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MEMORANDUM 

TO: Amy Hambrick, U.S. Environmental Protection Agency

FROM: Eastern Research Group, Inc. 

DATE: December 20, 2012

SUBJECT: Revised Draft CISWI Reconsideration Issues 

This memorandum presents the EPA’s response to the petitions for reconsideration 

received on the final commercial and industrial solid waste incineration (CISWI) unit standards 

published in the Federal Register on March 21, 2011 (76 FR 15704). Section 1 provides the 

background for the CISWI standards and the petitions. Section 2 summarizes the reconsideration 

issues and provides the EPA’s response. 

1.0 Background 

On March 21, 2011, the EPA promulgated new source performance standards (NSPS) 

and emission guidelines (EG) for CISWI units. The 2011 rule responds to the vacatur and 

remand of several definitions by the United States Court of Appeals for the District of Columbia 

Circuit in 2007 (76 FR 15704) and responds, in part, to the 2001 voluntary remand of the 

December 1, 2000 rule,. Following issuance of the final CISWI rule, the EPA received petitions 

from numerous interested parties seeking reconsideration of certain aspects of the CISWI 

standards. The petitions are contained in the public docket at EPA-HQ-OAR-2003-0119. 

The EPA carefully reviewed the petitions for reconsideration and on December 23, 2011 

(76 FR 80452), granted reconsideration of certain issues, and proposed revisions to certain 

provisions of the CISWI standards. December 23, 2011 (76 FR 80452). As to the issues raised 

in the petitions for reconsideration that were not addressed in the proposed reconsideration rule, 

EPA is denying reconsideration with respect to those issues, as explained below. EPA is 

denying reconsideration of these issues because they do not meet the criteria for reconsideration 

as explained below. 

www.erg.com 
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2.0 Consideration of Petitions

The EPA is denying reconsideration of the issues presented in this section because they 

failed to meet the standard for reconsideration under CAA section 307(d)(7)(B).Specifically, on 

these issues, the petitions have 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 that their reconsideration petition issues are of central 

relevance to the outcome of the rules. 

Section 307(d)(7)(B) of the CAA states that “[o]nly an objection to a rule or procedure 

which was raised with reasonable specificity during the period for public comment (including 

any public hearing) may be raised during judicial review. If the person raising an objection can 

demonstrate to the Administrator that it was impracticable to raise such objection within such 

time 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 the rule, the Administrator shall convene a proceeding for reconsideration of the rule and 

provide the same procedural rights as would have been afforded had the information been 

available at the time the rule was proposed. If the Administrator refuses to convene such a 

proceeding, such person may seek review of such refusal in the United States court of appeals for 

the appropriate circuit (as provided in subsection (b)).” 
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As to the first procedural criterion for reconsideration, a petitioner must show why the 

issue could not have been presented during the comment period, either because it was 

impracticable to raise the issue during that time or because the grounds for the issue arose after 

the period for public comment (but within 60 days of publication of the final action). In the 

EPA’s view, an objection is of central relevance to the outcome of the rule only if it provides 

substantial support for the argument that the promulgated regulation should be revised. For 

example, see the EPA’s Denial of the Petitions to Reconsider the Endangerment and Cause or 

Contribute Findings for Greenhouse Gases under Section 202 of the Clean Air Act, 75 FR 49561 

(August 13, 2010). For additional discussion of the standard for reconsideration under CAA 

section 307(d)(7)(B), also see 75 FR 49556, 49560-49563 (August 13, 2010), and the EPA’s 

Denial of the Petitions to Reconsider the Final Rule Promulgating the Primary National Ambient 

Air Quality Standards for Sulfur Dioxide, 76 FR 4780, 4786-4788 (January 26, 2011). 

2.1 Work Practice Standards Should Be Used for Startup/Shutdowns and Malfunctions 

The following organizations submitted petitions for reconsideration of this issue: 

• Alaska Oil and Gas Association (AOGA) 

• American Chemistry Council (ACC) 

• American Forest and Paper Association (AFPA) Coalition 

• Council of Industrial Boiler Owners (CIBO) 

2.1.1 Overview of Petition Arguments 

AOGA 

The petition states that the affirmative defense established by EPA that facility owners 

may assert to excuse exceedance of an emission limit resulting from a malfunction is not 

sufficient to address malfunctions under operating conditions like those that prevail in rural 

Alaska.1 The petition says that it would be difficult for a facility to satisfy the criteria spelled out 

for assertion of the affirmative defense provided in Alaska where the fuel supply is highly 

 

1

 The EPA did take additional comment on the inclusion of the affirmative defense in the December 23, 2011, 

reconsideration proposal, but we did not solicit comment on the petitioners’ assertion that we should set work 

practice standards for malfunction periods. To the extent the petition summaries above address the provisions of the 

affirmative defense, we have included this information simply to provide context to the petitioners’ request for work 

practice standards during malfunction periods. 
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variable and harsh operating conditions cause a higher incidence of malfunctions than in the 

lower 48 states. The petition contends that a regulatory agency evaluating a forced shutdown or 

malfunction-related excess emission report where the affirmative defense was asserted could be 

forced to reject the defense and demand the implementation of expensive engineering solutions 

to prevent recurrence of environmentally insignificant malfunctions. The petition states that a 

better approach than the affirmative defense would be to impose a work practice standard that 

requires prompt measures to mitigate any exceedance caused by a malfunction.

ACC 

The petition asserts that the ACC’s public comments suggesting that the EPA should 

establish work practice standards for startup and shutdown periods were rejected by the EPA. 

The petition further states that the EPA’s rationale in the preamble to the final CISWI standards 

assumes that, because CISWI units burn natural gas or distillate oil during periods of startup and 

shutdown, it is technically feasible for these units to meet the emissions standards established for 

periods of normal operation during startup and shutdown periods. The petition states that this 

assumption is flawed for several reasons. 

The petition contends that CISWI units that are burning fossil fuels during startup and 

shutdown periods are no different than the combustion units covered by the major source and 

area source boiler rules. The petition asserts that in both of those rules, the EPA determined that 

it was not feasible to require stack testing during startup and shutdown periods due to physical 

limitations and the short duration of those periods. The petition further asserts that in those rules, 

the EPA used its authority to require work practice standards during startup and shutdown 

periods. The petition notes that these same technical limitations apply to CISWI units during 

startup and shutdown periods and that the EPA failed to explain in the preamble to the final 

CISWI standards why these units should be treated differently than major and area source 

combustion units. 

The petition also contends that there is no factual support for the contention that CISWI 

units can meet the emission standards during startup and shutdown periods. The petition adds 

that the EPA did not address the evidence to the contrary provided by ACC in their comments. 
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Finally, the petition states that when the CISWI emission limits are converted to a similar 

basis as the Maximum Achievable Control Technology (MACT) limits of the major source 

boiler rules, some of the CISWI limits are actually more stringent than the major source boiler 

MACT limits for similar subcategories. The petition says that the EPA‘s assertion that CISWI 

sources could meet the emission limits during startup and shutdown periods is unfounded and 

further disproved when comparing the stringency of the CISWI emission limits with those 

established for major sources in the final boiler rule. The petition states that EPA rightly 

concluded that major source boilers cannot meet emissions standards established for normal 

operations during periods of startup and shutdown and that EPA must similarly conclude that 

CISWI units cannot meet even more stringent emissions standards established for normal 

operations during startup and shutdown periods. 

AFPA Coalition

The petition states that the EPA should make accommodations for startup and shutdown 

periods in the CISWI rule just as it has under the Boiler MACT rule. The petition states that, in 

the Boiler MACT rule, the EPA had also proposed that standards apply at all times. However, 

the petition states that in the final Boiler MACT rule EPA responded differently to commenters’ 

objections, and, in the final rule, the EPA incorporated a work practice standard in lieu of 

numerical limits for periods of startup and shutdown periods. The petition notes that, if the EPA 

recognized the need to modify startup and shutdown provisions in the Boiler MACT, then it must 

also recognize the issue in the CISWI rule. The petition asserts that the very same equipment and 

combustion conditions (boiler, air pollution control equipment, fuel/waste characteristics) that 

prompted the EPA to change startup and shutdown provisions in the Boiler MACT also exist 

with the units regulated under the CISWI rule. The petition suggests that EPA acknowledged in 

both rules that sources can alternate between being boilers and incinerators based on whether 

they burn “fuels” or “solid wastes.” The petition contends that the EPA gave no explanation as to 

why the change made in the Boiler MACT was not considered an issue in the CISWI rule. 

CIBO 
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The petition states that malfunctions are in all material respects the same as startup and 

shutdown periods and asks that EPA set work practice for these periods. The petition asserts that 

there is no rational basis for the EPA to reach a different conclusion for periods of malfunction 

and that the EPA should establish a work practice standard that requires pre-determined 

malfunction plans with practices and procedures for potential malfunctions and require reporting 

of any malfunctions. 

2.1.2 EPA Response

The EPA disagrees with the petitions. This issue of setting work practice standards for 

startup and shutdowns and for periods of malfunction was raised in public comments submitted 

in response to the proposed CISWI rule published on June 4, 2010 (75 FR 31938). The EPA 

addressed those comments in the preamble to the final CISWI standards (76 FR 15721, 15737). 

As noted in the final preamble, Section 129(a)(4) of the CAA states that the standards 

promulgated under CAA section 129 shall specify numerical emissions limitations for each 

pollutant enumerated in that provision. Section 129(a)(4) requires MACT standards for, at a 

minimum, PM, SO2, HCl, NOX, CO, Pb, Cd, Hg, and PCDD/PCDF. Section 129 does not 

contain a work practice standard provision similar to that contained in CAA section 112(h) and 

applicable to NESHAP. As we explained in our responses to comments on the June 2010 rule, 

sections 112 and 129 of the CAA contain different requirements and, as noted in the final CISWI 

rule, the CAA requires numerical standards for the nine section 129(a)(4) pollutants. See 

Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing 

Sources: Hospital/Medical/Infectious Waste Incinerators, 74 FR 51368, 51395 (October 6, 

2009). 

Petitioner ACC raises several specific issues with the Agency’s decision to require 

compliance with the CISWI standards at all times, in part due to the fact that the EPA established 

work practice standards for major source boilers and process heaters and area source boilers, and 

with the Agency’s response to their comments on the proposed rule. The ACC maintains that 

they could not have reasonably foreseen that EPA would treat boilers differently from CISWI 

units and stated that they provided data that demonstrated it was not feasible for CISWI units to 
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comply with the final standards during periods of startup and shutdown. The EPA disagrees. 

The proposed CISWI rule published on June 4, 2010 explained that EPA was setting standards at 

all times and that EPA was not setting work practice standards. Indeed, the comments received 

on June 2010 proposed rule on the issue of setting work practice standards for startups and 

shutdowns and for periods of malfunction demonstrate that the public had an ample opportunity 

to comment on this issue, as commenters specifically commented that EPA should require work 

practices during startup, shutdown , and malfunction, and EPA responded to those comments. 

Because the petitioners have not demonstrated that it was impracticable to comment on this issue 

and because the objection is not of central relevance to the outcome of the final rule given the 

statutory authority does not authorize work practice standards for solid waste incineration units, 

the EPA is denying reconsideration. 

Although petitioners have failed to meet the requirements of section 307(d) for 

reconsideration. it is worth noting that the information submitted by the petitioner on the 

proposed rule did not demonstrate that compliance during startup and shutdown was infeasible;

and the petitioner did not provide additional data that was generated during startup and shutdown 

periods demonstrating that additional variability should be incorporated into the standards. The 

EPA maintains that the final rule contains sufficient variability. 

2.2 Exempt or Revise Limits for Units Combusting de minimis Amounts of Waste

The following organizations submitted petitions for reconsideration of this issue: 

• Anthracite Region Independent Power Producers Association (ARIPPA) 

• Edison Mission Energy 

• JELD-WEN, Inc. 

2.2.1 Overview of Petition Arguments

ARIPPA 

The petition states that the EPA should revise the final CISWI standards to ensure that 

they are not applicable to operating units combusting only de minimis quantities of solid waste. 

The petition notes that the final CISWI standards would appear to apply to each operating unit 
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which combusts any quantity of solid waste, based on the definition of “solid waste incineration 

unit” set forth in 40 CFR 60.2265. 

 

Edison Mission Energy 

The petition requests that the EPA clarify that burning de minimis amounts of 

nonhazardous boiler cleaning wastes and other traditional byproducts of boiler operation (such as 

water treatment resins) does not transform a boiler into an incinerator, even if the byproducts 

have a low heat value. The petition notes that the EPA has sufficient de minimis authority to 

prevent applications of the law which would have trifling benefits at extremely high cost. 

JELD-WEN, Inc. 

The petition requests clarification and reconsideration such that the CISWI rule will 

apply the EPA’s de minimis authority to small amounts of secondary materials with trivial or 

nonexistent emissions impacts. The petition notes that, as issued, the final rule may negatively 

affect the petitioner’s ability to use certain renewable fuel sources, particularly wood packaging 

materials in its boiler operations. To reduce unnecessary regulatory burdens that provide no 

benefits, the petition asserts that the EPA should provide a de minimis exemption from the 

CISWI rule for wood packaging and similar materials that would have limited or negligible 

impacts on emissions. 

2.2.2 EPA Response

This issue was raised in public comments submitted in response to the proposed CISWI 

rule published on June 4, 2010 (75 FR 31938). The EPA’s responses to the comments are 

presented in Section 3.8 (pp. 468 – 471) of the February 2011 response-to-comment document 

(http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf). 

The comments received on this issue demonstrate that the public had ample opportunity 

to comment on this issue, and EPA responded to those comments. Because the petitioners did not 

demonstrate that it was impracticable to comment on this issue during the comment period on the 

proposed rule and because the issue is not of central relevance to the final CISWI standards, the 

EPA is denying reconsideration of this issue. 
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2.3 Clarify Applicability of CISWI Standards to Marine Vessel Units or Units Located on 

the Outer Continental Shelf 

A Petition to reconsider this issue was submitted by AOGA. 

2.3.1 Overview of Petition Arguments 

The petition states that the EPA neglected to clarify the application of CISWI standards 

to incinerators located on marine vessels or on the outer continental shelf (OCS). The petition 

said that the EPA’s response to public comments, that the applicability of Part 60 standards to 

OCS sources and associated vessels in addressed in 40 CFR 55.13(c), did not adequately address 

CISWI applicability and that it was imprudent for the EPA to defer applicability decisions to 

regional offices. The petition also stated that the EPA’s intent with regard to CISWI applicability 

to marine vessels and/or OCS sources should be clearly articulated in the CISWI rulemaking, 

thereby providing criteria to be used by regional offices and the opportunity for stakeholders to 

comment on such criteria. 

2.3.2 EPA Response

This issue was contained in a public comment submitted in response to the proposed 

CISWI rule published on June 4, 2010 (75 FR 31938). The EPA’s response to the comment is 

presented on page 358 of the February 2011 response-to-comment document 

(http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf). As stated in the 2011 

response to comments, owners or operators of sources that are unsure of the applicability of the 

CISWI rule should consult their permitting authority. The comments received on this issue 

demonstrate that the public had ample opportunity to comment on this issue. Therefore, because 

it was not impracticable to comment on this issue during the public comment period, the EPA is 

denying reconsideration. 

Finally, to the extent there is any confusion as to whether the requirements of CISWI 

apply to non-OCS sources, we note that for vessels not subject to CAA section 328, the EPA 

defines the term “stationary source” to mean generally any source of an air pollutant except those 

emissions resulting directly from an internal combustion engine for transportation purposes or 
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from a non-road engine or non-road vehicle as defined in CAA section 216, 42 USC 7550,. If a 

passenger vessel or other type of ship is not propelled by a non-road engine (e.g., if it is instead 

propelled by a boiler), then the passenger vessel or ship would be considered a stationary source. 

Therefore, any air emissions from an incineration unit combusting non-hazardous solid waste on 

such a vessel or ship would be subject to section 129. However, if a passenger vessel or other 

type of ship is propelled by a non-road engine (e.g., diesel engine), then the passenger vessel or 

ship would be considered a mobile source. Therefore, any emission point location on the source 

would be part of the mobile source emissions. 'Mobile source' is a term used to describe a wide 

variety of vehicles, engines, and equipment that generate air pollution and that move, or can be 

moved, from place to place. 

The petitioner’s comments on the proposed CISWI rule implied that these ship-based 

units would be in the small remote incinerator (SRI) subcategory, but the units described by the 

petitioner do not appear to meet the definition of that subcategory because such sources must be 

located “more than 25 miles driving distance to the nearest municipal solid waste landfill.” 40 

CFR 60.2265 and 60.2875. The location of vessels changes with the movement of the vessel and 

we think it unlikely that vessels at port would always be more than 25 miles driving distance 

from a municipal solid waste landfill such that they would qualify for the small remote 

incinerator subcategory. The petitioner’s comments on the proposed rule also stated that the EPA 

could not establish standards applicable to such units because EPA did not have data from 

vessel-borne incinerators. The petitioner’s comment is without merit. The petitioner did not 

provide emissions data to demonstrate that the emissions from incineration units on vessels are 

sufficiently different from land-based incineration units to warrant a subcategory. Absent such 

data, the EPA established standards for incineration units and SRI units based on the data 

available to the Agency. The EPA also requested data (76 FR 28663) after promulgation of the 

March 2011 final CISWI rule and we did not receive any data from incineration units located on 

ships. To the extent that the vessels are stationary sources under the CAA, and the incineration 

units on the vessels at issue meet the definition of an incinerator under the final rule, the sources 

must comply with CISWI. 

2.4 Clarify CISWI Rule Applicability to Portable Incinerator Units
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 A Petition to reconsider this issue was submitted by API/NPRA. 

2.4.1 Overview of Petition Arguments 

 The petition states that the EPA did not address portable incinerators located at temporary 

construction sites and at oil and gas drilling camps. The petition raises this argument in the 

context of the requirements for the SRI subcategory and asserts that such standards cannot be 

met by portable incineration units. Consequently, the petition asserts that the standards should be 

reconsidered. 

2.4.2 EPA Response 

The EPA is denying reconsideration of this issue because the petitioners failed to 

demonstrate that it was impracticable for them to comment on the applicability of the CISWI 

standards to portable incineration units during the public comment period. In addition, the EPA’s 

basis and rationale for establishing the SRI subcategory were presented in the preamble to the 

proposed CISWI rule on June 4, 2010 (see 75 FR 31951). The EPA received numerous 

comments related to the SRI subcategory (see pp. 737-739, 954-971 of the February 2011 

response-to-comment document at 

http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf) which demonstrates that the 

public had ample opportunity to, and did, comment on the proposed SRI subcategory. 

Consequently, the EPA is denying reconsideration of this issue. 

2.5 Reduce Performance Testing Requirements to be More Consistent with Requirements 

of Other Rules 

The following organizations submitted petitions for reconsideration of this issue: 

• ACC 

• CIBO 

2.5.1 Overview of Petition Arguments 

ACC
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The petition states that the stack testing frequency required in the final CISWI standards 

is unreasonable, particularly for units with heat capacities less than 250 million British thermal 

units per hour (mmBtu/hr). The petition notes that several commenters requested that EPA 

reduce the test frequency. The petition further notes that the EPA disagreed with the commenters 

stating that, without recurring testing, the Agency would have no way to know if parameter 

ranges remain viable. 

The petition notes that, while EPA has made some improvements in the testing provisions 

from the proposed to the final rule, the EPA should reconsider the onerous nature of these testing 

provisions. The petition further notes that the EPA has not explained why the testing frequency 

required in the prior CISWI rules needed to be changed. 

CIBO 

The petition states that the testing frequency specified in the final CISWI standards is 

unreasonable and requests a reduced testing frequency, citing other MACT and NSPS standards 

and state performance testing requirements. For example, the petition notes that the Hazardous 

Waste Combustor MACT (Subpart EEE) requires a comprehensive performance test only once 

every 5 years and many MACT standards and NSPS standards only require one initial 

performance test unless there is a physical change to the control device. The petition states that it 

did not see the justification for annual testing in the CISWI rule. 

2.5.2 EPA Response

This issue was raised in public comments submitted in response to the proposed CISWI 

rule published on June 4, 2010 (75 FR 31938). As noted by one of the petitioners, AOGA, the 

EPA addressed these comments in the preamble to the final CISWI standards (76 FR 15736-

15737). 

The comments received on this issue demonstrate that the public had ample opportunity 

to, and did, comment on this issue, and the petitioners have not provided new data that became 

available after the close of the public comment period to support their request that EPA 

reconsider this issue. For these reasons, the EPA is denying reconsideration. 
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2.6 Reconsider and Take Comment on the Elimination of Provisions that Allow Missing 

Continuous Emissions Monitoring System (CEMS) Data

A Petition to reconsider this issue was submitted by ACC. 

2.6.1 Overview of Petition Arguments 

The petition notes that the proposed CISWI rules contained several provisions that 

allowed for some amount of missing data from CEMS, and that the EPA solicited comment on 

whether or not the CISWI rules should require valid CEMS data for all times that the facility is 

operated. The petition further notes that the EPA received public comments supporting the 

proposed CEMS data availability requirements from ACC and others. 

The petition expresses disappointment with the EPA’s removal of the CEMS missing 

data provisions in the final CISWI rules. The petition asserts that, if the EPA believed that the 

CEMS missing data provisions should be removed, it needed to be more transparent and actually 

propose that action. If the EPA had done so, the petitioner says that ACC and others would have 

focused their comments on why eliminating the CEMS missing data provisions was not a sound 

approach. The petition says that the EPA should provide proper (i.e., clearer) notice to allow the 

regulated community and others to focus their comments on the potential consequences and 

impact of removing these provisions. The petitioner noted particular disappointed because their 

review of the CISWI response-to-comment document did not find any comments that supported, 

much less advocated for, the removal of these provisions. 

 2.6.2 EPA Response 

As the petitioner noted, the EPA explicitly requested and received comment on whether 

or not the final CISWI rule should require valid emissions data from CEMS for all times that an 

affected facility is operated and comment on approaches to provide that data (see 75 FR 31964). 

Although the petitioner did not submit comments, the EPA received comment on this issue from 

other entities. The comments received on this issue demonstrate that the public had ample 

opportunity to, and did, comment on this issue. Because the petitioners did not demonstrate that 

it was impracticable for them to comment on this issue, the EPA is denying reconsideration. 
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As stated in the February 2011 response-to-comment document (see page 1069 of 

http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf), the final rule includes 

revisions to the general requirements for operating continuous monitoring systems that addresses 

CEMS data availability concerns. We did not include any specific minimum data availability 

requirement in the 2011 CISWI rule, nor did we include a requirement to substitute data below 

some threshold in certain conditions as the proposed rule indicated. We believe that numerical 

allowances for missing data quickly become targets or excuses, not incentives to conduct 

monitoring in a manner consistent with good air pollution control practices. For all monitoring 

required or applied as an option under this rule, we have included provisions that would require 

the monitoring system to be operated and data to be collected at all required intervals at all times 

the affected source is operating except for periods of monitoring system malfunctions, repairs 

associated with monitoring system malfunctions, and required monitoring system quality 

assurance or quality control activities (including, as applicable, calibration checks and required 

zero and span adjustments). Further, data recorded during monitoring system malfunctions, 

repairs associated with monitoring system malfunctions, or required monitoring system quality 

assurance or control activities may not be used in calculations used to report emissions or 

operating levels. A monitoring system malfunction is any sudden, infrequent, not reasonably 

preventable failure of the monitoring system to provide valid data. Monitoring system failures 

that are caused in part by poor maintenance or careless operation are not malfunctions. All the 

data collected during all other periods must be used in assessing the operation of the control 

device and associated control system. 

 (http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf)). The EPA’s 

response to those comments is presented in the preamble to the final CISWI rule (76 FR 15733). 

2.7 CISWI Does Not Satisfy CAA Section 112(c)(6) Requirements for Polychlorinated 

Biphenyls and Polycyclic Organic Matter 

A Petition to reconsider this issue was submitted by the Sierra Club. 

2.7.1 Overview of Petition Arguments 
15 

The petition states that the EPA failed to set emission standards for polychlorinated 

biphenyls (PCBs) and polycyclic organic matter (POM). The petition further states that the 

EPA’s claim that it has satisfied its obligations under CAA Section 112(c)(6) with respect to 

these pollutants by setting standards for other pollutants that “effectively” control PCBs and 

POM is legally irrelevant and arbitrary. The petition also states that the EPA argues for the first 

time in the preamble to the final CISWI rule that dioxins and carbon monoxide (CO) are 

“surrogates” for PCBs and POM. The petition notes that EPA must reconsider because its new 

arguments regarding Section 112(c)(6) do not appear in its proposal and as such it was 

“impracticable” to object to them during the public comment period within the meaning CAA 

Section 307(d)(7)(B). 42 U.S.C. Section 7607(d)(7)(B). The petition further states that, because 

EPA’s interpretation of Section 112(c)(6) underlies its refusal to set emission standards for all 

the hazardous air pollutants that area source boilers emits, this objection is of central relevance. 

2.7.2 EPA Response 

This issue was raised in public comments submitted in response to the proposed CISWI 

rule published on June 4, 2010 (75 FR 31938). The petitioner’s comments are presented on pages 

805 and 806 of the February 2011 response-to-comment document 

(http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf). The EPA’s response to the 

petitioner’s comments is presented in the preamble to the final CISWI rule (76 FR 15717-

15718). The petitioner was able to comment on this issue and the petitioner has not provided new 

information or data obtained since the close of the comment period but within the period for 

judicial review; nor is the issue of central relevance to the final CISWI standards. For these 

reasons, the EPA is denying reconsideration on this issue. 

2.8 MACT Floor Approach Concerns 

The following organizations submitted petitions for reconsideration of this issue: 

• AFPA Coalition 

• American Iron and Steel Institute (AISI)/American Coke and Coal Chemicals 

Institute (ACCCI) 

• PCA 
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2.8.1 Overview of Petition Arguments 

AFPA Coalition 

The petition states that the EPA’s revised methodology used to establish the MACT 

floors for the final CISWI standards remains flawed. According to the commenter, the EPA’s 

rigid statistical approach has resulted in inconsistent, sometimes irrational, and economically 

challenging if not unachievable emission standards. The commenter stated that the EPA has a 

responsibility to obtain emissions data that represent the actual range and variability of operating 

conditions. The commenter also states that these standards encourage practices counter to EPA’s 

own solid waste management and energy policies. 

AISI/ACCCI 

The petition states that the MACT floors for the CISWI standards are arbitrary and 

capricious and that EPA should reconsider its floor-setting methodology. The petition notes that 

it submitted public comments on the floor-setting methodology in response to the proposed 

standards, but that the EPA generally used the same procedures to establish the MACT floors for 

the final CISWI standards. 

PCA 

 The petition states that the EPA improperly based its MACT floor analysis on individual 

test runs rather than on complete stack tests (i.e., the average of 3 test runs). The petition notes 

that the average of 3 test runs is the basis on which the standards are stated and will be enforced. 

2.8.2 EPA Response 

The EPA is denying reconsideration of this issue because the petitioners failed to 

demonstrate that it was impracticable for them to comment during the public comment period. 

The EPA received numerous public comments submitted in response to the floor-setting 

procedures followed by the Agency for the proposed CISWI rule published on June 4, 2010 (75 

FR 31938). Indeed, petitioner AISI/ACCCI acknowledged submitting public comments on this 

issue in their petition for reconsideration (see pp. 553-554, 620 of the February 2011 responseto-comment document at http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf). 
17 

The EPA responded to the public comments received on this issue in Section V (Public 

Comments) of the preamble to the final CISWI standards (76 FR 15704) and the EPA’s 

additional explanation in the final rule in response to comments and in support of the floorsetting procedures does not warrant re-opening of this issue for reconsideration. See 

International Fabricare Institute v. EPA, 972 F.2d 384, 399 (D.C. Cir. 1992) (notice and 

comment is not intended to result in “interminable back-and-forth”) and Community Nutrition 

Institute v. Block, 749 F.2d 50, 58 (D.C. Cir. 1984) (agency is not required to provide additional 

opportunity to comment on its response to comments). 

The comments received on this issue demonstrate that the public had ample opportunity 

to, and did, comment on this issue. Because the petitioners did not demonstrate that it was 

impracticable for them to comment on this issue, the EPA is denying reconsideration. 

2.9 MACT Floor Must Reflect the Average, the Upper Predictive Limit is Not the Same as 

the Average Emission Level 

A Petition to reconsider this issue was submitted by the Sierra Club. 

2.9.1 Overview of Petition Arguments 

The petition states that section 112(d)(3) of the CAA requires EPA to set floors reflecting 

the “average” emission level achieved by the best sources. According to the petition, setting 

floors that reflect an upper predictive limit (UPL) for those sources is unlawful. The petition 

asserts that, by claiming that it can use the UPL for all sources in the top 12 percent, the EPA 

misreads its authority to consider variability under the CAA and relevant case law. 

The petition says that, although the EPA may consider variability in estimating an 

individual source’s actual performance over time, nothing in the Act or the case law suggests that 

the Agency may account for differences in performance between sources except as stated in 

CAA section 112(d)(3) provides, by averaging the emission levels achieved by the sources in the 

top twelve percent. 
18 

Moreover, the petition asserts that the EPA did not provide an explanation for its 

assumption that sources’ actual emission levels will vary to the full extent of the 99th percent 

UPL. The petition states that by its nature, a UPL predicts sources’ variability in performance 

based on characteristics of the data already available for them, the number of data points, the 

median of the data points, and the standard deviation. The petition states that the UPL does not 

consider an operator’s efforts to limit variability in emissions, or at least upward variability, by 

maintaining and operating the source carefully to control emissions. The petition further states 

thatas both EPA and the D.C. Circuit have recognized, operator training and care and source 

maintenance do operate to control emissions. According to the petition, by using the UPL, the 

EPA ignored the effect of operator training and care and source maintenance on emission levels. 

The petition states that doing so is just as unlawful and arbitrary as setting floors that ignore the 

effects of cleaner fuel use; it results in floors that do not reflect the best sources’ actual 

performance. 

2.9.2 EPA Response

In the preamble to the proposed CISWI rule (75 FR 31943), the EPA explicitly requested 

public comments on its methodology for develop MACT floors, including its methodology for 

accounting for variability. In response, EPA received comments on these issues. See pp. 630-

631 of the February 2011 response-to-comment document at: 

http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf. The EPA addressed these 

comments in the preamble to the final CISWI standards (76 FR 15722-15727). As noted in the 

preamble, the EPA may consider variability both in identifying which performers are ‘‘best’’ and 

in assessing their level of performance. Sierra Club v. EPA (Brick MACT), 479 F.3d 875, 881–82 

(D.C. Cir. 2007); see also Mossville Environmental Action Now v. EPA, 370 F.3d 1232, 1241–42 

(DC Cir 2004). The Brick MACT decision reiterated that EPA may account for variability in 

setting floors. The petitioner commented on this issue in response to the proposed rule and it has 

not provided new data obtained since the close of the comment period that indicates this issue 

must be reconsidered. For these reasons, the EPA is denying reconsideration. 

2.10 MACT Floor Pollutant-By-Pollutant Approach Concerns 
19 

The following organizations submitted petitions for reconsideration of this issue: 

• AISI 

• AFPA Coalition 

2.10.1 Overview of Petition Arguments 

AISI 

The petition states that, unless the EPA reconsiders its MACT floor-setting methodology 

for the CISWI rule, the MACT floors for this rule will remain arbitrary and capricious. The 

petition notes that it submitted comments on the proposed CISWI standards that expressed 

concern with the EPA’s floor-setting methodology, including the EPA’s approach of “cherry 

picking” the best data in setting the standard on a pollutant-by-pollutant basis without regard for 

the sources from which the data were obtained. The petition notes that the EPA generally used 

the same basic approach and steps in setting the MACT floors for the final CISWI standards as 

were used for the proposed standards. The petition asserts that approach resulted in inconsistent 

and potentially unachievable emission standards. 

AFPA Coalition 

The petition states that the EPA should reconsider its pollutant-by-pollutant approach, 

instead using unit-by-unit composite performance to rank and select best performing unit(s), 

especially considering the fact that EPA’s database demonstrates that no CISWI unit has 

“achieved in practice” all of the final emission standards. 

2.10.2 EPA Response

The EPA is denying reconsideration of the pollutant-by-pollutant issue because the 

petitioners failed to demonstrate that it was impracticable for them to comment during the public 

comment period. The EPA received numerous public comments submitted in response to the 

pollutant-by-pollutant approach for establishing the MACT floors in the proposed CISWI rule 

published on June 4, 2010 (75 FR 31938). Indeed, one of the petitioners acknowledged 

submitting comments on this issue in their petition for reconsideration (see pp. 566-567 of the 

February 2011 response-to-comment document at 

http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf). The EPA responded to the 
20 

public comments received on this issue in Section V.B.1 (Public Comments, MACT Floor 

Analysis, Pollutant-by-Pollutant Approach and Alternative Approaches) of the preamble to the 

final CISWI standards (76 FR 15718-15721). The Agency properly responded to these 

comments in the final rule. As the D.C. Circuit recognized in Community Nutrition Institute v. 

Block, 749 F.2d 50, 58 (D.C. Cir. 1984), an agency is not required to provide additional 

opportunity to comment on its response to comments, which is essentially what the petition 

requests. See International Fabricare Institute v. EPA, 972 F.2d 384, 399 (D.C. Cir. 1992) 

(notice and comment is not intended to result in “interminable back-and-forth”) The comments 

received on this issue demonstrate that the public had ample opportunity to, and did, comment on 

this issue. Because the petitioners did not demonstrate that it was impracticable for them to 

comment on this issue, the EPA is denying reconsideration. 

2.11 Nondetect Methodology is Unlawful 

A Petition to reconsider this issue was submitted by the Sierra Club. 

2.11.1 Overview of Petition Arguments 

The petition contends that the EPA’s statements regarding its treatment of nondetect data 

in the final rule appear to conflict. According to the petition, at one point, the agency states that it 

“[r]evised the nondetect methodology to calculate emission limits using three times the reported 

nondetect values where the value equal to three times the representative [method detection limit] 

MDL was greater than the MACT floor emission limit.” See 76 FR 15713. Elsewhere, however, 

the petition notes that the agency stated that if three times the MDL was greater than the floor, 

“we concluded that the calculated MACT floor emission limit does not account entirely for 

measurement variability” and used a number equal to three times the MDL to replace the 

calculated floor. See 76 FR 15728. 

The petition notes that from the latter discussion, it appears that EPA refused to set any 

MACT limits below three times a selected MDL. The petition states that this approach 

effectively sets the “floor” as high as triple the “average emission level calculated for the data 

set” (i.e., the entire data set) rather than the top 12 percent. 
21 

The petition also states that the CAA requires new source standards to be no higher than 

the emissions of the “best performing similar source.” 42 U.S.C. section 7412(d)(3). According 

to the petition, even if, as the Agency suggests, a source reporting at or near a detection limit is 

imprecise by 40 to 50 percent, at most that source’s actual emissions would be 50 percent higher 

than the reported detection limit. The petition contends that, instead, the EPA substituted a 

number that is triple the detection limit obtained by a laboratory for a completely different 

source. The petition notes that where the CAA requires existing source standards to be at least as 

stringent as the average emissions achieved in practice by the best performing 12 percent of 

existing sources, 42 U.S.C. section 7412(d)(3), the EPA substituted a figure that does not reflect 

the actual emissions of any source within the category. 

Finally, the petition states that the EPA cannot justify its floor adjustment by asserting an 

inability to measure emissions below its triple-maximum-detection limit floor. The petition states 

that the record includes multiple sources that utilized lower detection limits; those sources 

demonstrate the feasibility of measuring emissions at lower levels. The petition also notes that 

the standards specified detection methods that should have a known detection limits, with a welldefined level of certainty. The petition suggested that the EPA could, accordingly, calculate its 

floor, and – as a second and independent step – establish monitoring requirements that 

accommodate any imprecision associated with measurement. Or, the petition suggested that EPA 

could utilize a safety factor. The petition contends that the EPA cannot, however, simply 

manipulate the limits according to standards that appear nowhere in the Act. 

2.11.2 EPA Response

The EPA disagrees with the petitioner that the preamble to the final CISWI standards 

contains conflicting statements regarding the EPA’s treatment of nondetect data. The EPA 

believes that the conflict alleged by the petitioner is related to the nature of the statements in the 

citations noted by the petitioner. Although both citations were extracted from the preamble for 

the final CISWI rules (76 FR 15704), the first citation noted by the petitioner (76 FR 15713) is a 

summary bullet taken from the list of significant changes made to the CISWI standards since 

proposal. The purpose of this bullet was to provide a brief overview of the rule revisions related 
22 

to the treatment of nondetect data rather than to provide a complete description of the change. 

The second citation noted by the petitioner (76 FR 15728) is taken from an in-depth explanation 

of the EPA’s rationale for and implementation of the revised methodology to calculate emission 

limits using three times the reported nondetect values. 

The EPA received numerous public comments submitted in response to the EPA’s 

proposed treatment of nondetect data. Indeed, the petitioner submitted comments on this issue 

(see pp. 657 of the February 2011 response-to-comment document at 

http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf). The EPA responded to the 

public comments received on this issue in Section V.B.5 (Public Comments, MACT Floor 

Analysis, Treatment of Detection Levels) of the preamble to the final CISWI standards (76 FR 

15727-15728). The comments received on this issue demonstrate that the public had ample 

opportunity to, and did, comment on this issue, and the petitioner has not provided new data that 

became available after the close of the public comment period to support their request that EPA 

reconsider this issue. Additionally, some further explanation from the EPA in response to 

comments to support the treatment of nondetect data does not warrant re-opening of this issue for 

reconsideration. See International Fabricare Institute v. EPA, 972 F.2d 384, 399 (D.C. Cir. 

1992) (notice and comment is not intended to result in “interminable back-and-forth”) and 

Community Nutrition Institute v. Block, 749 F.2d 50, 58 (D.C. Cir. 1984) (agency is not required 

to provide additional opportunity to comment on its response to comments). For these reasons, 

the EPA is denying reconsideration of this issue. 

2.12 Beyond-the-Floor Analysis is Unlawful and Arbitrary 

A Petition to reconsider this issue was submitted by the Sierra Club. 

2.12.1 Overview of Petition Arguments 

The petition asserts that the EPA advanced new arguments in an attempt to justify its 

refusal to set beyond-the-floor standards. The commenter states that the common theme in EPA’s 

arguments is that because sources are likely to install certain control technologies to meet the 
23 

floor standards and the EPA does not believe that additional controls are feasible or costeffective, beyond-the-floor standards reflecting the emission level that these technologies can 

achieve are not appropriate (76 FR 15728-15732). The petition states that because these new 

arguments do not appear in EPA’s proposal, it was “impracticable” to object to these arguments 

during the public comment period. The petition further states that, because it relates to the 

stringency of the final standards, this objection is of central relevance. 

2.12.2 EPA Response

The EPA responded to the public comments received on this issue in Section V.C 

(Control Technology Assumptions for the Floor and Beyond-the-Floor) of the preamble to the 

final CISWI standards (76 FR 15728 -15732), and the additional explanation provided in 

response to comments to support the EPA’s proposed decisions regarding selection of beyondthe floor standards does not warrant re-opening of this issue for reconsideration. See 

International Fabricare Institute v. EPA, 972 F.2d 384, 399 (D.C. Cir. 1992) (notice and 

comment is not intended to result in “interminable back-and-forth”) and Community Nutrition 

Institute v. Block, 749 F.2d 50, 58 (D.C. Cir. 1984) (agency is not required to provide additional 

opportunity to comment on its response to comments). For these reasons, we are denying 

reconsideration of this issue. 

2.13 Compliance Cost for Small Remote Incinerators 

A petition to reconsider this issue was submitted by AOGA. 

2.13.1 Overview of Petition Arguments 

The petition states that the compliance burden for SRI owners, which is likely 

underestimated, is disproportionate considering the emissions reduction benefits. The petition 

asserts that the magnitude of the burden the CISWI rule imposes on SRI owners, together with 

the dearth of realistic waste management alternatives for these companies, compels 

reconsideration of the SRI emission standards. 

2.13.2 EPA Response
24 

The EPA disagrees with the petitioner’s assertions. The preamble to the proposed rule 

provided sufficient explanation of the EPA’s cost analyses of control options for SRIs, and the 

EPA acknowledged that most facilities with SRIs would choose to cease operations before the 

compliance date of the CISWI rule. (See 75 FR 31956, 31958). The information contained in the 

proposal preamble was more than sufficient for members of the public to comment on the EPA’s 

compliance costs for SRIs. Indeed, the petitioner submitted comments regarding the EPA’s cost 

and environmental impacts estimates developed for SRIs. See p. 1264 of the February 2011 

response-to-comment document 

at:http://www.epa.gov/ttn/atw/129/ciwi/ciswi_rtc_022011_master.pdf). As noted in the preamble 

to the final rule (76 FR 15730), EPA considered comments on climactic factors and costs 

associated with the SRI subcategory. In fact, we adjusted the cost estimates for alternative 

disposal options to reflect the additional costs encountered by units within this subcategory 

should they decide to further segregate wastes or to send waste to a landfill instead of using an 

SRI. Therefore, the petitioner has failed to demonstrate that it was impracticable to raise its 

objections to the EPA’s compliance costs analyses for SRIs during the public comment period 

for the proposed rule. Furthermore, this issue is not of central relevance to the final CISWI 

standards because costs are only considered in standards that are established at beyond the floor 

levels and the EPA did not establish any limits at beyond the floor levels for SRIs. For these 

reasons, the EPA is denying reconsideration of this issue. 

2.14 Wildlife Concerns for Small Remote Incinerators 

The following organizations submitted petitions for reconsideration of this issue: 

• AOGA 

• American Petroleum Institute (API)/National Petrochemical and Refiners 

Association (NPRA) 

2.14.1 Overview of Petition Arguments 

AOGA 

The petition states that the EPA has an obligation under section 7 of the Endangered 

Species Act (ESA) to consult with the U.S. Fish and Wildlife Service before authorizing, funding 
25 

or carrying out an action that “may affect” species listed as threatened or endangered under the 

ESA. The petition also states that the EPA violated the ESA by adopting the emissions standards 

for SRIs without first consulting the U.S. Fish and Wildlife Service. The petition notes that the 

high compliance costs of the emissions standards for SRIs will likely force the shutdown of these 

incinerators in favor of transporting waste to off-site landfills. The petition states that this shift in 

disposal methods will likely result in short-term storage of waste which will attract wildlife (e.g., 

bears, foxes, ravens, gulls) and alter behavioral and predation patterns. Consequently, the 

petition states that the EPA must withdraw the emissions standards for SRIs or suspend their 

application until the EPA completes consultation with the U.S. Fish and Wildlife Service. 

API/NPRA 

The petition states that the emissions standards for SRIs may result in the shutdown of 

garbage and trash incinerators in remote locations and garbage and trash being flown by small 

airplanes or lifted by helicopter or barged from remote sites. According to the petition, wastes 

may be stockpiled until they reach levels that are economically feasible to transport, and these 

stockpiles will attract animals and increase the number of unsafe human/wildlife interactions. 

The petition says that potential impacts on wildlife protected under the ESA result in additional 

complexity. 

2.14.2 EPA Response

This issue was raised in public comments submitted in response to the proposed CISWI 

rule published on June 4, 2010 (75 FR 31938). In a challenge to the NESHAP for primary copper 

smelters, the D.C. Circuit held that the ESA does not apply to the MACT standard setting 

process under CAA section 112(d). Sierra Club V. EPA, 353 F.3d 976, 992 (D.C. Cir. 2004). 

While that case concerned standards under section 112, the standard setting structure for section 

129 is substantially similar to the provisions of section 112 such that the same approach is 

appropriate. Specifically, both section 112 and 129 require the EPA to establish technology 

based standards based on MACT and then conduct a residual risk review of the standards within 

8 years of promulgating the MACT standards. See section 112(f) and section 129(h)(3) (directing 

the Agency to promulgate standards under section 112(f) if required under that section). The 

petitioners did not demonstrate that it was impracticable to comment on this issue during the 
26 

public comment period. In addition, this comment is not of central relevance to the final CISWI 

standards because the Agency does not consider ESA issues when establishing technology-based 

MACT standards under section 129. For these reasons, the EPA is denying reconsideration. 

2.15. “Refinery Gas” Definition Should Be Included in the CISWI Rule 

The following organizations submitted petitions for reconsideration of this issue: 

• API/NPRA

2.15.1 Overview of Petition Arguments 

The petition states that a definition of refinery gas needs to be included or referenced in 

the NHSM and CISWI rules. According to the petition, the definition of “traditional fuels” in the 

NHSM rule includes refinery gas. However, the petition states that refinery gas is not defined 

and is open to considerable interpretation. The petition recommends that the EPA use of the 

definition from the Boiler/Process Heater major source rule (i.e., Refinery gas means any gas that 

is generated at a petroleum refinery and is combusted. Refinery gas includes natural gas when 

the natural gas is combined and combusted in any proportion with a gas generated at a refinery. 

Refinery gas includes gases generated from other facilities when that gas is combined and 

combusted in any proportion with gas generated at a refinery.) 

2.15.2 EPA Response 

The EPA is denying reconsideration of this issue because the petitioner failed to 

demonstrate that it was impracticable for them to comment during the public comment period. 

The EPA received numerous public comments related to the definitions contained in the 

proposed CISWI rule on June 4, 2010 (75 FR 31938) which demonstrates that the public had 

ample opportunity to, and did, comment on the definitions proposed in the CISWI proposal. In 

addition, the petitioner has not demonstrated why the inclusion of the definition of refinery gas is 

of central relevance to the CISWI rule. By the petitioners own account, the NHSM rule states 

that refinery gas is not a solid waste and, as such, a source combusting refinery gas would not be 

a solid waste incineration unit subject to CISWI. For these reasons, the EPA is denying 

reconsideration of this issue. 
27 

2.16 Clarify That Construction and Demolition Wood is Not a Solid Waste

A Petition to reconsider this issue was submitted by Waste Management. 

2.16.1 Overview of Petition Arguments 

The Petition objects to the suggestion that certain types of construction and demolition 

wood, after they are processed in the manner required by industry and the recycling market, may 

constitute a solid waste. The petition states that such materials are sorted for contaminants and 

segregated from other materials, and managed as a valuable commodity (i.e., a legitimate fuel 

product). The petition states that the EPA acknowledges that construction and demolition wood 

may contain de minimis amounts of contaminants and other materials provided it meets the 

legitimacy criterion for contaminant levels. The petition supports EPA’s conclusion in this 

regard; however, the petition asserts that the EPA’s failure to specify an acceptable range of de 

minimis contaminants or other materials creates a risk for units burning this material that CISWI 

may apply. According to the petition, to reduce the risk of potentially regulated facilities and to 

protect the viability of the recycling market in general, the petition states that the EPA must 

clarify a uniform set of criteria under which construction and demolition wood will be 

considered a fuel, rather than a solid waste. 

2.16.2 EPA Response 

 The definition of “solid waste materials” is being addressed by the Administrator under 

the Resource Conservation and Recovery Act (RCRA) in the concurrent Non-hazardous Solid 

Waste Definition Rulemaking. Consequently, consideration of this issue is beyond the scope of 

this action.