction & demolition 

CDX Central Data Exchange 

CFB circulating fluidized bed 

CEMS continuous emissions monitoring 

systems 

CERCLA Comprehensive Environmental 

Response, Compensation, and Liability Act 

CFR Code of Federal Regulations 

CISWI Commercial and Industrial Solid 

Waste Incineration 

CO carbon monoxide 

CO2 carbon dioxide 

Catalyst carbon monoxide oxidation 

catalyst 

Cl2 chlorine gas 

CPMS continuous parametric monitoring 

system 

CWA Clean Water Act 

D/F dioxin/furan 

dscm dry standard cubic meter 

DSW Definition of Solid Waste 

EG emission guidelines 

EJ Environmental Justice 

EOM extractable organic matter 

EPA U.S. Environmental Protection Agency 

ERT Electronic Reporting Tool 

ERU energy recovery unit 

ESP electrostatic precipitator 

FF fabric filters 

FR Federal Register 

HAP hazardous air pollutants 

HCl hydrogen chloride 

HF hydrogen fluoride 

Hg mercury 

HMI hospital, medical and infectious 

HMIWI Hospital, Medical and Infectious 

Waste Incineration 

ICR Information Collection Request 

Lb pound 

LML lowest measured level 

Mg milligram 

Mn manganese 

MACT maximum achievable control 

technology 

MDL method detection level 

mg/dscm milligrams per dry standard cubic 

meter 

mmBtu/hr million British thermal units per 

hour 

MSW Municipal Solid Waste 

MW megawatts 

MWC Municipal Waste Combustor 

NAAQS National Ambient Air Quality 

Standards 

NAICS North American Industrial 

Classification System 

NCASI National Council on Air and Stream 

Improvement 

ND nondetect 

NESHAP National Emission Standards for 

Hazardous Air Pollutants 

ng/dscm nanograms per dry standard cubic 

meter 

NHSM non-hazardous secondary 

material(s) 

NIST National Institute of Standards and 

Technology 

NOX nitrogen oxides 

NSPS New Source Performance Standards 

NTTAA National Technology Transfer and 

Advancement Act 

OAQPS Office of Air Quality Planning and 

Standards 

OMB Office of Management and Budget 

OSWI Other Solid Waste Incineration 

OSWER Office of Solid Waste and 

Emergency Response 

O2 Oxygen 

PAH polycyclic aromatic hydrocarbons 

Pb lead 

PCBs polychlorinated biphenyls 

PCDD polychlorinated dibenzodioxins 

PCDF polychlorinated dibenzofurans 

PIC product of incomplete combustion 

PM particulate matter 

POM polycyclic organic matter 

ppm parts per million 

ppmv parts per million by volume 

ppmvd parts per million by dry volume 

PQL practical quantitation limit 

PRA Paper Reduction Act 

PS Performance Specification 

lb/MMBtu pound per million British 

thermal units 

RCRA Resource Conservation and Recovery 

Act 

RDL reported detection level 

RFA Regulatory Flexibility Act 

RIA Regulatory Impact Analysis 

RIN Regulatory Information Number 

RTO regenerative thermal oxidizer 

RTR residual risk and technology review 

SBA Small Business Administration 

SBREFA Small Business Regulatory 

Enforcement Fairness Act 

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9114 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

SISNOSE Significant Economic Impact on a 

Substantial Number of Small Entities 

SMCRA Surface Mining Control and 

Reclamation Act of 1977 

SNCR selective noncatalytic reduction 

SO2 sulfur dioxide 

SSI Sewage Sludge Incineration 

SSM startup, shutdown and malfunction 

SVOC Semi-Volatile Organic Compound 

SWDA Solid Waste Disposal Act 

TBtu tera British thermal unit 

TEOM Tapered Element Oscillating 

Microbalance 

TEQ Toxic Equivalency 

The Court U.S. Court of Appeals for the 

District of Columbia Circuit 

TMB Total Mass Basis 

TOX Total Organic Halogens 

tpy tons per year 

TSM Total Selected Metal 

TTN Technology Transfer Network 

UCL upper confidence limit 

ug/dscm micrograms per dry standard cubic 

meter 

UMRA Unfunded Mandates Reform Act 

UL upper limit 

UPL upper prediction limit 

U.S.C. United States Code 

USGS United States Geological Survey 

VCS Voluntary Consensus Standards 

VOC volatile organic compound 

WWW Worldwide Web 

B. Does this action apply to me? 

Categories and entities potentially 

affected by this action are those that 

operate CISWI units and those that 

generate potentially affected NHSMs. 

The NSPS and EG, hereinafter referred 

to as ‘‘standards,’’ for CISWI affect the 

following categories of sources: 

Category NAICS1

Code Examples of potentially regulated entities 

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

486 

Oil and Gas Extraction, mining (except oil and gas); Pipeline Transportation 

221 Utilities 

321, 322, 

337 

Wood Product Manufacturing, Paper Manufacturing, Furniture and Related Product Manufacturing 

325, 326 Chemical Manufacturing, Plastics and Rubber Products Manufacturing 

327 Nonmetallic Mineral Product Manufacturing, 

333, 336 Machinery Manufacturing, Transportation Equipment Manufacturing 

423, 44 Merchant Wholesalers, Durable Goods, Retail Trade 

Any facility or entity generating 

a non hazardous secondary 

material that may be burned 

for fuel or destruction 2.

111 Crop Production 

112 Animal Production 

113 Forestry and Logging 

115 Support Activities for Agriculture and Forestry 

211 Oil and Gas Extraction 

212 Mining (except oil and gas) 

221 Utilities 

236 Construction of Buildings 

311 Food Manufacturing 

312 Beverage and Tobacco Product Manufacturing 

313 Textile Mills 

316 Leather and Allied Product Manufacturing 

321 Wood Product Manufacturing 

322 Paper Manufacturing 

324 Petroleum and Coal Products Manufacturing 

325 Chemical Manufacturing 

326 Plastics and Rubber Products Manufacturing 

327 NonMetallic Mineral Product Manufacturing 

331 Primary Metal Manufacturing 

332 Fabricated Metal Product Manufacturing 

333 Machinery Manufacturing 

334 Computer and Electronic Product Manufacturing 

336 Transportation Equipment Manufacturing 

337 Furniture and Related Product Manufacturing 

339 Miscellaneous Manufacturing 

423 Merchant Wholesalers, Durable Goods 

424 Merchant Wholesalers, Nondurable Goods 

44–45 Retail Trade (all categories, including non-store retailers, vending and direct sellers) 

486 Pipeline Transportation 

493 Warehousing and Storage 

511 Publishing Industries (except internet) 

531 Real Estate 

541 Professional, Scientific and Technical Services 

611 Educational Services 

622 Hospitals 

623 Nursing and Residential Care Facilities 

624 Social Assistance 

713930 Boating Clubs with Marinas 

721 Accommodation 

722 Food Services and Drinking Places 

813 Religious, Grantmaking, Civic, Professional and Similar Organizations 

92 Public Administration 

1 North American Industry Classification System. 

2 Note that some of these NAICS may overlap with institutional facility types where incinerators are regulated by the Other Solid Waste Incinerators (OSWI) emission guidelines and NSPS. 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9115 

1The nine pollutants for which we must issue 

emission standards under section 129 are: PM, SO2, 

HCl, NOX, CO, Pb, Cd, Hg, D/F. CAA section 

129(a)(4). 

This table is not intended to be 

exhaustive but rather provides a guide 

for readers regarding entities likely to be 

affected by the final action. To 

determine whether your facility would 

be affected by the final action, you 

should examine the applicability 

criteria in 40 CFR 60.2010 of subpart 

CCCC, 40 CFR 60.2505 of subpart 

DDDD, and 40 CFR 241. If you have any 

questions regarding the applicability of 

the final action to a particular entity, 

contact the persons listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section. 

C. Where can I get a copy of this 

document? 

The docket number for the action 

regarding the CISWI NSPS (40 CFR part 

60, subpart CCCC) and EG (40 CFR part 

60, subpart DDDD) is Docket ID Number 

EPA–HQ–OAR–2003–0119. 

Worldwide Web. In addition to being 

available in the docket, an electronic 

copy of the final action is available on 

the WWW through the TTN Web site. 

Following signature, the EPA posted a 

copy of the final action on the TTN’s 

policy and guidance page for newly 

proposed or promulgated rules at 

http://www.epa.gov/ttn/oarpg. The TTN 

provides information and technology 

exchange in various areas of air 

pollution control. 

D. Judicial Review 

Under the CAA section 307(b)(1), 

judicial review of this final rule is 

available only by filing a petition for 

review in The Court April 8, 2013. 

Under CAA section 307(d)(7)(B), only 

an objection to this final rule that was 

raised with reasonable specificity 

during the period for public comment 

can be raised during judicial review. 

This section also provides a mechanism 

for us to convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to EPA 

that it was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of this rule.’’ Any person 

seeking to make such a demonstration to 

us should submit a Petition for 

Reconsideration to the Office of the 

Administrator, Environmental 

Protection Agency, Room 3000, Ariel 

Rios Building, 1200 Pennsylvania Ave. 

NW., Washington, DC 20004, with a 

copy to the persons listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section, and the Associate 

General Counsel for the Air and 

Radiation Law Office, Office of General 

Counsel (Mail Code 2344A), 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20004. Note, under CAA section 

307(b)(2), the requirements established 

by this final rule may not be challenged 

separately in any civil or criminal 

proceedings brought by the EPA to 

enforce these requirements. Resource 

Conservation and Recovery Act sections 

of the rule would be subject to judicial 

review under RCRA. 

E. Executive Summary 

Purpose of the Regulatory Action 

The EPA is promulgating final rules 

that establish standards for new and 

existing CISWI units. Section 129 of the 

CAA, titled ‘‘Solid Waste Combustion,’’ 

requires the EPA to develop and adopt 

standards for commercial and industrial 

solid waste incineration units pursuant 

to CAA sections 111 and 129. This final 

rule makes certain revisions to the final 

‘‘Standards of Performance for New 

Stationary Sources and Emission 

Guidelines for Existing Sources: 

Commercial and Industrial Solid Waste 

Incineration Units,’’ 76 FR 15704 

(March 21, 2011), based on the issues 

proposed for reconsideration issues (76 

FR 40582) and in response to public 

comments on the proposed CISWI 

reconsideration rule. 

On May 18, 2011, the EPA issued a 

notice that delayed the effective dates of 

the March 21, 2011, CISWI rule (the 

‘‘Delay Notice’’). 76 FR 28662 (May 18, 

2011). As the result of that action, the 

2000 CISWI rule remained in effect. The 

Court vacated the Delay Notice in 

January 2012. However, because the 

Delay Notice delayed the effectiveness 

of the CISWI rule from May 2011 

through vacatur of that notice in January 

2012, the revisions to the 2000 CISWI 

rule that were finalized in the 2011 

CISWI rule were never codified in the 

CFR, but instead appear as notes after 

the corresponding provisions of the 

2000 CISWI rule in the CFR. Although 

the issues on reconsideration were 

limited in the December 2011 CISWI 

reconsideration proposal, we had to 

include in that proposed 

reconsideration rule all of the regulatory 

changes that had been made since the 

2000 rule because the 2011 CISWI rule 

was not codified in the CFR. 

Specifically, we included in the 

December 23, 2011, proposed 

reconsideration rule all of the regulatory 

changes the EPA had made to the 2000 

CISWI rule in the 2011 CISWI rule, as 

well as the changes to the 2011 CISWI 

rule that the EPA proposed to make on 

reconsideration. In response to the 

Court’s vacatur of the Delay Notice in 

January 2012, this final action lifts the 

delay of effectiveness so that the CFR 

can be revised to properly reflect the 

revisions to the 2000 CISWI rule that 

were finalized in the 2011 CISWI rule. 

This final action also contains 

regulatory text that amends the 2011 

CISWI rule to address the 

reconsideration. Therefore, this final 

rule’s amendatory language differs from 

that of the December 2011 

reconsideration proposal as it amends 

the 2011 CISWI rule instead of the 2000 

CISWI rule. This change to the 

amendatory baseline in no way alters 

our limitation of the issues for comment 

for which we granted reconsideration. 

We have provided in the CISWI docket 

a redline/strikeout file of the 2000 

CISWI rule to help implementing 

agencies and affected sources to identify 

the sum total of the revisions made to 

the 2000 CISWI rule through today’s 

final notice pursuant to the 2011 CISWI 

rule and this final action. 

Summary of Major Provisions for the 

Final Reconsideration Rule 

In general, the final rule establishes 

revised numeric emission limits for 

some new and existing CISWI units for 

certain of the nine pollutants listed in 

section 129(a)(4) of the CAA.1

The EPA established or revised 

standards for four subcategories of 

CISWI units in the 2011 CISWI rule: 

incinerators; small remote incinerators; 

ERUs; and waste-burning kilns. The 

2011 CISWI rule also included two 

subcategories of ERUs. In this final rule, 

we have further subcategorized ERUs 

and subcategorized waste-burning kilns 

based on design type differences. Thus, 

the final rule includes three 

subcategories of ERUs and separate CO 

limits for two subcategories of wasteburning kilns. 

We have further revised some of the 

CISWI limits proposed in the 

reconsideration notice in response to 

comments on CO span methodology and 

because we incorporated additional 

data, including new data submitted 

during the comment period. These 

changes primarily affect the ERU and 

waste-burning kiln subcategories but 

also affect some of the limits in each of 

the four subcategories. 

To ensure compliance with the 

emission limits, this final rule 

establishes stack testing and continuous 

monitoring requirements. The rule 

allows sources to use CEMS if an owner 

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9116 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

or operator chooses to do so. 

Continuous parameters and emissions 

levels (if used) are measured as either a 

3-hour block or a 30-day rolling average 

basis, depending on the parameter being 

measured and the subcategory of CISWI. 

Since sources may choose to cease or 

start combusting solid waste at any time 

due to market conditions or for other 

reasons, the final rule contains 

provisions that specify the steps 

necessary for sources to switch 

applicability between this final rule and 

other applicable emission standards 

issued pursuant to CAA section 112. 

This rule also contains revisions to 

some of the monitoring, recordkeeping 

and reporting requirements. 

The date existing sources must 

comply with the final CISWI rule 

depends primarily on state plan 

approval but may be no later than the 

date 5 years after publication of this 

final rule in the Federal Register. For 

new sources, the effective date is either 

August 7, 2013, or the date of startup of 

the source, whichever is later. New 

sources are defined as sources that 

began construction on or after June 4, 

2010, or commenced reconstruction or 

modification after August 7, 2013. 

Costs and Benefits 

The final rule affects 106 existing 

sources located at 76 facilities. The EPA 

projects an additional incinerator and 

five additional small remote 

incinerators to be subject to this rule 

over the next 5 years. This final rule 

applies to facilities in multiple sectors 

of our economy including small entities. 

Table 1 of this preamble summarizes the 

costs and benefits associated with this 

final rule. Note, these are the costs and 

benefits of the final 2011 CISWI rule as 

amended by today’s final rule and 

replace the costs and benefits presented 

in the March 2011 final rule. For 

comparison, the 2011 final rule, at a 7 

percent discount rate, had costs of $218 

million and monetized benefits of $320 

to $790 million (2008 dollars). 

(However, because the February 2011 

RIA did not incorporate the final 

engineering costs and emission 

reductions estimates, it reported costs of 

$280 million and monetized benefits of 

$310 to $750 million (2008 dollars)).A 

more detailed discussion of the costs 

and benefits of this final rule is 

provided in section II.G of this 

preamble. 

TABLE 1—SUMMARY OF THE MONETIZED BENEFITS, SOCIAL COSTS AND NET BENEFITS FOR THE FINAL CISWI NSPS AND

EG IN 2015 

[Millions of 2008$]1

3 Percent discount 

rate 

7 Percent discount 

rate 

Total Monetized Benefits2 ............................................................................................................... $420 to $1,000 $380 to $930 

Total Social Costs3 .......................................................................................................................... $258 $258 

Net Benefits ..................................................................................................................................... $160 to $770 $120 to $670 

Health effects from exposure to HAP 780 tons 

of HCl, 2.5 tons of lead, 1.8 tons of Cd, 680 

pounds of Hg, and 58 grams of dioxins/ 

furans). 

Non-monetized Benefits .................................................................................................................. Health effects from exposure to criteria pollutants (20,000 tons of CO2 6,300 tons of SO2, 

5,400 tons of NO2, and secondary formation 

of ozone). 

Ecosystem effects. 

Visibility impairment. 

1All estimates are for the implementation year (2015) and are rounded to two significant figures. These results reflect the lowest cost disposal 

assumption. 2The total monetized benefits reflect the human health benefits associated with reducing exposure to PM2.5 through reductions of PM2.5 precursors such as directly emitted particles, SO2, and NOX. It is important to note that the monetized benefits include many but not all health effects associated with PM2.5 exposure. Monetized benefits are shown as a range from Pope, et al. (2002) to Laden, et al. (2006). These models 

assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific 

evidence is not yet sufficient to allow differentiation of effect estimates by particle type. 3The methodology used to estimate social costs for 1 year in the multimarket model using surplus changes results in the same social costs for 

both discount rates. 

II. CISWI Reconsideration and Final 

Rule 

A. Background Information 

1. What is the history of the CISWI 

standards? 

On December 1, 2000, the EPA 

promulgated NSPS and EG for CISWI 

units (60 FR 75338), hereinafter referred 

to as the 2000 CISWI rule. On January 

30, 2001, the Sierra Club filed a petition 

for review in the Court challenging the 

EPA’s final CISWI rule. On August 17, 

2001, the EPA granted a Request for 

Reconsideration, pursuant to CAA 

section 307(d)(7)(B), submitted on 

behalf of the National Wildlife 

Federation and the Louisiana 

Environmental Action Network, related 

to the definition of ‘‘commercial and 

industrial solid waste incineration unit’’ 

and ‘‘commercial or industrial waste’’ in 

the 2000 CISWI rule. In granting the 

petition for reconsideration, the EPA 

agreed to undertake further notice and 

comment proceedings related to these 

definitions. On September 6, 2001, the 

Court entered an order granting the 

EPA’s motion for a voluntary remand of 

the CISWI rule, without vacatur. The 

EPA requested a voluntary remand of 

the final CISWI rule to address concerns 

related to the EPA’s procedures for 

establishing MACT floors for CISWI 

units in light of the Court’s decision in 

Cement Kiln Recycling Coalition v. EPA, 

255 F.3d 855 (DC Cir. 2001)(Cement 

Kiln). Neither the EPA’s granting of the 

petition for reconsideration, nor the 

Court’s order granting a voluntary 

remand, stayed, vacated or otherwise 

influenced the effectiveness of the 2000 

CISWI rule. Therefore, the remand order 

had no effect on the effectiveness of the 

2000 CISWI rule. 

On February 17, 2004, the EPA 

published a proposed rule (CISWI 

Definitions Rule) soliciting comments 

on the definitions of ‘‘solid waste,’’ 

‘‘commercial and industrial waste,’’ and 

‘‘commercial and industrial solid waste 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9117 

incineration unit.’’ On September 22, 

2005, the EPA published in the Federal 

Register the final rule reflecting our 

decisions with respect to the CISWI 

Definitions Rule. The rule was 

challenged and, on June 8, 2007, the 

Court vacated and remanded the CISWI 

Definitions Rule. In vacating the rule, 

the Court found that CAA section 129 

unambiguously includes among the 

incineration units subject to its 

standards, any facility that combusts 

any solid waste material, subject to four 

statutory exceptions. While the Court 

vacated the CISWI Definitions Rule, the 

2000 CISWI rule remained in effect. 

On March 21, 2011, the EPA 

promulgated revised NSPS and EG for 

CISWI units (76 FR 15704)(2011 CISWI 

rule). That action constituted a partial 

response to the voluntary remand of the 

2000 CISWI rule and to the 2007 vacatur 

and remand of the CISWI Definitions 

Rule. In addition, the EPA addressed the 

5-year technology review that is 

required under CAA section 129(a)(5). 

On the same day, the EPA issued a 

notice that it intended to reconsider 

certain aspects of the 2011 CISWI rule 

that warrant further opportunity for 

public comment (76 FR 15266). 

Following promulgation of the 2011 

CISWI rule, the EPA received petitions 

for reconsideration from the following 

organizations (‘‘Petitioners’’): Alaska Oil 

and Gas Association/Alaska Miners 

Association/ConocoPhillips (AOGA), 

American Chemistry Council (ACC), 

American Foundry Society (AFS), 

American Iron and Steel Institute (AISI) 

and American Coke and Coal Chemicals 

Institute (ACCCI), Anthracite Region 

Independent Power Producers 

Association (ARIPPA), American 

Petroleum Institute (API) and National 

Petrochemical and Refiners Association 

(NPRA), Auto Industry Forum (AIF), 

Citizens Energy Group (CEG), Council of 

Industrial Boiler Owners (CIBO), 

Earthjustice/Sierra Club, Edison Mission 

Energy, Hovensa L.L.C. and Tesoro 

Hawaii Corp., Industry Coalition 

(AF&PA et al.), JELD–WEN Inc., 

Portland Cement Association (PCA), 

Renovar Energy Corp., and Waste 

Management Inc. (WM). Copies of these 

petitions are provided in the docket (see 

Docket ID Number EPA–HQ–OAR– 

2003–0119). Petitioners, pursuant to 

CAA section 307(d)(7)(B), requested that 

the EPA reconsider numerous 

provisions in the 2011 CISWI rule. 

On May 18, 2011, the EPA issued a 

notice to postpone the effective dates of 

the March 21, 2011, final CISWI rule. 

This notice also requested that the 

public submit additional data and 

information to the EPA by July 15, 2011, 

for review and consideration in the 

reconsideration proceedings. 

On December 23, 2011, the EPA 

published a proposed rule soliciting 

comment on the issues on which the 

EPA was granting reconsideration. In 

March 2011, the EPA had publically 

stated its intent to reconsider some of 

these issues. 76 FR 15266. The EPA 

limited comment in the December 23, 

2011, proposed rule to the specific 

issues on which it was granting 

reconsideration which included the 

following: 

• Revising the subcategories and 

emission limits for ERUs and wasteburning kilns to reflect updated 

inventories and additional data. 

• Establishing limitations on fuel 

switching provisions. 

• Definitions of cyclonic burn barrels, 

burn-off ovens, soil treatment units, 

laboratory analysis units and space 

heaters from CISWI subcategories. 

• Providing an affirmative defense for 

malfunction events. 

• Revisions to the CO monitoring 

requirements. 

• Establishing a full-load stack test 

requirement for CO coupled with 

continuous O2 (trim) monitoring. 

• Establishing a definition of 

‘‘homogeneous waste.’’ 

• Responding to comments on the 

2011 CISWI rule regarding the use of 

fuel variability in emission limit 

calculations. 

• Responding to comments on the 

2011 CISWI rule regarding the review of 

D/F data and non-detect methodology 

using three times the detection level. 

• Responding to comments on the 

2011 CISWI rule regarding providing an 

option for sources to use emissions 

averaging to demonstrate compliance. 

• Establishing a definition for 

foundry sand thermal reclamation unit. 

• Reinstating the definition of 

contained gaseous material. 

• Revising the definition of chemical 

recovery unit. 

• Allowing for the use of feed stream 

analysis or other supplemental 

information to demonstrate compliance. 

• Responding to comments on the 

2011 CISWI rule regarding providing 

percent reduction alternative standards. 

• Providing parametric monitoring 

provisions for additional control device 

types. 

• Revisions to the continuous 

monitoring provisions for large ERUs. 

• Extending effective dates. 

• Technical corrections and 

clarifications. 

2. How is the definition of solid waste 

addressed in the final CISWI rule? 

The RCRA definition of solid waste is 

integral in defining the CISWI source 

category. The EPA defines NHSMs that 

are solid waste under RCRA in the final 

‘‘Identification of Non-Hazardous 

Secondary Materials That Are Solid 

Waste’’ Rulemaking. In an action 

parallel to the March 21, 2011, final 

CISWI rule, the EPA promulgated a final 

rule that identifies whether NHSMs are 

or are not solid waste when used as 

fuels or ingredients in combustion units. 

That action, hereinafter referred to as 

the ‘‘2011 NHSM final rule,’’ is relevant 

to the final CISWI rule because some 

ERUs and waste-burning kilns combust, 

in their combustion units, secondary 

materials that are solid waste under the 

2011 NHSM final rule. Commercial and 

industrial units that combust solid 

waste are subject to standards issued 

pursuant to CAA section 129, rather 

than to standards issued pursuant to 

CAA section 112 that would otherwise 

be applicable to such units (e.g., units 

that would be boilers, process heaters or 

cement kilns if they were not 

combusting solid waste). 

3. What is the relationship between this 

rule and other combustion rules? 

These amendments address the 

combustion of solid waste materials (as 

defined by the Administrator under 

RCRA in the NHSM Definition rule) in 

combustion units at commercial and 

industrial facilities. If an owner or 

operator of a CISWI unit permanently 

ceases combusting solid waste, the 

affected unit would no longer be subject 

to the CISWI rule because the unit 

would not be a solid waste incineration 

unit subject to standards under CAA 

section 129. Standards issued pursuant 

to section 112 of the CAA may apply to 

CISWI units that cease combusting solid 

waste. For example, CAA section 112 

standards applicable to boilers and 

process heaters at major sources and 

boilers at area sources would apply to 

boilers and process heaters that cease 

combusting solid waste. Boilers and 

process heaters that are located at 

commercial and industrial facilities and 

that combust solid waste are subject to 

CISWI as ERUs. The EPA has also 

finalized the CAA section 112 standards 

for the Portland Cement Manufacturing 

Industry (75 FR 21136, September 9, 

2010). Cement kilns combusting solid 

waste are waste-burning kilns subject to 

CISWI, not the otherwise applicable 

CAA section 112 standards. 

4. What is the response to the vacatur 

of effective dates? 

On January 9, 2012, the Court vacated 

the May 18, 2011, Delay Notice, which 

delayed the effective dates of the 2011 

CISWI rule. On February 7, 2012, the 

EPA issued a no action assurance letter 

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9118 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

2The date for determining whether a source is a 

‘‘new’’ source is the publication date of the 

proposed standards. The final rule and 

reconsideration proposal contained a typographical 

error in 40 CFR 60.2015(a)(1) that did not specify 

the June 4, 2010, proposal date. 

regarding certain notification deadlines 

in the March 2011 CISWI rule. 

The EPA has conducted outreach to 

each EPA Regional Office and it has not 

found any new CISWI units that 

commenced construction since the 

proposed CISWI rule was published on 

June 10, 2010. The CAA defines a ‘‘new 

source,’’ in part, as any source that 

commences construction after the 

publication date of proposed CAA 

section 111 and 129 standards2 CAA 

section 129(g)(2). Based on our outreach 

efforts, we do not believe there are any 

CISWI units that are in noncompliance 

with the NSPS contained in the final 

2011 CISWI rule. 

As explained above, today’s final rule 

amendatory text reflects changes to the 

2011 CISWI rule, not the 2000 CISWI 

rule as in the reconsideration proposal 

notice. We have provided in the CISWI 

docket a redline/strikeout file of the 

2000 CISWI rule to help implementing 

agencies and affected sources to identify 

the sum total of the revisions made to 

the 2000 CISWI rule pursuant to the 

2011 CISWI rule and this final action. 

B. Summary of This Final Rule 

As stated above, the December 23, 

2011, proposed rule addressed specific 

issues and provisions the EPA identified 

for reconsideration. This summary of 

the final rule reflects the agency’s final 

action in regards to those provisions 

identified for reconsideration and on 

other discrete matters identified in 

response to comments or data received 

during the comment period. Information 

on other provisions and issues not 

proposed for reconsideration is 

contained in the notice and record for 

the 2011 CISWI rule. 76 FR 15704 

(March 21, 2011). 

1. Subcategories of Affected Units and 

Emission Standards 

This final rule defines a CISWI unit, 

in part, as any combustion unit at a 

commercial or industrial facility that is 

used to combust solid waste (as defined 

under RCRA)(40 CFR 60.2265 (NSPS) 

and 60.2875 (EG)). We have established 

standards in this final rule for the 

following four subcategories of CISWI 

units: Incinerators (i.e., units designed 

to burn discarded waste materials for 

the purpose of disposal); small, remote 

incinerators; ERUs (i.e., units that 

would be boilers or process heaters if 

they did not combust solid waste); and 

waste burning kilns (i.e., units that 

would be cement kilns if they did not 

combust solid waste). We have further 

subcategorized ERUs into three 

subcategories and waste burning kilns 

into two subcategories for CO emission 

limits only. Changes to the 

subcategories made since proposal are 

discussed below in section II.C of this 

preamble: ‘‘Summary of Significant 

Changes Since Proposal.’’ 

The final rule emission limits for new 

and existing sources in the solid-fuel 

burning ERU subcategory and the wasteburning kilns subcategories were 

revised based on changes to the 

inventories for those subcategories as 

discussed below in section II.C of this 

preamble: ‘‘Summary of Significant 

Changes Since Proposal.’’ Tables 2 and 

3 of this preamble present the final 

emission limits for all subcategories for 

existing and new sources, respectively. 

TABLE 2—COMPARISON OF EXISTING SOURCE MACT FLOOR LIMITS FOR 2000 CISWI RULE AND THE FINAL MACT 

FLOOR LIMITS

Pollutant (units) a

Incinerators 

(2000 CISWI 

limit) 

CISWI Subcategories 

Incinerators ERUs—Solids ERUs—Liquid/ 

Gas Waste-burning kilns Small, remote incinerators 

HCl (ppmv) .................. 62 29 0.20 (biomass units)/13 

(coal units).

b 14 b 3.0 ............................ 300 

CO (ppmv) ................... 157 17 260 (biomass units)/95 

(coal units).

35 110 (long kilns)/790 

(preheater/ 

precalciner).

64 

Pb (mg/dscm) .............. 0.04 0.015 0.014b (biomass units)/ 

0.14 b (coal units).

0.096 0.014 b ........................ 2.1 

Cd (mg/dscm) .............. 0.004 0.0026 0.0014 b (biomass units)/ 

0.0095 (coal units).

0.023 0.0014 b ...................... 0.95 

Hg (mg/dscm) .............. 0.47 0.0048 0.0022 (biomass units)/ 

0.016 (coal units).

b 0.0024 0.011 b ........................ 0.0053 

PM, filterable (mg/ 

dscm).

70 34 11 (biomass units)/160 

(coal units).

110 4.6 ............................... 270 

Dioxin, furans, total 

(ng/dscm).

(no limit) 4.6 0.52 b (biomass units)/ 

5.1 b (coal units).

b 2.9 1.3 ............................... 4,400 

Dioxin, furans, TEQ 

(ng/dscm).

0.41 0.13 0.12 (biomass units)/ 

0.075 b (coal units).

b 0.32 0.075 b ........................ 180 

NOX (ppmv) ................. 388 53 290 (biomass units)/ 340 

(coal units).

76 630 .............................. 190 

SO2 (ppmv) ................. 20 11 7.3 (biomass units)/650 

(coal units).

720 600 .............................. 150 

aAll emission limits are expressed as concentrations corrected to 7 percent O2. bSee the memorandum in the CISWI docket ‘‘CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final 

Rule’’ for details on this calculation. 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9119 

TABLE 3—COMPARISON OF NEW SOURCE MACT FLOOR LIMITS FOR 2000 CISWI RULE AND THE FINAL MACT FLOOR

LIMITS

Pollutant (units) a Incinerators 

(2000 limit) 

Final CISWI subcategories 

Incinerators ERUs—Solids ERUs—Liquid/ 

Gas Waste-burning kilns Small, remote incinerators 

HCl (ppmv) .................. 62 0.091 c0.20 (biomass units)/13 

(coal units).

b 14 3.0 b ............................ 200 

CO (ppmv) ................... 157 17 240 (biomass units)/95 

(coal units).

35 90 (long kilns)/190 

(preheater/ 

precalciner).

13 

Pb (mg/dscm) .............. 0.04 b 0.015 0.014 b (biomass units)/ 

0.14 b (coal units).

0.096 0.014 b ........................ 2.0 

Cd (mg/dscm) .............. 0.004 0.0023 0.0014 c (biomass units)/ 

0.0095 (coal units).

0.023 0.0014 b ...................... 0.67 

Hg (mg/dscm) .............. 0.47 b 0.00084 0.0022 c (biomass units)/ 

0.016(coal units).

d 0.00056 0.0037b ....................... 0.0035 

PM, filterable (mg/ 

dscm).

70 18 5.1 (biomass units)/160 

(coal units).

110 2.2 ............................... c 270 

Dioxin, furans, total 

(ng/dscm).

(no limit) b 0.58 0.52 b (biomass units)/ 

5.1 b (coal units).

(no limit) 0.51 b .......................... 1,800 

Dioxin, furans, TEQ 

(ng/dscm).

0.41 0.13 0.076 b (biomass units)/ 

0.075 b (coal units).

d 0.093 0.075 b ........................ 31 

NOX (ppmv) ................. 388 23 290 c (biomass units)/ 

340 (coal units).

76 200 b ........................... 170 

SO2 (ppmv) ................. 20 c 11 7.3 c (biomass units)/650 

(coal units).

720 28 ................................ 1.2 

aAll emission limits are measured at 7 percent O2. bSee the memorandum ‘‘CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule’’ for details on 

this calculation. cThe NSPS limit equals the EG limit. The EG limit was selected as the NSPS limit. 

d D/F TEQ and Hg limits for ERUs—liquid/gas were replaced with D/F TEQ limits for liquid fuel major source boilers. See ‘‘CISWI Emission 

Limit Calculations for Existing and New Sources for the Reconsideration Final Rule’’ for details. eSO2 limits for Waste-burning kilns were replaced with SO2 limits for Portland Cement NSPS kilns. See ‘‘CISWI Emission Limit Calculations 

for Existing and New Sources for the Reconsideration Final Rule’’ for details. 

2. Fuel Switching Provisions 

The EPA is finalizing the proposed 

fuel switching provisions that address 

the situation where CISWI units cease 

combusting solid waste, and where 

existing commercial and industrial 

combustion units begin combusting 

solid waste (40 CFR 60.2330 for existing 

units and 40 CFR 60.2710 for new 

units). Units that cease combusting solid 

waste remain subject to CISWI for at 

least 6 months after solid waste is last 

added to the combustion chamber. After 

6 months, sources must either comply 

with any applicable section 112 

standard or, if they intend to combust 

solid waste in the future, opt to remain 

subject to CISWI and continue to 

comply with the applicable provisions. 

Combustion units located at commercial 

or industrial facilities that begin 

combusting solid waste are solid waste 

incineration units on the date they begin 

combusting solid waste. Existing units 

that begin combusting solid waste 

within 6 months of the effective date of 

the CISWI EG must comply with the 

standards on the effective date of those 

standards. Existing units that begin 

combusting solid waste after the 

effective date of the CISWI EG must 

comply with those standards at the time 

the unit begins combusting solid waste. 

3. Definitions of Cyclonic Burn Barrels, 

Burn-off Ovens, Soil Treatment Units, 

Laboratory Analysis Units and Space 

Heaters 

We are finalizing the proposed 

definitions for cyclonic burn barrels, 

burn-off ovens, soil treatment units, and 

laboratory analysis units. We have 

revised the proposed definition for 

space heaters to clarify applicability for 

units that meet the requirements of 40 

CFR part 279. The final definitions 

describe the types of units and state that 

these different types of units are not 

incinerators, small remote incinerators, 

ERUs, or waste burning kilns. The EPA 

is including these definitions in the 

final rule to differentiate these units 

from the units for which the agency 

established standards in the 2011 CISWI 

rule and this final action. 

4. Affirmative Defense for Malfunction 

Events 

The EPA is retaining in the final rule 

the proposed affirmative defense to civil 

penalties for malfunction events. The 

EPA first included an affirmative 

defense in the 2011 final rule in an 

attempt to balance a tension, inherent in 

many types of air regulation, to ensure 

adequate compliance while 

simultaneously recognizing that despite 

the most diligent of efforts, emission 

standards may be violated under 

circumstances beyond the control of the 

source. This final reconsideration 

attempts to add clarification to the 

affirmative defense by revising some of 

the regulatory provisions that specify 

the elements that are necessary to 

establish this affirmative defense as 

proposed—with minor changes from 

proposal described later in this section. 

Sources are required to comply with 

the CISWI standards at all times, and 

the EPA recognizes that even equipment 

that is properly designed and 

maintained can sometimes fail and that 

such failure may cause an exceedance of 

the relevant standard. The 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.) The affirmative defense 

for malfunction events meets this 

requirement by ensuring that even 

where there is a malfunction, the 

emission standard is still enforceable 

through injunctive relief. See generally, 

Luminant Generation Co. v. EPA, 2012 

U.S. App. LEXIS 15722 (5th Cir. 2012) 

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9120 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

(upholding EPA’s approval of 

affirmative defense provisions in a CAA 

State Implementation Plan). While 

‘‘continuous’’ standards, on the one 

hand, are required, there is also case law 

indicating that in many situations it is 

appropriate for the EPA to account for 

the practical realities of technology. For 

example, in Essex Chemical v. 

Ruckelshaus, 486 F.2d 427, 433 (D.C. 

Cir. 1973), the D.C. Circuit 

acknowledged that in setting standards 

under CAA section 111 ‘‘variant 

provisions’’ such as provisions allowing 

for upsets during startup, shutdown and 

equipment malfunction ‘‘appear 

necessary to preserve the reasonableness 

of the standards as a whole and that the 

record does not support the ‘never to be 

exceeded’ standard currently in force.’’ 

See also, Portland Cement Association 

v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 

1973). Though intervening case law 

such as Sierra Club v. EPA and the CAA 

1977 amendments call into question the 

relevance of these cases today, they 

support the EPA’s view that a system 

that incorporates some level of 

flexibility is reasonable. 

The affirmative defense provisions 

allow sources to avoid civil penalties for 

exceedances caused by a malfunction 

event if the source demonstrates by a 

preponderance of the evidence that the 

malfunction event meets the definition 

of malfunction in 40 CFR 60.2. By 

incorporating an affirmative defense, the 

EPA has formalized its approach to 

upset events beyond the control of the 

source. In a Clean Water Act setting, the 

Ninth Circuit required this type of 

formalized approach when regulating 

‘‘upsets beyond the control of the permit 

holder.’’ Marathon Oil Co. v. EPA, 564 

F.2d 1253, 1272–73 (9th Cir. 1977). See 

also, Mont. Sulphur & Chem. Co. v. 

United States EPA, 2012 U.S. App. 

LEXIS 1056 (Jan 19, 2012) (rejecting 

industry argument that reliance on the 

affirmative defense was not adequate). 

But see, Weyerhaeuser Co. v. Costle, 590 

F.2d 1011, 1057–58 (D.C. Cir. 1978) 

(holding that an informal approach is 

adequate). The affirmative defense 

provisions give the EPA the flexibility to 

both ensure that its emission standards 

are ‘‘continuous’’ as required by 42 

U.S.C. 7602(k), and account for 

unplanned upsets and thus support the 

reasonableness of the standard as a 

whole. In addition, the affirmative 

defense provisions are designed to 

ensure that steps are taken to correct the 

malfunction, minimize emissions 

during the malfunction, and prevent 

future malfunctions. 

We are promulgating revisions to the 

affirmative defense provisions in section 

60.2120 and 60.2685 as described at 

proposal (76 FR 80461) and making 

some minor additional revisions. The 

terms ‘‘exceedance’’ and ‘‘excess 

emissions’’ and ‘‘applicable emission 

limitations were being exceeded’’ were 

replaced with the term ‘‘violation’’ to 

more accurately reflect that the 

affirmative defense is only available 

when there has been a violation of the 

standard. The phrase ‘‘emission limit’’ 

was changed to ‘‘emission standards’’ to 

reflect that the affirmative defense could 

be applicable to certain work practice 

standards. The word ‘‘however’’ was 

removed to incorporate more plain 

language into the regulation. The term 

‘‘notification’’ was changed to 

‘‘reporting’’ to reflect that the root cause 

analysis required under affirmative 

defense would be submitted with other 

periodic reporting. The term ‘‘and 

monitoring’’ was deleted because 

monitoring malfunctions are defined 

differently than malfunctions of process 

and control units and the affirmative 

defense is intended to apply to 

malfunctions to affected units that cause 

a failure to meet an emission standard. 

In multiple instances the word ‘‘were’’ 

was changed to ‘‘was’’ to improve the 

clarity of a provision. The term 

‘‘facility’’ was changed to ‘‘affected 

source’’ to clarify that the affected 

source regulated by the rule must be 

operated in a manner consistent with 

good practices for minimizing emissions 

versus the entire facility. The phrase 

‘‘off shift and overtime labor were used, 

to the extent practicable to make these 

repairs’’ was removed. The EPA no 

longer believes the language concerning 

the use of off-shift and overtime labor is 

necessary because 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. 

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 written report 

required when asserting an affirmative 

defense was changed from a separate 

‘‘semiannual’’ report to a report that is 

submitted with the first periodic 

compliance, deviation report, or excess 

emission report due after the event. 

Lastly, the requirement to notify the 

Administrator by telephone or facsimile 

within two business days’’ was removed 

when we refined the affirmative defense 

reporting requirements based upon 

comments received. 

5. Oxygen Correction Requirements and 

CO Monitoring Requirements 

We are finalizing provisions for 

calculating the 30-day CO rolling 

average that allow uncorrected CEMS 

reading to be used during the period of 

operation from a cold start to bring the 

combustion unit up to minimal normal 

operating temperature. We are also 

allowing uncorrected CEMS readings to 

be used in 30-day average calculations 

for the period of operation following the 

last waste material (or material feed for 

waste burning kilns) being fed to the 

combustion unit during shutdown 

procedures of the unit. For every type of 

CISWI unit except waste-burning kilns, 

the period of time allowed for 

uncorrected CEMS data during a startup 

shall be 48 hours or less per startup 

event and shall be 24 hours or less for 

each shutdown event. For wasteburning kilns, the period of startup 

begins when the kiln’s induced draft fan 

is turned on and fuel is being 

combusted and continues until 

continuous feed is introduced into the 

kiln, at which time the kiln is in normal 

operating mode. Shutdown begins when 

feed to the kiln is halted. Sources must 

indicate in the CEMS data records 

which CEMS data are obtained during 

the startup and shutdown periods. Since 

the O2 correction calculation will affect 

all corrected CEMS data, we have 

expanded these provisions in the final 

rule to allow for uncorrected CEMS data 

for any pollutant that sources elect to 

measure continuously with CEMS and 

calculate 30-day rolling averages to 

demonstrate continuous compliance. 

Additionally, we have finalized 

removal of continuous CO monitoring 

requirements for new and existing ERU 

units. We are instead requiring annual 

CO stack tests and continuous O2

monitoring and we are allowing CO 

monitoring with CEMS as a compliance 

alternative. We have also removed the 

continuous CO monitoring requirements 

for new CISWI units in the other 

subcategories, but sources may 

demonstrate compliance using CO 

CEMS if they so choose. The authority 

to use uncorrected CEMS data during 

startup and shutdowns discussed above 

applies to all CISWI sources that elect 

to demonstrate compliance with any 

emission limits with a CEMS instead of 

performing annual stack tests. Changes 

to the CO and other optional CEMS 

monitoring requirements made since 

proposal are discussed below in Section 

II.C of this preamble: ‘‘Summary of 

Significant Changes Since Proposal.’’ 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9121 

3The RDL methodology is consistent with the 

RDL methodology outlined in the December 2011 

reconsideration proposal. 76 FR 80463. 

6. Full-Load Stack Test Requirement for 

CO Coupled With Continuous O2

Monitoring 

We are finalizing the full-load stack 

test and continuous O2 monitoring 

provisions in today’s action that allow 

existing sources to use their current O2

analyzer and O2 trim systems to 

demonstrate continuous compliance. 

Based on comments received, we have 

made some clarifying changes to these 

provisions to be clear that existing O2

trim systems and O2 monitors may be 

used to demonstrate continuous 

compliance, as well as clarifications on 

establishing the operating limits for O2

content. Changes to the continuous O2

monitoring requirements made since 

proposal are discussed below in section 

II.C of this preamble: ‘‘Summary of 

Significant Changes Since Proposal.’’ 

7. Non-Detect Methodology Using Three 

Times the Detection Level 

Since proposal, the EPA continued its 

review of sampling volumes and 

detection levels across various emission 

testing ICR efforts on various 

combustion sources to encompass 

additional pollutants measured using 

EPA Reference Method 29 (See 

memorandum ‘‘Updated data and 

procedure for handling below detection 

level data in analyzing various pollutant 

emissions databases for MACT and RTR 

emissions limits’’ in the CISWI docket). 

As a result of this analysis, we have 

determined recommended values for 

three times the RDL that may be used as 

a minimum emission limit value that 

can be accurately measured by most 

laboratories for Cd and Pb.3

Furthermore, based on comments on 

our application of this non-detect 

methodology approach to CO data 

measured using instrument methods, we 

have made some modifications to the 

span calculation approach used in the 

proposed rule. Changes to the emission 

limits for Cd, Pb and the span 

adjustment calculations for CO made 

since proposal are discussed below in 

section II.C of this preamble: ‘‘Summary 

of Significant Changes Since Proposal.’’ 

8. Definitions for Foundry Sand 

Thermal Reclamation Unit and 

Chemical Recovery Unit 

We are finalizing the proposed 

definitions of ‘‘foundry sand thermal 

reclamation unit’’ and ‘‘chemical 

recovery unit’’ to clarify that these units 

are not incinerators, waste-burning 

kilns, ERUs or small, remote 

incinerators under subparts CCCC or 

DDDD. 

9. Definition of Contained Gaseous 

Material 

In today’s final rule, we have 

reintroduced and finalized the 

definition for ‘‘contained gaseous 

material’’ as found in the 2000 CISWI 

rule as proposed. As discussed earlier, 

the Court’s vacatur of the Delay Notice 

now requires this definition to be 

reintroduced since we are now 

amending the 2011 CISWI rule instead 

of making amendments to the 2000 

CISWI rule as when we published the 

December 2011 reconsideration 

proposal. 

10. Parametric Monitoring Provisions 

for Additional Control Device Types 

In the proposed rule, we requested 

comment on whether there were 

additional control device types that we 

should identify monitoring provisions 

for in the rule. We received comments 

on this topic and, in today’s final rule, 

are including monitoring provisions for 

sorbent injection rate for dry scrubber 

control devices (40 CFR 60.2165 and 40 

CR 60.2730). We have also clarified that 

sources that elect to use optional CEMS 

to monitor continuous compliance for 

Hg, D/Fs or NO2 may do so as a 

substitute for parametric monitoring of 

ACI and SNCR control devices, 

respectively. Changes to the parametric 

monitoring provisions made since 

proposal are discussed below in section 

II.C of this preamble: ‘‘Summary of 

Significant Changes Since Proposal.’’ 

11. Particulate Matter Continuous 

Monitoring Provisions for Large ERUs 

and Waste-Burning Kilns 

In today’s rule, we are finalizing some 

revisions to the monitoring 

requirements for ERUs with an annual 

average heat input rate greater than 250 

MMBtu/hr and extending the same PM 

continuous monitoring provisions to 

waste-burning kilns. In the final 2011 

CISWI rule, these units were required to 

monitor continuously for PM using a 

PM CEMS; however, the PM CEMS 

technology may not be sufficient to 

certify accurate monitor performance in 

the PM concentration range of the 

CISWI biomass ERU and waste-burning 

kiln limits. Therefore, we are requiring 

continuous PM parameter monitoring 

systems for these units similar to those 

being required for major industrial 

boilers and utility boilers. The EPA is 

further requiring that a site-specific 

parametric operating limit be 

established during the performance test, 

that there be continuous monitoring of 

that parametric limit using a PM CPMS, 

that four deviations within a 12-month 

operating period constitute a violation 

and trigger immediate corrective action 

and a Method 5 performance test within 

30 days with an additional 15 days to 

reestablish a site-specific operating 

limit. 

We have revised all operating 

parameter averaging for ERU units to be 

on a 30-day rolling average and allowed 

the sorbent injection parameter to be 

adjusted for varying ERUs based on 

load. Changes to the PM continuous 

monitoring provisions and operating 

parameter provisions made since 

proposal are discussed below in section 

II.C of this preamble: ‘‘Summary of 

Significant Changes Since Proposal.’’ 

12. Revised Definition of Waste-Burning 

Kiln 

This final rule includes a definition of 

waste-burning kiln that has been revised 

since the March 2011 CISWI Rule. This 

definition helps clarify the EPA’s intent 

regarding which types of Portland 

cement kilns are considered subject to 

CISWI standards and which kilns are 

subject to the Portland cement NESHAP. 

Since proposal, some additional 

language was added to this definition to 

further clarify our proposed definition. 

Changes to the definition of waste 

burning kiln made since proposal are 

discussed below in section II.C of this 

preamble: ‘‘Summary of Significant 

Changes Since Proposal.’’ 

13. Revised Definition of Solid Waste 

In the March 21, 2011, final CISWI 

rule, we removed the definition of solid 

waste that was present in the 2000 

CISWI Rule in light of the definition of 

solid waste in the final NHSM rule. 

Because applicability of section 129 

hinges on sources combusting solid 

waste, we believe it is appropriate to 

include a definition of that term in the 

CISWI rule. For that reason, the final 

rule contains a definition of solid waste 

that refers to the final NHSM rule at 40 

CFR 241.2. 

14. Compliance Dates 

In the final rule, we are revising the 

compliance dates for new and existing 

CISWI units to reflect the effective dates 

of this final rule. The compliance date 

for existing sources depends primarily 

on state plan approval but may be no 

later than the date 5 years after 

publication of this final rule in the 

Federal Register. The EG are 

implemented through a state 

implementation plan or a federal plan. 

Under the final amendments to the EG, 

and consistent with the CAA section 

129, revised state plans containing the 

revised existing source emission limits 

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and other requirements in the final 

amendments are due within 1 year after 

promulgation of the final 

reconsideration amendments. States 

must submit revised state plans to the 

EPA by February 7, 2014. The EPA will 

revise the existing federal plan to 

incorporate any changes and other 

requirements that the EPA has 

promulgated. The federal plan applies 

to CISWI units in any state without an 

approved state plan. Additional 

discussion of the state plan 

implementation schedule can be found 

at 76 FR 15711. 

For new sources, the compliance date 

is either August 7, 2013 or the date of 

startup of the source, whichever is later. 

New sources are defined as sources that 

began construction on or after June 4, 

2010, or commenced reconstruction or 

modification after August 7, 2013. 

15. Revised New Source Performance 

Standards 

In the 2011 CISWI rule and the 

proposed reconsideration rule, EPA 

determined that the best controlled 

similar unit under section 129(a)(2) was 

not a solid waste incineration unit for 

certain new source standards. 

Specifically, the new source limits for 

certain pollutants from waste burning 

kilns and ERUs were based on cement 

kilns and boilers, respectively. See 

memorandum ‘‘CISWI Emission Limit 

Calculations for Existing and New 

Sources’’ in the CISWI docket. Both the 

industrial boiler NESHAP and the 

Portland cement NESHAP are being 

revised, and additional data has been 

incorporated into the new source MACT 

analyses for those rules. As a result of 

the new data and analyses, several of 

the new source NESHAP limits are 

being revised and EPA is changing the 

following new source limits in CISWI 

based on the revised limits in the 

NESHAPs: NOX for waste-burning kilns, 

and Hg and PCDD/PCDF for ERU-liquid/ 

gas units. 

C. Summary of Significant Changes 

Since Proposal 

1. Revision of the Subcategories 

Energy Recovery Units 

In the final 2011 CISWI Rule, we 

established separate subcategories based 

on the types of fuels and wastes ERUs 

were designed to burn. Energy Recovery 

Units (e.g., units that would be boilers 

and process heaters but for that fact that 

they combust solid waste) designed to 

burn gaseous fuels and liquids that are 

solid waste were included in one 

primary subcategory and the other 

primary subcategory was for units 

designed to burn solid fuels or 

predominantly non-coal solid materials. 

In the final 2011 CISWI rule, the solid 

fuel ERU subcategory was further 

divided into separate subcategories for 

coal and biomass units, with separate 

limits for CO, NOX and SO2 to account 

for significant differences in unit design 

for these two types of fuels and the 

impacts the different unit designs have 

on emissions of these pollutants. 

Because the public was not afforded 

an opportunity to comment on the 

revision to the ERU subcategory, we 

identified this as a reconsideration issue 

in the March 21, 2011, notice of intent 

to reconsider certain aspects of the 2011 

CISWI Rule. Certain petitions for 

reconsideration supported the further 

subcategorization of the solid-fuel ERU 

subcategory and suggested that all nine 

emission limits should be divided 

between coal and biomass ERUs, instead 

of only having different limits for CO, 

NOX and SO2. 

We granted reconsideration of our 

subcategorization approach for ERUs 

and proposed to establish different 

emission limits for PM, Cd, Pb, and 

D/F between coal and biomass units, in 

addition to establishing different limits 

for CO, NOX and SO2. We also solicited 

comment on whether we should also 

subcategorize solid-fuel ERUs for HCl 

and Hg. 

Based on comments and information 

received during the comment period, we 

have determined that it is appropriate to 

subcategorize solid fuel ERUs for all 

nine CAA section 129 pollutants. We 

recognize that there are significant 

design and operational differences 

between biomass and coal ERU units 

that impact the generation of all nine 

regulated pollutants, and, for this 

reason, we are establishing separate 

emission standards for all nine 

pollutants from coal and biomass ERUs 

in this final rule. 

In addition, since issuing the 

proposed reconsideration CISWI rule, 

we have received comments and data 

which allowed us to update our 

inventory of ERUs. The inventory 

adjustments we made more accurately 

reflect the inventory of solid waste 

combustion units. Based on comments 

from the operator of the units, we 

removed three units from the final rule 

inventory of biomass ERUs that were 

determined to be non-waste burning 

units and we re-analyzed the emission 

limits for the solid-biomass ERU 

subcategory. The commenter explained 

that, although permitted to burn 

materials that would be considered 

solid waste, these units had ceased 

burning the materials in question 

several years ago and would not 

recommence burning these in the future. 

Thus, at the time of testing, these units 

were not solid waste incineration units. 

We also received additional CO 

emissions data and re-analyzed the 

performance of the best-performing ERU 

in the solid-coal ERU subcategory. The 

emission limits in this final rule reflect 

the new inventory and emission data 

received; however, we have used the 

same methodology as in the 2011 CISWI 

rule and December 23, 2011, 

reconsideration proposal for 

establishing the emission limits. 

Waste-Burning Kilns 

Prior to the reconsideration proposal, 

the EPA performed an analysis of the 

materials being combusted in the entire 

inventory of Portland cement kilns in 

light of the final NHSM rule (See 

memorandum ‘‘Revised Floors without 

Kilns that Would have been CISWI 

Kilns Had the Solid Waste Definition 

Applied’’ in the CISWI docket). As a 

result of this analysis, we added 11 

kilns to our inventory of waste-burning 

kilns. In addition to this, we further 

reviewed the Portland cement emissions 

test records and identified some 

additional test data for kilns that were 

added to the CISWI inventory following 

the March 21, 2011, final rule 

publication. This newly-identified data 

was extracted and compiled into the 

CISWI database, and then the MACT 

floor emission limits were re-calculated 

in the December 23, 2011, proposed rule 

to reflect the updated inventory and 

additional data. Following proposal, we 

were also notified of one additional 

waste-burning kiln and that one of the 

kilns in the inventory was not burning 

waste materials. We made these 

adjustments to our inventory, bringing 

the total waste-burning kiln inventory to 

23 kilns. We recalculated the standards 

in this final rule to include all 23 waste 

burning kilns. 

As with the new ERU standards, we 

have used the same methodology to 

establish today’s emission limits as we 

used for the final 2011 CISWI rule. We 

have also retained the emissions 

concentration basis for the standards. 

However, Table 4 of this preamble 

presents the emission limits for PM, 

NOX, SO2 and Hg on a production basis 

for comparison. 

TABLE 4—WASTE-BURNING KILN EMISSION LIMITS EXPRESSED IN PRODUCTION BASIS

Pollutant (units) Existing 

kilns a

New 

kilns a

Hg (lb/MM ton clinker) .. 58 21 

PM (lb/ton clinker) ........ 0.026 0.013 

NOX (lb/ton clinker) ...... 6.7 1.5 

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TABLE 4—WASTE-BURNING KILN EMISSION LIMITS EXPRESSED IN PRODUCTION BASIS—Continued 

Pollutant (units) Existing 

kilns a

New 

kilns a

SO2 (lb/ton clinker) ....... 8.9 0.4 

aApproximate. 

Small Remote Incinerators 

After the reconsideration proposal, we 

received additional information from 

stakeholders of additional units in 

operation and planned for operation 

within the next year or two that would 

qualify as small remote incinerators. 

The resulting changes included moving 

one unit from the small remote 

incinerator subcategory to the 

incinerator subcategory due to the unit’s 

proximity to a landfill in Alaska. An 

additional 15 small remote incinerators 

were added to our inventory of existing 

units, bringing the total of this 

subcategory to 28 units. This additional 

information resulted in changes to the 

emissions limits. 

2. Revisions to the Monitoring 

Requirements 

After the March 21, 2001 final rule, 

petitioners identified computational 

issues for correcting CO concentration 

measurements to 7 percent O2 for 

periods when the O2 content of the flue 

gas approaches the ambient air O2

content during startup and shutdown 

periods for sources that demonstrate 

compliance with the CO limit using 

CEMS. The equation for the 7 percent 

O2 correction is X ppm CO* (20.9¥7)/ 

(20.9¥%O2 of flue gas stream). As seen 

by this equation, as the flue gas stream 

O2 content gets closer to 20.9, the value 

of X is multiplied by an ever increasing 

factor. For example, when the stack gas 

O2 content is 4 percent, the factor is 

0.82. If the stack gas O2 content is 20 

percent, the factor increases to 15.4. 

Therefore, a flue gas CO concentration 

reading of 100 ppm would be corrected 

to 82 ppm for a stack gas at 4 percent 

O2 content, but would become a 1,540 

ppm corrected concentration for a stack 

gas at 20 percent O2 content. In the 

extreme, at a 20.8 percent stack gas 

concentration (i.e., approximating 

ambient air O2 content), the same 100 

ppm measurement would be corrected 

to 13,900 ppm. 

Petitioners noted that O2 contents 

relatively close to ambient air often are 

maintained during combustion unit 

startup and shutdown in order to safely 

operate the combustion unit. Therefore, 

CO readings during these periods would 

be multiplied by an uncharacteristically 

high correction factor, and the resulting 

corrected CO concentrations inflated 

due to the 7 percent O2 correction. 

Petitioners and commenters presented 

data that show these corrected data 

points would have the potential to drive 

the 30-day rolling average values 

beyond the emission limit for the 

affected units, but this would not be an 

accurate reflection of the CO emissions. 

Petitioners suggested various 

approaches to remedy this situation, 

with one being to not require the 7 

percent O2 correction requirement 

during unit startup and shutdown for 

sources that demonstrate compliance 

with the CO limit using CEMS. In other 

words, the CEMS data as reported at 

stack gas concentration without O2

correction would be included in the 

rolling average calculations for periods 

when the combustion unit is either 

being started up or shutdown instead of 

applying the O2 correction to that data 

before it is included in the calculation 

of the 30 day rolling average. During all 

other operating periods, the CEMS data 

would be corrected to a 7 percent O2

concentration prior to calculating the 

rolling average. Stated otherwise, the 

data obtained during startup and 

shutdown, which will not include the 7 

percent O2 correction, will be added to 

the O2 corrected data collected during 

all other periods to calculate the 30-day 

average that is used to determine 

continuous compliance with the 

applicable CO limit for sources that 

demonstrate compliance using CEMS. 

Prior to issuing the reconsideration 

proposal, we received data for one unit 

in one subcategory (coal ERUs) that 

indicated startups usually occur over a 

4-hour period and shutdowns occur 

over a 1 hour period. Therefore, we 

proposed provisions for calculating the 

30-day CO rolling average that would 

allow the source to use CEMS data that 

does not include the O2 correction to be 

used during the first 4 hours of 

operation from a cold start and the 1 

hour of operation following the last 

waste material being fed to the 

combustion unit during shutdown 

procedures of the unit. Since proposal, 

however, we received comments on this 

provision, primarily pointing out that 

longer periods are required to protect 

combustion equipment from rapid 

temperature swings, which could cause 

damage to the fireboxes or kiln surfaces. 

Commenters also contended that the 

limited information concerning the 

startup and shutdown periods during 

which the O2 correction would not be 

required did not reflect the needs for all 

combustor types or control device 

configurations. We have therefore 

revised the shutdown and startup 

period of operation to be more generally 

applicable to CISWI units. In the case of 

ERUs, incinerators and small remote 

incinerators, we determined that the 

startup period should include the times 

prior to the source reaching the minimal 

operating temperature, but in no case 

longer than 48 hours. For shutdown, we 

determined as at proposal that 

shutdown begins after the last waste has 

been fed to the combustor prior to 

shutdown but we have revised the final 

rule to indicate that the shutdown 

period may not exceed 24 hours. We 

have, therefore, specified in the final 

rule an UL of 48 hours for startup 

periods to use uncorrected CEMS data 

and 24 hours for shutdown periods to 

use uncorrected CEMS data for ERUs, 

incinerators and small remote 

incinerators. For waste-burning kilns, 

these periods are triggered off of 

material feed to the kiln rather than 

solely waste feed. This addresses the 

fact that kilns, unlike other CISWI units, 

are producing product rather than solely 

disposing of waste or recovering energy. 

Therefore, for waste-burning kilns, 

startup begins when the kiln’s induced 

fan is turned on and continues until 

continuous feed is introduced into the 

kiln at which time the kiln is in normal 

operating mode. Shutdown begins when 

feed to the kiln is halted. 

As at proposal, sources must indicate 

in the CEMS data records which CEMS 

data are uncorrected because they were 

obtained during the startup and 

shutdown period. 

The O2 correction issue described 

above for CO CEMS data collected 

during startup and shutdown applies 

equally to other pollutants measured 

with a CEMS that is corrected to 7 

percent O2. The final CISWI rule allows 

sources to demonstrate compliance with 

any of the standards using CEMS, and, 

for this reason, we have expanded 

authorization to use uncorrected CEMS 

data during periods of startup and 

shutdown to all pollutants for which a 

source demonstrates compliance with 

CEMS. In the final rule, the 7 percent O2

correction is not required during startup 

and shutdowns for any CISWI sources 

that elect to demonstrate continuous 

compliance with any of the emission 

limits with a CEMS instead of stack 

tests. 

3. Oxygen Monitoring Requirements 

At proposal, we included provisions 

and definitions in an attempt to ensure 

that sources would be able to use 

existing O2 monitoring systems to meet 

the continuous O2 monitoring 

requirements. However, commenters 

identified potential issues with our 

proposed provisions and definitions. To 

address these commenters’ concerns, we 

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9124 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

have revised the provisions in 40 CFR 

60.2165 and 40 CFR 60.2730 to clarify 

the methodology for establishing and 

monitoring the O2 level. Furthermore, 

the definition of ‘‘oxygen analyzer 

system’’ has been revised to clarify the 

appropriate locations and nomenclature 

of possible existing monitoring systems 

so that their use to meet these 

requirements is fully enabled. 

4. Removal of the Definition of 

Homogeneous Waste 

The EPA included in the final 2011 

CISWI Rule a definition of homogenous 

waste and a process for evaluating 

claims that a particular waste stream is 

homogenous. The definition was added 

to the 2011 CISWI rule in response to 

comment. Because the determination of 

homogeneity of a waste stream is 

relevant to applicability of CAA section 

129 to qualifying small power producers 

and qualifying cogeneration facilities, 

we determined it was reasonable to 

include a definition of ‘‘homogenous 

waste’’ and a process by which sources 

could obtain a determination that a 

waste stream is homogenous from the 

EPA. 

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 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. 

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 onspec 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. 

5. Non-Detect Methodology Using Three 

Times the Detection Level 

Prior to reconsideration proposal, the 

EPA conducted a review of sampling 

volumes and detection levels across 

various emission testing ICR efforts on 

various combustion sources (See 

memorandum ‘‘Updated data and 

procedure for handling below detection 

level data in analyzing various pollutant 

emissions databases for MACT and RTR 

emissions limits’’ in the CISWI docket). 

As a result of this analysis, we 

determined recommended values for 

three times the RDL (3xRDL) that may 

be used as a minimum emission limit 

value that can be accurately measured 

by most laboratories. These 

recommended values were then 

compared with calculated emission 

limits and, if the calculated limit was 

less than the recommended 3xRDL, the 

3xRDL value was selected as the limit. 

Since the December 23, 2011, 

reconsideration proposal was published, 

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we have continued our review and 

determined 3xRDL values for additional 

metals measured using EPA Reference 

Method 29. These include 

recommended values for Cd and Pb and 

we have applied this methodology to 

those emission limits in addition to the 

D/F and Hg limits that were reevaluated 

in the reconsideration proposal. As 

discussed in the reconsideration 

proposal, the premise for this approach 

is the same as described in the final 

2011 CISWI rule but using a broader 

data set to establish the 3xRDL value. 

We have not changed the methodology 

of the emission limit calculation or 

tabulation of the three times the 

detection limit value that was used in 

the final 2011 CISWI rule. 

Since reconsideration proposal, some 

commenters have noted that the EPA 

Method 5 minimum catch values were 

below levels established in similar 

studies on this reference method. In 

light of these comments, we have 

reconsidered the 1 mg minimum catch 

value used in the reconsideration 

proposal and are now using a 1 mg 

minimum catch in establishing the final 

rule emission limits. Our review and 

determination of the 1 mg minimum 

catch are discussed in ‘‘Minimum 

Detection Limit for EPA Method 5’’ in 

the CISWI docket. 

In a similar fashion, the CO span 

adjustment methodology has been 

further refined in consideration of 

comments on the approach used to 

adjust CO instrumental test methods 

readings in reconsideration proposal. 

The methodology for adjusting CO 

emission test run data to reflect the 

limitations from the instrument span 

used at testing is described in the 

‘‘CISWI Emission Limit Calculations for 

Existing and New Sources for the 

Reconsideration Final Rule’’ 

memorandum in the CISWI docket. 

6. Parametric Monitoring for Additional 

Control Device Types 

In the December 23, 2011, 

reconsideration proposal, we stated that 

we believed the control devices with 

monitoring provisions expressly 

identified in the rules should 

encompass most types of control 

devices that we anticipate the various 

types of CISWI units will use to meet 

the emission limits. However, 

recognizing that a source might want to 

employ another type of control that is 

not addressed, we provided provisions 

for sources to petition for specific 

operating limits for alternative control 

devices to be established during a 

performance test. These provisions also 

allow specific operating limits to be 

established for CISWI units without any 

air pollution control devices, such as for 

units that employ material balance 

operating limits in conjunction with 

periodic stack testing to demonstrate 

continuous compliance. 

We also determined that dry sorbent 

injection (or dry scrubbers) may be one 

type of additional control device that 

CISWI units may widely use to control 

acid gases. Commenters agreed with our 

statement and encouraged the EPA to 

identify operating parameters for dry 

scrubbing systems in the final rule. We 

have done so, by both defining ‘‘dry 

scrubber’’ in the rule, and specifying 

that the sorbent injection rate must be 

monitored and maintained at or above 

the operating rate established during the 

HCl performance test (40 CFR 60.2165 

and 40 CFR 60.2730). Furthermore, we 

have determined that the sorbent 

injection rate for ERUs can be adjusted 

to reflect operating loads that are less 

than those during the performance 

testing. Commenters have made 

arguments that requiring a high sorbent 

injection rate during reduced boiler 

loads can lead to fouling and plugging 

issues, especially for acid gas sorbent 

injection. To address this particular 

concern, and to provide consistency 

with other industrial boiler rules, we are 

also providing this parametric 

monitoring provision for sorbent 

injection air pollution control devices. 

Also regarding monitoring, we 

determined after proposal that we had 

not clarified in the rule that sources 

opting to use CEMS to measure NOX, Hg 

or D/F were not required to monitor ACI 

rates (for Hg and D/F CEMS-equipped 

units) or SNCR parameter monitoring 

(for NOX CEMS-equipped units). Our 

intent had been to not require 

applicable control device parameter 

monitoring if a CEMS was in use for the 

pollutant being controlled by the device. 

Control device parameter monitoring is 

an acceptable and established method 

for determining continuous compliance 

and it is appropriate to require such 

monitoring when coupled with period 

stack testing. However, direct, 

continuous emission measurements 

with a CEMS are sufficient for 

determining compliance for CISWI units 

without requiring parametric 

monitoring. In cases where CEMS data 

are available to directly measure 

regulated pollutants, operating 

parameter data would be duplicative. 

7. Particulate Matter Continuous 

Monitoring Provisions for Large ERUs 

and Waste-Burning Kilns 

In today’s rule, we are finalizing 

monitoring requirements for ERUs with 

an annual average heat input rate greater 

than 250 MMBtu/hr. As we stated in the 

proposal, recent EPA experience with 

the utility boiler source category has led 

the EPA to allow PM CEMS as an 

alternative, rather than a requirement. 

Industry commenters have maintained 

that there were several problems with 

implementing the monitoring 

requirements to demonstrate 

compliance using a PM CEMS and with 

the requirements to conduct a periodic 

audit of the PM CEMS in accordance 

with PS 11 of appendix B and Procedure 

2 of appendix F to part 60. As we 

discuss in response to these comments 

later in this preamble (See II.E), the PM 

CEMS technology may not be sufficient 

to certify accurate monitor performance 

in the PM concentration range of the 

CISWI biomass ERU limits. 

Furthermore, in related ongoing work 

on the Portland cement source category, 

we realize that similar concerns 

regarding PM CEMS are applicable. 

Therefore, we are also removing PM 

CEMS (PS–11) requirements for wasteburning kilns, and instead, requiring PM 

CEMS equipment for these units that are 

used for continuous parametric 

monitoring rather than for direct 

measure of compliance with the 

numerical PM emissions limit, similar 

to those being required for major 

industrial boilers and utility boilers. 

However, PM CEMS (PS–11), are still 

allowed as an option for coal ERUs, 

incinerators and small remote 

incinerators, since the emission limits 

for these subcategories do not pose the 

same technical concerns as for biomass 

ERUs and waste-burning kilns. To be 

consistent with these other rules, we 

have incorporated 30-day rolling 

averages to be measured with PM 

CPMS. The EPA is further requiring that 

a site-specific parametric operating limit 

be established during the performance 

test, that there be continuous 

monitoring of that parametric limit 

using a PM CPMS, that an exceedance 

of that site-specific operating limit be 

reported as a deviation and trigger 

immediate corrective action and a 

Method 5 performance test within 45 

days. 

8. Compliance Dates 

At reconsideration proposal, we 

proposed to extend the compliance 

dates for existing units in the 

incinerator, ERU and waste-burning kiln 

subcategories. We are finalizing the 

revision of the effective dates for those 

three subcategories and, based on 

comments received, we are also 

extending the compliance date for units 

in the small remote incinerator 

subcategory. The EPA proposed to 

amend the standards for CO for all 

subcategories of CISWI; to further 

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subcategorize certain subcategories; to 

change several other pollutant standards 

for incinerator, ERU and waste burning 

kilns subcategories; to change the 

compliance regime from CEMS-based to 

stack-test/parametric-monitoring based 

for certain pollutants and unit types; 

and to change the compliance 

calculation provisions for sources that 

are required or that elect to use CEMS 

to demonstrate continuous compliance. 

These proposed changes may occasion 

the need for additional time for sources 

to study the possibility of different 

control and monitoring strategies than 

would have been considered if we had 

not amended the 2011 CISWI rule. New 

compliance strategies may require time 

to implement. New engineering studies 

may be needed, potential suppliers 

identified, a new bidding/procurement 

process undertaken and the appropriate 

construction and operating permits 

obtained. Significant plant redesign, in 

the form of new ductwork and new fan 

design and changes in the main control 

equipment may be needed. See US EPA, 

Engineering and Economic Factors 

Affecting the Installation of Control 

Technologies for Multipollutant 

Strategies, October 2002. Depending on 

the type of control, this normally 

requires 15–27 months. Multiple control 

systems may take longer. Id. Installation 

of controls normally occurs at times of 

unit outages, which will likely end up 

being at differing times of the year for 

each of the CISWI subcategories. For 

example, for waste-burning kilns, this 

would occur during winter months (to 

coincide with kiln outages during low 

production seasons). However, for small 

remote incinerators, facility retrofits 

would need to occur while road access 

to the site is available and climatic 

conditions allow for construction. Also, 

small remote incinerators have the 

additional component of having to 

increase the footprint of the site to 

accommodate additional space for 

control devices and waste segregation 

facilities. This additional permitting 

requirement and construction effort is 

not something other CISWI 

subcategories have to face but adds an 

additional consideration to developing a 

compliance strategy. In general, though, 

the differing construction constraints for 

the various subcategories of CISWI 

likely mean that there will be a wide 

variety to the rate of progress towards 

compliance for the differing CISWI 

sources. Further, commenters have 

argued that, due to the delay of the final 

2011 CISWI rule, uncertainty on 

selecting a compliance strategy was 

created, essentially putting internal 

compliance implementation activities 

on hold until the reconsideration was 

complete. As a result of these 

considerations, we have finalized 

extending compliance for all 

subcategories of CISWI. Comments on 

extending the compliance date and our 

responses to these comments are found 

in the ‘‘Summary of Comments and 

Responses to the CISWI 

Reconsideration’’ document in the 

CISWI docket. 

The compliance date for existing 

CISWI sources subject to standards in 

this final rule is 5 years after the date 

of publication of this final rule or 3 

years after the state plan is approved, 

whichever happens earlier. This date is 

being finalized in order to provide 

facilities sufficient time to install 

controls or to make other compliancerelated decisions. However, the CAA 

section 129(f)(2) does require that the 

promulgated standards be effective ‘‘as 

expeditiously as practicable after 

approval of a State plan,’’ so that states 

have the flexibility to determine that the 

standards for existing units within their 

purview may have a compliance date 

which is less than the allowable 3 years 

following approval of the state plan. For 

new sources, the EPA is finalizing the 

proposed change of the compliance date 

to 6 months after the date of publication 

of the final reconsideration rule or at 

startup, whichever is later. 

9. Definition of Waste-Burning Kiln 

In the December 23, 2011, 

reconsideration proposal, we proposed 

revisions to the definition of ‘‘wasteburning kiln’’ to indicate that the term 

‘‘does not include a kiln that is feeding 

non-hazardous secondary ingredients 

exclusively into the cold end of the 

kiln.’’ In proposing this language, the 

EPA intended to codify principles set 

out in a previous action granting and 

denying reconsideration of the NESHAP 

for Portland cement kilns. See 76 FR 

28318, 28322 (May 17, 2011); see also 

Memorandum ‘‘Revised Floors Without 

Kilns That Would Have Been CISWI 

Kilns Had the Solid Waste Definition 

Applied’’ (EPA, April 25, 2011) (which 

memorandum is summarized in the May 

17 Federal Register notice). The May 

17, 2011, notice and April 25, 2011, 

memorandum state in essence that 

combustion does not occur in any 

region of a cement kiln except the hot 

end and that cement kiln dust added to 

the hot end of a cement kiln also is not 

combusted since it is inorganic and 

essentially inert. 

The language used at proposal 

captured some but not all of these 

principles, since it referred only to the 

‘‘cold end’’ of a cement kiln, as pointed 

out by a number of commenters. The 

EPA is revising the definition in the 

final rule to accurately reflect the May 

17 preamble and April 25 memorandum 

discussion of when combustion occurs 

in a cement kiln. In addition, we are 

adding the fact that combustion in a 

cement kiln does also take place in the 

combustion zone of a precalciner or 

riser duct burner. 

One further clarification is 

appropriate. The May 17, 2011, 

preamble contains one reference to 

legitimacy criteria for determining when 

a secondary material is being recycled. 

76 FR at 28322/1–2. The threshold issue 

for determining if a unit is subject to 

section 129 is whether it ‘‘combusts’’ 

solid waste material (see section 129 

(g)(1)). For cement kilns, this 

determination does not necessarily turn 

on legitimacy of recycling, but rather on 

the nature of the cement kiln process. 

Consequently, if combustion of solid 

waste is not occurring, a unit is not a 

CISWI, irrespective of whether or not 

legitimate recycling is occurring. 

10. Exemption for Other Solid Waste 

Incineration (OSWI) Units 

Following publication of the 

December 23, 2011, reconsideration 

proposal, we realized that the CISWI 

rule did not contain any language to 

clarify overlap with another CAA 

section 129 regulation applicable to 

OSWI units. The CISWI rule already 

contains exemptions for MWCs, 

HMIWIs and SSIs, but omitted similar 

language for OSWI units. Therefore, in 

this final rule, we are providing 

language in 40 CFR 60.2020 and 60.2555 

that clarifies that incineration units that 

are subject to 40 CFR part 60 subparts 

EEEE or FFFF are exempt from the 

CISWI rule. 

D. Technical Corrections and 

Clarifications 

We are also including some technical 

corrections and clarifications in the 

final rule, as outlined below: 

• Operating parameter limits during 

performance testing—While we believe 

it is intrinsic that established operating 

parameter limits do not apply during 

subsequent performance testing since 

they are being confirmed or 

reestablished during the subsequent 

testing, we provided language in the 

proposed rule in the NSPS to clarify that 

they are waived during performance 

testing (40 CFR 60.2145(c)). However, 

we inadvertently omitted this clarifying 

language in the emission guidelines so 

we have added clarifying language in 

the final emission guidelines at 40 CFR 

60.2710(c). 

• Bypass stacks on waste-burning 

kilns—While not included in the final 

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rule text, we are clarifying here that the 

definition of ‘‘bypass stack’’ in today’s 

final rule does not have the same 

meaning as an ‘‘alkali bypass’’ used by 

some waste-burning kilns that 

manufacture Portland cement. 

• Clarifying that, consistent with 

CAA section 129(f)(1), June 4, 2010, is 

the appropriate new source applicability 

date in 40 CFR 60.2015(a)(1). 

• Revising the title of Table 2 to 

subpart DDDD to clarify that these 

emission limits apply to incinerators 

which are currently subject to CISWI 

emission limits promulgated in the 2000 

CISWI rule. 

• Clarifying that petitions for specific 

operating limits for control devices not 

listed in this subpart must be submitted 

to the Administrator at least 60 days 

before the performance test is scheduled 

to begin (40 CFR 60.2115 and 40 CFR 

60.2680). 

• Providing definitions of ‘‘30-day 

rolling average’’ and ‘‘responsible 

official’’ to clarify what is meant by 

these terms. 

• Adding text to the provisions for 

PM monitoring provisions for ERUs to 

clarify that the 250 MMBtu/hr threshold 

is based upon the average annual heat 

input rate, consistent with how this 

threshold is applied in the industrial 

boiler NESHAP. 

• Revising the affirmative defense 

text to clarify that these provisions 

apply to violations of standards and to 

further clarify the reporting 

requirements and criteria for sources 

seeking to assert an affirmative defense 

(40 CFR 60.2120 and 40 CFR 60.2685). 

• Revising the recordkeeping 

provisions in 40 CFR 60.2175(v) and 40 

CFR 60.2740(u) to reflect the categorical 

non-waste determination provisions of 

40 CFR 241.4. 

• Revising the electronic reporting 

provisions in 40 CFR 60.2235 and 40 

CFR 60.2795 to clarify the timing and 

mechanism for submitting these reports 

and to be consistent with the electronic 

reporting language in more recent 

rulemakings. 

• Revising the definition of ‘‘process 

change’’ to clarify the intended types of 

changes that would require re-testing. 

• Making corrections to the D/F 

calculation methodologies for toxic 

equivalency basis and adding 

calculation methodology provisions for 

D/F TMB. 

• Revising the definition of ‘‘space 

heater’’ to clarify applicability for units 

that meet the requirements of 40 CFR 

279. 

• Revising the emission limits for 

those pollutants for which data 

available from a similar source was 

determined to be better suited for 

calculating the new source limits. 

Notably, this is the case for NOX for 

waste-burning kilns, and for Hg and 

PCDD/PCDF for ERU-liquid/gas units. 

These revisions reflect updates made to 

emission limits of the selected similar 

sources. 

E. Major Public Comments and 

Responses 

We have included some of the major 

comment topics and our responses 

below in the preamble. All other 

comments and responses are provided 

in the ‘‘Reconsideration Response to 

Public Comments Document’’ in the 

CISWI docket. 

Solid-Fuel ERU Subcategorization 

Comment: Several commenters 

support the proposed separate coal and 

biomass standards for D/Fs, CO, NOX,

SO2, PM, Cd and Pb. However, these 

commenters further urge the EPA to 

establish separate standards for HCl and 

Hg for coal and biomass. Commenters 

state that the EPA’s recognition that 

design and operational differences 

between combustors designed to 

combust coal and those designed to 

combust biomass is evidence to support 

subcategorizing emission limits for all 

pollutants. One commenter discussed 

differences in biomass and coal fuel 

rank, and the significant boiler design 

differences in furnace height and 

volume that exist between units 

designed to combust different fuel ranks 

of coal-fired boiler furnaces. As an 

example, one commenter noted that a 

low-rank coal (high slagging lignite) 

furnace can be 1.65 times the plan area, 

and 1.45 times the furnace height, of a 

similar capacity furnace combusting a 

high rank coal (medium volatile 

bituminous). The commenter stated that 

this large difference exists even among 

varying grades of coal, with biomass 

units being fuels of even lower rank 

than lignite. Therefore, according to the 

commenter, furnace area and height 

(and hence, volume) are significantly 

different between ERUs designed to 

combust coal and those designed for 

biomass combustion. The commenter 

highlighted an analysis of their existing 

boilers to see the feasibility of 

substituting biomass for coal. The 

commenter’s results indicated that, due 

to fundamental design attributes of their 

coal-fired units, they could only co-fire 

up to 20 percent biomass in the units. 

The commenter explained that this 

limitation was due to design issues 

pertaining to the unit being designed for 

coal, such as superheater tube spacing, 

number and location of soot blowers, 

fouling characteristics of biomass ash 

and the impact the high moisture levels 

of biomass fuels have on fan capacity. 

The commenter stated that these 

findings further support that coal and 

biomass are not interchangeable within 

ERUs and therefore supports 

subcategorizing emission limits between 

the two types of unit. The commenter 

also contended that the EPA 

acknowledged significant design 

differences and their impacts on Hg 

emissions during development of the 

Utility MACT Final Rule. The 

commenter urges the EPA to take a 

similar approach in CISWI. One 

commenter agreed with differentiation 

between coal-fired and biomass ERUs 

but supported keeping solid-fuel ERUs 

together for purposed of HCl and Hg 

emission limits. Another commenter 

argued that all of the EPA’s 

subcategories are unlawful and 

arbitrary, noting that their reasons for 

this belief were given in their comments 

on the 2010 proposal. 

Response: Based on our proposal and 

follow-up comments summarized 

below, the EPA is finalizing separate 

limits for all nine pollutants for biomass 

and coal ERUs. We agree with 

comments concerning differences in 

moisture content between biomass and 

coal-fired units. We reviewed data in 

the CISWI database and see that the 

stack gas moisture content of coal-fired 

ERUs is around 11.6 percent and is 

about 19.2 percent for the biomass 

ERUs. We have considered the technical 

arguments provided by commenters on 

CISWI ERUs, other technical differences 

we have previously considered in our 

decision to subcategorize ERUs and how 

these design differences impact 

pollutant emission characteristics of the 

ERU. As a result, we have determined 

that subcategorizing all nine pollutant 

emission limits between coal and 

biomass solid-fuel ERUs is appropriate 

for the final CISWI rule. 

One commenter supported the 

differentiation between coal and 

biomass, but in keeping HCl and Hg 

limits together. However, for the reasons 

given above, we have determined that 

all nine pollutants should be 

subcategorized. 

Contained Gaseous Material 

Comment: Commenters support the 

EPA retaining the 2000 CISWI rule’s 

definition of ‘‘contained gaseous 

material.’’ Some commenters believe 

that the EPA should expressly include 

the definition of ‘‘contained gaseous 

material’’ in the amendatory text to 

confirm that the definition is back in the 

CISWI rule. 

Response: We believe that the 

commenters misunderstood what the 

EPA proposed. Specifically, the basis of 

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4See 65 FR at 75359 and 75373. 

5Note that for the purposes of CISWI, contained 

gaseous materials are limited to gases in a container 

when that container is combusted. This limitation 

is due to the fact that CAA section 129 is focused 

exclusively on combustion of non-hazardous solid 

wastes. On the other hand, RCRA is focused on 

more than just combustion of non-hazardous solid 

wastes (e.g., treatment, storage, and disposal of 

hazardous and non-hazardous wastes); thus, this 

limitation is inapplicable to RCRA. We also note 

that the term ’container’ as used in this definition 

is broader than the term as used in the hazardous 

waste regulations (see 40 CFR 260.10, definition of 

container). Specifically, the term here is not limited 

to a portable device, but also includes stationary 

containers. We believe that these interpretations 

under the CAA and RCRA are consistent. 

6For example, see June 25, 2012 letter from 

Assistant Administrator Mathy Stanislaus to Paul 

Noe. A copy of this letter has been placed in the 

docket for today’s rulemaking. 

7See 76 FR at 80472–80473. 

8RCRA section 3002(a) directs EPA to establish 

standards for hazardous waste generators and RCRA 

section 3004(a) directs EPA to establish 

performance standards for all facilities that treat, 

store or dispose of hazardous waste. Both of these 

provisions grant authority to control gaseous 

emissions from hazardous waste management as 

may be necessary to protect human health and the 

environment. RCRA sections 3004(n), and (o)(1)(B), 

further direct EPA to regulate air emissions from, 

respectively, hazardous waste treatment, storage 

and disposal facilities; and hazardous waste 

incinerators. The authority provided in RCRA 

section 3004(q) to regulate fuel produced from 

hazardous waste also encompasses gaseous fuels 

(when they are produced from hazardous 

wastes).The authority provided in RCRA section 

3004(u) to control ‘‘releases’’ of hazardous 

constituents from solid waste management units at 

a facility seeking a RCRA permit also encompasses 

gaseous releases (when the gases are hazardous 

constituents). The authority granted under these 

sections of the statute is independent of EPA’s 

authorities over solid waste. As an example, EPA 

has authority to regulate emissions generated 

during treatment of hazardous waste, including 

volatilization and incineration of hazardous waste. 

9RCRA Subtitle D gives EPA authority to set 

standards for non-hazardous waste disposal 

facilities, including standards for air emissions. For 

example, EPA’s criteria for municipal solid waste 

landfills, established pursuant to RCRA sections 

1008(a)(3), 2002, 4004(a), and 4010(c), generally 

address air quality by prohibiting the open burning 

of waste and by setting limits on the concentration 

of explosive gases (i.e., methane). See also March 

6, 1986 Letter from Marcia E. Williams to Mr. H. 

Lanier Hickman, Jr., which states, ‘‘[W]e believe it 

is clear that the U.S. Environmental Protection 

Agency (EPA) has the authority under both Sections 

3004(n) and 4004(a) of RCRA, as well as the CAA, 

to regulate gaseous emissions from hazardous and 

non-hazardous waste landfills.’’ 

the reconsideration proposal 

amendatory text was the 2000 CISWI 

rule—not the 2011 CISWI rule—because 

the 2011 CISWI rule had not been 

codified in the CFR pursuant to the 

Delay Notice. Therefore, by not 

including the amendatory instruction to 

delete the definition in the 2000 rule in 

the proposed reconsideration rule, we 

proposed to retain the definition as 

contained in the 2000 CISWI rule. 

However, as explained above, due to the 

vacatur of the Delay Notice, the 2011 

CISWI rule is in effect and the definition 

of contained gaseous material does not 

appear in that rule. For that reason, we 

are including the definition of 

‘‘contained gaseous material’’ found in 

the 2000 CISWI rule in today’s final 

rule. 

Comment: Many commenters who 

supported the EPA retaining the 2000 

CISWI rule’s definition of ‘‘contained 

gaseous material’’ also urged the Agency 

to make clear that this definition should 

apply when interpreting the term ‘‘solid 

waste’’ under RCRA. 

Response: As aforementioned, the 

Agency is including the definition of 

‘‘contained gaseous material’’ found in 

the 2000 CISWI Rule in today’s final 

rule. Specifically, the definition of 

‘‘contained gaseous material’’ is codified 

today, consistent with the 2000 CISWI 

Rule, as meaning, ‘‘gases that are in a 

container when that container is 

combusted.’’4

CAA section 129(g)(6) states that the 

definition of ‘‘solid waste’’ shall have 

the meaning established by the 

Administrator pursuant to RCRA. We 

agree that the definition of contained 

gaseous materials in the final CISWI 

rule is consistent with the interpretation 

of that term under RCRA for the purpose 

of defining when non-hazardous 

secondary materials are solid wastes 

when combusted in CISWI units.5 As 

discussed in more detail in the NHSM 

portion of the December 2011 

reconsideration proposal and in various 

letters issued by EPA,6 the NHSM 

rulemaking did not change any previous 

EPA position as it relates to whether 

‘‘contained gaseous material’’ is a solid 

waste under RCRA.’’ 7

We note, however, that although gases 

must be ‘‘contained’’ to be solid wastes 

under RCRA, EPA maintains separate 

and independent authority under RCRA 

to regulate certain types of uncontained 

gases whether or not they themselves 

are solid wastes (e.g., gases emitted from 

the management of hazardous waste).8

Comment: Some commenters also 

requested that EPA clarify that landfill 

gas is not considered to be a ‘‘contained 

gaseous material’’ and/or a ‘‘solid 

waste’’ under RCRA. 

Response: We agree with commenters 

that landfill gases must be in a container 

when that container is combusted to be 

considered ‘‘contained gaseous 

material’’ under today’s final CISWI 

regulations. 

However, given that landfill gas is 

emitted from solid waste (i.e., nonhazardous solid waste landfills or 

municipal waste landfills), EPA has 

distinct and independent authority 

under RCRA to regulate this material as 

part of our authority to regulate solid 

waste landfills (for example, in order to 

address the risk of explosions posed by 

methane emissions per 40 CFR 258.23).9

Oxygen Correction During Startup and 

Shutdown 

Comment: Commenters generally 

support allowing the use of uncorrected 

CEMS data during startup and 

shutdown. Several commenters are 

concerned that the 4- hour startup and 

a 1-hour shutdown period (derived from 

a single coal fired unit) are not sufficient 

for all the CISWI unit types and 

technologies. Other commenters believe 

there should be no time limitations on 

shutdown and startups. One 

commenter, however, believes the 

proposed time limit is appropriate. 

Some commenters recommend using the 

Boiler MACT rule approach using load 

to define when the O2 corrections do not 

apply. 

Commenters also urge the EPA to 

eliminate the O2 correction for all CEMmeasured emission limits, not just CO, 

during startup and shutdown periods. 

Commenters also support making this 

allowance available to all types of 

CISWI unit, not only ERUs. 

Response: In today’s final rule, we are 

retaining the provision that allows 

sources to use uncorrected CO CEMS 

data during periods of startup and 

shutdown. Based on comments and the 

technical justifications for allowing the 

use of uncorrected CEMS data identified 

during the comment period, we are 

expanding this provision to any 

pollutant for which continuous 

compliance is being determined using 

CEMS as explained above in ‘‘Section 

II.C: Summary of Significant Changes 

Since Proposal.’’ 

Particulate Matter Continuous 

Monitoring Provisions for Large ERUs 

and Waste-Burning Kilns 

Comment: Several commenters 

supported the EPA’s proposal to remove 

requirements for PM CEMS (using PS– 

11) for continuous compliance for large 

ERUs and waste-burning kilns, stating 

that PM CEMS usefulness and 

application issues of these monitors are 

uncertain. Commenters asserted that, for 

biomass ERUs and sources with low PM 

concentration, PM CEMS were not 

adequate to accurately monitor low PM 

concentrations. Commenters further 

contended that PM CPMS are essentially 

the same thing as PM CEMS, and that 

there were no clear instructions on how 

to ‘‘certify’’ PM CPMS, as was required 

in the proposed rule. Commenters 

added that they do not understand how 

the recording of hourly and 30-day 

rolling averages of the output from these 

monitors will be useful to demonstrate 

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performance or evaluate compliance 

with a PM limit. One commenter 

suggested that the EPA remove the PM 

CPMS requirements altogether for all 

industrial boilers. 

Response: We are revising the PM 

CEMS requirements in the final rule as 

explained above. 

In responding to this comment 

specifically, we believe it is useful to 

review the procedures and acceptance 

criteria of PS–11, the protocol mandated 

by the 2011 final CISWI rule. 

Performance Specification-11 

PS–11 is structured differently than 

other PSs that apply to validating the 

performance of gaseous pollutant CEMS. 

This is primarily because the pollutant, 

PM, is defined entirely by the test 

method specified by regulation to 

measure it. As the industry commenters 

note, there are no independent standard 

reference materials for PM 

concentrations as there are for gaseous 

pollutants (e.g., NIST traceable 

compressed gases for validating SO2 or 

NOX instrumental measurements). The 

only reference standard for determining 

the PM concentration in an air or stack 

gas sample is the reference test method. 

In the case of the CISWI final rule, the 

rule specifies EPA Method 5 for 

measuring filterable PM concentration 

(e.g., in mg/dscm). 

Performance Specification 11 

provides procedures and acceptance 

criteria for validating the performance of 

several types of PM CEMS technologies. 

Although there are multiple instrument 

and data reporting operational 

performance checks in PS–11 that are 

similar in concept to those for gaseous 

pollutant CEMS, there is a principal PM 

CEMS performance requirement that is 

distinctly different. That difference is 

the development of a site-specific PM 

CEMS correlation or mathematical 

response curve. There are two key 

procedural elements to developing that 

correlation. First, PS–11 requires that 

the source conduct stack test runs using 

an EPA PM test method (e.g., Method 5) 

and simultaneously collect 

corresponding PM CEMS output data. 

Second, the source must vary the 

operation of the control device 

manually in order to produce a range of 

PM concentrations. Performance 

Specification 11, section 8.6, requires at 

least five test runs at each of three 

different operating conditions (i.e., low, 

mid and high PM concentrations) for a 

total of 15 or more test runs that range 

from 25 to 100 percent of allowable 

emissions. Then the source must use the 

test method data and the corresponding 

PM CEMS output data to develop an 

equation (i.e., a calculated linear or 

nonlinear curve) that will be used to 

define the relationship between the PM 

CEMS output and the test method 

measured PM concentrations. Each sitespecific correlation must meet several 

PS–11 acceptance criteria including 

limits on confidence interval and 

tolerance interval equating to ±25 

percent of the applicable emissions 

limit. 

Discussion of Technical Issues 

In prior comments submitted to the 

EPA on the PM CEMS requirements for 

waste-burning kilns, one issue raised 

about conducting the testing to meet the 

PS–11 correlation development 

requirement is the impracticality of 

varying the emissions from a FF control 

device. Many CISWI units subject to the 

standards use FF control devices. 

We agree with commenters that there 

are typically few, if any, physical 

adjustments one can apply to a FF or to 

the waste-burning kiln process to 

change the outlet PM concentration 

significantly. A FF produces essentially 

a constant outlet concentration even 

with changes to the inlet loading or flow 

(http://www.epa.gov/ttnchie1/mkb/ 

documents/ff-pulse.pdf). Although PS– 

11 allows some flexibility when control 

device perturbations are not possible, 

the resulting correlation would apply 

for only the narrow range of 

concentrations measured during the 

testing. The result would be that the PM 

CEMS would be correlated only for a 

relatively small range of conditions 

below the applicable compliance limit. 

This range would not necessarily 

include situations where the standard 

might be exceeded. Without the ability 

to calculate emissions should the FF 

performance change from initial test 

conditions (e.g., bag leaks begin to 

develop), such a limited correlation 

range would render the PM CEMS less 

reliable for calculating long term 

average concentrations or emissions 

rates and for verifying compliance. 

Additionally, it is difficult and resource 

intensive to modify baghouse control 

efficiency in a way that is representative 

of normal operations at a waste-burning 

kiln. 

Commenters also cited problems in 

developing correlations in stack gases 

with variable PM constituents and 

physical characteristics when using 

light scatter or scintillation detection 

PM CEMS devices. As noted above and 

in the EPA’s technology background 

documents (e.g., http://www.epa.gov/ 

ttn/emc/cem/pmcemsknowfinalrep.pdf 

and http://www.epa.gov/ttn/emc/cem/ 

r4703-02-07.pdf), the correlations 

developed for these types of instruments 

are inherently dependent on the particle 

structure, size and other physical 

characteristics as well as PM mass in the 

exhaust gases for each site. Put another 

way, these light-based PM CEMS 

produce a signal that can vary when 

different fuels or raw materials are 

introduced to the kilns or ERU even 

when the FF outlet mass concentration 

remains unchanged. 

To the extent that physical 

characteristics of the PM in the stack 

remain stable, correlations for lightbased PM CEMS meeting PS–11 

performance criteria can represent mass 

rates to the degree of accuracy required 

by PS–11. For example, there are 

various design structures used in some 

light-based PM CEMS devices that can 

mitigate the effects of changes in the 

physical aspects of particles on 

measurement uncertainty. In addition to 

the type of light effect measured (e.g., 

Rayleigh or Mie scattering or light 

scintillation), the detector wavelength 

and the frequency are design factors that 

will affect how the PM CEMS responds 

to small changes in the physical 

appearance of the PM. 

On this point, we note that if a source 

owner were 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 light scatter or light 

scintillation characteristics. The 

currently available Beta gauge 

technology does not suffer from this 

particular technical problem. The Beta 

attenuation PM CEMS, also called Beta 

gauge, extracts a sample for the stack gas 

and collects the PM on a filter tape. The 

device periodically advances the tape 

from the sampling mode to an area 

where the sample is exposed to Beta 

radiation. The detector measures the 

amount of Beta emitted by the sample 

and that amount can be directly related 

to the mass of PM on the filter. The Beta 

gauge sensitivity or detection limit can 

be enhanced (i.e., lowered) with greater 

sample volumes produced from 

sampling intervals up to an hour or 

longer. 

Another PM mass detector projected 

for greater use as PM CEMS is the 

TEOM. Often used in measuring 

ambient levels of PM, the TEOM 

operates on a basic principle that can be 

made traceable to NIST laboratory 

standards. The TEOM can provide a 

continuous measure of PM mass in a 

sample extracted from the stack and 

routed to the detector. Tapered element 

oscillating microbalance based PM 

CEMS are not yet commercially 

available. 

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9130 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

Commenters identified another factor 

contributing to the difficulty of meeting 

PS–11 correlation requirements for low 

PM concentrations corresponding to a 

low applicable emissions limit, as with 

the promulgated PM standards here for 

waste-burning kilns and biomass ERUs. 

We have recently reevaluated the 

capabilities of the EPA Method 5 for 

measuring low concentrations of PM 

(See the memo ‘‘Revision of Estimated 

Method 5 Detection Limit’’ in the CISWI 

docket) and have determined a Method 

5 method detection limit of 

approximately 2 mg/dscm for a 1-hour 

test run. The uncertainty of a 

measurement with Method 5 at this PM 

concentration would be from 50 to 100 

percent (i.e., ±1 to 2 mg/dscm). We can 

determine a PQL using ∼3 × method 

detection limit to reduce that Method 5 

measurement uncertainty to ±10 to 20 

percent. That means that the PQL for a 

1-hour test run with Method 5 would be 

approximately 6 mg/dscm ±0.6 to 1.2 

mg/dscm. 

The CISWI PM emissions limit for 

existing waste-burning kiln sources is 

3.6 mg/dscm, and is 11 mg/dscm for 

biomass ERUs. The new source limits 

are the same for waste-burning kilns but 

are 5.1 mg/dscm for biomass ERUs. As 

noted above, PS–11 specifies acceptable 

criteria for a correlation directly related 

to the applicable emissions limit. For a 

PM CEMS set up to measure compliance 

with a 3.6 mg/dscm limit, the inherent 

uncertainty associated with a 1-hour 

Method 5 measurement (±0.6 to 1.2 mg/ 

dscm) would constitute more than half 

of the ±25 percent of the applicable PS– 

11 acceptance threshold (i.e., ±0.9 mg/ 

dscm) of the mid-level PS–11 

correlation test (i.e., the correlation for 

the middle of the three PS–11 

correlation points). Factoring in the 

inherent PM CEMS response variability 

and the uncertainty associated with the 

representative sampling (e.g., PM and 

flow stratification), we agree with 

commenters that trying to satisfy PS–11 

at such low concentrations using 1-hour 

Method 5 test runs would be 

problematic. This drawback applies 

regardless of the type of PM CEMS 

technology used. 

As commenters to the Portland 

Cement NESHAP have noted, one can 

improve the method detection 

capabilities of the Method 5 or other 

filterable PM test method by increasing 

sampling volume and run time. For 

example, a test run time of about 2 

hours will improve the Method 5 PQL 

to about 3 mg/dscm. The measurement 

uncertainty associated with a 2-hour test 

run at 3 mg/dscm would be about ±0.3 

to 0.6 mg/dscm. At this level, the 

uncertainty associated with the PM test 

method measurements alone would be 

about half of the correlation limit 

allowed in PS–11. To achieve a PQL of 

1 mg/dscm and a measurement 

uncertainty of about ±0.01 to 0.2 mg/ 

dscm, one would need to conduct a test 

run of 6 hours or longer. As noted 

above, the PS–11 correlation 

calculations would also have to account 

for any PM CEMS analytical and 

measurement variability. 

Using data from longer Method 5 test 

runs will improve the probability of a 

PM CEMS meeting PS–11 correlation 

requirements but, as commenters note, 

will also raise practicality concerns 

without completely resolving the issue. 

For example, the time to complete 15 1- 

hour test runs under three different 

emissions conditions may be 3 to 6 days 

of field work, while the time to 

complete 15 6-hour test runs under 

three different emissions conditions will 

require at least 2 weeks of field work in 

order to produce and maintain the 

operating conditions associated with 

three different emissions rates. Longer 

test runs lower the variability of Method 

5 PM measurements at near detection 

limit levels from ± 50 percent to below 

± 25 percent; however, the variability of 

Method 5 results at these low levels 

represents a significantly larger portion 

of the ± 25 percent correlation 

requirement of PS–11 than would 

Method 5 data collected at higher PM 

concentrations. Method 5 measurement 

uncertainty becomes increasingly 

greater with lowering PM concentration 

and thus reference measurement 

variability hinders the PS–11 correlation 

process the most for the best performing 

sources. Thus, the ultimate result might 

still lack certainty and would also pose 

the most difficulty and uncertainty to 

those sources with lower PM 

concentrations (potentially 

disadvantaging more efficient 

operators). 

Although longer Method 5 test runs 

and longer beta gauge sampling times 

reduce difficulties with PS–11 

correlation for a PM CEMS, the EPA 

believes that this correlation will not be 

technically achievable for a significant 

number of waste-burning kiln and 

biomass ERU sources, a result in part 

due to the Method 5 PM emissions 

measurement variability at the low 

concentrations necessary to maintain 

compliance with the standard. The PM 

CEMS correlations then become 

approximations more qualitative than 

quantitative with high levels of 

uncertainty at low concentrations (i.e., 

the correlations do not meet PS–11 

requirements). This characteristic exists 

regardless of the type of PM CEMS 

technology used by the source since it 

involves variability not only of the PM 

CEMS but also the Method 5 test data, 

variability of raw material and additive 

feeds to the waste-burning kiln, and the 

changing particle sizes, shapes, and 

density with process operations (e.g., 

mill on versus mill off, type of fuel 

being used in the ERU). 

Making PM CEMS work at low 

concentrations (<10 mg/dscm) at wasteburning kiln and biomass ERU sources 

is not impossible; although, to expect 

that correlations would be achievable at 

all low emissions sources would be 

unrealistic. Additionally, the technical 

limitations do not mean that PM CEMS 

cannot be used to monitor for 

compliance. A PM CEMS that does not 

meet the EPA correlation requirements 

can still produce data indicative of 

trends and changes in emissions 

control. Particulate Matter CEMS 

technology can be effective in 

monitoring control device performance 

(see, e.g., 77 FR 9371 (February 16, 

2012)) where the EPA established PM 

CPMS parametric operating limits for 

electric utility steam generating units. 

A Monitoring Approach Alternative to 

PM CEMS and PS–11 

To address technical issues associated 

with PM CEMS meeting PS–11 

correlation requirements at low PM 

emissions concentrations from wasteburning kilns and biomass ERUs, the 

impracticability in perturbing FF 

emission rates to establish PS 11 

correlation curves, and the potentially 

variable PM emissions characteristics 

expected from waste-burning kilns, the 

EPA is finalizing the change of the 

compliance basis for the PM emissions 

limit from PM CEMS. For monitoring 

continuous compliance, the rule 

requires PM CEMS equipment but, as 

explained below, that equipment would 

be used for continuous parametric 

monitoring rather than for direct 

measure of compliance with the 

numerical PM emissions limit. 

Specifically, this final rule recognizes 

the value of PM monitoring technology 

sensitive to changes in PM emissions 

concentrations and use of such a tool to 

assure continued good operation of PM 

control equipment. This approach 

avoids the PM CEMS calibration (i.e., 

PS–11 correlation). Therefore, the EPA 

is including provisions that a sitespecific parametric operating limit be 

established during the performance test, 

that there be continuous monitoring of 

that parametric limit using a PM CPMS, 

that an exceedance of that site-specific 

operating limit be reported as a 

deviation and trigger immediate 

corrective action and a Method 5 

performance test within 45 days. 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9131 

In the May 2012 Proposed National 

Emission Standards for Hazardous Air 

Pollutants for the Portland Cement 

Manufacturing Industry and Standards 

of Performance for Portland Cement 

Plants The EPA proposed the use of PM 

CPMS for continuous monitoring of PM 

emissions as a 30-day rolling average 

established by identifying the average 

PM CPMS response corresponding to 

the highest 1-hour PM compliance test. 

Failure to meet this 30-day rolling 

average would result in retesting. 

Industry commented that this 

requirement would trigger unnecessary 

retests for many facilities, especially for 

cleaner sources. This is a legitimate 

issue. To avoid a perverse result, the 

EPA is modifying the way PM CPMS 

operating limits are established. Sources 

whose compliance with the PM 

emission standard are shown to be 75 

percent or below the emission limit in 

the PM method 5 compliance test will 

set their PM parametric operating limit 

to be a 30-day rolling average equivalent 

to that 75 percent level. Sources whose 

compliance with the PM emission 

standard are above 75 percent of the 

emission limit will establish their 

operating limit as a 30-day rolling 

average equal to the average PM CPMS 

values recorded during the PM 

compliance test. It should be noted that 

this provision does not affect the actual 

emission limit that must be met. 

F. What other actions are we taking? 

In this final action, we are denying 

requests for reconsideration on all 

issues contained in the petitioners’ 

requests for reconsideration that we did 

not include in the December 23, 2011, 

proposed rule. The issues for which we 

are denying reconsideration failed to 

meet the standard for reconsideration 

under CAA section 307(d)(7)(B) and we 

determined that reconsideration was not 

otherwise appropriate. Specifically, on 

these issues, the petitioner has failed to 

show the following: That it was 

impracticable to raise their objections 

during the comment period; or that the 

grounds for their objections arose after 

the close of the comment period; and/ 

or that their concern is of central 

relevance to the outcome of the rules. 

We have concluded that no 

clarifications to the underlying rules are 

warranted for the 19 remaining 

petitioners’ issues for the reasons set 

forth in the memorandum titled 

‘‘Denied CISWI Petition Issues’’ found 

in the CISWI docket. The following 

issues are addressed in that 

memorandum. 

• Work practice standards should be 

used for startup/shutdowns and 

malfunctions. 

• Exempt or revise limits for units 

combusting de minimis amounts of 

waste. 

• Clarify applicability of CISWI 

standards to marine vessel units or units 

located on the outer continental shelf. 

• Clarify applicability to temporary or 

portable units. 

• Reduce performance testing 

requirements to be more consistent with 

requirements of other rules. 

• Reconsider elimination of 

provisions that allow missing CEMS 

data. 

• Do not include emissions data for 

combination boiler units. 

• CISWI does not satisfy CAA 

112(c)(6) requirements for POM and 

PCB. 

• MACT floor statistical approach 

concerns. 

• MACT floor must reflect the 

average, the UPL is not the same as the 

average emission level. 

• MACT floor pollutant-by-pollutant 

approach concerns. 

• Non-detect methodology is 

unlawful. 

• Beyond-the-floor analysis is 

unlawful and arbitrary. 

• Compliance cost and wildlife 

concerns for small remote incinerators. 

• ‘‘Refinery gas’’ definition should be 

included in the CISWI rule. 

• Clarify that construction and 

demolition wood is not a solid waste. 

G. What are the impacts associated with 

the amendments? 

1. What are the primary air impacts? 

We have estimated the potential 

emissions reductions from existing 

sources that may be achieved through 

implementation of the emission limits. 

However, we realize that some CISWI 

owners and operators are likely to 

determine that alternatives to waste 

incineration are viable, such as further 

waste segregation or sending the waste 

to a landfill or MWC, if available. In 

fact, sources operating incinerators, 

where energy recovery is not a goal, may 

find it cost effective to discontinue use 

of their CISWI unit altogether. 

Therefore, we have estimated emissions 

reductions attributable to existing 

sources complying with the limits, as 

well as those reductions that would 

occur if the facilities with incinerators 

and small, remote incinerators decide to 

discontinue the use of their CISWI unit 

and use alternative waste disposal 

options. 

For units combusting wastes for 

energy production, such as ERUs and 

waste-burning kilns, the decision to 

combust or not to combust waste will 

depend on several factors. One factor is 

the cost to replace the energy provided 

by the waste material with a traditional 

fuel, such as natural gas. Another factor 

would be whether the owner or operator 

is purchasing the waste or obtaining it 

at no cost from other generators, or if 

they are generating the waste on-site 

and will have to dispose of the materials 

in another fashion, such as landfills. 

Lastly, these units would have to 

compare the control requirements 

needed to meet the CISWI emission 

limits with those needed if they stop 

burning solid waste and are then subject 

to a NESHAP instead. As mentioned 

before, we have attempted to align the 

monitoring requirements for similar 

non-waste-burning sources as closely as 

possible in an effort to make them 

consistent and to help sources make the 

cross-walk between waste and nonwaste regulatory requirements as simple 

as possible. 

The emissions reductions that would 

be achieved under this final rule using 

the definition of solid waste under 

RCRA and the proposed CISWI emission 

limits are presented in Table 5 of this 

preamble. 

TABLE 5—EMISSIONS REDUCTIONS FOR MACT COMPLIANCE AND ALTERNATIVE DISPOSAL OPTIONS FOR EXISTING CISWI 

USING THE EMISSION LIMITS

Pollutant 

Reductions achieved 

through meeting MACT 

(ton/yr) 

Reductions achieved 

assuming incinerators 

and small, remote 

incinerators use alternative disposal 

(ton/yr) a

HCl ........................................................................................................................................... 772 .2 784 .3 

CO ............................................................................................................................................ 20,093 20,058 

Pb ............................................................................................................................................. 2 .5 2 .71 

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9132 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

TABLE 5—EMISSIONS REDUCTIONS FOR MACT COMPLIANCE AND ALTERNATIVE DISPOSAL OPTIONS FOR EXISTING CISWI 

USING THE EMISSION LIMITS—Continued 

Pollutant 

Reductions achieved 

through meeting MACT 

(ton/yr) 

Reductions achieved 

assuming incinerators 

and small, remote 

incinerators use alternative disposal 

(ton/yr) a

Cd ............................................................................................................................................ 1 .807 1 .809 

Hg ............................................................................................................................................ 0 .341 0 .344 

PM (filterable) .......................................................................................................................... 2,397 2,401 

dioxin, furans ........................................................................................................................... 0 .000062 0 .000064 

NOX .......................................................................................................................................... 5,292 5,399 

SO2 .......................................................................................................................................... 6,211 6,262 

Total .................................................................................................................................. 34,771 34,909 

aThe estimated emission reduction does not account for any secondary impacts associated with alternate disposal of diverted ERU fuel. 

The EPA expects that many existing 

CISWI owners and operators may find 

that alternate disposal options are 

preferable to complying with the 

standards for the incinerator and small, 

remote incinerator subcategories. Our 

experience with regulations for MWC, 

HMIWI and, in fact, CISWI, has shown 

that negative growth in the source 

category historically occurs upon 

implementation of CAA section 129 

standards. Since CISWI rules were 

promulgated in 2000 and have been in 

effect for existing sources since 2005, 

many existing units have closed. At 

promulgation in 2000, the EPA 

estimated 122 units in the CISWI 

population. In comparison, the 

incinerator subcategory in this rule, 

which contains any such units subject 

to the 2000 CISWI rule, has 27 units. 

The EPA is not aware of any 

construction of new units since 2000 so 

we do not believe there are any units 

that are currently subject to the 2000 

CISWI NSPS. The revised CISWI rule is 

more stringent so we expect this trend 

to continue. However, the EPA does 

recognize that some facilities may opt to 

replace aging incinerator units with new 

units where it is cost effective or 

alternative disposal options are not 

feasible, as may be the case with some 

incinerators, or in very remote locations. 

We estimate that there could be one new 

incineration unit within the next 5 years 

following this final rule, and possibly 

five new small remote incinerators 

within that time. In these cases, we have 

developed model CISWI unit emissions 

reduction estimates for these 

subcategories using the current existing 

unit baseline, based on average emission 

concentration values and sizes from our 

current inventory and the new source 

emission limits. Table 6 of this 

preamble presents the model plant 

emissions reductions that are expected 

for new sources. 

TABLE 6—EMISSIONS REDUCTIONS ON A MODEL PLANT BASIS

Pollutant 

Emission reduction for CISWI subcategory model 

units 

(tpy unless otherwise noted) 

Incinerator Small, remote 

incinerator 

HCl ........................................................................................................................................... 2 .62 0 .0 

CO ............................................................................................................................................ 0 .0 0 .25 

Pb ............................................................................................................................................. 0 .55 0 .11 

Cd ............................................................................................................................................ 0 .15 0 .019 

Hg ............................................................................................................................................ 0 .0026 0 .00036 

PM (filterable) .......................................................................................................................... 103 10 .7 

D/F (total mass) a ..................................................................................................................... 0 .0011 0 .0 

NOX .......................................................................................................................................... 11 .3 0 .0 

SO2 .......................................................................................................................................... 5 .1 4 .5 

Total .................................................................................................................................. 122 22 .0 

a D/F estimates are given in lb/yr. 

We do not anticipate that any new 

energy recovery or waste-burning kiln 

units will be constructed and will 

instead use alternative waste disposal 

methods or alternative fuels that will 

not subject them to the CISWI rule. For 

example, whole tires obtained from 

approved tire management programs 

and tire-derived fuel from which the 

metal has been removed is not 

considered solid waste under the 

definition of solid waste. Consequently, 

new cement kiln owners will assess 

their regulatory requirements under 

CISWI for burning whole tires or tirederived fuel that does not have metals 

removed against the costs associated 

with removing the metal or obtaining 

tires from an approved source and 

complying with the applicable NESHAP 

instead of the CISWI rule. Our research 

suggests that metal removal is routinely 

practiced and that several state waste 

tire management programs are already 

in place and would most likely be a 

viable option for new kiln owners so 

that they would not be subject to the 

CISWI regulations. Indeed, we expect 

that all existing cement kilns that are 

classified as being waste-burning solely 

due to whole tires will, by the effective 

date for the CISWI standards, find a way 

to obtain their tires through an approved 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9133 

tire management plan. Likewise, new 

sources could engineer their process to 

minimize waste generation in the first 

place or to separate wastes so that the 

materials sent to a combustion unit 

would not meet the definition of solid 

waste to begin with. For waste that is 

generated, our cost analyses have found 

that alternative waste disposal is 

generally available and less expensive. 

2. What are the water and solid waste 

impacts? 

In our analysis, we have selected the 

lowest cost alternative (i.e., compliance 

or alternative disposal) for each facility. 

We anticipate affected sources will need 

to apply additional controls to meet the 

emission limits. These controls may use 

water, such as wet scrubbers, which 

would need to be treated. We estimate 

an annual requirement of 71 billion 

gallons per year of additional water 

would be required as a result of 

operating additional controls or 

increased sorbent use. 

Likewise, the addition of PM controls 

or improvements to controls already in 

place will increase the amount of 

particulate collected that will require 

disposal. Furthermore, ACI may be used 

by some sources, which will result in 

additional solid waste needing disposal. 

The annual amounts of solid waste that 

would require disposal are anticipated 

to be approximately 25,400 tpy from PM 

capture and 13,700 tpy from ACI. 

Perhaps the largest impact on solid 

waste would come from owners and 

operators who decide to discontinue the 

use of their CISWI unit and instead send 

waste to the landfill or MWC for 

disposal. Based on tipping fees and 

availability, we would expect most, if 

not all, of this diverted waste to be sent 

to a local landfill. As we discuss above, 

it may be that a good portion of the 

incinerators would determine that 

alternative disposal is a better choice 

than compliance with the standards. We 

estimate that approximately 110,600 tpy 

of waste would be diverted to a landfill. 

For new CISWI units, we estimate an 

annual requirement of 980,000 gallons 

per year of additional water would be 

required as a result of operating 

additional controls. The annual 

amounts of solid waste that would 

require disposal are anticipated to be 

approximately 6.8 tpy from PM capture 

and 4.7 tpy from ACI. 

3. What are the energy impacts? 

The energy impacts associated with 

meeting the emission limits would 

consist primarily of additional 

electricity needs to run added or 

improved air pollution control devices. 

For example, increased scrubber pump 

horsepower may cause slight increases 

in electricity consumption and sorbent 

injection controls would likewise 

require electricity to power pumps and 

motors. In our analysis, we have 

selected the lowest cost alternative (i.e., 

compliance or alternative disposal) for 

each facility. By our estimate, we 

anticipate that an additional 217,400 

MW-hours per year would be required 

for the additional and improved control 

devices. 

As discussed earlier, there could be 

instances where owners and operators 

of ERUs and waste-burning kilns decide 

to cease burning waste materials. In 

these cases, the energy provided by the 

burning of waste would need to be 

replaced with a traditional fuel, such as 

natural gas. Assuming an estimate that 

50 percent of the energy input to ERUs 

and kilns are from waste materials, an 

estimate of the energy that would be 

replaced with a traditional fuel if all 

existing units stopped burning waste 

materials, is approximately 56 TBtu/yr. 

For new CISWI units, we anticipate 

that 94 MW-hours per year would be 

required for additional and improved 

control devices. Since we do not 

anticipate any new energy recovery or 

waste-burning kiln units to be 

constructed, there would be no 

additional estimate for energy that 

would be replaced with a traditional 

fuel. 

4. What are the secondary air impacts? 

For CISWI units adding controls to 

meet the emission limits, we anticipate 

minor secondary air impacts. The 

combustion of fuel needed to generate 

additional electricity and to operate 

RTO controls would yield slight 

increases in emissions, including NOX, 

CO, PM and SO2 and an increase in CO2

emissions. Since NOX and SO2 are 

covered by capped emissions trading 

programs, and methodological 

limitations prevent us from quantifying 

the change in CO and PM, we do not 

estimate an increase in secondary air 

impacts for this rule from additional 

electricity demand. 

We believe it likely that the 

incinerators may elect to discontinue 

the use of their CISWI unit and send the 

waste to the landfill or other disposal 

means. As we discussed in the solid 

waste impacts above, this could result 

in approximately 110,600 tpy of waste 

going to landfills. By using the EPA’s 

Landfill Gas Estimation Model, we 

estimate that, over the 20-year expected 

life of a CISWI unit, the resulting 

methane generated by a landfill 

receiving the waste would be about 

96,400 tons. If this landfill gas were 

combusted in a flare, assuming typical 

flare emission factors and landfill gas 

chlorine, Hg and sulfur concentrations, 

the following emissions would be 

expected: 20 tons of PM; 8 tons of HCl; 

16 tons of SO2; 890 tons of CO; 46 tons 

of NOX; and 1.4 lbs of Hg. 

Similar to existing units, we 

anticipate minor secondary air impacts 

for new CISWI units adding controls as 

discussed above. 

5. What are the cost and economic 

impacts? 

We have estimated compliance costs 

for all existing units to add the 

necessary controls and monitoring 

equipment, and to implement the 

inspections, recordkeeping and 

reporting requirements to comply with 

the final CISWI standards. We have also 

analyzed the costs of alternative 

disposal for the subcategories that may 

have alternative options to burning 

waste, specifically for the incinerators 

and the small, remote incinerators that 

may have an alternative to incineration. 

In our analysis, we have selected the 

lowest cost alternative (i.e., compliance 

or alternative disposal) for each facility. 

Based on this analysis, we anticipate an 

overall total capital investment of $816 

million with an associated total annual 

cost of $271 million ($2008). For 

comparison, the 2011 final rule, 

estimated an overall total capital 

investment of $652 million with an 

associated total annual cost of $232 

million ($2008). The annualized cost of 

today’s final rule are approximately 

17% higher than those of the final 2011 

CISWI rule. The changes in cost result 

from revising the inventories of the 

ERUs, waste-burning kilns, and small 

remote incinerators as discussed in 

Section II.C. of this preamble: 

‘‘Summary of Significant Changes Since 

Proposal.’’ 

Under the rule, the EPA’s economic 

model suggests the average national 

market-level variables (prices, 

production-levels, consumption, 

international trade) will not change 

significantly (e.g., are less than 0.001 

percent). 

The EPA performed a screening 

analysis for impacts on small entities by 

comparing compliance costs to sales/ 

revenues (e.g., sales and revenue tests). 

The EPA’s analysis found the tests were 

below 3 percent for four of the five 

small entities included in the screening 

analysis. 

In addition to estimating this rule’s 

social costs and benefits, the EPA has 

estimated the employment impacts of 

the final rule. We expect that the rule’s 

direct impact on employment will be 

small. For the reconsideration final, the 

estimated employment changes range 

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9134 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

10Roman, et al., 2008. Expert Judgment 

Assessment of the Mortality Impact of Changes in 

Ambient Fine Particulate Matter in the U.S. 

Environ. Sci. Technol., 42, 7, 2268–2274. 

11U.S. Environmental Protection Agency (U.S. 

EPA). 2012a. Regulatory Impact Analysis for the 

Proposed Revisions to the National Ambient Air 

Quality Standards for Particulate Matter. EPA–452/ 

R–12–003. Office of Air Quality Planning and 

Standards, Health and Environmental Impacts 

Division. June. Available at http://www.epa.gov/

ttnecas1/regdata/RIAs/PMRIACombinedFile_

Bookmarked.pdf. 

12U.S. Environmental Protection Agency (U.S. 

EPA). 2012b. Regulatory Impact Analysis for the 

Final Revisions to the National Ambient Air Quality 

Standards for Particulate Matter. EPA–452/R–12– 

003. Office of Air Quality Planning and Standards, 

Health and Environmental Impacts Division. 

December. Available at http://www.epa.gov/pm/ 

2012/finalria.pdf. 

13Fann, N., C.M. Fulcher, B.J. Hubbell. 2009. 

‘‘The influence of location, source, and emission 

type in estimates of the human health benefits of 

reducing a ton of air pollution.’’ Air Qual Atmos 

Health (2009) 2:169–176. 

between ¥400 to +900 employees, with 

a central estimate of +200. 

We have not quantified the rule’s 

indirect or induced impacts. For further 

explanation and discussion of our 

analysis, see the introductory memo and 

Section 3 of the RIA. 

For new CISWI units, we have 

estimated compliance costs for units 

coming online in the next 5 years. This 

analysis is based on the assumption that 

one new incinerator will come online 

over 5 years and that three new small 

remote incinerators will come online in 

the next year, followed by one new 

small remote incinerator per year for 

subsequent years. Additionally, it was 

assumed that each model unit will add 

the necessary controls, monitoring 

equipment, inspections, recordkeeping 

and reporting requirements to comply 

with NSPS limits. Based on our 

analysis, we anticipate an overall total 

capital investment of $9.3 million over 

5 years with an associated total annual 

cost (for 2015) of $2.7 million. 

6. What are the benefits? 

We estimate the monetized benefits of 

this regulatory action to be $420 million 

to $1.0 billion (2008$), 3 percent 

(discount rate) in the implementation 

year (2015). The monetized benefits of 

the regulatory action at a 7 percent 

discount rate are $380 million to $930 

million (2008$). Using alternate 

relationships between PM2.5 and 

premature mortality supplied by 

experts, higher and lower benefits 

estimates are plausible but most of the 

expert-based estimates fall between 

these two estimates.10 Since the 

reconsideration proposal, we have made 

several updates to the approach we use 

to estimate mortality and morbidity 

benefits in the PM NAAQS RIAs (U.S. 

EPA, 2012a,b) 11 12, including updated 

epidemiology studies, health endpoints, 

and population data. Although we have 

not re-estimated the benefits for this 

rule to apply this new approach, these 

updates generally offset each other, and 

we anticipate that the rounded benefits 

estimated for this rule are unlikely to be 

different than those provided below. 

More information on these updates can 

be found in the PM NAAQS RIAs .A 

summary of the monetized benefits 

estimates at discount rates of 3 percent 

and 7 percent is in Table 7 of this 

preamble. 

TABLE 7—SUMMARY OF THE MONETIZED BENEFITS ESTIMATES FOR THE CISWI NSPS AND EG IN 2015 

[Millions of 2008$] a b

Pollutant 

Estimated emission 

reductions 

(tpy) 

Total monetized 

benefits 

(3% Discount Rate) 

Total monetized 

benefits 

(7% Discount Rate) 

PM2.5 ............................................................................................................... 917 $210 to $510 ......... $190 to $460. 

PM2.5 Precursors 

SO2 .................................................................................................................. 6,262 $180 to $450 ......... $170 to $410. 

NOX ................................................................................................................. 5,399 $26 to $64 ............. $24 to $58. 

Total ......................................................................................................... .................................... $420 to $1,000 ...... $380 to $930. 

aAll estimates are for the implementation year (2015) and are rounded to two significant figures so numbers may not sum across rows. All fine 

particles are assumed to have equivalent health effects but the benefit-per-ton estimates vary between precursors because each ton of precursor 

reduced has a different propensity to form PM2.5. Benefits from reducing HAP are not included. 

These benefits estimates represent the 

total monetized human health benefits 

for populations exposed to less PM2.5 in 

2015 from controls installed to reduce 

air pollutants in order to meet these 

standards. To estimate human health 

benefits of this rule, the EPA used 

benefit-per-ton factors to quantify the 

changes in PM2.5-related health impacts 

and monetized benefits based on 

changes in SO2 and NOX emissions. 

These estimates are calculated as the 

sum of the monetized value of avoided 

premature mortality and morbidity 

associated with reducing a ton of PM2.5

and PM2.5 precursor emissions. To 

estimate human health benefits derived 

from reducing PM2.5 and PM2.5

precursor emissions, we used the 

general approach and methodology laid 

out in Fann, Fulcher, and Hubbell 

(2009).13

To generate the benefit-per-ton 

estimates, we used a model to convert 

emissions of direct PM2.5 and PM2.5

precursors into changes in ambient 

PM2.5 levels and another model to 

estimate the changes in human health 

associated with that change in air 

quality. Finally, the monetized health 

benefits were divided by the emission 

reductions to create the benefit-per-ton 

estimates. 

These models assume that all fine 

particles, regardless of their chemical 

composition, are equally potent in 

causing premature mortality because the 

scientific evidence is not yet sufficient 

to support the development of 

differential effects estimates by particle 

type. Directly emitted PM2.5, SO2 and 

NOX are the primary precursors affected 

by this rule. Even though we assume 

that all fine particles have equivalent 

health effects, the benefit-per-ton 

estimates vary between precursors 

depending on the location and 

magnitude of their impact on PM2.5

levels, which drive population 

exposure. For example, SO2 has a lower 

benefit-per-ton estimate than direct 

PM2.5 because it does not form as much 

PM2.5, thus, the exposure would be 

lower and the monetized health benefits 

would be lower. 

It is important to note that the 

magnitude of the PM2.5 benefits is 

largely driven by the concentration 

response function for premature 

mortality. Experts have advised the EPA 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9135 

14Pope, et al., 2002. ‘‘Lung Cancer, 

Cardiopulmonary Mortality, and Long-term 

Exposure to Fine Particulate Air Pollution.’’ Journal 

of the American Medical Association 287:1132– 

1141. 

15Laden, et al., 2006. ‘‘Reduction in Fine 

Particulate Air Pollution and Mortality.’’ American 

Journal of Respiratory and Critical Care Medicine. 

173: 667–672. 

16U.S. Environmental Protection Agency, 2006. 

Final Regulatory Impact Analysis: PM2.5 NAAQS. 

Prepared by Office of Air and Radiation. October. 

Available on the Internet at http://www.epa.gov/ttn/ 

ecas/ria.html. 

17See October 14, 2011, Letter from 

Administrator Lisa P. Jackson to Senator Olympia 

Snowe. A copy of this letter has been placed in the 

docket for today’s rule (EPA–HQ–RCRA–2008– 

1873). 

18For more information regarding the intent of 

the December 23, 2011, proposed rule, see 76 FR 

80469. For more information regarding the scope of 

the proposed rule, see 76 FR 80470–80474. 

19For example, see 76 FR 80470: ‘‘The EPA is 

soliciting comment only on these targeted changes 

and is not reopening any other issues in the final 

NHSM rule. Comments that go beyond the scope of 

this narrow RCRA rulemaking will not be addressed 

by the Agency when it finalizes today’s proposed 

rule.’’ See also 76 FR 80474 ‘‘As noted above, the 

intent of this proposal is to identify certain specific 

aspects of the rule which EPA is reconsidering and 

on which it is soliciting public comment. The 

Agency is not reopening the entire rule for 

reconsideration and will not respond to comments 

directed toward rule provisions that are not 

specifically identified in this proposal.’’ and 76 FR 

80482 ‘‘The Agency is not considering any change 

to the self-implementing, mandatory nature of the 

§ 241.3 standards for individual facilities and will 

not respond to any comments on this topic.’’. 

to consider a variety of assumptions, 

including estimates based on both 

empirical (epidemiological) studies and 

judgments elicited from scientific 

experts, to characterize the uncertainty 

in the relationship between PM2.5

concentrations and premature mortality. 

For this rule, we cite two key empirical 

studies, the American Cancer Society 

cohort study 14 and the extended Six 

Cities cohort study.15 In the RIA for this 

rule, which is available in the docket, 

we also include benefits estimates 

derived from expert judgments and 

other assumptions. 

The EPA strives to use the best 

available science to support our benefits 

analyses. We recognize that 

interpretation of the science regarding 

air pollution and health is dynamic and 

evolving. After reviewing the scientific 

literature and recent scientific advice, 

we have determined that the nothreshold model is the most appropriate 

model for assessing the mortality 

benefits associated with reducing PM2.5

exposure. Consistent with this recent 

advice, we are replacing the previous 

threshold sensitivity analysis with a 

new LML assessment. While a LML 

assessment provides some insight into 

the level of uncertainty in the estimated 

PM mortality benefits, the EPA does not 

view the LML as a threshold and 

continues to quantify PM-related 

mortality impacts using a full range of 

modeled air quality concentrations. 

Most of the estimated PM-related 

benefits in this rule would accrue to 

populations exposed to higher levels of 

PM2.5. Using the Pope, et al., (2002) 

study, 85 percent of the population is 

exposed at or above the LML of 7.5 mg/ 

m3. Using the Laden, et al., (2006) study, 

40 percent of the population is exposed 

above the LML of 10 mg/m3. It is 

important to emphasize that we have 

high confidence in PM2.5-related effects 

down to the lowest LML of the major 

cohort studies. This fact is important, 

because as we estimate PM-related 

mortality among populations exposed to 

levels of PM2.5 that are successively 

lower, our confidence in the results 

diminishes. However, our analysis 

shows that the great majority of the 

impacts occur at higher exposures. 

Every benefit analysis examining the 

potential effects of a change in 

environmental protection requirements 

is limited, to some extent, by data gaps, 

model capabilities (such as geographic 

coverage) and uncertainties in the 

underlying scientific and economic 

studies used to configure the benefit and 

cost models. Despite these uncertainties, 

we believe the benefit analysis for this 

rule provides a reasonable indication of 

the expected health benefits of the 

rulemaking under a set of reasonable 

assumptions. This analysis does not 

include the type of detailed uncertainty 

assessment found in the 2006 PM2.5

NAAQS RIA because we lack the 

necessary air quality input and 

monitoring data to run the benefits 

model. In addition, we have not 

conducted any air quality modeling for 

this rule. The 2006 PM2.5 NAAQS 

benefits analysis 16 provides an 

indication of the sensitivity of our 

results to various assumptions. 

It should be emphasized that the 

monetized benefits estimates provided 

above do not include benefits from 

several important benefit categories, 

including reducing other air pollutants, 

ecosystem effects and visibility 

impairment. The benefits from reducing 

HAP have not been monetized in this 

analysis, including reducing 20,000 tons 

of carbon monoxide, 780 tons of HCl, 

2.5 tons of lead, 1.8 tons of cadmium, 

680 pounds of mercury, and 58 grams of 

total D/F each year. Although we do not 

have sufficient information or modeling 

available to provide monetized 

estimates for this rulemaking, we 

include a qualitative assessment of the 

health effects of these air pollutants in 

the RIA for this rule, which is available 

in the docket. 

For more information on the benefits 

analysis, please refer to the RIA for this 

rulemaking, which is available in the 

docket. 

III. NHSM Final Revisions 

A. Statutory Authority 

The EPA is promulgating these 

regulations under the authority of 

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

RCRA, as amended, 42 U.S.C. 6912(a)(1) 

and 6903(27). Section 129(a)(1)(D) of the 

CAA ((42 U.S.C. 7429) directs the EPA 

to establish standards for CISWIs, which 

burn solid waste. Section 129(g)(6) of 

the CAA provides that the term ‘‘solid 

waste’’ is to be established by the EPA 

under RCRA. Section 2002(a)(1) of 

RCRA authorizes the agency to 

promulgate regulations as are necessary 

to carry out its functions under the Act. 

The statutory definition of ‘‘solid waste’’ 

is provided in RCRA section 1004(27). 

B. NHSM Rule History 

The agency first solicited comments 

on how the RCRA definition of solid 

waste should apply to NHSMs used as 

fuels or ingredients in combustion units 

in an ANPRM, which was published in 

the Federal Register on January 2, 2009 

(74 FR 41). We then published a NHSM 

proposed rule on June 4, 2010 (75 FR 

31844), which the EPA issued in final 

form on March 21, 2011 (76 FR 15456). 

The March 2011, NHSM final rule 

codified the standards and procedures 

for identifying which non-hazardous 

secondary materials are ‘‘solid waste’’ 

when used as fuels or ingredients in 

combustion units. 

In October 2011, the agency 

announced it would be initiating new 

rulemaking proceedings to revise certain 

aspects of the NHSM rule.17 On 

December 23, 2011, we then published 

a proposed rule, which addressed 

specific targeted amendments and 

clarifications to the part 241 regulations 

(76 FR 80452). These proposed revisions 

and clarifications were limited to 

certain issues on which the agency had 

received new information, as well as 

targeted revisions that the agency 

believed were appropriate in order to 

allow implementation of the rule as the 

EPA originally intended.18 As stated 

throughout the preamble to the 

proposed rule, the agency was not 

reopening the entire NHSM rule for 

reconsideration and would not respond 

to comments directed toward rule 

provisions that were not specifically 

identified in this proposal.19 Therefore, 

any comments that were submitted 

outside the scope of the proposal, or for 

which the EPA did not solicit comment, 

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9136 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

20This document has been titled, ‘‘NHSM 2012 

Final Rule Regulation Changes’’ and is placed in 

Docket No: EPA–HQ–RCRA–2008–0329. 

21 ‘‘Removal from vehicles’’ had been a 

component of the definition. 

are not addressed in this final rule, or 

in the Response to Comments document 

that has been prepared for this final 

rule. 

The Agency also notes that even 

though the NHSM final rule will 

become effective on April 8, 2013, 

existing facilities that currently burn 

NHSMs will have a substantial amount 

of time before having to comply with 

the CISWI standards, as the compliance 

date for existing CISWI sources subject 

to CAA 129 standards is 5 years after the 

date of publication of the CISWI final 

rule or 3 years after the state plan is 

approved, whichever happens earlier. In 

addition, the Boiler MACT rule provides 

until February 7, 2016, for existing 

sources to comply with the standards. 

We recognize that new sources will 

have to comply with these rules sooner 

than do existing sources. Thus, we 

believe that there will be more than 

adequate time for persons to determine 

whether or not a NHSM sent to a 

combustion unit is a solid waste. 

C. Introduction—Summary of 

Regulations Being Finalized 

In today’s rule, the EPA is finalizing 

certain amendments and clarifications 

to the 40 CFR part 241 regulations on 

which we have received new 

information, as well as specific targeted 

revisions that are appropriate in order to 

allow implementation of the rule as the 

EPA originally intended. The 

regulations being issued today are 

summarized below. The intent of this 

summary is to give a brief overview of 

the revised part 241 regulations. More 

detailed discussions, including the 

agency’s responses to comments 

received on the proposed rule and its 

rationale for decisions being made in 

this final action, are included in section 

III.D of this preamble. In addition, in an 

effort to aid the regulated community, 

the EPA is including in the docket for 

today’s rule an informational redline/ 

strikeout version that identifies the 

specific changes to the regulatory text, 

as compared to the March 2011, final 

rule.20

1. Revised Definitions 

In today’s rule, the EPA is finalizing 

revisions to the three definitions 

discussed in the proposed rule: (1) 

‘‘clean cellulosic biomass,’’ (2) 

‘‘contaminants,’’ and (3) ‘‘established 

tire collection programs.’’ In addition, 

based on comments received on the 

proposed rule, the agency is also 

finalizing a revised definition of 

‘‘resinated wood.’’ These revised 

definitions will be codified in 40 CFR 

241.2. 

a. Clean Cellulosic Biomass 

In today’s action, the EPA is issuing 

a revised definition of ‘‘clean cellulosic 

biomass’’ that: (1) Makes clear that the 

list of biomass materials are examples 

within the definition and is not 

intended to be an exhaustive list; and 

(2) provides a more comprehensive list 

of clean cellulosic biomass to guide the 

regulated community. These revisions 

do not change the agency’s intent under 

the March 2011 final rule, but identify 

additional materials that are ‘‘clean 

cellulosic biomass,’’ and, thus, are 

traditional fuels under these regulations. 

A discussion of relevant comments 

regarding the definition of clean 

cellulosic biomass, as well as our 

rationale for making these 

determinations, can be found in section 

III.D.1.a of this preamble. 

b. Contaminants 

In today’s action, the EPA is issuing 

a final definition of ‘‘contaminants’’ to 

clarify what constituents will be 

considered contaminants for the 

purposes of the contaminant legitimacy 

criterion. Revisions include: (1) The 

replacement of a reference to ‘‘any 

constituent that will result in 

emissions’’ with a specific list of 

constituents to be considered as 

contaminants based on their status as a 

precursor to air emissions; (2) the 

removal from the definition of specific 

CAA section 112(b) and 129(a)(4) 

pollutants that are not expected to be 

found in any NHSM or are adequately 

covered elsewhere in the definition; and 

(3) the removal of the phrase ‘‘including 

those constituents that could generate 

products of incomplete combustion’’ 

from the definition. A discussion of 

relevant comments regarding the 

contaminants definition, as well as our 

rationale for making these 

determinations, can be found in section 

III.D.1.b of this preamble. 

c. Established Tire Collection Programs 

In today’s action, the EPA is finalizing 

a revised definition of ‘‘established tire 

collection program’’ in order to account 

for ‘‘off-specification’’ (including factory 

scrap) tires that are contractually 

arranged to be collected, managed and 

transported between a tire manufacturer 

(including retailers or other parties 

involved in the distribution and sale of 

new tires) and a combustor, which is 

analogous to how scrap tires removed 

from vehicles are managed. The offspecification tires are not removed from 

vehicles 21 and are handled under 

contractual arrangements which ensure 

they are not discarded. A description of 

how the changes to the definition 

accommodate the management of offspecification tires can be found in 

section III.D.1.c of this preamble. In 

addition to the proposed changes, we 

are revising the definition to specifically 

include tires that were not abandoned 

and were received from the general 

public at tire collection program events. 

A discussion of relevant comments 

regarding the definition, as well as our 

rationale for making this determination, 

can be found in section III.D.1.c of this 

preamble. 

d. Resinated Wood 

In today’s action, the EPA is issuing 

a revised definition of ‘‘resinated wood’’ 

that includes additional materials in 

order to be more representative of the 

universe of resinated wood residuals 

that are currently used as fuels 

throughout the wood product 

manufacturing process. Revisions 

include: (1) Replacing the phrase 

‘‘containing resin adhesives’’ with the 

phrase, ‘‘containing binders and 

adhesives,’’ and (2) specifically 

including ‘‘off-specification resinated 

wood products that do not meet a 

manufacturing quality or standard’’ 

within this definition. A discussion of 

relevant comments regarding the 

resinated wood definition, as well as 

our rationale for making this 

determination, can be found in section 

III.D.3.b of this preamble. 

2. Contaminant Legitimacy Criterion for 

NHSM Used as Fuels 

In today’s action, the EPA is issuing 

in final form a revised contaminant 

legitimacy criterion for NHSMs used as 

fuels to provide additional details on 

how contaminant comparisons between 

NHSMs and traditional fuels may be 

made. Revisions include: (1) The ability 

to compare groups of contaminants 

where technically reasonable; (2) the 

clarification that ‘‘designed to burn’’ 

means can burn or does burn, and not 

necessarily permitted to burn; (3) the 

ability to use traditional fuel data from 

national surveys and other sources 

beyond a facility’s current fuel supplier; 

and (4) the ability to use ranges of 

traditional fuel contaminant levels 

when making contaminant comparisons, 

provided the variability of NHSM 

contaminant levels is also considered. A 

discussion of relevant comments 

regarding the contaminant legitimacy 

criterion for NHSMs used as fuels, as 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9137 

22The scrap tire provision in the 2011 NHSM 

final rule is now removed and the section reserved 

in today’s final rule: ‘‘(b) The following nonhazardous secondary materials are not solid wastes 

when combusted: 

(2) The following non-hazardous secondary 

materials that have not been discarded and meet the 

legitimacy criteria specified in paragraph (d)(1) of 

this section when used in a combustion unit (by the 

generator or outside the control of the generator): 

(i) Scrap tires used in a combustion unit that are 

removed from vehicles and managed under the 

oversight of established tire collection programs.’’ 

23The resinated wood provision in the 2011 

NHSM final rule is now removed and the section 

reserved in today’s final rule: ‘‘(b) The following 

non-hazardous secondary materials are not solid 

wastes when combusted: 

(2) The following non-hazardous secondary 

materials that have not been discarded and meet the 

legitimacy criteria specified in paragraph (d)(1) of 

this section when used in a combustion unit (by the 

generator or outside the control of the generator): 

(ii) Resinated wood used in a combustion unit.’’ 

well as our rationale for making these 

determinations, can be found in section 

III.D.2 of this preamble. 

3. Categorical Non-Waste 

Determinations for Specific NHSM Used 

as Fuels 

In today’s final rule, the agency is 

codifying determinations that certain 

NHSMs are non-wastes when used as 

fuels. Based on all available 

information, the EPA has determined 

that the following NHSMs are 

categorically not a solid waste when 

burned as a fuel in combustion units: (1) 

Scrap tires that are not discarded and 

are managed under the oversight of 

established tire collection programs, 

including tires removed from vehicles 

and off-specification tires; (2) resinated 

wood; (3) coal refuse that has been 

recovered from legacy piles and 

processed in the same manner as 

currently-generated coal refuse; and (4) 

dewatered pulp and paper sludges that 

are not discarded and are generated and 

burned on-site by pulp and paper mills 

that burn a significant portion of such 

materials where such dewatered 

residuals are managed in a manner that 

preserves the meaningful heating value 

of the materials. 

a. Scrap Tires 

In today’s action, the agency is adding 

scrap tires that are not discarded and are 

managed under the oversight of 

established tire collection programs, 

including tires removed from vehicles 

and off-specification tires (including 

factory scraps), to the categorical list of 

non-waste fuels (see 40 CFR 241.4(a)(1)) 

as proposed. Based on this categorical 

non-waste determination, facilities 

burning the scrap tires that qualify for 

the provision will not need to 

demonstrate that this NHSM meets the 

legitimacy criteria on a site-by-site basis. 

Further, the addition to the new 

categorical non-waste provision at 40 

CFR 241.4(a)(1) eliminated the need for 

the previous scrap tire provision at 40 

CFR 241.3(b)(2)(i),22 which has been 

removed and reserved in today’s final 

rule. A discussion of relevant comments 

regarding the scrap tire provision, as 

well as our rationale for making this 

determination, can be found in section 

III.D.3.a of this preamble. 

b. Resinated Wood 

In today’s action, the agency is listing 

resinated wood as a non-waste fuel in 

40 CFR 241.4(a)(2), as proposed. The 

EPA has evaluated resinated wood and, 

based on all available information, 

including consideration of the 

legitimacy criteria, as well as other 

relevant factors, has determined that 

resinated wood is not a solid waste 

when used as a fuel. Based on this 

categorical non-waste determination, 

facilities burning resinated wood 

residuals as a fuel will not need to 

demonstrate that this NHSM meets the 

legitimacy criteria on a site-by-site basis. 

Further, the addition of this 

categorical non-waste determination (40 

CFR 241.4(a)(2)) eliminated the need for 

the previous resinated wood provision 

at 40 CFR 241.3(b)(2)(ii),23 which has 

been removed and reserved in today’s 

final rule. A discussion of relevant 

comments regarding the categorical nonwaste determination for resinated wood, 

as well as our rationale for making this 

determination, can be found in section 

III.D.3.b of this preamble. 

c. Coal Refuse 

In today’s action, the agency has 

determined that coal refuse that has 

been recovered from legacy piles and 

processed in the same manner as 

currently-generated coal refuse, is a 

non-waste fuel in 40 CFR 241.4(a)(3). 

This determination is based on the fact 

that: (1)Legacy coal refuse processed in 

the same manner as currently-generated 

coal refuse meets the definition of 

processing (as codified in 40 CFR 

241.2); and (2)the EPA’s assessment that 

such materials meet the legitimacy 

criteria for fuels (as codified in 40 CFR 

241.3(d)(1)) when compared to 

currently-generated coal refuse, which 

the agency considers to be within the 

definition of a traditional fuel (as 

codified in 40 CFR 241.2). Based on this 

categorical non-waste determination, 

facilities burning these materials as a 

fuel will not need to demonstrate that 

this NHSM meets the legitimacy criteria 

on a site-by-site basis. A discussion of 

relevant comments regarding the 

categorical non-waste determination for 

coal refuse that is recovered from legacy 

piles and processed, as well as our 

rationale for making this determination, 

can be found in section III.D.5.b of this 

preamble. 

d. Pulp and Paper Sludge 

In today’s action, the EPA has 

determined that dewatered pulp and 

paper sludges that are not discarded and 

are generated and burned on-site by 

pulp and paper mills that burn a 

significant portion of such materials 

where such dewatered residuals are 

managed in a manner that preserves the 

meaningful heating value of the 

materials are non-waste fuels in 40 CFR 

241.4(a)(4). This determination for pulp 

and paper sludge as a categorical nonwaste represents the agency’s finding, 

after balancing the regulatory legitimacy 

criteria with other relevant factors, that 

the burning of this material is an 

integral part of facility operations, and 

as described in the categorical listing is 

for energy recovery and not discard. 

Based on this categorical non-waste 

determination, facilities meeting the 

description of this determination and 

burning these materials as a fuel will 

not need to demonstrate that this NHSM 

meets the legitimacy criteria on a siteby-site basis. A discussion of relevant 

comments regarding the categorical nonwaste determination for pulp and paper 

sludges, as well as our rationale for 

making this determination, can be found 

in section III.D.5.a of this preamble. 

4. Rulemaking Petition Process for Other 

Categorical Non-Waste Determinations 

(40 CFR 241.4(b)) 

In today’s final rule, the agency is 

finalizing a rulemaking petition process 

that provides persons with an 

opportunity to submit a rulemaking 

petition to the Administrator, seeking a 

categorical determination for additional 

NHSMs to be listed in 40 CFR 241.4(a) 

as non-waste fuels. The process for 

submitting a rulemaking petition to the 

agency, as well as the factors a 

successful application must include, is 

listed in 40 CFR 241.4(b). A discussion 

of relevant comments regarding the 

petition process for the categorical 

listings, as well as our rationale for the 

categorical rulemaking petition process, 

can be found in section III.D.4 of this 

preamble. 

5. Streamlining of the 40 CFR 241.3(c) 

Non-Waste Determination Petition 

Process 

In today’s final rule, the agency is 

streamlining the non-waste 

determination provisions under 40 CFR 

241.3(c). The public participation 

process was streamlined to 

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24See 76 FR 15485. 

accommodate petitions that apply to 

multiple combustors. In particular, the 

regulations were adjusted to indicate 

that the appropriate office in the EPA 

headquarters may handle petitions that 

cross multiple regions. Furthermore, if a 

determination is made that the NHSM is 

a non-waste, the decision will be 

retroactive and apply on the date the 

petition was submitted. A discussion of 

relevant comments regarding the 

streamlining of the 40 CFR 241.3(c) nonwaste determination petition process, as 

well as our rationale for the 

streamlining changes made to the nonwaste determination process, can be 

found in section III.D.6 of this preamble. 

6. Revised Introductory Text for 40 CFR 

241.3(a) 

In today’s final rule, the agency has 

decided not to revise the introductory 

text of 40 CFR 241.3(a). In its December 

2011 proposed rule, the EPA considered 

revising this introductory text to state 

that NHSMs are ‘‘presumed to be’’ solid 

wastes, rather than ‘‘are’’ solid wastes. 

While the proposed change was not 

expected to be a substantive change to 

the rule, but merely a reflection of the 

record at the time, it did engender some 

confusion among commenters. Based on 

the comments received, we have 

decided not to issue revised 

introductory text 40 CFR 241.3(a) and, 

thus, this section will continue to read 

as codified in the March 2011 NHSM 

final rule. A discussion of relevant 

comments regarding the introductory 

text of 40 CFR 241.3(a), as well as our 

rationale for this decision, can be found 

in section III.D.7 of this preamble. 

D. Comments on the Proposed Rule and 

Rationale for Final Decisions 

In this section, the EPA addresses 

major comments the agency received 

regarding the targeted revisions that 

were proposed to certain part 241 

provisions in the December 23, 2011, 

proposal. In discussing the comments 

received on the proposal, we also 

provide the rationale for making the 

revisions that are finalized in today’s 

action. As previously discussed, the 

agency specifically stated that it would 

not address comments that go beyond 

the scope of this narrow RCRA 

rulemaking. 

1. Revised Definitions 

a. Clean Cellulosic Biomass 

The proposed rule suggested revising 

the March 2011 definition of ‘‘clean 

cellulosic biomass’’ to list additional 

examples of biomass materials that are 

appropriately included within this 

definition. These fuels are not 

secondary materials or solid wastes 

unless discarded. Clean biomass is 

‘‘biomass that does not contain 

contaminants at concentrations not 

normally associated with virgin biomass 

materials’’ (codified in 40 CFR 241.2). 

This regulatory revision would not 

change the agency’s intent under the 

March 2011 final rule, but would 

identify additional materials that are 

‘‘clean cellulosic biomass,’’ and, thus, 

would be a traditional fuel under these 

regulations. While the list of clean 

biomass materials is only illustrative 

and not exhaustive, it is now more 

comprehensive than the list that 

appeared in the definition included in 

the 2011 NHSM final rule. 

One of the materials within the 

definition is clean C&D wood. In light 

of some confusion in comments 

regarding C&D wood, the EPA is 

clarifying the meaning of the term in the 

definition of ‘‘clean cellulosic biomass.’’ 

Construction & demolition wood 

actually may be placed into different 

categories, depending upon its origin. In 

accordance with the traditional fuels 

definition in section 241.2, clean C&D 

wood could be combusted as a 

traditional fuel if it does not contain 

contaminants at concentrations not 

normally associated with virgin wood. 

However, the final NHSM rule also 

addressed C&D wood that may contain 

contaminated material.24 There is no 

need to repeat these discussions here, 

except to clarify what the final rule 

means. In general, contaminated C&D 

wood that has been processed to remove 

contaminants, such as lead-painted 

wood, treated wood containing 

contaminants, such as arsenic and 

chromium, metals and other non-wood 

materials, prior to burning, likely meets 

the processing and legitimacy criteria 

for contaminants, and thus can be 

combusted as a non-waste fuel (see 

further discussion in response to 

comments below). 

Comment: One commenter noted that 

the EPA’s specific inclusion of 

‘‘untreated wood pallets’’ implicitly 

accepts that small amounts of non-wood 

material inherent to the pallets, such as 

screws or plastic fasteners, do not 

render those materials solid waste under 

the rule, and de minimis amounts of 

non-biomass material would not require 

these types of materials to be burned in 

incinerators under the CISWI rule. 

Another commenter requested that 

the EPA reconsider use of the word 

‘‘untreated’’ when referring to wood 

pallets. The commenter argues that the 

EPA does not define the word 

‘‘untreated’’ and its use could create 

confusion. Rather, the commenter 

recommends that ‘‘untreated’’ be 

replaced with the word ‘‘clean,’’ which 

is an adjective used in the definition to 

distinguish other materials (e.g., ‘‘clean 

construction and demolition wood’’). 

Response: Wood pallets are 

refurbished or recycled for other uses by 

pallet recyclers. When the useful life of 

the pallet is finished, the recyclers 

typically remove the small amount of 

non-wood material inherent to pallets 

that would inhibit combustion, such as 

screws or plastic fasteners. The pallets 

are then ready for use as fuel, and the 

non-wood material would not impact 

whether the material can be burned in 

combustion units that meet the CAA 

section 112 emission standards. The 

agency is not aware of instances where 

the pallets are used as fuel directly by 

the original users and non-wood 

material is left remaining in the pallet. 

Such pallets would not be considered 

clean cellulosic biomass under the rule. 

With respect to the other comment, 

the EPA does not agree, that the term 

‘‘untreated’’ wood pallet be replaced 

with the term ‘‘clean’’ wood pallet. The 

term ‘‘clean’’ is defined in the 

traditional fuels definition as described 

above, and applies to all the materials 

listed in the definition of clean 

cellulosic biomass, which includes 

untreated wood pallets. It would be 

redundant to define ‘‘clean’’ biomass as 

including ‘‘clean’’ wood pallets. The 

point is that some wood pallets may 

contain treated wood, such as CCA 

treated wood, and inclusion of the term 

‘‘untreated’’ with wood pallet would 

help emphasize that such treated wood 

would not be considered ‘‘clean’’ under 

the definition of clean cellulosic 

biomass. 

Comment: Several commenters 

indicated that the definition of clean 

cellulosic biomass remains ambiguous 

because it continues to include the 

caveat that: ‘‘Clean biomass is biomass 

that does not contain contaminants at 

concentrations not normally associated 

with virgin biomass materials.’’ Thus, 

notwithstanding the EPA’s attempt at 

expanding the definition of clean 

cellulosic biomass, the commenters 

believed that this sentence should be 

removed because it perpetuates 

uncertainty. It is not clear what 

comparisons are permissible and what 

concentration levels are appropriate. 

The commenters also indicated that 

this sentence perpetuates the EPA’s 

erroneous interpretation of its authority 

under RCRA. A material does not 

become a waste when burned for energy 

recovery just because it may contain 

contaminants—prior to combustion— 

not normally associated with virgin 

biomass. It becomes a waste only if it is 

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25See, for example, 76 FR 15523–4: ‘‘If a nonhazardous secondary material contains 

contaminants that are not comparable to those 

found in traditional fuels, and those contaminants 

are related to pollutants that are of concern at solid 

waste combustion units, then it follows that discard 

is occurring. The contaminants in these cases could 

not be considered a normal part of a legitimate fuel 

and are being discarded, either through destruction 

in the combustion unit or through releases into the 

air. Units that burn such materials are therefore 

most appropriately regulated under the CAA 

section 129 standards for solid waste incinerators.’’ 

See also 76 FR 15485, which states: ‘‘[A]s we have 

noted previously, the criterion or test for 

determining whether a material is burned as a waste 

or a commodity fuel is the level of the contaminant 

in the secondary material itself—that is destruction 

of contaminants indicates a waste treatment activity 

rather than a commodity fuel.’’ 

26Eleven metal elements directly identified in 

CAA section 112(b) were also listed in the proposed 

definition to provide the regulated community with 

a complete list of elements that are considered 

‘‘contaminants’’ under the rule. 

combusted for the purpose of disposal, 

rather than for energy recovery. 

Response: The agency disagrees with 

the commenter that defining the term 

‘‘clean’’ leads to ambiguity in 

identifying which materials are clean 

cellulosic biomass. On the contrary, 

defining the term ‘‘clean’’ is meant to 

ensure that contaminated cellulosic 

material being burned, such as leadpainted wood or arsenic treated wood, 

does not introduce contaminants (as 

defined in 40 CFR 241.2) not normally 

associated with virgin biomass 

materials. 

The agency wishes to emphasize, 

however, that determinations that the 

cellulosic biomass used as a fuel or 

ingredient is clean, do not presuppose 

any testing of contaminant levels. 

Persons can use expert or process 

knowledge of the material to justify 

decisions regarding presence of 

contaminants. 

With respect to the comment that 

burning of contaminated material does 

not make it a waste, the agency has not 

reopened this issue for this rule and 

stands by its responses in the 

rulemaking record for the March 2011 

final rule.25

Comment: One commenter provided 

the example of whether treated seeds 

that contain additives are considered 

contaminants in virgin biomass. These 

additives may not be found in virgin 

seeds but are not harmful at the 

concentrations found in the seeds. The 

commenter questioned whether any 

concentration above ‘‘natural’’ 

(concentration levels found in virgin 

material), especially when combusted as 

fuel, would be prohibited and require 

additional waste regulation. 

Response: Seeds may be treated with 

pesticides and hormones to aid in 

germination. Such chemicals do not 

generally include contaminants as 

defined in section 241.2; therefore, such 

treated seeds would be considered clean 

cellulosic biomass. 

Comment: Several commenters 

indicated that, as part of the EPA’s 

changes in the definition of clean 

cellulosic biomass, it is proposing to 

consider treated or painted wood the 

same as ‘‘virgin’’ wood if it has lower 

than de minimis levels of 

contamination. While adoption of 

numerical values in the rule would 

require additional provisions for 

measurements and would require 

additional notice, the commenter 

believes that such clarity is important 

for successful implementation of the 

rule. Such limits would be applied to 

‘‘clean’’ C&D material, for instance, 

among other potential fuel types. The 

term de minimis is not defined 

numerically in the proposed rule and 

the commenters argue that without a 

specific numerical de minimis limit, 

sources would not have a clear 

understanding of whether they fall 

under the CISWI or hazardous waste 

incinerator rules. The commenter 

recommended that the EPA define and 

allow for public comment on the levels 

associated with the term de minimis 

and base the de minimis levels on 

contaminant levels found in typical 

‘‘virgin’’ wood. 

Response: Regarding the addition of a 

definition for de minimis amounts of 

contaminants remaining in processed 

wood, the agency does not believe it 

appropriate to identify specific 

concentration levels. Rather, the agency 

interprets de minimis as that term is 

commonly understood; i.e., insignificant 

or negligible amounts of contamination 

such as small wood sliver containing 

lead paint). 

As indicated above, there also appears 

to be confusion among commenters 

regarding two different categories of 

C&D wood—‘‘clean C&D wood’’ that is 

a traditional fuel, and C&D wood that 

has been processed to remove 

contaminants. Under the 2011 NHSM 

final rule, C&D wood that has been 

processed to remove contaminants, such 

as lead-painted wood, treated wood 

containing contaminants, such as 

arsenic and chromium, metals and other 

non-wood materials, prior to burning, 

likely meets the processing and 

legitimacy criteria for contaminants, and 

thus can be combusted as a non-waste 

fuel but would not be considered ‘‘clean 

C&D wood.’’ Such C&D wood may 

contain de minimis amounts of 

contaminants and other materials 

provided it meets the legitimacy criteria 

for contaminant levels. To meet the 

contaminant legitimacy criterion, 

concentration levels of contaminants in 

the processed C&D wood must be 

comparable to or less than the levels in 

the traditional fuel the unit was 

designed to burn, whether wood or 

another traditional fuel (see section 

III.D.2 for a discussion on contaminant 

comparisons). In contrast, ‘‘clean C&D 

wood’’ is a traditional fuel that does not 

require processing and meets the 

definition of ‘‘clean’’ (i.e., C&D wood 

that does not contain contaminants at 

concentrations not normally associated 

with virgin biomass (wood)). Thus, de 

minimis amounts of contaminants and 

other material appropriate for processed 

C&D wood would not be appropriate for 

clean wood that is a traditional fuel. 

Comment: One commenter argued 

that states should have discretion about 

how to determine appropriate fuel 

quality but it should be no less stringent 

than limits set by the EPA. There should 

be a distinction between de minimis 

levels of contamination in C&D wood 

and a fuel quality standard. 

Response: We do not necessarily 

disagree with the commenter. That is, as 

discussed in the final rule, part 241 does 

not preempt a state’s statutory or 

regulatory standards and states are free 

to establish fuel quality standards for 

C&D wood. However, we would also 

note that as solid waste is defined by the 

EPA under RCRA, such state standards 

would not necessarily impact the status 

of the material as it relates to which 

combustion units are subject to CAA 

section 129 (56 FR 15546). 

b. Contaminants 

The December 2011 rule proposed to 

clarify what constituents will be 

considered contaminants by making the 

definition of ‘‘contaminants’’ more 

specific. However, the proposal 

maintained the fundamental approach— 

and was intended to cover the same 

constituents—as the March 2011 final 

rule. 

The March 2011 final rule and the 

December 2011 proposed rule identified 

the same three ways a chemical can be 

labeled a contaminant. First, it may be 

one of the 187 HAP currently listed in 

CAA section 112(b); second, it may be 

one of the nine pollutants listed under 

CAA section 129(a)(4); and third, it may 

be one of a handful of chemicals whose 

combustion will result in the formation 

of listed CAA section 112(b) and section 

129(a)(4) pollutants (e.g., sulfur that will 

result in SO2). 

The definition proposed in December 

provided clarification by listing the 

constituents that belong to the third 

group.26 Specifically, the proposed 

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27For example, see 76 FR 15524–15525. 

revision replaced a potentially 

ambiguous reference to ‘‘any constituent 

that will result in emissions’’ with the 

four specific elements the agency 

intended to be considered as 

contaminants (chlorine, fluorine, 

nitrogen, and sulfur) based on their 

status as a precursor to air emissions. In 

all four cases, the CAA pollutant itself 

(e.g., SO2) is not likely to be present in 

the NHSM prior to combustion, and the 

only way to measure constituents prior 

to combustion ‘‘that will result in 

emissions’’ of that pollutant is to 

measure a known precursor (e.g., sulfur) 

instead. For each of the four precursor 

elements listed as contaminants in the 

proposal, the expected fate for the 

precursor during combustion is 

formation of the aforementioned 

pollutant and the precursor makes no 

substantive contribution to the 

material’s value as a fuel. For these 

reasons, the agency proposed to 

specifically identify chlorine, fluorine, 

nitrogen, and sulfur as contaminants in 

place of HCl, HF, NOX and SO2. By 

limiting the list of precursors 

considered contaminants to these four 

elements, the revised definition also 

made clear that the agency did not 

intend to include other elements present 

in contaminants (such as hydrogen and 

carbon) as contaminants themselves. 

The December 2011 proposed rule 

also removed from the definition of 

contaminants those pollutants in CAA 

sections 112(b) and 129(a)(4) that we do 

not expect to find in any NHSM. 

Specifically: 

• Chlorine gas, HCl, HF, NOX, and 

SO2 were removed from the definition 

because they are unlikely to be found in 

NHSMs prior to combustion and had 

been replaced by the elements chlorine, 

fluorine, nitrogen and sulfur as 

discussed above; 

• Fine mineral fibers were removed 

because they are releases from the 

manufacturing and processing (not 

combustion) of non-combustible rock, 

glass or slag into mineral fibers; 

• Particulate matter and coke oven 

emissions were removed because they 

are products of combustion unlikely to 

exist in NHSMs prior to combustion; 

• Cresol isomers m-cresol, o-cresol, 

and p-cresol were removed because the 

listed pollutant cresols/cresylic acid 

includes these three isomers; 

• Xylene isomers m-xylene, o-xylene, 

and p-xylene were removed because the 

listed pollutant xylenes includes these 

three isomers; and 

• Diazomethane, white phosphorus, 

and titanium tetrachloride were 

removed because their high reactivity 

makes their presence in NHSMs very 

unlikely. 

In addition, two phrases present in 

the March 2011 final rule 

‘‘contaminants’’ definition were not 

included in the December 2011 

proposed rule definition. First, the 

phrase concerning constituents ‘‘that 

will result in emissions of the air 

pollutants’’ was removed since the 

regulated community had expressed 

confusion that in determining whether 

or not a NHSM meets the contaminant 

legitimacy criterion, emissions from the 

combustion unit were to be evaluated. 

The EPA disagreed and directed readers 

to the language in sections 

241.3(d)(1)(iii) and 241.3(d)(2)(iv). 

These sections state that contaminant 

comparisons are based on the presence 

of contaminants in the NHSM (or 

products made from NHSMs in the case 

of ingredients), not the resulting 

emissions. The proposed revision also 

inserted the phrase ‘‘prior to 

combustion’’ into the contaminants 

definition to further emphasize that the 

NHSMs, not the emissions that result 

from NHSMs, are to be evaluated when 

conducting contaminant comparisons. 

The rationale for evaluating the NHSM, 

and not emissions, can be found in the 

record for the March 2011 final rule.27

The proposal merely added language to 

ensure the rule is consistent with the 

agency’s intent. 

The second phrase proposed to be 

removed from the March 2011 final rule 

definition was a reference to ‘‘those 

constituents that could generate 

products of incomplete combustion,’’ 

also referred to as PICs. This reference 

was removed from the definition 

because it was duplicative and 

potentially misleading. Specifically, this 

phrase was not necessary because all 

PICs that the agency considers air 

pollutants—including dioxins, 

dibenzofurans, PCBs and PAHs—are 

listed in CAA sections 112(b) or 

129(a)(4) and are thus already included 

in the ‘‘contaminants’’ definition. More 

importantly, the phrase was potentially 

misleading because PIC formation 

depends heavily on combustion 

conditions, such as air/fuel ratio and 

mixing. These conditions are controlled 

to limit emissions and neither these 

conditions nor emissions are the subject 

of this rule. The NSHM itself is the 

subject of this rule. Thus, the removal 

of both phrases clarified, but did not 

alter, the constituents subject to the 

contaminant legitimacy criterion. 

The EPA believes that comments have 

not changed the basis for listing specific 

precursors to air emissions as 

contaminants, nor have they changed 

the basis for either excluding specific 

constituents from the definition or 

removing the references to ‘‘that will 

result in emissions of the air pollutants’’ 

and ‘‘constituents that could generate 

products of incomplete combustion’’ 

from the definition. Thus, the EPA is 

adopting the reasoning from the 

proposal and revising the definition of 

contaminants to incorporate these 

concepts. 

The EPA has decided, however, to 

make several modifications to the 

regulatory language of the December 

2011 proposed rule based on comments 

received and information in the 

rulemaking record. First, in the final 

definition issued today, precursors will 

only be considered contaminants for 

NHSMs used as fuels; precursors will 

not be considered contaminants for 

NHSMs used as ingredients. 

Furthermore, precursors will not be 

considered contaminants if they do not 

form their corresponding pollutants. 

Also, opacity has been removed from 

the contaminants definition. Finally, the 

phrase ‘‘prior to combustion’’ has not 

been inserted into the contaminants 

definition, as had been proposed. 

Contaminants in NHSMs used as fuel in 

combustion units must still be evaluated 

prior to combustion, and persons must 

still evaluate the NHSM itself (not 

emissions), but the agency has 

determined that the topic of when to 

evaluate contaminants is more 

appropriate to address in the legitimacy 

criteria than in the contaminants 

definition. 

Additional reasoning for keeping the 

rule provisions as proposed, and for any 

modifications to the proposed language, 

are described in the following responses 

to comments. 

Comment: Several commenters stated 

that the definition of contaminants 

should focus on contaminants released 

as combusted emissions. One 

commenter argued that contaminants 

should be compared between emitted 

contaminants and emission standards. A 

second commenter reiterated previous 

comments that contaminant levels 

should be related to the air emissions 

and not the content of the material. For 

support, commenters cited that the EPA 

reversed its position in the proposal by 

using possible air emissions as the basis 

for establishing what contaminants need 

to be compared. 

Response: The EPA has previously 

stated that contaminant levels before 

and after combustion can be important 

indicators of legitimacy and it maintains 

the position from the March 2011 final 

rule that non-waste fuels must be 

similar in composition to traditional 

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28See 76 FR 15525. 

29 Id. 

30See March 16, 2012 Response from James R. 

Berlow, Director, Program Implementation and 

Information Division, EPA’s Office of Resource 

Conservation and Recovery to Fadi K. Mourad, DTE 

Energy Services, Inc. A copy of this response letter 

has been placed in the docket for today’s 

rulemaking and is also available at http:// 

www.epa.gov/epawaste/nonhaz/define/index.htm. 

fuels prior to combustion.28 Because 

combustion and emission control 

processes can destroy or remove 

contaminants, a comparison of 

emissions profiles alone only tells one 

how well the combustion unit is 

operating, not whether the NHSM is 

being used as a legitimate non-waste 

commodity fuel.29

The EPA disagrees with the comment 

that the agency reversed its position on 

the consideration of emissions in the 

proposal by including precursors to air 

emissions as contaminants. The agency 

notes that a difference exists between 

comparing ‘‘emissions’’ and comparing 

‘‘contaminants that will result in 

emissions,’’ the exact language used in 

the March 2011 final rule. The EPA has 

clarified what it intended by 

‘‘contaminants that will result in 

emissions’’ in today’s final action. This 

clarification involves the listing of 

specific precursors known to result in 

emissions of air pollutants when 

combusted; it also involves the removal 

of specific pollutants known not to be 

present in NHSMs. 

Comment: Two commenters 

expressed concern that the proposed 

definition of contaminants conflicted 

with the contaminant legitimacy 

criterion for NHSMs used as ingredients 

in combustion units. Commenters stated 

that both the definition of contaminants, 

as proposed, and the existing 

contaminant legitimacy criterion for 

ingredients were clear when read 

separately but were contradictory when 

taken together. The commenters 

encouraged the EPA to clarify the 

regulatory text. Specifically, the 

commenters noted that for ingredients, 

contaminants could not be evaluated 

prior to combustion and then used to 

compare products produced using 

NHSMs to products produced using 

traditional materials. 

Response: The EPA has decided not to 

include language from the December 

2011 proposed rule in the definition of 

contaminants that emphasized when 

NHSM contaminant levels are to be 

evaluated (i.e., before or after 

combustion). While the proposed 

additional language made clear that 

NHSMs used as a fuel were to be 

evaluated for contaminants ‘‘prior to 

combustion,’’ the agency agrees with the 

two commenters who argued that the 

proposed language conflicts with the 

contaminant legitimacy criterion for 

ingredients. The contaminant criterion 

for ingredients requires comparisons to 

be made between products produced 

with and without NHSMs, but until the 

products exist, they cannot be 

compared. 

As such, the agency has decided not 

to adopt the proposed additional 

language addressing when contaminants 

are to be evaluated in the definition of 

contaminants. The agency proposed 

similar language in the December 2011 

rule addressing this topic in the 

contaminant legitimacy criterion and 

the agency is adopting that language in 

today’s final rule. The agency has 

determined that the legitimacy criteria 

themselves (40 CFR 241.3(d)(1)(iii) for 

fuels and 40 CFR 241.3(d)(2)(iv) for 

ingredients) are more appropriate places 

to address this topic. 

The EPA has also decided to add 

language to the definition of 

contaminants clarifying that the 

specification of particular precursors to 

air emissions (i.e., chlorine, fluorine, 

nitrogen and sulfur) as contaminants 

does not apply to the contaminant 

legitimacy criterion for ingredients. As 

identified by the commenters, the 

contaminant criterion for ingredients 

requires comparisons to be made 

between products produced with and 

without NHSMs. Products can only be 

compared after combustion has 

occurred, at which point there will be 

no benefit to measuring levels of 

precursors. 

The agency also notes that it does not 

envision a situation where NHSMs 

containing chlorine, fluorine, nitrogen 

or sulfur would be used as ingredients 

in such a way that would emit higher 

levels of HCl, HF, NOX or SO2 than 

would be emitted using traditional 

ingredients without the material being 

considered a solid waste. In all cases, 

ingredients must provide a valuable 

contribution to the product being 

produced, and that product must itself 

be valuable, in order to not be 

considered a solid waste. For an 

ingredient to provide value, the agency 

expects the ingredient to remain in a 

product rather than be destroyed or 

released via emissions. This is a key 

reason why the contaminant legitimacy 

criterion for ingredients focuses on 

products (i.e., toxics along for the ride) 

rather than emissions. Furthermore, the 

legitimacy criteria for ingredients 

cannot be used to avoid the legitimacy 

criteria for fuels if the material is being 

used for both purposes. 

Comment: Several commenters 

questioned the rationale for including 

precursors to air emissions as 

‘‘contaminants’’ under the proposed 

revised definition. Some indicated that 

the concept is far removed from the true 

meaning of ‘‘discard,’’ with one 

comment stating that the EPA has no 

legal, rational or scientific basis for 

considering the presence of sulfur or 

nitrogen in NHSMs as evidence of intent 

to discard SO2 or NOX during 

combustion. To support this argument, 

the commenter first noted that the EPA 

has no record basis for assuming that 

the intent of the combustor is to discard 

the constituent, rather than to generate 

energy. Second, the commenter noted 

that whether or not a boiler has 

emissions of regulated air pollutants, 

such as SO2 or NOX when it combusts 

a precursor will depend, not on an 

intent to discard these pollutants, but on 

boiler operation and design. 

Two commenters also stated that the 

preamble discussion on precursors 

demonstrates how far removed the 

EPA’s rationale for this rulemaking is 

from the concept of discard. They noted 

that the EPA is requiring combustors to 

document and keep records regarding 

the fact that CO is not present in 

NHSMs, and, under CISWI, would 

identify the NHSM as waste if this 

documentation is not maintained. The 

commenters failed to see how this has 

anything to do with a determination that 

a material is a waste under RCRA. 

Response: The EPA disagrees with 

these comments. Precursors to 

emissions of identified air pollutants are 

important and appropriate to address as 

contaminants in NHSMs prior to 

combustion. It is also necessary to tailor 

the definition of contaminants to the 

realities of the combustion process, 

during which precursors present in 

NHSMs used a fuel—many of which are 

solid or liquid—are transformed into air 

pollutants. 

However, the agency agrees with 

those commenters who argued that the 

revised definition, as proposed, may be 

too broad with regard to precursors that 

may not form air pollutants in all cases. 

For example, if the combustion of 

nitrogen does not form NOX in a 

particular situation, the agency did not 

intend in its December 2011 proposed 

rule to consider nitrogen as a 

contaminant in that particular 

situation.30 The EPA noted in the 

proposed rule that chlorine, fluorine, 

nitrogen and sulfur will form pollutants 

of concern in most circumstances, but 

the agency does acknowledge that 

specific technologies and practices may 

prevent these transformations from 

happening in the first instance, 

particularly with regard to nitrogen (one 

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31See 76 FR 15524–15525. See also, 75 FR 31883. 

32See 76 FR 15469–15470. See also, 76 FR 15473. 

33See 76 FR 15525. 

example being the use of Low NOX

burners with Over-Fire Air). Thus, the 

contaminants definition issued in 

today’s final rule does not consider 

constituents that are normally 

precursors to CAA section 112(b) or 

129(a)(4) pollutants to be contaminants 

if a specific technology or practice 

prevents them from forming their 

corresponding pollutants. 

The definition codified in 40 CFR 

241.2 only includes chlorine, fluorine, 

nitrogen and sulfur as contaminants in 

cases where ‘‘combustion will result in 

the formation of hydrogen chloride 

(HCl), hydrogen fluoride (HF), nitrogen 

oxides (NOX), or sulfur dioxide (SO2).’’ 

When compared to the December 2011 

proposed rule, the only constituents no 

longer considered contaminants due to 

this modification are chlorine that will 

not form HCl during combustion, 

fluorine that will not form HF during 

combustion, nitrogen that will not form 

NOX during combustion and sulfur that 

will not form SO2 during combustion. 

This is consistent with the March 2011 

NHSM final rule, under which these 

constituents would not be contaminants 

when they would not ‘‘result in 

emissions’’ of CAA section 112(b) or 

section 129(a)(4) pollutants. 

Although the EPA is not currently 

aware of any technologies or practices 

that prevent chlorine, fluorine or sulfur 

in NHSMs from forming their associated 

pollutants during combustion (the EPA 

is aware of such examples with 

nitrogen), the agency considers it 

reasonable and appropriate to adopt the 

same language for all four precursors to 

allow for future technological advances 

preventing the transformation of these 

elements into pollutants during 

combustion. 

Comment: One commenter stated that 

the consideration of precursors to air 

emissions as contaminants could be 

used to make the most fundamental of 

all elements, hydrogen, a contaminant 

because it is present in nearly all 

regulated pollutants. The presence of 

hydrogen in a NHSM could then be 

considered evidence of intent to discard 

pollutants that contained hydrogen. 

Response: Under the proposed 

contaminants definition, only the 

specific precursor elements listed 

(chlorine, fluorine, nitrogen and sulfur) 

are considered contaminants. The EPA 

determined in the proposal, and adopts 

as its final decision today, that these are 

the only four precursors necessary to 

evaluate when comparing contaminants 

between NHSMs and traditional fuels. 

The agency specifically decided not to 

include hydrogen on this list. Whereas 

combustion of chlorine, fluorine, 

nitrogen and sulfur typically leads to 

the formation of CAA section 112(b) or 

129(a)(4) air pollutants, combustion of 

hydrogen typically leads to the 

formation of water vapor. 

Comment: Several commenters 

opposed the inclusion of precursors as 

contaminants on the ground that the 

formation of related pollutants depends 

more on boiler operation and design, 

process chemistry and feedstock 

characteristics than on the levels of 

precursors present in the NHSMs. 

Response: The EPA recognizes that 

unit design and operating conditions 

can impact the transformation of 

chlorine, fluorine, nitrogen and sulfur 

into air pollutants. Rather than viewing 

this as a reason to ignore the pollutants 

these elements commonly form, the 

agency views this as further evidence 

why precursor levels must be 

considered when determining which set 

of CAA standards—which in turn 

regulate unit operating conditions— 

should apply. 

Comment: Two commenters suggested 

that the EPA follow a different approach 

for defining contaminants and use a 

method similar to what the agency used 

for the used oil specification in 40 CFR 

279.11. In each case, the commenter 

suggested that for NHSMs, the 

definition of contaminants should be 

limited to sulfur, nitrogen, chlorine, Cd, 

Hg and lead because those are the 

elements Congress addressed in CAA 

section 129. This approach, they argued, 

would be similar to what the EPA did 

when developing the used oil 

specifications. The point the 

commenters wished the agency to draw 

from the used oil specification approach 

is that it addressed elemental species, as 

opposed to individual compounds. 

Using sulfur as an example, the 

commenters reasoned that it is the 

underlying presence of sulfur-bearing 

materials in the NHSMs, as opposed to 

individual sulfur-containing 

compounds on the section 112(b) list, 

which effects emissions of SO2. 

Response: The EPA disagrees with the 

approach outlined by the commenters 

and has issued a final definition of 

contaminants based on both the CAA 

section 112(b) and the CAA section 

129(a)(4) lists, as was proposed. We do 

agree with the commenters, however, 

that identifying precursors that will 

form certain CAA pollutants in the 

definition of contaminants is 

appropriate. The approach outlined by 

the commenters appears to be based on 

two premises that the EPA has 

previously considered and decided not 

to adopt. 

First, the commenters do not think the 

definition of contaminants should 

reference both the CAA section 112(b) 

and CAA section 129(a)(4) lists. The 

agency previously explained its 

decision to use both lists in the March 

2011 final rule and does not believe 

comments have offered any new 

information that would change the basis 

for this decision. The EPA previously 

discussed that both lists of constituents 

are appropriate because both lists are to 

be considered by the EPA when 

developing emission standards.31

Furthermore, the agency has previously 

explained that CAA section 129 

provides that the term ‘‘solid waste’’ 

shall have the meaning promulgated by 

the EPA under RCRA and that the EPA 

has the authority to interpret RCRA to 

decide whether NHSMs are solids 

wastes or not.32 The agency notes that 

it has carefully considered the CAA 

section 112(b) and 129(a)(4) lists of 

pollutants and removed those 

constituents that would not be 

appropriate to evaluate in NHSMs. 

Second, the commenters base their 

proposed approach to defining 

contaminants purely on emissions. The 

agency agrees that emissions may be a 

means of discard but contaminants that 

are destroyed by the combustion process 

or incorporated into products may not 

have emission standards established 

under CAA section 129. Combustion 

may still be a means of discard in these 

instances. Thus, a definition of 

contaminants based only on the CAA 

section 129 emissions standards only 

tells one how well the combustion unit 

is operating, not whether the NHSM is 

being used as a legitimate non-waste 

commodity.33

Comment: Several commenters 

addressed the specific constituents 

proposed to be removed from the 

definition of contaminants. In general, 

comments were supportive of the 

concept that constituents unlikely to be 

found in NHSMs prior to combustion or 

adequately measured elsewhere in the 

definition should be removed from the 

definition. 

Multiple commenters asked that CO 

also be removed from the definition 

because it is unlikely to be found in 

NHSMs. The same commenters asked 

that opacity be removed from the 

definition because it can only be 

measured in emissions and is not 

directly related to any one specific 

constituent in NHSMs. Particulate 

matter and coke oven emissions were 

removed, noted the commenters, 

because they are products of 

combustion unlikely to exist in NHSMs 

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34Neither Table 7 nor Table 8 in the December 

2011 proposed rule included opacity. See 76 FR 

80478–80480. 

35See 76 FR 80475. 

36The related tire provision at 241.4(a)(1) allows 

for tires that are off-specification or are removed 

from vehicles. 

37The scrap tire provision in the 2011 NHSM 

final rule is now removed and the section reserved 

in today’s final rule: ‘‘(b) The following nonhazardous secondary materials are not solid wastes 

when combusted: 

(2) The following non-hazardous secondary 

materials that have not been discarded and meet the 

legitimacy criteria specified in paragraph (d)(1) of 

this section when used in a combustion unit (by the 

generator or outside the control of the generator): 

(i) Scrap tires used in a combustion unit that are 

removed from vehicles and managed under the 

oversight of established tire collection programs.’’ 

prior to combustion, and the same can 

be said for CO and opacity. 

One commenter expressed concern 

that asbestos had been removed from 

the list due to the removal of ‘‘fine 

mineral fibers’’ as a contaminant. The 

commenter explained that asbestos is 

commonly found in construction and 

demolition debris and asbestos particles 

in smoke are deadly. Excluding fine 

mineral fibers from regulation explicitly 

ignores the possibility of such 

contamination in C&D debris, noted the 

commenter, and asbestos should be a 

regulated contaminant. 

Response: The EPA has issued a final 

rule containing the language removing 

constituents from the definition of 

contaminants as proposed, with one 

change. The agency has removed 

‘‘opacity’’ from the final definition of 

contaminants as well. Similar to PM and 

coke oven emissions, there is no 

practical way to measure opacity in 

NHSMs prior to combustion or in 

products made using NHSMs. In fact, 

the EPA did not intend for opacity to be 

included in the definition of 

contaminant under the previous 

definition. A visual property of an 

emissions stream, opacity is not even a 

constituent, let alone a constituent that 

can be measured in NHSMs prior to 

combustion or in products made using 

NHSMs. As such, removing it from the 

definition will provide clarity without 

effecting any practical change to the 

definition.34

The agency has not removed CO from 

the definition of contaminants because, 

contrary to comments that it is unlikely 

to be found in any NHSM, it is likely to 

be present in gaseous NHSMs and is not 

adequately measured elsewhere in the 

‘‘contaminants’’ definition. However, as 

we discuss in the December 2011 

proposed rule, CO is unlikely to be 

found in solid or liquid NHSMs and 

EPA expects that persons can use 

process knowledge to justify not testing 

for CO in these cases.35

The agency has removed the fine 

mineral fibers group from the definition 

of contaminants, as proposed, because 

they are not expected to be found in 

NHSMs. Fine mineral fibers, as 

regulated under CAA section 112(b) are 

releases from the manufacturing and 

processing of non-combustible rock, 

glass or slag into mineral fibers and are 

not produced during the combustion 

process. Asbestos, on the other hand, 

has been set apart from the fine mineral 

fibers group in CAA section 112(b), and 

thus, it is set apart in the NHSM rule. 

To be clear, asbestos is included in the 

definition of contaminants in today’s 

final rule and it would be a contaminant 

regardless of whether the fine mineral 

fibers group was removed or not. In 

summary, the following 12 CAA section 

112(b) and section 129(a)(4) pollutants 

have been removed from the definition 

of contaminants: HCl, Cl2, HF, NOX, 

SO2, fine mineral fibers, PM, coke oven 

emissions, opacity, diazomethane, white 

phosphorus and titanium tetrachloride. 

c. Established Tire Collection Programs 

The 40 CFR 241.2 definition for 

‘‘established tire collection program,’’ as 

established by the March 2011 

promulgation in the Federal Register, 

was as follows: ‘‘Established tire 

collection program means a 

comprehensive collection system that 

ensures scrap tires are not discarded 

and are handled as valuable 

commodities in accordance with section 

241.3(b)(2)(i) from the point of removal 

from the vehicle through arrival at the 

combustion facility.’’ 

In the December 2011, NHSM 

proposed rule, the EPA proposed to 

revise this definition (and the related 

criteria for non-waste tires now at 40 

CFR 241.4(a)(1)) in order to account for 

off-specification tires. The term ‘‘offspecification tires’’ is intended to also 

include ‘‘factory scraps.’’ The offspecification tires are not removed from 

vehicles and are handled under 

contractual arrangements which ensure 

they are not discarded. The definition 

was modified to include ‘‘contractual 

arrangement’’ to provide that not only 

‘‘collection systems,’’ but also 

contractual arrangements for tire 

collection would be appropriate. The 

requirement for the tires to be removed 

from the vehicle was eliminated 36 since 

it is not applicable to off-specification 

tires. The revised definition is sufficient 

to encompass the agency’s intent in 

describing these programs and 

continues to ensure that these scrap 

tires are not discarded and are handled 

as valuable commodities through arrival 

at the combustion facility. Further, the 

addition to the new categorical nonwaste provision at 40 CFR 241.4(a)(1) 

eliminated the need for the previous 

scrap tire provision at 40 CFR 

241.3(b)(2)(i),37 (which has been 

removed and reserved in today’s final 

rule) therefore, the reference to that 

provision was removed in the 

definition. The agency proposed to 

revise the definition as follows: 

‘‘Established tire collection program 

means a comprehensive collection 

system or contractual arrangement that 

ensures scrap tires are not discarded 

and are handled as valuable 

commodities through arrival at the 

combustion facility.’’ 

The definition in today’s final rule 

includes the revisions to the definition 

we proposed in December 2011. In 

addition, the agency is including in the 

definition ‘‘tires that were not 

abandoned and were received from the 

general public at collection program 

events.’’ This revision is being made 

based on comments received on the 

proposed rule as discussed below. 

Under today’s revised definition, 

established tire collection programs 

could also include a ‘‘contractual 

arrangement.’’ If, for example, the state 

is sponsoring special events where they 

take tires back from the general public, 

those tires would also be included. 

Thus, the definition in today’s final rule 

is ‘‘Established tire collection program 

means a comprehensive collection 

system or contractual arrangement that 

ensures scrap tires are not discarded 

and are handled as valuable 

commodities through arrival at the 

combustion facility. This can include 

tires that were not abandoned and were 

received from the general public at 

collection program events.’’ 

While the agency did receive 

comments on the specific proposed 

changes described above, a number of 

commenters rephrased or restated 

previous arguments which conclude 

that any tires burned for energy recovery 

are not wastes, even if previously 

discarded. Conversely, one commenter 

reiterated its previous arguments which 

conclude that all used tires are waste, 

even if burned for energy recovery. 

Today’s rule is responding only to the 

specific proposed revisions to the 

regulations and the requests for 

comment in the proposal. For the 

response to other issues, refer to the 

record for the 2011 NHSM final rule (76 

FR 15456). Many of the commenters 

who provided comments on tires 

intertwined the ‘‘established tire 

collection program’’ definition issues 

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with the related topic of the categorical 

non-waste provision for scrap tires. For 

a discussion of those comments, refer to 

the response to comments for the 

categorical non-waste provision for 

scrap tires (section III.D.3.a.). The EPA 

is not reopening its decision that these 

scrap tires are not wastes. That decision, 

however, justifies a categorical 

exclusion where there is not a need to 

make case-by-case determinations 

regarding discard in the first instance 

and the legitimacy criteria. 

Comment: Several commenters 

mentioned that, in some cases, the 

public individually takes tires to staterun tire collection program events. 

These are tires that the general public 

owns and were typically removed from 

their vehicle. These are not abandoned 

tires. These collection events, in some 

cases, are held by the combustor under 

the state’s environmental program 

oversight. In those cases, the combustors 

enter into agreements with local 

communities to hold these events 

during which local residents are 

allowed to bring tires to facilities to be 

recycled, including used as alternative 

fuels. The scope of tire collection 

programs also may allow the public to 

take used tires which they may have 

stored in their garages, or elsewhere on 

their property, directly to a combustion 

facility—in many cases a cement kiln. 

Under the EPA’s current definition of 

tire collection programs, the 

commenters said it is not clear whether 

these tires would qualify as those 

collected under an ‘‘established tire 

collection program.’’ Commenters 

generally agreed that these tires are not 

abandoned and should be utilized as 

non-waste fuels without processing. 

Response: The EPA agrees with the 

commenters that tires that have not been 

discarded and are collected directly 

from the public at tire collection events 

are intended to qualify for the 40 CFR 

241.4(a)(1) requirement to be ‘‘managed 

under the oversight of established tire 

collection programs.’’ The agency agrees 

that these tires are not abandoned and 

when collected under established tire 

collection program events, they are 

considered to be non-waste fuels, just as 

the other tires handled by established 

tire collection programs are non-waste. 

To make this point clear, the EPA has 

modified the regulatory language. Please 

refer to the Response to Comment 

document for more details on these 

collection events and the responses. 

2. Contaminant Legitimacy Criterion for 

NHSMs Used as Fuels 

Under the December 2011 proposed 

rule, revisions to the contaminant 

legitimacy criterion for NHSMs used as 

fuel provided details on how 

contaminant comparisons could be 

made in practice. The proposal 

maintained the fundamental approach 

of the March 2011 final rule, but the 

proposed criterion better reflected the 

EPA’s intent to allow certain flexibilities 

when making contaminant comparisons. 

First, the proposal replaced 

‘‘contaminants’’ with the phrase 

‘‘contaminants or groups of 

contaminants’’ to clarify that, when 

deciding how to compare contaminants 

between NHSMs and traditional fuels, 

persons do not have to make 

comparisons on a contaminant-bycontaminant basis in all cases. When 

technically reasonable, comparisons 

may be made on a group of 

contaminants-by-group of contaminants 

basis. 

The December 2011 rule also 

proposed to codify language from the 

preamble to the March 2011 final rule 

clarifying that when selecting which 

traditional fuel(s) a unit is designed to 

burn, persons are not limited to the 

traditional fuel the unit is currently 

permitted to burn. Persons may choose 

any traditional fuel the unit can burn or 

does burn, whether or not it is permitted 

to burn such fuel. 

In addition, the proposed regulations 

included text confirming that, when 

comparing contaminant levels between 

NHSMs and traditional fuels, persons 

are not limited to data from the specific 

traditional fuel being replaced. National 

surveys of traditional fuel contaminant 

levels are one example of another 

acceptable data source. Neither the 

March 2011 final rule nor the December 

2011 proposed rule required persons to 

compare contaminants in their NHSM to 

contaminants in the specific traditional 

fuel source they burn (or would 

otherwise burn). As an example, the 

proposal noted that persons who would 

otherwise burn coal may use any asburned coal available in coal markets in 

making a comparison between the 

contaminants in their NHSM and the 

contaminants in coal—they are not 

limited to coal from a specific coal 

supplier they have used in the past or 

currently use. 

Finally, the proposed regulations 

included text confirming that, when 

comparing contaminant levels between 

NHSMs and traditional fuels, persons 

are not limited to comparing average 

concentrations. Traditional fuel 

contaminant levels can vary 

considerably and the full range of 

contaminant values may be used. 

Two other issues arose prior to the 

December 2011 proposed rule that, 

while not leading to specific regulatory 

changes in the proposal, still merited a 

discussion in the proposal. The first 

issue was that contaminant legitimacy 

criterion determinations do not require 

testing contaminant levels, in either the 

NHSM or an appropriate traditional 

fuel. Persons can use expert or process 

knowledge to justify decisions to either 

rule out certain constituents or 

determine that the NHSM meets the 

contaminant legitimacy criterion. The 

second issue was that persons may use 

data from a group of similar traditional 

fuels for contaminant comparisons, 

provided the unit could burn each 

traditional fuel. The idea grows from the 

‘‘designed to burn’’ concept explained 

in the March 2011 final rule and 

codified in today’s final rule, and it 

allows a person with a unit that can or 

does burn similar traditional fuels (e.g., 

anthracite, lignite, bituminous and subbituminous coal) to group those 

traditional fuels when making 

contaminant comparisons. 

The EPA believes that comments have 

not changed the basis for making the 

decisions to expressly allow grouping of 

contaminants, to interpret ‘‘designed to 

burn’’ to mean can burn or does burn 

regardless of permit status, and to affirm 

that persons can use ranges and national 

surveys of traditional fuel data when 

making contaminant comparisons 

between NHSMs and traditional fuels. 

Comments have also not changed the 

agency’s basis for making the decisions 

that testing is not required and that 

persons can group similar traditional 

fuels for the purposes of contaminant 

comparisons. Thus, the EPA is adopting 

the reasoning from the proposal and 

revising the contaminant legitimacy 

criterion for NHSMs used as a fuel to 

incorporate these concepts. 

The EPA has decided, however, to 

make one modification to the proposed 

contaminant legitimacy criterion based 

on comments received and information 

in the rulemaking record. The final 

criterion issued today includes 

additional language clarifying the 

appropriate use of ranges when making 

contaminant comparisons between 

NHSMs and traditional fuels. To use the 

full range of contaminant values in 

traditional fuels, persons should also 

account for the variability in NHSM 

contaminant levels. 

Additional details and rationale for 

the proposed revisions concerning the 

grouping of contaminants, the meaning 

of designed to burn, and the use of 

ranges and traditional fuel data in 

making contaminant comparisons are 

discussed in section III.D.2.b, section 

III.D.2.c, and section III.D.2.d below. 

Additional reasoning for keeping the 

rule provisions as proposed and for any 

modifications to the proposed language 

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38See 75 FR 31870. 39See 75 FR 31871–31872. See also, 76 FR 

15524–15525. 40See 75 FR 31872. See also, 76 FR 15523. 41See 75 FR 31870. 

are described in the responses to 

comments included in these sections. 

a. General Comments on the Revised 

Contaminant Legitimacy Criterion 

The EPA is not responding to issues 

that the agency decided in the March 

2011 rule and has not reopened for 

comment. Specifically, the agency has 

previously discussed and did not solicit 

comments in this rule on why the 

concept of legitimacy is important in 

determining whether a secondary 

material is genuinely recycled or is, in 

fact, discarded.38 The agency has also 

previously discussed and did not solicit 

comments in this rule on why 

contaminant comparisons to traditional 

fuels are an appropriate and mandatory 

factor in determining legitimacy for 

NHSMs used as fuels in combustion 

units.39 The agency has also previously 

discussed and did not solicit comments 

in this rule on why the ‘‘comparable to 

or lower than’’ standard is more 

appropriate than the ‘‘not significantly 

higher than’’ standard.40 The agency has 

also previously discussed that the 

NHSM Rule differs from the DSW Rule 

in that it is tailored specifically for 

application to NHSMs used in 

combustion units.41

Comment: Industry commenters 

overwhelmingly supported the 

proposed revisions to the contaminant 

legitimacy criterion, stating that the 

revisions would help provide regulatory 

certainty and give the regulated 

community more confidence in their 

self-determinations. 

Environmental groups, on the other 

hand, expressed concern that the 

combination of flexibilities present in 

the proposed revisions to the 

contaminant legitimacy criterion will 

allow facilities to compare contaminant 

levels in C&D debris and other wood 

waste to the highest contaminant levels 

found in coal, even if the facility is not 

permitted to burn coal. They believed 

that this should not be permitted and 

argued that C&D wood should not 

contain contaminant levels higher than 

found on average in virgin biomass. 

State comments were mixed, with one 

commenter supporting the proposed 

revisions and another commenter 

expressing concern that the revisions 

would weaken the states’ permitting 

authorities and create an incentive for 

combustors to burn dirtier traditional 

fuels. 

Response: The EPA has decided to 

retain the concepts proposed to the 

contaminant legitimacy criterion 

because these changes more accurately 

reflect the EPA’s intent under the March 

2011 final rule. The agency maintains 

that these concepts are reasonable and 

provide a necessary degree of certainty 

for persons seeking to comply with the 

rule. This is explained in more detail in 

sections III.D.2.b (groups of 

contaminants), III.D.2.c (meaning of 

designed to burn), and III.D.2.d 

(allowable contaminant comparisons) of 

this preamble. 

At the same time, comments from 

both industry and environmental groups 

have highlighted, in the agency’s 

opinion, a need for additional clarity in 

the regulatory text on the appropriate 

use of ranges when making contaminant 

comparisons between NHSMs and 

traditional fuels. Accordingly, the EPA 

has made a minor adjustment to the 

criterion to ensure that ranges are not 

used inappropriately in contaminant 

comparisons (i.e., the highest traditional 

fuel contaminant values should not be 

compared to average NHSM 

contaminant values). See section 

III.D.2.d of this preamble for a more 

detailed description of this specific 

change to the contaminant legitimacy 

criterion. 

The agency disagrees with state 

concerns that the NHSM rule will 

weaken the states’ permitting 

authorities. State permitting authorities 

must still approve permit changes and 

this final rule does not affect discretion 

of the permitting authorities in acting on 

requests for permit modifications. The 

agency also disagrees with state 

concerns that the NHSM rule will create 

an incentive for combustors to burn 

dirtier traditional fuels. The EPA 

understands how restricting 

contaminant comparisons to traditional 

fuels the unit currently burns could 

provide an incentive for the facility to 

burn traditional fuel with high 

contaminant levels. When facilities do 

not actually have to burn that traditional 

fuel to make comparisons, however, that 

incentive is effectively removed. 

Comment: One commenter requested 

that the proposed revisions to the 

contaminant legitimacy criterion be 

added to each option for demonstrating 

that NHSMs are non-wastes when used 

in combustion units, whether it is the 

on-site documentation, the EPA petition 

process or the categorical non-waste 

determination process proposed in 40 

CFR 241.4. 

Response: Revisions to the 

contaminant legitimacy criterion 

codified today in 40 CFR 241.3(d)(1) 

apply to all options for demonstrating 

that a NHSM is not a solid waste when 

used as a fuel in a combustion unit. The 

revised legitimacy criterion is 

embedded in the self-implementing 

options outlined in 40 CFR 241.3(b)(1) 

for use within the control of the 

generator and 40 CFR 241.3(b)(4) for 

NHSMs that are processed and then 

used in a combustion unit. The revised 

legitimacy criterion is also embedded in 

the optional EPA petition process 

outlined in 40 CFR 241.3(c). The revised 

legitimacy criterion is also referenced as 

a factor to be considered in the 

categorical non-waste determination 

process outlined in 40 CFR 241.4. 

Comment: Several commenters 

expressed concern that the proposed 

revisions to the contaminant legitimacy 

criterion, although an improvement over 

the 2011 Final NHSM Rule, may not 

provide the regulated community with 

enough information to be confident in 

their compliance status. Two 

commenters noted that the EPA has 

overlooked the analytical complexities 

inherent in the contaminant legitimacy 

criterion and the many opportunities it 

creates for disagreement between 

facility operators and regional and state 

regulators. One of these commenters 

asked the EPA to both define the term 

‘comparable’ and clarify sampling and 

analytical methodologies to be used 

when measuring contaminant levels. 

Other commenters advised the EPA to 

increase predictability as much as 

possible by developing a disciplined 

process for making contaminant 

comparisons and providing real time 

transparency for such decisions. 

Similarly, two commenters expressed 

concern that even after a source makes 

a fuel determination, the EPA could take 

a different view of the NHSMs and 

conclude that they were solid wastes. 

The risk sources face is noncompliance 

with the CAA and these commenters 

contended that the issue is too critical 

for the EPA to leave the contaminant 

legitimacy criterion so vague. Over time, 

as the EPA develops a record for 

decisions (particularly comparable 

contaminant determinations), one of 

these commenters urged the EPA to 

establish a database and immediately 

post determinations for other sources to 

review. 

Other commenters supported the 

proposed revisions to the contaminant 

legitimacy criterion and indicated that 

they provided sufficient clarification. 

One commenter noted that changes to 

the language of the criterion and the 

additional clarification provided in the 

preamble to the December 2011 

proposed rule provide key additional 

detail on making contaminant 

comparisons and allow additional 

flexibility where appropriate. The same 

commenter urged the EPA to maintain 

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9146 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

42The EPA maintains a NHSM Web page with 

current information on contaminant levels in 

traditional fuels, examples of legitimacy 

determinations and other information at http:// 

www.epa.gov/epawaste/nonhaz/define/index. 

43Contaminant Concentrations in Traditional 

Fuels: Tables for Comparison, November 29, 2011, 

can be found at http://www.epa.gov/epawaste/ 

nonhaz/define/index. 

44See NHSM rule Web site http://www.epa.gov/ 

epawaste/nonhaz/define/index.htm. 

45See 75 FR 31870. 

46See 75 FR 31871. 

47See 76 FR 15524 and 15542. 

48See 76 FR 80481. 

49Area Source Boilers NESHAP, Major Source 

Boilers NESHAP, and Commercial and Industrial 

Solid Waste Incinerators NESHAP. 

50Major Source Boilers NESHAP and Commercial 

and Industrial Solid Waste Incinerators NESHAP. 

51Commercial and Industrial Solid Waste 

Incinerators: NESHAP. 

that flexibility if the agency develops 

additional guidance on making 

contaminant comparisons in the future. 

Response: The EPA has retained the 

approach included in the proposed rule 

that provides information on how 

contaminant comparisons can be made 

and the agency will continue to make its 

traditional fuel data and legitimacy 

determinations transparent through the 

EPA Web site.42

The agency recognizes the need for 

regulatory certainty, a need that has 

been addressed by revisions to the 

definition of contaminants and the 

contaminant legitimacy criterion in 

today’s final rule. Contaminants have 

been specifically listed, additional 

clarity on NHSMs/traditional fuel 

comparisons has been provided and 

several comparison methodologies have 

been provided in the preamble as 

examples that could be used by the 

regulated community. Comments from 

the regulated community have been 

supportive both of these changes and of 

the agency’s efforts to update traditional 

fuel data that can be used for 

contaminant comparisons.43 In 

addition, a number of interpretative 

letters have been written that address 

specific fact situations as presented by 

a specific facility and these letters have 

been posted on the EPA’s Web site.44

These letters serve as examples of 

acceptable ways to demonstrate 

legitimacy. 

The EPA must balance the need for 

regulatory certainty, however, with the 

need for flexibility, which many 

commenters also believe is important. 

As the agency has previously discussed, 

the legitimacy criteria must be flexible 

enough to account for future changes in 

commodities, technologies, markets and 

fuel prices.45 Previous comments have 

stressed the preference for a qualitative 

approach, and the agency has agreed, 

noting that numerical specifications 

may be impractical due to the 

multiplicity of fuels and ingredients.46

The agency has also previously 

discussed that a numerical definition of 

‘comparable’ would be impractical 

given differences in the typical 

concentration levels of various 

contaminants, choosing instead to offer 

several examples.47 While the agency 

will consider future guidance on 

contaminant comparisons, it has 

determined that no one approach is 

appropriate for every legitimacy 

determination given the variety of 

traditional fuels, NHSMs and 

combustion units that currently exist 

and will likely increase in the future. 

Comment: One commenter noted that 

both the March 2011 NHSM final rule 

and the proposal implicitly place the 

burden on the combustion facility to 

determine if a fuel derived from NHSMs 

meets the legitimacy criteria. In the 

utility industry, the commenter 

explained, it is common practice for 

utilities to rely on fuel marketers to 

establish and verify fuel quality, and the 

regulatory burden on utilities 

combusting such secondary materials as 

fuels could be reduced if the EPA 

clarified the circumstances under which 

a facility would be entitled to rely on 

the fuel quality representations of its 

suppliers. The commenter suggested 

that the EPA clarify that a utility may 

rely in good faith on the representations 

of its suppliers that NHSMs meet the 

codified legitimacy criteria, or, 

alternatively, that utilities be required 

only to periodically test the quality of 

NHSM-derived fuels obtained from 

third parties to rely on their suppliers’ 

representations. 

Response: The EPA notes that while 

fuel suppliers may provide their 

customers with documentation 

supporting a legitimacy determination, 

persons who burn NHSMs are 

ultimately responsible for the materials 

burned at their units. As stated in the 

proposed rule, however, the agency 

adopts as its decision for this final rule 

that initial assessments would not need 

to be repeated as long as the facility 

continues to operate in the same manner 

and use the same type of NHSM as 

when the original assessment was 

made.48

b. Grouping of Contaminants 

The December 2011 proposed revision 

to the contaminant legitimacy criterion 

for NHSMs used as a fuel began with the 

following sentence: ‘‘The non-hazardous 

secondary material must contain 

contaminants or groups of contaminants 

at levels comparable in concentration to 

or lower than those in traditional fuel(s) 

which the combustion unit is designed 

to burn.’’ The phrase ‘or groups of 

contaminants’ was not present in the 

language from the March 2011 NHSM 

Final Rule but was included in the 

December 2011 NHSM Proposed Rule to 

clarify that groups of contaminants 

could be evaluated in determining 

whether a NHSM meets the contaminant 

legitimacy criterion. 

In particular, the proposed rule noted 

that groups of contaminants in NHSMs 

could be compared to similar groups in 

traditional fuels where the grouped 

contaminants shared physical and 

chemical properties that influence their 

behavior in the combustion unit prior to 

the point where emissions occur. 

Volatility, the presence of specific 

elements and compound structure were 

three such properties identified in the 

proposal and one approach to grouping 

contaminants was shown that included 

groups for TOX, nitrogenated HAP, 

VOCs, SVOCs, dioxins and furans, 

PCBs, PAHs and radionuclides. The 

agency also noted that persons may 

consider other groupings that they can 

show are technically reasonable. 

Grouping of contaminants is a 

standard practice often employed by the 

agency as it develops regulations. In 

fact, the monitoring standards included 

in the CAA sections 112 and 129 

regulations also utilize the grouping 

concept and they apply to the same 

combustion units impacted by the 

NHSM rule (i.e., industrial, commercial 

and institutional boilers and process 

heaters and CISWI units). For example, 

• Volatile hydrocarbons and semivolatile hydrocarbons can both be 

expected to result from incomplete 

combustion; therefore, the emission 

standards promulgated under the CAA 

regulations are grouped into one 

category: CO.49

• Halogenated organics are expected 

to contribute to emissions of dioxin and 

acid gases (HCl and HF); therefore, the 

emission standards promulgated under 

the CAA are grouped into two 

categories: D/F and HCl.50

• Nitrogenated compounds are 

expected to contribute to emissions of 

NOX; therefore, the emission standards 

promulgated under the CAA are 

grouped into one category: NOX.51

In addition, a number of the 

seemingly ‘‘individual’’ pollutants listed 

in sections 112 and 129 of the CAA are 

actually classes of structurally-related 

compounds (e.g, PCBs, POM, D/F, 

cyanide compounds, cresols, glycol 

ethers, radionuclides, xylenes, antimony 

compounds, arsenic compounds, 

beryllium compounds and cadmium 

compounds). 

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52See 76 FR 80478, Tables 7 and 8. 

53See 76 FR 80477. 

54EPA. 2001. ‘‘Risk Burn Guidance for Hazardous 

Waste Combustion Facilities.’’ EPA530–R–01–001. 

July. 

55Clarke, L.B. and L.L. Sloss, 1992. ‘‘Trace 

Elements—Emissions from Coal Combustion and 

Gasification.’’ IEACR/49. IEA Coal Research, 

London. July. 

56Contaminant Concentrations in Traditional 

Fuels: Tables for Comparison, November 29, 2011 

can be found at http://www.epa.gov/epawaste/ 

nonhaz/define/index. EPA intends to update this 

document as additional data becomes available, and 

if persons have data measuring traditional fuels for 

groups of VOCs, or for other contaminant groups, 

they are encouraged to provide the agency with 

such data. 

All comments discussing the agency’s 

proposal to expressly allow the 

grouping of contaminants supported the 

agency’s position. Thus, the EPA is 

adopting the language from the proposal 

and revising the contaminant legitimacy 

criterion for NHSM used as a fuel to 

allow contaminants to be compared on 

a contaminant-by-contaminant basis or, 

where reasonable, on a group of 

contaminants-by-group of contaminants 

basis. Any additional reasoning for 

keeping the revision as proposed, 

without modification, is described in 

the responses to comments below. 

Comment: In general, comments 

overwhelmingly supported the ability to 

group contaminants when making 

contaminant comparisons in accordance 

with the legitimacy criteria. 

Commenters stated that codification of 

this concept would provide regulatory 

certainty and allow for more meaningful 

comparisons, similar to the manner in 

which the EPA measures emissions at 

combustion units. Commenters noted 

that the ability to group contaminants 

will facilitate compliance because most 

existing test methods, including the 

EPA methods, call for the grouping of 

analytes. Commenters believed that the 

grouping concept is an appropriate 

mechanism to recognize the variability 

in contaminant levels inherent in fuels. 

Commenters also appreciated the 

examples of appropriate contaminant 

groups provided in the proposed rule 

along with the ability to compare other 

technically reasonable groups (76 FR 

80477–80480). 

Two commenters stated that each 

mention of the word ‘‘contaminants’’ 

should be changed to ‘‘contaminants or 

groups of contaminants’’ in the 

regulatory text to further clarify that a 

comparison to groups of contaminants is 

intended. 

Response: The EPA has retained the 

language specifically allowing grouping 

in the contaminant legitimacy criterion 

for NHSMs used as a fuel. The EPA 

adopts the reasoning in the December 

2011 rule as its final reasoning, as 

further supported with reasoning 

discussed in the comment responses 

below. While the EPA has retained the 

language allowing the grouping of 

contaminants, the agency does not 

consider it necessary to change every 

instance of ‘‘contaminant levels’’ and 

‘‘contaminants’’ to ‘‘contaminants or 

groups of contaminants’’ in order to 

make it sufficiently clear that 

contaminant grouping is allowed. The 

agency also notes that not all 

contaminants are necessarily intended 

to be grouped, including individual 

elemental contaminants, asbestos, CO 

and phosphine.52

Comment: The ability to group metal 

contaminants was suggested by several 

commenters. One commenter held that 

all 11 metals should be specifically 

included as one group. Another 

commenter noted that with the 

exception of Hg, all metals should be 

grouped. Yet another commenter 

suggested that metals could be grouped 

into a volatile metals group and a nonvolatile metals group. 

Response: First, we would note that 

the agency is not limiting groups to the 

specific approach suggested in the 

proposed rule. The tables in the 

proposed rule suggest, but do not limit 

persons to, an approach, including 

groups for TOX, nitrogenated HAPs, 

VOCs, SVOCs, dioxins/furans, PCBs, 

PAHs and radionuclides, with other 

contaminants left to be evaluated on an 

individual contaminant-by-contaminant 

basis. Flexibility exists for persons to 

consider other appropriate groups that 

they can show are technically 

reasonable, with additional text in the 

proposal stating that other groups 

should share physical and chemical 

properties that influence behavior in the 

combustion unit prior to the point 

where emissions occur. Volatility, the 

presence of specific elements and 

compound structure are three such 

properties.53

However, we do not consider the 

grouping of total metals to be 

appropriate. Specifically, metals vary 

across all three parameters—volatility, 

the presence of specific elements and 

compound structure—that were 

discussed as appropriate to consider 

when constructing contaminant groups. 

First, many factors influence metal 

volatility in combustion units, and to 

the extent that trends in metal volatility 

have been recognized, a wide disparity 

exists between metals. Mercury, as one 

commenter noted, is highly volatile, 

more so than any other metals listed in 

the contaminants definition. Metals can 

be grouped into volatile, semi-volatile 

and low-volatile categories, but it is 

important to note that these distinctions 

can vary based on design differences in 

combustion units, operating 

temperatures, the physical form and 

species of the metal and the presence of 

chlorine.54 55 Second, each metal clearly 

contains different elements. Finally, 

each metal is already a group of any 

compound containing the particular 

element, encompassing a wide array of 

compound structures. In the absence of 

other suggested grouping criteria or 

information, the EPA does not consider 

total metals to be an appropriate group. 

Comment: One commenter provided a 

numerical example of VOC contaminant 

levels in fuel oils to illustrate the 

importance of grouping. The commenter 

cited the traditional fuel tables provided 

on the EPA Web site, stating that 

toluene and xylenes are present in fuel 

oils at concentrations up to 380 ppm 

and 3,100 ppm, respectively. If a NHSM 

had the concentrations reversed, 

explained the commenter (380 ppm 

xylene and 3,100 ppm toluene), the 

ability to group VOCs would then allow 

the NHSM to meet the contaminant 

legitimacy criterion. The commenter 

reasoned that this is appropriate 

because both toluene and xylenes are 

beneficial components of fuel. 

Response: The EPA disagrees with 

this interpretation of the grouping 

concept. Unless concentration data for a 

group of contaminants (e.g., VOCs) 

come from the same fuel source, adding 

together the concentrations of 

individual constituents (e.g., toluene 

and xylene) within that group may yield 

a total concentration beyond what 

would be considered a normal part of a 

legitimate fuel. Using the example cited 

by the commenters, some fuel oils have 

been found to have up to 380 ppm 

toluene and other fuel oils have been 

found to have up to 3,100 ppm xylene. 

Because the toluene and xylene 

concentrations were taken from 

different fuel oils, however, this does 

not prove that a single fuel oil in 

existence actually has VOC levels as 

high as 3,480 ppm (380 + 3,100). 

The agency notes that VOC levels 

higher than 3,480 ppm, have been found 

in fuel oil—concentrations of one VOC 

alone (hexane) have been found as high 

as 10,000 ppm—and the point of this 

discussion is to clarify a methodology 

rather than a number for acceptable 

VOC levels in NHSMs.56

We would also note that while the 

agency considers VOCs to be an 

appropriate contaminant group to use 

when making contaminant comparisons, 

it does not base that decision on 

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57See 76 FR 15542. 

58EPA, Office of Air Quality Planning and 

Standards (OAQPS), Emissions Database for Boilers 

and Process Heaters Containing Stack Test, CEM & 

Fuel Analysis Data Reported Under ICR No. 2286.01 

and ICR No. 2286.03 (Version 7). December 2011. 

http://www.epa.gov/ttn/atw/boiler/boilerpg.html#

TECH. 

59The fuel analysis information in this OAQPS 

database is one example of a ‘‘national survey’’ of 

traditional fuel information, as referenced in the 

final contaminant legitimacy criterion issued today 

at § 241.3(d)(1)(iii). 

60EPA has determined that an oil group should 

not include unrefined crude oil or gasoline, as 

neither is typically burned in combustion units 

subject to the CAA sections 112 or 129 standards. 

whether or not toluene, xylenes and 

other VOCs are ‘‘beneficial components 

of fuel.’’ The decision that toluene, 

xylene and other VOCs, which the 

agency notes are pollutants listed in 

CAA section 112(b), are an appropriate 

group is based on the fact that they 

share similar physical and chemical 

properties that influence their behavior 

in the combustion unit prior to the point 

where emissions occur. 

c. Meaning of Designed to Burn 

The December 2011 proposed revision 

to the contaminant legitimacy criterion 

for NHSMs used as a fuel included the 

following statement: ‘‘In determining 

which traditional fuel(s) a unit is 

designed to burn, persons can choose a 

traditional fuel that can be or is burned 

in the particular type of boiler, whether 

or not the combustion unit is permitted 

to burn that traditional fuel.’’ The idea 

that ‘‘designed to burn’’ means ‘‘can 

burn or does burn’’ was included in 

preamble text to the March 2011 final 

rule. The December 2011 rule proposed 

to include this concept, which is only 

applied under the NHSM rule to aid in 

the selection of appropriate traditional 

fuel(s) for contaminant comparisons, in 

regulatory language. 

The March 2011 final rule explained 

that in determining which traditional 

fuel(s) the owner or operator of the 

boiler unit would make a comparison to 

with respect to contaminant levels, the 

agency would allow any traditional 

fuel(s) that can be or is burned in the 

particular type of boiler. The agency 

reasoned that this approach was the 

most appropriate since the NHSM 

would be replacing the use of particular 

type(s) of fuel that could otherwise be 

burned.57

The December 2011 proposal further 

explained that contaminants are 

compared between NHSMs and 

traditional fuels to assist in making a 

determination whether or not the NHSM 

is being discarded when combusted, not 

to regulate which traditional fuel a 

combustor should choose to burn. For 

the purposes of making a discard 

determination, the proposal reasoned 

that differentiating between ‘‘can burn’’ 

and ‘‘does burn’’ was not relevant. 

The agency did note in the proposed 

rule, however, that for a unit to be able 

to burn a traditional fuel, it would need 

an appropriate feed mechanism (e.g., a 

way to load solid fuel of a particular 

size into the unit) and the ability to 

adjust physical parameters to ensure 

spatial mixing and flame stability per 

unit specifications. 

Because most combustion units can 

burn different—but related—traditional 

fuels, the agency discussed in the 

proposal that broad groups of similar 

traditional fuels may be used when 

comparing contaminants. The most 

common traditional fuel categories 

burned at major source boilers are coal, 

wood, oil and natural gas, as evidenced 

by data submitted to the EPA’s 

OAQPS.58 59

To further clarify the impact of the 

proposed ‘‘designed to burn’’ language 

on contaminant comparisons, potential 

categories for coal, wood and oil were 

further described in the proposal. A coal 

group was proposed that could include 

data on anthracite, lignite, bituminous 

and sub-bituminous coal. A wood or 

biomass group was proposed that could 

include data on unadulterated lumber, 

timber, bark, biomass and hogged fuel. 

An oil group was proposed that could 

include data on fuel oils 1–6, diesel 

fuel, kerosene and other petroleum 

based oils.60 In cases where a unit can 

burn traditional fuels from several 

categories, such as a boiler that can burn 

coal or biomass, the proposal noted that 

contaminant comparisons could be 

made using data from either fuel 

category. 

The ability to compare contaminants 

in a NHSM, under the NHSM rule, to 

contaminants in any traditional fuel that 

could be burned does not change the 

fact that once burning occurs, emissions 

standards are determined under the 

Boiler MACT or CISWI rule by the 

particular fuel (or fuel blend) that is 

burned. Whether each rule focuses on 

what ‘could be burned’ or on what ‘is 

burned’ is determined by the rule’s 

purpose and the order in which 

decisions must be made. Together, these 

factors explain why the NHSM, Boiler 

MACT, and CISWI rules take different 

approaches to account for individual 

combustion units that burn multiple 

fuels. 

Specifically, the NHSM rule must first 

determine which NHSMs can be burned 

in CAA section 112 units (i.e., boilers) 

and which can only be burned in CAA 

section 129 units (i.e., incinerators). 

When making such a waste or nonwaste determination, the NHSM rule 

cannot always predict what fuel would 

otherwise be burned (multiple options 

may exist). Accordingly, the rule allows 

contaminant comparisons to be made to 

any traditional fuel the unit could burn. 

The Boiler MACT or CISWI rule must 

then determine how to regulate 

emissions from the unit, by which point 

it is clear what fuel is actually being 

burned. Accordingly, these rules can 

and do establish subcategories of units, 

each with different emissions standards. 

The EPA has considered the 

comments received, as explained below, 

but has not changed the basis for its 

interpretation of the ‘‘designed to burn’’ 

concept. Thus, the EPA is adopting the 

language from the proposal and revising 

the contaminant legitimacy criterion for 

NHSMs used as a fuel to allow persons 

making contaminant comparisons to 

choose a traditional fuel that can be or 

is burned in the particular type of 

boiler, whether or not the combustion 

unit is permitted to burn that traditional 

fuel. Any additional reasoning for 

keeping the revision as proposed, 

without modification, is described in 

the responses to comments below. 

Comment: Industry commenters 

generally supported the agency’s 

proposal to codify the previously stated 

meaning of ‘‘designed to burn’’ within 

the contaminant legitimacy criterion for 

NSHMs used as fuels. These 

commenters welcomed the regulatory 

certainty provided by the revision and 

described it as a practical and 

appropriate recognition that some units 

can burn multiple traditional fuels. 

Environmental groups, on the other 

hand, expressed concern that the 

proposed definition of designed to burn 

would allow contaminants in C&D wood 

to be compared to those in coal instead 

of virgin wood. 

One state commenter also expressed 

concern that allowing comparisons to 

any fuel the unit could burn, including 

fuels they are not permitted to burn, 

would weaken the states’ permitting 

authorities and create an incentive for 

combustors to burn dirtier traditional 

fuels so that they could compare 

NHSMs to fuels with higher 

contaminant levels. An industry 

commenter also mentioned that such an 

approach would reward facilities that 

burn dirtier fuel and suggested that the 

agency remove the entire ‘‘designed to 

burn’’ concept from the rule. 

Response: Based on a review of the 

comments, the EPA has retained the 

proposed revision to the contaminant 

legitimacy criterion for NHSMs used as 

fuels clarifying that, for the purpose of 

determining traditional fuel(s) to which 

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61See 76 FR 80481. 

62See 76 FR 15523. 

a NHSM may be compared, the meaning 

of ‘‘designed to burn’’ may be broadly 

interpreted to include any traditional 

fuel that could be burned, regardless of 

facility permit status. The agency 

disagrees that this interpretation of 

‘‘designed to burn’’ would incentivize 

the burning of dirtier fuels or weaken 

the states’ permitting authorities. 

The EPA finds that allowing 

combustors to compare NHSMs to any 

traditional fuel a unit can or does burn 

is both practical and appropriate under 

the statutory definition of solid waste. 

Although not all combustion units can 

burn multiple traditional fuels, some 

units can and, indeed, do rely on 

different fuel types at different times 

based on availability of fuel supplies, 

market conditions, power demands and 

other factors. Under these 

circumstances, it would be arbitrary to 

restrict the combustion for energy 

recovery of NHSMs with contaminant 

levels comparable to or lower than that 

of one traditional fuel the unit could 

choose to burn solely because 

contaminant levels are higher than that 

of a second traditional fuel the unit 

could also choose to burn if fuel 

supplies, market conditions, power 

demands, or other factors change. Such 

an approach would be impracticable 

and not consistent with the agency’s 

intent. It would also be inconsistent 

with the concept of discard, since a 

facility burning a NHSM with the same 

contaminants as another fuel it could 

also be burning should not be 

considered to discard that NHSM based 

on its contaminant levels. 

The agency has also determined that 

restricting comparisons to traditional 

fuels the unit is permitted to burn is 

unnecessary. The fact that a facility is 

not currently permitted to burn a 

particular traditional fuel does not mean 

it could not be permitted to burn that 

traditional fuel in the future. For this 

reason, we do not believe it is 

reasonable to limit the comparison to 

permitted traditional fuels. 

Furthermore, such a restriction could 

have the unintended consequence of 

combustion facilities across the country 

seeking permit modifications solely to 

facilitate contaminant comparisons for 

this rule. State permitting authorities 

must still approve permit changes and 

this final rule does not affect the 

discretion of the permitting authorities 

in acting on requests for permit 

modifications. 

In addition, the EPA has determined 

that restricting contaminant 

comparisons to traditional fuels the unit 

currently burns could provide an 

incentive for the facility to burn 

traditional fuel with high contaminant 

levels. When facilities do not actually 

have to burn that traditional fuel to 

make comparisons, that incentive is 

effectively removed. 

Comment: One commenter asked the 

agency to specifically acknowledge that 

certain categories of boilers are designed 

to burn a variety of fuels, noting that 

stoker boilers, fluidized bed combustors 

and boilers with suspension burners, in 

particular, should be on such a list. 

Response: The agency has decided not 

to specifically list which combustion 

units are designed to burn which fuels 

for two reasons. First, the owner or 

operator of a combustion unit has a 

better understanding than the agency 

does of what that particular unit is 

designed to burn. Second, the agency is 

concerned that creating such a list will 

limit the flexibility of combustors with 

other types of units. 

Comment: One commenter noted that 

if the EPA considers it inappropriate to 

compare liquid fuels to solid fuels, the 

agency offers no justification for its 

position. The commenter argued that 

liquid to solid comparisons should be 

allowed because most cement kilns and 

many other industrial furnaces have the 

capacity to burn either solid or liquid 

fuels. The commenter described the 

December 2011 proposed rule as 

ambiguous with regard to this issue and 

recommended that if a combustion unit 

is designed to burn both a liquid fuel 

and a solid fuel, then the liquid to solid 

comparison should be ‘‘appropriate.’’ 

Response: EPA agrees with the 

commenter that if a unit can burn both 

a liquid traditional fuel and a solid 

traditional fuel, then comparison of an 

NHSM to either fuel would be 

appropriate. The revised contaminant 

legitimacy criterion clarifies how the 

‘‘designed to burn’’ concept may be 

interpreted for the purposes of 

determining traditional fuel(s) to which 

a NHSM may be compared, and the 

Agency has determined that this 

revision is sufficient to allow 

appropriate comparisons to be made 

between solid NHSMs and liquid 

traditional fuels, and vice versa. The 

agency does not expect these 

circumstances to hold true for all 

combustion units, however, and 

reiterates that this would only be 

appropriate when the unit can in fact 

burn multiple traditional fuels used to 

make such comparisons. 

Comment: Several industry 

commenters addressed the topic of what 

it means to be able to burn a traditional 

fuel in a combustion unit. The preamble 

to the recent proposed rule noted that 

combustion units would need an 

appropriate feed mechanism, as well as 

the ability to ensure the fuel is well 

mixed and keep flame temperatures 

within unit specifications, to be able to 

burn a traditional fuel.61 Two 

commenters opposed the agency’s 

interpretation of what it means to be 

able to burn a traditional fuel in a 

combustion unit, stating that the agency 

provides no explanation of why feed 

mechanisms are relevant to whether or 

not a unit can burn a particular fuel. 

Both commenters also noted that when 

NHSMs are used as a fuel in combustion 

units, the focus on what a unit is 

‘‘designed to burn’’ in the first place is 

irrelevant to whether discard is 

occurring. Another commenter 

explained that the same exact material 

could then be a solid waste in one case 

and a fuel in another case, depending on 

who is using the material. 

A third commenter supported the 

agency’s interpretation of what ‘can 

burn’ means, stating that the fate and 

emissions of a contaminant, whether it 

is contained in a traditional fuel or a 

material being considered for 

legitimacy, are as dependent on the 

design of the combustion unit as they 

are on the fuel matrix. The commenter 

explained further that units should be 

considered able to burn several types of 

fuels as long as each type is within the 

design criteria of the feed system, the 

combustion chamber and any 

downstream pollution control device. 

Response: The EPA disagrees with 

those commenters questioning the 

relevance of what fuels combustion 

units are designed to burn in the context 

of the legitimacy criteria. If a NHSM 

does not contain contaminants at levels 

that are comparable to or lower than 

those found in any traditional fuel that 

a combustion unit could burn, then it 

follows that discard could be occurring 

if the NHSM were combusted. Whether 

contaminants in these cases would be 

destroyed or discarded through releases 

to the air, they could not be considered 

a normal part of a legitimate fuel and 

the NHSM would be considered a solid 

waste when used as a fuel in that 

combustion unit.62

The reason we analyze what a unit is 

designed to burn is to decide the 

traditional fuel(s) to which 

contaminants should be compared. This 

comparison is then used as an aid to 

decide whether the NHSM is being 

legitimately used as a fuel or whether 

excess contaminants show that the 

burning is waste treatment. If a facility 

compared contaminants to a traditional 

fuel it cannot burn and that fuel is 

highly contaminated, a facility would 

then be able to burn excessive levels of 

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9150 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

63Off-specification used oil can only be burned 

in the following types of units: (1) Industrial 

furnaces, as defined in 40 CFR 260.10; (2) the 

following boilers, as defined in 40 CFR 260.10— 

industrial boilers located on the site of a facility 

engaged in a manufacturing process where 

substances are transformed into new products, 

including the component parts of products, by 

mechanical or chemical processes, utility boilers 

used to produce electric power, steam, heated or 

cooled air, or other gases or fluids for sale, and used 

oil fired space heaters provided that the burner 

meets the provisions of 40 CFR 279.23; and (3) 

hazardous waste incinerators subject to regulation 

under subpart O of 40 CFR parts 264 or 265. 

waste components in NHSMs as a 

means of discard. Regardless of any fuel 

value in the material, it would be a 

waste. 

Once this concept is established, 

certain factors are relevant to how we 

decide what a facility is designed to 

burn. The ability to burn a fuel in a 

combustion unit does have a basic set of 

requirements, the most basic of which is 

being able to get the material into the 

combustion unit. The agency reaffirms 

in today’s final rule its interpretation 

from the proposal that to be able to burn 

NHSMs, a combustion unit should also 

be able to ensure the material is well 

mixed and maintain temperatures 

within unit specifications. Without 

these basic limits, there would be no 

point in distinguishing between fuels a 

unit is or is not ‘‘designed to burn,’’ and 

every combustion unit would be 

considered ‘‘designed to burn’’ any 

combustible material. Clearly, that is not 

the agency’s intent. As illustrated by 

one of the commenters, when a unit 

cannot burn a fuel according to its own 

design specifications, excess air 

pollutants form and are likely to be 

discarded as emissions. Thus, the 

agency acknowledges that whether or 

not a NHSM is a waste may depend on 

the unit burning the material. 

Comment: One commenter asked for 

clarification on the issue of unit 

modifications. If a boiler hypothetically 

could be modified in any way to 

combust a different traditional fuel, the 

commenter noted, then a comparison to 

that fuel should be permissible to 

demonstrate that the NHSM is not a 

waste. 

Response: The EPA disagrees with 

this comment. As long as the 

modification remains hypothetical in 

nature, it stands to reason that the unit 

cannot yet burn the additional 

traditional fuel and the only reason it is 

comparing a NHSM to the dirtier fuel is 

to allow more waste input into the 

combustion unit. However, if the unit is 

actually modified to accept additional 

types of traditional fuels, then the 

owner or operator of the combustion 

unit can consider those traditional fuels 

in evaluating the NHSM for the 

contaminant legitimacy criterion. In this 

situation, such behavior shows that the 

combustor is serious about burning the 

other fuel and is willing to make the 

investment so that it can be burned 

properly instead of simply trying to gain 

comparison to a dirtier material. 

Comment: In the proposed rule, EPA 

specifically addressed used oil stating: 

‘‘Used oil is a special case and does not 

need to undergo the contaminant 

comparison. If it meets the 

specifications in 40 CFR 279.11, it is a 

traditional fuel. If it does not meet the 

specifications (i.e., it is ‘‘off-spec’’ oil), 

it is a solid waste under the 2011 NHSM 

final rule.’’ 76 FR 80481, fn. 44. Some 

commenters argued that off-spec used 

oil fuel, however, could satisfy all of 

EPA’s legitimacy criteria, including a 

contaminant comparison with coal, a 

traditional fuel. Thus, if a combustion 

unit is ‘‘designed to burn’’ both coal and 

oil, the facility should be able to use 

coal as the traditional fuel for the 

purposes of determining whether the 

contaminants are comparable—even 

when the NHSM at issue is off-spec 

used oil, as defined in 40 CFR 279.11. 

Response: The Agency agrees with the 

commenter that contaminants in offspec used oil burned for energy recovery 

in facilities that are designed to burn 

coal may be compared to coal for 

purposes of determining whether the 

off-spec used oil is a waste or non-waste 

product fuel. Accordingly, for purposes 

of waste/non-waste determinations, coal 

or oil, including on-spec used oil can be 

used as the traditional fuel identified for 

comparison of contaminants to meet the 

legitimacy criterion for units designed 

to burn both fuels. Some combustion 

units are designed to burn multiple 

fuels, such as both coal and oil, 

including on-spec used oil. Under these 

circumstances, the Agency agrees that 

the rules allow the comparison of 

contaminant levels to either traditional 

fuel. That is, to be designated as a nonwaste, the off-spec used oil contaminant 

levels must be comparable to or lower 

than coal when coal is the traditional 

fuel used for comparison. 

EPA no longer finds, as stated in 

Footnote 44 of the proposed rule, that 

off-spec used oil is always a waste for 

facilities that are designed to burn coal. 

Off-spec used oil continues to be a 

waste, however, for facilities that are not 

designed to burn coal because off-spec 

used oil contains contaminant levels 

that are not comparable to on-spec used 

oil. EPA also notes that in the preamble 

to the March 2011 rule (p. 15506), the 

Agency specifically rejected the 

comparison of off-specification used oil 

contaminants to coal. That discussion, 

however, was in the context of a general 

contaminant comparison for units that 

burn only fuel oil. Coal may not be the 

comparison material for all offspecification used oil, but only for those 

facilities that are designed to burn coal 

as provided in the definition of this 

rule. Finally, we want to make clear that 

EPA has not modified the part 279 

regulations for management of used oil, 

and thus, burning of off-spec used oil 

for energy recovery is still subject to 

those rules, including the requirement 

that off-spec used oil can only be 

burned in certain units (see 40 CFR 

279.61(a)).63

Comment: Commenters argue that the 

EPA has not adequately addressed how 

units designed to burn only NHSMs are 

to comply with the contaminant 

legitimacy criterion. The commenters 

explained that, under the rule structure 

as proposed, a NHSM may be classified 

as a waste simply due to a lack of a 

traditional fuel for comparison 

purposes. Comments acknowledge that 

the agency discussed the issue in the 

preamble to the proposed rule but the 

commenters disagree that the discussion 

provided any solution. Finally, 

commenters specifically requested that 

the EPA acknowledge the fact that a 

combustor designed for a particular 

NHSM fuel is dispositive that the 

NHSM is being legitimately burned for 

energy recovery. 

Response: The EPA disagrees with the 

assertion that the agency has failed to 

provide a solution for units designed 

only to burn NHSMs. The EPA also 

disagrees with the assertion made by 

commenters that the fact that a 

combustor has designed a combustion 

unit for a particular NHSM fuel is 

dispositive that the NHSM is being 

legitimately burned for energy recovery. 

The EPA acknowledges and is aware 

of units built specifically to burn 

NHSMs. One example is facilities built 

to burn resinated wood. The EPA notes 

that units built to burn such NHSMs are 

likely to be able to burn similar 

traditional fuels. Using the example of 

units built to burn resinated wood, the 

EPA considers it reasonable to assume 

that these units could also burn clean 

wood and, therefore, could make 

comparisons to that traditional fuel. The 

agency also notes that it is not aware of 

any units—and commenters have not 

identified any such units—that can burn 

only NHSMs. 

The EPA has nonetheless provided 

what it considers to be a reasonable 

solution. As explained in the preamble 

to the proposed rule, the EPA advises 

combustors faced with such a situation 

to compare solid NHSMs to solid 

traditional fuels, such as coal or 

biomass, liquid NHSMs to liquid 

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64See 76 FR 80481. 

65The EPA maintains an NHSM Web page with 

current information on contaminant levels in 

traditional fuels, examples of legitimacy 

determinations, and other information at http:// 

www.epa.gov/epawaste/nonhaz/define/index. 

66Traditional fuels, as defined in § 241.2, are not 

required to meet the legitimacy criteria, and this 

scenario is only used to explain the logic behind 

basing a traditional fuel comparison value on the 

upper end of a statistical range. 

traditional fuels, such as oil, and 

gaseous NHSMs to gaseous traditional 

fuels, such as natural gas.64 In light of 

the explanation of ‘‘designed to burn’’ 

codified in the final contaminant 

legitimacy criterion, as well as industry 

comments that many combustion units 

can burn multiple types of fuel, the 

agency believes that its suggested 

approach adequately addresses the 

issue. 

Finally, the EPA acknowledges that 

combustion units can and have been 

designed specifically to burn NHSMs 

and that such units can recover energy. 

The agency notes, however, that persons 

can and have also designed incinerators 

to dispose of certain waste materials and 

that such units can also recover energy. 

The agency, therefore, does not consider 

it dispositive that if combustion units 

are designed to burn a specific material, 

that material must be a legitimate nonwaste fuel. 

d. Contaminant Comparisons Allowed 

The proposed revision to the 

contaminant legitimacy criterion for 

NHSMs used as a fuel included the 

following statement: ‘‘In comparing 

contaminants between traditional fuel(s) 

and a non-hazardous secondary 

material, persons can use ranges of 

traditional fuel contaminant levels 

compiled from national surveys, as well 

as contaminant level data from the 

specific traditional fuel being replaced.’’ 

The March 2011 final rule did not 

discuss the use of ranges when 

evaluating contaminant data, nor did it 

discuss the use of traditional fuel data 

from national surveys. 

The December 2011 proposed rule 

included these concepts to clarify that 

persons are not required to adhere to a 

single comparison methodology, nor are 

they required to compare contaminants 

in their NHSMs to contaminants in the 

specific traditional fuel source they 

burn (or would otherwise burn). In both 

instances, the additional language 

clarifies, but does not change the intent, 

of the March 2011 final rule. 

Regardless of the specific 

methodology chosen, a comparison will 

have to be made for each contaminant 

or group of contaminants between the 

NHSM and a traditional fuel or 

traditional fuel group. Generators or 

combustors can use either traditional 

fuel data collected by the EPA or their 

own data for traditional fuel comparison 

values.65 Generators or combustors are 

responsible, however, for providing 

NHSM comparison values in cases 

where testing is conducted. Examples of 

acceptable NHSM data could include 

both laboratory test results from a 

specific generator or combustor and 

industry-recognized values provided by 

a national trade organization. 

Given data for a particular traditional 

fuel, the EPA noted in the proposal that 

many combustors would choose to base 

the traditional fuel comparison value on 

the upper end of its statistical range and 

that this approach was reasonable. 

Anything less could result in 

‘‘traditional fuel’’ samples being 

considered solid waste if burned in the 

very combustion units designed to burn 

them. This was not the agency’s intent 

in the March 2011 final rule.66 Given 

that selection (i.e., the range for 

traditional fuel contaminant values), the 

agency noted that acceptable NHSM 

comparison values would include the 

upper end of a statistical range, a 

calculation involving the mean and 

standard deviation or perhaps a single 

data point in situations where data are 

limited. The proposal reasoned that it 

would not be appropriate to compare an 

average NHSM contaminant value to the 

high end of a traditional fuel range, as 

the existence of an average implies 

multiple data points from which a more 

suitable statistic (e.g., range or standard 

deviation) could have been calculated. 

If each NHSM comparison value is 

comparable to or lower than its 

corresponding traditional fuel value, the 

material would be considered to meet 

the contaminant legitimacy criterion. 

An initial assessment would not need to 

be repeated, explained the proposal, 

provided the facility continues to 

operate in the same manner and use the 

same type of NHSMs as when the 

original assessment was made. 

Despite presenting several approaches 

for calculating NHSM comparison 

values, such as the upper end of a 

statistical range or a calculation 

involving the mean and standard 

deviation, the proposal did not preclude 

other reasonable methodologies. In the 

context of an inspection or enforcement 

action, the agency will evaluate the 

appropriateness of alternative 

methodologies and data sources on a 

case-by-case basis when determining 

whether the contaminant legitimacy 

criterion has been met. 

The EPA noted in the proposal that 

contaminant testing is not required and 

that process knowledge may be 

sufficient for particular contaminants in 

particular NHSMs. Even when 

analytical testing is not necessary, the 

EPA’s regulations governing 

recordkeeping for units subject to 

emissions standards for boilers and 

process heaters issued pursuant to CAA 

section 112 require keeping a record to 

document the basis of non-waste 

determinations under the part 241 

criteria (including the contaminant 

legitimacy criteria). See 40 CFR 40 CFR 

63.11225(c)(2)(ii) for area source boilers 

and 40 CFR 40 CFR 63.7555(d)(2) for 

major source boilers. 

The EPA believes that the comments 

have not changed the basis for its 

decision to allow the use of ranges and 

surveys of traditional fuel contaminant 

levels. Nor have comments changed the 

agency’s position that similar traditional 

fuels may be grouped for comparison 

purposes and that testing is not required 

in all cases. Thus, the EPA is adopting 

the reasoning from the proposal and 

adjusting the contaminant legitimacy 

criterion accordingly for NHSM used as 

a fuel. 

The EPA has decided, however, to 

make a modification to the regulatory 

language of the December 2011 

proposed rule based on comments 

received. The final criterion issued 

today includes additional language 

clarifying the appropriate use of ranges 

when making contaminant comparisons 

between NHSMs and traditional fuels. 

Consistent with the rationale provided 

in the preamble to the proposed rule, 

additional language now states that in 

order to use the full range of 

contaminant values in traditional fuels, 

persons should also account for the 

variability in NHSM contaminant levels. 

Any additional reasoning for finalizing 

the revision with or without suggested 

modifications is described in the 

responses to comments below. 

Comment: Industry comments 

supported the proposed changes 

expressly allowing the use of ranges and 

national surveys of traditional fuel data, 

as did one state comment. One 

commenter stated that these changes 

provide a more practical approach to 

meeting the contaminant legitimacy 

criterion that recognizes the inherent 

variation of contaminants in NHSMs 

and traditional fuels. Several 

commenters supported the use of ranges 

by repeating the EPA’s rationale from 

the proposal that using anything lower 

would logically result in a 

determination that some traditional 

fuels should not be burned in 

combustion units designed to burn 

those fuels. Another commenter stated 

that these clarifications describe 

appropriate methods of handling data 

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9152 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

67See 76 FR 15523. 68See 75 FR 31872. 

69See 76 FR 80481. 

70The EPA maintains a NHSM Web page with 

current information on contaminant levels in 

traditional fuels, examples of legitimacy 

determinations, and other information at http:// 

www.epa.gov/epawaste/nonhaz/define/index. 

that are naturally variable and will 

result in fewer non-waste materials 

being arbitrarily identified as wastes. 

Environmental groups opposed the 

use of ranges to evaluate contaminants, 

expressing concern that C&D wood 

contaminant levels would be compared 

to the highest contaminant levels for 

coal. These commenters suggested that 

averages or medians be used instead. 

Response: Based on our review of the 

comments received, the EPA is retaining 

the approach outlined in the proposed 

rule to expressly allow the use of ranges 

and traditional fuel data from national 

surveys. As discussed in the proposed 

rule, the EPA considers it reasonable to 

allow combustors to use the range of 

contaminant levels present in 

traditional fuels because anything less 

could result in ‘‘traditional fuel’’ 

samples being considered solid waste if 

burned in the very combustion units 

designed to burn them. For this reason, 

the agency disagrees with comments 

stating that combustors should be 

limited to use of the average or median 

concentrations. 

The EPA acknowledges that the 

revisions adopted as final in today’s rule 

would allow C&D wood contaminant 

levels to be compared to the highest 

contaminant levels for coal. The 

commenters do not specify, however, 

what C&D wood contaminant levels 

(averages or ranges) they are concerned 

would be compared to the highest levels 

in coal. The agency points out that the 

proposed revisions were not intended to 

allow average C&D wood contaminant 

levels to be compared to the highest 

levels in coal. In light of the concerns 

expressed by these commenters, the 

EPA has modified the proposed 

language to provide additional 

assurance that such average-tomaximum comparisons, which the 

agency has already determined are 

inappropriate, will not be allowed 

under today’s final rule. The EPA has 

decided that such comparisons are 

inappropriate because, following the 

logic stated in the March 2011 final rule, 

average-to-maximum comparisons do 

not demonstrate that contaminants in 

these cases could be considered a 

normal part of a legitimate fuel and are 

not being discarded.67

Today’s final criterion makes clear 

that the full range of traditional fuel 

contaminant values can only be used if 

persons also consider some measure of 

variability in the NHSM contaminant 

data. This will help to ensure that 

average to maximum comparisons will 

not be used to justify the combustion of 

NHSMs as non-waste fuels. 

Comment: Industry comments 

supported the concept discussed in the 

proposed rule that the contaminant 

legitimacy criterion does not require the 

testing of contaminant levels in NHSMs 

in all cases. The proposal noted that 

persons can instead use expert or 

process knowledge to justify decisions 

to rule out certain constituents. The 

proposal also noted that initial 

assessments would not need to be 

repeated, provided the facility continues 

to operate in the same manner and use 

the same type of NHSMs as when the 

original assessment was made. One 

commenter asked the EPA to confirm 

these statements, explaining that this 

policy will result in fewer NHSMs being 

arbitrarily identified as wastes. Another 

commenter stated that the flexibility 

provided by this policy will help ensure 

that regulated entities with varying 

levels of sophistication can better 

document that their NHSMs are nonwaste fuels. 

Environmental groups, on the other 

hand, commented that the EPA must 

require testing for contaminants, citing 

the extremely variable nature of C&D 

wood as a problem. Commenters 

expressed concern that a large amount 

of material is going to be generated as 

abandoned and foreclosed housing is 

torn down, and the potential for 

liberating vast amounts of lead and 

other urban toxics, to say nothing of 

arsenic and chromium from pressuretreated wood, has never been higher. 

Response: Based on a review of the 

comments received, the EPA is 

maintaining its position that 

contaminant testing is not required in 

all situations. Requiring testing in some 

situations is unnecessary. Where a 

NHSM generator, processor or 

combustor knows a contaminant will 

either not be present or be present at a 

level below that in the appropriate 

traditional fuel or traditional product, 

the agency believes it is a reasonable 

and practical policy to allow persons to 

rely on either process knowledge or 

previous testing of the same material. 

The agency notes that there will be 

instances where testing is conducted 

and comparisons will have to account 

for the variability of contaminant levels 

in NHSMs, including lead 

concentrations in C&D wood. The 

agency also notes that today’s final rule 

does not change its previously stated 

position that chromated copper 

arsenate-treated wood (CCA wood) 

would likely have contaminant levels 

not comparable to traditional fuels.68

Comment: One commenter requested 

that the EPA clarify what it means by 

the upper end of the statistical range. 

Citing the EPA’s statement in the 

proposal that ‘‘it makes sense to base the 

traditional fuel comparison on the 

upper end of the statistical range,’’ 69 the 

commenter asked for confirmation that 

the maximum values in the traditional 

fuel data set can be used for comparison 

with a NHSM since all data 

corresponding to the traditional fuel are 

valid for comparison, not just values 

that are below some arbitrarily 

determined statistical parameter. 

Response: The word ‘ranges’ in the 

proposed contaminant legitimacy 

criterion has been changed to ‘the full 

range’ in the final criterion issued today. 

This term more clearly indicates the 

agency’s intent to include all true values 

in between the minimum and the 

maximum. 

The agency has also separated the 

concepts of ranges and traditional fuel 

survey data in the regulatory language 

in order to make the criterion more 

transparent. The pertinent regulatory 

text in today’s final rule reads as 

follows: ‘‘In comparing contaminants 

between traditional fuel(s) and a nonhazardous secondary material, persons 

can use data for traditional fuel 

contaminant levels compiled from 

national surveys, as well as contaminant 

level data from the specific traditional 

fuel being replaced. To account for 

natural variability in contaminant 

levels, persons can use the full range of 

traditional fuel contaminant levels, 

provided such comparisons also 

consider variability in non-hazardous 

secondary material contaminant levels.’’ 

Comment: Several commenters noted 

that the agency proposed to allow the 

use of ‘‘national’’ surveys of traditional 

fuel data in the proposed contaminant 

legitimacy criterion and included 

several international data sources in its 

‘‘Contaminant Concentrations in 

Traditional Fuels: Tables for 

Comparison’’ document.70 Several 

commenters asked that the word 

‘national’ be removed from the 

contaminant legitimacy criterion. Other 

commenters asked that the EPA either 

remove the word ‘national’ or clarify 

that international data and surveys from 

other nations are also acceptable data 

sources. 

Response: The EPA has retained the 

proposed language, including the word 

‘‘national,’’ which expressly allows 

national surveys of traditional fuel data 

to be used in contaminant comparisons 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9153 

71Speight, J.G. Synthetic Fuels Handbook: 

Properties, Process, and Performance. McGraw-Hill, 

2008. pg 141. 72See 76 FR 80481. 73See 76 FR 15525. 

for NHSMs used as a fuel in combustion 

units. A statement that national surveys 

can be used does not preclude the use 

of appropriate international data. In fact, 

as the commenters recognize, the EPA 

included several international sources 

in its analysis of traditional fuels. These 

international sources were limited, 

however, to situations where no data or 

minimal data could be found from 

national sources or the agency had no 

reason to believe that data from national 

sources would be significantly different. 

At issue is whether the data are 

representative of traditional fuels that 

are purchased and burned at operating 

boilers in the United States. The agency 

has decided that it is reasonable to 

assume that national surveys of 

traditional fuels contain information 

about fuels purchased and burned at 

operating boilers in the United States. 

Comment: One commenter argued 

that the traditional fuel database 

compiled by the EPA should include the 

USGS coal data from not only the 

United States but also from around the 

world because those fuels are currently 

in use. 

Response: The EPA has maintained its 

decision not to reference the USGS 

COALQUAL database in its traditional 

fuel contaminant tables. It is the 

agency’s understanding that the 

COALQUAL database contains trace 

metal analyses for coal and associated 

rocks taken directly from coal beds 

throughout the United States and that 

not all of these coal beds are currently 

being mined. It is also the agency’s 

understanding that as-mined coal 

typically undergoes a series of 

processing steps, including crushing, 

screening, washing and physical 

separation techniques to remove rock 

and other impurities prior to being 

blended into clean, graded and uniform 

coal products suitable for use in 

commercial boilers.71

In comparison, the EPA contaminant 

tables referenced by commenters are 

based largely on a comprehensive 

dataset that contains approximately 

32,000 records of pre-combustion 

contaminant analyses performed on 

coal, wood, biomass and fuel oil 

samples that were actually used as fuel 

at boilers across the country. Thus, the 

agency has decided that the EPA dataset 

is more representative of contaminant 

levels in coal actually burned at 

operating boilers than the COALQUAL 

database. As a result, the EPA has 

decided not to use the COALQUAL 

database in developing the tables posted 

on the agency’s Web site. 

We would also note that the decision 

not to use USGS data is consistent with 

the agency’s position that product fuel 

oils, as opposed to virgin crude oil, 

should be measured for purposes of 

contaminant comparisons. As stated in 

the proposed rule, neither unrefined 

crude oil nor gasoline is typically 

burned in combustion units regulated 

by CAA sections 112 and 129. Similarly, 

as-mined coal is not typically burned in 

combustion units regulated by CAA 

sections 112 and 129. 

Comment: One commenter suggested 

that for each contaminant or group of 

contaminants, either the UCL of the 

mean at a 90 percent confidence level or 

the UPL at a 90 percent confidence level 

for NHSMs could be compared to the 

maximum value for the appropriate 

traditional fuel. 

Response: First, we would note that in 

the preamble to the recent proposed 

rule, the EPA indicated that when 

compared to the full range of 

contaminants in traditional fuels, 

suitable measures of NHSM 

contaminants would include the upper 

end of a statistical range, a calculation 

involving the mean and standard 

deviation or perhaps a single data point 

in situations where data are limited. The 

agency also noted that the discussion in 

the preamble did not preclude ‘‘other 

reasonable methodologies.’’ 72

With respect to the specific 

approaches suggested by the 

commenters, the EPA agrees with the 

approach of comparing the UPL at a 90 

percent confidence level for each 

contaminant or group of contaminants 

in NHSMs to the maximum value for 

each contaminant or group of 

contaminants in the appropriate 

traditional fuel. Specifically, the UPL is 

an indicator of what a future 

measurement would be. In the context 

of NHSM contaminant levels, the UPL 

taken at a 90 percent confidence level 

would yield a number, and a combustor 

could be confident that 90 percent of the 

time, the next measured contaminant 

level would be at or below that number. 

The UPL considers both the variability 

of the contaminant distribution and the 

uncertainty surrounding what the true 

mean is. The comment suggested taking 

a maximum value for traditional fuel 

contaminant levels and comparing it to 

the UPL at a 90 percent confidence 

level. Because both metrics account for 

the variability present in contaminant 

distributions, the EPA would consider 

this approach to be a reasonable 

methodology. 

The EPA does not agree, however, 

with an approach of using the UCL of 

the mean. That is, the UCL of the mean, 

regardless of the confidence level, is a 

measure of the mean and does not 

adequately factor in the variability 

present in both NHSMs and traditional 

fuel contaminant levels. The metric 

would be appropriate for a mean to 

mean comparison, but that is not what 

the commenter suggested. The comment 

suggested taking a maximum (which 

takes full advantage of the variability 

present in traditional fuel contaminant 

levels) and comparing it to a mean 

(which ignores the variability present in 

NHSM contaminant levels). The EPA 

does not consider this approach to be a 

reasonable methodology. 

To be clear, the EPA does not object 

to the use of confidence limits, or to the 

use of the UCL of the mean, on their 

own grounds. However, the agency 

believes it is inappropriate to make a 

comparison of mean contaminant levels 

in NHSMs to maximum contaminant 

levels in traditional fuels. 

Comment: One commenter suggested 

that the EPA allow entities to compare 

contaminants between NHSMs and 

traditional fuels on a pound of 

contaminants per Btu (lb/MMBtu) basis, 

as the agency said it would consider in 

the preamble discussion to the 2011 

NHSM Final Rule.73

Response: The EPA maintains its 

position that a direct comparison of 

contaminant levels, as opposed to the 

lb/MMBtu approach, is the most 

appropriate means of comparing 

contaminant levels. As was noted in the 

2011 NHSM Final Rule, however, the 

agency may still consider the lb/MMBtu 

approach as guidance is developed for 

implementation. 

3. Categorical Non-Waste 

Determinations for Specific NHSM Used 

as Fuels 

The new provisions at 40 CFR 241.4 

were proposed to allow the EPA to list 

categorically certain NHSMs as non 

wastes—when used as a fuel in a 

combustion unit. Based on these 

categorical non-waste determinations, 

facilities burning NHSMs that qualify 

for the provision will not need to 

demonstrate that the NHSM meets the 

legitimacy criteria on a site-by-site basis. 

The EPA has determined that these 

NHSMs are categorical non-wastes as 

described and are not discarded when 

used as a fuel in a combustion unit. 

Categorical non-waste determinations 

only apply, however, to NHSMs that are 

burned as a fuel in combustion units for 

the purpose of recovery energy. Burning 

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9154 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

74The scrap tire provision in the 2011 NHSM 

final rule is now removed and the section reserved 

in today’s final rule: ‘‘(b) The following nonhazardous secondary materials are not solid wastes 

when combusted: 

(2) The following non-hazardous secondary 

materials that have not been discarded and meet the 

legitimacy criteria specified in paragraph (d)(1) of 

this section when used in a combustion unit (by the 

generator or outside the control of the generator): 

(i) Scrap tires used in a combustion unit that are 

removed from vehicles and managed under the 

oversight of established tire collection programs.’’ 75See 76 FR 80483. 

a NHSM fuel in a combustion unit for 

energy recovery assumes a set of basic 

design requirements that ensures excess 

air pollutants are not formed and 

emission requirements under the CAA 

are met. As discussed in section III.D.2.c 

of this preamble, such basic design 

requirements include abilities to load 

the material into the unit, ensure the 

material is well mixed and maintain 

temperatures within unit specifications. 

For example, burning a whole tire in a 

boiler that is only designed to burn tires 

that are chipped and/or dewired would 

not be considered a fuel burned in a 

combustion unit for the purpose of 

recovering energy. The agency is not 

including specific regulatory text 

regarding this point since we believe it 

is understood that to be burned for 

energy recovery, the combustion unit 

must be able to burn the NHSM as a 

fuel. 

a. Scrap Tires 

In the December 23, 2011, NHSM 

proposed rule, the EPA proposed the 

following regulatory language under 40 

CFR 241.4 Non-Waste Determinations 

for Specific Non-Hazardous Secondary 

Materials When Used as a Fuel: ‘‘Scrap 

tires that are not discarded and are 

managed under the oversight of 

established tire collection programs, 

including tires removed from vehicles 

and off-specification tires.’’ Further, the 

addition of this provision (40 CFR 

241.4(a)(1)) eliminated the need for the 

previous scrap tire provision at 40 CFR 

241.3(b)(2)(i),74 which has been 

removed and reserved in today’s final 

rule. Today’s rule finalizes the proposed 

provision without changes. 

Comment: One commenter stated that, 

‘‘in its latest proposal, EPA eliminates 

the need for scrap tires to meet its 

legitimacy criteria and simply declares 

that scrap tires collected under an 

established tire collection program are 

not waste regardless of whether they 

meet the agency’s legitimacy criteria.’’ 

Response: The EPA disagrees with 

this comment. The EPA has not 

eliminated the legitimacy criteria for 

scrap tires. The categorical 

determination for scrap tires (as with all 

the categorical determinations in this 

rule) simply applies the agency’s nondiscard determination, made in the 

March 2011 rule and not reopened in 

this amendment, to the general category 

so that case-by-case determinations as to 

legitimacy would not need to be made 

by each facility. For the scrap tire 

category, scrap tires managed under 

established tire collection programs and 

used as a fuel need not make case-bycase legitimacy determinations. 

Moreover, the commenter has given us 

no information that the criteria are not 

met. In fact, the commenter simply 

repeats the argument made in previous 

rulemakings that the material is always 

a waste regardless of legitimacy criteria. 

Comment: Several commenters 

suggested that scrap tires should not 

have more restrictions under 40 CFR 

241.4(a) for the categorical non-waste 

status than does resinated wood. The 

non-waste determination for scrap tires, 

as proposed in 40 CFR 241.4(a)(1), read 

‘‘Scrap tires that are not discarded and 

are managed under the oversight of 

established tire collection programs, 

including tires removed from vehicles 

and off-specification tires.’’ In 

comparison, the resinated wood 

description, as listed in 40 CFR 

241.4(a)(2), is ‘‘Resinated wood.’’ The 

commenters reasoned that if all 

resinated wood can be non-waste, then 

all scrap tires should also qualify 

(regardless of the origin). 

Response: Please see the EPA’s 

response in the resinated wood section 

below (section III.D.3.b of this preamble) 

relating to the 241.4(a) criteria for 

resinated wood and the comparison to 

scrap tires. That response goes into 

detail explaining why the extra criteria 

are not needed for resinated wood and 

related discard issues. In addition, as 

noted previously in the NHSM 

rulemaking record (see docket EPA– 

HQ–RCRA–2008–0329), numerous tire 

piles have been created in the past 

whereas this is not the case for resinated 

wood used as fuel. The existence of 

these historic tire dumps demonstrates 

that some tires have not been treated as 

a valuable commodity therefore 

necessitating the additional discard 

qualification in regulatory text. The 

specific tires described in the 

categorical determination are handled as 

a valuable commodity and do not 

include discarded tires. 

Comment: A commenter suggested 

that the EPA should add ‘‘offspecification tire components’’ to the 

regulatory language. This revision 

would be in addition to the proposed 

text at 40 CFR 241.4(a)(1) that adds ‘‘offspecification tires.’’ 

Response: Off-specification tire 

components are covered in the 40 CFR 

241.4 categorical non-waste 

determinations for scrap tires. The term 

‘scrap tire’ is a general term for tires and 

can include, for example, whole tires, 

chipped tires, off-specification tires or 

off-specification tire components (i.e., 

tread, sidewall or base) that are removed 

from vehicles or are generated by tire 

manufacturers, including retailers or 

other parties involved in the 

distribution and sale of new tires. This 

formulation was also stated in the 

December 2011 NHSM proposal 75 and 

is adopted for today’s final rule. The 

EPA sees no difference between tires 

and their various components. Thus, the 

EPA does not believe it necessary to 

modify the rule to include ‘‘offspecification tire components’’ in the 

codified definition. They are understood 

to be included in the categorical nonwaste provision. 

Comment: Many commenters 

mentioned the difficulty in complying 

with the regulations since it is very 

difficult to distinguish between tires 

removed from vehicles (and offspecification tires) versus tires from 

other origins. In regard to this issue, one 

commenter stated, ‘‘a combustor cannot 

know the origin of the tire-derived fuel 

it is buying. In its response to requests 

for reconsideration of the CISWI rule, 

the EPA responded to this issue by 

recognizing that it is not possible for a 

combustor to know the source of all 

NHSM fuel and declined to impose this 

requirement stating: 

‘‘Rather, it is sufficient that the ultimate 

user verify that it is obtaining tires from an 

established tire collection program, which 

program can provide the user with 

reasonable assurance that it manages tires 

carefully from point of collection to point of 

burning and which does not receive tires 

which have been abandoned in landfills or 

otherwise. 76 Fed. Reg. 28318, 28322 (May 

17, 2011).’’ 

Therefore, the commenter requests 

that the EPA codify this statement in the 

NHSM rule and expressly allow 

combustors to rely upon certifications of 

fuel suppliers that the fuel sold is not 

a solid waste. 

Another commenter said that for the 

EPA to require a tire storage facility to 

maintain separate classifications of tires 

(i.e., separating discarded tires from tire 

dumps from other tires) is not 

reasonable, because inspectors and 

operators would not be able to tell the 

piles apart. The EPA’s current definition 

of scrap tires would place undue 

financial hardship on contractors and 

storage facilities. 

Response: The EPA has decided that 

a regulatory statement on this matter is 

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76See 76 FR 80483. 77See 76 FR 80483–80484. 

not necessary since the actual 

requirement for the combustor to 

determine where its tires come from 

when they are coming from an 

established tire collection program (or a 

contractual agreement) is provided for 

under the CAA and interpretations 

provided for that regulation. For 

example, major source boilers have a 

recordkeeping requirement for a nonwaste determination at 40 CFR 63.7555 

‘‘What records must I keep?’’ Within 

those regulations for major source 

boilers, it requires the combustor to 

demonstrate that NHSMs are a nonwaste. To the extent that a combustor 

believes it appropriate, they may request 

haulers to verify that the tires would 

qualify as non-waste under 40 CFR 

241.4 when combusted. 

If there is question about the origin of 

the tires, the EPA inspectors will not 

assume that tires are from discarded 

sources. As we note in the Federal 

Register notice (76 FR 28318, 28322), ‘‘It 

is EPA’s position that ultimate users are 

not responsible for knowing the source 

of all tires obtained from an established 

tire collection program* * * EPA does 

not interpret this language as requiring 

knowledge of each individual tire as 

this is a practical impossibility* * * 

users also should not assume that tires 

from established programs which 

participate in occasional cleanup days 

are discarded—both because there is no 

information that the tires from the 

cleanup efforts were discarded (and 

these programs are designed to prevent 

discarding) and whether the kiln 

received tires from the sporadic cleanup 

days in any case.’’ 

The Federal Register notice that the 

commenter cited (76 FR 28322) and a 

related letter to the docket 

(‘‘Memorandum. Combustion in a 

Cement Kiln and Cement Kilns’ Use of 

Tires as Fuel.’’ April 25, 2011, 

Document ID: EPA–HQ–OAR–2002– 

0051–3582) provide sufficient guidance. 

The agency believes this issue does not 

merit additional regulation for the 

hauler. 

b. Resinated Wood 

In the December 23, 2011, proposed 

rule, the EPA proposed to designate in 

regulatory text that resinated wood is 

not a solid waste when used as a fuel. 

In making this determination, the 

agency analyzed these materials using 

the legitimacy criteria, concluding that 

resinated wood clearly is managed as a 

valuable commodity and has 

meaningful heating value and is used as 

fuel.76 While stating that these materials 

may not always meet the regulatory 

contaminant legitimacy criterion in 

every situation, we proposed to list 

categorically resinated wood as a nonwaste fuel because, after balancing the 

regulatory legitimacy criteria and other 

relevant factors, the EPA determined 

that resinated wood that is used as fuel 

represents an integral component of the 

wood manufacturing process and, as 

such, is not being discarded when 

burned as fuel. 

Specifically, we noted the extent to 

which resinated wood is used as fuels 

throughout the wood manufacturing 

industry and that the use of resinated 

wood as fuel is essential to the wood 

manufacturing process. We also noted 

the prevalence of wood product plants 

that have been designed specifically to 

utilize these residuals for their fuel 

value; in fact many (if not most) wood 

products plants would not be able to 

operate as designed without the use of 

these materials. This determination was 

previously codified under 40 CFR 241.3 

(b)(2)(ii) of the NHSM final rule, 

provided the resinated wood met the 

legitimacy criteria in 40 CFR 

241.3(d)(1). However, based on the 

available information, as well as how 

this material is handled and used in the 

process, resinated wood is not being 

discarded when used as a fuel, and thus, 

should not be considered a solid waste 

when burned as a fuel. The EPA 

proposed to codify this determination 

by categorically listing resinated wood 

as a non-waste fuel in 40 CFR 

241.4(a)(2).77 By specifically listing it as 

a non-waste fuel, combustors of this 

material would not need to demonstrate 

that they meet the legitimacy criteria on 

a site-by-site basis. 

The EPA finds that this reasoning is 

supported by the entire rulemaking 

record, as explained in the December 

2011 proposal, which rationale is 

adopted for the final rule as further 

supported by responses to comments 

below. Thus, the agency has determined 

to list categorically resinated wood as a 

non-waste fuel. In addition, after 

considering comments received on the 

proposal, the agency is revising the 

definition of ‘‘resinated wood,’’ as 

codified in 40 CFR 241.2. 

Comment: Most comments on this 

issue were supportive of a categorical 

determination that resinated wood is a 

non-waste fuel. One commenter 

maintained that the record for this 

rulemaking clearly establishes that 

resinated wood is highly valued within 

the wood products industry for its high 

fuel value, stating that ‘‘Many facilities 

rely on mixing of these low moisture 

content wood materials with higher 

moisture content wood materials to 

manage and optimize combustion.’’ This 

same commenter also stated that ‘‘there 

exists within the wood products 

industry a developed market for 

purchase and sale of resinated wood 

between independent companies.’’ In 

fact, many wood-fired boilers at wood 

products plants that do not generate 

sander dust have been retrofitted with 

sander dust injection burners so that 

sander dust can be properly combusted 

in those units, taking full advantage of 

the heat energy of sander dust. 

Another commenter stated that 

‘‘resinated fuels have been an integral 

part of the composite wood product 

industry’s production process since the 

industry was established decades ago. 

As such, facilities’ combustion and 

energy systems were designed and 

constructed to utilize most if not all of 

their own wood and wood by-products, 

including resinated trim and sander 

dust. Excluding resinated wood fuels 

from our manufacturing processes 

would require significant re-engineering 

of our facilities and add insurmountable 

operating costs in order to substitute 

fossil fuels, as well as to transport and 

dispose of resinated wood fuels. Any 

other result would effectively make it 

nearly impossible for these 

manufacturing facilities to continue 

operations.’’ This same commenter also 

noted that ‘‘many of our facilities rely 

exclusively on resinated wood for its 

fuel and have limited access to 

substitutes.’’ 

Another commenter provided two 

examples of mills that utilize nearly 100 

percent of sander dust, either to create 

new product as part of the 

manufacturing process or as fuel. In 

addition, two state commenters 

supported the proposed categorical nonwaste determination for resinated wood. 

Response: Nearly all of the comments 

received regarding the proposed 

categorical non-waste determination 

were supportive of categorically listing 

resinated wood as a non-waste fuel 

when burned in combustion units for 

energy recovery. As noted above, the 

agency did receive a few additional 

examples of how the use of resinated 

wood as a fuel is an integral part of the 

wood manufacturing industry’s 

production process (e.g., the facilities 

that would have to be significantly reengineered if they could not use 

resinated wood for its fuel value and the 

mills that use 100 percent of the sander 

dust it generates, either by recycling it 

back into the process or burning it for 

fuel). 

Although we received one comment 

critical of the EPA’s proposed listing of 

resinated wood as a non-waste fuel 

(addressed below), we did not receive 

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78See, e.g., 76 FR 80483. See also background 

document developed in support of the December 

23, 2011, proposed rulemaking titled, ‘‘Resinated 

Wood, Scrap Tire, and Pulp/Paper Sludge Support 

Document’’ (EPA–HQ–RCRA–2008–0329–1880). 

79 Id. 80See 76 FR 80483. 

any comments that argued or suggested 

that the use of resinated wood as a fuel 

is not an integral component of the 

wood manufacturing process. Thus, we 

agree with commenters who encouraged 

the EPA to finalize resinated wood as a 

categorical non-waste fuel and will 

finalize this determination in today’s 

rulemaking. 

Information in the record for this 

rulemaking clearly establishes that 

resinated wood is managed as a valuable 

commodity (40 CFR 241.3(d)(1)(i)) and 

has meaningful heating value and is 

used as a fuel in combustion units that 

recover energy (40 CFR 

241.3(d)(1)(ii)).78 In addition, we 

generally have determined that most 

resinated wood meets the contaminant 

legitimacy criterion as well ((40 CFR 

241.3(d)(1)(iii)), although we 

acknowledge that in some instances 

these materials may have levels of 

formaldehyde that are not comparable to 

traditional fuels.79

The EPA confirms the position 

discussed in the proposal and adopts it 

as its final rationale that there are 

instances where it is appropriate for the 

EPA to balance the regulatory legitimacy 

criteria with other relevant factors in 

order to determine whether a material is 

a legitimate fuel or is merely being 

discarded by being combusted. We have 

determined that resinated wood is one 

such example. Although resinated wood 

may not meet the regulatory 

contaminant legitimacy criteria in every 

situation, it is clear that resinated wood 

is still a ‘‘legitimate’’ product fuel after 

one considers how integrally tied the 

use of resinated wood as a fuel is within 

the wood manufacturing process and 

industry. Nearly all comments received 

on this point concurred with this 

assessment. Thus, in today’s final rule, 

we are codifying the determination that 

resinated wood, based on all 

information and the totality of the 

circumstances, is a non-waste when 

used as a fuel. 

Comment: One commenter, however, 

stated that the EPA’s proposed 

categorical determination that resinated 

wood is a non-waste fuel is unlawful 

and arbitrary. The commenter stated 

that the EPA is now proposing to simply 

‘‘exempt’’ resinated wood altogether, 

regardless of who burns it and whether 

it meets the legitimacy criteria. 

According to the comment, the EPA 

acknowledges that the formaldehyde 

levels in resinated wood would not 

always meet its contaminant legitimacy 

criterion—i.e., would not be comparable 

to the levels in any fuel that companies 

would otherwise burn. The commenter 

states that the EPA also acknowledges 

that burning resinated wood increases 

the emissions of formaldehyde, but 

nonetheless finds that, ‘‘In general the 

motivation to use resinated wood as a 

fuel, even with the slightly higher 

formaldehyde levels, predominates over 

the motivation to dispose of the 

formaldehyde.’’ The EPA’s decision to 

remove the limits on the exemption for 

resinated wood and to ‘‘categorically’’ 

declare resinated wood to be a nonwaste—regardless of who burns it, 

regardless of how contaminated it is, 

and regardless of the reality that some 

companies may be burning resinated 

wood as a cheap means of disposing of 

their toxic formaldehyde wastes— 

underscores this point. 

The comment continues that the EPA 

nowhere claims that companies burning 

resinated wood that they have not 

generated pay for these materials. 

Indeed, the EPA does not deny that 

these companies are paid to take the 

resinated wood they burn. Thus, the 

EPA provides no reason to believe that 

the resinated wood that is burned by a 

company other than the one that 

generated it has not been discarded by 

the company that generated it. Even 

under the EPA’s own view of the 

meaning of discard, resinated wood 

burned by companies other than the 

generator of the resinated wood would 

be waste but for the agency’s declaration 

that it is not waste. 

The commenter also states that the 

EPA admits that some companies may 

burn resinated wood because they want 

to dispose of the formaldehyde it 

contains (i.e., to dispose of the 

contaminated wood rather than to 

recover energy). Moreover, the levels of 

formaldehyde contamination in some 

resinated wood would exceed the EPA’s 

legitimacy criteria, but for the EPA’s 

declaration that these criteria do not 

apply. For these reasons as well, 

resinated wood is discarded even under 

the EPA’s own view of what that term 

means. 

Further, the comment states that 

sources’ alleged ‘‘motivation’’ for 

burning a material is to recover energy 

rather than to destroy the wood and the 

contaminants it contains—assuming 

arguendo that a source’s motivation can 

even be determined—does not show 

that material is not a waste. Rather, 

resinated wood is a waste because it is 

discarded within the meaning of RCRA. 

Notably, the EPA does not suggest that 

there is any use for resinated wood that 

has been discarded other than— 

assuming it is a ‘‘use’’ at all—burning it. 

Moreover, establishing a ‘‘motivation’’- 

based test for whether resinated wood is 

or is not a waste conflicts with and 

defeats the CAA. Thus, the agency’s 

categorical declaration that resinated 

wood is not a waste is unlawful. 

Response: The EPA strongly disagrees 

with the commenter’s characterization 

of its categorical determinations. In 

making categorical determinations, the 

agency is not ‘‘exempting’’ these 

materials from regulation as a solid 

waste (i.e., if not for this ‘‘exemption,’’ 

these materials would otherwise be 

regulated as solid waste). Rather, the 

EPA has determined that the specified 

NHSMs are not solid waste when used 

as fuels. Further, in making categorical 

determinations, the EPA is not saying 

that the legitimacy criteria are not 

relevant. In proposing the categorical 

non-waste determination for resinated 

wood, the agency stated we were 

‘‘balancing the legitimacy criteria and 

other relevant factors based on the fact 

that resinated wood residuals that are 

used as fuels represents an integral 

component to the wood manufacturing 

process and, as such, resinated wood 

residuals are not being discarded when 

burned as fuels.’’ 80 This remains the 

agency’s final finding in this rule. 

Regarding the level of contaminants 

in resinated wood, the agency is not 

saying that resinated wood is a nonwaste fuel ‘‘regardless of how 

contaminated it is,’’ as the commenter 

suggests. Based on all available 

information, the agency has concluded 

that resinated wood meets the 

legitimacy criteria for all contaminants 

with the possible exception in some 

situations of formaldehyde. In focusing 

specifically on formaldehyde, we also 

have stated that we have limited 

information regarding formaldehyde 

levels—that is, resins and adhesives 

containing formaldehyde react within 

the resin curing process leaving ‘‘free 

formaldehyde at levels less than 0.02 

percent (or 200 ppm), but noted that 

levels will be reduced further due to 

new national rules being developed by 

the CARB Composite Wood ATCM, per 

new Public Law 111–199. Thus, we 

have not said that contaminants do not 

matter. Rather, we have carefully 

analyzed contaminant levels in 

resinated wood and have determined, 

based both on contaminant levels, as 

well as how the use of these materials 

represents an integral part of the wood 

product manufacturing process, that 

resinated wood materials are a 

legitimate non-waste fuel. 

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81See, e.g., 76 FR 15502. 

82 Id. 

83See 76 FR 15500. 84 Id. 

Further, we do not concede, as the 

commenter contends, that some 

companies burn resinated wood to 

destroy contaminants—in fact, we have 

determined just the opposite. We have 

determined that companies burning 

resinated wood do so because such an 

activity is integrally tied to their 

production process, not to dispose of 

the formaldehyde. This determination is 

based on that extent to which resinated 

wood is used as fuels throughout the 

wood manufacturing industry, as well 

as the fact that the use of resinated 

wood as fuel is essential to that industry 

(i.e., plants have been designed to use 

these materials as fuels and would be 

unable to operate if resinated wood was 

not available as a fuel source). 

Regarding the comments that the EPA 

acknowledges that burning resinated 

wood increases emissions of 

formaldehyde, the agency needs to 

correct this characterization. First, in 

the 2011 NHSM final rule, we stated 

that the criterion or test in determining 

the contaminant legitimacy criterion is 

based on the level of contaminants in 

the secondary material itself and not by 

comparing the differences in 

emissions.81 However, responding to 

comments we received regarding 

emission levels associated with burning 

resinated wood as a fuel, the agency 

determined that the amount of 

formaldehyde that is emitted from 

burning resinated wood residuals is in 

fact likely to decrease, given that Public 

Law 111–199 will reduce formaldehyde 

levels in these materials.82

Regarding the commenter’s statement 

that companies that burn resinated 

wood that they have received from 

offsite do not pay for it, the EPA 

disagrees with the argument put forth by 

the commenter as the facts in this 

instance do not support such a premise. 

As noted in the March 2011 final rule, 

inter-company transfers of resinated 

wood residuals are typically managed 

through buy-sell contracts and 6 percent 

of resinated wood residuals are sold into 

the fuel market and are used as either 

‘‘furnish’’ (i.e., raw materials) or fuel at 

the receiving facilities.83 In addition, the 

EPA received additional comments on 

the proposed rule stating, ‘‘* * *there 

exists within the wood products 

industry a developed market for 

purchase and sale of resinated wood 

between independent companies.’’ 

Moreover, while contractual 

arrangements can be used as evidence 

that the material is managed as a 

valuable commodity and that discard is 

not occurring when a material is 

transferred beyond the control of the 

generator, the price of an NHSM is not, 

by itself, dispositive of whether the 

material is or is not a waste. The main 

indication that resinated wood residuals 

are not solid waste is the fact that they 

are used as fuels in a way that 

represents an integral component to the 

wood products industry. As the EPA 

noted in the March 2011 final rule, 

‘‘resinated wood residuals transferred 

off-site are utilized in the same manner 

as self-generated resinated wood 

residuals (i.e., contained in the same 

bins as furnish materials used in the 

product, transferred via conveyors or 

ducts), which the plants are specifically 

designed to burn as a fuel, [and 

therefore] we agree that this does not 

constitute discard.’’84

The comment that the agency has 

simply declared that resinated wood is 

a non-waste ‘‘regardless of who burns 

it’’ is a mischaracterization of this 

categorical non-waste determination. 

Based on all information provided to the 

agency, we have determined the use of 

resinated wood as a fuel is an integral 

part of the industry’s production 

processes and that these materials are 

managed as valuable commodities (i.e., 

fuels), have meaningful heating value 

and are used in combustion units that 

recover energy regardless of whether 

these materials remain within the 

control of the generator or are 

transferred offsite to another facility. On 

the other hand, we have no information 

that facilities are burning these 

materials merely to get rid of them (i.e., 

discard). 

The EPA finds irrelevant the 

commenter’s statement that the EPA is 

looking to a source’s motivation for 

using a material as a fuel conflicts with 

and defeats the CAA. The issue, rather, 

is whether motivation is relevant to a 

waste determination under RCRA. The 

D.C. Circuit confirmed the relevance of 

motivation in determining whether a 

recycled material is a waste. See, API v. 

EPA, 216 F.3d at 58 (court criticizes the 

EPA for not saying why it has 

concluded whether recycling motivation 

predominates over a disposal 

motivation). In this case, it is clear that 

the motivation for burning the resinated 

wood is to utilize its inherent value as 

a fuel and not for disposal. Commenters 

have provided the agency with 

information that facilities generating 

and managing resinated wood residuals 

consider these materials to be an 

integral part of their production 

process—both in the value these 

materials provide as being a critical 

source of energy as well as being 

recycled back into the manufacturing 

process to create more wood products. 

Thus, we are not convinced that a 

facility that considers the use of 

resinated wood as a fuel to be an 

integral part of its production processes, 

as has been established in the record, is 

motivated to discard these materials by 

burning to get rid of them. 

Comment: A few commenters stated 

that the EPA is not consistent in how 

discarded materials are designated as 

solid waste. In particular, the 

commenter stated that the EPA was 

proposing to list as a categorical nonwaste fuel in 40 CFR part 241.4 

resinated wood regardless of whether it 

is previously discarded, while the 

agency would require processing for 

scrap tires that have been discarded in 

landfills. 

Response: The agency disagrees that 

its treatment of resinated wood is 

inconsistent with its treatment of scrap 

tires. Nowhere does the agency state 

that resinated wood would be 

considered a non-waste fuel ‘‘regardless 

of whether it is previously discarded.’’ 

The EPA, based on all information 

available, has determined that resinated 

wood is not being discarded when used 

as fuel, given the fact that resinated 

wood residuals that are used as fuels 

represent an integral component of the 

wood manufacturing process. If a 

shipment of resinated wood residuals 

was disposed of in a landfill, it would 

be a waste. In addition, if a shipment of 

resinated wood residuals were disposed 

of and later recovered to be used as a 

fuel, as is the case with scrap tires that 

are extracted from landfills, this would 

be a different scenario and would not be 

included within the categorical listing 

in 241.4(a)(2). 

As the record clearly shows, resinated 

wood is routinely handled and managed 

as a valuable fuel product within the 

wood products manufacturing industry. 

As noted in the rulemaking record (see 

docket EPA–HQ–RCRA–2008–0329), 

numerous scrap tire piles have been 

created in the past and it is a common 

practice to recover abandoned tires from 

tire piles and use them for fuel. This is 

not the case for resinated wood. 

Comment: While supportive of the 

agency’s proposed listing of resinated 

wood as a non-waste fuel in 40 CFR part 

241.4, two commenters suggested that 

the agency revise the definition of 

‘‘resinated wood’’ as codified in 241.2. 

Currently, ‘‘resinated wood’’ is defined 

as, ‘‘wood products (containing resin 

adhesives) derived from primary and 

secondary wood products 

manufacturing and comprised of such 

items as board trim, sander dust, and 

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panel trim.’’ However, these 

commenters request the EPA to revise 

this definition in order to clarify that the 

‘‘spectrum of resinated materials 

currently used as fuels throughout the 

wood product manufacturing process 

are included in the definition.’’ Thus, 

commenters urge the EPA to revise the 

definition of resinated wood as follows: 

‘‘Resinated wood means wood products 

(containing binders and adhesives) 

produced by primary and secondary 

wood products manufacturing. 

Resinated wood includes residues from 

the manufacture and use of resinated 

wood, including materials such as board 

trim, sander dust, panel trim, and offspecification resinated wood products.’’ 

The suggested revised definition 

proposes two changes. First, the 

suggested definition replaces the phrase 

‘‘containing resin adhesives’’ with the 

phrase, ‘‘containing binders and 

adhesives.’’ The second suggested 

revision to the definition is the specific 

inclusion of ‘‘off-specification resinated 

wood products.’’ Commenters have 

indicated that these materials include 

materials that do not meet 

manufacturing specifications or are 

otherwise physically marred or 

damaged and thus, are not sold in the 

marketplace. This class of materials 

would not be expected to be chemically 

different than the resinated wood 

products that meet the manufacturing 

‘‘on-spec’’ requirements. For example, 

off-specification resinated wood 

products would not be expected to have 

higher amount of resins (and therefore 

contaminants) than their onspecification counterparts. Commenters 

have indicated that off-specification 

resinated wood products are identical to 

their on-specification counterparts 

chemically and only differ in that they 

are do not meet a manufacturing quality 

or standard. 

Response: The agency recognizes that 

in order for a categorical non-waste 

determination to be meaningful and 

effective, it must be clear about the 

universe of materials that such a 

categorical non-waste determination 

encompasses. Thus, we agree with 

commenters who suggested specific 

revisions to the definition of ‘‘resinated 

wood’’ contained in part 241.2. 

Specifically, the EPA agrees that these 

revisions create a definition that more 

accurately captures the scope of 

resinated wood and is more 

representative of the resinated materials 

currently used as fuels throughout the 

wood product manufacturing process. 

First, by including the terms ‘‘binders’’ 

and ‘‘adhesives,’’ the universe of 

materials that we consider to be within 

this definition should be more clear, as 

these terms are widely used and 

accepted within the wood products 

manufacturing industry. 

With respect to the inclusion of offspecification resinated wood products, 

the EPA finds it appropriate to include 

this class within the definition of 

resinated wood. We note, however, that 

to the extent that a facility has reason to 

expect that the off-specification wood 

products are off-spec for chemical 

reasons, such that the levels of 

contaminants are expected to be greater 

than their on-spec counterparts, the EPA 

would not consider such materials to be 

within the scope of this definition. The 

agency will make this point more clear 

by specifying in the definition that the 

term ‘‘off-specification resinated wood 

products’’ are off-spec due to the fact 

that they do not meet a manufacturing 

quality or standard. Thus, in today’s 

final rule, we are codifying the 

definition of resinated wood as follows: 

‘‘Resinated wood means wood products 

(containing binders and adhesives) 

produced by primary and secondary 

wood products manufacturing. 

Resinated wood includes residues from 

the manufacture and use of resinated 

wood, including materials such as board 

trim, sander dust, panel trim and offspecification resinated wood products 

that do not meet a manufacturing 

quality or standard’’ (emphasis added). 

Comment: One commenter noted that 

there are additional secondary materials 

produced by the wood manufacturing 

industry that are similar to resinated 

wood and, thus, should also be 

considered a non-waste fuel. The 

production of flooring and furniture 

creates final finishing trim, sander dust 

and process breakage that are both solid 

and resinated wood materials. In some 

cases, these materials are coated with 

finish materials used to color and 

protect the finished product. The 

commenter (a utility) indicated that 

their facilities receive these materials 

from furniture and flooring 

manufacturers and utilize them to offset 

the fuel load from fossil fuels due to 

their high heat capacity. Thus, the 

commenter requests that the EPA 

expand its definition of resinated wood 

materials to include these additional 

wood manufacturing secondary 

materials as non-waste fuels or 

otherwise describe the circumstances 

under which these additional materials 

would be considered a non-waste fuel. 

Response: It is possible that these 

materials (or some of these materials) 

could be within the definition of 

‘‘resinated wood,’’ as codified in 40 CFR 

part 241.2; however, commenters have 

not provided the agency with 

information regarding the factors 

involved in determining whether these 

additional types of coated materials are 

legitimately used as product fuels. That 

is, commenters have not provided 

information regarding whether these 

‘‘finishing materials’’ could have 

contaminant concerns and whether they 

are routinely used as fuels. Subsequent 

to this rulemaking, the agency would 

welcome information regarding these 

materials in order to make an informed 

decision regarding whether these 

materials fit within the definition of 

‘‘resinated wood.’’ Alternatively, the 

commenter may petition the agency to 

receive a non-waste determination per 

the petition process established in 40 

CFR 241.3(c) if the commenter believes 

that this material may not be within the 

definition of ‘‘resinated wood.’’ 

4. Rulemaking Petition Process for Other 

Categorical Non-Waste Determinations 

(40 CFR 241.4(b)) 

The EPA recognizes that there may be 

other NHSMs that can also be 

considered non-wastes when used as 

fuels in combustion units when 

balancing the legitimacy criteria and 

other relevant factors. Thus, under 

today’s rule, we are finalizing the 

process outlined in the proposed rule 

whereby persons can submit a 

rulemaking petition to the 

Administrator where they can identify 

and request that additional NHSMs be 

listed in section 241.4. The petition 

process is similar to 40 CFR 260.20, 

where any person may petition the 

Administrator to modify or revoke any 

provisions of the hazardous waste rules 

and where procedures governing the 

EPA’s action on those petitions are 

established. The 40 CFR 260.20 

standards reflect normal, informal 

rulemaking procedures under the APA 

and thus, serve as an appropriate model 

for the NHSM rulemaking petitions 

under this section. 

In the context of a rulemaking petition 

under section 241.4(b), any person can 

petition the Administrator for a 

regulatory amendment to identify and 

request that additional NHSMs be 

included on the list of materials in 

section 241.4(a) that are not solid wastes 

when used as a fuel in a combustion 

unit. To be successful, the petitioner 

needs to demonstrate to the satisfaction 

of the Administrator that the proposed 

regulatory amendment involves a 

NHSM that has not been previously 

discarded (i.e., was not initially 

abandoned or thrown away), or if 

discarded, has been sufficiently 

processed into a legitimate fuel. The 

petitioner must also demonstrate that 

the material is used as a non-waste fuel 

in a combustion unit because it either 

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85See 76 FR 15471. 

meets the legitimacy criteria, or, after 

balancing the legitimacy criteria with 

other relevant factors, such NHSM(s) is 

not a solid waste when used as a fuel 

in a combustion unit. 

If the applicant believes that the 

NHSM is a legitimate product and not 

discarded despite not meeting the 

legitimacy criteria, additional 

information must be submitted to 

explain or describe why such NHSM 

should be considered a non-waste fuel. 

Possible factors to address include, but 

are not limited to: 

• The extent that use of the NHSM 

has been integrally tied to the industrial 

production process. Information can 

include combustor design 

specifications, the extent that use of the 

material is integrated across the 

industry and the extent that use of the 

NHSM is essential to the industrial 

process, 

• The extent that the NHSM is 

functionally the same as the comparable 

traditional fuel, and 

• Other relevant factors. 

The application is required to 

include: (1) The petitioner’s name and 

address; (2) a statement of the 

petitioner’s interest in the proposed 

action; (3) a description of the proposed 

action, including the specific NHSM, 

the industry (i.e., NAICS code) and 

functional use (i.e., industrial functional 

code listed in 40 CFR 710.52(c)(4)(i)(C)); 

and (4) a statement of the need and 

justification for the proposed action, 

including any supporting tests, studies 

or other information. Where such 

NHSM(s) do not meet the legitimacy 

criteria, the applicant must explain why 

such NHSM(s) should be considered a 

non-waste fuel, balancing the legitimacy 

criteria with other relevant factors. 

Under this petition process, the 

Administrator makes a tentative 

decision to grant or deny a petition and 

then publish notice of such tentative 

decision, either in the form of an 

ANPRM, a proposed rule or a tentative 

determination to deny the petition, in 

the Federal Register for written public 

comment. The Administrator could, at 

its discretion, hold an informal public 

hearing to consider oral comments on 

the tentative decision. After evaluating 

all public comments, the Administrator 

makes a final decision by publishing in 

the Federal Register a regulatory 

amendment or a denial of the petition. 

Comment: One commenter does not 

support use of the legitimacy criteria, as 

provided in the proposed section 

241.4(b)(3) to make a determination. A 

material which has not been discarded 

is, by definition, not a solid waste. 

However, if the EPA believes that other 

factors still should be considered, then 

the only other factor which should be 

considered is whether the material is 

being used legitimately as a fuel. The 

remaining legitimacy criteria are (and 

should be) irrelevant. 

Response: As discussed in the 2011 

NHSM final rule, ‘‘legitimacy’’ is 

shorthand for referring to NHSM that 

are not abandoned or thrown away, are 

saved and are reused by being burned 

for their value as a fuel.85 The 

legitimacy criteria are the factors needed 

to be examined to make this 

determination. For example, it is 

relevant how the NHSM is managed and 

its heating value since burning materials 

that have minimal or limited heating 

value shows the material is being 

burned for discard and not energy 

recovery. In addition, the extent to 

which contaminants are present in 

NHSMs may also indicate that the real 

reason for burning the secondary 

material is simply to destroy or discard 

them—referred to as ‘‘sham’’ recycling. 

Thus, the agency is not simply 

‘‘punting’’ to its legitimacy criteria but 

believes they provide a valid basis for 

showing that a NHSM is more 

commodity-like than waste-like. 

Comment: The current petition 

process is limited to NHSMs when used 

as fuels. Absent from this petition 

process are NHSMs used as ingredients 

and previously discarded materials that 

meet the fuel legitimacy criteria. We do 

not understand this distinction and urge 

the EPA to expand both the current and 

proposed petition processes to allow for 

non-waste determinations for a wider 

range of NHSMs. 

Response: In general, the 40 CFR part 

241 regulations establishes a selfimplementing approach for NHSM that 

can consider site-specific information, if 

necessary (i.e., facilities will make a 

self-determination of whether the nonhazardous secondary fuel or ingredient 

in question meets the regulatory 

criteria). We note it is the EPA’s 

intention to indicate in these rules, as 

clearly as possible, which nonhazardous materials used as fuels or 

ingredients in combustion units are or 

are not considered solid waste based on 

the criteria laid out in regulatory text. 

The agency expects this selfimplementing approach will govern the 

majority of situations, including NHSMs 

used as ingredients and NHSMs 

processed from previously discarded 

materials. 

We would also note that the regulated 

community prior to proposing the 

December 2011 proposed rule and 

commenters to that proposed rule did 

not provide any instances where 

ingredients are combusted or are 

processed from previously discarded 

material that would be a candidate for 

listing categorically. Therefore, we do 

not believe it necessary to modify the 

proposed rule to address this situation. 

However, to the extent that there are 

instances where such materials do exist, 

persons can always petition the EPA to 

modify the rules, including allowing 

ingredients that are combusted to be 

categorically listed to account for such 

materials. 

Comment: In the NHSM Proposal, the 

EPA recognizes that a material can have 

levels of contaminants higher than 

traditional fuels, but still be combusted 

for a legitimate, energy-producing 

purpose (see 76 FR 80483 discussing 

resinated wood). The EPA also has 

proposed that this is true for hazardous 

secondary materials as well (see 76 FR 

44094, 44122; July 22, 2011). 

Notwithstanding this admission, the 

EPA is not proposing to amend its 

legitimacy criterion for contaminants to 

make it a consideration, rather than a 

mandatory criterion. Thus, the EPA’s 

NHSM Proposal is internally 

inconsistent. Under 40 CFR 241.3(d)(iii), 

any material that has contaminants in 

concentrations higher than those found 

in traditional fuels is automatically 

considered a waste, no matter how 

integral the use of the material is to the 

manufacturing process or how 

legitimate the combustion is to the 

purpose of energy recovery. In contrast, 

under proposed 40 CFR 241.4, EPA 

recognizes that materials can have high 

levels of contaminants and still be nonwaste material being legitimately 

combusted for energy recovery. To 

justify this inconsistency, the EPA 

argues that it needs to make a case-bycase determination that a material with 

higher levels of contaminants is a nonwaste to ‘‘prevent sham recycling’’ (see 

76 FR 80482). 

Response: The EPA disagrees with the 

comment that the mandatory nature of 

the self-implementing § 241.3 standards 

(including the contaminant legitimacy 

criterion) for individual facilities is 

inconsistent with the non-waste 

determinations outlined in § 241.4. In 

particular, the legitimacy criteria 

(including the contaminant legitimacy 

criterion) must be met under the selfimplementing standards for individual 

facilities outlined in § 241.3, but the 

same criteria may be balanced by the 

EPA with other relevant factors under 

the categorical non-waste 

determinations outlined in § 241.4. 

These differences are necessary and 

appropriate. Where a particular NHSM 

may not meet all the legitimacy criteria 

outlined in § 241.3(d)(1), but the 

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86Pulp and paper sludges almost entirely remain 

on-site and within the control of the generator when 

burned as fuels. To the extent that pulp and paper 

sludges do not remain within the control of the 

generator and are used as fuels, the petition process 

established in 40 CFR 241.3(c) could apply to these 

materials, as appropriate. 

87Additional information needed to categorically 

list pulp and paper sludges is discussed at 76 FR 

80485. 

88As the EPA has previously stated (76 FR 

15460), the Agency has established regulatory 

legitimacy criteria which may be used by 

companies on a case-by-case basis to show that they 

are not discarding material when used in a 

combustor. However, for the categorical 

determination, the Agency has determined that it is 

appropriate for the Agency, itself, to make the 

discard determination for material that does not 

meet the more strict regulatory criteria. Thus, the 

EPA has developed the categorical determination. 

material is being used as a legitimate 

fuel, the agency has decided it is 

necessary to require a formal 

determination (i.e., not a selfimplementing decision) to prevent 

materials from being burned for discard 

under the guise of recycling. 

Furthermore, the agency has decided 

that such a determination should be 

subject to public notice and comment. 

In cases where the difference between 

recycling and waste treatment is 

difficult to distinguish, as is the case 

when elevated levels of contaminants 

are present, the potential for abuse is 

likely, and thus, regulatory oversight is 

appropriate when making a waste/nonwaste determination. This approach is 

also consistent with what the EPA 

proposed for the hazardous secondary 

material rule cited by the comment— 

that is, the balancing test would be used 

by the EPA in a petition process, not as 

a self-implementing determination. 

Comment: One commenter requested 

that the EPA should specifically 

recognize in the categorical petition that 

the existence of a supply contract 

between a generator of NSHMs and a 

combustor, with specifications that the 

NHSM must meet, should be considered 

dispositive evidence that the NHSM is 

not a waste and is combusted for energy 

recovery, not disposal. 

Response: We disagree with the 

commenter that the mere existence of a 

contract between the generator and 

combustor is dispositive evidence of the 

material being a non-waste. However, 

existence of a contract is a factor to be 

considered in a categorical non-waste 

determination. For example, under 40 

CFR 241.4(a)(1), scrap tires managed 

under established tire collection 

programs are a categorical non-waste 

and the definition of ‘‘established tire 

collection program’’ (40 CFR 241.2) 

explicitly recognizes contracts as 

evidence that the material has not been 

discarded. Specifically, ‘‘Established 

tire collection program’’ means ‘‘a 

comprehensive collection system or 

contractual arrangement [emphasis 

added] that ensures scrap tires are not 

discarded and are handled as a valuable 

commodity through arrival at the 

combustion facility* * *’’ 

Comment: The timeframe for which 

the EPA must grant or deny the request 

should be included as well as defining 

the length of time of 30 days that these 

notices will be open to public comment. 

What is the legal implication of an 

‘‘informal public hearing?’’ How does 

this differ from a public information 

meeting? If it is ‘‘informal,’’ what is the 

purpose? What administrative 

procedures apply to comments made 

during the ‘‘informal public hearing?’’ 

Response: The agency is not imposing 

a deadline on its decision to grant or 

deny a petition, or a specific time period 

for public comment, due to the 

potentially wide range of issues 

involved in considering a categorical 

non-waste petition and because of the 

many factors beyond its control. 

Informal public hearings, similar to 

formal public hearings, provide an 

opportunity for the public to provide 

comments and oral testimony on 

proposed agency actions . All testimony 

received becomes part of the public 

record. Public meetings, on the other 

hand, are less formal; anyone can 

attend, there are no formal time limits 

on statement, and the agency and/or the 

facility usually answer questions. The 

purpose of the meeting is to share 

information and discuss issues, not to 

make decisions. 

Comment: The final rule should make 

clear that the denial of a petition would 

not bar the filer of the denied petition 

from filing a subsequent petition for the 

same location and same materials. 

Response: Where the information 

submitted to make a categorical nonwaste determination has fundamentally 

changed, the EPA agrees that a petition 

to categorically list a NHSM can be 

resubmitted for review. 

5. Materials for Which Additional 

Information Was Requested 

a. Pulp and Paper Sludge 

In the March 2011 NHSM final rule, 

the EPA concluded that pulp and paper 

sludges meet the legitimacy criteria and, 

thus, can be burned as a non-waste fuel 

provided such combustion units are 

within the control of the generator in 

accordance with section 241.3(b)(1).86

The December 2011 proposed rule 

discussed the information we currently 

have on pulp and paper sludges, and the 

additional information that the agency 

would need in order to categorically list 

these materials in 40 CFR 241.4(a) as a 

non-waste fuel.87 If such information 

were provided to the EPA, the agency 

would then consider the legitimacy 

criteria and other factors relevant to a 

determination that these sludges are not 

solid wastes when combusted. 

This categorical listing would put 

pulp and paper sludges in the same 

general grouping as resinated wood 

residuals. For resinated wood residuals, 

the EPA considered that use of that 

material as a fuel has been integrally 

tied to the industrial production process 

and is consistent with that of a fuel 

product. The proposal discussed similar 

information that was needed by the 

agency to support adding pulp and 

paper sludges to 40 CFR 241.4(a) as a 

categorical non-waste. 

Based on the comments received and 

information submitted, the EPA is 

listing as a categorical non-waste fuel 

under section 241.4 those dewatered 

pulp and paper sludges that are not 

discarded and are generated and burned 

on-site by pulp and paper mills that 

burn a significant portion of those 

residuals. Such residual must be 

dewatered and managed in a manner to 

preserve the meaningful heating value 

of those materials. 

This determination for pulp and 

paper sludge as a categorical non-waste 

represents the agency’s finding that, 

after balancing the regulatory 88

legitimacy criteria with other relevant 

factors, the burning of this material as 

described in the categorical listing is a 

commodity fuel for legitimate energy 

recovery and not discard. That is, the 

agency has concluded that, for pulp and 

paper mills that burn a significant 

portion, pulp and paper sludges are 

integral to the mills’ operations and 

provide a critical source of energy. Such 

mills are not burning these dewatered 

pulp and paper sludges to discard them 

but are burning them as a legitimate 

commodity fuel. These facilities take the 

steps necessary to dewater the pulp and 

paper sludges and to manage the 

dewatered sludge to maintain its 

meaningful heating value and not to 

dispose of the sludge. In addition, the 

agency finds for facilities burning a 

significant portion of the dewatered 

sludge that: 

(1) The sludges are managed in a 

manner that preserves meaningful 

heating value and, therefore, meets the 

managed as a valuable commodity 

(241.3(d)(1)(i)). 

(2) Dewatered sludge (i.e., dewatered 

through appropriate water removal 

practices, including dewatering presses, 

rotary driers, etc.) meets the meaningful 

heating value and used in combustion 

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89See April 2, 2012, letter from Timothy G. Hunt 

to James Berlow. A copy of this letter has been 

placed in the docket for today’s rulemaking. 

90While the Agency is not including a specific 

requirement for pulp and paper mills to document 

the amount of dewatered wastewater treatment 

residuals they burn on-site as a fuel, we would 

recommend that such pulp and paper mills include 

such documentation in case there are any questions 

as to whether the pulp and paper mills dewatered 

wastewater treatment residuals qualifies for the 

categorical listing in 241.4. As an alternative, the 

pulp and paper mill can request the Agency to 

confirm (via letter) that the facility generates and 

burns on-site a significant portion of pulp and 

paper sludges such that the facilities pulp and 

paper sludges are included within the categorical 

listing. 

91We note that in the situation where pulp and 

paper sludges are transferred beyond the control of 

the generator, a facility can petition the Agency to 

receive a non-waste determination, as appropriate. 

92Tire-derived fuel used in the paper industry 

must be dewired since the wires often clog the feed 

system. Thus, the industry does not utilize whole 

tires. 

units that recovery energy criterion 

(241.3(d)(1)(ii)). 

(3) The sludge meets the comparable 

contaminant criterion (241.3(d)(1)(iii)). 

The fact that these sludges meet the 

contaminant legitimacy criterion, in the 

EPA’s view, show that these sludges 

when burned on-site are not being 

discarded. While the agency is not 

defining a specific percentage of 

dewatered pulp and paper sludges that 

would need to be burned to qualify for 

the categorical listing in section 241.4, 

the agency would consider that the 42 

mills that responded to an AFPA 

survey 89 and that use dewatered pulp 

and paper sludge as fuels at a significant 

rate (between 70–100 percent of these 

materials that are generated and burned) 

meet the listing description. We also 

find that other mills that burn a 

significant portion of their dewatered 

pulp and paper sludges on-site as fuel 

would qualify for the listing 

description.90 For the pulp and paper 

mills that burn a relatively small 

percentage of their dewatered pulp and 

paper sludges on-site as a fuel (e.g., the 

five mills that responded to the AFPA 

survey that burn less than 20 percent), 

the agency has determined that those 

sludges are not viewed the same by the 

mill operator in that they do not need 

to rely on them for their energy value 

and are not included in the non-waste 

categorical listing in section 241.4. 

However, there is likely little 

difference as to how pulp and paper 

sludge may be defined under NHSM 

rules, whether a categorical or a facilityspecific non-waste determination. That 

is, such dewatered pulp and paper 

sludges may still be considered nonwaste fuels when burned as a fuel for 

energy recovery at mills that burn a 

relatively small percentage of these 

materials, although the rules require 

those facilities to document on a 

facility-specific basis that such sludges 

are non-waste fuels. As discussed in the 

final NHSM rule (76 FR 15488), 

dewatered pulp and paper sludges that 

are burned within the control of the 

generator and meet the legitimacy 

criteria, likely are non-waste fuels and 

thus can be burned in units subject to 

CAA section 112 requirements. 

The agency has restricted the 

categorical listing to those dewatered 

pulp and paper sludges that are burned 

on-site because the agency has minimal 

information on how these NHSMs are 

managed when shipped offsite.91

Outlined below are commenters’ 

responses to the agency information 

requests regarding pulp and paper 

sludges and a categorical non-waste 

determination. 

Comment: The EPA requested 

information on how pulp and paper mill 

sludge is used as a legitimate fuel and 

not discarded at pulp and paper mills 

and how the material is integrated into 

the industrial production process. 

In responding to the agency’s request, 

commenters first provided a summary of 

energy needs by the pulp and paper 

industry. The commenters indicated 

that the industry is somewhat unique in 

its energy profile and in how individual 

mills select appropriate fuels to support 

their energy needs. Most pulp and paper 

mill boilers are specifically designed to 

handle a variety of fuels; few boilers are 

designed to burn just traditional fuel. 

Even mills with boilers specifically 

permitted as pulp and paper sludge 

boilers also burn other fuels. Over the 

years, the industry has recognized the 

benefits of burning secondary materials, 

particularly those generated on-site. 

These secondary materials are derived 

from and have characteristics similar to 

traditional fuel, particularly the biomass 

used to produce pulp and paper 

products. 

Mills do not usually burn just one 

type of fuel at any one time. Some mills 

rely heavily on coal, others on natural 

gas or biomass. According to the 

commenter, the choice of fuel depends 

on availability, cost and need. Hogged 

fuel or coal may be the underlying fuel 

but it is supplemented by other 

traditional and non-traditional fuels. 

This is done in order to meet the energy 

needs of the mill but also to address best 

management practices for the boiler and 

meet air quality requirements. If the 

hogged fuel is wet, coal or resinated 

wood may be added to boost heat value. 

If the boiler is burning too hot, the 

addition of pulp and paper sludge 

enables the mill to regulate temperature. 

Pulp and paper sludge also may be 

burned because it has the best fuel value 

for the price. All of these decisions are 

based on the boiler conditions, fuel 

availability, energy needs, air quality 

requirements, as well as costs, and all 

are considered when the energy 

manager determines the right mix of 

fuel in any given day. 

As a result, the quantities of different 

types of fuels burned over the course of 

a year differ and the mill may not burn 

100 percent of the available fuel 

generated during that year. Not all pulp 

and paper sludges are burned at a given 

mill over the course of a year nor are all 

recycled process residuals (old 

corrugated cardboard rejects) or all 

hogged fuel. The commenter 

emphasized that if only a percentage of 

a secondary material generated by the 

industry is used as a fuel, that it does 

not negate its value as a fuel. Rather, it 

reflects the realities of running a boiler 

for which the economic and operating 

conditions are interconnected and 

dynamic. 

For example in one mill, the 

commenter indicated that combination 

boilers are designed to burn a wide 

variety of fuels efficiently and cleanly. 

Two mills’ boilers currently burn tirederived fuel,92 while one burns waste 

paper generated at the mill. They all are 

capable of burning one or more fossil 

fuels: oil (including used oil), coal and 

gas. The four combination boilers burn 

large amounts of biomass, either 

generated on-site or purchased 

commercially. A portion of three of the 

mills’ biomass consists of sludge 

generated on-site from their wastewater 

treatment processes. 

One state commenter also indicated 

that most mills operate boilers that are 

specifically designed to handle a variety 

of fuels—few boilers are designed to 

burn just traditional fuel and mills do 

not usually burn just one type of fuel at 

any one time. Bark and biomass fuel 

may be the primary fuel but it is 

supplemented by other traditional or 

alternative fuels. 

Secondary materials have been an 

important alternative fuel used safely by 

the mills in the commenter’s state for 

many years. Most of that state’s mills’ 

have multi-fuel boilers. Their fuel 

handling equipment, mill wastewater 

treatment systems and other ancillary 

equipment were designed to combust 

alternative fuels, including pulp and 

paper sludge. Use of these fuels reduces 

reliance on purchased biomass and/or 

fossil fuels and provides a vehicle for 

beneficial reuse of the materials. In light 

of the greater stringency of the CISWI 

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9162 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

93Washington State Department of Ecology 

Industrial Footprint Project Waste Stream 

Reduction and Re-Use in the Pulp and Paper 

Sector, June 2008. 94 Docket EPA–HQ–OAR–2003–0119–2619. 

regulations, the state indicated that the 

mills are likely to landfill these 

materials instead of recovering their fuel 

value if these materials are considered 

solid waste under the CISWI standards. 

Another industry commenter stated 

that four of their five U.S. pulp mills 

produce wastewater treatment residuals 

that are burned in biomass-fired 

combination fuel boilers. At one mill, 

the residual solids are harvested and 

sold under a purchase agreement to an 

Electric Utility Generating plant burning 

various sources of biomass because that 

mill does not have a biomass boiler 

designed to burn the residuals. The 

residuals are primary clarifier solids 

(mostly wood fibers too short for 

product use) which are harvested by 

dewatering through a screw press. The 

residuals are stockpiled in a specific 

managed area before being trucked to 

the power company. At that site, the 

materials are processed and conveyed 

with other forms of biomass for fuel in 

their biomass boiler. Use of the 

wastewater treatment residuals from the 

mill as a fuel at the purchasing site is 

permitted in their air permit. 

One commenter indicates that the 

energy manager at a mill will determine 

the approximate amount of different 

types of fuels needed to obtain the most 

energy under the best operating 

conditions. As pulp and paper sludge is 

generated, it is directed toward the 

hogged fuel pile or towards other nonfuel uses. This decision is based on 

whether the mill’s boiler is designed 

and permitted to burn pulp and paper 

sludge and the amount is determined by 

the energy demands on that particular 

day. 

Another commenter believes that the 

fact that not all pulp and paper sludge 

is combusted at pulp and paper mills is 

evidence that the wood products 

industry only combusts pulp and paper 

sludge for legitimate energy recovery 

and not for disposal. According to the 

commenter, when the pulp and paper 

sludge is not needed as a fuel, it is used 

for non-fuel purposes or is discarded. 

When it is combusted, it is combusted 

for its energy value as a legitimate fuel. 

One mill described by a commenter 

has elected to divert its own-make bark 

to beneficial use as mulch, rather than 

burning it, because it is of poorer quality 

than commercially available biomass. 

That same mill has recently invested in 

a new belt press which provides high 

quality sludge as fuel for its 

combination boiler. Since the press was 

installed in 2011, the percentage of mill 

sludge burned has increased to 80 

percent from under 50 percent. 

Currently, the mill is burning more of 

the sludge from its process than the bark 

it also generates. 

At another plant, the commenter 

indicates that sludge is a by-product of 

the AST process. Their mills employ 

primary clarifiers to separate out solids 

from wastewater, of which 50 percent is 

wood fiber, the primary component.93

These solids are staged in holding or 

blend tanks prior to drying. In addition 

to primary clarifiers and aeration basins, 

AST systems employ secondary 

clarifiers (large, open, circular concrete 

tanks) in which biological solids exiting 

the aeration basin(s) are separated by 

gravity from wastewater. The process is 

carefully regulated to accomplish two 

objectives: making the water as clean 

and free of solids as possible while 

retaining activated sludge (active 

microbes) to re-inject into the biological 

treatment stage of the process. As part 

of this continuous loop, some activated 

sludge must be removed from the 

system to maintain the optimal 

population of active microbes for 

effective treatment. 

After excess secondary sludge is 

removed from the treatment loop at 

three of the mills, it is mixed with 

primary sludge in blend tanks prior to 

being dried on belt presses to a suitable 

moisture level for burning or other uses. 

Sludge is introduced into the mills’ 

solid fuel feed systems by means of 

conveyers where it becomes thoroughly 

mixed with other fuels in the conveyer 

systems before being introduced into the 

mills’ combination boilers. At one mill, 

primary sludge is dried separately by 

means of screw presses while secondary 

sludge is dried using a belt press. The 

two fuels are fed separately by 

conveyers onto the mill’s main solid 

fuel conveyer which transports the bark/ 

sludge mixture to a surge bin. The fuel 

is passed through a ‘‘waste heat dryer,’’ 

where it is briefly exposed to boiler flue 

gas before being fed into the 

combination boiler. The process at all 

four mills is continuous. Operators 

monitor and manage the sludge on a 24 

hour basis. Sludge drying takes place 

entirely within buildings where the 

tanks, pipes, mixers, pumps, polymer 

feed systems, conveyers, presses, 

diversion gates and valves, monitoring 

devices and other equipment necessary 

to produce suitable sludge are housed. 

Sludge burned in the boilers is 

transported to the boilers on feed 

systems designed to ensure sludge, 

biomass and other solid fuels are 

homogeneous, thoroughly mixed and 

not exposed to the elements while being 

conveyed to the boilers. After its 

removal from wastewater treatment, no 

sludge touches the ground until it is 

burned, beneficially used (e.g., recycled 

feedstock to make newsprint) or 

landfilled. 

The commenters indicate that the 

moisture content of biomass is highly 

variable. Operators control fuel use 

based on the mill’s need for steam and 

electricity, fuel costs, fuel quality and 

fuel availability. All factors can change 

at a moment’s notice since the 

production process is constantly 

changing. Pulp and paper production 

swings or curtailments are common. 

Energy demand, fuel cost or fuel quality 

may make it necessary or desirable to 

reduce biomass and sludge combustion, 

even to switch entirely to fossil fuels. 

Environmental emissions occasionally 

can be a factor in fuel use, particularly 

during boiler startup or shutdown, or 

when the mill is experiencing rapid 

fluctuations in steam demand. 

Response: Based on the information 

submitted, and as discussed further in 

our responses below, the EPA is listing 

as a categorical non-waste fuel under 

section 241.4 dewatered pulp and paper 

sludges that are not discarded and are 

generated and burned on-site by pulp 

and paper mills that burn a significant 

portion of such materials where such 

dewatered residuals are managed in a 

manner that preserves the meaningful 

heating value of the materials. 

This determination for pulp and 

paper sludge as a categorical non-waste 

fuel represents the agency’s finding, 

after balancing the legitimacy criteria 

with other relevant factors, that those 

mills that burn a significant portion of 

these pulp and paper sludges are 

burning them as a commodity fuel for 

energy recovery and not discard. The 

discussion above indicates that these 

mills have been designed to utilize pulp 

and paper sludges and use of that 

material as a fuel is an integral part of 

facility operations. Decisions regarding 

use and the right mix of fuel in any 

given day are based on the boiler 

conditions, fuel availability, energy 

needs, air quality requirements and cost. 

Comment: The EPA requested 

information on the amount of pulp and 

paper sludge burned as fuel. 

In 2010, members of AF&PA burned 

772,034 dry tons of pulp and paper 

sludge, which represents approximately 

25 percent of the pulp and paper sludge 

generated by members of AFPA during 

the year.94 However, approximately 90 

percent of the AF&PA member facilities 

that responded to their survey (42 out of 

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95See April 4, 2012, letter from Timothy G. Hunt 

to James Berlow. A copy of this letter has been 

placed in the docket for today’s rulemaking. 

96See Materials Characterization Paper In 

Support of the Final Rulemaking: Identification of 

Nonhazardous Secondary Materials That Are Solid 

Waste—Resinated Wood Products. Docket EPA– 

HQ–RCRA–2008–0329–1820. 

97While the Agency is not including a specific 

requirement for pulp and paper mills to document 

the amount of dewatered wastewater treatment 

residuals they burn on-site as a fuel, we would 

recommend that such pulp and paper mills include 

such documentation in case there are any questions 

as to whether the pulp and paper mills’ dewatered 

wastewater treatment residuals qualifies for the 

categorical listing in 241.4. 

98The Agency acknowledges that some portion of 

these pulp and paper sludges are land applied. 

While the Agency considers such uses as beneficial, 

such recycling is not integral to pulp and paper 

operations, and therefore, the Agency would not 

consider this form of recycling in determining 

whether a facility is recycling a significant portion 

of their pulp and paper sludges. 

99 Docket EPA–HQ–OAR–2003–0119–2619. 

47) that use dewatered pulp and paper 

sludge as fuels do so at a significant rate 

(between 70–100 percent of these 

materials that are generated are burned). 

In fact, one third of the AF&PA facilities 

that responded to their survey (16) that 

burn pulp and paper sludges, burn 100 

percent of the materials generated.95

Response: As the commenter 

indicates, while 25 percent of pulp and 

paper sludges that are generated are 

used as fuels on an industry-wide basis, 

the vast majority of facilities that 

responded to the survey that use 

dewatered pulp and paper sludges as 

fuels do so at a significant rate. In light 

of the information on use of pulp and 

paper sludges, the agency finds that for 

those pulp and paper mills that burn a 

significant portion, that their use as a 

legitimate fuel is integral to the 

operation of the pulp and paper mill. 

The fact that these sludges meet the 

contaminant legitimacy criterion also, in 

the EPA’s view, shows that these 

sludges when burned on-site are not 

being discarded. 

As discussed above, while the agency 

is not defining a specific percentage of 

dewatered pulp and paper sludges that 

would need to be burned to qualify for 

the categorical listing in section 241.4, 

the agency would consider the 42 mills 

that responded to the AF&PA survey as 

meeting the listing description. Where a 

facility has burned or burns in the 

future a significant portion of the 

dewatered pulp and paper sludges that 

are generated, the facility is clearly 

dependent upon the use of these 

materials as fuels in much the same way 

that wood manufacturing facilities are 

dependent upon the stream of resinated 

wood residuals to meet their energy 

demands. Specifically, we note that the 

percentage of overall use of pulp and 

paper sludges as a fuel at facilities 

burning a significant portion of the 

material (70 percent in the AF&PA 

comment above) is similar to the use of 

resinated wood within the wood 

products industry—approximately 73 

percent of resinated wood generated is 

either used as a fuel or is recycled back 

into the wood manufacturing process.96

As noted above, mills that burn a 

significant portion of their dewatered 

pulp and paper sludges on-site as fuel 

in the future would also qualify for the 

listing description.97

On the other hand, when a pulp and 

paper mill burns a relatively small 

percentage of their dewatered pulp and 

paper sludges on-site as a fuel (e.g., the 

five mills that responded to the AF&PA 

survey that burn less than 20 percent), 

the agency has determined that such 

sludges are not viewed the same by the 

mill operator in that they do not rely on 

the sludges for their energy value. As 

noted by one commenter, some mills 

may not produce pulp and paper sludge 

with sufficient fiber, such that the 

sludge is a viable fuel. Therefore, the 

agency finds that such pulp and paper 

sludge should not be included in the 

categorical listing in section 241.4.98

Those companies would need to make 

case-by-case determinations regarding 

legitimacy to support use as a fuel. 

Comment: The EPA requested more 

data on contaminant levels— 

particularly chlorine and metals. 

The NCASI undertook a thorough 

evaluation of data related to 

contaminant levels in pulp and paper 

sludge.99 NCASI looked at the most 

robust information about pulp and 

paper sludge which is found in the 

EPA’s Boiler MACT database. That 

database has pulp and paper sludge data 

comprised of nearly 5,280 records of 

individual data points corresponding to 

46 AF&PA member pulp mills. 

Table 8 of this preamble includes data 

from the EPA traditional fuels table as 

well as the EPA Boiler MACT database 

for pulp and paper sludge. 

BILLING CODE 6560–50–P 

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The commenter indicates, as shown 

in the table, that contaminant levels in 

pulp and paper sludge are well within 

the ranges of metals found in traditional 

fuels. For all 11 HAP metals, except Mn, 

the 90 percent UPL value for sludges is 

less than the corresponding maximum 

for coal. For Mn, which is principally 

derived from biomass, the 90 percent 

UPL value for sludges is well below the 

maximum for biomass. This is also 

reflected in the TSM comparisons with 

and without Mn between coal, biomass 

and pulp and paper mill sludges. 

Chlorine and total halogens (Cl + Fl) in 

sludge compare favorably with both 

biomass and coal. Nitrogen and sulfur in 

sludge also compare favorably with 

coal, although the commenter also 

points out that the nitrogen and sulfur 

contents are generally not indicative of 

HAP formation potential for any fuel, 

and in the case of pulp and paper mill 

sludges in particular, the sulfur content 

of these sludges is typically in the 

inorganic sulfate form that 

predominantly ends up in the 

combustion ashes. 

NCASI found a paucity of data on 

organics in pulp and paper sludge. 

Except for Ds/Fs, which had been 

evaluated extensively in the 1990s, 

organics are not expected to be found in 

pulp and paper sludges. Due to the 

changes in bleaching techniques which 

demonstrated significant reductions in 


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100When pulp and paper sludges are sufficiently 

processed, and such processed material meets the 

legitimacy criteria, the processed materials are nonwaste fuels whether burned within or outside the 

control of the generator. 

the existence of Ds/Fs in sludge, testing 

for even dioxins has not been 

undertaken recently. NCASI notes that 

of the data that do exist, organics are 

rarely found and those that are 

identified are frequently below the 

detection limit. 

Overall, the commenter states that 

contaminant levels in pulp and paper 

wastewater treatment residuals compare 

well to those found in traditional fuels. 

Response: Based on the information 

provided, the agency finds that pulp 

and paper sludges, meet the comparable 

contaminant criterion (241.3(d)(1)(iii)). 

The data confirms the conclusions in 

the NHSM final rule regarding chlorine 

and metals are comparable to the levels 

found in coal, which is a traditional fuel 

that may be burned in these facilities. 

Comment: The EPA requested 

information on what steps the industry 

has taken to ensure the quality of pulp 

and paper mill sludge when used as a 

fuel at pulp and paper mills is 

consistent with that of a fuel product. 

Commenters state that pulp and paper 

mills that generate pulp and paper 

sludge do so as part of their compliance 

with the CWA requirements, as well as 

part of an effort to return as much wood 

fiber to use as possible, either as an 

input to the manufacturing process or as 

a fuel. The strategies that each mill uses 

to meet those requirements differ 

depending upon the type of product, the 

location of the mill and the specific 

standards established by the EPA and 

the respective states. However, mills 

clean wastewaters prior to discharge, 

thus creating primary and a variety of 

secondary pulp and paper sludges, all of 

which capture wood fibers. 

Furthermore, the question of whether 

the quality of the pulp and paper sludge 

is appropriate for a particular mill is 

based on the boiler design. As such, 

there are some boilers well suited to 

burn it; others cannot burn the material. 

At one commenter’s mill, for example, 

the company has invested over $7 

million upgrading sludge drying and 

management equipment. The object of 

these large investments was not to 

remove all of the moisture in the sludge. 

Rather, it was to make sludge quality 

consistent with that of the wet biomass 

burned in its combination boilers. Either 

too much or too little moisture can have 

a deleterious effect on the boilers’ 

combustion. One mill recently installed 

a belt press to improve the reliability of 

its sludge management system and 

increase the average solids content of its 

sludge. Since then, the sludge has 

occasionally caused combustion 

problems in the boiler because it was 

too dry, necessitating additional quality 

control to optimize the sludge’s 

moisture content. 

Another commenter stated they 

invested over $3 million to prevent 

unwanted materials from reaching the 

treatment process and being discharged 

in mill effluent or being incorporated 

into the pulp and paper sludge. Their 

mills make coated paper products, the 

coatings consisting largely of clay and 

other minerals. Improved equipment 

and operating procedures have 

significantly lowered sewer losses of 

these materials, improving the quality of 

wastewater and reducing the ash 

content of these pulp and paper sludges. 

To further pollution prevention, their 

mills set stringent specifications for raw 

materials, such as sulfuric acid and 

caustic soda, which minimizes the 

introduction of trace amounts of heavy 

metals into the process. 

From the standpoint of process 

control, the commenter stated that 

sludge management processes are 

continuous, enclosed and carefully 

controlled. In contrast, bark and wood 

chips may be exposed to the elements 

for extended periods before being 

burned. Depending on the season, 

hardwood bark can get ‘‘stringy’’ and 

become very difficult to process as fuel. 

Frozen bark or chips can jam or disable 

equipment. Purchased fuel can have 

excessive rocks or grit. It is difficult to 

control the quality of biomass burned in 

the commenter’s boilers. Sludge 

frequently exhibits less variability in 

quality than other types of biomass. 

Response: Based on the information 

provided, the agency finds that, for 

facilities burning a significant portion of 

the dewatered sludge, use of the 

material is integral to the facility’s 

operations, particularly in the value 

these materials provide as a critical 

source of energy. At such facilities, 

sludge management processes are 

carefully controlled and the industry 

has taken the necessary steps to ensure 

the quality of pulp and paper mill 

sludge when used as a fuel at pulp and 

paper mills. On the other hand, for 

those pulp and paper mills that do not 

burn a significant portion of their 

dewatered wastewater treatment 

sludges, the agency does not believe that 

the same steps have been taken to 

ensure the quality of the pulp and paper 

mill sludge that is used as a fuel and 

thus, is not an integral part of the pulp 

and paper mill operations. 

Comment: The EPA requested 

information on what are the standard 

practices used to ensure pulp and paper 

sludge has meaningful heating value. 

As noted in the October 2011 pulp 

and paper sludge paper the AF&PA 

submitted prior to the December 2011 

proposal, the overwhelming majority of 

pulp and paper mills remove water from 

pulp and paper sludge prior to 

managing it in any way. Belt and screw 

presses are most commonly used in the 

industry. Some mills use steam heated 

filter presses. Some pulp and paper 

sludge is also further dried in steam 

heated rotary driers. As indicated 

previously, sludge drying takes place 

entirely within buildings where 

equipment necessary to produce 

suitable sludge is housed. Sludge 

burned in the boilers is transported to 

the boilers on feed systems designed to 

ensure sludge, biomass and other solid 

fuels are homogeneous, thoroughly 

mixed and not exposed to the elements 

while being conveyed to the boilers. In 

all instances, the goal is to raise the 

solids content—and thus, Btu value. 

Response: Based on these comments 

and other information in the record, the 

agency finds that facilities that burn a 

significant portion of these materials 

take the steps necessary to dewater the 

pulp and paper sludge and to manage 

such dewatered sludge to maintain its 

meaningful heating value and burn the 

sludge for energy recovery. 

Comment: The EPA requested 

information on how pulp and paper mill 

sludge is managed when shipped offsite. 

There are several mills within the 

industry that have agreements with 

other facilities, primarily electric 

utilities that purchase pulp and paper 

sludges for use as biomass-based fuel. 

For the most part, these arrangements 

occur when there is a utility close to the 

pulp and paper mill because the cost of 

shipping such sludges long distances 

may be prohibitive. Pulp and paper 

sludges may be sent offsite when it is 

being used by other entities to produce 

another product, (including fuel 

pellets 100), used for other purposes 

(land application, use as landfill cover), 

or for final disposal. Pulp and paper 

sludges are shipped by containers, truck 

or rail. 

Response: The agency recognizes that, 

as described above, some pulp and 

paper sludges are sent offsite for use as 

a fuel. However, the agency has 

restricted the categorical listing to those 

pulp and paper sludges that are burned 

on-site because the agency has minimal 

information on offsite use of these 

materials. In fact, the pulp and paper 

industry indicates that the great 

majority of these sludges, when burned 

as a fuel, are burned on-site. Also, in the 

few instances that the pulp and paper 

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101We note that in the situation where pulp and 

paper sludges are transferred beyond the control of 

the generator, a facility may also petition the 

Agency to receive a non-waste determination, as 

appropriate. 

102See 76 FR 80485. 

103 Id. 104See 76 FR 80485. 

industry discussed in their comments 

that these materials were shipped 

offsite, they seem to be sent to other 

industries. The fact that these sludges 

are sent to other industries would not 

necessarily disqualify those dewatered 

pulp and paper sludges from being 

considered for listing categorically. 

However, the agency does not have 

sufficient information to make any 

determination.101

Comment: For reasons stated 

previously in comments on the June 

2010 proposed rule, one commenter 

argues that pulp and paper sludges are 

waste when burned regardless of 

whether it is burned by the company 

that generated it and regardless of 

whether it meets the EPA’s legitimacy 

criteria. Paper mill sludge is a waste 

because it is discarded within the 

meaning of RCRA. 

The EPA’s description of pulp and 

paper sludge shows that it remains a 

waste even under the agency’s own 

definition of discard. First, the EPA 

acknowledges that pulp and paper mills 

have no use for pulp and paper sludge; 

the fibers it contains are ‘‘too short to be 

suitable for papermaking and it contains 

microorganisms that feed on organic 

material in the wastewater stream.’’ 102

Second, the fact that paper mill sludge 

comes from ‘‘the wastewater stream,’’ 103

in itself confirms that it is a waste. 

Third, the EPA’s discussion of the 

contaminant levels in paper mill sludge 

shows substantial variation in chlorine 

levels. Where the EPA encounters such 

variability in the course of setting floors 

for CISWI units in the very same 

Federal Register notice, the agency uses 

a 99th percent UPL to assure that the 

level it chooses will not be exceeded. 

Yet, where the EPA encounters 

variability in the chlorine levels in pulp 

and paper sludge—variability that could 

lead to significantly higher emissions of 

chlorinated pollutants, such as HCl and 

dioxins—the agency simply dismisses it 

without further ado. The EPA’s 

disparate treatment of the variability of 

emissions for floor setting and of the 

chlorine levels in pulp and paper sludge 

for the purposes of considering a 

categorical declaration that such sludge 

is not a waste is unexplained and 

arbitrary. 

If the agency believes that such 

variability exists, it should be concerned 

about the possibility that some sludges 

may have far higher chlorine levels than 

it assumes—as, indeed, the record 

shows some sludge does—and should 

take steps to ensure that this is not the 

case before it even considers an 

exemption. Indeed, the agency’s failure 

to examine this possibility renders the 

existing rule, which allows generators to 

burn their own sludge, arbitrary and 

capricious. 

Fourth, the EPA admits that sludge 

contains extremely low heating values, 

so low in some instances as to flunk the 

agency’s legitimacy criteria. That 

sources typically dewater their sludges 

does not make these sludges any less a 

waste, even under the agency’s own 

definition of discard. The EPA does not 

say what the heating value of the 

sludges is after dewatering, nor does it 

make any difference what the ‘‘dry 

weight’’ heating value of sludges might 

be, as they are not at ‘‘dry weight’’ when 

burned. The reality is that paper mills 

find it cheaper to burn their sludges 

than to dispose of them safely and that 

because these sludges are largely 

‘‘wastewater’’ and contain high levels of 

chlorine and other contaminants, 

burning them requires large quantities 

of other fuel and generates high levels 

of pollution. 

Response: The agency disagrees with 

the commenter that all pulp and paper 

sludges are waste fuels when 

combusted. To the extent comments 

were submitted in response to the 

March 2011 final rule, the agency need 

not respond. Below, the EPA responds 

to the new points raised in the 

comments. 

With respect to the particular 

arguments on the categorical listing, the 

agency disagrees that the sludge remains 

a waste even under the agency’s own 

definition of discard. The comment is 

incorrect when it states that the EPA has 

acknowledged pulp and paper mills 

have no use for pulp and paper sludge 

because the fibers it contains are ‘‘too 

short to be suitable for papermaking and 

it contains microorganisms that feed on 

organic material in the wastewater 

stream.’’ 104 In the proposed rule, we 

stated that fibers that end up being too 

short can be detrimental to paper 

quality. Although this would not be 

suitable for papermaking, these sludges 

are a valuable resource as energycontaining secondary materials as 

discussed in detail in the comments 

above. As much as 50 percent of the 

sludge is composed of wood fibers 

which are similar in content to other 

types of biomass fuel combusted. 

Further, the agency disagrees that 

pulp and paper mill sludges are wastes 

because they are contained in a 

‘‘wastewater’’ stream. The D.C. Circuit 

in, API v. EPA, 216 F.3d at 58, rejected 

the proposition that the mere presence 

in a wastewater stream makes a material 

a waste. In API, the D.C. Circuit 

criticized the EPA for not saying why it 

concluded that the disposal motivation, 

compliance with water quality 

standards, predominated over the 

recycling motivation, recovery of oil 

from primary wastewater treatment. 

Plainly, the mere presence of oily 

material in wastewater did not make the 

oil a waste. In this case, the EPA has 

found in its categorical listing that the 

motivation for burning the pulp and 

paper sludge is to use its inherent value 

as a fuel and not for disposal. Comments 

have provided the agency with 

information that facilities that burn a 

significant portion of these sludges 

consider them to be an integral part of 

their production process, particularly in 

the value these materials provide as a 

critical source of energy. We disagree 

that the disposal motivation 

predominates over the true value of 

these sludges as an important fuel, 

integral to the production processes. 

The EPA also disagrees that the 

treatment of the variability of emissions 

for floor setting and of the chlorine 

levels in pulp and paper sludge for the 

purposes of considering a categorical 

declaration that such sludge is not a 

waste, is unexplained and arbitrary. The 

agency notes that, rather than 

dismissing the variability of chlorine 

levels in pulp and paper sludges, it has 

considered all available data—including 

data on variability—and reached the 

conclusion that contaminant levels in 

pulp and paper sludges are comparable 

to or lower than those in the appropriate 

traditional fuel(s). The EPA 

acknowledges that, based on data 

submitted to the agency since 

promulgation of the March 2011 final 

rule and presented in the December 

2011 proposed rule, chlorine levels in 

paper mill sludge show substantial 

variation. This is an important factor to 

consider when making a categorical 

non-waste determination and the agency 

has considered mean concentrations, 

the range of concentrations, and 

variability when analyzing pulp and 

paper sludges. 

As stated in the proposed rule and 

information in the rulemaking record, 

data for pulp and paper sludges show 

mean chlorine concentrations of 361 

ppm, well below the mean of 992 ppm 

observed in coal. Data for pulp and 

paper sludges also show maximum 

chlorine concentrations of 4,800 ppm, 

well below the maximum of 9,080 ppm 

observed in coal and below the 

maximum of 5,400 ppm observed in 

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105See 76 FR 80485. 

106Contaminant Concentrations in Traditional 

Fuels: Tables for Comparison, November 29, 2011, 

can be found at http://www.epa.gov/epawaste/ 

nonhaz/define/index. 

107The 99 percent Chebyshev UPL for nonnormal datasets was calculated using EPA’s ProUCL 

4.0 Software available at http://www.epa.gov/ 

nerlesd1/tsc/software.htm. 

108The final rule notes that meaningful heating 

value is derived from an NHSM with energy content 

lower than 5000Btu/lb if the ERU can costeffectively recover meaningful energy from the 

NHSM used as fuel (76 FR 15541). 

109Coal refuse refers to any by-product of coal 

mining or coal cleaning operations, consisting 

primarily of non-combustible rock with attached 

coal. Due to advances in technology over the past 

century, the processing of coal has evolved, such 

that materials that are now generated in the coal 

mining process, which would have been considered 

coal mining rejects in the past and discarded in 

waste piles, are now handled and processed as coal. 

110See 76 FR 15507. 

111 Id. 

112See 76 FR 15509. 

113See August 15, 2011, letter to Jeff A. McNelly, 

ARIPPA (cited in the proposed rule: 76 FR 80486). 

untreated wood and biomass materials. 

The variability of chlorine levels in pulp 

and paper sludge is demonstrated by a 

standard deviation of the mean of 661 

ppm.105 106 This variation in chlorine 

levels, although high, does not discount 

the fact that both average and maximum 

chlorine concentrations in pulp and 

paper sludge are lower than those in 

coal which is defined as a traditional 

fuel. 

The comment also implied that the 

EPA should use the 99 percent UPL, as 

is used to set the CISWI floors, to ensure 

that these pulp and paper sludges do 

not contain excessive contaminant 

levels. The agency disagrees that any 

one statistical tool or comparison 

methodology will fit every situation 

given the variety of NHSMs, traditional 

fuels, contaminants and combustion 

units that exist. Nevertheless, the 

agency has calculated the 99 percent 

UPL for chlorine levels in pulp and 

paper sludge in response to the 

comment and come to the same 

conclusion. The 99 percent UPL for the 

same dataset of 93 samples analyzed in 

the proposed rule would be 6,970 ppm, 

a value below chlorine concentrations 

observed in coal.107

Finally, we disagree that pulp and 

paper sludge contains extremely low 

heating values that would fail the 

agency’s legitimacy criteria. In terms of 

meeting the legitimacy criteria for a 

meaningful heating value, the agency 

indicated in the NHSM final rule that 

pulp and paper sludges have a heating 

value of between 3,300–9,500 Btu/lb, on 

a dry basis—no specific information 

having been submitted on the ‘‘as fired’’ 

heating value of these materials. The 

final rule concluded that pulp and 

paper sludges meet the legitimacy 

criterion for being managed as a 

valuable commodity as they are 

dewatered to increase their energy 

value, collected on a continual or 

frequent basis (as produced), and further 

processed and consolidated, including 

the removal of biosolids. Further, as 

discussed in detail above, where a 

facility is burning a significant portion 

of the dewatered pulp and paper 

sludges that are generated as fuel rather 

than other purchased biomass or fossil 

fuels, pulp and paper sludges are 

integral to the facility’s operations and 

the facility is clearly dependent upon 

the heating value of these materials.108

Thus, we find, as discussed in the final 

rule, that pulp and paper sludges are not 

discarded and generally meet the 

meaningful heating value legitimacy 

criterion (46 FR 15488). 

b. Coal Refuse 109

In the 2011 NHSM final rule, the EPA 

included currently generated coal refuse 

within the definition of traditional fuel 

codified in 40 CFR 241.2. In discussing 

its determination that currently 

generated coal refuse is a traditional 

fuel, the agency said, ‘‘the fact that coal 

refuse has been used and managed as a 

fuel for thirty years when coupled with 

the fact that coal refuse is unique from 

other non-hazardous secondary 

materials in that it is a byproduct of fuel 

production processes and is itself a raw 

material that can be used as a fuel leads 

us to determine that coal refuse that is 

currently generated and used as a fuel 

should be considered a traditional 

‘alternative fuel.’ ’’ 110

The 2011 NHSM final rule also 

determined that coal refuse that has 

been placed in legacy piles would not 

meet the definition of traditional fuels, 

as they clearly have been discarded in 

the first instance.111 Since coal refuse 

recovered from legacy piles is subjected 

to the same operations that are used to 

process virgin coal, which serve to both 

increase energy values, as well as 

reduce contaminants, the EPA 

determined that such processes were 

sufficient to meet the definition of 

‘‘processing,’’ as codified in 40 CFR 

241.2, and such recovered coal refuse 

would not be considered a solid waste 

when used as a fuel in a combustion 

unit provided those materials satisfy the 

legitimacy criteria.112

The 2011 NHSM final rule also stated 

our belief that coal refuse recovered 

from legacy piles contains contaminants 

at levels that are comparable to or lower 

than coal refuse that is currently 

generated, as the recovered coal refuse 

is subject to the same processes as 

currently-generated coal refuse in order 

to meet the same fuel specifications. 

Since promulgation of the 2011 NHSM 

final rule, the agency has further 

clarified that it believes that coal refuse 

recovered from legacy piles that is 

processed and managed in the same 

manner as currently generated coal 

refuse satisfies the legitimacy criteria.113

Having determined that coal refuse 

recovered from legacy piles that is 

processed and managed in the same 

manner as currently generated coal 

refuse satisfies the legitimacy criteria, 

the 2011 proposed rule solicited 

comment on whether to categorically 

list post-processed coal refuse from 

legacy piles as a non-waste fuel in 40 

CFR 241.4(a). However, the EPA made 

it clear that it was not reopening any 

other issues regarding coal refuse. Other 

comments regarding coal refuse are 

responded to in the record for the final 

rule. In this part of the preamble, we are 

only responding to the issue of whether 

coal refuse processed from legacy piles 

should be considered a non-waste fuel 

on a categorical basis. Accordingly, the 

EPA is not responding in this preamble 

or the Response to Comment document 

on issues regarding whether coal in 

legacy piles are traditional fuels. 

Comment: One commenter states that 

not every material that is discarded is 

treated as solid waste under the rule. 

For example, the EPA includes 

numerous materials within its definition 

of ‘‘traditional fuels’’ and ‘‘clean 

cellulosic biomass’’ that are commonly 

understood as used, discarded, and 

abandoned, listing, for example, corn 

stover, peanut shells and certain types 

of demolition materials. The commenter 

argues that each of these materials is 

either discarded or has filled its original 

purpose and may be collected by a 

different party for a different purpose 

(i.e., use as a fuel). 

The commenter continues that 

although the agency has ample authority 

to exempt certain articles from 

classification as solid wastes, it did not 

consistently apply the term ‘‘discarded’’ 

in the context of legacy coal refuse. For 

example, the EPA recognized that onspecification used oil and clean C&D 

materials should be treated as 

traditional fuels when combusted for 

energy generation. Thus, the commenter 

urges the agency to revisit its 

application of the ‘‘discard’’ principle 

and treat all coal refuse, regardless of 

when they were generated and 

regardless of processing to be fuels and 

not wastes. 

Response: The EPA disagrees with the 

comment, which seems to 

misunderstand the purpose of this 

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114See definition of traditional fuels, as codified 

in 40 CFR 241.2. We note that the December 2011 

proposal did not solicit comment on the definition 

of traditional fuels. 

115See Petrolia, Dr. Daniel R., ‘‘Economics of 

Crop Residues: Corn Stover.’’ June 2009. A copy of 

this document has been placed in the docket to 

today’s rulemaking. 

116See Materials Characterization Paper in 

Support of the Final Rulemaking: Identification of 

Nonhazardous Secondary Materials That are Solid 

Waste, Biomass—Agricultural Residues and Food 

Scraps.’’ February 3, 2011. A copy of this document 

can be found in the docket for today’s rulemaking. 

117Note that Section III.D.2.c of today’s preamble 

discusses circumstances under which offspecification used oil may use coal data when 

making contaminant comparisons. 

rulemaking action. If the agency 

determines in this rulemaking that a 

material is a solid waste when 

combusted, the unit combusting that 

material would be subject to emissions 

standards issued under CAA section 129 

even if burned as a fuel. A material is 

not discarded simply because it is no 

longer used for its original purpose. It 

may be used as a fuel product by 

another party, providing the conditions 

the EPA has explained in the rule apply. 

In such a case, the reused material is not 

a waste. Further, the agency is not 

exempting any materials from the 

definition of solid waste. The EPA is 

only describing the kinds of materials 

that are wastes when burned in 

combustion units, even if they are 

burned for energy recovery. The EPA 

consistently applies the concept of 

‘‘discard.’’ 

Materials listed as examples of clean 

cellulosic biomass cited by the 

commenter have not been discarded in 

the first instance, as is clearly the case 

for coal refuse abandoned in legacy 

piles. While some materials have filled 

their original purpose, that fact, in and 

of itself, does not equate to discard. 

Clean cellulosic biomass is considered 

to be a type of ‘‘alternative fuel’’ within 

the definition of ‘‘traditional fuel.’’ Such 

alternative fuels are developed from 

virgin materials that can now be used as 

fuel products.114 This applies to the 

examples mentioned by the commenter, 

including corn stover, peanut shells and 

clean construction and demolition 

wood. Further, coal refuse mined today 

that would have previously been 

abandoned in piles are also alternative 

fuels that are now grouped in the 

traditional fuel category because of new 

technology. This is separate from coal in 

legacy piles that have been traditionally 

wastes. 

Further, there is a clear difference 

between the management of the listed 

examples of clean cellulosic biomass 

and coal refuse abandoned in legacy 

piles. For example, the commenter 

characterizes corn stover as ‘‘typically 

left in the field to decay’’ and thus 

discarded. The EPA assumes this 

statement is based on the historic use of 

leaving corn stover in the field as a 

cover to reduce erosion and for nutrient 

content.115 As noted by the agency 

previously, over the course of this 

rulemaking, an emerging market for 

corn stover and other primary and 

secondary agricultural residues is for 

use as a heat and power source for the 

production of corn and cellulosic 

ethanol.’’ 116 When the determination is 

made to use corn stover for its fuel 

value, the materials are managed 

differently than merely ‘‘left in the field 

to decay.’’ If there were legacy piles of 

such materials, they too would have to 

be treated as wastes while in the legacy 

piles. We would also note that it is not 

unreasonable to expect that agricultural 

materials, such as corn stover, may be 

left on the field until there are sufficient 

amounts of those materials to be 

collected, baled and transported. This is 

clearly a different scenario from coal 

refuse left in place in piles with no 

purpose other than abandonment and 

clearly managed as a waste for decades. 

With respect to used oil, the agency 

has already explained in the final March 

2011 rule the difference between onspecification and off-specification used 

oil as applied to the definition of solid 

waste. The on-specification used oil is 

considered an alternative fuel that has 

not been abandoned and, by regulation, 

may be burned with no more 

restrictions than refined product oil. 

Off-specification used oil is specifically 

described in the EPA’s regulations as a 

material that may only be burned in 

certain combustors because it exceeds 

contaminant levels established under 

part 279, rendering it off-specification 

and, accordingly, evaluated under part 

241 to determine its waste/non-waste 

status.117

Comment: One commenter argues that 

off-specification tires are analogous to 

legacy coal refuse to the extent they are 

set aside and not used immediately by 

the factory. Since the agency proposes 

to include off-specification tires within 

the definition of ‘‘established tire 

collection program’’ and not consider 

these materials to be a solid waste when 

used a fuel, the agency should treat 

legacy coal refuse similarly. 

Response: We disagree with the 

commenter that coal refuse abandoned 

in legacy piles is analogous to the 

handling and management of offspecification used tires. Coal refuse that 

has been placed in legacy piles decades 

ago has clearly been abandoned, thrown 

away and thus, discarded and 

historically managed as a waste. On the 

other hand, the agency has information 

that tire manufacturers that have 

produced off-specification tires 

(including factory scrap) have 

contractual agreements in place to 

ensure these materials are collected, 

managed and transported to the 

combustor. In fact, it is the requirement 

that scrap tires (including offspecification tires) be managed pursuant 

to established tire collection programs 

that ensures these materials are 

managed as a valuable commodity in 

order to meet the categorical non-waste 

determination codified in 40 CFR part 

241.4(a). 

Further, as we have noted elsewhere 

in today’s preamble, to the extent that 

these off-specification tires are 

discarded, such as in tire piles, they 

would be considered solid waste in that 

they have been discarded, and would 

not be included within the categorical 

listing of ‘‘scrap tires that are not 

discarded and are managed under the 

oversight of established tire collection 

programs, including tires removed from 

vehicles and off-specification tires.’’ 

Comment: One commenter states that 

the EPA, consistent with the intent of 

RCRA, should be encouraging the use of 

legacy coal refuse, not hampering them. 

The commenter argues that 

characterizing coal refuse in legacy piles 

as a solid waste could subject legacy 

coal refuse piles to additional federal 

and state requirements and potentially 

result in the piles being classified as 

open dumps or solid waste management 

units. Further, combustors of legacy coal 

refuse and their suppliers would also be 

more likely to be subject to citizen suits 

under RCRA 40 CFR 7002. This 

commenter argues that the 

determination that unprocessed legacy 

piles are different—and should be 

regulated differently—than coal refuse 

generated from current mining 

operations is illogical because the 

characteristics of the materials are the 

same. Thus, although the EPA takes the 

position that subjecting legacy coal to 

the types of operations that are used to 

process virgin coal is sufficient to 

convert the legacy coal refuse from solid 

waste into a non-waste fuel, the initial 

designation as solid waste risks 

regulatory confusion regarding the 

status of the numerous piles of legacy 

coal refuse. 

Response: This comment is clearly 

beyond the scope of this rulemaking 

proceeding. In the first place, legacy 

coal piles are, indeed, wastes. How they 

may be treated when they are in the 

piles is clearly beyond the scope of this 

rule. This rule deals with how the 

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118See 76 FR 15474–15477. 

119See last sentence of ‘‘traditional fuels’’ 

definition, as codified in 241.2: ‘‘[Traditional] fuels 

are not secondary materials or solid wastes unless 

discarded’’ (emphasis added). 

120See also discussion included in the 2011 

NHSM final rule (76 FR 15499–15502). 

121See 76 FR 15507, which states, ‘‘Coal refuse 

is unique, however, from other non-hazardous 

secondary materials addressed in this rulemaking, 

as it is generated in the process of producing fuels 

(i.e., the mining of coal for use as fuel) and its 

subsequent use and value as a secondary material 

is also as a fuel. Since the primary product of a coal 

mining operation is itself a fuel, we consider coal 

refuse to be more akin to a raw material that is 

subsequently processed and utilized to produce a 

fuel. In other words, coal refuse is different from 

other non-hazardous secondary materials, such as 

used tires or resinated wood residuals, in that it is 

generated in the production of fuel and can be used 

itself as a fuel (and in fact has never been used for 

anything else).’’ 

122See 76 FR 15509. In addition, subsequent to 

the 2011 NHSM final rule, the EPA has reiterated 

this determination. See August 15, 2011, letter to 

Jeff A. McNelly, ARIPPA (cited in the proposed 

rule: 76 FR 80486). 

legacy coal is to be treated when it is 

taken from the piles and burned for fuel. 

Comment: While supporting the 

concept of a categorical listing for legacy 

coal refuse, a few commenters argued 

that the agency should not require that 

legacy coal refuse be ‘‘processed’’ in 

order to be considered a non-waste fuel. 

One commenter noted that the EPA does 

not require traditional fuels or resinated 

wood to undergo processing to be 

treated as a fuel, even though many of 

those materials would be understood to 

be discarded. 

Another commenter noted that the 

term ‘‘post-processing,’’ which was used 

in the proposal as a shorthand 

description of legacy coal refuse that has 

undergone processing, is too vague and 

should be eliminated so the use of 

extracted coal refuse undergoing further 

processing at the generating facility is 

not discouraged. If applied too literally, 

the commenter continued, any ‘‘postprocessing’’ provision being imposed on 

treating legacy coal piles as fuel would 

not benefit the CFB community and 

could hinder the usage of these piles as 

fuels. The commenter argues that the 

term ‘‘post-processing’’ could be 

interpreted as requiring processing at 

the coal refuse excavation site which 

would not be determinative of any 

relevant characterization of the coal 

refuse or its intended use as fuel. 

Response: In the 2011 NHSM final 

rule, the EPA discussed how a NHSM, 

once discarded, can be processed into a 

non-waste fuel.118 The proposed rule 

did not solicit comment on either the 

concept of processing a discarded 

NHSM into a non-waste fuel or the 

definition of ‘‘processing’’ itself, as 

codified in section 241.2. Therefore, the 

agency does not address the concept or 

definition of processing in this final 

rulemaking. 

Again, however, the comment 

suggests a need to clarify the nature of 

the rulemaking exercise that the EPA is 

currently engaged in. First, we disagree 

with the commenter’s characterization 

that many of the traditional fuels and 

resinated wood should be understood to 

be discarded. Traditional fuels, by 

definition, are not discarded.119 If 

clearly discarded (e.g., a barrel of fuel 

oil dumped), even a traditional fuel 

would have to be processed per the part 

241 regulations in order to be a nonwaste fuel. However, it is precisely 

because of their fuel value that makes it 

unlikely that traditional fuels will be 

discarded. We also disagree that 

resinated wood is discarded prior to 

being or when used as a fuel in a 

combustion unit. For a discussion of 

why we believe resinated wood is a 

non-waste fuel, please see section 

III.E.3.b of this preamble.120

As noted above, coal refuse 

abandoned in legacy piles has clearly 

been discarded in the first instance 

because the coal preparation technology 

did not yet exist that could utilize these 

materials for their fuel value. Thus, 

legacy coal refuse would have to be 

processed into a non-waste fuel. 

However, the agency has previously 

recognized the uniqueness of coal refuse 

in that it is a byproduct of fuel 

production processes and is itself a raw 

material that can be used as a fuel.121 In 

the 2011 NHSM final rule, the agency 

determined that coal refuse that is 

recovered from legacy piles and used as 

fuel that is subjected to the types of 

operations that are used to process 

virgin coal or currently generated coal 

refuse would meet our definition of 

processing as codified in 40 CFR 

241.2.122

As the processing that is required is 

no different than what currentlygenerated coal refuse is subject to, we 

do not believe the processing 

requirement would hinder the usage of 

coal refuse piles. The agency believes 

the only additional ‘‘processing’’ step is 

the actual extraction or recovery of the 

coal refuse from the legacy piles. To the 

extent that the term ‘‘post-processing’’ 

could be misconstrued as requiring an 

additional processing step at the 

extraction site or otherwise as compared 

to currently generated coal refuse, this 

was not the agency’s intent. Rather, we 

have included the concept of 

‘‘processing’’ in the categorical nonwaste determination for legacy coal 

refuse, as legacy coal refuse was clearly 

discarded and, prior to processing, is a 

solid waste. That said, we clarify again 

today that coal refuse recovered/ 

removed from legacy piles that is 

processed in the same manner as 

currently generated coal refuse would 

meet the definition of processing as 

codified in section 241.2. No additional 

processing is required given the 

uniqueness of coal refuse. For 

commenters suggestions regarding the 

explicit wording of the categorical 

listing for legacy coal refuse, see 

additional response to comments below. 

Comment: In support of the agency’s 

soliciting comment on whether to add 

legacy coal refuse to the list of 

categorical non-waste fuels proposed in 

40 CFR part 241.4, one commenter 

states that once removed from the 

physical mining location, legacy coal 

refuse and currently-generated coal 

refuse are indistinguishable. Thus, coal 

refuse from legacy piles will be 

managed in the same manner as coal 

refuse, will have similar heating value 

as coal refuse and be used as a fuel in 

a combustion unit that recovers energy 

and can be expected to have similar 

contaminant levels as coal refuse 

because it is ostensibly the same 

material. 

Response: We agree that coal refuse 

recovered/removed from legacy piles 

and processed in the same manner as 

currently generated coal refuse would 

meet both the definition of processing 

and the legitimacy criteria. Thus, we 

have determined to list ‘‘coal refuse that 

has been recovered from legacy piles 

and processed in the same manner as 

currently-generated coal refuse’’ to the 

list of categorical non-waste fuels 

codified in part 241.4(a) of today’s 

rulemaking. The rationale for adding 

this NHSM to the list of non-waste fuels 

follows the reasoning finalized in part 

241.4(b) in today’s rulemaking. We 

agree with the reasoning of the comment 

and have, in fact, arrived at the very 

same reasoning in support of the 

categorical listing. 

Comment: One commenter argued 

that the EPA should treat legacy coal 

refuse as fuels, since they are 

chemically identical, if not superior 

fuels, to currently generated coal refuse 

that the agency considers to be a 

traditional fuel, per the definition 

codified in 40 CFR 241.2. 

Response: Again, the EPA must 

explain a misunderstanding expressed 

by the commenter. The comment seems 

to consider that material is either a 

‘‘fuel’’ or a ‘‘waste’’ and misses the point 

that the distinction in this rulemaking is 

between a ‘‘product’’ and a ‘‘waste’’ 

fuel. Fuels may be wastes. The point is 

that the coal that has been abandoned in 

piles is a waste. However, the EPA has 

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123We note that it would not be appropriate to 

include currently generated coal refuse within this 

categorical non-waste determination, as we have 

previously determined and continue to believe that 

currently generated coal refuse is a traditional fuel. 

124See 76 FR 15510. 

125See 76 FR 15480. 

126See 76 FR 80472. 

127 In the preamble to the proposed rule, the 

agency indicated the type of information and data 

that should be submitted to categorically list 

manure as a non-waste fuel. Specifically: (1) The 

extent that use of the NHSM has been integrally tied 

to the industrial production process—information 

can include combustor design specifications, the 

extent that the use of the material is integrated 

across the industry and the extent that use of the 

NHSM is essential to the industrial process and/or 

(2) the extent that the NHSM is functionally the 

same as the comparable traditional fuel and (3) 

other relevant factors. 

determined that once processed that 

coal is either identical (or maybe even 

superior) to currently mined materials 

that would have become refuse in the 

past. 

The EPA agrees with, and has 

adopted, the same reasoning expressed 

by the commenter that the processed 

material is a product fuel. The 

disagreement between the EPA and the 

comment is the status of the legacy piles 

and the nomenclature of the coal finally 

burned. The coal is a processed fuel 

product, not a traditional fuel. 

Comment: One commenter stated that 

there are ‘‘other relevant factors’’ that 

the EPA should consider when 

determining whether coal refuse from 

legacy piles should be categorically 

listed as a non-waste fuel. Specifically, 

the commenter believes that the EPA 

should consider the ‘‘overwhelming 

resultant environmental improvements’’ 

associated with the cleanup of 

abandoned coal refuse piles, including 

the reduction of fire hazards and 

contaminant, siltation, and solids 

releases into the environment, as an 

‘‘other relevant factor’’ as it considers 

listing legacy coal refuse as a non-waste 

fuel in § 241.4. 

Response: The EPA’s decision to 

include processed legacy coal refuse to 

the list of non-waste fuels in § 241.4(a) 

was based on the fact that such 

materials meet the definition of 

processing and the legitimacy criteria. 

We do not need to balance ‘‘other 

relevant factors’’ in making this 

determination, as would be appropriate 

under an analysis conducted under 

§ 241.4(b)(5)(ii). 

Comment: The EPA received a few 

comments regarding the specific 

wording of how coal refuse recovered 

from legacy piles should be identified 

and described in § 241.4(a) should the 

agency determine to categorically list 

this NHSM pursuant to § 241.4(a). One 

commenter suggested inserting the 

following text as a subsection within 

§ 241.4(a): ‘‘Coal refuse that does not 

constitute currently-generated coal 

refuse, but that is processed in the same 

manner as currently-generated coal 

refuse.’’ As previously discussed, 

another commenter stated that the term 

‘‘post-processed’’ was vague and could 

be interpreted to require additional 

processing that would hinder the usage 

of legacy coal refuse piles. Still another 

commenter suggested referencing the 

SMCRA in a categorical non-waste 

determination for coal refuse, which 

would ensure that the coal refuse is a 

fuel and minimize overlapping 

regulatory jurisdiction that could 

evolve. 

Response: As discussed above, we 

have determined to list ‘‘coal refuse that 

has been recovered from legacy piles 

and processed in the same manner as 

currently-generated coal refuse’’ to the 

list of categorical non-waste fuels, as 

codified in § 241.4(a) of today’s 

rulemaking. We believe this language 

accurately captures the scope of 

materials at issue and what must occur 

for the material to be categorically 

characterized as a non-waste fuel. That 

is, this categorical listing only applies to 

coal refuse that has been discarded in 

the first instance in legacy piles, 

subsequently recovered or removed 

from the discard environment and 

subjected to the same processes and 

operations as currently generated coal 

refuse.123 Further, this language should 

alleviate any concerns that the term 

‘‘post-processed’’ is vague since that 

term is not being used within this 

provision as finalized today. 

We do not agree with the comments 

that a categorical listing for legacy 

refuse should specifically reference 

SMCRA. As we noted in the preamble 

to the 2011 NHSM final rule, while the 

EPA recognizes that SMCRA is 

concerned with the management and 

removal of coal refuse piles at mining 

sites, SMCRA does not address the issue 

of ‘‘discard,’’ which is critical to the 

definition of solid waste under 

RCRA.124 Thus, a specific reference to 

SMCRA would be inappropriate as well 

as confusing. Further, we believe that a 

specific reference to SMCRA would be 

in fact more burdensome than the 

language of the categorical listing being 

codified today, which simply states that 

legacy coal refuse must be processed in 

the same manner as currently-generated 

coal refuse, regardless of whether such 

processing is done pursuant to SMCRA. 

c. Manure 

In the 2011 NHSM final rule, the EPA 

stated that based on the information 

provided, we could not make a blanket 

determination that all manure is a 

traditional fuel or that it is a solid waste. 

However, upon reviewing the few 

comments and data received, we 

concluded that animal manure that is 

used as a fuel ‘‘as generated’’ does not 

satisfy the legitimacy criteria, and thus, 

if combusted ‘‘as generated,’’ would be 

a solid waste.125 However, the agency 

also noted that there were 

circumstances where manure would not 

be considered a solid waste when 

burned as a fuel for energy recovery, 

specifically: (1) When the manure 

remained within the control of the 

generator and met the legitimacy 

criteria; (2) when the manure was 

sufficiently processed (e.g., via 

anaerobic digestion or gasification 

processes) and the resulting material 

met the legitimacy criteria; and (3) when 

a facility received a determination from 

the agency pursuant to 241.3(c) stating 

that its manure was a non-waste when 

used as a fuel. For further discussion 

regarding our characterization of 

manure, see the preamble to the 2011 

NHSM final rule (76 FR 15479–15482). 

In the December 2011 proposed rule, 

the agency noted that some parties have 

identified the potential of manure to not 

be considered a solid waste. We, 

therefore, invited parties to present 

information, including data 

demonstrating that manure is not 

discarded either through the existing 

non-waste petition process or the 

proposed categorical determination 

process.126 The agency received no 

information or data that would allow it 

to consider proposing to list manure 

categorically as a non-waste fuel.127

Therefore, we are not taking any action 

in the rulemaking with respect to 

manure. However, the agency did 

receive several comments from one 

commenter which we will respond to 

below. 

Comment: The commenter states that 

dried animal manure should be 

included as a non-waste with the other 

fuels in 40 CFR 241.4(a). The 

commenter contends that there is no 

evidence that any animal manure is 

discarded, let alone sent to landfills. 

Manure is generally used as fertilizer on 

fields, although an important secondary 

purpose is for energy recovery/ 

generation. In addition, the commenter 

states there are several known instances 

of additional plans for animal manure 

energy projects that are designed 

specifically to recover energy, including 

government funded projects. 

The commenter notes that after 

drying, animal manure has a meaningful 

Btu value equal to or above that of other 

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128See 76 FR 15480–15481. 

129 76 FR 15482. 130See 76 FR 15541. 

biomass that the EPA has determined to 

be a non-waste fuel (e.g., bagasse). The 

commenter also notes that there are 

contracts in place for livestock and 

poultry producers to supply manure to 

the combustor. 

Regarding contaminants in manure, 

the commenter states that the amount of 

contaminants is limited because the vast 

majority of applicable contaminants are 

directly related to the contaminants 

contained in the biomass consumed by 

the animals. The EPA has not presented 

any evidence that facilities are 

combusting manure in order to discard 

chlorine or nitrogen, the two 

contaminants identified by the EPA. 

These concentrated contaminants are no 

different than what occurs in the 

production of ‘‘byproducts of ethanol 

natural fermentation processes,’’ which 

the EPA is now proposing to include in 

the definition of ‘‘clean cellulosic 

biomass.’’ Based on a ‘‘balancing of the 

legitimacy criteria and other such 

relevant factors,’’ the EPA‘s new 

standard, animal manure should be 

included in the 40 CFR 241.4(a) fuels 

list, along with resinated woods and 

scrap tires. 

Response: We disagree with the 

commenter on several points and do not 

believe that the case has been made to 

include animal manure as a categorical 

non-waste fuel in 40 CFR 241.4(a). First, 

in the 2011 NHSM final rule, we 

previously determined that animal 

manure that is used as fuel, ‘‘as 

generated,’’ would not satisfy the 

legitimacy criteria. This conclusion was 

based on the fact that such material 

likely would not satisfy the meaningful 

heating value and contaminant 

legitimacy criterion.128 Thus, we believe 

that the burning of such materials (as 

generated) would not be legitimate and 

would be seen as burning for discard. 

Further, the agency has never stated that 

a NHSM, including animal manure, has 

to be landfilled in order to be discarded, 

as the commenter implies. Regarding 

the use of manure as fertilizer, we have 

been clear that this rulemaking does not 

address that secondary use. The 2011 

NHSM final rule states, ‘‘We recognize 

that manure may also be beneficially 

used in other end uses, such as a 

fertilizer * * * EPA is not making any 

determination whether non-hazardous 

secondary materials are or are not solid 

wastes for other possible beneficial end 

uses. Such beneficial use 

determinations are generally made by 

the states for these other beneficial uses, 

and EPA will continue to look to the 

states to make such determinations.’’ 129

The commenter notes additional 

plans for animal manure energy 

projects; however the fact that there are 

plans for future projects does not 

support a categorical non-waste 

determination today. As the EPA has 

acknowledged, facilities may be able to 

demonstrate that they satisfy the 

legitimacy criteria, either through a selfdetermination if the manure remains 

within the control of the generator or 

through the § 241.3(c) non-waste 

determination petition process. Thus, 

any future energy project using animal 

manure as fuel could utilize either of 

these options for determining that the 

manure is a non-waste fuel, as 

appropriate. 

Regarding the commenter’s points 

related to meaningful heating value of 

dried manure, the fact that dried 

manure may have a greater Btu value 

than bagasse is not directly on point. To 

demonstrate that a NHSM has 

meaningful heating value when used as 

a fuel, a facility does not compare 

relative Btu/lb of the NHSM against 

other traditional fuels, which 

themselves have a wide range of heating 

values. Rather, consistent with other 

EPA rulemakings, we have established 

5,000 Btu/lb as a benchmark for 

demonstrating that a NHSM has 

meaningful heating value. Thus, to meet 

the meaningful heating value legitimacy 

criterion, the material would need to 

meet an ‘‘as fired’’ heating value of 

5,000 Btu/lb, or if lower than 5,000 Btu/ 

lb, as fired, a person would need to 

demonstrate that the ERU can costeffectively recover meaningful energy 

from the NHSM used as a fuel.130 We 

also note that the EPA did not reopen 

the meaningful heating value for fuels, 

as codified in 40 CFR 241.3(d)(1)(ii), in 

the December 23, 2011, proposed rule. 

Thus, in order to meet this criterion, the 

dried manure would need to meet an 

‘‘as fired’’ heating value of 5,000 Btu/lb, 

or if lower than 5,000 Btu/lb, the facility 

would need to demonstrate that the ERU 

can cost-effectively recover meaningful 

energy from use of manure as a fuel. 

Regarding the commenter’s statement 

regarding contracts between livestock 

and poultry producers and combustors, 

first we would note that no information 

has been provided to indicate who has 

entered such contracts or how many 

such contracts there are to consider this 

factor. However, as we have stated 

elsewhere in this preamble, contractual 

arrangements can be used as evidence 

that the material is managed as a 

valuable commodity and that discard is 

not occurring when a material is 

transferred beyond the control of the 

generator. However, the fact that there is 

a contractual relationship by itself is not 

dispositive that a material is not a 

waste, as there are contracts between 

parties to remove and dispose of wastes. 

We also believe that the commenter’s 

statements that the concentrated levels 

of contaminants are no different than 

what occurs in the production of 

‘‘byproducts of ethanol natural 

fermentation processes’’ is not 

supported by any information or data. 

That is, other than the general 

statement, the commenter has not 

provided contaminant data, for either 

animal manure or byproducts of ethanol 

natural fermentation processes, for the 

agency to analyze and compare. 

Thus, we have determined based on 

the lack of any information or data that 

animal manure should not be listed as 

a categorical non-waste fuel in 

§ 241.4(a). 

Comment: In the event that the agency 

does not list animal manure as a 

categorical non-waste fuel, the EPA 

could alternatively decide that 

processing of animal manure by drying, 

constitutes ‘‘sufficient processing,’’ such 

that previously discarded manure could 

be considered recovered for energy 

recovery, just like scrap tires could be 

processed and burned as a non-waste. 

Response: In the December 23, 2011 

proposal, the agency did not solicit 

comment on the definition of 

‘‘processing,’’ as codified in 40 CFR 

241.2. Thus, this comment is beyond the 

scope of the rulemaking and will not be 

addressed in today’s final action. 

d. Other Materials for Which Additional 

Information Was Not Requested 

In the December 2011 proposal, the 

agency solicited comment on a focused 

list of NHSMs and, in particular, 

whether these NHSMs would be 

appropriately included in the 

categorical list of non-waste fuels that 

the agency was proposing in 40 CFR 

241.4(a). Specifically, the agency 

proposed and/or invited comment and 

additional information regarding 

potential categorical non-waste 

determinations for resinated wood, 

scrap tires managed pursuant to 

established tire collection programs, 

pulp and paper sludges, and coal refuse 

recovered from legacy piles. 

Although comment was requested 

only for these specific materials, the 

agency received comments that many 

other NHSMs be listed as categorical 

non-wastes for which it did not request 

additional information as a part of this 

rulemaking. As we have discussed 

elsewhere in today’s preamble, we will 

not be responding to such comments 

and issues that are beyond the scope of 

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131Comments on December 23, 2011 proposed 

rule supporting a categorical non-waste for paper 

recycling residuals: American Forest & Paper 

Association, et al. EPA–HQ–RCRA–2008–0329– 

1946–A1; Georgia-Pacific LLC (GP) EPA–HQ– 

RCRA–2008–0329–1902–A1; National Alliance of 

Forest Owners (NAFO) EPA–HQ–RCRA–2008– 

0329–1950–A2; Packaging Corporation of America 

(PCA) EPA–HQ–RCRA–2008–0329–1966–A1; and 

United Steelworkers (USW) EPA–HQ–RCRA–2008– 

0329–1910–A1. Comments supporting a categorical 

non-waste for paper recycling residuals and C&D 

wood: American Forest & Paper Association, et al. 

EPA–HQ–RCRA–2008–0329–1946–A1; 

Construction Materials Recycling Association 

(CMRA) EPA–HQ–RCRA–2008–0329–1928–A1; 

Covanta Energy Corporation (Covanta) EPA–HQ– 

RCRA–2008–0329–1893–A; Energy Recovery 

Council (ERC) EPA–HQ–RCRA–2008–0329–1927– 

A1; Georgia-Pacific LLC (GP) EPA–HQ–RCRA– 

2008–0329–1902–A1; Michigan Biomass EPA–HQ– 

RCRA–2008–0329–1905–A1; National Alliance of 

Forest Owners (NAFO) EPA–HQ–RCRA–2008– 

0329–1950–A2; United Steelworkers (USW) EPA– 

HQ–RCRA–2008–0329–1910–A1; Waste 

Management (WM) EPA–HQ–RCRA–2008–0329– 

1957–A2; and Weyerhaeuser EPA–HQ–RCRA– 

2008–0329–1930–A1. 

132See draft letter from Paul Noe to Adminstrator 

Lisa Jackson, December 6, 2012, (item to be placed 

in the docket for today’s rule). 

133 [76 FR 15487] 

134For a discussion of OCC rejects, see 76 FR 

15486–7. 

135See ‘‘Generation, Management, and Processing 

of Paper Processing Residuals’’ (Industrial 

Economics, October 26, 2012) (these items will be 

placed in the docket.) 

136See 76FR 15485 

137Letter from American Forest & Paper 

Association and American Wood Council to Lisa 

Jackson, dated December 6, 2012 (a copy of this 

letter can be found in the docket for today’s rule) 

today’s narrow rulemaking. We would 

also note that since the agency did not 

specifically solicit comments on these 

additional materials or propose that 

these NHSMs should be categorically 

listed in 40 CFR 241.4(a), the Agency 

will be going through notice and 

comment rulemaking before making a 

final decision. However, we would like 

to note two additional NHSMs—paper 

recycling residuals and construction 

and demolition wood processed 

pursuant to best practices that, based on 

information provided to the agency,131

we now believe are good candidates and 

expect to propose categorical listings in 

40 CFR 241.4(a) in the near future for 

these two materials. With respect to a 

third NHSM—creosote-treated railroad 

ties, the Agency has recently received a 

draft petition from The American Forest 

& Paper Association and the American 

Wood Council seeking a categorical 

listing for these materials. As noted 

below, the Agency has requested 

additional information from the 

petitioners with regard to their request. 

If the additional information supports 

the representations made in the 

petitioners’ draft December 6, 2012 

petition, the EPA expects to propose a 

categorical listing for this material as 

well.132

Paper Recycling Residuals 

The first of these is paper recycling 

residuals (including old corrugated 

cardboard (OCC) rejects). In the 2011 

NHSM final rule, EPA determined that 

paper recycling residuals, referred to as 

OCC rejects, are not discarded when 

used under the control of the generator, 

such as at pulp and paper mills, since 

these non-hazardous secondary 

materials are part of the industrial 

process.133 Regarding the legitimacy 

criteria, the Agency found that these 

materials meet the criteria with respect 

to management as a valuable commodity 

and used as a fuel when burned on-site. 

In addition, the Agency found that the 

contaminant levels in these materials 

are comparable to those in traditional 

fuels. With respect to the meaningful 

heating value criterion, the Agency 

determined that OCC rejects meet this 

criterion if it can be demonstrated that 

the combustion unit can cost-effectively 

recover energy from these materials.134

Since publication of the March 2011 

rule, the Agency has received additional 

information regarding the cost 

effectiveness of paper recycling 

residuals use as a fuel, including 

amounts of paper recycling residuals 

replacing traditional fuels at paper mills 

and percentages of residuals generated 

that are combusted as fuel. In general, 

this information also indicates that this 

material is primarily combusted as a 

fuel on-site or within the control of the 

generator.135 We have asked the 

industry for information to confirm this. 

EPA believes the information received 

to date would tend to support a 

categorical determination of these 

residuals as non-waste fuels. For 

residuals that are transferred offsite, the 

Agency would like additional 

information about residuals that are also 

burned as a fuel at facilities that are not 

under the control of the generator, 

including information as to how and 

where they are burned and whether they 

are managed as a valuable commodity. 

If the Agency receives information 

confirming treatment of these materials 

offsite, the Agency would expect to 

include these residuals in a subsequent 

rulemaking. 

Construction and Demolition Wood 

Processed Pursuant to Best Practices 

The second of these NHSMs is 

construction and demolition (C&D) 

wood processed pursuant to best 

practices and produced and managed 

under the oversight of a comprehensive 

collection system or contractual 

arrangement. In the March 2011 final 

rule, we determined that C&D wood that 

is sufficiently processed can be a nonwaste fuel.136 The Agency has received 

additional information since the 

issuance of that rule on specific best 

management practices used by 

suppliers/processors of C&D wood. 

Such practices include processing to 

remove contaminants. EPA believes the 

information received to date would tend 

to support a listing of these materials as 

a categorical non-waste fuel and expects 

to propose that listing in a subsequent 

rulemaking. 

Other Materials Under Consideration 

The American Forest & Paper 

Association and the American Wood 

Council submitted a draft petition to 

EPA on December 6, 2012 seeking a 

categorical listing for creosote-treated 

railroad ties.137 This draft petition lists 

their bases for the determination, with 

supporting information. 

The information included amounts of 

railroad ties combusted each year and 

value of the ties as fuel. Overall, the 

petitioners believe the information 

demonstrates that these materials are 

non-waste fuels and would allow EPA 

to categorically list this material, 

balancing the legitimacy criteria with 

other relevant factors. The draft petition 

provides information representing a 

determination that the material has high 

Btu value, and that the material satisfies 

the legitimacy criteria. The Agency is 

still in the process of reviewing the 

petition. However, in order to inform 

the scope of the non-waste category, we 

have also asked the petitioners to 

provide additional information, 

including: 

1. A list of industry sectors, in 

addition to forest product mills, that 

burn railroad ties for energy recovery 

2. The types of boilers (e.g., kilns, 

stoker boilers, circulating fluidized bed, 

etc.) that burn railroad ties for energy 

recovery 

3. The traditional fuels and relative 

amounts (e.g., startup, 30%, 100%) of 

these traditional fuels that could 

otherwise generally be burned in these 

types of boilers 

4. The extent to which non-industrial 

boilers (e.g., commercial or residential 

boilers) burn railroad ties for energy 

recovery 

5. Laboratory analyses for 

contaminants known to be present in 

creosote-treated railroad ties or known 

to be significant components of 

creosote, specifically polycyclic 

aromatic hydrocarbons (i.e., PAH–16), 

dioxins, dibenzofurans, 

hexachlorobenzene, biphenyl, 

quinoline, cresols, and 2,4- 

dinitrotoluene. 

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138Letter from Jeffrey Miller, Treated Wood 

Council to Lisa Feldt, December 17, 2012. (a copy 

of this letter can be found in the docket to today’s 

rule) Additional supporting information is found in 

the Comments of Treated Wood Council, dated Feb. 

20, 2012)( EPA–HQ–RCRA–2008–0329–1897. 

139See 76 FR 80473. 

140See 76 FR 80474. 

141We recognize that new sources that are coming 

online that will have to comply with these rules 

much sooner than do existing sources. As such, the 

Agency will consider prioritizing the processing of 

non-waste petitions it has received from new 

sources as appropriate. 

142Note that the compliance date for the Area 

Source Boiler Rule is March 21, 2014. 

Assuming that the additional 

information supports and supplements 

the representations made in the 

petitioner’s December 6, 2012 draft 

petition, the EPA also expects to 

propose a categorical listing for this 

material. To the extent that petitioners 

would like to provide additional 

information, the Agency will consider 

such information as well. 

EPA has also received a related letter 

from the Treated Wood Council asking 

that nonhazardous treated wood be 

determined as a categorical non-waste, a 

broader category that would include 

creosote-treated ties.138 EPA is in the 

process of reviewing this letter, and may 

also propose a categorical listing for this 

broader set of treated wood material. 

Finally, we would note that if any 

person provides sufficient information 

to EPA regarding any other NHSM, EPA 

would also consider listing such 

material(s) categorically, pursuant to 40 

CFR 241.4(b). 

6. Streamlining of the 40 CFR 241.3(c) 

Non-Waste Determination Petition 

Process 

In the proposed rule, the EPA asked 

for comments on streamlining or other 

improvements to the existing provision 

for non-waste determinations codified at 

40 CFR 241.3(c). 

The agency requested comment on 

whether the EPA’s grant of the petition 

should apply as of the date that the 

petition was submitted to the agency.139

The agency also requested additional 

comment on whether any other changes 

could be made to the non-waste 

determination petition in order to 

streamline the process, while at the 

same time provide the EPA with the 

opportunity to ensure that such NHSMs 

are not being discarded. For example, 

the EPA requested comment on whether 

public comment should be sought on 

each individual petition.140

Comment: Concerning the request for 

comment regarding when a petition 

determination would apply, the agency 

received several comments. Specifically, 

the agency requested comment on 

whether the EPA’s grant of the petition 

should apply as of the date that the 

petition was submitted to the agency. 

Commenters agreed that a non-waste 

determination under 40 CFR 241.3(c) 

should be retroactively applied to the 

date the petition was submitted. 

Commenters were concerned about 

the timeliness of the EPA’s decision on 

these determinations and on the 

uncertainty surrounding the usage of the 

NHSMs while a non-waste 

determination petition is pending. The 

commenters argue that if a NHSM is 

determined to be non-waste, the 

combusted NHSM in question was also 

non-waste prior to the determination. 

Response: The agency understands 

the interests of petitioners awaiting an 

agency decision on the status of 

materials, while a 40 CFR 241.3(c) 

petition is being considered. In order to 

lessen the uncertainty surrounding the 

regulatory status of a particular material, 

the agency will utilize the date the 

petition was submitted as the date that 

the combusted materials will be 

considered a non-waste if the agency 

grants the petition. 

Comment: Many commenters 

indicated concern that the petition 

process could take excessive time for 

the agency to reach a decision. They 

requested self-imposed timeframes for 

the EPA’s granting/denying requests and 

a shorter length of time for the notices 

to be open for public comment (or omit 

it altogether). The combustors stated 

they need quick decisions in order to 

comply with the CAA regulations and to 

make efficient business decisions. 

Response: The agency considered the 

commenters’ suggestion, but decided 

not to impose a deadline on its decision 

because there are many factors beyond 

its control, including how long it takes 

for the petitioner to submit a complete 

petition to EPA for evaluation. We 

would note, however, that even though 

the NHSM rule will become effective on 

April 8, 2013, for all practical purposes, 

existing facilities that currently burn 

NHSMs from off-site sources will have 

a substantial amount of time to submit 

and have the EPA process a non-waste 

determination petition before having to 

comply with the CAA emission 

standards, as the compliance date for 

existing CISWI sources subject to CAA 

129 standards is 5 years after the date 

of publication of the CISWI final rule or 

3 years after the state plan is approved, 

whichever happens earlier and February 

7, 2016, to comply with the Boiler 

MACT rule.141 142 Thus, we believe that 

there will be more than adequate time 

for persons to determine whether or not 

a NHSM sent to a combustion unit not 

under the control of the generator has 

not been discarded and meets the 

legitimacy criteria, prepare and submit 

a non-waste determination petition to 

the EPA, have the EPA process the 

petition, including soliciting comment 

on the EPA’s proposed determination, 

and make a final decision. 

In regard to the comment on reducing 

the time the petition application is open 

for public comment, the agency decided 

that the comment period shall remain at 

30 days but the regulatory text is 

changed from ‘‘at least 30 days’’ to ‘‘30 

days’’ in order to promote clarity, while 

affording an opportunity for public 

comment. 

Comment: One commenter strongly 

encouraged the agency to develop and 

deploy an on-line form to identify 

materials for non-waste determinations. 

Commenters also noted that the EPA 

should provide more detailed 

information about how the 

determinations are made (particularly 

for the comparable contaminant 

determinations). 

Response: The agency will consider 

the development of a form to identify 

the specific information needed to 

determine whether a NHSM meets the 

legitimacy criteria and other provisions. 

If the agency develops such a form, it 

would be made available on the NHSM 

Web site. Please note that traditional 

fuel data (including tables for traditional 

contaminants) are available to the 

public, which they may find useful in 

assessing the contaminant legitimacy 

criteria. Refer to those tables in 

‘‘Contaminant Concentrations in 

Traditional Fuels: Tables for 

Comparison’’ currently posted on the 

NHSM web site at http://www.epa.gov/ 

osw/nonhaz/define/index.htm. That 

document will aid in comparing the 

concentration of contaminants in their 

NHSMs to concentration of 

contaminants in traditional fuels. In 

addition, rule clarification letters and 

petition findings are also posted on the 

Web site when finalized. 

Comment: A commenter suggested 

that the non-waste petition process 

should allow for ‘‘balancing’’ of 

legitimacy criteria similar to that 

included for categorical determinations 

in 40 CFR 241.4. 

Response: Under 40 CFR 241.4 of the 

proposed regulation, the EPA can 

balance the legitimacy criteria with 

other relevant factors in making 

categorical non-waste determinations. 

As the commenter points out, we have 

not discussed the applicability for 

similar balancing under 40 CFR 241.3 

non-waste determination petitions. The 

EPA distinguished between 40 CFR 

241.3 and 40 CFR 241.4 because in the 

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143See 76 FR 80473. 

latter, the EPA makes the determination 

based on its review and analysis of 

industry-wide data and other factors, as 

opposed to a specific site. However, the 

EPA recognizes the points the 

commenter raises and will consider 

whether such modifications may be 

appropriate. 

Comment: Several commenters were 

interested in features that streamline 

and add flexibility to the administrative 

petition process, particularly in the 

situation where a petition can apply to 

multiple combustors. 

One commenter noted that any 

interested person—including forest 

owners—should be able to initiate the 

petition process, not just combustors. 

The petitions should be allowed for 

entire classes of a NHSM rather than 

requiring a case-by-case analysis. These 

clarifications will encourage all 

members in the biomass supply chain to 

promote their products and co-products 

as clean, renewable fuels and promote 

the development of new markets for 

biomass materials. Other commenters 

also stressed the need for the EPA to 

clarify that the petition can apply to 

more than one combustor so that 

redundant petitions do not need to be 

filed in every region. 

A commenter also stated that the 

benefits from petitions could be 

achieved more efficiently if the 

regulatory language was changed to 

allow for nation-wide petitions under 40 

CFR 241.3(c) for classes of combustion 

units rather than requiring separate 

petitions for each EPA region. 

Response: The agency agrees with the 

commenters that the process should 

accommodate for petition applications 

from third party producers of a NHSM 

that can be used as a non-waste NHSM 

fuel at many combustion units instead 

of just accepting petitions from 

individual combustors or combustors 

within the control of one EPA region. 

This can make for a more streamlined 

and efficient process. Therefore, the 

regulatory provision at 40 CFR 241.3(c) 

has been modified to allow for the 

petition to be sent to the Assistant 

Administrator for the OSWER instead of 

each Regional Administrator if the 

petition covers more than one EPA 

Region. This is at the option of the 

petitioner. The Assistant Administrator 

for the OSWER would be responsible for 

the EPA’s administrative process in 

order to finalize the petition decision 

under 40 CFR 241.3(c) and the 

regulatory language has been modified 

accordingly. 

Finally, as noted in the 2011 NHSM 

final rulemaking, states, or private 

entities, can submit non-waste 

determination petitions to the EPA on 

behalf of petitioners. They can petition 

for a single combustor or a class of 

combustors (e.g., a specific usage of a 

non-hazardous secondary material in a 

particular state). Therefore, in regard to 

the comment on nationwide petitions 

for classes of combustion units, the 

petition process accommodates for these 

classes of combustion units. This 

assumes that the petition identifies all 

of the specific NHSMs that the classes 

of combustion units use as fuel (that are 

applicable to a 40 CFR 241.3(c) petition) 

and gives the information necessary to 

meet the legitimacy criteria and other 

requirements. 

Note that if a petition covers multiple 

facilities in a single region, the petition 

should be sent to the Regional 

Administrator for that Region, not to the 

Assistant Administrator for the OSWER. 

Comment: Several commenters argued 

that the 40 CFR 241.3(c) petitions 

should not require public comment for 

each individual petition. 

One commenter stated that ‘‘the 

administrative petition process could be 

further streamlined by not seeking 

public comment on every individual 

petition. By filing an administrative 

petition, a petitioner is not seeking to 

change the EPA’s regulatory program or 

create new legal rights or obligations. 

Instead, the administrative petition 

process provides an opportunity for a 

petitioner to obtain in advance [A]gency 

concurrence, based on sound science, 

with respect to the classification of a 

particular feedstock under existing 

regulations. In this respect, the 

administrative petition process differs 

from the categorical non-waste 

determination * * * where EPA makes 

changes to the regulatory status of 

certain non-hazardous secondary 

materials that are reflected in the Code 

of Federal Regulations. Because the 

public—through this rulemaking 

process—has an opportunity to provide 

input on EPA’s regulations, there is no 

need to provide a second opportunity 

for public comment when those 

regulations are applied by the EPA in 

specific contexts through the 

administrative petition process.’’ 

In addition, other commenters 

indicated that public notice and 

comment is not necessary, since the 

NHSM rulemaking process has already 

taken comment on the methodology, in 

addition to other rationale. In particular, 

one commenter stated, ‘‘Streamlining 

could be further facilitated by 

recognizing that solicitation of public 

comment on each individual 

application would be redundant and 

unnecessary given the public’s ample 

opportunity during this rulemaking to 

comment on the evaluation criteria that 

will govern non-waste determination 

petitions.’’ Another commenter stated, 

‘‘The reason for public participation in 

the hazardous waste petition process is 

that the materials subject to the petition 

are to be removed from the hazardous 

waste regulatory program. In the NHSM 

world, the secondary materials subject 

to the petition are merely obtaining 

clarity about regulatory status—they are 

not seeking a change in regulatory 

status. Therefore, the need for the full 

public participation process is not 

necessary or warranted.’’ 

Response: Although industry 

commenters argued that public 

participation is unnecessary, the EPA 

still believes that public participation is 

an important part of a transparent 

decision making process and values 

how it increases transparency. In the 

final rule, we will retain the public 

participation requirement in order to 

promote public awareness. 

7. Revised Introductory Text for 40 CFR 

241.3(a) 

As part of its discussion clarifying the 

non-waste determination petition 

processes, the EPA noted that it had 

examined a number of specific NHSMs 

and decided which were to be 

considered solid wastes based on the 

record available at the time the March 

2011 final rule was issued.143 The rule 

itself had stated at 40 CFR 241.3(a) that 

secondary materials were solid wastes 

except for those described in section 

241.3(b). Essentially, section 241.3(b) is 

the operative section that states what 

materials are not wastes. The purpose of 

the non-waste determination petition 

process in section 241.3(c) and the new 

proposed petition process in section 

241.4 is to allow various parties the 

opportunity to provide information and 

data so that the EPA could decide what 

other NHSMs are not solid wastes. The 

preamble stated that the agency 

proposed to amend section 241.3(a) to 

state that such secondary materials are 

‘‘presumed to be’’ solid wastes except 

for those described in section 241.3(b) 

in order to better reflect the rulemaking 

record. 

Comment: No commenters supported 

inclusion of the ‘‘presumed to be’’ 

language in the rule. 

Most of the commenters on the 

language argue that it means that the 

EPA continues to improperly determine 

that certain NHSMs are presumptively 

wastes. Commenters generally argue 

that the ‘‘presumed to be’’ language 

shows that the EPA, in spite of 

statements to the contrary, is continuing 

to make an inappropriate determination 

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144Note how the April 4, 2012, letter from 

Timothy G. Hunt to James Berlow (a copy of which 

is in the docket for today’s rule), provided specific 

information on pulp and paper sludge where the 

EPA added a categorical determination based on 

specific information provided by industry. 

that NHSMs transferred to other parties 

are presumptively wastes until a 

combustor proves otherwise. According 

to comments, the use of the ‘‘presumed 

to be’’ language is a clear statement that 

the EPA is making the presumption. The 

addition of these words does not change 

the fact that, under the EPA’s regulatory 

framework, NHSMs are wastes until 

proven otherwise. 

Several commenters, in fact, argued 

that to address the legal flaws in the 

proposal, the EPA should reverse the 

presumption and presume that NHSMs 

burned for energy recovery or used as an 

ingredient is not for the purpose of 

disposal and, therefore, is not a waste. 

Response: The EPA is not addressing 

in this rulemaking the comment that the 

agency has inappropriately made 

presumptions about whether materials 

are wastes. This issue has not been 

reopened. Instead, the agency has only 

opened very specific issues on 

particular wastes. 

In the December 2011, proposal at 76 

FR 80473, the EPA referred to the March 

2011 preamble in which the agency 

stated that it has not ‘‘arbitrarily 

determined that secondary materials 

transferred between companies are 

wastes. Instead, the EPA has evaluated 

whether certain categories of materials 

are discarded or not. The Agency has 

not adopted the extremes of saying that 

all burning of secondary material, 

regardless of ultimate use, is waste 

treatment or that any secondary material 

that is recycled for legitimate fuel value 

is a commodity and not a waste. Wastes 

may have value, but are still wastes.’’ 76 

FR 15471. Further, the agency stated 

that it ‘‘has examined a number of 

specific materials, recycled within the 

control of the generator and transferred 

to a third party for recycling, and 

determined whether they would be 

appropriately placed within the waste 

or non-waste categories.’’ Id. The EPA 

went on to examine a number of 

different categories of NHSMs used as 

fuels and ingredients that was 

summarized in the Federal Register (76 

FR 15477–15520). The EPA cannot 

‘‘reverse’’ a presumption that it never 

made to declare that materials burned 

for energy recovery are presumptively 

non-wastes. Further, it would be 

entirely improper for the agency to do 

so. The EPA has evaluated specific 

groups of materials as to their waste 

status, while the comments regarding 

reversal of a purported presumption 

have only presented arguments ‘‘in 

broad abstraction, providing little detail 

about the many processes throughout 

the industry that generate residual 

material’’ that could be subject to this 

rule. Association of Battery Recyclers v. 

EPA, 208 F.3d 1047, 1056.144

Accordingly, the agency stands on its 

March 2011 rulemaking record for the 

issues discussed in these comments. 

Comment: Comments objected that 

the change in word choice that materials 

are ‘‘presumed to be’’ solid wastes from 

the statement that that materials ‘‘are’’ 

solid wastes (except as otherwise 

provided in the regulation) still puts the 

burden to prove material is not a waste 

on persons who use NHSMs in 

combustion units. One comment, in 

particular, noted that there would be no 

practical effect of the new language even 

though it is viewed by the EPA as an 

‘‘optically less drastic stance.’’ That is, 

there would be no real leeway for a 

party in an enforcement proceeding to 

counter the EPA’s prosecution based on 

the fact that the secondary material in 

question is only ‘‘presumed to be’’ a 

waste, rather than the material ‘‘is’’ a 

waste. 

Response: The EPA has decided not to 

retain the ‘‘presumed to be’’ language, 

since it is unnecessary and does not 

actually reflect the rulemaking record. 

No comment argued in favor of it. In 

addition, there is no need to temper the 

existing language stating that a material 

is a solid waste if it does not fall within 

the § 241.3(b) categories or the nonwaste determination processes. As 

noted in the previous response to 

comments regarding the agency’s 

‘‘presumption’’ of the waste status of 

materials, the agency stands on its 

March 2011 rulemaking record. 

E. Cost and Benefits of the Final Rule 

The RCRA aspects of this rule do not 

directly invoke any costs (excluding 

minor administrative burden/cost), or 

benefits. Any RCRA related costs to the 

regulated community, and 

corresponding benefits to human health 

and the environment, have been 

considered as part of the CISWI action, 

and the corresponding CISWI and Boiler 

MACT (area source and major source) 

final rules. As such, the agency has not 

prepared a separate cost-benefit 

assessment in support of this part of the 

final rule. Consequently, any potential 

costs or benefits, including impacts to 

small entities, indirectly associated with 

the RCRA aspects of this rule are 

addressed in the corresponding impact 

assessment prepared in support of the 

CISWI part of this action. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it may raise novel legal or policy issues. 

Accordingly, the EPA submitted this 

action to OMB for review under 

Executive Order 12866 and 13563 (76 

FR 3821, January 21, 2011). Any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

In addition, the EPA prepared an 

update to the RIA of the potential costs 

and benefits associated with this action. 

The RIA available in the docket 

describes in detail the empirical basis 

for the EPA’s assumptions and 

characterizes the various sources of 

uncertainties affecting the estimates 

below and a memo documents the 

updates since the RIA was prepared. 

Table 9 of this preamble shows the 

results of the cost and benefits analysis 

for these final rules. 

TABLE 9—SUMMARY OF THE MONETIZED BENEFITS, SOCIAL COSTS AND NET BENEFITS FOR THE FINAL CISWI NSPS AND

EG IN 2015 

[Millions of 2008$] 1

3 Percent discount rate 7 Percent discount rate 

Total Monetized Benefits 2 ...................................................................... $420 to $1,000 .............................. $380 to $930 

Total Social Costs 3 ................................................................................. $258 ............................................... $258 

Net Benefits ............................................................................................. $160 to $770 ................................. $120 to $670 

Health effects from exposure to HAP 780 tons of HCl, 2.5 tons of lead, 

1.8 tons of Cd, 680 pounds of Hg, and 58 grams of dioxins/furans). 

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145 Identification of Non-Hazardous Secondary 

Materials That Are Solid Waste, Final Rule. March 

11, 2011. 

TABLE 9—SUMMARY OF THE MONETIZED BENEFITS, SOCIAL COSTS AND NET BENEFITS FOR THE FINAL CISWI NSPS AND

EG IN 2015—Continued 

[Millions of 2008$] 1

3 Percent discount rate 7 Percent discount rate 

Non-monetized Benefits .......................................................................... Health effects from exposure to criteria pollutants (20,000 tons of CO, 

6,300 tons of SO2, 5,400 tons of NO2, and secondary formation of 

ozone). 

Ecosystem effects. 

Visibility impairment. 

1All estimates are for the implementation year (2015) and are rounded to two significant figures. These results reflect the lowest cost disposal 

assumption. 2The total monetized benefits reflect the human health benefits associated with reducing exposure to PM2.5 through reductions of PM2.5 precursors such as directly emitted particles, SO2, and NOX. It is important to note that the monetized benefits include many but not all health effects associated with PM2.5 exposure. Monetized benefits are shown as a range from Pope, et al. (2002) to Laden, et al. (2006). These models 

assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific 

evidence is not yet sufficient to allow differentiation of effect estimates by particle type. 3The methodology used to estimate social costs for 1 year in the multimarket model using surplus changes results in the same social costs for 

both discount rates. 

B. Paperwork Reduction Act 

This action does not require any new 

information collection. This action is 

believed to result in no additional 

impact on the aggregate information 

collection estimate of project cost and 

hour burden made and approved by 

OMB. Due to changes in the CISWI 

inventory and monitoring requirements 

of the CISWI rule, the information 

collection estimate of project cost and 

hour burden have been revised. 

Therefore, only the CISWI ICR has been 

revised. The OMB control numbers for 

the EPA’s regulations in 40 CFR are 

listed in 40 CFR part 9. 

However, OMB has previously 

approved the information collection 

requirements contained in the existing 

CISWI and NHSM 145 regulations (40 

CFR part 60, subparts CCCC and DDDD, 

and 40 CFR part 241) under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501, et seq., and has 

been assigned EPA ICR number 2384.05 

for subpart CCCC, 40 CFR part 60, EPA 

ICR number 2385.05 for subpart DDDD, 

40 CFR part 60, and EPA ICR number 

2382.03 for 40 CFR part 241. 

C. Regulatory Flexibility Act 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the APA or any other statute 

unless the agency certifies that the rule 

will not have a SISNOSE. Small entities 

include small businesses, small 

organizations and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the SBA’s regulations at 

13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a SISNOSE. This final rule will not 

impose any new requirements on any 

entities because it does not impose any 

additional regulatory requirements 

relative to those specified in the March 

2011 final CISWI and NHSM rules. The 

March 2011 final CISWI and NHSM 

rules were both certified as not having 

a SISNOSE. In this final action, there are 

four fewer small entities in the CISWI 

than in the March 2011 final CISWI 

rule, as discussed in the ‘‘Regulatory 

Impact Results for the Reconsideration 

Final for Standards of Performance for 

New Stationary Sources and Emission 

Guidelines for Existing Sources: 

Commercial and Industrial Solid Waste 

Incineration Units’’ memorandum in the 

CISWI docket. 

D. Unfunded Mandates Reform Act 

This action does not contain a federal 

mandate that may result in expenditures 

of $100 million or more for state, local 

and tribal governments, in the aggregate 

or the private sector in any one year. 

This rule finalizes amendments to the 

final CISWI rule provisions and 

technical clarifications to the final 

NHSM rule. Thus, this rule is not 

subject to the requirements of sections 

202 or 205 of UMRA. However, the 

March 2011 final CISWI rule contains a 

federal mandate that may result in 

expenditures of $100 million or more 

for state, local and tribal governments, 

in the aggregate, or the private sector in 

any 1 year. Accordingly, we have 

prepared under section 202 of the 

UMRA a written statement, which is 

summarized in the preamble to the final 

CISWI rule (76 FR 15747). 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This final rule 

will not impose direct compliance costs 

on state or local governments and will 

not preempt state law. Thus, Executive 

Order 13132 does not apply to this 

action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175, (65 FR 67249, November 

9, 2000). The EPA is not aware of any 

CISWI in Indian country or owned or 

operated by Indian tribal governments. 

The CISWI aspects of this rule may, 

however, invoke minor indirect tribal 

implications to the extent that entities 

generating solid wastes on tribal lands 

could be affected. However, any indirect 

NHSM impacts that may occur as a 

result of the CISWI action are expected 

to be negligible due to the very limited 

focus of the CISWI part or this rule. 

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Thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 19885, April 23, 1997) as 

applying to those regulatory actions that 

concern health or safety risks, such that 

the analysis required under section 5– 

501 of the Executive Order has the 

potential to influence the regulation. 

This action is not subject to Executive 

Order 13045 because it is based solely 

on technology performance and 

technical corrections. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the NTTAA of 1995, 

Public Law 104–113, 12(d) (15 U.S.C. 

272 note) directs the EPA to use VCS in 

its regulatory activities, unless to do so 

would be inconsistent with applicable 

law or otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures and 

business practices) that are developed or 

adopted by VCS bodies. The NTTAA 

directs the EPA to provide Congress, 

through OMB, explanations when the 

agency decides not use available and 

applicable VCS. 

This action does not involve any 

revisions to the technical standards or 

test methods required in the final CISWI 

rule. Therefore, the EPA did not 

reconsider the use of any VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes federal 

executive policy on EJ. Its main 

provision directs federal agencies, to the 

greatest extent practicable and 

permitted by law, to make EJ part of 

their mission by identifying and 

addressing, as appropriate, 

disproportionately high and adverse 

human health or environmental effects 

of their programs, policies and activities 

on minority populations and lowincome populations in the United 

States. 

The EPA has determined that this 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. The 

amendments do not relax the control 

measures on sources regulated by the 

CISWI rule, and, therefore, will not 

cause emissions increases from these 

sources. The March 2011 final CISWI 

rule will reduce emissions of all the 

listed HAP emitted from this source. 

Furthermore, the targeted revisions 

finalized in the NHSM section of this 

rule are designed to improve the 

management of these materials, thereby 

helping to further ensure against any 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the 

SBREFA of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective 

February 7, 2013. 

List of Subjects 

40 CFR Part 60 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Hazardous 

substances, Incorporation by reference. 

40 CFR Part 241 

Environmental protection, air 

pollution control, waste treatment and 

disposal. 

Dated: December 20, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons cited in the preamble, 

Title 40, chapter I, parts 60 and 241 of 

the Code of Federal Regulations are 

amended as follows: 

PART 60—STANDARDS OF 

PERFORMANCE FOR NEW 

STATIONARY SOURCES 

■ 1. The authority for part 60 continues 

to read as follows: 

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

■ 2. Effective February 7, 2013, the May 

18, 2011 (76 FR 28662), delay of the 

effective date amending subparts CCCC 

and DDDD, at 76 FR 15703 (March 21, 

2011), is lifted. 

Subpart CCCC—[Amended] 

■ 3. Section 60.2005 is revised to read 

as follows: 

§ 60.2005 When does this subpart become 

effective? 

This subpart takes effect on August 7, 

2013. Some of the requirements in this 

subpart apply to planning the CISWI 

unit (i.e., the preconstruction 

requirements in §§ 60.2045 and 

60.2050). Other requirements such as 

the emission limitations and operating 

limits apply after the CISWI unit begins 

operation. 

■ 4. Section 60.2015 is amended by 

revising paragraphs (a)(1) and (2) and (b) 

to read as follows: 

§ 60.2015 What is a new incineration unit? 

(a) * * * 

(1) A CISWI unit that commenced 

construction after June 4, 2010. 

(2) A CISWI unit that commenced 

reconstruction or modification after 

August 7, 2013. 

(b) This subpart does not affect your 

CISWI unit if you make physical or 

operational changes to your incineration 

unit primarily to comply with subpart 

DDDD of this part (Emission Guidelines 

and Compliance Times for Commercial 

and Industrial Solid Waste Incineration 

Units). Such changes do not qualify as 

reconstruction or modification under 

this subpart. 

■ 5. Section 60.2020 is amended by: 

■ a. Revising paragraph (c). 

■ b. Revising paragraph (e)(3). 

■ c. Adding paragraph (e)(4). 

■ d. Revising paragraph (f)(3). 

■ e. Adding paragraph (f)(4). 

■ f. Revising paragraph (n). 

■ g. Adding paragraph (o). 

The revisions and additions read as 

follows: 

§ 60.2020 What combustion units are 

exempt from this subpart? 

* * * * * 

(c) Municipal waste combustion units. 

Incineration units that are subject to 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9179 

subpart Ea of this part (Standards of 

Performance for Municipal Waste 

Combustors); subpart Eb of this part 

(Standards of Performance for Large 

Municipal Waste Combustors); subpart 

Cb of this part (Emission Guidelines and 

Compliance Time for Large Municipal 

Combustors); subpart AAAA of this part 

(Standards of Performance for Small 

Municipal Waste Combustion Units); or 

subpart BBBB of this part (Emission 

Guidelines for Small Municipal Waste 

Combustion Units). 

* * * * * 

(e) * * * 

(3) You submit documentation to the 

Administrator notifying the EPA that 

the qualifying small power production 

facility is combusting homogenous 

waste. 

(4) You maintain the records specified 

in § 60.2175(w). 

(f) * * * 

(3) You submit documentation to the 

Administrator notifying the Agency that 

the qualifying cogeneration facility is 

combusting homogenous waste. 

(4) You maintain the records specified 

in § 60.2175(x). 

* * * * * 

(n) Sewage sludge incineration units. 

Incineration units combusting sewage 

sludge for the purpose of reducing the 

volume of the sewage sludge by 

removing combustible matter that are 

subject to subpart LLLL of this part 

(Standards of Performance for Sewage 

Sludge Incineration Units) or subpart 

MMMM of this part (Emission 

Guidelines for Sewage Sludge 

Incineration Units). 

(o) Other solid waste incineration 

units. Incineration units that are subject 

to 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). 

■ 6. Section 60.2030 is amended by 

revising paragraph (c)(10) to read as 

follows: 

§ 60.2030 Who implements and enforces 

this subpart? 

* * * * * 

(c) * * * 

(10) Determination of whether a 

qualifying small power production 

facility or cogeneration facility under 

§ 60.2020(e) or (f) is combusting 

homogenous waste. 

■ 7. Section 60.2045 is amended by 

revising paragraph (b) to read as follows: 

§ 60.2045 Who must prepare a siting 

analysis? 

* * * * * 

(b) You must prepare a siting analysis 

for CISWI units that commenced 

construction after June 4, 2010, or that 

commenced reconstruction or 

modification after August 7, 2013. 

* * * * * 

■ 8. Section 60.2105 is amended by 

revising paragraph (b) to read as follows: 

§ 60.2105 What emission limitations must I 

meet and by when? 

* * * * * 

(b) An incinerator unit that 

commenced construction after 

November 30, 1999, but no later than 

June 4, 2010, or that commenced 

reconstruction or modification on or 

after June 1, 2001 but no later than 

August 7, 2013, must meet the more 

stringent emission limit for the 

respective pollutant in table 1 of this 

subpart or table 6 of subpart DDDD. 

■ 9. Section 60.2110 is amended by: 

■ a. Revising paragraphs (a)(2), (e), and 

(f). 

■ b. Redesignating paragraph (g) as 

paragraph (h) and revising newly 

designated paragraph (h). 

■ c. Adding paragraphs (g) and (i). 

The revisions and additions read as 

follows: 

§ 60.2110 What operating limits must I 

meet and by when? 

(a) * * * 

(2) Minimum pressure drop across the 

wet particulate matter scrubber, which 

is calculated as the lowest 1-hour 

average pressure drop across the wet 

scrubber measured during the most 

recent performance test demonstrating 

compliance with the particulate matter 

emission limitations; or minimum 

amperage to the wet scrubber, which is 

calculated as the lowest 1-hour average 

amperage to the wet scrubber measured 

during the most recent performance test 

demonstrating compliance with the 

particulate matter emission limitations. 

* * * * * 

(e) If you use activated carbon sorbent 

injection to comply with the emission 

limitations, you must measure the 

sorbent flow rate during the 

performance testing. The operating limit 

for the carbon sorbent injection is 

calculated as the lowest 1-hour average 

sorbent flow rate measured during the 

most recent performance test 

demonstrating compliance with the 

mercury emission limitations. For 

energy recovery units, when your unit 

operates at lower loads, multiply your 

sorbent injection rate by the load 

fraction, as defined in this subpart, to 

determine the required injection rate 

(e.g., for 50 percent load, multiply the 

injection rate operating limit by 0.5). 

(f) If you use selective noncatalytic 

reduction to comply with the emission 

limitations, you must measure the 

charge rate, the secondary chamber 

temperature (if applicable to your CISWI 

unit), and the reagent flow rate during 

the nitrogen oxides performance testing. 

The operating limits for the selective 

noncatalytic reduction are calculated as 

the highest 1-hour average charge rate, 

lower secondary chamber temperature, 

and lowest reagent flow rate measured 

during the most recent performance test 

demonstrating compliance with the 

nitrogen oxides emission limitations. 

(g) If you use a dry scrubber to comply 

with the emission limitations, you must 

measure the injection rate of each 

sorbent during the performance testing. 

The operating limit for the injection rate 

of each sorbent is calculated as the 

lowest 1-hour average injection rate or 

each sorbent measured during the most 

recent performance test demonstrating 

compliance with the hydrogen chloride 

emission limitations. For energy 

recovery units, when your unit operates 

at lower loads, multiply your sorbent 

injection rate by the load fraction, as 

defined in this subpart, to determine the 

required injection rate (e.g., for 50 

percent load, multiply the injection rate 

operating limit by 0.5). 

(h) If you do not use a wet scrubber, 

electrostatic precipitator, or fabric filter 

to comply with the emission limitations, 

and if you do not determine compliance 

with your particulate matter emission 

limitation with a particulate matter 

CEMS, you must maintain opacity to 

less than or equal to 10 percent opacity 

(1-hour block average). 

(i) If you use a PM CPMS to 

demonstrate compliance, you must 

establish your PM CPMS operating limit 

and determine compliance with it 

according to paragraphs (i)(1) through 

(5) of this section. 

(1) Determine your operating limit as 

the average PM CPMS output value 

recorded during the performance test or 

at a PM CPMS output value 

corresponding to 75% of the emission 

limit if your PM performance test 

demonstrates compliance below 75% of 

the emission limit. You must verify an 

existing or establish a new operating 

limit after each repeated performance 

test. You must repeat the performance 

test annually and reassess and adjust the 

site-specific operating limit in 

accordance with the results of the 

performance test. 

(A) Your PM CPMS must provide a 4– 

20 milliamp output and the 

establishment of its relationship to 

manual reference method measurements 

must be determined in units of 

milliamps. 

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9180 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

(B) Your PM CPMS operating range 

must be capable of reading PM 

concentrations from zero to a level 

equivalent to at least two times your 

allowable emission limit. If your PM 

CPMS is an auto-ranging instrument 

capable of multiple scales, the primary 

range of the instrument must be capable 

of reading PM concentration from zero 

to a level equivalent to two times your 

allowable emission limit. 

(C) During the initial performance test 

or any such subsequent performance 

test that demonstrates compliance with 

the PM limit, record and average all 

milliamp output values from the PM 

CPMS for the periods corresponding to 

the compliance test runs (e.g., average 

all your PM CPMS output values for 

three corresponding 2-hour Method 5I 

test runs). 

(2) If the average of your three PM 

performance test runs are below 75% of 

your PM emission limit, you must 

calculate an operating limit by 

establishing a relationship of PM CPMS 

signal to PM concentration using the PM 

CPMS instrument zero, the average PM 

CPMS values corresponding to the three 

compliance test runs, and the average 

PM concentration from the Method 5 or 

performance test with the procedures in 

(i)(1)through (5) of this section. 

(i) Determine your instrument zero 

output with one of the following 

procedures: 

(A) Zero point data for in-situ 

instruments should be obtained by 

removing the instrument from the stack 

and monitoring ambient air on a test 

bench. 

(B) Zero point data for extractive 

instruments should be obtained by 

removing the extractive probe from the 

stack and drawing in clean ambient air. 

(C) The zero point can also can be 

established obtained by performing 

manual reference method measurements 

when the flue gas is free of PM 

emissions or contains very low PM 

concentrations (e.g., when your process 

is not operating, but the fans are 

operating or your source is combusting 

only natural gas) and plotting these with 

the compliance data to find the zero 

intercept. 

(D) If none of the steps in paragraphs 

(i)(2)(i) through (iv) of this section are 

possible, you must use a zero output 

value provided by the manufacturer. 

(ii) Determine your PM CPMS 

instrument average in milliamps, and 

the average of your corresponding three 

PM compliance test runs, using 

equation 1. 

Where: 

X1 = the PM CPMS data points for the three 

runs constituting the performance test, 

Y1 = the PM concentration value for the 

three runs constituting the performance 

test, and 

n = the number of data points. 

(iii) With your instrument zero 

expressed in milliamps, your three run 

average PM CPMS milliamp value, and 

your three run average PM 

concentration from your three 

compliance tests, determine a 

relationship of lb/Mmbtu per milliamp 

with equation 2. 

Where: 

R = the relative mg/dscm per milliamp for 

your PM CPMS, 

Y1 = the three run average mg/dscm PM 

concentration, 

X1 = the three run average milliamp output 

from you PM CPMS, and 

z = the milliamp equivalent of your 

instrument zero determined from (2)(i). 

(iv) Determine your source specific 

30-day rolling average operating limit 

using the mg/dscm per milliamp value 

from Equation 2 in equation 3, below. 

This sets your operating limit at the PM 

CPMS output value corresponding to 

75% of your emission limit. 

Where: 

Ol = the operating limit for your PM CPMS 

on a 30-day rolling average, in 

milliamps. 

L = your source emission limit expressed 

in lb/Mmbtu, 

z = your instrument zero in milliamps, 

determined from (2)(a), and 

R = the relative mg/dscm per milliamp for 

your PM CPMS, from Equation 3. 

(3) If the average of your three PM 

compliance test runs is at or above 75% 

of your PM emission limit you must 

determine your operating limit by 

averaging the PM CPMS milliamp 

output corresponding to your three PM 

performance test runs that demonstrate 

compliance with the emission limit 

using equation 4 and you must submit 

all compliance test and PM CPMS data 

according to the reporting requirements 

in paragraph (i)(5) of this section. 

Where: 

X1 = the PM CPMS data points for all runs 

i, 

n = the number of data points, and 

Oh = your site specific operating limit, in 

milliamps. 

(4) To determine continuous 

compliance, you must record the PM 

CPMS output data for all periods when 

the process is operating and the PM 

CPMS is not out-of-control. You must 

demonstrate continuous compliance by 

using all quality-assured hourly average 

data collected by the PM CPMS for all 

operating hours to calculate the 

arithmetic average operating parameter 

in units of the operating limit (e.g., 

milliamps, PM concentration, raw data 

signal) on a 30-day rolling average basis. 

(5) For PM performance test reports 

used to set a PM CPMS operating limit, 

the electronic submission of the test 

report must also include the make and 

model of the PM CPMS instrument, 

serial number of the instrument, 

analytical principle of the instrument 

(e.g., beta attenuation), span of the 

instruments primary analytical range, 

milliamp value equivalent to the 

instrument zero output, technique by 

which this zero value was determined, 

and the average milliamp signals 

corresponding to each PM compliance 

test run. 

■ 10. Section 60.2115 is amended by 

revising the section heading and the 

introductory text to read as follows: 

§ 60.2115 What if I do not use a wet 

scrubber, fabric filter, activated carbon 

injection, selective noncatalytic reduction, 

an electrostatic precipitator, or a dry 

scrubber to comply with the emission 

limitations? 

If you use an air pollution control 

device other than a wet scrubber, 

activated carbon injection, selective 

noncatalytic reduction, fabric filter, an 

electrostatic precipitator, or a dry 

scrubber or limit emissions in some 

other manner, including material 

balances, to comply with the emission 

limitations under § 60.2105, you must 

petition the EPA Administrator for 

specific operating limits to be 


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established during the initial 

performance test and continuously 

monitored thereafter. You must submit 

the petition at least sixty days before the 

performance test is scheduled to begin. 

Your petition must include the five 

items listed in paragraphs (a) through (e) 

of this section. 

* * * * * 

■ 11. Section 60.2120 is revised to read 

as follows: 

§ 60.2120 Affirmative defense for violation 

of emission standards 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 

violations of such standards that are 

caused by malfunction, as defined at 40 

CFR 60.2. Appropriate penalties may be 

assessed 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) Assertion of affirmative defense. 

To establish the affirmative defense in 

any action to enforce such a standard, 

you must timely meet the reporting 

requirements in paragraph (b) of this 

section, and must prove by a 

preponderance of evidence that: 

(1) The violation: 

(i) Was caused by a sudden, 

infrequent, and unavoidable failure of 

air pollution control equipment, process 

equipment, or a process to operate in a 

normal or usual manner; and 

(ii) Could not have been prevented 

through careful planning, proper design 

or better operation and maintenance 

practices; and (iii) Did not stem from 

any activity or event that could have 

been foreseen and avoided, or planned 

for; and 

(iv) Was not part of a recurring pattern 

indicative of inadequate design, 

operation, or maintenance; and 

(2) Repairs were made as 

expeditiously as possible when a 

violation occurred; and 

(3) The frequency, amount, and 

duration of the violation (including any 

bypass) were minimized to the 

maximum extent practicable; and 

(4) If the violation resulted from a 

bypass of control equipment or a 

process, then the bypass was 

unavoidable to prevent loss of life, 

personal injury, or severe property 

damage; and 

(5) All possible steps were taken to 

minimize the impact of the violation on 

ambient air quality, the environment, 

and human health; and 

(6) All emissions monitoring and 

control systems were kept in operation 

if at all possible, consistent with safety 

and good air pollution control practices; 

and 

(7) All of the actions in response to 

the violation were documented by 

properly signed, contemporaneous 

operating logs; and 

(8) At all times, the affected source 

was operated in a manner consistent 

with good practices for minimizing 

emissions; and 

(9) A written root cause analysis has 

been prepared, the purpose of which is 

to determine, correct, and eliminate the 

primary causes of the malfunction and 

the violation resulting from the 

malfunction event at issue. The analysis 

shall also specify, using best monitoring 

methods and engineering judgment, the 

amount of any emissions that were the 

result of the malfunction. 

(b) Report. The owner or operator 

seeking to assert an affirmative defense 

shall submit a written report to the 

Administrator with all necessary 

supporting documentation, that it has 

met the requirements set forth in 

paragraph (a) of this section. This 

affirmative defense report shall be 

included in the first periodic 

compliance, deviation report or excess 

emission report otherwise required after 

the initial occurrence of the violation of 

the relevant standard (which may be the 

end of any applicable averaging period). 

If such compliance, deviation report or 

excess emission report is due less than 

45 days after the initial occurrence of 

the violation, the affirmative defense 

report may be included in the second 

compliance, deviation report or excess 

emission report due after the initial 

occurrence of the violation of the 

relevant standard. 

■ 12. Section 60.2125 is amended by: 

■ a. Revising paragraph (g) introductory 

text. 

■ b. Redesignating paragraphs (g)(2) and 

(3) as paragraphs (g)(3) and (4), 

respectively. 

■ c. Revising newly designated 

paragraphs (g)(3) and (4). 

■ d. Adding new paragraph (g)(2). 

■ e. Revising paragraph (i). 

■ f. Adding paragraph (j). 

The revisions and additions read as 

follows: 

§ 60.2125 How do I conduct the initial and 

annual performance test? 

* * * * * 

(g) You must determine dioxins/ 

furans toxic equivalency by following 

the procedures in paragraphs (g)(1) 

through (4) of this section. 

* * * * * 

(2) Quantify isomers meeting 

identification criteria 2, 3, 4, and 5 in 

Section 5.3.2.5 of Method 23, regardless 

of whether the isomers meet 

identification criteria 1 and 7. You must 

quantify the isomers per Section 9.0 of 

Method 23. (Note: You may reanalyze 

the sample aliquot or split to reduce the 

number of isomers not meeting 

identification criteria 1 or 7 of Section 

5.3.2.5.) 

(3) For each dioxin/furan (tetrathrough octa-chlorinated) isomer 

measured in accordance with paragraph 

(g)(1) and (2) of this section, multiply 

the isomer concentration by its 

corresponding toxic equivalency factor 

specified in table 3 of this subpart. 

(4) Sum the products calculated in 

accordance with paragraph (g)(3) of this 

section to obtain the total concentration 

of dioxins/furans emitted in terms of 

toxic equivalency. 

* * * * * 

(i) If you have an applicable opacity 

operating limit, you must determine 

compliance with the opacity limit using 

Method 9 at 40 CFR part 60, appendix 

A–4 of this part, based on three 1-hour 

blocks consisting of ten 6-minute 

average opacity values, unless you are 

required to install a continuous opacity 

monitoring system, consistent with 

§§ 60.2145 and 60.2165. 

(j) You must determine dioxins/furans 

total mass basis by following the 

procedures in paragraphs (j)(1) through 

(3) of this section. 

(1) Measure the concentration of each 

dioxin/furan tetra-through octachlorinated isomer emitted using EPA 

Method 23 at 40 CFR part 60, appendix 

A–7. 

(2) Quantify isomers meeting 

identification criteria 2, 3, 4, and 5 in 

Section 5.3.2.5 of Method 23, regardless 

of whether the isomers meet 

identification criteria 1 and 7. You must 

quantify the isomers per Section 9.0 of 

Method 23. (Note: You may reanalyze 

the sample aliquot or split to reduce the 

number of isomers not meeting 

identification criteria 1 or 7 of Section 

5.3.2.5.) 

(3) Sum the quantities measured in 

accordance with paragraphs (j)(1) and 

(2) of this section to obtain the total 

concentration of dioxins/furans emitted 

in terms of total mass basis. 

■ 13. Section 60.2140 is amended by 

revising paragraph (c) to read as follows: 

§ 60.2140 By what date must I conduct the 

initial performance test? 

* * * * * 

(c) If you commence combusting or 

recommence combusting a solid waste 

at an existing combustion unit at any 

commercial or industrial facility and 

you have not conducted a performance 

test consistent with the provisions of 

this subpart while combusting the solid 

waste within the 6 months preceding 

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the reintroduction of that solid waste in 

the combustion chamber, you must 

conduct a performance test within 60 

days commencing or recommencing 

solid waste combustion. 

■ 14. Section 60.2145 is amended by: 

■ a. Revising paragraph (a)(6). 

■ b. Revising paragraphs (b) through (d). 

■ c. Revising paragraphs (f) through (j). 

■ d. Revising paragraph (m)(2). 

■ e. Revising paragraph (n)(4). 

■ f. Revising paragraphs (s) introductory 

text, (s)(1) introductory text, and (s)(2). 

■ g. Revising paragraph (t) introductory 

text and (t)(1) introductory text. 

■ h. Revising paragraph (u). 

■ i. Adding paragraphs (w) and (x). 

The revisions and additions read as 

follows: 

§ 60.2145 How do I demonstrate 

continuous compliance with the emission 

limitations and the operating limits? 

(a) * * * 

(6) All monitoring systems necessary 

for compliance with any newly 

applicable monitoring requirements 

which apply as a result of the cessation 

or commencement or recommencement 

of combusting solid waste must be 

installed and operational as of the 

effective date of the waste-to-fuel, or 

fuel-to-waste switch. All calibration and 

drift checks must be performed as of the 

effective date of the waste-to-fuel, or 

fuel-to-waste switch. Relative accuracy 

tests must be performed as of the 

performance test deadline for PM CEMS 

(if PM CEMS are elected to demonstrate 

continuous compliance with the 

particulate matter emission limits). 

Relative accuracy testing for other 

CEMS need not be repeated if that 

testing was previously performed 

consistent with Clean Air Act section 

112 monitoring requirements or 

monitoring requirements under this 

subpart. 

(b) You must conduct an annual 

performance test for the pollutants 

listed in table 1 of this subpart or tables 

5 through 8 of this subpart and opacity 

for each CISWI unit as required under 

§ 60.2125. The annual performance test 

must be conducted using the test 

methods listed in table 1 of this subpart 

or tables 5 through 8 of this subpart and 

the procedures in § 60.2125. Annual 

performance tests are not required if you 

use CEMS or continuous opacity 

monitoring systems to determine 

compliance. 

(c) You must continuously monitor 

the operating parameters specified in 

§ 60.2110 or established under § 60.2115 

and as specified in § 60.2170. Use 3- 

hour block average values to determine 

compliance (except for baghouse leak 

detection system alarms) unless a 

different averaging period is established 

under § 60.2115 or, for energy recovery 

units, where the averaging time for each 

operating parameter is a 30-day rolling, 

calculated each hour as the average of 

the previous 720 operating hours. 

Operation above the established 

maximum, below the established 

minimum, or outside the allowable 

range of operating limits specified in 

paragraph (a) of this section constitutes 

a deviation from your operating limits 

established under this subpart, except 

during performance tests conducted to 

determine compliance with the 

emission and operating limits or to 

establish new operating limits. 

Operating limits are confirmed or 

reestablished during performance tests. 

(d) You must burn only the same 

types of waste and fuels used to 

establish subcategory applicability (for 

energy recovery units) and operating 

limits during the performance test. 

* * * * * 

(f) For energy recovery units, you 

must conduct an annual performance 

test for opacity (except where 

particulate matter CEMS or continuous 

opacity monitoring systems are used are 

used) and the pollutants listed in table 

6 of this subpart. 

(g) You may elect to demonstrate 

continuous compliance with the carbon 

monoxide emission limit using a carbon 

monoxide CEMS according to the 

following requirements: 

(1) You must measure emissions 

according to § 60.13 to calculate 1-hour 

arithmetic averages, corrected to 7 

percent oxygen. CEMS data during 

startup and shutdown, as defined in this 

subpart, are not corrected to 7 percent 

oxygen, and are measured at stack 

oxygen content. You must demonstrate 

initial compliance with the carbon 

monoxide emissions limit using a 30- 

day rolling average of these 1-hour 

arithmetic average emission 

concentrations, including CEMS data 

during startup and shutdown as defined 

in this subpart, calculated using 

Equation 19–19 in section 12.4.1 of EPA 

Reference Method 19 at 40 CFR part 60, 

appendix A–7 of this part. 

(2) Operate the carbon monoxide 

CEMS in accordance with the 

requirements of performance 

specification 4A of appendix B of this 

part and quality assurance procedure 1 

of appendix F of this part. 

(h) Coal and liquid/gas energy 

recovery units with average annual heat 

input rates greater than or equal to 250 

MMBtu/hr may elect to demonstrate 

continuous compliance with the 

particulate matter emissions limit using 

a particulate matter CEMS according to 

the procedures in § 60.2165(n) instead 

of the particulate matter continuous 

parameter monitoring system (CPMS) 

specified in § 60.2145. Coal and liquid/ 

gas energy recovery units with annual 

average heat input rates less than 250 

MMBtu/hr, incinerators, and small 

remote incinerators may also elect to 

demonstrate compliance using a 

particulate matter CEMS according to 

the procedures in § 60.2165(n) instead 

of particulate matter testing with EPA 

Method 5 at 40 CFR part 60, appendix 

A–3 and, if applicable, the continuous 

opacity monitoring requirements in 

paragraph (i) of this section. 

(i) For energy recovery units with 

annual average heat input rates greater 

than or equal to 10 MMBtu/hour and 

less than 250 MMBtu/hr, you must 

install, operate, certify and maintain a 

continuous opacity monitoring system 

(COMS) according to the procedures in 

§ 60.2165. 

(j) For waste-burning kilns, you must 

conduct an annual performance test for 

cadmium, lead, dioxins/furans and 

hydrogen chloride as listed in table 7 of 

this subpart. You must determine 

compliance with hydrogen chloride 

using a hydrogen chloride CEMS if you 

do not use an acid gas wet scrubber or 

dry scrubber. You must determine 

compliance with nitrogen oxides, sulfur 

dioxide, and carbon monoxide using 

CEMS. You must determine compliance 

with particulate matter using CPMS. 

You must determine compliance with 

the mercury emissions limit using a 

mercury CEMS according to the 

following requirements: 

(1) Operate a CEMS system in 

accordance with performance 

specification 12A of 40 CFR part 60, 

appendix B or a sorbent trap based 

integrated monitor in accordance with 

performance specification 12B of 40 

CFR part 60, appendix B. The duration 

of the performance test must be a 

calendar month. For each calendar 

month in which the waste-burning kiln 

operates, hourly mercury concentration 

data, and stack gas volumetric flow rate 

data must be obtained. You must 

demonstrate compliance with the 

mercury emissions limit using a 30-day 

rolling average of these 1-hour mercury 

concentrations, including CEMS data 

during startup and shutdown as defined 

in this subpart, calculated using 

Equation 19–19 in section 12.4.1 of EPA 

Reference Method 19 at 40 CFR part 60, 

appendix A–7 of this part. CEMS data 

during startup and shutdown, as 

defined in this subpart, are not 

corrected to 7 percent oxygen, and are 

measured at stack oxygen content. 

(2) Owners or operators using a 

mercury CEMS must install, operate, 

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calibrate, and maintain an instrument 

for continuously measuring and 

recording the mercury mass emissions 

rate to the atmosphere according to the 

requirements of performance 

specifications 6 and 12A of 40 CFR part 

60, appendix B, and quality assurance 

procedure 6 of 40 CFR part 60, appendix 

F. 

(3) The owner or operator of a wasteburning 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. 

* * * * * 

(m) * * * 

(2) Use a flow sensor with a 

measurement sensitivity at full scale of 

no greater than 2 percent. 

* * * * * 

(n) * * * 

(4) Perform checks at the frequency 

outlined in your site-specific monitoring 

plan to ensure pressure measurements 

are not obstructed (e.g., check for 

pressure tap pluggage daily). 

* * * * * 

(s) For facilities using a CEMS to 

demonstrate compliance with the sulfur 

dioxide emission limit, compliance with 

the sulfur dioxide emission limit may be 

demonstrated by using the CEMS 

specified in § 60.2165 to measure sulfur 

dioxide. CEMS data during startup and 

shutdown, as defined in this subpart, 

are not corrected to 7 percent oxygen, 

and are measured at stack oxygen 

content. You must calculate a 30-day 

rolling average of the 1-hour arithmetic 

average emission concentrations, 

including CEMS data during startup and 

shutdown as defined in this subpart, 

calculated using Equation 19–19 in 

section 12.4.1 of EPA Reference Method 

19 at 40 CFR part 60, Appendix A–7 of 

this part. The sulfur dioxide CEMS must 

be operated according to performance 

specification 2 in appendix B of this 

part and must follow the procedures 

and methods specified in this paragraph 

(s). For sources that have actual inlet 

emissions less than 100 parts per 

million dry volume, the relative 

accuracy criterion for inlet sulfur 

dioxide CEMS should be no greater than 

20 percent of the mean value of the 

reference method test data in terms of 

the units of the emission standard, or 5 

parts per million dry volume absolute 

value of the mean difference between 

the reference method and the CEMS, 

whichever is greater. 

(1) During each relative accuracy test 

run of the CEMS required by 

performance specification 2 in appendix 

B of this part, collect sulfur dioxide and 

oxygen (or carbon dioxide) data 

concurrently (or within a 30- to 60- 

minute period) with both the CEMS and 

the test methods specified in paragraphs 

(s)(1)(i) and (ii) of this section. 

* * * * * 

(2) The span value of the CEMS at the 

inlet to the sulfur dioxide control device 

must be 125 percent of the maximum 

estimated hourly potential sulfur 

dioxide emissions of the unit subject to 

this rule. The span value of the CEMS 

at the outlet of the sulfur dioxide 

control device must be 50 percent of the 

maximum estimated hourly potential 

sulfur dioxide emissions of the unit 

subject to this rule. 

* * * * * 

(t) For facilities using a CEMS to 

demonstrate continuous compliance 

with the nitrogen oxides emission limit, 

compliance with the nitrogen oxides 

emission limit may be demonstrated by 

using the CEMS specified in § 60.2165 

to measure nitrogen oxides. CEMS data 

during startup and shutdown, as 

defined in this subpart, are not 

corrected to 7 percent oxygen, and are 

measured at stack oxygen content. You 

must calculate a 30-day rolling average 

of the 1-hour arithmetic average 

emission concentrations, including 

CEMS data during startup and 

shutdown as defined in this subpart, 

using Equation 19–19 in section 12.4.1 

of EPA Reference Method 19 at 40 CFR 

part 60, appendix A–7 of this part. The 

nitrogen oxides CEMS must be operated 

according to performance specification 

2 in appendix B of this part and must 

follow the procedures and methods 

specified in paragraphs (t)(1) through (5) 

of this section. 

(1) During each relative accuracy test 

run of the CEMS required by 

performance specification 2 of appendix 

B of this part, collect nitrogen oxides 

and oxygen (or carbon dioxide) data 

concurrently (or within a 30- to 60- 

minute period) with both the CEMS and 

the test methods specified in paragraphs 

(t)(1)(i) and (ii) of this section. 

* * * * * 

(u) For facilities using a CEMS to 

demonstrate continuous compliance 

with any of the emission limits of this 

subpart, you must complete the 

following: 

(1) Demonstrate compliance with the 

appropriate emission limit(s) using a 30- 

day rolling average of 1-hour arithmetic 

average emission concentrations, 

including CEMS data during startup and 

shutdown as defined in this subpart, 

calculated using Equation 19–19 in 

section 12.4.1 of EPA Reference Method 

19 at 40 CFR part 60, appendix A–7 of 

this part. CEMS data during startup and 

shutdown, as defined in the subpart, are 

not corrected to 7 percent oxygen, and 

are measured at stack oxygen content. 

(2) Operate all CEMS in accordance 

with the applicable procedures under 

appendices B and F of this part. 

* * * * * 

(w) For energy recovery units with a 

design heat input capacity of 100 

MMBtu per hour or greater that do not 

use a carbon monoxide CEMS, you must 

install, operate, and maintain a oxygen 

analyzer system as defined in § 60.2265 

according to the procedures in 

paragraphs (w)(1) through (4) of this 

section. 

(1) The oxygen analyzer system must 

be installed by the initial performance 

test date specified in § 60.2675. 

(2) You must operate the oxygen trim 

system within compliance with 

paragraph (w)(3) of this section at all 

times. 

(3) You must maintain the oxygen 

level such that the 30-day rolling 

average that is established as the 

operating limit for oxygen is not below 

the lowest hourly average oxygen 

concentration measured during the most 

recent CO performance test. 

(4) You must calculate and record a 

30-day rolling average oxygen 

concentration using Equation 19–19 in 

section 12.4.1 of EPA Reference Method 

19 of Appendix A–7 of this part. 

(x) For energy recovery units with 

annual average heat input rates greater 

than or equal to 250 MMBtu/hour and 

waste-burning kilns, you must install, 

calibrate, maintain, and operate a PM 

CPMS and record the output of the 

system as specified in paragraphs (x)(1) 

through (8) of this section. For other 

energy recovery units, you may elect to 

use PM CPMS operated in accordance 

with this section. PM CPMS are suitable 

in lieu of using other CMS for 

monitoring PM compliance (e.g., bag 

leak detectors, ESP secondary power, 

PM scrubber pressure). 

(1) Install, calibrate, operate, and 

maintain your PM CPMS according to 

the procedures in your approved sitespecific monitoring plan developed in 

accordance with § 60.2145(l) and 

(x)(1)(i) through (iii) of this section. 

(i) The operating principle of the PM 

CPMS must be based on in-stack or 

extractive light scatter, light 

scintillation, beta attenuation, or mass 

accumulation detection of the exhaust 

gas or representative sample. The 

reportable measurement output from the 

PM CPMS must be expressed as 

milliamps. 

(ii) The PM CPMS must have a cycle 

time (i.e., period required to complete 

sampling, measurement, and reporting 

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for each measurement) no longer than 

60 minutes. 

(iii) The PM CPMS must be capable of 

detecting and responding to particulate 

matter concentrations of no greater than 

0.5 mg/actual cubic meter. 

(2) During the initial performance test 

or any such subsequent performance 

test that demonstrates compliance with 

the PM limit, you must adjust the sitespecific operating limit in accordance 

with the results of the performance test 

according to the procedures specified in 

§ 60.2110. 

(3) Collect PM CPMS hourly average 

output data for all energy recovery unit 

or waste-burning kiln operating hours. 

Express the PM CPMS output as 

milliamps. 

(4) Calculate the arithmetic 30-day 

rolling average of all of the hourly 

average PM CPMS output collected 

during all energy recovery unit or wasteburning kiln operating hours data 

(milliamps). 

(5) You must collect data using the 

PM CPMS at all times the energy 

recovery unit or waste-burning kiln is 

operating and at the intervals specified 

in paragraph (x)(1)(ii) of this section, 

except for periods of monitoring system 

malfunctions, repairs associated with 

monitoring system malfunctions, 

required monitoring system quality 

assurance or quality control activities 

(including, as applicable, calibration 

checks and required zero and span 

adjustments), and any scheduled 

maintenance as defined in your sitespecific monitoring plan. 

(6) You must use all the data collected 

during all energy recovery unit or wasteburning kiln operating hours in 

assessing the compliance with your 

operating limit except: 

(i) Any data collected during 

monitoring system malfunctions, repairs 

associated with monitoring system 

malfunctions, or required monitoring 

system quality assurance or quality 

control activities conducted during 

monitoring system malfunctions are not 

used in calculations (report any such 

periods in your annual deviation 

report); 

(ii) Any data collected during periods 

when the monitoring system is out of 

control as specified in your site-specific 

monitoring plan, repairs associated with 

periods when the monitoring system is 

out of control, or required monitoring 

system quality assurance or quality 

control activities conducted during outof-control periods are not used in 

calculations (report emissions or 

operating levels and report any such 

periods in your annual deviation 

report); 

(iii) Any PM CPMS data recorded 

during periods of CEMS data during 

startup and shutdown, as defined in this 

subpart. 

(7) You must record and make 

available upon request results of PM 

CPMS system performance audits, as 

well as the dates and duration of 

periods from when the PM CPMS is out 

of control until completion of the 

corrective actions necessary to return 

the PM CPMS to operation consistent 

with your site-specific monitoring plan. 

(8) For any deviation of the 30-day 

rolling average PM CPMS average value 

from the established operating 

parameter limit, you must: 

(i) Within 48 hours of the deviation, 

visually inspect the air pollution control 

device; 

(ii) If inspection of the air pollution 

control device identifies the cause of the 

deviation, take corrective action as soon 

as possible and return the PM CPMS 

measurement to within the established 

value; and 

(iii) Within 30 days of the deviation 

or at the time of the annual compliance 

test, whichever comes first, conduct a 

PM emissions compliance test to 

determine compliance with the PM 

emissions limit and to verify. Within 45 

days of the deviation, you must reestablish the CPMS operating limit. You 

are not required to conduct additional 

testing for any deviations that occur 

between the time of the original 

deviation and the PM emissions 

compliance test required under this 

paragraph. 

(iv) PM CPMS deviations leading to 

more than four required performance 

tests in a 12-month process operating 

period (rolling monthly) constitute a 

violation of this subpart. 

■ 15. Section 60.2165 is amended by: 

■ a. Revising paragraph (c). 

■ b. Revising paragraphs (g) through (k). 

■ c. Revising paragraphs (l)(1) and (2). 

■ d. Revising paragraph (m) 

introductory text. 

■ e. Revising paragraph (n) introductory 

text. 

■ f. Removing paragraph (n)(14). 

■ g. Revising paragraphs (n)(6), (n)(7), 

(n)(9) through (n)(11), (n)(12) 

introductory text, and (n)(12)(ii). 

■ h. Revising paragraphs (o)(1) and (2). 

■ i. Adding paragraphs (q), (r), and (s). 

The revisions and additions read as 

follows: 

§ 60.2165 What monitoring equipment 

must I install and what parameters must I 

monitor? 

* * * * * 

(c) If you are using something other 

than a wet scrubber, activated carbon, 

selective non-catalytic reduction, an 

electrostatic precipitator, or a dry 

scrubber to comply with the emission 

limitations under § 60.2105, you must 

install, calibrate (to the manufacturers’ 

specifications), maintain, and operate 

the equipment necessary to monitor 

compliance with the site-specific 

operating limits established using the 

procedures in § 60.2115. 

* * * * * 

(g) For waste-burning kilns not 

equipped with a wet scrubber or dry 

scrubber, in place of hydrogen chloride 

testing with EPA Method 321 at 40 CFR 

part 63, appendix A, an owner or 

operator must install, calibrate, 

maintain, and operate a CEMS for 

monitoring hydrogen chloride emissions 

discharged to the atmosphere and 

record the output of the system. To 

demonstrate continuous compliance 

with the hydrogen chloride emissions 

limit for units other than waste-burning 

kilns not equipped with a wet scrubber 

or dry scrubber, a facility may substitute 

use of a hydrogen chloride CEMS for 

conducting the hydrogen chloride 

annual performance test, monitoring the 

minimum hydrogen chloride sorbent 

flow rate, monitoring the minimum 

scrubber liquor pH, and monitoring 

minimum injection rate. 

(h) To demonstrate continuous 

compliance with the particulate matter 

emissions limit, a facility may substitute 

use of a particulate matter CEMS for 

conducting the PM annual performance 

test and using other CMS for monitoring 

PM compliance (e.g., bag leak detectors, 

ESP secondary power, PM scrubber 

pressure). 

(i) To demonstrate continuous 

compliance with the dioxin/furan 

emissions limit, a facility may substitute 

use of a continuous automated sampling 

system for the dioxin/furan annual 

performance test. You must record the 

output of the system and analyze the 

sample according to EPA Method 23 at 

40 CFR part 60, appendix A–7 of this 

part. This option to use a continuous 

automated sampling system takes effect 

on the date a final performance 

specification applicable to dioxin/furan 

from continuous monitors is published 

in the Federal Register. The owner or 

operator who elects to continuously 

sample dioxin/furan emissions instead 

of sampling and testing using EPA 

Method 23 at 40 CFR part 60, appendix 

A–7 must install, calibrate, maintain, 

and operate a continuous automated 

sampling system and must comply with 

the requirements specified in 

§ 60.58b(p) and (q). A facility may 

substitute continuous dioxin/furan 

monitoring for the minimum sorbent 

flow rate, if activated carbon sorbent 

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injection is used solely for compliance 

with the dioxin/furan emission limit. 

(j) To demonstrate continuous 

compliance with the mercury emissions 

limit, a facility may substitute use of a 

continuous automated sampling system 

for the mercury annual performance 

test. You must record the output of the 

system and analyze the sample at set 

intervals using any suitable 

determinative technique that can meet 

performance specification 12B. The 

owner or operator who elects to 

continuously sample mercury emissions 

instead of sampling and testing using 

EPA Reference Method 29 or 30B at 40 

CFR part 60, appendix A–8 of this part, 

ASTM D6784–02 (Reapproved 2008) 

(incorporated by reference, see § 60.17), 

or an approved alternative method for 

measuring mercury emissions, must 

install, calibrate, maintain, and operate 

a continuous automated sampling 

system and must comply with 

performance specification 12A and 

quality assurance procedure 5, as well 

as the requirements specified in 

§ 60.58b(p) and (q). A facility may 

substitute continuous mercury 

monitoring for the minimum sorbent 

flow rate, if activated carbon sorbent 

injection is used solely for compliance 

with the mercury emission limit. 

(k) To demonstrate continuous 

compliance with the nitrogen oxides 

emissions limit, a facility may substitute 

use of a CEMS for the nitrogen oxides 

annual performance test to demonstrate 

compliance with the nitrogen oxides 

emissions limits and monitoring the 

charge rate, secondary chamber 

temperature, and reagent flow for 

selective noncatalytic reduction, if 

applicable. 

(1) Install, calibrate, maintain, and 

operate a CEMS for measuring nitrogen 

oxides emissions discharged to the 

atmosphere and record the output of the 

system. The requirements under 

performance specification 2 of appendix 

B of this part, the quality assurance 

procedure one of appendix F of this part 

and the procedures under § 60.13 must 

be followed for installation, evaluation, 

and operation of the CEMS. 

(2) Following the date that the initial 

performance test for nitrogen oxides is 

completed or is required to be 

completed under § 60.2125, compliance 

with the emission limit for nitrogen 

oxides required under § 60.52b(d) must 

be determined based on the 30-day 

rolling average of the hourly emission 

concentrations using CEMS outlet data. 

The 1-hour arithmetic averages must be 

expressed in parts per million by 

volume corrected to 7 percent oxygen 

(dry basis) and used to calculate the 30- 

day rolling average concentrations. 

CEMS data during startup and 

shutdown, as defined in this subpart, 

are not corrected to 7 percent oxygen, 

and are measured at stack oxygen 

content. The 1-hour arithmetic averages 

must be calculated using the data points 

required under § 60.13(e)(2). 

(l) * * * 

(1) Install, calibrate, maintain, and 

operate a CEMS for measuring sulfur 

dioxide emissions discharged to the 

atmosphere and record the output of the 

system. The requirements under 

performance specification 2 of appendix 

B of this part, the quality assurance 

requirements of procedure one of 

appendix F of this part and procedures 

under § 60.13 must be followed for 

installation, evaluation, and operation 

of the CEMS. 

(2) Following the date that the initial 

performance test for sulfur dioxide is 

completed or is required to be 

completed under § 60.2125, compliance 

with the sulfur dioxide emission limit 

may be determined based on the 30-day 

rolling average of the hourly arithmetic 

average emission concentrations using 

CEMS outlet data. The 1-hour arithmetic 

averages must be expressed in parts per 

million corrected to 7 percent oxygen 

(dry basis) and used to calculate the 30- 

day rolling average emission 

concentrations. CEMS data during 

startup and shutdown, as defined in this 

subpart, are not corrected to 7 percent 

oxygen, and are measured at stack 

oxygen content. The 1-hour arithmetic 

averages must be calculated using the 

data points required under § 60.13(e)(2). 

(m) For energy recovery units over 10 

MMBtu/hr but less than 250 MMBtu/hr 

annual average heat input rates that do 

not use a wet scrubber, fabric filter with 

bag leak detection system, or particulate 

matter CEMS, you must install, operate, 

certify, and maintain a continuous 

opacity monitoring system according to 

the procedures in paragraphs (m)(1) 

through (5) of this section by the 

compliance date specified in § 60.2105. 

Energy recovery units that use a CEMS 

to demonstrate initial and continuing 

compliance according to the procedures 

in § 60.2165(n) are not required to 

install a continuous opacity monitoring 

system and must perform the annual 

performance tests for the opacity 

consistent with § 60.2145(f). 

* * * * * 

(n) For coal and liquid/gas energy 

recovery units, incinerators, and small 

remote incinerators, an owner or 

operator may elect to install, calibrate, 

maintain, and operate a CEMS for 

monitoring particulate matter emissions 

discharged to the atmosphere and 

record the output of the system. The 

owner or operator of an affected facility 

who continuously monitors particulate 

matter emissions instead of conducting 

performance testing using EPA Method 

5 at 40 CFR part 60, appendix A–3 or, 

as applicable, monitor with a particulate 

matter CPMS according to paragraph (r) 

of this section, must install, calibrate, 

maintain, and operate a CEMS and must 

comply with the requirements specified 

in paragraphs (n)(1) through (13) of this 

section. 

* * * * * 

(6) The owner or operator of an 

affected facility must conduct an initial 

performance test for particulate matter 

emissions as required under § 60.2125. 

Compliance with the particulate matter 

emission limit, if PM CEMS are elected 

for demonstrating compliance, must be 

determined by using the CEMS 

specified in this paragraph (n) to 

measure particulate matter. You must 

calculate a 30-day rolling average of 1- 

hour arithmetic average emission 

concentrations, including CEMS data 

during startup and shutdown, as 

defined in this subpart, using Equation 

19–19 in section 12.4.1 of EPA 

Reference Method 19 at 40 CFR part 60, 

appendix A–7. 

(7) Compliance with the particulate 

matter emission limit must be 

determined based on the 30-day rolling 

average calculated using Equation 19–19 

in section 12.4.1 of EPA Reference 

Method 19 at 40 CFR part 60, appendix 

A–7 from the 1-hour arithmetic average 

CEMS outlet data. 

* * * * * 

(9) The 1-hour arithmetic averages 

required under paragraph (n)(7) of this 

section must be expressed in milligrams 

per dry standard cubic meter corrected 

to 7 percent oxygen (dry basis) and must 

be used to calculate the 30-day rolling 

average emission concentrations. CEMS 

data during startup and shutdown, as 

defined in this subpart, are not 

corrected to 7 percent oxygen, and are 

measured at stack oxygen content. The 

1-hour arithmetic averages must be 

calculated using the data points 

required under § 60.13(e)(2). 

(10) All valid CEMS data must be 

used in calculating average emission 

concentrations even if the minimum 

CEMS data requirements of paragraph 

(n)(8) of this section are not met. 

(11) The CEMS must be operated 

according to performance specification 

11 in appendix B of this part. 

(12) During each relative accuracy test 

run of the CEMS required by 

performance specification 11 in 

appendix B of this part, particulate 

matter and oxygen (or carbon dioxide) 

data must be collected concurrently (or 

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within a 30- to 60-minute period) by 

both the CEMS and the following test 

methods. 

* * * * * 

(ii) For oxygen (or carbon dioxide), 

EPA Reference Method 3A or 3B, as 

applicable, must be used. 

* * * * * 

(o) * * * 

(1) Install, calibrate, maintain, and 

operate a CEMS for measuring carbon 

monoxide emissions discharged to the 

atmosphere and record the output of the 

system. The requirements under 

performance specification 4B of 

appendix B of this part, the quality 

assurance procedure 1 of appendix F of 

this part and the procedures under 

§ 60.13 must be followed for 

installation, evaluation, and operation 

of the CEMS. 

(2) Following the date that the initial 

performance test for carbon monoxide is 

completed or is required to be 

completed under § 60.2140, compliance 

with the carbon monoxide emission 

limit may be determined based on the 

30-day rolling average of the hourly 

arithmetic average emission 

concentrations, including CEMS data 

during startup and shutdown as defined 

in this subpart, using CEMS outlet data. 

Except for CEMS data during startup 

and shutdown, as defined in this 

subpart, the 1-hour arithmetic averages 

must be expressed in parts per million 

corrected to 7 percent oxygen (dry basis) 

and used to calculate the 30-day rolling 

average emission concentrations. CEMS 

data during startup and shutdown, as 

defined in this subpart, are not 

corrected to 7 percent oxygen, and are 

measured at stack oxygen content. The 

1-hour arithmetic averages must be 

calculated using the data points 

required under § 60.13(e)(2). 

* * * * * 

(q) For energy recovery units with a 

design heat input capacity of 100 

MMBtu per hour or greater that do not 

use a carbon monoxide CEMS, you must 

install, operate, and maintain a oxygen 

analyzer system as defined in § 60.2265 

according to the procedures in 

paragraphs (q)(1) through (4) of this 

section. 

(1) The oxygen analyzer system must 

be installed by the initial performance 

test date specified in § 60.2675. 

(2) You must operate the oxygen trim 

system within compliance with 

paragraph (q)(3) of this section at all 

times. 

(3) You must maintain the oxygen 

level such that the 30-day rolling 

average that is established as the 

operating limit for oxygen according to 

paragraph (q)(4) or this section is not 

below the lowest hourly average oxygen 

concentration measured during the most 

recent CO performance test. 

(4) You must calculate and record a 

30-day rolling average oxygen 

concentration using Equation 19–19 in 

section 12.4.1 of EPA Reference Method 

19 of Appendix A–7 of this part. 

(r) For energy recovery units with 

annual average heat input rates greater 

than or equal to 250 MMBtu/hour and 

waste-burning kilns, you must install, 

calibrate, maintain, and operate a PM 

CPMS and record the output of the 

system as specified in paragraphs (r)(1) 

through (8) of this section. If you elect 

to use a particulate matter CEMS as 

specified in paragraph (n) of this 

section, you are not required to use a 

PM CPMS to monitor particulate matter 

emissions. For other energy recovery 

units, you may elect to use PM CPMS 

operated in accordance with this 

section. PM CPMS are suitable in lieu of 

using other CMS for monitoring PM 

compliance (e.g., bag leak detectors, ESP 

secondary power, PM scrubber 

pressure). 

(1) Install, calibrate, operate, and 

maintain your PM CPMS according to 

the procedures in your approved sitespecific monitoring plan developed in 

accordance with § 60.2145(l) and 

(r)(1)(i) through (iii) of this section. 

(i) The operating principle of the PM 

CPMS must be based on in-stack or 

extractive light scatter, light 

scintillation, beta attenuation, or mass 

accumulation detection of PM in the 

exhaust gas or representative sample. 

The reportable measurement output 

from the PM CPMS must be expressed 

as milliamps. 

(ii) The PM CPMS must have a cycle 

time (i.e., period required to complete 

sampling, measurement, and reporting 

for each measurement) no longer than 

60 minutes. 

(iii) The PM CPMS must be capable of 

detecting and responding to particulate 

matter concentrations of no greater than 

0.5 mg/actual cubic meter. 

(2) During the initial performance test 

or any such subsequent performance 

test that demonstrates compliance with 

the PM limit, you must adjust the sitespecific operating limit in accordance 

with the results of the performance test 

according to the procedures specified in 

§ 60.2110. 

(3) Collect PM CPMS hourly average 

output data for all energy recovery unit 

or waste-burning kiln operating hours. 

Express the PM CPMS output as 

milliamps. 

(4) Calculate the arithmetic 30-day 

rolling average of all of the hourly 

average PM CPMS output collected 

during all energy recovery unit or wasteburning kiln operating hours data 

(milliamps). 

(5) You must collect data using the 

PM CPMS at all times the energy 

recovery unit or waste-burning kiln is 

operating and at the intervals specified 

in paragraph (r)(1)(ii) of this section, 

except for periods of monitoring system 

malfunctions, repairs associated with 

monitoring system malfunctions, 

required monitoring system quality 

assurance or quality control activities 

(including, as applicable, calibration 

checks and required zero and span 

adjustments), and any scheduled 

maintenance as defined in your sitespecific monitoring plan. 

(6) You must use all the data collected 

during all energy recovery unit or wasteburning kiln operating hours in 

assessing the compliance with your 

operating limit except: 

(i) Any data collected during 

monitoring system malfunctions, repairs 

associated with monitoring system 

malfunctions, or required monitoring 

system quality assurance or quality 

control activities conducted during 

monitoring system malfunctions are not 

used in calculations (report any such 

periods in your annual deviation 

report); 

(ii) Any data collected during periods 

when the monitoring system is out of 

control as specified in your site-specific 

monitoring plan, repairs associated with 

periods when the monitoring system is 

out of control, or required monitoring 

system quality assurance or quality 

control activities conducted during outof-control periods are not used in 

calculations (report emissions or 

operating levels and report any such 

periods in your annual deviation 

report); 

(iii) Any PM CPMS data recorded 

during periods of CEMS data during 

startup and shutdown, as defined in this 

subpart. 

(7) You must record and make 

available upon request results of PM 

CPMS system performance audits, as 

well as the dates and duration of 

periods from when the PM CPMS is out 

of control until completion of the 

corrective actions necessary to return 

the PM CPMS to operation consistent 

with your site-specific monitoring plan. 

(8) For any deviation of the 30-day 

rolling average PM CPMS average value 

from the established operating 

parameter limit, you must: 

(i) Within 48 hours of the deviation, 

visually inspect the air pollution control 

device; 

(ii) If inspection of the air pollution 

control device identifies the cause of the 

deviation, take corrective action as soon 

as possible and return the PM CPMS 

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measurement to within the established 

value; and 

(iii) Within 30 days of the deviation 

or at the time of the annual compliance 

test, whichever comes first, conduct a 

PM emissions compliance test to 

determine compliance with the PM 

emissions limit and to verify. Within 45 

days of the deviation, you must reestablish the CPMS operating limit. You 

are not required to conduct additional 

testing for any deviations that occur 

between the time of the original 

deviation and the PM emissions 

compliance test required under this 

paragraph. 

(iv) PM CPMS deviations leading to 

more than four required performance 

tests in a 12-month process operating 

period (rolling monthly) constitute a 

violation of this subpart. 

(s) If you use a dry scrubber to comply 

with the emission limits of this subpart, 

you must monitor the injection rate of 

each sorbent and maintain the 3-hour 

block averages at or above the operating 

limits established during the hydrogen 

chloride performance test. 

■ 16. Section 60.2170 is amended by 

revising paragraph (b) to read as follows: 

§ 60.2170 Is there a minimum amount of 

monitoring data I must obtain? 

* * * * * 

(b) You may not use data recorded 

during monitoring system malfunctions 

or out-of-control periods, repairs 

associated with monitoring system 

malfunctions or out-of-control periods, 

or required monitoring system quality 

assurance or control activities in 

calculations used to report emissions or 

operating levels. You must use all the 

data collected during all other periods 

in assessing the operation of the control 

device and associated control system. 

* * * * * 

■ 17. Section 60.2175 is amended by: 

■ a. Revising the introductory text. 

■ b. Revising paragraph (b)(5). 

■ c. Revising paragraph (e). 

■ d. Revising paragraph (p)(4). 

■ e. Adding paragraphs (p)(8) and (p)(9). 

■ f. Revising paragraphs (v) and (w). 

■ g. Adding paragraph (x). 

The revisions and additions read as 

follows: 

§ 60.2175 What records must I keep? 

You must maintain the items (as 

applicable) as specified in paragraphs 

(a), (b), and (e) through (x) of this 

section for a period of at least 5 years: 

* * * * * 

(b) * * * 

(5) For affected CISWI units that 

establish operating limits for controls 

other than wet scrubbers under 

§ 60.2110(d) through (g) or § 60.2115, 

you must maintain data collected for all 

operating parameters used to determine 

compliance with the operating limits. 

For energy recovery units using 

activated carbon injection or a dry 

scrubber, you must also maintain 

records of the load fraction and 

corresponding sorbent injection rate 

records. 

* * * * * 

(e) Identification of calendar dates 

and times for which data show a 

deviation from the operating limits in 

table 2 of this subpart or a deviation 

from other operating limits established 

under § 60.2110(d) through (g) or 

§ 60.2115 with a description of the 

deviations, reasons for such deviations, 

and a description of corrective actions 

taken. 

* * * * * 

(p) * * * 

(4) All 1-hour average concentrations 

of carbon monoxide emissions. You 

must indicate which data are CEMS data 

during startup and shutdown. 

* * * * * 

(8) All 1-hour average percent oxygen 

concentrations. 

(9) All 1-hour average PM CPMS 

readings or particulate matter CEMS 

outputs. 

* * * * * 

(v) For operating units that combust 

non-hazardous secondary materials that 

have been determined not to be solid 

waste pursuant to § 241.3(b)(1) of this 

chapter, you must keep a record which 

documents how the secondary material 

meets each of the legitimacy criteria 

under § 241.3(d)(1). If you combust a 

fuel that has been processed from a 

discarded non-hazardous secondary 

material pursuant to § 241.3(b)(4) of this 

chapter, you must keep records as to 

how the operations that produced the 

fuel satisfies the definition of processing 

in § 241.2 and each of the legitimacy 

criteria of § 241.3(d)(1) of this chapter. 

If the fuel received a non-waste 

determination pursuant to the petition 

process submitted under § 241.3(c) of 

this chapter, you must keep a record 

that documents how the fuel satisfies 

the requirements of the petition process. 

For operating units that combust nonhazardous secondary materials as fuel 

per § 241.4, you must keep records 

documenting that the material is a listed 

non-waste under § 241.4(a). 

(w) Records of the criteria used to 

establish that the unit qualifies as a 

small power production facility under 

section 3(17)(C) of the Federal Power 

Act (16 U.S.C. 796(17)(C)) and that the 

waste material the unit is proposed to 

burn is homogeneous. 

(x) Records of the criteria used to 

establish that the unit qualifies as a 

cogeneration facility under section 

3(18)(B) of the Federal Power Act (16 

U.S.C. 796(18)(B)) and that the waste 

material the unit is proposed to burn is 

homogeneous. 

■ 18. Section 60.2210 is amended by 

revising paragraph (m) introductory text 

and paragraph (n) to read as follows: 

§ 60.2210 What information must I include 

in my annual report? 

* * * * * 

(m) If there were periods during 

which the continuous monitoring 

system, including the CEMS, was out of 

control as specified in paragraph (o) of 

this section, the annual report must 

contain the following information for 

each deviation from an emission or 

operating limitation occurring for a 

CISWI unit for which you are using a 

continuous monitoring system to 

comply with the emission and operating 

limitations in this subpart. 

* * * * * 

(n) If there were periods during which 

the continuous monitoring system, 

including the CEMS, was not out of 

control as specified in paragraph (o) of 

this section, a statement that there were 

not periods during which the 

continuous monitoring system was out 

of control during the reporting period. 

* * * * * 

■ 19. Section 60.2235 is revised to read 

as follows: 

§ 60.2235 In what form can I submit my 

reports? 

(a) Submit initial, annual, and 

deviation reports electronically or in 

paper format, postmarked on or before 

the submittal due dates. 

(b) Submit results of performance 

tests and CEMS performance evaluation 

tests as follows. 

(1) Within 60 days after the date of 

completing each performance test as 

required by this subpart, you must 

submit the results of the performance 

tests required by this subpart to EPA’s 

WebFIRE database by using the 

Compliance and Emissions Data 

Reporting Interface (CEDRI) that is 

accessed through EPA’s Central Data 

Exchange (CDX)(www.epa.gov/cdx). 

Performance test data must be submitted 

in the file format generated through use 

of EPA’s Electronic Reporting Tool 

(ERT) (see http://www.epa.gov/ttn/chief/ 

ert/index.html). Only data collected 

using test methods on the ERT Web site 

are subject to this requirement for 

submitting reports electronically to 

WebFIRE. Owners or operators who 

claim that some of the information being 

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submitted for performance tests is 

confidential business information (CBI) 

must submit a complete ERT file 

including information claimed to be CBI 

on a compact disk, flash drive, or other 

commonly used electronic storage 

media to EPA. The electronic media 

must be clearly marked as CBI and 

mailed to U.S. EPA/OAPQS/CORE CBI 

Office, Attention: WebFIRE 

Administrator, MD C404–02, 4930 Old 

Page Rd., Durham, NC 27703. The same 

ERT file with the CBI omitted must be 

submitted to EPA via CDX as described 

earlier in this paragraph. At the 

discretion of the delegated authority, 

you must also submit these reports, 

including the confidential business 

information, to the delegated authority 

in the format specified by the delegated 

authority. For any performance test 

conducted using test methods that are 

not listed on the ERT Web site, the 

owner or operator shall submit the 

results of the performance test in paper 

submissions to the Administrator. 

(2) Within 60 days after the date of 

completing each CEMS performance 

evaluation test, as defined in this 

subpart and required by this subpart, 

you must submit the relative accuracy 

test audit (RATA) data electronically 

into EPA’s Central Data Exchange by 

using CEDRI as mentioned in paragraph 

(b)(1) of this section. Only RATA 

pollutants that can be documented with 

the ERT (as listed on the ERT Web site) 

are subject to this requirement. For any 

performance evaluations with no 

corresponding RATA pollutants listed 

on the ERT Web site, the owner or 

operator shall submit the results of the 

performance evaluation in paper 

submissions to the Administrator. 

■ 20. Section 60.2265 is amended by: 

■ a. Adding in alphabetical order 

definitions for ‘‘30-day rolling average,’’ 

‘‘Annual heat input,’’ ‘‘Average annual 

heat input rate,’’ ‘‘CEMS data during 

startup and shutdown,’’ ‘‘Contained 

gaseous material,’’ ‘‘Continuous 

emission monitoring system,’’ ‘‘Dry 

scrubber,’’ ‘‘Foundry sand thermal 

reclamation unit,’’ ‘‘Load fraction,’’ 

‘‘Municipal solid waste or municipal 

type solid waste,’’ ‘‘Oxygen analyzer 

system,’’ ‘‘Oxygen trim system,’’ 

‘‘Responsible official,’’ and ‘‘Solid 

waste.’’ 

■ b. Revising definitions for ‘‘Chemical 

recovery unit,’’ ‘‘Commercial and 

industrial solid waste incineration 

(CISWI) unit,’’ ‘‘Continuous monitoring 

system (CMS),’’ ‘‘Cyclonic burn barrel,’’ 

‘‘Energy recovery unit,’’ ‘‘Energy 

recovery unit designed to burn biomass 

(Biomass),’’ ‘‘Incinerator,’’ 

‘‘Modification or modified CISWI unit,’’ 

‘‘Process change,’’ ‘‘Raw mill,’’ ‘‘Small, 

remote incinerator,’’ ‘‘Soil treatment 

unit,’’ ‘‘Solid waste incineration unit,’’ 

‘‘Space heater,’’ and ‘‘Waste-burning 

kiln.’’ 

■ c. Removing the definition for 

‘‘Homogeneous wastes’’ and ‘‘Cyclonic 

barrel burner.’’ 

The revisions and additions read as 

follows: 

§ 60.2265 What definitions must I know? 

* * * * * 

30-day rolling average means the 

arithmetic mean of the previous 720 

hours of valid operating data. Valid data 

excludes periods when this unit is not 

operating. The 720 hours should be 

consecutive, but not necessarily 

continuous if operations are 

intermittent. 

* * * * * 

Annual heat input means the heat 

input for the 12 months preceding the 

compliance demonstration. 

* * * * * 

Average annual heat input rate means 

annual heat input divided by the hours 

of operation for the 12 months 

preceding the compliance 

demonstration. 

* * * * * 

CEMS data during startup and 

shutdown means the following: 

(1) For incinerators, small remote 

incinerators, and energy recovery units: 

CEMS data collected during the first 

hours of a CISWI unit startup from a 

cold start until waste is fed to the unit 

and the hours of operation following the 

cessation of waste material being fed to 

the CISWI unit during a unit shutdown. 

For each startup event, the length of 

time that CEMS data may be claimed as 

being CEMS data during startup must be 

48 operating hours or less. For each 

shutdown event, the length of time that 

CEMS data may be claimed as being 

CEMS data during shutdown must be 24 

operating hours or less. 

(2) For waste-burning kilns: CEMS 

data collected during the periods of kiln 

operation that do not include normal 

operations. Startup begins when the 

kiln’s induced fan is turned on and 

continues until continuous feed is 

introduced into the kiln, at which time 

the kiln is in normal operating mode. 

Shutdown begins when feed to the kiln 

is halted. 

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. The 

following seven types of units are 

considered chemical recovery units: 

(1) Units burning only pulping liquors 

(i.e., black liquor) that are reclaimed in 

a pulping liquor recovery process and 

reused in the pulping process. 

(2) Units burning only spent sulfuric 

acid used to produce virgin sulfuric 

acid. 

(3) Units burning only wood or coal 

feedstock for the production of charcoal. 

(4) Units burning only manufacturing 

byproduct streams/residue containing 

catalyst metals that are reclaimed and 

reused as catalysts or used to produce 

commercial grade catalysts. 

(5) Units burning only coke to 

produce purified carbon monoxide that 

is used as an intermediate in the 

production of other chemical 

compounds. 

(6) Units burning only hydrocarbon 

liquids or solids to produce hydrogen, 

carbon monoxide, synthesis gas, or 

other gases for use in other 

manufacturing processes. 

(7) Units burning only photographic 

film to recover silver. 

* * * * * 

Commercial and industrial solid 

waste incineration (CISWI) unit means 

any distinct operating unit of any 

commercial or industrial facility that 

combusts, or has combusted in the 

preceding 6 months, any solid waste as 

that term is defined in 40 CFR part 241. 

If the operating unit burns materials 

other than traditional fuels as defined in 

§ 241.2 that have been discarded, and 

you do not keep and produce records as 

required by § 60.2175(v), the operating 

unit is a CISWI unit. While not all 

CISWI units will include all of the 

following components, a CISWI unit 

includes, but is not limited to, the solid 

waste feed system, grate system, flue gas 

system, waste heat recovery equipment, 

if any, and bottom ash system. The 

CISWI unit does not include air 

pollution control equipment or the 

stack. The CISWI unit boundary starts at 

the solid waste hopper (if applicable) 

and extends through two areas: The 

combustion unit flue gas system, which 

ends immediately after the last 

combustion chamber or after the waste 

heat recovery equipment, if any; and the 

combustion unit bottom ash system, 

which ends at the truck loading station 

or similar equipment that transfers the 

ash to final disposal. The CISWI unit 

includes all ash handling systems 

connected to the bottom ash handling 

system. 

Contained gaseous material means 

gases that are in a container when that 

container is combusted. 

Continuous emission monitoring 

system (CEMS) means the total 

equipment that may be required to meet 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9189 

the data acquisition and availability 

requirements of this subpart, used to 

sample, condition (if applicable), 

analyze, and provide a record of 

emissions. 

Continuous monitoring system (CMS) 

means the total equipment, required 

under the emission monitoring sections 

in applicable subparts, used to sample 

and condition (if applicable), to analyze, 

and to provide a permanent record of 

emissions or process parameters. A 

particulate matter continuous parameter 

monitoring system (PM CPMS) is a type 

of CMS. 

Cyclonic burn barrel means a 

combustion device for waste materials 

that is attached to a 55 gallon, openhead drum. The device consists of a lid, 

which fits onto and encloses the drum, 

and a blower that forces combustion air 

into the drum in a cyclonic manner to 

enhance the mixing of waste material 

and air. A cyclonic burn barrel is not an 

incinerator, a waste-burning kiln, an 

energy recovery unit or a small, remote 

incinerator under this subpart. 

* * * * * 

Dry scrubber means an add-on air 

pollution control system that injects dry 

alkaline sorbent (dry injection) or sprays 

an alkaline sorbent (spray dryer) to react 

with and neutralize acid gas in the 

exhaust stream forming a dry powder 

material. Sorbent injection systems in 

fluidized bed boilers and process 

heaters are included in this definition. 

A dry scrubber is a dry control system. 

* * * * * 

Energy recovery unit means a 

combustion unit combusting solid waste 

(as that term is defined by the 

Administrator in 40 CFR part 241) for 

energy recovery. Energy recovery units 

include units that would be considered 

boilers and process heaters if they did 

not combust solid waste. 

Energy recovery unit designed to burn 

biomass (Biomass) means an energy 

recovery unit that burns solid waste, 

biomass, and non-coal solid materials 

but less than 10 percent coal, on a heat 

input basis on an annual average, either 

alone or in combination with liquid 

waste, liquid fuel or gaseous fuels. 

* * * * * 

Foundry sand thermal reclamation 

unit means a type of part reclamation 

unit that removes coatings that are on 

foundry sand. A foundry sand thermal 

reclamation unit is not an incinerator, a 

waste-burning kiln, an energy recovery 

unit or a small, remote incinerator 

under this subpart. 

Incinerator means any furnace used in 

the process of combusting solid waste 

(as that term is defined by the 

Administrator in 40 CFR part 241) for 

the purpose of reducing the volume of 

the waste by removing combustible 

matter. Incinerator designs include 

single chamber and two-chamber. 

* * * * * 

Load fraction means the actual heat 

input of an energy recovery unit divided 

by heat input during the performance 

test that established the minimum 

sorbent injection rate or minimum 

activated carbon injection rate, 

expressed as a fraction (e.g., for 50 

percent load the load fraction is 0.5). 

* * * * * 

Modification or modified CISWI unit 

means a CISWI unit that has been 

changed later than August 7, 2013 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. 

Municipal solid waste or municipaltype solid waste means household, 

commercial/retail, or institutional 

waste. Household waste includes 

material discarded by residential 

dwellings, hotels, motels, and other 

similar permanent or temporary 

housing. Commercial/retail waste 

includes material discarded by stores, 

offices, restaurants, warehouses, 

nonmanufacturing activities at 

industrial facilities, and other similar 

establishments or facilities. Institutional 

waste includes materials discarded by 

schools, by hospitals (nonmedical), by 

nonmanufacturing activities at prisons 

and government facilities, and other 

similar establishments or facilities. 

Household, commercial/retail, and 

institutional waste does include yard 

waste and refuse-derived fuel. 

Household, commercial/retail, and 

institutional waste does not include 

used oil; sewage sludge; wood pallets; 

construction, renovation, and 

demolition wastes (which include 

railroad ties and telephone poles); clean 

wood; industrial process or 

manufacturing wastes; medical waste; or 

motor vehicles (including motor vehicle 

parts or vehicle fluff). 

* * * * * 

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 or process 

heater, firebox, or other appropriate 

location. This definition includes 

oxygen trim systems and certified 

oxygen CEMS. The source owner or 

operator is responsible to install, 

calibrate, maintain, and operate the 

oxygen analyzer system in accordance 

with the manufacturer’s 

recommendations. 

Oxygen trim system means a system of 

monitors that is used to maintain excess 

air at the desired level in a combustion 

device. A typical system consists of a 

flue gas oxygen and/or carbon monoxide 

monitor that automatically provides a 

feedback signal to the combustion air 

controller. 

* * * * * 

Process change means any of the 

following physical or operational 

changes: 

(1) A physical change (maintenance 

activities excluded) to the CISWI unit 

which may increase the emission rate of 

any air pollutant to which a standard 

applies; 

(2) An operational change to the 

CISWI unit where a new type of nonhazardous secondary material is being 

combusted; 

(3) A physical change (maintenance 

activities excluded) to the air pollution 

control devices used to comply with the 

emission limits for the CISWI unit (e.g., 

replacing an electrostatic precipitator 

with a fabric filter); 

(4) An operational change to the air 

pollution control devices used to 

comply with the emission limits for the 

affected CISWI unit (e.g., change in the 

sorbent injection rate used for activated 

carbon injection). 

* * * * * 

Raw mill means a ball or tube mill, 

vertical roller mill or other size 

reduction equipment, that is not part of 

an in-line kiln/raw mill, used to grind 

feed to the appropriate size. Moisture 

may be added or removed from the feed 

during the grinding operation. If the raw 

mill is used to remove moisture from 

feed materials, it is also, by definition, 

a raw material dryer. The raw mill also 

includes the air separator associated 

with the raw mill. 

* * * * * 

Responsible official means one of the 

following: 

(1) For a corporation: A president, 

secretary, treasurer, or vice-president of 

the corporation in charge of a principal 

business function, or any other person 

who performs similar policy or 

decision-making functions for the 

corporation, or a duly authorized 

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9190 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

representative of such person if the 

representative is responsible for the 

overall operation of one or more 

manufacturing, production, or operating 

facilities applying for or subject to a 

permit and either: 

(i) The facilities employ more than 

250 persons or have gross annual sales 

or expenditures exceeding $25 million 

(in second quarter 1980 dollars); or 

(ii) The delegation of authority to 

such representatives is approved in 

advance by the permitting authority; 

(2) For a partnership or sole 

proprietorship: A general partner or the 

proprietor, respectively; 

(3) For a municipality, State, Federal, 

or other public agency: Either a 

principal executive officer or ranking 

elected official. For the purposes of this 

part, a principal executive officer of a 

Federal agency includes the chief 

executive officer having responsibility 

for the overall operations of a principal 

geographic unit of the agency (e.g., a 

Regional Administrator of EPA); or 

(4) For affected facilities: 

(i) The designated representative in so 

far as actions, standards, requirements, 

or prohibitions under Title IV of the 

Clean Air Act or the regulations 

promulgated thereunder are concerned; 

or 

(ii) The designated representative for 

any other purposes under part 60. 

* * * * * 

Small, remote incinerator means an 

incinerator that combusts solid waste 

(as that term is defined by the 

Administrator in 40 CFR part 241) and 

combusts 3 tons per day or less solid 

waste and is more than 25 miles driving 

distance to the nearest municipal solid 

waste landfill. 

Soil treatment unit means a unit that 

thermally treats petroleum– 

contaminated soils for the sole purpose 

of site remediation. A soil treatment 

unit may be direct-fired or indirect 

fired. A soil treatment unit is not an 

incinerator, a waste-burning kiln, an 

energy recovery unit or a small, remote 

incinerator under this subpart. 

Solid waste means the term solid 

waste as defined in 40 CFR 241.2. 

Solid waste incineration unit means a 

distinct operating unit of any facility 

which combusts any solid waste (as that 

term is defined by the Administrator in 

40 CFR part 241) material from 

commercial or industrial establishments 

or the general public (including single 

and multiple residences, hotels and 

motels). Such term does not include 

incinerators or other units required to 

have a permit under section 3005 of the 

Solid Waste Disposal Act. The term 

‘‘solid waste incineration unit’’ does not 

include: 

(1) Materials recovery facilities 

(including primary or secondary 

smelters) which combust waste for the 

primary purpose of recovering metals; 

(2) Qualifying small power 

production facilities, as defined in 

section 3(17)(C) of the Federal Power 

Act (16 U.S.C. 769(17)(C)), or qualifying 

cogeneration facilities, as defined in 

section 3(18)(B) of the Federal Power 

Act (16 U.S.C. 796(18)(B)), which burn 

homogeneous waste (such as units 

which burn tires or used oil, but not 

including refuse-derived fuel) for the 

production of electric energy or in the 

case of qualifying cogeneration facilities 

which burn homogeneous waste for the 

production of electric energy and steam 

or forms of useful energy (such as heat) 

which are used for industrial, 

commercial, heating or cooling 

purposes; or 

(3) Air curtain incinerators provided 

that such incinerators only burn wood 

wastes, yard wastes, and clean lumber 

and that such air curtain incinerators 

comply with opacity limitations to be 

established by the Administrator by 

rule. 

Space heater means a unit that meets 

the requirements of 40 CFR 279.23. A 

space heater is not an incinerator, a 

waste-burning kiln, an energy recovery 

unit or a small, remote incinerator 

under this subpart. 

* * * * * 

Waste-burning kiln means a kiln that 

is heated, in whole or in part, by 

combusting solid waste (as that term is 

defined by the Administrator in 40 CFR 

part 241). Secondary materials used in 

Portland cement kilns shall not be 

deemed to be combusted unless they are 

introduced into the flame zone in the 

hot end of the kiln or mixed with the 

precalciner fuel. 

* * * * * 

■ 21. Table 1 to subpart CCCC of part 60 

is amended by: 

■ a. Revising the table heading. 

■ b. Revising the entry for ‘‘Carbon 

monoxide’’. 

■ c. Revising the entry for ‘‘Dioxin/ 

Furan (toxic equivalency basis)’’. 

■ d. Revising the entry for ‘‘Hydrogen 

Chloride’’. 

■ e. Revising the entry for ‘‘Nitrogen 

Oxides’’. 

■ f. Revising the entry for ‘‘Sulfur 

Dioxide’’. 

The revisions read as follows: 

TABLE 1 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR CISWI UNITS FOR WHICH CONSTRUCTION IS

COMMENCED AFTER NOVEMBER 30, 1999, BUT NO LATER THAN JUNE 4, 2010, OR FOR WHICH MODIFICATION OR

RECONSTRUCTION IS COMMENCED ON OR AFTER JUNE 1, 2001, BUT NO LATER THAN AUGUST 7, 2013 

For the air pollutant You must meet this emission 

limitation a Using this averaging time And determining compliance using this method 

*******

Carbon monoxide .... 157 parts per million by dry 

volume.

3-run average (1 hour minimum sample time per run) ....... Performance test (Method 10 

at 40 CFR part 60, appendix A–4). 

Dioxin/Furan (toxic 

equivalency basis).

0.41 nanograms per dry 

standard cubic meter.

3-run average (collect a minimum volume of 4 dry standard cubic meters per run).Performance test (Method 23 

of appendix A–7 of this 

part). 

Hydrogen chloride ... 62 parts per million by dry 

volume.

3-run average (For Method 26, collect a minimum volume 

of 120 liters per run. For Method 26A, collect a minimum volume of 1 dry standard cubic meter per run).

Performance test (Method 26 

or 26A at 40 CFR part 60, 

appendix A–8). 

* * * * * * * 

Nitrogen Oxides ....... 388 parts per million by dry 

volume.

3-run average (for Method 7E, 1 hour minimum sample 

time per run).

Performance test (Method 7 

or 7E at 40 CFR part 60, 

appendix A–4). 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9191 

TABLE 1 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR CISWI UNITS FOR WHICH CONSTRUCTION IS

COMMENCED AFTER NOVEMBER 30, 1999, BUT NO LATER THAN JUNE 4, 2010, OR FOR WHICH MODIFICATION OR

RECONSTRUCTION IS COMMENCED ON OR AFTER JUNE 1, 2001, BUT NO LATER THAN AUGUST 7, 2013—Continued 

For the air pollutant You must meet this emission 

limitation a Using this averaging time And determining compliance 

using this method 

*******

Sulfur Dioxide .......... 20 parts per million by dry 

volume.

3-run average (For Method 6, collect a minimum volume 

of 20 liters per run. For Method 6C, collect sample for a 

minimum duration of 1 hour per run).

Performance test (Method 6 

or 6C at 40 CFR part 60, 

appendix A–4). 

aAll emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. 

b Incorporated by reference, see § 60.17. 

* * * * * 

■ 22. Table 2 to subpart CCCC of part 60 

is amended by revising footnote a to 

read as follows: 

Table 2 to Subpart CCCC of Part 60— 

Operating Limits for Wet Scrubbers 

* * * * * aCalculated each hour as the average of the 

previous 3 operating hours. 

■ 23. Table 5 to subpart CCCC of part 60 

is amended by: 

■ a. Revising the table heading. 

■ b. Revising the entry for ‘‘Carbon 

Monoxide’’. 

■ c. Revising the entry for ‘‘Dioxin/furan 

(Total Mass Basis)’’. 

■ d. Revising the entry for ‘‘Hydrogen 

chloride’’. 

■ e. Revising the entry for ‘‘Lead’’. 

■ f. Revising the entry for ‘‘Mercury’’. 

■ g. Revising the entry for ‘‘Nitrogen 

Oxides’’. 

■ h. Revising the entry for ‘‘Sulfur 

dioxide’’. 

■ i. Adding footnote c. 

The revisions and addition read as 

follows: 

TABLE 5 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR INCINERATORS THAT COMMENCED CONSTRUCTION

AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013 

For the air 

pollutant 

You must meet this emission 

limitation a Using this averaging time And determining compliance using this method 

*******

Carbon monoxide .... 17 parts per million by dry 

volume.

3-run average (1 hour minimum sample time per run) ....... Performance test (Method 10 

at 40 CFR part 60, appendix A–4). 

Dioxin/furan (Total 

Mass Basis).

0.58 nanograms per dry 

standard cubic meter c.

3-run average (collect a minimum volume of 4 dry standard cubic meters per run).Performance test (Method 23 

at 40 CFR part 60, appendix A–7). 

* * * * * * * 

Hydrogen chloride ... 0.091 parts per million by dry 

volume.

3-run average (For Method 26, collect a minimum volume 

of 360 liters per run. For Method 26A, collect a minimum volume of 3 dry standard cubic meters per run).

Performance test (Method 26 

or 26A at 40 CFR part 60, 

appendix A–8). 

Lead ......................... 0.015 milligrams per dry 

standard cubic meter c.

3-run average (collect a minimum volume of 4 dry standard cubic meters per run).Performance test (Method 29 

of appendix A–8 at 40 

CFR part 60). Use ICPMS 

for the analytical finish. 

Mercury .................... 0.00084 milligrams per dry 

standard cubic meter c.

3-run average (collect enough volume to meet a detection 

limit data quality objective of 0.03 ug/dry standard cubic 

meter).

Performance test (Method 29 

or 30B at 40 CFR part 60, 

appendix A–8) or ASTM 

D6784–02 (Reapproved 

2008).b

Nitrogen Oxides ....... 23 parts per million dry volume.3-run average (for Method 7E, 1 hour minimum sample 

time per run).

Performance test (Method 7 

or 7E at 40 CFR part 60, 

appendix A–4). 

* * * * * * * 

Sulfur dioxide ........... 11 parts per million dry volume.3-run average (1 hour minimum sample time per run) ....... Performance test (Method 6 

or 6C at 40 CFR part 60, 

appendix A–4). 

* * * * * * * 

aAll emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the 

Total Mass Limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years 

show that your emissions are at or below this limit, you can skip testing according to § 60.2155 if all of the other provisions of § 60.2155 are met. 

For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show 

that your emissions are at or below 75 percent of this limit in order to qualify for skip testing. 

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9192 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

■ 24. Table 6 to subpart CCCC of part 60 

is amended by: 

■ a. Revising the table heading. 

■ b. Revising the entry for ‘‘Cadmium’’. 

■ c. Revising the entry for ‘‘Carbon 

monoxide’’. 

■ d. Revising the entry for ‘‘Dioxins/ 

furans (Total Mass Basis)’’. 

■ e. Revising the entry for ‘‘Dioxins/ 

furans (toxic equivalency basis)’’. 

■ f. Revising the entry for ‘‘Hydrogen 

chloride’’. 

■ g. Revising the entry for ‘‘Lead’’. 

■ h. Revising the entry for ‘‘Mercury’’. 

■ i. Revising the entry for ‘‘Oxides of 

nitrogen’’. 

■ j. Revising the entry for ‘‘Particulate 

matter (filterable)’’. 

■ k. Revising the entry for ‘‘Sulfur 

dioxide’’. 

■ l. Adding footnote c. 

The revisions and addition read as 

follows: 

TABLE 6 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR ENERGY RECOVERY UNITS THAT COMMENCED

CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 

2013 

For the air pollutant 

You must meet this emission limitation a

Using this averaging time 

And determining 

compliance using 

Liquid/Gas Solids this method 

Cadmium ................................... 0.023 milligrams per 

dry standard cubic 

meter.

Biomass—0.0014 

milligrams per dry 

standard cubic 

meter. c

Coal—0.0095 milligrams per dry 

standard cubic 

meter.

3-run average (collect a minimum volume of 4 dry standard cubic meters 

per run).

Performance test 

(Method 29 at 40 

CFR part 60, appendix A–8). Use 

ICPMS for the analytical finish. 

Carbon monoxide ...................... 35 parts per million 

dry volume.

Biomass—240 parts 

per million dry volume.

Coal—95 parts per 

million dry volume.

3-run average (1 hour minimum sample 

time per run).

Performance test 

(Method 10 at 40 

CFR part 60, appendix A–4). 

Dioxin/furans (Total Mass Basis) No Total Mass 

Basis limit, must 

meet the toxic 

equivalency basis 

limit below.

Biomass—0.52 

nanograms per 

dry standard cubic 

meter. c

Coal—5.1 

nanograms per 

dry standard cubic 

meter. c

3-run average (collect a minimum volume of 4 dry standard cubic meters).Performance test 

(Method 23 at 40 

CFR part 60, appendix A–7). 

Dioxins/furans (toxic equivalency basis).0.093 nanograms 

per dry standard 

cubic meter. c

Biomass—0.076 

nanograms per 

dry standard cubic 

meter. c

Coal—0.075 

nanograms per 

dry standard cubic 

meter. c

3-run average (collect a minimum volume of 4 dry standard cubic meters 

per run).

Performance test 

(Method 23 of appendix A–7 of this 

part). 

Hydrogen chloride ..................... 14 parts per million 

dry volume.

Biomass—0.20 

parts per million 

dry volume.

Coal—13 parts per 

million dry volume.

3-run average (For Method 26, collect a 

minimum volume of 360 liters per run. 

For Method 26A, collect a minimum 

volume of 3 dry standard cubic meters 

per run).

Performance test 

(Method 26 or 

26A at 40 CFR 

part 60, appendix 

A–8). 

Lead ........................................... 0.096 milligrams per 

dry standard cubic 

meter.

Biomass—0.014 milligrams per dry 

standard cubic 

meter. c

Coal—0.14 milligrams per dry 

standard cubic 

meter. 

3-run average (collect a minimum volume of 4 dry standard cubic meters 

per run).

Performance test 

(Method 29 at 40 

CFR part 60, appendix A–8). Use 

ICPMS for the analytical finish. 

Mercury ...................................... 0.00056 milligrams 

per dry standard 

cubic meter. c

Biomass—0.0022 

milligrams per dry 

standard cubic 

meter.

Coal—0.016 milligrams per dry 

standard cubic 

meter.

3-run average (collect enough volume to 

meet an in-stack detection limit data 

quality objective of 0.03 ug/dscm).

Performance test 

(Method 29 or 

30B at 40 CFR 

part 60, appendix 

A–8) or ASTM 

D6784–02 (Reapproved 2008)b. 

Oxides of nitrogen ..................... 76 parts per million 

dry volume.

Biomass—290 parts 

per million dry volume.

Coal—340 parts per 

million dry volume.

3-run average (for Method 7E, 1 hour 

minimum sample time per run).

Performance test 

(Method 7 or 7E 

at 40 CFR part 

60, appendix A– 

4). 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9193 

TABLE 6 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR ENERGY RECOVERY UNITS THAT COMMENCED

CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 

2013—Continued 

For the air pollutant 

You must meet this emission limitation a

Using this averaging time 

And determining 

compliance using 

Liquid/Gas Solids this method 

Particulate matter (filterable) ..... 110 milligrams per 

dry standard cubic 

meter.

Biomass—5.1 milligrams per dry 

standard cubic 

meter.

Coal—160 milligrams per dry 

standard cubic 

meter.

3-run average (collect a minimum volume of 1 dry standard cubic meter per 

run).

Performance test 

(Method 5 or 29 

at 40 CFR part 

60, appendix A–3 

or appendix A–8) 

if the unit has an 

annual average 

heat input rate 

less than 250 

MMBtu/hr; or PM 

CPMS (as specified in 

§ 60.2145(x)) if 

the unit has an 

annual average 

heat input rate 

equal to or greater than 250 

MMBtu/hr. 

Sulfur dioxide ............................. 720 parts per million 

dry volume.

Biomass—7.3 parts 

per million dry volume.

Coal—650 parts per 

million dry volume.

3-run average (for Method 6, collect a 

minimum of 60 liters, for Method 6C,1 

hour minimum sample time per run).

Performance test 

(Method 6 or 6C 

at 40 CFR part 

60, appendix A– 

4). 

aAll emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the 

Total Mass Basis limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years 

show that your emissions are at or below this limit, you can skip testing according to § 60.2155 if all of the other provisions of § 60.2155 are met. 

For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show 

that your emissions are at or below 75 percent of this limit in order to qualify for skip testing. 

■ 25. Table 7 to Subpart CCCC of part 

60 is revised to read as follows: 

TABLE 7 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR WASTE-BURNING KILNS THAT COMMENCED

CONSTRUCTION AFTER JUNE 4, 2010, OR RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013 

For the air pollutant You must meet this emission 

limitation a Using this averaging time 

And determining 

compliance using 

this method 

Cadmium ........................................ 0.0014 milligrams per dry standard cubic meter. b3-run average (collect a minimum 

volume of 4 dry standard cubic 

meters per run).

Performance test (Method 29 at 

40 CFR part 60, appendix A–8). 

Use ICPMS for the analytical 

finish. 

Carbon monoxide .......................... 90 (long kilns)/190 (preheater/ 

precalciner) parts per million 

dry volume.

3-run average (1 hour minimum 

sample time per run).

Performance test (Method 10 at 

40 CFR part 60, appendix A–4). 

Dioxins/furans (total mass basis) ... 0.51 nanograms per dry standard 

cubic meter. b

3-run average (collect a minimum 

volume of 4 dry standard cubic 

meters per run).

Performance test (Method 23 at 

40 CFR part 60, appendix A–7). 

Dioxins/furans (toxic equivalency 

basis).

0.075 nanograms per dry standard cubic meter. b3-run average (collect a minimum 

volume of 4 dry standard cubic 

meters).

Performance test (Method 23 at 

40 CFR part 60, appendix A–7). 

Hydrogen chloride .......................... 3.0 parts per million dry volume. b 3-run average (1 hour minimum 

sample time per run) or 30-day 

rolling average if HCl CEMS are 

used.

Performance test (Method 321 at 

40 CFR part 63, appendix A) or 

HCl CEMS if a wet scrubber or 

dry scrubber is not used. 

Lead ............................................... 0.014 milligrams per dry standard 

cubic meter. b

3-run average (collect a minimum 

volume of 4 dry standard cubic 

meters).

Performance test (Method 29 at 

40 CFR part 60, appendix A–8). 

Use ICPMS for the analytical 

finish. 

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TABLE 7 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR WASTE-BURNING KILNS THAT COMMENCED

CONSTRUCTION AFTER JUNE 4, 2010, OR RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013—Continued 

For the air pollutant You must meet this emission 

limitation a Using this averaging time 

And determining 

compliance using 

this method 

Mercury .......................................... 0.0037 milligrams per dry standard cubic meter.30-day rolling average .................. Mercury CEMS or sorbent trap 

monitoring system (performance specification 12A or 12B, 

respectively, of appendix B of 

this part.) 

Oxides of nitrogen ......................... 200 parts per million dry volume .. 30-day rolling average .................. NOx CEMS (performance specification 2 of appendix B and 

procedure 1 of appendix F of 

this part). 

Particulate matter (filterable) .......... 2.2 milligrams per dry standard 

cubic meter.

30-day rolling average .................. PM CPMS (as specified in 

§ 60.2145(x)). 

Sulfur dioxide ................................. 28 parts per million dry volume .... 30-day rolling average .................. Sulfur dioxide CEMS (performance specification 2 of appendix B and procedure 1 of appendix F of this part). 

aAll emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the 

Total Mass Basis limit or the toxic equivalency basis limit. b If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years 

show that your emissions are at or below this limit, you can skip testing according to § 60.2155 if all of the other provisions of § 60.2155 are met. 

For all other pollutants that do not contain a footnote ‘‘b’’, your performance tests for this pollutant for at least 2 consecutive years must show 

that your emissions are at or below 75 percent of this limit in order to qualify for skip testing. 

■ 26. Table 8 to Subpart CCCC of part 

60 is revised to read as follows: 

TABLE 8 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR SMALL, REMOTE INCINERATORS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER

AUGUST 7, 2013 

For the air pollutant You must meet this emission 

limitation a Using this averaging time 

And determining 

compliance using 

this method 

Cadmium ....................................... 0.67 milligrams per dry standard 

cubic meter.

3-run average (collect a minimum 

volume of 1 dry standard cubic 

meters per run).

Performance test (Method 29 at 

40 CFR part 60, appendix A–8). 

Carbon monoxide .......................... 13 parts per million dry volume .... 3-run average (1 hour minimum 

sample time per run).

Performance test (Method 10 at 

40 CFR part 60, appendix A–4). 

Dioxins/furans (total mass basis) .. 1,800 nanograms per dry standard cubic meter. b

3-run average (collect a minimum 

volume of 1 dry standard cubic 

meters per run).

Performance test (Method 23 at 

40 CFR part 60, appendix A–7). 

Dioxins/furans (toxic equivalency 

basis).

31 nanograms per dry standard 

cubic meter. b

3-run average (collect a minimum 

volume of 1 dry standard cubic 

meters).

Performance test (Method 23 at 

40 CFR part 60, appendix A–7). 

Fugitive ash ................................... Visible emissions for no more 

than 5 percent of the hourly observation period.

Three 1-hour observation periods Visible emissions test (Method 22 

at 40 CFR part 60, appendix A– 

7). 

Hydrogen chloride ......................... 200 parts per million by dry volume.3-run average (For Method 26, 

collect a minimum volume of 60 

liters per run. For Method 26A, 

collect a minimum volume of 1 

dry standard cubic meter per 

run).

Performance test (Method 26 or 

26A at 40 CFR part 60, appendix A–8). 

Lead .............................................. 2.0 milligrams per dry standard 

cubic meter.

3-run average (collect a minimum 

volume of 1 dry standard cubic 

meters).

Performance test (Method 29 at 

40 CFR part 60, appendix A–8). 

Use ICPMS for the analytical 

finish. 

Mercury ......................................... 0.0035 milligrams per dry standard cubic meter.3-run average (For Method 29 

and ASTM D6784–02 (Reapproved 2008) b, collect a minimum volume of 2 dry standard 

cubic meters per run. For Method 30B, collect a minimum volume as specified in Method 30B 

at 40 CFR part 60, appendix A).

Performance test (Method 29 or 

30B at 40 CFR part 60, appendix A–8) or ASTM D6784–02 

(Reapproved 2008). b

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TABLE 8 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR SMALL, REMOTE INCINERATORS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER

AUGUST 7, 2013—Continued 

For the air pollutant You must meet this emission limitation a Using this averaging time 

And determining 

compliance using 

this method 

Oxides of nitrogen ......................... 170 parts per million dry volume .. 3-run average (for Method 7E, 1 

hour minimum sample time per 

run).

Performance test (Method 7 or 7E 

at 40 CFR part 60, appendix A– 

4). 

Particulate matter (filterable) ......... 270 milligrams per dry standard 

cubic meter.

3-run average (collect a minimum 

volume of 1 dry standard cubic 

meters).

Performance test (Method 5 or 29 

at 40 CFR part 60, appendix A– 

3 or appendix A–8). 

Sulfur dioxide ................................ 1.2 parts per million dry volume ... 3-run average (1 hour minimum 

sample time per run).

Performance test (Method 6 or 6c 

at 40 CFR part 60, appendix A– 

4). 

* * * * * * * 

aAll emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the 

Total Mass Basis limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17. 

Subpart DDDD—[Amended] 

■ 27. Section 60.2505 is amended by: 

■ a. Revising paragraph (a). 

■ b. Revising paragraph (c). 

■ c. Revising paragraph (d). 

The revisions read as follows: 

§ 60.2505 Am I affected by this subpart? 

(a) If you are the Administrator of an 

air quality program in a state or United 

States protectorate with one or more 

existing CISWI units that meet the 

criteria in paragraphs (b) through (d) of 

this section, you must submit a state 

plan to U.S. Environmental Protection 

Agency (EPA) that implements the 

emission guidelines contained in this 

subpart. 

* * * * * 

(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 February 7, 2014 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 August 7, 2013. 

(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 

February 7, 2014, 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 August 7, 2013. 

■ 28. Section 60.2525 is amended by 

revising paragraph (b) to read as follows: 

§ 60.2525 What if my state plan is not 

approvable? 

* * * * * 

(b) If you do not submit an approvable 

state plan (or a negative declaration 

letter) to EPA that meets the 

requirements of this subpart and 

contains the emission limits in tables 6 

through 9 of this subpart for CISWI 

units that commenced construction on 

or before June 4, 2010, then EPA will 

develop a federal plan according to 

§ 60.27 to implement the emission 

guidelines contained in this subpart. 

Owners and operators of CISWI units 

not covered by an approved state plan 

must comply with the federal plan. The 

federal plan is an interim action and 

will be automatically withdrawn when 

your state plan is approved. 

* * * * * 

■ 29. Section 60.2535 is amended by: 

■ a. Revising paragraph (a) introductory 

text. 

■ b. Revising paragraph (b) introductory 

text. 

■ c. Revising paragraph (b)(1). 

The revisions read as follows: 

§ 60.2535 What compliance schedule must 

I include in my state plan? 

(a) For CISWI units in the incinerator 

subcategory that commenced 

construction on or before November 30, 

1999, your state plan must include 

compliance schedules that require 

CISWI units to achieve final compliance 

as expeditiously as practicable after 

approval of the state plan but not later 

than the earlier of the two dates 

specified in paragraphs (a)(1) and (2) of 

this section. 

* * * * * 

(b) For CISWI units in the incinerator 

subcategory that commenced 

construction after November 30, 1999, 

but on or before June 4, 2010, and for 

CISWI units in the small remote 

incinerator, energy recovery unit, and 

waste-burning kiln subcategories that 

commenced construction before June 4, 

2010, your state plan must include 

compliance schedules that require 

CISWI units to achieve final compliance 

as expeditiously as practicable after 

approval of the state plan but not later 

than the earlier of the two dates 

specified in paragraphs (b)(1) and (2) of 

this section. 

(1) February 7, 2018. 

* * * * * 

■ 30. Section 60.2545 is amended by 

revising paragraph (c) to read as follows: 

§ 60.2545 Does this subpart directly affect 

CISWI unit owners and operators in my 

state? 

* * * * * 

(c) If you do not submit an approvable 

plan to implement and enforce the 

guidelines contained in this subpart by 

February 7, 2014, for CISWI units that 

commenced construction on or before 

June 4, 2010, EPA will implement and 

enforce a federal plan, as provided in 

§ 60.2525, to ensure that each unit 

within your state that commenced 

construction on or before June 4, 2010, 

reaches compliance with all the 

provisions of this subpart by February 7, 

2018. 

■ 31. Section 60.2550 is amended by 

revising paragraph (a)(1) to read as 

follows: 

§ 60.2550 What CISWI units must I address 

in my state plan? 

(a) * * * 

(1) CISWI units in your state that 

commenced construction on or before 

June 4, 2010, or commenced 

modification or reconstruction after 

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June 4, 2010 but no later than August 7, 

2013. 

* * * * * 

■ 32. Section 60.2555 is amended by: 

■ a. Revising paragraph (c). 

■ b. Revising paragraph (e)(3). 

■ c. Adding paragraph (e)(4). 

■ d. Revising paragraph (f)(3). 

■ e. Adding paragraph (f)(4). 

■ f. Revising paragraph (n). 

■ g. Adding paragraph (o). 

The revisions and additions read as 

follows: 

§ 60.2555 What combustion units are 

exempt from my state plan? 

* * * * * 

(c) Municipal waste combustion units. 

Incineration units that are subject to 

subpart Ea of this part (Standards of 

Performance for Municipal Waste 

Combustors); subpart Eb of this part 

(Standards of Performance for Large 

Municipal Waste Combustors); subpart 

Cb of this part (Emission Guidelines and 

Compliance Time for Large Municipal 

Combustors); AAAA of this part 

(Standards of Performance for Small 

Municipal Waste Combustion Units); or 

subpart BBBB of this part (Emission 

Guidelines for Small Municipal Waste 

Combustion Units). 

* * * * * 

(e) * * * 

(3) You submit documentation to the 

Administrator notifying the Agency that 

the qualifying small power production 

facility is combusting homogenous 

waste. 

(4) You maintain the records specified 

in § 60.2740(v). 

(f) * * * 

(3) You submit documentation to the 

Administrator notifying the Agency that 

the qualifying cogeneration facility is 

combusting homogenous waste. 

(4) You maintain the records specified 

in § 60.2740(w). 

* * * * * 

(n) Sewage sludge incineration units. 

Incineration units combusting sewage 

sludge for the purpose of reducing the 

volume of the sewage sludge by 

removing combustible matter that are 

subject to subpart LLLL of this part 

(Standards of Performance for Sewage 

Sludge Incineration Units) or subpart 

MMMM of this part (Emission 

Guidelines for Sewage Sludge 

Incineration Units). 

(o) Other solid waste incineration 

units. Incineration units that are subject 

to 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). 

■ 33. Section 60.2675 is amended by: 

■ a. Revising paragraph (a)(2). 

■ b. Revising paragraph (e). 

■ c. Revising paragraph (f). 

■ d. Redesignating paragraph (g) as 

paragraph (h). 

■ e. Adding new paragraph (g). 

■ f. Adding paragraph (i). 

The revisions and addition read as 

follows: 

§ 60.2675 What operating limits must I 

meet and by when? 

(a) * * * 

(2) Minimum pressure drop across the 

wet particulate matter scrubber, which 

is calculated as the lowest 1-hour 

average pressure drop across the wet 

scrubber measured during the most 

recent performance test demonstrating 

compliance with the particulate matter 

emission limitations; or minimum 

amperage to the wet scrubber, which is 

calculated as the lowest 1-hour average 

amperage to the wet scrubber measured 

during the most recent performance test 

demonstrating compliance with the 

particulate matter emission limitations. 

* * * * * 

(e) If you use activated carbon sorbent 

injection to comply with the emission 

limitations, you must measure the 

sorbent flow rate during the 

performance testing. The operating limit 

for the carbon sorbent injection is 

calculated as the lowest 1-hour average 

sorbent flow rate measured during the 

most recent performance test 

demonstrating compliance with the 

mercury emission limitations. For 

energy recovery units, when your unit 

operates at lower loads, multiply your 

sorbent injection rate by the load 

fraction, as defined in this subpart, to 

determine the required injection rate 

(e.g., for 50 percent load, multiply the 

injection rate operating limit by 0.5). 

(f) If you use selective noncatalytic 

reduction to comply with the emission 

limitations, you must measure the 

charge rate, the secondary chamber 

temperature (if applicable to your CISWI 

unit), and the reagent flow rate during 

the nitrogen oxides performance testing. 

The operating limits for the selective 

noncatalytic reduction are calculated as 

the highest 1-hour average charge rate, 

lowest secondary chamber temperature, 

and lowest reagent flow rate measured 

during the most recent performance test 

demonstrating compliance with the 

nitrogen oxides emission limitations. 

(g) If you use a dry scrubber to comply 

with the emission limitations, you must 

measure the injection rate of each 

sorbent during the performance testing. 

The operating limit for the injection rate 

of each sorbent is calculated as the 

lowest 1-hour average injection rate of 

each sorbent measured during the most 

recent performance test demonstrating 

compliance with the hydrogen chloride 

emission limitations. For energy 

recovery units, when your unit operates 

at lower loads, multiply your sorbent 

injection rate by the load fraction, as 

defined in this subpart, to determine the 

required injection rate (e.g., for 50 

percent load, multiply the injection rate 

operating limit by 0.5). 

(h) If you do not use a wet scrubber, 

electrostatic precipitator, or fabric filter 

to comply with the emission limitations, 

and if you do not determine compliance 

with your particulate matter emission 

limitation with a particulate matter 

CEMS, you must maintain opacity to 

less than or equal to ten percent opacity 

(1-hour block average). 

(i) If you use a PM CPMS to 

demonstrate compliance, you must 

establish your PM CPMS operating limit 

and determine compliance with it 

according to paragraphs (i)(1) through 

(5) of this section. 

(1) During the initial performance test 

or any such subsequent performance 

test that demonstrates compliance with 

the PM limit, record all hourly average 

output values (milliamps) from the PM 

CPMS for the periods corresponding to 

the test runs (e.g., three 1-hour average 

PM CPMS output values for three 1- 

hour test runs). 

(i) Your PM CPMS must provide a 4– 

20 milliamp output and the 

establishment of its relationship to 

manual reference method measurements 

must be determined in units of 

milliamps. 

(ii) Your PM CPMS operating range 

must be capable of reading PM 

concentrations from zero to a level 

equivalent to at least two times your 

allowable emission limit. If your PM 

CPMS is an auto-ranging instrument 

capable of multiple scales, the primary 

range of the instrument must be capable 

of reading PM concentration from zero 

to a level equivalent to two times your 

allowable emission limit. 

(iii) During the initial performance 

test or any such subsequent 

performance test that demonstrates 

compliance with the PM limit, record 

and average all milliamp output values 

from the PM CPMS for the periods 

corresponding to the compliance test 

runs (e.g., average all your PM CPMS 

output values for three corresponding 2- 

hour Method 5I test runs). 

(2) If the average of your three PM 

performance test runs are below 75% of 

your PM emission limit, you must 

calculate an operating limit by 

establishing a relationship of PM CPMS 

signal to PM concentration using the PM 

CPMS instrument zero, the average PM 

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CPMS values corresponding to the three 

compliance test runs, and the average 

PM concentration from the Method 5 or 

performance test with the procedures in 

(i)(1)through (5) of this section. 

(i) Determine your instrument zero 

output with one of the following 

procedures: 

(A) Zero point data for in-situ 

instruments should be obtained by 

removing the instrument from the stack 

and monitoring ambient air on a test 

bench. 

(B) Zero point data for extractive 

instruments should be obtained by 

removing the extractive probe from the 

stack and drawing in clean ambient air. 

(C) The zero point can also can be 

established obtained by performing 

manual reference method measurements 

when the flue gas is free of PM 

emissions or contains very low PM 

concentrations (e.g., when your process 

is not operating, but the fans are 

operating or your source is combusting 

only natural gas) and plotting these with 

the compliance data to find the zero 

intercept. 

(D) If none of the steps in paragraphs 

(i)(2)(i) through (iv) of this section are 

possible, you must use a zero output 

value provided by the manufacturer. 

(ii) Determine your PM CPMS 

instrument average in milliamps, and 

the average of your corresponding three 

PM compliance test runs, using 

equation 5. 

Where: 

X1 = the PM CPMS data points for the three 

runs constituting the performance test, 

Y1 = the PM concentration value for the 

three runs constituting the performance 

test, and 

n = the number of data points. 

(iii) With your instrument zero 

expressed in milliamps, your three run 

average PM CPMS milliamp value, and 

your three run average PM 

concentration from your three 

compliance tests, determine a 

relationship of lb/Mmbtu per milliamp 

with equation 6. 

Where: 

R = the relative mg/dscm per milliamp for 

your PM CPMS, 

Y1 = the three run average mg/dscm PM 

concentration, 

X1 = the three run average milliamp output 

from you PM CPMS, and 

z = the milliamp equivalent of your 

instrument zero determined from (2)(i). 

(iv) Determine your source specific 

30-day rolling average operating limit 

using the mg/dscm per milliamp value 

from Equation 6 in equation 7, below. 

This sets your operating limit at the PM 

CPMS output value corresponding to 

75% of your emission limit. 

Where: 

Ol = the operating limit for your PM CPMS 

on a 30-day rolling average, in 

milliamps. 

L = your source emission limit expressed 

in lb/Mmbtu, 

z = your instrument zero in milliamps, 

determined from (2)(a), and 

R = the relative mg/dscm per milliamp for 

your PM CPMS, from Equation 3. 

(3) If the average of your three PM 

compliance test runs is at or above 75% 

of your PM emission limit you must 

determine your operating limit by 

averaging the PM CPMS milliamp 

output corresponding to your three PM 

performance test runs that demonstrate 

compliance with the emission limit 

using equation 8 and you must submit 

all compliance test and PM CPMS data 

according to the reporting requirements 

in paragraph (i)(5) of this section. 

Where: 

X1 = the PM CPMS data points for all runs 

i, 

n = the number of data points, and 

Oh = your site specific operating limit, in 

milliamps. 

(4) To determine continuous 

compliance, you must record the PM 

CPMS output data for all periods when 

the process is operating and the PM 

CPMS is not out-of-control. You must 

demonstrate continuous compliance by 

using all quality-assured hourly average 

data collected by the PM CPMS for all 

operating hours to calculate the 

arithmetic average operating parameter 

in units of the operating limit (e.g., 

milliamps, PM concentration, raw data 

signal) on a 30-day rolling average basis. 

(5) For PM performance test reports 

used to set a PM CPMS operating limit, 

the electronic submission of the test 

report must also include the make and 

model of the PM CPMS instrument, 

serial number of the instrument, 

analytical principle of the instrument 

(e.g., beta attenuation), span of the 

instruments primary analytical range, 

milliamp value equivalent to the 

instrument zero output, technique by 

which this zero value was determined, 

and the average milliamp signals 

corresponding to each PM compliance 

test run. 

■ 34. Section 60.2680 is amended by 

revising the section heading and 

paragraph (a) introductory text to read 

as follows: 

§ 60.2680 What if I do not use a wet 

scrubber, fabric filter, activated carbon 

injection, selective noncatalytic reduction, 

an electrostatic precipitator, or a dry 

scrubber to comply with the emission 

limitations? 

(a) If you use an air pollution control 

device other than a wet scrubber, 

activated carbon injection, selective 

noncatalytic reduction, fabric filter, an 

electrostatic precipitator, or a dry 

scrubber or limit emissions in some 

other manner, including mass balances, 

to comply with the emission limitations 

under § 60.2670, you must petition the 

EPA Administrator for specific 

operating limits to be established during 

the initial performance test and 

continuously monitored thereafter. You 

must submit the petition at least sixty 

days before the performance test is 

scheduled to begin. Your petition must 

include the five items listed in 

paragraphs (a)(1) through (5) of this 

section. 

* * * * * 

■ 35. Section 60.2685 is revised to read 

as follows: 

§ 60.2685 Affirmative Defense for Violation 

of Emission Standards During Malfunction. 

In response to an action to enforce the 

standards set forth in paragraph 

§ 60.2670 you may assert an affirmative 

defense to a claim for civil penalties for 

violations of such standards that are 


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caused by malfunction, as defined at 40 

CFR 60.2. Appropriate penalties may be 

assessed 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) Assertion of affirmative defense. 

To establish the affirmative defense in 

any action to enforce such a standard, 

you must timely meet the reporting 

requirements in paragraph (b) of this 

section, and must prove by a 

preponderance of evidence that: 

(1) The violation: 

(i) Was caused by a sudden, 

infrequent, and unavoidable failure of 

air pollution control equipment, process 

equipment, or a process to operate in a 

normal or usual manner; and 

(ii) Could not have been prevented 

through careful planning, proper design 

or better operation and maintenance 

practices; and 

(iii) Did not stem from any activity or 

event that could have been foreseen and 

avoided, or planned for; and 

(iv) Was not part of a recurring pattern 

indicative of inadequate design, 

operation, or maintenance; and 

(2) Repairs were made as 

expeditiously as possible when a 

violation occurred. Off-shift and 

overtime labor were used, to the extent 

practicable to make these repairs; and 

(3) The frequency, amount and 

duration of the violation (including any 

bypass) were minimized to the 

maximum extent practicable; and 

(4) If the violation resulted from a 

bypass of control equipment or a 

process, then the bypass was 

unavoidable to prevent loss of life, 

personal injury, or severe property 

damage; and 

(5) All possible steps were taken to 

minimize the impact of the violation on 

ambient air quality, the environment, 

and human health; and 

(6) All emissions monitoring and 

control systems were kept in operation 

if at all possible, consistent with safety 

and good air pollution control practices; 

and 

(7) All of the actions in response to 

the violation were documented by 

properly signed, contemporaneous 

operating logs; and 

(8) At all times, the affected CISWI 

unit was operated in a manner 

consistent with good practices for 

minimizing emissions; and 

(9) A written root cause analysis has 

been prepared, the purpose of which is 

to determine, correct, and eliminate the 

primary causes of the malfunction and 

the violation resulting from the 

malfunction event at issue. The analysis 

shall also specify, using best monitoring 

methods and engineering judgment, the 

amount of any emissions that were the 

result of the malfunction. 

(b) Report. The owner or operator 

seeking to assert an affirmative defense 

shall submit a written report to the 

Administrator with all necessary 

supporting documentation, that it has 

met the requirements set forth in 

paragraph (a) of this section. This 

affirmative defense report shall be 

included in the first periodic 

compliance, deviation report or excess 

emission report otherwise required after 

the initial occurrence of the violation of 

the relevant standard (which may be the 

end of any applicable averaging period). 

If such compliance, deviation report or 

excess emission report is due less than 

45 days after the initial occurrence of 

the violation, the affirmative defense 

report may be included in the second 

compliance, deviation report or excess 

emission report due after the initial 

occurrence of the violation of the 

relevant standard. 

■ 36. Section 60.2690 is amended by: 

■ a. Revising paragraph (g) introductory 

text. 

■ b. Redesignating paragraphs (g)(2) and 

(3) as paragraphs (g)(3) and (4), 

respectively. 

■ c. Revising newly designated 

paragraphs (g)(3) and (4). 

■ d. Adding new paragraph (g)(2). 

■ e. Adding paragraph (j). 

The revisions and additions read as 

follows: 

§ 60.2690 How do I conduct the initial and 

annual performance test? 

* * * * * 

(g) You must determine dioxins/ 

furans toxic equivalency by following 

the procedures in paragraphs (g)(1) 

through (4) of this section. 

* * * * * 

(2) Quantify isomers meeting 

identification criteria 2, 3, 4, and 5 in 

Section 5.3.2.5 of Method 23, regardless 

of whether the isomers meet 

identification criteria 1 and 7. You must 

quantify the isomers per Section 9.0 of 

Method 23. (Note: You may reanalyze 

the sample aliquot or split to reduce the 

number of isomers not meeting 

identification criteria 1 or 7 of Section 

5.3.2.5.) 

(3) For each dioxin/furan (tetrathrough octa-chlorinated) isomer 

measured in accordance with paragraph 

(g)(1) and (2) of this section, multiply 

the isomer concentration by its 

corresponding toxic equivalency factor 

specified in table 4 of this subpart. 

(4) Sum the products calculated in 

accordance with paragraph (g)(3) of this 

section to obtain the total concentration 

of dioxins/furans emitted in terms of 

toxic equivalency. 

* * * * * 

(j) You must determine dioxins/furans 

total mass basis by following the 

procedures in paragraphs (j)(1) through 

(3) of this section. 

(1) Measure the concentration of each 

dioxin/furan tetra- through octachlorinated isomer emitted using EPA 

Method 23 at 40 CFR part 60, appendix 

A–7. 

(2) Quantify isomers meeting 

identification criteria 2, 3, 4, and 5 in 

Section 5.3.2.5 of Method 23, regardless 

of whether the isomers meet 

identification criteria 1 and 7. You must 

quantify the isomers per Section 9.0 of 

Method 23. (Note: You may reanalyze 

the sample aliquot or split to reduce the 

number of isomers not meeting 

identification criteria 1 or 7 of Section 

5.3.2.5.) 

(3) Sum the quantities measured in 

accordance with paragraphs (j)(1) and 

(2) of this section to obtain the total 

concentration of dioxins/furans emitted 

in terms of total mass basis. 

■ 37.Section 60.2710 is revised to read 

as follows: 

■ a. Revising paragraph (a)(6). 

■ b. Revising paragraphs (b) through (d). 

■ c. Revising paragraph (f). 

■ d. Revising paragraphs (g) 

introductory text and (g)(1). 

■ e. Revising paragraphs (h) and (i). 

■ f. Revising paragraphs (j) introductory 

text, (j)(1), and (j)(3). 

■ j. Revising paragraph (l) introductory 

text. 

■ k. Revising paragraph (m)(2). 

■ l. Revising paragraph (n)(4). 

■ m. Revising paragraph (o). 

■ n. Revising paragraph (r)(1). 

■ o. Revising paragraphs (s) 

introductory text, (s)(1) introductory 

text, and (s)(2). 

■ p. Revising paragraph (t) introductory 

text, (t)(1) introductory text, and (t)(2). 

■ q. Revising paragraphs (u)(1) and 

(u)(2). 

■ r. Revising paragraphs (w) 

introductory paragraph, (w)(1), (w)(2), 

and (w)(3). 

■ s. Adding paragraph (x). 

The revisions and addition read as 

follows: 

§ 60.2710 How do I demonstrate 

continuous compliance with the emission 

limitations and the operating limits? 

(a) * * * 

(6) All monitoring systems necessary 

for compliance with any newly 

applicable monitoring requirements 

which apply as a result of the cessation 

or commencement or recommencement 

of combusting solid waste must be 

installed and operational as of the 

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effective date of the waste-to-fuel, or 

fuel-to-waste switch. All calibration and 

drift checks must be performed as of the 

effective date of the waste-to-fuel, or 

fuel-to-waste switch. Relative accuracy 

tests must be performed as of the 

performance test deadline for PM CEMS 

(if PM CEMS are elected to demonstrate 

continuous compliance with the 

particulate matter emission limits). 

Relative accuracy testing for other 

CEMS need not be repeated if that 

testing was previously performed 

consistent with section 112 monitoring 

requirements or monitoring 

requirements under this subpart. 

(b) You must conduct an annual 

performance test for the pollutants 

listed in table 2 of this subpart or tables 

6 through 9 of this subpart and opacity 

for each CISWI unit as required under 

§ 60.2690. The annual performance test 

must be conducted using the test 

methods listed in table 2 of this subpart 

or tables 6 through 9 of this subpart and 

the procedures in § 60.2690. Opacity 

must be measured using EPA Reference 

Method 9 at 40 CFR part 60. Annual 

performance tests are not required if you 

use CEMS or continuous opacity 

monitoring systems to determine 

compliance. 

(c) You must continuously monitor 

the operating parameters specified in 

§ 60.2675 or established under § 60.2680 

and as specified in § 60.2735. Operation 

above the established maximum or 

below the established minimum 

operating limits constitutes a deviation 

from the established operating limits. 

Three-hour block average values are 

used to determine compliance (except 

for baghouse leak detection system 

alarms) unless a different averaging 

period is established under § 60.2680 or, 

for energy recovery units, where the 

averaging time for each operating 

parameter is a 30-day rolling, calculated 

each hour as the average of the previous 

720 operating hours. Operation above 

the established maximum, below the 

established minimum, or outside the 

allowable range of the operating limits 

specified in paragraph (a) of this section 

constitutes a deviation from your 

operating limits established under this 

subpart, except during performance 

tests conducted to determine 

compliance with the emission and 

operating limits or to establish new 

operating limits. Operating limits are 

confirmed or reestablished during 

performance tests. 

(d) You must burn only the same 

types of waste and fuels used to 

establish subcategory applicability (for 

ERUs) and operating limits during the 

performance test. 

* * * * * 

(f) For energy recovery units, you 

must conduct an annual performance 

test for opacity using EPA Reference 

Method 9 at 40 CFR part 60 (except 

where particulate matter continuous 

monitoring system or continuous 

parameter monitoring systems are used) 

and the pollutants listed in table 7 of 

this subpart. 

(g) For facilities using a CEMS to 

demonstrate compliance with the 

carbon monoxide emission limit, 

compliance with the carbon monoxide 

emission limit may be demonstrated by 

using the CEMS according to the 

following requirements: 

(1) You must measure emissions 

according to § 60.13 to calculate 1-hour 

arithmetic averages, corrected to 7 

percent oxygen. CEMS data during 

startup and shutdown, as defined in this 

subpart, are not corrected to 7 percent 

oxygen, and are measured at stack 

oxygen content. You must demonstrate 

initial compliance with the carbon 

monoxide emissions limit using a 30- 

day rolling average of the 1-hour 

arithmetic average emission 

concentrations, including CEMS data 

during startup and shutdown as defined 

in this subpart, calculated using 

Equation 19–19 in section 12.4.1 of EPA 

Reference Method 19 at 40 CFR part 60, 

appendix A–7. 

* * * * * 

(h) Coal and liquid/gas energy 

recovery units with annual average heat 

input rates greater than 250 MMBtu/hr 

may elect to demonstrate continuous 

compliance with the particulate matter 

emissions limit using a particulate 

matter CEMS according to the 

procedures in § 60.2730(n) instead of 

the continuous parameter monitoring 

system specified in § 60.2710(i). Coal 

and liquid/gas energy recovery units 

with annual average heat input rates 

less than 250 MMBtu/hr, incinerators, 

and small remote incinerators may also 

elect to demonstrate compliance using a 

particulate matter CEMS according to 

the procedures in § 60.2730(n) instead 

of particulate matter testing with EPA 

Method 5 at 40 CFR part 60, appendix 

A–3 and, if applicable, the continuous 

opacity monitoring requirements in 

paragraph (i) of this section. 

(i) For energy recovery units with 

annual average heat input rates greater 

than or equal to 10 MMBTU/hour but 

less than 250 MMBtu/hr you must 

install, operate, certify and maintain a 

continuous opacity monitoring system 

(COMS) according to the procedures in 

§ 60.2730. 

(j) For waste-burning kilns, you must 

conduct an annual performance test for 

the pollutants (except mercury and 

particulate matter, and hydrogen 

chloride if no acid gas wet scrubber is 

used) listed in table 8 of this subpart. If 

your waste-burning kiln is not equipped 

with a wet scrubber or dry scrubber, you 

must determine compliance with the 

hydrogen chloride emission limit using 

a CEMS as specified in § 60.2730. You 

must determine compliance with 

particulate matter using CPMS. You 

must determine compliance with the 

mercury emissions limit using a 

mercury CEMS according to the 

following requirements: 

(1) Operate a CEMS in accordance 

with performance specification 12A at 

40 CFR part 60, appendix B or a sorbent 

trap based integrated monitor in 

accordance with performance 

specification 12B at 40 CFR part 60, 

appendix B. The duration of the 

performance test must be a calendar 

month. For each calendar month in 

which the waste-burning kiln operates, 

hourly mercury concentration data and 

stack gas volumetric flow rate data must 

be obtained. You must demonstrate 

compliance with the mercury emissions 

limit using a 30-day rolling average of 

these 1-hour mercury concentrations, 

including CEMS data during startup and 

shutdown as defined in this subpart, 

calculated using Equation 19–19 in 

section 12.4.1 of EPA Reference Method 

19 at 40 CFR part 60, appendix A–7 of 

this part. CEMS data during startup and 

shutdown, as defined in this subpart, 

are not corrected to 7 percent oxygen, 

and are measured at stack oxygen 

content. 

* * * * * 

(3) The owner or operator of a wasteburning 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. 

* * * * * 

(l) For each CMS required in this 

section, you must develop and submit to 

the EPA Administrator for approval a 

site-specific monitoring plan according 

to the requirements of this paragraph (l) 

that addresses paragraphs (l)(1)(i) 

through (vi) of this section. 

* * * * * 

(m) * * * 

(2) Use a flow sensor with a 

measurement sensitivity at full scale of 

no greater than 2 percent. 

* * * * * 

(n) * * * 

(4) Perform checks at the frequency 

outlined in your site-specific monitoring 

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plan to ensure pressure measurements 

are not obstructed (e.g., check for 

pressure tap pluggage daily). 

* * * * * 

(o) If you have an operating limit that 

requires a pH monitoring system, you 

must meet the requirements in 

paragraphs (l) and (o)(1) through (4) of 

this section. 

(1) Install the pH sensor in a position 

that provides a representative 

measurement of scrubber effluent pH. 

(2) Ensure the sample is properly 

mixed and representative of the fluid to 

be measured. 

(3) Conduct a performance evaluation 

of the pH monitoring system in 

accordance with your monitoring plan 

at least once each process operating day. 

(4) Conduct a performance evaluation 

(including a two-point calibration with 

one of the two buffer solutions having 

a pH within 1 of the pH of the operating 

limit) of the pH monitoring system in 

accordance with your monitoring plan 

at the time of each performance test but 

no less frequently than quarterly. 

* * * * * 

(r) * * * 

(1) Install a bag leak detection 

sensor(s) in a position(s) that will be 

representative of the relative or absolute 

particulate matter loadings for each 

exhaust stack, roof vent, or 

compartment (e.g., for a positive 

pressure fabric filter) of the fabric filter. 

* * * * * 

(s) For facilities using a CEMS to 

demonstrate compliance with the sulfur 

dioxide emission limit, compliance with 

the sulfur dioxide emission limit may be 

demonstrated by using the CEMS 

specified in § 60.2730 to measure sulfur 

dioxide. CEMS data during startup and 

shutdown, as defined in this subpart, 

are not corrected to 7 percent oxygen, 

and are measured at stack oxygen 

content. You must calculate a 30-day 

rolling average of the 1-hour arithmetic 

average emission concentrations, 

including CEMS data during startup and 

shutdown as defined in this subpart, 

using Equation 19–19 in section 12.4.1 

of EPA Reference Method 19 at 40 CFR 

part 60, appendix A–7. The sulfur 

dioxide CEMS must be operated 

according to performance specification 

2 in appendix B of this part and must 

follow the procedures and methods 

specified in this paragraph(s). For 

sources that have actual inlet emissions 

less than 100 parts per million dry 

volume, the relative accuracy criterion 

for inlet sulfur dioxide CEMS should be 

no greater than 20 percent of the mean 

value of the reference method test data 

in terms of the units of the emission 

standard, or 5 parts per million dry 

volume absolute value of the mean 

difference between the reference 

method and the CEMS, whichever is 

greater. 

(1) During each relative accuracy test 

run of the CEMS required by 

performance specification 2 in appendix 

B of this part, collect sulfur dioxide and 

oxygen (or carbon dioxide) data 

concurrently (or within a 30- to 60- 

minute period) with both the CEMS and 

the test methods specified in paragraphs 

(s)(1)(i) and (ii) of this section. 

* * * * * 

(2) The span value of the CEMS at the 

inlet to the sulfur dioxide control device 

must be 125 percent of the maximum 

estimated hourly potential sulfur 

dioxide emissions of the unit subject to 

this rule. The span value of the CEMS 

at the outlet of the sulfur dioxide 

control device must be 50 percent of the 

maximum estimated hourly potential 

sulfur dioxide emissions of the unit 

subject to this rule. 

* * * * * 

(t) For facilities using a CEMS to 

demonstrate continuous compliance 

with the nitrogen oxides emission limit, 

compliance with the nitrogen oxides 

emission limit may be demonstrated by 

using the CEMS specified in § 60.2730 

to measure nitrogen oxides. CEMS data 

during startup and shutdown, as 

defined in this subpart, are not 

corrected to 7 percent oxygen, and are 

measured at stack oxygen content. You 

must calculate a 30-day rolling average 

of the 1-hour arithmetic average 

emission concentration using Equation 

19–19 in section 12.4.1 of EPA 

Reference Method 19 at 40 CFR part 60, 

appendix A–7. The nitrogen oxides 

CEMS must be operated according to 

performance specification 2 in appendix 

B of this part and must follow the 

procedures and methods specified in 

paragraphs (t)(1) through (t)(5) of this 

section. 

(1) During each relative accuracy test 

run of the CEMS required by 

performance specification 2 of appendix 

B of this part, collect nitrogen oxides 

and oxygen (or carbon dioxide) data 

concurrently (or within a 30- to 60- 

minute period) with both the CEMS and 

the test methods specified in paragraphs 

(t)(1)(i) and (ii) of this section. 

(i) For nitrogen oxides, EPA Reference 

Method 7 or 7E at 40 CFR part 60, 

appendix A–4 must be used. 

(ii) For oxygen (or carbon dioxide), 

EPA Reference Method 3A or 3B, or as 

an alternative ANSI/ASME PTC 19.10– 

1981 (incorporated by reference, see 

§ 60.17), as applicable, must be used. 

(2) The span value of the CEMS must 

be 125 percent of the maximum 

estimated hourly potential nitrogen 

oxide emissions of unit. 

* * * * * 

(u) * * * 

(1) Demonstrate compliance with the 

appropriate emission limit(s) using a 30- 

day rolling average of 1-hour arithmetic 

average emission concentrations, 

including CEMS data during startup and 

shutdown, as defined in this subpart, 

calculated using Equation 19–19 in 

section 12.4.1 of EPA Reference Method 

19 at 40 CFR part 60, appendix A–7. 

CEMS data during startup and 

shutdown, as defined in this subpart, 

are not corrected to 7 percent oxygen, 

and are measured at stack oxygen 

content. 

(2) Operate all CEMS in accordance 

with the applicable procedures under 

appendices B and F of this part. 

* * * * * 

(w) For energy recovery units with a 

design heat input capacity of 100 

MMBtu per hour or greater that do not 

use a carbon monoxide CEMS, you must 

install, operate, and maintain an oxygen 

analyzer system as defined in § 60.2875 

according to the procedures in 

paragraphs (w)(1) through (4) of this 

section. 

(1) The oxygen analyzer system must 

be installed by the initial performance 

test date specified in § 60.2675. 

(2) You must operate the oxygen trim 

system within compliance with 

paragraph (w)(3) of this section at all 

times. 

(3) You must maintain the oxygen 

level such that the 30-day rolling 

average that is established as the 

operating limit for oxygen is not below 

the lowest hourly average oxygen 

concentration measured during the most 

recent CO performance test. 

* * * * * 

(x) For energy recovery units with 

annual average heat input rates greater 

than or equal to 250 MMBtu/hour and 

waste-burning kilns, you must install, 

calibrate, maintain, and operate a PM 

CPMS and record the output of the 

system as specified in paragraphs (x)(1) 

through (8) of this section. For other 

energy recovery units, you may elect to 

use PM CPMS operated in accordance 

with this section. PM CPMS are suitable 

in lieu of using other CMS for 

monitoring PM compliance (e.g., bag 

leak detectors, ESP secondary power, 

PM scrubber pressure). 

(1) Install, calibrate, operate, and 

maintain your PM CPMS according to 

the procedures in your approved sitespecific monitoring plan developed in 

accordance with § 60.2710(l) and 

(x)(1)(i) through (iii) of this section. 

(i) The operating principle of the PM 

CPMS must be based on in-stack or 

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extractive light scatter, light 

scintillation, beta attenuation, or mass 

accumulation of the exhaust gas or 

representative sample. The reportable 

measurement output from the PM CPMS 

must be expressed as milliamps. 

(ii) The PM CPMS must have a cycle 

time (i.e., period required to complete 

sampling, measurement, and reporting 

for each measurement) no longer than 

60 minutes. 

(iii) The PM CPMS must be capable of 

detecting and responding to particulate 

matter concentrations of no greater than 

0.5 mg/actual cubic meter. 

(2) During the initial performance test 

or any such subsequent performance 

test that demonstrates compliance with 

the PM limit, you must adjust the sitespecific operating limit in accordance 

with the results of the performance test 

according to the procedures specified in 

§ 60.2675. 

(3) Collect PM CPMS hourly average 

output data for all energy recovery unit 

or waste-burning kiln operating hours. 

Express the PM CPMS output as 

milliamps. 

(4) Calculate the arithmetic 30-day 

rolling average of all of the hourly 

average PM CPMS output collected 

during all energy recovery unit or wasteburning kiln operating hours data 

(milliamps). 

(5) You must collect data using the 

PM CPMS at all times the energy 

recovery unit or waste-burning kiln is 

operating and at the intervals specified 

in paragraph (x)(1)(ii) of this section, 

except for periods of monitoring system 

malfunctions, repairs associated with 

monitoring system malfunctions, 

required monitoring system quality 

assurance or quality control activities 

(including, as applicable, calibration 

checks and required zero and span 

adjustments), and any scheduled 

maintenance as defined in your sitespecific monitoring plan. 

(6) You must use all the data collected 

during all energy recovery unit or wasteburning kiln operating hours in 

assessing the compliance with your 

operating limit except: 

(i) Any data collected during 

monitoring system malfunctions, repairs 

associated with monitoring system 

malfunctions, or required monitoring 

system quality assurance or quality 

control activities conducted during 

monitoring system malfunctions are not 

used in calculations (report any such 

periods in your annual deviation 

report); 

(ii) Any data collected during periods 

when the monitoring system is out of 

control as specified in your site-specific 

monitoring plan, repairs associated with 

periods when the monitoring system is 

out of control, or required monitoring 

system quality assurance or quality 

control activities conducted during outof-control periods are not used in 

calculations (report emissions or 

operating levels and report any such 

periods in your annual deviation 

report); 

(iii) Any PM CPMS data recorded 

during periods of CEMS data during 

startup and shutdown, as defined in this 

subpart. 

(7) You must record and make 

available upon request results of PM 

CPMS system performance audits, as 

well as the dates and duration of 

periods from when the PM CPMS is out 

of control until completion of the 

corrective actions necessary to return 

the PM CPMS to operation consistent 

with your site-specific monitoring plan. 

(8) For any deviation of the 30-day 

rolling average PM CPMS average value 

from the established operating 

parameter limit, you must: 

(i) Within 48 hours of the deviation, 

visually inspect the air pollution control 

device; 

(ii) If inspection of the air pollution 

control device identifies the cause of the 

deviation, take corrective action as soon 

as possible and return the PM CPMS 

measurement to within the established 

value; and 

(iii) Within 30 days of the deviation 

or at the time of the annual compliance 

test, whichever comes first, conduct a 

PM emissions compliance test to 

determine compliance with the PM 

emissions limit and to verify. Within 45 

days of the deviation, you must reestablish the CPMS operating limit. You 

are not required to conduct additional 

testing for any deviations that occur 

between the time of the original 

deviation and the PM emissions 

compliance test required under this 

paragraph. 

(iv) PM CPMS deviations leading to 

more than four required performance 

tests in a 12-month process operating 

period (rolling monthly) constitute a 

violation of this subpart. 

■ 38. Section 60.2720 is amended by 

revising paragraph (a)(3)(ii) to read as 

follows: 

§ 60.2720 May I conduct performance 

testing less often? 

(a) * * * 

(3) * * * 

(ii) For fugitive emissions, visible 

emissions (of combustion ash from the 

ash conveying system) for 2 percent of 

the time during each of the three 1-hour 

observation periods. 

* * * * * 

■ 39. Section 60.2730 is amended by: 

■ a. Revising paragraph (c). 

■ b. Revising paragraph (e) introductory 

text. 

■ c. Revising paragraphs (f) through (j). 

■ d. Revising paragraph (l)(1) and (2). 

■ e. Revising paragraph (m) 

introductory text. 

■ f. Revising paragraphs (n) 

introductory text, (n)(6), (n)(7), (n)(9), 

(n)(10), (n)(11), and paragraph (n)(12) 

introductory text. 

■ g. Removing paragraph (n)(14). 

■ h. Revising paragraphs (o)(1), (o)(2), 

and (o)(9). 

■ i. Adding paragraphs (r) and (s). 

The revisions and additions read as 

follows: 

§ 60.2730 What monitoring equipment 

must I install and what parameters must I 

monitor? 

* * * * * 

(c) If you are using something other 

than a wet scrubber, activated carbon, 

selective non-catalytic reduction, an 

electrostatic precipitator, or a dry 

scrubber to comply with the emission 

limitations under § 60.2670, you must 

install, calibrate (to the manufacturers’ 

specifications), maintain, and operate 

the equipment necessary to monitor 

compliance with the site-specific 

operating limits established using the 

procedures in § 60.2680. 

* * * * * 

(e) If you use selective noncatalytic 

reduction to comply with the emission 

limitations, you must complete the 

following: 

* * * * * 

(f) If you use an electrostatic 

precipitator to comply with the 

emission limits of this subpart, you 

must monitor the secondary power to 

the electrostatic precipitator collection 

plates and maintain the 3-hour block 

averages at or above the operating limits 

established during the mercury or 

particulate matter performance test. 

(g) For waste-burning kilns not 

equipped with a wet scrubber or dry 

scrubber, in place of hydrogen chloride 

testing with EPA Method 321 at 40 CFR 

part 63, appendix A, an owner or 

operator must install, calibrate, 

maintain, and operate a CEMS for 

monitoring hydrogen chloride emissions 

discharged to the atmosphere and 

record the output of the system. To 

demonstrate continuous compliance 

with the hydrogen chloride emissions 

limit for units other than waste-burning 

kilns not equipped with a wet scrubber 

or dry scrubber, a facility may substitute 

use of a hydrogen chloride CEMS for 

conducting the hydrogen chloride 

annual performance test, monitoring the 

minimum hydrogen chloride sorbent 

flow rate, monitoring the minimum 

scrubber liquor pH. 

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(h) To demonstrate continuous 

compliance with the particulate matter 

emissions limit, a facility may substitute 

use of a particulate matter CEMS for 

conducting the particulate matter 

annual performance test and other CMS 

monitoring for PM compliance (e.g., bag 

leak detectors, ESP secondary power, 

PM scrubber pressure). 

(i) To demonstrate continuous 

compliance with the dioxin/furan 

emissions limit, a facility may substitute 

use of a continuous automated sampling 

system for the dioxin/furan annual 

performance test. You must record the 

output of the system and analyze the 

sample according to EPA Method 23 at 

40 CFR part 60, appendix A–7. This 

option to use a continuous automated 

sampling system takes effect on the date 

a final performance specification 

applicable to dioxin/furan from 

continuous monitors is published in the 

Federal Register. The owner or operator 

who elects to continuously sample 

dioxin/furan emissions instead of 

sampling and testing using EPA Method 

23 at 40 CFR part 60, appendix A–7 

must install, calibrate, maintain and 

operate a continuous automated 

sampling system and must comply with 

the requirements specified in 

§ 60.58b(p) and (q). A facility may 

substitute continuous dioxin/furan 

monitoring for the minimum sorbent 

flow rate, if activated carbon sorbent 

injection is used solely for compliance 

with the dioxin/furan emission limit. 

(j) To demonstrate continuous 

compliance with the mercury emissions 

limit, a facility may substitute use of a 

continuous automated sampling system 

for the mercury annual performance 

test. You must record the output of the 

system and analyze the sample at set 

intervals using any suitable 

determinative technique that can meet 

performance specification 12B criteria. 

This option to use a continuous 

automated sampling system takes effect 

on the date a final performance 

specification applicable to mercury from 

monitors is published in the Federal 

Register. The owner or operator who 

elects to continuously sample mercury 

emissions instead of sampling and 

testing using EPA Method 29 or 30B at 

40 CFR part 60, appendix A–8, ASTM 

D6784–02 (Reapproved 2008) 

(incorporated by reference, see § 60.17), 

or an approved alternative method for 

measuring mercury emissions, must 

install, calibrate, maintain and operate a 

continuous automated sampling system 

and must comply with the requirements 

specified in § 60.58b(p) and (q). A 

facility may substitute continuous 

mercury monitoring for the minimum 

sorbent flow rate, if activated carbon 

sorbent injection is used solely for 

compliance with the mercury emission 

limit. 

(k) To demonstrate continuous 

compliance with the nitrogen oxides 

emissions limit, a facility may substitute 

use of a CEMS for the nitrogen oxides 

annual performance test to demonstrate 

compliance with the nitrogen oxides 

emissions limits and monitoring the 

charge rate, secondary chamber 

temperature and reagent flow for 

selective noncatalytic reduction, if 

applicable. 

(1) Install, calibrate, maintain and 

operate a CEMS for measuring nitrogen 

oxides emissions discharged to the 

atmosphere and record the output of the 

system. The requirements under 

performance specification 2 of appendix 

B of this part, the quality assurance 

procedure 1 of appendix F of this part 

and the procedures under § 60.13 must 

be followed for installation, evaluation 

and operation of the CEMS. 

(2) Following the date that the initial 

performance test for nitrogen oxides is 

completed or is required to be 

completed under § 60.2690, compliance 

with the emission limit for nitrogen 

oxides required under § 60.52b(d) must 

be determined based on the 30-day 

rolling average of the hourly emission 

concentrations using CEMS outlet data. 

The 1-hour arithmetic averages must be 

expressed in parts per million by 

volume corrected to 7 percent oxygen 

(dry basis) and used to calculate the 30- 

day rolling average concentrations. 

CEMS data during startup and 

shutdown, as defined in this subpart, 

are not corrected to 7 percent oxygen, 

and are measured at stack oxygen 

content. The 1-hour arithmetic averages 

must be calculated using the data points 

required under § 60.13(e)(2). 

(l) * * * 

(1) Install, calibrate, maintain and 

operate a CEMS for measuring sulfur 

dioxide emissions discharged to the 

atmosphere and record the output of the 

system. The requirements under 

performance specification 2 of appendix 

B of this part, the quality assurance 

requirements of procedure 1 of 

appendix F of this part and the 

procedures under § 60.13 must be 

followed for installation, evaluation and 

operation of the CEMS. 

(2) Following the date that the initial 

performance test for sulfur dioxide is 

completed or is required to be 

completed under § 60.2690, compliance 

with the sulfur dioxide emission limit 

may be determined based on the 30-day 

rolling average of the hourly arithmetic 

average emission concentrations using 

CEMS outlet data. The 1-hour arithmetic 

averages must be expressed in parts per 

million corrected to 7 percent oxygen 

(dry basis) and used to calculate the 30- 

day rolling average emission 

concentrations. CEMS data during 

startup and shutdown, as defined in this 

subpart, are not corrected to 7 percent 

oxygen, and are measured at stack 

oxygen content. The 1-hour arithmetic 

averages must be calculated using the 

data points required under § 60.13(e)(2). 

(m) For energy recovery units that do 

not use a wet scrubber, fabric filter with 

bag leak detection system, or particulate 

matter CEMS, you must install, operate, 

certify and maintain a continuous 

opacity monitoring system according to 

the procedures in paragraphs (m)(1) 

through (5) of this section by the 

compliance date specified in § 60.2670. 

Energy recovery units that use a 

particulate matter CEMS to demonstrate 

initial and continuing compliance 

according to the procedures in 

§ 60.2730(n) are not required to install a 

continuous opacity monitoring system 

and must perform the annual 

performance tests for opacity consistent 

with § 60.2710(f). 

* * * * * 

(n) For coal and liquid/gas energy 

recovery units, incinerators, and small 

remote incinerators, an owner or 

operator may elect to install, calibrate, 

maintain and operate a CEMS for 

monitoring particulate matter emissions 

discharged to the atmosphere and 

record the output of the system. The 

owner or operator of an affected facility 

who continuously monitors particulate 

matter emissions instead of conducting 

performance testing using EPA Method 

5 at 40 CFR part 60, appendix A–3 or, 

as applicable, monitor with a particulate 

matter CPMS according to paragraph (r) 

of this section, must install, calibrate, 

maintain and operate a CEMS and must 

comply with the requirements specified 

in paragraphs (n)(1) through (13) of this 

section. 

* * * * * 

(6) The owner or operator of an 

affected facility must conduct an initial 

performance test for particulate matter 

emissions as required under § 60.2690. 

Compliance with the particulate matter 

emission limit, if PM CEMS are elected 

for demonstrating compliance, must be 

determined by using the CEMS 

specified in paragraph (n) of this section 

to measure particulate matter. You must 

calculate a 30-day rolling average of 1- 

hour arithmetic average emission 

concentrations, including CEMS data 

during startup and shutdown, as 

defined in this subpart, using Equation 

19–19 in section 12.4.1 of EPA 

Reference Method 19 at 40 CFR part 60, 

appendix A–7 of this part. 

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(7) Compliance with the particulate 

matter emission limit must be 

determined based on the 30-day rolling 

average calculated using Equation 19–19 

in section 12.4.1 of EPA Reference 

Method 19 at 40 CFR part 60, Appendix 

A–7 of the part from the 1-hour 

arithmetic average of the CEMS outlet 

data. 

* * * * * 

(9) The 1-hour arithmetic averages 

required under paragraph (n)(7) of this 

section must be expressed in milligrams 

per dry standard cubic meter corrected 

to 7 percent oxygen (or carbon 

dioxide)(dry basis) and must be used to 

calculate the 30-day rolling average 

emission concentrations. CEMS data 

during startup and shutdown, as 

defined in this subpart, are not 

corrected to 7 percent oxygen, and are 

measured at stack oxygen content. The 

1-hour arithmetic averages must be 

calculated using the data points 

required under § 60.13(e)(2). 

(10) All valid CEMS data must be 

used in calculating average emission 

concentrations even if the minimum 

CEMS data requirements of paragraph 

(n)(8) of this section are not met. 

(11) The CEMS must be operated 

according to performance specification 

11 in appendix B of this part. 

(12) During each relative accuracy test 

run of the CEMS required by 

performance specification 11 in 

appendix B of this part, particulate 

matter and oxygen (or carbon dioxide) 

data must be collected concurrently (or 

within a 30-to 60-minute period) by 

both the CEMS and the following test 

methods. 

* * * * * 

(o) * * * 

(1) Install, calibrate, maintain, and 

operate a CEMS for measuring carbon 

monoxide emissions discharged to the 

atmosphere and record the output of the 

system. The requirements under 

performance specification 4B of 

appendix B of this part, the quality 

assurance procedure 1 of appendix F of 

this part and the procedures under 

§ 60.13 must be followed for 

installation, evaluation, and operation 

of the CEMS. 

(2) Following the date that the initial 

performance test for carbon monoxide is 

completed or is required to be 

completed under § 60.2690, compliance 

with the carbon monoxide emission 

limit may be determined based on the 

30-day rolling average of the hourly 

arithmetic average emission 

concentrations, including CEMS data 

during startup and shutdown as defined 

in this subpart, using CEMS outlet data. 

Except for CEMS data during startup 

and shutdown, as defined in this 

subpart, the 1-hour arithmetic averages 

must be expressed in parts per million 

corrected to 7 percent oxygen (dry basis) 

and used to calculate the 30-day rolling 

average emission concentrations. CEMS 

data collected during startup or 

shutdown, as defined in this subpart, 

are not corrected to 7 percent oxygen, 

and are measured at stack oxygen 

content. The 1-hour arithmetic averages 

must be calculated using the data points 

required under § 60.13(e)(2). 

* * * * * 

(q) For energy recovery units with a 

design heat input capacity of 100 

MMBtu per hour or greater that do not 

use a carbon monoxide CEMS, you must 

install, operate, and maintain a oxygen 

analyzer system as defined in § 60.2875 

according to the procedures in 

paragraphs (q)(1) through (4) of this 

section. 

(1) The oxygen analyzer system must 

be installed by the initial performance 

test date specified in § 60.2675. 

(2) You must operate the oxygen trim 

system within compliance with 

paragraph (q)(3) of this section at all 

times. 

(3) You must maintain the oxygen 

level such that the 30-day rolling 

average that is established as the 

operating limit for oxygen according to 

paragraph (q)(4) of this section is not 

below the lowest hourly average oxygen 

concentration measured during the most 

recent CO performance test. 

(4) You must calculate and record a 

30-day rolling average oxygen 

concentration using Equation 19–19 in 

section 12.4.1 of EPA Reference Method 

19 of Appendix A–7 of this part. 

(r) For energy recovery units with 

annual average heat input rates greater 

than or equal to 250 MMBtu/hour and 

waste-burning kilns, you must install, 

calibrate, maintain, and operate a PM 

CPMS and record the output of the 

system as specified in paragraphs (r)(1) 

through (8) of this section. For other 

energy recovery units, you may elect to 

use PM CPMS operated in accordance 

with this section. PM CPMS are suitable 

in lieu of using other CMS for 

monitoring PM compliance (e.g., bag 

leak detectors, ESP secondary power, 

PM scrubber pressure). 

(1) Install, calibrate, operate, and 

maintain your PM CPMS according to 

the procedures in your approved sitespecific monitoring plan developed in 

accordance with § 60.2710(l) and 

(r)(1)(i) through (iii) of this section. 

(i) The operating principle of the PM 

CPMS must be based on in-stack or 

extractive light scatter, light 

scintillation, beta attenuation, or mass 

accumulation of the exhaust gas or 

representative sample. The reportable 

measurement output from the PM CPMS 

must be expressed as milliamps. 

(ii) The PM CPMS must have a cycle 

time (i.e., period required to complete 

sampling, measurement, and reporting 

for each measurement) no longer than 

60 minutes. 

(iii) The PM CPMS must be capable of 

detecting and responding to particulate 

matter concentrations of no greater than 

0.5 mg/actual cubic meter. 

(2) During the initial performance test 

or any such subsequent performance 

test that demonstrates compliance with 

the PM limit, you must adjust the sitespecific operating limit in accordance 

with the results of the performance test 

according to the procedures specified in 

§ 60.2675. 

(3) Collect PM CPMS hourly average 

output data for all energy recovery unit 

or waste-burning kiln operating hours. 

Express the PM CPMS output as 

milliamps.. 

(4) Calculate the arithmetic 30-day 

rolling average of all of the hourly 

average PM CPMS output collected 

during all energy recovery unit or wasteburning kiln operating hours data 

(milliamps). 

(5) You must collect data using the 

PM CPMS at all times the energy 

recovery unit or waste-burning kiln is 

operating and at the intervals specified 

in paragraph (r)(1)(ii) of this section, 

except for periods of monitoring system 

malfunctions, repairs associated with 

monitoring system malfunctions, 

required monitoring system quality 

assurance or quality control activities 

(including, as applicable, calibration 

checks and required zero and span 

adjustments), and any scheduled 

maintenance as defined in your sitespecific monitoring plan. 

(6) You must use all the data collected 

during all energy recovery unit or wasteburning kiln operating hours in 

assessing the compliance with your 

operating limit except: 

(i) Any data collected during 

monitoring system malfunctions, repairs 

associated with monitoring system 

malfunctions, or required monitoring 

system quality assurance or quality 

control activities conducted during 

monitoring system malfunctions are not 

used in calculations (report any such 

periods in your annual deviation 

report); 

(ii) Any data collected during periods 

when the monitoring system is out of 

control as specified in your site-specific 

monitoring plan, repairs associated with 

periods when the monitoring system is 

out of control, or required monitoring 

system quality assurance or quality 

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control activities conducted during outof-control periods are not used in 

calculations (report emissions or 

operating levels and report any such 

periods in your annual deviation 

report); 

(iii) Any PM CPMS data recorded 

during periods of CEMS data during 

startup and shutdown, as defined in this 

subpart. 

(7) You must record and make 

available upon request results of PM 

CPMS system performance audits, as 

well as the dates and duration of 

periods from when the PM CPMS is out 

of control until completion of the 

corrective actions necessary to return 

the PM CPMS to operation consistent 

with your site-specific monitoring plan. 

(8) For any deviation of the 30-day 

rolling average PM CPMS average value 

from the established operating 

parameter limit, you must: 

(i) Within 48 hours of the deviation, 

visually inspect the air pollution control 

device; 

(ii) If inspection of the air pollution 

control device identifies the cause of the 

deviation, take corrective action as soon 

as possible and return the PM CPMS 

measurement to within the established 

value; and 

(iii) Within 30 days of the deviation 

or at the time of the annual compliance 

test, whichever comes first, conduct a 

PM emissions compliance test to 

determine compliance with the PM 

emissions limit and to verify. Within 45 

days of the deviation, you must reestablish the CPMS operating limit. You 

are not required to conduct additional 

testing for any deviations that occur 

between the time of the original 

deviation and the PM emissions 

compliance test required under this 

paragraph. 

(iv) PM CPMS deviations leading to 

more than four required performance 

tests in a 12-month process operating 

period (rolling monthly) constitute a 

violation of this subpart. 

(s) If you use a dry scrubber to comply 

with the emission limits of this subpart, 

you must monitor the injection rate of 

each sorbent and maintain the 3-hour 

block averages at or above the operating 

limits established during the hydrogen 

chloride performance test. 

■ 40. Section 60.2740 is amended by: 

■ a. Revising introductory text. 

■ b. Revising paragraph (b)(5). 

■ c. Revising paragraph (e). 

■ d. Revising paragraphs (o)(2) through 

(7). 

■ e. Adding paragraphs (o)(8) and (9). 

■ f. Revising paragraph (u) and (v). 

■ g. Adding paragraph (w). 

The revisions read as follows: 

§ 60.2740 What records must I keep? 

You must maintain the items (as 

applicable) as specified in paragraphs 

(a), (b), and (e) through (w) of this 

section for a period of at least 5 years: 

* * * * * 

(b) * * * 

(5) For affected CISWI units that 

establish operating limits for controls 

other than wet scrubbers under 

§ 60.2675(d) through (g) or § 60.2680, 

you must maintain data collected for all 

operating parameters used to determine 

compliance with the operating limits. 

For energy recovery units using 

activated carbon injection or a dry 

scrubber, you must also maintain 

records of the load fraction and 

corresponding sorbent injection rate 

records. 

* * * * * 

(e) Identification of calendar dates 

and times for which data show a 

deviation from the operating limits in 

table 3 of this subpart or a deviation 

from other operating limits established 

under § 60.2675(d) through (g) or 

§ 60.2680 with a description of the 

deviations, reasons for such deviations, 

and a description of corrective actions 

taken. 

* * * * * 

(o) * * * 

(2) All 1-hour average concentrations 

of sulfur dioxide emissions. You must 

indicate which data are CEMS data 

during startup and shutdown. 

(3) All 1-hour average concentrations 

of nitrogen oxides emissions. You must 

indicate which data are CEMS data 

during startup and shutdown. 

(4) All 1-hour average concentrations 

of carbon monoxide emissions. You 

must indicate which data are CEMS data 

during startup and shutdown. 

(5) All 1-hour average concentrations 

of particulate matter emissions. You 

must indicate which data are CEMS data 

during startup and shutdown. 

(6) All 1-hour average concentrations 

of mercury emissions. You must 

indicate which data are CEMS data 

during startup and shutdown. 

(7) All 1-hour average concentrations 

of hydrogen chloride emissions. You 

must indicate which data are CEMS data 

during startup and shutdown. 

(8) All 1-hour average percent oxygen 

concentrations. 

(9) All 1-hour average PM CPMS 

readings or particulate matter CEMS 

outputs. 

* * * * * 

(u) For operating units that combust 

non-hazardous secondary materials that 

have been determined not to be solid 

waste pursuant to § 241.3(b)(1), you 

must keep a record which documents 

how the secondary material meets each 

of the legitimacy criteria under 

§ 241.3(d)(1). If you combust a fuel that 

has been processed from a discarded 

non-hazardous secondary material 

pursuant to § 241.3(b)(4), you must keep 

records as to how the operations that 

produced the fuel satisfies the definition 

of processing in § 241.2 and each of the 

legitimacy criteria in § 241.3(d)(1) of 

this chapter. If the fuel received a nonwaste determination pursuant to the 

petition process submitted under 

§ 241.3(c), you must keep a record that 

documents how the fuel satisfies the 

requirements of the petition process. For 

operating units that combust nonhazardous secondary materials as fuel 

per § 241.4, you must keep records 

documenting that the material is a listed 

non-waste under § 241.4(a). 

(v) Records of the criteria used to 

establish that the unit qualifies as a 

small power production facility under 

section 3(17)(C) of the Federal Power 

Act (16 U.S.C. 796(17)(C)) and that the 

waste material the unit is proposed to 

burn is homogeneous. 

(w) Records of the criteria used to 

establish that the unit qualifies as a 

cogeneration facility under section 

3(18)(B) of the Federal Power Act (16 

U.S.C. 796(18)(B)) and that the waste 

material the unit is proposed to burn is 

homogeneous. 

■ 41. Section 60.2770 is amended by: 

■ a. Revising paragraph (m) 

introductory text. 

■ b. Revising paragraph (n). 

■ c. Adding paragraph (p). 

The revisions and addition read as 

follows: 

§ 60.2770 What information must I include 

in my annual report? 

* * * * * 

(m) If there were periods during 

which the continuous monitoring 

system, including the CEMS, was out of 

control as specified in paragraph (o) of 

this section, the annual report must 

contain the following information for 

each deviation from an emission or 

operating limitation occurring for a 

CISWI unit for which you are using a 

continuous monitoring system to 

comply with the emission and operating 

limitations in this subpart. 

* * * * * 

(n) If there were periods during which 

the continuous monitoring system, 

including the CEMS, was not out of 

control as specified in paragraph (o) of 

this section, a statement that there were 

not periods during which the 

continuous monitoring system was out 

of control during the reporting period. 

* * * * * 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9205 

(p) For energy recovery units, include 

the annual heat input and average 

annual heat input rate of all fuels being 

burned in the unit to verify which 

subcategory of energy recovery unit 

applies. 

■ 42. Section 60.2795 is revised to read 

as follows: 

§ 60.2795 In what form can I submit my 

reports? 

(a) Submit initial, annual, and 

deviation reports electronically or in 

paper format, postmarked on or before 

the submittal due dates. 

(b) Submit results of performance 

tests and CEMS performance evaluation 

tests as follows. 

(1) Within 60 days after the date of 

completing each performance test as 

required by this subpart, you must 

submit the results of the performance 

tests required by this subpart to EPA’s 

WebFIRE database by using the 

Compliance and Emissions Data 

Reporting Interface (CEDRI) that is 

accessed through EPA’s Central Data 

Exchange (CDX)(www.epa.gov/cdx). 

Performance test data must be submitted 

in the file format generated through use 

of EPA’s Electronic Reporting Tool 

(ERT) (see http://www.epa.gov/ttn/chief/ 

ert/index.html). Only data collected 

using test methods on the ERT Web site 

are subject to this requirement for 

submitting reports electronically to 

WebFIRE. Owners or operators who 

claim that some of the information being 

submitted for performance tests is 

confidential business information (CBI) 

must submit a complete ERT file 

including information claimed to be CBI 

on a compact disk, flash drive, or other 

commonly used electronic storage 

media to EPA. The electronic media 

must be clearly marked as CBI and 

mailed to U.S. EPA/OAPQS/CORE CBI 

Office, Attention: WebFIRE 

Administrator, MD C404–02, 4930 Old 

Page Rd., Durham, NC 27703. The same 

ERT file with the CBI omitted must be 

submitted to EPA via CDX as described 

earlier in this paragraph. At the 

discretion of the delegated authority, 

you must also submit these reports, 

including the confidential business 

information, to the delegated authority 

in the format specified by the delegated 

authority. For any performance test 

conducted using test methods that are 

not listed on the ERT Web site, the 

owner or operator shall submit the 

results of the performance test in paper 

submissions to the Administrator. 

(2) Within 60 days after the date of 

completing each CEMS performance 

evaluation test, as defined in this 

subpart and required by this subpart, 

you must submit the relative accuracy 

test audit (RATA) data electronically 

into EPA’s Central Data Exchange by 

using CEDRI as mentioned in paragraph 

(b)(1) of this section. Only RATA 

pollutants that can be documented with 

the ERT (as listed on the ERT Web site) 

are subject to this requirement. For any 

performance evaluations with no 

corresponding RATA pollutants listed 

on the ERT Web site, the owner or 

operator shall submit the results of the 

performance evaluation in paper 

submissions to the Administrator. 

■ 43. Section 60.2875 is amended by: 

■ a. Adding definitions for ‘‘30-day 

rolling average,’’ ‘‘Annual heat input,’’ 

‘‘Average annual heat input rate,’’ 

‘‘Contained gaseous material,’’ 

‘‘Continuous emission monitoring 

system,’’ ‘‘Dry scrubber,’’ ‘‘Foundry 

sand thermal reclamation unit,’’ ‘‘Load 

fraction,’’ ‘‘Municipal solid waste or 

municipal type solid waste,’’ ‘‘Oxygen 

analyzer system,’’ ‘‘Oxygen trim 

system,’’ ‘‘Responsible official,’’ and 

‘‘Solid waste.’’ 

■ b. Revising definitions for ‘‘Calendar 

year,’’ ‘‘Chemical recovery unit,’’ 

‘‘Commercial and industrial solid waste 

incinerator (CISWI),’’ ‘‘Continuous 

monitoring system (CMS),’’ ‘‘Cyclonic 

burn barrel,’’ ‘‘Energy recovery unit,’’ 

‘‘Energy recovery unit designed to burn 

biomass (Biomass),’’ ‘‘Energy recovery 

unit designed to burn liquid waste 

materials and gas (Liquid/gas),’’ 

‘‘Incinerator,’’ ‘‘Modification or 

modified CISWI unit,’’ ‘‘Process 

change’’, ‘‘Raw mill’’, ‘‘Small, remote 

incinerator’’, ‘‘Soil treatment unit,’’ 

‘‘Solid waste incineration unit,’’ ‘‘Space 

heater,’’ ‘‘Waste burning kiln,’’ and 

‘‘Wet scrubber.’’ 

■ c. Removing the definitions for 

‘‘Cyclonic barrel burner’’ and 

‘‘Homogeneous waste.’’ 

The revisions and additions read as 

follows: 

§ 60.2875 What definitions must I know? 

* * * * * 

30-day rolling average means the 

arithmetic mean of the previous 720 

hours of valid operating data. Valid data 

excludes periods when this unit is not 

operating. The 720 hours should be 

consecutive, but not necessarily 

continuous if operations are 

intermittent. 

* * * * * 

Annual heat input means the heat 

input for the 12 months preceding the 

compliance demonstration. 

* * * * * 

Average annual heat input rate means 

annual heat input divided by the hours 

of operation for the 12 months 

preceding the compliance 

demonstration. 

* * * * * 

Calendar year means 365 consecutive 

days starting on January 1 and ending 

on December 31. 

CEMS data during startup and 

shutdown means the following: 

(1) For incinerators, small remote 

incinerators, and energy recovery units: 

CEMS data collected during the first 

hours of operation of a CISWI unit 

startup from a cold start until waste is 

fed into the unit and the hours of 

operation following the cessation of 

waste material being fed to the CISWI 

unit during a unit shutdown. For each 

startup event, the length of time that 

CEMS data may be claimed as being 

CEMS data during startup must be 48 

operating hours or less. For each 

shutdown event, the length of time that 

CEMS data may be claimed as being 

CEMS data during shutdown must be 24 

operating hours or less. 

(2) For waste-burning kilns: CEMS 

data collected during the periods of kiln 

operation that do not include normal 

operations. Startup begins when the 

kiln’s induced fan is turned on and 

continues until continuous feed is 

introduced into the kiln, at which time 

the kiln is in normal operating mode. 

Shutdown begins when feed to the kiln 

is halted. 

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, a 

waste-burning kiln, an energy recovery 

unit or a small, remote incinerator 

under this subpart. The following seven 

types of units are considered chemical 

recovery units: 

(1) Units burning only pulping liquors 

(i.e., black liquor) that are reclaimed in 

a pulping liquor recovery process and 

reused in the pulping process. 

(2) Units burning only spent sulfuric 

acid used to produce virgin sulfuric 

acid. 

(3) Units burning only wood or coal 

feedstock for the production of charcoal. 

(4) Units burning only manufacturing 

byproduct streams/residue containing 

catalyst metals that are reclaimed and 

reused as catalysts or used to produce 

commercial grade catalysts. 

(5) Units burning only coke to 

produce purified carbon monoxide that 

is used as an intermediate in the 

production of other chemical 

compounds. 

(6) Units burning only hydrocarbon 

liquids or solids to produce hydrogen, 

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carbon monoxide, synthesis gas, or 

other gases for use in other 

manufacturing processes. 

(7) Units burning only photographic 

film to recover silver. 

* * * * * 

Commercial and industrial solid 

waste incineration (CISWI) unit means 

any distinct operating unit of any 

commercial or industrial facility that 

combusts, or has combusted in the 

preceding 6 months, any solid waste as 

that term is defined in 40 CFR part 241. 

If the operating unit burns materials 

other than traditional fuels as defined in 

§ 241.2 that have been discarded, and 

you do not keep and produce records as 

required by § 60.2740(u), the operating 

unit is a CISWI unit. While not all 

CISWI units will include all of the 

following components, a CISWI unit 

includes, but is not limited to, the solid 

waste feed system, grate system, flue gas 

system, waste heat recovery equipment, 

if any, and bottom ash system. The 

CISWI unit does not include air 

pollution control equipment or the 

stack. The CISWI unit boundary starts at 

the solid waste hopper (if applicable) 

and extends through two areas: The 

combustion unit flue gas system, which 

ends immediately after the last 

combustion chamber or after the waste 

heat recovery equipment, if any; and the 

combustion unit bottom ash system, 

which ends at the truck loading station 

or similar equipment that transfers the 

ash to final disposal. The CISWI unit 

includes all ash handling systems 

connected to the bottom ash handling 

system. 

Contained gaseous material means 

gases that are in a container when that 

container is combusted. 

Continuous emission monitoring 

system (CEMS) means the total 

equipment that may be required to meet 

the data acquisition and availability 

requirements of this subpart, used to 

sample, condition (if applicable), 

analyze, and provide a record of 

emissions. 

Continuous monitoring system (CMS) 

means the total equipment, required 

under the emission monitoring sections 

in applicable subparts, used to sample 

and condition (if applicable), to analyze, 

and to provide a permanent record of 

emissions or process parameters. A 

particulate matter continuous parameter 

monitoring system (PM CPMS) is a type 

of CMS. 

Cyclonic burn barrel means a 

combustion device for waste materials 

that is attached to a 55 gallon, openhead drum. The device consists of a lid, 

which fits onto and encloses the drum, 

and a blower that forces combustion air 

into the drum in a cyclonic manner to 

enhance the mixing of waste material 

and air. A cyclonic burn barrel is not an 

incinerator, a waste-burning kiln, an 

energy recovery unit or a small, remote 

incinerator under this subpart. 

* * * * * 

Dry scrubber means an add-on air 

pollution control system that injects dry 

alkaline sorbent (dry injection) or sprays 

an alkaline sorbent (spray dryer) to react 

with and neutralize acid gas in the 

exhaust stream forming a dry powder 

material. Sorbent injection systems in 

fluidized bed boilers and process 

heaters are included in this definition. 

A dry scrubber is a dry control system. 

* * * * * 

Energy recovery unit means a 

combustion unit combusting solid waste 

(as that term is defined by the 

Administrator in 40 CFR part 241) for 

energy recovery. Energy recovery units 

include units that would be considered 

boilers and process heaters if they did 

not combust solid waste. 

Energy recovery unit designed to burn 

biomass (Biomass) means an energy 

recovery unit that burns solid waste, 

biomass, and non-coal solid materials 

but less than 10 percent coal, on a heat 

input basis on an annual average, either 

alone or in combination with liquid 

waste, liquid fuel or gaseous fuels. 

* * * * * 

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. 

* * * * * 

Foundry sand thermal reclamation 

unit means a type of part reclamation 

unit that removes coatings that are on 

foundry sand. A foundry sand thermal 

reclamation unit is not an incinerator, a 

waste-burning kiln, an energy recovery 

unit or a small, remote incinerator 

under this subpart. 

Incinerator means any furnace used in 

the process of combusting solid waste 

(as that term is defined by the 

Administrator in 40 CFR part 241) for 

the purpose of reducing the volume of 

the waste by removing combustible 

matter. Incinerator designs include 

single chamber and two-chamber. 

* * * * * 

Load fraction means the actual heat 

input of an energy recovery unit divided 

by heat input during the performance 

test that established the minimum 

sorbent injection rate or minimum 

activated carbon injection rate, 

expressed as a fraction (e.g., for 50 

percent load the load fraction is 0.5). 

* * * * * 

Modification or modified CISWI unit 

means a CISWI unit that has been 

changed later than August 7, 2013, and 

that meets one of two criteria: 

(i) 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. 

Municipal solid waste or municipaltype solid waste means household, 

commercial/retail, or institutional 

waste. Household waste includes 

material discarded by residential 

dwellings, hotels, motels, and other 

similar permanent or temporary 

housing. Commercial/retail waste 

includes material discarded by stores, 

offices, restaurants, warehouses, 

nonmanufacturing activities at 

industrial facilities, and other similar 

establishments or facilities. Institutional 

waste includes materials discarded by 

schools, by hospitals (nonmedical), by 

nonmanufacturing activities at prisons 

and government facilities, and other 

similar establishments or facilities. 

Household, commercial/retail, and 

institutional waste does include yard 

waste and refuse-derived fuel. 

Household, commercial/retail, and 

institutional waste does not include 

used oil; sewage sludge; wood pallets; 

construction, renovation, and 

demolition wastes (which include 

railroad ties and telephone poles); clean 

wood; industrial process or 

manufacturing wastes; medical waste; or 

motor vehicles (including motor vehicle 

parts or vehicle fluff). 

* * * * * 

Oxygen analyzer system means all 

equipment required to determine the 

oxygen content of a gas stream and used 

to monitor oxygen in the boiler or 

process heater flue gas, boiler/process 

heater, firebox, or other appropriate 

location. This definition includes 

oxygen trim systems and certified 

oxygen CEMS. The source owner or 

operator is responsible to install, 

calibrate, maintain, and operate the 

oxygen analyzer system in accordance 

with the manufacturer’s 

recommendations. 

Oxygen trim system means a system of 

monitors that is used to maintain excess 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9207 

air at the desired level in a combustion 

device. A typical system consists of a 

flue gas oxygen and/or carbon monoxide 

monitor that automatically provides a 

feedback signal to the combustion air 

controller. 

* * * * * 

Process change means any of the 

following physical or operational 

changes: 

(1) A physical change (maintenance 

activities excluded) to the CISWI unit 

which may increase the emission rate of 

any air pollutant to which a standard 

applies; 

(2) An operational change to the 

CISWI unit where a new type of nonhazardous secondary material is being 

combusted; 

(3) A physical change (maintenance 

activities excluded) to the air pollution 

control devices used to comply with the 

emission limits for the CISWI unit (e.g., 

replacing an electrostatic precipitator 

with a fabric filter); 

(4) An operational change to the air 

pollution control devices used to 

comply with the emission limits for the 

affected CISWI unit (e.g., change in the 

sorbent injection rate used for activated 

carbon injection). 

* * * * * 

Raw mill means a ball or tube mill, 

vertical roller mill or other size 

reduction equipment, that is not part of 

an in-line kiln/raw mill, used to grind 

feed to the appropriate size. Moisture 

may be added or removed from the feed 

during the grinding operation. If the raw 

mill is used to remove moisture from 

feed materials, it is also, by definition, 

a raw material dryer. The raw mill also 

includes the air separator associated 

with the raw mill. 

* * * * * 

Responsible official means one of the 

following: 

(1) For a corporation: A president, 

secretary, treasurer, or vice-president of 

the corporation in charge of a principal 

business function, or any other person 

who performs similar policy or 

decision-making functions for the 

corporation, or a duly authorized 

representative of such person if the 

representative is responsible for the 

overall operation of one or more 

manufacturing, production, or operating 

facilities applying for or subject to a 

permit and either: 

(i) The facilities employ more than 

250 persons or have gross annual sales 

or expenditures exceeding $25 million 

(in second quarter 1980 dollars); or 

(ii) The delegation of authority to 

such representatives is approved in 

advance by the permitting authority; 

(2) For a partnership or sole 

proprietorship: a general partner or the 

proprietor, respectively; 

(3) For a municipality, State, Federal, 

or other public agency: Either a 

principal executive officer or ranking 

elected official. For the purposes of this 

part, a principal executive officer of a 

Federal agency includes the chief 

executive officer having responsibility 

for the overall operations of a principal 

geographic unit of the agency (e.g., a 

Regional Administrator of EPA); or 

(4) For affected facilities: 

(i) The designated representative in so 

far as actions, standards, requirements, 

or prohibitions under Title IV of the 

Clean Air Act or the regulations 

promulgated thereunder are concerned; 

or 

(ii) The designated representative for 

any other purposes under part 60. 

* * * * * 

Small, remote incinerator means an 

incinerator that combusts solid waste 

(as that term is defined by the 

Administrator in 40 CFR part 241) and 

combusts 3 tons per day or less solid 

waste and is more than 25 miles driving 

distance to the nearest municipal solid 

waste landfill. 

Soil treatment unit means a unit that 

thermally treats petroleumcontaminated 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, a waste-burning kiln, an 

energy recovery unit or a small, remote 

incinerator under this subpart. 

Solid waste means the term solid 

waste as defined in 40 CFR 241.2. 

Solid waste incineration unit means a 

distinct operating unit of any facility 

which combusts any solid waste (as that 

term is defined by the Administrator in 

40 CFR part 241) material from 

commercial or industrial establishments 

or the general public (including single 

and multiple residences, hotels and 

motels). Such term does not include 

incinerators or other units required to 

have a permit under section 3005 of the 

Solid Waste Disposal Act. The term 

‘‘solid waste incineration unit’’ does not 

include: 

(1) Materials recovery facilities 

(including primary or secondary 

smelters) which combust waste for the 

primary purpose of recovering metals; 

(2) Qualifying small power 

production facilities, as defined in 

section 3(17)(C) of the Federal Power 

Act (16 U.S.C. 769(17)(C)), or qualifying 

cogeneration facilities, as defined in 

section 3(18)(B) of the Federal Power 

Act (16 U.S.C. 796(18)(B)), which burn 

homogeneous waste (such as units 

which burn tires or used oil, but not 

including refuse-derived fuel) for the 

production of electric energy or in the 

case of qualifying cogeneration facilities 

which burn homogeneous waste for the 

production of electric energy and steam 

or forms of useful energy (such as heat) 

which are used for industrial, 

commercial, heating or cooling 

purposes; or 

(3) Air curtain incinerators provided 

that such incinerators only burn wood 

wastes, yard wastes and clean lumber 

and that such air curtain incinerators 

comply with opacity limitations to be 

established by the Administrator by 

rule. 

Space heater means a unit that meets 

the requirements of 40 CFR 279.23. A 

space heater is not an incinerator, a 

waste-burning kiln, an energy recovery 

unit or a small, remote incinerator 

under this subpart. 

* * * * * 

Waste-burning kiln means a kiln that 

is heated, in whole or in part, by 

combusting solid waste (as the term is 

defined by the Administrator in 40 CFR 

part 241). Secondary materials used in 

Portland cement kilns shall not be 

deemed to be combusted unless they are 

introduced into the flame zone in the 

hot end of the kiln or mixed with the 

precalciner fuel. 

Wet scrubber means an add-on air 

pollution control device that uses an 

aqueous or alkaline scrubbing liquor to 

collect particulate matter (including 

nonvaporous metals and condensed 

organics) and/or to absorb and 

neutralize acid gases. 

* * * * * 

■ 44. Table 1 to subpart DDDD is 

amended by revising footnotes a and b 

to read as follows: 

Table 1 to Subpart DDDD of Part 60— 

Model Rule—Increments of Progress 

and Compliance Schedules 

* * * * * aSite-specific schedules can be used at the 

discretion of the state. bThe date can be no later than 3 years after 

the effective date of state plan approval or 

December 1, 2005 for CISWI units that 

commenced construction on or before 

November 30, 1999. The date can be no later 

than 3 years after the effective date of 

approval of a revised state plan or February 

7, 2018, for CISWI units that commenced 

construction on or before June 4, 2010. 

■ 45. Table 2 to subpart DDDD of part 

60 is amended by: 

■ a. Revising the table heading. 

■ b. Revising the entry for ‘‘Hydrogen 

Chloride’’. 

■ c. Revising the entry for ‘‘Opacity’’. 

■ d. Revising the entry for ‘‘Oxides of 

nitrogen’’. 

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9208 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

■ e. Revising footnotes a and b. The revisions read as follows: 

TABLE 2 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO INCINERATORS

BEFORE

[Date to be specified in state plan] b

For the air pollutant You must meet this 

emission limitationa Using this averaging time And determining compliance 

using this method 

*******

Hydrogen chloride ........ 62 parts per million by 

dry volume.

3-run average (For Method 26, collect a minimum volume of 120 liters per run. For 

Method 26A, collect a minimum volume of 

1 dry standard cubic meter per run).

Performance test (Method 26 or 26A at 40 

CFR part 60, appendix A–8). 

* * * * * * * 

Opacity ......................... 10 percent .................. Three 1-hour blocks consisting of ten 6- 

minute average opacity values.

Performance test (Method 9 at 40 CFR part 

60, appendix A–4). 

Oxides of nitrogen ....... 388 parts per million 

by dry volume.

3-run average (1 hour minimum sample time 

per run).

Performance test (Methods 7or 7E at 40 CFR 

part 60, appendix A–4). 

* * * * * * * 

aAll emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. 

bApplies only to incinerators subject to the CISWI standards through a state plan or the Federal plan prior to June 4, 2010. The date specified 

in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018. 

* * * * * 

■ 46. Table 6 to subpart DDDD of part 

60 is amended by: 

■ a. Revising the entry for ‘‘Carbon 

monoxide’’. 

■ b. Revising the entry for ‘‘Lead’’. 

■ c. Revising the entry for ‘‘Mercury’’. 

■ d. Revising the entry for ‘‘Oxides of 

nitrogen’’. 

■ e. Revising the entry for ‘‘Sulfur 

dioxide’’. 

■ f. Revising footnote a. 

■ g. Redesignating footnote c as footnote 

d. 

■ h. Adding footnote c. 

The revisions read as follows: 

TABLE 6 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO INCINERATORS ON

AND AFTER

[Date to be specified in state plan] a

For the air 

pollutant 

You must meet this 

emission limitation b Using this averaging time And determining compliance using this method 

*******

Carbon 

monoxide.

17 parts per million dry 

volume.

3-run average (1 hour minimum sample time per 

run).

Performance test (Method 10 at 40 CFR part 60, 

appendix A–4). 

* * * * * * * 

Lead ........... 0.015 milligrams per dry 

standard cubic 

meter. c

3-run average (collect a minimum volume of 2 dry 

standard cubic meters).

Performance test (Method 29 at 40 CFR part 60, 

appendix A–8). Use ICPMS for the analytical 

finish. 

Mercury ...... 0.0048 milligrams per 

dry standard cubic 

meter.

3-run average (For Method 29 an ASTM D6784– 

02 (Reapproved 2008) d, collect a minimum volume of 2 dry standard cubic meters per run. 

For Method 30B, collect a minimum sample as 

specified in Method 30B at 40 CFR part 60, appendix A).

Performance test (Method 29 or 30B at 40 CFR 

part 60, appendix A–8) or ASTM D6784–02 

(Reapproved 2008). d

Oxides of nitrogen.53 parts per million dry 

volume.

3-run average (for Method 7E, 1 hour minimum 

sample time per run).

Performance test (Method 7 or 7E at 40 CFR part 

60, appendix A–4). 

* * * * * * * 

Sulfur dioxide.11 parts per million dry 

volume.

3-run average (1 hour minimum sample time per 

run).

Performance test (Method 6 or 6c at 40 CFR part 

60, appendix A–4). 

* * * * * * * 

aThe date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 

2018. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years 

show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. 

For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show 

that your emissions are at or below 75 percent of this limit in order to qualify for skip testing. d Incorporated by reference, see § 60.17. 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9209 

■ 47. Table 7 to subpart DDDD of part 

60 is revised to read as follows: 

TABLE 7 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO ENERGY RECOVERY

UNITS AFTER MAY 20, 2011 

[Date to be specified in state plan] a

For the air pollutant 

You must meet this emission limitation b

Using this averaging time And determining compliance 

using this method Liquid/Gas Solids 

Cadmium ....... 0.023 milligrams per dry 

standard cubic meter.

Biomass—0.0014 milligrams 

per dry standard cubic 

meter. c

Coal—0.0095 milligrams per 

dry standard cubic meter. 

3-run average (collect a minimum volume of 2 dry 

standard cubic meters).

Performance test (Method 29 

at 40 CFR part 60, appendix A–8). Use ICPMS for 

the analytical finish. 

Carbon monoxide.35 parts per million dry volume.Biomass—260 parts per million dry volume.

Coal—95 parts per million dry 

volume.

3-run average (1 hour minimum sample time per run).Performance test (Method 10 

at 40 CFR part 60, appendix A–4). 

Dioxins/furans 

(total mass 

basis).

2.9 nanograms per dry standard cubic meter.Biomass—0.52 nanograms 

per dry standard cubic 

meter. c

Coal—5.1 nanograms per dry 

standard cubic meter. c.

3-run average (collect a minimum volume of 4 dry 

standard cubic meter).

Performance test (Method 23 

at 40 CFR part 60, appendix A–7). 

Dioxins/furans 

(toxic 

equivalency 

basis).

0.32 nanograms per dry 

standard cubic meter.

Biomass—0.12 nanograms 

per dry standard cubic 

meter.

Coal—0.075 nanograms per 

dry standard cubic meter. c.

3-run average (collect a minimum volume of 4 dry 

standard cubic meters).

Performance test (Method 23 

at 40 CFR part 60, appendix A–7). 

Hydrogen 

chloride.

14 parts per million dry volume.Biomass—0.20 parts per million dry volume.

Coal—13 parts per million dry 

volume.

3-run average (for Method 26, 

collect a minimum of 120 liters; for Method 26A, collect a minimum volume of 1 

dry standard cubic meter).

Performance test (Method 26 

or 26A at 40 CFR part 60, 

appendix A–8). 

Lead ............... 0.096 milligrams per dry 

standard cubic meter.

Biomass—0.014 milligrams 

per dry standard cubic 

meter. c.

Coal—0.14 milligrams per dry 

standard cubic meter. c.

3-run average (collect a minimum volume of 2 dry 

standard cubic meters).

Performance test (Method 29 

at 40 CFR part 60, appendix A–8). Use ICPMS for 

the analytical finish. 

Mercury .......... 0.0024 milligrams per dry 

standard cubic meter.

Biomass—0.0022 milligrams 

per dry standard cubic 

meter.

Coal—0.016 milligrams per 

dry standard cubic meter.

3-run average (For Method 29 

and ASTM D6784–02 (Reapproved 2008) d, collect a 

minimum volume of 2 dry 

standard cubic meters per 

run. For Method 30B, collect a minimum sample as 

specified in Method 30B at 

40 CFR part 60, appendix 

A).

Performance test (Method 29 

or 30B at 40 CFR part 60, 

appendix A–8) or ASTM 

D6784–02 (Reapproved 

2008) d. 

Oxides of nitrogen.76 parts per million dry volume.Biomass—290 parts per million dry volume.

Coal—340 parts per million 

dry volume.

3-run average (for Method 

7E, 1 hour minimum sample time per run).

Performance test (Method 7 

or 7E at 40 CFR part 60, 

appendix A–4). 

Particulate 

matter filterable.

110 milligrams per dry standard cubic meter.Biomass—11 milligrams per 

dry standard cubic meter.

Coal—160 milligrams per dry 

standard cubic meter.

3-run average (collect a minimum volume of 1 dry 

standard cubic meter).

Performance test (Method 5 

or 29 at 40 CFR part 60, 

appendix A–3 or appendix 

A–8) if the unit has an annual average heat input 

rate less than or equal to 

250 MMBtu/hr; or PM 

CPMS (as specified in 

§ 60.2710(x)) if the unit has 

an annual average heat 

input rate greater than 250 

MMBtu/hr. 

Sulfur dioxide 720 parts per million dry volume.Biomass—7.3 parts per million dry volume.

Coal—650 parts per million 

dry volume.

3-run average (1 hour minimum sample time per run).Performance test (Method 6 

or 6c at 40 CFR part 60, 

appendix A–4). 

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9210 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

TABLE 7 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO ENERGY RECOVERY

UNITS AFTER MAY 20, 2011—Continued 

[Date to be specified in state plan] a

For the air pollutant 

You must meet this emission limitation b

Using this averaging time And determining compliance 

using this method Liquid/Gas Solids 

Fugitive ash ... Visible emissions for no more 

than 5 percent of the hourly 

observation period.

Visible emissions for no more 

than 5 percent of the hourly 

observation period.

Three 1-hour observation periods.Visible emission test (Method 

22 at 40 CFR part 60, appendix A–7). 

aThe date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 

2018. bAll emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must 

meet either the total mass basis limit or the toxic equivalency basis limit. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years 

show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. 

For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show 

that your emissions are at or below 75 percent of this limit in order to qualify for skip testing, with the exception of annual performance tests to 

certify a CEMS or PM CPMS. d Incorporated by reference, see § 60.17. 

■ 48. Table 8 to subpart DDDD of part 

60 is revised to read as follows: 

TABLE 8 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO WASTE-BURNING

KILNS AFTER

[Date to be specified in state plan.] a

For the air pollutant You must meet this emission 

limitation b Using this averaging time And determining compliance using this 

method 

Cadmium ............... 0.0014 milligrams per dry standard 

cubic meter. c.

3-run average (collect a minimum volume of 2 dry standard cubic meters).Performance test (Method 29 at 40 

CFR part 60, appendix A–8). 

Carbon monoxide .. 110 (long kilns)/790 (preheater/ 

precalciner) parts per million dry volume.

3-run average (1 hour minimum sample time per run).Performance test (Method 10 at 40 

CFR part 60, appendix A–4). 

Dioxins/furans (total 

mass basis).

1.3 nanograms per dry standard cubic 

meter. c.

3-run average (collect a minimum volume of 4 dry standard cubic meters).Performance test (Method 23 at 40 

CFR part 60, appendix A–7). 

Dioxins/furans 

(toxic equivalency 

basis).

0.075 nanograms per dry standard 

cubic meter. c.

3-run average (collect a minimum volume of 4 dry standard cubic meters).Performance test (Method 23 at 40 

CFR part 60, appendix A–7). 

Hydrogen chloride 3.0 parts per million dry volume. c ........ 3-run average (collect a minimum volume of 1 dry standard cubic meter) 

or 30-day rolling average if HCl 

CEMS is being used.

Performance test (Method 321 at 40 

CFR part 63, appendix A of this part) 

or HCl CEMS if a wet scrubber is 

not used. 

Lead ....................... 0.014 milligrams per dry standard 

cubic meter. c.

3-run average (collect a minimum volume of 2 dry standard cubic meters).Performance test (Method 29 at 40 

CFR part 60, appendix A–8). 

Mercury .................. 0.011 milligrams per dry standard 

cubic meter.

30-day rolling average .......................... Mercury CEMS or sorbent trap monitoring system (performance specification 12A or 12B, respectively, of 

appendix B of this part.) 

Oxides of nitrogen 630 parts per million dry volume .......... 3-run average (for Method 7E, 1 hour 

minimum sample time per run).

Performance test (Method 7 or 7E at 

40 CFR part 60, appendix A–4). 

Particulate matter 

filterable.

4.6 milligrams per dry standard cubic 

meter.

30-day rolling average .......................... PM CPMS (as specified in 

§ 60.2710(x)) 

Sulfur dioxide ......... 600 parts per million dry volume .......... 3-run average (for Method 6, collect a 

minimum of 20 liters; for Method 6C, 

1 hour minimum sample time per 

run).

Performance test (Method 6 or 6c at 

40 CFR part 60, appendix A–4). 

aThe date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 

2018. bAll emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total 

mass basis limit or the toxic equivalency basis limit. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years 

show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. 

For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show 

that your emissions are at or below 75 percent of this limit in order to qualify for skip testing, with the exception of annual performance tests to 

certify a CEMS or PM CPMS. 

■ 49. Table 9 to subpart DDDD of part 

60 is revised to read as follows: 

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Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9211 

TABLE 9 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO SMALL, REMOTE

INCINERATORS AFTER

[Date to be specified in state plan] a

For the air pollutant You must meet this emission 

limitationb Using this averaging time And determining compliance using 

this method 

Cadmium .......................... 0.95 milligrams per dry standard 

cubic meter.

3-run average (collect a minimum 

volume of 1 dry standard cubic 

meters per run).

Performance test (Method 29 at 40 

CFR part 60, appendix A–8). 

Carbon monoxide ............ 64 parts per million dry volume ......... 3-run average (1 hour minimum 

sample time per run).

Performance test (Method 10 at 40 

CFR part 60, appendix A–4). 

Dioxins/furans (total mass 

basis).

4,400 nanograms per dry standard 

cubic meter b.

3-run average (collect a minimum 

volume of 1 dry standard cubic 

meters per run).

Performance test (Method 23 at 40 

CFR part 60, appendix A–7). 

Dioxins/furans (toxic 

equivalency basis).

180 nanograms per dry standard 

cubic meter b.

3-run average (collect a minimum 

volume of 1 dry standard cubic 

meters).

Performance test (Method 23 at 40 

CFR part 60, appendix A–7). 

Fugitive ash ..................... Visible emissions for no more than 5 

percent of the hourly observation 

period.

Three 1-hour observation periods ..... Visible emissions test (Method 22 at 

40 CFR part 60, appendix A–7). 

Hydrogen chloride ............ 300 parts per million dry volume ....... 3-run average (For Method 26, collect a minimum volume of 120 liters per run. For Method 26A, collect a minimum volume of 1 dry 

standard cubic meter per run).

Performance test (Method 26 or 26A 

at 40 CFR part 60, appendix A–8). 

Lead ................................. 2.1 milligrams per dry standard cubic 

meter.

3-run average (collect a minimum 

volume of 1 dry standard cubic 

meters).

Performance test (Method 29 at 40 

CFR part 60, appendix A–8). Use 

ICPMS for the analytical finish. 

Mercury ............................ 0.0053 milligrams per dry standard 

cubic meter.

3-run average (For Method 29 and 

ASTM D6784–02 (Reapproved 

2008),c collect a minimum volume 

of 2 dry standard cubic meters per 

run. For Method 30B, collect a 

minimum sample as specified in 

Method 30B at 40 CFR part 60, 

appendix A).

Performance test (Method 29 or 30B 

at 40 CFR part 60, appendix A–8) 

or ASTM D6784–02 (Reapproved 

2008). c

Oxides of nitrogen ........... 190 parts per million dry volume ....... 3-run average (for Method 7E, 1 

hour minimum sample time per 

run).

Performance test (Method 7 or 7E at 

40 CFR part 60, appendix A–4). 

Particulate matter .............

(filterable) .........................

270 milligrams per dry standard 

cubic meter.

3-run average (collect a minimum 

volume of 1 dry standard cubic 

meters).

Performance test (Method 5 or 29 at 

40 CFR part 60, appendix A–3 or 

appendix A–8). 

Sulfur dioxide ................... 150 parts per million dry volume ....... 3-run average (for Method 6, collect 

a minimum of 20 liters per run; for 

Method 6C, 1 hour minimum sample time per run).

Performance test (Method 6 or 6c at 

40 CFR part 60, appendix A–4). 

a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 

2018. b All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must 

meet either the total mass basis limit or the toxic equivalency basis limit. c Incorporated by reference, see § 60.17. 

PART 241—SOLID WASTES USED AS 

FUELS OR INGREDIENTS IN 

COMBUSTION UNITS 

■ 50. The authority citation for part 241 

continues to read as follows: 

Authority: 42 U.S.C. 6903, 6912, 7429. 

Subpart A—General 

■ 51. Section 241.2 is amended by: 

■ a. Revising the definition of ‘‘Clean 

cellulosic biomass’’; 

■ b. Revising the definition of 

‘‘Contaminants’’; 

■ c. Revising the definition of 

‘‘Established tire collection programs’’; 

and 

■ d. Revising the definition of 

‘‘Resinated wood’’. 

The revisions read as follows: 

§ 241.2 Definitions. 

* * * * * 

Clean cellulosic biomass means those 

residuals that are akin to traditional 

cellulosic biomass, including, but not 

limited to: Agricultural and forestderived biomass (e.g., green wood, forest 

thinnings, clean and unadulterated bark, 

sawdust, trim, tree harvesting residuals 

from logging and sawmill materials, 

hogged fuel, wood pellets, untreated 

wood pallets); urban wood (e.g., tree 

trimmings, stumps, and related forestderived biomass from urban settings); 

corn stover and other biomass crops 

used specifically for the production of 

cellulosic biofuels (e.g., energy cane, 

other fast growing grasses, byproducts of 

ethanol natural fermentation processes); 

bagasse and other crop residues (e.g., 

peanut shells, vines, orchard trees, 

hulls, seeds, spent grains, cotton 

byproducts, corn and peanut production 

residues, rice milling and grain elevator 

operation residues); wood collected 

from forest fire clearance activities, trees 

and clean wood found in disaster 

debris, clean biomass from land clearing 

operations, and clean construction and 

demolition wood. These fuels are not 

secondary materials or solid wastes 

unless discarded. Clean biomass is 

biomass that does not contain 

contaminants at concentrations not 

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9212 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 

normally associated with virgin biomass 

materials. 

* * * * * 

Contaminants means all pollutants 

listed in Clean Air Act sections 112(b) 

or 129(a)(4), with the following three 

modifications: 

(1) The definition includes the 

elements chlorine, fluorine, nitrogen, 

and sulfur in cases where nonhazardous secondary materials are 

burned as a fuel and combustion will 

result in the formation of hydrogen 

chloride (HCl), hydrogen fluoride (HF), 

nitrogen oxides (NOX), or sulfur dioxide 

(SO2). Chlorine, fluorine, nitrogen, and 

sulfur are not included in the definition 

in cases where non-hazardous 

secondary materials are used as an 

ingredient and not as a fuel. 

(2) The definition does not include 

the following pollutants that are either 

unlikely to be found in non-hazardous 

secondary materials and products made 

from such materials or are adequately 

measured by other parts of this 

definition: hydrogen chloride (HCl), 

chlorine gas (Cl2), hydrogen fluoride 

(HF), nitrogen oxides (NOX), sulfur 

dioxide (SO2), fine mineral fibers, 

particulate matter, coke oven emissions, 

opacity, diazomethane, white 

phosphorus, and titanium tetrachloride. 

(3) The definition does not include mcresol, o-cresol, p-cresol, m-xylene, oxylene, and p-xylene as individual 

contaminants distinct from the grouped 

pollutants total cresols and total 

xylenes. 

* * * * * 

Established tire collection program 

means a comprehensive collection 

system or contractual arrangement that 

ensures scrap tires are not discarded 

and are handled as valuable 

commodities through arrival at the 

combustion facility. This can include 

tires that were not abandoned and were 

received from the general public at 

collection program events. 

* * * * * 

Resinated wood means wood products 

(containing binders and adhesives) 

produced by primary and secondary 

wood products manufacturing. 

Resinated wood includes residues from 

the manufacture and use of resinated 

wood, including materials such as board 

trim, sander dust, panel trim, and offspecification resinated wood products 

that do not meet a manufacturing 

quality or standard. 

* * * * * 

Subpart B—Identification of NonHazardous Secondary Materials That 

Are Solid Wastes When Used as Fuels 

or Ingredients in Combustion Units 

■ 52. Amend 241.3 as follows: 

■ a. Revise paragraph (a) and (b). 

■ b. Revise paragraph (c) introductory 

text, and paragraphs (c)(1) introductory 

text, (c)(2) introductory text, and 

(c)(2)(ii), (iii), and (iv). 

■ c. Revise paragraph (d)(1)(iii). 

The revisions read as follows: 

§ 241.3 Standards and procedures for 

identification of non-hazardous secondary 

materials that are solid wastes when used 

as fuels or ingredients in combustion units. 

(a) Except as provided in paragraph 

(b) of this section or in § 241.4(a) of this 

subpart, non-hazardous secondary 

materials that are combusted are solid 

wastes, unless a petition is submitted to, 

and a determination granted by, the EPA 

pursuant to paragraph (c) of this section. 

The criteria to be addressed in the 

petition, as well as the process for 

making the non-waste determination, 

are specified in paragraph (c) of this 

section. 

(b) The following non-hazardous 

secondary materials are not solid wastes 

when combusted: 

(1) Non-hazardous secondary 

materials used as a fuel in a combustion 

unit that remain within the control of 

the generator and that meet the 

legitimacy criteria specified in 

paragraph (d)(1) of this section. 

(2) The following non-hazardous 

secondary materials that have not been 

discarded and meet the legitimacy 

criteria specified in paragraph (d)(1) of 

this section when used in a combustion 

unit (by the generator or outside the 

control of the generator): 

(i) [Reserved] 

(ii) [Reserved] 

(3) Non-hazardous secondary 

materials used as an ingredient in a 

combustion unit that meet the 

legitimacy criteria specified in 

paragraph (d)(2) of this section. 

(4) Fuel or ingredient products that 

are used in a combustion unit, and are 

produced from the processing of 

discarded non-hazardous secondary 

materials and that meet the legitimacy 

criteria specified in paragraph (d)(1) of 

this section, with respect to fuels, and 

paragraph (d)(2) of this section, with 

respect to ingredients. The legitimacy 

criteria apply after the non-hazardous 

secondary material is processed to 

produce a fuel or ingredient product. 

Until the discarded non-hazardous 

secondary material is processed to 

produce a non-waste fuel or ingredient, 

the discarded non-hazardous secondary 

material is considered a solid waste and 

would be subject to all appropriate 

federal, state, and local requirements. 

(c) The Regional Administrator may 

grant a non-waste determination that a 

non-hazardous secondary material that 

is used as a fuel, which is not managed 

within the control of the generator, is 

not discarded and is not a solid waste 

when combusted. This responsibility 

may be retained by the Assistant 

Administrator for the Office of Solid 

Waste and Emergency Response if 

combustors are located in multiple EPA 

Regions and the petitioner requests that 

the Assistant Administrator process the 

non-waste determination petition. If 

multiple combustion units are located 

in one EPA Region, the application must 

be submitted to the Regional 

Administrator for that Region. The 

criteria and process for making such 

non-waste determinations includes the 

following: 

(1) Submittal of an application to the 

Regional Administrator for the EPA 

Region where the facility or facilities are 

located or the Assistant Administrator 

for the Office of Solid Waste and 

Emergency Response for a 

determination that the non-hazardous 

secondary material, even though it has 

been transferred to a third party, has not 

been discarded and is indistinguishable 

in all relevant aspects from a fuel 

product. The determination will be 

based on whether the non-hazardous 

secondary material that has been 

discarded is a legitimate fuel as 

specified in paragraph (d)(1) of this 

section and on the following criteria: 

* * * * * 

(2) The Regional Administrator or 

Assistant Administrator for the Office of 

Solid Waste and Emergency Response 

will evaluate the application pursuant 

to the following procedures: 

* * * * * 

(ii) The Regional Administrator or 

Assistant Administrator for the Office of 

Solid Waste and Emergency Response 

will evaluate the application and issue 

a draft notice tentatively granting or 

denying the application. Notification of 

this tentative decision will be published 

in a newspaper advertisement or radio 

broadcast in the locality where the 

facility combusting the non-hazardous 

secondary material is located, and be 

made available on the EPA’s Web site. 

(iii) The Regional Administrator or 

the Assistant Administrator for the 

Office of Solid Waste and Emergency 

Response will accept public comments 

on the tentative decision for 30 days, 

and may also hold a public hearing 

upon request or at his discretion. The 

Regional Administrator or the Assistant 

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Administrator for the Office of Solid 

Waste and Emergency Response will 

issue a final decision after receipt of 

comments and after a hearing (if any). 

If a determination is made that the nonhazardous secondary material is a nonwaste fuel, it will be retroactive and 

apply on the date the petition was 

submitted. 

(iv) If a change occurs that affects how 

a non-hazardous secondary material 

meets the relevant criteria contained in 

this paragraph after a formal non-waste 

determination has been granted, the 

applicant must re-apply to the Regional 

Administrator or the Assistant 

Administrator for the Office of Solid 

Waste and Emergency Response for a 

formal determination that the nonhazardous secondary material continues 

to meet the relevant criteria and, thus, 

is not a solid waste. 

(d) * * * 

(1) * * * 

(iii) The non-hazardous secondary 

material must contain contaminants or 

groups of contaminants at levels 

comparable in concentration to or lower 

than those in traditional fuel(s) which 

the combustion unit is designed to burn. 

In determining which traditional fuel(s) 

a unit is designed to burn, persons may 

choose a traditional fuel that can be or 

is burned in the particular type of 

boiler, whether or not the combustion 

unit is permitted to burn that traditional 

fuel. In comparing contaminants 

between traditional fuel(s) and a nonhazardous secondary material, persons 

can use data for traditional fuel 

contaminant levels compiled from 

national surveys, as well as contaminant 

level data from the specific traditional 

fuel being replaced. To account for 

natural variability in contaminant 

levels, persons can use the full range of 

traditional fuel contaminant levels, 

provided such comparisons also 

consider variability in non-hazardous 

secondary material contaminant levels. 

Such comparisons are to be based on a 

direct comparison of the contaminant 

levels in both the non-hazardous 

secondary material and traditional 

fuel(s) prior to combustion. 

* * * * * 

■ 55. Add § 241.4 to read as follows: 

§ 241.4 Non-Waste Determinations for 

Specific Non-Hazardous Secondary 

Materials When Used as a Fuel. 

(a) The following non-hazardous 

secondary materials are not solid wastes 

when used as a fuel in a combustion 

unit: 

(1) Scrap tires that are not discarded 

and are managed under the oversight of 

established tire collection programs, 

including tires removed from vehicles 

and off-specification tires. 

(2) Resinated wood. 

(3) Coal refuse that has been 

recovered from legacy piles and 

processed in the same manner as 

currently-generated coal refuse. 

(4) Dewatered pulp and paper sludges 

that are not discarded and are generated 

and burned on-site by pulp and paper 

mills that burn a significant portion of 

such materials where such dewatered 

residuals are managed in a manner that 

preserves the meaningful heating value 

of the materials. 

(b) Any person may submit a 

rulemaking petition to the 

Administrator to identify additional 

non-hazardous secondary materials to 

be listed in paragraph (a) of this section. 

Contents and procedures for the 

submittal of the petitions include the 

following: 

(1) Each petition must be submitted to 

the Administrator by certified mail and 

must include: 

(i) The petitioner’s name and address; 

(ii) A statement of the petitioner’s 

interest in the proposed action; 

(iii) A description of the proposed 

action, including (where appropriate) 

suggested regulatory language; and 

(iv) A statement of the need and 

justification for the proposed action, 

including any supporting tests, studies, 

or other information. Where the nonhazardous secondary material does not 

meet the legitimacy criteria, the 

applicant must explain why such nonhazardous secondary material should be 

considered a non-waste fuel, balancing 

the legitimacy criteria with other 

relevant factors. 

(2) The Administrator will make a 

tentative decision to grant or deny a 

petition and will publish notice of such 

tentative decision, either in the form of 

an advanced notice of proposed 

rulemaking, a proposed rule, or a 

tentative determination to deny the 

petition, in the Federal Register for 

written public comment. 

(3) Upon the written request of any 

interested person, the Administrator 

may, at its discretion, hold an informal 

public hearing to consider oral 

comments on the tentative decision. A 

person requesting a hearing must state 

the issues to be raised and explain why 

written comments would not suffice to 

communicate the person’s views. The 

Administrator may in any case decide 

on its own motion to hold an informal 

public hearing. 

(4) After evaluating all public 

comments the Administrator will make 

a final decision by publishing in the 

Federal Register a regulatory 

amendment or a denial of the petition. 

(5) The Administrator will grant or 

deny a petition based on the weight of 

evidence showing the following: 

(i) The non-hazardous secondary 

material has not been discarded in the 

first instance and is legitimately used as 

a fuel in a combustion unit, or if 

discarded, has been sufficiently 

processed into a material that is 

legitimately used as a fuel. 

(ii) Where any one of the legitimacy 

criteria in § 241.3(d)(1) is not met, that 

the use of the non-hazardous secondary 

material is integrally tied to the 

industrial production process, that the 

non-hazardous secondary material is 

functionally the same as the comparable 

traditional fuel, or other relevant factors 

as appropriate. 

[FR Doc. 2012–31632 Filed 2–6–13; 8:45 am] 

BILLING CODE 6560–50–P 

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