Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste, 9111-9213 [2012-31632]

Download as PDF Vol. 78 Thursday, No. 26 February 7, 2013 Part II Environmental Protection Agency mstockstill on DSK4VPTVN1PROD with RULES2 40 CFR Parts 60 and 241 Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste; Final Rule VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\07FER2.SGM 07FER2 9112 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60 and 241 [EPA–HQ–OAR–2003–0119 and EPA–HQ– RCRA 2008–0329; FRL–9764–1] RIN 2060–AR15 and 2050–AG44 Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; NonHazardous Secondary Materials That Are Solid Waste Environmental Protection Agency. ACTION: Final rule; notice of final action on reconsideration. AGENCY: This action sets forth the EPA’s final decision on the issues for which it granted reconsideration in December 2011, which pertain to certain aspects of the March 21, 2011, final rule titled ‘‘Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units’’ (CISWI rule). This action also includes our final decision to deny the requests for reconsideration with respect to all issues raised in the petitions for reconsideration of the final commercial and industrial solid waste incineration rule for which we did not grant reconsideration. Among other things, this final action establishes effective dates for the standards and makes technical corrections to the final rule to clarify definitions, references, applicability and compliance issues. In addition, the EPA is issuing final amendments to the regulations that were codified by the Non-Hazardous Secondary Materials rule (NHSM rule). Originally promulgated on March 21, 2011, the non-hazardous secondary materials rule provides the standards and procedures for identifying whether non-hazardous secondary materials are solid waste under the Resource Conservation and Recovery Act when used as fuels or ingredients in combustion units. The purpose of these amendments is to clarify several provisions in order to implement the non-hazardous secondary materials rule as the agency originally intended. DATES: The May 18, 2011 (76 FR 28662), delay of the effective date amending subparts CCCC and DDDD at 76 FR 15703 (March 21, 2011) is lifted February 7, 2013. The amendments in this rule to 40 CFR part 60, subpart DDDD, are effective February 7, 2013, and to 40 CFR part 60, subpart CCCC, are effective August 7, 2013. The amendments in this rule to 40 CFR part mstockstill on DSK4VPTVN1PROD with RULES2 SUMMARY: VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 241 are effective April 8, 2013. The incorporation by reference of certain publications listed in that rule is effective February 7, 2013. ADDRESSES: The EPA established a single docket under Docket ID Number EPA–HQ–OAR–2003–0119 for this action on the commercial and industrial solid waste incineration rule. The EPA also established a single docket under Docket ID Number EPA–HQ–RCRA– 2008–0329 for this action on the nonhazardous secondary materials rule. All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in https:// www.regulations.gov or in hard copy at the EPA Docket Center, EPA West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744 and the telephone number for the Docket Center is (202) 566–1742. FOR FURTHER INFORMATION CONTACT: For further information regarding the commercial and industrial solid waste incineration reconsideration and final amendments, contact Ms. Toni Jones, Fuels and Incineration Group, Sector Policies and Programs Division (E143– 05), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541– 0316; fax number: (919) 541–3470; email address: jones.toni@epa.gov, or Ms. Amy Hambrick, Fuels and Incineration Group, Sector Policies and Programs Division (E143–05), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541– 0964; fax number: (919) 541–3470; email address: hambrick.amy@epa.gov. For further information regarding the Non-Hazardous Secondary Materials final rule, contact Mr. George Faison, Program Implementation and Information Division, Office of Resource Conservation and Recovery, 5303P, Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue NW., Washington, DC 20460– 0002; telephone number: 703–305–7652; fax number: 703–308–0509; email address: faison.george@epa.gov. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 I. Organization of This Document The following outline is provided to aid in locating information in this preamble. I. Organization of This Document A. Supplementary Information B. Does this action apply to me? C. Where can I get a copy of this document? D. Judicial Review E. Executive Summary II. CISWI Reconsideration and Final Rule A. Background Information 1. What is the history of the CISWI standards? 2. How is the definition of solid waste addressed in the final CISWI rule? 3. What is the relationship between this rule and other combustion rules? 4. What is the response to the vacatur of effective dates? B. Summary of This Final Rule 1. Subcategories of Affected Units and Emission Standards 2. Fuel Switching Provisions 3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment Units, Laboratory Analysis Units and Space Heaters 4. Affirmative Defense for Malfunction Events 5. Oxygen Correction Requirements and CO Monitoring Requirements 6. Full-load Stack Test Requirement for CO Coupled With Continuous O2 Monitoring 7. Non-detect Methodology Using Three Times the Detection Level 8. Definitions for Foundry Sand Thermal Reclamation Unit and Chemical Recovery Unit 9. Definition of Contained Gaseous Material 10. Parametric Monitoring Provisions for Additional Control Device Types 11. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-burning Kilns 12. Revised Definition of Waste-burning Kiln 13. Revised Definition of Solid Waste 14. Compliance Dates 15. Revised New Source Performance Standards C. Summary of Significant Changes Since Proposal 1. Revision of the Subcategories 2. Revisions to the Monitoring Requirements 3. Oxygen Monitoring Requirements 4. Removal of the Definition of Homogeneous Waste 5. Non-detect Methodology Using Three Times the Detection Level 6. Parametric Monitoring for Additional Control Device Types 7. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-burning Kilns 8. Compliance Dates 9. Definition of Waste-burning Kiln 10. Exemption for Other Solid Waste Incineration (OSWI) Units D. Technical Corrections and Clarifications E. Major Public Comments and Responses F. What other actions are we taking? E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations G. What are the impacts associated with the amendments? 1. What are the primary air impacts? 2. What are the water and solid waste impacts? 3. What are the energy impacts? 4. What are the secondary air impacts? 5. What are the cost and economic impacts? 6. What are the benefits? III. NHSM Final Revisions A. Statutory Authority B. NHSM Rule History C. Introduction—Summary of Regulations Being Finalized 1. Revised Definitions a. Clean Cellulosic Biomass b. Contaminants c. Established Tire Collection Programs d. Resinated Wood 2. Contaminant Legitimacy Criterion for NHSM Used as Fuels 3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels a. Scrap Tires b. Resinated Wood c. Coal Refuse d. Pulp and Paper Sludge 4. Rulemaking Petition Process for Other Categorical Non-Waste Determinations (40 CFR 241.4(b)) 5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition Process 6. Revised Introductory Text for 40 CFR 241.3(a) D. Comments on the Proposed Rule and Rationale for Final Decisions 1. Revised Definitions a. Clean Cellulosic Biomass b. Contaminants c. Established Tire Collection Programs 2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels a. General Comments on the Revised Contaminant Legitimacy Criterion b. Grouping of Contaminants c. Meaning of Designed to Burn d. Contaminant Comparisons Allowed 3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels a. Scrap Tires b. Resinated Wood 4. Rulemaking Petition Process for Other Categorical Non-Waste Determinations (40 CFR 241.4(b)) 5. Materials for Which Additional Information was Requested a. Pulp and Paper Sludge b. Coal Refuse c. Manure d. Other Materials for Which Additional Information was Not Requested 6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition Process 7. Revised Introductory Text for 40 CFR 241.3(a) E. Cost and Benefits of the Final Rule IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act A. Supplementary Information Acronyms and Abbreviations. The following acronyms and abbreviations are used in this document. ACI activated carbon injection AF&PA American Forest & Paper Association ANPRM Advanced Notice of Proposed Rulemaking ANSI American National Standards Institute APA Administrative Procedure Act ARIPPA Anthracite Region Independent Power Producers Association ASME American Society of Mechanical Engineers AST activated sludge treatment ASTM American Society for Testing and Materials ATCM Air Toxic Control Measure Btu British thermal unit CAA Clean Air Act CARB California Air Resources Board CBI Confidential Business Information CCA chromated copper arsenate Cd cadmium C&D construction & demolition CDX Central Data Exchange CFB circulating fluidized bed CEMS continuous emissions monitoring systems CERCLA Comprehensive Environmental Response, Compensation, and Liability Act CFR Code of Federal Regulations CISWI Commercial and Industrial Solid Waste Incineration CO carbon monoxide CO2 carbon dioxide Catalyst carbon monoxide oxidation catalyst Cl2 chlorine gas CPMS continuous parametric monitoring system CWA Clean Water Act D/F dioxin/furan dscm dry standard cubic meter DSW Definition of Solid Waste EG emission guidelines EJ Environmental Justice EOM extractable organic matter EPA U.S. Environmental Protection Agency ERT Electronic Reporting Tool ERU energy recovery unit ESP electrostatic precipitator FF fabric filters PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 9113 FR Federal Register HAP hazardous air pollutants HCl hydrogen chloride HF hydrogen fluoride Hg mercury HMI hospital, medical and infectious HMIWI Hospital, Medical and Infectious Waste Incineration ICR Information Collection Request Lb pound LML lowest measured level Mg milligram Mn manganese MACT maximum achievable control technology MDL method detection level mg/dscm milligrams per dry standard cubic meter mmBtu/hr million British thermal units per hour MSW Municipal Solid Waste MW megawatts MWC Municipal Waste Combustor NAAQS National Ambient Air Quality Standards NAICS North American Industrial Classification System NCASI National Council on Air and Stream Improvement ND nondetect NESHAP National Emission Standards for Hazardous Air Pollutants ng/dscm nanograms per dry standard cubic meter NHSM non-hazardous secondary material(s) NIST National Institute of Standards and Technology NOX nitrogen oxides NSPS New Source Performance Standards NTTAA National Technology Transfer and Advancement Act OAQPS Office of Air Quality Planning and Standards OMB Office of Management and Budget OSWI Other Solid Waste Incineration OSWER Office of Solid Waste and Emergency Response O2 Oxygen PAH polycyclic aromatic hydrocarbons Pb lead PCBs polychlorinated biphenyls PCDD polychlorinated dibenzodioxins PCDF polychlorinated dibenzofurans PIC product of incomplete combustion PM particulate matter POM polycyclic organic matter ppm parts per million ppmv parts per million by volume ppmvd parts per million by dry volume PQL practical quantitation limit PRA Paper Reduction Act PS Performance Specification lb/MMBtu pound per million British thermal units RCRA Resource Conservation and Recovery Act RDL reported detection level RFA Regulatory Flexibility Act RIA Regulatory Impact Analysis RIN Regulatory Information Number RTO regenerative thermal oxidizer RTR residual risk and technology review SBA Small Business Administration SBREFA Small Business Regulatory Enforcement Fairness Act E:\FR\FM\07FER2.SGM 07FER2 9114 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations SISNOSE Significant Economic Impact on a Substantial Number of Small Entities SMCRA Surface Mining Control and Reclamation Act of 1977 SNCR selective noncatalytic reduction SO2 sulfur dioxide SSI Sewage Sludge Incineration SSM startup, shutdown and malfunction SVOC Semi-Volatile Organic Compound SWDA Solid Waste Disposal Act TBtu tera British thermal unit TEOM Tapered Element Oscillating Microbalance TEQ Toxic Equivalency Category Any industrial or commercial facility using a solid waste incinerator. mstockstill on DSK4VPTVN1PROD with RULES2 Any facility or entity generating a non hazardous secondary material that may be burned for fuel or destruction 2. The Court U.S. Court of Appeals for the District of Columbia Circuit TMB Total Mass Basis TOX Total Organic Halogens tpy tons per year TSM Total Selected Metal TTN Technology Transfer Network UCL upper confidence limit ug/dscm micrograms per dry standard cubic meter UMRA Unfunded Mandates Reform Act UL upper limit UPL upper prediction limit U.S.C. United States Code NAICS 1 Code USGS United States Geological Survey VCS Voluntary Consensus Standards VOC volatile organic compound WWW Worldwide Web B. Does this action apply to me? Categories and entities potentially affected by this action are those that operate CISWI units and those that generate potentially affected NHSMs. The NSPS and EG, hereinafter referred to as ‘‘standards,’’ for CISWI affect the following categories of sources: Examples of potentially regulated entities 211, 212, 486 Oil and Gas Extraction, mining (except oil and gas); Pipeline Transportation 221 321, 322, 337 325, 326 327 333, 336 423, 44 111 Utilities Wood Product Manufacturing, Paper Manufacturing, Furniture and Related Product Manufacturing Chemical Manufacturing, Plastics and Rubber Products Manufacturing Nonmetallic Mineral Product Manufacturing, Machinery Manufacturing, Transportation Equipment Manufacturing Merchant Wholesalers, Durable Goods, Retail Trade Crop Production 112 113 115 211 212 221 236 311 312 313 316 321 322 324 325 326 327 331 332 333 334 336 337 339 423 424 44–45 486 493 511 531 541 611 622 623 624 713930 721 722 813 92 Animal Production Forestry and Logging Support Activities for Agriculture and Forestry Oil and Gas Extraction Mining (except oil and gas) Utilities Construction of Buildings Food Manufacturing Beverage and Tobacco Product Manufacturing Textile Mills Leather and Allied Product Manufacturing Wood Product Manufacturing Paper Manufacturing Petroleum and Coal Products Manufacturing Chemical Manufacturing Plastics and Rubber Products Manufacturing NonMetallic Mineral Product Manufacturing Primary Metal Manufacturing Fabricated Metal Product Manufacturing Machinery Manufacturing Computer and Electronic Product Manufacturing Transportation Equipment Manufacturing Furniture and Related Product Manufacturing Miscellaneous Manufacturing Merchant Wholesalers, Durable Goods Merchant Wholesalers, Nondurable Goods Retail Trade (all categories, including non-store retailers, vending and direct sellers) Pipeline Transportation Warehousing and Storage Publishing Industries (except internet) Real Estate Professional, Scientific and Technical Services Educational Services Hospitals Nursing and Residential Care Facilities Social Assistance Boating Clubs with Marinas Accommodation Food Services and Drinking Places Religious, Grantmaking, Civic, Professional and Similar Organizations Public Administration 1 North American Industry Classification System. that some of these NAICS may overlap with institutional facility types where incinerators are regulated by the Other Solid Waste Incinerators (OSWI) emission guidelines and NSPS. 2 Note VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20004. Note, under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements. Resource Conservation and Recovery Act sections of the rule would be subject to judicial review under RCRA. C. Where can I get a copy of this document? The docket number for the action regarding the CISWI NSPS (40 CFR part 60, subpart CCCC) and EG (40 CFR part 60, subpart DDDD) is Docket ID Number EPA–HQ–OAR–2003–0119. Worldwide Web. In addition to being available in the docket, an electronic copy of the final action is available on the WWW through the TTN Web site. Following signature, the EPA posted a copy of the final action on the TTN’s policy and guidance page for newly proposed or promulgated rules at https://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. mstockstill on DSK4VPTVN1PROD with RULES2 This table is not intended to be exhaustive but rather provides a guide for readers regarding entities likely to be affected by the final action. To determine whether your facility would be affected by the final action, you should examine the applicability criteria in 40 CFR 60.2010 of subpart CCCC, 40 CFR 60.2505 of subpart DDDD, and 40 CFR 241. If you have any questions regarding the applicability of the final action to a particular entity, contact the persons listed in the preceding FOR FURTHER INFORMATION CONTACT section. Purpose of the Regulatory Action The EPA is promulgating final rules that establish standards for new and existing CISWI units. Section 129 of the CAA, titled ‘‘Solid Waste Combustion,’’ requires the EPA to develop and adopt standards for commercial and industrial solid waste incineration units pursuant to CAA sections 111 and 129. This final rule makes certain revisions to the final ‘‘Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units,’’ 76 FR 15704 (March 21, 2011), based on the issues proposed for reconsideration issues (76 FR 40582) and in response to public comments on the proposed CISWI reconsideration rule. On May 18, 2011, the EPA issued a notice that delayed the effective dates of the March 21, 2011, CISWI rule (the ‘‘Delay Notice’’). 76 FR 28662 (May 18, 2011). As the result of that action, the 2000 CISWI rule remained in effect. The Court vacated the Delay Notice in January 2012. However, because the Delay Notice delayed the effectiveness of the CISWI rule from May 2011 through vacatur of that notice in January 2012, the revisions to the 2000 CISWI rule that were finalized in the 2011 CISWI rule were never codified in the CFR, but instead appear as notes after the corresponding provisions of the 2000 CISWI rule in the CFR. Although the issues on reconsideration were limited in the December 2011 CISWI reconsideration proposal, we had to include in that proposed reconsideration rule all of the regulatory changes that had been made since the 2000 rule because the 2011 CISWI rule was not codified in the CFR. Specifically, we included in the December 23, 2011, proposed reconsideration rule all of the regulatory changes the EPA had made to the 2000 CISWI rule in the 2011 CISWI rule, as well as the changes to the 2011 CISWI rule that the EPA proposed to make on reconsideration. In response to the D. Judicial Review Under the CAA section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in The Court April 8, 2013. Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. This section also provides a mechanism for us to convene a proceeding for reconsideration, ‘‘[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule.’’ Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 20004, with a copy to the persons listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 E. Executive Summary PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 9115 Court’s vacatur of the Delay Notice in January 2012, this final action lifts the delay of effectiveness so that the CFR can be revised to properly reflect the revisions to the 2000 CISWI rule that were finalized in the 2011 CISWI rule. This final action also contains regulatory text that amends the 2011 CISWI rule to address the reconsideration. Therefore, this final rule’s amendatory language differs from that of the December 2011 reconsideration proposal as it amends the 2011 CISWI rule instead of the 2000 CISWI rule. This change to the amendatory baseline in no way alters our limitation of the issues for comment for which we granted reconsideration. We have provided in the CISWI docket a redline/strikeout file of the 2000 CISWI rule to help implementing agencies and affected sources to identify the sum total of the revisions made to the 2000 CISWI rule through today’s final notice pursuant to the 2011 CISWI rule and this final action. Summary of Major Provisions for the Final Reconsideration Rule In general, the final rule establishes revised numeric emission limits for some new and existing CISWI units for certain of the nine pollutants listed in section 129(a)(4) of the CAA.1 The EPA established or revised standards for four subcategories of CISWI units in the 2011 CISWI rule: incinerators; small remote incinerators; ERUs; and waste-burning kilns. The 2011 CISWI rule also included two subcategories of ERUs. In this final rule, we have further subcategorized ERUs and subcategorized waste-burning kilns based on design type differences. Thus, the final rule includes three subcategories of ERUs and separate CO limits for two subcategories of wasteburning kilns. We have further revised some of the CISWI limits proposed in the reconsideration notice in response to comments on CO span methodology and because we incorporated additional data, including new data submitted during the comment period. These changes primarily affect the ERU and waste-burning kiln subcategories but also affect some of the limits in each of the four subcategories. To ensure compliance with the emission limits, this final rule establishes stack testing and continuous monitoring requirements. The rule allows sources to use CEMS if an owner 1 The nine pollutants for which we must issue emission standards under section 129 are: PM, SO2, HCl, NOX, CO, Pb, Cd, Hg, D/F. CAA section 129(a)(4). E:\FR\FM\07FER2.SGM 07FER2 9116 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations or operator chooses to do so. Continuous parameters and emissions levels (if used) are measured as either a 3-hour block or a 30-day rolling average basis, depending on the parameter being measured and the subcategory of CISWI. Since sources may choose to cease or start combusting solid waste at any time due to market conditions or for other reasons, the final rule contains provisions that specify the steps necessary for sources to switch applicability between this final rule and other applicable emission standards issued pursuant to CAA section 112. This rule also contains revisions to some of the monitoring, recordkeeping and reporting requirements. The date existing sources must comply with the final CISWI rule depends primarily on state plan approval but may be no later than the date 5 years after publication of this final rule in the Federal Register. For new sources, the effective date is either August 7, 2013, or the date of startup of the source, whichever is later. New sources are defined as sources that began construction on or after June 4, 2010, or commenced reconstruction or modification after August 7, 2013. Costs and Benefits The final rule affects 106 existing sources located at 76 facilities. The EPA projects an additional incinerator and five additional small remote incinerators to be subject to this rule over the next 5 years. This final rule applies to facilities in multiple sectors of our economy including small entities. Table 1 of this preamble summarizes the costs and benefits associated with this final rule. Note, these are the costs and benefits of the final 2011 CISWI rule as amended by today’s final rule and replace the costs and benefits presented in the March 2011 final rule. For comparison, the 2011 final rule, at a 7 percent discount rate, had costs of $218 million and monetized benefits of $320 to $790 million (2008 dollars). (However, because the February 2011 RIA did not incorporate the final engineering costs and emission reductions estimates, it reported costs of $280 million and monetized benefits of $310 to $750 million (2008 dollars)).A more detailed discussion of the costs and benefits of this final rule is provided in section II.G of this preamble. TABLE 1—SUMMARY OF THE MONETIZED BENEFITS, SOCIAL COSTS AND NET BENEFITS FOR THE FINAL CISWI NSPS AND EG IN 2015 [Millions of 2008$]1 3 Percent discount rate Total Monetized Benefits2 ............................................................................................................... Total Social Costs3 .......................................................................................................................... Net Benefits ..................................................................................................................................... Non-monetized Benefits .................................................................................................................. $420 to $1,000 $258 $160 to $770 7 Percent discount rate $380 to $930 $258 $120 to $670 Health effects from exposure to HAP 780 tons of HCl, 2.5 tons of lead, 1.8 tons of Cd, 680 pounds of Hg, and 58 grams of dioxins/ furans). Health effects from exposure to criteria pollutants (20,000 tons of CO2 6,300 tons of SO2, 5,400 tons of NO2, and secondary formation of ozone). Ecosystem effects. Visibility impairment. 1 All estimates are for the implementation year (2015) and are rounded to two significant figures. These results reflect the lowest cost disposal assumption. 2 The total monetized benefits reflect the human health benefits associated with reducing exposure to PM 2.5 through reductions of PM2.5 precursors such as directly emitted particles, SO2, and NOX. It is important to note that the monetized benefits include many but not all health effects associated with PM2.5 exposure. Monetized benefits are shown as a range from Pope, et al. (2002) to Laden, et al. (2006). These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to allow differentiation of effect estimates by particle type. 3 The methodology used to estimate social costs for 1 year in the multimarket model using surplus changes results in the same social costs for both discount rates. II. CISWI Reconsideration and Final Rule A. Background Information mstockstill on DSK4VPTVN1PROD with RULES2 1. What is the history of the CISWI standards? On December 1, 2000, the EPA promulgated NSPS and EG for CISWI units (60 FR 75338), hereinafter referred to as the 2000 CISWI rule. On January 30, 2001, the Sierra Club filed a petition for review in the Court challenging the EPA’s final CISWI rule. On August 17, 2001, the EPA granted a Request for Reconsideration, pursuant to CAA section 307(d)(7)(B), submitted on behalf of the National Wildlife VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 Federation and the Louisiana Environmental Action Network, related to the definition of ‘‘commercial and industrial solid waste incineration unit’’ and ‘‘commercial or industrial waste’’ in the 2000 CISWI rule. In granting the petition for reconsideration, the EPA agreed to undertake further notice and comment proceedings related to these definitions. On September 6, 2001, the Court entered an order granting the EPA’s motion for a voluntary remand of the CISWI rule, without vacatur. The EPA requested a voluntary remand of the final CISWI rule to address concerns related to the EPA’s procedures for establishing MACT floors for CISWI PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 units in light of the Court’s decision in Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (DC Cir. 2001)(Cement Kiln). Neither the EPA’s granting of the petition for reconsideration, nor the Court’s order granting a voluntary remand, stayed, vacated or otherwise influenced the effectiveness of the 2000 CISWI rule. Therefore, the remand order had no effect on the effectiveness of the 2000 CISWI rule. On February 17, 2004, the EPA published a proposed rule (CISWI Definitions Rule) soliciting comments on the definitions of ‘‘solid waste,’’ ‘‘commercial and industrial waste,’’ and ‘‘commercial and industrial solid waste E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations incineration unit.’’ On September 22, 2005, the EPA published in the Federal Register the final rule reflecting our decisions with respect to the CISWI Definitions Rule. The rule was challenged and, on June 8, 2007, the Court vacated and remanded the CISWI Definitions Rule. In vacating the rule, the Court found that CAA section 129 unambiguously includes among the incineration units subject to its standards, any facility that combusts any solid waste material, subject to four statutory exceptions. While the Court vacated the CISWI Definitions Rule, the 2000 CISWI rule remained in effect. On March 21, 2011, the EPA promulgated revised NSPS and EG for CISWI units (76 FR 15704)(2011 CISWI rule). That action constituted a partial response to the voluntary remand of the 2000 CISWI rule and to the 2007 vacatur and remand of the CISWI Definitions Rule. In addition, the EPA addressed the 5-year technology review that is required under CAA section 129(a)(5). On the same day, the EPA issued a notice that it intended to reconsider certain aspects of the 2011 CISWI rule that warrant further opportunity for public comment (76 FR 15266). Following promulgation of the 2011 CISWI rule, the EPA received petitions for reconsideration from the following organizations (‘‘Petitioners’’): Alaska Oil and Gas Association/Alaska Miners Association/ConocoPhillips (AOGA), American Chemistry Council (ACC), American Foundry Society (AFS), American Iron and Steel Institute (AISI) and American Coke and Coal Chemicals Institute (ACCCI), Anthracite Region Independent Power Producers Association (ARIPPA), American Petroleum Institute (API) and National Petrochemical and Refiners Association (NPRA), Auto Industry Forum (AIF), Citizens Energy Group (CEG), Council of Industrial Boiler Owners (CIBO), Earthjustice/Sierra Club, Edison Mission Energy, Hovensa L.L.C. and Tesoro Hawaii Corp., Industry Coalition (AF&PA et al.), JELD–WEN Inc., Portland Cement Association (PCA), Renovar Energy Corp., and Waste Management Inc. (WM). Copies of these petitions are provided in the docket (see Docket ID Number EPA–HQ–OAR– 2003–0119). Petitioners, pursuant to CAA section 307(d)(7)(B), requested that the EPA reconsider numerous provisions in the 2011 CISWI rule. On May 18, 2011, the EPA issued a notice to postpone the effective dates of the March 21, 2011, final CISWI rule. This notice also requested that the public submit additional data and information to the EPA by July 15, 2011, VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 for review and consideration in the reconsideration proceedings. On December 23, 2011, the EPA published a proposed rule soliciting comment on the issues on which the EPA was granting reconsideration. In March 2011, the EPA had publically stated its intent to reconsider some of these issues. 76 FR 15266. The EPA limited comment in the December 23, 2011, proposed rule to the specific issues on which it was granting reconsideration which included the following: • Revising the subcategories and emission limits for ERUs and wasteburning kilns to reflect updated inventories and additional data. • Establishing limitations on fuel switching provisions. • Definitions of cyclonic burn barrels, burn-off ovens, soil treatment units, laboratory analysis units and space heaters from CISWI subcategories. • Providing an affirmative defense for malfunction events. • Revisions to the CO monitoring requirements. • Establishing a full-load stack test requirement for CO coupled with continuous O2 (trim) monitoring. • Establishing a definition of ‘‘homogeneous waste.’’ • Responding to comments on the 2011 CISWI rule regarding the use of fuel variability in emission limit calculations. • Responding to comments on the 2011 CISWI rule regarding the review of D/F data and non-detect methodology using three times the detection level. • Responding to comments on the 2011 CISWI rule regarding providing an option for sources to use emissions averaging to demonstrate compliance. • Establishing a definition for foundry sand thermal reclamation unit. • Reinstating the definition of contained gaseous material. • Revising the definition of chemical recovery unit. • Allowing for the use of feed stream analysis or other supplemental information to demonstrate compliance. • Responding to comments on the 2011 CISWI rule regarding providing percent reduction alternative standards. • Providing parametric monitoring provisions for additional control device types. • Revisions to the continuous monitoring provisions for large ERUs. • Extending effective dates. • Technical corrections and clarifications. 2. How is the definition of solid waste addressed in the final CISWI rule? The RCRA definition of solid waste is integral in defining the CISWI source PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 9117 category. The EPA defines NHSMs that are solid waste under RCRA in the final ‘‘Identification of Non-Hazardous Secondary Materials That Are Solid Waste’’ Rulemaking. In an action parallel to the March 21, 2011, final CISWI rule, the EPA promulgated a final rule that identifies whether NHSMs are or are not solid waste when used as fuels or ingredients in combustion units. That action, hereinafter referred to as the ‘‘2011 NHSM final rule,’’ is relevant to the final CISWI rule because some ERUs and waste-burning kilns combust, in their combustion units, secondary materials that are solid waste under the 2011 NHSM final rule. Commercial and industrial units that combust solid waste are subject to standards issued pursuant to CAA section 129, rather than to standards issued pursuant to CAA section 112 that would otherwise be applicable to such units (e.g., units that would be boilers, process heaters or cement kilns if they were not combusting solid waste). 3. What is the relationship between this rule and other combustion rules? These amendments address the combustion of solid waste materials (as defined by the Administrator under RCRA in the NHSM Definition rule) in combustion units at commercial and industrial facilities. If an owner or operator of a CISWI unit permanently ceases combusting solid waste, the affected unit would no longer be subject to the CISWI rule because the unit would not be a solid waste incineration unit subject to standards under CAA section 129. Standards issued pursuant to section 112 of the CAA may apply to CISWI units that cease combusting solid waste. For example, CAA section 112 standards applicable to boilers and process heaters at major sources and boilers at area sources would apply to boilers and process heaters that cease combusting solid waste. Boilers and process heaters that are located at commercial and industrial facilities and that combust solid waste are subject to CISWI as ERUs. The EPA has also finalized the CAA section 112 standards for the Portland Cement Manufacturing Industry (75 FR 21136, September 9, 2010). Cement kilns combusting solid waste are waste-burning kilns subject to CISWI, not the otherwise applicable CAA section 112 standards. 4. What is the response to the vacatur of effective dates? On January 9, 2012, the Court vacated the May 18, 2011, Delay Notice, which delayed the effective dates of the 2011 CISWI rule. On February 7, 2012, the EPA issued a no action assurance letter E:\FR\FM\07FER2.SGM 07FER2 9118 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations regarding certain notification deadlines in the March 2011 CISWI rule. The EPA has conducted outreach to each EPA Regional Office and it has not found any new CISWI units that commenced construction since the proposed CISWI rule was published on June 10, 2010. The CAA defines a ‘‘new source,’’ in part, as any source that commences construction after the publication date of proposed CAA section 111 and 129 standards2 CAA section 129(g)(2). Based on our outreach efforts, we do not believe there are any CISWI units that are in noncompliance with the NSPS contained in the final 2011 CISWI rule. As explained above, today’s final rule amendatory text reflects changes to the 2011 CISWI rule, not the 2000 CISWI rule as in the reconsideration proposal notice. We have provided in the CISWI docket a redline/strikeout file of the 2000 CISWI rule to help implementing agencies and affected sources to identify the sum total of the revisions made to the 2000 CISWI rule pursuant to the 2011 CISWI rule and this final action. B. Summary of This Final Rule As stated above, the December 23, 2011, proposed rule addressed specific issues and provisions the EPA identified for reconsideration. This summary of the final rule reflects the agency’s final action in regards to those provisions identified for reconsideration and on other discrete matters identified in response to comments or data received during the comment period. Information on other provisions and issues not proposed for reconsideration is contained in the notice and record for the 2011 CISWI rule. 76 FR 15704 (March 21, 2011). 1. Subcategories of Affected Units and Emission Standards This final rule defines a CISWI unit, in part, as any combustion unit at a commercial or industrial facility that is used to combust solid waste (as defined under RCRA)(40 CFR 60.2265 (NSPS) and 60.2875 (EG)). We have established standards in this final rule for the following four subcategories of CISWI units: Incinerators (i.e., units designed to burn discarded waste materials for the purpose of disposal); small, remote incinerators; ERUs (i.e., units that would be boilers or process heaters if they did not combust solid waste); and waste burning kilns (i.e., units that would be cement kilns if they did not combust solid waste). We have further subcategorized ERUs into three subcategories and waste burning kilns into two subcategories for CO emission limits only. Changes to the subcategories made since proposal are discussed below in section II.C of this preamble: ‘‘Summary of Significant Changes Since Proposal.’’ The final rule emission limits for new and existing sources in the solid-fuel burning ERU subcategory and the wasteburning kilns subcategories were revised based on changes to the inventories for those subcategories as discussed below in section II.C of this preamble: ‘‘Summary of Significant Changes Since Proposal.’’ Tables 2 and 3 of this preamble present the final emission limits for all subcategories for existing and new sources, respectively. TABLE 2—COMPARISON OF EXISTING SOURCE MACT FLOOR LIMITS FOR 2000 CISWI RULE AND THE FINAL MACT FLOOR LIMITS Pollutant (units) a CISWI Subcategories Incinerators (2000 CISWI limit) Incinerators HCl (ppmv) .................. 62 29 CO (ppmv) ................... 157 17 Pb (mg/dscm) .............. 0.04 0.015 Cd (mg/dscm) .............. 0.004 0.0026 Hg (mg/dscm) .............. 0.47 0.0048 PM, filterable (mg/ dscm). Dioxin, furans, total (ng/dscm). Dioxin, furans, TEQ (ng/dscm). NOX (ppmv) ................. 70 34 (no limit) 4.6 0.41 0.13 388 53 20 11 SO2 (ppmv) ................. ERUs—Liquid/ Gas ERUs—Solids b 14 0.20 (biomass units)/13 (coal units). 260 (biomass units)/95 (coal units). b 3.0 Small, remote incinerators ............................ 300 64 0.096 110 (long kilns)/790 (preheater/ precalciner). 0.014 b ........................ 2.1 0.023 0.0014 b ...................... 0.95 b 0.0024 0.011 b ........................ 0.0053 110 4.6 ............................... 270 b 2.9 1.3 ............................... 4,400 b 0.32 0.075 b ........................ 180 76 630 .............................. 190 720 600 .............................. 150 35 0.014b (biomass units)/ 0.14 b (coal units). 0.0014 b (biomass units)/ 0.0095 (coal units). 0.0022 (biomass units)/ 0.016 (coal units). 11 (biomass units)/160 (coal units). 0.52 b (biomass units)/ 5.1 b (coal units). 0.12 (biomass units)/ 0.075 b (coal units). 290 (biomass units)/ 340 (coal units). 7.3 (biomass units)/650 (coal units). Waste-burning kilns a All emission limits are expressed as concentrations corrected to 7 percent O2. the memorandum in the CISWI docket ‘‘CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule’’ for details on this calculation. mstockstill on DSK4VPTVN1PROD with RULES2 b See 2 The date for determining whether a source is a ‘‘new’’ source is the publication date of the VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 proposed standards. The final rule and reconsideration proposal contained a typographical PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 error in 40 CFR 60.2015(a)(1) that did not specify the June 4, 2010, proposal date. E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9119 TABLE 3—COMPARISON OF NEW SOURCE MACT FLOOR LIMITS FOR 2000 CISWI RULE AND THE FINAL MACT FLOOR LIMITS Final CISWI subcategories Pollutant (units) a Incinerators (2000 limit) Incinerators HCl (ppmv) .................. 62 0.091 CO (ppmv) ................... 157 17 Pb (mg/dscm) .............. 0.04 b 0.015 Cd (mg/dscm) .............. 0.004 0.0023 Hg (mg/dscm) .............. 0.47 b 0.00084 PM, filterable (mg/ dscm). Dioxin, furans, total (ng/dscm). Dioxin, furans, TEQ (ng/dscm). NOX (ppmv) ................. 70 18 (no limit) b 0.58 0.41 0.13 388 23 20 c 11 SO2 (ppmv) ................. ERUs—Liquid/ Gas ERUs—Solids c0.20 Waste-burning kilns Small, remote incinerators (biomass units)/13 (coal units). 240 (biomass units)/95 (coal units). b 14 3.0 b ............................ 200 35 13 0.014 b (biomass units)/ 0.14 b (coal units). 0.0014 c (biomass units)/ 0.0095 (coal units). 0.0022 c (biomass units)/ 0.016(coal units). 5.1 (biomass units)/160 (coal units). 0.52 b (biomass units)/ 5.1 b (coal units). 0.076 b (biomass units)/ 0.075 b (coal units). 290 c (biomass units)/ 340 (coal units). 7.3 c (biomass units)/650 (coal units). 0.096 90 (long kilns)/190 (preheater/ precalciner). 0.014 b ........................ 2.0 0.023 0.0014 b ...................... 0.67 d 0.00056 0.0037b ....................... 0.0035 110 2.2 ............................... c 270 (no limit) 0.51 b .......................... 1,800 d 0.093 0.075 b ........................ 31 76 200 b ........................... 170 720 28 ................................ 1.2 a All emission limits are measured at 7 percent O2. the memorandum ‘‘CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule’’ for details on this calculation. c The NSPS limit equals the EG limit. The EG limit was selected as the NSPS limit. d D/F TEQ and Hg limits for ERUs—liquid/gas were replaced with D/F TEQ limits for liquid fuel major source boilers. See ‘‘CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule’’ for details. e SO limits for Waste-burning kilns were replaced with SO limits for Portland Cement NSPS kilns. See ‘‘CISWI Emission Limit Calculations 2 2 for Existing and New Sources for the Reconsideration Final Rule’’ for details. mstockstill on DSK4VPTVN1PROD with RULES2 b See 2. Fuel Switching Provisions The EPA is finalizing the proposed fuel switching provisions that address the situation where CISWI units cease combusting solid waste, and where existing commercial and industrial combustion units begin combusting solid waste (40 CFR 60.2330 for existing units and 40 CFR 60.2710 for new units). Units that cease combusting solid waste remain subject to CISWI for at least 6 months after solid waste is last added to the combustion chamber. After 6 months, sources must either comply with any applicable section 112 standard or, if they intend to combust solid waste in the future, opt to remain subject to CISWI and continue to comply with the applicable provisions. Combustion units located at commercial or industrial facilities that begin combusting solid waste are solid waste incineration units on the date they begin combusting solid waste. Existing units that begin combusting solid waste within 6 months of the effective date of the CISWI EG must comply with the standards on the effective date of those standards. Existing units that begin combusting solid waste after the effective date of the CISWI EG must comply with those standards at the time the unit begins combusting solid waste. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment Units, Laboratory Analysis Units and Space Heaters We are finalizing the proposed definitions for cyclonic burn barrels, burn-off ovens, soil treatment units, and laboratory analysis units. We have revised the proposed definition for space heaters to clarify applicability for units that meet the requirements of 40 CFR part 279. The final definitions describe the types of units and state that these different types of units are not incinerators, small remote incinerators, ERUs, or waste burning kilns. The EPA is including these definitions in the final rule to differentiate these units from the units for which the agency established standards in the 2011 CISWI rule and this final action. 4. Affirmative Defense for Malfunction Events The EPA is retaining in the final rule the proposed affirmative defense to civil penalties for malfunction events. The EPA first included an affirmative defense in the 2011 final rule in an attempt to balance a tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 the most diligent of efforts, emission standards may be violated under circumstances beyond the control of the source. This final reconsideration attempts to add clarification to the affirmative defense by revising some of the regulatory provisions that specify the elements that are necessary to establish this affirmative defense as proposed—with minor changes from proposal described later in this section. Sources are required to comply with the CISWI standards at all times, and the EPA recognizes that even equipment that is properly designed and maintained can sometimes fail and that such failure may cause an exceedance of the relevant standard. The EPA must establish emission standards that ‘‘limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.’’ 42 U.S.C. 7602(k) (defining ‘‘emission limitation and emission standard’’). See generally Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008.) The affirmative defense for malfunction events meets this requirement by ensuring that even where there is a malfunction, the emission standard is still enforceable through injunctive relief. See generally, Luminant Generation Co. v. EPA, 2012 U.S. App. LEXIS 15722 (5th Cir. 2012) E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9120 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations (upholding EPA’s approval of affirmative defense provisions in a CAA State Implementation Plan). While ‘‘continuous’’ standards, on the one hand, are required, there is also case law indicating that in many situations it is appropriate for the EPA to account for the practical realities of technology. For example, in Essex Chemical v. Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973), the D.C. Circuit acknowledged that in setting standards under CAA section 111 ‘‘variant provisions’’ such as provisions allowing for upsets during startup, shutdown and equipment malfunction ‘‘appear necessary to preserve the reasonableness of the standards as a whole and that the record does not support the ‘never to be exceeded’ standard currently in force.’’ See also, Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973). Though intervening case law such as Sierra Club v. EPA and the CAA 1977 amendments call into question the relevance of these cases today, they support the EPA’s view that a system that incorporates some level of flexibility is reasonable. The affirmative defense provisions allow sources to avoid civil penalties for exceedances caused by a malfunction event if the source demonstrates by a preponderance of the evidence that the malfunction event meets the definition of malfunction in 40 CFR 60.2. By incorporating an affirmative defense, the EPA has formalized its approach to upset events beyond the control of the source. In a Clean Water Act setting, the Ninth Circuit required this type of formalized approach when regulating ‘‘upsets beyond the control of the permit holder.’’ Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272–73 (9th Cir. 1977). See also, Mont. Sulphur & Chem. Co. v. United States EPA, 2012 U.S. App. LEXIS 1056 (Jan 19, 2012) (rejecting industry argument that reliance on the affirmative defense was not adequate). But see, Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057–58 (D.C. Cir. 1978) (holding that an informal approach is adequate). The affirmative defense provisions give the EPA the flexibility to both ensure that its emission standards are ‘‘continuous’’ as required by 42 U.S.C. 7602(k), and account for unplanned upsets and thus support the reasonableness of the standard as a whole. In addition, the affirmative defense provisions are designed to ensure that steps are taken to correct the malfunction, minimize emissions during the malfunction, and prevent future malfunctions. We are promulgating revisions to the affirmative defense provisions in section 60.2120 and 60.2685 as described at VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 proposal (76 FR 80461) and making some minor additional revisions. The terms ‘‘exceedance’’ and ‘‘excess emissions’’ and ‘‘applicable emission limitations were being exceeded’’ were replaced with the term ‘‘violation’’ to more accurately reflect that the affirmative defense is only available when there has been a violation of the standard. The phrase ‘‘emission limit’’ was changed to ‘‘emission standards’’ to reflect that the affirmative defense could be applicable to certain work practice standards. The word ‘‘however’’ was removed to incorporate more plain language into the regulation. The term ‘‘notification’’ was changed to ‘‘reporting’’ to reflect that the root cause analysis required under affirmative defense would be submitted with other periodic reporting. The term ‘‘and monitoring’’ was deleted because monitoring malfunctions are defined differently than malfunctions of process and control units and the affirmative defense is intended to apply to malfunctions to affected units that cause a failure to meet an emission standard. In multiple instances the word ‘‘were’’ was changed to ‘‘was’’ to improve the clarity of a provision. The term ‘‘facility’’ was changed to ‘‘affected source’’ to clarify that the affected source regulated by the rule must be operated in a manner consistent with good practices for minimizing emissions versus the entire facility. The phrase ‘‘off shift and overtime labor were used, to the extent practicable to make these repairs’’ was removed. The EPA no longer believes the language concerning the use of off-shift and overtime labor is necessary because the regulation requires that to establish the affirmative defense the owner must prove by a preponderance of the evidence that repairs were made as expeditiously as possible when a violation occurs. Although we believe that use of off-shift or overtime labor could be cited as evidence that the owner or operator expedited repairs, we do not believe this level of detail is necessary in the regulatory text. The written report required when asserting an affirmative defense was changed from a separate ‘‘semiannual’’ report to a report that is submitted with the first periodic compliance, deviation report, or excess emission report due after the event. Lastly, the requirement to notify the Administrator by telephone or facsimile within two business days’’ was removed when we refined the affirmative defense reporting requirements based upon comments received. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 5. Oxygen Correction Requirements and CO Monitoring Requirements We are finalizing provisions for calculating the 30-day CO rolling average that allow uncorrected CEMS reading to be used during the period of operation from a cold start to bring the combustion unit up to minimal normal operating temperature. We are also allowing uncorrected CEMS readings to be used in 30-day average calculations for the period of operation following the last waste material (or material feed for waste burning kilns) being fed to the combustion unit during shutdown procedures of the unit. For every type of CISWI unit except waste-burning kilns, the period of time allowed for uncorrected CEMS data during a startup shall be 48 hours or less per startup event and shall be 24 hours or less for each shutdown event. For wasteburning kilns, the period of startup begins when the kiln’s induced draft fan is turned on and fuel is being combusted and continues until continuous feed is introduced into the kiln, at which time the kiln is in normal operating mode. Shutdown begins when feed to the kiln is halted. Sources must indicate in the CEMS data records which CEMS data are obtained during the startup and shutdown periods. Since the O2 correction calculation will affect all corrected CEMS data, we have expanded these provisions in the final rule to allow for uncorrected CEMS data for any pollutant that sources elect to measure continuously with CEMS and calculate 30-day rolling averages to demonstrate continuous compliance. Additionally, we have finalized removal of continuous CO monitoring requirements for new and existing ERU units. We are instead requiring annual CO stack tests and continuous O2 monitoring and we are allowing CO monitoring with CEMS as a compliance alternative. We have also removed the continuous CO monitoring requirements for new CISWI units in the other subcategories, but sources may demonstrate compliance using CO CEMS if they so choose. The authority to use uncorrected CEMS data during startup and shutdowns discussed above applies to all CISWI sources that elect to demonstrate compliance with any emission limits with a CEMS instead of performing annual stack tests. Changes to the CO and other optional CEMS monitoring requirements made since proposal are discussed below in Section II.C of this preamble: ‘‘Summary of Significant Changes Since Proposal.’’ E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 6. Full-Load Stack Test Requirement for CO Coupled With Continuous O2 Monitoring We are finalizing the full-load stack test and continuous O2 monitoring provisions in today’s action that allow existing sources to use their current O2 analyzer and O2 trim systems to demonstrate continuous compliance. Based on comments received, we have made some clarifying changes to these provisions to be clear that existing O2 trim systems and O2 monitors may be used to demonstrate continuous compliance, as well as clarifications on establishing the operating limits for O2 content. Changes to the continuous O2 monitoring requirements made since proposal are discussed below in section II.C of this preamble: ‘‘Summary of Significant Changes Since Proposal.’’ 7. Non-Detect Methodology Using Three Times the Detection Level Since proposal, the EPA continued its review of sampling volumes and detection levels across various emission testing ICR efforts on various combustion sources to encompass additional pollutants measured using EPA Reference Method 29 (See memorandum ‘‘Updated data and procedure for handling below detection level data in analyzing various pollutant emissions databases for MACT and RTR emissions limits’’ in the CISWI docket). As a result of this analysis, we have determined recommended values for three times the RDL that may be used as a minimum emission limit value that can be accurately measured by most laboratories for Cd and Pb.3 Furthermore, based on comments on our application of this non-detect methodology approach to CO data measured using instrument methods, we have made some modifications to the span calculation approach used in the proposed rule. Changes to the emission limits for Cd, Pb and the span adjustment calculations for CO made since proposal are discussed below in section II.C of this preamble: ‘‘Summary of Significant Changes Since Proposal.’’ mstockstill on DSK4VPTVN1PROD with RULES2 8. Definitions for Foundry Sand Thermal Reclamation Unit and Chemical Recovery Unit We are finalizing the proposed definitions of ‘‘foundry sand thermal reclamation unit’’ and ‘‘chemical recovery unit’’ to clarify that these units are not incinerators, waste-burning kilns, ERUs or small, remote 3 The RDL methodology is consistent with the RDL methodology outlined in the December 2011 reconsideration proposal. 76 FR 80463. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 incinerators under subparts CCCC or DDDD. 9. Definition of Contained Gaseous Material In today’s final rule, we have reintroduced and finalized the definition for ‘‘contained gaseous material’’ as found in the 2000 CISWI rule as proposed. As discussed earlier, the Court’s vacatur of the Delay Notice now requires this definition to be reintroduced since we are now amending the 2011 CISWI rule instead of making amendments to the 2000 CISWI rule as when we published the December 2011 reconsideration proposal. 10. Parametric Monitoring Provisions for Additional Control Device Types In the proposed rule, we requested comment on whether there were additional control device types that we should identify monitoring provisions for in the rule. We received comments on this topic and, in today’s final rule, are including monitoring provisions for sorbent injection rate for dry scrubber control devices (40 CFR 60.2165 and 40 CR 60.2730). We have also clarified that sources that elect to use optional CEMS to monitor continuous compliance for Hg, D/Fs or NO2 may do so as a substitute for parametric monitoring of ACI and SNCR control devices, respectively. Changes to the parametric monitoring provisions made since proposal are discussed below in section II.C of this preamble: ‘‘Summary of Significant Changes Since Proposal.’’ 11. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-Burning Kilns In today’s rule, we are finalizing some revisions to the monitoring requirements for ERUs with an annual average heat input rate greater than 250 MMBtu/hr and extending the same PM continuous monitoring provisions to waste-burning kilns. In the final 2011 CISWI rule, these units were required to monitor continuously for PM using a PM CEMS; however, the PM CEMS technology may not be sufficient to certify accurate monitor performance in the PM concentration range of the CISWI biomass ERU and waste-burning kiln limits. Therefore, we are requiring continuous PM parameter monitoring systems for these units similar to those being required for major industrial boilers and utility boilers. The EPA is further requiring that a site-specific parametric operating limit be established during the performance test, that there be continuous monitoring of that parametric limit using a PM CPMS, PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 9121 that four deviations within a 12-month operating period constitute a violation and trigger immediate corrective action and a Method 5 performance test within 30 days with an additional 15 days to reestablish a site-specific operating limit. We have revised all operating parameter averaging for ERU units to be on a 30-day rolling average and allowed the sorbent injection parameter to be adjusted for varying ERUs based on load. Changes to the PM continuous monitoring provisions and operating parameter provisions made since proposal are discussed below in section II.C of this preamble: ‘‘Summary of Significant Changes Since Proposal.’’ 12. Revised Definition of Waste-Burning Kiln This final rule includes a definition of waste-burning kiln that has been revised since the March 2011 CISWI Rule. This definition helps clarify the EPA’s intent regarding which types of Portland cement kilns are considered subject to CISWI standards and which kilns are subject to the Portland cement NESHAP. Since proposal, some additional language was added to this definition to further clarify our proposed definition. Changes to the definition of waste burning kiln made since proposal are discussed below in section II.C of this preamble: ‘‘Summary of Significant Changes Since Proposal.’’ 13. Revised Definition of Solid Waste In the March 21, 2011, final CISWI rule, we removed the definition of solid waste that was present in the 2000 CISWI Rule in light of the definition of solid waste in the final NHSM rule. Because applicability of section 129 hinges on sources combusting solid waste, we believe it is appropriate to include a definition of that term in the CISWI rule. For that reason, the final rule contains a definition of solid waste that refers to the final NHSM rule at 40 CFR 241.2. 14. Compliance Dates In the final rule, we are revising the compliance dates for new and existing CISWI units to reflect the effective dates of this final rule. The compliance date for existing sources depends primarily on state plan approval but may be no later than the date 5 years after publication of this final rule in the Federal Register. The EG are implemented through a state implementation plan or a federal plan. Under the final amendments to the EG, and consistent with the CAA section 129, revised state plans containing the revised existing source emission limits E:\FR\FM\07FER2.SGM 07FER2 9122 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations and other requirements in the final amendments are due within 1 year after promulgation of the final reconsideration amendments. States must submit revised state plans to the EPA by February 7, 2014. The EPA will revise the existing federal plan to incorporate any changes and other requirements that the EPA has promulgated. The federal plan applies to CISWI units in any state without an approved state plan. Additional discussion of the state plan implementation schedule can be found at 76 FR 15711. For new sources, the compliance date is either August 7, 2013 or the date of startup of the source, whichever is later. New sources are defined as sources that began construction on or after June 4, 2010, or commenced reconstruction or modification after August 7, 2013. 15. Revised New Source Performance Standards In the 2011 CISWI rule and the proposed reconsideration rule, EPA determined that the best controlled similar unit under section 129(a)(2) was not a solid waste incineration unit for certain new source standards. Specifically, the new source limits for certain pollutants from waste burning kilns and ERUs were based on cement kilns and boilers, respectively. See memorandum ‘‘CISWI Emission Limit Calculations for Existing and New Sources’’ in the CISWI docket. Both the industrial boiler NESHAP and the Portland cement NESHAP are being revised, and additional data has been incorporated into the new source MACT analyses for those rules. As a result of the new data and analyses, several of the new source NESHAP limits are being revised and EPA is changing the following new source limits in CISWI based on the revised limits in the NESHAPs: NOX for waste-burning kilns, and Hg and PCDD/PCDF for ERU-liquid/ gas units. C. Summary of Significant Changes Since Proposal mstockstill on DSK4VPTVN1PROD with RULES2 1. Revision of the Subcategories Energy Recovery Units In the final 2011 CISWI Rule, we established separate subcategories based on the types of fuels and wastes ERUs were designed to burn. Energy Recovery Units (e.g., units that would be boilers and process heaters but for that fact that they combust solid waste) designed to burn gaseous fuels and liquids that are solid waste were included in one primary subcategory and the other primary subcategory was for units designed to burn solid fuels or VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 predominantly non-coal solid materials. In the final 2011 CISWI rule, the solid fuel ERU subcategory was further divided into separate subcategories for coal and biomass units, with separate limits for CO, NOX and SO2 to account for significant differences in unit design for these two types of fuels and the impacts the different unit designs have on emissions of these pollutants. Because the public was not afforded an opportunity to comment on the revision to the ERU subcategory, we identified this as a reconsideration issue in the March 21, 2011, notice of intent to reconsider certain aspects of the 2011 CISWI Rule. Certain petitions for reconsideration supported the further subcategorization of the solid-fuel ERU subcategory and suggested that all nine emission limits should be divided between coal and biomass ERUs, instead of only having different limits for CO, NOX and SO2. We granted reconsideration of our subcategorization approach for ERUs and proposed to establish different emission limits for PM, Cd, Pb, and D/F between coal and biomass units, in addition to establishing different limits for CO, NOX and SO2. We also solicited comment on whether we should also subcategorize solid-fuel ERUs for HCl and Hg. Based on comments and information received during the comment period, we have determined that it is appropriate to subcategorize solid fuel ERUs for all nine CAA section 129 pollutants. We recognize that there are significant design and operational differences between biomass and coal ERU units that impact the generation of all nine regulated pollutants, and, for this reason, we are establishing separate emission standards for all nine pollutants from coal and biomass ERUs in this final rule. In addition, since issuing the proposed reconsideration CISWI rule, we have received comments and data which allowed us to update our inventory of ERUs. The inventory adjustments we made more accurately reflect the inventory of solid waste combustion units. Based on comments from the operator of the units, we removed three units from the final rule inventory of biomass ERUs that were determined to be non-waste burning units and we re-analyzed the emission limits for the solid-biomass ERU subcategory. The commenter explained that, although permitted to burn materials that would be considered solid waste, these units had ceased burning the materials in question several years ago and would not recommence burning these in the future. PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 Thus, at the time of testing, these units were not solid waste incineration units. We also received additional CO emissions data and re-analyzed the performance of the best-performing ERU in the solid-coal ERU subcategory. The emission limits in this final rule reflect the new inventory and emission data received; however, we have used the same methodology as in the 2011 CISWI rule and December 23, 2011, reconsideration proposal for establishing the emission limits. Waste-Burning Kilns Prior to the reconsideration proposal, the EPA performed an analysis of the materials being combusted in the entire inventory of Portland cement kilns in light of the final NHSM rule (See memorandum ‘‘Revised Floors without Kilns that Would have been CISWI Kilns Had the Solid Waste Definition Applied’’ in the CISWI docket). As a result of this analysis, we added 11 kilns to our inventory of waste-burning kilns. In addition to this, we further reviewed the Portland cement emissions test records and identified some additional test data for kilns that were added to the CISWI inventory following the March 21, 2011, final rule publication. This newly-identified data was extracted and compiled into the CISWI database, and then the MACT floor emission limits were re-calculated in the December 23, 2011, proposed rule to reflect the updated inventory and additional data. Following proposal, we were also notified of one additional waste-burning kiln and that one of the kilns in the inventory was not burning waste materials. We made these adjustments to our inventory, bringing the total waste-burning kiln inventory to 23 kilns. We recalculated the standards in this final rule to include all 23 waste burning kilns. As with the new ERU standards, we have used the same methodology to establish today’s emission limits as we used for the final 2011 CISWI rule. We have also retained the emissions concentration basis for the standards. However, Table 4 of this preamble presents the emission limits for PM, NOX, SO2 and Hg on a production basis for comparison. TABLE 4—WASTE-BURNING KILN EMISSION LIMITS EXPRESSED IN PRODUCTION BASIS Pollutant (units) Hg (lb/MM ton clinker) .. PM (lb/ton clinker) ........ NOX (lb/ton clinker) ...... E:\FR\FM\07FER2.SGM 07FER2 Existing kilns a 58 0.026 6.7 New kilns a 21 0.013 1.5 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations TABLE 4—WASTE-BURNING KILN EMIS- corrected CO concentrations inflated SION LIMITS EXPRESSED IN PRODUC- due to the 7 percent O2 correction. Petitioners and commenters presented TION BASIS—Continued data that show these corrected data points would have the potential to drive Pollutant (units) the 30-day rolling average values beyond the emission limit for the SO2 (lb/ton clinker) ....... 8.9 0.4 affected units, but this would not be an accurate reflection of the CO emissions. a Approximate. Petitioners suggested various Small Remote Incinerators approaches to remedy this situation, After the reconsideration proposal, we with one being to not require the 7 percent O2 correction requirement received additional information from during unit startup and shutdown for stakeholders of additional units in sources that demonstrate compliance operation and planned for operation with the CO limit using CEMS. In other within the next year or two that would words, the CEMS data as reported at qualify as small remote incinerators. stack gas concentration without O2 The resulting changes included moving correction would be included in the one unit from the small remote rolling average calculations for periods incinerator subcategory to the incinerator subcategory due to the unit’s when the combustion unit is either being started up or shutdown instead of proximity to a landfill in Alaska. An applying the O2 correction to that data additional 15 small remote incinerators before it is included in the calculation were added to our inventory of existing of the 30 day rolling average. During all units, bringing the total of this subcategory to 28 units. This additional other operating periods, the CEMS data would be corrected to a 7 percent O2 information resulted in changes to the concentration prior to calculating the emissions limits. rolling average. Stated otherwise, the 2. Revisions to the Monitoring data obtained during startup and Requirements shutdown, which will not include the 7 After the March 21, 2001 final rule, percent O2 correction, will be added to petitioners identified computational the O2 corrected data collected during issues for correcting CO concentration all other periods to calculate the 30-day measurements to 7 percent O2 for average that is used to determine periods when the O2 content of the flue continuous compliance with the gas approaches the ambient air O2 applicable CO limit for sources that content during startup and shutdown demonstrate compliance using CEMS. Prior to issuing the reconsideration periods for sources that demonstrate proposal, we received data for one unit compliance with the CO limit using in one subcategory (coal ERUs) that CEMS. The equation for the 7 percent indicated startups usually occur over a O2 correction is X ppm CO* (20.9¥7)/ 4-hour period and shutdowns occur (20.9¥%O2 of flue gas stream). As seen over a 1 hour period. Therefore, we by this equation, as the flue gas stream proposed provisions for calculating the O2 content gets closer to 20.9, the value 30-day CO rolling average that would of X is multiplied by an ever increasing allow the source to use CEMS data that factor. For example, when the stack gas does not include the O2 correction to be O2 content is 4 percent, the factor is used during the first 4 hours of 0.82. If the stack gas O2 content is 20 operation from a cold start and the 1 percent, the factor increases to 15.4. hour of operation following the last Therefore, a flue gas CO concentration waste material being fed to the reading of 100 ppm would be corrected combustion unit during shutdown to 82 ppm for a stack gas at 4 percent procedures of the unit. Since proposal, O2 content, but would become a 1,540 ppm corrected concentration for a stack however, we received comments on this provision, primarily pointing out that gas at 20 percent O2 content. In the longer periods are required to protect extreme, at a 20.8 percent stack gas combustion equipment from rapid concentration (i.e., approximating temperature swings, which could cause ambient air O2 content), the same 100 damage to the fireboxes or kiln surfaces. ppm measurement would be corrected Commenters also contended that the to 13,900 ppm. Petitioners noted that O2 contents limited information concerning the relatively close to ambient air often are startup and shutdown periods during maintained during combustion unit which the O2 correction would not be startup and shutdown in order to safely required did not reflect the needs for all operate the combustion unit. Therefore, combustor types or control device CO readings during these periods would configurations. We have therefore be multiplied by an uncharacteristically revised the shutdown and startup high correction factor, and the resulting period of operation to be more generally mstockstill on DSK4VPTVN1PROD with RULES2 Existing kilns a VerDate Mar<15>2010 18:01 Feb 06, 2013 New kilns a Jkt 229001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 9123 applicable to CISWI units. In the case of ERUs, incinerators and small remote incinerators, we determined that the startup period should include the times prior to the source reaching the minimal operating temperature, but in no case longer than 48 hours. For shutdown, we determined as at proposal that shutdown begins after the last waste has been fed to the combustor prior to shutdown but we have revised the final rule to indicate that the shutdown period may not exceed 24 hours. We have, therefore, specified in the final rule an UL of 48 hours for startup periods to use uncorrected CEMS data and 24 hours for shutdown periods to use uncorrected CEMS data for ERUs, incinerators and small remote incinerators. For waste-burning kilns, these periods are triggered off of material feed to the kiln rather than solely waste feed. This addresses the fact that kilns, unlike other CISWI units, are producing product rather than solely disposing of waste or recovering energy. Therefore, for waste-burning kilns, startup begins when the kiln’s induced fan is turned on and continues until continuous feed is introduced into the kiln at which time the kiln is in normal operating mode. Shutdown begins when feed to the kiln is halted. As at proposal, sources must indicate in the CEMS data records which CEMS data are uncorrected because they were obtained during the startup and shutdown period. The O2 correction issue described above for CO CEMS data collected during startup and shutdown applies equally to other pollutants measured with a CEMS that is corrected to 7 percent O2. The final CISWI rule allows sources to demonstrate compliance with any of the standards using CEMS, and, for this reason, we have expanded authorization to use uncorrected CEMS data during periods of startup and shutdown to all pollutants for which a source demonstrates compliance with CEMS. In the final rule, the 7 percent O2 correction is not required during startup and shutdowns for any CISWI sources that elect to demonstrate continuous compliance with any of the emission limits with a CEMS instead of stack tests. 3. Oxygen Monitoring Requirements At proposal, we included provisions and definitions in an attempt to ensure that sources would be able to use existing O2 monitoring systems to meet the continuous O2 monitoring requirements. However, commenters identified potential issues with our proposed provisions and definitions. To address these commenters’ concerns, we E:\FR\FM\07FER2.SGM 07FER2 9124 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 have revised the provisions in 40 CFR 60.2165 and 40 CFR 60.2730 to clarify the methodology for establishing and monitoring the O2 level. Furthermore, the definition of ‘‘oxygen analyzer system’’ has been revised to clarify the appropriate locations and nomenclature of possible existing monitoring systems so that their use to meet these requirements is fully enabled. 4. Removal of the Definition of Homogeneous Waste The EPA included in the final 2011 CISWI Rule a definition of homogenous waste and a process for evaluating claims that a particular waste stream is homogenous. The definition was added to the 2011 CISWI rule in response to comment. Because the determination of homogeneity of a waste stream is relevant to applicability of CAA section 129 to qualifying small power producers and qualifying cogeneration facilities, we determined it was reasonable to include a definition of ‘‘homogenous waste’’ and a process by which sources could obtain a determination that a waste stream is homogenous from the EPA. In the 2011 CISWI Rule, the EPA stated that a determination concerning whether a waste is homogeneous is made on a case-by-case basis. The EPA added provisions to the CISWI final rule that require source owners or operators seeking the exemption to submit a request for a homogeneous waste determination to the EPA, and that they support their request with information describing the materials to be combusted and why they believe the waste is homogeneous. The 2011 CISWI rule also stated that the determination of what constitutes a homogeneous waste is not delegable to the state or local agencies. In the December 23, 2011, reconsideration proposal, we proposed for comment the definition of ‘‘homogeneous waste’’ and the provisions for making homogeneous waste determinations that were included in the 2011 CISWI rule. Commenters generally did not agree with the proposed definition and provisions for making a homogeneous waste determination, arguing that the definition and provisions introduced ambiguities and stipulations that would prevent classification of many materials (including fossil fuels) as being ‘‘homogeneous.’’ We reevaluated the definition and provisions in light of the comments and determined that the definition and provisions could be interpreted in a manner that would be unduly restrictive; however, we also determined that commenters proposed alternative definitions and provisions VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 were equally problematic. Therefore, the final rule does not include a definition of ‘‘homogeneous waste’’. We are also removing the requirement that qualifying small power producers and qualifying cogeneration facilities that combust solid waste obtain a determination from EPA that such waste is homogenous. Because the final rule does not include a homogenous waste definition or a process to obtain a determination from EPA, we believe that it is appropriate to inform the EPA when a unit qualifies as a small power generator or cogeneration facility as defined under section 129 because the site specific fact patterns for different types of waste may vary considerably. Therefore, the final rule requires qualifying small power producers and qualifying cogeneration facilities that combust solid waste notify the EPA that such waste is homogeneous. (40 CFR 60.2020 and 40 CFR 60.2555). Section 129 states, in part, that the term ‘‘solid waste incineration unit’’ does not include: * * * qualifying small power production facilities, as defined in section 796 (17)(C) of title 16, or qualifying cogeneration facilities, as defined in section 796 (18)(B) of title 16, which burn homogeneous waste (such as units which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes * * * CAA Section 129(g)(1)(B) (emphasis added) We believe that the parenthetical contained in the exemption that prohibits refuse derived fuel, which is made from municipal solid waste, from qualifying as homogenous waste and allows tires and used oil to qualify as homogenous wastes provides guidance on what constitutes a homogenous waste. We do not accept industry’s assertion that any waste from a common source is homogeneous, or that in all cases combining two homogeneous wastes results in a homogeneous waste, as doing so could result in almost any waste stream being homogenous. We do not believe that is consistent with the statute. Instead, we believe Congress intended this exemption to apply only when the waste stream has a consistent makeup that allows the source and the enforcement authority to predict the range of emissions from the combustion of the waste on an ongoing basis. In keeping with this interpretation, we maintain that the homogeneous wastes are generally material specific (e.g., tires or used oil). We believe this PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 means that a homogeneous waste is of known origin and that it can be identified as a specific material or materials—using the example in the Act, certain used oils or scrap tires. By contrast, municipal solid waste can be identified as municipal solid waste as a general term, but it is not composed of only one or two specific type of waste; e.g. municipal solid waste cannot be identified as one specific material or group of materials. Regarding variability of the composition of homogeneous waste throughout, homogeneous waste may have variations in composition, but it should generally be within the range of operations which produce the waste (e.g., size, contaminant levels, state of matter.) We also believe that off-spec materials may be homogeneous, even if they are not homogeneous to the onspec material, and that, if combusted together, both the on-spec and off-spec materials may require separate homogenous waste determinations. We also believe that homogeneous waste should have predictable known contaminant levels, even if those contaminant levels vary within a range. We may question the homogeneity of a specific material if it is adulterated such that it takes on the characteristics of a different type of waste (e.g., used oil which is so contaminated with PCB’s from a leaking heat exchanger, such that the used oil takes on the characteristics of a waste PCB stream as opposed to a used oil stream) or where the BTU value of a waste is so altered that other fuels must be introduced to ensure combustion and preserve the purpose of combustion under the exemption, i.e. to produce energy. 5. Non-Detect Methodology Using Three Times the Detection Level Prior to reconsideration proposal, the EPA conducted a review of sampling volumes and detection levels across various emission testing ICR efforts on various combustion sources (See memorandum ‘‘Updated data and procedure for handling below detection level data in analyzing various pollutant emissions databases for MACT and RTR emissions limits’’ in the CISWI docket). As a result of this analysis, we determined recommended values for three times the RDL (3xRDL) that may be used as a minimum emission limit value that can be accurately measured by most laboratories. These recommended values were then compared with calculated emission limits and, if the calculated limit was less than the recommended 3xRDL, the 3xRDL value was selected as the limit. Since the December 23, 2011, reconsideration proposal was published, E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 we have continued our review and determined 3xRDL values for additional metals measured using EPA Reference Method 29. These include recommended values for Cd and Pb and we have applied this methodology to those emission limits in addition to the D/F and Hg limits that were reevaluated in the reconsideration proposal. As discussed in the reconsideration proposal, the premise for this approach is the same as described in the final 2011 CISWI rule but using a broader data set to establish the 3xRDL value. We have not changed the methodology of the emission limit calculation or tabulation of the three times the detection limit value that was used in the final 2011 CISWI rule. Since reconsideration proposal, some commenters have noted that the EPA Method 5 minimum catch values were below levels established in similar studies on this reference method. In light of these comments, we have reconsidered the 1 mg minimum catch value used in the reconsideration proposal and are now using a 1 mg minimum catch in establishing the final rule emission limits. Our review and determination of the 1 mg minimum catch are discussed in ‘‘Minimum Detection Limit for EPA Method 5’’ in the CISWI docket. In a similar fashion, the CO span adjustment methodology has been further refined in consideration of comments on the approach used to adjust CO instrumental test methods readings in reconsideration proposal. The methodology for adjusting CO emission test run data to reflect the limitations from the instrument span used at testing is described in the ‘‘CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule’’ memorandum in the CISWI docket. 6. Parametric Monitoring for Additional Control Device Types In the December 23, 2011, reconsideration proposal, we stated that we believed the control devices with monitoring provisions expressly identified in the rules should encompass most types of control devices that we anticipate the various types of CISWI units will use to meet the emission limits. However, recognizing that a source might want to employ another type of control that is not addressed, we provided provisions for sources to petition for specific operating limits for alternative control devices to be established during a performance test. These provisions also allow specific operating limits to be established for CISWI units without any VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 air pollution control devices, such as for units that employ material balance operating limits in conjunction with periodic stack testing to demonstrate continuous compliance. We also determined that dry sorbent injection (or dry scrubbers) may be one type of additional control device that CISWI units may widely use to control acid gases. Commenters agreed with our statement and encouraged the EPA to identify operating parameters for dry scrubbing systems in the final rule. We have done so, by both defining ‘‘dry scrubber’’ in the rule, and specifying that the sorbent injection rate must be monitored and maintained at or above the operating rate established during the HCl performance test (40 CFR 60.2165 and 40 CFR 60.2730). Furthermore, we have determined that the sorbent injection rate for ERUs can be adjusted to reflect operating loads that are less than those during the performance testing. Commenters have made arguments that requiring a high sorbent injection rate during reduced boiler loads can lead to fouling and plugging issues, especially for acid gas sorbent injection. To address this particular concern, and to provide consistency with other industrial boiler rules, we are also providing this parametric monitoring provision for sorbent injection air pollution control devices. Also regarding monitoring, we determined after proposal that we had not clarified in the rule that sources opting to use CEMS to measure NOX, Hg or D/F were not required to monitor ACI rates (for Hg and D/F CEMS-equipped units) or SNCR parameter monitoring (for NOX CEMS-equipped units). Our intent had been to not require applicable control device parameter monitoring if a CEMS was in use for the pollutant being controlled by the device. Control device parameter monitoring is an acceptable and established method for determining continuous compliance and it is appropriate to require such monitoring when coupled with period stack testing. However, direct, continuous emission measurements with a CEMS are sufficient for determining compliance for CISWI units without requiring parametric monitoring. In cases where CEMS data are available to directly measure regulated pollutants, operating parameter data would be duplicative. 7. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-Burning Kilns In today’s rule, we are finalizing monitoring requirements for ERUs with an annual average heat input rate greater than 250 MMBtu/hr. As we stated in the PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 9125 proposal, recent EPA experience with the utility boiler source category has led the EPA to allow PM CEMS as an alternative, rather than a requirement. Industry commenters have maintained that there were several problems with implementing the monitoring requirements to demonstrate compliance using a PM CEMS and with the requirements to conduct a periodic audit of the PM CEMS in accordance with PS 11 of appendix B and Procedure 2 of appendix F to part 60. As we discuss in response to these comments later in this preamble (See II.E), the PM CEMS technology may not be sufficient to certify accurate monitor performance in the PM concentration range of the CISWI biomass ERU limits. Furthermore, in related ongoing work on the Portland cement source category, we realize that similar concerns regarding PM CEMS are applicable. Therefore, we are also removing PM CEMS (PS–11) requirements for wasteburning kilns, and instead, requiring PM CEMS equipment for these units that are used for continuous parametric monitoring rather than for direct measure of compliance with the numerical PM emissions limit, similar to those being required for major industrial boilers and utility boilers. However, PM CEMS (PS–11), are still allowed as an option for coal ERUs, incinerators and small remote incinerators, since the emission limits for these subcategories do not pose the same technical concerns as for biomass ERUs and waste-burning kilns. To be consistent with these other rules, we have incorporated 30-day rolling averages to be measured with PM CPMS. The EPA is further requiring that a site-specific parametric operating limit be established during the performance test, that there be continuous monitoring of that parametric limit using a PM CPMS, that an exceedance of that site-specific operating limit be reported as a deviation and trigger immediate corrective action and a Method 5 performance test within 45 days. 8. Compliance Dates At reconsideration proposal, we proposed to extend the compliance dates for existing units in the incinerator, ERU and waste-burning kiln subcategories. We are finalizing the revision of the effective dates for those three subcategories and, based on comments received, we are also extending the compliance date for units in the small remote incinerator subcategory. The EPA proposed to amend the standards for CO for all subcategories of CISWI; to further E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9126 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations subcategorize certain subcategories; to change several other pollutant standards for incinerator, ERU and waste burning kilns subcategories; to change the compliance regime from CEMS-based to stack-test/parametric-monitoring based for certain pollutants and unit types; and to change the compliance calculation provisions for sources that are required or that elect to use CEMS to demonstrate continuous compliance. These proposed changes may occasion the need for additional time for sources to study the possibility of different control and monitoring strategies than would have been considered if we had not amended the 2011 CISWI rule. New compliance strategies may require time to implement. New engineering studies may be needed, potential suppliers identified, a new bidding/procurement process undertaken and the appropriate construction and operating permits obtained. Significant plant redesign, in the form of new ductwork and new fan design and changes in the main control equipment may be needed. See US EPA, Engineering and Economic Factors Affecting the Installation of Control Technologies for Multipollutant Strategies, October 2002. Depending on the type of control, this normally requires 15–27 months. Multiple control systems may take longer. Id. Installation of controls normally occurs at times of unit outages, which will likely end up being at differing times of the year for each of the CISWI subcategories. For example, for waste-burning kilns, this would occur during winter months (to coincide with kiln outages during low production seasons). However, for small remote incinerators, facility retrofits would need to occur while road access to the site is available and climatic conditions allow for construction. Also, small remote incinerators have the additional component of having to increase the footprint of the site to accommodate additional space for control devices and waste segregation facilities. This additional permitting requirement and construction effort is not something other CISWI subcategories have to face but adds an additional consideration to developing a compliance strategy. In general, though, the differing construction constraints for the various subcategories of CISWI likely mean that there will be a wide variety to the rate of progress towards compliance for the differing CISWI sources. Further, commenters have argued that, due to the delay of the final 2011 CISWI rule, uncertainty on selecting a compliance strategy was created, essentially putting internal compliance implementation activities VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 on hold until the reconsideration was complete. As a result of these considerations, we have finalized extending compliance for all subcategories of CISWI. Comments on extending the compliance date and our responses to these comments are found in the ‘‘Summary of Comments and Responses to the CISWI Reconsideration’’ document in the CISWI docket. The compliance date for existing CISWI sources subject to standards in this final rule is 5 years after the date of publication of this final rule or 3 years after the state plan is approved, whichever happens earlier. This date is being finalized in order to provide facilities sufficient time to install controls or to make other compliancerelated decisions. However, the CAA section 129(f)(2) does require that the promulgated standards be effective ‘‘as expeditiously as practicable after approval of a State plan,’’ so that states have the flexibility to determine that the standards for existing units within their purview may have a compliance date which is less than the allowable 3 years following approval of the state plan. For new sources, the EPA is finalizing the proposed change of the compliance date to 6 months after the date of publication of the final reconsideration rule or at startup, whichever is later. 9. Definition of Waste-Burning Kiln In the December 23, 2011, reconsideration proposal, we proposed revisions to the definition of ‘‘wasteburning kiln’’ to indicate that the term ‘‘does not include a kiln that is feeding non-hazardous secondary ingredients exclusively into the cold end of the kiln.’’ In proposing this language, the EPA intended to codify principles set out in a previous action granting and denying reconsideration of the NESHAP for Portland cement kilns. See 76 FR 28318, 28322 (May 17, 2011); see also Memorandum ‘‘Revised Floors Without Kilns That Would Have Been CISWI Kilns Had the Solid Waste Definition Applied’’ (EPA, April 25, 2011) (which memorandum is summarized in the May 17 Federal Register notice). The May 17, 2011, notice and April 25, 2011, memorandum state in essence that combustion does not occur in any region of a cement kiln except the hot end and that cement kiln dust added to the hot end of a cement kiln also is not combusted since it is inorganic and essentially inert. The language used at proposal captured some but not all of these principles, since it referred only to the ‘‘cold end’’ of a cement kiln, as pointed out by a number of commenters. The PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 EPA is revising the definition in the final rule to accurately reflect the May 17 preamble and April 25 memorandum discussion of when combustion occurs in a cement kiln. In addition, we are adding the fact that combustion in a cement kiln does also take place in the combustion zone of a precalciner or riser duct burner. One further clarification is appropriate. The May 17, 2011, preamble contains one reference to legitimacy criteria for determining when a secondary material is being recycled. 76 FR at 28322/1–2. The threshold issue for determining if a unit is subject to section 129 is whether it ‘‘combusts’’ solid waste material (see section 129 (g)(1)). For cement kilns, this determination does not necessarily turn on legitimacy of recycling, but rather on the nature of the cement kiln process. Consequently, if combustion of solid waste is not occurring, a unit is not a CISWI, irrespective of whether or not legitimate recycling is occurring. 10. Exemption for Other Solid Waste Incineration (OSWI) Units Following publication of the December 23, 2011, reconsideration proposal, we realized that the CISWI rule did not contain any language to clarify overlap with another CAA section 129 regulation applicable to OSWI units. The CISWI rule already contains exemptions for MWCs, HMIWIs and SSIs, but omitted similar language for OSWI units. Therefore, in this final rule, we are providing language in 40 CFR 60.2020 and 60.2555 that clarifies that incineration units that are subject to 40 CFR part 60 subparts EEEE or FFFF are exempt from the CISWI rule. D. Technical Corrections and Clarifications We are also including some technical corrections and clarifications in the final rule, as outlined below: • Operating parameter limits during performance testing—While we believe it is intrinsic that established operating parameter limits do not apply during subsequent performance testing since they are being confirmed or reestablished during the subsequent testing, we provided language in the proposed rule in the NSPS to clarify that they are waived during performance testing (40 CFR 60.2145(c)). However, we inadvertently omitted this clarifying language in the emission guidelines so we have added clarifying language in the final emission guidelines at 40 CFR 60.2710(c). • Bypass stacks on waste-burning kilns—While not included in the final E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations rule text, we are clarifying here that the definition of ‘‘bypass stack’’ in today’s final rule does not have the same meaning as an ‘‘alkali bypass’’ used by some waste-burning kilns that manufacture Portland cement. • Clarifying that, consistent with CAA section 129(f)(1), June 4, 2010, is the appropriate new source applicability date in 40 CFR 60.2015(a)(1). • Revising the title of Table 2 to subpart DDDD to clarify that these emission limits apply to incinerators which are currently subject to CISWI emission limits promulgated in the 2000 CISWI rule. • Clarifying that petitions for specific operating limits for control devices not listed in this subpart must be submitted to the Administrator at least 60 days before the performance test is scheduled to begin (40 CFR 60.2115 and 40 CFR 60.2680). • Providing definitions of ‘‘30-day rolling average’’ and ‘‘responsible official’’ to clarify what is meant by these terms. • Adding text to the provisions for PM monitoring provisions for ERUs to clarify that the 250 MMBtu/hr threshold is based upon the average annual heat input rate, consistent with how this threshold is applied in the industrial boiler NESHAP. • Revising the affirmative defense text to clarify that these provisions apply to violations of standards and to further clarify the reporting requirements and criteria for sources seeking to assert an affirmative defense (40 CFR 60.2120 and 40 CFR 60.2685). • Revising the recordkeeping provisions in 40 CFR 60.2175(v) and 40 CFR 60.2740(u) to reflect the categorical non-waste determination provisions of 40 CFR 241.4. • Revising the electronic reporting provisions in 40 CFR 60.2235 and 40 CFR 60.2795 to clarify the timing and mechanism for submitting these reports and to be consistent with the electronic reporting language in more recent rulemakings. • Revising the definition of ‘‘process change’’ to clarify the intended types of changes that would require re-testing. • Making corrections to the D/F calculation methodologies for toxic equivalency basis and adding calculation methodology provisions for D/F TMB. • Revising the definition of ‘‘space heater’’ to clarify applicability for units that meet the requirements of 40 CFR 279. • Revising the emission limits for those pollutants for which data available from a similar source was determined to be better suited for VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 calculating the new source limits. Notably, this is the case for NOX for waste-burning kilns, and for Hg and PCDD/PCDF for ERU-liquid/gas units. These revisions reflect updates made to emission limits of the selected similar sources. E. Major Public Comments and Responses We have included some of the major comment topics and our responses below in the preamble. All other comments and responses are provided in the ‘‘Reconsideration Response to Public Comments Document’’ in the CISWI docket. Solid-Fuel ERU Subcategorization Comment: Several commenters support the proposed separate coal and biomass standards for D/Fs, CO, NOX, SO2, PM, Cd and Pb. However, these commenters further urge the EPA to establish separate standards for HCl and Hg for coal and biomass. Commenters state that the EPA’s recognition that design and operational differences between combustors designed to combust coal and those designed to combust biomass is evidence to support subcategorizing emission limits for all pollutants. One commenter discussed differences in biomass and coal fuel rank, and the significant boiler design differences in furnace height and volume that exist between units designed to combust different fuel ranks of coal-fired boiler furnaces. As an example, one commenter noted that a low-rank coal (high slagging lignite) furnace can be 1.65 times the plan area, and 1.45 times the furnace height, of a similar capacity furnace combusting a high rank coal (medium volatile bituminous). The commenter stated that this large difference exists even among varying grades of coal, with biomass units being fuels of even lower rank than lignite. Therefore, according to the commenter, furnace area and height (and hence, volume) are significantly different between ERUs designed to combust coal and those designed for biomass combustion. The commenter highlighted an analysis of their existing boilers to see the feasibility of substituting biomass for coal. The commenter’s results indicated that, due to fundamental design attributes of their coal-fired units, they could only co-fire up to 20 percent biomass in the units. The commenter explained that this limitation was due to design issues pertaining to the unit being designed for coal, such as superheater tube spacing, number and location of soot blowers, fouling characteristics of biomass ash and the impact the high moisture levels PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 9127 of biomass fuels have on fan capacity. The commenter stated that these findings further support that coal and biomass are not interchangeable within ERUs and therefore supports subcategorizing emission limits between the two types of unit. The commenter also contended that the EPA acknowledged significant design differences and their impacts on Hg emissions during development of the Utility MACT Final Rule. The commenter urges the EPA to take a similar approach in CISWI. One commenter agreed with differentiation between coal-fired and biomass ERUs but supported keeping solid-fuel ERUs together for purposed of HCl and Hg emission limits. Another commenter argued that all of the EPA’s subcategories are unlawful and arbitrary, noting that their reasons for this belief were given in their comments on the 2010 proposal. Response: Based on our proposal and follow-up comments summarized below, the EPA is finalizing separate limits for all nine pollutants for biomass and coal ERUs. We agree with comments concerning differences in moisture content between biomass and coal-fired units. We reviewed data in the CISWI database and see that the stack gas moisture content of coal-fired ERUs is around 11.6 percent and is about 19.2 percent for the biomass ERUs. We have considered the technical arguments provided by commenters on CISWI ERUs, other technical differences we have previously considered in our decision to subcategorize ERUs and how these design differences impact pollutant emission characteristics of the ERU. As a result, we have determined that subcategorizing all nine pollutant emission limits between coal and biomass solid-fuel ERUs is appropriate for the final CISWI rule. One commenter supported the differentiation between coal and biomass, but in keeping HCl and Hg limits together. However, for the reasons given above, we have determined that all nine pollutants should be subcategorized. Contained Gaseous Material Comment: Commenters support the EPA retaining the 2000 CISWI rule’s definition of ‘‘contained gaseous material.’’ Some commenters believe that the EPA should expressly include the definition of ‘‘contained gaseous material’’ in the amendatory text to confirm that the definition is back in the CISWI rule. Response: We believe that the commenters misunderstood what the EPA proposed. Specifically, the basis of E:\FR\FM\07FER2.SGM 07FER2 9128 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations the reconsideration proposal amendatory text was the 2000 CISWI rule—not the 2011 CISWI rule—because the 2011 CISWI rule had not been codified in the CFR pursuant to the Delay Notice. Therefore, by not including the amendatory instruction to delete the definition in the 2000 rule in the proposed reconsideration rule, we proposed to retain the definition as contained in the 2000 CISWI rule. However, as explained above, due to the vacatur of the Delay Notice, the 2011 CISWI rule is in effect and the definition of contained gaseous material does not appear in that rule. For that reason, we are including the definition of ‘‘contained gaseous material’’ found in the 2000 CISWI rule in today’s final rule. Comment: Many commenters who supported the EPA retaining the 2000 CISWI rule’s definition of ‘‘contained gaseous material’’ also urged the Agency to make clear that this definition should apply when interpreting the term ‘‘solid waste’’ under RCRA. Response: As aforementioned, the Agency is including the definition of ‘‘contained gaseous material’’ found in the 2000 CISWI Rule in today’s final rule. Specifically, the definition of ‘‘contained gaseous material’’ is codified today, consistent with the 2000 CISWI Rule, as meaning, ‘‘gases that are in a container when that container is combusted.’’4 CAA section 129(g)(6) states that the definition of ‘‘solid waste’’ shall have the meaning established by the Administrator pursuant to RCRA. We agree that the definition of contained gaseous materials in the final CISWI rule is consistent with the interpretation of that term under RCRA for the purpose of defining when non-hazardous secondary materials are solid wastes when combusted in CISWI units.5 As discussed in more detail in the NHSM portion of the December 2011 reconsideration proposal and in various letters issued by EPA,6 the NHSM 4 See 65 FR at 75359 and 75373. that for the purposes of CISWI, contained gaseous materials are limited to gases in a container when that container is combusted. This limitation is due to the fact that CAA section 129 is focused exclusively on combustion of non-hazardous solid wastes. On the other hand, RCRA is focused on more than just combustion of non-hazardous solid wastes (e.g., treatment, storage, and disposal of hazardous and non-hazardous wastes); thus, this limitation is inapplicable to RCRA. We also note that the term ’container’ as used in this definition is broader than the term as used in the hazardous waste regulations (see 40 CFR 260.10, definition of container). Specifically, the term here is not limited to a portable device, but also includes stationary containers. We believe that these interpretations under the CAA and RCRA are consistent. 6 For example, see June 25, 2012 letter from Assistant Administrator Mathy Stanislaus to Paul mstockstill on DSK4VPTVN1PROD with RULES2 5 Note VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 rulemaking did not change any previous EPA position as it relates to whether ‘‘contained gaseous material’’ is a solid waste under RCRA.’’ 7 We note, however, that although gases must be ‘‘contained’’ to be solid wastes under RCRA, EPA maintains separate and independent authority under RCRA to regulate certain types of uncontained gases whether or not they themselves are solid wastes (e.g., gases emitted from the management of hazardous waste).8 Comment: Some commenters also requested that EPA clarify that landfill gas is not considered to be a ‘‘contained gaseous material’’ and/or a ‘‘solid waste’’ under RCRA. Response: We agree with commenters that landfill gases must be in a container when that container is combusted to be considered ‘‘contained gaseous material’’ under today’s final CISWI regulations. However, given that landfill gas is emitted from solid waste (i.e., nonhazardous solid waste landfills or municipal waste landfills), EPA has distinct and independent authority under RCRA to regulate this material as part of our authority to regulate solid waste landfills (for example, in order to address the risk of explosions posed by methane emissions per 40 CFR 258.23).9 Noe. A copy of this letter has been placed in the docket for today’s rulemaking. 7 See 76 FR at 80472–80473. 8 RCRA section 3002(a) directs EPA to establish standards for hazardous waste generators and RCRA section 3004(a) directs EPA to establish performance standards for all facilities that treat, store or dispose of hazardous waste. Both of these provisions grant authority to control gaseous emissions from hazardous waste management as may be necessary to protect human health and the environment. RCRA sections 3004(n), and (o)(1)(B), further direct EPA to regulate air emissions from, respectively, hazardous waste treatment, storage and disposal facilities; and hazardous waste incinerators. The authority provided in RCRA section 3004(q) to regulate fuel produced from hazardous waste also encompasses gaseous fuels (when they are produced from hazardous wastes).The authority provided in RCRA section 3004(u) to control ‘‘releases’’ of hazardous constituents from solid waste management units at a facility seeking a RCRA permit also encompasses gaseous releases (when the gases are hazardous constituents). The authority granted under these sections of the statute is independent of EPA’s authorities over solid waste. As an example, EPA has authority to regulate emissions generated during treatment of hazardous waste, including volatilization and incineration of hazardous waste. 9 RCRA Subtitle D gives EPA authority to set standards for non-hazardous waste disposal facilities, including standards for air emissions. For example, EPA’s criteria for municipal solid waste landfills, established pursuant to RCRA sections 1008(a)(3), 2002, 4004(a), and 4010(c), generally address air quality by prohibiting the open burning of waste and by setting limits on the concentration of explosive gases (i.e., methane). See also March 6, 1986 Letter from Marcia E. Williams to Mr. H. Lanier Hickman, Jr., which states, ‘‘[W]e believe it is clear that the U.S. Environmental Protection Agency (EPA) has the authority under both Sections PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 Oxygen Correction During Startup and Shutdown Comment: Commenters generally support allowing the use of uncorrected CEMS data during startup and shutdown. Several commenters are concerned that the 4- hour startup and a 1-hour shutdown period (derived from a single coal fired unit) are not sufficient for all the CISWI unit types and technologies. Other commenters believe there should be no time limitations on shutdown and startups. One commenter, however, believes the proposed time limit is appropriate. Some commenters recommend using the Boiler MACT rule approach using load to define when the O2 corrections do not apply. Commenters also urge the EPA to eliminate the O2 correction for all CEMmeasured emission limits, not just CO, during startup and shutdown periods. Commenters also support making this allowance available to all types of CISWI unit, not only ERUs. Response: In today’s final rule, we are retaining the provision that allows sources to use uncorrected CO CEMS data during periods of startup and shutdown. Based on comments and the technical justifications for allowing the use of uncorrected CEMS data identified during the comment period, we are expanding this provision to any pollutant for which continuous compliance is being determined using CEMS as explained above in ‘‘Section II.C: Summary of Significant Changes Since Proposal.’’ Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-Burning Kilns Comment: Several commenters supported the EPA’s proposal to remove requirements for PM CEMS (using PS– 11) for continuous compliance for large ERUs and waste-burning kilns, stating that PM CEMS usefulness and application issues of these monitors are uncertain. Commenters asserted that, for biomass ERUs and sources with low PM concentration, PM CEMS were not adequate to accurately monitor low PM concentrations. Commenters further contended that PM CPMS are essentially the same thing as PM CEMS, and that there were no clear instructions on how to ‘‘certify’’ PM CPMS, as was required in the proposed rule. Commenters added that they do not understand how the recording of hourly and 30-day rolling averages of the output from these monitors will be useful to demonstrate 3004(n) and 4004(a) of RCRA, as well as the CAA, to regulate gaseous emissions from hazardous and non-hazardous waste landfills.’’ E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 performance or evaluate compliance with a PM limit. One commenter suggested that the EPA remove the PM CPMS requirements altogether for all industrial boilers. Response: We are revising the PM CEMS requirements in the final rule as explained above. In responding to this comment specifically, we believe it is useful to review the procedures and acceptance criteria of PS–11, the protocol mandated by the 2011 final CISWI rule. Performance Specification-11 PS–11 is structured differently than other PSs that apply to validating the performance of gaseous pollutant CEMS. This is primarily because the pollutant, PM, is defined entirely by the test method specified by regulation to measure it. As the industry commenters note, there are no independent standard reference materials for PM concentrations as there are for gaseous pollutants (e.g., NIST traceable compressed gases for validating SO2 or NOX instrumental measurements). The only reference standard for determining the PM concentration in an air or stack gas sample is the reference test method. In the case of the CISWI final rule, the rule specifies EPA Method 5 for measuring filterable PM concentration (e.g., in mg/dscm). Performance Specification 11 provides procedures and acceptance criteria for validating the performance of several types of PM CEMS technologies. Although there are multiple instrument and data reporting operational performance checks in PS–11 that are similar in concept to those for gaseous pollutant CEMS, there is a principal PM CEMS performance requirement that is distinctly different. That difference is the development of a site-specific PM CEMS correlation or mathematical response curve. There are two key procedural elements to developing that correlation. First, PS–11 requires that the source conduct stack test runs using an EPA PM test method (e.g., Method 5) and simultaneously collect corresponding PM CEMS output data. Second, the source must vary the operation of the control device manually in order to produce a range of PM concentrations. Performance Specification 11, section 8.6, requires at least five test runs at each of three different operating conditions (i.e., low, mid and high PM concentrations) for a total of 15 or more test runs that range from 25 to 100 percent of allowable emissions. Then the source must use the test method data and the corresponding PM CEMS output data to develop an equation (i.e., a calculated linear or VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 nonlinear curve) that will be used to define the relationship between the PM CEMS output and the test method measured PM concentrations. Each sitespecific correlation must meet several PS–11 acceptance criteria including limits on confidence interval and tolerance interval equating to ±25 percent of the applicable emissions limit. Discussion of Technical Issues In prior comments submitted to the EPA on the PM CEMS requirements for waste-burning kilns, one issue raised about conducting the testing to meet the PS–11 correlation development requirement is the impracticality of varying the emissions from a FF control device. Many CISWI units subject to the standards use FF control devices. We agree with commenters that there are typically few, if any, physical adjustments one can apply to a FF or to the waste-burning kiln process to change the outlet PM concentration significantly. A FF produces essentially a constant outlet concentration even with changes to the inlet loading or flow (https://www.epa.gov/ttnchie1/mkb/ documents/ff-pulse.pdf). Although PS– 11 allows some flexibility when control device perturbations are not possible, the resulting correlation would apply for only the narrow range of concentrations measured during the testing. The result would be that the PM CEMS would be correlated only for a relatively small range of conditions below the applicable compliance limit. This range would not necessarily include situations where the standard might be exceeded. Without the ability to calculate emissions should the FF performance change from initial test conditions (e.g., bag leaks begin to develop), such a limited correlation range would render the PM CEMS less reliable for calculating long term average concentrations or emissions rates and for verifying compliance. Additionally, it is difficult and resource intensive to modify baghouse control efficiency in a way that is representative of normal operations at a waste-burning kiln. Commenters also cited problems in developing correlations in stack gases with variable PM constituents and physical characteristics when using light scatter or scintillation detection PM CEMS devices. As noted above and in the EPA’s technology background documents (e.g., https://www.epa.gov/ ttn/emc/cem/pmcemsknowfinalrep.pdf and https://www.epa.gov/ttn/emc/cem/ r4703-02-07.pdf), the correlations developed for these types of instruments are inherently dependent on the particle PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 9129 structure, size and other physical characteristics as well as PM mass in the exhaust gases for each site. Put another way, these light-based PM CEMS produce a signal that can vary when different fuels or raw materials are introduced to the kilns or ERU even when the FF outlet mass concentration remains unchanged. To the extent that physical characteristics of the PM in the stack remain stable, correlations for lightbased PM CEMS meeting PS–11 performance criteria can represent mass rates to the degree of accuracy required by PS–11. For example, there are various design structures used in some light-based PM CEMS devices that can mitigate the effects of changes in the physical aspects of particles on measurement uncertainty. In addition to the type of light effect measured (e.g., Rayleigh or Mie scattering or light scintillation), the detector wavelength and the frequency are design factors that will affect how the PM CEMS responds to small changes in the physical appearance of the PM. On this point, we note that if a source owner were concerned about the ability of a light-based PM CEMS to meet the requirements of PS–11 because of variable physical characteristics of particles in the stack, there is at least one other PM CEMS technology based more directly on mass measurement rather than on light scatter or light scintillation characteristics. The currently available Beta gauge technology does not suffer from this particular technical problem. The Beta attenuation PM CEMS, also called Beta gauge, extracts a sample for the stack gas and collects the PM on a filter tape. The device periodically advances the tape from the sampling mode to an area where the sample is exposed to Beta radiation. The detector measures the amount of Beta emitted by the sample and that amount can be directly related to the mass of PM on the filter. The Beta gauge sensitivity or detection limit can be enhanced (i.e., lowered) with greater sample volumes produced from sampling intervals up to an hour or longer. Another PM mass detector projected for greater use as PM CEMS is the TEOM. Often used in measuring ambient levels of PM, the TEOM operates on a basic principle that can be made traceable to NIST laboratory standards. The TEOM can provide a continuous measure of PM mass in a sample extracted from the stack and routed to the detector. Tapered element oscillating microbalance based PM CEMS are not yet commercially available. E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9130 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations Commenters identified another factor contributing to the difficulty of meeting PS–11 correlation requirements for low PM concentrations corresponding to a low applicable emissions limit, as with the promulgated PM standards here for waste-burning kilns and biomass ERUs. We have recently reevaluated the capabilities of the EPA Method 5 for measuring low concentrations of PM (See the memo ‘‘Revision of Estimated Method 5 Detection Limit’’ in the CISWI docket) and have determined a Method 5 method detection limit of approximately 2 mg/dscm for a 1-hour test run. The uncertainty of a measurement with Method 5 at this PM concentration would be from 50 to 100 percent (i.e., ±1 to 2 mg/dscm). We can determine a PQL using ∼3 × method detection limit to reduce that Method 5 measurement uncertainty to ±10 to 20 percent. That means that the PQL for a 1-hour test run with Method 5 would be approximately 6 mg/dscm ±0.6 to 1.2 mg/dscm. The CISWI PM emissions limit for existing waste-burning kiln sources is 3.6 mg/dscm, and is 11 mg/dscm for biomass ERUs. The new source limits are the same for waste-burning kilns but are 5.1 mg/dscm for biomass ERUs. As noted above, PS–11 specifies acceptable criteria for a correlation directly related to the applicable emissions limit. For a PM CEMS set up to measure compliance with a 3.6 mg/dscm limit, the inherent uncertainty associated with a 1-hour Method 5 measurement (±0.6 to 1.2 mg/ dscm) would constitute more than half of the ±25 percent of the applicable PS– 11 acceptance threshold (i.e., ±0.9 mg/ dscm) of the mid-level PS–11 correlation test (i.e., the correlation for the middle of the three PS–11 correlation points). Factoring in the inherent PM CEMS response variability and the uncertainty associated with the representative sampling (e.g., PM and flow stratification), we agree with commenters that trying to satisfy PS–11 at such low concentrations using 1-hour Method 5 test runs would be problematic. This drawback applies regardless of the type of PM CEMS technology used. As commenters to the Portland Cement NESHAP have noted, one can improve the method detection capabilities of the Method 5 or other filterable PM test method by increasing sampling volume and run time. For example, a test run time of about 2 hours will improve the Method 5 PQL to about 3 mg/dscm. The measurement uncertainty associated with a 2-hour test run at 3 mg/dscm would be about ±0.3 to 0.6 mg/dscm. At this level, the uncertainty associated with the PM test VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 method measurements alone would be about half of the correlation limit allowed in PS–11. To achieve a PQL of 1 mg/dscm and a measurement uncertainty of about ±0.01 to 0.2 mg/ dscm, one would need to conduct a test run of 6 hours or longer. As noted above, the PS–11 correlation calculations would also have to account for any PM CEMS analytical and measurement variability. Using data from longer Method 5 test runs will improve the probability of a PM CEMS meeting PS–11 correlation requirements but, as commenters note, will also raise practicality concerns without completely resolving the issue. For example, the time to complete 15 1hour test runs under three different emissions conditions may be 3 to 6 days of field work, while the time to complete 15 6-hour test runs under three different emissions conditions will require at least 2 weeks of field work in order to produce and maintain the operating conditions associated with three different emissions rates. Longer test runs lower the variability of Method 5 PM measurements at near detection limit levels from ± 50 percent to below ± 25 percent; however, the variability of Method 5 results at these low levels represents a significantly larger portion of the ± 25 percent correlation requirement of PS–11 than would Method 5 data collected at higher PM concentrations. Method 5 measurement uncertainty becomes increasingly greater with lowering PM concentration and thus reference measurement variability hinders the PS–11 correlation process the most for the best performing sources. Thus, the ultimate result might still lack certainty and would also pose the most difficulty and uncertainty to those sources with lower PM concentrations (potentially disadvantaging more efficient operators). Although longer Method 5 test runs and longer beta gauge sampling times reduce difficulties with PS–11 correlation for a PM CEMS, the EPA believes that this correlation will not be technically achievable for a significant number of waste-burning kiln and biomass ERU sources, a result in part due to the Method 5 PM emissions measurement variability at the low concentrations necessary to maintain compliance with the standard. The PM CEMS correlations then become approximations more qualitative than quantitative with high levels of uncertainty at low concentrations (i.e., the correlations do not meet PS–11 requirements). This characteristic exists regardless of the type of PM CEMS technology used by the source since it PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 involves variability not only of the PM CEMS but also the Method 5 test data, variability of raw material and additive feeds to the waste-burning kiln, and the changing particle sizes, shapes, and density with process operations (e.g., mill on versus mill off, type of fuel being used in the ERU). Making PM CEMS work at low concentrations (<10 mg/dscm) at wasteburning kiln and biomass ERU sources is not impossible; although, to expect that correlations would be achievable at all low emissions sources would be unrealistic. Additionally, the technical limitations do not mean that PM CEMS cannot be used to monitor for compliance. A PM CEMS that does not meet the EPA correlation requirements can still produce data indicative of trends and changes in emissions control. Particulate Matter CEMS technology can be effective in monitoring control device performance (see, e.g., 77 FR 9371 (February 16, 2012)) where the EPA established PM CPMS parametric operating limits for electric utility steam generating units. A Monitoring Approach Alternative to PM CEMS and PS–11 To address technical issues associated with PM CEMS meeting PS–11 correlation requirements at low PM emissions concentrations from wasteburning kilns and biomass ERUs, the impracticability in perturbing FF emission rates to establish PS 11 correlation curves, and the potentially variable PM emissions characteristics expected from waste-burning kilns, the EPA is finalizing the change of the compliance basis for the PM emissions limit from PM CEMS. For monitoring continuous compliance, the rule requires PM CEMS equipment but, as explained below, that equipment would be used for continuous parametric monitoring rather than for direct measure of compliance with the numerical PM emissions limit. Specifically, this final rule recognizes the value of PM monitoring technology sensitive to changes in PM emissions concentrations and use of such a tool to assure continued good operation of PM control equipment. This approach avoids the PM CEMS calibration (i.e., PS–11 correlation). Therefore, the EPA is including provisions that a sitespecific parametric operating limit be established during the performance test, that there be continuous monitoring of that parametric limit using a PM CPMS, that an exceedance of that site-specific operating limit be reported as a deviation and trigger immediate corrective action and a Method 5 performance test within 45 days. E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations In the May 2012 Proposed National Emission Standards for Hazardous Air Pollutants for the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants The EPA proposed the use of PM CPMS for continuous monitoring of PM emissions as a 30-day rolling average established by identifying the average PM CPMS response corresponding to the highest 1-hour PM compliance test. Failure to meet this 30-day rolling average would result in retesting. Industry commented that this requirement would trigger unnecessary retests for many facilities, especially for cleaner sources. This is a legitimate issue. To avoid a perverse result, the EPA is modifying the way PM CPMS operating limits are established. Sources whose compliance with the PM emission standard are shown to be 75 percent or below the emission limit in the PM method 5 compliance test will set their PM parametric operating limit to be a 30-day rolling average equivalent to that 75 percent level. Sources whose compliance with the PM emission standard are above 75 percent of the emission limit will establish their operating limit as a 30-day rolling average equal to the average PM CPMS values recorded during the PM compliance test. It should be noted that this provision does not affect the actual emission limit that must be met. F. What other actions are we taking? In this final action, we are denying requests for reconsideration on all issues contained in the petitioners’ requests for reconsideration that we did not include in the December 23, 2011, proposed rule. The issues for which we are denying reconsideration failed to meet the standard for reconsideration under CAA section 307(d)(7)(B) and we determined that reconsideration was not otherwise appropriate. Specifically, on these issues, the petitioner has failed to show the following: That it was impracticable to raise their objections during the comment period; or that the grounds for their objections arose after the close of the comment period; and/ or that their concern is of central relevance to the outcome of the rules. We have concluded that no clarifications to the underlying rules are warranted for the 19 remaining petitioners’ issues for the reasons set forth in the memorandum titled ‘‘Denied CISWI Petition Issues’’ found in the CISWI docket. The following issues are addressed in that memorandum. • Work practice standards should be used for startup/shutdowns and malfunctions. • Exempt or revise limits for units combusting de minimis amounts of waste. • Clarify applicability of CISWI standards to marine vessel units or units located on the outer continental shelf. • Clarify applicability to temporary or portable units. • Reduce performance testing requirements to be more consistent with requirements of other rules. • Reconsider elimination of provisions that allow missing CEMS data. • Do not include emissions data for combination boiler units. • CISWI does not satisfy CAA 112(c)(6) requirements for POM and PCB. • MACT floor statistical approach concerns. • MACT floor must reflect the average, the UPL is not the same as the average emission level. • MACT floor pollutant-by-pollutant approach concerns. • Non-detect methodology is unlawful. • Beyond-the-floor analysis is unlawful and arbitrary. • Compliance cost and wildlife concerns for small remote incinerators. • ‘‘Refinery gas’’ definition should be included in the CISWI rule. • Clarify that construction and demolition wood is not a solid waste. G. What are the impacts associated with the amendments? 1. What are the primary air impacts? We have estimated the potential emissions reductions from existing sources that may be achieved through 9131 implementation of the emission limits. However, we realize that some CISWI owners and operators are likely to determine that alternatives to waste incineration are viable, such as further waste segregation or sending the waste to a landfill or MWC, if available. In fact, sources operating incinerators, where energy recovery is not a goal, may find it cost effective to discontinue use of their CISWI unit altogether. Therefore, we have estimated emissions reductions attributable to existing sources complying with the limits, as well as those reductions that would occur if the facilities with incinerators and small, remote incinerators decide to discontinue the use of their CISWI unit and use alternative waste disposal options. For units combusting wastes for energy production, such as ERUs and waste-burning kilns, the decision to combust or not to combust waste will depend on several factors. One factor is the cost to replace the energy provided by the waste material with a traditional fuel, such as natural gas. Another factor would be whether the owner or operator is purchasing the waste or obtaining it at no cost from other generators, or if they are generating the waste on-site and will have to dispose of the materials in another fashion, such as landfills. Lastly, these units would have to compare the control requirements needed to meet the CISWI emission limits with those needed if they stop burning solid waste and are then subject to a NESHAP instead. As mentioned before, we have attempted to align the monitoring requirements for similar non-waste-burning sources as closely as possible in an effort to make them consistent and to help sources make the cross-walk between waste and nonwaste regulatory requirements as simple as possible. The emissions reductions that would be achieved under this final rule using the definition of solid waste under RCRA and the proposed CISWI emission limits are presented in Table 5 of this preamble. mstockstill on DSK4VPTVN1PROD with RULES2 TABLE 5—EMISSIONS REDUCTIONS FOR MACT COMPLIANCE AND ALTERNATIVE DISPOSAL OPTIONS FOR EXISTING CISWI USING THE EMISSION LIMITS Reductions achieved through meeting MACT (ton/yr) Pollutant HCl ........................................................................................................................................... CO ............................................................................................................................................ Pb ............................................................................................................................................. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 772.2 20,093 2.5 E:\FR\FM\07FER2.SGM 07FER2 Reductions achieved assuming incinerators and small, remote incinerators use alternative disposal (ton/yr) a 784.3 20,058 2.71 9132 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations TABLE 5—EMISSIONS REDUCTIONS FOR MACT COMPLIANCE AND ALTERNATIVE DISPOSAL OPTIONS FOR EXISTING CISWI USING THE EMISSION LIMITS—Continued Reductions achieved through meeting MACT (ton/yr) Pollutant Cd ............................................................................................................................................ Hg ............................................................................................................................................ PM (filterable) .......................................................................................................................... dioxin, furans ........................................................................................................................... NOX .......................................................................................................................................... SO2 .......................................................................................................................................... 1.807 0.341 2,397 0.000062 5,292 6,211 Total .................................................................................................................................. a The 34,771 Reductions achieved assuming incinerators and small, remote incinerators use alternative disposal (ton/yr) a 1.809 0.344 2,401 0.000064 5,399 6,262 34,909 estimated emission reduction does not account for any secondary impacts associated with alternate disposal of diverted ERU fuel. The EPA expects that many existing CISWI owners and operators may find that alternate disposal options are preferable to complying with the standards for the incinerator and small, remote incinerator subcategories. Our experience with regulations for MWC, HMIWI and, in fact, CISWI, has shown that negative growth in the source category historically occurs upon implementation of CAA section 129 standards. Since CISWI rules were promulgated in 2000 and have been in effect for existing sources since 2005, many existing units have closed. At promulgation in 2000, the EPA estimated 122 units in the CISWI population. In comparison, the incinerator subcategory in this rule, which contains any such units subject to the 2000 CISWI rule, has 27 units. The EPA is not aware of any construction of new units since 2000 so we do not believe there are any units that are currently subject to the 2000 CISWI NSPS. The revised CISWI rule is more stringent so we expect this trend to continue. However, the EPA does recognize that some facilities may opt to replace aging incinerator units with new units where it is cost effective or alternative disposal options are not feasible, as may be the case with some incinerators, or in very remote locations. We estimate that there could be one new incineration unit within the next 5 years following this final rule, and possibly five new small remote incinerators within that time. In these cases, we have developed model CISWI unit emissions reduction estimates for these subcategories using the current existing unit baseline, based on average emission concentration values and sizes from our current inventory and the new source emission limits. Table 6 of this preamble presents the model plant emissions reductions that are expected for new sources. TABLE 6—EMISSIONS REDUCTIONS ON A MODEL PLANT BASIS Emission reduction for CISWI subcategory model units (tpy unless otherwise noted) Pollutant Incinerator HCl ........................................................................................................................................... CO ............................................................................................................................................ Pb ............................................................................................................................................. Cd ............................................................................................................................................ Hg ............................................................................................................................................ PM (filterable) .......................................................................................................................... D/F (total mass) a ..................................................................................................................... NOX .......................................................................................................................................... SO2 .......................................................................................................................................... Total .................................................................................................................................. mstockstill on DSK4VPTVN1PROD with RULES2 a D/F 2.62 0.0 0.55 0.15 0.0026 103 0.0011 11.3 5.1 122 Small, remote incinerator 0.0 0.25 0.11 0.019 0.00036 10.7 0.0 0.0 4.5 22.0 estimates are given in lb/yr. We do not anticipate that any new energy recovery or waste-burning kiln units will be constructed and will instead use alternative waste disposal methods or alternative fuels that will not subject them to the CISWI rule. For example, whole tires obtained from approved tire management programs and tire-derived fuel from which the metal has been removed is not considered solid waste under the VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 definition of solid waste. Consequently, new cement kiln owners will assess their regulatory requirements under CISWI for burning whole tires or tirederived fuel that does not have metals removed against the costs associated with removing the metal or obtaining tires from an approved source and complying with the applicable NESHAP instead of the CISWI rule. Our research suggests that metal removal is routinely PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 practiced and that several state waste tire management programs are already in place and would most likely be a viable option for new kiln owners so that they would not be subject to the CISWI regulations. Indeed, we expect that all existing cement kilns that are classified as being waste-burning solely due to whole tires will, by the effective date for the CISWI standards, find a way to obtain their tires through an approved E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations tire management plan. Likewise, new sources could engineer their process to minimize waste generation in the first place or to separate wastes so that the materials sent to a combustion unit would not meet the definition of solid waste to begin with. For waste that is generated, our cost analyses have found that alternative waste disposal is generally available and less expensive. mstockstill on DSK4VPTVN1PROD with RULES2 2. What are the water and solid waste impacts? In our analysis, we have selected the lowest cost alternative (i.e., compliance or alternative disposal) for each facility. We anticipate affected sources will need to apply additional controls to meet the emission limits. These controls may use water, such as wet scrubbers, which would need to be treated. We estimate an annual requirement of 71 billion gallons per year of additional water would be required as a result of operating additional controls or increased sorbent use. Likewise, the addition of PM controls or improvements to controls already in place will increase the amount of particulate collected that will require disposal. Furthermore, ACI may be used by some sources, which will result in additional solid waste needing disposal. The annual amounts of solid waste that would require disposal are anticipated to be approximately 25,400 tpy from PM capture and 13,700 tpy from ACI. Perhaps the largest impact on solid waste would come from owners and operators who decide to discontinue the use of their CISWI unit and instead send waste to the landfill or MWC for disposal. Based on tipping fees and availability, we would expect most, if not all, of this diverted waste to be sent to a local landfill. As we discuss above, it may be that a good portion of the incinerators would determine that alternative disposal is a better choice than compliance with the standards. We estimate that approximately 110,600 tpy of waste would be diverted to a landfill. For new CISWI units, we estimate an annual requirement of 980,000 gallons per year of additional water would be required as a result of operating additional controls. The annual amounts of solid waste that would require disposal are anticipated to be approximately 6.8 tpy from PM capture and 4.7 tpy from ACI. 3. What are the energy impacts? The energy impacts associated with meeting the emission limits would consist primarily of additional electricity needs to run added or improved air pollution control devices. For example, increased scrubber pump VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 horsepower may cause slight increases in electricity consumption and sorbent injection controls would likewise require electricity to power pumps and motors. In our analysis, we have selected the lowest cost alternative (i.e., compliance or alternative disposal) for each facility. By our estimate, we anticipate that an additional 217,400 MW-hours per year would be required for the additional and improved control devices. As discussed earlier, there could be instances where owners and operators of ERUs and waste-burning kilns decide to cease burning waste materials. In these cases, the energy provided by the burning of waste would need to be replaced with a traditional fuel, such as natural gas. Assuming an estimate that 50 percent of the energy input to ERUs and kilns are from waste materials, an estimate of the energy that would be replaced with a traditional fuel if all existing units stopped burning waste materials, is approximately 56 TBtu/yr. For new CISWI units, we anticipate that 94 MW-hours per year would be required for additional and improved control devices. Since we do not anticipate any new energy recovery or waste-burning kiln units to be constructed, there would be no additional estimate for energy that would be replaced with a traditional fuel. 4. What are the secondary air impacts? For CISWI units adding controls to meet the emission limits, we anticipate minor secondary air impacts. The combustion of fuel needed to generate additional electricity and to operate RTO controls would yield slight increases in emissions, including NOX, CO, PM and SO2 and an increase in CO2 emissions. Since NOX and SO2 are covered by capped emissions trading programs, and methodological limitations prevent us from quantifying the change in CO and PM, we do not estimate an increase in secondary air impacts for this rule from additional electricity demand. We believe it likely that the incinerators may elect to discontinue the use of their CISWI unit and send the waste to the landfill or other disposal means. As we discussed in the solid waste impacts above, this could result in approximately 110,600 tpy of waste going to landfills. By using the EPA’s Landfill Gas Estimation Model, we estimate that, over the 20-year expected life of a CISWI unit, the resulting methane generated by a landfill receiving the waste would be about 96,400 tons. If this landfill gas were combusted in a flare, assuming typical PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 9133 flare emission factors and landfill gas chlorine, Hg and sulfur concentrations, the following emissions would be expected: 20 tons of PM; 8 tons of HCl; 16 tons of SO2; 890 tons of CO; 46 tons of NOX; and 1.4 lbs of Hg. Similar to existing units, we anticipate minor secondary air impacts for new CISWI units adding controls as discussed above. 5. What are the cost and economic impacts? We have estimated compliance costs for all existing units to add the necessary controls and monitoring equipment, and to implement the inspections, recordkeeping and reporting requirements to comply with the final CISWI standards. We have also analyzed the costs of alternative disposal for the subcategories that may have alternative options to burning waste, specifically for the incinerators and the small, remote incinerators that may have an alternative to incineration. In our analysis, we have selected the lowest cost alternative (i.e., compliance or alternative disposal) for each facility. Based on this analysis, we anticipate an overall total capital investment of $816 million with an associated total annual cost of $271 million ($2008). For comparison, the 2011 final rule, estimated an overall total capital investment of $652 million with an associated total annual cost of $232 million ($2008). The annualized cost of today’s final rule are approximately 17% higher than those of the final 2011 CISWI rule. The changes in cost result from revising the inventories of the ERUs, waste-burning kilns, and small remote incinerators as discussed in Section II.C. of this preamble: ‘‘Summary of Significant Changes Since Proposal.’’ Under the rule, the EPA’s economic model suggests the average national market-level variables (prices, production-levels, consumption, international trade) will not change significantly (e.g., are less than 0.001 percent). The EPA performed a screening analysis for impacts on small entities by comparing compliance costs to sales/ revenues (e.g., sales and revenue tests). The EPA’s analysis found the tests were below 3 percent for four of the five small entities included in the screening analysis. In addition to estimating this rule’s social costs and benefits, the EPA has estimated the employment impacts of the final rule. We expect that the rule’s direct impact on employment will be small. For the reconsideration final, the estimated employment changes range E:\FR\FM\07FER2.SGM 07FER2 9134 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations between ¥400 to +900 employees, with a central estimate of +200. We have not quantified the rule’s indirect or induced impacts. For further explanation and discussion of our analysis, see the introductory memo and Section 3 of the RIA. For new CISWI units, we have estimated compliance costs for units coming online in the next 5 years. This analysis is based on the assumption that one new incinerator will come online over 5 years and that three new small remote incinerators will come online in the next year, followed by one new small remote incinerator per year for subsequent years. Additionally, it was assumed that each model unit will add the necessary controls, monitoring equipment, inspections, recordkeeping and reporting requirements to comply with NSPS limits. Based on our analysis, we anticipate an overall total capital investment of $9.3 million over 5 years with an associated total annual cost (for 2015) of $2.7 million. 6. What are the benefits? We estimate the monetized benefits of this regulatory action to be $420 million to $1.0 billion (2008$), 3 percent (discount rate) in the implementation year (2015). The monetized benefits of the regulatory action at a 7 percent discount rate are $380 million to $930 million (2008$). Using alternate relationships between PM2.5 and premature mortality supplied by experts, higher and lower benefits estimates are plausible but most of the expert-based estimates fall between these two estimates.10 Since the reconsideration proposal, we have made several updates to the approach we use to estimate mortality and morbidity benefits in the PM NAAQS RIAs (U.S. EPA, 2012a,b) 11 12, including updated epidemiology studies, health endpoints, and population data. Although we have not re-estimated the benefits for this rule to apply this new approach, these updates generally offset each other, and we anticipate that the rounded benefits estimated for this rule are unlikely to be different than those provided below. More information on these updates can be found in the PM NAAQS RIAs .A summary of the monetized benefits estimates at discount rates of 3 percent and 7 percent is in Table 7 of this preamble. TABLE 7—SUMMARY OF THE MONETIZED BENEFITS ESTIMATES FOR THE CISWI NSPS AND EG IN 2015 [Millions of 2008$] a b Estimated emission reductions (tpy) Total monetized benefits (3% Discount Rate) Total monetized benefits (7% Discount Rate) 917 $210 to $510 ......... $190 to $460. SO2 .................................................................................................................. NOX ................................................................................................................. 6,262 5,399 $180 to $450 ......... $26 to $64 ............. $170 to $410. $24 to $58. Total ......................................................................................................... .................................... $420 to $1,000 ...... $380 to $930. Pollutant PM2.5 ............................................................................................................... PM2.5 Precursors a All estimates are for the implementation year (2015) and are rounded to two significant figures so numbers may not sum across rows. All fine particles are assumed to have equivalent health effects but the benefit-per-ton estimates vary between precursors because each ton of precursor reduced has a different propensity to form PM2.5. Benefits from reducing HAP are not included. mstockstill on DSK4VPTVN1PROD with RULES2 These benefits estimates represent the total monetized human health benefits for populations exposed to less PM2.5 in 2015 from controls installed to reduce air pollutants in order to meet these standards. To estimate human health benefits of this rule, the EPA used benefit-per-ton factors to quantify the changes in PM2.5-related health impacts and monetized benefits based on changes in SO2 and NOX emissions. These estimates are calculated as the sum of the monetized value of avoided premature mortality and morbidity associated with reducing a ton of PM2.5 and PM2.5 precursor emissions. To estimate human health benefits derived from reducing PM2.5 and PM2.5 precursor emissions, we used the general approach and methodology laid out in Fann, Fulcher, and Hubbell (2009).13 To generate the benefit-per-ton estimates, we used a model to convert emissions of direct PM2.5 and PM2.5 precursors into changes in ambient PM2.5 levels and another model to estimate the changes in human health associated with that change in air quality. Finally, the monetized health benefits were divided by the emission reductions to create the benefit-per-ton estimates. These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to support the development of differential effects estimates by particle type. Directly emitted PM2.5, SO2 and NOX are the primary precursors affected by this rule. Even though we assume that all fine particles have equivalent health effects, the benefit-per-ton estimates vary between precursors depending on the location and magnitude of their impact on PM2.5 levels, which drive population exposure. For example, SO2 has a lower benefit-per-ton estimate than direct PM2.5 because it does not form as much PM2.5, thus, the exposure would be lower and the monetized health benefits would be lower. It is important to note that the magnitude of the PM2.5 benefits is largely driven by the concentration response function for premature mortality. Experts have advised the EPA 10 Roman, et al., 2008. Expert Judgment Assessment of the Mortality Impact of Changes in Ambient Fine Particulate Matter in the U.S. Environ. Sci. Technol., 42, 7, 2268–2274. 11 U.S. Environmental Protection Agency (U.S. EPA). 2012a. Regulatory Impact Analysis for the Proposed Revisions to the National Ambient Air Quality Standards for Particulate Matter. EPA–452/ R–12–003. Office of Air Quality Planning and Standards, Health and Environmental Impacts Division. June. Available at https://www.epa.gov/ ttnecas1/regdata/RIAs/PMRIACombinedFile_ Bookmarked.pdf. 12 U.S. Environmental Protection Agency (U.S. EPA). 2012b. Regulatory Impact Analysis for the Final Revisions to the National Ambient Air Quality Standards for Particulate Matter. EPA–452/R–12– 003. Office of Air Quality Planning and Standards, Health and Environmental Impacts Division. December. Available at https://www.epa.gov/pm/ 2012/finalria.pdf. 13 Fann, N., C.M. Fulcher, B.J. Hubbell. 2009. ‘‘The influence of location, source, and emission type in estimates of the human health benefits of reducing a ton of air pollution.’’ Air Qual Atmos Health (2009) 2:169–176. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 to consider a variety of assumptions, including estimates based on both empirical (epidemiological) studies and judgments elicited from scientific experts, to characterize the uncertainty in the relationship between PM2.5 concentrations and premature mortality. For this rule, we cite two key empirical studies, the American Cancer Society cohort study 14 and the extended Six Cities cohort study.15 In the RIA for this rule, which is available in the docket, we also include benefits estimates derived from expert judgments and other assumptions. The EPA strives to use the best available science to support our benefits analyses. We recognize that interpretation of the science regarding air pollution and health is dynamic and evolving. After reviewing the scientific literature and recent scientific advice, we have determined that the nothreshold model is the most appropriate model for assessing the mortality benefits associated with reducing PM2.5 exposure. Consistent with this recent advice, we are replacing the previous threshold sensitivity analysis with a new LML assessment. While a LML assessment provides some insight into the level of uncertainty in the estimated PM mortality benefits, the EPA does not view the LML as a threshold and continues to quantify PM-related mortality impacts using a full range of modeled air quality concentrations. Most of the estimated PM-related benefits in this rule would accrue to populations exposed to higher levels of PM2.5. Using the Pope, et al., (2002) study, 85 percent of the population is exposed at or above the LML of 7.5 mg/ m3. Using the Laden, et al., (2006) study, 40 percent of the population is exposed above the LML of 10 mg/m3. It is important to emphasize that we have high confidence in PM2.5-related effects down to the lowest LML of the major cohort studies. This fact is important, because as we estimate PM-related mortality among populations exposed to levels of PM2.5 that are successively lower, our confidence in the results diminishes. However, our analysis shows that the great majority of the impacts occur at higher exposures. Every benefit analysis examining the potential effects of a change in environmental protection requirements 14 Pope, et al., 2002. ‘‘Lung Cancer, Cardiopulmonary Mortality, and Long-term Exposure to Fine Particulate Air Pollution.’’ Journal of the American Medical Association 287:1132– 1141. 15 Laden, et al., 2006. ‘‘Reduction in Fine Particulate Air Pollution and Mortality.’’ American Journal of Respiratory and Critical Care Medicine. 173: 667–672. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 is limited, to some extent, by data gaps, model capabilities (such as geographic coverage) and uncertainties in the underlying scientific and economic studies used to configure the benefit and cost models. Despite these uncertainties, we believe the benefit analysis for this rule provides a reasonable indication of the expected health benefits of the rulemaking under a set of reasonable assumptions. This analysis does not include the type of detailed uncertainty assessment found in the 2006 PM2.5 NAAQS RIA because we lack the necessary air quality input and monitoring data to run the benefits model. In addition, we have not conducted any air quality modeling for this rule. The 2006 PM2.5 NAAQS benefits analysis 16 provides an indication of the sensitivity of our results to various assumptions. It should be emphasized that the monetized benefits estimates provided above do not include benefits from several important benefit categories, including reducing other air pollutants, ecosystem effects and visibility impairment. The benefits from reducing HAP have not been monetized in this analysis, including reducing 20,000 tons of carbon monoxide, 780 tons of HCl, 2.5 tons of lead, 1.8 tons of cadmium, 680 pounds of mercury, and 58 grams of total D/F each year. Although we do not have sufficient information or modeling available to provide monetized estimates for this rulemaking, we include a qualitative assessment of the health effects of these air pollutants in the RIA for this rule, which is available in the docket. For more information on the benefits analysis, please refer to the RIA for this rulemaking, which is available in the docket. III. NHSM Final Revisions A. Statutory Authority The EPA is promulgating these regulations under the authority of sections 2002(a)(1) and 1004(27) of the RCRA, as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the CAA ((42 U.S.C. 7429) directs the EPA to establish standards for CISWIs, which burn solid waste. Section 129(g)(6) of the CAA provides that the term ‘‘solid waste’’ is to be established by the EPA under RCRA. Section 2002(a)(1) of RCRA authorizes the agency to promulgate regulations as are necessary to carry out its functions under the Act. 16 U.S. Environmental Protection Agency, 2006. Final Regulatory Impact Analysis: PM2.5 NAAQS. Prepared by Office of Air and Radiation. October. Available on the Internet at https://www.epa.gov/ttn/ ecas/ria.html. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 9135 The statutory definition of ‘‘solid waste’’ is provided in RCRA section 1004(27). B. NHSM Rule History The agency first solicited comments on how the RCRA definition of solid waste should apply to NHSMs used as fuels or ingredients in combustion units in an ANPRM, which was published in the Federal Register on January 2, 2009 (74 FR 41). We then published a NHSM proposed rule on June 4, 2010 (75 FR 31844), which the EPA issued in final form on March 21, 2011 (76 FR 15456). The March 2011, NHSM final rule codified the standards and procedures for identifying which non-hazardous secondary materials are ‘‘solid waste’’ when used as fuels or ingredients in combustion units. In October 2011, the agency announced it would be initiating new rulemaking proceedings to revise certain aspects of the NHSM rule.17 On December 23, 2011, we then published a proposed rule, which addressed specific targeted amendments and clarifications to the part 241 regulations (76 FR 80452). These proposed revisions and clarifications were limited to certain issues on which the agency had received new information, as well as targeted revisions that the agency believed were appropriate in order to allow implementation of the rule as the EPA originally intended.18 As stated throughout the preamble to the proposed rule, the agency was not reopening the entire NHSM rule for reconsideration and would not respond to comments directed toward rule provisions that were not specifically identified in this proposal.19 Therefore, any comments that were submitted outside the scope of the proposal, or for which the EPA did not solicit comment, 17 See October 14, 2011, Letter from Administrator Lisa P. Jackson to Senator Olympia Snowe. A copy of this letter has been placed in the docket for today’s rule (EPA–HQ–RCRA–2008– 1873). 18 For more information regarding the intent of the December 23, 2011, proposed rule, see 76 FR 80469. For more information regarding the scope of the proposed rule, see 76 FR 80470–80474. 19 For example, see 76 FR 80470: ‘‘The EPA is soliciting comment only on these targeted changes and is not reopening any other issues in the final NHSM rule. Comments that go beyond the scope of this narrow RCRA rulemaking will not be addressed by the Agency when it finalizes today’s proposed rule.’’ See also 76 FR 80474 ‘‘As noted above, the intent of this proposal is to identify certain specific aspects of the rule which EPA is reconsidering and on which it is soliciting public comment. The Agency is not reopening the entire rule for reconsideration and will not respond to comments directed toward rule provisions that are not specifically identified in this proposal.’’ and 76 FR 80482 ‘‘The Agency is not considering any change to the self-implementing, mandatory nature of the § 241.3 standards for individual facilities and will not respond to any comments on this topic.’’. E:\FR\FM\07FER2.SGM 07FER2 9136 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations are not addressed in this final rule, or in the Response to Comments document that has been prepared for this final rule. The Agency also notes that even though the NHSM final rule will become effective on April 8, 2013, existing facilities that currently burn NHSMs will have a substantial amount of time before having to comply with the CISWI standards, as the compliance date for existing CISWI sources subject to CAA 129 standards is 5 years after the date of publication of the CISWI final rule or 3 years after the state plan is approved, whichever happens earlier. In addition, the Boiler MACT rule provides until February 7, 2016, for existing sources to comply with the standards. We recognize that new sources will have to comply with these rules sooner than do existing sources. Thus, we believe that there will be more than adequate time for persons to determine whether or not a NHSM sent to a combustion unit is a solid waste. mstockstill on DSK4VPTVN1PROD with RULES2 C. Introduction—Summary of Regulations Being Finalized In today’s rule, the EPA is finalizing certain amendments and clarifications to the 40 CFR part 241 regulations on which we have received new information, as well as specific targeted revisions that are appropriate in order to allow implementation of the rule as the EPA originally intended. The regulations being issued today are summarized below. The intent of this summary is to give a brief overview of the revised part 241 regulations. More detailed discussions, including the agency’s responses to comments received on the proposed rule and its rationale for decisions being made in this final action, are included in section III.D of this preamble. In addition, in an effort to aid the regulated community, the EPA is including in the docket for today’s rule an informational redline/ strikeout version that identifies the specific changes to the regulatory text, as compared to the March 2011, final rule.20 1. Revised Definitions In today’s rule, the EPA is finalizing revisions to the three definitions discussed in the proposed rule: (1) ‘‘clean cellulosic biomass,’’ (2) ‘‘contaminants,’’ and (3) ‘‘established tire collection programs.’’ In addition, based on comments received on the proposed rule, the agency is also finalizing a revised definition of 20 This document has been titled, ‘‘NHSM 2012 Final Rule Regulation Changes’’ and is placed in Docket No: EPA–HQ–RCRA–2008–0329. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 ‘‘resinated wood.’’ These revised definitions will be codified in 40 CFR 241.2. a. Clean Cellulosic Biomass In today’s action, the EPA is issuing a revised definition of ‘‘clean cellulosic biomass’’ that: (1) Makes clear that the list of biomass materials are examples within the definition and is not intended to be an exhaustive list; and (2) provides a more comprehensive list of clean cellulosic biomass to guide the regulated community. These revisions do not change the agency’s intent under the March 2011 final rule, but identify additional materials that are ‘‘clean cellulosic biomass,’’ and, thus, are traditional fuels under these regulations. A discussion of relevant comments regarding the definition of clean cellulosic biomass, as well as our rationale for making these determinations, can be found in section III.D.1.a of this preamble. b. Contaminants In today’s action, the EPA is issuing a final definition of ‘‘contaminants’’ to clarify what constituents will be considered contaminants for the purposes of the contaminant legitimacy criterion. Revisions include: (1) The replacement of a reference to ‘‘any constituent that will result in emissions’’ with a specific list of constituents to be considered as contaminants based on their status as a precursor to air emissions; (2) the removal from the definition of specific CAA section 112(b) and 129(a)(4) pollutants that are not expected to be found in any NHSM or are adequately covered elsewhere in the definition; and (3) the removal of the phrase ‘‘including those constituents that could generate products of incomplete combustion’’ from the definition. A discussion of relevant comments regarding the contaminants definition, as well as our rationale for making these determinations, can be found in section III.D.1.b of this preamble. c. Established Tire Collection Programs In today’s action, the EPA is finalizing a revised definition of ‘‘established tire collection program’’ in order to account for ‘‘off-specification’’ (including factory scrap) tires that are contractually arranged to be collected, managed and transported between a tire manufacturer (including retailers or other parties involved in the distribution and sale of new tires) and a combustor, which is analogous to how scrap tires removed from vehicles are managed. The offspecification tires are not removed from PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 vehicles 21 and are handled under contractual arrangements which ensure they are not discarded. A description of how the changes to the definition accommodate the management of offspecification tires can be found in section III.D.1.c of this preamble. In addition to the proposed changes, we are revising the definition to specifically include tires that were not abandoned and were received from the general public at tire collection program events. A discussion of relevant comments regarding the definition, as well as our rationale for making this determination, can be found in section III.D.1.c of this preamble. d. Resinated Wood In today’s action, the EPA is issuing a revised definition of ‘‘resinated wood’’ that includes additional materials in order to be more representative of the universe of resinated wood residuals that are currently used as fuels throughout the wood product manufacturing process. Revisions include: (1) Replacing the phrase ‘‘containing resin adhesives’’ with the phrase, ‘‘containing binders and adhesives,’’ and (2) specifically including ‘‘off-specification resinated wood products that do not meet a manufacturing quality or standard’’ within this definition. A discussion of relevant comments regarding the resinated wood definition, as well as our rationale for making this determination, can be found in section III.D.3.b of this preamble. 2. Contaminant Legitimacy Criterion for NHSM Used as Fuels In today’s action, the EPA is issuing in final form a revised contaminant legitimacy criterion for NHSMs used as fuels to provide additional details on how contaminant comparisons between NHSMs and traditional fuels may be made. Revisions include: (1) The ability to compare groups of contaminants where technically reasonable; (2) the clarification that ‘‘designed to burn’’ means can burn or does burn, and not necessarily permitted to burn; (3) the ability to use traditional fuel data from national surveys and other sources beyond a facility’s current fuel supplier; and (4) the ability to use ranges of traditional fuel contaminant levels when making contaminant comparisons, provided the variability of NHSM contaminant levels is also considered. A discussion of relevant comments regarding the contaminant legitimacy criterion for NHSMs used as fuels, as 21 ‘‘Removal from vehicles’’ had been a component of the definition. E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations well as our rationale for making these determinations, can be found in section III.D.2 of this preamble. 3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels In today’s final rule, the agency is codifying determinations that certain NHSMs are non-wastes when used as fuels. Based on all available information, the EPA has determined that the following NHSMs are categorically not a solid waste when burned as a fuel in combustion units: (1) Scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires; (2) resinated wood; (3) coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse; and (4) dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials. mstockstill on DSK4VPTVN1PROD with RULES2 a. Scrap Tires In today’s action, the agency is adding scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires (including factory scraps), to the categorical list of non-waste fuels (see 40 CFR 241.4(a)(1)) as proposed. Based on this categorical non-waste determination, facilities burning the scrap tires that qualify for the provision will not need to demonstrate that this NHSM meets the legitimacy criteria on a site-by-site basis. Further, the addition to the new categorical non-waste provision at 40 CFR 241.4(a)(1) eliminated the need for the previous scrap tire provision at 40 CFR 241.3(b)(2)(i),22 which has been removed and reserved in today’s final rule. A discussion of relevant comments regarding the scrap tire provision, as well as our rationale for making this 22 The scrap tire provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: ‘‘(b) The following nonhazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs.’’ VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 determination, can be found in section III.D.3.a of this preamble. b. Resinated Wood In today’s action, the agency is listing resinated wood as a non-waste fuel in 40 CFR 241.4(a)(2), as proposed. The EPA has evaluated resinated wood and, based on all available information, including consideration of the legitimacy criteria, as well as other relevant factors, has determined that resinated wood is not a solid waste when used as a fuel. Based on this categorical non-waste determination, facilities burning resinated wood residuals as a fuel will not need to demonstrate that this NHSM meets the legitimacy criteria on a site-by-site basis. Further, the addition of this categorical non-waste determination (40 CFR 241.4(a)(2)) eliminated the need for the previous resinated wood provision at 40 CFR 241.3(b)(2)(ii),23 which has been removed and reserved in today’s final rule. A discussion of relevant comments regarding the categorical nonwaste determination for resinated wood, as well as our rationale for making this determination, can be found in section III.D.3.b of this preamble. c. Coal Refuse In today’s action, the agency has determined that coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse, is a non-waste fuel in 40 CFR 241.4(a)(3). This determination is based on the fact that: (1)Legacy coal refuse processed in the same manner as currently-generated coal refuse meets the definition of processing (as codified in 40 CFR 241.2); and (2)the EPA’s assessment that such materials meet the legitimacy criteria for fuels (as codified in 40 CFR 241.3(d)(1)) when compared to currently-generated coal refuse, which the agency considers to be within the definition of a traditional fuel (as codified in 40 CFR 241.2). Based on this categorical non-waste determination, facilities burning these materials as a fuel will not need to demonstrate that this NHSM meets the legitimacy criteria on a site-by-site basis. A discussion of relevant comments regarding the categorical non-waste determination for 23 The resinated wood provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: ‘‘(b) The following non-hazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (ii) Resinated wood used in a combustion unit.’’ PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 9137 coal refuse that is recovered from legacy piles and processed, as well as our rationale for making this determination, can be found in section III.D.5.b of this preamble. d. Pulp and Paper Sludge In today’s action, the EPA has determined that dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials are non-waste fuels in 40 CFR 241.4(a)(4). This determination for pulp and paper sludge as a categorical nonwaste represents the agency’s finding, after balancing the regulatory legitimacy criteria with other relevant factors, that the burning of this material is an integral part of facility operations, and as described in the categorical listing is for energy recovery and not discard. Based on this categorical non-waste determination, facilities meeting the description of this determination and burning these materials as a fuel will not need to demonstrate that this NHSM meets the legitimacy criteria on a siteby-site basis. A discussion of relevant comments regarding the categorical nonwaste determination for pulp and paper sludges, as well as our rationale for making this determination, can be found in section III.D.5.a of this preamble. 4. Rulemaking Petition Process for Other Categorical Non-Waste Determinations (40 CFR 241.4(b)) In today’s final rule, the agency is finalizing a rulemaking petition process that provides persons with an opportunity to submit a rulemaking petition to the Administrator, seeking a categorical determination for additional NHSMs to be listed in 40 CFR 241.4(a) as non-waste fuels. The process for submitting a rulemaking petition to the agency, as well as the factors a successful application must include, is listed in 40 CFR 241.4(b). A discussion of relevant comments regarding the petition process for the categorical listings, as well as our rationale for the categorical rulemaking petition process, can be found in section III.D.4 of this preamble. 5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition Process In today’s final rule, the agency is streamlining the non-waste determination provisions under 40 CFR 241.3(c). The public participation process was streamlined to E:\FR\FM\07FER2.SGM 07FER2 9138 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations accommodate petitions that apply to multiple combustors. In particular, the regulations were adjusted to indicate that the appropriate office in the EPA headquarters may handle petitions that cross multiple regions. Furthermore, if a determination is made that the NHSM is a non-waste, the decision will be retroactive and apply on the date the petition was submitted. A discussion of relevant comments regarding the streamlining of the 40 CFR 241.3(c) nonwaste determination petition process, as well as our rationale for the streamlining changes made to the nonwaste determination process, can be found in section III.D.6 of this preamble. 6. Revised Introductory Text for 40 CFR 241.3(a) In today’s final rule, the agency has decided not to revise the introductory text of 40 CFR 241.3(a). In its December 2011 proposed rule, the EPA considered revising this introductory text to state that NHSMs are ‘‘presumed to be’’ solid wastes, rather than ‘‘are’’ solid wastes. While the proposed change was not expected to be a substantive change to the rule, but merely a reflection of the record at the time, it did engender some confusion among commenters. Based on the comments received, we have decided not to issue revised introductory text 40 CFR 241.3(a) and, thus, this section will continue to read as codified in the March 2011 NHSM final rule. A discussion of relevant comments regarding the introductory text of 40 CFR 241.3(a), as well as our rationale for this decision, can be found in section III.D.7 of this preamble. D. Comments on the Proposed Rule and Rationale for Final Decisions In this section, the EPA addresses major comments the agency received regarding the targeted revisions that were proposed to certain part 241 provisions in the December 23, 2011, proposal. In discussing the comments received on the proposal, we also provide the rationale for making the revisions that are finalized in today’s action. As previously discussed, the agency specifically stated that it would not address comments that go beyond the scope of this narrow RCRA rulemaking. mstockstill on DSK4VPTVN1PROD with RULES2 1. Revised Definitions a. Clean Cellulosic Biomass The proposed rule suggested revising the March 2011 definition of ‘‘clean cellulosic biomass’’ to list additional examples of biomass materials that are appropriately included within this definition. These fuels are not secondary materials or solid wastes VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 unless discarded. Clean biomass is ‘‘biomass that does not contain contaminants at concentrations not normally associated with virgin biomass materials’’ (codified in 40 CFR 241.2). This regulatory revision would not change the agency’s intent under the March 2011 final rule, but would identify additional materials that are ‘‘clean cellulosic biomass,’’ and, thus, would be a traditional fuel under these regulations. While the list of clean biomass materials is only illustrative and not exhaustive, it is now more comprehensive than the list that appeared in the definition included in the 2011 NHSM final rule. One of the materials within the definition is clean C&D wood. In light of some confusion in comments regarding C&D wood, the EPA is clarifying the meaning of the term in the definition of ‘‘clean cellulosic biomass.’’ Construction & demolition wood actually may be placed into different categories, depending upon its origin. In accordance with the traditional fuels definition in section 241.2, clean C&D wood could be combusted as a traditional fuel if it does not contain contaminants at concentrations not normally associated with virgin wood. However, the final NHSM rule also addressed C&D wood that may contain contaminated material.24 There is no need to repeat these discussions here, except to clarify what the final rule means. In general, contaminated C&D wood that has been processed to remove contaminants, such as lead-painted wood, treated wood containing contaminants, such as arsenic and chromium, metals and other non-wood materials, prior to burning, likely meets the processing and legitimacy criteria for contaminants, and thus can be combusted as a non-waste fuel (see further discussion in response to comments below). Comment: One commenter noted that the EPA’s specific inclusion of ‘‘untreated wood pallets’’ implicitly accepts that small amounts of non-wood material inherent to the pallets, such as screws or plastic fasteners, do not render those materials solid waste under the rule, and de minimis amounts of non-biomass material would not require these types of materials to be burned in incinerators under the CISWI rule. Another commenter requested that the EPA reconsider use of the word ‘‘untreated’’ when referring to wood pallets. The commenter argues that the EPA does not define the word ‘‘untreated’’ and its use could create confusion. Rather, the commenter 24 See PO 00000 76 FR 15485. Frm 00028 Fmt 4701 Sfmt 4700 recommends that ‘‘untreated’’ be replaced with the word ‘‘clean,’’ which is an adjective used in the definition to distinguish other materials (e.g., ‘‘clean construction and demolition wood’’). Response: Wood pallets are refurbished or recycled for other uses by pallet recyclers. When the useful life of the pallet is finished, the recyclers typically remove the small amount of non-wood material inherent to pallets that would inhibit combustion, such as screws or plastic fasteners. The pallets are then ready for use as fuel, and the non-wood material would not impact whether the material can be burned in combustion units that meet the CAA section 112 emission standards. The agency is not aware of instances where the pallets are used as fuel directly by the original users and non-wood material is left remaining in the pallet. Such pallets would not be considered clean cellulosic biomass under the rule. With respect to the other comment, the EPA does not agree, that the term ‘‘untreated’’ wood pallet be replaced with the term ‘‘clean’’ wood pallet. The term ‘‘clean’’ is defined in the traditional fuels definition as described above, and applies to all the materials listed in the definition of clean cellulosic biomass, which includes untreated wood pallets. It would be redundant to define ‘‘clean’’ biomass as including ‘‘clean’’ wood pallets. The point is that some wood pallets may contain treated wood, such as CCA treated wood, and inclusion of the term ‘‘untreated’’ with wood pallet would help emphasize that such treated wood would not be considered ‘‘clean’’ under the definition of clean cellulosic biomass. Comment: Several commenters indicated that the definition of clean cellulosic biomass remains ambiguous because it continues to include the caveat that: ‘‘Clean biomass is biomass that does not contain contaminants at concentrations not normally associated with virgin biomass materials.’’ Thus, notwithstanding the EPA’s attempt at expanding the definition of clean cellulosic biomass, the commenters believed that this sentence should be removed because it perpetuates uncertainty. It is not clear what comparisons are permissible and what concentration levels are appropriate. The commenters also indicated that this sentence perpetuates the EPA’s erroneous interpretation of its authority under RCRA. A material does not become a waste when burned for energy recovery just because it may contain contaminants—prior to combustion— not normally associated with virgin biomass. It becomes a waste only if it is E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 combusted for the purpose of disposal, rather than for energy recovery. Response: The agency disagrees with the commenter that defining the term ‘‘clean’’ leads to ambiguity in identifying which materials are clean cellulosic biomass. On the contrary, defining the term ‘‘clean’’ is meant to ensure that contaminated cellulosic material being burned, such as leadpainted wood or arsenic treated wood, does not introduce contaminants (as defined in 40 CFR 241.2) not normally associated with virgin biomass materials. The agency wishes to emphasize, however, that determinations that the cellulosic biomass used as a fuel or ingredient is clean, do not presuppose any testing of contaminant levels. Persons can use expert or process knowledge of the material to justify decisions regarding presence of contaminants. With respect to the comment that burning of contaminated material does not make it a waste, the agency has not reopened this issue for this rule and stands by its responses in the rulemaking record for the March 2011 final rule.25 Comment: One commenter provided the example of whether treated seeds that contain additives are considered contaminants in virgin biomass. These additives may not be found in virgin seeds but are not harmful at the concentrations found in the seeds. The commenter questioned whether any concentration above ‘‘natural’’ (concentration levels found in virgin material), especially when combusted as fuel, would be prohibited and require additional waste regulation. Response: Seeds may be treated with pesticides and hormones to aid in germination. Such chemicals do not generally include contaminants as defined in section 241.2; therefore, such treated seeds would be considered clean cellulosic biomass. 25 See, for example, 76 FR 15523–4: ‘‘If a nonhazardous secondary material contains contaminants that are not comparable to those found in traditional fuels, and those contaminants are related to pollutants that are of concern at solid waste combustion units, then it follows that discard is occurring. The contaminants in these cases could not be considered a normal part of a legitimate fuel and are being discarded, either through destruction in the combustion unit or through releases into the air. Units that burn such materials are therefore most appropriately regulated under the CAA section 129 standards for solid waste incinerators.’’ See also 76 FR 15485, which states: ‘‘[A]s we have noted previously, the criterion or test for determining whether a material is burned as a waste or a commodity fuel is the level of the contaminant in the secondary material itself—that is destruction of contaminants indicates a waste treatment activity rather than a commodity fuel.’’ VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 Comment: Several commenters indicated that, as part of the EPA’s changes in the definition of clean cellulosic biomass, it is proposing to consider treated or painted wood the same as ‘‘virgin’’ wood if it has lower than de minimis levels of contamination. While adoption of numerical values in the rule would require additional provisions for measurements and would require additional notice, the commenter believes that such clarity is important for successful implementation of the rule. Such limits would be applied to ‘‘clean’’ C&D material, for instance, among other potential fuel types. The term de minimis is not defined numerically in the proposed rule and the commenters argue that without a specific numerical de minimis limit, sources would not have a clear understanding of whether they fall under the CISWI or hazardous waste incinerator rules. The commenter recommended that the EPA define and allow for public comment on the levels associated with the term de minimis and base the de minimis levels on contaminant levels found in typical ‘‘virgin’’ wood. Response: Regarding the addition of a definition for de minimis amounts of contaminants remaining in processed wood, the agency does not believe it appropriate to identify specific concentration levels. Rather, the agency interprets de minimis as that term is commonly understood; i.e., insignificant or negligible amounts of contamination such as small wood sliver containing lead paint). As indicated above, there also appears to be confusion among commenters regarding two different categories of C&D wood—‘‘clean C&D wood’’ that is a traditional fuel, and C&D wood that has been processed to remove contaminants. Under the 2011 NHSM final rule, C&D wood that has been processed to remove contaminants, such as lead-painted wood, treated wood containing contaminants, such as arsenic and chromium, metals and other non-wood materials, prior to burning, likely meets the processing and legitimacy criteria for contaminants, and thus can be combusted as a non-waste fuel but would not be considered ‘‘clean C&D wood.’’ Such C&D wood may contain de minimis amounts of contaminants and other materials provided it meets the legitimacy criteria for contaminant levels. To meet the contaminant legitimacy criterion, concentration levels of contaminants in the processed C&D wood must be comparable to or less than the levels in the traditional fuel the unit was PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 9139 designed to burn, whether wood or another traditional fuel (see section III.D.2 for a discussion on contaminant comparisons). In contrast, ‘‘clean C&D wood’’ is a traditional fuel that does not require processing and meets the definition of ‘‘clean’’ (i.e., C&D wood that does not contain contaminants at concentrations not normally associated with virgin biomass (wood)). Thus, de minimis amounts of contaminants and other material appropriate for processed C&D wood would not be appropriate for clean wood that is a traditional fuel. Comment: One commenter argued that states should have discretion about how to determine appropriate fuel quality but it should be no less stringent than limits set by the EPA. There should be a distinction between de minimis levels of contamination in C&D wood and a fuel quality standard. Response: We do not necessarily disagree with the commenter. That is, as discussed in the final rule, part 241 does not preempt a state’s statutory or regulatory standards and states are free to establish fuel quality standards for C&D wood. However, we would also note that as solid waste is defined by the EPA under RCRA, such state standards would not necessarily impact the status of the material as it relates to which combustion units are subject to CAA section 129 (56 FR 15546). b. Contaminants The December 2011 rule proposed to clarify what constituents will be considered contaminants by making the definition of ‘‘contaminants’’ more specific. However, the proposal maintained the fundamental approach— and was intended to cover the same constituents—as the March 2011 final rule. The March 2011 final rule and the December 2011 proposed rule identified the same three ways a chemical can be labeled a contaminant. First, it may be one of the 187 HAP currently listed in CAA section 112(b); second, it may be one of the nine pollutants listed under CAA section 129(a)(4); and third, it may be one of a handful of chemicals whose combustion will result in the formation of listed CAA section 112(b) and section 129(a)(4) pollutants (e.g., sulfur that will result in SO2). The definition proposed in December provided clarification by listing the constituents that belong to the third group.26 Specifically, the proposed 26 Eleven metal elements directly identified in CAA section 112(b) were also listed in the proposed definition to provide the regulated community with a complete list of elements that are considered ‘‘contaminants’’ under the rule. E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9140 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations revision replaced a potentially ambiguous reference to ‘‘any constituent that will result in emissions’’ with the four specific elements the agency intended to be considered as contaminants (chlorine, fluorine, nitrogen, and sulfur) based on their status as a precursor to air emissions. In all four cases, the CAA pollutant itself (e.g., SO2) is not likely to be present in the NHSM prior to combustion, and the only way to measure constituents prior to combustion ‘‘that will result in emissions’’ of that pollutant is to measure a known precursor (e.g., sulfur) instead. For each of the four precursor elements listed as contaminants in the proposal, the expected fate for the precursor during combustion is formation of the aforementioned pollutant and the precursor makes no substantive contribution to the material’s value as a fuel. For these reasons, the agency proposed to specifically identify chlorine, fluorine, nitrogen, and sulfur as contaminants in place of HCl, HF, NOX and SO2. By limiting the list of precursors considered contaminants to these four elements, the revised definition also made clear that the agency did not intend to include other elements present in contaminants (such as hydrogen and carbon) as contaminants themselves. The December 2011 proposed rule also removed from the definition of contaminants those pollutants in CAA sections 112(b) and 129(a)(4) that we do not expect to find in any NHSM. Specifically: • Chlorine gas, HCl, HF, NOX, and SO2 were removed from the definition because they are unlikely to be found in NHSMs prior to combustion and had been replaced by the elements chlorine, fluorine, nitrogen and sulfur as discussed above; • Fine mineral fibers were removed because they are releases from the manufacturing and processing (not combustion) of non-combustible rock, glass or slag into mineral fibers; • Particulate matter and coke oven emissions were removed because they are products of combustion unlikely to exist in NHSMs prior to combustion; • Cresol isomers m-cresol, o-cresol, and p-cresol were removed because the listed pollutant cresols/cresylic acid includes these three isomers; • Xylene isomers m-xylene, o-xylene, and p-xylene were removed because the listed pollutant xylenes includes these three isomers; and • Diazomethane, white phosphorus, and titanium tetrachloride were removed because their high reactivity makes their presence in NHSMs very unlikely. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 In addition, two phrases present in the March 2011 final rule ‘‘contaminants’’ definition were not included in the December 2011 proposed rule definition. First, the phrase concerning constituents ‘‘that will result in emissions of the air pollutants’’ was removed since the regulated community had expressed confusion that in determining whether or not a NHSM meets the contaminant legitimacy criterion, emissions from the combustion unit were to be evaluated. The EPA disagreed and directed readers to the language in sections 241.3(d)(1)(iii) and 241.3(d)(2)(iv). These sections state that contaminant comparisons are based on the presence of contaminants in the NHSM (or products made from NHSMs in the case of ingredients), not the resulting emissions. The proposed revision also inserted the phrase ‘‘prior to combustion’’ into the contaminants definition to further emphasize that the NHSMs, not the emissions that result from NHSMs, are to be evaluated when conducting contaminant comparisons. The rationale for evaluating the NHSM, and not emissions, can be found in the record for the March 2011 final rule.27 The proposal merely added language to ensure the rule is consistent with the agency’s intent. The second phrase proposed to be removed from the March 2011 final rule definition was a reference to ‘‘those constituents that could generate products of incomplete combustion,’’ also referred to as PICs. This reference was removed from the definition because it was duplicative and potentially misleading. Specifically, this phrase was not necessary because all PICs that the agency considers air pollutants—including dioxins, dibenzofurans, PCBs and PAHs—are listed in CAA sections 112(b) or 129(a)(4) and are thus already included in the ‘‘contaminants’’ definition. More importantly, the phrase was potentially misleading because PIC formation depends heavily on combustion conditions, such as air/fuel ratio and mixing. These conditions are controlled to limit emissions and neither these conditions nor emissions are the subject of this rule. The NSHM itself is the subject of this rule. Thus, the removal of both phrases clarified, but did not alter, the constituents subject to the contaminant legitimacy criterion. The EPA believes that comments have not changed the basis for listing specific precursors to air emissions as contaminants, nor have they changed the basis for either excluding specific 27 For PO 00000 example, see 76 FR 15524–15525. Frm 00030 Fmt 4701 Sfmt 4700 constituents from the definition or removing the references to ‘‘that will result in emissions of the air pollutants’’ and ‘‘constituents that could generate products of incomplete combustion’’ from the definition. Thus, the EPA is adopting the reasoning from the proposal and revising the definition of contaminants to incorporate these concepts. The EPA has decided, however, to make several modifications to the regulatory language of the December 2011 proposed rule based on comments received and information in the rulemaking record. First, in the final definition issued today, precursors will only be considered contaminants for NHSMs used as fuels; precursors will not be considered contaminants for NHSMs used as ingredients. Furthermore, precursors will not be considered contaminants if they do not form their corresponding pollutants. Also, opacity has been removed from the contaminants definition. Finally, the phrase ‘‘prior to combustion’’ has not been inserted into the contaminants definition, as had been proposed. Contaminants in NHSMs used as fuel in combustion units must still be evaluated prior to combustion, and persons must still evaluate the NHSM itself (not emissions), but the agency has determined that the topic of when to evaluate contaminants is more appropriate to address in the legitimacy criteria than in the contaminants definition. Additional reasoning for keeping the rule provisions as proposed, and for any modifications to the proposed language, are described in the following responses to comments. Comment: Several commenters stated that the definition of contaminants should focus on contaminants released as combusted emissions. One commenter argued that contaminants should be compared between emitted contaminants and emission standards. A second commenter reiterated previous comments that contaminant levels should be related to the air emissions and not the content of the material. For support, commenters cited that the EPA reversed its position in the proposal by using possible air emissions as the basis for establishing what contaminants need to be compared. Response: The EPA has previously stated that contaminant levels before and after combustion can be important indicators of legitimacy and it maintains the position from the March 2011 final rule that non-waste fuels must be similar in composition to traditional E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations fuels prior to combustion.28 Because combustion and emission control processes can destroy or remove contaminants, a comparison of emissions profiles alone only tells one how well the combustion unit is operating, not whether the NHSM is being used as a legitimate non-waste commodity fuel.29 The EPA disagrees with the comment that the agency reversed its position on the consideration of emissions in the proposal by including precursors to air emissions as contaminants. The agency notes that a difference exists between comparing ‘‘emissions’’ and comparing ‘‘contaminants that will result in emissions,’’ the exact language used in the March 2011 final rule. The EPA has clarified what it intended by ‘‘contaminants that will result in emissions’’ in today’s final action. This clarification involves the listing of specific precursors known to result in emissions of air pollutants when combusted; it also involves the removal of specific pollutants known not to be present in NHSMs. Comment: Two commenters expressed concern that the proposed definition of contaminants conflicted with the contaminant legitimacy criterion for NHSMs used as ingredients in combustion units. Commenters stated that both the definition of contaminants, as proposed, and the existing contaminant legitimacy criterion for ingredients were clear when read separately but were contradictory when taken together. The commenters encouraged the EPA to clarify the regulatory text. Specifically, the commenters noted that for ingredients, contaminants could not be evaluated prior to combustion and then used to compare products produced using NHSMs to products produced using traditional materials. Response: The EPA has decided not to include language from the December 2011 proposed rule in the definition of contaminants that emphasized when NHSM contaminant levels are to be evaluated (i.e., before or after combustion). While the proposed additional language made clear that NHSMs used as a fuel were to be evaluated for contaminants ‘‘prior to combustion,’’ the agency agrees with the two commenters who argued that the proposed language conflicts with the contaminant legitimacy criterion for ingredients. The contaminant criterion for ingredients requires comparisons to be made between products produced with and without NHSMs, but until the 28 See 76 FR 15525. 29 Id. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 products exist, they cannot be compared. As such, the agency has decided not to adopt the proposed additional language addressing when contaminants are to be evaluated in the definition of contaminants. The agency proposed similar language in the December 2011 rule addressing this topic in the contaminant legitimacy criterion and the agency is adopting that language in today’s final rule. The agency has determined that the legitimacy criteria themselves (40 CFR 241.3(d)(1)(iii) for fuels and 40 CFR 241.3(d)(2)(iv) for ingredients) are more appropriate places to address this topic. The EPA has also decided to add language to the definition of contaminants clarifying that the specification of particular precursors to air emissions (i.e., chlorine, fluorine, nitrogen and sulfur) as contaminants does not apply to the contaminant legitimacy criterion for ingredients. As identified by the commenters, the contaminant criterion for ingredients requires comparisons to be made between products produced with and without NHSMs. Products can only be compared after combustion has occurred, at which point there will be no benefit to measuring levels of precursors. The agency also notes that it does not envision a situation where NHSMs containing chlorine, fluorine, nitrogen or sulfur would be used as ingredients in such a way that would emit higher levels of HCl, HF, NOX or SO2 than would be emitted using traditional ingredients without the material being considered a solid waste. In all cases, ingredients must provide a valuable contribution to the product being produced, and that product must itself be valuable, in order to not be considered a solid waste. For an ingredient to provide value, the agency expects the ingredient to remain in a product rather than be destroyed or released via emissions. This is a key reason why the contaminant legitimacy criterion for ingredients focuses on products (i.e., toxics along for the ride) rather than emissions. Furthermore, the legitimacy criteria for ingredients cannot be used to avoid the legitimacy criteria for fuels if the material is being used for both purposes. Comment: Several commenters questioned the rationale for including precursors to air emissions as ‘‘contaminants’’ under the proposed revised definition. Some indicated that the concept is far removed from the true meaning of ‘‘discard,’’ with one comment stating that the EPA has no legal, rational or scientific basis for PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 9141 considering the presence of sulfur or nitrogen in NHSMs as evidence of intent to discard SO2 or NOX during combustion. To support this argument, the commenter first noted that the EPA has no record basis for assuming that the intent of the combustor is to discard the constituent, rather than to generate energy. Second, the commenter noted that whether or not a boiler has emissions of regulated air pollutants, such as SO2 or NOX when it combusts a precursor will depend, not on an intent to discard these pollutants, but on boiler operation and design. Two commenters also stated that the preamble discussion on precursors demonstrates how far removed the EPA’s rationale for this rulemaking is from the concept of discard. They noted that the EPA is requiring combustors to document and keep records regarding the fact that CO is not present in NHSMs, and, under CISWI, would identify the NHSM as waste if this documentation is not maintained. The commenters failed to see how this has anything to do with a determination that a material is a waste under RCRA. Response: The EPA disagrees with these comments. Precursors to emissions of identified air pollutants are important and appropriate to address as contaminants in NHSMs prior to combustion. It is also necessary to tailor the definition of contaminants to the realities of the combustion process, during which precursors present in NHSMs used a fuel—many of which are solid or liquid—are transformed into air pollutants. However, the agency agrees with those commenters who argued that the revised definition, as proposed, may be too broad with regard to precursors that may not form air pollutants in all cases. For example, if the combustion of nitrogen does not form NOX in a particular situation, the agency did not intend in its December 2011 proposed rule to consider nitrogen as a contaminant in that particular situation.30 The EPA noted in the proposed rule that chlorine, fluorine, nitrogen and sulfur will form pollutants of concern in most circumstances, but the agency does acknowledge that specific technologies and practices may prevent these transformations from happening in the first instance, particularly with regard to nitrogen (one 30 See March 16, 2012 Response from James R. Berlow, Director, Program Implementation and Information Division, EPA’s Office of Resource Conservation and Recovery to Fadi K. Mourad, DTE Energy Services, Inc. A copy of this response letter has been placed in the docket for today’s rulemaking and is also available at https:// www.epa.gov/epawaste/nonhaz/define/index.htm. E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9142 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations example being the use of Low NOX burners with Over-Fire Air). Thus, the contaminants definition issued in today’s final rule does not consider constituents that are normally precursors to CAA section 112(b) or 129(a)(4) pollutants to be contaminants if a specific technology or practice prevents them from forming their corresponding pollutants. The definition codified in 40 CFR 241.2 only includes chlorine, fluorine, nitrogen and sulfur as contaminants in cases where ‘‘combustion will result in the formation of hydrogen chloride (HCl), hydrogen fluoride (HF), nitrogen oxides (NOX), or sulfur dioxide (SO2).’’ When compared to the December 2011 proposed rule, the only constituents no longer considered contaminants due to this modification are chlorine that will not form HCl during combustion, fluorine that will not form HF during combustion, nitrogen that will not form NOX during combustion and sulfur that will not form SO2 during combustion. This is consistent with the March 2011 NHSM final rule, under which these constituents would not be contaminants when they would not ‘‘result in emissions’’ of CAA section 112(b) or section 129(a)(4) pollutants. Although the EPA is not currently aware of any technologies or practices that prevent chlorine, fluorine or sulfur in NHSMs from forming their associated pollutants during combustion (the EPA is aware of such examples with nitrogen), the agency considers it reasonable and appropriate to adopt the same language for all four precursors to allow for future technological advances preventing the transformation of these elements into pollutants during combustion. Comment: One commenter stated that the consideration of precursors to air emissions as contaminants could be used to make the most fundamental of all elements, hydrogen, a contaminant because it is present in nearly all regulated pollutants. The presence of hydrogen in a NHSM could then be considered evidence of intent to discard pollutants that contained hydrogen. Response: Under the proposed contaminants definition, only the specific precursor elements listed (chlorine, fluorine, nitrogen and sulfur) are considered contaminants. The EPA determined in the proposal, and adopts as its final decision today, that these are the only four precursors necessary to evaluate when comparing contaminants between NHSMs and traditional fuels. The agency specifically decided not to include hydrogen on this list. Whereas combustion of chlorine, fluorine, nitrogen and sulfur typically leads to VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 the formation of CAA section 112(b) or 129(a)(4) air pollutants, combustion of hydrogen typically leads to the formation of water vapor. Comment: Several commenters opposed the inclusion of precursors as contaminants on the ground that the formation of related pollutants depends more on boiler operation and design, process chemistry and feedstock characteristics than on the levels of precursors present in the NHSMs. Response: The EPA recognizes that unit design and operating conditions can impact the transformation of chlorine, fluorine, nitrogen and sulfur into air pollutants. Rather than viewing this as a reason to ignore the pollutants these elements commonly form, the agency views this as further evidence why precursor levels must be considered when determining which set of CAA standards—which in turn regulate unit operating conditions— should apply. Comment: Two commenters suggested that the EPA follow a different approach for defining contaminants and use a method similar to what the agency used for the used oil specification in 40 CFR 279.11. In each case, the commenter suggested that for NHSMs, the definition of contaminants should be limited to sulfur, nitrogen, chlorine, Cd, Hg and lead because those are the elements Congress addressed in CAA section 129. This approach, they argued, would be similar to what the EPA did when developing the used oil specifications. The point the commenters wished the agency to draw from the used oil specification approach is that it addressed elemental species, as opposed to individual compounds. Using sulfur as an example, the commenters reasoned that it is the underlying presence of sulfur-bearing materials in the NHSMs, as opposed to individual sulfur-containing compounds on the section 112(b) list, which effects emissions of SO2. Response: The EPA disagrees with the approach outlined by the commenters and has issued a final definition of contaminants based on both the CAA section 112(b) and the CAA section 129(a)(4) lists, as was proposed. We do agree with the commenters, however, that identifying precursors that will form certain CAA pollutants in the definition of contaminants is appropriate. The approach outlined by the commenters appears to be based on two premises that the EPA has previously considered and decided not to adopt. First, the commenters do not think the definition of contaminants should reference both the CAA section 112(b) PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 and CAA section 129(a)(4) lists. The agency previously explained its decision to use both lists in the March 2011 final rule and does not believe comments have offered any new information that would change the basis for this decision. The EPA previously discussed that both lists of constituents are appropriate because both lists are to be considered by the EPA when developing emission standards.31 Furthermore, the agency has previously explained that CAA section 129 provides that the term ‘‘solid waste’’ shall have the meaning promulgated by the EPA under RCRA and that the EPA has the authority to interpret RCRA to decide whether NHSMs are solids wastes or not.32 The agency notes that it has carefully considered the CAA section 112(b) and 129(a)(4) lists of pollutants and removed those constituents that would not be appropriate to evaluate in NHSMs. Second, the commenters base their proposed approach to defining contaminants purely on emissions. The agency agrees that emissions may be a means of discard but contaminants that are destroyed by the combustion process or incorporated into products may not have emission standards established under CAA section 129. Combustion may still be a means of discard in these instances. Thus, a definition of contaminants based only on the CAA section 129 emissions standards only tells one how well the combustion unit is operating, not whether the NHSM is being used as a legitimate non-waste commodity.33 Comment: Several commenters addressed the specific constituents proposed to be removed from the definition of contaminants. In general, comments were supportive of the concept that constituents unlikely to be found in NHSMs prior to combustion or adequately measured elsewhere in the definition should be removed from the definition. Multiple commenters asked that CO also be removed from the definition because it is unlikely to be found in NHSMs. The same commenters asked that opacity be removed from the definition because it can only be measured in emissions and is not directly related to any one specific constituent in NHSMs. Particulate matter and coke oven emissions were removed, noted the commenters, because they are products of combustion unlikely to exist in NHSMs 31 See 76 FR 15524–15525. See also, 75 FR 31883. 76 FR 15469–15470. See also, 76 FR 15473. 33 See 76 FR 15525. 32 See E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations prior to combustion, and the same can be said for CO and opacity. One commenter expressed concern that asbestos had been removed from the list due to the removal of ‘‘fine mineral fibers’’ as a contaminant. The commenter explained that asbestos is commonly found in construction and demolition debris and asbestos particles in smoke are deadly. Excluding fine mineral fibers from regulation explicitly ignores the possibility of such contamination in C&D debris, noted the commenter, and asbestos should be a regulated contaminant. Response: The EPA has issued a final rule containing the language removing constituents from the definition of contaminants as proposed, with one change. The agency has removed ‘‘opacity’’ from the final definition of contaminants as well. Similar to PM and coke oven emissions, there is no practical way to measure opacity in NHSMs prior to combustion or in products made using NHSMs. In fact, the EPA did not intend for opacity to be included in the definition of contaminant under the previous definition. A visual property of an emissions stream, opacity is not even a constituent, let alone a constituent that can be measured in NHSMs prior to combustion or in products made using NHSMs. As such, removing it from the definition will provide clarity without effecting any practical change to the definition.34 The agency has not removed CO from the definition of contaminants because, contrary to comments that it is unlikely to be found in any NHSM, it is likely to be present in gaseous NHSMs and is not adequately measured elsewhere in the ‘‘contaminants’’ definition. However, as we discuss in the December 2011 proposed rule, CO is unlikely to be found in solid or liquid NHSMs and EPA expects that persons can use process knowledge to justify not testing for CO in these cases.35 The agency has removed the fine mineral fibers group from the definition of contaminants, as proposed, because they are not expected to be found in NHSMs. Fine mineral fibers, as regulated under CAA section 112(b) are releases from the manufacturing and processing of non-combustible rock, glass or slag into mineral fibers and are not produced during the combustion process. Asbestos, on the other hand, has been set apart from the fine mineral fibers group in CAA section 112(b), and 34 Neither Table 7 nor Table 8 in the December 2011 proposed rule included opacity. See 76 FR 80478–80480. 35 See 76 FR 80475. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 thus, it is set apart in the NHSM rule. To be clear, asbestos is included in the definition of contaminants in today’s final rule and it would be a contaminant regardless of whether the fine mineral fibers group was removed or not. In summary, the following 12 CAA section 112(b) and section 129(a)(4) pollutants have been removed from the definition of contaminants: HCl, Cl2, HF, NOX, SO2, fine mineral fibers, PM, coke oven emissions, opacity, diazomethane, white phosphorus and titanium tetrachloride. 9143 The 40 CFR 241.2 definition for ‘‘established tire collection program,’’ as established by the March 2011 promulgation in the Federal Register, was as follows: ‘‘Established tire collection program means a comprehensive collection system that ensures scrap tires are not discarded and are handled as valuable commodities in accordance with section 241.3(b)(2)(i) from the point of removal from the vehicle through arrival at the combustion facility.’’ In the December 2011, NHSM proposed rule, the EPA proposed to revise this definition (and the related criteria for non-waste tires now at 40 CFR 241.4(a)(1)) in order to account for off-specification tires. The term ‘‘offspecification tires’’ is intended to also include ‘‘factory scraps.’’ The offspecification tires are not removed from vehicles and are handled under contractual arrangements which ensure they are not discarded. The definition was modified to include ‘‘contractual arrangement’’ to provide that not only ‘‘collection systems,’’ but also contractual arrangements for tire collection would be appropriate. The requirement for the tires to be removed from the vehicle was eliminated 36 since it is not applicable to off-specification tires. The revised definition is sufficient to encompass the agency’s intent in describing these programs and continues to ensure that these scrap tires are not discarded and are handled as valuable commodities through arrival at the combustion facility. Further, the addition to the new categorical nonwaste provision at 40 CFR 241.4(a)(1) eliminated the need for the previous scrap tire provision at 40 CFR 241.3(b)(2)(i),37 (which has been removed and reserved in today’s final rule) therefore, the reference to that provision was removed in the definition. The agency proposed to revise the definition as follows: ‘‘Established tire collection program means a comprehensive collection system or contractual arrangement that ensures scrap tires are not discarded and are handled as valuable commodities through arrival at the combustion facility.’’ The definition in today’s final rule includes the revisions to the definition we proposed in December 2011. In addition, the agency is including in the definition ‘‘tires that were not abandoned and were received from the general public at collection program events.’’ This revision is being made based on comments received on the proposed rule as discussed below. Under today’s revised definition, established tire collection programs could also include a ‘‘contractual arrangement.’’ If, for example, the state is sponsoring special events where they take tires back from the general public, those tires would also be included. Thus, the definition in today’s final rule is ‘‘Established tire collection program means a comprehensive collection system or contractual arrangement that ensures scrap tires are not discarded and are handled as valuable commodities through arrival at the combustion facility. This can include tires that were not abandoned and were received from the general public at collection program events.’’ While the agency did receive comments on the specific proposed changes described above, a number of commenters rephrased or restated previous arguments which conclude that any tires burned for energy recovery are not wastes, even if previously discarded. Conversely, one commenter reiterated its previous arguments which conclude that all used tires are waste, even if burned for energy recovery. Today’s rule is responding only to the specific proposed revisions to the regulations and the requests for comment in the proposal. For the response to other issues, refer to the record for the 2011 NHSM final rule (76 FR 15456). Many of the commenters who provided comments on tires intertwined the ‘‘established tire collection program’’ definition issues 36 The related tire provision at 241.4(a)(1) allows for tires that are off-specification or are removed from vehicles. 37 The scrap tire provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: ‘‘(b) The following nonhazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs.’’ c. Established Tire Collection Programs PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9144 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations with the related topic of the categorical non-waste provision for scrap tires. For a discussion of those comments, refer to the response to comments for the categorical non-waste provision for scrap tires (section III.D.3.a.). The EPA is not reopening its decision that these scrap tires are not wastes. That decision, however, justifies a categorical exclusion where there is not a need to make case-by-case determinations regarding discard in the first instance and the legitimacy criteria. Comment: Several commenters mentioned that, in some cases, the public individually takes tires to staterun tire collection program events. These are tires that the general public owns and were typically removed from their vehicle. These are not abandoned tires. These collection events, in some cases, are held by the combustor under the state’s environmental program oversight. In those cases, the combustors enter into agreements with local communities to hold these events during which local residents are allowed to bring tires to facilities to be recycled, including used as alternative fuels. The scope of tire collection programs also may allow the public to take used tires which they may have stored in their garages, or elsewhere on their property, directly to a combustion facility—in many cases a cement kiln. Under the EPA’s current definition of tire collection programs, the commenters said it is not clear whether these tires would qualify as those collected under an ‘‘established tire collection program.’’ Commenters generally agreed that these tires are not abandoned and should be utilized as non-waste fuels without processing. Response: The EPA agrees with the commenters that tires that have not been discarded and are collected directly from the public at tire collection events are intended to qualify for the 40 CFR 241.4(a)(1) requirement to be ‘‘managed under the oversight of established tire collection programs.’’ The agency agrees that these tires are not abandoned and when collected under established tire collection program events, they are considered to be non-waste fuels, just as the other tires handled by established tire collection programs are non-waste. To make this point clear, the EPA has modified the regulatory language. Please refer to the Response to Comment document for more details on these collection events and the responses. 2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels Under the December 2011 proposed rule, revisions to the contaminant legitimacy criterion for NHSMs used as VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 fuel provided details on how contaminant comparisons could be made in practice. The proposal maintained the fundamental approach of the March 2011 final rule, but the proposed criterion better reflected the EPA’s intent to allow certain flexibilities when making contaminant comparisons. First, the proposal replaced ‘‘contaminants’’ with the phrase ‘‘contaminants or groups of contaminants’’ to clarify that, when deciding how to compare contaminants between NHSMs and traditional fuels, persons do not have to make comparisons on a contaminant-bycontaminant basis in all cases. When technically reasonable, comparisons may be made on a group of contaminants-by-group of contaminants basis. The December 2011 rule also proposed to codify language from the preamble to the March 2011 final rule clarifying that when selecting which traditional fuel(s) a unit is designed to burn, persons are not limited to the traditional fuel the unit is currently permitted to burn. Persons may choose any traditional fuel the unit can burn or does burn, whether or not it is permitted to burn such fuel. In addition, the proposed regulations included text confirming that, when comparing contaminant levels between NHSMs and traditional fuels, persons are not limited to data from the specific traditional fuel being replaced. National surveys of traditional fuel contaminant levels are one example of another acceptable data source. Neither the March 2011 final rule nor the December 2011 proposed rule required persons to compare contaminants in their NHSM to contaminants in the specific traditional fuel source they burn (or would otherwise burn). As an example, the proposal noted that persons who would otherwise burn coal may use any asburned coal available in coal markets in making a comparison between the contaminants in their NHSM and the contaminants in coal—they are not limited to coal from a specific coal supplier they have used in the past or currently use. Finally, the proposed regulations included text confirming that, when comparing contaminant levels between NHSMs and traditional fuels, persons are not limited to comparing average concentrations. Traditional fuel contaminant levels can vary considerably and the full range of contaminant values may be used. Two other issues arose prior to the December 2011 proposed rule that, while not leading to specific regulatory changes in the proposal, still merited a PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 discussion in the proposal. The first issue was that contaminant legitimacy criterion determinations do not require testing contaminant levels, in either the NHSM or an appropriate traditional fuel. Persons can use expert or process knowledge to justify decisions to either rule out certain constituents or determine that the NHSM meets the contaminant legitimacy criterion. The second issue was that persons may use data from a group of similar traditional fuels for contaminant comparisons, provided the unit could burn each traditional fuel. The idea grows from the ‘‘designed to burn’’ concept explained in the March 2011 final rule and codified in today’s final rule, and it allows a person with a unit that can or does burn similar traditional fuels (e.g., anthracite, lignite, bituminous and subbituminous coal) to group those traditional fuels when making contaminant comparisons. The EPA believes that comments have not changed the basis for making the decisions to expressly allow grouping of contaminants, to interpret ‘‘designed to burn’’ to mean can burn or does burn regardless of permit status, and to affirm that persons can use ranges and national surveys of traditional fuel data when making contaminant comparisons between NHSMs and traditional fuels. Comments have also not changed the agency’s basis for making the decisions that testing is not required and that persons can group similar traditional fuels for the purposes of contaminant comparisons. Thus, the EPA is adopting the reasoning from the proposal and revising the contaminant legitimacy criterion for NHSMs used as a fuel to incorporate these concepts. The EPA has decided, however, to make one modification to the proposed contaminant legitimacy criterion based on comments received and information in the rulemaking record. The final criterion issued today includes additional language clarifying the appropriate use of ranges when making contaminant comparisons between NHSMs and traditional fuels. To use the full range of contaminant values in traditional fuels, persons should also account for the variability in NHSM contaminant levels. Additional details and rationale for the proposed revisions concerning the grouping of contaminants, the meaning of designed to burn, and the use of ranges and traditional fuel data in making contaminant comparisons are discussed in section III.D.2.b, section III.D.2.c, and section III.D.2.d below. Additional reasoning for keeping the rule provisions as proposed and for any modifications to the proposed language E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 are described in the responses to comments included in these sections. a. General Comments on the Revised Contaminant Legitimacy Criterion The EPA is not responding to issues that the agency decided in the March 2011 rule and has not reopened for comment. Specifically, the agency has previously discussed and did not solicit comments in this rule on why the concept of legitimacy is important in determining whether a secondary material is genuinely recycled or is, in fact, discarded.38 The agency has also previously discussed and did not solicit comments in this rule on why contaminant comparisons to traditional fuels are an appropriate and mandatory factor in determining legitimacy for NHSMs used as fuels in combustion units.39 The agency has also previously discussed and did not solicit comments in this rule on why the ‘‘comparable to or lower than’’ standard is more appropriate than the ‘‘not significantly higher than’’ standard.40 The agency has also previously discussed that the NHSM Rule differs from the DSW Rule in that it is tailored specifically for application to NHSMs used in combustion units.41 Comment: Industry commenters overwhelmingly supported the proposed revisions to the contaminant legitimacy criterion, stating that the revisions would help provide regulatory certainty and give the regulated community more confidence in their self-determinations. Environmental groups, on the other hand, expressed concern that the combination of flexibilities present in the proposed revisions to the contaminant legitimacy criterion will allow facilities to compare contaminant levels in C&D debris and other wood waste to the highest contaminant levels found in coal, even if the facility is not permitted to burn coal. They believed that this should not be permitted and argued that C&D wood should not contain contaminant levels higher than found on average in virgin biomass. State comments were mixed, with one commenter supporting the proposed revisions and another commenter expressing concern that the revisions would weaken the states’ permitting authorities and create an incentive for combustors to burn dirtier traditional fuels. Response: The EPA has decided to retain the concepts proposed to the 38 See 75 FR 31870. 75 FR 31871–31872. See also, 76 FR 15524–15525. 40 See 75 FR 31872. See also, 76 FR 15523. 41 See 75 FR 31870. 39 See VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 contaminant legitimacy criterion because these changes more accurately reflect the EPA’s intent under the March 2011 final rule. The agency maintains that these concepts are reasonable and provide a necessary degree of certainty for persons seeking to comply with the rule. This is explained in more detail in sections III.D.2.b (groups of contaminants), III.D.2.c (meaning of designed to burn), and III.D.2.d (allowable contaminant comparisons) of this preamble. At the same time, comments from both industry and environmental groups have highlighted, in the agency’s opinion, a need for additional clarity in the regulatory text on the appropriate use of ranges when making contaminant comparisons between NHSMs and traditional fuels. Accordingly, the EPA has made a minor adjustment to the criterion to ensure that ranges are not used inappropriately in contaminant comparisons (i.e., the highest traditional fuel contaminant values should not be compared to average NHSM contaminant values). See section III.D.2.d of this preamble for a more detailed description of this specific change to the contaminant legitimacy criterion. The agency disagrees with state concerns that the NHSM rule will weaken the states’ permitting authorities. State permitting authorities must still approve permit changes and this final rule does not affect discretion of the permitting authorities in acting on requests for permit modifications. The agency also disagrees with state concerns that the NHSM rule will create an incentive for combustors to burn dirtier traditional fuels. The EPA understands how restricting contaminant comparisons to traditional fuels the unit currently burns could provide an incentive for the facility to burn traditional fuel with high contaminant levels. When facilities do not actually have to burn that traditional fuel to make comparisons, however, that incentive is effectively removed. Comment: One commenter requested that the proposed revisions to the contaminant legitimacy criterion be added to each option for demonstrating that NHSMs are non-wastes when used in combustion units, whether it is the on-site documentation, the EPA petition process or the categorical non-waste determination process proposed in 40 CFR 241.4. Response: Revisions to the contaminant legitimacy criterion codified today in 40 CFR 241.3(d)(1) apply to all options for demonstrating that a NHSM is not a solid waste when used as a fuel in a combustion unit. The PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 9145 revised legitimacy criterion is embedded in the self-implementing options outlined in 40 CFR 241.3(b)(1) for use within the control of the generator and 40 CFR 241.3(b)(4) for NHSMs that are processed and then used in a combustion unit. The revised legitimacy criterion is also embedded in the optional EPA petition process outlined in 40 CFR 241.3(c). The revised legitimacy criterion is also referenced as a factor to be considered in the categorical non-waste determination process outlined in 40 CFR 241.4. Comment: Several commenters expressed concern that the proposed revisions to the contaminant legitimacy criterion, although an improvement over the 2011 Final NHSM Rule, may not provide the regulated community with enough information to be confident in their compliance status. Two commenters noted that the EPA has overlooked the analytical complexities inherent in the contaminant legitimacy criterion and the many opportunities it creates for disagreement between facility operators and regional and state regulators. One of these commenters asked the EPA to both define the term ‘comparable’ and clarify sampling and analytical methodologies to be used when measuring contaminant levels. Other commenters advised the EPA to increase predictability as much as possible by developing a disciplined process for making contaminant comparisons and providing real time transparency for such decisions. Similarly, two commenters expressed concern that even after a source makes a fuel determination, the EPA could take a different view of the NHSMs and conclude that they were solid wastes. The risk sources face is noncompliance with the CAA and these commenters contended that the issue is too critical for the EPA to leave the contaminant legitimacy criterion so vague. Over time, as the EPA develops a record for decisions (particularly comparable contaminant determinations), one of these commenters urged the EPA to establish a database and immediately post determinations for other sources to review. Other commenters supported the proposed revisions to the contaminant legitimacy criterion and indicated that they provided sufficient clarification. One commenter noted that changes to the language of the criterion and the additional clarification provided in the preamble to the December 2011 proposed rule provide key additional detail on making contaminant comparisons and allow additional flexibility where appropriate. The same commenter urged the EPA to maintain E:\FR\FM\07FER2.SGM 07FER2 9146 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 that flexibility if the agency develops additional guidance on making contaminant comparisons in the future. Response: The EPA has retained the approach included in the proposed rule that provides information on how contaminant comparisons can be made and the agency will continue to make its traditional fuel data and legitimacy determinations transparent through the EPA Web site.42 The agency recognizes the need for regulatory certainty, a need that has been addressed by revisions to the definition of contaminants and the contaminant legitimacy criterion in today’s final rule. Contaminants have been specifically listed, additional clarity on NHSMs/traditional fuel comparisons has been provided and several comparison methodologies have been provided in the preamble as examples that could be used by the regulated community. Comments from the regulated community have been supportive both of these changes and of the agency’s efforts to update traditional fuel data that can be used for contaminant comparisons.43 In addition, a number of interpretative letters have been written that address specific fact situations as presented by a specific facility and these letters have been posted on the EPA’s Web site.44 These letters serve as examples of acceptable ways to demonstrate legitimacy. The EPA must balance the need for regulatory certainty, however, with the need for flexibility, which many commenters also believe is important. As the agency has previously discussed, the legitimacy criteria must be flexible enough to account for future changes in commodities, technologies, markets and fuel prices.45 Previous comments have stressed the preference for a qualitative approach, and the agency has agreed, noting that numerical specifications may be impractical due to the multiplicity of fuels and ingredients.46 The agency has also previously discussed that a numerical definition of ‘comparable’ would be impractical given differences in the typical concentration levels of various contaminants, choosing instead to offer 42 The EPA maintains a NHSM Web page with current information on contaminant levels in traditional fuels, examples of legitimacy determinations and other information at https:// www.epa.gov/epawaste/nonhaz/define/index. 43 Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, can be found at https://www.epa.gov/epawaste/ nonhaz/define/index. 44 See NHSM rule Web site https://www.epa.gov/ epawaste/nonhaz/define/index.htm. 45 See 75 FR 31870. 46 See 75 FR 31871. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 several examples.47 While the agency will consider future guidance on contaminant comparisons, it has determined that no one approach is appropriate for every legitimacy determination given the variety of traditional fuels, NHSMs and combustion units that currently exist and will likely increase in the future. Comment: One commenter noted that both the March 2011 NHSM final rule and the proposal implicitly place the burden on the combustion facility to determine if a fuel derived from NHSMs meets the legitimacy criteria. In the utility industry, the commenter explained, it is common practice for utilities to rely on fuel marketers to establish and verify fuel quality, and the regulatory burden on utilities combusting such secondary materials as fuels could be reduced if the EPA clarified the circumstances under which a facility would be entitled to rely on the fuel quality representations of its suppliers. The commenter suggested that the EPA clarify that a utility may rely in good faith on the representations of its suppliers that NHSMs meet the codified legitimacy criteria, or, alternatively, that utilities be required only to periodically test the quality of NHSM-derived fuels obtained from third parties to rely on their suppliers’ representations. Response: The EPA notes that while fuel suppliers may provide their customers with documentation supporting a legitimacy determination, persons who burn NHSMs are ultimately responsible for the materials burned at their units. As stated in the proposed rule, however, the agency adopts as its decision for this final rule that initial assessments would not need to be repeated as long as the facility continues to operate in the same manner and use the same type of NHSM as when the original assessment was made.48 b. Grouping of Contaminants The December 2011 proposed revision to the contaminant legitimacy criterion for NHSMs used as a fuel began with the following sentence: ‘‘The non-hazardous secondary material must contain contaminants or groups of contaminants at levels comparable in concentration to or lower than those in traditional fuel(s) which the combustion unit is designed to burn.’’ The phrase ‘or groups of contaminants’ was not present in the language from the March 2011 NHSM Final Rule but was included in the December 2011 NHSM Proposed Rule to 47 See 48 See PO 00000 76 FR 15524 and 15542. 76 FR 80481. Frm 00036 Fmt 4701 Sfmt 4700 clarify that groups of contaminants could be evaluated in determining whether a NHSM meets the contaminant legitimacy criterion. In particular, the proposed rule noted that groups of contaminants in NHSMs could be compared to similar groups in traditional fuels where the grouped contaminants shared physical and chemical properties that influence their behavior in the combustion unit prior to the point where emissions occur. Volatility, the presence of specific elements and compound structure were three such properties identified in the proposal and one approach to grouping contaminants was shown that included groups for TOX, nitrogenated HAP, VOCs, SVOCs, dioxins and furans, PCBs, PAHs and radionuclides. The agency also noted that persons may consider other groupings that they can show are technically reasonable. Grouping of contaminants is a standard practice often employed by the agency as it develops regulations. In fact, the monitoring standards included in the CAA sections 112 and 129 regulations also utilize the grouping concept and they apply to the same combustion units impacted by the NHSM rule (i.e., industrial, commercial and institutional boilers and process heaters and CISWI units). For example, • Volatile hydrocarbons and semivolatile hydrocarbons can both be expected to result from incomplete combustion; therefore, the emission standards promulgated under the CAA regulations are grouped into one category: CO.49 • Halogenated organics are expected to contribute to emissions of dioxin and acid gases (HCl and HF); therefore, the emission standards promulgated under the CAA are grouped into two categories: D/F and HCl.50 • Nitrogenated compounds are expected to contribute to emissions of NOX; therefore, the emission standards promulgated under the CAA are grouped into one category: NOX.51 In addition, a number of the seemingly ‘‘individual’’ pollutants listed in sections 112 and 129 of the CAA are actually classes of structurally-related compounds (e.g, PCBs, POM, D/F, cyanide compounds, cresols, glycol ethers, radionuclides, xylenes, antimony compounds, arsenic compounds, beryllium compounds and cadmium compounds). 49 Area Source Boilers NESHAP, Major Source Boilers NESHAP, and Commercial and Industrial Solid Waste Incinerators NESHAP. 50 Major Source Boilers NESHAP and Commercial and Industrial Solid Waste Incinerators NESHAP. 51 Commercial and Industrial Solid Waste Incinerators: NESHAP. E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations All comments discussing the agency’s proposal to expressly allow the grouping of contaminants supported the agency’s position. Thus, the EPA is adopting the language from the proposal and revising the contaminant legitimacy criterion for NHSM used as a fuel to allow contaminants to be compared on a contaminant-by-contaminant basis or, where reasonable, on a group of contaminants-by-group of contaminants basis. Any additional reasoning for keeping the revision as proposed, without modification, is described in the responses to comments below. Comment: In general, comments overwhelmingly supported the ability to group contaminants when making contaminant comparisons in accordance with the legitimacy criteria. Commenters stated that codification of this concept would provide regulatory certainty and allow for more meaningful comparisons, similar to the manner in which the EPA measures emissions at combustion units. Commenters noted that the ability to group contaminants will facilitate compliance because most existing test methods, including the EPA methods, call for the grouping of analytes. Commenters believed that the grouping concept is an appropriate mechanism to recognize the variability in contaminant levels inherent in fuels. Commenters also appreciated the examples of appropriate contaminant groups provided in the proposed rule along with the ability to compare other technically reasonable groups (76 FR 80477–80480). Two commenters stated that each mention of the word ‘‘contaminants’’ should be changed to ‘‘contaminants or groups of contaminants’’ in the regulatory text to further clarify that a comparison to groups of contaminants is intended. Response: The EPA has retained the language specifically allowing grouping in the contaminant legitimacy criterion for NHSMs used as a fuel. The EPA adopts the reasoning in the December 2011 rule as its final reasoning, as further supported with reasoning discussed in the comment responses below. While the EPA has retained the language allowing the grouping of contaminants, the agency does not consider it necessary to change every instance of ‘‘contaminant levels’’ and ‘‘contaminants’’ to ‘‘contaminants or groups of contaminants’’ in order to make it sufficiently clear that contaminant grouping is allowed. The agency also notes that not all contaminants are necessarily intended to be grouped, including individual VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 elemental contaminants, asbestos, CO and phosphine.52 Comment: The ability to group metal contaminants was suggested by several commenters. One commenter held that all 11 metals should be specifically included as one group. Another commenter noted that with the exception of Hg, all metals should be grouped. Yet another commenter suggested that metals could be grouped into a volatile metals group and a nonvolatile metals group. Response: First, we would note that the agency is not limiting groups to the specific approach suggested in the proposed rule. The tables in the proposed rule suggest, but do not limit persons to, an approach, including groups for TOX, nitrogenated HAPs, VOCs, SVOCs, dioxins/furans, PCBs, PAHs and radionuclides, with other contaminants left to be evaluated on an individual contaminant-by-contaminant basis. Flexibility exists for persons to consider other appropriate groups that they can show are technically reasonable, with additional text in the proposal stating that other groups should share physical and chemical properties that influence behavior in the combustion unit prior to the point where emissions occur. Volatility, the presence of specific elements and compound structure are three such properties.53 However, we do not consider the grouping of total metals to be appropriate. Specifically, metals vary across all three parameters—volatility, the presence of specific elements and compound structure—that were discussed as appropriate to consider when constructing contaminant groups. First, many factors influence metal volatility in combustion units, and to the extent that trends in metal volatility have been recognized, a wide disparity exists between metals. Mercury, as one commenter noted, is highly volatile, more so than any other metals listed in the contaminants definition. Metals can be grouped into volatile, semi-volatile and low-volatile categories, but it is important to note that these distinctions can vary based on design differences in combustion units, operating temperatures, the physical form and species of the metal and the presence of chlorine.54 55 Second, each metal clearly 52 See 76 FR 80478, Tables 7 and 8. 76 FR 80477. 54 EPA. 2001. ‘‘Risk Burn Guidance for Hazardous Waste Combustion Facilities.’’ EPA530–R–01–001. July. 55 Clarke, L.B. and L.L. Sloss, 1992. ‘‘Trace Elements—Emissions from Coal Combustion and Gasification.’’ IEACR/49. IEA Coal Research, London. July. 53 See PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 9147 contains different elements. Finally, each metal is already a group of any compound containing the particular element, encompassing a wide array of compound structures. In the absence of other suggested grouping criteria or information, the EPA does not consider total metals to be an appropriate group. Comment: One commenter provided a numerical example of VOC contaminant levels in fuel oils to illustrate the importance of grouping. The commenter cited the traditional fuel tables provided on the EPA Web site, stating that toluene and xylenes are present in fuel oils at concentrations up to 380 ppm and 3,100 ppm, respectively. If a NHSM had the concentrations reversed, explained the commenter (380 ppm xylene and 3,100 ppm toluene), the ability to group VOCs would then allow the NHSM to meet the contaminant legitimacy criterion. The commenter reasoned that this is appropriate because both toluene and xylenes are beneficial components of fuel. Response: The EPA disagrees with this interpretation of the grouping concept. Unless concentration data for a group of contaminants (e.g., VOCs) come from the same fuel source, adding together the concentrations of individual constituents (e.g., toluene and xylene) within that group may yield a total concentration beyond what would be considered a normal part of a legitimate fuel. Using the example cited by the commenters, some fuel oils have been found to have up to 380 ppm toluene and other fuel oils have been found to have up to 3,100 ppm xylene. Because the toluene and xylene concentrations were taken from different fuel oils, however, this does not prove that a single fuel oil in existence actually has VOC levels as high as 3,480 ppm (380 + 3,100). The agency notes that VOC levels higher than 3,480 ppm, have been found in fuel oil—concentrations of one VOC alone (hexane) have been found as high as 10,000 ppm—and the point of this discussion is to clarify a methodology rather than a number for acceptable VOC levels in NHSMs.56 We would also note that while the agency considers VOCs to be an appropriate contaminant group to use when making contaminant comparisons, it does not base that decision on 56 Contaminant Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011 can be found at https://www.epa.gov/epawaste/ nonhaz/define/index. EPA intends to update this document as additional data becomes available, and if persons have data measuring traditional fuels for groups of VOCs, or for other contaminant groups, they are encouraged to provide the agency with such data. E:\FR\FM\07FER2.SGM 07FER2 9148 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations whether or not toluene, xylenes and other VOCs are ‘‘beneficial components of fuel.’’ The decision that toluene, xylene and other VOCs, which the agency notes are pollutants listed in CAA section 112(b), are an appropriate group is based on the fact that they share similar physical and chemical properties that influence their behavior in the combustion unit prior to the point where emissions occur. mstockstill on DSK4VPTVN1PROD with RULES2 c. Meaning of Designed to Burn The December 2011 proposed revision to the contaminant legitimacy criterion for NHSMs used as a fuel included the following statement: ‘‘In determining which traditional fuel(s) a unit is designed to burn, persons can choose a traditional fuel that can be or is burned in the particular type of boiler, whether or not the combustion unit is permitted to burn that traditional fuel.’’ The idea that ‘‘designed to burn’’ means ‘‘can burn or does burn’’ was included in preamble text to the March 2011 final rule. The December 2011 rule proposed to include this concept, which is only applied under the NHSM rule to aid in the selection of appropriate traditional fuel(s) for contaminant comparisons, in regulatory language. The March 2011 final rule explained that in determining which traditional fuel(s) the owner or operator of the boiler unit would make a comparison to with respect to contaminant levels, the agency would allow any traditional fuel(s) that can be or is burned in the particular type of boiler. The agency reasoned that this approach was the most appropriate since the NHSM would be replacing the use of particular type(s) of fuel that could otherwise be burned.57 The December 2011 proposal further explained that contaminants are compared between NHSMs and traditional fuels to assist in making a determination whether or not the NHSM is being discarded when combusted, not to regulate which traditional fuel a combustor should choose to burn. For the purposes of making a discard determination, the proposal reasoned that differentiating between ‘‘can burn’’ and ‘‘does burn’’ was not relevant. The agency did note in the proposed rule, however, that for a unit to be able to burn a traditional fuel, it would need an appropriate feed mechanism (e.g., a way to load solid fuel of a particular size into the unit) and the ability to adjust physical parameters to ensure spatial mixing and flame stability per unit specifications. 57 See 76 FR 15542. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 Because most combustion units can burn different—but related—traditional fuels, the agency discussed in the proposal that broad groups of similar traditional fuels may be used when comparing contaminants. The most common traditional fuel categories burned at major source boilers are coal, wood, oil and natural gas, as evidenced by data submitted to the EPA’s OAQPS.58 59 To further clarify the impact of the proposed ‘‘designed to burn’’ language on contaminant comparisons, potential categories for coal, wood and oil were further described in the proposal. A coal group was proposed that could include data on anthracite, lignite, bituminous and sub-bituminous coal. A wood or biomass group was proposed that could include data on unadulterated lumber, timber, bark, biomass and hogged fuel. An oil group was proposed that could include data on fuel oils 1–6, diesel fuel, kerosene and other petroleum based oils.60 In cases where a unit can burn traditional fuels from several categories, such as a boiler that can burn coal or biomass, the proposal noted that contaminant comparisons could be made using data from either fuel category. The ability to compare contaminants in a NHSM, under the NHSM rule, to contaminants in any traditional fuel that could be burned does not change the fact that once burning occurs, emissions standards are determined under the Boiler MACT or CISWI rule by the particular fuel (or fuel blend) that is burned. Whether each rule focuses on what ‘could be burned’ or on what ‘is burned’ is determined by the rule’s purpose and the order in which decisions must be made. Together, these factors explain why the NHSM, Boiler MACT, and CISWI rules take different approaches to account for individual combustion units that burn multiple fuels. Specifically, the NHSM rule must first determine which NHSMs can be burned in CAA section 112 units (i.e., boilers) and which can only be burned in CAA section 129 units (i.e., incinerators). 58 EPA, Office of Air Quality Planning and Standards (OAQPS), Emissions Database for Boilers and Process Heaters Containing Stack Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and ICR No. 2286.03 (Version 7). December 2011. https://www.epa.gov/ttn/atw/boiler/boilerpg.html# TECH. 59 The fuel analysis information in this OAQPS database is one example of a ‘‘national survey’’ of traditional fuel information, as referenced in the final contaminant legitimacy criterion issued today at § 241.3(d)(1)(iii). 60 EPA has determined that an oil group should not include unrefined crude oil or gasoline, as neither is typically burned in combustion units subject to the CAA sections 112 or 129 standards. PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 When making such a waste or nonwaste determination, the NHSM rule cannot always predict what fuel would otherwise be burned (multiple options may exist). Accordingly, the rule allows contaminant comparisons to be made to any traditional fuel the unit could burn. The Boiler MACT or CISWI rule must then determine how to regulate emissions from the unit, by which point it is clear what fuel is actually being burned. Accordingly, these rules can and do establish subcategories of units, each with different emissions standards. The EPA has considered the comments received, as explained below, but has not changed the basis for its interpretation of the ‘‘designed to burn’’ concept. Thus, the EPA is adopting the language from the proposal and revising the contaminant legitimacy criterion for NHSMs used as a fuel to allow persons making contaminant comparisons to choose a traditional fuel that can be or is burned in the particular type of boiler, whether or not the combustion unit is permitted to burn that traditional fuel. Any additional reasoning for keeping the revision as proposed, without modification, is described in the responses to comments below. Comment: Industry commenters generally supported the agency’s proposal to codify the previously stated meaning of ‘‘designed to burn’’ within the contaminant legitimacy criterion for NSHMs used as fuels. These commenters welcomed the regulatory certainty provided by the revision and described it as a practical and appropriate recognition that some units can burn multiple traditional fuels. Environmental groups, on the other hand, expressed concern that the proposed definition of designed to burn would allow contaminants in C&D wood to be compared to those in coal instead of virgin wood. One state commenter also expressed concern that allowing comparisons to any fuel the unit could burn, including fuels they are not permitted to burn, would weaken the states’ permitting authorities and create an incentive for combustors to burn dirtier traditional fuels so that they could compare NHSMs to fuels with higher contaminant levels. An industry commenter also mentioned that such an approach would reward facilities that burn dirtier fuel and suggested that the agency remove the entire ‘‘designed to burn’’ concept from the rule. Response: Based on a review of the comments, the EPA has retained the proposed revision to the contaminant legitimacy criterion for NHSMs used as fuels clarifying that, for the purpose of determining traditional fuel(s) to which E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations a NHSM may be compared, the meaning of ‘‘designed to burn’’ may be broadly interpreted to include any traditional fuel that could be burned, regardless of facility permit status. The agency disagrees that this interpretation of ‘‘designed to burn’’ would incentivize the burning of dirtier fuels or weaken the states’ permitting authorities. The EPA finds that allowing combustors to compare NHSMs to any traditional fuel a unit can or does burn is both practical and appropriate under the statutory definition of solid waste. Although not all combustion units can burn multiple traditional fuels, some units can and, indeed, do rely on different fuel types at different times based on availability of fuel supplies, market conditions, power demands and other factors. Under these circumstances, it would be arbitrary to restrict the combustion for energy recovery of NHSMs with contaminant levels comparable to or lower than that of one traditional fuel the unit could choose to burn solely because contaminant levels are higher than that of a second traditional fuel the unit could also choose to burn if fuel supplies, market conditions, power demands, or other factors change. Such an approach would be impracticable and not consistent with the agency’s intent. It would also be inconsistent with the concept of discard, since a facility burning a NHSM with the same contaminants as another fuel it could also be burning should not be considered to discard that NHSM based on its contaminant levels. The agency has also determined that restricting comparisons to traditional fuels the unit is permitted to burn is unnecessary. The fact that a facility is not currently permitted to burn a particular traditional fuel does not mean it could not be permitted to burn that traditional fuel in the future. For this reason, we do not believe it is reasonable to limit the comparison to permitted traditional fuels. Furthermore, such a restriction could have the unintended consequence of combustion facilities across the country seeking permit modifications solely to facilitate contaminant comparisons for this rule. State permitting authorities must still approve permit changes and this final rule does not affect the discretion of the permitting authorities in acting on requests for permit modifications. In addition, the EPA has determined that restricting contaminant comparisons to traditional fuels the unit currently burns could provide an incentive for the facility to burn traditional fuel with high contaminant VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 levels. When facilities do not actually have to burn that traditional fuel to make comparisons, that incentive is effectively removed. Comment: One commenter asked the agency to specifically acknowledge that certain categories of boilers are designed to burn a variety of fuels, noting that stoker boilers, fluidized bed combustors and boilers with suspension burners, in particular, should be on such a list. Response: The agency has decided not to specifically list which combustion units are designed to burn which fuels for two reasons. First, the owner or operator of a combustion unit has a better understanding than the agency does of what that particular unit is designed to burn. Second, the agency is concerned that creating such a list will limit the flexibility of combustors with other types of units. Comment: One commenter noted that if the EPA considers it inappropriate to compare liquid fuels to solid fuels, the agency offers no justification for its position. The commenter argued that liquid to solid comparisons should be allowed because most cement kilns and many other industrial furnaces have the capacity to burn either solid or liquid fuels. The commenter described the December 2011 proposed rule as ambiguous with regard to this issue and recommended that if a combustion unit is designed to burn both a liquid fuel and a solid fuel, then the liquid to solid comparison should be ‘‘appropriate.’’ Response: EPA agrees with the commenter that if a unit can burn both a liquid traditional fuel and a solid traditional fuel, then comparison of an NHSM to either fuel would be appropriate. The revised contaminant legitimacy criterion clarifies how the ‘‘designed to burn’’ concept may be interpreted for the purposes of determining traditional fuel(s) to which a NHSM may be compared, and the Agency has determined that this revision is sufficient to allow appropriate comparisons to be made between solid NHSMs and liquid traditional fuels, and vice versa. The agency does not expect these circumstances to hold true for all combustion units, however, and reiterates that this would only be appropriate when the unit can in fact burn multiple traditional fuels used to make such comparisons. Comment: Several industry commenters addressed the topic of what it means to be able to burn a traditional fuel in a combustion unit. The preamble to the recent proposed rule noted that combustion units would need an appropriate feed mechanism, as well as the ability to ensure the fuel is well PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 9149 mixed and keep flame temperatures within unit specifications, to be able to burn a traditional fuel.61 Two commenters opposed the agency’s interpretation of what it means to be able to burn a traditional fuel in a combustion unit, stating that the agency provides no explanation of why feed mechanisms are relevant to whether or not a unit can burn a particular fuel. Both commenters also noted that when NHSMs are used as a fuel in combustion units, the focus on what a unit is ‘‘designed to burn’’ in the first place is irrelevant to whether discard is occurring. Another commenter explained that the same exact material could then be a solid waste in one case and a fuel in another case, depending on who is using the material. A third commenter supported the agency’s interpretation of what ‘can burn’ means, stating that the fate and emissions of a contaminant, whether it is contained in a traditional fuel or a material being considered for legitimacy, are as dependent on the design of the combustion unit as they are on the fuel matrix. The commenter explained further that units should be considered able to burn several types of fuels as long as each type is within the design criteria of the feed system, the combustion chamber and any downstream pollution control device. Response: The EPA disagrees with those commenters questioning the relevance of what fuels combustion units are designed to burn in the context of the legitimacy criteria. If a NHSM does not contain contaminants at levels that are comparable to or lower than those found in any traditional fuel that a combustion unit could burn, then it follows that discard could be occurring if the NHSM were combusted. Whether contaminants in these cases would be destroyed or discarded through releases to the air, they could not be considered a normal part of a legitimate fuel and the NHSM would be considered a solid waste when used as a fuel in that combustion unit.62 The reason we analyze what a unit is designed to burn is to decide the traditional fuel(s) to which contaminants should be compared. This comparison is then used as an aid to decide whether the NHSM is being legitimately used as a fuel or whether excess contaminants show that the burning is waste treatment. If a facility compared contaminants to a traditional fuel it cannot burn and that fuel is highly contaminated, a facility would then be able to burn excessive levels of 61 See 62 See E:\FR\FM\07FER2.SGM 76 FR 80481. 76 FR 15523. 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9150 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations waste components in NHSMs as a means of discard. Regardless of any fuel value in the material, it would be a waste. Once this concept is established, certain factors are relevant to how we decide what a facility is designed to burn. The ability to burn a fuel in a combustion unit does have a basic set of requirements, the most basic of which is being able to get the material into the combustion unit. The agency reaffirms in today’s final rule its interpretation from the proposal that to be able to burn NHSMs, a combustion unit should also be able to ensure the material is well mixed and maintain temperatures within unit specifications. Without these basic limits, there would be no point in distinguishing between fuels a unit is or is not ‘‘designed to burn,’’ and every combustion unit would be considered ‘‘designed to burn’’ any combustible material. Clearly, that is not the agency’s intent. As illustrated by one of the commenters, when a unit cannot burn a fuel according to its own design specifications, excess air pollutants form and are likely to be discarded as emissions. Thus, the agency acknowledges that whether or not a NHSM is a waste may depend on the unit burning the material. Comment: One commenter asked for clarification on the issue of unit modifications. If a boiler hypothetically could be modified in any way to combust a different traditional fuel, the commenter noted, then a comparison to that fuel should be permissible to demonstrate that the NHSM is not a waste. Response: The EPA disagrees with this comment. As long as the modification remains hypothetical in nature, it stands to reason that the unit cannot yet burn the additional traditional fuel and the only reason it is comparing a NHSM to the dirtier fuel is to allow more waste input into the combustion unit. However, if the unit is actually modified to accept additional types of traditional fuels, then the owner or operator of the combustion unit can consider those traditional fuels in evaluating the NHSM for the contaminant legitimacy criterion. In this situation, such behavior shows that the combustor is serious about burning the other fuel and is willing to make the investment so that it can be burned properly instead of simply trying to gain comparison to a dirtier material. Comment: In the proposed rule, EPA specifically addressed used oil stating: ‘‘Used oil is a special case and does not need to undergo the contaminant comparison. If it meets the specifications in 40 CFR 279.11, it is a VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 traditional fuel. If it does not meet the specifications (i.e., it is ‘‘off-spec’’ oil), it is a solid waste under the 2011 NHSM final rule.’’ 76 FR 80481, fn. 44. Some commenters argued that off-spec used oil fuel, however, could satisfy all of EPA’s legitimacy criteria, including a contaminant comparison with coal, a traditional fuel. Thus, if a combustion unit is ‘‘designed to burn’’ both coal and oil, the facility should be able to use coal as the traditional fuel for the purposes of determining whether the contaminants are comparable—even when the NHSM at issue is off-spec used oil, as defined in 40 CFR 279.11. Response: The Agency agrees with the commenter that contaminants in offspec used oil burned for energy recovery in facilities that are designed to burn coal may be compared to coal for purposes of determining whether the off-spec used oil is a waste or non-waste product fuel. Accordingly, for purposes of waste/non-waste determinations, coal or oil, including on-spec used oil can be used as the traditional fuel identified for comparison of contaminants to meet the legitimacy criterion for units designed to burn both fuels. Some combustion units are designed to burn multiple fuels, such as both coal and oil, including on-spec used oil. Under these circumstances, the Agency agrees that the rules allow the comparison of contaminant levels to either traditional fuel. That is, to be designated as a nonwaste, the off-spec used oil contaminant levels must be comparable to or lower than coal when coal is the traditional fuel used for comparison. EPA no longer finds, as stated in Footnote 44 of the proposed rule, that off-spec used oil is always a waste for facilities that are designed to burn coal. Off-spec used oil continues to be a waste, however, for facilities that are not designed to burn coal because off-spec used oil contains contaminant levels that are not comparable to on-spec used oil. EPA also notes that in the preamble to the March 2011 rule (p. 15506), the Agency specifically rejected the comparison of off-specification used oil contaminants to coal. That discussion, however, was in the context of a general contaminant comparison for units that burn only fuel oil. Coal may not be the comparison material for all offspecification used oil, but only for those facilities that are designed to burn coal as provided in the definition of this rule. Finally, we want to make clear that EPA has not modified the part 279 regulations for management of used oil, and thus, burning of off-spec used oil for energy recovery is still subject to those rules, including the requirement that off-spec used oil can only be PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 burned in certain units (see 40 CFR 279.61(a)).63 Comment: Commenters argue that the EPA has not adequately addressed how units designed to burn only NHSMs are to comply with the contaminant legitimacy criterion. The commenters explained that, under the rule structure as proposed, a NHSM may be classified as a waste simply due to a lack of a traditional fuel for comparison purposes. Comments acknowledge that the agency discussed the issue in the preamble to the proposed rule but the commenters disagree that the discussion provided any solution. Finally, commenters specifically requested that the EPA acknowledge the fact that a combustor designed for a particular NHSM fuel is dispositive that the NHSM is being legitimately burned for energy recovery. Response: The EPA disagrees with the assertion that the agency has failed to provide a solution for units designed only to burn NHSMs. The EPA also disagrees with the assertion made by commenters that the fact that a combustor has designed a combustion unit for a particular NHSM fuel is dispositive that the NHSM is being legitimately burned for energy recovery. The EPA acknowledges and is aware of units built specifically to burn NHSMs. One example is facilities built to burn resinated wood. The EPA notes that units built to burn such NHSMs are likely to be able to burn similar traditional fuels. Using the example of units built to burn resinated wood, the EPA considers it reasonable to assume that these units could also burn clean wood and, therefore, could make comparisons to that traditional fuel. The agency also notes that it is not aware of any units—and commenters have not identified any such units—that can burn only NHSMs. The EPA has nonetheless provided what it considers to be a reasonable solution. As explained in the preamble to the proposed rule, the EPA advises combustors faced with such a situation to compare solid NHSMs to solid traditional fuels, such as coal or biomass, liquid NHSMs to liquid 63 Off-specification used oil can only be burned in the following types of units: (1) Industrial furnaces, as defined in 40 CFR 260.10; (2) the following boilers, as defined in 40 CFR 260.10— industrial boilers located on the site of a facility engaged in a manufacturing process where substances are transformed into new products, including the component parts of products, by mechanical or chemical processes, utility boilers used to produce electric power, steam, heated or cooled air, or other gases or fluids for sale, and used oil fired space heaters provided that the burner meets the provisions of 40 CFR 279.23; and (3) hazardous waste incinerators subject to regulation under subpart O of 40 CFR parts 264 or 265. E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 traditional fuels, such as oil, and gaseous NHSMs to gaseous traditional fuels, such as natural gas.64 In light of the explanation of ‘‘designed to burn’’ codified in the final contaminant legitimacy criterion, as well as industry comments that many combustion units can burn multiple types of fuel, the agency believes that its suggested approach adequately addresses the issue. Finally, the EPA acknowledges that combustion units can and have been designed specifically to burn NHSMs and that such units can recover energy. The agency notes, however, that persons can and have also designed incinerators to dispose of certain waste materials and that such units can also recover energy. The agency, therefore, does not consider it dispositive that if combustion units are designed to burn a specific material, that material must be a legitimate nonwaste fuel. d. Contaminant Comparisons Allowed The proposed revision to the contaminant legitimacy criterion for NHSMs used as a fuel included the following statement: ‘‘In comparing contaminants between traditional fuel(s) and a non-hazardous secondary material, persons can use ranges of traditional fuel contaminant levels compiled from national surveys, as well as contaminant level data from the specific traditional fuel being replaced.’’ The March 2011 final rule did not discuss the use of ranges when evaluating contaminant data, nor did it discuss the use of traditional fuel data from national surveys. The December 2011 proposed rule included these concepts to clarify that persons are not required to adhere to a single comparison methodology, nor are they required to compare contaminants in their NHSMs to contaminants in the specific traditional fuel source they burn (or would otherwise burn). In both instances, the additional language clarifies, but does not change the intent, of the March 2011 final rule. Regardless of the specific methodology chosen, a comparison will have to be made for each contaminant or group of contaminants between the NHSM and a traditional fuel or traditional fuel group. Generators or combustors can use either traditional fuel data collected by the EPA or their own data for traditional fuel comparison values.65 Generators or combustors are 76 FR 80481. EPA maintains an NHSM Web page with current information on contaminant levels in traditional fuels, examples of legitimacy determinations, and other information at https:// www.epa.gov/epawaste/nonhaz/define/index. responsible, however, for providing NHSM comparison values in cases where testing is conducted. Examples of acceptable NHSM data could include both laboratory test results from a specific generator or combustor and industry-recognized values provided by a national trade organization. Given data for a particular traditional fuel, the EPA noted in the proposal that many combustors would choose to base the traditional fuel comparison value on the upper end of its statistical range and that this approach was reasonable. Anything less could result in ‘‘traditional fuel’’ samples being considered solid waste if burned in the very combustion units designed to burn them. This was not the agency’s intent in the March 2011 final rule.66 Given that selection (i.e., the range for traditional fuel contaminant values), the agency noted that acceptable NHSM comparison values would include the upper end of a statistical range, a calculation involving the mean and standard deviation or perhaps a single data point in situations where data are limited. The proposal reasoned that it would not be appropriate to compare an average NHSM contaminant value to the high end of a traditional fuel range, as the existence of an average implies multiple data points from which a more suitable statistic (e.g., range or standard deviation) could have been calculated. If each NHSM comparison value is comparable to or lower than its corresponding traditional fuel value, the material would be considered to meet the contaminant legitimacy criterion. An initial assessment would not need to be repeated, explained the proposal, provided the facility continues to operate in the same manner and use the same type of NHSMs as when the original assessment was made. Despite presenting several approaches for calculating NHSM comparison values, such as the upper end of a statistical range or a calculation involving the mean and standard deviation, the proposal did not preclude other reasonable methodologies. In the context of an inspection or enforcement action, the agency will evaluate the appropriateness of alternative methodologies and data sources on a case-by-case basis when determining whether the contaminant legitimacy criterion has been met. The EPA noted in the proposal that contaminant testing is not required and that process knowledge may be 64 See 65 The VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 66 Traditional fuels, as defined in § 241.2, are not required to meet the legitimacy criteria, and this scenario is only used to explain the logic behind basing a traditional fuel comparison value on the upper end of a statistical range. PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 9151 sufficient for particular contaminants in particular NHSMs. Even when analytical testing is not necessary, the EPA’s regulations governing recordkeeping for units subject to emissions standards for boilers and process heaters issued pursuant to CAA section 112 require keeping a record to document the basis of non-waste determinations under the part 241 criteria (including the contaminant legitimacy criteria). See 40 CFR 40 CFR 63.11225(c)(2)(ii) for area source boilers and 40 CFR 40 CFR 63.7555(d)(2) for major source boilers. The EPA believes that the comments have not changed the basis for its decision to allow the use of ranges and surveys of traditional fuel contaminant levels. Nor have comments changed the agency’s position that similar traditional fuels may be grouped for comparison purposes and that testing is not required in all cases. Thus, the EPA is adopting the reasoning from the proposal and adjusting the contaminant legitimacy criterion accordingly for NHSM used as a fuel. The EPA has decided, however, to make a modification to the regulatory language of the December 2011 proposed rule based on comments received. The final criterion issued today includes additional language clarifying the appropriate use of ranges when making contaminant comparisons between NHSMs and traditional fuels. Consistent with the rationale provided in the preamble to the proposed rule, additional language now states that in order to use the full range of contaminant values in traditional fuels, persons should also account for the variability in NHSM contaminant levels. Any additional reasoning for finalizing the revision with or without suggested modifications is described in the responses to comments below. Comment: Industry comments supported the proposed changes expressly allowing the use of ranges and national surveys of traditional fuel data, as did one state comment. One commenter stated that these changes provide a more practical approach to meeting the contaminant legitimacy criterion that recognizes the inherent variation of contaminants in NHSMs and traditional fuels. Several commenters supported the use of ranges by repeating the EPA’s rationale from the proposal that using anything lower would logically result in a determination that some traditional fuels should not be burned in combustion units designed to burn those fuels. Another commenter stated that these clarifications describe appropriate methods of handling data E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9152 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations that are naturally variable and will result in fewer non-waste materials being arbitrarily identified as wastes. Environmental groups opposed the use of ranges to evaluate contaminants, expressing concern that C&D wood contaminant levels would be compared to the highest contaminant levels for coal. These commenters suggested that averages or medians be used instead. Response: Based on our review of the comments received, the EPA is retaining the approach outlined in the proposed rule to expressly allow the use of ranges and traditional fuel data from national surveys. As discussed in the proposed rule, the EPA considers it reasonable to allow combustors to use the range of contaminant levels present in traditional fuels because anything less could result in ‘‘traditional fuel’’ samples being considered solid waste if burned in the very combustion units designed to burn them. For this reason, the agency disagrees with comments stating that combustors should be limited to use of the average or median concentrations. The EPA acknowledges that the revisions adopted as final in today’s rule would allow C&D wood contaminant levels to be compared to the highest contaminant levels for coal. The commenters do not specify, however, what C&D wood contaminant levels (averages or ranges) they are concerned would be compared to the highest levels in coal. The agency points out that the proposed revisions were not intended to allow average C&D wood contaminant levels to be compared to the highest levels in coal. In light of the concerns expressed by these commenters, the EPA has modified the proposed language to provide additional assurance that such average-tomaximum comparisons, which the agency has already determined are inappropriate, will not be allowed under today’s final rule. The EPA has decided that such comparisons are inappropriate because, following the logic stated in the March 2011 final rule, average-to-maximum comparisons do not demonstrate that contaminants in these cases could be considered a normal part of a legitimate fuel and are not being discarded.67 Today’s final criterion makes clear that the full range of traditional fuel contaminant values can only be used if persons also consider some measure of variability in the NHSM contaminant data. This will help to ensure that average to maximum comparisons will not be used to justify the combustion of NHSMs as non-waste fuels. 67 See 76 FR 15523. VerDate Mar<15>2010 18:01 Feb 06, 2013 Comment: Industry comments supported the concept discussed in the proposed rule that the contaminant legitimacy criterion does not require the testing of contaminant levels in NHSMs in all cases. The proposal noted that persons can instead use expert or process knowledge to justify decisions to rule out certain constituents. The proposal also noted that initial assessments would not need to be repeated, provided the facility continues to operate in the same manner and use the same type of NHSMs as when the original assessment was made. One commenter asked the EPA to confirm these statements, explaining that this policy will result in fewer NHSMs being arbitrarily identified as wastes. Another commenter stated that the flexibility provided by this policy will help ensure that regulated entities with varying levels of sophistication can better document that their NHSMs are nonwaste fuels. Environmental groups, on the other hand, commented that the EPA must require testing for contaminants, citing the extremely variable nature of C&D wood as a problem. Commenters expressed concern that a large amount of material is going to be generated as abandoned and foreclosed housing is torn down, and the potential for liberating vast amounts of lead and other urban toxics, to say nothing of arsenic and chromium from pressuretreated wood, has never been higher. Response: Based on a review of the comments received, the EPA is maintaining its position that contaminant testing is not required in all situations. Requiring testing in some situations is unnecessary. Where a NHSM generator, processor or combustor knows a contaminant will either not be present or be present at a level below that in the appropriate traditional fuel or traditional product, the agency believes it is a reasonable and practical policy to allow persons to rely on either process knowledge or previous testing of the same material. The agency notes that there will be instances where testing is conducted and comparisons will have to account for the variability of contaminant levels in NHSMs, including lead concentrations in C&D wood. The agency also notes that today’s final rule does not change its previously stated position that chromated copper arsenate-treated wood (CCA wood) would likely have contaminant levels not comparable to traditional fuels.68 Comment: One commenter requested that the EPA clarify what it means by 68 See Jkt 229001 PO 00000 75 FR 31872. Frm 00042 Fmt 4701 Sfmt 4700 the upper end of the statistical range. Citing the EPA’s statement in the proposal that ‘‘it makes sense to base the traditional fuel comparison on the upper end of the statistical range,’’ 69 the commenter asked for confirmation that the maximum values in the traditional fuel data set can be used for comparison with a NHSM since all data corresponding to the traditional fuel are valid for comparison, not just values that are below some arbitrarily determined statistical parameter. Response: The word ‘ranges’ in the proposed contaminant legitimacy criterion has been changed to ‘the full range’ in the final criterion issued today. This term more clearly indicates the agency’s intent to include all true values in between the minimum and the maximum. The agency has also separated the concepts of ranges and traditional fuel survey data in the regulatory language in order to make the criterion more transparent. The pertinent regulatory text in today’s final rule reads as follows: ‘‘In comparing contaminants between traditional fuel(s) and a nonhazardous secondary material, persons can use data for traditional fuel contaminant levels compiled from national surveys, as well as contaminant level data from the specific traditional fuel being replaced. To account for natural variability in contaminant levels, persons can use the full range of traditional fuel contaminant levels, provided such comparisons also consider variability in non-hazardous secondary material contaminant levels.’’ Comment: Several commenters noted that the agency proposed to allow the use of ‘‘national’’ surveys of traditional fuel data in the proposed contaminant legitimacy criterion and included several international data sources in its ‘‘Contaminant Concentrations in Traditional Fuels: Tables for Comparison’’ document.70 Several commenters asked that the word ‘national’ be removed from the contaminant legitimacy criterion. Other commenters asked that the EPA either remove the word ‘national’ or clarify that international data and surveys from other nations are also acceptable data sources. Response: The EPA has retained the proposed language, including the word ‘‘national,’’ which expressly allows national surveys of traditional fuel data to be used in contaminant comparisons 69 See 76 FR 80481. EPA maintains a NHSM Web page with current information on contaminant levels in traditional fuels, examples of legitimacy determinations, and other information at https:// www.epa.gov/epawaste/nonhaz/define/index. 70 The E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations for NHSMs used as a fuel in combustion units. A statement that national surveys can be used does not preclude the use of appropriate international data. In fact, as the commenters recognize, the EPA included several international sources in its analysis of traditional fuels. These international sources were limited, however, to situations where no data or minimal data could be found from national sources or the agency had no reason to believe that data from national sources would be significantly different. At issue is whether the data are representative of traditional fuels that are purchased and burned at operating boilers in the United States. The agency has decided that it is reasonable to assume that national surveys of traditional fuels contain information about fuels purchased and burned at operating boilers in the United States. Comment: One commenter argued that the traditional fuel database compiled by the EPA should include the USGS coal data from not only the United States but also from around the world because those fuels are currently in use. Response: The EPA has maintained its decision not to reference the USGS COALQUAL database in its traditional fuel contaminant tables. It is the agency’s understanding that the COALQUAL database contains trace metal analyses for coal and associated rocks taken directly from coal beds throughout the United States and that not all of these coal beds are currently being mined. It is also the agency’s understanding that as-mined coal typically undergoes a series of processing steps, including crushing, screening, washing and physical separation techniques to remove rock and other impurities prior to being blended into clean, graded and uniform coal products suitable for use in commercial boilers.71 In comparison, the EPA contaminant tables referenced by commenters are based largely on a comprehensive dataset that contains approximately 32,000 records of pre-combustion contaminant analyses performed on coal, wood, biomass and fuel oil samples that were actually used as fuel at boilers across the country. Thus, the agency has decided that the EPA dataset is more representative of contaminant levels in coal actually burned at operating boilers than the COALQUAL database. As a result, the EPA has decided not to use the COALQUAL 71 Speight, J.G. Synthetic Fuels Handbook: Properties, Process, and Performance. McGraw-Hill, 2008. pg 141. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 database in developing the tables posted on the agency’s Web site. We would also note that the decision not to use USGS data is consistent with the agency’s position that product fuel oils, as opposed to virgin crude oil, should be measured for purposes of contaminant comparisons. As stated in the proposed rule, neither unrefined crude oil nor gasoline is typically burned in combustion units regulated by CAA sections 112 and 129. Similarly, as-mined coal is not typically burned in combustion units regulated by CAA sections 112 and 129. Comment: One commenter suggested that for each contaminant or group of contaminants, either the UCL of the mean at a 90 percent confidence level or the UPL at a 90 percent confidence level for NHSMs could be compared to the maximum value for the appropriate traditional fuel. Response: First, we would note that in the preamble to the recent proposed rule, the EPA indicated that when compared to the full range of contaminants in traditional fuels, suitable measures of NHSM contaminants would include the upper end of a statistical range, a calculation involving the mean and standard deviation or perhaps a single data point in situations where data are limited. The agency also noted that the discussion in the preamble did not preclude ‘‘other reasonable methodologies.’’ 72 With respect to the specific approaches suggested by the commenters, the EPA agrees with the approach of comparing the UPL at a 90 percent confidence level for each contaminant or group of contaminants in NHSMs to the maximum value for each contaminant or group of contaminants in the appropriate traditional fuel. Specifically, the UPL is an indicator of what a future measurement would be. In the context of NHSM contaminant levels, the UPL taken at a 90 percent confidence level would yield a number, and a combustor could be confident that 90 percent of the time, the next measured contaminant level would be at or below that number. The UPL considers both the variability of the contaminant distribution and the uncertainty surrounding what the true mean is. The comment suggested taking a maximum value for traditional fuel contaminant levels and comparing it to the UPL at a 90 percent confidence level. Because both metrics account for the variability present in contaminant distributions, the EPA would consider this approach to be a reasonable methodology. 72 See PO 00000 76 FR 80481. Frm 00043 Fmt 4701 The EPA does not agree, however, with an approach of using the UCL of the mean. That is, the UCL of the mean, regardless of the confidence level, is a measure of the mean and does not adequately factor in the variability present in both NHSMs and traditional fuel contaminant levels. The metric would be appropriate for a mean to mean comparison, but that is not what the commenter suggested. The comment suggested taking a maximum (which takes full advantage of the variability present in traditional fuel contaminant levels) and comparing it to a mean (which ignores the variability present in NHSM contaminant levels). The EPA does not consider this approach to be a reasonable methodology. To be clear, the EPA does not object to the use of confidence limits, or to the use of the UCL of the mean, on their own grounds. However, the agency believes it is inappropriate to make a comparison of mean contaminant levels in NHSMs to maximum contaminant levels in traditional fuels. Comment: One commenter suggested that the EPA allow entities to compare contaminants between NHSMs and traditional fuels on a pound of contaminants per Btu (lb/MMBtu) basis, as the agency said it would consider in the preamble discussion to the 2011 NHSM Final Rule.73 Response: The EPA maintains its position that a direct comparison of contaminant levels, as opposed to the lb/MMBtu approach, is the most appropriate means of comparing contaminant levels. As was noted in the 2011 NHSM Final Rule, however, the agency may still consider the lb/MMBtu approach as guidance is developed for implementation. 3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels The new provisions at 40 CFR 241.4 were proposed to allow the EPA to list categorically certain NHSMs as non wastes—when used as a fuel in a combustion unit. Based on these categorical non-waste determinations, facilities burning NHSMs that qualify for the provision will not need to demonstrate that the NHSM meets the legitimacy criteria on a site-by-site basis. The EPA has determined that these NHSMs are categorical non-wastes as described and are not discarded when used as a fuel in a combustion unit. Categorical non-waste determinations only apply, however, to NHSMs that are burned as a fuel in combustion units for the purpose of recovery energy. Burning 73 See Sfmt 4700 9153 E:\FR\FM\07FER2.SGM 76 FR 15525. 07FER2 9154 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations a NHSM fuel in a combustion unit for energy recovery assumes a set of basic design requirements that ensures excess air pollutants are not formed and emission requirements under the CAA are met. As discussed in section III.D.2.c of this preamble, such basic design requirements include abilities to load the material into the unit, ensure the material is well mixed and maintain temperatures within unit specifications. For example, burning a whole tire in a boiler that is only designed to burn tires that are chipped and/or dewired would not be considered a fuel burned in a combustion unit for the purpose of recovering energy. The agency is not including specific regulatory text regarding this point since we believe it is understood that to be burned for energy recovery, the combustion unit must be able to burn the NHSM as a fuel. mstockstill on DSK4VPTVN1PROD with RULES2 a. Scrap Tires In the December 23, 2011, NHSM proposed rule, the EPA proposed the following regulatory language under 40 CFR 241.4 Non-Waste Determinations for Specific Non-Hazardous Secondary Materials When Used as a Fuel: ‘‘Scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires.’’ Further, the addition of this provision (40 CFR 241.4(a)(1)) eliminated the need for the previous scrap tire provision at 40 CFR 241.3(b)(2)(i),74 which has been removed and reserved in today’s final rule. Today’s rule finalizes the proposed provision without changes. Comment: One commenter stated that, ‘‘in its latest proposal, EPA eliminates the need for scrap tires to meet its legitimacy criteria and simply declares that scrap tires collected under an established tire collection program are not waste regardless of whether they meet the agency’s legitimacy criteria.’’ Response: The EPA disagrees with this comment. The EPA has not eliminated the legitimacy criteria for scrap tires. The categorical determination for scrap tires (as with all the categorical determinations in this 74 The scrap tire provision in the 2011 NHSM final rule is now removed and the section reserved in today’s final rule: ‘‘(b) The following nonhazardous secondary materials are not solid wastes when combusted: (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) Scrap tires used in a combustion unit that are removed from vehicles and managed under the oversight of established tire collection programs.’’ VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 rule) simply applies the agency’s nondiscard determination, made in the March 2011 rule and not reopened in this amendment, to the general category so that case-by-case determinations as to legitimacy would not need to be made by each facility. For the scrap tire category, scrap tires managed under established tire collection programs and used as a fuel need not make case-bycase legitimacy determinations. Moreover, the commenter has given us no information that the criteria are not met. In fact, the commenter simply repeats the argument made in previous rulemakings that the material is always a waste regardless of legitimacy criteria. Comment: Several commenters suggested that scrap tires should not have more restrictions under 40 CFR 241.4(a) for the categorical non-waste status than does resinated wood. The non-waste determination for scrap tires, as proposed in 40 CFR 241.4(a)(1), read ‘‘Scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires.’’ In comparison, the resinated wood description, as listed in 40 CFR 241.4(a)(2), is ‘‘Resinated wood.’’ The commenters reasoned that if all resinated wood can be non-waste, then all scrap tires should also qualify (regardless of the origin). Response: Please see the EPA’s response in the resinated wood section below (section III.D.3.b of this preamble) relating to the 241.4(a) criteria for resinated wood and the comparison to scrap tires. That response goes into detail explaining why the extra criteria are not needed for resinated wood and related discard issues. In addition, as noted previously in the NHSM rulemaking record (see docket EPA– HQ–RCRA–2008–0329), numerous tire piles have been created in the past whereas this is not the case for resinated wood used as fuel. The existence of these historic tire dumps demonstrates that some tires have not been treated as a valuable commodity therefore necessitating the additional discard qualification in regulatory text. The specific tires described in the categorical determination are handled as a valuable commodity and do not include discarded tires. Comment: A commenter suggested that the EPA should add ‘‘offspecification tire components’’ to the regulatory language. This revision would be in addition to the proposed text at 40 CFR 241.4(a)(1) that adds ‘‘offspecification tires.’’ Response: Off-specification tire components are covered in the 40 CFR PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 241.4 categorical non-waste determinations for scrap tires. The term ‘scrap tire’ is a general term for tires and can include, for example, whole tires, chipped tires, off-specification tires or off-specification tire components (i.e., tread, sidewall or base) that are removed from vehicles or are generated by tire manufacturers, including retailers or other parties involved in the distribution and sale of new tires. This formulation was also stated in the December 2011 NHSM proposal 75 and is adopted for today’s final rule. The EPA sees no difference between tires and their various components. Thus, the EPA does not believe it necessary to modify the rule to include ‘‘offspecification tire components’’ in the codified definition. They are understood to be included in the categorical nonwaste provision. Comment: Many commenters mentioned the difficulty in complying with the regulations since it is very difficult to distinguish between tires removed from vehicles (and offspecification tires) versus tires from other origins. In regard to this issue, one commenter stated, ‘‘a combustor cannot know the origin of the tire-derived fuel it is buying. In its response to requests for reconsideration of the CISWI rule, the EPA responded to this issue by recognizing that it is not possible for a combustor to know the source of all NHSM fuel and declined to impose this requirement stating: ‘‘Rather, it is sufficient that the ultimate user verify that it is obtaining tires from an established tire collection program, which program can provide the user with reasonable assurance that it manages tires carefully from point of collection to point of burning and which does not receive tires which have been abandoned in landfills or otherwise. 76 Fed. Reg. 28318, 28322 (May 17, 2011).’’ Therefore, the commenter requests that the EPA codify this statement in the NHSM rule and expressly allow combustors to rely upon certifications of fuel suppliers that the fuel sold is not a solid waste. Another commenter said that for the EPA to require a tire storage facility to maintain separate classifications of tires (i.e., separating discarded tires from tire dumps from other tires) is not reasonable, because inspectors and operators would not be able to tell the piles apart. The EPA’s current definition of scrap tires would place undue financial hardship on contractors and storage facilities. Response: The EPA has decided that a regulatory statement on this matter is 75 See E:\FR\FM\07FER2.SGM 76 FR 80483. 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations not necessary since the actual requirement for the combustor to determine where its tires come from when they are coming from an established tire collection program (or a contractual agreement) is provided for under the CAA and interpretations provided for that regulation. For example, major source boilers have a recordkeeping requirement for a nonwaste determination at 40 CFR 63.7555 ‘‘What records must I keep?’’ Within those regulations for major source boilers, it requires the combustor to demonstrate that NHSMs are a nonwaste. To the extent that a combustor believes it appropriate, they may request haulers to verify that the tires would qualify as non-waste under 40 CFR 241.4 when combusted. If there is question about the origin of the tires, the EPA inspectors will not assume that tires are from discarded sources. As we note in the Federal Register notice (76 FR 28318, 28322), ‘‘It is EPA’s position that ultimate users are not responsible for knowing the source of all tires obtained from an established tire collection program* * * EPA does not interpret this language as requiring knowledge of each individual tire as this is a practical impossibility* * * users also should not assume that tires from established programs which participate in occasional cleanup days are discarded—both because there is no information that the tires from the cleanup efforts were discarded (and these programs are designed to prevent discarding) and whether the kiln received tires from the sporadic cleanup days in any case.’’ The Federal Register notice that the commenter cited (76 FR 28322) and a related letter to the docket (‘‘Memorandum. Combustion in a Cement Kiln and Cement Kilns’ Use of Tires as Fuel.’’ April 25, 2011, Document ID: EPA–HQ–OAR–2002– 0051–3582) provide sufficient guidance. The agency believes this issue does not merit additional regulation for the hauler. b. Resinated Wood In the December 23, 2011, proposed rule, the EPA proposed to designate in regulatory text that resinated wood is not a solid waste when used as a fuel. In making this determination, the agency analyzed these materials using the legitimacy criteria, concluding that resinated wood clearly is managed as a valuable commodity and has meaningful heating value and is used as fuel.76 While stating that these materials may not always meet the regulatory contaminant legitimacy criterion in 76 See 76 FR 80483. VerDate Mar<15>2010 18:01 Feb 06, 2013 every situation, we proposed to list categorically resinated wood as a nonwaste fuel because, after balancing the regulatory legitimacy criteria and other relevant factors, the EPA determined that resinated wood that is used as fuel represents an integral component of the wood manufacturing process and, as such, is not being discarded when burned as fuel. Specifically, we noted the extent to which resinated wood is used as fuels throughout the wood manufacturing industry and that the use of resinated wood as fuel is essential to the wood manufacturing process. We also noted the prevalence of wood product plants that have been designed specifically to utilize these residuals for their fuel value; in fact many (if not most) wood products plants would not be able to operate as designed without the use of these materials. This determination was previously codified under 40 CFR 241.3 (b)(2)(ii) of the NHSM final rule, provided the resinated wood met the legitimacy criteria in 40 CFR 241.3(d)(1). However, based on the available information, as well as how this material is handled and used in the process, resinated wood is not being discarded when used as a fuel, and thus, should not be considered a solid waste when burned as a fuel. The EPA proposed to codify this determination by categorically listing resinated wood as a non-waste fuel in 40 CFR 241.4(a)(2).77 By specifically listing it as a non-waste fuel, combustors of this material would not need to demonstrate that they meet the legitimacy criteria on a site-by-site basis. The EPA finds that this reasoning is supported by the entire rulemaking record, as explained in the December 2011 proposal, which rationale is adopted for the final rule as further supported by responses to comments below. Thus, the agency has determined to list categorically resinated wood as a non-waste fuel. In addition, after considering comments received on the proposal, the agency is revising the definition of ‘‘resinated wood,’’ as codified in 40 CFR 241.2. Comment: Most comments on this issue were supportive of a categorical determination that resinated wood is a non-waste fuel. One commenter maintained that the record for this rulemaking clearly establishes that resinated wood is highly valued within the wood products industry for its high fuel value, stating that ‘‘Many facilities rely on mixing of these low moisture content wood materials with higher moisture content wood materials to 77 See Jkt 229001 PO 00000 76 FR 80483–80484. Frm 00045 Fmt 4701 Sfmt 4700 9155 manage and optimize combustion.’’ This same commenter also stated that ‘‘there exists within the wood products industry a developed market for purchase and sale of resinated wood between independent companies.’’ In fact, many wood-fired boilers at wood products plants that do not generate sander dust have been retrofitted with sander dust injection burners so that sander dust can be properly combusted in those units, taking full advantage of the heat energy of sander dust. Another commenter stated that ‘‘resinated fuels have been an integral part of the composite wood product industry’s production process since the industry was established decades ago. As such, facilities’ combustion and energy systems were designed and constructed to utilize most if not all of their own wood and wood by-products, including resinated trim and sander dust. Excluding resinated wood fuels from our manufacturing processes would require significant re-engineering of our facilities and add insurmountable operating costs in order to substitute fossil fuels, as well as to transport and dispose of resinated wood fuels. Any other result would effectively make it nearly impossible for these manufacturing facilities to continue operations.’’ This same commenter also noted that ‘‘many of our facilities rely exclusively on resinated wood for its fuel and have limited access to substitutes.’’ Another commenter provided two examples of mills that utilize nearly 100 percent of sander dust, either to create new product as part of the manufacturing process or as fuel. In addition, two state commenters supported the proposed categorical nonwaste determination for resinated wood. Response: Nearly all of the comments received regarding the proposed categorical non-waste determination were supportive of categorically listing resinated wood as a non-waste fuel when burned in combustion units for energy recovery. As noted above, the agency did receive a few additional examples of how the use of resinated wood as a fuel is an integral part of the wood manufacturing industry’s production process (e.g., the facilities that would have to be significantly reengineered if they could not use resinated wood for its fuel value and the mills that use 100 percent of the sander dust it generates, either by recycling it back into the process or burning it for fuel). Although we received one comment critical of the EPA’s proposed listing of resinated wood as a non-waste fuel (addressed below), we did not receive E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9156 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations any comments that argued or suggested that the use of resinated wood as a fuel is not an integral component of the wood manufacturing process. Thus, we agree with commenters who encouraged the EPA to finalize resinated wood as a categorical non-waste fuel and will finalize this determination in today’s rulemaking. Information in the record for this rulemaking clearly establishes that resinated wood is managed as a valuable commodity (40 CFR 241.3(d)(1)(i)) and has meaningful heating value and is used as a fuel in combustion units that recover energy (40 CFR 241.3(d)(1)(ii)).78 In addition, we generally have determined that most resinated wood meets the contaminant legitimacy criterion as well ((40 CFR 241.3(d)(1)(iii)), although we acknowledge that in some instances these materials may have levels of formaldehyde that are not comparable to traditional fuels.79 The EPA confirms the position discussed in the proposal and adopts it as its final rationale that there are instances where it is appropriate for the EPA to balance the regulatory legitimacy criteria with other relevant factors in order to determine whether a material is a legitimate fuel or is merely being discarded by being combusted. We have determined that resinated wood is one such example. Although resinated wood may not meet the regulatory contaminant legitimacy criteria in every situation, it is clear that resinated wood is still a ‘‘legitimate’’ product fuel after one considers how integrally tied the use of resinated wood as a fuel is within the wood manufacturing process and industry. Nearly all comments received on this point concurred with this assessment. Thus, in today’s final rule, we are codifying the determination that resinated wood, based on all information and the totality of the circumstances, is a non-waste when used as a fuel. Comment: One commenter, however, stated that the EPA’s proposed categorical determination that resinated wood is a non-waste fuel is unlawful and arbitrary. The commenter stated that the EPA is now proposing to simply ‘‘exempt’’ resinated wood altogether, regardless of who burns it and whether it meets the legitimacy criteria. According to the comment, the EPA acknowledges that the formaldehyde levels in resinated wood would not 78 See, e.g., 76 FR 80483. See also background document developed in support of the December 23, 2011, proposed rulemaking titled, ‘‘Resinated Wood, Scrap Tire, and Pulp/Paper Sludge Support Document’’ (EPA–HQ–RCRA–2008–0329–1880). 79 Id. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 always meet its contaminant legitimacy criterion—i.e., would not be comparable to the levels in any fuel that companies would otherwise burn. The commenter states that the EPA also acknowledges that burning resinated wood increases the emissions of formaldehyde, but nonetheless finds that, ‘‘In general the motivation to use resinated wood as a fuel, even with the slightly higher formaldehyde levels, predominates over the motivation to dispose of the formaldehyde.’’ The EPA’s decision to remove the limits on the exemption for resinated wood and to ‘‘categorically’’ declare resinated wood to be a nonwaste—regardless of who burns it, regardless of how contaminated it is, and regardless of the reality that some companies may be burning resinated wood as a cheap means of disposing of their toxic formaldehyde wastes— underscores this point. The comment continues that the EPA nowhere claims that companies burning resinated wood that they have not generated pay for these materials. Indeed, the EPA does not deny that these companies are paid to take the resinated wood they burn. Thus, the EPA provides no reason to believe that the resinated wood that is burned by a company other than the one that generated it has not been discarded by the company that generated it. Even under the EPA’s own view of the meaning of discard, resinated wood burned by companies other than the generator of the resinated wood would be waste but for the agency’s declaration that it is not waste. The commenter also states that the EPA admits that some companies may burn resinated wood because they want to dispose of the formaldehyde it contains (i.e., to dispose of the contaminated wood rather than to recover energy). Moreover, the levels of formaldehyde contamination in some resinated wood would exceed the EPA’s legitimacy criteria, but for the EPA’s declaration that these criteria do not apply. For these reasons as well, resinated wood is discarded even under the EPA’s own view of what that term means. Further, the comment states that sources’ alleged ‘‘motivation’’ for burning a material is to recover energy rather than to destroy the wood and the contaminants it contains—assuming arguendo that a source’s motivation can even be determined—does not show that material is not a waste. Rather, resinated wood is a waste because it is discarded within the meaning of RCRA. Notably, the EPA does not suggest that there is any use for resinated wood that has been discarded other than— PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 assuming it is a ‘‘use’’ at all—burning it. Moreover, establishing a ‘‘motivation’’based test for whether resinated wood is or is not a waste conflicts with and defeats the CAA. Thus, the agency’s categorical declaration that resinated wood is not a waste is unlawful. Response: The EPA strongly disagrees with the commenter’s characterization of its categorical determinations. In making categorical determinations, the agency is not ‘‘exempting’’ these materials from regulation as a solid waste (i.e., if not for this ‘‘exemption,’’ these materials would otherwise be regulated as solid waste). Rather, the EPA has determined that the specified NHSMs are not solid waste when used as fuels. Further, in making categorical determinations, the EPA is not saying that the legitimacy criteria are not relevant. In proposing the categorical non-waste determination for resinated wood, the agency stated we were ‘‘balancing the legitimacy criteria and other relevant factors based on the fact that resinated wood residuals that are used as fuels represents an integral component to the wood manufacturing process and, as such, resinated wood residuals are not being discarded when burned as fuels.’’ 80 This remains the agency’s final finding in this rule. Regarding the level of contaminants in resinated wood, the agency is not saying that resinated wood is a nonwaste fuel ‘‘regardless of how contaminated it is,’’ as the commenter suggests. Based on all available information, the agency has concluded that resinated wood meets the legitimacy criteria for all contaminants with the possible exception in some situations of formaldehyde. In focusing specifically on formaldehyde, we also have stated that we have limited information regarding formaldehyde levels—that is, resins and adhesives containing formaldehyde react within the resin curing process leaving ‘‘free formaldehyde at levels less than 0.02 percent (or 200 ppm), but noted that levels will be reduced further due to new national rules being developed by the CARB Composite Wood ATCM, per new Public Law 111–199. Thus, we have not said that contaminants do not matter. Rather, we have carefully analyzed contaminant levels in resinated wood and have determined, based both on contaminant levels, as well as how the use of these materials represents an integral part of the wood product manufacturing process, that resinated wood materials are a legitimate non-waste fuel. 80 See E:\FR\FM\07FER2.SGM 76 FR 80483. 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations Further, we do not concede, as the commenter contends, that some companies burn resinated wood to destroy contaminants—in fact, we have determined just the opposite. We have determined that companies burning resinated wood do so because such an activity is integrally tied to their production process, not to dispose of the formaldehyde. This determination is based on that extent to which resinated wood is used as fuels throughout the wood manufacturing industry, as well as the fact that the use of resinated wood as fuel is essential to that industry (i.e., plants have been designed to use these materials as fuels and would be unable to operate if resinated wood was not available as a fuel source). Regarding the comments that the EPA acknowledges that burning resinated wood increases emissions of formaldehyde, the agency needs to correct this characterization. First, in the 2011 NHSM final rule, we stated that the criterion or test in determining the contaminant legitimacy criterion is based on the level of contaminants in the secondary material itself and not by comparing the differences in emissions.81 However, responding to comments we received regarding emission levels associated with burning resinated wood as a fuel, the agency determined that the amount of formaldehyde that is emitted from burning resinated wood residuals is in fact likely to decrease, given that Public Law 111–199 will reduce formaldehyde levels in these materials.82 Regarding the commenter’s statement that companies that burn resinated wood that they have received from offsite do not pay for it, the EPA disagrees with the argument put forth by the commenter as the facts in this instance do not support such a premise. As noted in the March 2011 final rule, inter-company transfers of resinated wood residuals are typically managed through buy-sell contracts and 6 percent of resinated wood residuals are sold into the fuel market and are used as either ‘‘furnish’’ (i.e., raw materials) or fuel at the receiving facilities.83 In addition, the EPA received additional comments on the proposed rule stating, ‘‘* * *there exists within the wood products industry a developed market for purchase and sale of resinated wood between independent companies.’’ Moreover, while contractual arrangements can be used as evidence that the material is managed as a valuable commodity and that discard is 81 See, e.g., 76 FR 15502. not occurring when a material is transferred beyond the control of the generator, the price of an NHSM is not, by itself, dispositive of whether the material is or is not a waste. The main indication that resinated wood residuals are not solid waste is the fact that they are used as fuels in a way that represents an integral component to the wood products industry. As the EPA noted in the March 2011 final rule, ‘‘resinated wood residuals transferred off-site are utilized in the same manner as self-generated resinated wood residuals (i.e., contained in the same bins as furnish materials used in the product, transferred via conveyors or ducts), which the plants are specifically designed to burn as a fuel, [and therefore] we agree that this does not constitute discard.’’84 The comment that the agency has simply declared that resinated wood is a non-waste ‘‘regardless of who burns it’’ is a mischaracterization of this categorical non-waste determination. Based on all information provided to the agency, we have determined the use of resinated wood as a fuel is an integral part of the industry’s production processes and that these materials are managed as valuable commodities (i.e., fuels), have meaningful heating value and are used in combustion units that recover energy regardless of whether these materials remain within the control of the generator or are transferred offsite to another facility. On the other hand, we have no information that facilities are burning these materials merely to get rid of them (i.e., discard). The EPA finds irrelevant the commenter’s statement that the EPA is looking to a source’s motivation for using a material as a fuel conflicts with and defeats the CAA. The issue, rather, is whether motivation is relevant to a waste determination under RCRA. The D.C. Circuit confirmed the relevance of motivation in determining whether a recycled material is a waste. See, API v. EPA, 216 F.3d at 58 (court criticizes the EPA for not saying why it has concluded whether recycling motivation predominates over a disposal motivation). In this case, it is clear that the motivation for burning the resinated wood is to utilize its inherent value as a fuel and not for disposal. Commenters have provided the agency with information that facilities generating and managing resinated wood residuals consider these materials to be an integral part of their production process—both in the value these materials provide as being a critical 82 Id. 83 See 76 FR 15500. VerDate Mar<15>2010 18:01 Feb 06, 2013 84 Id. Jkt 229001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 9157 source of energy as well as being recycled back into the manufacturing process to create more wood products. Thus, we are not convinced that a facility that considers the use of resinated wood as a fuel to be an integral part of its production processes, as has been established in the record, is motivated to discard these materials by burning to get rid of them. Comment: A few commenters stated that the EPA is not consistent in how discarded materials are designated as solid waste. In particular, the commenter stated that the EPA was proposing to list as a categorical nonwaste fuel in 40 CFR part 241.4 resinated wood regardless of whether it is previously discarded, while the agency would require processing for scrap tires that have been discarded in landfills. Response: The agency disagrees that its treatment of resinated wood is inconsistent with its treatment of scrap tires. Nowhere does the agency state that resinated wood would be considered a non-waste fuel ‘‘regardless of whether it is previously discarded.’’ The EPA, based on all information available, has determined that resinated wood is not being discarded when used as fuel, given the fact that resinated wood residuals that are used as fuels represent an integral component of the wood manufacturing process. If a shipment of resinated wood residuals was disposed of in a landfill, it would be a waste. In addition, if a shipment of resinated wood residuals were disposed of and later recovered to be used as a fuel, as is the case with scrap tires that are extracted from landfills, this would be a different scenario and would not be included within the categorical listing in 241.4(a)(2). As the record clearly shows, resinated wood is routinely handled and managed as a valuable fuel product within the wood products manufacturing industry. As noted in the rulemaking record (see docket EPA–HQ–RCRA–2008–0329), numerous scrap tire piles have been created in the past and it is a common practice to recover abandoned tires from tire piles and use them for fuel. This is not the case for resinated wood. Comment: While supportive of the agency’s proposed listing of resinated wood as a non-waste fuel in 40 CFR part 241.4, two commenters suggested that the agency revise the definition of ‘‘resinated wood’’ as codified in 241.2. Currently, ‘‘resinated wood’’ is defined as, ‘‘wood products (containing resin adhesives) derived from primary and secondary wood products manufacturing and comprised of such items as board trim, sander dust, and E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9158 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations panel trim.’’ However, these commenters request the EPA to revise this definition in order to clarify that the ‘‘spectrum of resinated materials currently used as fuels throughout the wood product manufacturing process are included in the definition.’’ Thus, commenters urge the EPA to revise the definition of resinated wood as follows: ‘‘Resinated wood means wood products (containing binders and adhesives) produced by primary and secondary wood products manufacturing. Resinated wood includes residues from the manufacture and use of resinated wood, including materials such as board trim, sander dust, panel trim, and offspecification resinated wood products.’’ The suggested revised definition proposes two changes. First, the suggested definition replaces the phrase ‘‘containing resin adhesives’’ with the phrase, ‘‘containing binders and adhesives.’’ The second suggested revision to the definition is the specific inclusion of ‘‘off-specification resinated wood products.’’ Commenters have indicated that these materials include materials that do not meet manufacturing specifications or are otherwise physically marred or damaged and thus, are not sold in the marketplace. This class of materials would not be expected to be chemically different than the resinated wood products that meet the manufacturing ‘‘on-spec’’ requirements. For example, off-specification resinated wood products would not be expected to have higher amount of resins (and therefore contaminants) than their onspecification counterparts. Commenters have indicated that off-specification resinated wood products are identical to their on-specification counterparts chemically and only differ in that they are do not meet a manufacturing quality or standard. Response: The agency recognizes that in order for a categorical non-waste determination to be meaningful and effective, it must be clear about the universe of materials that such a categorical non-waste determination encompasses. Thus, we agree with commenters who suggested specific revisions to the definition of ‘‘resinated wood’’ contained in part 241.2. Specifically, the EPA agrees that these revisions create a definition that more accurately captures the scope of resinated wood and is more representative of the resinated materials currently used as fuels throughout the wood product manufacturing process. First, by including the terms ‘‘binders’’ and ‘‘adhesives,’’ the universe of materials that we consider to be within this definition should be more clear, as VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 these terms are widely used and accepted within the wood products manufacturing industry. With respect to the inclusion of offspecification resinated wood products, the EPA finds it appropriate to include this class within the definition of resinated wood. We note, however, that to the extent that a facility has reason to expect that the off-specification wood products are off-spec for chemical reasons, such that the levels of contaminants are expected to be greater than their on-spec counterparts, the EPA would not consider such materials to be within the scope of this definition. The agency will make this point more clear by specifying in the definition that the term ‘‘off-specification resinated wood products’’ are off-spec due to the fact that they do not meet a manufacturing quality or standard. Thus, in today’s final rule, we are codifying the definition of resinated wood as follows: ‘‘Resinated wood means wood products (containing binders and adhesives) produced by primary and secondary wood products manufacturing. Resinated wood includes residues from the manufacture and use of resinated wood, including materials such as board trim, sander dust, panel trim and offspecification resinated wood products that do not meet a manufacturing quality or standard’’ (emphasis added). Comment: One commenter noted that there are additional secondary materials produced by the wood manufacturing industry that are similar to resinated wood and, thus, should also be considered a non-waste fuel. The production of flooring and furniture creates final finishing trim, sander dust and process breakage that are both solid and resinated wood materials. In some cases, these materials are coated with finish materials used to color and protect the finished product. The commenter (a utility) indicated that their facilities receive these materials from furniture and flooring manufacturers and utilize them to offset the fuel load from fossil fuels due to their high heat capacity. Thus, the commenter requests that the EPA expand its definition of resinated wood materials to include these additional wood manufacturing secondary materials as non-waste fuels or otherwise describe the circumstances under which these additional materials would be considered a non-waste fuel. Response: It is possible that these materials (or some of these materials) could be within the definition of ‘‘resinated wood,’’ as codified in 40 CFR part 241.2; however, commenters have not provided the agency with information regarding the factors PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 involved in determining whether these additional types of coated materials are legitimately used as product fuels. That is, commenters have not provided information regarding whether these ‘‘finishing materials’’ could have contaminant concerns and whether they are routinely used as fuels. Subsequent to this rulemaking, the agency would welcome information regarding these materials in order to make an informed decision regarding whether these materials fit within the definition of ‘‘resinated wood.’’ Alternatively, the commenter may petition the agency to receive a non-waste determination per the petition process established in 40 CFR 241.3(c) if the commenter believes that this material may not be within the definition of ‘‘resinated wood.’’ 4. Rulemaking Petition Process for Other Categorical Non-Waste Determinations (40 CFR 241.4(b)) The EPA recognizes that there may be other NHSMs that can also be considered non-wastes when used as fuels in combustion units when balancing the legitimacy criteria and other relevant factors. Thus, under today’s rule, we are finalizing the process outlined in the proposed rule whereby persons can submit a rulemaking petition to the Administrator where they can identify and request that additional NHSMs be listed in section 241.4. The petition process is similar to 40 CFR 260.20, where any person may petition the Administrator to modify or revoke any provisions of the hazardous waste rules and where procedures governing the EPA’s action on those petitions are established. The 40 CFR 260.20 standards reflect normal, informal rulemaking procedures under the APA and thus, serve as an appropriate model for the NHSM rulemaking petitions under this section. In the context of a rulemaking petition under section 241.4(b), any person can petition the Administrator for a regulatory amendment to identify and request that additional NHSMs be included on the list of materials in section 241.4(a) that are not solid wastes when used as a fuel in a combustion unit. To be successful, the petitioner needs to demonstrate to the satisfaction of the Administrator that the proposed regulatory amendment involves a NHSM that has not been previously discarded (i.e., was not initially abandoned or thrown away), or if discarded, has been sufficiently processed into a legitimate fuel. The petitioner must also demonstrate that the material is used as a non-waste fuel in a combustion unit because it either E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations meets the legitimacy criteria, or, after balancing the legitimacy criteria with other relevant factors, such NHSM(s) is not a solid waste when used as a fuel in a combustion unit. If the applicant believes that the NHSM is a legitimate product and not discarded despite not meeting the legitimacy criteria, additional information must be submitted to explain or describe why such NHSM should be considered a non-waste fuel. Possible factors to address include, but are not limited to: • The extent that use of the NHSM has been integrally tied to the industrial production process. Information can include combustor design specifications, the extent that use of the material is integrated across the industry and the extent that use of the NHSM is essential to the industrial process, • The extent that the NHSM is functionally the same as the comparable traditional fuel, and • Other relevant factors. The application is required to include: (1) The petitioner’s name and address; (2) a statement of the petitioner’s interest in the proposed action; (3) a description of the proposed action, including the specific NHSM, the industry (i.e., NAICS code) and functional use (i.e., industrial functional code listed in 40 CFR 710.52(c)(4)(i)(C)); and (4) a statement of the need and justification for the proposed action, including any supporting tests, studies or other information. Where such NHSM(s) do not meet the legitimacy criteria, the applicant must explain why such NHSM(s) should be considered a non-waste fuel, balancing the legitimacy criteria with other relevant factors. Under this petition process, the Administrator makes a tentative decision to grant or deny a petition and then publish notice of such tentative decision, either in the form of an ANPRM, a proposed rule or a tentative determination to deny the petition, in the Federal Register for written public comment. The Administrator could, at its discretion, hold an informal public hearing to consider oral comments on the tentative decision. After evaluating all public comments, the Administrator makes a final decision by publishing in the Federal Register a regulatory amendment or a denial of the petition. Comment: One commenter does not support use of the legitimacy criteria, as provided in the proposed section 241.4(b)(3) to make a determination. A material which has not been discarded is, by definition, not a solid waste. However, if the EPA believes that other factors still should be considered, then VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 the only other factor which should be considered is whether the material is being used legitimately as a fuel. The remaining legitimacy criteria are (and should be) irrelevant. Response: As discussed in the 2011 NHSM final rule, ‘‘legitimacy’’ is shorthand for referring to NHSM that are not abandoned or thrown away, are saved and are reused by being burned for their value as a fuel.85 The legitimacy criteria are the factors needed to be examined to make this determination. For example, it is relevant how the NHSM is managed and its heating value since burning materials that have minimal or limited heating value shows the material is being burned for discard and not energy recovery. In addition, the extent to which contaminants are present in NHSMs may also indicate that the real reason for burning the secondary material is simply to destroy or discard them—referred to as ‘‘sham’’ recycling. Thus, the agency is not simply ‘‘punting’’ to its legitimacy criteria but believes they provide a valid basis for showing that a NHSM is more commodity-like than waste-like. Comment: The current petition process is limited to NHSMs when used as fuels. Absent from this petition process are NHSMs used as ingredients and previously discarded materials that meet the fuel legitimacy criteria. We do not understand this distinction and urge the EPA to expand both the current and proposed petition processes to allow for non-waste determinations for a wider range of NHSMs. Response: In general, the 40 CFR part 241 regulations establishes a selfimplementing approach for NHSM that can consider site-specific information, if necessary (i.e., facilities will make a self-determination of whether the nonhazardous secondary fuel or ingredient in question meets the regulatory criteria). We note it is the EPA’s intention to indicate in these rules, as clearly as possible, which nonhazardous materials used as fuels or ingredients in combustion units are or are not considered solid waste based on the criteria laid out in regulatory text. The agency expects this selfimplementing approach will govern the majority of situations, including NHSMs used as ingredients and NHSMs processed from previously discarded materials. We would also note that the regulated community prior to proposing the December 2011 proposed rule and commenters to that proposed rule did not provide any instances where 85 See PO 00000 76 FR 15471. Frm 00049 Fmt 4701 Sfmt 4700 9159 ingredients are combusted or are processed from previously discarded material that would be a candidate for listing categorically. Therefore, we do not believe it necessary to modify the proposed rule to address this situation. However, to the extent that there are instances where such materials do exist, persons can always petition the EPA to modify the rules, including allowing ingredients that are combusted to be categorically listed to account for such materials. Comment: In the NHSM Proposal, the EPA recognizes that a material can have levels of contaminants higher than traditional fuels, but still be combusted for a legitimate, energy-producing purpose (see 76 FR 80483 discussing resinated wood). The EPA also has proposed that this is true for hazardous secondary materials as well (see 76 FR 44094, 44122; July 22, 2011). Notwithstanding this admission, the EPA is not proposing to amend its legitimacy criterion for contaminants to make it a consideration, rather than a mandatory criterion. Thus, the EPA’s NHSM Proposal is internally inconsistent. Under 40 CFR 241.3(d)(iii), any material that has contaminants in concentrations higher than those found in traditional fuels is automatically considered a waste, no matter how integral the use of the material is to the manufacturing process or how legitimate the combustion is to the purpose of energy recovery. In contrast, under proposed 40 CFR 241.4, EPA recognizes that materials can have high levels of contaminants and still be nonwaste material being legitimately combusted for energy recovery. To justify this inconsistency, the EPA argues that it needs to make a case-bycase determination that a material with higher levels of contaminants is a nonwaste to ‘‘prevent sham recycling’’ (see 76 FR 80482). Response: The EPA disagrees with the comment that the mandatory nature of the self-implementing § 241.3 standards (including the contaminant legitimacy criterion) for individual facilities is inconsistent with the non-waste determinations outlined in § 241.4. In particular, the legitimacy criteria (including the contaminant legitimacy criterion) must be met under the selfimplementing standards for individual facilities outlined in § 241.3, but the same criteria may be balanced by the EPA with other relevant factors under the categorical non-waste determinations outlined in § 241.4. These differences are necessary and appropriate. Where a particular NHSM may not meet all the legitimacy criteria outlined in § 241.3(d)(1), but the E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9160 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations material is being used as a legitimate fuel, the agency has decided it is necessary to require a formal determination (i.e., not a selfimplementing decision) to prevent materials from being burned for discard under the guise of recycling. Furthermore, the agency has decided that such a determination should be subject to public notice and comment. In cases where the difference between recycling and waste treatment is difficult to distinguish, as is the case when elevated levels of contaminants are present, the potential for abuse is likely, and thus, regulatory oversight is appropriate when making a waste/nonwaste determination. This approach is also consistent with what the EPA proposed for the hazardous secondary material rule cited by the comment— that is, the balancing test would be used by the EPA in a petition process, not as a self-implementing determination. Comment: One commenter requested that the EPA should specifically recognize in the categorical petition that the existence of a supply contract between a generator of NSHMs and a combustor, with specifications that the NHSM must meet, should be considered dispositive evidence that the NHSM is not a waste and is combusted for energy recovery, not disposal. Response: We disagree with the commenter that the mere existence of a contract between the generator and combustor is dispositive evidence of the material being a non-waste. However, existence of a contract is a factor to be considered in a categorical non-waste determination. For example, under 40 CFR 241.4(a)(1), scrap tires managed under established tire collection programs are a categorical non-waste and the definition of ‘‘established tire collection program’’ (40 CFR 241.2) explicitly recognizes contracts as evidence that the material has not been discarded. Specifically, ‘‘Established tire collection program’’ means ‘‘a comprehensive collection system or contractual arrangement [emphasis added] that ensures scrap tires are not discarded and are handled as a valuable commodity through arrival at the combustion facility* * *’’ Comment: The timeframe for which the EPA must grant or deny the request should be included as well as defining the length of time of 30 days that these notices will be open to public comment. What is the legal implication of an ‘‘informal public hearing?’’ How does this differ from a public information meeting? If it is ‘‘informal,’’ what is the purpose? What administrative procedures apply to comments made during the ‘‘informal public hearing?’’ VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 Response: The agency is not imposing a deadline on its decision to grant or deny a petition, or a specific time period for public comment, due to the potentially wide range of issues involved in considering a categorical non-waste petition and because of the many factors beyond its control. Informal public hearings, similar to formal public hearings, provide an opportunity for the public to provide comments and oral testimony on proposed agency actions . All testimony received becomes part of the public record. Public meetings, on the other hand, are less formal; anyone can attend, there are no formal time limits on statement, and the agency and/or the facility usually answer questions. The purpose of the meeting is to share information and discuss issues, not to make decisions. Comment: The final rule should make clear that the denial of a petition would not bar the filer of the denied petition from filing a subsequent petition for the same location and same materials. Response: Where the information submitted to make a categorical nonwaste determination has fundamentally changed, the EPA agrees that a petition to categorically list a NHSM can be resubmitted for review. 5. Materials for Which Additional Information Was Requested a. Pulp and Paper Sludge In the March 2011 NHSM final rule, the EPA concluded that pulp and paper sludges meet the legitimacy criteria and, thus, can be burned as a non-waste fuel provided such combustion units are within the control of the generator in accordance with section 241.3(b)(1).86 The December 2011 proposed rule discussed the information we currently have on pulp and paper sludges, and the additional information that the agency would need in order to categorically list these materials in 40 CFR 241.4(a) as a non-waste fuel.87 If such information were provided to the EPA, the agency would then consider the legitimacy criteria and other factors relevant to a determination that these sludges are not solid wastes when combusted. This categorical listing would put pulp and paper sludges in the same general grouping as resinated wood 86 Pulp and paper sludges almost entirely remain on-site and within the control of the generator when burned as fuels. To the extent that pulp and paper sludges do not remain within the control of the generator and are used as fuels, the petition process established in 40 CFR 241.3(c) could apply to these materials, as appropriate. 87 Additional information needed to categorically list pulp and paper sludges is discussed at 76 FR 80485. PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 residuals. For resinated wood residuals, the EPA considered that use of that material as a fuel has been integrally tied to the industrial production process and is consistent with that of a fuel product. The proposal discussed similar information that was needed by the agency to support adding pulp and paper sludges to 40 CFR 241.4(a) as a categorical non-waste. Based on the comments received and information submitted, the EPA is listing as a categorical non-waste fuel under section 241.4 those dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of those residuals. Such residual must be dewatered and managed in a manner to preserve the meaningful heating value of those materials. This determination for pulp and paper sludge as a categorical non-waste represents the agency’s finding that, after balancing the regulatory 88 legitimacy criteria with other relevant factors, the burning of this material as described in the categorical listing is a commodity fuel for legitimate energy recovery and not discard. That is, the agency has concluded that, for pulp and paper mills that burn a significant portion, pulp and paper sludges are integral to the mills’ operations and provide a critical source of energy. Such mills are not burning these dewatered pulp and paper sludges to discard them but are burning them as a legitimate commodity fuel. These facilities take the steps necessary to dewater the pulp and paper sludges and to manage the dewatered sludge to maintain its meaningful heating value and not to dispose of the sludge. In addition, the agency finds for facilities burning a significant portion of the dewatered sludge that: (1) The sludges are managed in a manner that preserves meaningful heating value and, therefore, meets the managed as a valuable commodity (241.3(d)(1)(i)). (2) Dewatered sludge (i.e., dewatered through appropriate water removal practices, including dewatering presses, rotary driers, etc.) meets the meaningful heating value and used in combustion 88 As the EPA has previously stated (76 FR 15460), the Agency has established regulatory legitimacy criteria which may be used by companies on a case-by-case basis to show that they are not discarding material when used in a combustor. However, for the categorical determination, the Agency has determined that it is appropriate for the Agency, itself, to make the discard determination for material that does not meet the more strict regulatory criteria. Thus, the EPA has developed the categorical determination. E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 units that recovery energy criterion (241.3(d)(1)(ii)). (3) The sludge meets the comparable contaminant criterion (241.3(d)(1)(iii)). The fact that these sludges meet the contaminant legitimacy criterion, in the EPA’s view, show that these sludges when burned on-site are not being discarded. While the agency is not defining a specific percentage of dewatered pulp and paper sludges that would need to be burned to qualify for the categorical listing in section 241.4, the agency would consider that the 42 mills that responded to an AFPA survey 89 and that use dewatered pulp and paper sludge as fuels at a significant rate (between 70–100 percent of these materials that are generated and burned) meet the listing description. We also find that other mills that burn a significant portion of their dewatered pulp and paper sludges on-site as fuel would qualify for the listing description.90 For the pulp and paper mills that burn a relatively small percentage of their dewatered pulp and paper sludges on-site as a fuel (e.g., the five mills that responded to the AFPA survey that burn less than 20 percent), the agency has determined that those sludges are not viewed the same by the mill operator in that they do not need to rely on them for their energy value and are not included in the non-waste categorical listing in section 241.4. However, there is likely little difference as to how pulp and paper sludge may be defined under NHSM rules, whether a categorical or a facilityspecific non-waste determination. That is, such dewatered pulp and paper sludges may still be considered nonwaste fuels when burned as a fuel for energy recovery at mills that burn a relatively small percentage of these materials, although the rules require those facilities to document on a facility-specific basis that such sludges are non-waste fuels. As discussed in the final NHSM rule (76 FR 15488), dewatered pulp and paper sludges that are burned within the control of the 89 See April 2, 2012, letter from Timothy G. Hunt to James Berlow. A copy of this letter has been placed in the docket for today’s rulemaking. 90 While the Agency is not including a specific requirement for pulp and paper mills to document the amount of dewatered wastewater treatment residuals they burn on-site as a fuel, we would recommend that such pulp and paper mills include such documentation in case there are any questions as to whether the pulp and paper mills dewatered wastewater treatment residuals qualifies for the categorical listing in 241.4. As an alternative, the pulp and paper mill can request the Agency to confirm (via letter) that the facility generates and burns on-site a significant portion of pulp and paper sludges such that the facilities pulp and paper sludges are included within the categorical listing. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 9161 generator and meet the legitimacy criteria, likely are non-waste fuels and thus can be burned in units subject to CAA section 112 requirements. The agency has restricted the categorical listing to those dewatered pulp and paper sludges that are burned on-site because the agency has minimal information on how these NHSMs are managed when shipped offsite.91 Outlined below are commenters’ responses to the agency information requests regarding pulp and paper sludges and a categorical non-waste determination. Comment: The EPA requested information on how pulp and paper mill sludge is used as a legitimate fuel and not discarded at pulp and paper mills and how the material is integrated into the industrial production process. In responding to the agency’s request, commenters first provided a summary of energy needs by the pulp and paper industry. The commenters indicated that the industry is somewhat unique in its energy profile and in how individual mills select appropriate fuels to support their energy needs. Most pulp and paper mill boilers are specifically designed to handle a variety of fuels; few boilers are designed to burn just traditional fuel. Even mills with boilers specifically permitted as pulp and paper sludge boilers also burn other fuels. Over the years, the industry has recognized the benefits of burning secondary materials, particularly those generated on-site. These secondary materials are derived from and have characteristics similar to traditional fuel, particularly the biomass used to produce pulp and paper products. Mills do not usually burn just one type of fuel at any one time. Some mills rely heavily on coal, others on natural gas or biomass. According to the commenter, the choice of fuel depends on availability, cost and need. Hogged fuel or coal may be the underlying fuel but it is supplemented by other traditional and non-traditional fuels. This is done in order to meet the energy needs of the mill but also to address best management practices for the boiler and meet air quality requirements. If the hogged fuel is wet, coal or resinated wood may be added to boost heat value. If the boiler is burning too hot, the addition of pulp and paper sludge enables the mill to regulate temperature. Pulp and paper sludge also may be burned because it has the best fuel value for the price. All of these decisions are based on the boiler conditions, fuel availability, energy needs, air quality requirements, as well as costs, and all are considered when the energy manager determines the right mix of fuel in any given day. As a result, the quantities of different types of fuels burned over the course of a year differ and the mill may not burn 100 percent of the available fuel generated during that year. Not all pulp and paper sludges are burned at a given mill over the course of a year nor are all recycled process residuals (old corrugated cardboard rejects) or all hogged fuel. The commenter emphasized that if only a percentage of a secondary material generated by the industry is used as a fuel, that it does not negate its value as a fuel. Rather, it reflects the realities of running a boiler for which the economic and operating conditions are interconnected and dynamic. For example in one mill, the commenter indicated that combination boilers are designed to burn a wide variety of fuels efficiently and cleanly. Two mills’ boilers currently burn tirederived fuel,92 while one burns waste paper generated at the mill. They all are capable of burning one or more fossil fuels: oil (including used oil), coal and gas. The four combination boilers burn large amounts of biomass, either generated on-site or purchased commercially. A portion of three of the mills’ biomass consists of sludge generated on-site from their wastewater treatment processes. One state commenter also indicated that most mills operate boilers that are specifically designed to handle a variety of fuels—few boilers are designed to burn just traditional fuel and mills do not usually burn just one type of fuel at any one time. Bark and biomass fuel may be the primary fuel but it is supplemented by other traditional or alternative fuels. Secondary materials have been an important alternative fuel used safely by the mills in the commenter’s state for many years. Most of that state’s mills’ have multi-fuel boilers. Their fuel handling equipment, mill wastewater treatment systems and other ancillary equipment were designed to combust alternative fuels, including pulp and paper sludge. Use of these fuels reduces reliance on purchased biomass and/or fossil fuels and provides a vehicle for beneficial reuse of the materials. In light of the greater stringency of the CISWI 91 We note that in the situation where pulp and paper sludges are transferred beyond the control of the generator, a facility can petition the Agency to receive a non-waste determination, as appropriate. 92 Tire-derived fuel used in the paper industry must be dewired since the wires often clog the feed system. Thus, the industry does not utilize whole tires. PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9162 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations regulations, the state indicated that the mills are likely to landfill these materials instead of recovering their fuel value if these materials are considered solid waste under the CISWI standards. Another industry commenter stated that four of their five U.S. pulp mills produce wastewater treatment residuals that are burned in biomass-fired combination fuel boilers. At one mill, the residual solids are harvested and sold under a purchase agreement to an Electric Utility Generating plant burning various sources of biomass because that mill does not have a biomass boiler designed to burn the residuals. The residuals are primary clarifier solids (mostly wood fibers too short for product use) which are harvested by dewatering through a screw press. The residuals are stockpiled in a specific managed area before being trucked to the power company. At that site, the materials are processed and conveyed with other forms of biomass for fuel in their biomass boiler. Use of the wastewater treatment residuals from the mill as a fuel at the purchasing site is permitted in their air permit. One commenter indicates that the energy manager at a mill will determine the approximate amount of different types of fuels needed to obtain the most energy under the best operating conditions. As pulp and paper sludge is generated, it is directed toward the hogged fuel pile or towards other nonfuel uses. This decision is based on whether the mill’s boiler is designed and permitted to burn pulp and paper sludge and the amount is determined by the energy demands on that particular day. Another commenter believes that the fact that not all pulp and paper sludge is combusted at pulp and paper mills is evidence that the wood products industry only combusts pulp and paper sludge for legitimate energy recovery and not for disposal. According to the commenter, when the pulp and paper sludge is not needed as a fuel, it is used for non-fuel purposes or is discarded. When it is combusted, it is combusted for its energy value as a legitimate fuel. One mill described by a commenter has elected to divert its own-make bark to beneficial use as mulch, rather than burning it, because it is of poorer quality than commercially available biomass. That same mill has recently invested in a new belt press which provides high quality sludge as fuel for its combination boiler. Since the press was installed in 2011, the percentage of mill sludge burned has increased to 80 percent from under 50 percent. Currently, the mill is burning more of VerDate Mar<15>2010 22:00 Feb 06, 2013 Jkt 229001 the sludge from its process than the bark it also generates. At another plant, the commenter indicates that sludge is a by-product of the AST process. Their mills employ primary clarifiers to separate out solids from wastewater, of which 50 percent is wood fiber, the primary component.93 These solids are staged in holding or blend tanks prior to drying. In addition to primary clarifiers and aeration basins, AST systems employ secondary clarifiers (large, open, circular concrete tanks) in which biological solids exiting the aeration basin(s) are separated by gravity from wastewater. The process is carefully regulated to accomplish two objectives: making the water as clean and free of solids as possible while retaining activated sludge (active microbes) to re-inject into the biological treatment stage of the process. As part of this continuous loop, some activated sludge must be removed from the system to maintain the optimal population of active microbes for effective treatment. After excess secondary sludge is removed from the treatment loop at three of the mills, it is mixed with primary sludge in blend tanks prior to being dried on belt presses to a suitable moisture level for burning or other uses. Sludge is introduced into the mills’ solid fuel feed systems by means of conveyers where it becomes thoroughly mixed with other fuels in the conveyer systems before being introduced into the mills’ combination boilers. At one mill, primary sludge is dried separately by means of screw presses while secondary sludge is dried using a belt press. The two fuels are fed separately by conveyers onto the mill’s main solid fuel conveyer which transports the bark/ sludge mixture to a surge bin. The fuel is passed through a ‘‘waste heat dryer,’’ where it is briefly exposed to boiler flue gas before being fed into the combination boiler. The process at all four mills is continuous. Operators monitor and manage the sludge on a 24 hour basis. Sludge drying takes place entirely within buildings where the tanks, pipes, mixers, pumps, polymer feed systems, conveyers, presses, diversion gates and valves, monitoring devices and other equipment necessary to produce suitable sludge are housed. Sludge burned in the boilers is transported to the boilers on feed systems designed to ensure sludge, biomass and other solid fuels are homogeneous, thoroughly mixed and 93 Washington State Department of Ecology Industrial Footprint Project Waste Stream Reduction and Re-Use in the Pulp and Paper Sector, June 2008. PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 not exposed to the elements while being conveyed to the boilers. After its removal from wastewater treatment, no sludge touches the ground until it is burned, beneficially used (e.g., recycled feedstock to make newsprint) or landfilled. The commenters indicate that the moisture content of biomass is highly variable. Operators control fuel use based on the mill’s need for steam and electricity, fuel costs, fuel quality and fuel availability. All factors can change at a moment’s notice since the production process is constantly changing. Pulp and paper production swings or curtailments are common. Energy demand, fuel cost or fuel quality may make it necessary or desirable to reduce biomass and sludge combustion, even to switch entirely to fossil fuels. Environmental emissions occasionally can be a factor in fuel use, particularly during boiler startup or shutdown, or when the mill is experiencing rapid fluctuations in steam demand. Response: Based on the information submitted, and as discussed further in our responses below, the EPA is listing as a categorical non-waste fuel under section 241.4 dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials. This determination for pulp and paper sludge as a categorical non-waste fuel represents the agency’s finding, after balancing the legitimacy criteria with other relevant factors, that those mills that burn a significant portion of these pulp and paper sludges are burning them as a commodity fuel for energy recovery and not discard. The discussion above indicates that these mills have been designed to utilize pulp and paper sludges and use of that material as a fuel is an integral part of facility operations. Decisions regarding use and the right mix of fuel in any given day are based on the boiler conditions, fuel availability, energy needs, air quality requirements and cost. Comment: The EPA requested information on the amount of pulp and paper sludge burned as fuel. In 2010, members of AF&PA burned 772,034 dry tons of pulp and paper sludge, which represents approximately 25 percent of the pulp and paper sludge generated by members of AFPA during the year.94 However, approximately 90 percent of the AF&PA member facilities that responded to their survey (42 out of 94 Docket E:\FR\FM\07FER2.SGM EPA–HQ–OAR–2003–0119–2619. 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 47) that use dewatered pulp and paper sludge as fuels do so at a significant rate (between 70–100 percent of these materials that are generated are burned). In fact, one third of the AF&PA facilities that responded to their survey (16) that burn pulp and paper sludges, burn 100 percent of the materials generated.95 Response: As the commenter indicates, while 25 percent of pulp and paper sludges that are generated are used as fuels on an industry-wide basis, the vast majority of facilities that responded to the survey that use dewatered pulp and paper sludges as fuels do so at a significant rate. In light of the information on use of pulp and paper sludges, the agency finds that for those pulp and paper mills that burn a significant portion, that their use as a legitimate fuel is integral to the operation of the pulp and paper mill. The fact that these sludges meet the contaminant legitimacy criterion also, in the EPA’s view, shows that these sludges when burned on-site are not being discarded. As discussed above, while the agency is not defining a specific percentage of dewatered pulp and paper sludges that would need to be burned to qualify for the categorical listing in section 241.4, the agency would consider the 42 mills that responded to the AF&PA survey as meeting the listing description. Where a facility has burned or burns in the future a significant portion of the dewatered pulp and paper sludges that mstockstill on DSK4VPTVN1PROD with RULES2 95 See April 4, 2012, letter from Timothy G. Hunt to James Berlow. A copy of this letter has been placed in the docket for today’s rulemaking. VerDate Mar<15>2010 22:00 Feb 06, 2013 Jkt 229001 are generated, the facility is clearly dependent upon the use of these materials as fuels in much the same way that wood manufacturing facilities are dependent upon the stream of resinated wood residuals to meet their energy demands. Specifically, we note that the percentage of overall use of pulp and paper sludges as a fuel at facilities burning a significant portion of the material (70 percent in the AF&PA comment above) is similar to the use of resinated wood within the wood products industry—approximately 73 percent of resinated wood generated is either used as a fuel or is recycled back into the wood manufacturing process.96 As noted above, mills that burn a significant portion of their dewatered pulp and paper sludges on-site as fuel in the future would also qualify for the listing description.97 On the other hand, when a pulp and paper mill burns a relatively small percentage of their dewatered pulp and paper sludges on-site as a fuel (e.g., the five mills that responded to the AF&PA survey that burn less than 20 percent), the agency has determined that such 96 See Materials Characterization Paper In Support of the Final Rulemaking: Identification of Nonhazardous Secondary Materials That Are Solid Waste—Resinated Wood Products. Docket EPA– HQ–RCRA–2008–0329–1820. 97 While the Agency is not including a specific requirement for pulp and paper mills to document the amount of dewatered wastewater treatment residuals they burn on-site as a fuel, we would recommend that such pulp and paper mills include such documentation in case there are any questions as to whether the pulp and paper mills’ dewatered wastewater treatment residuals qualifies for the categorical listing in 241.4. PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 9163 sludges are not viewed the same by the mill operator in that they do not rely on the sludges for their energy value. As noted by one commenter, some mills may not produce pulp and paper sludge with sufficient fiber, such that the sludge is a viable fuel. Therefore, the agency finds that such pulp and paper sludge should not be included in the categorical listing in section 241.4.98 Those companies would need to make case-by-case determinations regarding legitimacy to support use as a fuel. Comment: The EPA requested more data on contaminant levels— particularly chlorine and metals. The NCASI undertook a thorough evaluation of data related to contaminant levels in pulp and paper sludge.99 NCASI looked at the most robust information about pulp and paper sludge which is found in the EPA’s Boiler MACT database. That database has pulp and paper sludge data comprised of nearly 5,280 records of individual data points corresponding to 46 AF&PA member pulp mills. Table 8 of this preamble includes data from the EPA traditional fuels table as well as the EPA Boiler MACT database for pulp and paper sludge. BILLING CODE 6560–50–P 98 The Agency acknowledges that some portion of these pulp and paper sludges are land applied. While the Agency considers such uses as beneficial, such recycling is not integral to pulp and paper operations, and therefore, the Agency would not consider this form of recycling in determining whether a facility is recycling a significant portion of their pulp and paper sludges. 99 Docket EPA–HQ–OAR–2003–0119–2619. E:\FR\FM\07FER2.SGM 07FER2 VerDate Mar<15>2010 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 18:01 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4725 E:\FR\FM\07FER2.SGM 07FER2 ER07FE13.008</GPH> mstockstill on DSK4VPTVN1PROD with RULES2 9164 The commenter indicates, as shown in the table, that contaminant levels in pulp and paper sludge are well within the ranges of metals found in traditional fuels. For all 11 HAP metals, except Mn, the 90 percent UPL value for sludges is less than the corresponding maximum for coal. For Mn, which is principally derived from biomass, the 90 percent UPL value for sludges is well below the maximum for biomass. This is also reflected in the TSM comparisons with VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 and without Mn between coal, biomass and pulp and paper mill sludges. Chlorine and total halogens (Cl + Fl) in sludge compare favorably with both biomass and coal. Nitrogen and sulfur in sludge also compare favorably with coal, although the commenter also points out that the nitrogen and sulfur contents are generally not indicative of HAP formation potential for any fuel, and in the case of pulp and paper mill sludges in particular, the sulfur content PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 9165 of these sludges is typically in the inorganic sulfate form that predominantly ends up in the combustion ashes. NCASI found a paucity of data on organics in pulp and paper sludge. Except for Ds/Fs, which had been evaluated extensively in the 1990s, organics are not expected to be found in pulp and paper sludges. Due to the changes in bleaching techniques which demonstrated significant reductions in E:\FR\FM\07FER2.SGM 07FER2 ER07FE13.009</GPH> mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 9166 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations the existence of Ds/Fs in sludge, testing for even dioxins has not been undertaken recently. NCASI notes that of the data that do exist, organics are rarely found and those that are identified are frequently below the detection limit. Overall, the commenter states that contaminant levels in pulp and paper wastewater treatment residuals compare well to those found in traditional fuels. Response: Based on the information provided, the agency finds that pulp and paper sludges, meet the comparable contaminant criterion (241.3(d)(1)(iii)). The data confirms the conclusions in the NHSM final rule regarding chlorine and metals are comparable to the levels found in coal, which is a traditional fuel that may be burned in these facilities. Comment: The EPA requested information on what steps the industry has taken to ensure the quality of pulp and paper mill sludge when used as a fuel at pulp and paper mills is consistent with that of a fuel product. Commenters state that pulp and paper mills that generate pulp and paper sludge do so as part of their compliance with the CWA requirements, as well as part of an effort to return as much wood fiber to use as possible, either as an input to the manufacturing process or as a fuel. The strategies that each mill uses to meet those requirements differ depending upon the type of product, the location of the mill and the specific standards established by the EPA and the respective states. However, mills clean wastewaters prior to discharge, thus creating primary and a variety of secondary pulp and paper sludges, all of which capture wood fibers. Furthermore, the question of whether the quality of the pulp and paper sludge is appropriate for a particular mill is based on the boiler design. As such, there are some boilers well suited to burn it; others cannot burn the material. At one commenter’s mill, for example, the company has invested over $7 million upgrading sludge drying and management equipment. The object of these large investments was not to remove all of the moisture in the sludge. Rather, it was to make sludge quality consistent with that of the wet biomass burned in its combination boilers. Either too much or too little moisture can have a deleterious effect on the boilers’ combustion. One mill recently installed a belt press to improve the reliability of its sludge management system and increase the average solids content of its sludge. Since then, the sludge has occasionally caused combustion problems in the boiler because it was too dry, necessitating additional quality VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 control to optimize the sludge’s moisture content. Another commenter stated they invested over $3 million to prevent unwanted materials from reaching the treatment process and being discharged in mill effluent or being incorporated into the pulp and paper sludge. Their mills make coated paper products, the coatings consisting largely of clay and other minerals. Improved equipment and operating procedures have significantly lowered sewer losses of these materials, improving the quality of wastewater and reducing the ash content of these pulp and paper sludges. To further pollution prevention, their mills set stringent specifications for raw materials, such as sulfuric acid and caustic soda, which minimizes the introduction of trace amounts of heavy metals into the process. From the standpoint of process control, the commenter stated that sludge management processes are continuous, enclosed and carefully controlled. In contrast, bark and wood chips may be exposed to the elements for extended periods before being burned. Depending on the season, hardwood bark can get ‘‘stringy’’ and become very difficult to process as fuel. Frozen bark or chips can jam or disable equipment. Purchased fuel can have excessive rocks or grit. It is difficult to control the quality of biomass burned in the commenter’s boilers. Sludge frequently exhibits less variability in quality than other types of biomass. Response: Based on the information provided, the agency finds that, for facilities burning a significant portion of the dewatered sludge, use of the material is integral to the facility’s operations, particularly in the value these materials provide as a critical source of energy. At such facilities, sludge management processes are carefully controlled and the industry has taken the necessary steps to ensure the quality of pulp and paper mill sludge when used as a fuel at pulp and paper mills. On the other hand, for those pulp and paper mills that do not burn a significant portion of their dewatered wastewater treatment sludges, the agency does not believe that the same steps have been taken to ensure the quality of the pulp and paper mill sludge that is used as a fuel and thus, is not an integral part of the pulp and paper mill operations. Comment: The EPA requested information on what are the standard practices used to ensure pulp and paper sludge has meaningful heating value. As noted in the October 2011 pulp and paper sludge paper the AF&PA submitted prior to the December 2011 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 proposal, the overwhelming majority of pulp and paper mills remove water from pulp and paper sludge prior to managing it in any way. Belt and screw presses are most commonly used in the industry. Some mills use steam heated filter presses. Some pulp and paper sludge is also further dried in steam heated rotary driers. As indicated previously, sludge drying takes place entirely within buildings where equipment necessary to produce suitable sludge is housed. Sludge burned in the boilers is transported to the boilers on feed systems designed to ensure sludge, biomass and other solid fuels are homogeneous, thoroughly mixed and not exposed to the elements while being conveyed to the boilers. In all instances, the goal is to raise the solids content—and thus, Btu value. Response: Based on these comments and other information in the record, the agency finds that facilities that burn a significant portion of these materials take the steps necessary to dewater the pulp and paper sludge and to manage such dewatered sludge to maintain its meaningful heating value and burn the sludge for energy recovery. Comment: The EPA requested information on how pulp and paper mill sludge is managed when shipped offsite. There are several mills within the industry that have agreements with other facilities, primarily electric utilities that purchase pulp and paper sludges for use as biomass-based fuel. For the most part, these arrangements occur when there is a utility close to the pulp and paper mill because the cost of shipping such sludges long distances may be prohibitive. Pulp and paper sludges may be sent offsite when it is being used by other entities to produce another product, (including fuel pellets 100), used for other purposes (land application, use as landfill cover), or for final disposal. Pulp and paper sludges are shipped by containers, truck or rail. Response: The agency recognizes that, as described above, some pulp and paper sludges are sent offsite for use as a fuel. However, the agency has restricted the categorical listing to those pulp and paper sludges that are burned on-site because the agency has minimal information on offsite use of these materials. In fact, the pulp and paper industry indicates that the great majority of these sludges, when burned as a fuel, are burned on-site. Also, in the few instances that the pulp and paper 100 When pulp and paper sludges are sufficiently processed, and such processed material meets the legitimacy criteria, the processed materials are nonwaste fuels whether burned within or outside the control of the generator. E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations industry discussed in their comments that these materials were shipped offsite, they seem to be sent to other industries. The fact that these sludges are sent to other industries would not necessarily disqualify those dewatered pulp and paper sludges from being considered for listing categorically. However, the agency does not have sufficient information to make any determination.101 Comment: For reasons stated previously in comments on the June 2010 proposed rule, one commenter argues that pulp and paper sludges are waste when burned regardless of whether it is burned by the company that generated it and regardless of whether it meets the EPA’s legitimacy criteria. Paper mill sludge is a waste because it is discarded within the meaning of RCRA. The EPA’s description of pulp and paper sludge shows that it remains a waste even under the agency’s own definition of discard. First, the EPA acknowledges that pulp and paper mills have no use for pulp and paper sludge; the fibers it contains are ‘‘too short to be suitable for papermaking and it contains microorganisms that feed on organic material in the wastewater stream.’’ 102 Second, the fact that paper mill sludge comes from ‘‘the wastewater stream,’’ 103 in itself confirms that it is a waste. Third, the EPA’s discussion of the contaminant levels in paper mill sludge shows substantial variation in chlorine levels. Where the EPA encounters such variability in the course of setting floors for CISWI units in the very same Federal Register notice, the agency uses a 99th percent UPL to assure that the level it chooses will not be exceeded. Yet, where the EPA encounters variability in the chlorine levels in pulp and paper sludge—variability that could lead to significantly higher emissions of chlorinated pollutants, such as HCl and dioxins—the agency simply dismisses it without further ado. The EPA’s disparate treatment of the variability of emissions for floor setting and of the chlorine levels in pulp and paper sludge for the purposes of considering a categorical declaration that such sludge is not a waste is unexplained and arbitrary. If the agency believes that such variability exists, it should be concerned about the possibility that some sludges may have far higher chlorine levels than 101 We note that in the situation where pulp and paper sludges are transferred beyond the control of the generator, a facility may also petition the Agency to receive a non-waste determination, as appropriate. 102 See 76 FR 80485. 103 Id. VerDate Mar<15>2010 20:23 Feb 06, 2013 Jkt 229001 it assumes—as, indeed, the record shows some sludge does—and should take steps to ensure that this is not the case before it even considers an exemption. Indeed, the agency’s failure to examine this possibility renders the existing rule, which allows generators to burn their own sludge, arbitrary and capricious. Fourth, the EPA admits that sludge contains extremely low heating values, so low in some instances as to flunk the agency’s legitimacy criteria. That sources typically dewater their sludges does not make these sludges any less a waste, even under the agency’s own definition of discard. The EPA does not say what the heating value of the sludges is after dewatering, nor does it make any difference what the ‘‘dry weight’’ heating value of sludges might be, as they are not at ‘‘dry weight’’ when burned. The reality is that paper mills find it cheaper to burn their sludges than to dispose of them safely and that because these sludges are largely ‘‘wastewater’’ and contain high levels of chlorine and other contaminants, burning them requires large quantities of other fuel and generates high levels of pollution. Response: The agency disagrees with the commenter that all pulp and paper sludges are waste fuels when combusted. To the extent comments were submitted in response to the March 2011 final rule, the agency need not respond. Below, the EPA responds to the new points raised in the comments. With respect to the particular arguments on the categorical listing, the agency disagrees that the sludge remains a waste even under the agency’s own definition of discard. The comment is incorrect when it states that the EPA has acknowledged pulp and paper mills have no use for pulp and paper sludge because the fibers it contains are ‘‘too short to be suitable for papermaking and it contains microorganisms that feed on organic material in the wastewater stream.’’ 104 In the proposed rule, we stated that fibers that end up being too short can be detrimental to paper quality. Although this would not be suitable for papermaking, these sludges are a valuable resource as energycontaining secondary materials as discussed in detail in the comments above. As much as 50 percent of the sludge is composed of wood fibers which are similar in content to other types of biomass fuel combusted. Further, the agency disagrees that pulp and paper mill sludges are wastes because they are contained in a 104 See PO 00000 76 FR 80485. Frm 00057 Fmt 4701 Sfmt 4700 9167 ‘‘wastewater’’ stream. The D.C. Circuit in, API v. EPA, 216 F.3d at 58, rejected the proposition that the mere presence in a wastewater stream makes a material a waste. In API, the D.C. Circuit criticized the EPA for not saying why it concluded that the disposal motivation, compliance with water quality standards, predominated over the recycling motivation, recovery of oil from primary wastewater treatment. Plainly, the mere presence of oily material in wastewater did not make the oil a waste. In this case, the EPA has found in its categorical listing that the motivation for burning the pulp and paper sludge is to use its inherent value as a fuel and not for disposal. Comments have provided the agency with information that facilities that burn a significant portion of these sludges consider them to be an integral part of their production process, particularly in the value these materials provide as a critical source of energy. We disagree that the disposal motivation predominates over the true value of these sludges as an important fuel, integral to the production processes. The EPA also disagrees that the treatment of the variability of emissions for floor setting and of the chlorine levels in pulp and paper sludge for the purposes of considering a categorical declaration that such sludge is not a waste, is unexplained and arbitrary. The agency notes that, rather than dismissing the variability of chlorine levels in pulp and paper sludges, it has considered all available data—including data on variability—and reached the conclusion that contaminant levels in pulp and paper sludges are comparable to or lower than those in the appropriate traditional fuel(s). The EPA acknowledges that, based on data submitted to the agency since promulgation of the March 2011 final rule and presented in the December 2011 proposed rule, chlorine levels in paper mill sludge show substantial variation. This is an important factor to consider when making a categorical non-waste determination and the agency has considered mean concentrations, the range of concentrations, and variability when analyzing pulp and paper sludges. As stated in the proposed rule and information in the rulemaking record, data for pulp and paper sludges show mean chlorine concentrations of 361 ppm, well below the mean of 992 ppm observed in coal. Data for pulp and paper sludges also show maximum chlorine concentrations of 4,800 ppm, well below the maximum of 9,080 ppm observed in coal and below the maximum of 5,400 ppm observed in E:\FR\FM\07FER2.SGM 07FER2 9168 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 untreated wood and biomass materials. The variability of chlorine levels in pulp and paper sludge is demonstrated by a standard deviation of the mean of 661 ppm.105 106 This variation in chlorine levels, although high, does not discount the fact that both average and maximum chlorine concentrations in pulp and paper sludge are lower than those in coal which is defined as a traditional fuel. The comment also implied that the EPA should use the 99 percent UPL, as is used to set the CISWI floors, to ensure that these pulp and paper sludges do not contain excessive contaminant levels. The agency disagrees that any one statistical tool or comparison methodology will fit every situation given the variety of NHSMs, traditional fuels, contaminants and combustion units that exist. Nevertheless, the agency has calculated the 99 percent UPL for chlorine levels in pulp and paper sludge in response to the comment and come to the same conclusion. The 99 percent UPL for the same dataset of 93 samples analyzed in the proposed rule would be 6,970 ppm, a value below chlorine concentrations observed in coal.107 Finally, we disagree that pulp and paper sludge contains extremely low heating values that would fail the agency’s legitimacy criteria. In terms of meeting the legitimacy criteria for a meaningful heating value, the agency indicated in the NHSM final rule that pulp and paper sludges have a heating value of between 3,300–9,500 Btu/lb, on a dry basis—no specific information having been submitted on the ‘‘as fired’’ heating value of these materials. The final rule concluded that pulp and paper sludges meet the legitimacy criterion for being managed as a valuable commodity as they are dewatered to increase their energy value, collected on a continual or frequent basis (as produced), and further processed and consolidated, including the removal of biosolids. Further, as discussed in detail above, where a facility is burning a significant portion of the dewatered pulp and paper sludges that are generated as fuel rather than other purchased biomass or fossil fuels, pulp and paper sludges are integral to the facility’s operations and the facility is clearly dependent upon 105 See 76 FR 80485. Concentrations in Traditional Fuels: Tables for Comparison, November 29, 2011, can be found at https://www.epa.gov/epawaste/ nonhaz/define/index. 107 The 99 percent Chebyshev UPL for nonnormal datasets was calculated using EPA’s ProUCL 4.0 Software available at https://www.epa.gov/ nerlesd1/tsc/software.htm. 106 Contaminant VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 the heating value of these materials.108 Thus, we find, as discussed in the final rule, that pulp and paper sludges are not discarded and generally meet the meaningful heating value legitimacy criterion (46 FR 15488). b. Coal Refuse 109 In the 2011 NHSM final rule, the EPA included currently generated coal refuse within the definition of traditional fuel codified in 40 CFR 241.2. In discussing its determination that currently generated coal refuse is a traditional fuel, the agency said, ‘‘the fact that coal refuse has been used and managed as a fuel for thirty years when coupled with the fact that coal refuse is unique from other non-hazardous secondary materials in that it is a byproduct of fuel production processes and is itself a raw material that can be used as a fuel leads us to determine that coal refuse that is currently generated and used as a fuel should be considered a traditional ‘alternative fuel.’ ’’ 110 The 2011 NHSM final rule also determined that coal refuse that has been placed in legacy piles would not meet the definition of traditional fuels, as they clearly have been discarded in the first instance.111 Since coal refuse recovered from legacy piles is subjected to the same operations that are used to process virgin coal, which serve to both increase energy values, as well as reduce contaminants, the EPA determined that such processes were sufficient to meet the definition of ‘‘processing,’’ as codified in 40 CFR 241.2, and such recovered coal refuse would not be considered a solid waste when used as a fuel in a combustion unit provided those materials satisfy the legitimacy criteria.112 The 2011 NHSM final rule also stated our belief that coal refuse recovered from legacy piles contains contaminants at levels that are comparable to or lower than coal refuse that is currently generated, as the recovered coal refuse is subject to the same processes as currently-generated coal refuse in order to meet the same fuel specifications. 108 The final rule notes that meaningful heating value is derived from an NHSM with energy content lower than 5000Btu/lb if the ERU can costeffectively recover meaningful energy from the NHSM used as fuel (76 FR 15541). 109 Coal refuse refers to any by-product of coal mining or coal cleaning operations, consisting primarily of non-combustible rock with attached coal. Due to advances in technology over the past century, the processing of coal has evolved, such that materials that are now generated in the coal mining process, which would have been considered coal mining rejects in the past and discarded in waste piles, are now handled and processed as coal. 110 See 76 FR 15507. 111 Id. 112 See 76 FR 15509. PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 Since promulgation of the 2011 NHSM final rule, the agency has further clarified that it believes that coal refuse recovered from legacy piles that is processed and managed in the same manner as currently generated coal refuse satisfies the legitimacy criteria.113 Having determined that coal refuse recovered from legacy piles that is processed and managed in the same manner as currently generated coal refuse satisfies the legitimacy criteria, the 2011 proposed rule solicited comment on whether to categorically list post-processed coal refuse from legacy piles as a non-waste fuel in 40 CFR 241.4(a). However, the EPA made it clear that it was not reopening any other issues regarding coal refuse. Other comments regarding coal refuse are responded to in the record for the final rule. In this part of the preamble, we are only responding to the issue of whether coal refuse processed from legacy piles should be considered a non-waste fuel on a categorical basis. Accordingly, the EPA is not responding in this preamble or the Response to Comment document on issues regarding whether coal in legacy piles are traditional fuels. Comment: One commenter states that not every material that is discarded is treated as solid waste under the rule. For example, the EPA includes numerous materials within its definition of ‘‘traditional fuels’’ and ‘‘clean cellulosic biomass’’ that are commonly understood as used, discarded, and abandoned, listing, for example, corn stover, peanut shells and certain types of demolition materials. The commenter argues that each of these materials is either discarded or has filled its original purpose and may be collected by a different party for a different purpose (i.e., use as a fuel). The commenter continues that although the agency has ample authority to exempt certain articles from classification as solid wastes, it did not consistently apply the term ‘‘discarded’’ in the context of legacy coal refuse. For example, the EPA recognized that onspecification used oil and clean C&D materials should be treated as traditional fuels when combusted for energy generation. Thus, the commenter urges the agency to revisit its application of the ‘‘discard’’ principle and treat all coal refuse, regardless of when they were generated and regardless of processing to be fuels and not wastes. Response: The EPA disagrees with the comment, which seems to misunderstand the purpose of this 113 See August 15, 2011, letter to Jeff A. McNelly, ARIPPA (cited in the proposed rule: 76 FR 80486). E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations rulemaking action. If the agency determines in this rulemaking that a material is a solid waste when combusted, the unit combusting that material would be subject to emissions standards issued under CAA section 129 even if burned as a fuel. A material is not discarded simply because it is no longer used for its original purpose. It may be used as a fuel product by another party, providing the conditions the EPA has explained in the rule apply. In such a case, the reused material is not a waste. Further, the agency is not exempting any materials from the definition of solid waste. The EPA is only describing the kinds of materials that are wastes when burned in combustion units, even if they are burned for energy recovery. The EPA consistently applies the concept of ‘‘discard.’’ Materials listed as examples of clean cellulosic biomass cited by the commenter have not been discarded in the first instance, as is clearly the case for coal refuse abandoned in legacy piles. While some materials have filled their original purpose, that fact, in and of itself, does not equate to discard. Clean cellulosic biomass is considered to be a type of ‘‘alternative fuel’’ within the definition of ‘‘traditional fuel.’’ Such alternative fuels are developed from virgin materials that can now be used as fuel products.114 This applies to the examples mentioned by the commenter, including corn stover, peanut shells and clean construction and demolition wood. Further, coal refuse mined today that would have previously been abandoned in piles are also alternative fuels that are now grouped in the traditional fuel category because of new technology. This is separate from coal in legacy piles that have been traditionally wastes. Further, there is a clear difference between the management of the listed examples of clean cellulosic biomass and coal refuse abandoned in legacy piles. For example, the commenter characterizes corn stover as ‘‘typically left in the field to decay’’ and thus discarded. The EPA assumes this statement is based on the historic use of leaving corn stover in the field as a cover to reduce erosion and for nutrient content.115 As noted by the agency previously, over the course of this rulemaking, an emerging market for 114 See definition of traditional fuels, as codified in 40 CFR 241.2. We note that the December 2011 proposal did not solicit comment on the definition of traditional fuels. 115 See Petrolia, Dr. Daniel R., ‘‘Economics of Crop Residues: Corn Stover.’’ June 2009. A copy of this document has been placed in the docket to today’s rulemaking. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 corn stover and other primary and secondary agricultural residues is for use as a heat and power source for the production of corn and cellulosic ethanol.’’ 116 When the determination is made to use corn stover for its fuel value, the materials are managed differently than merely ‘‘left in the field to decay.’’ If there were legacy piles of such materials, they too would have to be treated as wastes while in the legacy piles. We would also note that it is not unreasonable to expect that agricultural materials, such as corn stover, may be left on the field until there are sufficient amounts of those materials to be collected, baled and transported. This is clearly a different scenario from coal refuse left in place in piles with no purpose other than abandonment and clearly managed as a waste for decades. With respect to used oil, the agency has already explained in the final March 2011 rule the difference between onspecification and off-specification used oil as applied to the definition of solid waste. The on-specification used oil is considered an alternative fuel that has not been abandoned and, by regulation, may be burned with no more restrictions than refined product oil. Off-specification used oil is specifically described in the EPA’s regulations as a material that may only be burned in certain combustors because it exceeds contaminant levels established under part 279, rendering it off-specification and, accordingly, evaluated under part 241 to determine its waste/non-waste status.117 Comment: One commenter argues that off-specification tires are analogous to legacy coal refuse to the extent they are set aside and not used immediately by the factory. Since the agency proposes to include off-specification tires within the definition of ‘‘established tire collection program’’ and not consider these materials to be a solid waste when used a fuel, the agency should treat legacy coal refuse similarly. Response: We disagree with the commenter that coal refuse abandoned in legacy piles is analogous to the handling and management of offspecification used tires. Coal refuse that has been placed in legacy piles decades ago has clearly been abandoned, thrown away and thus, discarded and 116 See Materials Characterization Paper in Support of the Final Rulemaking: Identification of Nonhazardous Secondary Materials That are Solid Waste, Biomass—Agricultural Residues and Food Scraps.’’ February 3, 2011. A copy of this document can be found in the docket for today’s rulemaking. 117 Note that Section III.D.2.c of today’s preamble discusses circumstances under which offspecification used oil may use coal data when making contaminant comparisons. PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 9169 historically managed as a waste. On the other hand, the agency has information that tire manufacturers that have produced off-specification tires (including factory scrap) have contractual agreements in place to ensure these materials are collected, managed and transported to the combustor. In fact, it is the requirement that scrap tires (including offspecification tires) be managed pursuant to established tire collection programs that ensures these materials are managed as a valuable commodity in order to meet the categorical non-waste determination codified in 40 CFR part 241.4(a). Further, as we have noted elsewhere in today’s preamble, to the extent that these off-specification tires are discarded, such as in tire piles, they would be considered solid waste in that they have been discarded, and would not be included within the categorical listing of ‘‘scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires.’’ Comment: One commenter states that the EPA, consistent with the intent of RCRA, should be encouraging the use of legacy coal refuse, not hampering them. The commenter argues that characterizing coal refuse in legacy piles as a solid waste could subject legacy coal refuse piles to additional federal and state requirements and potentially result in the piles being classified as open dumps or solid waste management units. Further, combustors of legacy coal refuse and their suppliers would also be more likely to be subject to citizen suits under RCRA 40 CFR 7002. This commenter argues that the determination that unprocessed legacy piles are different—and should be regulated differently—than coal refuse generated from current mining operations is illogical because the characteristics of the materials are the same. Thus, although the EPA takes the position that subjecting legacy coal to the types of operations that are used to process virgin coal is sufficient to convert the legacy coal refuse from solid waste into a non-waste fuel, the initial designation as solid waste risks regulatory confusion regarding the status of the numerous piles of legacy coal refuse. Response: This comment is clearly beyond the scope of this rulemaking proceeding. In the first place, legacy coal piles are, indeed, wastes. How they may be treated when they are in the piles is clearly beyond the scope of this rule. This rule deals with how the E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9170 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations legacy coal is to be treated when it is taken from the piles and burned for fuel. Comment: While supporting the concept of a categorical listing for legacy coal refuse, a few commenters argued that the agency should not require that legacy coal refuse be ‘‘processed’’ in order to be considered a non-waste fuel. One commenter noted that the EPA does not require traditional fuels or resinated wood to undergo processing to be treated as a fuel, even though many of those materials would be understood to be discarded. Another commenter noted that the term ‘‘post-processing,’’ which was used in the proposal as a shorthand description of legacy coal refuse that has undergone processing, is too vague and should be eliminated so the use of extracted coal refuse undergoing further processing at the generating facility is not discouraged. If applied too literally, the commenter continued, any ‘‘postprocessing’’ provision being imposed on treating legacy coal piles as fuel would not benefit the CFB community and could hinder the usage of these piles as fuels. The commenter argues that the term ‘‘post-processing’’ could be interpreted as requiring processing at the coal refuse excavation site which would not be determinative of any relevant characterization of the coal refuse or its intended use as fuel. Response: In the 2011 NHSM final rule, the EPA discussed how a NHSM, once discarded, can be processed into a non-waste fuel.118 The proposed rule did not solicit comment on either the concept of processing a discarded NHSM into a non-waste fuel or the definition of ‘‘processing’’ itself, as codified in section 241.2. Therefore, the agency does not address the concept or definition of processing in this final rulemaking. Again, however, the comment suggests a need to clarify the nature of the rulemaking exercise that the EPA is currently engaged in. First, we disagree with the commenter’s characterization that many of the traditional fuels and resinated wood should be understood to be discarded. Traditional fuels, by definition, are not discarded.119 If clearly discarded (e.g., a barrel of fuel oil dumped), even a traditional fuel would have to be processed per the part 241 regulations in order to be a nonwaste fuel. However, it is precisely because of their fuel value that makes it unlikely that traditional fuels will be 118 See 76 FR 15474–15477. last sentence of ‘‘traditional fuels’’ definition, as codified in 241.2: ‘‘[Traditional] fuels are not secondary materials or solid wastes unless discarded’’ (emphasis added). 119 See VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 discarded. We also disagree that resinated wood is discarded prior to being or when used as a fuel in a combustion unit. For a discussion of why we believe resinated wood is a non-waste fuel, please see section III.E.3.b of this preamble.120 As noted above, coal refuse abandoned in legacy piles has clearly been discarded in the first instance because the coal preparation technology did not yet exist that could utilize these materials for their fuel value. Thus, legacy coal refuse would have to be processed into a non-waste fuel. However, the agency has previously recognized the uniqueness of coal refuse in that it is a byproduct of fuel production processes and is itself a raw material that can be used as a fuel.121 In the 2011 NHSM final rule, the agency determined that coal refuse that is recovered from legacy piles and used as fuel that is subjected to the types of operations that are used to process virgin coal or currently generated coal refuse would meet our definition of processing as codified in 40 CFR 241.2.122 As the processing that is required is no different than what currentlygenerated coal refuse is subject to, we do not believe the processing requirement would hinder the usage of coal refuse piles. The agency believes the only additional ‘‘processing’’ step is the actual extraction or recovery of the coal refuse from the legacy piles. To the extent that the term ‘‘post-processing’’ could be misconstrued as requiring an additional processing step at the extraction site or otherwise as compared to currently generated coal refuse, this was not the agency’s intent. Rather, we have included the concept of ‘‘processing’’ in the categorical nonwaste determination for legacy coal refuse, as legacy coal refuse was clearly discarded and, prior to processing, is a 120 See also discussion included in the 2011 NHSM final rule (76 FR 15499–15502). 121 See 76 FR 15507, which states, ‘‘Coal refuse is unique, however, from other non-hazardous secondary materials addressed in this rulemaking, as it is generated in the process of producing fuels (i.e., the mining of coal for use as fuel) and its subsequent use and value as a secondary material is also as a fuel. Since the primary product of a coal mining operation is itself a fuel, we consider coal refuse to be more akin to a raw material that is subsequently processed and utilized to produce a fuel. In other words, coal refuse is different from other non-hazardous secondary materials, such as used tires or resinated wood residuals, in that it is generated in the production of fuel and can be used itself as a fuel (and in fact has never been used for anything else).’’ 122 See 76 FR 15509. In addition, subsequent to the 2011 NHSM final rule, the EPA has reiterated this determination. See August 15, 2011, letter to Jeff A. McNelly, ARIPPA (cited in the proposed rule: 76 FR 80486). PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 solid waste. That said, we clarify again today that coal refuse recovered/ removed from legacy piles that is processed in the same manner as currently generated coal refuse would meet the definition of processing as codified in section 241.2. No additional processing is required given the uniqueness of coal refuse. For commenters suggestions regarding the explicit wording of the categorical listing for legacy coal refuse, see additional response to comments below. Comment: In support of the agency’s soliciting comment on whether to add legacy coal refuse to the list of categorical non-waste fuels proposed in 40 CFR part 241.4, one commenter states that once removed from the physical mining location, legacy coal refuse and currently-generated coal refuse are indistinguishable. Thus, coal refuse from legacy piles will be managed in the same manner as coal refuse, will have similar heating value as coal refuse and be used as a fuel in a combustion unit that recovers energy and can be expected to have similar contaminant levels as coal refuse because it is ostensibly the same material. Response: We agree that coal refuse recovered/removed from legacy piles and processed in the same manner as currently generated coal refuse would meet both the definition of processing and the legitimacy criteria. Thus, we have determined to list ‘‘coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse’’ to the list of categorical non-waste fuels codified in part 241.4(a) of today’s rulemaking. The rationale for adding this NHSM to the list of non-waste fuels follows the reasoning finalized in part 241.4(b) in today’s rulemaking. We agree with the reasoning of the comment and have, in fact, arrived at the very same reasoning in support of the categorical listing. Comment: One commenter argued that the EPA should treat legacy coal refuse as fuels, since they are chemically identical, if not superior fuels, to currently generated coal refuse that the agency considers to be a traditional fuel, per the definition codified in 40 CFR 241.2. Response: Again, the EPA must explain a misunderstanding expressed by the commenter. The comment seems to consider that material is either a ‘‘fuel’’ or a ‘‘waste’’ and misses the point that the distinction in this rulemaking is between a ‘‘product’’ and a ‘‘waste’’ fuel. Fuels may be wastes. The point is that the coal that has been abandoned in piles is a waste. However, the EPA has E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations determined that once processed that coal is either identical (or maybe even superior) to currently mined materials that would have become refuse in the past. The EPA agrees with, and has adopted, the same reasoning expressed by the commenter that the processed material is a product fuel. The disagreement between the EPA and the comment is the status of the legacy piles and the nomenclature of the coal finally burned. The coal is a processed fuel product, not a traditional fuel. Comment: One commenter stated that there are ‘‘other relevant factors’’ that the EPA should consider when determining whether coal refuse from legacy piles should be categorically listed as a non-waste fuel. Specifically, the commenter believes that the EPA should consider the ‘‘overwhelming resultant environmental improvements’’ associated with the cleanup of abandoned coal refuse piles, including the reduction of fire hazards and contaminant, siltation, and solids releases into the environment, as an ‘‘other relevant factor’’ as it considers listing legacy coal refuse as a non-waste fuel in § 241.4. Response: The EPA’s decision to include processed legacy coal refuse to the list of non-waste fuels in § 241.4(a) was based on the fact that such materials meet the definition of processing and the legitimacy criteria. We do not need to balance ‘‘other relevant factors’’ in making this determination, as would be appropriate under an analysis conducted under § 241.4(b)(5)(ii). Comment: The EPA received a few comments regarding the specific wording of how coal refuse recovered from legacy piles should be identified and described in § 241.4(a) should the agency determine to categorically list this NHSM pursuant to § 241.4(a). One commenter suggested inserting the following text as a subsection within § 241.4(a): ‘‘Coal refuse that does not constitute currently-generated coal refuse, but that is processed in the same manner as currently-generated coal refuse.’’ As previously discussed, another commenter stated that the term ‘‘post-processed’’ was vague and could be interpreted to require additional processing that would hinder the usage of legacy coal refuse piles. Still another commenter suggested referencing the SMCRA in a categorical non-waste determination for coal refuse, which would ensure that the coal refuse is a fuel and minimize overlapping regulatory jurisdiction that could evolve. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 Response: As discussed above, we have determined to list ‘‘coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse’’ to the list of categorical non-waste fuels, as codified in § 241.4(a) of today’s rulemaking. We believe this language accurately captures the scope of materials at issue and what must occur for the material to be categorically characterized as a non-waste fuel. That is, this categorical listing only applies to coal refuse that has been discarded in the first instance in legacy piles, subsequently recovered or removed from the discard environment and subjected to the same processes and operations as currently generated coal refuse.123 Further, this language should alleviate any concerns that the term ‘‘post-processed’’ is vague since that term is not being used within this provision as finalized today. We do not agree with the comments that a categorical listing for legacy refuse should specifically reference SMCRA. As we noted in the preamble to the 2011 NHSM final rule, while the EPA recognizes that SMCRA is concerned with the management and removal of coal refuse piles at mining sites, SMCRA does not address the issue of ‘‘discard,’’ which is critical to the definition of solid waste under RCRA.124 Thus, a specific reference to SMCRA would be inappropriate as well as confusing. Further, we believe that a specific reference to SMCRA would be in fact more burdensome than the language of the categorical listing being codified today, which simply states that legacy coal refuse must be processed in the same manner as currently-generated coal refuse, regardless of whether such processing is done pursuant to SMCRA. c. Manure In the 2011 NHSM final rule, the EPA stated that based on the information provided, we could not make a blanket determination that all manure is a traditional fuel or that it is a solid waste. However, upon reviewing the few comments and data received, we concluded that animal manure that is used as a fuel ‘‘as generated’’ does not satisfy the legitimacy criteria, and thus, if combusted ‘‘as generated,’’ would be a solid waste.125 However, the agency also noted that there were circumstances where manure would not 123 We note that it would not be appropriate to include currently generated coal refuse within this categorical non-waste determination, as we have previously determined and continue to believe that currently generated coal refuse is a traditional fuel. 124 See 76 FR 15510. 125 See 76 FR 15480. PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 9171 be considered a solid waste when burned as a fuel for energy recovery, specifically: (1) When the manure remained within the control of the generator and met the legitimacy criteria; (2) when the manure was sufficiently processed (e.g., via anaerobic digestion or gasification processes) and the resulting material met the legitimacy criteria; and (3) when a facility received a determination from the agency pursuant to 241.3(c) stating that its manure was a non-waste when used as a fuel. For further discussion regarding our characterization of manure, see the preamble to the 2011 NHSM final rule (76 FR 15479–15482). In the December 2011 proposed rule, the agency noted that some parties have identified the potential of manure to not be considered a solid waste. We, therefore, invited parties to present information, including data demonstrating that manure is not discarded either through the existing non-waste petition process or the proposed categorical determination process.126 The agency received no information or data that would allow it to consider proposing to list manure categorically as a non-waste fuel.127 Therefore, we are not taking any action in the rulemaking with respect to manure. However, the agency did receive several comments from one commenter which we will respond to below. Comment: The commenter states that dried animal manure should be included as a non-waste with the other fuels in 40 CFR 241.4(a). The commenter contends that there is no evidence that any animal manure is discarded, let alone sent to landfills. Manure is generally used as fertilizer on fields, although an important secondary purpose is for energy recovery/ generation. In addition, the commenter states there are several known instances of additional plans for animal manure energy projects that are designed specifically to recover energy, including government funded projects. The commenter notes that after drying, animal manure has a meaningful Btu value equal to or above that of other 126 See 76 FR 80472. the preamble to the proposed rule, the agency indicated the type of information and data that should be submitted to categorically list manure as a non-waste fuel. Specifically: (1) The extent that use of the NHSM has been integrally tied to the industrial production process—information can include combustor design specifications, the extent that the use of the material is integrated across the industry and the extent that use of the NHSM is essential to the industrial process and/or (2) the extent that the NHSM is functionally the same as the comparable traditional fuel and (3) other relevant factors. 127 In E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9172 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations biomass that the EPA has determined to be a non-waste fuel (e.g., bagasse). The commenter also notes that there are contracts in place for livestock and poultry producers to supply manure to the combustor. Regarding contaminants in manure, the commenter states that the amount of contaminants is limited because the vast majority of applicable contaminants are directly related to the contaminants contained in the biomass consumed by the animals. The EPA has not presented any evidence that facilities are combusting manure in order to discard chlorine or nitrogen, the two contaminants identified by the EPA. These concentrated contaminants are no different than what occurs in the production of ‘‘byproducts of ethanol natural fermentation processes,’’ which the EPA is now proposing to include in the definition of ‘‘clean cellulosic biomass.’’ Based on a ‘‘balancing of the legitimacy criteria and other such relevant factors,’’ the EPA‘s new standard, animal manure should be included in the 40 CFR 241.4(a) fuels list, along with resinated woods and scrap tires. Response: We disagree with the commenter on several points and do not believe that the case has been made to include animal manure as a categorical non-waste fuel in 40 CFR 241.4(a). First, in the 2011 NHSM final rule, we previously determined that animal manure that is used as fuel, ‘‘as generated,’’ would not satisfy the legitimacy criteria. This conclusion was based on the fact that such material likely would not satisfy the meaningful heating value and contaminant legitimacy criterion.128 Thus, we believe that the burning of such materials (as generated) would not be legitimate and would be seen as burning for discard. Further, the agency has never stated that a NHSM, including animal manure, has to be landfilled in order to be discarded, as the commenter implies. Regarding the use of manure as fertilizer, we have been clear that this rulemaking does not address that secondary use. The 2011 NHSM final rule states, ‘‘We recognize that manure may also be beneficially used in other end uses, such as a fertilizer * * * EPA is not making any determination whether non-hazardous secondary materials are or are not solid wastes for other possible beneficial end uses. Such beneficial use determinations are generally made by the states for these other beneficial uses, and EPA will continue to look to the states to make such determinations.’’ 129 128 See 129 76 76 FR 15480–15481. FR 15482. The commenter notes additional plans for animal manure energy projects; however the fact that there are plans for future projects does not support a categorical non-waste determination today. As the EPA has acknowledged, facilities may be able to demonstrate that they satisfy the legitimacy criteria, either through a selfdetermination if the manure remains within the control of the generator or through the § 241.3(c) non-waste determination petition process. Thus, any future energy project using animal manure as fuel could utilize either of these options for determining that the manure is a non-waste fuel, as appropriate. Regarding the commenter’s points related to meaningful heating value of dried manure, the fact that dried manure may have a greater Btu value than bagasse is not directly on point. To demonstrate that a NHSM has meaningful heating value when used as a fuel, a facility does not compare relative Btu/lb of the NHSM against other traditional fuels, which themselves have a wide range of heating values. Rather, consistent with other EPA rulemakings, we have established 5,000 Btu/lb as a benchmark for demonstrating that a NHSM has meaningful heating value. Thus, to meet the meaningful heating value legitimacy criterion, the material would need to meet an ‘‘as fired’’ heating value of 5,000 Btu/lb, or if lower than 5,000 Btu/ lb, as fired, a person would need to demonstrate that the ERU can costeffectively recover meaningful energy from the NHSM used as a fuel.130 We also note that the EPA did not reopen the meaningful heating value for fuels, as codified in 40 CFR 241.3(d)(1)(ii), in the December 23, 2011, proposed rule. Thus, in order to meet this criterion, the dried manure would need to meet an ‘‘as fired’’ heating value of 5,000 Btu/lb, or if lower than 5,000 Btu/lb, the facility would need to demonstrate that the ERU can cost-effectively recover meaningful energy from use of manure as a fuel. Regarding the commenter’s statement regarding contracts between livestock and poultry producers and combustors, first we would note that no information has been provided to indicate who has entered such contracts or how many such contracts there are to consider this factor. However, as we have stated elsewhere in this preamble, contractual arrangements can be used as evidence that the material is managed as a valuable commodity and that discard is not occurring when a material is transferred beyond the control of the VerDate Mar<15>2010 18:01 Feb 06, 2013 130 See Jkt 229001 PO 00000 76 FR 15541. Frm 00062 Fmt 4701 Sfmt 4700 generator. However, the fact that there is a contractual relationship by itself is not dispositive that a material is not a waste, as there are contracts between parties to remove and dispose of wastes. We also believe that the commenter’s statements that the concentrated levels of contaminants are no different than what occurs in the production of ‘‘byproducts of ethanol natural fermentation processes’’ is not supported by any information or data. That is, other than the general statement, the commenter has not provided contaminant data, for either animal manure or byproducts of ethanol natural fermentation processes, for the agency to analyze and compare. Thus, we have determined based on the lack of any information or data that animal manure should not be listed as a categorical non-waste fuel in § 241.4(a). Comment: In the event that the agency does not list animal manure as a categorical non-waste fuel, the EPA could alternatively decide that processing of animal manure by drying, constitutes ‘‘sufficient processing,’’ such that previously discarded manure could be considered recovered for energy recovery, just like scrap tires could be processed and burned as a non-waste. Response: In the December 23, 2011 proposal, the agency did not solicit comment on the definition of ‘‘processing,’’ as codified in 40 CFR 241.2. Thus, this comment is beyond the scope of the rulemaking and will not be addressed in today’s final action. d. Other Materials for Which Additional Information Was Not Requested In the December 2011 proposal, the agency solicited comment on a focused list of NHSMs and, in particular, whether these NHSMs would be appropriately included in the categorical list of non-waste fuels that the agency was proposing in 40 CFR 241.4(a). Specifically, the agency proposed and/or invited comment and additional information regarding potential categorical non-waste determinations for resinated wood, scrap tires managed pursuant to established tire collection programs, pulp and paper sludges, and coal refuse recovered from legacy piles. Although comment was requested only for these specific materials, the agency received comments that many other NHSMs be listed as categorical non-wastes for which it did not request additional information as a part of this rulemaking. As we have discussed elsewhere in today’s preamble, we will not be responding to such comments and issues that are beyond the scope of E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations today’s narrow rulemaking. We would also note that since the agency did not specifically solicit comments on these additional materials or propose that these NHSMs should be categorically listed in 40 CFR 241.4(a), the Agency will be going through notice and comment rulemaking before making a final decision. However, we would like to note two additional NHSMs—paper recycling residuals and construction and demolition wood processed pursuant to best practices that, based on information provided to the agency,131 we now believe are good candidates and expect to propose categorical listings in 40 CFR 241.4(a) in the near future for these two materials. With respect to a third NHSM—creosote-treated railroad ties, the Agency has recently received a draft petition from The American Forest & Paper Association and the American Wood Council seeking a categorical listing for these materials. As noted below, the Agency has requested additional information from the petitioners with regard to their request. If the additional information supports the representations made in the petitioners’ draft December 6, 2012 petition, the EPA expects to propose a categorical listing for this material as well.132 mstockstill on DSK4VPTVN1PROD with RULES2 Paper Recycling Residuals The first of these is paper recycling residuals (including old corrugated cardboard (OCC) rejects). In the 2011 NHSM final rule, EPA determined that paper recycling residuals, referred to as OCC rejects, are not discarded when used under the control of the generator, such as at pulp and paper mills, since 131 Comments on December 23, 2011 proposed rule supporting a categorical non-waste for paper recycling residuals: American Forest & Paper Association, et al. EPA–HQ–RCRA–2008–0329– 1946–A1; Georgia-Pacific LLC (GP) EPA–HQ– RCRA–2008–0329–1902–A1; National Alliance of Forest Owners (NAFO) EPA–HQ–RCRA–2008– 0329–1950–A2; Packaging Corporation of America (PCA) EPA–HQ–RCRA–2008–0329–1966–A1; and United Steelworkers (USW) EPA–HQ–RCRA–2008– 0329–1910–A1. Comments supporting a categorical non-waste for paper recycling residuals and C&D wood: American Forest & Paper Association, et al. EPA–HQ–RCRA–2008–0329–1946–A1; Construction Materials Recycling Association (CMRA) EPA–HQ–RCRA–2008–0329–1928–A1; Covanta Energy Corporation (Covanta) EPA–HQ– RCRA–2008–0329–1893–A; Energy Recovery Council (ERC) EPA–HQ–RCRA–2008–0329–1927– A1; Georgia-Pacific LLC (GP) EPA–HQ–RCRA– 2008–0329–1902–A1; Michigan Biomass EPA–HQ– RCRA–2008–0329–1905–A1; National Alliance of Forest Owners (NAFO) EPA–HQ–RCRA–2008– 0329–1950–A2; United Steelworkers (USW) EPA– HQ–RCRA–2008–0329–1910–A1; Waste Management (WM) EPA–HQ–RCRA–2008–0329– 1957–A2; and Weyerhaeuser EPA–HQ–RCRA– 2008–0329–1930–A1. 132 See draft letter from Paul Noe to Adminstrator Lisa Jackson, December 6, 2012, (item to be placed in the docket for today’s rule). VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 these non-hazardous secondary materials are part of the industrial process.133 Regarding the legitimacy criteria, the Agency found that these materials meet the criteria with respect to management as a valuable commodity and used as a fuel when burned on-site. In addition, the Agency found that the contaminant levels in these materials are comparable to those in traditional fuels. With respect to the meaningful heating value criterion, the Agency determined that OCC rejects meet this criterion if it can be demonstrated that the combustion unit can cost-effectively recover energy from these materials.134 Since publication of the March 2011 rule, the Agency has received additional information regarding the cost effectiveness of paper recycling residuals use as a fuel, including amounts of paper recycling residuals replacing traditional fuels at paper mills and percentages of residuals generated that are combusted as fuel. In general, this information also indicates that this material is primarily combusted as a fuel on-site or within the control of the generator.135 We have asked the industry for information to confirm this. EPA believes the information received to date would tend to support a categorical determination of these residuals as non-waste fuels. For residuals that are transferred offsite, the Agency would like additional information about residuals that are also burned as a fuel at facilities that are not under the control of the generator, including information as to how and where they are burned and whether they are managed as a valuable commodity. If the Agency receives information confirming treatment of these materials offsite, the Agency would expect to include these residuals in a subsequent rulemaking. Construction and Demolition Wood Processed Pursuant to Best Practices The second of these NHSMs is construction and demolition (C&D) wood processed pursuant to best practices and produced and managed under the oversight of a comprehensive collection system or contractual arrangement. In the March 2011 final rule, we determined that C&D wood that is sufficiently processed can be a nonwaste fuel.136 The Agency has received additional information since the 133 [76 134 For FR 15487] a discussion of OCC rejects, see 76 FR 15486–7. 135 See ‘‘Generation, Management, and Processing of Paper Processing Residuals’’ (Industrial Economics, October 26, 2012) (these items will be placed in the docket.) 136 See 76FR 15485 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 9173 issuance of that rule on specific best management practices used by suppliers/processors of C&D wood. Such practices include processing to remove contaminants. EPA believes the information received to date would tend to support a listing of these materials as a categorical non-waste fuel and expects to propose that listing in a subsequent rulemaking. Other Materials Under Consideration The American Forest & Paper Association and the American Wood Council submitted a draft petition to EPA on December 6, 2012 seeking a categorical listing for creosote-treated railroad ties.137 This draft petition lists their bases for the determination, with supporting information. The information included amounts of railroad ties combusted each year and value of the ties as fuel. Overall, the petitioners believe the information demonstrates that these materials are non-waste fuels and would allow EPA to categorically list this material, balancing the legitimacy criteria with other relevant factors. The draft petition provides information representing a determination that the material has high Btu value, and that the material satisfies the legitimacy criteria. The Agency is still in the process of reviewing the petition. However, in order to inform the scope of the non-waste category, we have also asked the petitioners to provide additional information, including: 1. A list of industry sectors, in addition to forest product mills, that burn railroad ties for energy recovery 2. The types of boilers (e.g., kilns, stoker boilers, circulating fluidized bed, etc.) that burn railroad ties for energy recovery 3. The traditional fuels and relative amounts (e.g., startup, 30%, 100%) of these traditional fuels that could otherwise generally be burned in these types of boilers 4. The extent to which non-industrial boilers (e.g., commercial or residential boilers) burn railroad ties for energy recovery 5. Laboratory analyses for contaminants known to be present in creosote-treated railroad ties or known to be significant components of creosote, specifically polycyclic aromatic hydrocarbons (i.e., PAH–16), dioxins, dibenzofurans, hexachlorobenzene, biphenyl, quinoline, cresols, and 2,4dinitrotoluene. 137 Letter from American Forest & Paper Association and American Wood Council to Lisa Jackson, dated December 6, 2012 (a copy of this letter can be found in the docket for today’s rule) E:\FR\FM\07FER2.SGM 07FER2 9174 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition Process In the proposed rule, the EPA asked for comments on streamlining or other improvements to the existing provision for non-waste determinations codified at 40 CFR 241.3(c). The agency requested comment on whether the EPA’s grant of the petition should apply as of the date that the petition was submitted to the agency.139 The agency also requested additional comment on whether any other changes could be made to the non-waste determination petition in order to streamline the process, while at the same time provide the EPA with the opportunity to ensure that such NHSMs are not being discarded. For example, the EPA requested comment on whether public comment should be sought on each individual petition.140 Comment: Concerning the request for comment regarding when a petition determination would apply, the agency received several comments. Specifically, the agency requested comment on whether the EPA’s grant of the petition should apply as of the date that the petition was submitted to the agency. Commenters agreed that a non-waste determination under 40 CFR 241.3(c) should be retroactively applied to the date the petition was submitted. Commenters were concerned about the timeliness of the EPA’s decision on these determinations and on the uncertainty surrounding the usage of the NHSMs while a non-waste determination petition is pending. The commenters argue that if a NHSM is determined to be non-waste, the combusted NHSM in question was also non-waste prior to the determination. Response: The agency understands the interests of petitioners awaiting an agency decision on the status of materials, while a 40 CFR 241.3(c) petition is being considered. In order to lessen the uncertainty surrounding the regulatory status of a particular material, the agency will utilize the date the petition was submitted as the date that the combusted materials will be considered a non-waste if the agency grants the petition. Comment: Many commenters indicated concern that the petition process could take excessive time for the agency to reach a decision. They requested self-imposed timeframes for the EPA’s granting/denying requests and a shorter length of time for the notices to be open for public comment (or omit it altogether). The combustors stated they need quick decisions in order to comply with the CAA regulations and to make efficient business decisions. Response: The agency considered the commenters’ suggestion, but decided not to impose a deadline on its decision because there are many factors beyond its control, including how long it takes for the petitioner to submit a complete petition to EPA for evaluation. We would note, however, that even though the NHSM rule will become effective on April 8, 2013, for all practical purposes, existing facilities that currently burn NHSMs from off-site sources will have a substantial amount of time to submit and have the EPA process a non-waste determination petition before having to comply with the CAA emission standards, as the compliance date for existing CISWI sources subject to CAA 129 standards is 5 years after the date of publication of the CISWI final rule or 3 years after the state plan is approved, whichever happens earlier and February 7, 2016, to comply with the Boiler MACT rule.141 142 Thus, we believe that there will be more than adequate time for persons to determine whether or not a NHSM sent to a combustion unit not 138 Letter from Jeffrey Miller, Treated Wood Council to Lisa Feldt, December 17, 2012. (a copy of this letter can be found in the docket to today’s rule) Additional supporting information is found in the Comments of Treated Wood Council, dated Feb. 20, 2012)( EPA–HQ–RCRA–2008–0329–1897. 139 See 76 FR 80473. 140 See 76 FR 80474. 141 We recognize that new sources that are coming online that will have to comply with these rules much sooner than do existing sources. As such, the Agency will consider prioritizing the processing of non-waste petitions it has received from new sources as appropriate. 142 Note that the compliance date for the Area Source Boiler Rule is March 21, 2014. mstockstill on DSK4VPTVN1PROD with RULES2 Assuming that the additional information supports and supplements the representations made in the petitioner’s December 6, 2012 draft petition, the EPA also expects to propose a categorical listing for this material. To the extent that petitioners would like to provide additional information, the Agency will consider such information as well. EPA has also received a related letter from the Treated Wood Council asking that nonhazardous treated wood be determined as a categorical non-waste, a broader category that would include creosote-treated ties.138 EPA is in the process of reviewing this letter, and may also propose a categorical listing for this broader set of treated wood material. Finally, we would note that if any person provides sufficient information to EPA regarding any other NHSM, EPA would also consider listing such material(s) categorically, pursuant to 40 CFR 241.4(b). VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 under the control of the generator has not been discarded and meets the legitimacy criteria, prepare and submit a non-waste determination petition to the EPA, have the EPA process the petition, including soliciting comment on the EPA’s proposed determination, and make a final decision. In regard to the comment on reducing the time the petition application is open for public comment, the agency decided that the comment period shall remain at 30 days but the regulatory text is changed from ‘‘at least 30 days’’ to ‘‘30 days’’ in order to promote clarity, while affording an opportunity for public comment. Comment: One commenter strongly encouraged the agency to develop and deploy an on-line form to identify materials for non-waste determinations. Commenters also noted that the EPA should provide more detailed information about how the determinations are made (particularly for the comparable contaminant determinations). Response: The agency will consider the development of a form to identify the specific information needed to determine whether a NHSM meets the legitimacy criteria and other provisions. If the agency develops such a form, it would be made available on the NHSM Web site. Please note that traditional fuel data (including tables for traditional contaminants) are available to the public, which they may find useful in assessing the contaminant legitimacy criteria. Refer to those tables in ‘‘Contaminant Concentrations in Traditional Fuels: Tables for Comparison’’ currently posted on the NHSM web site at https://www.epa.gov/ osw/nonhaz/define/index.htm. That document will aid in comparing the concentration of contaminants in their NHSMs to concentration of contaminants in traditional fuels. In addition, rule clarification letters and petition findings are also posted on the Web site when finalized. Comment: A commenter suggested that the non-waste petition process should allow for ‘‘balancing’’ of legitimacy criteria similar to that included for categorical determinations in 40 CFR 241.4. Response: Under 40 CFR 241.4 of the proposed regulation, the EPA can balance the legitimacy criteria with other relevant factors in making categorical non-waste determinations. As the commenter points out, we have not discussed the applicability for similar balancing under 40 CFR 241.3 non-waste determination petitions. The EPA distinguished between 40 CFR 241.3 and 40 CFR 241.4 because in the E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations latter, the EPA makes the determination based on its review and analysis of industry-wide data and other factors, as opposed to a specific site. However, the EPA recognizes the points the commenter raises and will consider whether such modifications may be appropriate. Comment: Several commenters were interested in features that streamline and add flexibility to the administrative petition process, particularly in the situation where a petition can apply to multiple combustors. One commenter noted that any interested person—including forest owners—should be able to initiate the petition process, not just combustors. The petitions should be allowed for entire classes of a NHSM rather than requiring a case-by-case analysis. These clarifications will encourage all members in the biomass supply chain to promote their products and co-products as clean, renewable fuels and promote the development of new markets for biomass materials. Other commenters also stressed the need for the EPA to clarify that the petition can apply to more than one combustor so that redundant petitions do not need to be filed in every region. A commenter also stated that the benefits from petitions could be achieved more efficiently if the regulatory language was changed to allow for nation-wide petitions under 40 CFR 241.3(c) for classes of combustion units rather than requiring separate petitions for each EPA region. Response: The agency agrees with the commenters that the process should accommodate for petition applications from third party producers of a NHSM that can be used as a non-waste NHSM fuel at many combustion units instead of just accepting petitions from individual combustors or combustors within the control of one EPA region. This can make for a more streamlined and efficient process. Therefore, the regulatory provision at 40 CFR 241.3(c) has been modified to allow for the petition to be sent to the Assistant Administrator for the OSWER instead of each Regional Administrator if the petition covers more than one EPA Region. This is at the option of the petitioner. The Assistant Administrator for the OSWER would be responsible for the EPA’s administrative process in order to finalize the petition decision under 40 CFR 241.3(c) and the regulatory language has been modified accordingly. Finally, as noted in the 2011 NHSM final rulemaking, states, or private entities, can submit non-waste determination petitions to the EPA on VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 behalf of petitioners. They can petition for a single combustor or a class of combustors (e.g., a specific usage of a non-hazardous secondary material in a particular state). Therefore, in regard to the comment on nationwide petitions for classes of combustion units, the petition process accommodates for these classes of combustion units. This assumes that the petition identifies all of the specific NHSMs that the classes of combustion units use as fuel (that are applicable to a 40 CFR 241.3(c) petition) and gives the information necessary to meet the legitimacy criteria and other requirements. Note that if a petition covers multiple facilities in a single region, the petition should be sent to the Regional Administrator for that Region, not to the Assistant Administrator for the OSWER. Comment: Several commenters argued that the 40 CFR 241.3(c) petitions should not require public comment for each individual petition. One commenter stated that ‘‘the administrative petition process could be further streamlined by not seeking public comment on every individual petition. By filing an administrative petition, a petitioner is not seeking to change the EPA’s regulatory program or create new legal rights or obligations. Instead, the administrative petition process provides an opportunity for a petitioner to obtain in advance [A]gency concurrence, based on sound science, with respect to the classification of a particular feedstock under existing regulations. In this respect, the administrative petition process differs from the categorical non-waste determination * * * where EPA makes changes to the regulatory status of certain non-hazardous secondary materials that are reflected in the Code of Federal Regulations. Because the public—through this rulemaking process—has an opportunity to provide input on EPA’s regulations, there is no need to provide a second opportunity for public comment when those regulations are applied by the EPA in specific contexts through the administrative petition process.’’ In addition, other commenters indicated that public notice and comment is not necessary, since the NHSM rulemaking process has already taken comment on the methodology, in addition to other rationale. In particular, one commenter stated, ‘‘Streamlining could be further facilitated by recognizing that solicitation of public comment on each individual application would be redundant and unnecessary given the public’s ample opportunity during this rulemaking to comment on the evaluation criteria that PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 9175 will govern non-waste determination petitions.’’ Another commenter stated, ‘‘The reason for public participation in the hazardous waste petition process is that the materials subject to the petition are to be removed from the hazardous waste regulatory program. In the NHSM world, the secondary materials subject to the petition are merely obtaining clarity about regulatory status—they are not seeking a change in regulatory status. Therefore, the need for the full public participation process is not necessary or warranted.’’ Response: Although industry commenters argued that public participation is unnecessary, the EPA still believes that public participation is an important part of a transparent decision making process and values how it increases transparency. In the final rule, we will retain the public participation requirement in order to promote public awareness. 7. Revised Introductory Text for 40 CFR 241.3(a) As part of its discussion clarifying the non-waste determination petition processes, the EPA noted that it had examined a number of specific NHSMs and decided which were to be considered solid wastes based on the record available at the time the March 2011 final rule was issued.143 The rule itself had stated at 40 CFR 241.3(a) that secondary materials were solid wastes except for those described in section 241.3(b). Essentially, section 241.3(b) is the operative section that states what materials are not wastes. The purpose of the non-waste determination petition process in section 241.3(c) and the new proposed petition process in section 241.4 is to allow various parties the opportunity to provide information and data so that the EPA could decide what other NHSMs are not solid wastes. The preamble stated that the agency proposed to amend section 241.3(a) to state that such secondary materials are ‘‘presumed to be’’ solid wastes except for those described in section 241.3(b) in order to better reflect the rulemaking record. Comment: No commenters supported inclusion of the ‘‘presumed to be’’ language in the rule. Most of the commenters on the language argue that it means that the EPA continues to improperly determine that certain NHSMs are presumptively wastes. Commenters generally argue that the ‘‘presumed to be’’ language shows that the EPA, in spite of statements to the contrary, is continuing to make an inappropriate determination 143 See E:\FR\FM\07FER2.SGM 76 FR 80473. 07FER2 9176 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations that NHSMs transferred to other parties are presumptively wastes until a combustor proves otherwise. According to comments, the use of the ‘‘presumed to be’’ language is a clear statement that the EPA is making the presumption. The addition of these words does not change the fact that, under the EPA’s regulatory framework, NHSMs are wastes until proven otherwise. Several commenters, in fact, argued that to address the legal flaws in the proposal, the EPA should reverse the presumption and presume that NHSMs burned for energy recovery or used as an ingredient is not for the purpose of disposal and, therefore, is not a waste. Response: The EPA is not addressing in this rulemaking the comment that the agency has inappropriately made presumptions about whether materials are wastes. This issue has not been reopened. Instead, the agency has only opened very specific issues on particular wastes. In the December 2011, proposal at 76 FR 80473, the EPA referred to the March 2011 preamble in which the agency stated that it has not ‘‘arbitrarily determined that secondary materials transferred between companies are wastes. Instead, the EPA has evaluated whether certain categories of materials are discarded or not. The Agency has not adopted the extremes of saying that all burning of secondary material, regardless of ultimate use, is waste treatment or that any secondary material that is recycled for legitimate fuel value is a commodity and not a waste. Wastes may have value, but are still wastes.’’ 76 FR 15471. Further, the agency stated that it ‘‘has examined a number of specific materials, recycled within the control of the generator and transferred to a third party for recycling, and determined whether they would be appropriately placed within the waste or non-waste categories.’’ Id. The EPA went on to examine a number of different categories of NHSMs used as fuels and ingredients that was summarized in the Federal Register (76 FR 15477–15520). The EPA cannot ‘‘reverse’’ a presumption that it never made to declare that materials burned for energy recovery are presumptively non-wastes. Further, it would be entirely improper for the agency to do so. The EPA has evaluated specific groups of materials as to their waste status, while the comments regarding reversal of a purported presumption have only presented arguments ‘‘in broad abstraction, providing little detail about the many processes throughout the industry that generate residual material’’ that could be subject to this rule. Association of Battery Recyclers v. EPA, 208 F.3d 1047, 1056.144 Accordingly, the agency stands on its March 2011 rulemaking record for the issues discussed in these comments. Comment: Comments objected that the change in word choice that materials are ‘‘presumed to be’’ solid wastes from the statement that that materials ‘‘are’’ solid wastes (except as otherwise provided in the regulation) still puts the burden to prove material is not a waste on persons who use NHSMs in combustion units. One comment, in particular, noted that there would be no practical effect of the new language even though it is viewed by the EPA as an ‘‘optically less drastic stance.’’ That is, there would be no real leeway for a party in an enforcement proceeding to counter the EPA’s prosecution based on the fact that the secondary material in question is only ‘‘presumed to be’’ a waste, rather than the material ‘‘is’’ a waste. Response: The EPA has decided not to retain the ‘‘presumed to be’’ language, since it is unnecessary and does not actually reflect the rulemaking record. No comment argued in favor of it. In addition, there is no need to temper the existing language stating that a material is a solid waste if it does not fall within the § 241.3(b) categories or the nonwaste determination processes. As noted in the previous response to comments regarding the agency’s ‘‘presumption’’ of the waste status of materials, the agency stands on its March 2011 rulemaking record. E. Cost and Benefits of the Final Rule The RCRA aspects of this rule do not directly invoke any costs (excluding minor administrative burden/cost), or benefits. Any RCRA related costs to the regulated community, and corresponding benefits to human health and the environment, have been considered as part of the CISWI action, and the corresponding CISWI and Boiler MACT (area source and major source) final rules. As such, the agency has not prepared a separate cost-benefit assessment in support of this part of the final rule. Consequently, any potential costs or benefits, including impacts to small entities, indirectly associated with the RCRA aspects of this rule are addressed in the corresponding impact assessment prepared in support of the CISWI part of this action. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a ‘‘significant regulatory action’’ because it may raise novel legal or policy issues. Accordingly, the EPA submitted this action to OMB for review under Executive Order 12866 and 13563 (76 FR 3821, January 21, 2011). Any changes made in response to OMB recommendations have been documented in the docket for this action. In addition, the EPA prepared an update to the RIA of the potential costs and benefits associated with this action. The RIA available in the docket describes in detail the empirical basis for the EPA’s assumptions and characterizes the various sources of uncertainties affecting the estimates below and a memo documents the updates since the RIA was prepared. Table 9 of this preamble shows the results of the cost and benefits analysis for these final rules. TABLE 9—SUMMARY OF THE MONETIZED BENEFITS, SOCIAL COSTS AND NET BENEFITS FOR THE FINAL CISWI NSPS AND EG IN 2015 [Millions of 2008$] 1 mstockstill on DSK4VPTVN1PROD with RULES2 3 Percent discount rate Benefits 2 Total Monetized ...................................................................... Total Social Costs 3 ................................................................................. Net Benefits ............................................................................................. 144 Note how the April 4, 2012, letter from Timothy G. Hunt to James Berlow (a copy of which VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 $420 to $1,000 .............................. $380 to $930 $258 ............................................... $258 $160 to $770 ................................. $120 to $670 Health effects from exposure to HAP 780 tons of HCl, 2.5 tons of lead, 1.8 tons of Cd, 680 pounds of Hg, and 58 grams of dioxins/furans). is in the docket for today’s rule), provided specific information on pulp and paper sludge where the PO 00000 Frm 00066 Fmt 4701 7 Percent discount rate Sfmt 4700 EPA added a categorical determination based on specific information provided by industry. E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9177 TABLE 9—SUMMARY OF THE MONETIZED BENEFITS, SOCIAL COSTS AND NET BENEFITS FOR THE FINAL CISWI NSPS AND EG IN 2015—Continued [Millions of 2008$] 1 3 Percent discount rate Non-monetized Benefits .......................................................................... 7 Percent discount rate Health effects from exposure to criteria pollutants (20,000 tons of CO, 6,300 tons of SO2, 5,400 tons of NO2, and secondary formation of ozone). Ecosystem effects. Visibility impairment. 1 All estimates are for the implementation year (2015) and are rounded to two significant figures. These results reflect the lowest cost disposal assumption. 2 The total monetized benefits reflect the human health benefits associated with reducing exposure to PM 2.5 through reductions of PM2.5 precursors such as directly emitted particles, SO2, and NOX. It is important to note that the monetized benefits include many but not all health effects associated with PM2.5 exposure. Monetized benefits are shown as a range from Pope, et al. (2002) to Laden, et al. (2006). These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to allow differentiation of effect estimates by particle type. 3 The methodology used to estimate social costs for 1 year in the multimarket model using surplus changes results in the same social costs for both discount rates. B. Paperwork Reduction Act This action does not require any new information collection. This action is believed to result in no additional impact on the aggregate information collection estimate of project cost and hour burden made and approved by OMB. Due to changes in the CISWI inventory and monitoring requirements of the CISWI rule, the information collection estimate of project cost and hour burden have been revised. Therefore, only the CISWI ICR has been revised. The OMB control numbers for the EPA’s regulations in 40 CFR are listed in 40 CFR part 9. However, OMB has previously approved the information collection requirements contained in the existing CISWI and NHSM 145 regulations (40 CFR part 60, subparts CCCC and DDDD, and 40 CFR part 241) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., and has been assigned EPA ICR number 2384.05 for subpart CCCC, 40 CFR part 60, EPA ICR number 2385.05 for subpart DDDD, 40 CFR part 60, and EPA ICR number 2382.03 for 40 CFR part 241. mstockstill on DSK4VPTVN1PROD with RULES2 C. Regulatory Flexibility Act The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the APA or any other statute unless the agency certifies that the rule will not have a SISNOSE. Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of today’s rule on small entities, small entity is defined as: (1) A small business 145 Identification of Non-Hazardous Secondary Materials That Are Solid Waste, Final Rule. March 11, 2011. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 as defined by the SBA’s regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-forprofit enterprise that is independently owned and operated and is not dominant in its field. After considering the economic impacts of today’s final rule on small entities, I certify that this action will not have a SISNOSE. This final rule will not impose any new requirements on any entities because it does not impose any additional regulatory requirements relative to those specified in the March 2011 final CISWI and NHSM rules. The March 2011 final CISWI and NHSM rules were both certified as not having a SISNOSE. In this final action, there are four fewer small entities in the CISWI than in the March 2011 final CISWI rule, as discussed in the ‘‘Regulatory Impact Results for the Reconsideration Final for Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units’’ memorandum in the CISWI docket. for state, local and tribal governments, in the aggregate, or the private sector in any 1 year. Accordingly, we have prepared under section 202 of the UMRA a written statement, which is summarized in the preamble to the final CISWI rule (76 FR 15747). This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. D. Unfunded Mandates Reform Act This action does not have tribal implications, as specified in Executive Order 13175, (65 FR 67249, November 9, 2000). The EPA is not aware of any CISWI in Indian country or owned or operated by Indian tribal governments. The CISWI aspects of this rule may, however, invoke minor indirect tribal implications to the extent that entities generating solid wastes on tribal lands could be affected. However, any indirect NHSM impacts that may occur as a result of the CISWI action are expected to be negligible due to the very limited focus of the CISWI part or this rule. This action does not contain a federal mandate that may result in expenditures of $100 million or more for state, local and tribal governments, in the aggregate or the private sector in any one year. This rule finalizes amendments to the final CISWI rule provisions and technical clarifications to the final NHSM rule. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA. However, the March 2011 final CISWI rule contains a federal mandate that may result in expenditures of $100 million or more PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This final rule will not impose direct compliance costs on state or local governments and will not preempt state law. Thus, Executive Order 13132 does not apply to this action. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments E:\FR\FM\07FER2.SGM 07FER2 9178 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5– 501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is based solely on technology performance and technical corrections. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. mstockstill on DSK4VPTVN1PROD with RULES2 I. National Technology Transfer and Advancement Act Section 12(d) of the NTTAA of 1995, Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs the EPA to use VCS in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by VCS bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not use available and applicable VCS. This action does not involve any revisions to the technical standards or test methods required in the final CISWI rule. Therefore, the EPA did not reconsider the use of any VCS. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on EJ. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make EJ part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and lowincome populations in the United States. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. The amendments do not relax the control measures on sources regulated by the CISWI rule, and, therefore, will not cause emissions increases from these sources. The March 2011 final CISWI rule will reduce emissions of all the listed HAP emitted from this source. Furthermore, the targeted revisions finalized in the NHSM section of this rule are designed to improve the management of these materials, thereby helping to further ensure against any disproportionately high and adverse human health or environmental effects on minority or low-income populations. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the SBREFA of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). This rule will be effective February 7, 2013. List of Subjects 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Incorporation by reference. 40 CFR Part 241 Environmental protection, air pollution control, waste treatment and disposal. Dated: December 20, 2012. Lisa P. Jackson, Administrator. Frm 00068 Fmt 4701 Sfmt 4700 PART 60—STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES 1. The authority for part 60 continues to read as follows: ■ Authority: 42 U.S.C. 7401, et seq. 2. Effective February 7, 2013, the May 18, 2011 (76 FR 28662), delay of the effective date amending subparts CCCC and DDDD, at 76 FR 15703 (March 21, 2011), is lifted. ■ Subpart CCCC—[Amended] 3. Section 60.2005 is revised to read as follows: ■ § 60.2005 When does this subpart become effective? This subpart takes effect on August 7, 2013. Some of the requirements in this subpart apply to planning the CISWI unit (i.e., the preconstruction requirements in §§ 60.2045 and 60.2050). Other requirements such as the emission limitations and operating limits apply after the CISWI unit begins operation. ■ 4. Section 60.2015 is amended by revising paragraphs (a)(1) and (2) and (b) to read as follows: § 60.2015 What is a new incineration unit? (a) * * * (1) A CISWI unit that commenced construction after June 4, 2010. (2) A CISWI unit that commenced reconstruction or modification after August 7, 2013. (b) This subpart does not affect your CISWI unit if you make physical or operational changes to your incineration unit primarily to comply with subpart DDDD of this part (Emission Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units). Such changes do not qualify as reconstruction or modification under this subpart. ■ 5. Section 60.2020 is amended by: ■ a. Revising paragraph (c). ■ b. Revising paragraph (e)(3). ■ c. Adding paragraph (e)(4). ■ d. Revising paragraph (f)(3). ■ e. Adding paragraph (f)(4). ■ f. Revising paragraph (n). ■ g. Adding paragraph (o). The revisions and additions read as follows: § 60.2020 What combustion units are exempt from this subpart? * For the reasons cited in the preamble, Title 40, chapter I, parts 60 and 241 of PO 00000 the Code of Federal Regulations are amended as follows: * * * * (c) Municipal waste combustion units. Incineration units that are subject to E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations subpart Ea of this part (Standards of Performance for Municipal Waste Combustors); subpart Eb of this part (Standards of Performance for Large Municipal Waste Combustors); subpart Cb of this part (Emission Guidelines and Compliance Time for Large Municipal Combustors); subpart AAAA of this part (Standards of Performance for Small Municipal Waste Combustion Units); or subpart BBBB of this part (Emission Guidelines for Small Municipal Waste Combustion Units). * * * * * (e) * * * (3) You submit documentation to the Administrator notifying the EPA that the qualifying small power production facility is combusting homogenous waste. (4) You maintain the records specified in § 60.2175(w). (f) * * * (3) You submit documentation to the Administrator notifying the Agency that the qualifying cogeneration facility is combusting homogenous waste. (4) You maintain the records specified in § 60.2175(x). * * * * * (n) Sewage sludge incineration units. Incineration units combusting sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter that are subject to subpart LLLL of this part (Standards of Performance for Sewage Sludge Incineration Units) or subpart MMMM of this part (Emission Guidelines for Sewage Sludge Incineration Units). (o) Other solid waste incineration units. Incineration units that are subject to subpart EEEE of this part (Standards of Performance for Other Solid Waste Incineration Units) or subpart FFFF of this part (Emission Guidelines and Compliance Times for Other Solid Waste Incineration Units). ■ 6. Section 60.2030 is amended by revising paragraph (c)(10) to read as follows: § 60.2030 Who implements and enforces this subpart? mstockstill on DSK4VPTVN1PROD with RULES2 * * * * * (c) * * * (10) Determination of whether a qualifying small power production facility or cogeneration facility under § 60.2020(e) or (f) is combusting homogenous waste. ■ 7. Section 60.2045 is amended by revising paragraph (b) to read as follows: § 60.2045 Who must prepare a siting analysis? * * * VerDate Mar<15>2010 * * 18:01 Feb 06, 2013 Jkt 229001 (b) You must prepare a siting analysis for CISWI units that commenced construction after June 4, 2010, or that commenced reconstruction or modification after August 7, 2013. * * * * * ■ 8. Section 60.2105 is amended by revising paragraph (b) to read as follows: § 60.2105 What emission limitations must I meet and by when? * * * * * (b) An incinerator unit that commenced construction after November 30, 1999, but no later than June 4, 2010, or that commenced reconstruction or modification on or after June 1, 2001 but no later than August 7, 2013, must meet the more stringent emission limit for the respective pollutant in table 1 of this subpart or table 6 of subpart DDDD. ■ 9. Section 60.2110 is amended by: ■ a. Revising paragraphs (a)(2), (e), and (f). ■ b. Redesignating paragraph (g) as paragraph (h) and revising newly designated paragraph (h). ■ c. Adding paragraphs (g) and (i). The revisions and additions read as follows: § 60.2110 What operating limits must I meet and by when? (a) * * * (2) Minimum pressure drop across the wet particulate matter scrubber, which is calculated as the lowest 1-hour average pressure drop across the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations; or minimum amperage to the wet scrubber, which is calculated as the lowest 1-hour average amperage to the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations. * * * * * (e) If you use activated carbon sorbent injection to comply with the emission limitations, you must measure the sorbent flow rate during the performance testing. The operating limit for the carbon sorbent injection is calculated as the lowest 1-hour average sorbent flow rate measured during the most recent performance test demonstrating compliance with the mercury emission limitations. For energy recovery units, when your unit operates at lower loads, multiply your sorbent injection rate by the load fraction, as defined in this subpart, to determine the required injection rate (e.g., for 50 percent load, multiply the injection rate operating limit by 0.5). PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 9179 (f) If you use selective noncatalytic reduction to comply with the emission limitations, you must measure the charge rate, the secondary chamber temperature (if applicable to your CISWI unit), and the reagent flow rate during the nitrogen oxides performance testing. The operating limits for the selective noncatalytic reduction are calculated as the highest 1-hour average charge rate, lower secondary chamber temperature, and lowest reagent flow rate measured during the most recent performance test demonstrating compliance with the nitrogen oxides emission limitations. (g) If you use a dry scrubber to comply with the emission limitations, you must measure the injection rate of each sorbent during the performance testing. The operating limit for the injection rate of each sorbent is calculated as the lowest 1-hour average injection rate or each sorbent measured during the most recent performance test demonstrating compliance with the hydrogen chloride emission limitations. For energy recovery units, when your unit operates at lower loads, multiply your sorbent injection rate by the load fraction, as defined in this subpart, to determine the required injection rate (e.g., for 50 percent load, multiply the injection rate operating limit by 0.5). (h) If you do not use a wet scrubber, electrostatic precipitator, or fabric filter to comply with the emission limitations, and if you do not determine compliance with your particulate matter emission limitation with a particulate matter CEMS, you must maintain opacity to less than or equal to 10 percent opacity (1-hour block average). (i) If you use a PM CPMS to demonstrate compliance, you must establish your PM CPMS operating limit and determine compliance with it according to paragraphs (i)(1) through (5) of this section. (1) Determine your operating limit as the average PM CPMS output value recorded during the performance test or at a PM CPMS output value corresponding to 75% of the emission limit if your PM performance test demonstrates compliance below 75% of the emission limit. You must verify an existing or establish a new operating limit after each repeated performance test. You must repeat the performance test annually and reassess and adjust the site-specific operating limit in accordance with the results of the performance test. (A) Your PM CPMS must provide a 4– 20 milliamp output and the establishment of its relationship to manual reference method measurements must be determined in units of milliamps. E:\FR\FM\07FER2.SGM 07FER2 9180 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations Where: X1 = the PM CPMS data points for the three runs constituting the performance test, Y1 = the PM concentration value for the three runs constituting the performance test, and n = the number of data points. Ol = the operating limit for your PM CPMS on a 30-day rolling average, in milliamps. L = your source emission limit expressed in lb/Mmbtu, z = your instrument zero in milliamps, determined from (2)(a), and R = the relative mg/dscm per milliamp for your PM CPMS, from Equation 3. arithmetic average operating parameter in units of the operating limit (e.g., milliamps, PM concentration, raw data signal) on a 30-day rolling average basis. (5) For PM performance test reports used to set a PM CPMS operating limit, the electronic submission of the test report must also include the make and model of the PM CPMS instrument, serial number of the instrument, analytical principle of the instrument (e.g., beta attenuation), span of the instruments primary analytical range, milliamp value equivalent to the instrument zero output, technique by which this zero value was determined, and the average milliamp signals corresponding to each PM compliance test run. ■ 10. Section 60.2115 is amended by revising the section heading and the introductory text to read as follows: (iii) With your instrument zero expressed in milliamps, your three run average PM CPMS milliamp value, and your three run average PM concentration from your three compliance tests, determine a relationship of lb/Mmbtu per milliamp with equation 2. mstockstill on DSK4VPTVN1PROD with RULES2 Where: R = the relative mg/dscm per milliamp for your PM CPMS, Y1 = the three run average mg/dscm PM concentration, X1 = the three run average milliamp output from you PM CPMS, and z = the milliamp equivalent of your instrument zero determined from (2)(i). (iv) Determine your source specific 30-day rolling average operating limit using the mg/dscm per milliamp value from Equation 2 in equation 3, below. This sets your operating limit at the PM CPMS output value corresponding to 75% of your emission limit. Where: VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 (3) If the average of your three PM compliance test runs is at or above 75% of your PM emission limit you must determine your operating limit by averaging the PM CPMS milliamp output corresponding to your three PM performance test runs that demonstrate compliance with the emission limit using equation 4 and you must submit all compliance test and PM CPMS data according to the reporting requirements in paragraph (i)(5) of this section. Where: X1 = the PM CPMS data points for all runs i, n = the number of data points, and Oh = your site specific operating limit, in milliamps. (4) To determine continuous compliance, you must record the PM CPMS output data for all periods when the process is operating and the PM CPMS is not out-of-control. You must demonstrate continuous compliance by using all quality-assured hourly average data collected by the PM CPMS for all operating hours to calculate the PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 § 60.2115 What if I do not use a wet scrubber, fabric filter, activated carbon injection, selective noncatalytic reduction, an electrostatic precipitator, or a dry scrubber to comply with the emission limitations? If you use an air pollution control device other than a wet scrubber, activated carbon injection, selective noncatalytic reduction, fabric filter, an electrostatic precipitator, or a dry scrubber or limit emissions in some other manner, including material balances, to comply with the emission limitations under § 60.2105, you must petition the EPA Administrator for specific operating limits to be E:\FR\FM\07FER2.SGM 07FER2 ER07FE13.003</GPH> removing the extractive probe from the stack and drawing in clean ambient air. (C) The zero point can also can be established obtained by performing manual reference method measurements when the flue gas is free of PM emissions or contains very low PM concentrations (e.g., when your process is not operating, but the fans are operating or your source is combusting only natural gas) and plotting these with the compliance data to find the zero intercept. (D) If none of the steps in paragraphs (i)(2)(i) through (iv) of this section are possible, you must use a zero output value provided by the manufacturer. (ii) Determine your PM CPMS instrument average in milliamps, and the average of your corresponding three PM compliance test runs, using equation 1. ER07FE13.002</GPH> (2) If the average of your three PM performance test runs are below 75% of your PM emission limit, you must calculate an operating limit by establishing a relationship of PM CPMS signal to PM concentration using the PM CPMS instrument zero, the average PM CPMS values corresponding to the three compliance test runs, and the average PM concentration from the Method 5 or performance test with the procedures in (i)(1)through (5) of this section. (i) Determine your instrument zero output with one of the following procedures: (A) Zero point data for in-situ instruments should be obtained by removing the instrument from the stack and monitoring ambient air on a test bench. (B) Zero point data for extractive instruments should be obtained by ER07FE13.000</GPH> ER07FE13.001</GPH> (B) Your PM CPMS operating range must be capable of reading PM concentrations from zero to a level equivalent to at least two times your allowable emission limit. If your PM CPMS is an auto-ranging instrument capable of multiple scales, the primary range of the instrument must be capable of reading PM concentration from zero to a level equivalent to two times your allowable emission limit. (C) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, record and average all milliamp output values from the PM CPMS for the periods corresponding to the compliance test runs (e.g., average all your PM CPMS output values for three corresponding 2-hour Method 5I test runs). Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations established during the initial performance test and continuously monitored thereafter. You must submit the petition at least sixty days before the performance test is scheduled to begin. Your petition must include the five items listed in paragraphs (a) through (e) of this section. * * * * * ■ 11. Section 60.2120 is revised to read as follows: mstockstill on DSK4VPTVN1PROD with RULES2 § 60.2120 Affirmative defense for violation of emission standards during malfunction. In response to an action to enforce the standards set forth in paragraph § 60.2105 you may assert an affirmative defense to a claim for civil penalties for violations of such standards that are caused by malfunction, as defined at 40 CFR 60.2. Appropriate penalties may be assessed if you fail to meet your burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief. (a) Assertion of affirmative defense. To establish the affirmative defense in any action to enforce such a standard, you must timely meet the reporting requirements in paragraph (b) of this section, and must prove by a preponderance of evidence that: (1) The violation: (i) Was caused by a sudden, infrequent, and unavoidable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner; and (ii) Could not have been prevented through careful planning, proper design or better operation and maintenance practices; and (iii) Did not stem from any activity or event that could have been foreseen and avoided, or planned for; and (iv) Was not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and (2) Repairs were made as expeditiously as possible when a violation occurred; and (3) The frequency, amount, and duration of the violation (including any bypass) were minimized to the maximum extent practicable; and (4) If the violation resulted from a bypass of control equipment or a process, then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and (5) All possible steps were taken to minimize the impact of the violation on ambient air quality, the environment, and human health; and (6) All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 and good air pollution control practices; and (7) All of the actions in response to the violation were documented by properly signed, contemporaneous operating logs; and (8) At all times, the affected source was operated in a manner consistent with good practices for minimizing emissions; and (9) A written root cause analysis has been prepared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the violation resulting from the malfunction event at issue. The analysis shall also specify, using best monitoring methods and engineering judgment, the amount of any emissions that were the result of the malfunction. (b) Report. The owner or operator seeking to assert an affirmative defense shall submit a written report to the Administrator with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. This affirmative defense report shall be included in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report or excess emission report due after the initial occurrence of the violation of the relevant standard. ■ 12. Section 60.2125 is amended by: ■ a. Revising paragraph (g) introductory text. ■ b. Redesignating paragraphs (g)(2) and (3) as paragraphs (g)(3) and (4), respectively. ■ c. Revising newly designated paragraphs (g)(3) and (4). ■ d. Adding new paragraph (g)(2). ■ e. Revising paragraph (i). ■ f. Adding paragraph (j). The revisions and additions read as follows: § 60.2125 How do I conduct the initial and annual performance test? * * * * * (g) You must determine dioxins/ furans toxic equivalency by following the procedures in paragraphs (g)(1) through (4) of this section. * * * * * (2) Quantify isomers meeting identification criteria 2, 3, 4, and 5 in Section 5.3.2.5 of Method 23, regardless of whether the isomers meet PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 9181 identification criteria 1 and 7. You must quantify the isomers per Section 9.0 of Method 23. (Note: You may reanalyze the sample aliquot or split to reduce the number of isomers not meeting identification criteria 1 or 7 of Section 5.3.2.5.) (3) For each dioxin/furan (tetrathrough octa-chlorinated) isomer measured in accordance with paragraph (g)(1) and (2) of this section, multiply the isomer concentration by its corresponding toxic equivalency factor specified in table 3 of this subpart. (4) Sum the products calculated in accordance with paragraph (g)(3) of this section to obtain the total concentration of dioxins/furans emitted in terms of toxic equivalency. * * * * * (i) If you have an applicable opacity operating limit, you must determine compliance with the opacity limit using Method 9 at 40 CFR part 60, appendix A–4 of this part, based on three 1-hour blocks consisting of ten 6-minute average opacity values, unless you are required to install a continuous opacity monitoring system, consistent with §§ 60.2145 and 60.2165. (j) You must determine dioxins/furans total mass basis by following the procedures in paragraphs (j)(1) through (3) of this section. (1) Measure the concentration of each dioxin/furan tetra-through octachlorinated isomer emitted using EPA Method 23 at 40 CFR part 60, appendix A–7. (2) Quantify isomers meeting identification criteria 2, 3, 4, and 5 in Section 5.3.2.5 of Method 23, regardless of whether the isomers meet identification criteria 1 and 7. You must quantify the isomers per Section 9.0 of Method 23. (Note: You may reanalyze the sample aliquot or split to reduce the number of isomers not meeting identification criteria 1 or 7 of Section 5.3.2.5.) (3) Sum the quantities measured in accordance with paragraphs (j)(1) and (2) of this section to obtain the total concentration of dioxins/furans emitted in terms of total mass basis. ■ 13. Section 60.2140 is amended by revising paragraph (c) to read as follows: § 60.2140 By what date must I conduct the initial performance test? * * * * * (c) If you commence combusting or recommence combusting a solid waste at an existing combustion unit at any commercial or industrial facility and you have not conducted a performance test consistent with the provisions of this subpart while combusting the solid waste within the 6 months preceding E:\FR\FM\07FER2.SGM 07FER2 9182 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations the reintroduction of that solid waste in the combustion chamber, you must conduct a performance test within 60 days commencing or recommencing solid waste combustion. ■ 14. Section 60.2145 is amended by: ■ a. Revising paragraph (a)(6). ■ b. Revising paragraphs (b) through (d). ■ c. Revising paragraphs (f) through (j). ■ d. Revising paragraph (m)(2). ■ e. Revising paragraph (n)(4). ■ f. Revising paragraphs (s) introductory text, (s)(1) introductory text, and (s)(2). ■ g. Revising paragraph (t) introductory text and (t)(1) introductory text. ■ h. Revising paragraph (u). ■ i. Adding paragraphs (w) and (x). The revisions and additions read as follows: mstockstill on DSK4VPTVN1PROD with RULES2 § 60.2145 How do I demonstrate continuous compliance with the emission limitations and the operating limits? (a) * * * (6) All monitoring systems necessary for compliance with any newly applicable monitoring requirements which apply as a result of the cessation or commencement or recommencement of combusting solid waste must be installed and operational as of the effective date of the waste-to-fuel, or fuel-to-waste switch. All calibration and drift checks must be performed as of the effective date of the waste-to-fuel, or fuel-to-waste switch. Relative accuracy tests must be performed as of the performance test deadline for PM CEMS (if PM CEMS are elected to demonstrate continuous compliance with the particulate matter emission limits). Relative accuracy testing for other CEMS need not be repeated if that testing was previously performed consistent with Clean Air Act section 112 monitoring requirements or monitoring requirements under this subpart. (b) You must conduct an annual performance test for the pollutants listed in table 1 of this subpart or tables 5 through 8 of this subpart and opacity for each CISWI unit as required under § 60.2125. The annual performance test must be conducted using the test methods listed in table 1 of this subpart or tables 5 through 8 of this subpart and the procedures in § 60.2125. Annual performance tests are not required if you use CEMS or continuous opacity monitoring systems to determine compliance. (c) You must continuously monitor the operating parameters specified in § 60.2110 or established under § 60.2115 and as specified in § 60.2170. Use 3hour block average values to determine compliance (except for baghouse leak detection system alarms) unless a VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 different averaging period is established under § 60.2115 or, for energy recovery units, where the averaging time for each operating parameter is a 30-day rolling, calculated each hour as the average of the previous 720 operating hours. Operation above the established maximum, below the established minimum, or outside the allowable range of operating limits specified in paragraph (a) of this section constitutes a deviation from your operating limits established under this subpart, except during performance tests conducted to determine compliance with the emission and operating limits or to establish new operating limits. Operating limits are confirmed or reestablished during performance tests. (d) You must burn only the same types of waste and fuels used to establish subcategory applicability (for energy recovery units) and operating limits during the performance test. * * * * * (f) For energy recovery units, you must conduct an annual performance test for opacity (except where particulate matter CEMS or continuous opacity monitoring systems are used are used) and the pollutants listed in table 6 of this subpart. (g) You may elect to demonstrate continuous compliance with the carbon monoxide emission limit using a carbon monoxide CEMS according to the following requirements: (1) You must measure emissions according to § 60.13 to calculate 1-hour arithmetic averages, corrected to 7 percent oxygen. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must demonstrate initial compliance with the carbon monoxide emissions limit using a 30day rolling average of these 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7 of this part. (2) Operate the carbon monoxide CEMS in accordance with the requirements of performance specification 4A of appendix B of this part and quality assurance procedure 1 of appendix F of this part. (h) Coal and liquid/gas energy recovery units with average annual heat input rates greater than or equal to 250 MMBtu/hr may elect to demonstrate continuous compliance with the particulate matter emissions limit using a particulate matter CEMS according to PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 the procedures in § 60.2165(n) instead of the particulate matter continuous parameter monitoring system (CPMS) specified in § 60.2145. Coal and liquid/ gas energy recovery units with annual average heat input rates less than 250 MMBtu/hr, incinerators, and small remote incinerators may also elect to demonstrate compliance using a particulate matter CEMS according to the procedures in § 60.2165(n) instead of particulate matter testing with EPA Method 5 at 40 CFR part 60, appendix A–3 and, if applicable, the continuous opacity monitoring requirements in paragraph (i) of this section. (i) For energy recovery units with annual average heat input rates greater than or equal to 10 MMBtu/hour and less than 250 MMBtu/hr, you must install, operate, certify and maintain a continuous opacity monitoring system (COMS) according to the procedures in § 60.2165. (j) For waste-burning kilns, you must conduct an annual performance test for cadmium, lead, dioxins/furans and hydrogen chloride as listed in table 7 of this subpart. You must determine compliance with hydrogen chloride using a hydrogen chloride CEMS if you do not use an acid gas wet scrubber or dry scrubber. You must determine compliance with nitrogen oxides, sulfur dioxide, and carbon monoxide using CEMS. You must determine compliance with particulate matter using CPMS. You must determine compliance with the mercury emissions limit using a mercury CEMS according to the following requirements: (1) Operate a CEMS system in accordance with performance specification 12A of 40 CFR part 60, appendix B or a sorbent trap based integrated monitor in accordance with performance specification 12B of 40 CFR part 60, appendix B. The duration of the performance test must be a calendar month. For each calendar month in which the waste-burning kiln operates, hourly mercury concentration data, and stack gas volumetric flow rate data must be obtained. You must demonstrate compliance with the mercury emissions limit using a 30-day rolling average of these 1-hour mercury concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7 of this part. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. (2) Owners or operators using a mercury CEMS must install, operate, E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations calibrate, and maintain an instrument for continuously measuring and recording the mercury mass emissions rate to the atmosphere according to the requirements of performance specifications 6 and 12A of 40 CFR part 60, appendix B, and quality assurance procedure 6 of 40 CFR part 60, appendix F. (3) The owner or operator of a wasteburning kiln must demonstrate initial compliance by operating a mercury CEMS while the raw mill of the in-line kiln/raw mill is operating under normal conditions and including at least one period when the raw mill is off. * * * * * (m) * * * (2) Use a flow sensor with a measurement sensitivity at full scale of no greater than 2 percent. * * * * * (n) * * * (4) Perform checks at the frequency outlined in your site-specific monitoring plan to ensure pressure measurements are not obstructed (e.g., check for pressure tap pluggage daily). * * * * * (s) For facilities using a CEMS to demonstrate compliance with the sulfur dioxide emission limit, compliance with the sulfur dioxide emission limit may be demonstrated by using the CEMS specified in § 60.2165 to measure sulfur dioxide. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must calculate a 30-day rolling average of the 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, Appendix A–7 of this part. The sulfur dioxide CEMS must be operated according to performance specification 2 in appendix B of this part and must follow the procedures and methods specified in this paragraph (s). For sources that have actual inlet emissions less than 100 parts per million dry volume, the relative accuracy criterion for inlet sulfur dioxide CEMS should be no greater than 20 percent of the mean value of the reference method test data in terms of the units of the emission standard, or 5 parts per million dry volume absolute value of the mean difference between the reference method and the CEMS, whichever is greater. (1) During each relative accuracy test run of the CEMS required by performance specification 2 in appendix B of this part, collect sulfur dioxide and VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 oxygen (or carbon dioxide) data concurrently (or within a 30- to 60minute period) with both the CEMS and the test methods specified in paragraphs (s)(1)(i) and (ii) of this section. * * * * * (2) The span value of the CEMS at the inlet to the sulfur dioxide control device must be 125 percent of the maximum estimated hourly potential sulfur dioxide emissions of the unit subject to this rule. The span value of the CEMS at the outlet of the sulfur dioxide control device must be 50 percent of the maximum estimated hourly potential sulfur dioxide emissions of the unit subject to this rule. * * * * * (t) For facilities using a CEMS to demonstrate continuous compliance with the nitrogen oxides emission limit, compliance with the nitrogen oxides emission limit may be demonstrated by using the CEMS specified in § 60.2165 to measure nitrogen oxides. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must calculate a 30-day rolling average of the 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7 of this part. The nitrogen oxides CEMS must be operated according to performance specification 2 in appendix B of this part and must follow the procedures and methods specified in paragraphs (t)(1) through (5) of this section. (1) During each relative accuracy test run of the CEMS required by performance specification 2 of appendix B of this part, collect nitrogen oxides and oxygen (or carbon dioxide) data concurrently (or within a 30- to 60minute period) with both the CEMS and the test methods specified in paragraphs (t)(1)(i) and (ii) of this section. * * * * * (u) For facilities using a CEMS to demonstrate continuous compliance with any of the emission limits of this subpart, you must complete the following: (1) Demonstrate compliance with the appropriate emission limit(s) using a 30day rolling average of 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7 of this part. CEMS data during startup and PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 9183 shutdown, as defined in the subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. (2) Operate all CEMS in accordance with the applicable procedures under appendices B and F of this part. * * * * * (w) For energy recovery units with a design heat input capacity of 100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, you must install, operate, and maintain a oxygen analyzer system as defined in § 60.2265 according to the procedures in paragraphs (w)(1) through (4) of this section. (1) The oxygen analyzer system must be installed by the initial performance test date specified in § 60.2675. (2) You must operate the oxygen trim system within compliance with paragraph (w)(3) of this section at all times. (3) You must maintain the oxygen level such that the 30-day rolling average that is established as the operating limit for oxygen is not below the lowest hourly average oxygen concentration measured during the most recent CO performance test. (4) You must calculate and record a 30-day rolling average oxygen concentration using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 of Appendix A–7 of this part. (x) For energy recovery units with annual average heat input rates greater than or equal to 250 MMBtu/hour and waste-burning kilns, you must install, calibrate, maintain, and operate a PM CPMS and record the output of the system as specified in paragraphs (x)(1) through (8) of this section. For other energy recovery units, you may elect to use PM CPMS operated in accordance with this section. PM CPMS are suitable in lieu of using other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure). (1) Install, calibrate, operate, and maintain your PM CPMS according to the procedures in your approved sitespecific monitoring plan developed in accordance with § 60.2145(l) and (x)(1)(i) through (iii) of this section. (i) The operating principle of the PM CPMS must be based on in-stack or extractive light scatter, light scintillation, beta attenuation, or mass accumulation detection of the exhaust gas or representative sample. The reportable measurement output from the PM CPMS must be expressed as milliamps. (ii) The PM CPMS must have a cycle time (i.e., period required to complete sampling, measurement, and reporting E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9184 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations for each measurement) no longer than 60 minutes. (iii) The PM CPMS must be capable of detecting and responding to particulate matter concentrations of no greater than 0.5 mg/actual cubic meter. (2) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, you must adjust the sitespecific operating limit in accordance with the results of the performance test according to the procedures specified in § 60.2110. (3) Collect PM CPMS hourly average output data for all energy recovery unit or waste-burning kiln operating hours. Express the PM CPMS output as milliamps. (4) Calculate the arithmetic 30-day rolling average of all of the hourly average PM CPMS output collected during all energy recovery unit or wasteburning kiln operating hours data (milliamps). (5) You must collect data using the PM CPMS at all times the energy recovery unit or waste-burning kiln is operating and at the intervals specified in paragraph (x)(1)(ii) of this section, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments), and any scheduled maintenance as defined in your sitespecific monitoring plan. (6) You must use all the data collected during all energy recovery unit or wasteburning kiln operating hours in assessing the compliance with your operating limit except: (i) Any data collected during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or quality control activities conducted during monitoring system malfunctions are not used in calculations (report any such periods in your annual deviation report); (ii) Any data collected during periods when the monitoring system is out of control as specified in your site-specific monitoring plan, repairs associated with periods when the monitoring system is out of control, or required monitoring system quality assurance or quality control activities conducted during outof-control periods are not used in calculations (report emissions or operating levels and report any such periods in your annual deviation report); VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 (iii) Any PM CPMS data recorded during periods of CEMS data during startup and shutdown, as defined in this subpart. (7) You must record and make available upon request results of PM CPMS system performance audits, as well as the dates and duration of periods from when the PM CPMS is out of control until completion of the corrective actions necessary to return the PM CPMS to operation consistent with your site-specific monitoring plan. (8) For any deviation of the 30-day rolling average PM CPMS average value from the established operating parameter limit, you must: (i) Within 48 hours of the deviation, visually inspect the air pollution control device; (ii) If inspection of the air pollution control device identifies the cause of the deviation, take corrective action as soon as possible and return the PM CPMS measurement to within the established value; and (iii) Within 30 days of the deviation or at the time of the annual compliance test, whichever comes first, conduct a PM emissions compliance test to determine compliance with the PM emissions limit and to verify. Within 45 days of the deviation, you must reestablish the CPMS operating limit. You are not required to conduct additional testing for any deviations that occur between the time of the original deviation and the PM emissions compliance test required under this paragraph. (iv) PM CPMS deviations leading to more than four required performance tests in a 12-month process operating period (rolling monthly) constitute a violation of this subpart. ■ 15. Section 60.2165 is amended by: ■ a. Revising paragraph (c). ■ b. Revising paragraphs (g) through (k). ■ c. Revising paragraphs (l)(1) and (2). ■ d. Revising paragraph (m) introductory text. ■ e. Revising paragraph (n) introductory text. ■ f. Removing paragraph (n)(14). ■ g. Revising paragraphs (n)(6), (n)(7), (n)(9) through (n)(11), (n)(12) introductory text, and (n)(12)(ii). ■ h. Revising paragraphs (o)(1) and (2). ■ i. Adding paragraphs (q), (r), and (s). The revisions and additions read as follows: § 60.2165 What monitoring equipment must I install and what parameters must I monitor? * * * * * (c) If you are using something other than a wet scrubber, activated carbon, selective non-catalytic reduction, an PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 electrostatic precipitator, or a dry scrubber to comply with the emission limitations under § 60.2105, you must install, calibrate (to the manufacturers’ specifications), maintain, and operate the equipment necessary to monitor compliance with the site-specific operating limits established using the procedures in § 60.2115. * * * * * (g) For waste-burning kilns not equipped with a wet scrubber or dry scrubber, in place of hydrogen chloride testing with EPA Method 321 at 40 CFR part 63, appendix A, an owner or operator must install, calibrate, maintain, and operate a CEMS for monitoring hydrogen chloride emissions discharged to the atmosphere and record the output of the system. To demonstrate continuous compliance with the hydrogen chloride emissions limit for units other than waste-burning kilns not equipped with a wet scrubber or dry scrubber, a facility may substitute use of a hydrogen chloride CEMS for conducting the hydrogen chloride annual performance test, monitoring the minimum hydrogen chloride sorbent flow rate, monitoring the minimum scrubber liquor pH, and monitoring minimum injection rate. (h) To demonstrate continuous compliance with the particulate matter emissions limit, a facility may substitute use of a particulate matter CEMS for conducting the PM annual performance test and using other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure). (i) To demonstrate continuous compliance with the dioxin/furan emissions limit, a facility may substitute use of a continuous automated sampling system for the dioxin/furan annual performance test. You must record the output of the system and analyze the sample according to EPA Method 23 at 40 CFR part 60, appendix A–7 of this part. This option to use a continuous automated sampling system takes effect on the date a final performance specification applicable to dioxin/furan from continuous monitors is published in the Federal Register. The owner or operator who elects to continuously sample dioxin/furan emissions instead of sampling and testing using EPA Method 23 at 40 CFR part 60, appendix A–7 must install, calibrate, maintain, and operate a continuous automated sampling system and must comply with the requirements specified in § 60.58b(p) and (q). A facility may substitute continuous dioxin/furan monitoring for the minimum sorbent flow rate, if activated carbon sorbent E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations injection is used solely for compliance with the dioxin/furan emission limit. (j) To demonstrate continuous compliance with the mercury emissions limit, a facility may substitute use of a continuous automated sampling system for the mercury annual performance test. You must record the output of the system and analyze the sample at set intervals using any suitable determinative technique that can meet performance specification 12B. The owner or operator who elects to continuously sample mercury emissions instead of sampling and testing using EPA Reference Method 29 or 30B at 40 CFR part 60, appendix A–8 of this part, ASTM D6784–02 (Reapproved 2008) (incorporated by reference, see § 60.17), or an approved alternative method for measuring mercury emissions, must install, calibrate, maintain, and operate a continuous automated sampling system and must comply with performance specification 12A and quality assurance procedure 5, as well as the requirements specified in § 60.58b(p) and (q). A facility may substitute continuous mercury monitoring for the minimum sorbent flow rate, if activated carbon sorbent injection is used solely for compliance with the mercury emission limit. (k) To demonstrate continuous compliance with the nitrogen oxides emissions limit, a facility may substitute use of a CEMS for the nitrogen oxides annual performance test to demonstrate compliance with the nitrogen oxides emissions limits and monitoring the charge rate, secondary chamber temperature, and reagent flow for selective noncatalytic reduction, if applicable. (1) Install, calibrate, maintain, and operate a CEMS for measuring nitrogen oxides emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 2 of appendix B of this part, the quality assurance procedure one of appendix F of this part and the procedures under § 60.13 must be followed for installation, evaluation, and operation of the CEMS. (2) Following the date that the initial performance test for nitrogen oxides is completed or is required to be completed under § 60.2125, compliance with the emission limit for nitrogen oxides required under § 60.52b(d) must be determined based on the 30-day rolling average of the hourly emission concentrations using CEMS outlet data. The 1-hour arithmetic averages must be expressed in parts per million by volume corrected to 7 percent oxygen (dry basis) and used to calculate the 30day rolling average concentrations. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under § 60.13(e)(2). (l) * * * (1) Install, calibrate, maintain, and operate a CEMS for measuring sulfur dioxide emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 2 of appendix B of this part, the quality assurance requirements of procedure one of appendix F of this part and procedures under § 60.13 must be followed for installation, evaluation, and operation of the CEMS. (2) Following the date that the initial performance test for sulfur dioxide is completed or is required to be completed under § 60.2125, compliance with the sulfur dioxide emission limit may be determined based on the 30-day rolling average of the hourly arithmetic average emission concentrations using CEMS outlet data. The 1-hour arithmetic averages must be expressed in parts per million corrected to 7 percent oxygen (dry basis) and used to calculate the 30day rolling average emission concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under § 60.13(e)(2). (m) For energy recovery units over 10 MMBtu/hr but less than 250 MMBtu/hr annual average heat input rates that do not use a wet scrubber, fabric filter with bag leak detection system, or particulate matter CEMS, you must install, operate, certify, and maintain a continuous opacity monitoring system according to the procedures in paragraphs (m)(1) through (5) of this section by the compliance date specified in § 60.2105. Energy recovery units that use a CEMS to demonstrate initial and continuing compliance according to the procedures in § 60.2165(n) are not required to install a continuous opacity monitoring system and must perform the annual performance tests for the opacity consistent with § 60.2145(f). * * * * * (n) For coal and liquid/gas energy recovery units, incinerators, and small remote incinerators, an owner or operator may elect to install, calibrate, maintain, and operate a CEMS for monitoring particulate matter emissions discharged to the atmosphere and record the output of the system. The PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 9185 owner or operator of an affected facility who continuously monitors particulate matter emissions instead of conducting performance testing using EPA Method 5 at 40 CFR part 60, appendix A–3 or, as applicable, monitor with a particulate matter CPMS according to paragraph (r) of this section, must install, calibrate, maintain, and operate a CEMS and must comply with the requirements specified in paragraphs (n)(1) through (13) of this section. * * * * * (6) The owner or operator of an affected facility must conduct an initial performance test for particulate matter emissions as required under § 60.2125. Compliance with the particulate matter emission limit, if PM CEMS are elected for demonstrating compliance, must be determined by using the CEMS specified in this paragraph (n) to measure particulate matter. You must calculate a 30-day rolling average of 1hour arithmetic average emission concentrations, including CEMS data during startup and shutdown, as defined in this subpart, using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7. (7) Compliance with the particulate matter emission limit must be determined based on the 30-day rolling average calculated using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7 from the 1-hour arithmetic average CEMS outlet data. * * * * * (9) The 1-hour arithmetic averages required under paragraph (n)(7) of this section must be expressed in milligrams per dry standard cubic meter corrected to 7 percent oxygen (dry basis) and must be used to calculate the 30-day rolling average emission concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under § 60.13(e)(2). (10) All valid CEMS data must be used in calculating average emission concentrations even if the minimum CEMS data requirements of paragraph (n)(8) of this section are not met. (11) The CEMS must be operated according to performance specification 11 in appendix B of this part. (12) During each relative accuracy test run of the CEMS required by performance specification 11 in appendix B of this part, particulate matter and oxygen (or carbon dioxide) data must be collected concurrently (or E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9186 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations within a 30- to 60-minute period) by both the CEMS and the following test methods. * * * * * (ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B, as applicable, must be used. * * * * * (o) * * * (1) Install, calibrate, maintain, and operate a CEMS for measuring carbon monoxide emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 4B of appendix B of this part, the quality assurance procedure 1 of appendix F of this part and the procedures under § 60.13 must be followed for installation, evaluation, and operation of the CEMS. (2) Following the date that the initial performance test for carbon monoxide is completed or is required to be completed under § 60.2140, compliance with the carbon monoxide emission limit may be determined based on the 30-day rolling average of the hourly arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, using CEMS outlet data. Except for CEMS data during startup and shutdown, as defined in this subpart, the 1-hour arithmetic averages must be expressed in parts per million corrected to 7 percent oxygen (dry basis) and used to calculate the 30-day rolling average emission concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under § 60.13(e)(2). * * * * * (q) For energy recovery units with a design heat input capacity of 100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, you must install, operate, and maintain a oxygen analyzer system as defined in § 60.2265 according to the procedures in paragraphs (q)(1) through (4) of this section. (1) The oxygen analyzer system must be installed by the initial performance test date specified in § 60.2675. (2) You must operate the oxygen trim system within compliance with paragraph (q)(3) of this section at all times. (3) You must maintain the oxygen level such that the 30-day rolling average that is established as the operating limit for oxygen according to paragraph (q)(4) or this section is not VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 below the lowest hourly average oxygen concentration measured during the most recent CO performance test. (4) You must calculate and record a 30-day rolling average oxygen concentration using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 of Appendix A–7 of this part. (r) For energy recovery units with annual average heat input rates greater than or equal to 250 MMBtu/hour and waste-burning kilns, you must install, calibrate, maintain, and operate a PM CPMS and record the output of the system as specified in paragraphs (r)(1) through (8) of this section. If you elect to use a particulate matter CEMS as specified in paragraph (n) of this section, you are not required to use a PM CPMS to monitor particulate matter emissions. For other energy recovery units, you may elect to use PM CPMS operated in accordance with this section. PM CPMS are suitable in lieu of using other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure). (1) Install, calibrate, operate, and maintain your PM CPMS according to the procedures in your approved sitespecific monitoring plan developed in accordance with § 60.2145(l) and (r)(1)(i) through (iii) of this section. (i) The operating principle of the PM CPMS must be based on in-stack or extractive light scatter, light scintillation, beta attenuation, or mass accumulation detection of PM in the exhaust gas or representative sample. The reportable measurement output from the PM CPMS must be expressed as milliamps. (ii) The PM CPMS must have a cycle time (i.e., period required to complete sampling, measurement, and reporting for each measurement) no longer than 60 minutes. (iii) The PM CPMS must be capable of detecting and responding to particulate matter concentrations of no greater than 0.5 mg/actual cubic meter. (2) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, you must adjust the sitespecific operating limit in accordance with the results of the performance test according to the procedures specified in § 60.2110. (3) Collect PM CPMS hourly average output data for all energy recovery unit or waste-burning kiln operating hours. Express the PM CPMS output as milliamps. (4) Calculate the arithmetic 30-day rolling average of all of the hourly average PM CPMS output collected during all energy recovery unit or waste- PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 burning kiln operating hours data (milliamps). (5) You must collect data using the PM CPMS at all times the energy recovery unit or waste-burning kiln is operating and at the intervals specified in paragraph (r)(1)(ii) of this section, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments), and any scheduled maintenance as defined in your sitespecific monitoring plan. (6) You must use all the data collected during all energy recovery unit or wasteburning kiln operating hours in assessing the compliance with your operating limit except: (i) Any data collected during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or quality control activities conducted during monitoring system malfunctions are not used in calculations (report any such periods in your annual deviation report); (ii) Any data collected during periods when the monitoring system is out of control as specified in your site-specific monitoring plan, repairs associated with periods when the monitoring system is out of control, or required monitoring system quality assurance or quality control activities conducted during outof-control periods are not used in calculations (report emissions or operating levels and report any such periods in your annual deviation report); (iii) Any PM CPMS data recorded during periods of CEMS data during startup and shutdown, as defined in this subpart. (7) You must record and make available upon request results of PM CPMS system performance audits, as well as the dates and duration of periods from when the PM CPMS is out of control until completion of the corrective actions necessary to return the PM CPMS to operation consistent with your site-specific monitoring plan. (8) For any deviation of the 30-day rolling average PM CPMS average value from the established operating parameter limit, you must: (i) Within 48 hours of the deviation, visually inspect the air pollution control device; (ii) If inspection of the air pollution control device identifies the cause of the deviation, take corrective action as soon as possible and return the PM CPMS E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations measurement to within the established value; and (iii) Within 30 days of the deviation or at the time of the annual compliance test, whichever comes first, conduct a PM emissions compliance test to determine compliance with the PM emissions limit and to verify. Within 45 days of the deviation, you must reestablish the CPMS operating limit. You are not required to conduct additional testing for any deviations that occur between the time of the original deviation and the PM emissions compliance test required under this paragraph. (iv) PM CPMS deviations leading to more than four required performance tests in a 12-month process operating period (rolling monthly) constitute a violation of this subpart. (s) If you use a dry scrubber to comply with the emission limits of this subpart, you must monitor the injection rate of each sorbent and maintain the 3-hour block averages at or above the operating limits established during the hydrogen chloride performance test. ■ 16. Section 60.2170 is amended by revising paragraph (b) to read as follows: § 60.2170 Is there a minimum amount of monitoring data I must obtain? * * * * * (b) You may not use data recorded during monitoring system malfunctions or out-of-control periods, repairs associated with monitoring system malfunctions or out-of-control periods, or required monitoring system quality assurance or control activities in calculations used to report emissions or operating levels. You must use all the data collected during all other periods in assessing the operation of the control device and associated control system. * * * * * ■ 17. Section 60.2175 is amended by: ■ a. Revising the introductory text. ■ b. Revising paragraph (b)(5). ■ c. Revising paragraph (e). ■ d. Revising paragraph (p)(4). ■ e. Adding paragraphs (p)(8) and (p)(9). ■ f. Revising paragraphs (v) and (w). ■ g. Adding paragraph (x). The revisions and additions read as follows: mstockstill on DSK4VPTVN1PROD with RULES2 § 60.2175 What records must I keep? You must maintain the items (as applicable) as specified in paragraphs (a), (b), and (e) through (x) of this section for a period of at least 5 years: * * * * * (b) * * * (5) For affected CISWI units that establish operating limits for controls other than wet scrubbers under § 60.2110(d) through (g) or § 60.2115, VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 you must maintain data collected for all operating parameters used to determine compliance with the operating limits. For energy recovery units using activated carbon injection or a dry scrubber, you must also maintain records of the load fraction and corresponding sorbent injection rate records. * * * * * (e) Identification of calendar dates and times for which data show a deviation from the operating limits in table 2 of this subpart or a deviation from other operating limits established under § 60.2110(d) through (g) or § 60.2115 with a description of the deviations, reasons for such deviations, and a description of corrective actions taken. * * * * * (p) * * * (4) All 1-hour average concentrations of carbon monoxide emissions. You must indicate which data are CEMS data during startup and shutdown. * * * * * (8) All 1-hour average percent oxygen concentrations. (9) All 1-hour average PM CPMS readings or particulate matter CEMS outputs. * * * * * (v) For operating units that combust non-hazardous secondary materials that have been determined not to be solid waste pursuant to § 241.3(b)(1) of this chapter, you must keep a record which documents how the secondary material meets each of the legitimacy criteria under § 241.3(d)(1). If you combust a fuel that has been processed from a discarded non-hazardous secondary material pursuant to § 241.3(b)(4) of this chapter, you must keep records as to how the operations that produced the fuel satisfies the definition of processing in § 241.2 and each of the legitimacy criteria of § 241.3(d)(1) of this chapter. If the fuel received a non-waste determination pursuant to the petition process submitted under § 241.3(c) of this chapter, you must keep a record that documents how the fuel satisfies the requirements of the petition process. For operating units that combust nonhazardous secondary materials as fuel per § 241.4, you must keep records documenting that the material is a listed non-waste under § 241.4(a). (w) Records of the criteria used to establish that the unit qualifies as a small power production facility under section 3(17)(C) of the Federal Power Act (16 U.S.C. 796(17)(C)) and that the waste material the unit is proposed to burn is homogeneous. PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 9187 (x) Records of the criteria used to establish that the unit qualifies as a cogeneration facility under section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)) and that the waste material the unit is proposed to burn is homogeneous. ■ 18. Section 60.2210 is amended by revising paragraph (m) introductory text and paragraph (n) to read as follows: § 60.2210 What information must I include in my annual report? * * * * * (m) If there were periods during which the continuous monitoring system, including the CEMS, was out of control as specified in paragraph (o) of this section, the annual report must contain the following information for each deviation from an emission or operating limitation occurring for a CISWI unit for which you are using a continuous monitoring system to comply with the emission and operating limitations in this subpart. * * * * * (n) If there were periods during which the continuous monitoring system, including the CEMS, was not out of control as specified in paragraph (o) of this section, a statement that there were not periods during which the continuous monitoring system was out of control during the reporting period. * * * * * ■ 19. Section 60.2235 is revised to read as follows: § 60.2235 reports? In what form can I submit my (a) Submit initial, annual, and deviation reports electronically or in paper format, postmarked on or before the submittal due dates. (b) Submit results of performance tests and CEMS performance evaluation tests as follows. (1) Within 60 days after the date of completing each performance test as required by this subpart, you must submit the results of the performance tests required by this subpart to EPA’s WebFIRE database by using the Compliance and Emissions Data Reporting Interface (CEDRI) that is accessed through EPA’s Central Data Exchange (CDX)(www.epa.gov/cdx). Performance test data must be submitted in the file format generated through use of EPA’s Electronic Reporting Tool (ERT) (see https://www.epa.gov/ttn/chief/ ert/). Only data collected using test methods on the ERT Web site are subject to this requirement for submitting reports electronically to WebFIRE. Owners or operators who claim that some of the information being E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9188 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations submitted for performance tests is confidential business information (CBI) must submit a complete ERT file including information claimed to be CBI on a compact disk, flash drive, or other commonly used electronic storage media to EPA. The electronic media must be clearly marked as CBI and mailed to U.S. EPA/OAPQS/CORE CBI Office, Attention: WebFIRE Administrator, MD C404–02, 4930 Old Page Rd., Durham, NC 27703. The same ERT file with the CBI omitted must be submitted to EPA via CDX as described earlier in this paragraph. At the discretion of the delegated authority, you must also submit these reports, including the confidential business information, to the delegated authority in the format specified by the delegated authority. For any performance test conducted using test methods that are not listed on the ERT Web site, the owner or operator shall submit the results of the performance test in paper submissions to the Administrator. (2) Within 60 days after the date of completing each CEMS performance evaluation test, as defined in this subpart and required by this subpart, you must submit the relative accuracy test audit (RATA) data electronically into EPA’s Central Data Exchange by using CEDRI as mentioned in paragraph (b)(1) of this section. Only RATA pollutants that can be documented with the ERT (as listed on the ERT Web site) are subject to this requirement. For any performance evaluations with no corresponding RATA pollutants listed on the ERT Web site, the owner or operator shall submit the results of the performance evaluation in paper submissions to the Administrator. ■ 20. Section 60.2265 is amended by: ■ a. Adding in alphabetical order definitions for ‘‘30-day rolling average,’’ ‘‘Annual heat input,’’ ‘‘Average annual heat input rate,’’ ‘‘CEMS data during startup and shutdown,’’ ‘‘Contained gaseous material,’’ ‘‘Continuous emission monitoring system,’’ ‘‘Dry scrubber,’’ ‘‘Foundry sand thermal reclamation unit,’’ ‘‘Load fraction,’’ ‘‘Municipal solid waste or municipal type solid waste,’’ ‘‘Oxygen analyzer system,’’ ‘‘Oxygen trim system,’’ ‘‘Responsible official,’’ and ‘‘Solid waste.’’ ■ b. Revising definitions for ‘‘Chemical recovery unit,’’ ‘‘Commercial and industrial solid waste incineration (CISWI) unit,’’ ‘‘Continuous monitoring system (CMS),’’ ‘‘Cyclonic burn barrel,’’ ‘‘Energy recovery unit,’’ ‘‘Energy recovery unit designed to burn biomass (Biomass),’’ ‘‘Incinerator,’’ ‘‘Modification or modified CISWI unit,’’ VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 ‘‘Process change,’’ ‘‘Raw mill,’’ ‘‘Small, remote incinerator,’’ ‘‘Soil treatment unit,’’ ‘‘Solid waste incineration unit,’’ ‘‘Space heater,’’ and ‘‘Waste-burning kiln.’’ ■ c. Removing the definition for ‘‘Homogeneous wastes’’ and ‘‘Cyclonic barrel burner.’’ The revisions and additions read as follows: § 60.2265 What definitions must I know? * * * * * 30-day rolling average means the arithmetic mean of the previous 720 hours of valid operating data. Valid data excludes periods when this unit is not operating. The 720 hours should be consecutive, but not necessarily continuous if operations are intermittent. * * * * * Annual heat input means the heat input for the 12 months preceding the compliance demonstration. * * * * * Average annual heat input rate means annual heat input divided by the hours of operation for the 12 months preceding the compliance demonstration. * * * * * CEMS data during startup and shutdown means the following: (1) For incinerators, small remote incinerators, and energy recovery units: CEMS data collected during the first hours of a CISWI unit startup from a cold start until waste is fed to the unit and the hours of operation following the cessation of waste material being fed to the CISWI unit during a unit shutdown. For each startup event, the length of time that CEMS data may be claimed as being CEMS data during startup must be 48 operating hours or less. For each shutdown event, the length of time that CEMS data may be claimed as being CEMS data during shutdown must be 24 operating hours or less. (2) For waste-burning kilns: CEMS data collected during the periods of kiln operation that do not include normal operations. Startup begins when the kiln’s induced fan is turned on and continues until continuous feed is introduced into the kiln, at which time the kiln is in normal operating mode. Shutdown begins when feed to the kiln is halted. Chemical recovery unit means combustion units burning materials to recover chemical constituents or to produce chemical compounds where there is an existing commercial market for such recovered chemical constituents or compounds. The following seven types of units are considered chemical recovery units: PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 (1) Units burning only pulping liquors (i.e., black liquor) that are reclaimed in a pulping liquor recovery process and reused in the pulping process. (2) Units burning only spent sulfuric acid used to produce virgin sulfuric acid. (3) Units burning only wood or coal feedstock for the production of charcoal. (4) Units burning only manufacturing byproduct streams/residue containing catalyst metals that are reclaimed and reused as catalysts or used to produce commercial grade catalysts. (5) Units burning only coke to produce purified carbon monoxide that is used as an intermediate in the production of other chemical compounds. (6) Units burning only hydrocarbon liquids or solids to produce hydrogen, carbon monoxide, synthesis gas, or other gases for use in other manufacturing processes. (7) Units burning only photographic film to recover silver. * * * * * Commercial and industrial solid waste incineration (CISWI) unit means any distinct operating unit of any commercial or industrial facility that combusts, or has combusted in the preceding 6 months, any solid waste as that term is defined in 40 CFR part 241. If the operating unit burns materials other than traditional fuels as defined in § 241.2 that have been discarded, and you do not keep and produce records as required by § 60.2175(v), the operating unit is a CISWI unit. While not all CISWI units will include all of the following components, a CISWI unit includes, but is not limited to, the solid waste feed system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The CISWI unit does not include air pollution control equipment or the stack. The CISWI unit boundary starts at the solid waste hopper (if applicable) and extends through two areas: The combustion unit flue gas system, which ends immediately after the last combustion chamber or after the waste heat recovery equipment, if any; and the combustion unit bottom ash system, which ends at the truck loading station or similar equipment that transfers the ash to final disposal. The CISWI unit includes all ash handling systems connected to the bottom ash handling system. Contained gaseous material means gases that are in a container when that container is combusted. Continuous emission monitoring system (CEMS) means the total equipment that may be required to meet E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations the data acquisition and availability requirements of this subpart, used to sample, condition (if applicable), analyze, and provide a record of emissions. Continuous monitoring system (CMS) means the total equipment, required under the emission monitoring sections in applicable subparts, used to sample and condition (if applicable), to analyze, and to provide a permanent record of emissions or process parameters. A particulate matter continuous parameter monitoring system (PM CPMS) is a type of CMS. Cyclonic burn barrel means a combustion device for waste materials that is attached to a 55 gallon, openhead drum. The device consists of a lid, which fits onto and encloses the drum, and a blower that forces combustion air into the drum in a cyclonic manner to enhance the mixing of waste material and air. A cyclonic burn barrel is not an incinerator, a waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. * * * * * Dry scrubber means an add-on air pollution control system that injects dry alkaline sorbent (dry injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gas in the exhaust stream forming a dry powder material. Sorbent injection systems in fluidized bed boilers and process heaters are included in this definition. A dry scrubber is a dry control system. * * * * * Energy recovery unit means a combustion unit combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241) for energy recovery. Energy recovery units include units that would be considered boilers and process heaters if they did not combust solid waste. Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that burns solid waste, biomass, and non-coal solid materials but less than 10 percent coal, on a heat input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuels. * * * * * Foundry sand thermal reclamation unit means a type of part reclamation unit that removes coatings that are on foundry sand. A foundry sand thermal reclamation unit is not an incinerator, a waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. Incinerator means any furnace used in the process of combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241) for VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 the purpose of reducing the volume of the waste by removing combustible matter. Incinerator designs include single chamber and two-chamber. * * * * * Load fraction means the actual heat input of an energy recovery unit divided by heat input during the performance test that established the minimum sorbent injection rate or minimum activated carbon injection rate, expressed as a fraction (e.g., for 50 percent load the load fraction is 0.5). * * * * * Modification or modified CISWI unit means a CISWI unit that has been changed later than August 7, 2013 and that meets one of two criteria: (1) The cumulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building and installing the CISWI unit (not including the cost of land) updated to current costs (current dollars). To determine what systems are within the boundary of the CISWI unit used to calculate these costs, see the definition of CISWI unit. (2) Any physical change in the CISWI unit or change in the method of operating it that increases the amount of any air pollutant emitted for which section 129 or section 111 of the Clean Air Act has established standards. Municipal solid waste or municipaltype solid waste means household, commercial/retail, or institutional waste. Household waste includes material discarded by residential dwellings, hotels, motels, and other similar permanent or temporary housing. Commercial/retail waste includes material discarded by stores, offices, restaurants, warehouses, nonmanufacturing activities at industrial facilities, and other similar establishments or facilities. Institutional waste includes materials discarded by schools, by hospitals (nonmedical), by nonmanufacturing activities at prisons and government facilities, and other similar establishments or facilities. Household, commercial/retail, and institutional waste does include yard waste and refuse-derived fuel. Household, commercial/retail, and institutional waste does not include used oil; sewage sludge; wood pallets; construction, renovation, and demolition wastes (which include railroad ties and telephone poles); clean wood; industrial process or manufacturing wastes; medical waste; or motor vehicles (including motor vehicle parts or vehicle fluff). * * * * * Oxygen analyzer system means all equipment required to determine the PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 9189 oxygen content of a gas stream and used to monitor oxygen in the boiler or process heater flue gas, boiler or process heater, firebox, or other appropriate location. This definition includes oxygen trim systems and certified oxygen CEMS. The source owner or operator is responsible to install, calibrate, maintain, and operate the oxygen analyzer system in accordance with the manufacturer’s recommendations. Oxygen trim system means a system of monitors that is used to maintain excess air at the desired level in a combustion device. A typical system consists of a flue gas oxygen and/or carbon monoxide monitor that automatically provides a feedback signal to the combustion air controller. * * * * * Process change means any of the following physical or operational changes: (1) A physical change (maintenance activities excluded) to the CISWI unit which may increase the emission rate of any air pollutant to which a standard applies; (2) An operational change to the CISWI unit where a new type of nonhazardous secondary material is being combusted; (3) A physical change (maintenance activities excluded) to the air pollution control devices used to comply with the emission limits for the CISWI unit (e.g., replacing an electrostatic precipitator with a fabric filter); (4) An operational change to the air pollution control devices used to comply with the emission limits for the affected CISWI unit (e.g., change in the sorbent injection rate used for activated carbon injection). * * * * * Raw mill means a ball or tube mill, vertical roller mill or other size reduction equipment, that is not part of an in-line kiln/raw mill, used to grind feed to the appropriate size. Moisture may be added or removed from the feed during the grinding operation. If the raw mill is used to remove moisture from feed materials, it is also, by definition, a raw material dryer. The raw mill also includes the air separator associated with the raw mill. * * * * * Responsible official means one of the following: (1) For a corporation: A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized E:\FR\FM\07FER2.SGM 07FER2 9190 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either: (i) The facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or (ii) The delegation of authority to such representatives is approved in advance by the permitting authority; (2) For a partnership or sole proprietorship: A general partner or the proprietor, respectively; (3) For a municipality, State, Federal, or other public agency: Either a principal executive officer or ranking elected official. For the purposes of this part, a principal executive officer of a Federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a Regional Administrator of EPA); or (4) For affected facilities: (i) The designated representative in so far as actions, standards, requirements, or prohibitions under Title IV of the Clean Air Act or the regulations promulgated thereunder are concerned; or (ii) The designated representative for any other purposes under part 60. * * * * * Small, remote incinerator means an incinerator that combusts solid waste (as that term is defined by the Administrator in 40 CFR part 241) and combusts 3 tons per day or less solid waste and is more than 25 miles driving distance to the nearest municipal solid waste landfill. Soil treatment unit means a unit that thermally treats petroleum– contaminated soils for the sole purpose of site remediation. A soil treatment unit may be direct-fired or indirect fired. A soil treatment unit is not an incinerator, a waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. Solid waste means the term solid waste as defined in 40 CFR 241.2. Solid waste incineration unit means a distinct operating unit of any facility which combusts any solid waste (as that term is defined by the Administrator in 40 CFR part 241) material from commercial or industrial establishments or the general public (including single and multiple residences, hotels and motels). Such term does not include incinerators or other units required to have a permit under section 3005 of the Solid Waste Disposal Act. The term ‘‘solid waste incineration unit’’ does not include: (1) Materials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose of recovering metals; (2) Qualifying small power production facilities, as defined in section 3(17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying cogeneration facilities, as defined in section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous waste (such as units which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes; or (3) Air curtain incinerators provided that such incinerators only burn wood wastes, yard wastes, and clean lumber and that such air curtain incinerators comply with opacity limitations to be established by the Administrator by rule. Space heater means a unit that meets the requirements of 40 CFR 279.23. A space heater is not an incinerator, a waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. * * * * * Waste-burning kiln means a kiln that is heated, in whole or in part, by combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241). Secondary materials used in Portland cement kilns shall not be deemed to be combusted unless they are introduced into the flame zone in the hot end of the kiln or mixed with the precalciner fuel. * * * * * ■ 21. Table 1 to subpart CCCC of part 60 is amended by: ■ a. Revising the table heading. ■ b. Revising the entry for ‘‘Carbon monoxide’’. ■ c. Revising the entry for ‘‘Dioxin/ Furan (toxic equivalency basis)’’. ■ d. Revising the entry for ‘‘Hydrogen Chloride’’. ■ e. Revising the entry for ‘‘Nitrogen Oxides’’. ■ f. Revising the entry for ‘‘Sulfur Dioxide’’. The revisions read as follows: TABLE 1 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR CISWI UNITS FOR WHICH CONSTRUCTION IS COMMENCED AFTER NOVEMBER 30, 1999, BUT NO LATER THAN JUNE 4, 2010, OR FOR WHICH MODIFICATION OR RECONSTRUCTION IS COMMENCED ON OR AFTER JUNE 1, 2001, BUT NO LATER THAN AUGUST 7, 2013 You must meet this emission limitation a * Carbon monoxide .... * * 157 parts per million by dry volume. Dioxin/Furan (toxic equivalency basis). 0.41 nanograms per dry standard cubic meter. Hydrogen chloride ... mstockstill on DSK4VPTVN1PROD with RULES2 For the air pollutant 62 parts per million by dry volume. * Nitrogen Oxides ....... * * 388 parts per million by dry volume. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 PO 00000 And determining compliance using this method Using this averaging time * * * * 3-run average (1 hour minimum sample time per run) ....... Performance test (Method 10 at 40 CFR part 60, appendix A–4). 3-run average (collect a minimum volume of 4 dry stand- Performance test (Method 23 ard cubic meters per run). of appendix A–7 of this part). 3-run average (For Method 26, collect a minimum volume Performance test (Method 26 of 120 liters per run. For Method 26A, collect a minor 26A at 40 CFR part 60, imum volume of 1 dry standard cubic meter per run). appendix A–8). * * * * 3-run average (for Method 7E, 1 hour minimum sample Performance test (Method 7 time per run). or 7E at 40 CFR part 60, appendix A–4). Frm 00080 Fmt 4701 Sfmt 4700 E:\FR\FM\07FER2.SGM 07FER2 9191 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations TABLE 1 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR CISWI UNITS FOR WHICH CONSTRUCTION IS COMMENCED AFTER NOVEMBER 30, 1999, BUT NO LATER THAN JUNE 4, 2010, OR FOR WHICH MODIFICATION OR RECONSTRUCTION IS COMMENCED ON OR AFTER JUNE 1, 2001, BUT NO LATER THAN AUGUST 7, 2013—Continued For the air pollutant You must meet this emission limitation a * Sulfur Dioxide .......... * * 20 parts per million by dry volume. a All And determining compliance using this method Using this averaging time * * * * 3-run average (For Method 6, collect a minimum volume Performance test (Method 6 of 20 liters per run. For Method 6C, collect sample for a or 6C at 40 CFR part 60, minimum duration of 1 hour per run). appendix A–4). emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. by reference, see § 60.17. b Incorporated * * * * * 22. Table 2 to subpart CCCC of part 60 is amended by revising footnote a to read as follows: Table 2 to Subpart CCCC of Part 60— Operating Limits for Wet Scrubbers * * * * * ■ a Calculated each hour as the average of the previous 3 operating hours. 23. Table 5 to subpart CCCC of part 60 is amended by: ■ a. Revising the table heading. ■ b. Revising the entry for ‘‘Carbon Monoxide’’. ■ c. Revising the entry for ‘‘Dioxin/furan (Total Mass Basis)’’. ■ d. Revising the entry for ‘‘Hydrogen chloride’’. ■ e. Revising the entry for ‘‘Lead’’. f. Revising the entry for ‘‘Mercury’’. g. Revising the entry for ‘‘Nitrogen Oxides’’. ■ h. Revising the entry for ‘‘Sulfur dioxide’’. ■ i. Adding footnote c. The revisions and addition read as follows: ■ ■ ■ TABLE 5 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR INCINERATORS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013 For the air pollutant You must meet this emission limitation a * Carbon monoxide .... * * 17 parts per million by dry volume. Dioxin/furan (Total Mass Basis). 0.58 nanograms per dry standard cubic meter c. * Hydrogen chloride ... * * 0.091 parts per million by dry volume. Lead ......................... 0.015 milligrams per dry standard cubic meter c. Mercury .................... 0.00084 milligrams per dry standard cubic meter c. Nitrogen Oxides ....... 23 parts per million dry volume. * Sulfur dioxide ........... * * 11 parts per million dry volume. mstockstill on DSK4VPTVN1PROD with RULES2 * * And determining compliance using this method Using this averaging time * * * * 3-run average (1 hour minimum sample time per run) ....... Performance test (Method 10 at 40 CFR part 60, appendix A–4). 3-run average (collect a minimum volume of 4 dry stand- Performance test (Method 23 ard cubic meters per run). at 40 CFR part 60, appendix A–7). * * * * 3-run average (For Method 26, collect a minimum volume Performance test (Method 26 of 360 liters per run. For Method 26A, collect a minor 26A at 40 CFR part 60, imum volume of 3 dry standard cubic meters per run). appendix A–8). 3-run average (collect a minimum volume of 4 dry stand- Performance test (Method 29 ard cubic meters per run). of appendix A–8 at 40 CFR part 60). Use ICPMS for the analytical finish. 3-run average (collect enough volume to meet a detection Performance test (Method 29 limit data quality objective of 0.03 ug/dry standard cubic or 30B at 40 CFR part 60, meter). appendix A–8) or ASTM D6784–02 (Reapproved 2008).b 3-run average (for Method 7E, 1 hour minimum sample Performance test (Method 7 time per run). or 7E at 40 CFR part 60, appendix A–4). * * * * 3-run average (1 hour minimum sample time per run) ....... Performance test (Method 6 or 6C at 40 CFR part 60, appendix A–4). * * * * a All * emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2155 if all of the other provisions of § 60.2155 are met. For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing. VerDate Mar<15>2010 20:23 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 E:\FR\FM\07FER2.SGM 07FER2 9192 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 24. Table 6 to subpart CCCC of part 60 is amended by: ■ a. Revising the table heading. ■ b. Revising the entry for ‘‘Cadmium’’. ■ c. Revising the entry for ‘‘Carbon monoxide’’. ■ d. Revising the entry for ‘‘Dioxins/ furans (Total Mass Basis)’’. ■ e. Revising the entry for ‘‘Dioxins/ furans (toxic equivalency basis)’’. ■ f. Revising the entry for ‘‘Hydrogen chloride’’. ■ g. Revising the entry for ‘‘Lead’’. ■ h. Revising the entry for ‘‘Mercury’’. ■ i. Revising the entry for ‘‘Oxides of nitrogen’’. ■ j. Revising the entry for ‘‘Particulate matter (filterable)’’. ■ k. Revising the entry for ‘‘Sulfur dioxide’’. ■ l. Adding footnote c. The revisions and addition read as follows: ■ TABLE 6 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR ENERGY RECOVERY UNITS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013 You must meet this emission limitation a For the air pollutant Using this averaging time Solids Cadmium ................................... 0.023 milligrams per dry standard cubic meter. Carbon monoxide ...................... 35 parts per million dry volume. Dioxin/furans (Total Mass Basis) No Total Mass Basis limit, must meet the toxic equivalency basis limit below. Dioxins/furans (toxic equivalency basis). 0.093 nanograms per dry standard cubic meter. c Hydrogen chloride ..................... 14 parts per million dry volume. Lead ........................................... 0.096 milligrams per dry standard cubic meter. Mercury ...................................... mstockstill on DSK4VPTVN1PROD with RULES2 Liquid/Gas 0.00056 milligrams per dry standard cubic meter. c Oxides of nitrogen ..................... 76 parts per million dry volume. Biomass—0.0014 milligrams per dry standard cubic meter. c Coal—0.0095 milligrams per dry standard cubic meter. Biomass—240 parts per million dry volume. Coal—95 parts per million dry volume. Biomass—0.52 nanograms per dry standard cubic meter. c Coal—5.1 nanograms per dry standard cubic meter. c Biomass—0.076 nanograms per dry standard cubic meter. c Coal—0.075 nanograms per dry standard cubic meter. c Biomass—0.20 parts per million dry volume. Coal—13 parts per million dry volume. Biomass—0.014 milligrams per dry standard cubic meter. c Coal—0.14 milligrams per dry standard cubic meter. Biomass—0.0022 milligrams per dry standard cubic meter. Coal—0.016 milligrams per dry standard cubic meter. Biomass—290 parts per million dry volume. Coal—340 parts per million dry volume. VerDate Mar<15>2010 20:23 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00082 Fmt 4701 And determining compliance using this method 3-run average (collect a minimum volume of 4 dry standard cubic meters per run). Performance test (Method 29 at 40 CFR part 60, appendix A–8). Use ICPMS for the analytical finish. 3-run average (1 hour minimum sample time per run). Performance test (Method 10 at 40 CFR part 60, appendix A–4). 3-run average (collect a minimum volume of 4 dry standard cubic meters). Performance test (Method 23 at 40 CFR part 60, appendix A–7). 3-run average (collect a minimum volume of 4 dry standard cubic meters per run). Performance test (Method 23 of appendix A–7 of this part). 3-run average (For Method 26, collect a minimum volume of 360 liters per run. For Method 26A, collect a minimum volume of 3 dry standard cubic meters per run). 3-run average (collect a minimum volume of 4 dry standard cubic meters per run). Performance test (Method 26 or 26A at 40 CFR part 60, appendix A–8). Performance test (Method 29 at 40 CFR part 60, appendix A–8). Use ICPMS for the analytical finish. 3-run average (collect enough volume to meet an in-stack detection limit data quality objective of 0.03 ug/dscm). Performance test (Method 29 or 30B at 40 CFR part 60, appendix A–8) or ASTM D6784–02 (Reapproved 2008)b. 3-run average (for Method 7E, 1 hour minimum sample time per run). Performance test (Method 7 or 7E at 40 CFR part 60, appendix A– 4). Sfmt 4700 E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9193 TABLE 6 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR ENERGY RECOVERY UNITS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013—Continued You must meet this emission limitation a For the air pollutant And determining compliance using this method Using this averaging time Liquid/Gas Solids Particulate matter (filterable) ..... 110 milligrams per dry standard cubic meter. Biomass—5.1 milligrams per dry standard cubic meter. Coal—160 milligrams per dry standard cubic meter. Sulfur dioxide ............................. 720 parts per million dry volume. Biomass—7.3 parts 3-run average (for Method 6, collect a per million dry volminimum of 60 liters, for Method 6C,1 ume. hour minimum sample time per run). Coal—650 parts per million dry volume. 3-run average (collect a minimum volume of 1 dry standard cubic meter per run). Performance test (Method 5 or 29 at 40 CFR part 60, appendix A–3 or appendix A–8) if the unit has an annual average heat input rate less than 250 MMBtu/hr; or PM CPMS (as specified in § 60.2145(x)) if the unit has an annual average heat input rate equal to or greater than 250 MMBtu/hr. Performance test (Method 6 or 6C at 40 CFR part 60, appendix A– 4). a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2155 if all of the other provisions of § 60.2155 are met. For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing. 25. Table 7 to Subpart CCCC of part 60 is revised to read as follows: ■ TABLE 7 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR WASTE-BURNING KILNS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013 And determining compliance using this method For the air pollutant You must meet this emission limitation a Using this averaging time Cadmium ........................................ 0.0014 milligrams per dry standard cubic meter. b 3-run average (collect a minimum volume of 4 dry standard cubic meters per run). Carbon monoxide .......................... 90 (long kilns)/190 (preheater/ precalciner) parts per million dry volume. 0.51 nanograms per dry standard cubic meter. b 3-run average (1 hour minimum sample time per run). Dioxins/furans (total mass basis) ... 0.075 nanograms per dry standard cubic meter. b Hydrogen chloride .......................... mstockstill on DSK4VPTVN1PROD with RULES2 Dioxins/furans (toxic equivalency basis). 3.0 parts per million dry volume. b Lead ............................................... 0.014 milligrams per dry standard cubic meter. b VerDate Mar<15>2010 20:23 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00083 Fmt 4701 3-run average (collect a minimum volume of 4 dry standard cubic meters per run). 3-run average (collect a minimum volume of 4 dry standard cubic meters). 3-run average (1 hour minimum sample time per run) or 30-day rolling average if HCl CEMS are used. 3-run average (collect a minimum volume of 4 dry standard cubic meters). Sfmt 4700 E:\FR\FM\07FER2.SGM Performance test (Method 29 at 40 CFR part 60, appendix A–8). Use ICPMS for the analytical finish. Performance test (Method 10 at 40 CFR part 60, appendix A–4). Performance test (Method 23 at 40 CFR part 60, appendix A–7). Performance test (Method 23 at 40 CFR part 60, appendix A–7). Performance test (Method 321 at 40 CFR part 63, appendix A) or HCl CEMS if a wet scrubber or dry scrubber is not used. Performance test (Method 29 at 40 CFR part 60, appendix A–8). Use ICPMS for the analytical finish. 07FER2 9194 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations TABLE 7 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR WASTE-BURNING KILNS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013—Continued And determining compliance using this method For the air pollutant You must meet this emission limitation a Using this averaging time Mercury .......................................... 0.0037 milligrams per dry standard cubic meter. 30-day rolling average .................. Oxides of nitrogen ......................... 200 parts per million dry volume .. 30-day rolling average .................. Particulate matter (filterable) .......... 2.2 milligrams per dry standard cubic meter. 28 parts per million dry volume .... 30-day rolling average .................. Sulfur dioxide ................................. 30-day rolling average .................. Mercury CEMS or sorbent trap monitoring system (performance specification 12A or 12B, respectively, of appendix B of this part.) NOx CEMS (performance specification 2 of appendix B and procedure 1 of appendix F of this part). PM CPMS (as specified in § 60.2145(x)). Sulfur dioxide CEMS (performance specification 2 of appendix B and procedure 1 of appendix F of this part). a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit. b If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2155 if all of the other provisions of § 60.2155 are met. For all other pollutants that do not contain a footnote ‘‘b’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing. 26. Table 8 to Subpart CCCC of part 60 is revised to read as follows: ■ TABLE 8 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR SMALL, REMOTE INCINERATORS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013 And determining compliance using this method For the air pollutant You must meet this emission limitation a Using this averaging time Cadmium ....................................... 0.67 milligrams per dry standard cubic meter. Carbon monoxide .......................... 13 parts per million dry volume .... Dioxins/furans (total mass basis) .. 1,800 nanograms per dry standard cubic meter. b Dioxins/furans (toxic equivalency basis). 31 nanograms per dry standard cubic meter. b Fugitive ash ................................... Visible emissions for no more than 5 percent of the hourly observation period. 200 parts per million by dry volume. 3-run average (collect a minimum volume of 1 dry standard cubic meters per run). 3-run average (1 hour minimum sample time per run). 3-run average (collect a minimum volume of 1 dry standard cubic meters per run). 3-run average (collect a minimum volume of 1 dry standard cubic meters). Three 1-hour observation periods Hydrogen chloride ......................... mstockstill on DSK4VPTVN1PROD with RULES2 Lead .............................................. 2.0 milligrams per dry standard cubic meter. Mercury ......................................... 0.0035 milligrams per dry standard cubic meter. VerDate Mar<15>2010 20:23 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00084 Fmt 4701 3-run average (For Method 26, collect a minimum volume of 60 liters per run. For Method 26A, collect a minimum volume of 1 dry standard cubic meter per run). 3-run average (collect a minimum volume of 1 dry standard cubic meters). 3-run average (For Method 29 and ASTM D6784–02 (Reapproved 2008) b, collect a minimum volume of 2 dry standard cubic meters per run. For Method 30B, collect a minimum volume as specified in Method 30B at 40 CFR part 60, appendix A). Sfmt 4700 E:\FR\FM\07FER2.SGM Performance test (Method 29 at 40 CFR part 60, appendix A–8). Performance test 40 CFR part 60, Performance test 40 CFR part 60, (Method 10 at appendix A–4). (Method 23 at appendix A–7). Performance test (Method 23 at 40 CFR part 60, appendix A–7). Visible emissions test (Method 22 at 40 CFR part 60, appendix A– 7). Performance test (Method 26 or 26A at 40 CFR part 60, appendix A–8). Performance test (Method 29 at 40 CFR part 60, appendix A–8). Use ICPMS for the analytical finish. Performance test (Method 29 or 30B at 40 CFR part 60, appendix A–8) or ASTM D6784–02 (Reapproved 2008). b 07FER2 9195 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations TABLE 8 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR SMALL, REMOTE INCINERATORS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013—Continued For the air pollutant You must meet this emission limitation a Using this averaging time And determining compliance using this method Oxides of nitrogen ......................... 170 parts per million dry volume .. Particulate matter (filterable) ......... 270 milligrams per dry standard cubic meter. Sulfur dioxide ................................ 1.2 parts per million dry volume ... 3-run average (for Method 7E, 1 hour minimum sample time per run). 3-run average (collect a minimum volume of 1 dry standard cubic meters). 3-run average (1 hour minimum sample time per run). Performance test (Method 7 or 7E at 40 CFR part 60, appendix A– 4). Performance test (Method 5 or 29 at 40 CFR part 60, appendix A– 3 or appendix A–8). Performance test (Method 6 or 6c at 40 CFR part 60, appendix A– 4). * * * * * * * a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17. § 60.2525 What if my state plan is not approvable? Subpart DDDD—[Amended] ■ ■ ■ ■ 27. Section 60.2505 is amended by: a. Revising paragraph (a). b. Revising paragraph (c). c. Revising paragraph (d). The revisions read as follows: mstockstill on DSK4VPTVN1PROD with RULES2 § 60.2505 * Am I affected by this subpart? (a) If you are the Administrator of an air quality program in a state or United States protectorate with one or more existing CISWI units that meet the criteria in paragraphs (b) through (d) of this section, you must submit a state plan to U.S. Environmental Protection Agency (EPA) that implements the emission guidelines contained in this subpart. * * * * * (c) You must submit a state plan that meets the requirements of this subpart and contains the more stringent emission limit for the respective pollutant in table 6 of this subpart or table 1 of subpart CCCC of this part to EPA by February 7, 2014 for incinerators that commenced construction after November 30, 1999, but no later than June 4, 2010, or commenced modification or reconstruction after June 1, 2001 but no later than August 7, 2013. (d) You must submit a state plan to EPA that meets the requirements of this subpart and contains the emission limits in tables 7 through 9 of this subpart by February 7, 2014, for CISWI units other than incinerator units that commenced construction on or before June 4, 2010, or commenced modification or reconstruction after June 4, 2010 but no later than August 7, 2013. ■ 28. Section 60.2525 is amended by revising paragraph (b) to read as follows: VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 * * * * (b) If you do not submit an approvable state plan (or a negative declaration letter) to EPA that meets the requirements of this subpart and contains the emission limits in tables 6 through 9 of this subpart for CISWI units that commenced construction on or before June 4, 2010, then EPA will develop a federal plan according to § 60.27 to implement the emission guidelines contained in this subpart. Owners and operators of CISWI units not covered by an approved state plan must comply with the federal plan. The federal plan is an interim action and will be automatically withdrawn when your state plan is approved. * * * * * ■ 29. Section 60.2535 is amended by: ■ a. Revising paragraph (a) introductory text. ■ b. Revising paragraph (b) introductory text. ■ c. Revising paragraph (b)(1). The revisions read as follows: § 60.2535 What compliance schedule must I include in my state plan? (a) For CISWI units in the incinerator subcategory that commenced construction on or before November 30, 1999, your state plan must include compliance schedules that require CISWI units to achieve final compliance as expeditiously as practicable after approval of the state plan but not later than the earlier of the two dates specified in paragraphs (a)(1) and (2) of this section. * * * * * (b) For CISWI units in the incinerator subcategory that commenced construction after November 30, 1999, PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 but on or before June 4, 2010, and for CISWI units in the small remote incinerator, energy recovery unit, and waste-burning kiln subcategories that commenced construction before June 4, 2010, your state plan must include compliance schedules that require CISWI units to achieve final compliance as expeditiously as practicable after approval of the state plan but not later than the earlier of the two dates specified in paragraphs (b)(1) and (2) of this section. (1) February 7, 2018. * * * * * ■ 30. Section 60.2545 is amended by revising paragraph (c) to read as follows: § 60.2545 Does this subpart directly affect CISWI unit owners and operators in my state? * * * * * (c) If you do not submit an approvable plan to implement and enforce the guidelines contained in this subpart by February 7, 2014, for CISWI units that commenced construction on or before June 4, 2010, EPA will implement and enforce a federal plan, as provided in § 60.2525, to ensure that each unit within your state that commenced construction on or before June 4, 2010, reaches compliance with all the provisions of this subpart by February 7, 2018. ■ 31. Section 60.2550 is amended by revising paragraph (a)(1) to read as follows: § 60.2550 What CISWI units must I address in my state plan? (a) * * * (1) CISWI units in your state that commenced construction on or before June 4, 2010, or commenced modification or reconstruction after E:\FR\FM\07FER2.SGM 07FER2 9196 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations June 4, 2010 but no later than August 7, 2013. * * * * * ■ 32. Section 60.2555 is amended by: ■ a. Revising paragraph (c). ■ b. Revising paragraph (e)(3). ■ c. Adding paragraph (e)(4). ■ d. Revising paragraph (f)(3). ■ e. Adding paragraph (f)(4). ■ f. Revising paragraph (n). ■ g. Adding paragraph (o). The revisions and additions read as follows: § 60.2555 What combustion units are exempt from my state plan? mstockstill on DSK4VPTVN1PROD with RULES2 * * * * * (c) Municipal waste combustion units. Incineration units that are subject to subpart Ea of this part (Standards of Performance for Municipal Waste Combustors); subpart Eb of this part (Standards of Performance for Large Municipal Waste Combustors); subpart Cb of this part (Emission Guidelines and Compliance Time for Large Municipal Combustors); AAAA of this part (Standards of Performance for Small Municipal Waste Combustion Units); or subpart BBBB of this part (Emission Guidelines for Small Municipal Waste Combustion Units). * * * * * (e) * * * (3) You submit documentation to the Administrator notifying the Agency that the qualifying small power production facility is combusting homogenous waste. (4) You maintain the records specified in § 60.2740(v). (f) * * * (3) You submit documentation to the Administrator notifying the Agency that the qualifying cogeneration facility is combusting homogenous waste. (4) You maintain the records specified in § 60.2740(w). * * * * * (n) Sewage sludge incineration units. Incineration units combusting sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter that are subject to subpart LLLL of this part (Standards of Performance for Sewage Sludge Incineration Units) or subpart MMMM of this part (Emission Guidelines for Sewage Sludge Incineration Units). (o) Other solid waste incineration units. Incineration units that are subject to subpart EEEE of this part (Standards of Performance for Other Solid Waste Incineration Units) or subpart FFFF of this part (Emission Guidelines and Compliance Times for Other Solid Waste Incineration Units). VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 33. Section 60.2675 is amended by: a. Revising paragraph (a)(2). b. Revising paragraph (e). c. Revising paragraph (f). d. Redesignating paragraph (g) as paragraph (h). ■ e. Adding new paragraph (g). ■ f. Adding paragraph (i). The revisions and addition read as follows: ■ ■ ■ ■ ■ § 60.2675 What operating limits must I meet and by when? (a) * * * (2) Minimum pressure drop across the wet particulate matter scrubber, which is calculated as the lowest 1-hour average pressure drop across the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations; or minimum amperage to the wet scrubber, which is calculated as the lowest 1-hour average amperage to the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations. * * * * * (e) If you use activated carbon sorbent injection to comply with the emission limitations, you must measure the sorbent flow rate during the performance testing. The operating limit for the carbon sorbent injection is calculated as the lowest 1-hour average sorbent flow rate measured during the most recent performance test demonstrating compliance with the mercury emission limitations. For energy recovery units, when your unit operates at lower loads, multiply your sorbent injection rate by the load fraction, as defined in this subpart, to determine the required injection rate (e.g., for 50 percent load, multiply the injection rate operating limit by 0.5). (f) If you use selective noncatalytic reduction to comply with the emission limitations, you must measure the charge rate, the secondary chamber temperature (if applicable to your CISWI unit), and the reagent flow rate during the nitrogen oxides performance testing. The operating limits for the selective noncatalytic reduction are calculated as the highest 1-hour average charge rate, lowest secondary chamber temperature, and lowest reagent flow rate measured during the most recent performance test demonstrating compliance with the nitrogen oxides emission limitations. (g) If you use a dry scrubber to comply with the emission limitations, you must measure the injection rate of each sorbent during the performance testing. The operating limit for the injection rate of each sorbent is calculated as the lowest 1-hour average injection rate of PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 each sorbent measured during the most recent performance test demonstrating compliance with the hydrogen chloride emission limitations. For energy recovery units, when your unit operates at lower loads, multiply your sorbent injection rate by the load fraction, as defined in this subpart, to determine the required injection rate (e.g., for 50 percent load, multiply the injection rate operating limit by 0.5). (h) If you do not use a wet scrubber, electrostatic precipitator, or fabric filter to comply with the emission limitations, and if you do not determine compliance with your particulate matter emission limitation with a particulate matter CEMS, you must maintain opacity to less than or equal to ten percent opacity (1-hour block average). (i) If you use a PM CPMS to demonstrate compliance, you must establish your PM CPMS operating limit and determine compliance with it according to paragraphs (i)(1) through (5) of this section. (1) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, record all hourly average output values (milliamps) from the PM CPMS for the periods corresponding to the test runs (e.g., three 1-hour average PM CPMS output values for three 1hour test runs). (i) Your PM CPMS must provide a 4– 20 milliamp output and the establishment of its relationship to manual reference method measurements must be determined in units of milliamps. (ii) Your PM CPMS operating range must be capable of reading PM concentrations from zero to a level equivalent to at least two times your allowable emission limit. If your PM CPMS is an auto-ranging instrument capable of multiple scales, the primary range of the instrument must be capable of reading PM concentration from zero to a level equivalent to two times your allowable emission limit. (iii) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, record and average all milliamp output values from the PM CPMS for the periods corresponding to the compliance test runs (e.g., average all your PM CPMS output values for three corresponding 2hour Method 5I test runs). (2) If the average of your three PM performance test runs are below 75% of your PM emission limit, you must calculate an operating limit by establishing a relationship of PM CPMS signal to PM concentration using the PM CPMS instrument zero, the average PM E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations R = the relative mg/dscm per milliamp for your PM CPMS, from Equation 3. (iii) With your instrument zero expressed in milliamps, your three run average PM CPMS milliamp value, and your three run average PM concentration from your three compliance tests, determine a relationship of lb/Mmbtu per milliamp with equation 6. Where: R = the relative mg/dscm per milliamp for your PM CPMS, Y1 = the three run average mg/dscm PM concentration, X1 = the three run average milliamp output from you PM CPMS, and z = the milliamp equivalent of your instrument zero determined from (2)(i). mstockstill on DSK4VPTVN1PROD with RULES2 (iv) Determine your source specific 30-day rolling average operating limit using the mg/dscm per milliamp value from Equation 6 in equation 7, below. This sets your operating limit at the PM CPMS output value corresponding to 75% of your emission limit. Where: Ol = the operating limit for your PM CPMS on a 30-day rolling average, in milliamps. L = your source emission limit expressed in lb/Mmbtu, z = your instrument zero in milliamps, determined from (2)(a), and VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 (3) If the average of your three PM compliance test runs is at or above 75% of your PM emission limit you must determine your operating limit by averaging the PM CPMS milliamp output corresponding to your three PM performance test runs that demonstrate compliance with the emission limit using equation 8 and you must submit all compliance test and PM CPMS data according to the reporting requirements in paragraph (i)(5) of this section. Where: X1 = the PM CPMS data points for all runs i, n = the number of data points, and Oh = your site specific operating limit, in milliamps. (4) To determine continuous compliance, you must record the PM CPMS output data for all periods when the process is operating and the PM CPMS is not out-of-control. You must demonstrate continuous compliance by using all quality-assured hourly average data collected by the PM CPMS for all operating hours to calculate the arithmetic average operating parameter in units of the operating limit (e.g., milliamps, PM concentration, raw data signal) on a 30-day rolling average basis. (5) For PM performance test reports used to set a PM CPMS operating limit, the electronic submission of the test report must also include the make and model of the PM CPMS instrument, serial number of the instrument, analytical principle of the instrument (e.g., beta attenuation), span of the instruments primary analytical range, PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 milliamp value equivalent to the instrument zero output, technique by which this zero value was determined, and the average milliamp signals corresponding to each PM compliance test run. ■ 34. Section 60.2680 is amended by revising the section heading and paragraph (a) introductory text to read as follows: § 60.2680 What if I do not use a wet scrubber, fabric filter, activated carbon injection, selective noncatalytic reduction, an electrostatic precipitator, or a dry scrubber to comply with the emission limitations? (a) If you use an air pollution control device other than a wet scrubber, activated carbon injection, selective noncatalytic reduction, fabric filter, an electrostatic precipitator, or a dry scrubber or limit emissions in some other manner, including mass balances, to comply with the emission limitations under § 60.2670, you must petition the EPA Administrator for specific operating limits to be established during the initial performance test and continuously monitored thereafter. You must submit the petition at least sixty days before the performance test is scheduled to begin. Your petition must include the five items listed in paragraphs (a)(1) through (5) of this section. * * * * * ■ 35. Section 60.2685 is revised to read as follows: § 60.2685 Affirmative Defense for Violation of Emission Standards During Malfunction. In response to an action to enforce the standards set forth in paragraph § 60.2670 you may assert an affirmative defense to a claim for civil penalties for violations of such standards that are E:\FR\FM\07FER2.SGM 07FER2 ER07FE13.007</GPH> Where: X1 = the PM CPMS data points for the three runs constituting the performance test, Y1 = the PM concentration value for the three runs constituting the performance test, and n = the number of data points. only natural gas) and plotting these with the compliance data to find the zero intercept. (D) If none of the steps in paragraphs (i)(2)(i) through (iv) of this section are possible, you must use a zero output value provided by the manufacturer. (ii) Determine your PM CPMS instrument average in milliamps, and the average of your corresponding three PM compliance test runs, using equation 5. ER07FE13.006</GPH> (B) Zero point data for extractive instruments should be obtained by removing the extractive probe from the stack and drawing in clean ambient air. (C) The zero point can also can be established obtained by performing manual reference method measurements when the flue gas is free of PM emissions or contains very low PM concentrations (e.g., when your process is not operating, but the fans are operating or your source is combusting ER07FE13.004</GPH> ER07FE13.005</GPH> CPMS values corresponding to the three compliance test runs, and the average PM concentration from the Method 5 or performance test with the procedures in (i)(1)through (5) of this section. (i) Determine your instrument zero output with one of the following procedures: (A) Zero point data for in-situ instruments should be obtained by removing the instrument from the stack and monitoring ambient air on a test bench. 9197 mstockstill on DSK4VPTVN1PROD with RULES2 9198 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations caused by malfunction, as defined at 40 CFR 60.2. Appropriate penalties may be assessed if you fail to meet your burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief. (a) Assertion of affirmative defense. To establish the affirmative defense in any action to enforce such a standard, you must timely meet the reporting requirements in paragraph (b) of this section, and must prove by a preponderance of evidence that: (1) The violation: (i) Was caused by a sudden, infrequent, and unavoidable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner; and (ii) Could not have been prevented through careful planning, proper design or better operation and maintenance practices; and (iii) Did not stem from any activity or event that could have been foreseen and avoided, or planned for; and (iv) Was not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and (2) Repairs were made as expeditiously as possible when a violation occurred. Off-shift and overtime labor were used, to the extent practicable to make these repairs; and (3) The frequency, amount and duration of the violation (including any bypass) were minimized to the maximum extent practicable; and (4) If the violation resulted from a bypass of control equipment or a process, then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and (5) All possible steps were taken to minimize the impact of the violation on ambient air quality, the environment, and human health; and (6) All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices; and (7) All of the actions in response to the violation were documented by properly signed, contemporaneous operating logs; and (8) At all times, the affected CISWI unit was operated in a manner consistent with good practices for minimizing emissions; and (9) A written root cause analysis has been prepared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the violation resulting from the malfunction event at issue. The analysis shall also specify, using best monitoring VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 methods and engineering judgment, the amount of any emissions that were the result of the malfunction. (b) Report. The owner or operator seeking to assert an affirmative defense shall submit a written report to the Administrator with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. This affirmative defense report shall be included in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report or excess emission report due after the initial occurrence of the violation of the relevant standard. ■ 36. Section 60.2690 is amended by: ■ a. Revising paragraph (g) introductory text. ■ b. Redesignating paragraphs (g)(2) and (3) as paragraphs (g)(3) and (4), respectively. ■ c. Revising newly designated paragraphs (g)(3) and (4). ■ d. Adding new paragraph (g)(2). ■ e. Adding paragraph (j). The revisions and additions read as follows: § 60.2690 How do I conduct the initial and annual performance test? * * * * * (g) You must determine dioxins/ furans toxic equivalency by following the procedures in paragraphs (g)(1) through (4) of this section. * * * * * (2) Quantify isomers meeting identification criteria 2, 3, 4, and 5 in Section 5.3.2.5 of Method 23, regardless of whether the isomers meet identification criteria 1 and 7. You must quantify the isomers per Section 9.0 of Method 23. (Note: You may reanalyze the sample aliquot or split to reduce the number of isomers not meeting identification criteria 1 or 7 of Section 5.3.2.5.) (3) For each dioxin/furan (tetrathrough octa-chlorinated) isomer measured in accordance with paragraph (g)(1) and (2) of this section, multiply the isomer concentration by its corresponding toxic equivalency factor specified in table 4 of this subpart. (4) Sum the products calculated in accordance with paragraph (g)(3) of this section to obtain the total concentration PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 of dioxins/furans emitted in terms of toxic equivalency. * * * * * (j) You must determine dioxins/furans total mass basis by following the procedures in paragraphs (j)(1) through (3) of this section. (1) Measure the concentration of each dioxin/furan tetra- through octachlorinated isomer emitted using EPA Method 23 at 40 CFR part 60, appendix A–7. (2) Quantify isomers meeting identification criteria 2, 3, 4, and 5 in Section 5.3.2.5 of Method 23, regardless of whether the isomers meet identification criteria 1 and 7. You must quantify the isomers per Section 9.0 of Method 23. (Note: You may reanalyze the sample aliquot or split to reduce the number of isomers not meeting identification criteria 1 or 7 of Section 5.3.2.5.) (3) Sum the quantities measured in accordance with paragraphs (j)(1) and (2) of this section to obtain the total concentration of dioxins/furans emitted in terms of total mass basis. ■ 37.Section 60.2710 is revised to read as follows: ■ a. Revising paragraph (a)(6). ■ b. Revising paragraphs (b) through (d). ■ c. Revising paragraph (f). ■ d. Revising paragraphs (g) introductory text and (g)(1). ■ e. Revising paragraphs (h) and (i). ■ f. Revising paragraphs (j) introductory text, (j)(1), and (j)(3). ■ j. Revising paragraph (l) introductory text. ■ k. Revising paragraph (m)(2). ■ l. Revising paragraph (n)(4). ■ m. Revising paragraph (o). ■ n. Revising paragraph (r)(1). ■ o. Revising paragraphs (s) introductory text, (s)(1) introductory text, and (s)(2). ■ p. Revising paragraph (t) introductory text, (t)(1) introductory text, and (t)(2). ■ q. Revising paragraphs (u)(1) and (u)(2). ■ r. Revising paragraphs (w) introductory paragraph, (w)(1), (w)(2), and (w)(3). ■ s. Adding paragraph (x). The revisions and addition read as follows: § 60.2710 How do I demonstrate continuous compliance with the emission limitations and the operating limits? (a) * * * (6) All monitoring systems necessary for compliance with any newly applicable monitoring requirements which apply as a result of the cessation or commencement or recommencement of combusting solid waste must be installed and operational as of the E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations effective date of the waste-to-fuel, or fuel-to-waste switch. All calibration and drift checks must be performed as of the effective date of the waste-to-fuel, or fuel-to-waste switch. Relative accuracy tests must be performed as of the performance test deadline for PM CEMS (if PM CEMS are elected to demonstrate continuous compliance with the particulate matter emission limits). Relative accuracy testing for other CEMS need not be repeated if that testing was previously performed consistent with section 112 monitoring requirements or monitoring requirements under this subpart. (b) You must conduct an annual performance test for the pollutants listed in table 2 of this subpart or tables 6 through 9 of this subpart and opacity for each CISWI unit as required under § 60.2690. The annual performance test must be conducted using the test methods listed in table 2 of this subpart or tables 6 through 9 of this subpart and the procedures in § 60.2690. Opacity must be measured using EPA Reference Method 9 at 40 CFR part 60. Annual performance tests are not required if you use CEMS or continuous opacity monitoring systems to determine compliance. (c) You must continuously monitor the operating parameters specified in § 60.2675 or established under § 60.2680 and as specified in § 60.2735. Operation above the established maximum or below the established minimum operating limits constitutes a deviation from the established operating limits. Three-hour block average values are used to determine compliance (except for baghouse leak detection system alarms) unless a different averaging period is established under § 60.2680 or, for energy recovery units, where the averaging time for each operating parameter is a 30-day rolling, calculated each hour as the average of the previous 720 operating hours. Operation above the established maximum, below the established minimum, or outside the allowable range of the operating limits specified in paragraph (a) of this section constitutes a deviation from your operating limits established under this subpart, except during performance tests conducted to determine compliance with the emission and operating limits or to establish new operating limits. Operating limits are confirmed or reestablished during performance tests. (d) You must burn only the same types of waste and fuels used to establish subcategory applicability (for VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 ERUs) and operating limits during the performance test. * * * * * (f) For energy recovery units, you must conduct an annual performance test for opacity using EPA Reference Method 9 at 40 CFR part 60 (except where particulate matter continuous monitoring system or continuous parameter monitoring systems are used) and the pollutants listed in table 7 of this subpart. (g) For facilities using a CEMS to demonstrate compliance with the carbon monoxide emission limit, compliance with the carbon monoxide emission limit may be demonstrated by using the CEMS according to the following requirements: (1) You must measure emissions according to § 60.13 to calculate 1-hour arithmetic averages, corrected to 7 percent oxygen. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must demonstrate initial compliance with the carbon monoxide emissions limit using a 30day rolling average of the 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7. * * * * * (h) Coal and liquid/gas energy recovery units with annual average heat input rates greater than 250 MMBtu/hr may elect to demonstrate continuous compliance with the particulate matter emissions limit using a particulate matter CEMS according to the procedures in § 60.2730(n) instead of the continuous parameter monitoring system specified in § 60.2710(i). Coal and liquid/gas energy recovery units with annual average heat input rates less than 250 MMBtu/hr, incinerators, and small remote incinerators may also elect to demonstrate compliance using a particulate matter CEMS according to the procedures in § 60.2730(n) instead of particulate matter testing with EPA Method 5 at 40 CFR part 60, appendix A–3 and, if applicable, the continuous opacity monitoring requirements in paragraph (i) of this section. (i) For energy recovery units with annual average heat input rates greater than or equal to 10 MMBTU/hour but less than 250 MMBtu/hr you must install, operate, certify and maintain a continuous opacity monitoring system (COMS) according to the procedures in § 60.2730. PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 9199 (j) For waste-burning kilns, you must conduct an annual performance test for the pollutants (except mercury and particulate matter, and hydrogen chloride if no acid gas wet scrubber is used) listed in table 8 of this subpart. If your waste-burning kiln is not equipped with a wet scrubber or dry scrubber, you must determine compliance with the hydrogen chloride emission limit using a CEMS as specified in § 60.2730. You must determine compliance with particulate matter using CPMS. You must determine compliance with the mercury emissions limit using a mercury CEMS according to the following requirements: (1) Operate a CEMS in accordance with performance specification 12A at 40 CFR part 60, appendix B or a sorbent trap based integrated monitor in accordance with performance specification 12B at 40 CFR part 60, appendix B. The duration of the performance test must be a calendar month. For each calendar month in which the waste-burning kiln operates, hourly mercury concentration data and stack gas volumetric flow rate data must be obtained. You must demonstrate compliance with the mercury emissions limit using a 30-day rolling average of these 1-hour mercury concentrations, including CEMS data during startup and shutdown as defined in this subpart, calculated using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7 of this part. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. * * * * * (3) The owner or operator of a wasteburning kiln must demonstrate initial compliance by operating a mercury CEMS while the raw mill of the in-line kiln/raw mill is operating under normal conditions and including at least one period when the raw mill is off. * * * * * (l) For each CMS required in this section, you must develop and submit to the EPA Administrator for approval a site-specific monitoring plan according to the requirements of this paragraph (l) that addresses paragraphs (l)(1)(i) through (vi) of this section. * * * * * (m) * * * (2) Use a flow sensor with a measurement sensitivity at full scale of no greater than 2 percent. * * * * * (n) * * * (4) Perform checks at the frequency outlined in your site-specific monitoring E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9200 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations plan to ensure pressure measurements are not obstructed (e.g., check for pressure tap pluggage daily). * * * * * (o) If you have an operating limit that requires a pH monitoring system, you must meet the requirements in paragraphs (l) and (o)(1) through (4) of this section. (1) Install the pH sensor in a position that provides a representative measurement of scrubber effluent pH. (2) Ensure the sample is properly mixed and representative of the fluid to be measured. (3) Conduct a performance evaluation of the pH monitoring system in accordance with your monitoring plan at least once each process operating day. (4) Conduct a performance evaluation (including a two-point calibration with one of the two buffer solutions having a pH within 1 of the pH of the operating limit) of the pH monitoring system in accordance with your monitoring plan at the time of each performance test but no less frequently than quarterly. * * * * * (r) * * * (1) Install a bag leak detection sensor(s) in a position(s) that will be representative of the relative or absolute particulate matter loadings for each exhaust stack, roof vent, or compartment (e.g., for a positive pressure fabric filter) of the fabric filter. * * * * * (s) For facilities using a CEMS to demonstrate compliance with the sulfur dioxide emission limit, compliance with the sulfur dioxide emission limit may be demonstrated by using the CEMS specified in § 60.2730 to measure sulfur dioxide. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must calculate a 30-day rolling average of the 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7. The sulfur dioxide CEMS must be operated according to performance specification 2 in appendix B of this part and must follow the procedures and methods specified in this paragraph(s). For sources that have actual inlet emissions less than 100 parts per million dry volume, the relative accuracy criterion for inlet sulfur dioxide CEMS should be no greater than 20 percent of the mean value of the reference method test data in terms of the units of the emission standard, or 5 parts per million dry VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 volume absolute value of the mean difference between the reference method and the CEMS, whichever is greater. (1) During each relative accuracy test run of the CEMS required by performance specification 2 in appendix B of this part, collect sulfur dioxide and oxygen (or carbon dioxide) data concurrently (or within a 30- to 60minute period) with both the CEMS and the test methods specified in paragraphs (s)(1)(i) and (ii) of this section. * * * * * (2) The span value of the CEMS at the inlet to the sulfur dioxide control device must be 125 percent of the maximum estimated hourly potential sulfur dioxide emissions of the unit subject to this rule. The span value of the CEMS at the outlet of the sulfur dioxide control device must be 50 percent of the maximum estimated hourly potential sulfur dioxide emissions of the unit subject to this rule. * * * * * (t) For facilities using a CEMS to demonstrate continuous compliance with the nitrogen oxides emission limit, compliance with the nitrogen oxides emission limit may be demonstrated by using the CEMS specified in § 60.2730 to measure nitrogen oxides. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. You must calculate a 30-day rolling average of the 1-hour arithmetic average emission concentration using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7. The nitrogen oxides CEMS must be operated according to performance specification 2 in appendix B of this part and must follow the procedures and methods specified in paragraphs (t)(1) through (t)(5) of this section. (1) During each relative accuracy test run of the CEMS required by performance specification 2 of appendix B of this part, collect nitrogen oxides and oxygen (or carbon dioxide) data concurrently (or within a 30- to 60minute period) with both the CEMS and the test methods specified in paragraphs (t)(1)(i) and (ii) of this section. (i) For nitrogen oxides, EPA Reference Method 7 or 7E at 40 CFR part 60, appendix A–4 must be used. (ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B, or as an alternative ANSI/ASME PTC 19.10– 1981 (incorporated by reference, see § 60.17), as applicable, must be used. (2) The span value of the CEMS must be 125 percent of the maximum PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 estimated hourly potential nitrogen oxide emissions of unit. * * * * * (u) * * * (1) Demonstrate compliance with the appropriate emission limit(s) using a 30day rolling average of 1-hour arithmetic average emission concentrations, including CEMS data during startup and shutdown, as defined in this subpart, calculated using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. (2) Operate all CEMS in accordance with the applicable procedures under appendices B and F of this part. * * * * * (w) For energy recovery units with a design heat input capacity of 100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, you must install, operate, and maintain an oxygen analyzer system as defined in § 60.2875 according to the procedures in paragraphs (w)(1) through (4) of this section. (1) The oxygen analyzer system must be installed by the initial performance test date specified in § 60.2675. (2) You must operate the oxygen trim system within compliance with paragraph (w)(3) of this section at all times. (3) You must maintain the oxygen level such that the 30-day rolling average that is established as the operating limit for oxygen is not below the lowest hourly average oxygen concentration measured during the most recent CO performance test. * * * * * (x) For energy recovery units with annual average heat input rates greater than or equal to 250 MMBtu/hour and waste-burning kilns, you must install, calibrate, maintain, and operate a PM CPMS and record the output of the system as specified in paragraphs (x)(1) through (8) of this section. For other energy recovery units, you may elect to use PM CPMS operated in accordance with this section. PM CPMS are suitable in lieu of using other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure). (1) Install, calibrate, operate, and maintain your PM CPMS according to the procedures in your approved sitespecific monitoring plan developed in accordance with § 60.2710(l) and (x)(1)(i) through (iii) of this section. (i) The operating principle of the PM CPMS must be based on in-stack or E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations extractive light scatter, light scintillation, beta attenuation, or mass accumulation of the exhaust gas or representative sample. The reportable measurement output from the PM CPMS must be expressed as milliamps. (ii) The PM CPMS must have a cycle time (i.e., period required to complete sampling, measurement, and reporting for each measurement) no longer than 60 minutes. (iii) The PM CPMS must be capable of detecting and responding to particulate matter concentrations of no greater than 0.5 mg/actual cubic meter. (2) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, you must adjust the sitespecific operating limit in accordance with the results of the performance test according to the procedures specified in § 60.2675. (3) Collect PM CPMS hourly average output data for all energy recovery unit or waste-burning kiln operating hours. Express the PM CPMS output as milliamps. (4) Calculate the arithmetic 30-day rolling average of all of the hourly average PM CPMS output collected during all energy recovery unit or wasteburning kiln operating hours data (milliamps). (5) You must collect data using the PM CPMS at all times the energy recovery unit or waste-burning kiln is operating and at the intervals specified in paragraph (x)(1)(ii) of this section, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments), and any scheduled maintenance as defined in your sitespecific monitoring plan. (6) You must use all the data collected during all energy recovery unit or wasteburning kiln operating hours in assessing the compliance with your operating limit except: (i) Any data collected during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or quality control activities conducted during monitoring system malfunctions are not used in calculations (report any such periods in your annual deviation report); (ii) Any data collected during periods when the monitoring system is out of control as specified in your site-specific monitoring plan, repairs associated with periods when the monitoring system is VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 out of control, or required monitoring system quality assurance or quality control activities conducted during outof-control periods are not used in calculations (report emissions or operating levels and report any such periods in your annual deviation report); (iii) Any PM CPMS data recorded during periods of CEMS data during startup and shutdown, as defined in this subpart. (7) You must record and make available upon request results of PM CPMS system performance audits, as well as the dates and duration of periods from when the PM CPMS is out of control until completion of the corrective actions necessary to return the PM CPMS to operation consistent with your site-specific monitoring plan. (8) For any deviation of the 30-day rolling average PM CPMS average value from the established operating parameter limit, you must: (i) Within 48 hours of the deviation, visually inspect the air pollution control device; (ii) If inspection of the air pollution control device identifies the cause of the deviation, take corrective action as soon as possible and return the PM CPMS measurement to within the established value; and (iii) Within 30 days of the deviation or at the time of the annual compliance test, whichever comes first, conduct a PM emissions compliance test to determine compliance with the PM emissions limit and to verify. Within 45 days of the deviation, you must reestablish the CPMS operating limit. You are not required to conduct additional testing for any deviations that occur between the time of the original deviation and the PM emissions compliance test required under this paragraph. (iv) PM CPMS deviations leading to more than four required performance tests in a 12-month process operating period (rolling monthly) constitute a violation of this subpart. ■ 38. Section 60.2720 is amended by revising paragraph (a)(3)(ii) to read as follows: § 60.2720 May I conduct performance testing less often? (a) * * * (3) * * * (ii) For fugitive emissions, visible emissions (of combustion ash from the ash conveying system) for 2 percent of the time during each of the three 1-hour observation periods. * * * * * ■ 39. Section 60.2730 is amended by: ■ a. Revising paragraph (c). PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 9201 b. Revising paragraph (e) introductory text. ■ c. Revising paragraphs (f) through (j). ■ d. Revising paragraph (l)(1) and (2). ■ e. Revising paragraph (m) introductory text. ■ f. Revising paragraphs (n) introductory text, (n)(6), (n)(7), (n)(9), (n)(10), (n)(11), and paragraph (n)(12) introductory text. ■ g. Removing paragraph (n)(14). ■ h. Revising paragraphs (o)(1), (o)(2), and (o)(9). ■ i. Adding paragraphs (r) and (s). The revisions and additions read as follows: ■ § 60.2730 What monitoring equipment must I install and what parameters must I monitor? * * * * * (c) If you are using something other than a wet scrubber, activated carbon, selective non-catalytic reduction, an electrostatic precipitator, or a dry scrubber to comply with the emission limitations under § 60.2670, you must install, calibrate (to the manufacturers’ specifications), maintain, and operate the equipment necessary to monitor compliance with the site-specific operating limits established using the procedures in § 60.2680. * * * * * (e) If you use selective noncatalytic reduction to comply with the emission limitations, you must complete the following: * * * * * (f) If you use an electrostatic precipitator to comply with the emission limits of this subpart, you must monitor the secondary power to the electrostatic precipitator collection plates and maintain the 3-hour block averages at or above the operating limits established during the mercury or particulate matter performance test. (g) For waste-burning kilns not equipped with a wet scrubber or dry scrubber, in place of hydrogen chloride testing with EPA Method 321 at 40 CFR part 63, appendix A, an owner or operator must install, calibrate, maintain, and operate a CEMS for monitoring hydrogen chloride emissions discharged to the atmosphere and record the output of the system. To demonstrate continuous compliance with the hydrogen chloride emissions limit for units other than waste-burning kilns not equipped with a wet scrubber or dry scrubber, a facility may substitute use of a hydrogen chloride CEMS for conducting the hydrogen chloride annual performance test, monitoring the minimum hydrogen chloride sorbent flow rate, monitoring the minimum scrubber liquor pH. E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9202 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations (h) To demonstrate continuous compliance with the particulate matter emissions limit, a facility may substitute use of a particulate matter CEMS for conducting the particulate matter annual performance test and other CMS monitoring for PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure). (i) To demonstrate continuous compliance with the dioxin/furan emissions limit, a facility may substitute use of a continuous automated sampling system for the dioxin/furan annual performance test. You must record the output of the system and analyze the sample according to EPA Method 23 at 40 CFR part 60, appendix A–7. This option to use a continuous automated sampling system takes effect on the date a final performance specification applicable to dioxin/furan from continuous monitors is published in the Federal Register. The owner or operator who elects to continuously sample dioxin/furan emissions instead of sampling and testing using EPA Method 23 at 40 CFR part 60, appendix A–7 must install, calibrate, maintain and operate a continuous automated sampling system and must comply with the requirements specified in § 60.58b(p) and (q). A facility may substitute continuous dioxin/furan monitoring for the minimum sorbent flow rate, if activated carbon sorbent injection is used solely for compliance with the dioxin/furan emission limit. (j) To demonstrate continuous compliance with the mercury emissions limit, a facility may substitute use of a continuous automated sampling system for the mercury annual performance test. You must record the output of the system and analyze the sample at set intervals using any suitable determinative technique that can meet performance specification 12B criteria. This option to use a continuous automated sampling system takes effect on the date a final performance specification applicable to mercury from monitors is published in the Federal Register. The owner or operator who elects to continuously sample mercury emissions instead of sampling and testing using EPA Method 29 or 30B at 40 CFR part 60, appendix A–8, ASTM D6784–02 (Reapproved 2008) (incorporated by reference, see § 60.17), or an approved alternative method for measuring mercury emissions, must install, calibrate, maintain and operate a continuous automated sampling system and must comply with the requirements specified in § 60.58b(p) and (q). A facility may substitute continuous mercury monitoring for the minimum sorbent flow rate, if activated carbon VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 sorbent injection is used solely for compliance with the mercury emission limit. (k) To demonstrate continuous compliance with the nitrogen oxides emissions limit, a facility may substitute use of a CEMS for the nitrogen oxides annual performance test to demonstrate compliance with the nitrogen oxides emissions limits and monitoring the charge rate, secondary chamber temperature and reagent flow for selective noncatalytic reduction, if applicable. (1) Install, calibrate, maintain and operate a CEMS for measuring nitrogen oxides emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 2 of appendix B of this part, the quality assurance procedure 1 of appendix F of this part and the procedures under § 60.13 must be followed for installation, evaluation and operation of the CEMS. (2) Following the date that the initial performance test for nitrogen oxides is completed or is required to be completed under § 60.2690, compliance with the emission limit for nitrogen oxides required under § 60.52b(d) must be determined based on the 30-day rolling average of the hourly emission concentrations using CEMS outlet data. The 1-hour arithmetic averages must be expressed in parts per million by volume corrected to 7 percent oxygen (dry basis) and used to calculate the 30day rolling average concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under § 60.13(e)(2). (l) * * * (1) Install, calibrate, maintain and operate a CEMS for measuring sulfur dioxide emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 2 of appendix B of this part, the quality assurance requirements of procedure 1 of appendix F of this part and the procedures under § 60.13 must be followed for installation, evaluation and operation of the CEMS. (2) Following the date that the initial performance test for sulfur dioxide is completed or is required to be completed under § 60.2690, compliance with the sulfur dioxide emission limit may be determined based on the 30-day rolling average of the hourly arithmetic average emission concentrations using CEMS outlet data. The 1-hour arithmetic averages must be expressed in parts per PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 million corrected to 7 percent oxygen (dry basis) and used to calculate the 30day rolling average emission concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under § 60.13(e)(2). (m) For energy recovery units that do not use a wet scrubber, fabric filter with bag leak detection system, or particulate matter CEMS, you must install, operate, certify and maintain a continuous opacity monitoring system according to the procedures in paragraphs (m)(1) through (5) of this section by the compliance date specified in § 60.2670. Energy recovery units that use a particulate matter CEMS to demonstrate initial and continuing compliance according to the procedures in § 60.2730(n) are not required to install a continuous opacity monitoring system and must perform the annual performance tests for opacity consistent with § 60.2710(f). * * * * * (n) For coal and liquid/gas energy recovery units, incinerators, and small remote incinerators, an owner or operator may elect to install, calibrate, maintain and operate a CEMS for monitoring particulate matter emissions discharged to the atmosphere and record the output of the system. The owner or operator of an affected facility who continuously monitors particulate matter emissions instead of conducting performance testing using EPA Method 5 at 40 CFR part 60, appendix A–3 or, as applicable, monitor with a particulate matter CPMS according to paragraph (r) of this section, must install, calibrate, maintain and operate a CEMS and must comply with the requirements specified in paragraphs (n)(1) through (13) of this section. * * * * * (6) The owner or operator of an affected facility must conduct an initial performance test for particulate matter emissions as required under § 60.2690. Compliance with the particulate matter emission limit, if PM CEMS are elected for demonstrating compliance, must be determined by using the CEMS specified in paragraph (n) of this section to measure particulate matter. You must calculate a 30-day rolling average of 1hour arithmetic average emission concentrations, including CEMS data during startup and shutdown, as defined in this subpart, using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A–7 of this part. E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations (7) Compliance with the particulate matter emission limit must be determined based on the 30-day rolling average calculated using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, Appendix A–7 of the part from the 1-hour arithmetic average of the CEMS outlet data. * * * * * (9) The 1-hour arithmetic averages required under paragraph (n)(7) of this section must be expressed in milligrams per dry standard cubic meter corrected to 7 percent oxygen (or carbon dioxide)(dry basis) and must be used to calculate the 30-day rolling average emission concentrations. CEMS data during startup and shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under § 60.13(e)(2). (10) All valid CEMS data must be used in calculating average emission concentrations even if the minimum CEMS data requirements of paragraph (n)(8) of this section are not met. (11) The CEMS must be operated according to performance specification 11 in appendix B of this part. (12) During each relative accuracy test run of the CEMS required by performance specification 11 in appendix B of this part, particulate matter and oxygen (or carbon dioxide) data must be collected concurrently (or within a 30-to 60-minute period) by both the CEMS and the following test methods. * * * * * (o) * * * (1) Install, calibrate, maintain, and operate a CEMS for measuring carbon monoxide emissions discharged to the atmosphere and record the output of the system. The requirements under performance specification 4B of appendix B of this part, the quality assurance procedure 1 of appendix F of this part and the procedures under § 60.13 must be followed for installation, evaluation, and operation of the CEMS. (2) Following the date that the initial performance test for carbon monoxide is completed or is required to be completed under § 60.2690, compliance with the carbon monoxide emission limit may be determined based on the 30-day rolling average of the hourly arithmetic average emission concentrations, including CEMS data during startup and shutdown as defined in this subpart, using CEMS outlet data. Except for CEMS data during startup VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 and shutdown, as defined in this subpart, the 1-hour arithmetic averages must be expressed in parts per million corrected to 7 percent oxygen (dry basis) and used to calculate the 30-day rolling average emission concentrations. CEMS data collected during startup or shutdown, as defined in this subpart, are not corrected to 7 percent oxygen, and are measured at stack oxygen content. The 1-hour arithmetic averages must be calculated using the data points required under § 60.13(e)(2). * * * * * (q) For energy recovery units with a design heat input capacity of 100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, you must install, operate, and maintain a oxygen analyzer system as defined in § 60.2875 according to the procedures in paragraphs (q)(1) through (4) of this section. (1) The oxygen analyzer system must be installed by the initial performance test date specified in § 60.2675. (2) You must operate the oxygen trim system within compliance with paragraph (q)(3) of this section at all times. (3) You must maintain the oxygen level such that the 30-day rolling average that is established as the operating limit for oxygen according to paragraph (q)(4) of this section is not below the lowest hourly average oxygen concentration measured during the most recent CO performance test. (4) You must calculate and record a 30-day rolling average oxygen concentration using Equation 19–19 in section 12.4.1 of EPA Reference Method 19 of Appendix A–7 of this part. (r) For energy recovery units with annual average heat input rates greater than or equal to 250 MMBtu/hour and waste-burning kilns, you must install, calibrate, maintain, and operate a PM CPMS and record the output of the system as specified in paragraphs (r)(1) through (8) of this section. For other energy recovery units, you may elect to use PM CPMS operated in accordance with this section. PM CPMS are suitable in lieu of using other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber pressure). (1) Install, calibrate, operate, and maintain your PM CPMS according to the procedures in your approved sitespecific monitoring plan developed in accordance with § 60.2710(l) and (r)(1)(i) through (iii) of this section. (i) The operating principle of the PM CPMS must be based on in-stack or extractive light scatter, light scintillation, beta attenuation, or mass PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 9203 accumulation of the exhaust gas or representative sample. The reportable measurement output from the PM CPMS must be expressed as milliamps. (ii) The PM CPMS must have a cycle time (i.e., period required to complete sampling, measurement, and reporting for each measurement) no longer than 60 minutes. (iii) The PM CPMS must be capable of detecting and responding to particulate matter concentrations of no greater than 0.5 mg/actual cubic meter. (2) During the initial performance test or any such subsequent performance test that demonstrates compliance with the PM limit, you must adjust the sitespecific operating limit in accordance with the results of the performance test according to the procedures specified in § 60.2675. (3) Collect PM CPMS hourly average output data for all energy recovery unit or waste-burning kiln operating hours. Express the PM CPMS output as milliamps.. (4) Calculate the arithmetic 30-day rolling average of all of the hourly average PM CPMS output collected during all energy recovery unit or wasteburning kiln operating hours data (milliamps). (5) You must collect data using the PM CPMS at all times the energy recovery unit or waste-burning kiln is operating and at the intervals specified in paragraph (r)(1)(ii) of this section, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, required monitoring system quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments), and any scheduled maintenance as defined in your sitespecific monitoring plan. (6) You must use all the data collected during all energy recovery unit or wasteburning kiln operating hours in assessing the compliance with your operating limit except: (i) Any data collected during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or quality control activities conducted during monitoring system malfunctions are not used in calculations (report any such periods in your annual deviation report); (ii) Any data collected during periods when the monitoring system is out of control as specified in your site-specific monitoring plan, repairs associated with periods when the monitoring system is out of control, or required monitoring system quality assurance or quality E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9204 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations control activities conducted during outof-control periods are not used in calculations (report emissions or operating levels and report any such periods in your annual deviation report); (iii) Any PM CPMS data recorded during periods of CEMS data during startup and shutdown, as defined in this subpart. (7) You must record and make available upon request results of PM CPMS system performance audits, as well as the dates and duration of periods from when the PM CPMS is out of control until completion of the corrective actions necessary to return the PM CPMS to operation consistent with your site-specific monitoring plan. (8) For any deviation of the 30-day rolling average PM CPMS average value from the established operating parameter limit, you must: (i) Within 48 hours of the deviation, visually inspect the air pollution control device; (ii) If inspection of the air pollution control device identifies the cause of the deviation, take corrective action as soon as possible and return the PM CPMS measurement to within the established value; and (iii) Within 30 days of the deviation or at the time of the annual compliance test, whichever comes first, conduct a PM emissions compliance test to determine compliance with the PM emissions limit and to verify. Within 45 days of the deviation, you must reestablish the CPMS operating limit. You are not required to conduct additional testing for any deviations that occur between the time of the original deviation and the PM emissions compliance test required under this paragraph. (iv) PM CPMS deviations leading to more than four required performance tests in a 12-month process operating period (rolling monthly) constitute a violation of this subpart. (s) If you use a dry scrubber to comply with the emission limits of this subpart, you must monitor the injection rate of each sorbent and maintain the 3-hour block averages at or above the operating limits established during the hydrogen chloride performance test. ■ 40. Section 60.2740 is amended by: ■ a. Revising introductory text. ■ b. Revising paragraph (b)(5). ■ c. Revising paragraph (e). ■ d. Revising paragraphs (o)(2) through (7). ■ e. Adding paragraphs (o)(8) and (9). ■ f. Revising paragraph (u) and (v). ■ g. Adding paragraph (w). The revisions read as follows: VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 § 60.2740 What records must I keep? You must maintain the items (as applicable) as specified in paragraphs (a), (b), and (e) through (w) of this section for a period of at least 5 years: * * * * * (b) * * * (5) For affected CISWI units that establish operating limits for controls other than wet scrubbers under § 60.2675(d) through (g) or § 60.2680, you must maintain data collected for all operating parameters used to determine compliance with the operating limits. For energy recovery units using activated carbon injection or a dry scrubber, you must also maintain records of the load fraction and corresponding sorbent injection rate records. * * * * * (e) Identification of calendar dates and times for which data show a deviation from the operating limits in table 3 of this subpart or a deviation from other operating limits established under § 60.2675(d) through (g) or § 60.2680 with a description of the deviations, reasons for such deviations, and a description of corrective actions taken. * * * * * (o) * * * (2) All 1-hour average concentrations of sulfur dioxide emissions. You must indicate which data are CEMS data during startup and shutdown. (3) All 1-hour average concentrations of nitrogen oxides emissions. You must indicate which data are CEMS data during startup and shutdown. (4) All 1-hour average concentrations of carbon monoxide emissions. You must indicate which data are CEMS data during startup and shutdown. (5) All 1-hour average concentrations of particulate matter emissions. You must indicate which data are CEMS data during startup and shutdown. (6) All 1-hour average concentrations of mercury emissions. You must indicate which data are CEMS data during startup and shutdown. (7) All 1-hour average concentrations of hydrogen chloride emissions. You must indicate which data are CEMS data during startup and shutdown. (8) All 1-hour average percent oxygen concentrations. (9) All 1-hour average PM CPMS readings or particulate matter CEMS outputs. * * * * * (u) For operating units that combust non-hazardous secondary materials that have been determined not to be solid waste pursuant to § 241.3(b)(1), you must keep a record which documents PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 how the secondary material meets each of the legitimacy criteria under § 241.3(d)(1). If you combust a fuel that has been processed from a discarded non-hazardous secondary material pursuant to § 241.3(b)(4), you must keep records as to how the operations that produced the fuel satisfies the definition of processing in § 241.2 and each of the legitimacy criteria in § 241.3(d)(1) of this chapter. If the fuel received a nonwaste determination pursuant to the petition process submitted under § 241.3(c), you must keep a record that documents how the fuel satisfies the requirements of the petition process. For operating units that combust nonhazardous secondary materials as fuel per § 241.4, you must keep records documenting that the material is a listed non-waste under § 241.4(a). (v) Records of the criteria used to establish that the unit qualifies as a small power production facility under section 3(17)(C) of the Federal Power Act (16 U.S.C. 796(17)(C)) and that the waste material the unit is proposed to burn is homogeneous. (w) Records of the criteria used to establish that the unit qualifies as a cogeneration facility under section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)) and that the waste material the unit is proposed to burn is homogeneous. ■ 41. Section 60.2770 is amended by: ■ a. Revising paragraph (m) introductory text. ■ b. Revising paragraph (n). ■ c. Adding paragraph (p). The revisions and addition read as follows: § 60.2770 What information must I include in my annual report? * * * * * (m) If there were periods during which the continuous monitoring system, including the CEMS, was out of control as specified in paragraph (o) of this section, the annual report must contain the following information for each deviation from an emission or operating limitation occurring for a CISWI unit for which you are using a continuous monitoring system to comply with the emission and operating limitations in this subpart. * * * * * (n) If there were periods during which the continuous monitoring system, including the CEMS, was not out of control as specified in paragraph (o) of this section, a statement that there were not periods during which the continuous monitoring system was out of control during the reporting period. * * * * * E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations test audit (RATA) data electronically into EPA’s Central Data Exchange by using CEDRI as mentioned in paragraph (b)(1) of this section. Only RATA pollutants that can be documented with the ERT (as listed on the ERT Web site) are subject to this requirement. For any performance evaluations with no corresponding RATA pollutants listed § 60.2795 In what form can I submit my on the ERT Web site, the owner or reports? operator shall submit the results of the (a) Submit initial, annual, and performance evaluation in paper deviation reports electronically or in submissions to the Administrator. paper format, postmarked on or before ■ 43. Section 60.2875 is amended by: the submittal due dates. ■ a. Adding definitions for ‘‘30-day (b) Submit results of performance tests and CEMS performance evaluation rolling average,’’ ‘‘Annual heat input,’’ ‘‘Average annual heat input rate,’’ tests as follows. ‘‘Contained gaseous material,’’ (1) Within 60 days after the date of ‘‘Continuous emission monitoring completing each performance test as system,’’ ‘‘Dry scrubber,’’ ‘‘Foundry required by this subpart, you must sand thermal reclamation unit,’’ ‘‘Load submit the results of the performance fraction,’’ ‘‘Municipal solid waste or tests required by this subpart to EPA’s WebFIRE database by using the municipal type solid waste,’’ ‘‘Oxygen Compliance and Emissions Data analyzer system,’’ ‘‘Oxygen trim Reporting Interface (CEDRI) that is system,’’ ‘‘Responsible official,’’ and accessed through EPA’s Central Data ‘‘Solid waste.’’ Exchange (CDX)(www.epa.gov/cdx). ■ b. Revising definitions for ‘‘Calendar Performance test data must be submitted year,’’ ‘‘Chemical recovery unit,’’ in the file format generated through use ‘‘Commercial and industrial solid waste of EPA’s Electronic Reporting Tool incinerator (CISWI),’’ ‘‘Continuous (ERT) (see https://www.epa.gov/ttn/chief/ monitoring system (CMS),’’ ‘‘Cyclonic ert/). Only data collected burn barrel,’’ ‘‘Energy recovery unit,’’ using test methods on the ERT Web site ‘‘Energy recovery unit designed to burn are subject to this requirement for biomass (Biomass),’’ ‘‘Energy recovery submitting reports electronically to unit designed to burn liquid waste WebFIRE. Owners or operators who materials and gas (Liquid/gas),’’ claim that some of the information being ‘‘Incinerator,’’ ‘‘Modification or submitted for performance tests is modified CISWI unit,’’ ‘‘Process confidential business information (CBI) change’’, ‘‘Raw mill’’, ‘‘Small, remote must submit a complete ERT file incinerator’’, ‘‘Soil treatment unit,’’ including information claimed to be CBI ‘‘Solid waste incineration unit,’’ ‘‘Space on a compact disk, flash drive, or other heater,’’ ‘‘Waste burning kiln,’’ and commonly used electronic storage ‘‘Wet scrubber.’’ media to EPA. The electronic media ■ c. Removing the definitions for must be clearly marked as CBI and ‘‘Cyclonic barrel burner’’ and mailed to U.S. EPA/OAPQS/CORE CBI ‘‘Homogeneous waste.’’ Office, Attention: WebFIRE The revisions and additions read as Administrator, MD C404–02, 4930 Old follows: Page Rd., Durham, NC 27703. The same ERT file with the CBI omitted must be § 60.2875 What definitions must I know? submitted to EPA via CDX as described * * * * * earlier in this paragraph. At the 30-day rolling average means the discretion of the delegated authority, arithmetic mean of the previous 720 you must also submit these reports, hours of valid operating data. Valid data including the confidential business excludes periods when this unit is not information, to the delegated authority operating. The 720 hours should be in the format specified by the delegated consecutive, but not necessarily authority. For any performance test continuous if operations are conducted using test methods that are intermittent. not listed on the ERT Web site, the * * * * * owner or operator shall submit the Annual heat input means the heat results of the performance test in paper input for the 12 months preceding the submissions to the Administrator. compliance demonstration. (2) Within 60 days after the date of * * * * * completing each CEMS performance evaluation test, as defined in this Average annual heat input rate means subpart and required by this subpart, annual heat input divided by the hours you must submit the relative accuracy of operation for the 12 months mstockstill on DSK4VPTVN1PROD with RULES2 (p) For energy recovery units, include the annual heat input and average annual heat input rate of all fuels being burned in the unit to verify which subcategory of energy recovery unit applies. ■ 42. Section 60.2795 is revised to read as follows: VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 9205 preceding the compliance demonstration. * * * * * Calendar year means 365 consecutive days starting on January 1 and ending on December 31. CEMS data during startup and shutdown means the following: (1) For incinerators, small remote incinerators, and energy recovery units: CEMS data collected during the first hours of operation of a CISWI unit startup from a cold start until waste is fed into the unit and the hours of operation following the cessation of waste material being fed to the CISWI unit during a unit shutdown. For each startup event, the length of time that CEMS data may be claimed as being CEMS data during startup must be 48 operating hours or less. For each shutdown event, the length of time that CEMS data may be claimed as being CEMS data during shutdown must be 24 operating hours or less. (2) For waste-burning kilns: CEMS data collected during the periods of kiln operation that do not include normal operations. Startup begins when the kiln’s induced fan is turned on and continues until continuous feed is introduced into the kiln, at which time the kiln is in normal operating mode. Shutdown begins when feed to the kiln is halted. Chemical recovery unit means combustion units burning materials to recover chemical constituents or to produce chemical compounds where there is an existing commercial market for such recovered chemical constituents or compounds. A chemical recovery unit is not an incinerator, a waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. The following seven types of units are considered chemical recovery units: (1) Units burning only pulping liquors (i.e., black liquor) that are reclaimed in a pulping liquor recovery process and reused in the pulping process. (2) Units burning only spent sulfuric acid used to produce virgin sulfuric acid. (3) Units burning only wood or coal feedstock for the production of charcoal. (4) Units burning only manufacturing byproduct streams/residue containing catalyst metals that are reclaimed and reused as catalysts or used to produce commercial grade catalysts. (5) Units burning only coke to produce purified carbon monoxide that is used as an intermediate in the production of other chemical compounds. (6) Units burning only hydrocarbon liquids or solids to produce hydrogen, E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9206 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations carbon monoxide, synthesis gas, or other gases for use in other manufacturing processes. (7) Units burning only photographic film to recover silver. * * * * * Commercial and industrial solid waste incineration (CISWI) unit means any distinct operating unit of any commercial or industrial facility that combusts, or has combusted in the preceding 6 months, any solid waste as that term is defined in 40 CFR part 241. If the operating unit burns materials other than traditional fuels as defined in § 241.2 that have been discarded, and you do not keep and produce records as required by § 60.2740(u), the operating unit is a CISWI unit. While not all CISWI units will include all of the following components, a CISWI unit includes, but is not limited to, the solid waste feed system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The CISWI unit does not include air pollution control equipment or the stack. The CISWI unit boundary starts at the solid waste hopper (if applicable) and extends through two areas: The combustion unit flue gas system, which ends immediately after the last combustion chamber or after the waste heat recovery equipment, if any; and the combustion unit bottom ash system, which ends at the truck loading station or similar equipment that transfers the ash to final disposal. The CISWI unit includes all ash handling systems connected to the bottom ash handling system. Contained gaseous material means gases that are in a container when that container is combusted. Continuous emission monitoring system (CEMS) means the total equipment that may be required to meet the data acquisition and availability requirements of this subpart, used to sample, condition (if applicable), analyze, and provide a record of emissions. Continuous monitoring system (CMS) means the total equipment, required under the emission monitoring sections in applicable subparts, used to sample and condition (if applicable), to analyze, and to provide a permanent record of emissions or process parameters. A particulate matter continuous parameter monitoring system (PM CPMS) is a type of CMS. Cyclonic burn barrel means a combustion device for waste materials that is attached to a 55 gallon, openhead drum. The device consists of a lid, which fits onto and encloses the drum, and a blower that forces combustion air VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 into the drum in a cyclonic manner to enhance the mixing of waste material and air. A cyclonic burn barrel is not an incinerator, a waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. * * * * * Dry scrubber means an add-on air pollution control system that injects dry alkaline sorbent (dry injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gas in the exhaust stream forming a dry powder material. Sorbent injection systems in fluidized bed boilers and process heaters are included in this definition. A dry scrubber is a dry control system. * * * * * Energy recovery unit means a combustion unit combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241) for energy recovery. Energy recovery units include units that would be considered boilers and process heaters if they did not combust solid waste. Energy recovery unit designed to burn biomass (Biomass) means an energy recovery unit that burns solid waste, biomass, and non-coal solid materials but less than 10 percent coal, on a heat input basis on an annual average, either alone or in combination with liquid waste, liquid fuel or gaseous fuels. * * * * * Energy recovery unit designed to burn liquid waste materials and gas (Liquid/ gas) means an energy recovery unit that burns a liquid waste with liquid or gaseous fuels not combined with any solid fuel or waste materials. * * * * * Foundry sand thermal reclamation unit means a type of part reclamation unit that removes coatings that are on foundry sand. A foundry sand thermal reclamation unit is not an incinerator, a waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. Incinerator means any furnace used in the process of combusting solid waste (as that term is defined by the Administrator in 40 CFR part 241) for the purpose of reducing the volume of the waste by removing combustible matter. Incinerator designs include single chamber and two-chamber. * * * * * Load fraction means the actual heat input of an energy recovery unit divided by heat input during the performance test that established the minimum sorbent injection rate or minimum activated carbon injection rate, expressed as a fraction (e.g., for 50 percent load the load fraction is 0.5). * * * * * PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 Modification or modified CISWI unit means a CISWI unit that has been changed later than August 7, 2013, and that meets one of two criteria: (i) The cumulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building and installing the CISWI unit (not including the cost of land) updated to current costs (current dollars). To determine what systems are within the boundary of the CISWI unit used to calculate these costs, see the definition of CISWI unit. (2) Any physical change in the CISWI unit or change in the method of operating it that increases the amount of any air pollutant emitted for which section 129 or section 111 of the Clean Air Act has established standards. Municipal solid waste or municipaltype solid waste means household, commercial/retail, or institutional waste. Household waste includes material discarded by residential dwellings, hotels, motels, and other similar permanent or temporary housing. Commercial/retail waste includes material discarded by stores, offices, restaurants, warehouses, nonmanufacturing activities at industrial facilities, and other similar establishments or facilities. Institutional waste includes materials discarded by schools, by hospitals (nonmedical), by nonmanufacturing activities at prisons and government facilities, and other similar establishments or facilities. Household, commercial/retail, and institutional waste does include yard waste and refuse-derived fuel. Household, commercial/retail, and institutional waste does not include used oil; sewage sludge; wood pallets; construction, renovation, and demolition wastes (which include railroad ties and telephone poles); clean wood; industrial process or manufacturing wastes; medical waste; or motor vehicles (including motor vehicle parts or vehicle fluff). * * * * * Oxygen analyzer system means all equipment required to determine the oxygen content of a gas stream and used to monitor oxygen in the boiler or process heater flue gas, boiler/process heater, firebox, or other appropriate location. This definition includes oxygen trim systems and certified oxygen CEMS. The source owner or operator is responsible to install, calibrate, maintain, and operate the oxygen analyzer system in accordance with the manufacturer’s recommendations. Oxygen trim system means a system of monitors that is used to maintain excess E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations air at the desired level in a combustion device. A typical system consists of a flue gas oxygen and/or carbon monoxide monitor that automatically provides a feedback signal to the combustion air controller. * * * * * Process change means any of the following physical or operational changes: (1) A physical change (maintenance activities excluded) to the CISWI unit which may increase the emission rate of any air pollutant to which a standard applies; (2) An operational change to the CISWI unit where a new type of nonhazardous secondary material is being combusted; (3) A physical change (maintenance activities excluded) to the air pollution control devices used to comply with the emission limits for the CISWI unit (e.g., replacing an electrostatic precipitator with a fabric filter); (4) An operational change to the air pollution control devices used to comply with the emission limits for the affected CISWI unit (e.g., change in the sorbent injection rate used for activated carbon injection). * * * * * Raw mill means a ball or tube mill, vertical roller mill or other size reduction equipment, that is not part of an in-line kiln/raw mill, used to grind feed to the appropriate size. Moisture may be added or removed from the feed during the grinding operation. If the raw mill is used to remove moisture from feed materials, it is also, by definition, a raw material dryer. The raw mill also includes the air separator associated with the raw mill. * * * * * Responsible official means one of the following: (1) For a corporation: A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either: (i) The facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or (ii) The delegation of authority to such representatives is approved in advance by the permitting authority; VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 (2) For a partnership or sole proprietorship: a general partner or the proprietor, respectively; (3) For a municipality, State, Federal, or other public agency: Either a principal executive officer or ranking elected official. For the purposes of this part, a principal executive officer of a Federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a Regional Administrator of EPA); or (4) For affected facilities: (i) The designated representative in so far as actions, standards, requirements, or prohibitions under Title IV of the Clean Air Act or the regulations promulgated thereunder are concerned; or (ii) The designated representative for any other purposes under part 60. * * * * * Small, remote incinerator means an incinerator that combusts solid waste (as that term is defined by the Administrator in 40 CFR part 241) and combusts 3 tons per day or less solid waste and is more than 25 miles driving distance to the nearest municipal solid waste landfill. Soil treatment unit means a unit that thermally treats petroleumcontaminated soils for the sole purpose of site remediation. A soil treatment unit may be direct-fired or indirect fired. A soil treatment unit is not an incinerator, a waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. Solid waste means the term solid waste as defined in 40 CFR 241.2. Solid waste incineration unit means a distinct operating unit of any facility which combusts any solid waste (as that term is defined by the Administrator in 40 CFR part 241) material from commercial or industrial establishments or the general public (including single and multiple residences, hotels and motels). Such term does not include incinerators or other units required to have a permit under section 3005 of the Solid Waste Disposal Act. The term ‘‘solid waste incineration unit’’ does not include: (1) Materials recovery facilities (including primary or secondary smelters) which combust waste for the primary purpose of recovering metals; (2) Qualifying small power production facilities, as defined in section 3(17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying cogeneration facilities, as defined in section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous waste (such as units PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 9207 which burn tires or used oil, but not including refuse-derived fuel) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes; or (3) Air curtain incinerators provided that such incinerators only burn wood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with opacity limitations to be established by the Administrator by rule. Space heater means a unit that meets the requirements of 40 CFR 279.23. A space heater is not an incinerator, a waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart. * * * * * Waste-burning kiln means a kiln that is heated, in whole or in part, by combusting solid waste (as the term is defined by the Administrator in 40 CFR part 241). Secondary materials used in Portland cement kilns shall not be deemed to be combusted unless they are introduced into the flame zone in the hot end of the kiln or mixed with the precalciner fuel. Wet scrubber means an add-on air pollution control device that uses an aqueous or alkaline scrubbing liquor to collect particulate matter (including nonvaporous metals and condensed organics) and/or to absorb and neutralize acid gases. * * * * * ■ 44. Table 1 to subpart DDDD is amended by revising footnotes a and b to read as follows: Table 1 to Subpart DDDD of Part 60— Model Rule—Increments of Progress and Compliance Schedules * * * * * a Site-specific schedules can be used at the discretion of the state. b The date can be no later than 3 years after the effective date of state plan approval or December 1, 2005 for CISWI units that commenced construction on or before November 30, 1999. The date can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018, for CISWI units that commenced construction on or before June 4, 2010. 45. Table 2 to subpart DDDD of part 60 is amended by: ■ a. Revising the table heading. ■ b. Revising the entry for ‘‘Hydrogen Chloride’’. ■ c. Revising the entry for ‘‘Opacity’’. ■ d. Revising the entry for ‘‘Oxides of nitrogen’’. ■ E:\FR\FM\07FER2.SGM 07FER2 9208 ■ Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations e. Revising footnotes a and b. The revisions read as follows: TABLE 2 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO INCINERATORS BEFORE [Date to be specified in state plan] b For the air pollutant You must meet this emission limitationa Using this averaging time And determining compliance using this method * Hydrogen chloride ........ * 62 parts per million by dry volume. * * * 3-run average (For Method 26, collect a minimum volume of 120 liters per run. For Method 26A, collect a minimum volume of 1 dry standard cubic meter per run). * * Performance test (Method 26 or 26A at 40 CFR part 60, appendix A–8). * Opacity ......................... * * * * 10 percent .................. Three 1-hour blocks consisting of ten 6minute average opacity values. 388 parts per million 3-run average (1 hour minimum sample time by dry volume. per run). * * Performance test (Method 9 at 40 CFR part 60, appendix A–4). Performance test (Methods 7or 7E at 40 CFR part 60, appendix A–4). Oxides of nitrogen ....... * * * * * * * a All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. only to incinerators subject to the CISWI standards through a state plan or the Federal plan prior to June 4, 2010. The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018. b Applies * * * * * 46. Table 6 to subpart DDDD of part 60 is amended by: ■ a. Revising the entry for ‘‘Carbon monoxide’’. ■ b. Revising the entry for ‘‘Lead’’. c. Revising the entry for ‘‘Mercury’’. d. Revising the entry for ‘‘Oxides of nitrogen’’. ■ e. Revising the entry for ‘‘Sulfur dioxide’’. ■ ■ ■ ■ ■ f. Revising footnote a. g. Redesignating footnote c as footnote d. ■ h. Adding footnote c. The revisions read as follows: TABLE 6 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO INCINERATORS ON AND AFTER [Date to be specified in state plan] a For the air pollutant You must meet this emission limitation b Using this averaging time And determining compliance using this method * Carbon monoxide. * 17 parts per million dry volume. * * * * * 3-run average (1 hour minimum sample time per Performance test (Method 10 at 40 CFR part 60, run). appendix A–4). * Lead ........... * 0.015 milligrams per dry standard cubic meter. c 0.0048 milligrams per dry standard cubic meter. Oxides of nitrogen. 53 parts per million dry volume. * * * * * 3-run average (collect a minimum volume of 2 dry Performance test (Method 29 at 40 CFR part 60, standard cubic meters). appendix A–8). Use ICPMS for the analytical finish. 3-run average (For Method 29 an ASTM D6784– Performance test (Method 29 or 30B at 40 CFR part 60, appendix A–8) or ASTM D6784–02 02 (Reapproved 2008) d, collect a minimum volume of 2 dry standard cubic meters per run. (Reapproved 2008). d For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A). 3-run average (for Method 7E, 1 hour minimum Performance test (Method 7 or 7E at 40 CFR part sample time per run). 60, appendix A–4). * Sulfur dioxide. * 11 parts per million dry volume. * * * * * 3-run average (1 hour minimum sample time per Performance test (Method 6 or 6c at 40 CFR part run). 60, appendix A–4). mstockstill on DSK4VPTVN1PROD with RULES2 Mercury ...... * * * * * * a The * date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing. d Incorporated by reference, see § 60.17. VerDate Mar<15>2010 20:23 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9209 47. Table 7 to subpart DDDD of part 60 is revised to read as follows: ■ TABLE 7 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO ENERGY RECOVERY UNITS AFTER MAY 20, 2011 [Date to be specified in state plan] a For the air pollutant You must meet this emission limitation b Using this averaging time Liquid/Gas 0.023 milligrams per dry standard cubic meter. Carbon monoxide. 35 parts per million dry volume. Dioxins/furans (total mass basis). 2.9 nanograms per dry standard cubic meter. Dioxins/furans (toxic equivalency basis). 0.32 nanograms per dry standard cubic meter. Hydrogen chloride. 14 parts per million dry volume. Lead ............... 0.096 milligrams per dry standard cubic meter. Mercury .......... 0.0024 milligrams per dry standard cubic meter. Oxides of nitrogen. 76 parts per million dry volume. Particulate matter filterable. mstockstill on DSK4VPTVN1PROD with RULES2 Cadmium ....... 110 milligrams per dry standard cubic meter. Sulfur dioxide 720 parts per million dry volume. VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 And determining compliance using this method 3-run average (collect a minimum volume of 2 dry standard cubic meters). Performance test (Method 29 at 40 CFR part 60, appendix A–8). Use ICPMS for the analytical finish. 3-run average (1 hour minimum sample time per run). Performance test (Method 10 at 40 CFR part 60, appendix A–4). 3-run average (collect a minimum volume of 4 dry standard cubic meter). Performance test (Method 23 at 40 CFR part 60, appendix A–7). 3-run average (collect a minimum volume of 4 dry standard cubic meters). Performance test (Method 23 at 40 CFR part 60, appendix A–7). 3-run average (for Method 26, collect a minimum of 120 liters; for Method 26A, collect a minimum volume of 1 dry standard cubic meter). 3-run average (collect a minimum volume of 2 dry standard cubic meters). Performance test (Method 26 or 26A at 40 CFR part 60, appendix A–8). Solids Biomass—0.0014 milligrams per dry standard cubic meter. c Coal—0.0095 milligrams per dry standard cubic meter. Biomass—260 parts per million dry volume. Coal—95 parts per million dry volume. Biomass—0.52 nanograms per dry standard cubic meter. c Coal—5.1 nanograms per dry standard cubic meter. c. Biomass—0.12 nanograms per dry standard cubic meter. Coal—0.075 nanograms per dry standard cubic meter. c. Biomass—0.20 parts per million dry volume. Coal—13 parts per million dry volume. Biomass—0.014 milligrams per dry standard cubic meter. c. Coal—0.14 milligrams per dry standard cubic meter. c. Biomass—0.0022 milligrams per dry standard cubic meter. Coal—0.016 milligrams per dry standard cubic meter. Biomass—290 parts per million dry volume. Coal—340 parts per million dry volume. Biomass—11 milligrams per dry standard cubic meter. Coal—160 milligrams per dry standard cubic meter. Biomass—7.3 parts per million dry volume. Coal—650 parts per million dry volume. PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 Performance test (Method 29 at 40 CFR part 60, appendix A–8). Use ICPMS for the analytical finish. 3-run average (For Method 29 and ASTM D6784–02 (Reapproved 2008) d, collect a minimum volume of 2 dry standard cubic meters per run. For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A). 3-run average (for Method 7E, 1 hour minimum sample time per run). Performance test (Method 29 or 30B at 40 CFR part 60, appendix A–8) or ASTM D6784–02 (Reapproved 2008) d. 3-run average (collect a minimum volume of 1 dry standard cubic meter). Performance test (Method 5 or 29 at 40 CFR part 60, appendix A–3 or appendix A–8) if the unit has an annual average heat input rate less than or equal to 250 MMBtu/hr; or PM CPMS (as specified in § 60.2710(x)) if the unit has an annual average heat input rate greater than 250 MMBtu/hr. Performance test (Method 6 or 6c at 40 CFR part 60, appendix A–4). 3-run average (1 hour minimum sample time per run). E:\FR\FM\07FER2.SGM 07FER2 Performance test (Method 7 or 7E at 40 CFR part 60, appendix A–4). 9210 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations TABLE 7 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO ENERGY RECOVERY UNITS AFTER MAY 20, 2011—Continued [Date to be specified in state plan] a You must meet this emission limitation b Using this averaging time For the air pollutant Fugitive ash ... Liquid/Gas Visible emissions for no more than 5 percent of the hourly observation period. Visible emissions for no more than 5 percent of the hourly observation period. And determining compliance using this method Three 1-hour observation periods. Visible emission test (Method 22 at 40 CFR part 60, appendix A–7). Solids a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018. b All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing, with the exception of annual performance tests to certify a CEMS or PM CPMS. d Incorporated by reference, see § 60.17. 48. Table 8 to subpart DDDD of part 60 is revised to read as follows: ■ TABLE 8 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO WASTE-BURNING KILNS AFTER [Date to be specified in state plan.] a For the air pollutant You must meet this emission limitation b Using this averaging time And determining compliance using this method Cadmium ............... 0.0014 milligrams per dry standard cubic meter. c. 110 (long kilns)/790 (preheater/ precalciner) parts per million dry volume. 1.3 nanograms per dry standard cubic meter. c. 0.075 nanograms per dry standard cubic meter. c. 3-run average (collect a minimum volume of 2 dry standard cubic meters). 3-run average (1 hour minimum sample time per run). Performance test (Method 29 at 40 CFR part 60, appendix A–8). Performance test (Method 10 at 40 CFR part 60, appendix A–4). 3-run average (collect a minimum volume of 4 dry standard cubic meters). 3-run average (collect a minimum volume of 4 dry standard cubic meters). Performance test (Method 23 at 40 CFR part 60, appendix A–7). Performance test (Method 23 at 40 CFR part 60, appendix A–7). 3.0 parts per million dry volume. c ........ 3-run average (collect a minimum volume of 1 dry standard cubic meter) or 30-day rolling average if HCl CEMS is being used. 3-run average (collect a minimum volume of 2 dry standard cubic meters). 30-day rolling average .......................... Performance test (Method 321 at 40 CFR part 63, appendix A of this part) or HCl CEMS if a wet scrubber is not used. Performance test (Method 29 at 40 CFR part 60, appendix A–8). Mercury CEMS or sorbent trap monitoring system (performance specification 12A or 12B, respectively, of appendix B of this part.) Performance test (Method 7 or 7E at 40 CFR part 60, appendix A–4). PM CPMS (as specified in § 60.2710(x)) Performance test (Method 6 or 6c at 40 CFR part 60, appendix A–4). Carbon monoxide .. Dioxins/furans (total mass basis). Dioxins/furans (toxic equivalency basis). Hydrogen chloride Mercury .................. 0.014 milligrams per dry standard cubic meter. c. 0.011 milligrams per dry standard cubic meter. Oxides of nitrogen 630 parts per million dry volume .......... Particulate matter filterable. Sulfur dioxide ......... mstockstill on DSK4VPTVN1PROD with RULES2 Lead ....................... 4.6 milligrams per dry standard cubic meter. 600 parts per million dry volume .......... 3-run average (for Method 7E, 1 hour minimum sample time per run). 30-day rolling average .......................... 3-run average (for Method 6, collect a minimum of 20 liters; for Method 6C, 1 hour minimum sample time per run). a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018. b All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing, with the exception of annual performance tests to certify a CEMS or PM CPMS. 49. Table 9 to subpart DDDD of part 60 is revised to read as follows: ■ VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations 9211 TABLE 9 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO SMALL, REMOTE INCINERATORS AFTER [Date to be specified in state plan] a For the air pollutant You must meet this emission limitationb Using this averaging time And determining compliance using this method Cadmium .......................... 0.95 milligrams per dry standard cubic meter. Performance test (Method 29 at 40 CFR part 60, appendix A–8). Carbon monoxide ............ 64 parts per million dry volume ......... Dioxins/furans (total mass basis). 4,400 nanograms per dry standard cubic meter b. Dioxins/furans (toxic equivalency basis). 180 nanograms per dry standard cubic meter b. Fugitive ash ..................... Visible emissions for no more than 5 percent of the hourly observation period. 300 parts per million dry volume ....... 3-run average (collect a minimum volume of 1 dry standard cubic meters per run). 3-run average (1 hour minimum sample time per run). 3-run average (collect a minimum volume of 1 dry standard cubic meters per run). 3-run average (collect a minimum volume of 1 dry standard cubic meters). Three 1-hour observation periods ..... Hydrogen chloride ............ Lead ................................. 2.1 milligrams per dry standard cubic meter. Mercury ............................ 0.0053 milligrams per dry standard cubic meter. Oxides of nitrogen ........... 190 parts per million dry volume ....... Particulate matter ............. (filterable) ......................... 270 milligrams per dry standard cubic meter. Sulfur dioxide ................... 150 parts per million dry volume ....... 3-run average (For Method 26, collect a minimum volume of 120 liters per run. For Method 26A, collect a minimum volume of 1 dry standard cubic meter per run). 3-run average (collect a minimum volume of 1 dry standard cubic meters). 3-run average (For Method 29 and ASTM D6784–02 (Reapproved 2008),c collect a minimum volume of 2 dry standard cubic meters per run. For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A). 3-run average (for Method 7E, 1 hour minimum sample time per run). 3-run average (collect a minimum volume of 1 dry standard cubic meters). 3-run average (for Method 6, collect a minimum of 20 liters per run; for Method 6C, 1 hour minimum sample time per run). Performance test (Method 10 at 40 CFR part 60, appendix A–4). Performance test (Method 23 at 40 CFR part 60, appendix A–7). Performance test (Method 23 at 40 CFR part 60, appendix A–7). Visible emissions test (Method 22 at 40 CFR part 60, appendix A–7). Performance test (Method 26 or 26A at 40 CFR part 60, appendix A–8). Performance test (Method 29 at 40 CFR part 60, appendix A–8). Use ICPMS for the analytical finish. Performance test (Method 29 or 30B at 40 CFR part 60, appendix A–8) or ASTM D6784–02 (Reapproved 2008). c Performance test (Method 7 or 7E at 40 CFR part 60, appendix A–4). Performance test (Method 5 or 29 at 40 CFR part 60, appendix A–3 or appendix A–8). Performance test (Method 6 or 6c at 40 CFR part 60, appendix A–4). a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018. b All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. c Incorporated by reference, see § 60.17. d. Revising the definition of ‘‘Resinated wood’’. The revisions read as follows: PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION UNITS ■ 50. The authority citation for part 241 continues to read as follows: § 241.2 ■ Authority: 42 U.S.C. 6903, 6912, 7429. mstockstill on DSK4VPTVN1PROD with RULES2 Subpart A—General 51. Section 241.2 is amended by: a. Revising the definition of ‘‘Clean cellulosic biomass’’; ■ b. Revising the definition of ‘‘Contaminants’’; ■ c. Revising the definition of ‘‘Established tire collection programs’’; and ■ ■ VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 Definitions. * * * * * Clean cellulosic biomass means those residuals that are akin to traditional cellulosic biomass, including, but not limited to: Agricultural and forestderived biomass (e.g., green wood, forest thinnings, clean and unadulterated bark, sawdust, trim, tree harvesting residuals from logging and sawmill materials, hogged fuel, wood pellets, untreated wood pallets); urban wood (e.g., tree trimmings, stumps, and related forestderived biomass from urban settings); corn stover and other biomass crops PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 used specifically for the production of cellulosic biofuels (e.g., energy cane, other fast growing grasses, byproducts of ethanol natural fermentation processes); bagasse and other crop residues (e.g., peanut shells, vines, orchard trees, hulls, seeds, spent grains, cotton byproducts, corn and peanut production residues, rice milling and grain elevator operation residues); wood collected from forest fire clearance activities, trees and clean wood found in disaster debris, clean biomass from land clearing operations, and clean construction and demolition wood. These fuels are not secondary materials or solid wastes unless discarded. Clean biomass is biomass that does not contain contaminants at concentrations not E:\FR\FM\07FER2.SGM 07FER2 mstockstill on DSK4VPTVN1PROD with RULES2 9212 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations normally associated with virgin biomass materials. * * * * * Contaminants means all pollutants listed in Clean Air Act sections 112(b) or 129(a)(4), with the following three modifications: (1) The definition includes the elements chlorine, fluorine, nitrogen, and sulfur in cases where nonhazardous secondary materials are burned as a fuel and combustion will result in the formation of hydrogen chloride (HCl), hydrogen fluoride (HF), nitrogen oxides (NOX), or sulfur dioxide (SO2). Chlorine, fluorine, nitrogen, and sulfur are not included in the definition in cases where non-hazardous secondary materials are used as an ingredient and not as a fuel. (2) The definition does not include the following pollutants that are either unlikely to be found in non-hazardous secondary materials and products made from such materials or are adequately measured by other parts of this definition: hydrogen chloride (HCl), chlorine gas (Cl2), hydrogen fluoride (HF), nitrogen oxides (NOX), sulfur dioxide (SO2), fine mineral fibers, particulate matter, coke oven emissions, opacity, diazomethane, white phosphorus, and titanium tetrachloride. (3) The definition does not include mcresol, o-cresol, p-cresol, m-xylene, oxylene, and p-xylene as individual contaminants distinct from the grouped pollutants total cresols and total xylenes. * * * * * Established tire collection program means a comprehensive collection system or contractual arrangement that ensures scrap tires are not discarded and are handled as valuable commodities through arrival at the combustion facility. This can include tires that were not abandoned and were received from the general public at collection program events. * * * * * Resinated wood means wood products (containing binders and adhesives) produced by primary and secondary wood products manufacturing. Resinated wood includes residues from the manufacture and use of resinated wood, including materials such as board trim, sander dust, panel trim, and offspecification resinated wood products that do not meet a manufacturing quality or standard. * * * * * VerDate Mar<15>2010 18:01 Feb 06, 2013 Jkt 229001 Subpart B—Identification of NonHazardous Secondary Materials That Are Solid Wastes When Used as Fuels or Ingredients in Combustion Units 52. Amend 241.3 as follows: a. Revise paragraph (a) and (b). b. Revise paragraph (c) introductory text, and paragraphs (c)(1) introductory text, (c)(2) introductory text, and (c)(2)(ii), (iii), and (iv). ■ c. Revise paragraph (d)(1)(iii). The revisions read as follows: ■ ■ ■ § 241.3 Standards and procedures for identification of non-hazardous secondary materials that are solid wastes when used as fuels or ingredients in combustion units. (a) Except as provided in paragraph (b) of this section or in § 241.4(a) of this subpart, non-hazardous secondary materials that are combusted are solid wastes, unless a petition is submitted to, and a determination granted by, the EPA pursuant to paragraph (c) of this section. The criteria to be addressed in the petition, as well as the process for making the non-waste determination, are specified in paragraph (c) of this section. (b) The following non-hazardous secondary materials are not solid wastes when combusted: (1) Non-hazardous secondary materials used as a fuel in a combustion unit that remain within the control of the generator and that meet the legitimacy criteria specified in paragraph (d)(1) of this section. (2) The following non-hazardous secondary materials that have not been discarded and meet the legitimacy criteria specified in paragraph (d)(1) of this section when used in a combustion unit (by the generator or outside the control of the generator): (i) [Reserved] (ii) [Reserved] (3) Non-hazardous secondary materials used as an ingredient in a combustion unit that meet the legitimacy criteria specified in paragraph (d)(2) of this section. (4) Fuel or ingredient products that are used in a combustion unit, and are produced from the processing of discarded non-hazardous secondary materials and that meet the legitimacy criteria specified in paragraph (d)(1) of this section, with respect to fuels, and paragraph (d)(2) of this section, with respect to ingredients. The legitimacy criteria apply after the non-hazardous secondary material is processed to produce a fuel or ingredient product. Until the discarded non-hazardous secondary material is processed to produce a non-waste fuel or ingredient, the discarded non-hazardous secondary PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 material is considered a solid waste and would be subject to all appropriate federal, state, and local requirements. (c) The Regional Administrator may grant a non-waste determination that a non-hazardous secondary material that is used as a fuel, which is not managed within the control of the generator, is not discarded and is not a solid waste when combusted. This responsibility may be retained by the Assistant Administrator for the Office of Solid Waste and Emergency Response if combustors are located in multiple EPA Regions and the petitioner requests that the Assistant Administrator process the non-waste determination petition. If multiple combustion units are located in one EPA Region, the application must be submitted to the Regional Administrator for that Region. The criteria and process for making such non-waste determinations includes the following: (1) Submittal of an application to the Regional Administrator for the EPA Region where the facility or facilities are located or the Assistant Administrator for the Office of Solid Waste and Emergency Response for a determination that the non-hazardous secondary material, even though it has been transferred to a third party, has not been discarded and is indistinguishable in all relevant aspects from a fuel product. The determination will be based on whether the non-hazardous secondary material that has been discarded is a legitimate fuel as specified in paragraph (d)(1) of this section and on the following criteria: * * * * * (2) The Regional Administrator or Assistant Administrator for the Office of Solid Waste and Emergency Response will evaluate the application pursuant to the following procedures: * * * * * (ii) The Regional Administrator or Assistant Administrator for the Office of Solid Waste and Emergency Response will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be published in a newspaper advertisement or radio broadcast in the locality where the facility combusting the non-hazardous secondary material is located, and be made available on the EPA’s Web site. (iii) The Regional Administrator or the Assistant Administrator for the Office of Solid Waste and Emergency Response will accept public comments on the tentative decision for 30 days, and may also hold a public hearing upon request or at his discretion. The Regional Administrator or the Assistant E:\FR\FM\07FER2.SGM 07FER2 Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 Administrator for the Office of Solid Waste and Emergency Response will issue a final decision after receipt of comments and after a hearing (if any). If a determination is made that the nonhazardous secondary material is a nonwaste fuel, it will be retroactive and apply on the date the petition was submitted. (iv) If a change occurs that affects how a non-hazardous secondary material meets the relevant criteria contained in this paragraph after a formal non-waste determination has been granted, the applicant must re-apply to the Regional Administrator or the Assistant Administrator for the Office of Solid Waste and Emergency Response for a formal determination that the nonhazardous secondary material continues to meet the relevant criteria and, thus, is not a solid waste. (d) * * * (1) * * * (iii) The non-hazardous secondary material must contain contaminants or groups of contaminants at levels comparable in concentration to or lower than those in traditional fuel(s) which the combustion unit is designed to burn. In determining which traditional fuel(s) a unit is designed to burn, persons may choose a traditional fuel that can be or is burned in the particular type of boiler, whether or not the combustion unit is permitted to burn that traditional fuel. In comparing contaminants between traditional fuel(s) and a nonhazardous secondary material, persons can use data for traditional fuel contaminant levels compiled from national surveys, as well as contaminant level data from the specific traditional fuel being replaced. To account for natural variability in contaminant levels, persons can use the full range of traditional fuel contaminant levels, provided such comparisons also consider variability in non-hazardous secondary material contaminant levels. Such comparisons are to be based on a direct comparison of the contaminant levels in both the non-hazardous VerDate Mar<15>2010 20:23 Feb 06, 2013 Jkt 229001 secondary material and traditional fuel(s) prior to combustion. * * * * * ■ 55. Add § 241.4 to read as follows: § 241.4 Non-Waste Determinations for Specific Non-Hazardous Secondary Materials When Used as a Fuel. (a) The following non-hazardous secondary materials are not solid wastes when used as a fuel in a combustion unit: (1) Scrap tires that are not discarded and are managed under the oversight of established tire collection programs, including tires removed from vehicles and off-specification tires. (2) Resinated wood. (3) Coal refuse that has been recovered from legacy piles and processed in the same manner as currently-generated coal refuse. (4) Dewatered pulp and paper sludges that are not discarded and are generated and burned on-site by pulp and paper mills that burn a significant portion of such materials where such dewatered residuals are managed in a manner that preserves the meaningful heating value of the materials. (b) Any person may submit a rulemaking petition to the Administrator to identify additional non-hazardous secondary materials to be listed in paragraph (a) of this section. Contents and procedures for the submittal of the petitions include the following: (1) Each petition must be submitted to the Administrator by certified mail and must include: (i) The petitioner’s name and address; (ii) A statement of the petitioner’s interest in the proposed action; (iii) A description of the proposed action, including (where appropriate) suggested regulatory language; and (iv) A statement of the need and justification for the proposed action, including any supporting tests, studies, or other information. Where the nonhazardous secondary material does not meet the legitimacy criteria, the PO 00000 Frm 00103 Fmt 4701 Sfmt 9990 9213 applicant must explain why such nonhazardous secondary material should be considered a non-waste fuel, balancing the legitimacy criteria with other relevant factors. (2) The Administrator will make a tentative decision to grant or deny a petition and will publish notice of such tentative decision, either in the form of an advanced notice of proposed rulemaking, a proposed rule, or a tentative determination to deny the petition, in the Federal Register for written public comment. (3) Upon the written request of any interested person, the Administrator may, at its discretion, hold an informal public hearing to consider oral comments on the tentative decision. A person requesting a hearing must state the issues to be raised and explain why written comments would not suffice to communicate the person’s views. The Administrator may in any case decide on its own motion to hold an informal public hearing. (4) After evaluating all public comments the Administrator will make a final decision by publishing in the Federal Register a regulatory amendment or a denial of the petition. (5) The Administrator will grant or deny a petition based on the weight of evidence showing the following: (i) The non-hazardous secondary material has not been discarded in the first instance and is legitimately used as a fuel in a combustion unit, or if discarded, has been sufficiently processed into a material that is legitimately used as a fuel. (ii) Where any one of the legitimacy criteria in § 241.3(d)(1) is not met, that the use of the non-hazardous secondary material is integrally tied to the industrial production process, that the non-hazardous secondary material is functionally the same as the comparable traditional fuel, or other relevant factors as appropriate. [FR Doc. 2012–31632 Filed 2–6–13; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\07FER2.SGM 07FER2

Agencies

[Federal Register Volume 78, Number 26 (Thursday, February 7, 2013)]
[Rules and Regulations]
[Pages 9111-9213]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31632]



[[Page 9111]]

Vol. 78

Thursday,

No. 26

February 7, 2013

Part II





Environmental Protection Agency





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40 CFR Parts 60 and 241





Commercial and Industrial Solid Waste Incineration Units: 
Reconsideration and Final Amendments; Non-Hazardous Secondary Materials 
That Are Solid Waste; Final Rule

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

[[Page 9112]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 241

[EPA-HQ-OAR-2003-0119 and EPA-HQ-RCRA 2008-0329; FRL-9764-1]
RIN 2060-AR15 and 2050-AG44


Commercial and Industrial Solid Waste Incineration Units: 
Reconsideration and Final Amendments; Non-Hazardous Secondary Materials 
That Are Solid Waste

AGENCY: Environmental Protection Agency.

ACTION: Final rule; notice of final action on reconsideration.

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SUMMARY: This action sets forth the EPA's final decision on the issues 
for which it granted reconsideration in December 2011, which pertain to 
certain aspects of the March 21, 2011, final rule titled ``Standards of 
Performance for New Stationary Sources and Emissions Guidelines for 
Existing Sources: Commercial and Industrial Solid Waste Incineration 
Units'' (CISWI rule). This action also includes our final decision to 
deny the requests for reconsideration with respect to all issues raised 
in the petitions for reconsideration of the final commercial and 
industrial solid waste incineration rule for which we did not grant 
reconsideration. Among other things, this final action establishes 
effective dates for the standards and makes technical corrections to 
the final rule to clarify definitions, references, applicability and 
compliance issues. In addition, the EPA is issuing final amendments to 
the regulations that were codified by the Non-Hazardous Secondary 
Materials rule (NHSM rule). Originally promulgated on March 21, 2011, 
the non-hazardous secondary materials rule provides the standards and 
procedures for identifying whether non-hazardous secondary materials 
are solid waste under the Resource Conservation and Recovery Act when 
used as fuels or ingredients in combustion units. The purpose of these 
amendments is to clarify several provisions in order to implement the 
non-hazardous secondary materials rule as the agency originally 
intended.

DATES: The May 18, 2011 (76 FR 28662), delay of the effective date 
amending subparts CCCC and DDDD at 76 FR 15703 (March 21, 2011) is 
lifted February 7, 2013. The amendments in this rule to 40 CFR part 60, 
subpart DDDD, are effective February 7, 2013, and to 40 CFR part 60, 
subpart CCCC, are effective August 7, 2013. The amendments in this rule 
to 40 CFR part 241 are effective April 8, 2013. The incorporation by 
reference of certain publications listed in that rule is effective 
February 7, 2013.

ADDRESSES: The EPA established a single docket under Docket ID Number 
EPA-HQ-OAR-2003-0119 for this action on the commercial and industrial 
solid waste incineration rule. The EPA also established a single docket 
under Docket ID Number EPA-HQ-RCRA-2008-0329 for this action on the 
non-hazardous secondary materials rule. All documents in the docket are 
listed in the https://www.regulations.gov index. Although listed in the 
index, some information is not publicly available, e.g., confidential 
business information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available either electronically in 
https://www.regulations.gov or in hard copy at the EPA Docket Center, 
EPA West Building, Room 3334, 1301 Constitution Ave. NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744 and the telephone number for the 
Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For further information regarding the 
commercial and industrial solid waste incineration reconsideration and 
final amendments, contact Ms. Toni Jones, Fuels and Incineration Group, 
Sector Policies and Programs Division (E143-05), Environmental 
Protection Agency, Research Triangle Park, North Carolina 27711; 
telephone number: (919) 541-0316; fax number: (919) 541-3470; email 
address: jones.toni@epa.gov, or Ms. Amy Hambrick, Fuels and 
Incineration Group, Sector Policies and Programs Division (E143-05), 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number: (919) 541-0964; fax number: (919) 541-3470; 
email address: hambrick.amy@epa.gov.
    For further information regarding the Non-Hazardous Secondary 
Materials final rule, contact Mr. George Faison, Program Implementation 
and Information Division, Office of Resource Conservation and Recovery, 
5303P, Environmental Protection Agency, Ariel Rios Building, 1200 
Pennsylvania Avenue NW., Washington, DC 20460-0002; telephone number: 
703-305-7652; fax number: 703-308-0509; email address: 
faison.george@epa.gov.

I. Organization of This Document

    The following outline is provided to aid in locating information in 
this preamble.

I. Organization of This Document
    A. Supplementary Information
    B. Does this action apply to me?
    C. Where can I get a copy of this document?
    D. Judicial Review
    E. Executive Summary
II. CISWI Reconsideration and Final Rule
    A. Background Information
    1. What is the history of the CISWI standards?
    2. How is the definition of solid waste addressed in the final 
CISWI rule?
    3. What is the relationship between this rule and other 
combustion rules?
    4. What is the response to the vacatur of effective dates?
    B. Summary of This Final Rule
    1. Subcategories of Affected Units and Emission Standards
    2. Fuel Switching Provisions
    3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil 
Treatment Units, Laboratory Analysis Units and Space Heaters
    4. Affirmative Defense for Malfunction Events
    5. Oxygen Correction Requirements and CO Monitoring Requirements
    6. Full-load Stack Test Requirement for CO Coupled With 
Continuous O2 Monitoring
    7. Non-detect Methodology Using Three Times the Detection Level
    8. Definitions for Foundry Sand Thermal Reclamation Unit and 
Chemical Recovery Unit
    9. Definition of Contained Gaseous Material
    10. Parametric Monitoring Provisions for Additional Control 
Device Types
    11. Particulate Matter Continuous Monitoring Provisions for 
Large ERUs and Waste-burning Kilns
    12. Revised Definition of Waste-burning Kiln
    13. Revised Definition of Solid Waste
    14. Compliance Dates
    15. Revised New Source Performance Standards
    C. Summary of Significant Changes Since Proposal
    1. Revision of the Subcategories
    2. Revisions to the Monitoring Requirements
    3. Oxygen Monitoring Requirements
    4. Removal of the Definition of Homogeneous Waste
    5. Non-detect Methodology Using Three Times the Detection Level
    6. Parametric Monitoring for Additional Control Device Types
    7. Particulate Matter Continuous Monitoring Provisions for Large 
ERUs and Waste-burning Kilns
    8. Compliance Dates
    9. Definition of Waste-burning Kiln
    10. Exemption for Other Solid Waste Incineration (OSWI) Units
    D. Technical Corrections and Clarifications
    E. Major Public Comments and Responses
    F. What other actions are we taking?

[[Page 9113]]

    G. What are the impacts associated with the amendments?
    1. What are the primary air impacts?
    2. What are the water and solid waste impacts?
    3. What are the energy impacts?
    4. What are the secondary air impacts?
    5. What are the cost and economic impacts?
    6. What are the benefits?
III. NHSM Final Revisions
    A. Statutory Authority
    B. NHSM Rule History
    C. Introduction--Summary of Regulations Being Finalized
    1. Revised Definitions
    a. Clean Cellulosic Biomass
    b. Contaminants
    c. Established Tire Collection Programs
    d. Resinated Wood
    2. Contaminant Legitimacy Criterion for NHSM Used as Fuels
    3. Categorical Non-Waste Determinations for Specific NHSM Used 
as Fuels
    a. Scrap Tires
    b. Resinated Wood
    c. Coal Refuse
    d. Pulp and Paper Sludge
    4. Rulemaking Petition Process for Other Categorical Non-Waste 
Determinations (40 CFR 241.4(b))
    5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination 
Petition Process
    6. Revised Introductory Text for 40 CFR 241.3(a)
    D. Comments on the Proposed Rule and Rationale for Final 
Decisions
    1. Revised Definitions
    a. Clean Cellulosic Biomass
    b. Contaminants
    c. Established Tire Collection Programs
    2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels
    a. General Comments on the Revised Contaminant Legitimacy 
Criterion
    b. Grouping of Contaminants
    c. Meaning of Designed to Burn
    d. Contaminant Comparisons Allowed
    3. Categorical Non-Waste Determinations for Specific NHSM Used 
as Fuels
    a. Scrap Tires
    b. Resinated Wood
    4. Rulemaking Petition Process for Other Categorical Non-Waste 
Determinations (40 CFR 241.4(b))
    5. Materials for Which Additional Information was Requested
    a. Pulp and Paper Sludge
    b. Coal Refuse
    c. Manure
    d. Other Materials for Which Additional Information was Not 
Requested
    6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination 
Petition Process
    7. Revised Introductory Text for 40 CFR 241.3(a)
    E. Cost and Benefits of the Final Rule
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

A. Supplementary Information

    Acronyms and Abbreviations. The following acronyms and 
abbreviations are used in this document.

ACI activated carbon injection
AF&PA American Forest & Paper Association
ANPRM Advanced Notice of Proposed Rulemaking
ANSI American National Standards Institute
APA Administrative Procedure Act
ARIPPA Anthracite Region Independent Power Producers Association
ASME American Society of Mechanical Engineers
AST activated sludge treatment
ASTM American Society for Testing and Materials
ATCM Air Toxic Control Measure
Btu British thermal unit
CAA Clean Air Act
CARB California Air Resources Board
CBI Confidential Business Information
CCA chromated copper arsenate
Cd cadmium
C&D construction & demolition
CDX Central Data Exchange
CFB circulating fluidized bed
CEMS continuous emissions monitoring systems
CERCLA Comprehensive Environmental Response, Compensation, and 
Liability Act
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incineration
CO carbon monoxide
CO2 carbon dioxide
Catalyst carbon monoxide oxidation catalyst
Cl2 chlorine gas
CPMS continuous parametric monitoring system
CWA Clean Water Act
D/F dioxin/furan
dscm dry standard cubic meter
DSW Definition of Solid Waste
EG emission guidelines
EJ Environmental Justice
EOM extractable organic matter
EPA U.S. Environmental Protection Agency
ERT Electronic Reporting Tool
ERU energy recovery unit
ESP electrostatic precipitator
FF fabric filters
FR Federal Register
HAP hazardous air pollutants
HCl hydrogen chloride
HF hydrogen fluoride
Hg mercury
HMI hospital, medical and infectious
HMIWI Hospital, Medical and Infectious Waste Incineration
ICR Information Collection Request
Lb pound
LML lowest measured level
Mg milligram
Mn manganese
MACT maximum achievable control technology
MDL method detection level
mg/dscm milligrams per dry standard cubic meter
mmBtu/hr million British thermal units per hour
MSW Municipal Solid Waste
MW megawatts
MWC Municipal Waste Combustor
NAAQS National Ambient Air Quality Standards
NAICS North American Industrial Classification System
NCASI National Council on Air and Stream Improvement
ND nondetect
NESHAP National Emission Standards for Hazardous Air Pollutants
ng/dscm nanograms per dry standard cubic meter
NHSM non-hazardous secondary material(s)
NIST National Institute of Standards and Technology
NOX nitrogen oxides
NSPS New Source Performance Standards
NTTAA National Technology Transfer and Advancement Act
OAQPS Office of Air Quality Planning and Standards
OMB Office of Management and Budget
OSWI Other Solid Waste Incineration
OSWER Office of Solid Waste and Emergency Response
O2 Oxygen
PAH polycyclic aromatic hydrocarbons
Pb lead
PCBs polychlorinated biphenyls
PCDD polychlorinated dibenzodioxins
PCDF polychlorinated dibenzofurans
PIC product of incomplete combustion
PM particulate matter
POM polycyclic organic matter
ppm parts per million
ppmv parts per million by volume
ppmvd parts per million by dry volume
PQL practical quantitation limit
PRA Paper Reduction Act
PS Performance Specification
lb/MMBtu pound per million British thermal units
RCRA Resource Conservation and Recovery Act
RDL reported detection level
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RIN Regulatory Information Number
RTO regenerative thermal oxidizer
RTR residual risk and technology review
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act

[[Page 9114]]

SISNOSE Significant Economic Impact on a Substantial Number of Small 
Entities
SMCRA Surface Mining Control and Reclamation Act of 1977
SNCR selective noncatalytic reduction
SO2 sulfur dioxide
SSI Sewage Sludge Incineration
SSM startup, shutdown and malfunction
SVOC Semi-Volatile Organic Compound
SWDA Solid Waste Disposal Act
TBtu tera British thermal unit
TEOM Tapered Element Oscillating Microbalance
TEQ Toxic Equivalency
The Court U.S. Court of Appeals for the District of Columbia Circuit
TMB Total Mass Basis
TOX Total Organic Halogens
tpy tons per year
TSM Total Selected Metal
TTN Technology Transfer Network
UCL upper confidence limit
ug/dscm micrograms per dry standard cubic meter
UMRA Unfunded Mandates Reform Act
UL upper limit
UPL upper prediction limit
U.S.C. United States Code
USGS United States Geological Survey
VCS Voluntary Consensus Standards
VOC volatile organic compound
WWW Worldwide Web

B. Does this action apply to me?

    Categories and entities potentially affected by this action are 
those that operate CISWI units and those that generate potentially 
affected NHSMs. The NSPS and EG, hereinafter referred to as 
``standards,'' for CISWI affect the following categories of sources:

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                                                   NAICS \1\
                    Category                          Code         Examples of potentially regulated entities
----------------------------------------------------------------------------------------------------------------
Any industrial or commercial facility using a       211, 212,  Oil and Gas Extraction, mining (except oil and
 solid waste incinerator.                                 486   gas); Pipeline Transportation
                                                          221  Utilities
                                                    321, 322,  Wood Product Manufacturing, Paper Manufacturing,
                                                          337   Furniture and Related Product Manufacturing
                                                     325, 326  Chemical Manufacturing, Plastics and Rubber
                                                                Products Manufacturing
                                                          327  Nonmetallic Mineral Product Manufacturing,
                                                     333, 336  Machinery Manufacturing, Transportation Equipment
                                                                Manufacturing
                                                      423, 44  Merchant Wholesalers, Durable Goods, Retail Trade
Any facility or entity generating a non                   111  Crop Production
 hazardous secondary material that may be burned
 for fuel or destruction \2\.
                                                          112  Animal Production
                                                          113  Forestry and Logging
                                                          115  Support Activities for Agriculture and Forestry
                                                          211  Oil and Gas Extraction
                                                          212  Mining (except oil and gas)
                                                          221  Utilities
                                                          236  Construction of Buildings
                                                          311  Food Manufacturing
                                                          312  Beverage and Tobacco Product Manufacturing
                                                          313  Textile Mills
                                                          316  Leather and Allied Product Manufacturing
                                                          321  Wood Product Manufacturing
                                                          322  Paper Manufacturing
                                                          324  Petroleum and Coal Products Manufacturing
                                                          325  Chemical Manufacturing
                                                          326  Plastics and Rubber Products Manufacturing
                                                          327  NonMetallic Mineral Product Manufacturing
                                                          331  Primary Metal Manufacturing
                                                          332  Fabricated Metal Product Manufacturing
                                                          333  Machinery Manufacturing
                                                          334  Computer and Electronic Product Manufacturing
                                                          336  Transportation Equipment Manufacturing
                                                          337  Furniture and Related Product Manufacturing
                                                          339  Miscellaneous Manufacturing
                                                          423  Merchant Wholesalers, Durable Goods
                                                          424  Merchant Wholesalers, Nondurable Goods
                                                        44-45  Retail Trade (all categories, including non-store
                                                                retailers, vending and direct sellers)
                                                          486  Pipeline Transportation
                                                          493  Warehousing and Storage
                                                          511  Publishing Industries (except internet)
                                                          531  Real Estate
                                                          541  Professional, Scientific and Technical Services
                                                          611  Educational Services
                                                          622  Hospitals
                                                          623  Nursing and Residential Care Facilities
                                                          624  Social Assistance
                                                       713930  Boating Clubs with Marinas
                                                          721  Accommodation
                                                          722  Food Services and Drinking Places
                                                          813  Religious, Grantmaking, Civic, Professional and
                                                                Similar Organizations
                                                           92  Public Administration
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\1\ North American Industry Classification System.
\2\ Note that some of these NAICS may overlap with institutional facility types where incinerators are regulated
  by the Other Solid Waste Incinerators (OSWI) emission guidelines and NSPS.


[[Page 9115]]

    This table is not intended to be exhaustive but rather provides a 
guide for readers regarding entities likely to be affected by the final 
action. To determine whether your facility would be affected by the 
final action, you should examine the applicability criteria in 40 CFR 
60.2010 of subpart CCCC, 40 CFR 60.2505 of subpart DDDD, and 40 CFR 
241. If you have any questions regarding the applicability of the final 
action to a particular entity, contact the persons listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

C. Where can I get a copy of this document?

    The docket number for the action regarding the CISWI NSPS (40 CFR 
part 60, subpart CCCC) and EG (40 CFR part 60, subpart DDDD) is Docket 
ID Number EPA-HQ-OAR-2003-0119.
    Worldwide Web. In addition to being available in the docket, an 
electronic copy of the final action is available on the WWW through the 
TTN Web site. Following signature, the EPA posted a copy of the final 
action on the TTN's policy and guidance page for newly proposed or 
promulgated rules at https://www.epa.gov/ttn/oarpg. The TTN provides 
information and technology exchange in various areas of air pollution 
control.

D. Judicial Review

    Under the CAA section 307(b)(1), judicial review of this final rule 
is available only by filing a petition for review in The Court April 8, 
2013. Under CAA section 307(d)(7)(B), only an objection to this final 
rule that was raised with reasonable specificity during the period for 
public comment can be raised during judicial review. This section also 
provides a mechanism for us to convene a proceeding for 
reconsideration, ``[i]f the person raising an objection can demonstrate 
to EPA that it was impracticable to raise such objection within [the 
period for public comment] or if the grounds for such objection arose 
after the period for public comment (but within the time specified for 
judicial review) and if such objection is of central relevance to the 
outcome of this rule.'' Any person seeking to make such a demonstration 
to us should submit a Petition for Reconsideration to the Office of the 
Administrator, Environmental Protection Agency, Room 3000, Ariel Rios 
Building, 1200 Pennsylvania Ave. NW., Washington, DC 20004, with a copy 
to the persons listed in the preceding FOR FURTHER INFORMATION CONTACT 
section, and the Associate General Counsel for the Air and Radiation 
Law Office, Office of General Counsel (Mail Code 2344A), Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20004. 
Note, under CAA section 307(b)(2), the requirements established by this 
final rule may not be challenged separately in any civil or criminal 
proceedings brought by the EPA to enforce these requirements. Resource 
Conservation and Recovery Act sections of the rule would be subject to 
judicial review under RCRA.

E. Executive Summary

Purpose of the Regulatory Action

    The EPA is promulgating final rules that establish standards for 
new and existing CISWI units. Section 129 of the CAA, titled ``Solid 
Waste Combustion,'' requires the EPA to develop and adopt standards for 
commercial and industrial solid waste incineration units pursuant to 
CAA sections 111 and 129. This final rule makes certain revisions to 
the final ``Standards of Performance for New Stationary Sources and 
Emission Guidelines for Existing Sources: Commercial and Industrial 
Solid Waste Incineration Units,'' 76 FR 15704 (March 21, 2011), based 
on the issues proposed for reconsideration issues (76 FR 40582) and in 
response to public comments on the proposed CISWI reconsideration rule.
    On May 18, 2011, the EPA issued a notice that delayed the effective 
dates of the March 21, 2011, CISWI rule (the ``Delay Notice''). 76 FR 
28662 (May 18, 2011). As the result of that action, the 2000 CISWI rule 
remained in effect. The Court vacated the Delay Notice in January 2012. 
However, because the Delay Notice delayed the effectiveness of the 
CISWI rule from May 2011 through vacatur of that notice in January 
2012, the revisions to the 2000 CISWI rule that were finalized in the 
2011 CISWI rule were never codified in the CFR, but instead appear as 
notes after the corresponding provisions of the 2000 CISWI rule in the 
CFR. Although the issues on reconsideration were limited in the 
December 2011 CISWI reconsideration proposal, we had to include in that 
proposed reconsideration rule all of the regulatory changes that had 
been made since the 2000 rule because the 2011 CISWI rule was not 
codified in the CFR. Specifically, we included in the December 23, 
2011, proposed reconsideration rule all of the regulatory changes the 
EPA had made to the 2000 CISWI rule in the 2011 CISWI rule, as well as 
the changes to the 2011 CISWI rule that the EPA proposed to make on 
reconsideration. In response to the Court's vacatur of the Delay Notice 
in January 2012, this final action lifts the delay of effectiveness so 
that the CFR can be revised to properly reflect the revisions to the 
2000 CISWI rule that were finalized in the 2011 CISWI rule. This final 
action also contains regulatory text that amends the 2011 CISWI rule to 
address the reconsideration. Therefore, this final rule's amendatory 
language differs from that of the December 2011 reconsideration 
proposal as it amends the 2011 CISWI rule instead of the 2000 CISWI 
rule. This change to the amendatory baseline in no way alters our 
limitation of the issues for comment for which we granted 
reconsideration. We have provided in the CISWI docket a redline/
strikeout file of the 2000 CISWI rule to help implementing agencies and 
affected sources to identify the sum total of the revisions made to the 
2000 CISWI rule through today's final notice pursuant to the 2011 CISWI 
rule and this final action.

Summary of Major Provisions for the Final Reconsideration Rule

    In general, the final rule establishes revised numeric emission 
limits for some new and existing CISWI units for certain of the nine 
pollutants listed in section 129(a)(4) of the CAA.\1\
---------------------------------------------------------------------------

    \1\ The nine pollutants for which we must issue emission 
standards under section 129 are: PM, SO2, HCl, 
NOX, CO, Pb, Cd, Hg, D/F. CAA section 129(a)(4).
---------------------------------------------------------------------------

    The EPA established or revised standards for four subcategories of 
CISWI units in the 2011 CISWI rule: incinerators; small remote 
incinerators; ERUs; and waste-burning kilns. The 2011 CISWI rule also 
included two subcategories of ERUs. In this final rule, we have further 
subcategorized ERUs and subcategorized waste-burning kilns based on 
design type differences. Thus, the final rule includes three 
subcategories of ERUs and separate CO limits for two subcategories of 
waste-burning kilns.
    We have further revised some of the CISWI limits proposed in the 
reconsideration notice in response to comments on CO span methodology 
and because we incorporated additional data, including new data 
submitted during the comment period. These changes primarily affect the 
ERU and waste-burning kiln subcategories but also affect some of the 
limits in each of the four subcategories.
    To ensure compliance with the emission limits, this final rule 
establishes stack testing and continuous monitoring requirements. The 
rule allows sources to use CEMS if an owner

[[Page 9116]]

or operator chooses to do so. Continuous parameters and emissions 
levels (if used) are measured as either a 3-hour block or a 30-day 
rolling average basis, depending on the parameter being measured and 
the subcategory of CISWI.
    Since sources may choose to cease or start combusting solid waste 
at any time due to market conditions or for other reasons, the final 
rule contains provisions that specify the steps necessary for sources 
to switch applicability between this final rule and other applicable 
emission standards issued pursuant to CAA section 112. This rule also 
contains revisions to some of the monitoring, recordkeeping and 
reporting requirements.
    The date existing sources must comply with the final CISWI rule 
depends primarily on state plan approval but may be no later than the 
date 5 years after publication of this final rule in the Federal 
Register. For new sources, the effective date is either August 7, 2013, 
or the date of startup of the source, whichever is later. New sources 
are defined as sources that began construction on or after June 4, 
2010, or commenced reconstruction or modification after August 7, 2013.

Costs and Benefits

    The final rule affects 106 existing sources located at 76 
facilities. The EPA projects an additional incinerator and five 
additional small remote incinerators to be subject to this rule over 
the next 5 years. This final rule applies to facilities in multiple 
sectors of our economy including small entities. Table 1 of this 
preamble summarizes the costs and benefits associated with this final 
rule. Note, these are the costs and benefits of the final 2011 CISWI 
rule as amended by today's final rule and replace the costs and 
benefits presented in the March 2011 final rule. For comparison, the 
2011 final rule, at a 7 percent discount rate, had costs of $218 
million and monetized benefits of $320 to $790 million (2008 dollars). 
(However, because the February 2011 RIA did not incorporate the final 
engineering costs and emission reductions estimates, it reported costs 
of $280 million and monetized benefits of $310 to $750 million (2008 
dollars)).A more detailed discussion of the costs and benefits of this 
final rule is provided in section II.G of this preamble.

    Table 1--Summary of the Monetized Benefits, Social Costs and Net
            Benefits for the Final CISWI NSPS and EG In 2015
                         [Millions of 2008$]\1\
------------------------------------------------------------------------
                               3 Percent discount    7 Percent discount
                                      rate                  rate
------------------------------------------------------------------------
Total Monetized Benefits\2\.        $420 to $1,000          $380 to $930
Total Social Costs\3\.......                  $258                  $258
Net Benefits................          $160 to $770          $120 to $670
------------------------------------------------------------------------
                                Health effects from exposure to HAP 780
                              tons of HCl, 2.5 tons of lead, 1.8 tons of
                                 Cd, 680 pounds of Hg, and 58 grams of
                                           dioxins/furans).
Non-monetized Benefits......   Health effects from exposure to criteria
                              pollutants (20,000 tons of CO[ihel2] 6,300
                                   tons of SO[ihel2], 5,400 tons of
                                 NO[ihel2], and secondary formation of
                                                ozone).
                                          Ecosystem effects.
                                        Visibility impairment.
------------------------------------------------------------------------
\1\ All estimates are for the implementation year (2015) and are rounded
  to two significant figures. These results reflect the lowest cost
  disposal assumption.
\2\ The total monetized benefits reflect the human health benefits
  associated with reducing exposure to PM2.5 through reductions of PM2.5
  precursors such as directly emitted particles, SO[ihel2], and NOX. It
  is important to note that the monetized benefits include many but not
  all health effects associated with PM2.5 exposure. Monetized benefits
  are shown as a range from Pope, et al. (2002) to Laden, et al. (2006).
  These models assume that all fine particles, regardless of their
  chemical composition, are equally potent in causing premature
  mortality because the scientific evidence is not yet sufficient to
  allow differentiation of effect estimates by particle type.
\3\ The methodology used to estimate social costs for 1 year in the
  multimarket model using surplus changes results in the same social
  costs for both discount rates.

II. CISWI Reconsideration and Final Rule

A. Background Information

1. What is the history of the CISWI standards?
    On December 1, 2000, the EPA promulgated NSPS and EG for CISWI 
units (60 FR 75338), hereinafter referred to as the 2000 CISWI rule. On 
January 30, 2001, the Sierra Club filed a petition for review in the 
Court challenging the EPA's final CISWI rule. On August 17, 2001, the 
EPA granted a Request for Reconsideration, pursuant to CAA section 
307(d)(7)(B), submitted on behalf of the National Wildlife Federation 
and the Louisiana Environmental Action Network, related to the 
definition of ``commercial and industrial solid waste incineration 
unit'' and ``commercial or industrial waste'' in the 2000 CISWI rule. 
In granting the petition for reconsideration, the EPA agreed to 
undertake further notice and comment proceedings related to these 
definitions. On September 6, 2001, the Court entered an order granting 
the EPA's motion for a voluntary remand of the CISWI rule, without 
vacatur. The EPA requested a voluntary remand of the final CISWI rule 
to address concerns related to the EPA's procedures for establishing 
MACT floors for CISWI units in light of the Court's decision in Cement 
Kiln Recycling Coalition v. EPA, 255 F.3d 855 (DC Cir. 2001)(Cement 
Kiln). Neither the EPA's granting of the petition for reconsideration, 
nor the Court's order granting a voluntary remand, stayed, vacated or 
otherwise influenced the effectiveness of the 2000 CISWI rule. 
Therefore, the remand order had no effect on the effectiveness of the 
2000 CISWI rule.
    On February 17, 2004, the EPA published a proposed rule (CISWI 
Definitions Rule) soliciting comments on the definitions of ``solid 
waste,'' ``commercial and industrial waste,'' and ``commercial and 
industrial solid waste

[[Page 9117]]

incineration unit.'' On September 22, 2005, the EPA published in the 
Federal Register the final rule reflecting our decisions with respect 
to the CISWI Definitions Rule. The rule was challenged and, on June 8, 
2007, the Court vacated and remanded the CISWI Definitions Rule. In 
vacating the rule, the Court found that CAA section 129 unambiguously 
includes among the incineration units subject to its standards, any 
facility that combusts any solid waste material, subject to four 
statutory exceptions. While the Court vacated the CISWI Definitions 
Rule, the 2000 CISWI rule remained in effect.
    On March 21, 2011, the EPA promulgated revised NSPS and EG for 
CISWI units (76 FR 15704)(2011 CISWI rule). That action constituted a 
partial response to the voluntary remand of the 2000 CISWI rule and to 
the 2007 vacatur and remand of the CISWI Definitions Rule. In addition, 
the EPA addressed the 5-year technology review that is required under 
CAA section 129(a)(5). On the same day, the EPA issued a notice that it 
intended to reconsider certain aspects of the 2011 CISWI rule that 
warrant further opportunity for public comment (76 FR 15266).
    Following promulgation of the 2011 CISWI rule, the EPA received 
petitions for reconsideration from the following organizations 
(``Petitioners''): Alaska Oil and Gas Association/Alaska Miners 
Association/ConocoPhillips (AOGA), American Chemistry Council (ACC), 
American Foundry Society (AFS), American Iron and Steel Institute 
(AISI) and American Coke and Coal Chemicals Institute (ACCCI), 
Anthracite Region Independent Power Producers Association (ARIPPA), 
American Petroleum Institute (API) and National Petrochemical and 
Refiners Association (NPRA), Auto Industry Forum (AIF), Citizens Energy 
Group (CEG), Council of Industrial Boiler Owners (CIBO), Earthjustice/
Sierra Club, Edison Mission Energy, Hovensa L.L.C. and Tesoro Hawaii 
Corp., Industry Coalition (AF&PA et al.), JELD-WEN Inc., Portland 
Cement Association (PCA), Renovar Energy Corp., and Waste Management 
Inc. (WM). Copies of these petitions are provided in the docket (see 
Docket ID Number EPA-HQ-OAR-2003-0119). Petitioners, pursuant to CAA 
section 307(d)(7)(B), requested that the EPA reconsider numerous 
provisions in the 2011 CISWI rule.
    On May 18, 2011, the EPA issued a notice to postpone the effective 
dates of the March 21, 2011, final CISWI rule. This notice also 
requested that the public submit additional data and information to the 
EPA by July 15, 2011, for review and consideration in the 
reconsideration proceedings.
    On December 23, 2011, the EPA published a proposed rule soliciting 
comment on the issues on which the EPA was granting reconsideration. In 
March 2011, the EPA had publically stated its intent to reconsider some 
of these issues. 76 FR 15266. The EPA limited comment in the December 
23, 2011, proposed rule to the specific issues on which it was granting 
reconsideration which included the following:
     Revising the subcategories and emission limits for ERUs 
and waste-burning kilns to reflect updated inventories and additional 
data.
     Establishing limitations on fuel switching provisions.
     Definitions of cyclonic burn barrels, burn-off ovens, soil 
treatment units, laboratory analysis units and space heaters from CISWI 
subcategories.
     Providing an affirmative defense for malfunction events.
     Revisions to the CO monitoring requirements.
     Establishing a full-load stack test requirement for CO 
coupled with continuous O2 (trim) monitoring.
     Establishing a definition of ``homogeneous waste.''
     Responding to comments on the 2011 CISWI rule regarding 
the use of fuel variability in emission limit calculations.
     Responding to comments on the 2011 CISWI rule regarding 
the review of D/F data and non-detect methodology using three times the 
detection level.
     Responding to comments on the 2011 CISWI rule regarding 
providing an option for sources to use emissions averaging to 
demonstrate compliance.
     Establishing a definition for foundry sand thermal 
reclamation unit.
     Reinstating the definition of contained gaseous material.
     Revising the definition of chemical recovery unit.
     Allowing for the use of feed stream analysis or other 
supplemental information to demonstrate compliance.
     Responding to comments on the 2011 CISWI rule regarding 
providing percent reduction alternative standards.
     Providing parametric monitoring provisions for additional 
control device types.
     Revisions to the continuous monitoring provisions for 
large ERUs.
     Extending effective dates.
     Technical corrections and clarifications.
2. How is the definition of solid waste addressed in the final CISWI 
rule?
    The RCRA definition of solid waste is integral in defining the 
CISWI source category. The EPA defines NHSMs that are solid waste under 
RCRA in the final ``Identification of Non-Hazardous Secondary Materials 
That Are Solid Waste'' Rulemaking. In an action parallel to the March 
21, 2011, final CISWI rule, the EPA promulgated a final rule that 
identifies whether NHSMs are or are not solid waste when used as fuels 
or ingredients in combustion units. That action, hereinafter referred 
to as the ``2011 NHSM final rule,'' is relevant to the final CISWI rule 
because some ERUs and waste-burning kilns combust, in their combustion 
units, secondary materials that are solid waste under the 2011 NHSM 
final rule. Commercial and industrial units that combust solid waste 
are subject to standards issued pursuant to CAA section 129, rather 
than to standards issued pursuant to CAA section 112 that would 
otherwise be applicable to such units (e.g., units that would be 
boilers, process heaters or cement kilns if they were not combusting 
solid waste).
3. What is the relationship between this rule and other combustion 
rules?
    These amendments address the combustion of solid waste materials 
(as defined by the Administrator under RCRA in the NHSM Definition 
rule) in combustion units at commercial and industrial facilities. If 
an owner or operator of a CISWI unit permanently ceases combusting 
solid waste, the affected unit would no longer be subject to the CISWI 
rule because the unit would not be a solid waste incineration unit 
subject to standards under CAA section 129. Standards issued pursuant 
to section 112 of the CAA may apply to CISWI units that cease 
combusting solid waste. For example, CAA section 112 standards 
applicable to boilers and process heaters at major sources and boilers 
at area sources would apply to boilers and process heaters that cease 
combusting solid waste. Boilers and process heaters that are located at 
commercial and industrial facilities and that combust solid waste are 
subject to CISWI as ERUs. The EPA has also finalized the CAA section 
112 standards for the Portland Cement Manufacturing Industry (75 FR 
21136, September 9, 2010). Cement kilns combusting solid waste are 
waste-burning kilns subject to CISWI, not the otherwise applicable CAA 
section 112 standards.
4. What is the response to the vacatur of effective dates?
    On January 9, 2012, the Court vacated the May 18, 2011, Delay 
Notice, which delayed the effective dates of the 2011 CISWI rule. On 
February 7, 2012, the EPA issued a no action assurance letter

[[Page 9118]]

regarding certain notification deadlines in the March 2011 CISWI rule.
    The EPA has conducted outreach to each EPA Regional Office and it 
has not found any new CISWI units that commenced construction since the 
proposed CISWI rule was published on June 10, 2010. The CAA defines a 
``new source,'' in part, as any source that commences construction 
after the publication date of proposed CAA section 111 and 129 
standards\2\ CAA section 129(g)(2). Based on our outreach efforts, we 
do not believe there are any CISWI units that are in noncompliance with 
the NSPS contained in the final 2011 CISWI rule.
---------------------------------------------------------------------------

    \2\ The date for determining whether a source is a ``new'' 
source is the publication date of the proposed standards. The final 
rule and reconsideration proposal contained a typographical error in 
40 CFR 60.2015(a)(1) that did not specify the June 4, 2010, proposal 
date.
---------------------------------------------------------------------------

    As explained above, today's final rule amendatory text reflects 
changes to the 2011 CISWI rule, not the 2000 CISWI rule as in the 
reconsideration proposal notice. We have provided in the CISWI docket a 
redline/strikeout file of the 2000 CISWI rule to help implementing 
agencies and affected sources to identify the sum total of the 
revisions made to the 2000 CISWI rule pursuant to the 2011 CISWI rule 
and this final action.

B. Summary of This Final Rule

    As stated above, the December 23, 2011, proposed rule addressed 
specific issues and provisions the EPA identified for reconsideration. 
This summary of the final rule reflects the agency's final action in 
regards to those provisions identified for reconsideration and on other 
discrete matters identified in response to comments or data received 
during the comment period. Information on other provisions and issues 
not proposed for reconsideration is contained in the notice and record 
for the 2011 CISWI rule. 76 FR 15704 (March 21, 2011).
1. Subcategories of Affected Units and Emission Standards
    This final rule defines a CISWI unit, in part, as any combustion 
unit at a commercial or industrial facility that is used to combust 
solid waste (as defined under RCRA)(40 CFR 60.2265 (NSPS) and 60.2875 
(EG)). We have established standards in this final rule for the 
following four subcategories of CISWI units: Incinerators (i.e., units 
designed to burn discarded waste materials for the purpose of 
disposal); small, remote incinerators; ERUs (i.e., units that would be 
boilers or process heaters if they did not combust solid waste); and 
waste burning kilns (i.e., units that would be cement kilns if they did 
not combust solid waste). We have further subcategorized ERUs into 
three subcategories and waste burning kilns into two subcategories for 
CO emission limits only. Changes to the subcategories made since 
proposal are discussed below in section II.C of this preamble: 
``Summary of Significant Changes Since Proposal.''
    The final rule emission limits for new and existing sources in the 
solid-fuel burning ERU subcategory and the waste-burning kilns 
subcategories were revised based on changes to the inventories for 
those subcategories as discussed below in section II.C of this 
preamble: ``Summary of Significant Changes Since Proposal.'' Tables 2 
and 3 of this preamble present the final emission limits for all 
subcategories for existing and new sources, respectively.

                      Table 2--Comparison of Existing Source MACT Floor Limits for 2000 CISWI Rule and the Final MACT Floor Limits
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              CISWI Subcategories
                                        Incinerators  --------------------------------------------------------------------------------------------------
        Pollutant (units) \a\            (2000 CISWI                                              ERUs--Liquid/                            Small, remote
                                           limit)       Incinerators         ERUs--Solids              Gas         Waste-burning kilns     incinerators
--------------------------------------------------------------------------------------------------------------------------------------------------------
HCl (ppmv)...........................              62              29  0.20 (biomass units)/13           \b\ 14  \b\ 3.0................             300
                                                                        (coal units).
CO (ppmv)............................             157              17  260 (biomass units)/95                35  110 (long kilns)/790                 64
                                                                        (coal units).                             (preheater/
                                                                                                                  precalciner).
Pb (mg/dscm).........................            0.04           0.015  0.014\b\ (biomass units)/          0.096  0.014 \b\..............             2.1
                                                                        0.14 \b\ (coal units).
Cd (mg/dscm).........................           0.004          0.0026  0.0014 \b\ (biomass                0.023  0.0014 \b\.............            0.95
                                                                        units)/0.0095 (coal
                                                                        units).
Hg (mg/dscm).........................            0.47          0.0048  0.0022 (biomass units)/       \b\ 0.0024  0.011 \b\..............          0.0053
                                                                        0.016 (coal units).
PM, filterable (mg/dscm).............              70              34  11 (biomass units)/160               110  4.6....................             270
                                                                        (coal units).
Dioxin, furans, total (ng/dscm)......      (no limit)             4.6  0.52 \b\ (biomass units)/        \b\ 2.9  1.3....................           4,400
                                                                        5.1 \b\ (coal units).
Dioxin, furans, TEQ (ng/dscm)........            0.41            0.13  0.12 (biomass units)/           \b\ 0.32  0.075 \b\..............             180
                                                                        0.075 \b\ (coal units).
NOX (ppmv)...........................             388              53  290 (biomass units)/ 340              76  630....................             190
                                                                        (coal units).
SO2 (ppmv)...........................              20              11  7.3 (biomass units)/650              720  600....................             150
                                                                        (coal units).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ All emission limits are expressed as concentrations corrected to 7 percent O2.
\b\ See the memorandum in the CISWI docket ``CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule'' for
  details on this calculation.


[[Page 9119]]


                         Table 3--Comparison of New Source MACT Floor Limits for 2000 CISWI Rule and the Final MACT Floor Limits
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Final CISWI subcategories
                                        Incinerators  --------------------------------------------------------------------------------------------------
        Pollutant (units) \a\           (2000 limit)                                              ERUs--Liquid/                            Small, remote
                                                        Incinerators         ERUs--Solids              Gas         Waste-burning kilns     incinerators
--------------------------------------------------------------------------------------------------------------------------------------------------------
HCl (ppmv)...........................              62           0.091  \c\0.20 (biomass units)/          \b\ 14  3.0 \b\................             200
                                                                        13 (coal units).
CO (ppmv)............................             157              17  240 (biomass units)/95                35  90 (long kilns)/190                  13
                                                                        (coal units).                             (preheater/
                                                                                                                  precalciner).
Pb (mg/dscm).........................            0.04       \b\ 0.015  0.014 \b\ (biomass                 0.096  0.014 \b\..............             2.0
                                                                        units)/0.14 \b\ (coal
                                                                        units).
Cd (mg/dscm).........................           0.004          0.0023  0.0014 \c\ (biomass                0.023  0.0014 \b\.............            0.67
                                                                        units)/0.0095 (coal
                                                                        units).
Hg (mg/dscm).........................            0.47     \b\ 0.00084  0.0022 \c\ (biomass          \d\ 0.00056  0.0037\b\..............          0.0035
                                                                        units)/0.016(coal
                                                                        units).
PM, filterable (mg/dscm).............              70              18  5.1 (biomass units)/160              110  2.2....................         \c\ 270
                                                                        (coal units).
Dioxin, furans, total (ng/dscm)......      (no limit)        \b\ 0.58  0.52 \b\ (biomass units)/     (no limit)  0.51 \b\...............           1,800
                                                                        5.1 \b\ (coal units).
Dioxin, furans, TEQ (ng/dscm)........            0.41            0.13  0.076 \b\ (biomass             \d\ 0.093  0.075 \b\..............              31
                                                                        units)/0.075 \b\ (coal
                                                                        units).
NOX (ppmv)...........................             388              23  290 \c\ (biomass units)/              76  200 \b\................             170
                                                                        340 (coal units).
SO2 (ppmv)...........................              20          \c\ 11  7.3 \c\ (biomass units)/             720  28.....................             1.2
                                                                        650 (coal units).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ All emission limits are measured at 7 percent O2.
\b\ See the memorandum ``CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule'' for details on this
  calculation.
\c\ The NSPS limit equals the EG limit. The EG limit was selected as the NSPS limit.
\d\ D/F TEQ and Hg limits for ERUs--liquid/gas were replaced with D/F TEQ limits for liquid fuel major source boilers. See ``CISWI Emission Limit
  Calculations for Existing and New Sources for the Reconsideration Final Rule'' for details.
\e\ SO[ihel2] limits for Waste-burning kilns were replaced with SO[ihel2] limits for Portland Cement NSPS kilns. See ``CISWI Emission Limit Calculations
  for Existing and New Sources for the Reconsideration Final Rule'' for details.

2. Fuel Switching Provisions
    The EPA is finalizing the proposed fuel switching provisions that 
address the situation where CISWI units cease combusting solid waste, 
and where existing commercial and industrial combustion units begin 
combusting solid waste (40 CFR 60.2330 for existing units and 40 CFR 
60.2710 for new units). Units that cease combusting solid waste remain 
subject to CISWI for at least 6 months after solid waste is last added 
to the combustion chamber. After 6 months, sources must either comply 
with any applicable section 112 standard or, if they intend to combust 
solid waste in the future, opt to remain subject to CISWI and continue 
to comply with the applicable provisions. Combustion units located at 
commercial or industrial facilities that begin combusting solid waste 
are solid waste incineration units on the date they begin combusting 
solid waste. Existing units that begin combusting solid waste within 6 
months of the effective date of the CISWI EG must comply with the 
standards on the effective date of those standards. Existing units that 
begin combusting solid waste after the effective date of the CISWI EG 
must comply with those standards at the time the unit begins combusting 
solid waste.
3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment 
Units, Laboratory Analysis Units and Space Heaters
    We are finalizing the proposed definitions for cyclonic burn 
barrels, burn-off ovens, soil treatment units, and laboratory analysis 
units. We have revised the proposed definition for space heaters to 
clarify applicability for units that meet the requirements of 40 CFR 
part 279. The final definitions describe the types of units and state 
that these different types of units are not incinerators, small remote 
incinerators, ERUs, or waste burning kilns. The EPA is including these 
definitions in the final rule to differentiate these units from the 
units for which the agency established standards in the 2011 CISWI rule 
and this final action.
4. Affirmative Defense for Malfunction Events
    The EPA is retaining in the final rule the proposed affirmative 
defense to civil penalties for malfunction events. The EPA first 
included an affirmative defense in the 2011 final rule in an attempt to 
balance a tension, inherent in many types of air regulation, to ensure 
adequate compliance while simultaneously recognizing that despite the 
most diligent of efforts, emission standards may be violated under 
circumstances beyond the control of the source. This final 
reconsideration attempts to add clarification to the affirmative 
defense by revising some of the regulatory provisions that specify the 
elements that are necessary to establish this affirmative defense as 
proposed--with minor changes from proposal described later in this 
section.
    Sources are required to comply with the CISWI standards at all 
times, and the EPA recognizes that even equipment that is properly 
designed and maintained can sometimes fail and that such failure may 
cause an exceedance of the relevant standard. The EPA must establish 
emission standards that ``limit the quantity, rate, or concentration of 
emissions of air pollutants on a continuous basis.'' 42 U.S.C. 7602(k) 
(defining ``emission limitation and emission standard''). See generally 
Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008.) The 
affirmative defense for malfunction events meets this requirement by 
ensuring that even where there is a malfunction, the emission standard 
is still enforceable through injunctive relief. See generally, Luminant 
Generation Co. v. EPA, 2012 U.S. App. LEXIS 15722 (5th Cir. 2012)

[[Page 9120]]

(upholding EPA's approval of affirmative defense provisions in a CAA 
State Implementation Plan). While ``continuous'' standards, on the one 
hand, are required, there is also case law indicating that in many 
situations it is appropriate for the EPA to account for the practical 
realities of technology. For example, in Essex Chemical v. Ruckelshaus, 
486 F.2d 427, 433 (D.C. Cir. 1973), the D.C. Circuit acknowledged that 
in setting standards under CAA section 111 ``variant provisions'' such 
as provisions allowing for upsets during startup, shutdown and 
equipment malfunction ``appear necessary to preserve the reasonableness 
of the standards as a whole and that the record does not support the 
`never to be exceeded' standard currently in force.'' See also, 
Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 
1973). Though intervening case law such as Sierra Club v. EPA and the 
CAA 1977 amendments call into question the relevance of these cases 
today, they support the EPA's view that a system that incorporates some 
level of flexibility is reasonable.
    The affirmative defense provisions allow sources to avoid civil 
penalties for exceedances caused by a malfunction event if the source 
demonstrates by a preponderance of the evidence that the malfunction 
event meets the definition of malfunction in 40 CFR 60.2. By 
incorporating an affirmative defense, the EPA has formalized its 
approach to upset events beyond the control of the source. In a Clean 
Water Act setting, the Ninth Circuit required this type of formalized 
approach when regulating ``upsets beyond the control of the permit 
holder.'' Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 (9th Cir. 
1977). See also, Mont. Sulphur & Chem. Co. v. United States EPA, 2012 
U.S. App. LEXIS 1056 (Jan 19, 2012) (rejecting industry argument that 
reliance on the affirmative defense was not adequate). But see, 
Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057-58 (D.C. Cir. 1978) 
(holding that an informal approach is adequate). The affirmative 
defense provisions give the EPA the flexibility to both ensure that its 
emission standards are ``continuous'' as required by 42 U.S.C. 7602(k), 
and account for unplanned upsets and thus support the reasonableness of 
the standard as a whole. In addition, the affirmative defense 
provisions are designed to ensure that steps are taken to correct the 
malfunction, minimize emissions during the malfunction, and prevent 
future malfunctions.
    We are promulgating revisions to the affirmative defense provisions 
in section 60.2120 and 60.2685 as described at proposal (76 FR 80461) 
and making some minor additional revisions. The terms ``exceedance'' 
and ``excess emissions'' and ``applicable emission limitations were 
being exceeded'' were replaced with the term ``violation'' to more 
accurately reflect that the affirmative defense is only available when 
there has been a violation of the standard. The phrase ``emission 
limit'' was changed to ``emission standards'' to reflect that the 
affirmative defense could be applicable to certain work practice 
standards. The word ``however'' was removed to incorporate more plain 
language into the regulation. The term ``notification'' was changed to 
``reporting'' to reflect that the root cause analysis required under 
affirmative defense would be submitted with other periodic reporting. 
The term ``and monitoring'' was deleted because monitoring malfunctions 
are defined differently than malfunctions of process and control units 
and the affirmative defense is intended to apply to malfunctions to 
affected units that cause a failure to meet an emission standard. In 
multiple instances the word ``were'' was changed to ``was'' to improve 
the clarity of a provision. The term ``facility'' was changed to 
``affected source'' to clarify that the affected source regulated by 
the rule must be operated in a manner consistent with good practices 
for minimizing emissions versus the entire facility. The phrase ``off 
shift and overtime labor were used, to the extent practicable to make 
these repairs'' was removed. The EPA no longer believes the language 
concerning the use of off-shift and overtime labor is necessary because 
the regulation requires that to establish the affirmative defense the 
owner must prove by a preponderance of the evidence that repairs were 
made as expeditiously as possible when a violation occurs. Although we 
believe that use of off-shift or overtime labor could be cited as 
evidence that the owner or operator expedited repairs, we do not 
believe this level of detail is necessary in the regulatory text. The 
written report required when asserting an affirmative defense was 
changed from a separate ``semiannual'' report to a report that is 
submitted with the first periodic compliance, deviation report, or 
excess emission report due after the event. Lastly, the requirement to 
notify the Administrator by telephone or facsimile within two business 
days'' was removed when we refined the affirmative defense reporting 
requirements based upon comments received.
5. Oxygen Correction Requirements and CO Monitoring Requirements
    We are finalizing provisions for calculating the 30-day CO rolling 
average that allow uncorrected CEMS reading to be used during the 
period of operation from a cold start to bring the combustion unit up 
to minimal normal operating temperature. We are also allowing 
uncorrected CEMS readings to be used in 30-day average calculations for 
the period of operation following the last waste material (or material 
feed for waste burning kilns) being fed to the combustion unit during 
shutdown procedures of the unit. For every type of CISWI unit except 
waste-burning kilns, the period of time allowed for uncorrected CEMS 
data during a startup shall be 48 hours or less per startup event and 
shall be 24 hours or less for each shutdown event. For waste-burning 
kilns, the period of startup begins when the kiln's induced draft fan 
is turned on and fuel is being combusted and continues until continuous 
feed is introduced into the kiln, at which time the kiln is in normal 
operating mode. Shutdown begins when feed to the kiln is halted. 
Sources must indicate in the CEMS data records which CEMS data are 
obtained during the startup and shutdown periods. Since the 
O2 correction calculation will affect all corrected CEMS 
data, we have expanded these provisions in the final rule to allow for 
uncorrected CEMS data for any pollutant that sources elect to measure 
continuously with CEMS and calculate 30-day rolling averages to 
demonstrate continuous compliance.
    Additionally, we have finalized removal of continuous CO monitoring 
requirements for new and existing ERU units. We are instead requiring 
annual CO stack tests and continuous O2 monitoring and we 
are allowing CO monitoring with CEMS as a compliance alternative. We 
have also removed the continuous CO monitoring requirements for new 
CISWI units in the other subcategories, but sources may demonstrate 
compliance using CO CEMS if they so choose. The authority to use 
uncorrected CEMS data during startup and shutdowns discussed above 
applies to all CISWI sources that elect to demonstrate compliance with 
any emission limits with a CEMS instead of performing annual stack 
tests. Changes to the CO and other optional CEMS monitoring 
requirements made since proposal are discussed below in Section II.C of 
this preamble: ``Summary of Significant Changes Since Proposal.''

[[Page 9121]]

6. Full-Load Stack Test Requirement for CO Coupled With Continuous 
O2 Monitoring
    We are finalizing the full-load stack test and continuous 
O2 monitoring provisions in today's action that allow 
existing sources to use their current O2 analyzer and 
O2 trim systems to demonstrate continuous compliance. Based 
on comments received, we have made some clarifying changes to these 
provisions to be clear that existing O2 trim systems and 
O2 monitors may be used to demonstrate continuous 
compliance, as well as clarifications on establishing the operating 
limits for O2 content. Changes to the continuous 
O2 monitoring requirements made since proposal are discussed 
below in section II.C of this preamble: ``Summary of Significant 
Changes Since Proposal.''
7. Non-Detect Methodology Using Three Times the Detection Level
    Since proposal, the EPA continued its review of sampling volumes 
and detection levels across various emission testing ICR efforts on 
various combustion sources to encompass additional pollutants measured 
using EPA Reference Method 29 (See memorandum ``Updated data and 
procedure for handling below detection level data in analyzing various 
pollutant emissions databases for MACT and RTR emissions limits'' in 
the CISWI docket). As a result of this analysis, we have determined 
recommended values for three times the RDL that may be used as a 
minimum emission limit value that can be accurately measured by most 
laboratories for Cd and Pb.\3\
---------------------------------------------------------------------------

    \3\ The RDL methodology is consistent with the RDL methodology 
outlined in the December 2011 reconsideration proposal. 76 FR 80463.
---------------------------------------------------------------------------

    Furthermore, based on comments on our application of this non-
detect methodology approach to CO data measured using instrument 
methods, we have made some modifications to the span calculation 
approach used in the proposed rule. Changes to the emission limits for 
Cd, Pb and the span adjustment calculations for CO made since proposal 
are discussed below in section II.C of this preamble: ``Summary of 
Significant Changes Since Proposal.''
8. Definitions for Foundry Sand Thermal Reclamation Unit and Chemical 
Recovery Unit
    We are finalizing the proposed definitions of ``foundry sand 
thermal reclamation unit'' and ``chemical recovery unit'' to clarify 
that these units are not incinerators, waste-burning kilns, ERUs or 
small, remote incinerators under subparts CCCC or DDDD.
9. Definition of Contained Gaseous Material
    In today's final rule, we have reintroduced and finalized the 
definition for ``contained gaseous material'' as found in the 2000 
CISWI rule as proposed. As discussed earlier, the Court's vacatur of 
the Delay Notice now requires this definition to be reintroduced since 
we are now amending the 2011 CISWI rule instead of making amendments to 
the 2000 CISWI rule as when we published the December 2011 
reconsideration proposal.
10. Parametric Monitoring Provisions for Additional Control Device 
Types
    In the proposed rule, we requested comment on whether there were 
additional control device types that we should identify monitoring 
provisions for in the rule. We received comments on this topic and, in 
today's final rule, are including monitoring provisions for sorbent 
injection rate for dry scrubber control devices (40 CFR 60.2165 and 40 
CR 60.2730). We have also clarified that sources that elect to use 
optional CEMS to monitor continuous compliance for Hg, D/Fs or 
NO2 may do so as a substitute for parametric monitoring of 
ACI and SNCR control devices, respectively. Changes to the parametric 
monitoring provisions made since proposal are discussed below in 
section II.C of this preamble: ``Summary of Significant Changes Since 
Proposal.''
11. Particulate Matter Continuous Monitoring Provisions for Large ERUs 
and Waste-Burning Kilns
    In today's rule, we are finalizing some revisions to the monitoring 
requirements for ERUs with an annual average heat input rate greater 
than 250 MMBtu/hr and extending the same PM continuous monitoring 
provisions to waste-burning kilns. In the final 2011 CISWI rule, these 
units were required to monitor continuously for PM using a PM CEMS; 
however, the PM CEMS technology may not be sufficient to certify 
accurate monitor performance in the PM concentration range of the CISWI 
biomass ERU and waste-burning kiln limits. Therefore, we are requiring 
continuous PM parameter monitoring systems for these units similar to 
those being required for major industrial boilers and utility boilers. 
The EPA is further requiring that a site-specific parametric operating 
limit be established during the performance test, that there be 
continuous monitoring of that parametric limit using a PM CPMS, that 
four deviations within a 12-month operating period constitute a 
violation and trigger immediate corrective action and a Method 5 
performance test within 30 days with an additional 15 days to 
reestablish a site-specific operating limit.
    We have revised all operating parameter averaging for ERU units to 
be on a 30-day rolling average and allowed the sorbent injection 
parameter to be adjusted for varying ERUs based on load. Changes to the 
PM continuous monitoring provisions and operating parameter provisions 
made since proposal are discussed below in section II.C of this 
preamble: ``Summary of Significant Changes Since Proposal.''
12. Revised Definition of Waste-Burning Kiln
    This final rule includes a definition of waste-burning kiln that 
has been revised since the March 2011 CISWI Rule. This definition helps 
clarify the EPA's intent regarding which types of Portland cement kilns 
are considered subject to CISWI standards and which kilns are subject 
to the Portland cement NESHAP. Since proposal, some additional language 
was added to this definition to further clarify our proposed 
definition. Changes to the definition of waste burning kiln made since 
proposal are discussed below in section II.C of this preamble: 
``Summary of Significant Changes Since Proposal.''
13. Revised Definition of Solid Waste
    In the March 21, 2011, final CISWI rule, we removed the definition 
of solid waste that was present in the 2000 CISWI Rule in light of the 
definition of solid waste in the final NHSM rule. Because applicability 
of section 129 hinges on sources combusting solid waste, we believe it 
is appropriate to include a definition of that term in the CISWI rule. 
For that reason, the final rule contains a definition of solid waste 
that refers to the final NHSM rule at 40 CFR 241.2.
14. Compliance Dates
    In the final rule, we are revising the compliance dates for new and 
existing CISWI units to reflect the effective dates of this final rule. 
The compliance date for existing sources depends primarily on state 
plan approval but may be no later than the date 5 years after 
publication of this final rule in the Federal Register. The EG are 
implemented through a state implementation plan or a federal plan. 
Under the final amendments to the EG, and consistent with the CAA 
section 129, revised state plans containing the revised existing source 
emission limits

[[Page 9122]]

and other requirements in the final amendments are due within 1 year 
after promulgation of the final reconsideration amendments. States must 
submit revised state plans to the EPA by February 7, 2014. The EPA will 
revise the existing federal plan to incorporate any changes and other 
requirements that the EPA has promulgated. The federal plan applies to 
CISWI units in any state without an approved state plan. Additional 
discussion of the state plan implementation schedule can be found at 76 
FR 15711.
    For new sources, the compliance date is either August 7, 2013 or 
the date of startup of the source, whichever is later. New sources are 
defined as sources that began construction on or after June 4, 2010, or 
commenced reconstruction or modification after August 7, 2013.
15. Revised New Source Performance Standards
    In the 2011 CISWI rule and the proposed reconsideration rule, EPA 
determined that the best controlled similar unit under section 
129(a)(2) was not a solid waste incineration unit for certain new 
source standards. Specifically, the new source limits for certain 
pollutants from waste burning kilns and ERUs were based on cement kilns 
and boilers, respectively. See memorandum ``CISWI Emission Limit 
Calculations for Existing and New Sources'' in the CISWI docket. Both 
the industrial boiler NESHAP and the Portland cement NESHAP are being 
revised, and additional data has been incorporated into the new source 
MACT analyses for those rules. As a result of the new data and 
analyses, several of the new source NESHAP limits are being revised and 
EPA is changing the following new source limits in CISWI based on the 
revised limits in the NESHAPs: NOX for waste-burning kilns, 
and Hg and PCDD/PCDF for ERU-liquid/gas units.

C. Summary of Significant Changes Since Proposal

1. Revision of the Subcategories
Energy Recovery Units
    In the final 2011 CISWI Rule, we established separate subcategories 
based on the types of fuels and wastes ERUs were designed to burn. 
Energy Recovery Units (e.g., units that would be boilers and process 
heaters but for that fact that they combust solid waste) designed to 
burn gaseous fuels and liquids that are solid waste were included in 
one primary subcategory and the other primary subcategory was for units 
designed to burn solid fuels or predominantly non-coal solid materials. 
In the final 2011 CISWI rule, the solid fuel ERU subcategory was 
further divided into separate subcategories for coal and biomass units, 
with separate limits for CO, NOX and SO2 to 
account for significant differences in unit design for these two types 
of fuels and the impacts the different unit designs have on emissions 
of these pollutants.
    Because the public was not afforded an opportunity to comment on 
the revision to the ERU subcategory, we identified this as a 
reconsideration issue in the March 21, 2011, notice of intent to 
reconsider certain aspects of the 2011 CISWI Rule. Certain petitions 
for reconsideration supported the further subcategorization of the 
solid-fuel ERU subcategory and suggested that all nine emission limits 
should be divided between coal and biomass ERUs, instead of only having 
different limits for CO, NOX and SO2.
    We granted reconsideration of our subcategorization approach for 
ERUs and proposed to establish different emission limits for PM, Cd, 
Pb, and D/F between coal and biomass units, in addition to establishing 
different limits for CO, NOX and SO2. We also 
solicited comment on whether we should also subcategorize solid-fuel 
ERUs for HCl and Hg.
    Based on comments and information received during the comment 
period, we have determined that it is appropriate to subcategorize 
solid fuel ERUs for all nine CAA section 129 pollutants. We recognize 
that there are significant design and operational differences between 
biomass and coal ERU units that impact the generation of all nine 
regulated pollutants, and, for this reason, we are establishing 
separate emission standards for all nine pollutants from coal and 
biomass ERUs in this final rule.
    In addition, since issuing the proposed reconsideration CISWI rule, 
we have received comments and data which allowed us to update our 
inventory of ERUs. The inventory adjustments we made more accurately 
reflect the inventory of solid waste combustion units. Based on 
comments from the operator of the units, we removed three units from 
the final rule inventory of biomass ERUs that were determined to be 
non-waste burning units and we re-analyzed the emission limits for the 
solid-biomass ERU subcategory. The commenter explained that, although 
permitted to burn materials that would be considered solid waste, these 
units had ceased burning the materials in question several years ago 
and would not recommence burning these in the future. Thus, at the time 
of testing, these units were not solid waste incineration units. We 
also received additional CO emissions data and re-analyzed the 
performance of the best-performing ERU in the solid-coal ERU 
subcategory. The emission limits in this final rule reflect the new 
inventory and emission data received; however, we have used the same 
methodology as in the 2011 CISWI rule and December 23, 2011, 
reconsideration proposal for establishing the emission limits.
Waste-Burning Kilns
    Prior to the reconsideration proposal, the EPA performed an 
analysis of the materials being combusted in the entire inventory of 
Portland cement kilns in light of the final NHSM rule (See memorandum 
``Revised Floors without Kilns that Would have been CISWI Kilns Had the 
Solid Waste Definition Applied'' in the CISWI docket). As a result of 
this analysis, we added 11 kilns to our inventory of waste-burning 
kilns. In addition to this, we further reviewed the Portland cement 
emissions test records and identified some additional test data for 
kilns that were added to the CISWI inventory following the March 21, 
2011, final rule publication. This newly-identified data was extracted 
and compiled into the CISWI database, and then the MACT floor emission 
limits were re-calculated in the December 23, 2011, proposed rule to 
reflect the updated inventory and additional data. Following proposal, 
we were also notified of one additional waste-burning kiln and that one 
of the kilns in the inventory was not burning waste materials. We made 
these adjustments to our inventory, bringing the total waste-burning 
kiln inventory to 23 kilns. We recalculated the standards in this final 
rule to include all 23 waste burning kilns.
    As with the new ERU standards, we have used the same methodology to 
establish today's emission limits as we used for the final 2011 CISWI 
rule. We have also retained the emissions concentration basis for the 
standards. However, Table 4 of this preamble presents the emission 
limits for PM, NOX, SO2 and Hg on a production 
basis for comparison.

   Table 4--Waste-Burning Kiln Emission Limits Expressed in Production
                                  Basis
------------------------------------------------------------------------
                                                      Existing     New
                  Pollutant (units)                     kilns     kilns
                                                         \a\       \a\
------------------------------------------------------------------------
Hg (lb/MM ton clinker)..............................        58        21
PM (lb/ton clinker).................................     0.026     0.013
NOX (lb/ton clinker)................................       6.7       1.5

[[Page 9123]]

 
SO2 (lb/ton clinker)................................       8.9       0.4
------------------------------------------------------------------------
\a\ Approximate.

Small Remote Incinerators
    After the reconsideration proposal, we received additional 
information from stakeholders of additional units in operation and 
planned for operation within the next year or two that would qualify as 
small remote incinerators. The resulting changes included moving one 
unit from the small remote incinerator subcategory to the incinerator 
subcategory due to the unit's proximity to a landfill in Alaska. An 
additional 15 small remote incinerators were added to our inventory of 
existing units, bringing the total of this subcategory to 28 units. 
This additional information resulted in changes to the emissions 
limits.
2. Revisions to the Monitoring Requirements
    After the March 21, 2001 final rule, petitioners identified 
computational issues for correcting CO concentration measurements to 7 
percent O2 for periods when the O2 content of the 
flue gas approaches the ambient air O2 content during 
startup and shutdown periods for sources that demonstrate compliance 
with the CO limit using CEMS. The equation for the 7 percent 
O2 correction is X ppm CO* (20.9-7)/(20.9-%O2 of 
flue gas stream). As seen by this equation, as the flue gas stream 
O2 content gets closer to 20.9, the value of X is multiplied 
by an ever increasing factor. For example, when the stack gas 
O2 content is 4 percent, the factor is 0.82. If the stack 
gas O2 content is 20 percent, the factor increases to 15.4. 
Therefore, a flue gas CO concentration reading of 100 ppm would be 
corrected to 82 ppm for a stack gas at 4 percent O2 content, 
but would become a 1,540 ppm corrected concentration for a stack gas at 
20 percent O2 content. In the extreme, at a 20.8 percent 
stack gas concentration (i.e., approximating ambient air O2 
content), the same 100 ppm measurement would be corrected to 13,900 
ppm.
    Petitioners noted that O2 contents relatively close to 
ambient air often are maintained during combustion unit startup and 
shutdown in order to safely operate the combustion unit. Therefore, CO 
readings during these periods would be multiplied by an 
uncharacteristically high correction factor, and the resulting 
corrected CO concentrations inflated due to the 7 percent O2 
correction. Petitioners and commenters presented data that show these 
corrected data points would have the potential to drive the 30-day 
rolling average values beyond the emission limit for the affected 
units, but this would not be an accurate reflection of the CO 
emissions.
    Petitioners suggested various approaches to remedy this situation, 
with one being to not require the 7 percent O2 correction 
requirement during unit startup and shutdown for sources that 
demonstrate compliance with the CO limit using CEMS. In other words, 
the CEMS data as reported at stack gas concentration without 
O2 correction would be included in the rolling average 
calculations for periods when the combustion unit is either being 
started up or shutdown instead of applying the O2 correction 
to that data before it is included in the calculation of the 30 day 
rolling average. During all other operating periods, the CEMS data 
would be corrected to a 7 percent O2 concentration prior to 
calculating the rolling average. Stated otherwise, the data obtained 
during startup and shutdown, which will not include the 7 percent 
O2 correction, will be added to the O2 corrected 
data collected during all other periods to calculate the 30-day average 
that is used to determine continuous compliance with the applicable CO 
limit for sources that demonstrate compliance using CEMS.
    Prior to issuing the reconsideration proposal, we received data for 
one unit in one subcategory (coal ERUs) that indicated startups usually 
occur over a 4-hour period and shutdowns occur over a 1 hour period. 
Therefore, we proposed provisions for calculating the 30-day CO rolling 
average that would allow the source to use CEMS data that does not 
include the O2 correction to be used during the first 4 
hours of operation from a cold start and the 1 hour of operation 
following the last waste material being fed to the combustion unit 
during shutdown procedures of the unit. Since proposal, however, we 
received comments on this provision, primarily pointing out that longer 
periods are required to protect combustion equipment from rapid 
temperature swings, which could cause damage to the fireboxes or kiln 
surfaces. Commenters also contended that the limited information 
concerning the startup and shutdown periods during which the 
O2 correction would not be required did not reflect the 
needs for all combustor types or control device configurations. We have 
therefore revised the shutdown and startup period of operation to be 
more generally applicable to CISWI units. In the case of ERUs, 
incinerators and small remote incinerators, we determined that the 
startup period should include the times prior to the source reaching 
the minimal operating temperature, but in no case longer than 48 hours. 
For shutdown, we determined as at proposal that shutdown begins after 
the last waste has been fed to the combustor prior to shutdown but we 
have revised the final rule to indicate that the shutdown period may 
not exceed 24 hours. We have, therefore, specified in the final rule an 
UL of 48 hours for startup periods to use uncorrected CEMS data and 24 
hours for shutdown periods to use uncorrected CEMS data for ERUs, 
incinerators and small remote incinerators. For waste-burning kilns, 
these periods are triggered off of material feed to the kiln rather 
than solely waste feed. This addresses the fact that kilns, unlike 
other CISWI units, are producing product rather than solely disposing 
of waste or recovering energy. Therefore, for waste-burning kilns, 
startup begins when the kiln's induced fan is turned on and continues 
until continuous feed is introduced into the kiln at which time the 
kiln is in normal operating mode. Shutdown begins when feed to the kiln 
is halted.
    As at proposal, sources must indicate in the CEMS data records 
which CEMS data are uncorrected because they were obtained during the 
startup and shutdown period.
    The O2 correction issue described above for CO CEMS data 
collected during startup and shutdown applies equally to other 
pollutants measured with a CEMS that is corrected to 7 percent 
O2. The final CISWI rule allows sources to demonstrate 
compliance with any of the standards using CEMS, and, for this reason, 
we have expanded authorization to use uncorrected CEMS data during 
periods of startup and shutdown to all pollutants for which a source 
demonstrates compliance with CEMS. In the final rule, the 7 percent 
O2 correction is not required during startup and shutdowns 
for any CISWI sources that elect to demonstrate continuous compliance 
with any of the emission limits with a CEMS instead of stack tests.
3. Oxygen Monitoring Requirements
    At proposal, we included provisions and definitions in an attempt 
to ensure that sources would be able to use existing O2 
monitoring systems to meet the continuous O2 monitoring 
requirements. However, commenters identified potential issues with our 
proposed provisions and definitions. To address these commenters' 
concerns, we

[[Page 9124]]

have revised the provisions in 40 CFR 60.2165 and 40 CFR 60.2730 to 
clarify the methodology for establishing and monitoring the 
O2 level. Furthermore, the definition of ``oxygen analyzer 
system'' has been revised to clarify the appropriate locations and 
nomenclature of possible existing monitoring systems so that their use 
to meet these requirements is fully enabled.
4. Removal of the Definition of Homogeneous Waste
    The EPA included in the final 2011 CISWI Rule a definition of 
homogenous waste and a process for evaluating claims that a particular 
waste stream is homogenous. The definition was added to the 2011 CISWI 
rule in response to comment. Because the determination of homogeneity 
of a waste stream is relevant to applicability of CAA section 129 to 
qualifying small power producers and qualifying cogeneration 
facilities, we determined it was reasonable to include a definition of 
``homogenous waste'' and a process by which sources could obtain a 
determination that a waste stream is homogenous from the EPA.
    In the 2011 CISWI Rule, the EPA stated that a determination 
concerning whether a waste is homogeneous is made on a case-by-case 
basis. The EPA added provisions to the CISWI final rule that require 
source owners or operators seeking the exemption to submit a request 
for a homogeneous waste determination to the EPA, and that they support 
their request with information describing the materials to be combusted 
and why they believe the waste is homogeneous. The 2011 CISWI rule also 
stated that the determination of what constitutes a homogeneous waste 
is not delegable to the state or local agencies. In the December 23, 
2011, reconsideration proposal, we proposed for comment the definition 
of ``homogeneous waste'' and the provisions for making homogeneous 
waste determinations that were included in the 2011 CISWI rule.
    Commenters generally did not agree with the proposed definition and 
provisions for making a homogeneous waste determination, arguing that 
the definition and provisions introduced ambiguities and stipulations 
that would prevent classification of many materials (including fossil 
fuels) as being ``homogeneous.'' We reevaluated the definition and 
provisions in light of the comments and determined that the definition 
and provisions could be interpreted in a manner that would be unduly 
restrictive; however, we also determined that commenters proposed 
alternative definitions and provisions were equally problematic. 
Therefore, the final rule does not include a definition of 
``homogeneous waste''. We are also removing the requirement that 
qualifying small power producers and qualifying cogeneration facilities 
that combust solid waste obtain a determination from EPA that such 
waste is homogenous. Because the final rule does not include a 
homogenous waste definition or a process to obtain a determination from 
EPA, we believe that it is appropriate to inform the EPA when a unit 
qualifies as a small power generator or cogeneration facility as 
defined under section 129 because the site specific fact patterns for 
different types of waste may vary considerably. Therefore, the final 
rule requires qualifying small power producers and qualifying 
cogeneration facilities that combust solid waste notify the EPA that 
such waste is homogeneous. (40 CFR 60.2020 and 40 CFR 60.2555).
    Section 129 states, in part, that the term ``solid waste 
incineration unit'' does not include:

* * * qualifying small power production facilities, as defined in 
section 796 (17)(C) of title 16, or qualifying cogeneration 
facilities, as defined in section 796 (18)(B) of title 16, which 
burn homogeneous waste (such as units which burn tires or used oil, 
but not including refuse-derived fuel) for the production of 
electric energy or in the case of qualifying cogeneration facilities 
which burn homogeneous waste for the production of electric energy 
and steam or forms of useful energy (such as heat) which are used 
for industrial, commercial, heating or cooling purposes * * * CAA 
Section 129(g)(1)(B) (emphasis added)

    We believe that the parenthetical contained in the exemption that 
prohibits refuse derived fuel, which is made from municipal solid 
waste, from qualifying as homogenous waste and allows tires and used 
oil to qualify as homogenous wastes provides guidance on what 
constitutes a homogenous waste. We do not accept industry's assertion 
that any waste from a common source is homogeneous, or that in all 
cases combining two homogeneous wastes results in a homogeneous waste, 
as doing so could result in almost any waste stream being homogenous. 
We do not believe that is consistent with the statute. Instead, we 
believe Congress intended this exemption to apply only when the waste 
stream has a consistent makeup that allows the source and the 
enforcement authority to predict the range of emissions from the 
combustion of the waste on an ongoing basis.
    In keeping with this interpretation, we maintain that the 
homogeneous wastes are generally material specific (e.g., tires or used 
oil). We believe this means that a homogeneous waste is of known origin 
and that it can be identified as a specific material or materials--
using the example in the Act, certain used oils or scrap tires. By 
contrast, municipal solid waste can be identified as municipal solid 
waste as a general term, but it is not composed of only one or two 
specific type of waste; e.g. municipal solid waste cannot be identified 
as one specific material or group of materials. Regarding variability 
of the composition of homogeneous waste throughout, homogeneous waste 
may have variations in composition, but it should generally be within 
the range of operations which produce the waste (e.g., size, 
contaminant levels, state of matter.) We also believe that off-spec 
materials may be homogeneous, even if they are not homogeneous to the 
on-spec material, and that, if combusted together, both the on-spec and 
off-spec materials may require separate homogenous waste 
determinations. We also believe that homogeneous waste should have 
predictable known contaminant levels, even if those contaminant levels 
vary within a range. We may question the homogeneity of a specific 
material if it is adulterated such that it takes on the characteristics 
of a different type of waste (e.g., used oil which is so contaminated 
with PCB's from a leaking heat exchanger, such that the used oil takes 
on the characteristics of a waste PCB stream as opposed to a used oil 
stream) or where the BTU value of a waste is so altered that other 
fuels must be introduced to ensure combustion and preserve the purpose 
of combustion under the exemption, i.e. to produce energy.
5. Non-Detect Methodology Using Three Times the Detection Level
    Prior to reconsideration proposal, the EPA conducted a review of 
sampling volumes and detection levels across various emission testing 
ICR efforts on various combustion sources (See memorandum ``Updated 
data and procedure for handling below detection level data in analyzing 
various pollutant emissions databases for MACT and RTR emissions 
limits'' in the CISWI docket). As a result of this analysis, we 
determined recommended values for three times the RDL (3xRDL) that may 
be used as a minimum emission limit value that can be accurately 
measured by most laboratories. These recommended values were then 
compared with calculated emission limits and, if the calculated limit 
was less than the recommended 3xRDL, the 3xRDL value was selected as 
the limit. Since the December 23, 2011, reconsideration proposal was 
published,

[[Page 9125]]

we have continued our review and determined 3xRDL values for additional 
metals measured using EPA Reference Method 29. These include 
recommended values for Cd and Pb and we have applied this methodology 
to those emission limits in addition to the D/F and Hg limits that were 
reevaluated in the reconsideration proposal. As discussed in the 
reconsideration proposal, the premise for this approach is the same as 
described in the final 2011 CISWI rule but using a broader data set to 
establish the 3xRDL value. We have not changed the methodology of the 
emission limit calculation or tabulation of the three times the 
detection limit value that was used in the final 2011 CISWI rule.
    Since reconsideration proposal, some commenters have noted that the 
EPA Method 5 minimum catch values were below levels established in 
similar studies on this reference method. In light of these comments, 
we have reconsidered the 1 mg minimum catch value used in the 
reconsideration proposal and are now using a 1 mg minimum catch in 
establishing the final rule emission limits. Our review and 
determination of the 1 mg minimum catch are discussed in ``Minimum 
Detection Limit for EPA Method 5'' in the CISWI docket.
    In a similar fashion, the CO span adjustment methodology has been 
further refined in consideration of comments on the approach used to 
adjust CO instrumental test methods readings in reconsideration 
proposal. The methodology for adjusting CO emission test run data to 
reflect the limitations from the instrument span used at testing is 
described in the ``CISWI Emission Limit Calculations for Existing and 
New Sources for the Reconsideration Final Rule'' memorandum in the 
CISWI docket.
6. Parametric Monitoring for Additional Control Device Types
    In the December 23, 2011, reconsideration proposal, we stated that 
we believed the control devices with monitoring provisions expressly 
identified in the rules should encompass most types of control devices 
that we anticipate the various types of CISWI units will use to meet 
the emission limits. However, recognizing that a source might want to 
employ another type of control that is not addressed, we provided 
provisions for sources to petition for specific operating limits for 
alternative control devices to be established during a performance 
test. These provisions also allow specific operating limits to be 
established for CISWI units without any air pollution control devices, 
such as for units that employ material balance operating limits in 
conjunction with periodic stack testing to demonstrate continuous 
compliance.
    We also determined that dry sorbent injection (or dry scrubbers) 
may be one type of additional control device that CISWI units may 
widely use to control acid gases. Commenters agreed with our statement 
and encouraged the EPA to identify operating parameters for dry 
scrubbing systems in the final rule. We have done so, by both defining 
``dry scrubber'' in the rule, and specifying that the sorbent injection 
rate must be monitored and maintained at or above the operating rate 
established during the HCl performance test (40 CFR 60.2165 and 40 CFR 
60.2730). Furthermore, we have determined that the sorbent injection 
rate for ERUs can be adjusted to reflect operating loads that are less 
than those during the performance testing. Commenters have made 
arguments that requiring a high sorbent injection rate during reduced 
boiler loads can lead to fouling and plugging issues, especially for 
acid gas sorbent injection. To address this particular concern, and to 
provide consistency with other industrial boiler rules, we are also 
providing this parametric monitoring provision for sorbent injection 
air pollution control devices.
    Also regarding monitoring, we determined after proposal that we had 
not clarified in the rule that sources opting to use CEMS to measure 
NOX, Hg or D/F were not required to monitor ACI rates (for 
Hg and D/F CEMS-equipped units) or SNCR parameter monitoring (for 
NOX CEMS-equipped units). Our intent had been to not require 
applicable control device parameter monitoring if a CEMS was in use for 
the pollutant being controlled by the device. Control device parameter 
monitoring is an acceptable and established method for determining 
continuous compliance and it is appropriate to require such monitoring 
when coupled with period stack testing. However, direct, continuous 
emission measurements with a CEMS are sufficient for determining 
compliance for CISWI units without requiring parametric monitoring. In 
cases where CEMS data are available to directly measure regulated 
pollutants, operating parameter data would be duplicative.
7. Particulate Matter Continuous Monitoring Provisions for Large ERUs 
and Waste-Burning Kilns
    In today's rule, we are finalizing monitoring requirements for ERUs 
with an annual average heat input rate greater than 250 MMBtu/hr. As we 
stated in the proposal, recent EPA experience with the utility boiler 
source category has led the EPA to allow PM CEMS as an alternative, 
rather than a requirement. Industry commenters have maintained that 
there were several problems with implementing the monitoring 
requirements to demonstrate compliance using a PM CEMS and with the 
requirements to conduct a periodic audit of the PM CEMS in accordance 
with PS 11 of appendix B and Procedure 2 of appendix F to part 60. As 
we discuss in response to these comments later in this preamble (See 
II.E), the PM CEMS technology may not be sufficient to certify accurate 
monitor performance in the PM concentration range of the CISWI biomass 
ERU limits. Furthermore, in related ongoing work on the Portland cement 
source category, we realize that similar concerns regarding PM CEMS are 
applicable. Therefore, we are also removing PM CEMS (PS-11) 
requirements for waste-burning kilns, and instead, requiring PM CEMS 
equipment for these units that are used for continuous parametric 
monitoring rather than for direct measure of compliance with the 
numerical PM emissions limit, similar to those being required for major 
industrial boilers and utility boilers. However, PM CEMS (PS-11), are 
still allowed as an option for coal ERUs, incinerators and small remote 
incinerators, since the emission limits for these subcategories do not 
pose the same technical concerns as for biomass ERUs and waste-burning 
kilns. To be consistent with these other rules, we have incorporated 
30-day rolling averages to be measured with PM CPMS. The EPA is further 
requiring that a site-specific parametric operating limit be 
established during the performance test, that there be continuous 
monitoring of that parametric limit using a PM CPMS, that an exceedance 
of that site-specific operating limit be reported as a deviation and 
trigger immediate corrective action and a Method 5 performance test 
within 45 days.
8. Compliance Dates
    At reconsideration proposal, we proposed to extend the compliance 
dates for existing units in the incinerator, ERU and waste-burning kiln 
subcategories. We are finalizing the revision of the effective dates 
for those three subcategories and, based on comments received, we are 
also extending the compliance date for units in the small remote 
incinerator subcategory. The EPA proposed to amend the standards for CO 
for all subcategories of CISWI; to further

[[Page 9126]]

subcategorize certain subcategories; to change several other pollutant 
standards for incinerator, ERU and waste burning kilns subcategories; 
to change the compliance regime from CEMS-based to stack-test/
parametric-monitoring based for certain pollutants and unit types; and 
to change the compliance calculation provisions for sources that are 
required or that elect to use CEMS to demonstrate continuous 
compliance. These proposed changes may occasion the need for additional 
time for sources to study the possibility of different control and 
monitoring strategies than would have been considered if we had not 
amended the 2011 CISWI rule. New compliance strategies may require time 
to implement. New engineering studies may be needed, potential 
suppliers identified, a new bidding/procurement process undertaken and 
the appropriate construction and operating permits obtained. 
Significant plant redesign, in the form of new ductwork and new fan 
design and changes in the main control equipment may be needed. See US 
EPA, Engineering and Economic Factors Affecting the Installation of 
Control Technologies for Multipollutant Strategies, October 2002. 
Depending on the type of control, this normally requires 15-27 months. 
Multiple control systems may take longer. Id. Installation of controls 
normally occurs at times of unit outages, which will likely end up 
being at differing times of the year for each of the CISWI 
subcategories. For example, for waste-burning kilns, this would occur 
during winter months (to coincide with kiln outages during low 
production seasons). However, for small remote incinerators, facility 
retrofits would need to occur while road access to the site is 
available and climatic conditions allow for construction. Also, small 
remote incinerators have the additional component of having to increase 
the footprint of the site to accommodate additional space for control 
devices and waste segregation facilities. This additional permitting 
requirement and construction effort is not something other CISWI 
subcategories have to face but adds an additional consideration to 
developing a compliance strategy. In general, though, the differing 
construction constraints for the various subcategories of CISWI likely 
mean that there will be a wide variety to the rate of progress towards 
compliance for the differing CISWI sources. Further, commenters have 
argued that, due to the delay of the final 2011 CISWI rule, uncertainty 
on selecting a compliance strategy was created, essentially putting 
internal compliance implementation activities on hold until the 
reconsideration was complete. As a result of these considerations, we 
have finalized extending compliance for all subcategories of CISWI. 
Comments on extending the compliance date and our responses to these 
comments are found in the ``Summary of Comments and Responses to the 
CISWI Reconsideration'' document in the CISWI docket.
    The compliance date for existing CISWI sources subject to standards 
in this final rule is 5 years after the date of publication of this 
final rule or 3 years after the state plan is approved, whichever 
happens earlier. This date is being finalized in order to provide 
facilities sufficient time to install controls or to make other 
compliance-related decisions. However, the CAA section 129(f)(2) does 
require that the promulgated standards be effective ``as expeditiously 
as practicable after approval of a State plan,'' so that states have 
the flexibility to determine that the standards for existing units 
within their purview may have a compliance date which is less than the 
allowable 3 years following approval of the state plan. For new 
sources, the EPA is finalizing the proposed change of the compliance 
date to 6 months after the date of publication of the final 
reconsideration rule or at startup, whichever is later.
9. Definition of Waste-Burning Kiln
    In the December 23, 2011, reconsideration proposal, we proposed 
revisions to the definition of ``waste-burning kiln'' to indicate that 
the term ``does not include a kiln that is feeding non-hazardous 
secondary ingredients exclusively into the cold end of the kiln.'' In 
proposing this language, the EPA intended to codify principles set out 
in a previous action granting and denying reconsideration of the NESHAP 
for Portland cement kilns. See 76 FR 28318, 28322 (May 17, 2011); see 
also Memorandum ``Revised Floors Without Kilns That Would Have Been 
CISWI Kilns Had the Solid Waste Definition Applied'' (EPA, April 25, 
2011) (which memorandum is summarized in the May 17 Federal Register 
notice). The May 17, 2011, notice and April 25, 2011, memorandum state 
in essence that combustion does not occur in any region of a cement 
kiln except the hot end and that cement kiln dust added to the hot end 
of a cement kiln also is not combusted since it is inorganic and 
essentially inert.
    The language used at proposal captured some but not all of these 
principles, since it referred only to the ``cold end'' of a cement 
kiln, as pointed out by a number of commenters. The EPA is revising the 
definition in the final rule to accurately reflect the May 17 preamble 
and April 25 memorandum discussion of when combustion occurs in a 
cement kiln. In addition, we are adding the fact that combustion in a 
cement kiln does also take place in the combustion zone of a 
precalciner or riser duct burner.
    One further clarification is appropriate. The May 17, 2011, 
preamble contains one reference to legitimacy criteria for determining 
when a secondary material is being recycled. 76 FR at 28322/1-2. The 
threshold issue for determining if a unit is subject to section 129 is 
whether it ``combusts'' solid waste material (see section 129 (g)(1)). 
For cement kilns, this determination does not necessarily turn on 
legitimacy of recycling, but rather on the nature of the cement kiln 
process. Consequently, if combustion of solid waste is not occurring, a 
unit is not a CISWI, irrespective of whether or not legitimate 
recycling is occurring.
10. Exemption for Other Solid Waste Incineration (OSWI) Units
    Following publication of the December 23, 2011, reconsideration 
proposal, we realized that the CISWI rule did not contain any language 
to clarify overlap with another CAA section 129 regulation applicable 
to OSWI units. The CISWI rule already contains exemptions for MWCs, 
HMIWIs and SSIs, but omitted similar language for OSWI units. 
Therefore, in this final rule, we are providing language in 40 CFR 
60.2020 and 60.2555 that clarifies that incineration units that are 
subject to 40 CFR part 60 subparts EEEE or FFFF are exempt from the 
CISWI rule.

D. Technical Corrections and Clarifications

    We are also including some technical corrections and clarifications 
in the final rule, as outlined below:
     Operating parameter limits during performance testing--
While we believe it is intrinsic that established operating parameter 
limits do not apply during subsequent performance testing since they 
are being confirmed or reestablished during the subsequent testing, we 
provided language in the proposed rule in the NSPS to clarify that they 
are waived during performance testing (40 CFR 60.2145(c)). However, we 
inadvertently omitted this clarifying language in the emission 
guidelines so we have added clarifying language in the final emission 
guidelines at 40 CFR 60.2710(c).
     Bypass stacks on waste-burning kilns--While not included 
in the final

[[Page 9127]]

rule text, we are clarifying here that the definition of ``bypass 
stack'' in today's final rule does not have the same meaning as an 
``alkali bypass'' used by some waste-burning kilns that manufacture 
Portland cement.
     Clarifying that, consistent with CAA section 129(f)(1), 
June 4, 2010, is the appropriate new source applicability date in 40 
CFR 60.2015(a)(1).
     Revising the title of Table 2 to subpart DDDD to clarify 
that these emission limits apply to incinerators which are currently 
subject to CISWI emission limits promulgated in the 2000 CISWI rule.
     Clarifying that petitions for specific operating limits 
for control devices not listed in this subpart must be submitted to the 
Administrator at least 60 days before the performance test is scheduled 
to begin (40 CFR 60.2115 and 40 CFR 60.2680).
     Providing definitions of ``30-day rolling average'' and 
``responsible official'' to clarify what is meant by these terms.
     Adding text to the provisions for PM monitoring provisions 
for ERUs to clarify that the 250 MMBtu/hr threshold is based upon the 
average annual heat input rate, consistent with how this threshold is 
applied in the industrial boiler NESHAP.
     Revising the affirmative defense text to clarify that 
these provisions apply to violations of standards and to further 
clarify the reporting requirements and criteria for sources seeking to 
assert an affirmative defense (40 CFR 60.2120 and 40 CFR 60.2685).
     Revising the recordkeeping provisions in 40 CFR 60.2175(v) 
and 40 CFR 60.2740(u) to reflect the categorical non-waste 
determination provisions of 40 CFR 241.4.
     Revising the electronic reporting provisions in 40 CFR 
60.2235 and 40 CFR 60.2795 to clarify the timing and mechanism for 
submitting these reports and to be consistent with the electronic 
reporting language in more recent rulemakings.
     Revising the definition of ``process change'' to clarify 
the intended types of changes that would require re-testing.
     Making corrections to the D/F calculation methodologies 
for toxic equivalency basis and adding calculation methodology 
provisions for D/F TMB.
     Revising the definition of ``space heater'' to clarify 
applicability for units that meet the requirements of 40 CFR 279.
     Revising the emission limits for those pollutants for 
which data available from a similar source was determined to be better 
suited for calculating the new source limits. Notably, this is the case 
for NOX for waste-burning kilns, and for Hg and PCDD/PCDF 
for ERU-liquid/gas units. These revisions reflect updates made to 
emission limits of the selected similar sources.

E. Major Public Comments and Responses

    We have included some of the major comment topics and our responses 
below in the preamble. All other comments and responses are provided in 
the ``Reconsideration Response to Public Comments Document'' in the 
CISWI docket.
Solid-Fuel ERU Subcategorization
    Comment: Several commenters support the proposed separate coal and 
biomass standards for D/Fs, CO, NOX, SO2, PM, Cd 
and Pb. However, these commenters further urge the EPA to establish 
separate standards for HCl and Hg for coal and biomass. Commenters 
state that the EPA's recognition that design and operational 
differences between combustors designed to combust coal and those 
designed to combust biomass is evidence to support subcategorizing 
emission limits for all pollutants. One commenter discussed differences 
in biomass and coal fuel rank, and the significant boiler design 
differences in furnace height and volume that exist between units 
designed to combust different fuel ranks of coal-fired boiler furnaces. 
As an example, one commenter noted that a low-rank coal (high slagging 
lignite) furnace can be 1.65 times the plan area, and 1.45 times the 
furnace height, of a similar capacity furnace combusting a high rank 
coal (medium volatile bituminous). The commenter stated that this large 
difference exists even among varying grades of coal, with biomass units 
being fuels of even lower rank than lignite. Therefore, according to 
the commenter, furnace area and height (and hence, volume) are 
significantly different between ERUs designed to combust coal and those 
designed for biomass combustion. The commenter highlighted an analysis 
of their existing boilers to see the feasibility of substituting 
biomass for coal. The commenter's results indicated that, due to 
fundamental design attributes of their coal-fired units, they could 
only co-fire up to 20 percent biomass in the units. The commenter 
explained that this limitation was due to design issues pertaining to 
the unit being designed for coal, such as superheater tube spacing, 
number and location of soot blowers, fouling characteristics of biomass 
ash and the impact the high moisture levels of biomass fuels have on 
fan capacity. The commenter stated that these findings further support 
that coal and biomass are not interchangeable within ERUs and therefore 
supports subcategorizing emission limits between the two types of unit. 
The commenter also contended that the EPA acknowledged significant 
design differences and their impacts on Hg emissions during development 
of the Utility MACT Final Rule. The commenter urges the EPA to take a 
similar approach in CISWI. One commenter agreed with differentiation 
between coal-fired and biomass ERUs but supported keeping solid-fuel 
ERUs together for purposed of HCl and Hg emission limits. Another 
commenter argued that all of the EPA's subcategories are unlawful and 
arbitrary, noting that their reasons for this belief were given in 
their comments on the 2010 proposal.
    Response: Based on our proposal and follow-up comments summarized 
below, the EPA is finalizing separate limits for all nine pollutants 
for biomass and coal ERUs. We agree with comments concerning 
differences in moisture content between biomass and coal-fired units. 
We reviewed data in the CISWI database and see that the stack gas 
moisture content of coal-fired ERUs is around 11.6 percent and is about 
19.2 percent for the biomass ERUs. We have considered the technical 
arguments provided by commenters on CISWI ERUs, other technical 
differences we have previously considered in our decision to 
subcategorize ERUs and how these design differences impact pollutant 
emission characteristics of the ERU. As a result, we have determined 
that subcategorizing all nine pollutant emission limits between coal 
and biomass solid-fuel ERUs is appropriate for the final CISWI rule.
    One commenter supported the differentiation between coal and 
biomass, but in keeping HCl and Hg limits together. However, for the 
reasons given above, we have determined that all nine pollutants should 
be subcategorized.
Contained Gaseous Material
    Comment: Commenters support the EPA retaining the 2000 CISWI rule's 
definition of ``contained gaseous material.'' Some commenters believe 
that the EPA should expressly include the definition of ``contained 
gaseous material'' in the amendatory text to confirm that the 
definition is back in the CISWI rule.
    Response: We believe that the commenters misunderstood what the EPA 
proposed. Specifically, the basis of

[[Page 9128]]

the reconsideration proposal amendatory text was the 2000 CISWI rule--
not the 2011 CISWI rule--because the 2011 CISWI rule had not been 
codified in the CFR pursuant to the Delay Notice. Therefore, by not 
including the amendatory instruction to delete the definition in the 
2000 rule in the proposed reconsideration rule, we proposed to retain 
the definition as contained in the 2000 CISWI rule. However, as 
explained above, due to the vacatur of the Delay Notice, the 2011 CISWI 
rule is in effect and the definition of contained gaseous material does 
not appear in that rule. For that reason, we are including the 
definition of ``contained gaseous material'' found in the 2000 CISWI 
rule in today's final rule.
    Comment: Many commenters who supported the EPA retaining the 2000 
CISWI rule's definition of ``contained gaseous material'' also urged 
the Agency to make clear that this definition should apply when 
interpreting the term ``solid waste'' under RCRA.
    Response: As aforementioned, the Agency is including the definition 
of ``contained gaseous material'' found in the 2000 CISWI Rule in 
today's final rule. Specifically, the definition of ``contained gaseous 
material'' is codified today, consistent with the 2000 CISWI Rule, as 
meaning, ``gases that are in a container when that container is 
combusted.''\4\
---------------------------------------------------------------------------

    \4\ See 65 FR at 75359 and 75373.
---------------------------------------------------------------------------

    CAA section 129(g)(6) states that the definition of ``solid waste'' 
shall have the meaning established by the Administrator pursuant to 
RCRA. We agree that the definition of contained gaseous materials in 
the final CISWI rule is consistent with the interpretation of that term 
under RCRA for the purpose of defining when non-hazardous secondary 
materials are solid wastes when combusted in CISWI units.\5\ As 
discussed in more detail in the NHSM portion of the December 2011 
reconsideration proposal and in various letters issued by EPA,\6\ the 
NHSM rulemaking did not change any previous EPA position as it relates 
to whether ``contained gaseous material'' is a solid waste under 
RCRA.'' \7\
---------------------------------------------------------------------------

    \5\ Note that for the purposes of CISWI, contained gaseous 
materials are limited to gases in a container when that container is 
combusted. This limitation is due to the fact that CAA section 129 
is focused exclusively on combustion of non-hazardous solid wastes. 
On the other hand, RCRA is focused on more than just combustion of 
non-hazardous solid wastes (e.g., treatment, storage, and disposal 
of hazardous and non-hazardous wastes); thus, this limitation is 
inapplicable to RCRA. We also note that the term 'container' as used 
in this definition is broader than the term as used in the hazardous 
waste regulations (see 40 CFR 260.10, definition of container). 
Specifically, the term here is not limited to a portable device, but 
also includes stationary containers. We believe that these 
interpretations under the CAA and RCRA are consistent.
    \6\ For example, see June 25, 2012 letter from Assistant 
Administrator Mathy Stanislaus to Paul Noe. A copy of this letter 
has been placed in the docket for today's rulemaking.
    \7\ See 76 FR at 80472-80473.
---------------------------------------------------------------------------

    We note, however, that although gases must be ``contained'' to be 
solid wastes under RCRA, EPA maintains separate and independent 
authority under RCRA to regulate certain types of uncontained gases 
whether or not they themselves are solid wastes (e.g., gases emitted 
from the management of hazardous waste).\8\
---------------------------------------------------------------------------

    \8\ RCRA section 3002(a) directs EPA to establish standards for 
hazardous waste generators and RCRA section 3004(a) directs EPA to 
establish performance standards for all facilities that treat, store 
or dispose of hazardous waste. Both of these provisions grant 
authority to control gaseous emissions from hazardous waste 
management as may be necessary to protect human health and the 
environment. RCRA sections 3004(n), and (o)(1)(B), further direct 
EPA to regulate air emissions from, respectively, hazardous waste 
treatment, storage and disposal facilities; and hazardous waste 
incinerators. The authority provided in RCRA section 3004(q) to 
regulate fuel produced from hazardous waste also encompasses gaseous 
fuels (when they are produced from hazardous wastes).The authority 
provided in RCRA section 3004(u) to control ``releases'' of 
hazardous constituents from solid waste management units at a 
facility seeking a RCRA permit also encompasses gaseous releases 
(when the gases are hazardous constituents). The authority granted 
under these sections of the statute is independent of EPA's 
authorities over solid waste. As an example, EPA has authority to 
regulate emissions generated during treatment of hazardous waste, 
including volatilization and incineration of hazardous waste.
---------------------------------------------------------------------------

    Comment: Some commenters also requested that EPA clarify that 
landfill gas is not considered to be a ``contained gaseous material'' 
and/or a ``solid waste'' under RCRA.
    Response: We agree with commenters that landfill gases must be in a 
container when that container is combusted to be considered ``contained 
gaseous material'' under today's final CISWI regulations.
    However, given that landfill gas is emitted from solid waste (i.e., 
non-hazardous solid waste landfills or municipal waste landfills), EPA 
has distinct and independent authority under RCRA to regulate this 
material as part of our authority to regulate solid waste landfills 
(for example, in order to address the risk of explosions posed by 
methane emissions per 40 CFR 258.23).\9\
---------------------------------------------------------------------------

    \9\ RCRA Subtitle D gives EPA authority to set standards for 
non-hazardous waste disposal facilities, including standards for air 
emissions. For example, EPA's criteria for municipal solid waste 
landfills, established pursuant to RCRA sections 1008(a)(3), 2002, 
4004(a), and 4010(c), generally address air quality by prohibiting 
the open burning of waste and by setting limits on the concentration 
of explosive gases (i.e., methane). See also March 6, 1986 Letter 
from Marcia E. Williams to Mr. H. Lanier Hickman, Jr., which states, 
``[W]e believe it is clear that the U.S. Environmental Protection 
Agency (EPA) has the authority under both Sections 3004(n) and 
4004(a) of RCRA, as well as the CAA, to regulate gaseous emissions 
from hazardous and non-hazardous waste landfills.''
---------------------------------------------------------------------------

Oxygen Correction During Startup and Shutdown
    Comment: Commenters generally support allowing the use of 
uncorrected CEMS data during startup and shutdown. Several commenters 
are concerned that the 4[hyphen] hour startup and a 1-hour shutdown 
period (derived from a single coal fired unit) are not sufficient for 
all the CISWI unit types and technologies. Other commenters believe 
there should be no time limitations on shutdown and startups. One 
commenter, however, believes the proposed time limit is appropriate. 
Some commenters recommend using the Boiler MACT rule approach using 
load to define when the O2 corrections do not apply.
    Commenters also urge the EPA to eliminate the O2 
correction for all CEM-measured emission limits, not just CO, during 
startup and shutdown periods. Commenters also support making this 
allowance available to all types of CISWI unit, not only ERUs.
    Response: In today's final rule, we are retaining the provision 
that allows sources to use uncorrected CO CEMS data during periods of 
startup and shutdown. Based on comments and the technical 
justifications for allowing the use of uncorrected CEMS data identified 
during the comment period, we are expanding this provision to any 
pollutant for which continuous compliance is being determined using 
CEMS as explained above in ``Section II.C: Summary of Significant 
Changes Since Proposal.''
Particulate Matter Continuous Monitoring Provisions for Large ERUs and 
Waste-Burning Kilns
    Comment: Several commenters supported the EPA's proposal to remove 
requirements for PM CEMS (using PS-11) for continuous compliance for 
large ERUs and waste-burning kilns, stating that PM CEMS usefulness and 
application issues of these monitors are uncertain. Commenters asserted 
that, for biomass ERUs and sources with low PM concentration, PM CEMS 
were not adequate to accurately monitor low PM concentrations. 
Commenters further contended that PM CPMS are essentially the same 
thing as PM CEMS, and that there were no clear instructions on how to 
``certify'' PM CPMS, as was required in the proposed rule. Commenters 
added that they do not understand how the recording of hourly and 30-
day rolling averages of the output from these monitors will be useful 
to demonstrate

[[Page 9129]]

performance or evaluate compliance with a PM limit. One commenter 
suggested that the EPA remove the PM CPMS requirements altogether for 
all industrial boilers.
    Response: We are revising the PM CEMS requirements in the final 
rule as explained above.
    In responding to this comment specifically, we believe it is useful 
to review the procedures and acceptance criteria of PS-11, the protocol 
mandated by the 2011 final CISWI rule.
Performance Specification-11
    PS-11 is structured differently than other PSs that apply to 
validating the performance of gaseous pollutant CEMS. This is primarily 
because the pollutant, PM, is defined entirely by the test method 
specified by regulation to measure it. As the industry commenters note, 
there are no independent standard reference materials for PM 
concentrations as there are for gaseous pollutants (e.g., NIST 
traceable compressed gases for validating SO2 or 
NOX instrumental measurements). The only reference standard 
for determining the PM concentration in an air or stack gas sample is 
the reference test method. In the case of the CISWI final rule, the 
rule specifies EPA Method 5 for measuring filterable PM concentration 
(e.g., in mg/dscm).
    Performance Specification 11 provides procedures and acceptance 
criteria for validating the performance of several types of PM CEMS 
technologies. Although there are multiple instrument and data reporting 
operational performance checks in PS-11 that are similar in concept to 
those for gaseous pollutant CEMS, there is a principal PM CEMS 
performance requirement that is distinctly different. That difference 
is the development of a site-specific PM CEMS correlation or 
mathematical response curve. There are two key procedural elements to 
developing that correlation. First, PS-11 requires that the source 
conduct stack test runs using an EPA PM test method (e.g., Method 5) 
and simultaneously collect corresponding PM CEMS output data. Second, 
the source must vary the operation of the control device manually in 
order to produce a range of PM concentrations. Performance 
Specification 11, section 8.6, requires at least five test runs at each 
of three different operating conditions (i.e., low, mid and high PM 
concentrations) for a total of 15 or more test runs that range from 25 
to 100 percent of allowable emissions. Then the source must use the 
test method data and the corresponding PM CEMS output data to develop 
an equation (i.e., a calculated linear or nonlinear curve) that will be 
used to define the relationship between the PM CEMS output and the test 
method measured PM concentrations. Each site-specific correlation must 
meet several PS-11 acceptance criteria including limits on confidence 
interval and tolerance interval equating to 25 percent of 
the applicable emissions limit.
Discussion of Technical Issues
    In prior comments submitted to the EPA on the PM CEMS requirements 
for waste-burning kilns, one issue raised about conducting the testing 
to meet the PS-11 correlation development requirement is the 
impracticality of varying the emissions from a FF control device. Many 
CISWI units subject to the standards use FF control devices.
    We agree with commenters that there are typically few, if any, 
physical adjustments one can apply to a FF or to the waste-burning kiln 
process to change the outlet PM concentration significantly. A FF 
produces essentially a constant outlet concentration even with changes 
to the inlet loading or flow (https://www.epa.gov/ttnchie1/mkb/documents/ff-pulse.pdf). Although PS-11 allows some flexibility when 
control device perturbations are not possible, the resulting 
correlation would apply for only the narrow range of concentrations 
measured during the testing. The result would be that the PM CEMS would 
be correlated only for a relatively small range of conditions below the 
applicable compliance limit. This range would not necessarily include 
situations where the standard might be exceeded. Without the ability to 
calculate emissions should the FF performance change from initial test 
conditions (e.g., bag leaks begin to develop), such a limited 
correlation range would render the PM CEMS less reliable for 
calculating long term average concentrations or emissions rates and for 
verifying compliance. Additionally, it is difficult and resource 
intensive to modify baghouse control efficiency in a way that is 
representative of normal operations at a waste-burning kiln.
    Commenters also cited problems in developing correlations in stack 
gases with variable PM constituents and physical characteristics when 
using light scatter or scintillation detection PM CEMS devices. As 
noted above and in the EPA's technology background documents (e.g., 
https://www.epa.gov/ttn/emc/cem/pmcemsknowfinalrep.pdf and https://www.epa.gov/ttn/emc/cem/r4703-02-07.pdf), the correlations developed 
for these types of instruments are inherently dependent on the particle 
structure, size and other physical characteristics as well as PM mass 
in the exhaust gases for each site. Put another way, these light-based 
PM CEMS produce a signal that can vary when different fuels or raw 
materials are introduced to the kilns or ERU even when the FF outlet 
mass concentration remains unchanged.
    To the extent that physical characteristics of the PM in the stack 
remain stable, correlations for light-based PM CEMS meeting PS-11 
performance criteria can represent mass rates to the degree of accuracy 
required by PS-11. For example, there are various design structures 
used in some light-based PM CEMS devices that can mitigate the effects 
of changes in the physical aspects of particles on measurement 
uncertainty. In addition to the type of light effect measured (e.g., 
Rayleigh or Mie scattering or light scintillation), the detector 
wavelength and the frequency are design factors that will affect how 
the PM CEMS responds to small changes in the physical appearance of the 
PM.
    On this point, we note that if a source owner were concerned about 
the ability of a light-based PM CEMS to meet the requirements of PS-11 
because of variable physical characteristics of particles in the stack, 
there is at least one other PM CEMS technology based more directly on 
mass measurement rather than on light scatter or light scintillation 
characteristics. The currently available Beta gauge technology does not 
suffer from this particular technical problem. The Beta attenuation PM 
CEMS, also called Beta gauge, extracts a sample for the stack gas and 
collects the PM on a filter tape. The device periodically advances the 
tape from the sampling mode to an area where the sample is exposed to 
Beta radiation. The detector measures the amount of Beta emitted by the 
sample and that amount can be directly related to the mass of PM on the 
filter. The Beta gauge sensitivity or detection limit can be enhanced 
(i.e., lowered) with greater sample volumes produced from sampling 
intervals up to an hour or longer.
    Another PM mass detector projected for greater use as PM CEMS is 
the TEOM. Often used in measuring ambient levels of PM, the TEOM 
operates on a basic principle that can be made traceable to NIST 
laboratory standards. The TEOM can provide a continuous measure of PM 
mass in a sample extracted from the stack and routed to the detector. 
Tapered element oscillating microbalance based PM CEMS are not yet 
commercially available.

[[Page 9130]]

    Commenters identified another factor contributing to the difficulty 
of meeting PS-11 correlation requirements for low PM concentrations 
corresponding to a low applicable emissions limit, as with the 
promulgated PM standards here for waste-burning kilns and biomass ERUs. 
We have recently reevaluated the capabilities of the EPA Method 5 for 
measuring low concentrations of PM (See the memo ``Revision of 
Estimated Method 5 Detection Limit'' in the CISWI docket) and have 
determined a Method 5 method detection limit of approximately 2 mg/dscm 
for a 1-hour test run. The uncertainty of a measurement with Method 5 
at this PM concentration would be from 50 to 100 percent (i.e., 1 to 2 mg/dscm). We can determine a PQL using ~3 x method 
detection limit to reduce that Method 5 measurement uncertainty to 
10 to 20 percent. That means that the PQL for a 1-hour test 
run with Method 5 would be approximately 6 mg/dscm 0.6 to 
1.2 mg/dscm.
    The CISWI PM emissions limit for existing waste-burning kiln 
sources is 3.6 mg/dscm, and is 11 mg/dscm for biomass ERUs. The new 
source limits are the same for waste-burning kilns but are 5.1 mg/dscm 
for biomass ERUs. As noted above, PS-11 specifies acceptable criteria 
for a correlation directly related to the applicable emissions limit. 
For a PM CEMS set up to measure compliance with a 3.6 mg/dscm limit, 
the inherent uncertainty associated with a 1-hour Method 5 measurement 
(0.6 to 1.2 mg/dscm) would constitute more than half of the 
25 percent of the applicable PS-11 acceptance threshold 
(i.e., 0.9 mg/dscm) of the mid-level PS-11 correlation test 
(i.e., the correlation for the middle of the three PS-11 correlation 
points). Factoring in the inherent PM CEMS response variability and the 
uncertainty associated with the representative sampling (e.g., PM and 
flow stratification), we agree with commenters that trying to satisfy 
PS-11 at such low concentrations using 1-hour Method 5 test runs would 
be problematic. This drawback applies regardless of the type of PM CEMS 
technology used.
    As commenters to the Portland Cement NESHAP have noted, one can 
improve the method detection capabilities of the Method 5 or other 
filterable PM test method by increasing sampling volume and run time. 
For example, a test run time of about 2 hours will improve the Method 5 
PQL to about 3 mg/dscm. The measurement uncertainty associated with a 
2-hour test run at 3 mg/dscm would be about 0.3 to 0.6 mg/
dscm. At this level, the uncertainty associated with the PM test method 
measurements alone would be about half of the correlation limit allowed 
in PS-11. To achieve a PQL of 1 mg/dscm and a measurement uncertainty 
of about 0.01 to 0.2 mg/dscm, one would need to conduct a 
test run of 6 hours or longer. As noted above, the PS-11 correlation 
calculations would also have to account for any PM CEMS analytical and 
measurement variability.
    Using data from longer Method 5 test runs will improve the 
probability of a PM CEMS meeting PS-11 correlation requirements but, as 
commenters note, will also raise practicality concerns without 
completely resolving the issue. For example, the time to complete 15 1-
hour test runs under three different emissions conditions may be 3 to 6 
days of field work, while the time to complete 15 6-hour test runs 
under three different emissions conditions will require at least 2 
weeks of field work in order to produce and maintain the operating 
conditions associated with three different emissions rates. Longer test 
runs lower the variability of Method 5 PM measurements at near 
detection limit levels from  50 percent to below  25 percent; however, the variability of Method 5 results at 
these low levels represents a significantly larger portion of the 
 25 percent correlation requirement of PS-11 than would 
Method 5 data collected at higher PM concentrations. Method 5 
measurement uncertainty becomes increasingly greater with lowering PM 
concentration and thus reference measurement variability hinders the 
PS-11 correlation process the most for the best performing sources. 
Thus, the ultimate result might still lack certainty and would also 
pose the most difficulty and uncertainty to those sources with lower PM 
concentrations (potentially disadvantaging more efficient operators).
    Although longer Method 5 test runs and longer beta gauge sampling 
times reduce difficulties with PS-11 correlation for a PM CEMS, the EPA 
believes that this correlation will not be technically achievable for a 
significant number of waste-burning kiln and biomass ERU sources, a 
result in part due to the Method 5 PM emissions measurement variability 
at the low concentrations necessary to maintain compliance with the 
standard. The PM CEMS correlations then become approximations more 
qualitative than quantitative with high levels of uncertainty at low 
concentrations (i.e., the correlations do not meet PS-11 requirements). 
This characteristic exists regardless of the type of PM CEMS technology 
used by the source since it involves variability not only of the PM 
CEMS but also the Method 5 test data, variability of raw material and 
additive feeds to the waste-burning kiln, and the changing particle 
sizes, shapes, and density with process operations (e.g., mill on 
versus mill off, type of fuel being used in the ERU).
    Making PM CEMS work at low concentrations (<10 mg/dscm) at waste-
burning kiln and biomass ERU sources is not impossible; although, to 
expect that correlations would be achievable at all low emissions 
sources would be unrealistic. Additionally, the technical limitations 
do not mean that PM CEMS cannot be used to monitor for compliance. A PM 
CEMS that does not meet the EPA correlation requirements can still 
produce data indicative of trends and changes in emissions control. 
Particulate Matter CEMS technology can be effective in monitoring 
control device performance (see, e.g., 77 FR 9371 (February 16, 2012)) 
where the EPA established PM CPMS parametric operating limits for 
electric utility steam generating units.
A Monitoring Approach Alternative to PM CEMS and PS-11
    To address technical issues associated with PM CEMS meeting PS-11 
correlation requirements at low PM emissions concentrations from waste-
burning kilns and biomass ERUs, the impracticability in perturbing FF 
emission rates to establish PS 11 correlation curves, and the 
potentially variable PM emissions characteristics expected from waste-
burning kilns, the EPA is finalizing the change of the compliance basis 
for the PM emissions limit from PM CEMS. For monitoring continuous 
compliance, the rule requires PM CEMS equipment but, as explained 
below, that equipment would be used for continuous parametric 
monitoring rather than for direct measure of compliance with the 
numerical PM emissions limit.
    Specifically, this final rule recognizes the value of PM monitoring 
technology sensitive to changes in PM emissions concentrations and use 
of such a tool to assure continued good operation of PM control 
equipment. This approach avoids the PM CEMS calibration (i.e., PS-11 
correlation). Therefore, the EPA is including provisions that a site-
specific parametric operating limit be established during the 
performance test, that there be continuous monitoring of that 
parametric limit using a PM CPMS, that an exceedance of that site-
specific operating limit be reported as a deviation and trigger 
immediate corrective action and a Method 5 performance test within 45 
days.

[[Page 9131]]

    In the May 2012 Proposed National Emission Standards for Hazardous 
Air Pollutants for the Portland Cement Manufacturing Industry and 
Standards of Performance for Portland Cement Plants The EPA proposed 
the use of PM CPMS for continuous monitoring of PM emissions as a 30-
day rolling average established by identifying the average PM CPMS 
response corresponding to the highest 1-hour PM compliance test. 
Failure to meet this 30-day rolling average would result in retesting. 
Industry commented that this requirement would trigger unnecessary 
retests for many facilities, especially for cleaner sources. This is a 
legitimate issue. To avoid a perverse result, the EPA is modifying the 
way PM CPMS operating limits are established. Sources whose compliance 
with the PM emission standard are shown to be 75 percent or below the 
emission limit in the PM method 5 compliance test will set their PM 
parametric operating limit to be a 30-day rolling average equivalent to 
that 75 percent level. Sources whose compliance with the PM emission 
standard are above 75 percent of the emission limit will establish 
their operating limit as a 30-day rolling average equal to the average 
PM CPMS values recorded during the PM compliance test. It should be 
noted that this provision does not affect the actual emission limit 
that must be met.

F. What other actions are we taking?

    In this final action, we are denying requests for reconsideration 
on all issues contained in the petitioners' requests for 
reconsideration that we did not include in the December 23, 2011, 
proposed rule. The issues for which we are denying reconsideration 
failed to meet the standard for reconsideration under CAA section 
307(d)(7)(B) and we determined that reconsideration was not otherwise 
appropriate. Specifically, on these issues, the petitioner has failed 
to show the following: That it was impracticable to raise their 
objections during the comment period; or that the grounds for their 
objections arose after the close of the comment period; and/or that 
their concern is of central relevance to the outcome of the rules. We 
have concluded that no clarifications to the underlying rules are 
warranted for the 19 remaining petitioners' issues for the reasons set 
forth in the memorandum titled ``Denied CISWI Petition Issues'' found 
in the CISWI docket. The following issues are addressed in that 
memorandum.
     Work practice standards should be used for startup/
shutdowns and malfunctions.
     Exempt or revise limits for units combusting de minimis 
amounts of waste.
     Clarify applicability of CISWI standards to marine vessel 
units or units located on the outer continental shelf.
     Clarify applicability to temporary or portable units.
     Reduce performance testing requirements to be more 
consistent with requirements of other rules.
     Reconsider elimination of provisions that allow missing 
CEMS data.
     Do not include emissions data for combination boiler 
units.
     CISWI does not satisfy CAA 112(c)(6) requirements for POM 
and PCB.
     MACT floor statistical approach concerns.
     MACT floor must reflect the average, the UPL is not the 
same as the average emission level.
     MACT floor pollutant-by-pollutant approach concerns.
     Non-detect methodology is unlawful.
     Beyond-the-floor analysis is unlawful and arbitrary.
     Compliance cost and wildlife concerns for small remote 
incinerators.
     ``Refinery gas'' definition should be included in the 
CISWI rule.
     Clarify that construction and demolition wood is not a 
solid waste.

G. What are the impacts associated with the amendments?

1. What are the primary air impacts?
    We have estimated the potential emissions reductions from existing 
sources that may be achieved through implementation of the emission 
limits. However, we realize that some CISWI owners and operators are 
likely to determine that alternatives to waste incineration are viable, 
such as further waste segregation or sending the waste to a landfill or 
MWC, if available. In fact, sources operating incinerators, where 
energy recovery is not a goal, may find it cost effective to 
discontinue use of their CISWI unit altogether. Therefore, we have 
estimated emissions reductions attributable to existing sources 
complying with the limits, as well as those reductions that would occur 
if the facilities with incinerators and small, remote incinerators 
decide to discontinue the use of their CISWI unit and use alternative 
waste disposal options.
    For units combusting wastes for energy production, such as ERUs and 
waste-burning kilns, the decision to combust or not to combust waste 
will depend on several factors. One factor is the cost to replace the 
energy provided by the waste material with a traditional fuel, such as 
natural gas. Another factor would be whether the owner or operator is 
purchasing the waste or obtaining it at no cost from other generators, 
or if they are generating the waste on-site and will have to dispose of 
the materials in another fashion, such as landfills. Lastly, these 
units would have to compare the control requirements needed to meet the 
CISWI emission limits with those needed if they stop burning solid 
waste and are then subject to a NESHAP instead. As mentioned before, we 
have attempted to align the monitoring requirements for similar non-
waste-burning sources as closely as possible in an effort to make them 
consistent and to help sources make the cross-walk between waste and 
non-waste regulatory requirements as simple as possible.
    The emissions reductions that would be achieved under this final 
rule using the definition of solid waste under RCRA and the proposed 
CISWI emission limits are presented in Table 5 of this preamble.

 Table 5--Emissions Reductions for MACT Compliance and Alternative Disposal Options for Existing CISWI Using the
                                                 Emission Limits
----------------------------------------------------------------------------------------------------------------
                                                                                            Reductions achieved
                                                                                           assuming incinerators
                                                                    Reductions achieved      and small, remote
                            Pollutant                              through meeting MACT      incinerators use
                                                                         (ton/yr)          alternative disposal
                                                                                               (ton/yr) \a\
----------------------------------------------------------------------------------------------------------------
HCl.............................................................              772.2                   784.3
CO..............................................................           20,093                  20,058
Pb..............................................................                2.5                     2.71

[[Page 9132]]

 
Cd..............................................................                1.807                   1.809
Hg..............................................................                0.341                   0.344
PM (filterable).................................................            2,397                   2,401
dioxin, furans..................................................                0.000062                0.000064
NOX.............................................................            5,292                   5,399
SO2.............................................................            6,211                   6,262
                                                                 -----------------------------------------------
    Total.......................................................           34,771                  34,909
----------------------------------------------------------------------------------------------------------------
\a\ The estimated emission reduction does not account for any secondary impacts associated with alternate
  disposal of diverted ERU fuel.

    The EPA expects that many existing CISWI owners and operators may 
find that alternate disposal options are preferable to complying with 
the standards for the incinerator and small, remote incinerator 
subcategories. Our experience with regulations for MWC, HMIWI and, in 
fact, CISWI, has shown that negative growth in the source category 
historically occurs upon implementation of CAA section 129 standards. 
Since CISWI rules were promulgated in 2000 and have been in effect for 
existing sources since 2005, many existing units have closed. At 
promulgation in 2000, the EPA estimated 122 units in the CISWI 
population. In comparison, the incinerator subcategory in this rule, 
which contains any such units subject to the 2000 CISWI rule, has 27 
units. The EPA is not aware of any construction of new units since 2000 
so we do not believe there are any units that are currently subject to 
the 2000 CISWI NSPS. The revised CISWI rule is more stringent so we 
expect this trend to continue. However, the EPA does recognize that 
some facilities may opt to replace aging incinerator units with new 
units where it is cost effective or alternative disposal options are 
not feasible, as may be the case with some incinerators, or in very 
remote locations. We estimate that there could be one new incineration 
unit within the next 5 years following this final rule, and possibly 
five new small remote incinerators within that time. In these cases, we 
have developed model CISWI unit emissions reduction estimates for these 
subcategories using the current existing unit baseline, based on 
average emission concentration values and sizes from our current 
inventory and the new source emission limits. Table 6 of this preamble 
presents the model plant emissions reductions that are expected for new 
sources.

                              Table 6--Emissions Reductions on a Model Plant Basis
----------------------------------------------------------------------------------------------------------------
                                                                  Emission reduction for CISWI subcategory model
                                                                        units (tpy unless otherwise noted)
                            Pollutant                            -----------------------------------------------
                                                                                               Small, remote
                                                                        Incinerator             incinerator
----------------------------------------------------------------------------------------------------------------
HCl.............................................................                  2.62                   0.0
CO..............................................................                  0.0                    0.25
Pb..............................................................                  0.55                   0.11
Cd..............................................................                  0.15                   0.019
Hg..............................................................                  0.0026                 0.00036
PM (filterable).................................................                103                     10.7
D/F (total mass) \a\............................................                  0.0011                 0.0
NOX.............................................................                 11.3                    0.0
SO2.............................................................                  5.1                    4.5
    Total.......................................................                122                     22.0
----------------------------------------------------------------------------------------------------------------
\a\ D/F estimates are given in lb/yr.

    We do not anticipate that any new energy recovery or waste-burning 
kiln units will be constructed and will instead use alternative waste 
disposal methods or alternative fuels that will not subject them to the 
CISWI rule. For example, whole tires obtained from approved tire 
management programs and tire-derived fuel from which the metal has been 
removed is not considered solid waste under the definition of solid 
waste. Consequently, new cement kiln owners will assess their 
regulatory requirements under CISWI for burning whole tires or tire-
derived fuel that does not have metals removed against the costs 
associated with removing the metal or obtaining tires from an approved 
source and complying with the applicable NESHAP instead of the CISWI 
rule. Our research suggests that metal removal is routinely practiced 
and that several state waste tire management programs are already in 
place and would most likely be a viable option for new kiln owners so 
that they would not be subject to the CISWI regulations. Indeed, we 
expect that all existing cement kilns that are classified as being 
waste-burning solely due to whole tires will, by the effective date for 
the CISWI standards, find a way to obtain their tires through an 
approved

[[Page 9133]]

tire management plan. Likewise, new sources could engineer their 
process to minimize waste generation in the first place or to separate 
wastes so that the materials sent to a combustion unit would not meet 
the definition of solid waste to begin with. For waste that is 
generated, our cost analyses have found that alternative waste disposal 
is generally available and less expensive.
2. What are the water and solid waste impacts?
    In our analysis, we have selected the lowest cost alternative 
(i.e., compliance or alternative disposal) for each facility. We 
anticipate affected sources will need to apply additional controls to 
meet the emission limits. These controls may use water, such as wet 
scrubbers, which would need to be treated. We estimate an annual 
requirement of 71 billion gallons per year of additional water would be 
required as a result of operating additional controls or increased 
sorbent use.
    Likewise, the addition of PM controls or improvements to controls 
already in place will increase the amount of particulate collected that 
will require disposal. Furthermore, ACI may be used by some sources, 
which will result in additional solid waste needing disposal. The 
annual amounts of solid waste that would require disposal are 
anticipated to be approximately 25,400 tpy from PM capture and 13,700 
tpy from ACI.
    Perhaps the largest impact on solid waste would come from owners 
and operators who decide to discontinue the use of their CISWI unit and 
instead send waste to the landfill or MWC for disposal. Based on 
tipping fees and availability, we would expect most, if not all, of 
this diverted waste to be sent to a local landfill. As we discuss 
above, it may be that a good portion of the incinerators would 
determine that alternative disposal is a better choice than compliance 
with the standards. We estimate that approximately 110,600 tpy of waste 
would be diverted to a landfill.
    For new CISWI units, we estimate an annual requirement of 980,000 
gallons per year of additional water would be required as a result of 
operating additional controls. The annual amounts of solid waste that 
would require disposal are anticipated to be approximately 6.8 tpy from 
PM capture and 4.7 tpy from ACI.
3. What are the energy impacts?
    The energy impacts associated with meeting the emission limits 
would consist primarily of additional electricity needs to run added or 
improved air pollution control devices. For example, increased scrubber 
pump horsepower may cause slight increases in electricity consumption 
and sorbent injection controls would likewise require electricity to 
power pumps and motors. In our analysis, we have selected the lowest 
cost alternative (i.e., compliance or alternative disposal) for each 
facility. By our estimate, we anticipate that an additional 217,400 MW-
hours per year would be required for the additional and improved 
control devices.
    As discussed earlier, there could be instances where owners and 
operators of ERUs and waste-burning kilns decide to cease burning waste 
materials. In these cases, the energy provided by the burning of waste 
would need to be replaced with a traditional fuel, such as natural gas. 
Assuming an estimate that 50 percent of the energy input to ERUs and 
kilns are from waste materials, an estimate of the energy that would be 
replaced with a traditional fuel if all existing units stopped burning 
waste materials, is approximately 56 TBtu/yr.
    For new CISWI units, we anticipate that 94 MW-hours per year would 
be required for additional and improved control devices. Since we do 
not anticipate any new energy recovery or waste-burning kiln units to 
be constructed, there would be no additional estimate for energy that 
would be replaced with a traditional fuel.
4. What are the secondary air impacts?
    For CISWI units adding controls to meet the emission limits, we 
anticipate minor secondary air impacts. The combustion of fuel needed 
to generate additional electricity and to operate RTO controls would 
yield slight increases in emissions, including NOX, CO, PM 
and SO2 and an increase in CO2 emissions. Since 
NOX and SO2 are covered by capped emissions 
trading programs, and methodological limitations prevent us from 
quantifying the change in CO and PM, we do not estimate an increase in 
secondary air impacts for this rule from additional electricity demand.
    We believe it likely that the incinerators may elect to discontinue 
the use of their CISWI unit and send the waste to the landfill or other 
disposal means. As we discussed in the solid waste impacts above, this 
could result in approximately 110,600 tpy of waste going to landfills. 
By using the EPA's Landfill Gas Estimation Model, we estimate that, 
over the 20-year expected life of a CISWI unit, the resulting methane 
generated by a landfill receiving the waste would be about 96,400 tons. 
If this landfill gas were combusted in a flare, assuming typical flare 
emission factors and landfill gas chlorine, Hg and sulfur 
concentrations, the following emissions would be expected: 20 tons of 
PM; 8 tons of HCl; 16 tons of SO2; 890 tons of CO; 46 tons 
of NOX; and 1.4 lbs of Hg.
    Similar to existing units, we anticipate minor secondary air 
impacts for new CISWI units adding controls as discussed above.
5. What are the cost and economic impacts?
    We have estimated compliance costs for all existing units to add 
the necessary controls and monitoring equipment, and to implement the 
inspections, recordkeeping and reporting requirements to comply with 
the final CISWI standards. We have also analyzed the costs of 
alternative disposal for the subcategories that may have alternative 
options to burning waste, specifically for the incinerators and the 
small, remote incinerators that may have an alternative to 
incineration. In our analysis, we have selected the lowest cost 
alternative (i.e., compliance or alternative disposal) for each 
facility. Based on this analysis, we anticipate an overall total 
capital investment of $816 million with an associated total annual cost 
of $271 million ($2008). For comparison, the 2011 final rule, estimated 
an overall total capital investment of $652 million with an associated 
total annual cost of $232 million ($2008). The annualized cost of 
today's final rule are approximately 17% higher than those of the final 
2011 CISWI rule. The changes in cost result from revising the 
inventories of the ERUs, waste-burning kilns, and small remote 
incinerators as discussed in Section II.C. of this preamble: ``Summary 
of Significant Changes Since Proposal.''
    Under the rule, the EPA's economic model suggests the average 
national market-level variables (prices, production-levels, 
consumption, international trade) will not change significantly (e.g., 
are less than 0.001 percent).
    The EPA performed a screening analysis for impacts on small 
entities by comparing compliance costs to sales/revenues (e.g., sales 
and revenue tests). The EPA's analysis found the tests were below 3 
percent for four of the five small entities included in the screening 
analysis.
    In addition to estimating this rule's social costs and benefits, 
the EPA has estimated the employment impacts of the final rule. We 
expect that the rule's direct impact on employment will be small. For 
the reconsideration final, the estimated employment changes range

[[Page 9134]]

between -400 to +900 employees, with a central estimate of +200.
    We have not quantified the rule's indirect or induced impacts. For 
further explanation and discussion of our analysis, see the 
introductory memo and Section 3 of the RIA.
    For new CISWI units, we have estimated compliance costs for units 
coming online in the next 5 years. This analysis is based on the 
assumption that one new incinerator will come online over 5 years and 
that three new small remote incinerators will come online in the next 
year, followed by one new small remote incinerator per year for 
subsequent years. Additionally, it was assumed that each model unit 
will add the necessary controls, monitoring equipment, inspections, 
recordkeeping and reporting requirements to comply with NSPS limits. 
Based on our analysis, we anticipate an overall total capital 
investment of $9.3 million over 5 years with an associated total annual 
cost (for 2015) of $2.7 million.
6. What are the benefits?
    We estimate the monetized benefits of this regulatory action to be 
$420 million to $1.0 billion (2008$), 3 percent (discount rate) in the 
implementation year (2015). The monetized benefits of the regulatory 
action at a 7 percent discount rate are $380 million to $930 million 
(2008$). Using alternate relationships between PM2.5 and 
premature mortality supplied by experts, higher and lower benefits 
estimates are plausible but most of the expert-based estimates fall 
between these two estimates.\10\ Since the reconsideration proposal, we 
have made several updates to the approach we use to estimate mortality 
and morbidity benefits in the PM NAAQS RIAs (U.S. EPA, 2012a,b) 
11 12, including updated epidemiology studies, health 
endpoints, and population data. Although we have not re-estimated the 
benefits for this rule to apply this new approach, these updates 
generally offset each other, and we anticipate that the rounded 
benefits estimated for this rule are unlikely to be different than 
those provided below. More information on these updates can be found in 
the PM NAAQS RIAs .A summary of the monetized benefits estimates at 
discount rates of 3 percent and 7 percent is in Table 7 of this 
preamble.
---------------------------------------------------------------------------

    \10\ Roman, et al., 2008. Expert Judgment Assessment of the 
Mortality Impact of Changes in Ambient Fine Particulate Matter in 
the U.S. Environ. Sci. Technol., 42, 7, 2268-2274.
    \11\ U.S. Environmental Protection Agency (U.S. EPA). 2012a. 
Regulatory Impact Analysis for the Proposed Revisions to the 
National Ambient Air Quality Standards for Particulate Matter. EPA-
452/R-12-003. Office of Air Quality Planning and Standards, Health 
and Environmental Impacts Division. June. Available at https://www.epa.gov/ttnecas1/regdata/RIAs/PMRIACombinedFile_Bookmarked.pdf.
    \12\ U.S. Environmental Protection Agency (U.S. EPA). 2012b. 
Regulatory Impact Analysis for the Final Revisions to the National 
Ambient Air Quality Standards for Particulate Matter. EPA-452/R-12-
003. Office of Air Quality Planning and Standards, Health and 
Environmental Impacts Division. December. Available at https://www.epa.gov/pm/2012/finalria.pdf.

             Table 7--Summary of the Monetized Benefits Estimates for the CISWI NSPS and EG in 2015
                                             [Millions of 2008$] a b
----------------------------------------------------------------------------------------------------------------
                                   Estimated emission     Total monetized benefits     Total monetized benefits
            Pollutant               reductions (tpy)         (3% Discount Rate)           (7% Discount Rate)
----------------------------------------------------------------------------------------------------------------
PM2.5...........................                   917  $210 to $510...............  $190 to $460.
----------------------------------------------------------------------------------------------------------------
                                           PM[bdi2].[bdi5] Precursors
----------------------------------------------------------------------------------------------------------------
SO2.............................                 6,262  $180 to $450...............  $170 to $410.
NOX.............................                 5,399  $26 to $64.................  $24 to $58.
                                 -------------------------------------------------------------------------------
    Total.......................  ....................  $420 to $1,000.............  $380 to $930.
----------------------------------------------------------------------------------------------------------------
\a\ All estimates are for the implementation year (2015) and are rounded to two significant figures so numbers
  may not sum across rows. All fine particles are assumed to have equivalent health effects but the benefit-per-
  ton estimates vary between precursors because each ton of precursor reduced has a different propensity to form
  PM2.5. Benefits from reducing HAP are not included.

    These benefits estimates represent the total monetized human health 
benefits for populations exposed to less PM2.5 in 2015 from 
controls installed to reduce air pollutants in order to meet these 
standards. To estimate human health benefits of this rule, the EPA used 
benefit-per-ton factors to quantify the changes in PM2.5-
related health impacts and monetized benefits based on changes in 
SO2 and NOX emissions. These estimates are 
calculated as the sum of the monetized value of avoided premature 
mortality and morbidity associated with reducing a ton of 
PM2.5 and PM2.5 precursor emissions. To estimate 
human health benefits derived from reducing PM2.5 and 
PM2.5 precursor emissions, we used the general approach and 
methodology laid out in Fann, Fulcher, and Hubbell (2009).\13\
---------------------------------------------------------------------------

    \13\ Fann, N., C.M. Fulcher, B.J. Hubbell. 2009. ``The influence 
of location, source, and emission type in estimates of the human 
health benefits of reducing a ton of air pollution.'' Air Qual Atmos 
Health (2009) 2:169-176.
---------------------------------------------------------------------------

    To generate the benefit-per-ton estimates, we used a model to 
convert emissions of direct PM2.5 and PM2.5 
precursors into changes in ambient PM2.5 levels and another 
model to estimate the changes in human health associated with that 
change in air quality. Finally, the monetized health benefits were 
divided by the emission reductions to create the benefit-per-ton 
estimates.
    These models assume that all fine particles, regardless of their 
chemical composition, are equally potent in causing premature mortality 
because the scientific evidence is not yet sufficient to support the 
development of differential effects estimates by particle type. 
Directly emitted PM2.5, SO2 and NOX 
are the primary precursors affected by this rule. Even though we assume 
that all fine particles have equivalent health effects, the benefit-
per-ton estimates vary between precursors depending on the location and 
magnitude of their impact on PM2.5 levels, which drive 
population exposure. For example, SO2 has a lower benefit-
per-ton estimate than direct PM2.5 because it does not form 
as much PM2.5, thus, the exposure would be lower and the 
monetized health benefits would be lower.
    It is important to note that the magnitude of the PM2.5 
benefits is largely driven by the concentration response function for 
premature mortality. Experts have advised the EPA

[[Page 9135]]

to consider a variety of assumptions, including estimates based on both 
empirical (epidemiological) studies and judgments elicited from 
scientific experts, to characterize the uncertainty in the relationship 
between PM2.5 concentrations and premature mortality. For 
this rule, we cite two key empirical studies, the American Cancer 
Society cohort study \14\ and the extended Six Cities cohort study.\15\ 
In the RIA for this rule, which is available in the docket, we also 
include benefits estimates derived from expert judgments and other 
assumptions.
---------------------------------------------------------------------------

    \14\ Pope, et al., 2002. ``Lung Cancer, Cardiopulmonary 
Mortality, and Long-term Exposure to Fine Particulate Air 
Pollution.'' Journal of the American Medical Association 287:1132-
1141.
    \15\ Laden, et al., 2006. ``Reduction in Fine Particulate Air 
Pollution and Mortality.'' American Journal of Respiratory and 
Critical Care Medicine. 173: 667-672.
---------------------------------------------------------------------------

    The EPA strives to use the best available science to support our 
benefits analyses. We recognize that interpretation of the science 
regarding air pollution and health is dynamic and evolving. After 
reviewing the scientific literature and recent scientific advice, we 
have determined that the no-threshold model is the most appropriate 
model for assessing the mortality benefits associated with reducing 
PM2.5 exposure. Consistent with this recent advice, we are 
replacing the previous threshold sensitivity analysis with a new LML 
assessment. While a LML assessment provides some insight into the level 
of uncertainty in the estimated PM mortality benefits, the EPA does not 
view the LML as a threshold and continues to quantify PM-related 
mortality impacts using a full range of modeled air quality 
concentrations.
    Most of the estimated PM-related benefits in this rule would accrue 
to populations exposed to higher levels of PM2.5. Using the 
Pope, et al., (2002) study, 85 percent of the population is exposed at 
or above the LML of 7.5 [micro]g/m\3\. Using the Laden, et al., (2006) 
study, 40 percent of the population is exposed above the LML of 10 
[micro]g/m\3\. It is important to emphasize that we have high 
confidence in PM2.5-related effects down to the lowest LML 
of the major cohort studies. This fact is important, because as we 
estimate PM-related mortality among populations exposed to levels of 
PM2.5 that are successively lower, our confidence in the 
results diminishes. However, our analysis shows that the great majority 
of the impacts occur at higher exposures.
    Every benefit analysis examining the potential effects of a change 
in environmental protection requirements is limited, to some extent, by 
data gaps, model capabilities (such as geographic coverage) and 
uncertainties in the underlying scientific and economic studies used to 
configure the benefit and cost models. Despite these uncertainties, we 
believe the benefit analysis for this rule provides a reasonable 
indication of the expected health benefits of the rulemaking under a 
set of reasonable assumptions. This analysis does not include the type 
of detailed uncertainty assessment found in the 2006 PM2.5 
NAAQS RIA because we lack the necessary air quality input and 
monitoring data to run the benefits model. In addition, we have not 
conducted any air quality modeling for this rule. The 2006 
PM2.5 NAAQS benefits analysis \16\ provides an indication of 
the sensitivity of our results to various assumptions.
---------------------------------------------------------------------------

    \16\ U.S. Environmental Protection Agency, 2006. Final 
Regulatory Impact Analysis: PM2.5 NAAQS. Prepared by 
Office of Air and Radiation. October. Available on the Internet at 
https://www.epa.gov/ttn/ecas/ria.html.
---------------------------------------------------------------------------

    It should be emphasized that the monetized benefits estimates 
provided above do not include benefits from several important benefit 
categories, including reducing other air pollutants, ecosystem effects 
and visibility impairment. The benefits from reducing HAP have not been 
monetized in this analysis, including reducing 20,000 tons of carbon 
monoxide, 780 tons of HCl, 2.5 tons of lead, 1.8 tons of cadmium, 680 
pounds of mercury, and 58 grams of total D/F each year. Although we do 
not have sufficient information or modeling available to provide 
monetized estimates for this rulemaking, we include a qualitative 
assessment of the health effects of these air pollutants in the RIA for 
this rule, which is available in the docket.
    For more information on the benefits analysis, please refer to the 
RIA for this rulemaking, which is available in the docket.

III. NHSM Final Revisions

A. Statutory Authority

    The EPA is promulgating these regulations under the authority of 
sections 2002(a)(1) and 1004(27) of the RCRA, as amended, 42 U.S.C. 
6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the CAA ((42 U.S.C. 
7429) directs the EPA to establish standards for CISWIs, which burn 
solid waste. Section 129(g)(6) of the CAA provides that the term 
``solid waste'' is to be established by the EPA under RCRA. Section 
2002(a)(1) of RCRA authorizes the agency to promulgate regulations as 
are necessary to carry out its functions under the Act. The statutory 
definition of ``solid waste'' is provided in RCRA section 1004(27).

B. NHSM Rule History

    The agency first solicited comments on how the RCRA definition of 
solid waste should apply to NHSMs used as fuels or ingredients in 
combustion units in an ANPRM, which was published in the Federal 
Register on January 2, 2009 (74 FR 41). We then published a NHSM 
proposed rule on June 4, 2010 (75 FR 31844), which the EPA issued in 
final form on March 21, 2011 (76 FR 15456). The March 2011, NHSM final 
rule codified the standards and procedures for identifying which non-
hazardous secondary materials are ``solid waste'' when used as fuels or 
ingredients in combustion units.
    In October 2011, the agency announced it would be initiating new 
rulemaking proceedings to revise certain aspects of the NHSM rule.\17\ 
On December 23, 2011, we then published a proposed rule, which 
addressed specific targeted amendments and clarifications to the part 
241 regulations (76 FR 80452). These proposed revisions and 
clarifications were limited to certain issues on which the agency had 
received new information, as well as targeted revisions that the agency 
believed were appropriate in order to allow implementation of the rule 
as the EPA originally intended.\18\ As stated throughout the preamble 
to the proposed rule, the agency was not reopening the entire NHSM rule 
for reconsideration and would not respond to comments directed toward 
rule provisions that were not specifically identified in this 
proposal.\19\ Therefore, any comments that were submitted outside the 
scope of the proposal, or for which the EPA did not solicit comment,

[[Page 9136]]

are not addressed in this final rule, or in the Response to Comments 
document that has been prepared for this final rule.
---------------------------------------------------------------------------

    \17\ See October 14, 2011, Letter from Administrator Lisa P. 
Jackson to Senator Olympia Snowe. A copy of this letter has been 
placed in the docket for today's rule (EPA-HQ-RCRA-2008-1873).
    \18\ For more information regarding the intent of the December 
23, 2011, proposed rule, see 76 FR 80469. For more information 
regarding the scope of the proposed rule, see 76 FR 80470-80474.
    \19\ For example, see 76 FR 80470: ``The EPA is soliciting 
comment only on these targeted changes and is not reopening any 
other issues in the final NHSM rule. Comments that go beyond the 
scope of this narrow RCRA rulemaking will not be addressed by the 
Agency when it finalizes today's proposed rule.'' See also 76 FR 
80474 ``As noted above, the intent of this proposal is to identify 
certain specific aspects of the rule which EPA is reconsidering and 
on which it is soliciting public comment. The Agency is not 
reopening the entire rule for reconsideration and will not respond 
to comments directed toward rule provisions that are not 
specifically identified in this proposal.'' and 76 FR 80482 ``The 
Agency is not considering any change to the self-implementing, 
mandatory nature of the Sec.  241.3 standards for individual 
facilities and will not respond to any comments on this topic.''.
---------------------------------------------------------------------------

    The Agency also notes that even though the NHSM final rule will 
become effective on April 8, 2013, existing facilities that currently 
burn NHSMs will have a substantial amount of time before having to 
comply with the CISWI standards, as the compliance date for existing 
CISWI sources subject to CAA 129 standards is 5 years after the date of 
publication of the CISWI final rule or 3 years after the state plan is 
approved, whichever happens earlier. In addition, the Boiler MACT rule 
provides until February 7, 2016, for existing sources to comply with 
the standards. We recognize that new sources will have to comply with 
these rules sooner than do existing sources. Thus, we believe that 
there will be more than adequate time for persons to determine whether 
or not a NHSM sent to a combustion unit is a solid waste.

C. Introduction--Summary of Regulations Being Finalized

    In today's rule, the EPA is finalizing certain amendments and 
clarifications to the 40 CFR part 241 regulations on which we have 
received new information, as well as specific targeted revisions that 
are appropriate in order to allow implementation of the rule as the EPA 
originally intended. The regulations being issued today are summarized 
below. The intent of this summary is to give a brief overview of the 
revised part 241 regulations. More detailed discussions, including the 
agency's responses to comments received on the proposed rule and its 
rationale for decisions being made in this final action, are included 
in section III.D of this preamble. In addition, in an effort to aid the 
regulated community, the EPA is including in the docket for today's 
rule an informational redline/strikeout version that identifies the 
specific changes to the regulatory text, as compared to the March 2011, 
final rule.\20\
---------------------------------------------------------------------------

    \20\ This document has been titled, ``NHSM 2012 Final Rule 
Regulation Changes'' and is placed in Docket No: EPA-HQ-RCRA-2008-
0329.
---------------------------------------------------------------------------

1. Revised Definitions
    In today's rule, the EPA is finalizing revisions to the three 
definitions discussed in the proposed rule: (1) ``clean cellulosic 
biomass,'' (2) ``contaminants,'' and (3) ``established tire collection 
programs.'' In addition, based on comments received on the proposed 
rule, the agency is also finalizing a revised definition of ``resinated 
wood.'' These revised definitions will be codified in 40 CFR 241.2.
a. Clean Cellulosic Biomass
    In today's action, the EPA is issuing a revised definition of 
``clean cellulosic biomass'' that: (1) Makes clear that the list of 
biomass materials are examples within the definition and is not 
intended to be an exhaustive list; and (2) provides a more 
comprehensive list of clean cellulosic biomass to guide the regulated 
community. These revisions do not change the agency's intent under the 
March 2011 final rule, but identify additional materials that are 
``clean cellulosic biomass,'' and, thus, are traditional fuels under 
these regulations. A discussion of relevant comments regarding the 
definition of clean cellulosic biomass, as well as our rationale for 
making these determinations, can be found in section III.D.1.a of this 
preamble.
b. Contaminants
    In today's action, the EPA is issuing a final definition of 
``contaminants'' to clarify what constituents will be considered 
contaminants for the purposes of the contaminant legitimacy criterion. 
Revisions include: (1) The replacement of a reference to ``any 
constituent that will result in emissions'' with a specific list of 
constituents to be considered as contaminants based on their status as 
a precursor to air emissions; (2) the removal from the definition of 
specific CAA section 112(b) and 129(a)(4) pollutants that are not 
expected to be found in any NHSM or are adequately covered elsewhere in 
the definition; and (3) the removal of the phrase ``including those 
constituents that could generate products of incomplete combustion'' 
from the definition. A discussion of relevant comments regarding the 
contaminants definition, as well as our rationale for making these 
determinations, can be found in section III.D.1.b of this preamble.
c. Established Tire Collection Programs
    In today's action, the EPA is finalizing a revised definition of 
``established tire collection program'' in order to account for ``off-
specification'' (including factory scrap) tires that are contractually 
arranged to be collected, managed and transported between a tire 
manufacturer (including retailers or other parties involved in the 
distribution and sale of new tires) and a combustor, which is analogous 
to how scrap tires removed from vehicles are managed. The off-
specification tires are not removed from vehicles \21\ and are handled 
under contractual arrangements which ensure they are not discarded. A 
description of how the changes to the definition accommodate the 
management of off-specification tires can be found in section III.D.1.c 
of this preamble. In addition to the proposed changes, we are revising 
the definition to specifically include tires that were not abandoned 
and were received from the general public at tire collection program 
events. A discussion of relevant comments regarding the definition, as 
well as our rationale for making this determination, can be found in 
section III.D.1.c of this preamble.
---------------------------------------------------------------------------

    \21\ ``Removal from vehicles'' had been a component of the 
definition.
---------------------------------------------------------------------------

d. Resinated Wood
    In today's action, the EPA is issuing a revised definition of 
``resinated wood'' that includes additional materials in order to be 
more representative of the universe of resinated wood residuals that 
are currently used as fuels throughout the wood product manufacturing 
process. Revisions include: (1) Replacing the phrase ``containing resin 
adhesives'' with the phrase, ``containing binders and adhesives,'' and 
(2) specifically including ``off-specification resinated wood products 
that do not meet a manufacturing quality or standard'' within this 
definition. A discussion of relevant comments regarding the resinated 
wood definition, as well as our rationale for making this 
determination, can be found in section III.D.3.b of this preamble.
2. Contaminant Legitimacy Criterion for NHSM Used as Fuels
    In today's action, the EPA is issuing in final form a revised 
contaminant legitimacy criterion for NHSMs used as fuels to provide 
additional details on how contaminant comparisons between NHSMs and 
traditional fuels may be made. Revisions include: (1) The ability to 
compare groups of contaminants where technically reasonable; (2) the 
clarification that ``designed to burn'' means can burn or does burn, 
and not necessarily permitted to burn; (3) the ability to use 
traditional fuel data from national surveys and other sources beyond a 
facility's current fuel supplier; and (4) the ability to use ranges of 
traditional fuel contaminant levels when making contaminant 
comparisons, provided the variability of NHSM contaminant levels is 
also considered. A discussion of relevant comments regarding the 
contaminant legitimacy criterion for NHSMs used as fuels, as

[[Page 9137]]

well as our rationale for making these determinations, can be found in 
section III.D.2 of this preamble.
3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels
    In today's final rule, the agency is codifying determinations that 
certain NHSMs are non-wastes when used as fuels. Based on all available 
information, the EPA has determined that the following NHSMs are 
categorically not a solid waste when burned as a fuel in combustion 
units: (1) Scrap tires that are not discarded and are managed under the 
oversight of established tire collection programs, including tires 
removed from vehicles and off-specification tires; (2) resinated wood; 
(3) coal refuse that has been recovered from legacy piles and processed 
in the same manner as currently-generated coal refuse; and (4) 
dewatered pulp and paper sludges that are not discarded and are 
generated and burned on-site by pulp and paper mills that burn a 
significant portion of such materials where such dewatered residuals 
are managed in a manner that preserves the meaningful heating value of 
the materials.
a. Scrap Tires
    In today's action, the agency is adding scrap tires that are not 
discarded and are managed under the oversight of established tire 
collection programs, including tires removed from vehicles and off-
specification tires (including factory scraps), to the categorical list 
of non-waste fuels (see 40 CFR 241.4(a)(1)) as proposed. Based on this 
categorical non-waste determination, facilities burning the scrap tires 
that qualify for the provision will not need to demonstrate that this 
NHSM meets the legitimacy criteria on a site-by-site basis. Further, 
the addition to the new categorical non-waste provision at 40 CFR 
241.4(a)(1) eliminated the need for the previous scrap tire provision 
at 40 CFR 241.3(b)(2)(i),\22\ which has been removed and reserved in 
today's final rule. A discussion of relevant comments regarding the 
scrap tire provision, as well as our rationale for making this 
determination, can be found in section III.D.3.a of this preamble.
---------------------------------------------------------------------------

    \22\ The scrap tire provision in the 2011 NHSM final rule is now 
removed and the section reserved in today's final rule: ``(b) The 
following non-hazardous secondary materials are not solid wastes 
when combusted:
     (2) The following non-hazardous secondary materials that have 
not been discarded and meet the legitimacy criteria specified in 
paragraph (d)(1) of this section when used in a combustion unit (by 
the generator or outside the control of the generator):
    (i) Scrap tires used in a combustion unit that are removed from 
vehicles and managed under the oversight of established tire 
collection programs.''
---------------------------------------------------------------------------

b. Resinated Wood
    In today's action, the agency is listing resinated wood as a non-
waste fuel in 40 CFR 241.4(a)(2), as proposed. The EPA has evaluated 
resinated wood and, based on all available information, including 
consideration of the legitimacy criteria, as well as other relevant 
factors, has determined that resinated wood is not a solid waste when 
used as a fuel. Based on this categorical non-waste determination, 
facilities burning resinated wood residuals as a fuel will not need to 
demonstrate that this NHSM meets the legitimacy criteria on a site-by-
site basis.
    Further, the addition of this categorical non-waste determination 
(40 CFR 241.4(a)(2)) eliminated the need for the previous resinated 
wood provision at 40 CFR 241.3(b)(2)(ii),\23\ which has been removed 
and reserved in today's final rule. A discussion of relevant comments 
regarding the categorical non-waste determination for resinated wood, 
as well as our rationale for making this determination, can be found in 
section III.D.3.b of this preamble.
---------------------------------------------------------------------------

    \23\ The resinated wood provision in the 2011 NHSM final rule is 
now removed and the section reserved in today's final rule: ``(b) 
The following non-hazardous secondary materials are not solid wastes 
when combusted:
     (2) The following non-hazardous secondary materials that have 
not been discarded and meet the legitimacy criteria specified in 
paragraph (d)(1) of this section when used in a combustion unit (by 
the generator or outside the control of the generator):
    (ii) Resinated wood used in a combustion unit.''
---------------------------------------------------------------------------

c. Coal Refuse
    In today's action, the agency has determined that coal refuse that 
has been recovered from legacy piles and processed in the same manner 
as currently-generated coal refuse, is a non-waste fuel in 40 CFR 
241.4(a)(3). This determination is based on the fact that: (1)Legacy 
coal refuse processed in the same manner as currently-generated coal 
refuse meets the definition of processing (as codified in 40 CFR 
241.2); and (2)the EPA's assessment that such materials meet the 
legitimacy criteria for fuels (as codified in 40 CFR 241.3(d)(1)) when 
compared to currently-generated coal refuse, which the agency considers 
to be within the definition of a traditional fuel (as codified in 40 
CFR 241.2). Based on this categorical non-waste determination, 
facilities burning these materials as a fuel will not need to 
demonstrate that this NHSM meets the legitimacy criteria on a site-by-
site basis. A discussion of relevant comments regarding the categorical 
non-waste determination for coal refuse that is recovered from legacy 
piles and processed, as well as our rationale for making this 
determination, can be found in section III.D.5.b of this preamble.
d. Pulp and Paper Sludge
    In today's action, the EPA has determined that dewatered pulp and 
paper sludges that are not discarded and are generated and burned on-
site by pulp and paper mills that burn a significant portion of such 
materials where such dewatered residuals are managed in a manner that 
preserves the meaningful heating value of the materials are non-waste 
fuels in 40 CFR 241.4(a)(4). This determination for pulp and paper 
sludge as a categorical non-waste represents the agency's finding, 
after balancing the regulatory legitimacy criteria with other relevant 
factors, that the burning of this material is an integral part of 
facility operations, and as described in the categorical listing is for 
energy recovery and not discard. Based on this categorical non-waste 
determination, facilities meeting the description of this determination 
and burning these materials as a fuel will not need to demonstrate that 
this NHSM meets the legitimacy criteria on a site-by-site basis. A 
discussion of relevant comments regarding the categorical non-waste 
determination for pulp and paper sludges, as well as our rationale for 
making this determination, can be found in section III.D.5.a of this 
preamble.
4. Rulemaking Petition Process for Other Categorical Non-Waste 
Determinations (40 CFR 241.4(b))
    In today's final rule, the agency is finalizing a rulemaking 
petition process that provides persons with an opportunity to submit a 
rulemaking petition to the Administrator, seeking a categorical 
determination for additional NHSMs to be listed in 40 CFR 241.4(a) as 
non-waste fuels. The process for submitting a rulemaking petition to 
the agency, as well as the factors a successful application must 
include, is listed in 40 CFR 241.4(b). A discussion of relevant 
comments regarding the petition process for the categorical listings, 
as well as our rationale for the categorical rulemaking petition 
process, can be found in section III.D.4 of this preamble.
5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition 
Process
    In today's final rule, the agency is streamlining the non-waste 
determination provisions under 40 CFR 241.3(c). The public 
participation process was streamlined to

[[Page 9138]]

accommodate petitions that apply to multiple combustors. In particular, 
the regulations were adjusted to indicate that the appropriate office 
in the EPA headquarters may handle petitions that cross multiple 
regions. Furthermore, if a determination is made that the NHSM is a 
non-waste, the decision will be retroactive and apply on the date the 
petition was submitted. A discussion of relevant comments regarding the 
streamlining of the 40 CFR 241.3(c) non-waste determination petition 
process, as well as our rationale for the streamlining changes made to 
the non-waste determination process, can be found in section III.D.6 of 
this preamble.
6. Revised Introductory Text for 40 CFR 241.3(a)
    In today's final rule, the agency has decided not to revise the 
introductory text of 40 CFR 241.3(a). In its December 2011 proposed 
rule, the EPA considered revising this introductory text to state that 
NHSMs are ``presumed to be'' solid wastes, rather than ``are'' solid 
wastes. While the proposed change was not expected to be a substantive 
change to the rule, but merely a reflection of the record at the time, 
it did engender some confusion among commenters. Based on the comments 
received, we have decided not to issue revised introductory text 40 CFR 
241.3(a) and, thus, this section will continue to read as codified in 
the March 2011 NHSM final rule. A discussion of relevant comments 
regarding the introductory text of 40 CFR 241.3(a), as well as our 
rationale for this decision, can be found in section III.D.7 of this 
preamble.

D. Comments on the Proposed Rule and Rationale for Final Decisions

    In this section, the EPA addresses major comments the agency 
received regarding the targeted revisions that were proposed to certain 
part 241 provisions in the December 23, 2011, proposal. In discussing 
the comments received on the proposal, we also provide the rationale 
for making the revisions that are finalized in today's action. As 
previously discussed, the agency specifically stated that it would not 
address comments that go beyond the scope of this narrow RCRA 
rulemaking.
1. Revised Definitions
a. Clean Cellulosic Biomass
    The proposed rule suggested revising the March 2011 definition of 
``clean cellulosic biomass'' to list additional examples of biomass 
materials that are appropriately included within this definition. These 
fuels are not secondary materials or solid wastes unless discarded. 
Clean biomass is ``biomass that does not contain contaminants at 
concentrations not normally associated with virgin biomass materials'' 
(codified in 40 CFR 241.2).
    This regulatory revision would not change the agency's intent under 
the March 2011 final rule, but would identify additional materials that 
are ``clean cellulosic biomass,'' and, thus, would be a traditional 
fuel under these regulations. While the list of clean biomass materials 
is only illustrative and not exhaustive, it is now more comprehensive 
than the list that appeared in the definition included in the 2011 NHSM 
final rule.
    One of the materials within the definition is clean C&D wood. In 
light of some confusion in comments regarding C&D wood, the EPA is 
clarifying the meaning of the term in the definition of ``clean 
cellulosic biomass.'' Construction & demolition wood actually may be 
placed into different categories, depending upon its origin. In 
accordance with the traditional fuels definition in section 241.2, 
clean C&D wood could be combusted as a traditional fuel if it does not 
contain contaminants at concentrations not normally associated with 
virgin wood.
    However, the final NHSM rule also addressed C&D wood that may 
contain contaminated material.\24\ There is no need to repeat these 
discussions here, except to clarify what the final rule means. In 
general, contaminated C&D wood that has been processed to remove 
contaminants, such as lead-painted wood, treated wood containing 
contaminants, such as arsenic and chromium, metals and other non-wood 
materials, prior to burning, likely meets the processing and legitimacy 
criteria for contaminants, and thus can be combusted as a non-waste 
fuel (see further discussion in response to comments below).
---------------------------------------------------------------------------

    \24\ See 76 FR 15485.
---------------------------------------------------------------------------

    Comment: One commenter noted that the EPA's specific inclusion of 
``untreated wood pallets'' implicitly accepts that small amounts of 
non-wood material inherent to the pallets, such as screws or plastic 
fasteners, do not render those materials solid waste under the rule, 
and de minimis amounts of non-biomass material would not require these 
types of materials to be burned in incinerators under the CISWI rule.
    Another commenter requested that the EPA reconsider use of the word 
``untreated'' when referring to wood pallets. The commenter argues that 
the EPA does not define the word ``untreated'' and its use could create 
confusion. Rather, the commenter recommends that ``untreated'' be 
replaced with the word ``clean,'' which is an adjective used in the 
definition to distinguish other materials (e.g., ``clean construction 
and demolition wood'').
    Response: Wood pallets are refurbished or recycled for other uses 
by pallet recyclers. When the useful life of the pallet is finished, 
the recyclers typically remove the small amount of non-wood material 
inherent to pallets that would inhibit combustion, such as screws or 
plastic fasteners. The pallets are then ready for use as fuel, and the 
non-wood material would not impact whether the material can be burned 
in combustion units that meet the CAA section 112 emission standards. 
The agency is not aware of instances where the pallets are used as fuel 
directly by the original users and non-wood material is left remaining 
in the pallet. Such pallets would not be considered clean cellulosic 
biomass under the rule.
    With respect to the other comment, the EPA does not agree, that the 
term ``untreated'' wood pallet be replaced with the term ``clean'' wood 
pallet. The term ``clean'' is defined in the traditional fuels 
definition as described above, and applies to all the materials listed 
in the definition of clean cellulosic biomass, which includes untreated 
wood pallets. It would be redundant to define ``clean'' biomass as 
including ``clean'' wood pallets. The point is that some wood pallets 
may contain treated wood, such as CCA treated wood, and inclusion of 
the term ``untreated'' with wood pallet would help emphasize that such 
treated wood would not be considered ``clean'' under the definition of 
clean cellulosic biomass.
    Comment: Several commenters indicated that the definition of clean 
cellulosic biomass remains ambiguous because it continues to include 
the caveat that: ``Clean biomass is biomass that does not contain 
contaminants at concentrations not normally associated with virgin 
biomass materials.'' Thus, notwithstanding the EPA's attempt at 
expanding the definition of clean cellulosic biomass, the commenters 
believed that this sentence should be removed because it perpetuates 
uncertainty. It is not clear what comparisons are permissible and what 
concentration levels are appropriate.
    The commenters also indicated that this sentence perpetuates the 
EPA's erroneous interpretation of its authority under RCRA. A material 
does not become a waste when burned for energy recovery just because it 
may contain contaminants--prior to combustion--not normally associated 
with virgin biomass. It becomes a waste only if it is

[[Page 9139]]

combusted for the purpose of disposal, rather than for energy recovery.
    Response: The agency disagrees with the commenter that defining the 
term ``clean'' leads to ambiguity in identifying which materials are 
clean cellulosic biomass. On the contrary, defining the term ``clean'' 
is meant to ensure that contaminated cellulosic material being burned, 
such as lead-painted wood or arsenic treated wood, does not introduce 
contaminants (as defined in 40 CFR 241.2) not normally associated with 
virgin biomass materials.
    The agency wishes to emphasize, however, that determinations that 
the cellulosic biomass used as a fuel or ingredient is clean, do not 
presuppose any testing of contaminant levels. Persons can use expert or 
process knowledge of the material to justify decisions regarding 
presence of contaminants.
    With respect to the comment that burning of contaminated material 
does not make it a waste, the agency has not reopened this issue for 
this rule and stands by its responses in the rulemaking record for the 
March 2011 final rule.\25\
---------------------------------------------------------------------------

    \25\ See, for example, 76 FR 15523-4: ``If a non-hazardous 
secondary material contains contaminants that are not comparable to 
those found in traditional fuels, and those contaminants are related 
to pollutants that are of concern at solid waste combustion units, 
then it follows that discard is occurring. The contaminants in these 
cases could not be considered a normal part of a legitimate fuel and 
are being discarded, either through destruction in the combustion 
unit or through releases into the air. Units that burn such 
materials are therefore most appropriately regulated under the CAA 
section 129 standards for solid waste incinerators.'' See also 76 FR 
15485, which states: ``[A]s we have noted previously, the criterion 
or test for determining whether a material is burned as a waste or a 
commodity fuel is the level of the contaminant in the secondary 
material itself--that is destruction of contaminants indicates a 
waste treatment activity rather than a commodity fuel.''
---------------------------------------------------------------------------

    Comment: One commenter provided the example of whether treated 
seeds that contain additives are considered contaminants in virgin 
biomass. These additives may not be found in virgin seeds but are not 
harmful at the concentrations found in the seeds. The commenter 
questioned whether any concentration above ``natural'' (concentration 
levels found in virgin material), especially when combusted as fuel, 
would be prohibited and require additional waste regulation.
    Response: Seeds may be treated with pesticides and hormones to aid 
in germination. Such chemicals do not generally include contaminants as 
defined in section 241.2; therefore, such treated seeds would be 
considered clean cellulosic biomass.
    Comment: Several commenters indicated that, as part of the EPA's 
changes in the definition of clean cellulosic biomass, it is proposing 
to consider treated or painted wood the same as ``virgin'' wood if it 
has lower than de minimis levels of contamination. While adoption of 
numerical values in the rule would require additional provisions for 
measurements and would require additional notice, the commenter 
believes that such clarity is important for successful implementation 
of the rule. Such limits would be applied to ``clean'' C&D material, 
for instance, among other potential fuel types. The term de minimis is 
not defined numerically in the proposed rule and the commenters argue 
that without a specific numerical de minimis limit, sources would not 
have a clear understanding of whether they fall under the CISWI or 
hazardous waste incinerator rules. The commenter recommended that the 
EPA define and allow for public comment on the levels associated with 
the term de minimis and base the de minimis levels on contaminant 
levels found in typical ``virgin'' wood.
    Response: Regarding the addition of a definition for de minimis 
amounts of contaminants remaining in processed wood, the agency does 
not believe it appropriate to identify specific concentration levels. 
Rather, the agency interprets de minimis as that term is commonly 
understood; i.e., insignificant or negligible amounts of contamination 
such as small wood sliver containing lead paint).
    As indicated above, there also appears to be confusion among 
commenters regarding two different categories of C&D wood--``clean C&D 
wood'' that is a traditional fuel, and C&D wood that has been processed 
to remove contaminants. Under the 2011 NHSM final rule, C&D wood that 
has been processed to remove contaminants, such as lead-painted wood, 
treated wood containing contaminants, such as arsenic and chromium, 
metals and other non-wood materials, prior to burning, likely meets the 
processing and legitimacy criteria for contaminants, and thus can be 
combusted as a non-waste fuel but would not be considered ``clean C&D 
wood.'' Such C&D wood may contain de minimis amounts of contaminants 
and other materials provided it meets the legitimacy criteria for 
contaminant levels. To meet the contaminant legitimacy criterion, 
concentration levels of contaminants in the processed C&D wood must be 
comparable to or less than the levels in the traditional fuel the unit 
was designed to burn, whether wood or another traditional fuel (see 
section III.D.2 for a discussion on contaminant comparisons). In 
contrast, ``clean C&D wood'' is a traditional fuel that does not 
require processing and meets the definition of ``clean'' (i.e., C&D 
wood that does not contain contaminants at concentrations not normally 
associated with virgin biomass (wood)). Thus, de minimis amounts of 
contaminants and other material appropriate for processed C&D wood 
would not be appropriate for clean wood that is a traditional fuel.
    Comment: One commenter argued that states should have discretion 
about how to determine appropriate fuel quality but it should be no 
less stringent than limits set by the EPA. There should be a 
distinction between de minimis levels of contamination in C&D wood and 
a fuel quality standard.
    Response: We do not necessarily disagree with the commenter. That 
is, as discussed in the final rule, part 241 does not preempt a state's 
statutory or regulatory standards and states are free to establish fuel 
quality standards for C&D wood. However, we would also note that as 
solid waste is defined by the EPA under RCRA, such state standards 
would not necessarily impact the status of the material as it relates 
to which combustion units are subject to CAA section 129 (56 FR 15546).
b. Contaminants
    The December 2011 rule proposed to clarify what constituents will 
be considered contaminants by making the definition of ``contaminants'' 
more specific. However, the proposal maintained the fundamental 
approach--and was intended to cover the same constituents--as the March 
2011 final rule.
    The March 2011 final rule and the December 2011 proposed rule 
identified the same three ways a chemical can be labeled a contaminant. 
First, it may be one of the 187 HAP currently listed in CAA section 
112(b); second, it may be one of the nine pollutants listed under CAA 
section 129(a)(4); and third, it may be one of a handful of chemicals 
whose combustion will result in the formation of listed CAA section 
112(b) and section 129(a)(4) pollutants (e.g., sulfur that will result 
in SO2).
    The definition proposed in December provided clarification by 
listing the constituents that belong to the third group.\26\ 
Specifically, the proposed

[[Page 9140]]

revision replaced a potentially ambiguous reference to ``any 
constituent that will result in emissions'' with the four specific 
elements the agency intended to be considered as contaminants 
(chlorine, fluorine, nitrogen, and sulfur) based on their status as a 
precursor to air emissions. In all four cases, the CAA pollutant itself 
(e.g., SO2) is not likely to be present in the NHSM prior to 
combustion, and the only way to measure constituents prior to 
combustion ``that will result in emissions'' of that pollutant is to 
measure a known precursor (e.g., sulfur) instead. For each of the four 
precursor elements listed as contaminants in the proposal, the expected 
fate for the precursor during combustion is formation of the 
aforementioned pollutant and the precursor makes no substantive 
contribution to the material's value as a fuel. For these reasons, the 
agency proposed to specifically identify chlorine, fluorine, nitrogen, 
and sulfur as contaminants in place of HCl, HF, NOX and 
SO2. By limiting the list of precursors considered 
contaminants to these four elements, the revised definition also made 
clear that the agency did not intend to include other elements present 
in contaminants (such as hydrogen and carbon) as contaminants 
themselves.
---------------------------------------------------------------------------

    \26\ Eleven metal elements directly identified in CAA section 
112(b) were also listed in the proposed definition to provide the 
regulated community with a complete list of elements that are 
considered ``contaminants'' under the rule.
---------------------------------------------------------------------------

    The December 2011 proposed rule also removed from the definition of 
contaminants those pollutants in CAA sections 112(b) and 129(a)(4) that 
we do not expect to find in any NHSM. Specifically:
     Chlorine gas, HCl, HF, NOX, and SO2 
were removed from the definition because they are unlikely to be found 
in NHSMs prior to combustion and had been replaced by the elements 
chlorine, fluorine, nitrogen and sulfur as discussed above;
     Fine mineral fibers were removed because they are releases 
from the manufacturing and processing (not combustion) of non-
combustible rock, glass or slag into mineral fibers;
     Particulate matter and coke oven emissions were removed 
because they are products of combustion unlikely to exist in NHSMs 
prior to combustion;
     Cresol isomers m-cresol, o-cresol, and p-cresol were 
removed because the listed pollutant cresols/cresylic acid includes 
these three isomers;
     Xylene isomers m-xylene, o-xylene, and p-xylene were 
removed because the listed pollutant xylenes includes these three 
isomers; and
     Diazomethane, white phosphorus, and titanium tetrachloride 
were removed because their high reactivity makes their presence in 
NHSMs very unlikely.
    In addition, two phrases present in the March 2011 final rule 
``contaminants'' definition were not included in the December 2011 
proposed rule definition. First, the phrase concerning constituents 
``that will result in emissions of the air pollutants'' was removed 
since the regulated community had expressed confusion that in 
determining whether or not a NHSM meets the contaminant legitimacy 
criterion, emissions from the combustion unit were to be evaluated. The 
EPA disagreed and directed readers to the language in sections 
241.3(d)(1)(iii) and 241.3(d)(2)(iv). These sections state that 
contaminant comparisons are based on the presence of contaminants in 
the NHSM (or products made from NHSMs in the case of ingredients), not 
the resulting emissions. The proposed revision also inserted the phrase 
``prior to combustion'' into the contaminants definition to further 
emphasize that the NHSMs, not the emissions that result from NHSMs, are 
to be evaluated when conducting contaminant comparisons. The rationale 
for evaluating the NHSM, and not emissions, can be found in the record 
for the March 2011 final rule.\27\ The proposal merely added language 
to ensure the rule is consistent with the agency's intent.
---------------------------------------------------------------------------

    \27\ For example, see 76 FR 15524-15525.
---------------------------------------------------------------------------

    The second phrase proposed to be removed from the March 2011 final 
rule definition was a reference to ``those constituents that could 
generate products of incomplete combustion,'' also referred to as PICs. 
This reference was removed from the definition because it was 
duplicative and potentially misleading. Specifically, this phrase was 
not necessary because all PICs that the agency considers air 
pollutants--including dioxins, dibenzofurans, PCBs and PAHs--are listed 
in CAA sections 112(b) or 129(a)(4) and are thus already included in 
the ``contaminants'' definition. More importantly, the phrase was 
potentially misleading because PIC formation depends heavily on 
combustion conditions, such as air/fuel ratio and mixing. These 
conditions are controlled to limit emissions and neither these 
conditions nor emissions are the subject of this rule. The NSHM itself 
is the subject of this rule. Thus, the removal of both phrases 
clarified, but did not alter, the constituents subject to the 
contaminant legitimacy criterion.
    The EPA believes that comments have not changed the basis for 
listing specific precursors to air emissions as contaminants, nor have 
they changed the basis for either excluding specific constituents from 
the definition or removing the references to ``that will result in 
emissions of the air pollutants'' and ``constituents that could 
generate products of incomplete combustion'' from the definition. Thus, 
the EPA is adopting the reasoning from the proposal and revising the 
definition of contaminants to incorporate these concepts.
    The EPA has decided, however, to make several modifications to the 
regulatory language of the December 2011 proposed rule based on 
comments received and information in the rulemaking record. First, in 
the final definition issued today, precursors will only be considered 
contaminants for NHSMs used as fuels; precursors will not be considered 
contaminants for NHSMs used as ingredients. Furthermore, precursors 
will not be considered contaminants if they do not form their 
corresponding pollutants. Also, opacity has been removed from the 
contaminants definition. Finally, the phrase ``prior to combustion'' 
has not been inserted into the contaminants definition, as had been 
proposed. Contaminants in NHSMs used as fuel in combustion units must 
still be evaluated prior to combustion, and persons must still evaluate 
the NHSM itself (not emissions), but the agency has determined that the 
topic of when to evaluate contaminants is more appropriate to address 
in the legitimacy criteria than in the contaminants definition.
    Additional reasoning for keeping the rule provisions as proposed, 
and for any modifications to the proposed language, are described in 
the following responses to comments.
    Comment: Several commenters stated that the definition of 
contaminants should focus on contaminants released as combusted 
emissions. One commenter argued that contaminants should be compared 
between emitted contaminants and emission standards. A second commenter 
reiterated previous comments that contaminant levels should be related 
to the air emissions and not the content of the material. For support, 
commenters cited that the EPA reversed its position in the proposal by 
using possible air emissions as the basis for establishing what 
contaminants need to be compared.
    Response: The EPA has previously stated that contaminant levels 
before and after combustion can be important indicators of legitimacy 
and it maintains the position from the March 2011 final rule that non-
waste fuels must be similar in composition to traditional

[[Page 9141]]

fuels prior to combustion.\28\ Because combustion and emission control 
processes can destroy or remove contaminants, a comparison of emissions 
profiles alone only tells one how well the combustion unit is 
operating, not whether the NHSM is being used as a legitimate non-waste 
commodity fuel.\29\
---------------------------------------------------------------------------

    \28\ See 76 FR 15525.
    \29\ Id.
---------------------------------------------------------------------------

    The EPA disagrees with the comment that the agency reversed its 
position on the consideration of emissions in the proposal by including 
precursors to air emissions as contaminants. The agency notes that a 
difference exists between comparing ``emissions'' and comparing 
``contaminants that will result in emissions,'' the exact language used 
in the March 2011 final rule. The EPA has clarified what it intended by 
``contaminants that will result in emissions'' in today's final action. 
This clarification involves the listing of specific precursors known to 
result in emissions of air pollutants when combusted; it also involves 
the removal of specific pollutants known not to be present in NHSMs.
    Comment: Two commenters expressed concern that the proposed 
definition of contaminants conflicted with the contaminant legitimacy 
criterion for NHSMs used as ingredients in combustion units. Commenters 
stated that both the definition of contaminants, as proposed, and the 
existing contaminant legitimacy criterion for ingredients were clear 
when read separately but were contradictory when taken together. The 
commenters encouraged the EPA to clarify the regulatory text. 
Specifically, the commenters noted that for ingredients, contaminants 
could not be evaluated prior to combustion and then used to compare 
products produced using NHSMs to products produced using traditional 
materials.
    Response: The EPA has decided not to include language from the 
December 2011 proposed rule in the definition of contaminants that 
emphasized when NHSM contaminant levels are to be evaluated (i.e., 
before or after combustion). While the proposed additional language 
made clear that NHSMs used as a fuel were to be evaluated for 
contaminants ``prior to combustion,'' the agency agrees with the two 
commenters who argued that the proposed language conflicts with the 
contaminant legitimacy criterion for ingredients. The contaminant 
criterion for ingredients requires comparisons to be made between 
products produced with and without NHSMs, but until the products exist, 
they cannot be compared.
    As such, the agency has decided not to adopt the proposed 
additional language addressing when contaminants are to be evaluated in 
the definition of contaminants. The agency proposed similar language in 
the December 2011 rule addressing this topic in the contaminant 
legitimacy criterion and the agency is adopting that language in 
today's final rule. The agency has determined that the legitimacy 
criteria themselves (40 CFR 241.3(d)(1)(iii) for fuels and 40 CFR 
241.3(d)(2)(iv) for ingredients) are more appropriate places to address 
this topic.
    The EPA has also decided to add language to the definition of 
contaminants clarifying that the specification of particular precursors 
to air emissions (i.e., chlorine, fluorine, nitrogen and sulfur) as 
contaminants does not apply to the contaminant legitimacy criterion for 
ingredients. As identified by the commenters, the contaminant criterion 
for ingredients requires comparisons to be made between products 
produced with and without NHSMs. Products can only be compared after 
combustion has occurred, at which point there will be no benefit to 
measuring levels of precursors.
    The agency also notes that it does not envision a situation where 
NHSMs containing chlorine, fluorine, nitrogen or sulfur would be used 
as ingredients in such a way that would emit higher levels of HCl, HF, 
NOX or SO2 than would be emitted using 
traditional ingredients without the material being considered a solid 
waste. In all cases, ingredients must provide a valuable contribution 
to the product being produced, and that product must itself be 
valuable, in order to not be considered a solid waste. For an 
ingredient to provide value, the agency expects the ingredient to 
remain in a product rather than be destroyed or released via emissions. 
This is a key reason why the contaminant legitimacy criterion for 
ingredients focuses on products (i.e., toxics along for the ride) 
rather than emissions. Furthermore, the legitimacy criteria for 
ingredients cannot be used to avoid the legitimacy criteria for fuels 
if the material is being used for both purposes.
    Comment: Several commenters questioned the rationale for including 
precursors to air emissions as ``contaminants'' under the proposed 
revised definition. Some indicated that the concept is far removed from 
the true meaning of ``discard,'' with one comment stating that the EPA 
has no legal, rational or scientific basis for considering the presence 
of sulfur or nitrogen in NHSMs as evidence of intent to discard 
SO2 or NOX during combustion. To support this 
argument, the commenter first noted that the EPA has no record basis 
for assuming that the intent of the combustor is to discard the 
constituent, rather than to generate energy. Second, the commenter 
noted that whether or not a boiler has emissions of regulated air 
pollutants, such as SO2 or NOX when it combusts a 
precursor will depend, not on an intent to discard these pollutants, 
but on boiler operation and design.
    Two commenters also stated that the preamble discussion on 
precursors demonstrates how far removed the EPA's rationale for this 
rulemaking is from the concept of discard. They noted that the EPA is 
requiring combustors to document and keep records regarding the fact 
that CO is not present in NHSMs, and, under CISWI, would identify the 
NHSM as waste if this documentation is not maintained. The commenters 
failed to see how this has anything to do with a determination that a 
material is a waste under RCRA.
    Response: The EPA disagrees with these comments. Precursors to 
emissions of identified air pollutants are important and appropriate to 
address as contaminants in NHSMs prior to combustion. It is also 
necessary to tailor the definition of contaminants to the realities of 
the combustion process, during which precursors present in NHSMs used a 
fuel--many of which are solid or liquid--are transformed into air 
pollutants.
    However, the agency agrees with those commenters who argued that 
the revised definition, as proposed, may be too broad with regard to 
precursors that may not form air pollutants in all cases. For example, 
if the combustion of nitrogen does not form NOX in a 
particular situation, the agency did not intend in its December 2011 
proposed rule to consider nitrogen as a contaminant in that particular 
situation.\30\ The EPA noted in the proposed rule that chlorine, 
fluorine, nitrogen and sulfur will form pollutants of concern in most 
circumstances, but the agency does acknowledge that specific 
technologies and practices may prevent these transformations from 
happening in the first instance, particularly with regard to nitrogen 
(one

[[Page 9142]]

example being the use of Low NOX burners with Over-Fire 
Air). Thus, the contaminants definition issued in today's final rule 
does not consider constituents that are normally precursors to CAA 
section 112(b) or 129(a)(4) pollutants to be contaminants if a specific 
technology or practice prevents them from forming their corresponding 
pollutants.
---------------------------------------------------------------------------

    \30\ See March 16, 2012 Response from James R. Berlow, Director, 
Program Implementation and Information Division, EPA's Office of 
Resource Conservation and Recovery to Fadi K. Mourad, DTE Energy 
Services, Inc. A copy of this response letter has been placed in the 
docket for today's rulemaking and is also available at https://www.epa.gov/epawaste/nonhaz/define/index.htm.
---------------------------------------------------------------------------

    The definition codified in 40 CFR 241.2 only includes chlorine, 
fluorine, nitrogen and sulfur as contaminants in cases where 
``combustion will result in the formation of hydrogen chloride (HCl), 
hydrogen fluoride (HF), nitrogen oxides (NOX), or sulfur 
dioxide (SO2).'' When compared to the December 2011 proposed 
rule, the only constituents no longer considered contaminants due to 
this modification are chlorine that will not form HCl during 
combustion, fluorine that will not form HF during combustion, nitrogen 
that will not form NOX during combustion and sulfur that 
will not form SO2 during combustion. This is consistent with 
the March 2011 NHSM final rule, under which these constituents would 
not be contaminants when they would not ``result in emissions'' of CAA 
section 112(b) or section 129(a)(4) pollutants.
    Although the EPA is not currently aware of any technologies or 
practices that prevent chlorine, fluorine or sulfur in NHSMs from 
forming their associated pollutants during combustion (the EPA is aware 
of such examples with nitrogen), the agency considers it reasonable and 
appropriate to adopt the same language for all four precursors to allow 
for future technological advances preventing the transformation of 
these elements into pollutants during combustion.
    Comment: One commenter stated that the consideration of precursors 
to air emissions as contaminants could be used to make the most 
fundamental of all elements, hydrogen, a contaminant because it is 
present in nearly all regulated pollutants. The presence of hydrogen in 
a NHSM could then be considered evidence of intent to discard 
pollutants that contained hydrogen.
    Response: Under the proposed contaminants definition, only the 
specific precursor elements listed (chlorine, fluorine, nitrogen and 
sulfur) are considered contaminants. The EPA determined in the 
proposal, and adopts as its final decision today, that these are the 
only four precursors necessary to evaluate when comparing contaminants 
between NHSMs and traditional fuels. The agency specifically decided 
not to include hydrogen on this list. Whereas combustion of chlorine, 
fluorine, nitrogen and sulfur typically leads to the formation of CAA 
section 112(b) or 129(a)(4) air pollutants, combustion of hydrogen 
typically leads to the formation of water vapor.
    Comment: Several commenters opposed the inclusion of precursors as 
contaminants on the ground that the formation of related pollutants 
depends more on boiler operation and design, process chemistry and 
feedstock characteristics than on the levels of precursors present in 
the NHSMs.
    Response: The EPA recognizes that unit design and operating 
conditions can impact the transformation of chlorine, fluorine, 
nitrogen and sulfur into air pollutants. Rather than viewing this as a 
reason to ignore the pollutants these elements commonly form, the 
agency views this as further evidence why precursor levels must be 
considered when determining which set of CAA standards--which in turn 
regulate unit operating conditions--should apply.
    Comment: Two commenters suggested that the EPA follow a different 
approach for defining contaminants and use a method similar to what the 
agency used for the used oil specification in 40 CFR 279.11. In each 
case, the commenter suggested that for NHSMs, the definition of 
contaminants should be limited to sulfur, nitrogen, chlorine, Cd, Hg 
and lead because those are the elements Congress addressed in CAA 
section 129. This approach, they argued, would be similar to what the 
EPA did when developing the used oil specifications. The point the 
commenters wished the agency to draw from the used oil specification 
approach is that it addressed elemental species, as opposed to 
individual compounds. Using sulfur as an example, the commenters 
reasoned that it is the underlying presence of sulfur-bearing materials 
in the NHSMs, as opposed to individual sulfur-containing compounds on 
the section 112(b) list, which effects emissions of SO2.
    Response: The EPA disagrees with the approach outlined by the 
commenters and has issued a final definition of contaminants based on 
both the CAA section 112(b) and the CAA section 129(a)(4) lists, as was 
proposed. We do agree with the commenters, however, that identifying 
precursors that will form certain CAA pollutants in the definition of 
contaminants is appropriate. The approach outlined by the commenters 
appears to be based on two premises that the EPA has previously 
considered and decided not to adopt.
    First, the commenters do not think the definition of contaminants 
should reference both the CAA section 112(b) and CAA section 129(a)(4) 
lists. The agency previously explained its decision to use both lists 
in the March 2011 final rule and does not believe comments have offered 
any new information that would change the basis for this decision. The 
EPA previously discussed that both lists of constituents are 
appropriate because both lists are to be considered by the EPA when 
developing emission standards.\31\ Furthermore, the agency has 
previously explained that CAA section 129 provides that the term 
``solid waste'' shall have the meaning promulgated by the EPA under 
RCRA and that the EPA has the authority to interpret RCRA to decide 
whether NHSMs are solids wastes or not.\32\ The agency notes that it 
has carefully considered the CAA section 112(b) and 129(a)(4) lists of 
pollutants and removed those constituents that would not be appropriate 
to evaluate in NHSMs.
---------------------------------------------------------------------------

    \31\ See 76 FR 15524-15525. See also, 75 FR 31883.
    \32\ See 76 FR 15469-15470. See also, 76 FR 15473.
---------------------------------------------------------------------------

    Second, the commenters base their proposed approach to defining 
contaminants purely on emissions. The agency agrees that emissions may 
be a means of discard but contaminants that are destroyed by the 
combustion process or incorporated into products may not have emission 
standards established under CAA section 129. Combustion may still be a 
means of discard in these instances. Thus, a definition of contaminants 
based only on the CAA section 129 emissions standards only tells one 
how well the combustion unit is operating, not whether the NHSM is 
being used as a legitimate non-waste commodity.\33\
---------------------------------------------------------------------------

    \33\ See 76 FR 15525.
---------------------------------------------------------------------------

    Comment: Several commenters addressed the specific constituents 
proposed to be removed from the definition of contaminants. In general, 
comments were supportive of the concept that constituents unlikely to 
be found in NHSMs prior to combustion or adequately measured elsewhere 
in the definition should be removed from the definition.
    Multiple commenters asked that CO also be removed from the 
definition because it is unlikely to be found in NHSMs. The same 
commenters asked that opacity be removed from the definition because it 
can only be measured in emissions and is not directly related to any 
one specific constituent in NHSMs. Particulate matter and coke oven 
emissions were removed, noted the commenters, because they are products 
of combustion unlikely to exist in NHSMs

[[Page 9143]]

prior to combustion, and the same can be said for CO and opacity.
    One commenter expressed concern that asbestos had been removed from 
the list due to the removal of ``fine mineral fibers'' as a 
contaminant. The commenter explained that asbestos is commonly found in 
construction and demolition debris and asbestos particles in smoke are 
deadly. Excluding fine mineral fibers from regulation explicitly 
ignores the possibility of such contamination in C&D debris, noted the 
commenter, and asbestos should be a regulated contaminant.
    Response: The EPA has issued a final rule containing the language 
removing constituents from the definition of contaminants as proposed, 
with one change. The agency has removed ``opacity'' from the final 
definition of contaminants as well. Similar to PM and coke oven 
emissions, there is no practical way to measure opacity in NHSMs prior 
to combustion or in products made using NHSMs. In fact, the EPA did not 
intend for opacity to be included in the definition of contaminant 
under the previous definition. A visual property of an emissions 
stream, opacity is not even a constituent, let alone a constituent that 
can be measured in NHSMs prior to combustion or in products made using 
NHSMs. As such, removing it from the definition will provide clarity 
without effecting any practical change to the definition.\34\
---------------------------------------------------------------------------

    \34\ Neither Table 7 nor Table 8 in the December 2011 proposed 
rule included opacity. See 76 FR 80478-80480.
---------------------------------------------------------------------------

    The agency has not removed CO from the definition of contaminants 
because, contrary to comments that it is unlikely to be found in any 
NHSM, it is likely to be present in gaseous NHSMs and is not adequately 
measured elsewhere in the ``contaminants'' definition. However, as we 
discuss in the December 2011 proposed rule, CO is unlikely to be found 
in solid or liquid NHSMs and EPA expects that persons can use process 
knowledge to justify not testing for CO in these cases.\35\
---------------------------------------------------------------------------

    \35\ See 76 FR 80475.
---------------------------------------------------------------------------

    The agency has removed the fine mineral fibers group from the 
definition of contaminants, as proposed, because they are not expected 
to be found in NHSMs. Fine mineral fibers, as regulated under CAA 
section 112(b) are releases from the manufacturing and processing of 
non-combustible rock, glass or slag into mineral fibers and are not 
produced during the combustion process. Asbestos, on the other hand, 
has been set apart from the fine mineral fibers group in CAA section 
112(b), and thus, it is set apart in the NHSM rule. To be clear, 
asbestos is included in the definition of contaminants in today's final 
rule and it would be a contaminant regardless of whether the fine 
mineral fibers group was removed or not. In summary, the following 12 
CAA section 112(b) and section 129(a)(4) pollutants have been removed 
from the definition of contaminants: HCl, Cl2, HF, 
NOX, SO2, fine mineral fibers, PM, coke oven 
emissions, opacity, diazomethane, white phosphorus and titanium 
tetrachloride.
c. Established Tire Collection Programs
    The 40 CFR 241.2 definition for ``established tire collection 
program,'' as established by the March 2011 promulgation in the Federal 
Register, was as follows: ``Established tire collection program means a 
comprehensive collection system that ensures scrap tires are not 
discarded and are handled as valuable commodities in accordance with 
section 241.3(b)(2)(i) from the point of removal from the vehicle 
through arrival at the combustion facility.''
    In the December 2011, NHSM proposed rule, the EPA proposed to 
revise this definition (and the related criteria for non-waste tires 
now at 40 CFR 241.4(a)(1)) in order to account for off-specification 
tires. The term ``off-specification tires'' is intended to also include 
``factory scraps.'' The off-specification tires are not removed from 
vehicles and are handled under contractual arrangements which ensure 
they are not discarded. The definition was modified to include 
``contractual arrangement'' to provide that not only ``collection 
systems,'' but also contractual arrangements for tire collection would 
be appropriate. The requirement for the tires to be removed from the 
vehicle was eliminated \36\ since it is not applicable to off-
specification tires. The revised definition is sufficient to encompass 
the agency's intent in describing these programs and continues to 
ensure that these scrap tires are not discarded and are handled as 
valuable commodities through arrival at the combustion facility. 
Further, the addition to the new categorical non-waste provision at 40 
CFR 241.4(a)(1) eliminated the need for the previous scrap tire 
provision at 40 CFR 241.3(b)(2)(i),\37\ (which has been removed and 
reserved in today's final rule) therefore, the reference to that 
provision was removed in the definition. The agency proposed to revise 
the definition as follows: ``Established tire collection program means 
a comprehensive collection system or contractual arrangement that 
ensures scrap tires are not discarded and are handled as valuable 
commodities through arrival at the combustion facility.''
---------------------------------------------------------------------------

    \36\ The related tire provision at 241.4(a)(1) allows for tires 
that are off-specification or are removed from vehicles.
    \37\ The scrap tire provision in the 2011 NHSM final rule is now 
removed and the section reserved in today's final rule: ``(b) The 
following non-hazardous secondary materials are not solid wastes 
when combusted:
     (2) The following non-hazardous secondary materials that have 
not been discarded and meet the legitimacy criteria specified in 
paragraph (d)(1) of this section when used in a combustion unit (by 
the generator or outside the control of the generator):
    (i) Scrap tires used in a combustion unit that are removed from 
vehicles and managed under the oversight of established tire 
collection programs.''
---------------------------------------------------------------------------

    The definition in today's final rule includes the revisions to the 
definition we proposed in December 2011. In addition, the agency is 
including in the definition ``tires that were not abandoned and were 
received from the general public at collection program events.'' This 
revision is being made based on comments received on the proposed rule 
as discussed below. Under today's revised definition, established tire 
collection programs could also include a ``contractual arrangement.'' 
If, for example, the state is sponsoring special events where they take 
tires back from the general public, those tires would also be included. 
Thus, the definition in today's final rule is ``Established tire 
collection program means a comprehensive collection system or 
contractual arrangement that ensures scrap tires are not discarded and 
are handled as valuable commodities through arrival at the combustion 
facility. This can include tires that were not abandoned and were 
received from the general public at collection program events.''
    While the agency did receive comments on the specific proposed 
changes described above, a number of commenters rephrased or restated 
previous arguments which conclude that any tires burned for energy 
recovery are not wastes, even if previously discarded. Conversely, one 
commenter reiterated its previous arguments which conclude that all 
used tires are waste, even if burned for energy recovery. Today's rule 
is responding only to the specific proposed revisions to the 
regulations and the requests for comment in the proposal. For the 
response to other issues, refer to the record for the 2011 NHSM final 
rule (76 FR 15456). Many of the commenters who provided comments on 
tires intertwined the ``established tire collection program'' 
definition issues

[[Page 9144]]

with the related topic of the categorical non-waste provision for scrap 
tires. For a discussion of those comments, refer to the response to 
comments for the categorical non-waste provision for scrap tires 
(section III.D.3.a.). The EPA is not reopening its decision that these 
scrap tires are not wastes. That decision, however, justifies a 
categorical exclusion where there is not a need to make case-by-case 
determinations regarding discard in the first instance and the 
legitimacy criteria.
    Comment: Several commenters mentioned that, in some cases, the 
public individually takes tires to state-run tire collection program 
events. These are tires that the general public owns and were typically 
removed from their vehicle. These are not abandoned tires. These 
collection events, in some cases, are held by the combustor under the 
state's environmental program oversight. In those cases, the combustors 
enter into agreements with local communities to hold these events 
during which local residents are allowed to bring tires to facilities 
to be recycled, including used as alternative fuels. The scope of tire 
collection programs also may allow the public to take used tires which 
they may have stored in their garages, or elsewhere on their property, 
directly to a combustion facility--in many cases a cement kiln.
    Under the EPA's current definition of tire collection programs, the 
commenters said it is not clear whether these tires would qualify as 
those collected under an ``established tire collection program.'' 
Commenters generally agreed that these tires are not abandoned and 
should be utilized as non-waste fuels without processing.
    Response: The EPA agrees with the commenters that tires that have 
not been discarded and are collected directly from the public at tire 
collection events are intended to qualify for the 40 CFR 241.4(a)(1) 
requirement to be ``managed under the oversight of established tire 
collection programs.'' The agency agrees that these tires are not 
abandoned and when collected under established tire collection program 
events, they are considered to be non-waste fuels, just as the other 
tires handled by established tire collection programs are non-waste. To 
make this point clear, the EPA has modified the regulatory language. 
Please refer to the Response to Comment document for more details on 
these collection events and the responses.
2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels
    Under the December 2011 proposed rule, revisions to the contaminant 
legitimacy criterion for NHSMs used as fuel provided details on how 
contaminant comparisons could be made in practice. The proposal 
maintained the fundamental approach of the March 2011 final rule, but 
the proposed criterion better reflected the EPA's intent to allow 
certain flexibilities when making contaminant comparisons.
    First, the proposal replaced ``contaminants'' with the phrase 
``contaminants or groups of contaminants'' to clarify that, when 
deciding how to compare contaminants between NHSMs and traditional 
fuels, persons do not have to make comparisons on a contaminant-by-
contaminant basis in all cases. When technically reasonable, 
comparisons may be made on a group of contaminants-by-group of 
contaminants basis.
    The December 2011 rule also proposed to codify language from the 
preamble to the March 2011 final rule clarifying that when selecting 
which traditional fuel(s) a unit is designed to burn, persons are not 
limited to the traditional fuel the unit is currently permitted to 
burn. Persons may choose any traditional fuel the unit can burn or does 
burn, whether or not it is permitted to burn such fuel.
    In addition, the proposed regulations included text confirming 
that, when comparing contaminant levels between NHSMs and traditional 
fuels, persons are not limited to data from the specific traditional 
fuel being replaced. National surveys of traditional fuel contaminant 
levels are one example of another acceptable data source. Neither the 
March 2011 final rule nor the December 2011 proposed rule required 
persons to compare contaminants in their NHSM to contaminants in the 
specific traditional fuel source they burn (or would otherwise burn). 
As an example, the proposal noted that persons who would otherwise burn 
coal may use any as-burned coal available in coal markets in making a 
comparison between the contaminants in their NHSM and the contaminants 
in coal--they are not limited to coal from a specific coal supplier 
they have used in the past or currently use.
    Finally, the proposed regulations included text confirming that, 
when comparing contaminant levels between NHSMs and traditional fuels, 
persons are not limited to comparing average concentrations. 
Traditional fuel contaminant levels can vary considerably and the full 
range of contaminant values may be used.
    Two other issues arose prior to the December 2011 proposed rule 
that, while not leading to specific regulatory changes in the proposal, 
still merited a discussion in the proposal. The first issue was that 
contaminant legitimacy criterion determinations do not require testing 
contaminant levels, in either the NHSM or an appropriate traditional 
fuel. Persons can use expert or process knowledge to justify decisions 
to either rule out certain constituents or determine that the NHSM 
meets the contaminant legitimacy criterion. The second issue was that 
persons may use data from a group of similar traditional fuels for 
contaminant comparisons, provided the unit could burn each traditional 
fuel. The idea grows from the ``designed to burn'' concept explained in 
the March 2011 final rule and codified in today's final rule, and it 
allows a person with a unit that can or does burn similar traditional 
fuels (e.g., anthracite, lignite, bituminous and sub-bituminous coal) 
to group those traditional fuels when making contaminant comparisons.
    The EPA believes that comments have not changed the basis for 
making the decisions to expressly allow grouping of contaminants, to 
interpret ``designed to burn'' to mean can burn or does burn regardless 
of permit status, and to affirm that persons can use ranges and 
national surveys of traditional fuel data when making contaminant 
comparisons between NHSMs and traditional fuels. Comments have also not 
changed the agency's basis for making the decisions that testing is not 
required and that persons can group similar traditional fuels for the 
purposes of contaminant comparisons. Thus, the EPA is adopting the 
reasoning from the proposal and revising the contaminant legitimacy 
criterion for NHSMs used as a fuel to incorporate these concepts.
    The EPA has decided, however, to make one modification to the 
proposed contaminant legitimacy criterion based on comments received 
and information in the rulemaking record. The final criterion issued 
today includes additional language clarifying the appropriate use of 
ranges when making contaminant comparisons between NHSMs and 
traditional fuels. To use the full range of contaminant values in 
traditional fuels, persons should also account for the variability in 
NHSM contaminant levels.
    Additional details and rationale for the proposed revisions 
concerning the grouping of contaminants, the meaning of designed to 
burn, and the use of ranges and traditional fuel data in making 
contaminant comparisons are discussed in section III.D.2.b, section 
III.D.2.c, and section III.D.2.d below. Additional reasoning for 
keeping the rule provisions as proposed and for any modifications to 
the proposed language

[[Page 9145]]

are described in the responses to comments included in these sections.
a. General Comments on the Revised Contaminant Legitimacy Criterion
    The EPA is not responding to issues that the agency decided in the 
March 2011 rule and has not reopened for comment. Specifically, the 
agency has previously discussed and did not solicit comments in this 
rule on why the concept of legitimacy is important in determining 
whether a secondary material is genuinely recycled or is, in fact, 
discarded.\38\ The agency has also previously discussed and did not 
solicit comments in this rule on why contaminant comparisons to 
traditional fuels are an appropriate and mandatory factor in 
determining legitimacy for NHSMs used as fuels in combustion units.\39\ 
The agency has also previously discussed and did not solicit comments 
in this rule on why the ``comparable to or lower than'' standard is 
more appropriate than the ``not significantly higher than'' 
standard.\40\ The agency has also previously discussed that the NHSM 
Rule differs from the DSW Rule in that it is tailored specifically for 
application to NHSMs used in combustion units.\41\
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    \38\ See 75 FR 31870.
    \39\ See 75 FR 31871-31872. See also, 76 FR 15524-15525.
    \40\ See 75 FR 31872. See also, 76 FR 15523.
    \41\ See 75 FR 31870.
---------------------------------------------------------------------------

    Comment: Industry commenters overwhelmingly supported the proposed 
revisions to the contaminant legitimacy criterion, stating that the 
revisions would help provide regulatory certainty and give the 
regulated community more confidence in their self-determinations.
    Environmental groups, on the other hand, expressed concern that the 
combination of flexibilities present in the proposed revisions to the 
contaminant legitimacy criterion will allow facilities to compare 
contaminant levels in C&D debris and other wood waste to the highest 
contaminant levels found in coal, even if the facility is not permitted 
to burn coal. They believed that this should not be permitted and 
argued that C&D wood should not contain contaminant levels higher than 
found on average in virgin biomass.
    State comments were mixed, with one commenter supporting the 
proposed revisions and another commenter expressing concern that the 
revisions would weaken the states' permitting authorities and create an 
incentive for combustors to burn dirtier traditional fuels.
    Response: The EPA has decided to retain the concepts proposed to 
the contaminant legitimacy criterion because these changes more 
accurately reflect the EPA's intent under the March 2011 final rule. 
The agency maintains that these concepts are reasonable and provide a 
necessary degree of certainty for persons seeking to comply with the 
rule. This is explained in more detail in sections III.D.2.b (groups of 
contaminants), III.D.2.c (meaning of designed to burn), and III.D.2.d 
(allowable contaminant comparisons) of this preamble.
    At the same time, comments from both industry and environmental 
groups have highlighted, in the agency's opinion, a need for additional 
clarity in the regulatory text on the appropriate use of ranges when 
making contaminant comparisons between NHSMs and traditional fuels. 
Accordingly, the EPA has made a minor adjustment to the criterion to 
ensure that ranges are not used inappropriately in contaminant 
comparisons (i.e., the highest traditional fuel contaminant values 
should not be compared to average NHSM contaminant values). See section 
III.D.2.d of this preamble for a more detailed description of this 
specific change to the contaminant legitimacy criterion.
    The agency disagrees with state concerns that the NHSM rule will 
weaken the states' permitting authorities. State permitting authorities 
must still approve permit changes and this final rule does not affect 
discretion of the permitting authorities in acting on requests for 
permit modifications. The agency also disagrees with state concerns 
that the NHSM rule will create an incentive for combustors to burn 
dirtier traditional fuels. The EPA understands how restricting 
contaminant comparisons to traditional fuels the unit currently burns 
could provide an incentive for the facility to burn traditional fuel 
with high contaminant levels. When facilities do not actually have to 
burn that traditional fuel to make comparisons, however, that incentive 
is effectively removed.
    Comment: One commenter requested that the proposed revisions to the 
contaminant legitimacy criterion be added to each option for 
demonstrating that NHSMs are non-wastes when used in combustion units, 
whether it is the on-site documentation, the EPA petition process or 
the categorical non-waste determination process proposed in 40 CFR 
241.4.
    Response: Revisions to the contaminant legitimacy criterion 
codified today in 40 CFR 241.3(d)(1) apply to all options for 
demonstrating that a NHSM is not a solid waste when used as a fuel in a 
combustion unit. The revised legitimacy criterion is embedded in the 
self-implementing options outlined in 40 CFR 241.3(b)(1) for use within 
the control of the generator and 40 CFR 241.3(b)(4) for NHSMs that are 
processed and then used in a combustion unit. The revised legitimacy 
criterion is also embedded in the optional EPA petition process 
outlined in 40 CFR 241.3(c). The revised legitimacy criterion is also 
referenced as a factor to be considered in the categorical non-waste 
determination process outlined in 40 CFR 241.4.
    Comment: Several commenters expressed concern that the proposed 
revisions to the contaminant legitimacy criterion, although an 
improvement over the 2011 Final NHSM Rule, may not provide the 
regulated community with enough information to be confident in their 
compliance status. Two commenters noted that the EPA has overlooked the 
analytical complexities inherent in the contaminant legitimacy 
criterion and the many opportunities it creates for disagreement 
between facility operators and regional and state regulators. One of 
these commenters asked the EPA to both define the term `comparable' and 
clarify sampling and analytical methodologies to be used when measuring 
contaminant levels. Other commenters advised the EPA to increase 
predictability as much as possible by developing a disciplined process 
for making contaminant comparisons and providing real time transparency 
for such decisions.
    Similarly, two commenters expressed concern that even after a 
source makes a fuel determination, the EPA could take a different view 
of the NHSMs and conclude that they were solid wastes. The risk sources 
face is noncompliance with the CAA and these commenters contended that 
the issue is too critical for the EPA to leave the contaminant 
legitimacy criterion so vague. Over time, as the EPA develops a record 
for decisions (particularly comparable contaminant determinations), one 
of these commenters urged the EPA to establish a database and 
immediately post determinations for other sources to review.
    Other commenters supported the proposed revisions to the 
contaminant legitimacy criterion and indicated that they provided 
sufficient clarification. One commenter noted that changes to the 
language of the criterion and the additional clarification provided in 
the preamble to the December 2011 proposed rule provide key additional 
detail on making contaminant comparisons and allow additional 
flexibility where appropriate. The same commenter urged the EPA to 
maintain

[[Page 9146]]

that flexibility if the agency develops additional guidance on making 
contaminant comparisons in the future.
    Response: The EPA has retained the approach included in the 
proposed rule that provides information on how contaminant comparisons 
can be made and the agency will continue to make its traditional fuel 
data and legitimacy determinations transparent through the EPA Web 
site.\42\
---------------------------------------------------------------------------

    \42\ The EPA maintains a NHSM Web page with current information 
on contaminant levels in traditional fuels, examples of legitimacy 
determinations and other information at https://www.epa.gov/epawaste/nonhaz/define/index.
---------------------------------------------------------------------------

    The agency recognizes the need for regulatory certainty, a need 
that has been addressed by revisions to the definition of contaminants 
and the contaminant legitimacy criterion in today's final rule. 
Contaminants have been specifically listed, additional clarity on 
NHSMs/traditional fuel comparisons has been provided and several 
comparison methodologies have been provided in the preamble as examples 
that could be used by the regulated community. Comments from the 
regulated community have been supportive both of these changes and of 
the agency's efforts to update traditional fuel data that can be used 
for contaminant comparisons.\43\ In addition, a number of 
interpretative letters have been written that address specific fact 
situations as presented by a specific facility and these letters have 
been posted on the EPA's Web site.\44\ These letters serve as examples 
of acceptable ways to demonstrate legitimacy.
---------------------------------------------------------------------------

    \43\ Contaminant Concentrations in Traditional Fuels: Tables for 
Comparison, November 29, 2011, can be found at https://www.epa.gov/epawaste/nonhaz/define/index.
    \44\ See NHSM rule Web site https://www.epa.gov/epawaste/nonhaz/define/index.htm.
---------------------------------------------------------------------------

    The EPA must balance the need for regulatory certainty, however, 
with the need for flexibility, which many commenters also believe is 
important. As the agency has previously discussed, the legitimacy 
criteria must be flexible enough to account for future changes in 
commodities, technologies, markets and fuel prices.\45\ Previous 
comments have stressed the preference for a qualitative approach, and 
the agency has agreed, noting that numerical specifications may be 
impractical due to the multiplicity of fuels and ingredients.\46\ The 
agency has also previously discussed that a numerical definition of 
`comparable' would be impractical given differences in the typical 
concentration levels of various contaminants, choosing instead to offer 
several examples.\47\ While the agency will consider future guidance on 
contaminant comparisons, it has determined that no one approach is 
appropriate for every legitimacy determination given the variety of 
traditional fuels, NHSMs and combustion units that currently exist and 
will likely increase in the future.
---------------------------------------------------------------------------

    \45\ See 75 FR 31870.
    \46\ See 75 FR 31871.
    \47\ See 76 FR 15524 and 15542.
---------------------------------------------------------------------------

    Comment: One commenter noted that both the March 2011 NHSM final 
rule and the proposal implicitly place the burden on the combustion 
facility to determine if a fuel derived from NHSMs meets the legitimacy 
criteria. In the utility industry, the commenter explained, it is 
common practice for utilities to rely on fuel marketers to establish 
and verify fuel quality, and the regulatory burden on utilities 
combusting such secondary materials as fuels could be reduced if the 
EPA clarified the circumstances under which a facility would be 
entitled to rely on the fuel quality representations of its suppliers. 
The commenter suggested that the EPA clarify that a utility may rely in 
good faith on the representations of its suppliers that NHSMs meet the 
codified legitimacy criteria, or, alternatively, that utilities be 
required only to periodically test the quality of NHSM-derived fuels 
obtained from third parties to rely on their suppliers' 
representations.
    Response: The EPA notes that while fuel suppliers may provide their 
customers with documentation supporting a legitimacy determination, 
persons who burn NHSMs are ultimately responsible for the materials 
burned at their units. As stated in the proposed rule, however, the 
agency adopts as its decision for this final rule that initial 
assessments would not need to be repeated as long as the facility 
continues to operate in the same manner and use the same type of NHSM 
as when the original assessment was made.\48\
---------------------------------------------------------------------------

    \48\ See 76 FR 80481.
---------------------------------------------------------------------------

b. Grouping of Contaminants
    The December 2011 proposed revision to the contaminant legitimacy 
criterion for NHSMs used as a fuel began with the following sentence: 
``The non-hazardous secondary material must contain contaminants or 
groups of contaminants at levels comparable in concentration to or 
lower than those in traditional fuel(s) which the combustion unit is 
designed to burn.'' The phrase `or groups of contaminants' was not 
present in the language from the March 2011 NHSM Final Rule but was 
included in the December 2011 NHSM Proposed Rule to clarify that groups 
of contaminants could be evaluated in determining whether a NHSM meets 
the contaminant legitimacy criterion.
    In particular, the proposed rule noted that groups of contaminants 
in NHSMs could be compared to similar groups in traditional fuels where 
the grouped contaminants shared physical and chemical properties that 
influence their behavior in the combustion unit prior to the point 
where emissions occur. Volatility, the presence of specific elements 
and compound structure were three such properties identified in the 
proposal and one approach to grouping contaminants was shown that 
included groups for TOX, nitrogenated HAP, VOCs, SVOCs, dioxins and 
furans, PCBs, PAHs and radionuclides. The agency also noted that 
persons may consider other groupings that they can show are technically 
reasonable.
    Grouping of contaminants is a standard practice often employed by 
the agency as it develops regulations. In fact, the monitoring 
standards included in the CAA sections 112 and 129 regulations also 
utilize the grouping concept and they apply to the same combustion 
units impacted by the NHSM rule (i.e., industrial, commercial and 
institutional boilers and process heaters and CISWI units). For 
example,
     Volatile hydrocarbons and semi-volatile hydrocarbons can 
both be expected to result from incomplete combustion; therefore, the 
emission standards promulgated under the CAA regulations are grouped 
into one category: CO.\49\
---------------------------------------------------------------------------

    \49\ Area Source Boilers NESHAP, Major Source Boilers NESHAP, 
and Commercial and Industrial Solid Waste Incinerators NESHAP.
---------------------------------------------------------------------------

     Halogenated organics are expected to contribute to 
emissions of dioxin and acid gases (HCl and HF); therefore, the 
emission standards promulgated under the CAA are grouped into two 
categories: D/F and HCl.\50\
---------------------------------------------------------------------------

    \50\ Major Source Boilers NESHAP and Commercial and Industrial 
Solid Waste Incinerators NESHAP.
---------------------------------------------------------------------------

     Nitrogenated compounds are expected to contribute to 
emissions of NOX; therefore, the emission standards 
promulgated under the CAA are grouped into one category: 
NOX.\51\
---------------------------------------------------------------------------

    \51\ Commercial and Industrial Solid Waste Incinerators: NESHAP.
---------------------------------------------------------------------------

    In addition, a number of the seemingly ``individual'' pollutants 
listed in sections 112 and 129 of the CAA are actually classes of 
structurally-related compounds (e.g, PCBs, POM, D/F, cyanide compounds, 
cresols, glycol ethers, radionuclides, xylenes, antimony compounds, 
arsenic compounds, beryllium compounds and cadmium compounds).

[[Page 9147]]

    All comments discussing the agency's proposal to expressly allow 
the grouping of contaminants supported the agency's position. Thus, the 
EPA is adopting the language from the proposal and revising the 
contaminant legitimacy criterion for NHSM used as a fuel to allow 
contaminants to be compared on a contaminant-by-contaminant basis or, 
where reasonable, on a group of contaminants-by-group of contaminants 
basis. Any additional reasoning for keeping the revision as proposed, 
without modification, is described in the responses to comments below.
    Comment: In general, comments overwhelmingly supported the ability 
to group contaminants when making contaminant comparisons in accordance 
with the legitimacy criteria. Commenters stated that codification of 
this concept would provide regulatory certainty and allow for more 
meaningful comparisons, similar to the manner in which the EPA measures 
emissions at combustion units. Commenters noted that the ability to 
group contaminants will facilitate compliance because most existing 
test methods, including the EPA methods, call for the grouping of 
analytes. Commenters believed that the grouping concept is an 
appropriate mechanism to recognize the variability in contaminant 
levels inherent in fuels. Commenters also appreciated the examples of 
appropriate contaminant groups provided in the proposed rule along with 
the ability to compare other technically reasonable groups (76 FR 
80477-80480).
    Two commenters stated that each mention of the word 
``contaminants'' should be changed to ``contaminants or groups of 
contaminants'' in the regulatory text to further clarify that a 
comparison to groups of contaminants is intended.
    Response: The EPA has retained the language specifically allowing 
grouping in the contaminant legitimacy criterion for NHSMs used as a 
fuel. The EPA adopts the reasoning in the December 2011 rule as its 
final reasoning, as further supported with reasoning discussed in the 
comment responses below. While the EPA has retained the language 
allowing the grouping of contaminants, the agency does not consider it 
necessary to change every instance of ``contaminant levels'' and 
``contaminants'' to ``contaminants or groups of contaminants'' in order 
to make it sufficiently clear that contaminant grouping is allowed. The 
agency also notes that not all contaminants are necessarily intended to 
be grouped, including individual elemental contaminants, asbestos, CO 
and phosphine.\52\
---------------------------------------------------------------------------

    \52\ See 76 FR 80478, Tables 7 and 8.
---------------------------------------------------------------------------

    Comment: The ability to group metal contaminants was suggested by 
several commenters. One commenter held that all 11 metals should be 
specifically included as one group. Another commenter noted that with 
the exception of Hg, all metals should be grouped. Yet another 
commenter suggested that metals could be grouped into a volatile metals 
group and a non-volatile metals group.
    Response: First, we would note that the agency is not limiting 
groups to the specific approach suggested in the proposed rule. The 
tables in the proposed rule suggest, but do not limit persons to, an 
approach, including groups for TOX, nitrogenated HAPs, VOCs, SVOCs, 
dioxins/furans, PCBs, PAHs and radionuclides, with other contaminants 
left to be evaluated on an individual contaminant-by-contaminant basis. 
Flexibility exists for persons to consider other appropriate groups 
that they can show are technically reasonable, with additional text in 
the proposal stating that other groups should share physical and 
chemical properties that influence behavior in the combustion unit 
prior to the point where emissions occur. Volatility, the presence of 
specific elements and compound structure are three such properties.\53\
---------------------------------------------------------------------------

    \53\ See 76 FR 80477.
---------------------------------------------------------------------------

    However, we do not consider the grouping of total metals to be 
appropriate. Specifically, metals vary across all three parameters--
volatility, the presence of specific elements and compound structure--
that were discussed as appropriate to consider when constructing 
contaminant groups. First, many factors influence metal volatility in 
combustion units, and to the extent that trends in metal volatility 
have been recognized, a wide disparity exists between metals. Mercury, 
as one commenter noted, is highly volatile, more so than any other 
metals listed in the contaminants definition. Metals can be grouped 
into volatile, semi-volatile and low-volatile categories, but it is 
important to note that these distinctions can vary based on design 
differences in combustion units, operating temperatures, the physical 
form and species of the metal and the presence of chlorine.\54\ \55\ 
Second, each metal clearly contains different elements. Finally, each 
metal is already a group of any compound containing the particular 
element, encompassing a wide array of compound structures. In the 
absence of other suggested grouping criteria or information, the EPA 
does not consider total metals to be an appropriate group.
---------------------------------------------------------------------------

    \54\ EPA. 2001. ``Risk Burn Guidance for Hazardous Waste 
Combustion Facilities.'' EPA530-R-01-001. July.
    \55\ Clarke, L.B. and L.L. Sloss, 1992. ``Trace Elements--
Emissions from Coal Combustion and Gasification.'' IEACR/49. IEA 
Coal Research, London. July.
---------------------------------------------------------------------------

    Comment: One commenter provided a numerical example of VOC 
contaminant levels in fuel oils to illustrate the importance of 
grouping. The commenter cited the traditional fuel tables provided on 
the EPA Web site, stating that toluene and xylenes are present in fuel 
oils at concentrations up to 380 ppm and 3,100 ppm, respectively. If a 
NHSM had the concentrations reversed, explained the commenter (380 ppm 
xylene and 3,100 ppm toluene), the ability to group VOCs would then 
allow the NHSM to meet the contaminant legitimacy criterion. The 
commenter reasoned that this is appropriate because both toluene and 
xylenes are beneficial components of fuel.
    Response: The EPA disagrees with this interpretation of the 
grouping concept. Unless concentration data for a group of contaminants 
(e.g., VOCs) come from the same fuel source, adding together the 
concentrations of individual constituents (e.g., toluene and xylene) 
within that group may yield a total concentration beyond what would be 
considered a normal part of a legitimate fuel. Using the example cited 
by the commenters, some fuel oils have been found to have up to 380 ppm 
toluene and other fuel oils have been found to have up to 3,100 ppm 
xylene. Because the toluene and xylene concentrations were taken from 
different fuel oils, however, this does not prove that a single fuel 
oil in existence actually has VOC levels as high as 3,480 ppm (380 + 
3,100).
    The agency notes that VOC levels higher than 3,480 ppm, have been 
found in fuel oil--concentrations of one VOC alone (hexane) have been 
found as high as 10,000 ppm--and the point of this discussion is to 
clarify a methodology rather than a number for acceptable VOC levels in 
NHSMs.\56\
---------------------------------------------------------------------------

    \56\ Contaminant Concentrations in Traditional Fuels: Tables for 
Comparison, November 29, 2011 can be found at https://www.epa.gov/epawaste/nonhaz/define/index. EPA intends to update this document as 
additional data becomes available, and if persons have data 
measuring traditional fuels for groups of VOCs, or for other 
contaminant groups, they are encouraged to provide the agency with 
such data.
---------------------------------------------------------------------------

    We would also note that while the agency considers VOCs to be an 
appropriate contaminant group to use when making contaminant 
comparisons, it does not base that decision on

[[Page 9148]]

whether or not toluene, xylenes and other VOCs are ``beneficial 
components of fuel.'' The decision that toluene, xylene and other VOCs, 
which the agency notes are pollutants listed in CAA section 112(b), are 
an appropriate group is based on the fact that they share similar 
physical and chemical properties that influence their behavior in the 
combustion unit prior to the point where emissions occur.
c. Meaning of Designed to Burn
    The December 2011 proposed revision to the contaminant legitimacy 
criterion for NHSMs used as a fuel included the following statement: 
``In determining which traditional fuel(s) a unit is designed to burn, 
persons can choose a traditional fuel that can be or is burned in the 
particular type of boiler, whether or not the combustion unit is 
permitted to burn that traditional fuel.'' The idea that ``designed to 
burn'' means ``can burn or does burn'' was included in preamble text to 
the March 2011 final rule. The December 2011 rule proposed to include 
this concept, which is only applied under the NHSM rule to aid in the 
selection of appropriate traditional fuel(s) for contaminant 
comparisons, in regulatory language.
    The March 2011 final rule explained that in determining which 
traditional fuel(s) the owner or operator of the boiler unit would make 
a comparison to with respect to contaminant levels, the agency would 
allow any traditional fuel(s) that can be or is burned in the 
particular type of boiler. The agency reasoned that this approach was 
the most appropriate since the NHSM would be replacing the use of 
particular type(s) of fuel that could otherwise be burned.\57\
---------------------------------------------------------------------------

    \57\ See 76 FR 15542.
---------------------------------------------------------------------------

    The December 2011 proposal further explained that contaminants are 
compared between NHSMs and traditional fuels to assist in making a 
determination whether or not the NHSM is being discarded when 
combusted, not to regulate which traditional fuel a combustor should 
choose to burn. For the purposes of making a discard determination, the 
proposal reasoned that differentiating between ``can burn'' and ``does 
burn'' was not relevant.
    The agency did note in the proposed rule, however, that for a unit 
to be able to burn a traditional fuel, it would need an appropriate 
feed mechanism (e.g., a way to load solid fuel of a particular size 
into the unit) and the ability to adjust physical parameters to ensure 
spatial mixing and flame stability per unit specifications.
    Because most combustion units can burn different--but related--
traditional fuels, the agency discussed in the proposal that broad 
groups of similar traditional fuels may be used when comparing 
contaminants. The most common traditional fuel categories burned at 
major source boilers are coal, wood, oil and natural gas, as evidenced 
by data submitted to the EPA's OAQPS.\58\ \59\
---------------------------------------------------------------------------

    \58\ EPA, Office of Air Quality Planning and Standards (OAQPS), 
Emissions Database for Boilers and Process Heaters Containing Stack 
Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 and 
ICR No. 2286.03 (Version 7). December 2011. https://www.epa.gov/ttn/atw/boiler/boilerpg.html#TECH.
    \59\ The fuel analysis information in this OAQPS database is one 
example of a ``national survey'' of traditional fuel information, as 
referenced in the final contaminant legitimacy criterion issued 
today at Sec.  241.3(d)(1)(iii).
---------------------------------------------------------------------------

    To further clarify the impact of the proposed ``designed to burn'' 
language on contaminant comparisons, potential categories for coal, 
wood and oil were further described in the proposal. A coal group was 
proposed that could include data on anthracite, lignite, bituminous and 
sub-bituminous coal. A wood or biomass group was proposed that could 
include data on unadulterated lumber, timber, bark, biomass and hogged 
fuel. An oil group was proposed that could include data on fuel oils 1-
6, diesel fuel, kerosene and other petroleum based oils.\60\ In cases 
where a unit can burn traditional fuels from several categories, such 
as a boiler that can burn coal or biomass, the proposal noted that 
contaminant comparisons could be made using data from either fuel 
category.
---------------------------------------------------------------------------

    \60\ EPA has determined that an oil group should not include 
unrefined crude oil or gasoline, as neither is typically burned in 
combustion units subject to the CAA sections 112 or 129 standards.
---------------------------------------------------------------------------

    The ability to compare contaminants in a NHSM, under the NHSM rule, 
to contaminants in any traditional fuel that could be burned does not 
change the fact that once burning occurs, emissions standards are 
determined under the Boiler MACT or CISWI rule by the particular fuel 
(or fuel blend) that is burned. Whether each rule focuses on what 
`could be burned' or on what `is burned' is determined by the rule's 
purpose and the order in which decisions must be made. Together, these 
factors explain why the NHSM, Boiler MACT, and CISWI rules take 
different approaches to account for individual combustion units that 
burn multiple fuels.
    Specifically, the NHSM rule must first determine which NHSMs can be 
burned in CAA section 112 units (i.e., boilers) and which can only be 
burned in CAA section 129 units (i.e., incinerators). When making such 
a waste or non-waste determination, the NHSM rule cannot always predict 
what fuel would otherwise be burned (multiple options may exist). 
Accordingly, the rule allows contaminant comparisons to be made to any 
traditional fuel the unit could burn. The Boiler MACT or CISWI rule 
must then determine how to regulate emissions from the unit, by which 
point it is clear what fuel is actually being burned. Accordingly, 
these rules can and do establish subcategories of units, each with 
different emissions standards.
    The EPA has considered the comments received, as explained below, 
but has not changed the basis for its interpretation of the ``designed 
to burn'' concept. Thus, the EPA is adopting the language from the 
proposal and revising the contaminant legitimacy criterion for NHSMs 
used as a fuel to allow persons making contaminant comparisons to 
choose a traditional fuel that can be or is burned in the particular 
type of boiler, whether or not the combustion unit is permitted to burn 
that traditional fuel. Any additional reasoning for keeping the 
revision as proposed, without modification, is described in the 
responses to comments below.
    Comment: Industry commenters generally supported the agency's 
proposal to codify the previously stated meaning of ``designed to 
burn'' within the contaminant legitimacy criterion for NSHMs used as 
fuels. These commenters welcomed the regulatory certainty provided by 
the revision and described it as a practical and appropriate 
recognition that some units can burn multiple traditional fuels.
    Environmental groups, on the other hand, expressed concern that the 
proposed definition of designed to burn would allow contaminants in C&D 
wood to be compared to those in coal instead of virgin wood.
    One state commenter also expressed concern that allowing 
comparisons to any fuel the unit could burn, including fuels they are 
not permitted to burn, would weaken the states' permitting authorities 
and create an incentive for combustors to burn dirtier traditional 
fuels so that they could compare NHSMs to fuels with higher contaminant 
levels. An industry commenter also mentioned that such an approach 
would reward facilities that burn dirtier fuel and suggested that the 
agency remove the entire ``designed to burn'' concept from the rule.
    Response: Based on a review of the comments, the EPA has retained 
the proposed revision to the contaminant legitimacy criterion for NHSMs 
used as fuels clarifying that, for the purpose of determining 
traditional fuel(s) to which

[[Page 9149]]

a NHSM may be compared, the meaning of ``designed to burn'' may be 
broadly interpreted to include any traditional fuel that could be 
burned, regardless of facility permit status. The agency disagrees that 
this interpretation of ``designed to burn'' would incentivize the 
burning of dirtier fuels or weaken the states' permitting authorities.
    The EPA finds that allowing combustors to compare NHSMs to any 
traditional fuel a unit can or does burn is both practical and 
appropriate under the statutory definition of solid waste. Although not 
all combustion units can burn multiple traditional fuels, some units 
can and, indeed, do rely on different fuel types at different times 
based on availability of fuel supplies, market conditions, power 
demands and other factors. Under these circumstances, it would be 
arbitrary to restrict the combustion for energy recovery of NHSMs with 
contaminant levels comparable to or lower than that of one traditional 
fuel the unit could choose to burn solely because contaminant levels 
are higher than that of a second traditional fuel the unit could also 
choose to burn if fuel supplies, market conditions, power demands, or 
other factors change. Such an approach would be impracticable and not 
consistent with the agency's intent. It would also be inconsistent with 
the concept of discard, since a facility burning a NHSM with the same 
contaminants as another fuel it could also be burning should not be 
considered to discard that NHSM based on its contaminant levels.
    The agency has also determined that restricting comparisons to 
traditional fuels the unit is permitted to burn is unnecessary. The 
fact that a facility is not currently permitted to burn a particular 
traditional fuel does not mean it could not be permitted to burn that 
traditional fuel in the future. For this reason, we do not believe it 
is reasonable to limit the comparison to permitted traditional fuels. 
Furthermore, such a restriction could have the unintended consequence 
of combustion facilities across the country seeking permit 
modifications solely to facilitate contaminant comparisons for this 
rule. State permitting authorities must still approve permit changes 
and this final rule does not affect the discretion of the permitting 
authorities in acting on requests for permit modifications.
    In addition, the EPA has determined that restricting contaminant 
comparisons to traditional fuels the unit currently burns could provide 
an incentive for the facility to burn traditional fuel with high 
contaminant levels. When facilities do not actually have to burn that 
traditional fuel to make comparisons, that incentive is effectively 
removed.
    Comment: One commenter asked the agency to specifically acknowledge 
that certain categories of boilers are designed to burn a variety of 
fuels, noting that stoker boilers, fluidized bed combustors and boilers 
with suspension burners, in particular, should be on such a list.
    Response: The agency has decided not to specifically list which 
combustion units are designed to burn which fuels for two reasons. 
First, the owner or operator of a combustion unit has a better 
understanding than the agency does of what that particular unit is 
designed to burn. Second, the agency is concerned that creating such a 
list will limit the flexibility of combustors with other types of 
units.
    Comment: One commenter noted that if the EPA considers it 
inappropriate to compare liquid fuels to solid fuels, the agency offers 
no justification for its position. The commenter argued that liquid to 
solid comparisons should be allowed because most cement kilns and many 
other industrial furnaces have the capacity to burn either solid or 
liquid fuels. The commenter described the December 2011 proposed rule 
as ambiguous with regard to this issue and recommended that if a 
combustion unit is designed to burn both a liquid fuel and a solid 
fuel, then the liquid to solid comparison should be ``appropriate.''
    Response: EPA agrees with the commenter that if a unit can burn 
both a liquid traditional fuel and a solid traditional fuel, then 
comparison of an NHSM to either fuel would be appropriate. The revised 
contaminant legitimacy criterion clarifies how the ``designed to burn'' 
concept may be interpreted for the purposes of determining traditional 
fuel(s) to which a NHSM may be compared, and the Agency has determined 
that this revision is sufficient to allow appropriate comparisons to be 
made between solid NHSMs and liquid traditional fuels, and vice versa. 
The agency does not expect these circumstances to hold true for all 
combustion units, however, and reiterates that this would only be 
appropriate when the unit can in fact burn multiple traditional fuels 
used to make such comparisons.
    Comment: Several industry commenters addressed the topic of what it 
means to be able to burn a traditional fuel in a combustion unit. The 
preamble to the recent proposed rule noted that combustion units would 
need an appropriate feed mechanism, as well as the ability to ensure 
the fuel is well mixed and keep flame temperatures within unit 
specifications, to be able to burn a traditional fuel.\61\ Two 
commenters opposed the agency's interpretation of what it means to be 
able to burn a traditional fuel in a combustion unit, stating that the 
agency provides no explanation of why feed mechanisms are relevant to 
whether or not a unit can burn a particular fuel. Both commenters also 
noted that when NHSMs are used as a fuel in combustion units, the focus 
on what a unit is ``designed to burn'' in the first place is irrelevant 
to whether discard is occurring. Another commenter explained that the 
same exact material could then be a solid waste in one case and a fuel 
in another case, depending on who is using the material.
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    \61\ See 76 FR 80481.
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    A third commenter supported the agency's interpretation of what 
`can burn' means, stating that the fate and emissions of a contaminant, 
whether it is contained in a traditional fuel or a material being 
considered for legitimacy, are as dependent on the design of the 
combustion unit as they are on the fuel matrix. The commenter explained 
further that units should be considered able to burn several types of 
fuels as long as each type is within the design criteria of the feed 
system, the combustion chamber and any downstream pollution control 
device.
    Response: The EPA disagrees with those commenters questioning the 
relevance of what fuels combustion units are designed to burn in the 
context of the legitimacy criteria. If a NHSM does not contain 
contaminants at levels that are comparable to or lower than those found 
in any traditional fuel that a combustion unit could burn, then it 
follows that discard could be occurring if the NHSM were combusted. 
Whether contaminants in these cases would be destroyed or discarded 
through releases to the air, they could not be considered a normal part 
of a legitimate fuel and the NHSM would be considered a solid waste 
when used as a fuel in that combustion unit.\62\
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    \62\ See 76 FR 15523.
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    The reason we analyze what a unit is designed to burn is to decide 
the traditional fuel(s) to which contaminants should be compared. This 
comparison is then used as an aid to decide whether the NHSM is being 
legitimately used as a fuel or whether excess contaminants show that 
the burning is waste treatment. If a facility compared contaminants to 
a traditional fuel it cannot burn and that fuel is highly contaminated, 
a facility would then be able to burn excessive levels of

[[Page 9150]]

waste components in NHSMs as a means of discard. Regardless of any fuel 
value in the material, it would be a waste.
    Once this concept is established, certain factors are relevant to 
how we decide what a facility is designed to burn. The ability to burn 
a fuel in a combustion unit does have a basic set of requirements, the 
most basic of which is being able to get the material into the 
combustion unit. The agency reaffirms in today's final rule its 
interpretation from the proposal that to be able to burn NHSMs, a 
combustion unit should also be able to ensure the material is well 
mixed and maintain temperatures within unit specifications. Without 
these basic limits, there would be no point in distinguishing between 
fuels a unit is or is not ``designed to burn,'' and every combustion 
unit would be considered ``designed to burn'' any combustible material. 
Clearly, that is not the agency's intent. As illustrated by one of the 
commenters, when a unit cannot burn a fuel according to its own design 
specifications, excess air pollutants form and are likely to be 
discarded as emissions. Thus, the agency acknowledges that whether or 
not a NHSM is a waste may depend on the unit burning the material.
    Comment: One commenter asked for clarification on the issue of unit 
modifications. If a boiler hypothetically could be modified in any way 
to combust a different traditional fuel, the commenter noted, then a 
comparison to that fuel should be permissible to demonstrate that the 
NHSM is not a waste.
    Response: The EPA disagrees with this comment. As long as the 
modification remains hypothetical in nature, it stands to reason that 
the unit cannot yet burn the additional traditional fuel and the only 
reason it is comparing a NHSM to the dirtier fuel is to allow more 
waste input into the combustion unit. However, if the unit is actually 
modified to accept additional types of traditional fuels, then the 
owner or operator of the combustion unit can consider those traditional 
fuels in evaluating the NHSM for the contaminant legitimacy criterion. 
In this situation, such behavior shows that the combustor is serious 
about burning the other fuel and is willing to make the investment so 
that it can be burned properly instead of simply trying to gain 
comparison to a dirtier material.
    Comment: In the proposed rule, EPA specifically addressed used oil 
stating: ``Used oil is a special case and does not need to undergo the 
contaminant comparison. If it meets the specifications in 40 CFR 
279.11, it is a traditional fuel. If it does not meet the 
specifications (i.e., it is ``off-spec'' oil), it is a solid waste 
under the 2011 NHSM final rule.'' 76 FR 80481, fn. 44. Some commenters 
argued that off-spec used oil fuel, however, could satisfy all of EPA's 
legitimacy criteria, including a contaminant comparison with coal, a 
traditional fuel. Thus, if a combustion unit is ``designed to burn'' 
both coal and oil, the facility should be able to use coal as the 
traditional fuel for the purposes of determining whether the 
contaminants are comparable--even when the NHSM at issue is off-spec 
used oil, as defined in 40 CFR 279.11.
    Response: The Agency agrees with the commenter that contaminants in 
off-spec used oil burned for energy recovery in facilities that are 
designed to burn coal may be compared to coal for purposes of 
determining whether the off-spec used oil is a waste or non-waste 
product fuel. Accordingly, for purposes of waste/non-waste 
determinations, coal or oil, including on-spec used oil can be used as 
the traditional fuel identified for comparison of contaminants to meet 
the legitimacy criterion for units designed to burn both fuels. Some 
combustion units are designed to burn multiple fuels, such as both coal 
and oil, including on-spec used oil. Under these circumstances, the 
Agency agrees that the rules allow the comparison of contaminant levels 
to either traditional fuel. That is, to be designated as a non-waste, 
the off-spec used oil contaminant levels must be comparable to or lower 
than coal when coal is the traditional fuel used for comparison.
    EPA no longer finds, as stated in Footnote 44 of the proposed rule, 
that off-spec used oil is always a waste for facilities that are 
designed to burn coal. Off-spec used oil continues to be a waste, 
however, for facilities that are not designed to burn coal because off-
spec used oil contains contaminant levels that are not comparable to 
on-spec used oil. EPA also notes that in the preamble to the March 2011 
rule (p. 15506), the Agency specifically rejected the comparison of 
off-specification used oil contaminants to coal. That discussion, 
however, was in the context of a general contaminant comparison for 
units that burn only fuel oil. Coal may not be the comparison material 
for all off-specification used oil, but only for those facilities that 
are designed to burn coal as provided in the definition of this rule. 
Finally, we want to make clear that EPA has not modified the part 279 
regulations for management of used oil, and thus, burning of off-spec 
used oil for energy recovery is still subject to those rules, including 
the requirement that off-spec used oil can only be burned in certain 
units (see 40 CFR 279.61(a)).\63\
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    \63\ Off-specification used oil can only be burned in the 
following types of units: (1) Industrial furnaces, as defined in 40 
CFR 260.10; (2) the following boilers, as defined in 40 CFR 260.10--
industrial boilers located on the site of a facility engaged in a 
manufacturing process where substances are transformed into new 
products, including the component parts of products, by mechanical 
or chemical processes, utility boilers used to produce electric 
power, steam, heated or cooled air, or other gases or fluids for 
sale, and used oil fired space heaters provided that the burner 
meets the provisions of 40 CFR 279.23; and (3) hazardous waste 
incinerators subject to regulation under subpart O of 40 CFR parts 
264 or 265.
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    Comment: Commenters argue that the EPA has not adequately addressed 
how units designed to burn only NHSMs are to comply with the 
contaminant legitimacy criterion. The commenters explained that, under 
the rule structure as proposed, a NHSM may be classified as a waste 
simply due to a lack of a traditional fuel for comparison purposes. 
Comments acknowledge that the agency discussed the issue in the 
preamble to the proposed rule but the commenters disagree that the 
discussion provided any solution. Finally, commenters specifically 
requested that the EPA acknowledge the fact that a combustor designed 
for a particular NHSM fuel is dispositive that the NHSM is being 
legitimately burned for energy recovery.
    Response: The EPA disagrees with the assertion that the agency has 
failed to provide a solution for units designed only to burn NHSMs. The 
EPA also disagrees with the assertion made by commenters that the fact 
that a combustor has designed a combustion unit for a particular NHSM 
fuel is dispositive that the NHSM is being legitimately burned for 
energy recovery.
    The EPA acknowledges and is aware of units built specifically to 
burn NHSMs. One example is facilities built to burn resinated wood. The 
EPA notes that units built to burn such NHSMs are likely to be able to 
burn similar traditional fuels. Using the example of units built to 
burn resinated wood, the EPA considers it reasonable to assume that 
these units could also burn clean wood and, therefore, could make 
comparisons to that traditional fuel. The agency also notes that it is 
not aware of any units--and commenters have not identified any such 
units--that can burn only NHSMs.
    The EPA has nonetheless provided what it considers to be a 
reasonable solution. As explained in the preamble to the proposed rule, 
the EPA advises combustors faced with such a situation to compare solid 
NHSMs to solid traditional fuels, such as coal or biomass, liquid NHSMs 
to liquid

[[Page 9151]]

traditional fuels, such as oil, and gaseous NHSMs to gaseous 
traditional fuels, such as natural gas.\64\ In light of the explanation 
of ``designed to burn'' codified in the final contaminant legitimacy 
criterion, as well as industry comments that many combustion units can 
burn multiple types of fuel, the agency believes that its suggested 
approach adequately addresses the issue.
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    \64\ See 76 FR 80481.
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    Finally, the EPA acknowledges that combustion units can and have 
been designed specifically to burn NHSMs and that such units can 
recover energy. The agency notes, however, that persons can and have 
also designed incinerators to dispose of certain waste materials and 
that such units can also recover energy. The agency, therefore, does 
not consider it dispositive that if combustion units are designed to 
burn a specific material, that material must be a legitimate non-waste 
fuel.
d. Contaminant Comparisons Allowed
    The proposed revision to the contaminant legitimacy criterion for 
NHSMs used as a fuel included the following statement: ``In comparing 
contaminants between traditional fuel(s) and a non-hazardous secondary 
material, persons can use ranges of traditional fuel contaminant levels 
compiled from national surveys, as well as contaminant level data from 
the specific traditional fuel being replaced.'' The March 2011 final 
rule did not discuss the use of ranges when evaluating contaminant 
data, nor did it discuss the use of traditional fuel data from national 
surveys.
    The December 2011 proposed rule included these concepts to clarify 
that persons are not required to adhere to a single comparison 
methodology, nor are they required to compare contaminants in their 
NHSMs to contaminants in the specific traditional fuel source they burn 
(or would otherwise burn). In both instances, the additional language 
clarifies, but does not change the intent, of the March 2011 final 
rule.
    Regardless of the specific methodology chosen, a comparison will 
have to be made for each contaminant or group of contaminants between 
the NHSM and a traditional fuel or traditional fuel group. Generators 
or combustors can use either traditional fuel data collected by the EPA 
or their own data for traditional fuel comparison values.\65\ 
Generators or combustors are responsible, however, for providing NHSM 
comparison values in cases where testing is conducted. Examples of 
acceptable NHSM data could include both laboratory test results from a 
specific generator or combustor and industry-recognized values provided 
by a national trade organization.
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    \65\ The EPA maintains an NHSM Web page with current information 
on contaminant levels in traditional fuels, examples of legitimacy 
determinations, and other information at https://www.epa.gov/epawaste/nonhaz/define/index.
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    Given data for a particular traditional fuel, the EPA noted in the 
proposal that many combustors would choose to base the traditional fuel 
comparison value on the upper end of its statistical range and that 
this approach was reasonable. Anything less could result in 
``traditional fuel'' samples being considered solid waste if burned in 
the very combustion units designed to burn them. This was not the 
agency's intent in the March 2011 final rule.\66\ Given that selection 
(i.e., the range for traditional fuel contaminant values), the agency 
noted that acceptable NHSM comparison values would include the upper 
end of a statistical range, a calculation involving the mean and 
standard deviation or perhaps a single data point in situations where 
data are limited. The proposal reasoned that it would not be 
appropriate to compare an average NHSM contaminant value to the high 
end of a traditional fuel range, as the existence of an average implies 
multiple data points from which a more suitable statistic (e.g., range 
or standard deviation) could have been calculated.
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    \66\ Traditional fuels, as defined in Sec.  241.2, are not 
required to meet the legitimacy criteria, and this scenario is only 
used to explain the logic behind basing a traditional fuel 
comparison value on the upper end of a statistical range.
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    If each NHSM comparison value is comparable to or lower than its 
corresponding traditional fuel value, the material would be considered 
to meet the contaminant legitimacy criterion. An initial assessment 
would not need to be repeated, explained the proposal, provided the 
facility continues to operate in the same manner and use the same type 
of NHSMs as when the original assessment was made.
    Despite presenting several approaches for calculating NHSM 
comparis