1

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 petiti ons for reconsideration
received on the final commercial and industrial solid was te incineration (CISWI) unit standards published in the Federal Register on March 21, 2011 (76 FR 15704). Se ction 1 provides the background for the CISWI standards and the petitions. Secti on 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 r esponds 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 volunt ary remand of the December 1, 2000 rule,. Following issuance of the final CISW I 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 reconsider ation and on December 23, 2011 (76 FR 80452), granted reconsideration of certain issues, and pr oposed 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 addr essed 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.com2

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 CA A section 307(d)(7)(B).Specifically, on these issues, the petitions have failed to show the fol lowing: that it was impracticable to raise their objections during the comment period or that the groun ds for their objections arose after the close of the comment period, and that their reconsidera tion 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 obje ction to a rule or procedure which was raised with reasonable specificity during the per iod 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 impracticabl e to raise such objection within such time or if the grounds for such objection arose after th e period for public comment (but within the time specified for judicial review) and if such objec tion is of central relevance to the outcome of the rule, the Administrator shall convene a proceedi ng for reconsideration of the rule and provide the same procedural rights as would have been afforde d had the information been available at the time the rule was proposed. If the Ad ministrator refuses to convene such a proceeding, such person may seek review of such refusal in t he United States court of appeals for the appropriate circuit (as provided in subsection (b)).”3

As to the first procedural criterion for reconsideration , a petitioner must show why the issue could not have been presented during the comment perio d, either because it was impracticable to raise the issue during that time or beca use 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 th e outcome of the rule only if it provides substantial support for the argument that the promulgated regul ation should be revised. For example, see the EPA’s Denial of the Petitions to Rec onsider the Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202 o f the Clean Air Act , 75 FR 49561 (August 13, 2010). For additional discussion of the standard fo r reconsideration under CAA section 307(d)(7)(B), also see 75 FR 49556, 49560-49563 (August 13, 2010), and t he 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/Shutd owns and Malfunctions The following organizations submitted petitions for reconsi deration of this issue:

• Alaska Oil and Gas Association (AOGA)

• American Chemistry Council (ACC)

• American Forest and Paper Association (AFPA) Coalitio n

• Council of Industrial Boiler Owners (CIBO)

2.1.1 Overview of Petition Arguments
AOGA The petition states that the affirmative defense esta blished by EPA that facility owners may assert to excuse exceedance of an emission limit r esulting from a malfunction is not sufficient to address malfunctions under operating cond itions like those that prevail in rural
Alaska. 1 The petition says that it would be difficult for a fa cility to satisfy the criteria spelled out for assertion of the affirmative defense provided in Alas ka where the fuel supply is highly

1 The EPA did take additional comment on the inclusion of t he 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 t he affirmative defense, we have included this information s imply to provide context to the petitioners’ request for w ork practice standards during malfunction periods.4

variable and harsh operating conditions cause a higher inc idence of malfunctions than in the lower 48 states. The petition contends that a regulator y 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 implementati on of expensive engineering solutions to prevent recurrence of environmentally insignificant malf unctions. 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 sugges ting 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 dist illate oil during periods of startup and shutdown, it is technically feasible for these units to me et the emissions standards established for periods of normal operation during startup and shutdown perio ds. The petition states that this assumption is flawed for several reasons.

The petition contends that CISWI units that are burning fos sil fuels during startup and shutdown periods are no different than the combustion unit s 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 a nd 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 standa rds during startup and shutdown periods. The petition notes that these same technical li mitations apply to CISWI units during startup and shutdown periods and that the EPA failed to expla in in the preamble to the final CISWI standards why these units should be treated differen tly than major and area source
combustion units.

The petition also contends that there is no factual suppo rt for the contention that CISWI units can meet the emission standards during startup and shut down periods. The petition adds that the EPA did not address the evidence to the contrary provided by ACC in their comments.5

Finally, the petition states that when the CISWI emis sion 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 s ays that the EPA‘s assertion that CISWI sources could meet the emission limits during startup and sh utdown periods is unfounded and further disproved when comparing the stringency of the CISW I 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 emission s 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 st andards established for normal operations during startup and shutdown periods.

AFPA Coalition The petition states that the EPA should make accommodat ions 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 s tandards 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 e quipment, 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 petitio n suggests that EPA acknowledged in both rules that sources can alternate between being bo ilers and incinerators based on whether they burn “fuels” or “solid wastes.” The petition conte nds 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.

CIBO6

The petition states that malfunctions are in all mat erial respects the same as startup and shutdown periods and asks that EPA set work practice for t hese periods. The petition asserts that
there is no rational basis for the EPA to reach a diff erent conclusion for periods of malfunction and that the EPA should establish a work practice standa rd that requires pre-determined malfunction plans with practices and procedures for potent ial malfunctions and require reporting of any malfunctions.

2.1.2 EPA Response The EPA disagrees with the petitions. This issue of sett ing 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 CISW I 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) r equires MACT standards for, at a minimum, PM, SO 2 , HCl, NO X , CO, Pb, Cd, Hg, and PCDD/PCDF. Section 129 does not contain a work practice standard provision similar to tha t 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 requireme nts 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 an d Emissions Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators
, 74 FR 51368, 51395 (October 6, 2009).

Petitioner ACC raises several specific issues with th e 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 pro cess heaters and area source boilers, and with the Agency’s response to their comments on the pro posed 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 w as not feasible for CISWI units to7

comply with the final standards during periods of startup an d shutdown. The EPA disagrees. The proposed CISWI rule published on June 4, 2010 explained that EP A was setting standards at all times and that EPA was not setting work practice sta ndards. Indeed, the comments received on June 2010 proposed rule on the issue of setting work practi ce 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 co mmented 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 st andards 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 informa tion submitted by the petitioner on the proposed rule did not demonstrate that compliance during st artup 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 inc orporated into the standards. The
EPA maintains that the final rule contains sufficient v ariability.

2.2 Exempt or Revise Limits for Units Combusting de mini mis Amounts of Waste The following organizations submitted petitions for reconsi deration of this issue:

• Anthracite Region Independent Power Producers Associati on (ARIPPA)

• Edison Mission Energy

• JELD-WEN, Inc.

2.2.1 Overview of Petition Arguments
ARIPPA The petition states that the EPA should revise the fina l 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 a ppear to apply to each operating unit8

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 by products 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 o f secondary materials with trivial or nonexistent emissions impacts. The petition notes tha t, as issued, the final rule may negatively affect the petitioner’s ability to use certain renewabl e fuel sources, particularly wood packaging materials in its boiler operations. To reduce unnecessar y regulatory burdens that provide no benefits, the petition asserts that the EPA should pro vide a de minimis exemption from the CISWI rule for wood packaging and similar materials that w ould have limited or negligible impacts on emissions.

2.2.2 EPA Response This issue was raised in public comments submitted in respons e 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 th e public had ample opportunity to comment on this issue, and EPA responded to those commen ts. 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 re levance to the final CISWI standards, the EPA is denying reconsideration of this issue.9

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 AOG A.

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 oute r continental shelf (OCS). The petition said that the EPA’s response to public comments, that th e 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 E PA’s intent with regard to CISWI applicability to marine vessels and/or OCS sources should be clearly a rticulated in the CISWI rulemaking, thereby providing criteria to be used by regional offices a nd the opportunity for stakeholders to
comment on such criteria.

2.3.2 EPA Response This issue was contained in a public comment submitted in r esponse 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 do cument ( 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 t hat 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 t he public comment period, the EPA is denying reconsideration. Finally, to the extent there is any confusion as to wheth er 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 combustio n engine for transportation purposes or10

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 wo uld 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. Howeve r, 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 emi ssion 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 im plied that these ship-based units would be in the small remote incinerator (SRI) subc ategory, but the units described by the petitioner do not appear to meet the definition of that sub category 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 mo re than 25 miles driving distance from a municipal solid waste landfill such that they wo uld qualify for the small remote incinerator subcategory. The petitioner’s comments on th e 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 i s without merit. The petitioner did not provide emissions data to demonstrate that the emissions f rom 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 an d 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 Incinerato r Units11

A Petition to reconsider this issue was submitted by AP I/NPRA.

2.4.1 Overview of Petition Arguments The petition states that the EPA did not address portabl e 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 petiti on 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 comme nt on the applicability of the CISWI standards to portable incineration units during the public commen t period. In addition, the EPA’s basis and rationale for establishing the SRI subcategory w ere presented in the preamble to the proposed CISWI rule on June 4, 2010 (see 75 FR 31951). The EPA rec eived 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 iss ue.

2.5 Reduce Performance Testing Requirements to be More C onsistent with Requirements
of Other Rules The following organizations submitted petitions for reconsi deration of this issue:

• ACC

• CIBO

2.5.1 Overview of Petition Arguments
ACC12

The petition states that the stack testing frequency requ ired in the final CISWI standards is unreasonable, particularly for units with heat capacit ies less than 250 million British thermal units per hour (mmBtu/hr). The petition notes that severa l commenters requested that EPA reduce the test frequency. The petition further notes tha t the EPA disagreed with the commenters stating that, without recurring testing, the Agency would ha ve no way to know if parameter ranges remain viable.

The petition notes that, while EPA has made some improv ements in the testing provisions from the proposed to the final rule, the EPA should reco nsider 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 specifie d in the final CISWI standards is unreasonable and requests a reduced testing frequency, citing ot her MACT and NSPS standards and state performance testing requirements. For example , the petition notes that the Hazardous Waste Combustor MACT (Subpart EEE) requires a comprehensi ve performance test only once every 5 years and many MACT standards and NSPS standards on ly 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 C ISWI rule.

2.5.2 EPA Response This issue was raised in public comments submitted in respons e to the proposed CISWI rule published on June 4, 2010 (75 FR 31938). As noted by one of the pe titioners, 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 th e 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.13

2.6 Reconsider and Take Comment on the Elimination of Provision s 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 contai ned several provisions that allowed for some amount of missing data from CEMS, and t hat 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 recei ved public comments supporting the proposed CEMS data availability requirements from ACC and others. The petition expresses disappointment with the EPA’s re moval 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 petiti oner says that ACC and others would have focused their comments on why eliminating the CEMS missi ng data provisions was not a sound approach. The petition says that the EPA should provide pro per (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 par ticular 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 an d received comment on whether or not the final CISWI rule should require valid emission s 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 demo nstrate 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.14

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 contin uous 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 requi rement to substitute data below some threshold in certain conditions as the proposed rul e indicated. We believe that numerical allowances for missing data quickly become targets or exc uses, 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 in cluded provisions that would require the monitoring system to be operated and data to be collec ted at all required intervals at all times the affected source is operating except for periods of moni toring system malfunctions, repairs associated with monitoring system malfunctions, and requ ired monitoring system quality assurance or quality control activities (including, as appl icable, calibration checks and required zero and span adjustments). Further, data recorded during moni toring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or control activities may not be used in calcu lations used to report emissions or operating levels. A monitoring system malfunction is any s udden, infrequent, not reasonably preventable failure of the monitoring system to provide val id data. Monitoring system failures that are caused in part by poor maintenance or careless o peration are not malfunctions. All the data collected during all other periods must be used in asses sing 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 Arguments15

The petition states that the EPA failed to set emissi on 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 unde r 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 a lso 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 prop osal and as such it was “impracticable” to object to them during the public comment per iod within the meaning CAA Section 307(d)(7)(B). 42 U.S.C. Section 7607(d)(7)(B). The petit ion further states that, because EPA’s interpretation of Section 112(c)(6) underlies its re fusal to set emission standards for all the hazardous air pollutants that area source boilers em its, this objection is of central relevance.

2.7.2 EPA Response This issue was raised in public comments submitted in respons e to the proposed CISWI rule published on June 4, 2010 (75 FR 31938). The petitioner’s commen ts 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 th e final CISWI rule (76 FR 15717- 15718). The petitioner was able to comment on this issue and t he petitioner has not provided new
information or data obtained since the close of the com ment 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 reconsi deration of this issue:

• AFPA Coalition

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

• PCA16

2.8.1 Overview of Petition Arguments AFPA Coalition The petition states that the EPA’s revised methodology u sed to establish the MACT
floors for the final CISWI standards remains flawed. Acc ording to the commenter, the EPA’s rigid statistical approach has resulted in inconsistent, sometimes irrational, and economically challenging if not unachievable emission standards. The com menter stated that the EPA has a responsibility to obtain emissions data that represent t he actual range and variability of operating
conditions. The commenter also states that these st andards encourage practices counter to EPA’s own solid waste management and energy policies.

AISI/ACCCI The petition states that the MACT floors for the CIS WI standards are arbitrary and capricious and that EPA should reconsider its floor-sett ing methodology. The petition notes that it submitted public comments on the floor-setting methodol ogy in response to the proposed standards, but that the EPA generally used the same procedur es 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 comme nt during the public comment period. The EPA received numerous public comments submitted in respo nse 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 is sue 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 f or 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 provi de additional opportunity to comment on its response to comments).

The comments received on this issue demonstrate that th e public had ample opportunity to, and did, comment on this issue. Because the petitioner s 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 Predic tive 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 requ ires EPA to set floors reflecting the “average” emission level achieved by the best source s. According to the petition, setting floors that reflect an upper predictive limit (UPL) for t hose sources is unlawful. The petition asserts that, by claiming that it can use the UPL for a ll 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 v ariability 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 b etween sources except as stated in CAA section 112(d)(3) provides, by averaging the emission level s achieved by the sources in the top twelve percent.18

Moreover, the petition asserts that the EPA did not pr ovide an explanation for its assumption that sources’ actual emission levels will va ry to the full extent of the 99th percent UPL. The petition states that by its nature, a UPL pred icts 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. Th e 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, ope rator 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 s ource maintenance on emission levels. The petition states that doing so is just as unlawful an d arbitrary as setting floors that ignore the effects of cleaner fuel use; it results in floors tha t 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 E PA explicitly requested public comments on its methodology for develop MACT floo rs, including its methodology for accounting for variability. In response, EPA received c omments 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 F R 15722-15727). As noted in the preamble, the EPA may consider variability both in ident ifying 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 variabilit y 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 comm ent period that indicates this issue must be reconsidered. For these reasons, the EPA is denyi ng reconsideration.

2.10 MACT Floor Pollutant-By-Pollutant Approach Concerns19

The following organizations submitted petitions for reconsi deration of this issue:

• AISI

• AFPA Coalition

2.10.1 Overview of Petition Arguments
AISI The petition states that, unless the EPA reconsiders i ts MACT floor-setting methodology for the CISWI rule, the MACT floors for this rule wi ll remain arbitrary and capricious. The petition notes that it submitted comments on the propose d CISWI standards that expressed concern with the EPA’s floor-setting methodology, inc luding the EPA’s approach of “cherry picking” the best data in setting the standard on a pollut ant-by-pollutant basis without regard for the sources from which the data were obtained. The petiti on notes that the EPA generally used the same basic approach and steps in setting the MACT fl oors 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 sel ect best performing unit(s), especially considering the fact that EPA’s database demon strates 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-polluta nt issue because the petitioners failed to demonstrate that it was impracticabl e 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 flo ors in the proposed CISWI rule published on June 4, 2010 (75 FR 31938). Indeed, one of the petitione rs acknowledged submitting comments on this issue in their petition for r econsideration (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 the20

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 respo nded to these
comments in the final rule. As the D.C. Circuit rec ognized 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, whic h 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 “inte rminable 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 t hat 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 regard ing its treatment of nondetect data in the final rule appear to conflict. According to the pet ition, at one point, the agency states that it “[r]evised the nondetect methodology to calculate emissi on 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 thre e times the MDL was greater than the floor,
“we concluded that the calculated MACT floor emission l imit does not account entirely for measurement variability” and used a number equal to three t imes 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 peti tion 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 so urce 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 e missions would be 50 percent higher than the reported detection limit. The petition conten ds 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 substit uted a figure that does not reflect
the actual emissions of any source within the category.

Finally, the petition states that the EPA cannot justif y 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 utilize d lower detection limits; those sources demonstrate the feasibility of measuring emissions at lo wer levels. The petition also notes that the standards specified detection methods that should have aknown 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 mo nitoring requirements that accommodate any imprecision associated with measurement . Or, the petition suggested that EPA could utilize a safety factor. The petition contends tha t the EPA cannot, however, simply manipulate the limits according to standards that appear n owhere 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 treat ment 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 citati ons were extracted from the preamble for the final CISWI rules (76 FR 15704), the first citation note d by the petitioner (76 FR 15713) is a summary bullet taken from the list of significant cha nges made to the CISWI standards since proposal. The purpose of this bullet was to provide a brief overview of the rule revisions related22

to the treatment of nondetect data rather than to provi de a complete description of the change. The second citation noted by the petitioner (76 FR 15728) is ta ken 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 respo nse to the EPA’s proposed treatment of nondetect data. Indeed, the petition er submitted comments on this issue (see pp. 657 of the February 2011 response-to-comment documen t 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 prea mble to the final CISWI standards (76 FR 15727-15728). The comments received on this issue demonstrate th at the public had ample opportunity to, and did, comment on this issue, and the petiti oner has not provided new data that became available after the close of the public comment pe riod to support their request that EPA reconsider this issue. Additionally, some further expla nation from the EPA in response to comments to support the treatment of nondetect data does n ot 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 “inte rminable 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 t o 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 comment er states that the common theme in EPA’s arguments is that because sources are likely to install certain control technologies to meet the23

floor standards and the EPA does not believe that additio nal controls are feasible or costeffective, beyond-the-floor standards reflecting the em ission 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 “impracti cable” 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 ce ntral relevance.

2.12.2 EPA Response The EPA responded to the public comments received on this is sue in Section V.C (Control Technology Assumptions for the Floor and Beyo nd-the-Floor) of the preamble to the final CISWI standards (76 FR 15728 -15732), and the additional explan ation 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 iss ue 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 provi de 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 emissi ons reduction benefits. The petition asserts that the magnitude of the burden the CISWI rule i mposes 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 Response24

The EPA disagrees with the petitioner’s assertions. Th e preamble to the proposed rule provided sufficient explanation of the EPA’s cost analy ses of control options for SRIs, and the EPA acknowledged that most facilities with SRIs would ch oose 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 submit ted 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 cl imactic factors and costs associated with the SRI subcategory. In fact, we adjus ted the cost estimates for alternative disposal options to reflect the additional costs encounter ed 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 tha t are established at beyond the floor levels and the EPA did not establish any limits at beyo nd 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 reconsi deration of this issue:

• AOGA

• American Petroleum Institute (API)/National Petrochemi cal 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 Wi ldlife Service before authorizing, funding25

or carrying out an action that “may affect” species li sted as threatened or endangered under the ESA. The petition also states that the EPA violated th e ESA by adopting the emissions standards for SRIs without first consulting the U.S. Fish and W ildlife Service. The petition notes that the high compliance costs of the emissions standards for SRI s 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 sto rage of waste which will attract wildlife (e.g., bears, foxes, ravens, gulls) and alter behavioral and pre dation patterns. Consequently, the petition states that the EPA must withdraw the emissio ns standards for SRIs or suspend their application until the EPA completes consultation wit h 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 gar bage 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 econ omically feasible to transport, and these stockpiles will attract animals and increase the number o f unsafe human/wildlife interactions. The petition says that potential impacts on wildlife prot ected under the ESA result in additional complexity.

2.14.2 EPA Response This issue was raised in public comments submitted in respons e to the proposed CISWI rule published on June 4, 2010 (75 FR 31938). In a challenge to the N ESHAP for primary copper smelters, the D.C. Circuit held that the ESA does not a pply 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 r isk 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 the26

public comment period. In addition, this comment is not o f 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 CI SWI Rule The following organizations submitted petitions for reconsi deration of this issue:

• API/NPRA

2.15.1 Overview of Petition Arguments The petition states that a definition of refinery gas n eeds to be included or referenced in the NHSM and CISWI rules. According to the petition, th e definition of “traditional fuels” in the NHSM rule includes refinery gas. However, the petition s tates 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. Re finery gas includes natural gas when the natural gas is combined and combusted in any proportion w ith a gas generated at a refinery. Refinery gas includes gases generated from other faciliti es 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 comme nt during the public comment period. The EPA received numerous public comments related to the de finitions 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 pr oposed in the CISWI proposal. In addition, the petitioner has not demonstrated why the inclusi on of the definition of refinery gas is of central relevance to the CISWI rule. By the petit ioners own account, the NHSM rule states that refinery gas is not a solid waste and, as such, a s ource 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 Soli d Waste A Petition to reconsider this issue was submitted by Was te Management.

2.16.1 Overview of Petition Arguments The Petition objects to the suggestion that certain type s of construction and demolition wood, after they are processed in the manner required by indus try 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 th at construction and demolition wood may contain de minimis amounts of contaminants and oth er materials provided it meets the legitimacy criterion for contaminant levels. The peti tion supports EPA’s conclusion in this regard; however, the petition asserts that the EPA’s fa ilure to specify an acceptable range of de
minimis contaminants or other materials creates a ris k for units burning this material that CISWI may apply. According to the petition, to reduce the risk o f potentially regulated facilities and to protect the viability of the recycling market in general, th e petition states that the EPA must clarify a uniform set of criteria under which construct ion 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 addre ssed 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.