[Federal Register Volume 73, Number 231 (Monday, December 1, 2008)]
[Proposed Rules]
[Pages 72962-73003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27732]



[[Page 72961]]

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Part III





Environmental Protection Agency





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40 CFR Part 60



Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Hospital/Medical/Infectious Waste 
Incinerators; Proposed Rule

  Federal Register / Vol. 73, No. 231 / Monday, December 1, 2008 / 
Proposed Rules  

[[Page 72962]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2006-0534; FRL-8743-1]
RIN 2060-A004


Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Hospital/Medical/Infectious Waste 
Incinerators

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On September 15, 1997, EPA adopted new source performance 
standards (NSPS) and emission guidelines (EG) for hospital/medical/
infectious waste incinerators (HMIWI). The NSPS and EG were established 
under sections 111 and 129 of the Clean Air Act (CAA or Act). The 
Sierra Club and the Natural Resources Defense Council (Sierra Club) 
filed suit in the U.S. Court of Appeals for the District of Columbia 
Circuit (the Court) challenging EPA's methodology for adopting the 
regulations. On March 2, 1999, the Court remanded the rule to EPA for 
further explanation of the Agency's reasoning in determining the 
minimum regulatory ``floors'' for new and existing HMIWI. The Court did 
not vacate the regulations, so the NSPS and EG remain in effect and 
were fully implemented by September 2002.
    On February 6, 2007, EPA published a proposed response to the 
Court's remand and a proposed response to the CAA section 129(a)(5) 
requirement to review the NSPS and EG every 5 years. However, following 
recent court decisions and receipt of public comments regarding that 
proposal, we chose to re-assess our response to the Court's remand. 
Therefore, this action provides the results of EPA's reassessment in 
the form of another proposed response to the Court's remand and 
solicits public comment regarding it. This re-proposal also satisfies 
the CAA section 129(a)(5) requirement to conduct a review of the 
standards every 5 years.

DATES: Comments. Comments must be received on or before February 17, 
2009. Under the Paperwork Reduction Act, comments on the information 
collection provisions must be received by the Office of Management and 
Budget (OMB) on or before December 31, 2008. Because of the need to 
resolve the issues raised in this action in a timely manner, EPA will 
not grant requests for extensions beyond these dates.
    Public Hearing. If anyone contacts EPA by December 22, 2008 
requesting to speak at a public hearing, EPA will hold a public hearing 
on January 15, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0534, by one of the following methods:
    http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    E-mail: Send your comments via electronic mail to [email protected], Attention Docket ID No. EPA-HQ-OAR-2006-0534.
    Facsimile: Fax your comments to (202) 566-9744, Attention Docket ID 
No. EPA-HQ-OAR-2006-0534.
    Mail: Send your comments to: EPA Docket Center (EPA/DC), 
Environmental Protection Agency, Mailcode 6102T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-
2006-0534. Please include a total of two copies. We request that a 
separate copy also be sent to the contact person identified below (see 
FOR FURTHER INFORMATION CONTACT).
    Hand Delivery: Deliver your comments to: EPA Docket Center (EPA/
DC), EPA West Building, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC, 20460, Attention Docket ID No. EPA-HQ-OAR-2006-0534. 
Such deliveries are accepted only during the normal hours of operation 
(8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays), and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0534. The EPA's policy is that all comments received will be 
included in the public docket and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Public Hearing: If a public hearing is held, it will be held at 
EPA's Campus located at 109 T.W. Alexander Drive in Research Triangle 
Park, NC, or an alternate site nearby. Contact Ms. Pamela Garrett at 
(919) 541-7966 to request a hearing, to request to speak at a public 
hearing, to determine if a hearing will be held, or to determine the 
hearing location. If no one contacts EPA requesting to speak at a 
public hearing concerning this proposed rule by December 22, 2008, the 
hearing will be cancelled without further notice.
    Docket: EPA has established a docket for this action under Docket 
ID No. EPA-HQ-OAR-2006-0534 and Legacy Docket ID No. A-91-61. All 
documents in the docket are listed in the http://www.regulations.gov 
index. Although listed in the index, some information is not publicly 
available, e.g., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically at 
http://www.regulations.gov or in hard copy at the EPA Docket Center 
EPA/DC, EPA West, 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 
EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Ms. Mary Johnson, Energy Strategies 
Group, Sector Policies and Programs Division (D243-01), Environmental 
Protection Agency, Research Triangle Park, North Carolina 27711; 
telephone number: (919) 541-5025; fax number: (919) 541-5450; e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION: Organization of This Document. The following 
outline is provided to aid in locating information in this preamble.

I. General Information

[[Page 72963]]

    A. Does the proposed action apply to me?
    B. What should I consider as I prepare my comments?
II. Background
III. Summary
    A. Litigation and Proposed Remand Response
    B. Proposed CAA Section 129(a)(5) 5-Year Review Response
    C. Other Proposed Amendments
    D. Proposed Implementation Schedule for Existing HMIWI
    E. Proposed Changes to the Applicability Date of the 1997 NSPS
IV. Rationale
    A. Rationale for the Proposed Response to the Remand
    B. Rationale for the Proposed CAA Section 129(a)(5) 5-Year 
Review Response
    C. Rationale for Other Proposed Amendments
V. Impacts of the Proposed Action for Existing Units
    A. What are the primary air impacts?
    B. What are the water and solid waste impacts?
    C. What are the energy impacts?
    D. What are the secondary air impacts?
    E. What are the cost and economic impacts?
VI. Impacts of the Proposed Action for New Units
    A. What are the primary air impacts?
    B. What are the water and solid waste impacts?
    C. What are the energy impacts?
    D. What are the secondary air impacts?
    E. What are the cost and economic impacts?
VII. Relationship of the Proposed Action to Section 112(c)(6) of the 
CAA
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and 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 and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Does the proposed action apply to me?

    Regulated Entities. Categories and entities potentially affected by 
the proposed action are those which operate HMIWI. The NSPS and EG for 
HMIWI affect the following categories of sources:

------------------------------------------------------------------------
                                                 Examples of potentially
            Category               NAICS Code       regulated entities
------------------------------------------------------------------------
Industry.......................          622110  Private hospitals,
                                                  other health care
                                                  facilities, commercial
                                                  research laboratories,
                                                  commercial waste
                                                  disposal companies,
                                                  private universities
                                         622310
                                         325411
                                         325412
                                         562213
                                         611310
Federal Government.............          622110  Federal hospitals,
                                                  other health care
                                                  facilities, public
                                                  health service, armed
                                                  services
                                         541710
                                         928110
State/local/Tribal Government..          622110  State/local hospitals,
                                                  other health care
                                                  facilities, State/
                                                  local waste disposal
                                                  services, State
                                                  universities
                                         562213
                                         611310
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by the 
proposed action. To determine whether your facility would be affected 
by the proposed action, you should examine the applicability criteria 
in 40 CFR 60.50c of subpart Ec and 40 CFR 60.32e of subpart Ce. If you 
have any questions regarding the applicability of the proposed action 
to a particular entity, contact the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

B. What should I consider as I prepare my comments?

1. Submitting CBI
    Do not submit information that you consider to be CBI 
electronically through http://www.regulations.gov or e-mail. Send or 
deliver information identified as CBI to only the following address: 
Ms. Mary Johnson, c/o OAQPS Document Control Officer (Room C404-02), 
U.S. EPA, Research Triangle Park, NC 27711, Attention Docket ID No. 
EPA-HQ-OAR-2006-0534. Clearly mark the part or all of the information 
that you claim to be CBI. For CBI information in a disk or CD ROM that 
you mail to EPA, mark the outside of the disk or CD ROM as CBI and then 
identify electronically within the disk or CD ROM the specific 
information that is claimed as CBI. In addition to one complete version 
of the comment that includes information claimed as CBI, a copy of the 
comment that does not contain the information claimed as CBI must be 
submitted for inclusion in the public docket. Information marked as CBI 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    If you have any questions about CBI or the procedures for claiming 
CBI, please consult the person identified in the FOR FURTHER 
INFORMATION CONTACT section.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions. EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period

[[Page 72964]]

deadline identified in the preceding section titled DATES.
3. Docket
    The docket number for the proposed action regarding the HMIWI NSPS 
(40 CFR part 60, subpart Ec) and EG (40 CFR part 60, subpart Ce) is 
Docket ID No. EPA-HQ-OAR-2006-0534.
4. Worldwide Web (WWW)
    In addition to being available in the docket, an electronic copy of 
the proposed action is available on the WWW through the Technology 
Transfer Network Web site (TTN Web). Following signature, EPA posted a 
copy of the proposed action on the TTN's policy and guidance page for 
newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. 
The TTN provides information and technology exchange in various areas 
of air pollution control.

II. Background

    Section 129 of the CAA, entitled ``Solid Waste Combustion,'' 
requires EPA to develop and adopt NSPS and EG for solid waste 
incineration units pursuant to CAA sections 111 and 129. Sections 
111(b) and 129(a) of the CAA (NSPS program) address emissions from new 
HMIWI, and CAA sections 111(d) and 129(b) (EG program) address 
emissions from existing HMIWI. The NSPS are directly enforceable 
Federal regulations, and under CAA section 129(f)(1) become effective 6 
months after promulgation. Under CAA section 129(f)(2), the EG become 
effective and enforceable the sooner of 3 years after EPA approves a 
State plan implementing the EG or 5 years after the date they are 
promulgated.
    An HMIWI is defined as any device used to burn hospital waste or 
medical/infectious waste. Hospital waste means discards generated at a 
hospital, and medical/infectious waste means any waste generated in the 
diagnosis, treatment, or immunization of human beings or animals, in 
research pertaining thereto, or in the production or testing of 
biologicals (e.g., vaccines, cultures, blood or blood products, human 
pathological waste, sharps). As explained in EPA's regulations, 
hospital/medical/infectious waste does not include household waste, 
hazardous waste, or human and animal remains not generated as medical 
waste. An HMIWI typically is a small, dual-chamber incinerator that 
burns on average about 800 pounds per hour (lb/hr) of waste. Smaller 
units burn as little as 15 lb/hr while larger units burn as much as 
3,700 lb/hr, on average.
    Incineration of hospital/medical/infectious waste causes the 
release of a wide array of air pollutants, some of which exist in the 
waste feed material and are released unchanged during combustion, and 
some of which are generated as a result of the combustion process 
itself. These pollutants include particulate matter (PM); heavy metals, 
including lead (Pb), cadmium (Cd), and mercury (Hg); toxic organics, 
including chlorinated dibenzo-p-dioxins/dibenzofurans (CDD/CDF); carbon 
monoxide (CO); nitrogen oxides (NOX); and acid gases, 
including hydrogen chloride (HCl) and sulfur dioxide (SO2). 
In addition to the use of pollution prevention measures (i.e., waste 
segregation) and good combustion control practices, HMIWI are typically 
controlled by wet scrubbers or dry sorbent injection fabric filters 
(dry scrubbers).
    Waste segregation is the separation of certain components of the 
healthcare waste stream in order to reduce the amount of air pollution 
emissions associated with that waste when incinerated. The separated 
waste may include paper, cardboard, plastics, glass, batteries, or 
metals. Separation of these types of wastes reduces the amount of 
chlorine- and metal-containing wastes being incinerated, which results 
in lower potential emissions of HCl, CDD/CDF, Hg, Cd, and Pb.
    Combustion control includes the proper design, construction, 
operation, and maintenance of HMIWI to destroy or prevent the formation 
of air pollutants prior to their release to the atmosphere. Test data 
indicate that as secondary chamber residence time and temperature 
increase, emissions decrease. Combustion control is most effective in 
reducing CDD/CDF, PM, and CO emissions. The 2-second combustion level, 
which includes a minimum secondary chamber temperature of 1800[deg]F 
and residence time of 2 seconds, is considered to be the best level of 
combustion control (i.e., good combustion) that is applied to HMIWI. 
Wet scrubbers and dry scrubbers provide control of PM, CDD/CDF, HCl, 
and metals, but do not influence CO, or NOX and have little 
impact on SO2 at the low concentrations emitted by HMIWI. 
(See Legacy Docket ID No. A-91-61, item II-A-111; 60 FR 10669, 10671-
10677; and 61 FR 31742-31743.)
    On September 15, 1997, EPA adopted NSPS (40 CFR part 60, subpart 
Ec) and EG (40 CFR part 60, subpart Ce) for entities which operate 
HMIWI. The NSPS and EG are designed to reduce air pollution emitted 
from new and existing HMIWI, including HCl, CO, Pb, Cd, Hg, PM, CDD/CDF 
(total, or 2,3,7,8-tetrachlorinated dibenzo-p-dioxin toxic equivalent 
(TEQ)), NOX, SO2, and opacity. The NSPS apply to 
HMIWI for which construction began after June 20, 1996, or for which 
modification began after March 16, 1998. The NSPS became effective on 
March 16, 1998, and apply as of that date or at start-up of a HMIWI, 
whichever is later. The EG apply to HMIWI for which construction began 
on or before June 20, 1996, and required compliance by September 2002.
    The CAA sets forth a two-stage approach to regulating emissions 
from incinerators. EPA has substantial discretion to distinguish among 
classes, types and sizes of incinerator units within a category while 
setting standards. In the first stage of setting standards, CAA section 
129(a)(2) requires EPA to establish technology-based emission standards 
that reflect levels of control EPA determines are achievable for new 
and existing units, after considering costs, non-air quality health and 
environmental impacts, and energy requirements associated with the 
implementation of the standards. Section 129(a)(5) then directs EPA to 
review those standards and revise them as necessary every 5 years. In 
the second stage, section 129(h)(3) requires EPA to determine whether 
further revisions of the standards are necessary in order to provide an 
ample margin of safety to protect public health. See, e.g., NRDC and 
LEAN v. EPA, 529 F.3d 1077, 1079-80 (D.C. Cir. 2008) (addressing the 
similarly required two-stage approach under CAA sections 112(d) and 
(f), and upholding EPA's implementation of same).
    In setting forth the methodology EPA must use to establish the 
first-stage technology-based NSPS and EG, CAA section 129(a)(2) 
provides that standards ``applicable to solid waste incineration units 
promulgated under section 111 and this section shall reflect the 
maximum degree of reduction in emissions of [certain listed air 
pollutants] that the Administrator, taking into consideration the cost 
of achieving such emission reduction, and any non-air quality health 
and environmental impacts and energy requirements, determines is 
achievable for new and existing units in each category.'' This level of 
control is referred to as a maximum achievable control technology, or 
MACT standard.
    In promulgating a MACT standard, EPA must first calculate the 
minimum stringency levels for new and existing solid waste incineration 
units in a category, generally based on levels of emissions control 
achieved or required to be achieved by the subject units. The minimum 
level of stringency is called

[[Page 72965]]

the MACT ``floor,'' and CAA section 129(a)(2) sets forth differing 
levels of minimum stringency that EPA's standards must achieve, based 
on whether they regulate new and reconstructed sources, or existing 
sources. For new and reconstructed sources, CAA section 129(a)(2) 
provides that the ``degree of reduction in emissions that is deemed 
achievable [* * *] shall not be less stringent than the emissions 
control that is achieved in practice by the best controlled similar 
unit, as determined by the Administrator.'' Emissions standards for 
existing units may be less stringent than standards for new units, but 
``shall not be less stringent than the average emissions limitation 
achieved by the best performing 12 percent of units in the category.''
    The MACT floors form the least stringent regulatory option EPA may 
consider in the determination of MACT standards for a source category. 
EPA must also determine whether to control emissions ``beyond-the-
floor,'' after considering the costs, non-air quality health and 
environmental impacts, and energy requirements of such more stringent 
control. EPA made such MACT floor and beyond-the-floor determinations 
in the 1997 HMIWI rulemaking, and the Court remanded them in 1999 for 
further explanation, leaving the standards in force in the meantime. As 
mentioned above, every 5 years after adopting a MACT standard under 
section 129, CAA section 129(a)(5) requires EPA to review and, if 
appropriate, revise the incinerator standards. In addition to 
responding to the Court's remand in Sierra Club v. EPA, 167 F.3d 658 
(D.C. Cir. 1999), the proposed action constitutes the first 5-year 
review of the HMIWI standards.

III. Summary

A. Litigation and Proposed Remand Response

1. What is EPA's general methodology for determining MACT?
    In general, all MACT analyses involve an assessment of the air 
pollution control systems or technologies used by the better performing 
units in a source category. The technology assessment can be based 
solely on actual emissions data, on knowledge of the air pollution 
control in place in combination with actual emissions data, or on State 
regulatory requirements that may enable EPA to estimate the actual 
performance of the regulated units. For each source category, the 
assessment of the technology involves a review of actual emissions data 
with an appropriate accounting for emissions variability. Where there 
is more than one method or technology to control emissions, the 
analysis may result in a series of potential regulations (called 
regulatory options), one of which is selected as MACT.
    Each regulatory option EPA may consider must be at least as 
stringent as the CAA's minimum stringency ``floor'' requirements. 
However, MACT is not necessarily the least stringent regulatory option. 
EPA must examine, but is not necessarily required to adopt, more 
stringent ``beyond-the-floor'' regulatory options to determine MACT. 
Unlike the floor minimum stringency requirements, EPA must consider 
various impacts of the more stringent regulatory options in determining 
whether MACT standards are to reflect ``beyond-the-floor'' 
requirements. If EPA concludes that the more stringent regulatory 
options have unreasonable impacts, EPA selects the ``floor-based'' 
regulatory option as MACT. But if EPA concludes that impacts associated 
with ``beyond-the-floor'' levels of control are acceptable in light of 
additional emissions reductions achieved, EPA selects those levels as 
MACT.
    As stated earlier, the CAA requires that MACT for new sources be no 
less stringent than the emissions control achieved in practice by the 
best controlled similar unit. Under CAA section 129(a)(2), EPA 
determines the best control currently in use for a given pollutant and 
establishes one potential regulatory option at the emission level 
achieved by that control with an appropriate accounting for emissions 
variability. More stringent potential regulatory options might reflect 
controls used on other sources that could be applied to the source 
category in question.
    For existing sources, the CAA requires that MACT be no less 
stringent than the average emissions limitation achieved by the best 
performing 12 percent of units in a source category. EPA must determine 
some measure of the average emissions limitation achieved by the best 
performing 12 percent of units to form the floor regulatory option. 
More stringent beyond-the-floor regulatory options reflect other or 
additional controls capable of achieving better performance.
2. What was EPA's methodology in the 1997 HMIWI rulemaking?
    On February 27, 1995, EPA published a notice of proposed rulemaking 
regarding emissions standards for HMIWI (60 FR 10654). The proposal was 
the result of several years of reviewing available information. During 
the public comment period for the proposal, EPA received new 
information that led EPA to consider the need for numerous changes to 
the proposed rule, and on June 20, 1996, the Agency published a re-
proposal (61 FR 31736). EPA published the final rule on September 15, 
1997 (62 FR 48348).
    During the data-gathering phase of developing the 1995 proposal, 
EPA found it difficult to obtain an accurate count of the thousands of 
HMIWI that then operated nationwide, or to find HMIWI with add-on air 
pollution control systems in place. A few HMIWI with combustion control 
were tested to assess performance of combustion control in reducing 
emissions. One unit with a wet scrubber, and a few units with dry 
scrubbing systems were tested to determine performance capabilities of 
add-on controls. (See 61 FR 31738.)
    Altogether, data were available from only 7 out of the estimated 
then-operating 3,700 existing HMIWI (60 FR 10674). EPA developed the 
proposed regulations with the existing data, but EPA specifically 
requested comment on EPA's MACT determinations and on EPA's conclusions 
about the performance capabilities of air pollution control 
technologies on HMIWI in light of the relatively small database (60 FR 
10686).
    a. EPA's Methodology in the 1997 Rulemaking for New HMIWI. In 
determining the MACT floor for new HMIWI in the 1997 rulemaking, EPA 
first examined the data available for various air pollution control 
technologies applied to HMIWI to determine the performance capabilities 
of the technologies (60 FR 10671-73, 61 FR 31741-43). To determine the 
performance capabilities, EPA grouped all of the test data by control 
technology and established the numerical value for corresponding 
emission limitations somewhat higher than the highest test data point 
for each particular control technology. (See Legacy Docket ID No. A-91-
61, items IV-B-46, 47, 48, and 49.) Following the determination of 
performance capability, EPA identified the best control technology for 
each air pollutant for each subcategory of HMIWI, and established the 
numerical values for the floor regulatory option at the emission 
limitation associated with that particular control technology. (See 60 
FR 10673; Legacy Docket ID No. A-91-61, item IV-B-38; 61 FR 31745-46.) 
Other, more stringent, beyond-the-floor regulatory options were 
developed reflecting the actual performance of other, more effective, 
control technologies (61 FR 31766-68).
    In EPA's 1997 final standards, EPA selected a regulatory option for 
new HMIWI that was, overall, more stringent

[[Page 72966]]

than the identified MACT floor (62 FR 48365). The final standards were 
based on emission limits achievable with good combustion and a 
moderate-efficiency wet scrubber for new small HMIWI (units with 
maximum waste burning capacity of less than or equal to 200 lb/hr), and 
good combustion and a combined dry/wet control system with carbon for 
new medium HMIWI (units with maximum waste burning capacity of more 
than 200 lb/hr but less than or equal to 500 lb/hr) and new large HMIWI 
(units with maximum waste burning capacity of more than 500 lb/hr). Id. 
These standards reflected the MACT floor emissions levels for new small 
and large HMIWI, but were more stringent than the MACT floor for new 
medium HMIWI, based on the floor-determination methodology EPA used as 
described above. Id. EPA estimated that the standards would reduce 
emissions from these units of HCl by up to 98 percent, PM and Pb by up 
to 92 percent, Cd by up to 91 percent, CDD/CDF by up to 87 percent, Hg 
by up to 74 percent, and CO, SO2, and NOX by up 
to 52 percent (62 FR 48366).
    b. EPA's Methodology in the 1997 Rulemaking for Existing HMIWI. For 
existing units, EPA did not have sufficient emissions data to fully 
characterize the actual emissions performance of the best performing 12 
percent of existing HMIWI. Based exclusively on the data it did have, 
EPA concluded that it did not have a clear indication of the technology 
used by the best 12 percent of units. As a result, EPA used emission 
limits included in State regulations and State-issued permits 
(hereinafter referred to as regulatory limits) as surrogate information 
to determine emissions limitations achieved by the best performing 12 
percent of units in each subcategory (60 FR 10674). At that time, EPA 
expected this information reflected levels of performance achieved on a 
continuous basis by better-controlled units, since the units had to 
meet these limits or risk violating enforceable requirements. EPA 
assumed that all HMIWI were achieving their regulatory limits (60 FR 
10674). Where there were regulatory limits for more than 12 percent of 
units in a subcategory, the regulatory limits were ranked from the most 
stringent to least stringent, and the average of the regulatory limits 
for the top 12 percent of units in the subcategory was calculated. Id.; 
61 FR 31744-45. Where the number of units subject to specific emissions 
limitations did not comprise 12 percent of the population in a 
subcategory, EPA assumed those units with regulatory limits were the 
best performing units, and the remaining units in the top 12 percent 
were assigned an emission value associated with ``combustion control.'' 
(See 60 FR 10674; 61 FR 31745; Legacy Docket ID No. A-91-61, item IV-B-
24 at 2.) In previous Federal Register notices regarding HMIWI (60 FR 
10654, 61 FR 31736, and 62 FR 48348), this level of control was 
referred to as ``uncontrolled,'' which is misleading because sources 
with combustion control emit lesser amounts of CDD/CDF, CO, and PM than 
would a truly ``uncontrolled'' source. Where regulatory limits did not 
fill 12 percent of the source category, the average of the regulatory 
limits plus enough combustion-controlled emission values to account for 
12 percent of units in the subcategory was calculated. (See Legacy 
Docket ID No. A-91-61, item IV-B-24 at 2-4.)
    After calculating the averages of regulatory limits and combustion-
controlled emission values, EPA examined the resulting calculated 
values to determine what level of air pollution control would be needed 
to meet the calculated average values. (See 60 FR 10675-78; 61 FR 
31755-56.) For many pollutants, the calculated averages presented no 
clear indication of the type of air pollution control used by the best 
performing units. However, the calculated values for three key 
pollutants, PM, CO, and HCl, did provide a good indication of the type 
of air pollution control used on the best performing 12 percent of 
units. The level of air pollution control associated with the 
calculated average values for PM, CO, and HCl formed the technical 
basis of the MACT floor regulatory option considered by EPA (61 FR 
31756, Table 13). The emission limitations assigned to each pollutant 
reflected the actual performance of the technology on which they were 
based. Finally, EPA developed a series of regulatory options based on 
progressively more stringent technologies and assigned emission 
limitations to each regulatory option based on the actual performance 
capabilities of the technologies (61 FR 31757, Table 14).
    In EPA's final standards promulgated in 1997, EPA selected a 
regulatory option for existing HMIWI that was overall more stringent 
than the floor, based on the floor determination methodology described 
above (62 FR 48371). The final standards were based on emission limits 
achievable with good combustion and a low-efficiency wet scrubber for 
most existing small HMIWI, good combustion and a moderate-efficiency 
wet scrubber for existing medium HMIWI, and good combustion and a high-
efficiency wet scrubber for existing large HMIWI (62 FR 48371). The 
final standards allow small HMIWI that meet certain rural criteria to 
meet emissions limits achievable with good combustion alone. Id. These 
standards reflected the identified MACT floor emissions levels for 
existing small HMIWI meeting rural criteria, medium HMIWI, and large 
HMIWI, but were more stringent than the MACT floor for most existing 
small HMIWI (i.e., non-rural), based on the methodology EPA used then 
(62 FR 48371-72). The final standards for existing medium and large 
HMIWI were structured so that either a dry scrubber or a wet scrubber 
could be used to achieve the emission limits. EPA estimated that the 
final EG would reduce emissions of CDD/CDF by up to 97 percent, Hg by 
up to 95 percent, PM by up to 92 percent, Pb by up to 87 percent, Cd by 
up to 84 percent, CO by up to 82 percent, HCl by up to 98 percent, and 
SO2 and NOX by up to 30 percent (62 FR 48372). 
Table 1 of this preamble summarizes the emission limits for the NSPS 
and EG promulgated in 1997.

                                 Table 1--Summary of Promulgated Emission Limits
----------------------------------------------------------------------------------------------------------------
                                                                   Limit for existing
          Pollutant  (units)                Unit size \1\              HMIWI \2\         Limit for new HMIWI \2\
----------------------------------------------------------------------------------------------------------------
HCl (parts per million by volume       L, M, S................  100 or 93% reduction...  15 or 99% reduction
 (ppmv)).
                                       SR.....................  3,100..................  N/A \3\
CO (ppmv)............................  L, M, S................  40.....................  40
                                       SR.....................  40.....................  N/A
Pb (milligrams per dry standard cubic  L, M...................  1.2 or 70% reduction...  0.07 or 98% reduction
 meter (mg/dscm)).                                                                        \3\
                                       S......................  1.2 or 70% reduction...  1.2 or 70% reduction

[[Page 72967]]

 
                                       SR.....................  10.....................  N/A
Cd (mg/dscm).........................  L, M...................  0.16 or 65% reduction..  0.04 or 90% reduction
                                       S......................  0.16 or 65% reduction..  0.16 or 65% reduction
                                       SR.....................  4......................  N/A
Hg (mg/dscm).........................  L, M , S...............  0.55 or 85% reduction..  0.55 or 85% reduction
                                       SR.....................  7.5....................  N/A
PM (grains per dry standard cubic      L......................  0.015..................  0.015
 foot (gr/dscf)).
                                       M......................  0.03...................  0.015
                                       S......................  0.05...................  0.03
                                       SR.....................  0.086..................  N/A
CDD/CDF, total (nanograms per dry      L, M...................  125....................  25
 standard cubic meter (ng/dscm)).
                                       S......................  125....................  125
                                       SR.....................  800....................  N/A
CDD/CDF, TEQ (ng/dscm)...............  L, M...................  2.3....................  0.6
                                       S......................  2.3....................  2.3
                                       SR.....................  15.....................  N/A
NOX (ppmv)...........................  L, M, S................  250....................  250
                                       SR.....................  250....................  N/A
SO2 (ppmv)...........................  L, M, S................  55.....................  55
                                       SR.....................  55.....................  N/A
Opacity (%)..........................  L, M, S, SR............  10.....................  10
----------------------------------------------------------------------------------------------------------------
\1\ L = Large; M = Medium; S = Small; SR = Small Rural.
\2\ All emission limits are measured at 7 percent oxygen.
\3\ Not applicable.

    c. Compliance by HMIWI. At the time of promulgation (September 
1997), EPA estimated that there were approximately 2,400 HMIWI still 
operating in the United States. Those units combusted approximately 830 
thousand tons of hospital/medical/infectious waste annually. Of those 
existing HMIWI, about 48 percent were small units, 29 percent were 
medium units, and 20 percent were large units. About 3 percent of the 
HMIWI were commercial units. EPA projected that no new small or medium 
HMIWI would be constructed, and that up to 60 new large units and 10 
new commercial units would be constructed.
    After approximately 98 percent of the HMIWI that were operating in 
1997 shut down or obtained exemptions, there remain only 52 existing 
HMIWI at 47 facilities from the set of 2,400 that operated at 
promulgation. Additionally, only 5 new HMIWI at 4 facilities began 
operation following the 1997 rulemaking. The total 57 existing and new 
units are estimated to combust approximately 146,000 tons of waste 
annually. Of the 52 existing HMIWI subject to the EG, 33 are large 
units, 16 are medium units, and 3 are small units (2 of which meet the 
rural criteria). Twenty-three percent of the existing HMIWI (i.e., 14 
units) are commercially owned. Of the five new HMIWI, three are large 
units, one is a medium unit, and one is a small unit. Two of the new 
units are county-owned but accept waste from other sources, similar to 
commercial units. The actual emissions reductions achieved as a result 
of implementation of the standards exceeded the 1997 projections for 
all nine of the regulated pollutants. A comparison of the estimated 
pollutant reductions versus the actual reductions is presented in Table 
2 of this preamble.

            Table 2--Comparison of Estimated Pollutant Reductions Versus Actual Pollutant Reductions
----------------------------------------------------------------------------------------------------------------
                                                            Actual
                                   Estimated emissions     emissions    Emissions reduction  Emissions reduction
            Pollutant               reduction, percent    reduction,     due to  shutdowns/   due to  compliance
                                                          percent \1\        exemptions         with standards
----------------------------------------------------------------------------------------------------------------
HCl..............................  98.................            98.4  98.3...............  0.1
CO...............................  75 to 82...........            98.0  94.8...............  3.2
Pb...............................  80 to 87...........            98.2  95.9...............  2.3
Cd...............................  75 to 84...........            98.7  95.4...............  3.3
Hg...............................  93 to 95...........            97.8  94.6...............  3.2
PM...............................  88 to 92...........            95.6  92.8...............  2.9
CDD/CDF, total...................  96 to 97...........            99.4  97.3...............  2.0
CDD/CDF, TEQ.....................  95 to 97...........            99.4  97.2...............  2.2
                                                                       -----------------------------------------
NOX..............................  0 to 30............            56.7               see footnote 2
SO2..............................  0 to 30............            76.2               see footnote 2
----------------------------------------------------------------------------------------------------------------
\1\ Reflects the effect of unit shutdowns and exemptions that were obtained, as well as the effect of compliance
  with the promulgated standards.
\2\ Percentages cannot be accurately calculated because units were not required to conduct emissions testing for
  NOX and SO2.


[[Page 72968]]

3. What was the Sierra Club's challenge?
    On November 14, 1997, the Sierra Club and the Natural Resources 
Defense Council (Sierra Club) filed suit in the U.S. Court of Appeals 
for the District of Columbia Circuit (the Court). The Sierra Club 
claimed that EPA violated CAA section 129 by setting emission standards 
for HMIWI that are less stringent than required by section 129(a)(2); 
that EPA violated section 129 by not including pollution prevention or 
waste minimization requirements; and that EPA had not adequately 
considered the non-air quality health and environmental impacts of the 
standards. For new units, the Sierra Club argued that to satisfy the 
statutory phrase ``best controlled similar unit'' in CAA section 
129(a)(2), EPA should have identified the single best performing unit 
in each subcategory and based the MACT floor on that particular unit's 
performance, rather than consider the performance of other units using 
the same technology. The Sierra Club also argued that EPA erroneously 
based the new unit floors on the emissions of the worst performing unit 
using a particular technology. Regarding existing units, the Sierra 
Club claimed that CAA section 129(a)(2)'s words, ``average emissions 
limitation achieved by the best performing 12 percent of units,'' 
preclude the use of regulatory data, and that the legislative history 
reflects congressional intent to prohibit EPA from relying on 
regulatory data. Moreover, the Sierra Club claimed that using 
regulatory data was impossible because such data existed for fewer than 
12 percent of HMIWI, and that using it impermissibly imported an 
achievability requirement into the floor determination. Finally, the 
Sierra Club argued that EPA failed to require HMIWI to undertake 
programs to reduce the Hg and chlorinated plastic in their waste 
streams, in violation of CAA section 129(a)(3).
4. What was the Court's ruling?
    On March 2, 1999, the Court issued its opinion in Sierra Club v. 
EPA, 167 F.3d 658 (D.C. Cir. 1999). While the Court rejected the Sierra 
Club's statutory arguments under CAA section 129, the Court remanded 
the rule to EPA for further explanation regarding how EPA derived the 
MACT floors for new and existing HMIWI. Furthermore, the Court did not 
vacate the regulations, and the regulations remain in effect during the 
remand.
    a. The Court's Ruling on New Units. Regarding EPA's treatment of 
new units, the Court first opined that EPA would be justified in 
setting the floors at a level that is a reasonable estimate of the 
performance of the ``best controlled similar unit'' under the worst 
reasonably foreseeable circumstances. The Court observed that if an 
emissions standard is as stringent as ``the emissions control that is 
achieved in practice'' by a particular unit, then that particular unit 
will not violate the standard. But this would result only if ``achieved 
in practice'' means ``achieved under the worst foreseeable 
circumstances.'' The Court then stated that in National Lime Ass'n v. 
EPA, 627 F.2d 416, 431 n. 46 (D.C. Cir. 1980), it held that where a 
statute requires that a standard be ``achievable,'' it must be 
achievable ``under most adverse circumstances which can reasonably be 
expected to recur,'' and the same principle should apply when a 
standard is to be derived from the operating characteristics of a 
particular unit. Sierra Club v. EPA, 167 F.3d at 665.
    The Court refused to rule that EPA's approach of considering 
emissions of units other than the single best controlled unit was 
unlawful, and suggested that considering all units with the same 
technology might be a justifiable way to predict the worst reasonably 
foreseeable performance of the best unit. The Court also supposed that 
EPA may have considered all units with the same technology equally 
``well-controlled,'' so that each unit with the best technology is a 
``best-controlled unit'' even if they vary in performance. Sierra Club 
v. EPA, 167 F.3d at 665.
    However, the Court concluded that the possible rationale for this 
treatment of new units was not presented in the rulemaking record with 
enough clarity for the Court to determine that EPA's path may 
reasonably be discerned, and that EPA had not explained why the phrase 
best controlled similar unit could encompass all units using the same 
technology as the unit with the best observed performance, rather than 
just the single best unit. Sierra Club v. EPA, 167 F.3d at 665. The 
Court further directed EPA to provide additional explanation regarding 
how the Agency had calculated the upper bound of the best-controlled 
unit's performance through rounding. Id.
    b. The Court's Ruling on Existing Units. With respect to existing 
units, the Court first rejected the Sierra Club's statutory objections 
to using regulatory data and ``uncontrolled'' (i.e., combustion-
controlled) emissions values. Then, after analyzing and rejecting the 
Sierra Club's arguments that the plain language of the CAA and its 
legislative history forbid EPA's methodology, the Court held that the 
use of regulatory data is permissible as long as it allows a reasonable 
inference as to the performance of the top 12 percent of units. 
Similarly, as long as there is a reasonable basis for concluding that 
some of the best performing 12 percent of units are combustion 
controlled, EPA may include data points giving a reasonable 
representation of the performance of those units. Sierra Club v. EPA, 
167 F.3d at 662, 663.
    However, the Court concluded that, although EPA said that it 
believed the combination of regulatory and combustion-controlled data 
gave an accurate picture of HMIWI performance, EPA did not account for 
the possibility that HMIWI might be substantially overachieving the 
permit limits, which would cause permit limits to be of little value in 
estimating the top 12 percent of HMIWI performance. In addition, EPA 
did not give a reason for assuming that HMIWI that were not subject to 
permit requirements did not deploy emission controls of any sort. Id., 
at 663-664. The Court further questioned the rationality of EPA using 
the highest of its test run data in cases where the regulatory data did 
not alone comprise the necessary 12 percent. Id., at 664.
5. What was EPA's methodology in the 2007 proposed remand response?
    Following the 1999 remand of the HMIWI MACT floors in Sierra Club 
v. EPA, but prior to EPA's February 6, 2007, proposed response to the 
Court remand, the Court issued a series of rulings in other cases 
addressing MACT rules that were relevant to and guided EPA's 
development of the February 2007 proposed response regarding HMIWI. 
Those rulings and their relevance are fully explained in sections 
III.A.4.c. and IV.A. of the preamble to EPA's February 2007 proposal 
(72 FR 5510). The first of these was Nat'l Lime Ass'n v. EPA, 233 F.3d 
625 (D.C. Cir. 2000) (NLA II), which involved EPA's MACT standards 
under CAA section 112(d) for portland cement manufacturing facilities. 
In that case, the Sierra Club argued that EPA should have based its 
estimate of the top performing 12 percent of sources on actual 
emissions data. But the Court determined that EPA's approach of 
selecting the median performing plant out of the best twelve percent of 
the plants for which EPA had information and setting the floor at the 
level of the worst performing plant in the database using the same 
technology as the median plant had not been shown to be unreasonable. 
NLA II, 233 F.3d at 633.
    In addition, the Court partially clarified its position regarding 
EPA's approach of accounting for emissions

[[Page 72969]]

performance variability by setting floors at a level that reasonably 
estimates the performance of the ``best controlled similar unit'' under 
the worst reasonably foreseeable circumstances. First, the Court 
stressed that EPA should not simply set floors at levels reflecting the 
worst foreseeable circumstances faced by any worst performing unit in a 
given source category. Second, the Court stated that considering all 
units with the same technology may be a justifiable way to predict the 
worst reasonably foreseeable performance of such technology only if 
pollution control technology were the only factor determining emission 
levels of that HAP. NLA II, 233 F.3d at 633.
    In Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 
2001) (CKRC), the Court again addressed when it is appropriate for EPA 
to base MACT floors on the performance of air pollution control 
technology. The Sierra Club challenged EPA's MACT standards for 
hazardous waste combustors (HWC), and argued that factors other than 
MACT technology influenced the emissions performance of the best 
performing sources.
    The Court agreed that since the HWC rulemaking record showed that 
factors besides technological controls significantly influenced HWC 
emission rates, emissions of the worst-performing source using 
technology may not reflect what the best-performers actually achieve. 
CKRC, 255 F.3d at 864. EPA had claimed that MACT floors must be 
achievable by all sources using MACT technology, and that to account 
for the best-performing sources' operational variability we had to base 
floors on the worst performers' emissions. But the Court stressed that 
whether variability in the control technology accurately estimates 
emissions variability of the best performing sources depends on whether 
factors other than technological control contribute to emissions. The 
Court stated that the relevant question is whether the variability 
experienced by the best-performing sources can be estimated by relying 
on emissions data from the worst-performing sources using technological 
controls. Id., at 865. However, the Court also reiterated that if the 
Agency can demonstrate with substantial evidence that MACT technology 
significantly controls emissions, or that factors other than 
technological control have a negligible effect, the MACT approach could 
be a reasonable means of satisfying the statute's requirements. Id., at 
866.
    EPA's February 2007 proposed response to the HMIWI remand was based 
on a reassessment of information and data that were available at the 
time of promulgation in 1997, in light of the Agency's understanding of 
the Court's rulings in the Sierra Club, NLA II, CKRC and other cases 
discussed in our 2007 proposal notice. The proposed response would have 
revised some of the emission limits in both the NSPS and EG. Relative 
to the NSPS, the emission limits for CO, Pb, Cd, Hg, PM, and CDD/CDF 
would have been revised. Relative to the EG, the emission limits for 
HCl, Pb, Cd, and CDD/CDF would have been revised. EPA believed that the 
revised emission limits proposed in February 2007 as a result of its 
response to the remand could be achieved with the same emission control 
technology currently used by HMIWI to meet the 1997 rule.
    a. EPA's Methodology in the 2007 Proposal for New HMIWI. The 
revised standards for new HMIWI in the 2007 proposal were based on the 
same technologies upon which the 1997 final standards were based. In 
general, we proposed emission limits for each air pollutant for each 
subcategory of new HMIWI based on the highest observed data points 
associated with the control technologies upon which the emission 
standards were based, since we identified the ``best controlled similar 
unit'' as one using the relevant control technologies for each 
subcategory of new units. This was a similar MACT determination 
approach to that used at the time of promulgation, with two significant 
differences--the proposed limits did not include the addition of 10 
percent to the highest observed emissions levels, nor did it include 
the rounding up of those figures. The 2007 proposal's revised MACT 
determination approach for new HMIWI and its rationale were explained 
in detail in section IV.A.1. of the preamble to EPA's February 2007 
proposal (72 FR 5510).
    b. EPA's Methodology in the 2007 Proposal for Existing HMIWI. 
Although the proposed revised standards for existing HMIWI in the 2007 
proposal were generally based on the same technologies upon which the 
1997 final standards were based, they also reflected a number of 
changes to the MACT determination approach used at promulgation. In 
determining the best performing existing HMIWI, regulatory limits that 
reflected higher emissions levels than those corresponding to EPA's 
combustion-controlled emission estimates were not used. Furthermore, 
where actual emissions test data reflecting emissions performance were 
available in the 1997 record, those data took precedence over other 
types of data (i.e., regulatory limits or performance values) and were 
the initial type of pollutant-specific values considered. Additionally, 
where we had some indication that add-on controls may have been used 
but there were no test data or regulatory limits for that source, we 
did not use combustion-controlled emission estimates in the floor 
calculations to represent the performance of those sources. Rather, an 
average of the maximum dry and wet control system performance was 
determined for each pollutant, and those values were added to the data 
set towards comprising the best performing 12 percent. These default 
performance values also were used where regulatory limits existed but 
were higher than the default performance values.
    In the 2007 proposal, the average emission limitation achieved by 
the best performing 12 percent of existing sources was determined using 
the median as a measure of central tendency. This approach resulted in 
the emission level that corresponds to that of the best performing 6 
percent of sources (i.e., the 94th percentile) representing the MACT 
floor control level. MACT floors for each pollutant within each 
subcategory were based on this approach. We then determined the 
technology associated with each ``average of the best-performing 12 
percent'' value by comparing the average values to average performance 
data for wet scrubbers, dry injection fabric filters (also known as dry 
scrubbers), and combustion controls (no add-on air pollution controls). 
The technology needed to meet the average values reflected the 
technology used by the 94th percentile unit and served as the basis for 
the proposed revised MACT floor.
    Numerical emission limits were determined by combining the 
appropriate average emission value for each pollutant within each 
subcategory of HMIWI with a variability factor. The 2002 compliance 
test data for HMIWI were used in calculating pollutant-specific 
variability factors. While these data were not available at the time of 
promulgation of the 1997 rule, we believed that they were the best data 
available in 2007 for providing a quantitative assessment of 
variability of emissions from well-controlled HMIWI. To determine the 
pollutant-specific variability factors, a statistical analysis was 
conducted. Specifically, the emission limit for each pollutant was 
determined based on the combination of actual emissions test data, 
regulatory data, and estimated performance levels (as described 
earlier) and a statistics-based variability factor calculated for each 
pollutant. A detailed explanation of the 2007 proposed revised MACT 
determination approach for existing

[[Page 72970]]

HMIWI and its rationale was set forth in section IV.A.2. of the 
preamble to EPA's February 2007 proposal (72 FR 5510).
6. Why is EPA re-proposing a response to the remand?
    EPA's decision to re-propose its response to the Court's remand is 
based on a number of factors, including further rulings by the U.S. 
Court of Appeals that issued after our 2007 proposal was published. In 
addition, public comments regarding the 2007 proposal raised issues 
that, upon further consideration, we believe are best addressed through 
a re-proposal. One issue regards the use of emission limits included in 
State regulations and State-issued permits as surrogates for estimated 
actual emissions limitations achieved. As previously stated, EPA used 
regulatory limits in its MACT floor determinations supporting the 1997 
rulemaking for HMIWI. At that time, we believed this information could 
be expected to reliably reflect levels of performance achieved by HMIWI 
on a continuous basis. In the 2007 proposed response to the Court's 
remand, with adjustments to our methodology as described above, we 
continued to use some of the regulatory limits to determine achieved 
MACT floor emissions limitations. Upon reassessment of the regulatory 
limits and minimal emissions test data in the 1997 record, however, it 
is uncertain how well the regulatory limits represented the performance 
of each HMIWI. Given the uncertainty regarding whether the regulatory 
limits that specific HMIWI were subject to at the time of promulgation 
provided a reasonable estimate of emissions limitations achieved by 
those HMIWI, the inability to gather additional information regarding 
non-operational units (approximately 98 percent shut down or obtained 
exemptions), and the fact that we now have some actual emissions data 
from the HMIWI remaining in operation, we believe the best course of 
action is to re-propose a response to the remand based on data from the 
57 currently operating HMIWI. This data is the most reliable we have 
obtained that reflects the emissions levels achieved in practice by the 
best performing HMIWI.
    Another issue regards EPA's previous reliance on control technology 
performance as the sole indicator of HMIWI performance in making MACT 
floor determinations, which did not necessarily account for other 
factors that affect emissions (e.g., waste mix, combustion conditions). 
Commenters on our 2007 proposal specifically asked that we revisit this 
issue. Our treatment of this issue also addresses the Court's concern 
with our 1997 rule's use of highest data points of units with best 
performing technology, where control technology is not the only factor 
that affects emissions. As we discuss in detail later in this notice, 
although our work to-date in regulating HMIWI shows that control 
technology significantly controls emissions, we are not able to 
conclude that factors other than the controls have a negligible effect 
on emissions performance and on the levels achieved in practice by the 
best performing sources. While it is not possible to precisely quantify 
the additional emissions reduction that is associated with waste 
segregation or combustion conditions, we have found that it is possible 
to account for those measures (and any other emission reduction 
strategies) through the identification and use of actual emissions 
levels in floor determinations, since these levels reflect emissions 
performance resulting from the use of add-on controls and other 
measures known to be used at HMIWI. Thus, the proposed revised MACT 
emission limits are based on performance data from the best-performing 
12 percent of existing HMIWI and the best-performing unit for new 
HMIWI.
    Following publication of our 2007 proposed remand response, the 
Court issued a ruling in another case challenging EPA's MACT 
methodology, specifically as applied to brick and ceramic kilns. In 
Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007), the Court reiterated 
its holding in CKRC that EPA may not justify MACT floors by claiming 
that floors must be achievable by all sources using MACT technology. 
Sierra Club v. EPA, 479 F.3d at 880. The Court concluded that by 
excluding a certain control technology from the agency's ranking of 
best-performing kilns, EPA had impermissibly ignored the emission 
levels actually achieved by best performers in order to ensure that the 
MACT floor is achievable by all kilns. Sierra Club, 479 F.3d at 880-81.
    The Court then referred to its ruling in CKRC declaring unlawful 
EPA's method of estimating emissions among best performing sources by 
basing MACT floors on levels achieved by worst performers using MACT 
technology, and held that in the kilns rule EPA failed to show that the 
emission levels achieved by the worst performers using a given 
pollution control device actually predict the range of emission levels 
achieved by the best performers using that device. Sierra Club, 479 
F.3d at 882. The Court distinguished EPA's approach to kilns from the 
permissible approach the agency had performed in Mossville 
Environmental Action Now v. EPA, 370 F.3d 1232 (D.C. Cir. 2004), in 
which EPA's record evidence demonstrated that the floor reasonably 
estimated actual emissions variability of the best-performing sources. 
There, the Court held that MACT floors may legitimately account for 
variability because each source must meet the specified standard every 
day and under all operating conditions. Mossville, 370 F.3d at 1242.
    The Sierra Club Court then addressed EPA's approach to considering 
non-technology factors in the brick and ceramic kiln rule. The Court 
stressed that EPA may not refuse to consider such factors in the MACT 
floor merely because it is impossible to reliably quantify their effect 
on emissions performance. Consequently, the Court rejected EPA's 
approach in the kiln rule, in which the agency acknowledged that a non-
technology factor (clay type) had an appreciable effect on emissions 
but for which EPA lacked data to quantify such effects. Sierra Club, 
479 F.3d at 882-83. The Court further rejected EPA's argument that 
since the non-technology factor in the kiln rule did not reflect a 
deliberate step taken to reduce emissions, it did not amount to an 
emission control or limitation achieved by kilns: The Court stated that 
NLA II requires neither an intentional action nor a deliberate strategy 
to reduce emissions, and that the Clean Air Act requires the EPA to set 
MACT floors based upon the ``average emission limitation[s] achieved'' 
without suggesting that this achievement must be the product of a 
specific intent. Sierra Club, 479 F.3d at 883.
    The Court's treatment of each of these issues caused us to reassess 
our MACT floor approach in the HMIWI remand response.
7. Are the emission limits being revised as a result of the re-
proposal?
    Yes, the proposed response to the remand would revise all of the 
emission limits in both the NSPS and EG. Table 3 of this preamble 
summarizes the emission limits being proposed in this action in 
response to the Court remand for new HMIWI.

 Table 3--Summary of Emission Limits Proposed in Response to the Remand
                              for New HMIWI
------------------------------------------------------------------------
                                                             Proposed
                                                  Unit        remand
              Pollutant  (units)                size \1\     response
                                                             limit \2\
------------------------------------------------------------------------
HCl (ppmv)....................................         L         0.75
                                                      M          1.8
                                                      S          4.5

[[Page 72971]]

 
CO (ppmv).....................................         L         2.9
                                                      M          1.9
                                                      S          8.2
Pb (mg/dscm)..................................         L         0.00047
                                                      M          0.016
                                                      S          0.18
Cd (mg/dscm)..................................         L         0.00012
                                                      M          0.0071
                                                      S          0.012
Hg (mg/dscm)..................................         L         0.00093
                                                      M          0.0020
                                                      S          0.0075
PM (gr/dscf)..................................         L         0.0048
                                                      M          0.0099
                                                      S          0.017
CDD/CDF, total (ng/dscm)......................         L         0.60
                                                      M          0.35
                                                      S          8.3
CDD/CDF, TEQ (ng/dscm)........................         L         0.014
                                                      M          0.0097
                                                      S          0.0080
NOX (ppmv)....................................         L       110
                                                   M, S         38
SO2 (ppmv)....................................         L         1.9
                                                   M, S          0.78
Opacity (%)...................................         L, M, S  2
------------------------------------------------------------------------
\1\ L = Large; M = Medium; S = Small
\2\ All emission limits are measured at 7 percent oxygen.

    Table 4 of this preamble summarizes the emission limits being 
proposed in this action in response to the Court remand for existing 
HMIWI.

 Table 4--Summary of Emission Limits Proposed in Response to the Remand
                           for Existing HMIWI
------------------------------------------------------------------------
                                                             Proposed
                                                  Unit        remand
              Pollutant  (units)                size \1\     response
                                                             limit \2\
------------------------------------------------------------------------
HCl (ppmv)....................................         L          2.4
                                                      M           2.5
                                                      S           4.5
                                                     SR         440
CO (ppmv).....................................         L          3.9
                                                      M           3.0
                                                      S           8.2
                                                     SR          12
Pb (mg/dscm)..................................         L          0.013
                                                      M           0.017
                                                      S           0.18
                                                     SR           0.35
Cd (mg/dscm)..................................         L          0.0041
                                                      M           0.0071
                                                      S           0.012
                                                     SR           0.068
Hg (mg/dscm)..................................         L          0.0095
                                                      M           0.0079
                                                      S           0.0075
                                                     SR           0.0040
PM (gr/dscf)..................................         L          0.0056
                                                      M           0.012
                                                      S           0.017
                                                     SR           0.030
CDD/CDF, total (ng/dscm)......................         L          1.6
                                                      M           0.63
                                                      S           8.3
                                                     SR         130
CDD/CDF, TEQ (ng/dscm)........................         L          0.029
                                                      M           0.0097
                                                      S           0.0080
                                                     SR           2.6
NOX (ppmv)....................................         L        140
                                                   M, S         200
                                                     SR         110
SO2 (ppmv)....................................         L, M, S    2.8
                                                     SR          43
Opacity (%)...................................         L, M, S,  2
                                                     SR
------------------------------------------------------------------------
\1\ L = Large; M = Medium; S = Small; SR = Small Rural
\2\ All emission limits are measured at 7 percent oxygen.

B. Proposed CAA Section 129(a)(5) 5-Year Review Response

    Section 129(a)(5) of the CAA requires EPA to conduct a review of 
the NSPS and EG at 5 year intervals and, in accordance with sections 
129 and 111, revise the NSPS and EG. We do not interpret section 
129(a)(5), together with section 111, as requiring EPA to recalculate 
MACT floors in connection with this periodic review. See, e.g., 71 FR 
27324, 27327-28 (May 10, 2006) (``Standards of Performance for New 
Stationary Sources and Emission Guidelines for Existing Sources: Large 
Municipal Waste Combustors; Final Rule''); see also, NRDC and LEAN v. 
EPA, 529 F.3d 1077, 1083-84 (D.C. Cir. 2008) (upholding EPA's 
interpretation that the periodic review requirement in CAA section 
112(d)(6) does not impose an obligation to recalculate MACT floors).
    Rather, in conducting such periodic reviews, EPA attempts to assess 
the performance of and variability associated with control measures 
affecting emissions performance at sources in the subject source 
category (including the installed emissions control equipment), along 
with developments in practices, processes and control technologies, and 
determines whether it is appropriate to revise the NSPS and EG. This is 
the same general approach taken by EPA in periodically reviewing CAA 
section 111 standards, as section 111 contains a similar review and 
revise provision. Specifically, section 111(b)(1)(B) requires EPA, 
except in specified circumstances, to review NSPS promulgated under 
section 111 every 8 years and to revise the standards if EPA determines 
that it is ``appropriate'' to do so, 42 U.S.C. 7411(b)(1)(B). In light 
of the explicit reference in section 129(a)(5) to section 111, which 
contains direct guidance on how to review and revise standards 
previously promulgated, EPA reasonably interprets section 129(a)(5) to 
provide that EPA must review and, if appropriate, revise section 129 
standards.
    Section 129 provides guidance on the criteria to be used in 
determining whether it is appropriate to revise a section 129 standard. 
Section 129(a)(3) states that standards under sections 111 and 129 
``shall be based on methods and technologies for removal or destruction 
of pollutants before, during and after combustion.'' It can be 
reasonably inferred from the reference to ``technologies'' that EPA is 
to consider advances in technology, both as to their effectiveness and 
their costs, as well as the availability of new technologies, in 
determining whether it is ``appropriate'' to revise a section 129 
standard. This inference is further supported by the fact that the 
standards under review are based, in part, on an assessment of the 
performance of control technologies currently being used by sources in 
a category or subcategory.
    This approach is also consistent with the approach used in 
establishing and updating NSPS under section 111. Consistent with the 
definition of ``standard of performance'' in section 111(a)(1), 
standards of performance promulgated under section 111 are based on 
``the best system of emission reductions'' which generally equates to 
some type of control technology. Where EPA determines that it is 
``appropriate'' to revise section 111 standards, section 111(b)(1)(B) 
directs that this be done ``following the procedure required by this 
subsection for promulgation of such standards.'' In updating section 
111 standards in accordance with section 111(b)(1)(B), EPA has 
consistently taken the approach of evaluating advances in existing 
control technologies, both as to performance and cost, as well as the 
availability of new technologies and then, on the basis of this 
evaluation, determined whether it is appropriate to revise the 
standard. See, for example, 71 FR 9866 (Feb. 27, 2006) (updating the 
boilers NSPS) and 71 FR 38482 (July 6,

[[Page 72972]]

2006) (updating the stationary combustion turbines NSPS). In these 
reviews, EPA takes into account, among other things, the currently 
installed equipment and its performance and operational variability. As 
appropriate, we also consider new technologies and control measures 
that have been demonstrated to reliably control emissions from the 
source category.
    The approach is similar to the one that Congress spelled out in 
section 112(d)(6), which is also entitled ``Review and revision.'' 
Section 112(d)(6) directs EPA to every 8 years ``review, and revise as 
necessary (taking into account developments in practices, processes, 
and control technologies)'' emission standards promulgated pursuant to 
section 112. There are a number of significant similarities between 
what is required under section 129, which addresses emissions of 
hazardous air pollutants (HAP) and other pollutants from solid waste 
incineration units, and section 112, which addresses HAP emissions 
generally. For example, under both section 112(d)(3) and section 
129(a)(2) initial standards applicable to existing sources ``shall not 
be less stringent than the average emissions limitation achieved by the 
best performing 12 percent of units in the category.'' Also, as stated 
above, both sections require that standards be reviewed at specified 
intervals of time. Finally, both sections contain a provision 
addressing ``residual risk'' (sections 112(f) and 129(h)(3)). As a 
result, EPA believes that section 112(d)(6) is relevant in ascertaining 
Congress' intent regarding how EPA is to proceed in implementing 
section 129(a)(5).
    Like its counterpart CAA section 112(d)(6), section 129(a)(5) does 
not state that EPA must conduct a MACT floor analysis every 5 years 
when reviewing standards promulgated under sections 129(a)(2) and 111. 
Had Congress intended EPA to conduct a new floor analysis every 5 
years, it would have said so expressly by directly incorporating such 
requirements into section 129(a)(5), for example by referring directly 
to section 129(a)(2), rather than just to ``this section'' and section 
111. It did not do so, however, and, in fact, section 129 encompasses 
more than just MACT standards under section 129(a)(2)--it also includes 
risk-based standards under section 129(h)(3), which are not determined 
by an additional MACT analysis. Reading section 129(a)(5) to require 
recalculation of the MACT floor would be both inconsistent with 
Congress' express direction that EPA should revise section 129 
standards in accordance with section 111, which plainly provides that 
such revision should occur only if we determine that it is 
``appropriate'' to do so. It would also result in effectively reading 
the reference to section 111 out of the Act, a circumstance that 
Congress could not have intended. Required recalculation of floors 
would completely eviscerate EPA's ability to base revisions to section 
129 standards on a determination that it is ``appropriate'' to revise 
such standards, as EPA's only discretion would be in deciding whether 
to establish a standard that is more stringent than the recalculated 
floor. EPA believes that depriving the agency of any meaningful 
discretion in this manner is at odds with what Congress intended.
    Further, required recalculation of floors would have the inexorable 
effect of driving existing sources to the level of performance 
exhibited by new sources on a 5-year cycle, a result that is 
unprecedented and that should not be presumed to have been intended by 
Congress in the absence of a clear statement to that effect. There is 
no such clear statement. It is reasonable to assume that if the floor 
must be recalculated on a 5-year cycle, some, if not most or all, of 
the sources that form the basis for the floor calculation will be 
sources that were previously subject to standards applicable to new 
sources. As a result, over time, existing sources which had not made 
any changes in their operations would eventually be subject to 
essentially the same level of regulation as new sources. Such a result 
would be unprecedented, particularly in the context of a standard that 
is established under both sections 129 and 111. Under section 111, an 
existing source only becomes a new source and thus subject to a new 
source standard when it is either modified (section 111(a)(2)) or 
reconstructed (40 CFR 60.15). Given this context, it is not reasonable 
to assume that Congress intended for existing sources subject to 
section 129 standards to be treated as new sources over time where 
their circumstances have not changed.
    We believe that a reasonable interpretation of section 129(a)(5) is 
that Congress preserved EPA's discretion in reviewing section 129 
standards to revise them when the Agency determines it is 
``appropriate'' to do so, and that the D.C. Circuit's recent ruling 
regarding section 112(d)(6) supports this view (see NRDC and LEAN v. 
EPA, 529 F.3d 1077, 1084 (D.C. Cir. 2008). In that case, petitioners 
had ``argued that EPA was obliged to completely recalculate the maximum 
achievable control technology--in other words, to start from scratch.'' 
NRDC and LEAN, 529 F.3d at 1084. The Court held: ``We do not think the 
words `review, and revise as necessary' can be construed reasonably as 
imposing any such obligation.'' Id. The Court's ruling in NRDC and LEAN 
is consistent with our interpretation of section 129(a)(5) as providing 
a broad range of discretion in terms of whether to revise MACT 
standards adopted under sections 129(a)(2) and 111.
1. What was EPA's Approach in the 2007 Proposal Regarding the 5-Year 
Review Requirement?
    In the 2007 proposed response to the Court's remand, EPA also 
proposed amendments that reflected changes determined to be appropriate 
after completing the 5-year review. Following compliance with the EG in 
2002, EPA gathered information on the performance levels actually being 
achieved by HMIWI that were operating under the guidelines. Those HMIWI 
that remained in operation either continued operation with their 
existing configuration or were retrofitted with add-on air pollution 
control devices in order to meet the 1997 standards. The 2002 
compliance test information provided the first quantitative assessment 
of the performance of the installed control equipment's ability to 
attain the NSPS and EG limits. The compliance data indicated that the 
control technologies that were installed and the practices that were 
implemented to meet the 1997 NSPS and EG achieved reductions somewhat 
superior to what we had expected, based on the regulatory data we had 
used to establish the limits, under the 1997 limits for many of the 
pollutants.
    EPA used the compliance test data to develop the revised emission 
limits proposed in February 2007 in response to the 5-year review 
requirement. The proposed amendments did not reflect adoption of new 
control technologies or processes, but reflected more efficient 
practices in operation of the control technologies that sources used in 
order to meet the 1997 MACT standards. The proposed amendments also 
would have resulted in some changes to the performance testing and 
monitoring requirements based on information received during 
implementation of the HMIWI NSPS and EG. EPA's approach was explained 
in detail in sections III.B. and IV.B. of the preamble to EPA's 
February 2007 proposal (72 FR 5510).
    We did not regard the proposed revised amendments under the 5-year 
review as reflecting a recalculation of the MACT floors for their own 
sake, or, as some have put it, ``MACT-on-MACT.'' Rather, consistent 
with our

[[Page 72973]]

overall interpretation of the requirements of section 129(a)(5), the 
proposed revised amendments reflected what we viewed as a more accurate 
translation into numeric emissions rates of the emissions performance 
achieved by the MACT technological controls we had identified in the 
1997 final rule. This seemed a reasonable approach, since we now had, 
for the first time, actual emissions data that indicated the emissions 
levels achieved through application of the MACT technology, rather than 
just the regulatory data and combustion-control emissions factors to 
which we have been previously limited, and which, as discussed above, 
we have since learned did not provide the most accurate estimation of 
the emissions levels achieved by the best performing sources.
2. Why is EPA Re-Proposing Different Revised Standards under the 5-Year 
Review?
    Although we believe that the approach used in our 2007 proposed 
response to the 5-year review of the HMIWI emission standards, as 
promulgated in 1997, correctly addressed the intent of the CAA section 
129(a)(5) requirement and resulted in proposed revisions to the 
emission standards that would have appropriately reflected the 
emissions levels achieved by the control technologies imposed by the 
1997 final rule, we are re-proposing our response to the remand in 
Sierra Club such that the proposed revised MACT standards, reflecting 
floor levels determined by actual emissions data, would be more 
stringent than what we proposed in 2007 for both the remand response 
and the 5-year review, with the exceptions noted and discussed in 
sections IV.A. and IV.B of this preamble. Consequently, we believe that 
our obligation to conduct a 5-year review based on implementation of 
the 1997 emission standards will also be fulfilled through this 
action's re-proposal of the remand response. This is supported by the 
fact that the revised MACT floor determinations and emission limits 
associated with the remand response are based on performance data for 
the 57 currently operating HMIWI that are subject to the 1997 
standards, and by the re-proposal's accounting for non-technology 
factors that affect HMIWI emissions performance, which the 2007 
proposed remand response and 5-year review did not fully consider. 
Thus, the proposed remand response more than addresses the technology 
review's goals of assessing the performance efficiency of the installed 
equipment and ensuring that the emission limits reflect the performance 
of the technologies required by the MACT standards. In addition, the 
proposed remand response addresses whether new technologies and 
processes and improvements in practices have been demonstrated at 
sources subject to the emissions limitations. Accordingly, the remand 
response in this proposed action fulfills EPA's obligations regarding 
the first 5-year review of the HMIWI standards and, therefore, replaces 
the 2007 proposal's 5-year review proposed revisions.

C. Other Proposed Amendments

    This proposed action puts forward the same changes based on 
information received during implementation of the HMIWI NSPS and EG 
that were proposed in 2007. The proposal also includes additional 
changes regarding requirements for NOX and SO2 emissions 
testing for all HMIWI, performance testing requirements for small rural 
HMIWI, monitoring requirements for HMIWI that install selective non-
catalytic reduction (SNCR) technology to reduce NOX 
emissions, and procedures for test data submittal. A summary of these 
changes follows.
1. Performance Testing and Monitoring Amendments
    The proposed amendments would require all HMIWI to demonstrate 
initial compliance with the revised NOX and SO2 
emission limits. Testing and demonstration of compliance with the 
NOX and SO2 emission limits are not currently 
required by the standards. In addition to demonstrating initial 
compliance with the NOX and SO2 emission limits, 
small rural HMIWI would be required to demonstrate initial compliance 
with the other seven regulated pollutants' emission limits and the 
opacity standard. Currently, small rural HMIWI are only required to 
demonstrate initial compliance with the PM, CO, CDD/CDF, Hg, and 
opacity standards. Small rural HMIWI also would be required to 
determine compliance with the PM, CO, and HCl emission limits by 
conducting an annual performance test. On an annual basis, small rural 
HMIWI are currently required to demonstrate compliance with the opacity 
limit. The proposed amendments would allow sources to use results of 
their previous emissions tests to demonstrate initial compliance with 
the proposed revised emission limits as long as the sources certify 
that the previous test results are representative of current 
operations. Only those sources who could not so certify and/or whose 
previous emissions tests do not demonstrate compliance with one or more 
revised emission limits would be required to conduct another emissions 
test for those pollutants (note that most sources are already required 
to test for HCl, CO, and PM on an annual basis, and those annual tests 
are still required).
    The proposed amendments would require, for existing HMIWI, annual 
inspections of scrubbers, fabric filters, and other air pollution 
control devices that may be used to meet the emission limits, as well 
as a one-time Method 22 of appendix A-7 visible emissions test of the 
ash handling operations to be conducted during the next compliance 
test. For new HMIWI, the proposed amendments would require CO 
continuous emissions monitoring systems (CEMS), bag leak detection 
systems for fabric-filter controlled units, annual inspections of 
scrubbers, fabric filters, and other air pollution control devices that 
may be used to meet the emission limits, as well as Method 22 visible 
emissions testing of the ash handling operations to be conducted during 
each compliance test. For existing HMIWI, use of CO CEMS would be an 
approved alternative, and specific language with requirements for CO 
CEMS is included in the proposed amendments. For new and existing 
HMIWI, use of PM, HCl, multi-metals, and Hg CEMS, and integrated 
sorbent trap Hg monitoring and dioxin monitoring (continuous sampling 
with periodic sample analysis) also would be approved alternatives, and 
specific language for those alternatives is included in the proposed 
amendments. HMIWI that install SNCR technology to reduce NOX 
emissions would be required to monitor the reagent (e.g., ammonia or 
urea) injection rate and secondary chamber temperature.
2. Electronic Data Submittal
    Compliance test data are necessary for conducting 5-year reviews of 
CAA section 129 standards, as well as for many other purposes including 
compliance determinations, development of emission factors, and 
determining annual emission rates. In conducting 5-year reviews, EPA 
has found it burdensome and time consuming to collect emission test 
data because of varied locations for data storage and varied data 
storage methods. One improvement that has occurred in recent years is 
the availability of stack test reports in electronic format as a 
replacement for burdensome paper copies.
    In this action, we are taking a step to improve data accessibility. 
HMIWI sources will have the option of submitting, to an EPA electronic 
data base, an electronic copy of annual stack

[[Page 72974]]

test reports. Data entry requires only access to the internet and is 
expected to be completed by the stack testing company as part of the 
work that they are contracted to perform. This option would become 
available as of December 31, 2011.
    Please note that the proposed option to submit source test data 
electronically to EPA would not require any additional performance 
testing. In addition, when a facility elects to submit performance test 
data to WebFIRE, there would be no additional requirements for data 
compilation; instead, we believe industry would greatly benefit from 
improved emissions factors, fewer information requests, and better 
regulation development as discussed below. Because the information that 
would be reported is already required in the existing test methods and 
is necessary to evaluate the conformance to the test method, facilities 
would already be collecting and compiling these data. One major 
advantage of electing to submit source test data through the Electronic 
Reporting Tool (ERT), which was developed with input from stack testing 
companies (who already collect and compile performance test data 
electronically), is that it would provide a standardized method to 
compile and store all the documentation required by this rule. Another 
important benefit of submitting these data to EPA at the time the 
source test is conducted is that it will substantially reduce the 
effort involved in data collection activities in the future. 
Specifically, because EPA would already have adequate source category 
data to conduct residual risk assessments or technology reviews, there 
would be fewer data collection requests (e.g., Section 114 letters). 
This results in a reduced burden on both affected facilities (in terms 
of reduced manpower to respond to data collection requests) and EPA (in 
terms of preparing and distributing data collection requests). Finally, 
another benefit of electing to submit these data to WebFIRE 
electronically is that these data will greatly improve the overall 
quality of the existing and new emissions factors by supplementing the 
pool of emissions test data upon which the emission factor is based and 
by ensuring that data are more representative of current industry 
operational procedures. A common complaint we hear from industry and 
regulators is that emissions factors are out-dated or not 
representative of a particular source category. Receiving most 
performance tests would ensure that emissions factors are updated and 
more accurate. In summary, receiving these test data already collected 
for other purposes and using them in the emissions factors development 
program will save industry, state/local/tribal agencies, and EPA time 
and money.
    The electronic data base that will be used is EPA's WebFIRE, which 
is a Web site accessible through EPA's TTN. The WebFIRE Web site was 
constructed to store emissions test data for use in developing emission 
factors. A description of the WebFIRE data base can be found at http://cfpub.epa.gov/oarweb/index.cfm?action=fire.main. The ERT will be able 
to transmit the electronic report through EPA's Central Data Exchange 
(CDX) network for storage in the WebFIRE data base. Although ERT is not 
the only electronic interface that can be used to submit source test 
data to the CDX for entry into WebFIRE, it makes submittal of data very 
straightforward and easy. A description of the ERT can be found at 
http://www.epa.gov/ttn/chief/ert/ert_tool.html. The ERT can be used to 
document the conduct of stack tests data for various pollutants 
including PM (EPA Method 5 of appendix A-3), SO2 (EPA Method 
6C of appendix A-4), NOX (EPA Method 7E of appendix A-4), CO 
(EPA Method 10 of appendix A-4), Cd (EPA Method 29 of appendix A-8), Pb 
(Method 29), Hg (Method 29), and HCl (EPA Method 26A of appendix A-8). 
Presently, the ERT does not handle dioxin/furan stack test data (EPA 
Method 23 of appendix A-7), but the tool is being upgraded to handle 
dioxin/furan stack test data. The ERT does not currently accept opacity 
data or CEMS data.
    EPA specifically requests comment on the utility of this electronic 
reporting option and the burden that owners and operators of HMIWI 
estimate would be associated with this option.
3. Miscellaneous Other Amendments
    The proposed amendments would revise the definition of ``Minimum 
secondary chamber temperature'' to read ``Minimum secondary chamber 
temperature means 90 percent of the highest 3-hour average secondary 
chamber temperature (taken, at a minimum, once every minute) measured 
during the most recent performance test demonstrating compliance with 
the PM, CO, and dioxin/furan emission limits.''
    The proposed amendments would require HMIWI sources to submit, 
along with each test report, a description, including sample 
calculations, of how operating parameters are established during the 
initial performance test and, if applicable, re-established during 
subsequent performance tests.

D. Proposed Implementation Schedule for Existing HMIWI

    Under the proposed amendments to the EG, and consistent with CAA 
section 129, revised State plans containing the revised existing source 
emission limits and other requirements in the proposed amendments would 
be due within 1 year after promulgation of the amendments. That is, 
revised State plans would have to be submitted to EPA 1 year after the 
date on which EPA promulgates revised standards.
    The proposed amendments to the EG then would allow existing HMIWI 
to demonstrate compliance with the amended standards within 3 years 
from the date of approval of a State plan or 5 years after promulgation 
of the revised standards, whichever is earlier. Consistent with CAA 
section 129, EPA expects States to require compliance as expeditiously 
as practicable. However, because we believe that many HMIWI will find 
it necessary to retrofit existing emission control equipment and/or 
install additional emission control equipment in order to meet the 
proposed revised limits, EPA anticipates that States may choose to 
provide the maximum compliance period allowed by CAA section 129(f)(2).
    In revising the emission limits in a State plan, a State would have 
two options. First, it could include both the current and the new 
emission limits in its revised State plan, which would allow a phased 
approach in applying the new limits. That is, the State plan would make 
it clear that the current emission limits remain in force and apply 
until the date the new existing source emission limits are effective 
(as defined in the State plan). States whose existing HMIWI do not find 
it necessary to improve their performance in order to meet the revised 
emission limits may want to consider a second approach where the State 
would insert the revised emission limits in place of the current 
emission limits, follow procedures in 40 CFR part 60, subpart B, and 
submit a revised State plan to EPA for approval. If the revised State 
plan contains only the revised emission limits (i.e., the current 
emission limits are not retained), then the revised emission limits 
must become effective immediately since the current limits would be 
removed from the State plan.
    EPA will revise the existing Federal plan to incorporate any 
changes to existing source emission limits and other requirements that 
EPA ultimately promulgates. The Federal plan applies to HMIWI in any 
State without an approved State plan. The proposed amendments to the EG 
would allow

[[Page 72975]]

existing HMIWI subject to the Federal plan up to 5 years after 
promulgation of the revised standards to demonstrate compliance with 
the amended standards.

E. Proposed Changes to the Applicability Date of the 1997 NSPS

    HMIWI would be treated differently under the amended standards, as 
proposed, than they were under the 1997 standards in terms of whether 
they are ``existing'' or ``new'' sources, and there would be new dates 
defining what are ``new'' sources and imposing compliance deadlines 
regarding any amended standards. Since under this proposed rule the EG 
for each pollutant and each subcategory would be more stringent than 
the NSPS as promulgated in 1997, all NSPS units, with respect to the 
standards as promulgated in 1997, would become ``existing'' sources 
under the proposed amended standards and would be required to meet the 
revised EG by the applicable compliance date for the revised 
guidelines. However, those sources would continue to be NSPS units 
subject to the standards as promulgated in 1997, until they become 
``existing'' sources under the amended standards. Units for which 
construction is commenced after the date of this proposal, or 
modification is commenced on or after the date 6 months after 
promulgation of the amended standards, would be ``new'' units subject 
to more stringent NSPS emission limits than units for which 
construction or modification was completed prior to those dates.
    Thus, under these specific proposed amendments, units that 
commenced construction after June 20, 1996, and on or before December 
1, 2008, or that are modified before the date 6 months after the date 
of promulgation of any revised final standards, would continue to be or 
would become subject to the 40 CFR part 60, subpart Ec NSPS emission 
limits that were promulgated in 1997 until the applicable compliance 
date for the revised EG, at which time those units would become 
``existing'' sources. Similarly, EG units under the 1997 rule would 
need to meet the revised EG by the applicable compliance date for the 
revised guidelines. HMIWI that commence construction after December 1, 
2008 or that are modified 6 months or more after the date of 
promulgation of any revised standards would have to meet the revised 
NSPS emission limits being added to the subpart Ec NSPS within 6 months 
after the promulgation date of the amendments or upon startup whichever 
is later.

IV. Rationale

A. Rationale for the Proposed Response to the Remand

    This action responds to the Court's remand by proposing a response 
that is based on data from currently operating HMIWI. This proposed 
action replaces the February 2007 proposal that responded to the remand 
based on data in the public record that supported the 1997 HMIWI 
rulemaking.
1. New HMIWI
    The Court raised three issues with regard to EPA's treatment of the 
MACT floor for new units and the achievable emission limitations. 
First, the Court asked EPA to explain why the floor was based on the 
highest emissions levels of the ``worst-performing'' unit employing the 
MACT technology rather than on the lowest observed emissions levels of 
the best performing unit using the MACT technology. (See Sierra Club v. 
EPA , 167 F.3d at 665.) Second, the Court requested further explanation 
of why EPA considered multiple units employing the MACT technology, 
rather than identify the single best-performing unit and basing the 
floor on that particular unit's performance with that technology. Id. 
Third, the Court requested further explanation of EPA's procedure for 
determining the achievable emission limitation from the available data, 
where EPA selected a numerical value somewhat higher than the highest 
observed data point. Id.
    The methodology used to determine the MACT floor and proposed 
revised emission limits for new HMIWI addresses the three issues raised 
by the Court. The methodology that supports this action does not base 
the MACT floor for new units on the highest emissions levels of the 
``worst-performing'' unit employing the MACT technology, nor does it 
consider multiple units employing the MACT technology. As explained in 
section III of this preamble, EPA relied on control technology 
performance as the sole indicator of unit performance in making MACT 
floor determinations that supported the 1997 rulemaking as well as the 
2007 proposal. However, based on recently obtained information, we now 
understand that factors other than the controls (e.g., waste mix and 
combustion conditions) affect HMIWI performance, and those emission 
reduction strategies must be accounted for in MACT floor 
determinations.
    In November 2007, we solicited information regarding waste 
segregation practices from nine entities that own or operate HMIWI. The 
nine entities chosen include various: (1) Types of facilities (i.e., 
hospitals, pharmaceutical operations, universities, and commercial 
operations), (2) incinerator sizes (i.e., large, medium, and small 
HMIWI), (3) incinerator ages (i.e., existing versus new), and (4) 
control techniques (e.g., dry control systems, wet control systems, and 
combustion controls). The responses to EPA's request for information 
indicate that waste segregation is a common practice at HMIWI 
facilities. Onsite waste segregation is practiced at the six hospitals, 
the pharmaceutical facility, and the university that responded to the 
questionnaire. Materials separated from the waste stream include 
batteries, fluorescent light bulbs, paper and/or cardboard, glass, and 
plastics. The commercial operations that dispose of waste generated 
offsite indicated in their responses that they encourage waste 
segregation from their clients through various efforts, including waste 
management plans, contract requirements, and waste acceptance 
protocols.
    a. Development of the MACT Floors and Proposed Emission Limits for 
New Units. Section 129(a)(2) of the CAA requires that EPA determine the 
emissions control that is achieved in practice by the ``best controlled 
similar unit'' when establishing the MACT floors for new units. Section 
129 requires EPA to develop standards based on emission levels already 
achieved in practice by one or more units. Thus, the MACT floor for new 
units is based on the ``emissions control'' that is attained by any 
emission reduction strategies at the best similar unit. The use of 
actual emissions levels in the MACT floor determinations supporting the 
proposed emission limits for new HMIWI accounts for all emission 
reduction strategies (i.e., add-on controls or other emission reducing 
measures) used by individual HMIWI.
    MACT floors were determined for each air pollutant for each 
subcategory of HMIWI using emissions data from the 57 currently 
operating HMIWI. As explained in section III of this preamble, we 
believe it is appropriate to re-propose a response to the remand based 
on data from the currently operating HMIWI given the uncertainty 
regarding the reliability of the regulatory limits for units operating 
in 1997 and the lack of other more reliable data for those units. We 
are retaining the large, medium, and small subcategories from the 1997 
rulemaking. We continue to consider these subcategories to be 
``classes'' of similar units in that all units within each ``class'' 
have been subject to the same regulatory requirements in the 1997 HMIWI 
standards. Thus, when

[[Page 72976]]

determining MACT floors and proposed emission limits using data for 
HMIWI within each ``class,'' we believe it is appropriate to continue 
to apply those emission limits to HMIWI of similar size (e.g., data 
from existing medium HMIWI would be used to determine emission limits 
for new medium HMIWI).
    Within each subcategory and for each pollutant, EPA determined the 
best performing HMIWI based on an examination of the average emissions 
levels for each HMIWI. That is, the MACT floor for each pollutant is 
based on one unit (i.e., the unit with the lowest average emissions 
level). MACT floors for each pollutant within each subcategory, with 
the exceptions of NOX and SO2 for small HMIWI, 
were based on this approach. We do not have any NOX or 
SO2 emissions data for the two small HMIWI because they have 
not tested for NOX or SO2 and are not required to 
do so by the 1997 HMIWI standards. Both small units use wet scrubbers. 
The best performing medium HMIWI with respect to NOX and 
SO2 use wet scrubbers as well. In both of these instances, 
the NOX and SO2 emission limits being proposed 
for new medium HMIWI also are being proposed for new small units. 
Although use of data from the medium units does not account for any 
control strategies in addition to the wet scrubbers being used by the 
small units, we believe that using the NOX and 
SO2 emission limits for new medium HMIWI as surrogate 
emission limits for new small HMIWI is the most appropriate way to 
address these two instances. A summary of the add-on control 
technologies used, in addition to any other emission reductions 
measures, by the single best performing HMIWI on a pollutant-specific 
basis within each subcategory is presented in Table 5 of this preamble.

                    Table 5--Summary of Add-On Control Technologies for Best Performing HMIWI
----------------------------------------------------------------------------------------------------------------
              Pollutant                      Large HMIWI              Medium HMIWI             Small HMIWI
----------------------------------------------------------------------------------------------------------------
HCl..................................  Wet scrubber...........  Wet scrubber...........  Wet scrubber.
CO...................................  Wet scrubber...........  Dry scrubber...........  Wet scrubber.
Pb...................................  Carbon adsorber/wet      Dry scrubber...........  Wet scrubber.
                                        scrubber.
Cd...................................  Carbon adsorber/wet      Dry scrubber...........  Wet scrubber.
                                        scrubber.
Hg...................................   Fabric filter.........  Wet scrubber...........  Wet scrubber.
PM...................................  Dry scrubber...........  Dry scrubber...........  Wet scrubber.
CDD/CDF..............................  Dry scrubber...........  Wet scrubber...........  Wet scrubber.
NOX..................................  Carbon adsorber/wet      Wet scrubber...........  Wet scrubber.
                                        scrubber.
SO2..................................  Dry scrubber...........  Wet scrubber...........  Wet scrubber.
----------------------------------------------------------------------------------------------------------------

    We then used emissions data for those best performing HMIWI to 
determine emission limits to be proposed, with an accounting for 
variability. EPA must exercise its judgment, based on an evaluation of 
the relevant factors and available data, to determine the level of 
emissions control that has been achieved by the best performing HMIWI 
under variable conditions. The Court has recognized that EPA may 
consider variability in estimating the degree of emission reduction 
achieved by best-performing sources and in setting MACT floors. See 
Mossville Envt'l Action Now v. EPA, 370 F.3d 1232, 1241-42 (D.C. Cir 
2004) (holding EPA may consider emission variability in estimating 
performance achieved by best-performing sources and may set the floor 
at level that best-performing source can expect to meet ``every day and 
under all operating conditions'').
    MACT and other technology-based standards are necessarily derived 
from short-term emissions test data, but such data are not 
representative of the range of operating conditions that the best 
performing facilities face on a day-to-day basis. In statistical terms, 
each test produces a limited data sample, not a complete enumeration of 
the available data for performance of the unit over a long period of 
time. (See Natrella, Experimental Statistics, National Bureau of 
Standards Handbook 91, chapter 1 (revised ed., 1966).) EPA, therefore, 
often needs to adjust the short-term data to account for these varying 
conditions. The types of variability that EPA attempts to account for 
include operational distinctions between and within tests at the same 
unit.
    ``Between-test variability'' can occur even where conditions appear 
to be the same when two or more tests are conducted. Variations in 
emissions may be caused by different settings for emissions testing 
equipment, different field teams conducting the testing, differences in 
sample handling, or different laboratories analyzing the results. 
Identifying an achieved emissions level needs to account for these 
differences between tests, in order for ``a uniform standard [to] be 
capable of being met under most adverse conditions which can reasonably 
be expected to recur[.]'' (See NLA I, 627 F.2d at 431, n. 46.) (See 
also Portland Cement Ass'n, 486 F.2d at 396 (noting industry point that 
``a single test offered a weak basis'' for inferring that plants could 
meet the standards).)
    The same types of differences leading to between-test variability 
also cause variations in results between various runs comprising a 
single test, or ``within-test variability.'' A single test at a unit 
usually includes at least three separate test runs. (See 40 CFR 
63.7(e)(3) (for MACT standards under section 112 of the CAA), and 40 
CFR 60.8(f) (for NSPS under CAA section 111).) Each data point should 
be viewed as a snapshot of actual performance. Along with an 
understanding of the factors that may affect performance, each of these 
snapshots gives information about the normal, and unavoidable, 
variation in emissions that would be expected to recur over time.
    To account for pollutant-specific variability at the best 
performing HMIWI, we used emissions data for each test run conducted by 
the best performing units. The amount of pollutant-specific test data 
for the single best performing HMIWI within each subcategory varies 
from 3 data points to 18 data points for large units; 3 data points to 
21 data points for medium units; and 3 data points to 12 data points 
for small units (excluding NOX and SO2 for which 
there is no data for small units). Given the limited amount of test 
data and the uncertainty regarding that short-term emissions test data, 
we determined use of the 99.9 percent upper confidence level (UCL) to 
be an appropriate method of estimating variability. The UCL represents 
the statistical likelihood that a value, in this case an emission value 
from the best performing source, will fall at or below the UCL value. 
The average (or sample mean) and sample standard deviation, which are 
two statistical measures calculated from the sample data, are used to 
calculate the UCL. The average

[[Page 72977]]

is the central value of a data set and the standard deviation is the 
common measure of the dispersion of the data set around the average. 
The 99.9 percent UCL is appropriate for use in this analysis because 
sources must meet the standards at all times, and as mentioned above, 
the limited amount of test data introduces a degree of uncertainty.
    To calculate the achieved emission limit, including variability, we 
used the equation: 99.9 percent UCL = mean + 3.09 * standard deviation. 
The mean and standard deviation are based on the test runs for the 
single best performing HMIWI for each pollutant. Accounting for 
variability using the 99.9 percent UCL means: ``For each pollutant, the 
performance of the best performing HMIWI, on average, is estimated to 
meet (i.e., not exceed) the emission limit 99.9 percent of the time.'' 
The emission values adjusted for variability are presented with two 
significant figures according to standard engineering practices, and 
these values represent the MACT floor-based emission limits being 
proposed. The second significant figure was rounded up to the next 
place value. EPA has, at times, presented emission limits with either 
two or three significant figures. For the low concentrations being 
proposed, two significant figures provide the appropriate precision. In 
all cases, the significant figure approach and associated rounding does 
not meaningfully change the proposed emission limits.
    After determining the MACT floor-based emission limits for each 
pollutant, EPA examined additional measures that could be taken to 
further reduce emissions, but as discussed in section IV.A.1.b of this 
preamble, EPA determined that these additional ``beyond-the-floor'' 
measures are not reasonable based on the high costs that would be 
incurred and the minimal additional emissions reductions that could be 
achieved. Therefore, all of the emission limits proposed in this action 
for new HMIWI are based on the MACT floor level of control.
    A summary of the pollutant-specific average emissions associated 
with the best performing HMIWI, the emission values adjusted for 
variability, and the emission limits being proposed for new HMIWI are 
presented in Table 6 of this preamble.

Table 6--Summary of Average Emission Values, Emission Values With Variability, and Emission Limits for New HMIWI
----------------------------------------------------------------------------------------------------------------
                                                                                 Emission value
                                                                     Average          with           Proposed
               Pollutant (units)                  Unit size \1\  emission value    variability    emission limit
                                                                       \2\             \2\             \2\
----------------------------------------------------------------------------------------------------------------
HCl (ppmv).....................................               L        0.190           0.745             0.75
                                                              M        0.46            1.73              1.8
                                                              S        1.03            4.47              4.5
CO (ppmv)......................................               L        0.87            2.88              2.9
                                                              M        0.68            1.86              1.9
                                                              S        2.27            8.18              8.2
Pb (mg/dscm)...................................               L        0.000296        0.000470          0.47
                                                              M        0.0040          0.0154            0.016
                                                              S        0.073           0.174             0.18
Cd (mg/dscm)...................................               L        0.000106        0.000116          0.12
                                                              M        0.00106         0.00807       \3\ 0.0071
                                                              S        0.0026          0.0115            0.012
Hg (mg/dscm)                                                  L        0.000695        0.000925          0.00093
                                                              M        0.00084         0.00200           0.0020
                                                              S        0.00292         0.00742           0.0075
PM (gr/dscf)...................................               L        0.00106         0.00471           0.0048
                                                              M        0.00294         0.00983           0.0099
                                                              S        0.0076          0.0167            0.017
CDD/CDF, total (ng/dscm).......................               L        0.152           0.594             0.60
                                                              M        0.097           0.344             0.35
                                                              S        2.89            8.28              8.3
CDD/CDF, TEQ (ng/dscm).........................               L        0.0038          0.0135            0.014
                                                              M        0.00291         0.00972       \3\ 0.0097
                                                              S        0.00453         0.00792           0.0080
NOX (ppmv).....................................               L       66.9           101.0             110
                                                              M       15.0            37.8              38
                                                              S   \4\ 15.0        \4\ 37.8          \4\ 38
SO2 (ppmv).....................................               L        0.46            1.82              1.9
                                                              M        0.336           0.773             0.78
                                                              S    \4\ 0.336       \4\ 0.773         \4\ 0.78
----------------------------------------------------------------------------------------------------------------
\1\ L = Large; M = Medium; S = Small.
\2\ All values are measured at 7 percent oxygen.
\3\ Proposed emission limit reflects the proposed emission limit for existing HMIWI.
\4\ Emission value reflects data from best performing medium HMIWI.

    Using the procedure described above for Cd and CDD/CDF, TEQ for new 
medium units would result in emission limits slightly less stringent 
than the proposed emission limits for existing medium units. In these 
two instances, the proposed emission limits have been lowered to 
reflect the Cd and CDD/CDF, TEQ emission limits for existing medium 
HMIWI. Cadmium has been lowered from 0.0081 mg/dscm to 0.0071 mg/dscm, 
and CDD/CDF, TEQ has been lowered from 0.0098 ng/dscm to 0.0097 ng/
dscm. These are not significant differences that we are adjusting for 
and the differences are functions of the emissions data and data 
operations (e.g., statistical procedures). The adjustments, however, 
are necessary such that the MACT standards for new sources are no less 
stringent than the MACT standards for existing sources.
    Table 7 of this preamble summarizes the emission limits promulgated 
in

[[Page 72978]]

1997, the emission limits proposed in 2007 in response to the Court's 
remand, and the emission limits being proposed in this action in 
response to the Court's remand for new HMIWI.

    Table 7--Summary of 1997 Promulgated Emission Limits, Emission Limits Proposed in 2007 in Response to the
          Remand, and Emission Limits Currently Being Proposed in Response to the Remand for New HMIWI
----------------------------------------------------------------------------------------------------------------
                                                                                                     Proposed
                                      Unit size                            Remand response limit      remand
          Pollutant (units)              \1\      Promulgated limit \2\    proposed in 2007 \2\   response limit
                                                                                                        \2\
----------------------------------------------------------------------------------------------------------------
HCl (ppmv)..........................          L  15 or 99% reduction....  15 or 99% reduction...         0.75
                                             M   15 or 99% reduction....  15 or 99% reduction...         1.8
                                             S   15 or 99% reduction....  15 or 99% reduction...         4.5
CO (ppmv)...........................          L  40.....................  25....................         2.9
                                             M   40.....................  25....................         1.9
                                             S   40.....................  25....................         8.2
Pb (mg/dscm)........................          L  0.07 or 98% reduction..  0.060 or 98% reduction         0.00047
                                             M   0.07 or 98% reduction..  0.060 or 98% reduction         0.016
                                             S   1.2 or 70% reduction...  0.64 or 71% reduction.         0.18
Cd (mg/dscm)........................          L  0.04 or 90% reduction..  0.030 or 93% reduction         0.00012
                                             M   0.04 or 90% reduction..  0.030 or 93% reduction         0.0071
                                             S   0.16 or 65% reduction..  0.060 or 74% reduction         0.012
Hg (mg/dscm)........................          L  0.55 or 85% reduction..  0.33 or 96% reduction.         0.00093
                                             M   0.55 or 85% reduction..  0.33 or 96% reduction.         0.0020
                                             S   0.55 or 85% reduction..  0.33 or 96% reduction.         0.0075
PM (gr/dscf)........................          L  0.015..................  0.0090................         0.0048
                                             M   0.015..................  0.0090................         0.0099
                                             S   0.03...................  0.018.................         0.017
CDD/CDF, total (ng/dscm)............          L  25.....................  20....................         0.60
                                             M   25.....................  20....................         0.35
                                             S   125....................  111...................         8.3
CDD/CDF, TEQ (ng/dscm)..............          L  0.6....................  0.53..................         0.014
                                             M   0.6....................  0.53..................         0.0097
                                             S   2.3....................  2.0...................         0.0080
NOX (ppmv)                                    L  250....................  212...................       110
                                          M, S   250....................  212...................        38
SO2 (ppmv)..........................          L  55.....................  28....................         1.9
                                          M, S   55.....................  28....................         0.78
----------------------------------------------------------------------------------------------------------------
\1\ L = Large; M = Medium; S = Small
\2\ All emission limits are measured at 7 percent oxygen.

    With one exception, the emission limits for new HMIWI being 
proposed in this action are more stringent than the emission limits 
proposed in 2007. The PM emission limit for new medium units being 
proposed in this action is slightly higher than the limit proposed in 
2007 (0.0090 gr/dscf versus 0.0099 gr/dscf). There are several 
potential causes for this difference in emission limits. There are 
three fewer medium HMIWI now, we have more emissions data to consider, 
and, most importantly, the methodology used to determine the MACT 
floors and emission limits in this action is different than in the 2007 
proposal.
    b. Consideration of Options More Stringent Than the MACT Floor for 
New HMIWI. After establishing the MACT floor emission level for each 
pollutant for new sources, EPA is required to look ``beyond-the-floor'' 
at additional measures that that could be taken to further reduce 
emissions, considering the cost of achieving such additional reduction 
and any non-air quality health and environmental impacts and energy 
requirements associated with imposing additional requirements. For each 
subcategory, EPA looked for control measures not anticipated to be 
required by the new source floors, and where options were identified, 
EPA estimated costs of the options for a model unit in each 
subcategory. For large units, SNCR was identified as a potential option 
to reduce NOX emissions. For this beyond-the-floor option, 
total NOX reductions for new large HMIWI are estimated at 
7,900 lb/yr at a cost of $110,000 per year. For medium units, the floor 
level of control includes all known measures for reducing emissions, 
and, consequently, no beyond-the-floor options were identified. For 
small units, addition of a dry injection fabric filter (DIFF) and 
activated carbon injection were identified as potential options to 
reduce emissions of lead, mercury, and dioxin. For this beyond-the-
floor option, the total cost for a new small HMIWI is $210,000, and EPA 
estimates emissions reductions of 0.45 lb/yr of lead, 0.0073 lb/yr of 
mercury, and 0.0091 grams/yr of total CDD/CDF. A memorandum entitled 
``Analysis of Beyond-the-Floor Options'' is included in the docket, and 
presents detailed results of the beyond-the-floor options, including 
estimates of reductions of air pollutants, costs, and secondary 
impacts. Considering the cost-effectiveness (for all pollutants) of the 
beyond-the-floor control measures, which averaged $27,000 per ton for 
large units and $940 million per ton for small units, EPA determined 
that the beyond-the-floor measures were not reasonable and, therefore, 
MACT for new units is based on the MACT floor level of control for all 
of the subcategories.
2. Existing Units
    The Court raised three specific concerns regarding EPA's approach 
for existing units in concluding that EPA had not adequately explained 
why the combination of regulatory and uncontrolled (i.e., combustion-
controlled) data provided a ``reasonable

[[Page 72979]]

estimate'' of HMIWI performance. First, the Court ruled that EPA did 
not discuss the possibility that HMIWI might be substantially 
overachieving the regulatory limits, which would result in those limits 
having little value in estimating the top 12 percent of HMIWI 
performance (167 F.3d at 663). Second, the Court found that EPA gave no 
reason for believing that HMIWI that were not subject to regulatory 
limits did not employ any emission controls. Without this, the Court 
concluded it was unable to assess the rationality in using 
``uncontrolled'' (i.e., combustion-controlled) data for the units that 
were not subject to regulatory requirements (167 F.3d at 664). Third, 
the Court held that even if the regulatory data was a good proxy for 
the better controlled units and there were shortfalls in reaching the 
necessary 12 percent, EPA did not explain why it was reasonable to use 
the highest of its test run data to make up the gap. Id.
    With regard to the Court's first concern, additional Court rulings 
issued after EPA's 2007 proposed response to the remand and public 
comments regarding the 2007 proposal gave us reason to revisit our MACT 
floor methodology, including the use of State regulations and State-
issued permits as a surrogate for estimated actual emission limitations 
achieved. A comparison between the regulatory limits and emissions test 
data in the 1997 record indicate that in some instances the emissions 
data was higher than or about the same as the regulatory limit, but in 
most instances the regulatory limit was higher than the emissions data. 
Thus, we are no longer confident that the regulatory limits in the 1997 
record provided a reasonable estimate of emission limitations for HMIWI 
operating at that time. Use of those particular regulatory limits as 
surrogates for actual emissions levels achieved also would not account 
for factors other than control technology that we have since learned in 
fact affect HMIWI performance. These uncertainties are two of the 
reasons that this action's proposed remand response is not based on 
information in the 1997 record but, rather, on data for the 57 
currently operating HMIWI. This is not to say that as a general matter 
it is inappropriate to use regulatory limits as a means to estimate the 
emissions limitations achieved by best performing sources. In some 
cases, it may be that such regulatory limits can be shown to reflect 
the emissions performance achieved by both add-on controls and other 
measures that affect such performance. In the case of HMIWI, however, 
the regulatory data used in support of the 1997 rule was not adequate 
for this, and cannot be used to support a MACT floor determination that 
comports with the requirements of the CAA as interpreted by the Court.
    The Court's second concern was that EPA had not made a finding that 
HMIWI that were not subject to regulatory requirements did not use 
emissions controls of any kind. The Court viewed such a finding as a 
necessary prerequisite to using uncontrolled (i.e., combustion-
controlled) data for units not subject to regulatory requirements. EPA 
continues to view the 1997 record as showing that most HMIWI were not 
at that time equipped with add-on air pollution control. Therefore, the 
use of uncontrolled emission estimates for units for which where there 
was no indication air pollution control technology was in place and 
applicable regulatory limits allowed higher levels of emissions than 
our combustion-controlled emissions values reflected, was warranted for 
purposes of identifying emissions levels achieved by combustion-control 
alone. However, it did not necessarily reflect emissions levels as 
influenced by measures other than the use (or lack of use) of add-on 
control technology, such as waste segregation. EPA's decision to use 
data for the 57 currently operating HMIWI to re-propose a response to 
the Court remand fully addresses the Court's concern, in that the data 
reflect all measures, add-on control technology or otherwise, that 
affect the emissions levels achieved by the best performing sources. 
For each HMIWI, we have detailed information regarding control 
technologies used, as well as actual emissions data resulting from the 
use of those technologies and any other measures.
    The Court's third concern regarded our use of the highest of the 
test run data to reflect uncontrolled (i.e., combustion-controlled) 
emissions in cases where regulatory data did not comprise the necessary 
12 percent of best performing sources. As described below, the 
methodology that supports this action does not continue that approach.
    a. Development of the MACT Floors and Proposed Emission Limits for 
Existing Units. When establishing the MACT floors for existing units, 
section 129(a)(2) of the CAA requires that EPA determine the average 
emissions limitation achieved by the ``best performing 12 percent of 
units'' in a source category. Thus, EPA must determine some measure of 
the average emissions limitation achieved by the best performing 12 
percent of HMIWI within each subcategory for each pollutant to be 
regulated. The MACT floor for existing units is based on the level of 
``emissions control'' that is attained by any emission reduction 
strategies used by the best performing 12 percent of HMIWI. As is the 
case with new HMIWI, the use of actual emissions levels in the MACT 
floor determinations supporting the proposed emission limits for 
existing HMIWI accounts for all emission reduction strategies (i.e., 
add-on controls or other emission reducing measures) used by individual 
HMIWI.
    We are retaining the large, medium, small, and small rural 
subcategories from the 1997 rulemaking. As previously explained, we 
continue to consider these subcategories to be ``classes'' of similar 
units in that all units within each ``class'' have been subject to the 
same regulatory requirements in the 1997 HMIWI standards. Thus, we 
believe it is appropriate to determine MACT floors and proposed 
emission limits using data for HMIWI within each ``class'' and to then 
apply those revised emission limits to those same HMIWI within each 
``class.''
    Within each subcategory and for each pollutant, EPA determined the 
best performing 12 percent of HMIWI based on an examination of average 
emissions levels for each HMIWI. (Note that section 129 of the CAA does 
not include the section 112 text regarding the MACT floor for existing 
sources being based on the best performing 5 sources where there are 
fewer than 30 sources in the category or subcategory.) In determining 
how many HMIWI comprise the best performing 12 percent, we rounded up 
the number of sources to the next whole number. This ensures that the 
CAA section 129 requirement to consider the best performing 12 percent 
of sources is met, as not rounding up would result in a number of 
sources that would be less than 12 percent. Further, rounding of a 
sample size is a common sampling technique (Cochran, William G. 
Sampling Techniques. Third Edition. John Wiley & Sons, 1977. page 76 
and pages 72-87).
    Table 8 of this preamble presents the total number of HMIWI in each 
subcategory and the number of HMIWI that comprise the best performing 
12 percent of units (i.e., the MACT floor pool) for each subcategory.

[[Page 72980]]



 Table 8--Number of HMIWI That Are in Each Subcategory and That Comprise
                             the MACT Floors
------------------------------------------------------------------------
                                                             Number of
                Unit size                  Total number    HMIWI in MACT
                                             of HMIWI       floor pool
------------------------------------------------------------------------
Large...................................              36               5
Medium..................................              17               3
Small...................................               2               1
Small Rural.............................               2               1
------------------------------------------------------------------------

    The next step in the MACT analysis for existing HMIWI was to 
determine the average emission limitation achieved by the best-
performing 12 percent of existing sources. Our general approach to 
identifying the average emission limitation has been to use a measure 
of central tendency, such as the arithmetic mean or the median. First, 
unit average emissions for each pollutant within each subcategory were 
ranked from lowest to highest. Then, a MACT floor emissions level for 
each pollutant was identified based on the arithmetic mean of the 
emissions values for the best performing 12 percent of HMIWI within 
each subcategory. MACT floors for each pollutant within each 
subcategory, with the exceptions of NOX and SO2 
for small HMIWI, were based on this approach. As previously explained, 
we do not have any NOX or SO2 emissions data for 
the two small HMIWI because they have not tested for NOX or 
SO2 and are not required to do so by the 1997 HMIWI 
standards. Both small units use wet scrubbers, as do the best 
performing 12 percent of medium HMIWI (3 units) with respect to 
NOX and SO2. In both of these instances, the 
NOX and SO2 emission limits being proposed for 
existing medium HMIWI also are being proposed for existing small units, 
since they employ the same emissions control technology, and we do not 
have information suggesting that the small units are employing other 
measures that would further affect their emissions performance. A 
summary of the various add-on control technologies used, in addition to 
any other emission reduction measures, by the best performing 12 
percent HMIWI on a pollutant-specific basis for existing large and 
medium HMIWI is presented in Table 9 of this preamble.

 Table 9--Summary of Add-On Control Technologies for Best Performing 12
                    Percent of Large and Medium HMIWI
------------------------------------------------------------------------
            Pollutant                 Large HMIWI        Medium HMIWI
------------------------------------------------------------------------
HCl.............................  wet scrubber......  wet scrubber
CO..............................  wet scrubber; dry   dry scrubber; wet
                                   scrubber; fabric    scrubber
                                   filter.
Pb..............................  carbon adsorber/    dry scrubber
                                   wet scrubber; dry
                                   scrubber.
Cd..............................  carbon adsorber/    dry scrubber
                                   wet scrubber; dry
                                   scrubber.
Hg..............................  fabric filter; wet  wet scrubber
                                   scrubber; carbon
                                   adsorber/wet
                                   scrubber; dry
                                   scrubber.
PM..............................  dry scrubber; dry   dry scrubber; wet
                                   scrubber/wet        scrubber
                                   scrubber; fabric
                                   filter.
CDD/CDF.........................  dry scrubber;       wet scrubber
                                   carbon adsorber/
                                   wet scrubber; wet
                                   scrubber.
NOX.............................  carbon adsorber/    wet scrubber
                                   wet scrubber; wet
                                   scrubber; dry
                                   scrubber.
SO2.............................  dry scrubber; wet   wet scrubber
                                   scrubber.
------------------------------------------------------------------------

    Table 10 of this preamble presents the same information for 
existing small HMIWI and for existing small HMIWI meeting the rural 
criteria.

 Table 10--Summary of Add-On Control Technologies for Best Performing 12
                 Percent of Small and Small Rural HMIWI
------------------------------------------------------------------------
            Pollutant                 Small HMIWI      Small Rural HMIWI
------------------------------------------------------------------------
HCl.............................  wet scrubber......  combustion control
CO..............................  wet scrubber......  combustion control
Pb..............................  wet scrubber......  combustion control
Cd..............................  wet scrubber......  combustion control
Hg..............................  wet scrubber......  combustion control
PM..............................  wet scrubber......  combustion control
CDD/CDF.........................  wet scrubber......  combustion control
NOX.............................  wet scrubber......  combustion control
SO2.............................  wet scrubber......  combustion control
------------------------------------------------------------------------

    We then used emissions data for those best performing 12 percent 
HMIWI to determine emission limits to be proposed, with an accounting 
for variability. As previously explained in this preamble with respect 
to development of emission limits for new HMIWI, EPA must exercise its 
judgment, based on an evaluation of the relevant factors and available 
data, to determine the level of emissions control that can be 
customarily achieved by the best performing HMIWI under variable 
conditions. To account for pollutant-specific variability at the best 
performing HMIWI, we used emissions data for each test run conducted by 
the best performing 12 percent of HMIWI within each subcategory. The 
amount of pollutant-specific test data for the best performing 12 
percent HMIWI within each subcategory varies from 33 data points to 60 
data points for large units; 9 data points to 70 data points for medium 
units; 3 data points to 12 data points for small units (excluding 
NOX and SO2 for which there is no data for small 
units); and 3 data points to 4 data points for small rural units. 
Similar to the analyses for new HMIWI, we determined use of the 99.9 
percent UCL to be an appropriate method of estimating variability. The 
UCL represents the statistical likelihood that a value, in this case an 
emission value from the average source in the best performing 12 
percent of sources, will fall at or below the UCL value. The 99.9 
percent UCL is appropriate for use in this analysis because sources 
must meet the standards at all times, and the limited amount of test 
data introduces a degree of uncertainty. To calculate the emission 
limit, including variability, we used the equation: 99.9 percent UCL = 
mean + 3.09 * standard deviation. The mean and standard deviation are 
based on the test runs for the best performing 12 percent HMIWI for 
each pollutant. Accounting for variability using the 99.9 percent UCL 
means: ``For each pollutant, the performance of the average HMIWI 
within the best performing 12 percent HMIWI is estimated to meet (i.e., 
not exceed) the emission limit 99.9 percent of the time.'' As described 
for new HMIWI, the emission values adjusted for variability are 
presented with two significant figures. After determining the MACT 
floor-based emission limits for each pollutant, EPA examined additional 
measures that could be taken to further reduce emissions. Table 11 of 
this preamble presents a summary of the emissions reductions and costs 
associated with the beyond-the-floor options for each subcategory.

[[Page 72981]]



             Table 11--Summary of Beyond-the-Floor Emissions Reductions and Costs for Existing HMIWI
----------------------------------------------------------------------------------------------------------------
                                                                                                    Small rural
                                                    Large HMIWI    Medium HMIWI     Small HMIWI        HMIWI
                    Pollutant                       reductions,     reductions,     Reductions,     reductions,
                                                      lb/yr a         lb/yr a         lb/yr a         lb/yr a
----------------------------------------------------------------------------------------------------------------
HCl.............................................           8,000             110               0             570
CO..............................................           1,900             160              57               0
Pb..............................................              47            0.23             3.4            0.32
Cd..............................................              11               0               0            0.18
Hg..............................................              39             0.8            0.12               0
PM..............................................           5,400           1,100             180               0
Total CDD/CDF...................................             1.9           0.032           0.033            0.21
TEQ.............................................           0.027               0               0          0.0047
NOX.............................................         280,000          30,000           3,400             190
SO2.............................................           6,700           1,000             140              58
Total...........................................         300,000          32,000           3,800             820
BTF Cost........................................     $14,000,000      $1,200,000        $500,000        $390,000
----------------------------------------------------------------------------------------------------------------
a Sums of individual numbers may not equal totals due to internal rounding. CDD/CDF and TEQ emissions in grams
  per year.

    As discussed in section IV.A.2.b of this preamble, EPA determined 
that these additional beyond-the-floor measures are not reasonable 
based on the high costs that would be incurred and the minimal 
additional emissions reductions that could be achieved. Therefore, all 
of the emission limits proposed in this action for existing HMIWI are 
based on the MACT floor level of control.
    A summary of the pollutant-specific average emissions associated 
with the best performing 12 percent HMIWI, the emission values adjusted 
for variability, and the emission limits being proposed for existing 
HMIWI are presented in Table 12 of this preamble.

Table 12--Summary of Average Emission Values, Emission Values With Variability, and Emission Limits for Existing
                                                      HMIWI
----------------------------------------------------------------------------------------------------------------
                                                                     Average      Emission value     Proposed
              Pollutant  (units)                  Unit size\1\      emission           with       emission limit
                                                                    value\2\      variability\2\        \2\
----------------------------------------------------------------------------------------------------------------
HCl (ppmv)....................................                L         0.47             2.38             2.4
                                                             M          0.60             2.50             2.5
                                                             S          1.03             4.47             4.5
                                                            SR        135              432              440
CO (ppmv).....................................                L         1.03             3.88             3.9
                                                             M          0.95             2.96             3.0
                                                             S          2.27             8.18             8.2
                                                            SR          5.4             11.9             12
Pb (mg/dscm)..................................                L         0.0032           0.0130           0.013
                                                             M          0.0041           0.0163           0.017
                                                             S          0.073            0.174            0.18
                                                            SR          0.226            0.346            0.35
Cd (mg/dscm)..................................                L         0.00077          0.00408          0.0041
                                                             M          0.00116          0.00701          0.0071
                                                             S          0.0026           0.0115           0.012
                                                            SR          0.0380           0.0671           0.068
Hg (mg/dscm)..................................                L         0.00210          0.00943          0.0095
                                                             M          0.00136          0.00782          0.0079
                                                             S          0.00292          0.00742          0.0075
                                                            SR          0.00158          0.00391          0.0040
PM (gr/dscf)..................................                L         0.00143          0.00559          0.0056
                                                             M          0.0036           0.0119           0.012
                                                             S          0.0076           0.0167           0.017
                                                            SR          0.0128           0.0294           0.030
CDD/CDF, total (ng/dscm)......................                L         0.37             1.54             1.6
                                                             M          0.158            0.621            0.63
                                                             S          2.89             8.28             8.3
                                                            SR         30              122              130
CDD/CDF, TEQ (ng/dscm)........................                L         0.0074           0.0282           0.029
                                                             M          0.00306          0.00970          0.0097
                                                             S          0.00453          0.00792          0.0080
                                                            SR          0.62             2.59             2.6
NOX (ppmv)....................................                L        73              135              140
                                                             M         63              193              200
                                                             S         63          \3\ 193          \3\ 200
                                                            SR         95              110              110
SO2 (ppmv)....................................                L         0.80             2.71             2.8
                                                             M          0.90             2.79             2.8
                                                             S          0.90         \3\ 2.8          \3\ 2.8

[[Page 72982]]

 
                                                            SR         22.6             42.7            43
----------------------------------------------------------------------------------------------------------------
\1\ L = Large; M = Medium; S = Small; SR = Small Rural.
\2\ All values are measured at 7 percent oxygen.
\3\ Emission value reflects data from best performing medium HMIWI.

    Table 13 of this preamble summarizes the emission limits 
promulgated in 1997, the emission limits proposed in 2007 in response 
to the Court's remand, and the emission limits being proposed in this 
action in response to the Court's remand for existing HMIWI.

   Table 13--Summary of 1997 Promulgated Emission Limits, Emission Limits Proposed in 2007 in Response to the
        Remand, and Emission Limits Currently Being Proposed in Response to the Remand for Existing HMIWI
----------------------------------------------------------------------------------------------------------------
                                                                                                     Proposed
                                                                               Remand response        remand
        Pollutant  (units)            Unit size\1\   Promulgated limit \2\    limit proposed in   response limit
                                                                                  2007 \2\              \2\
----------------------------------------------------------------------------------------------------------------
HC1 (ppmv)........................                L  100 or 93% reduction.  78 or 93% reduction.          2.4
                                                 M   100 or 93% reduction.  78 or 93% reduction.          2.5
                                                 S   100 or 93% reduction.  78 or 93% reduction.          4.5
                                                SR   3,100................  3,100...............        440
CO (ppmv).........................                L   40..................  40..................          3.9
                                                 M   40...................  40..................          3.0
                                                 S   40...................  40..................          8.2
                                                SR   40...................  40..................         12
Pb (mg/dscm)......................                L  1.2 or 70% reduction.  0.78 or 71%                   0.013
                                                                             reduction.
                                                 M   1.2 or 70% reduction.  0.78 or 71%                   0.017
                                                                             reduction.
                                                 S   1.2 or 70% reduction.  0.78 or 71%                   0.18
                                                                             reduction.
                                                SR   10...................  8.9.................          0.35
Cd (mg/dscm)......................                L  0.16 or 65% reduction  0.11 or 66%                   0.0041
                                                                             reduction.
                                                 M   0.16 or 65% reduction  0.11 or 66%                   0.0071
                                                                             reduction.
                                                 S   0.16 or 65% reduction  0.11 or 66%                   0.012
                                                                             reduction.
                                                SR   4....................  4...................          0.068
Hg (mg/dscm)......................                L  0.55 or 85% reduction  0.55 or 87%                   0.0095
                                                                             reduction.
                                                 M   0.55 or 85% reduction  0.55 or 87%                   0.0079
                                                                             reduction.
                                                 S   0.55 or 85% reduction  0.55 or 87%                   0.0075
                                                                             reduction.
                                                SR   7.5..................  6.6.................          0.0040
PM (gr/dscf)......................                L  0.015................  0.015...............          0.0056
                                                 M   0.03.................  0.030...............          0.012
                                                 S   0.05.................  0.050...............          0.017
                                                SR   0.086................  0.086...............          0.030
CDD/CDF, total (ng/dscm)..........                L  125..................  115.................          1.6
                                                 M   125..................  115.................          0.63
                                                 S   125..................  115.................          8.3
                                                SR   800..................  800.................        130
CDD/CDF, TEQ (ng/dscm)............                L  2.3..................  2.2.................          0.029
                                                 M   2.3..................  2.2.................          0.0097
                                                 S   2.3..................  2.2.................          0.0080
                                                SR   15...................  15..................          2.6
NOX (ppmv)........................                L  250..................  250.................        140
                                              M, S   250..................  250.................        200
                                                SR   250..................  250.................        110
SO2 (ppmv)........................                L, 55...................  55..................          2.8
                                                SR   55...................  55..................        43
----------------------------------------------------------------------------------------------------------------
\1\ L = Large; M = Medium; S = Small; SR = Small Rural.
\2\ All emission limits are measured at 7 percent oxygen.

    b. Consideration of Options More Stringent than the MACT Floor for 
Existing HMIWI. As discussed earlier regarding new HMIWI, after 
establishing the MACT floor emission level for each pollutant for 
existing sources, EPA is required to look ``beyond-the-floor'' at 
additional measures that could be taken to further reduce emissions. 
The beyond-the-floor options for large and medium HMIWI included the 
addition of wet scrubber or DIFF controls (for units not already 
projected to be operating both types of controls based on the MACT 
floor requirements); replacement of DIFF controls; increased activated 
carbon, sodium bicarbonate, and/or caustic usage; combustion 
improvements; and addition of SNCR. For some units, no beyond-the-floor 
measures were identified because we

[[Page 72983]]

estimated that to achieve the MACT floor limits, those units would have 
to use all available add-on controls and other control measures. The 
beyond-the-floor options for small units included addition of DIFF 
controls, increased activated carbon and/or caustic usage, combustion 
improvements, and addition of SNCR. EPA analyzed the additional air 
pollutant reductions, costs, and secondary impacts for the beyond-the-
floor options, and detailed information on the analyses are available 
in a memorandum entitled ``Analysis of Beyond-the Floor Options'' that 
is included in the docket. Considering the cost-effectiveness (for all 
pollutants) of the beyond-the-floor control measures, which averaged 
$167,000 per ton for large units, $118,000 per ton for medium units, 
$325,000 for small units, and $1.3 million per ton for small rural 
units, EPA determined that the beyond-the-floor measures were not 
reasonable and, therefore, MACT is based on the floor level of control 
for all of the subcategories.
3. Opacity Limits for New and Existing Units
    EPA also is proposing a revised opacity standard for new and 
existing HMIWI as part of responding to the Court's remand. The 1997 
standards require that opacity testing be conducted according to EPA 
Test Method 9 of appendix A-4 of 40 CFR part 60. Method 9 specifies 
that opacity shall be determined as an average of 24 consecutive 
observations recorded at 15-second intervals (i.e., 6-minute block 
average). Method 9 also specifies that opacity observations shall be 
recorded to the nearest 5 percent at 15-second intervals. The opacity 
data that we have is in terms of averages rather than single opacity 
readings. Based on these averages alone, without any accounting for 
variability, the MACT floor for new units, as well as existing units, 
would be 0 percent. We then considered how to appropriately account for 
variability given the differences in opacity testing versus testing for 
the 9 regulated pollutants. We have continuous opacity monitoring 
system (COMS) data for an HMIWI that is in the MACT floor pool for PM 
for existing medium units. In that instance, we can determine the 
single highest opacity reading. Because the level of opacity can be 
impacted by the amount, type, and particle characteristics of PM in the 
gas stream, as well as process operation, we believe that using the 
highest opacity reading from one of the best performing HMIWI with 
respect to PM is an appropriate method for determining the opacity 
level that has been achieved under variable conditions. While opacity 
may not be a reliable indicator of short-term mass emissions, opacity 
can serve as an indicator of and provide qualitative information on the 
operation and maintenance of particulate control equipment (Current 
Knowledge of Particulate Matter (PM) Continuous Emission Monitoring, 
EPA-454/R-00-039, September 2000). When PM emissions control devices 
are operated and maintained in the same manner as during successful PM 
emissions testing, our expectation is that PM emissions from those 
sources meet the standards. Therefore, as a continuous check on proper 
operation and maintenance of PM control devices, opacity can serve as 
an appropriate surrogate for PM emissions. The single highest COMS 
reading for the HMIWI that is in the MACT floor pool for PM is 1.1 
percent. EPA commonly sets opacity standards based on whole numbers, 
and rounding down would cause the unit upon which the standard is based 
to have demonstrated performance at a level that would not meet the 
standard. Thus, we rounded up and are proposing a MACT-floor based 
opacity limit of 2 percent for both new and existing HMIWI.
4. Percent Reduction Limits for New and Existing Units
    The 1997 standards included percent reduction limits for HCl, Pb, 
Cd, and Hg for new and existing HMIWI. For those pollutants, sources 
have had the option of demonstrating compliance by meeting the emission 
limits (expressed as emissions rates) or the percent reduction limits. 
For the 1997 rule, the percent reduction limits were developed using 
the pollutant concentrations at the inlet and outlet of a control 
device and reflected only the efficiency of the control device in 
reducing specific pollutants. Because, as previously explained in this 
preamble, factors other than control technology affect pollutant 
emissions from HMIWI, and because we did not take these factors into 
account when we set the 1997 standards based on percent reduction, we 
now believe it is inappropriate to provide in this rule percent 
reduction limits based only on control technology performance. 
Moreover, not many HMIWI determined the efficiency of their control 
devices, and none of the HMIWI used the percent reduction limits to 
demonstrate compliance with the 1997 rule. None of the HMIWI 
demonstrated compliance with the Pb, Cd, or Hg percent reduction limits 
or even conducted the testing necessary to determine the efficiency of 
their control devices. No medium or small HMIWI demonstrated compliance 
with the HCl percent reduction limits or conducted control device inlet 
and outlet testing. Eight large HMIWI tested for HCl at their control 
device inlets and outlets, but all of those units were in compliance 
with the HCl emission limit and, therefore, didn't need to rely on 
their control technology efficiency calculations to show that, 
alternatively, they were in compliance with the HCl percent reduction 
limit. None of these eight large HMIWI are among the best performing 12 
percent of large units for HCl (i.e., HCl emissions based only on 
control technology outlet testing). Therefore, this action does not 
propose revised percent reduction limits, and proposes to eliminate the 
continued use of the 1997 percent reduction limits after the compliance 
date of the proposed revised emission limits.

B. Rationale for the Proposed CAA Section 129(a)(5) 5-Year Review 
Response

    Earlier in today's notice, we explained that section 129(a)(5) 
provides the Agency with broad discretion to revise MACT standards for 
incinerators.
    As we explained, we do not interpret section 129(a)(5) as requiring 
that EPA in each round of review re-calculate MACT floors, and we 
regard the D.C. Circuit's recent ruling in NRDC and LEAN v. EPA, in 
which the Court held that the similar review requirement in section 
112(d)(6) does not require a MACT floor re-calculation, as supporting 
our view. Nevertheless, given the unique facts of this rulemaking, in 
which due to issues with respect to the 1997 rulemaking record we have 
had to re-calculate MACT floors based on more recent data in response 
to the remand at a point in time following the statutory deadline for 
conducting the section 129(a)(5) review, it may appear that we are 
performing the ``MACT-on-MACT'' review that we believe is not 
statutorily required by section 129(a)(5). We stress that our proposed 
revised standards are the result of what we now think is necessary to 
satisfy our initial duties under section 129(a)(2) to have set MACT 
limits for HMIWI, in response to the Court's remand. Our action today 
does not reflect an independent MACT floor reassessment performed only 
under section 129(a)(5). However, since today's proposed revised 
standards do reflect the emissions levels currently achieved in 
practice by the best performing HMIWI, and we have no other information 
that would cause us to reach different conclusions were a section 
129(a)(5) review to be conducted in isolation, we believe that this

[[Page 72984]]

rulemaking responding to the Court's remand, based on the most current 
HMIWI emissions information, will necessarily discharge our instant 
duty under section 129(a)(5) to review and revise the current 
standards.
    In performing future 5-year reviews of the HMIWI standards, we do 
not intend to recalculate new MACT floors, but will instead propose to 
revise the emission limits to reflect the actual performance of the 
emission reduction techniques that formed the basis of MACT, consistent 
with our interpretation as presented earlier in today's notice. We 
believe this approach reflects the most reasonable interpretation of 
the review requirement of CAA section 129(a)(5), and is consistent with 
how we have interpreted the similar review requirement of CAA section 
112(d)(6) regarding MACT standards promulgated under section 112.
    We believe that this action's proposed remand response fulfills our 
obligations regarding the first 5-year review of the HMIWI standards 
because the revised MACT floor determinations and emission limits 
associated with the remand response are based on performance data for 
the 57 currently operating HMIWI that are subject to the 1997 standards 
and account for all non-technology factors that affect HMIWI 
performance. The proposed remand response also addresses whether new 
technologies and processes and improvements in practices have been 
demonstrated at HMIWI subject to the 1997 standards. Table 14 of this 
preamble provides a comparison between the emission limits promulgated 
in 1997, the emission limits proposed in 2007 in response to the 5-year 
review requirement, and the emission limits being proposed in this 
action in response to the Court's remand for new HMIWI.

  Table 14--Summary of 1997 Promulgated Emission Limits, Emission Limits Proposed in 2007 in Response to the 5-
  Year Review Requirement, and Emission Limits Currently Being Proposed in Response to the Remand for New HMIWI
----------------------------------------------------------------------------------------------------------------
                                                                                                     Proposed
                                      Unit size                             5-Year review limit       remand
         Pollutant  (units)              \1\      Promulgated limit \2\    proposed in 2007 \2\   response limit
                                                                                                        \2\
----------------------------------------------------------------------------------------------------------------
HCl (ppmv)..........................          L  15 or 99% reduction....  15 or 99% reduction...         0.75
                                             M   15 or 99% reduction....  15 or 99% reduction...         1.8
                                             S   15 or 99% reduction....  15 or 99% reduction...         4.5
CO (ppmv)...........................          L  40.....................  25....................         2.9
                                             M   40.....................  25....................         1.9
                                             S   40.....................  25....................         8.2
Pb (mg/dscm)........................          L  0.07 or 98% reduction..  0.060 or 99% reduction         0.00047
                                             M   0.07 or 98% reduction..  0.060 or 99% reduction         0.016
                                             S   1.2 or 70% reduction...  0.64 or 71% reduction.         0.18
Cd (mg/dscm)........................          L  0.04 or 90% reduction..  0.0050 or 99%                  0.00012
                                                                           reduction.
                                             M   0.04 or 90% reduction..  0.0050 or 99%                  0.0071
                                                                           reduction.
                                             S   0.16 or 65% reduction..  0.060 or 74% reduction         0.012
Hg (mg/dscm)........................          L  0.55 or 85% reduction..  0.19 or 96% reduction.         0.00093
                                             M   0.55 or 85% reduction..  0.19 or 96% reduction.         0.0020
                                             S   0.55 or 85% reduction..  0.33 or 96% reduction.         0.0075
PM (gr/dscf)........................          L  0.015..................  0.0090................         0.0048
                                             M   0.015..................  0.0090................         0.0099
                                             S   0.03...................  0.018.................         0.017
CDD/CDF, total (ng/dscm)............          L  25.....................  16....................         0.60
                                             M   25.....................  16....................         0.35
                                             S   125....................  111...................         8.3
CDD/CDF, TEQ (ng/dscm)..............          L  0.6....................  0.21..................         0.014
                                             M   0.6....................  0.21..................         0.0097
                                             S   2.3....................  2.0...................         0.0080
NOX (ppmv)..........................          L  250....................  212...................       110
                                          M, S   250....................  212...................        38
SO2 (ppmv)..........................          L  55.....................  21....................         1.9
                                             M   55.....................  21....................         0.78
                                             S   55.....................  28....................         0.78
----------------------------------------------------------------------------------------------------------------
\1\ L = Large; M = Medium; S = Small.
\2\ All emission limits are measured at 7 percent oxygen.

    With two exceptions, the emission limits for new HMIWI being 
proposed in this action are more stringent than the 5-year review 
emission limits proposed in 2007. The Cd and PM emission limits for new 
medium units being proposed in this action are higher than the 5-year 
review limits proposed in 2007 (0.0050 mg/dscm versus 0.0081 mg/dscm 
for Cd; and 0.0090 gr/dscf versus 0.0099 gr/dscf for PM). As explained 
with respect to PM emissions in Table 7 of this preamble, there are 
several potential causes for these differences in emission limits. 
There are three fewer medium HMIWI now and we have more emissions data 
to consider.
    Table 15 of this preamble provides a comparison between the 
emission limits promulgated in 1997, the emission limits proposed in 
2007 in response to the 5-year review requirement, and the emission 
limits being proposed in this action in response to the Court's remand 
for existing HMIWI.

[[Page 72985]]



  Table 15--Summary of 1997 Promulgated Emission Limits, Emission Limits Proposed in 2007 in Response to the 5-
  Year Review Requirement, and Emission Limits Currently Being Proposed in Response to the Remand for Existing
                                                      HMIWI
----------------------------------------------------------------------------------------------------------------
                                                                                                     Proposed
                                         Unit                               5-Year review limit       remand
         Pollutant  (units)            size\1\    Promulgated limit \2\    proposed in 2007 \2\   response limit
                                                                                                        \2\
----------------------------------------------------------------------------------------------------------------
HCl (ppmv)..........................          L  100 or 93% reduction...  51 or 94% reduction...         2.4
                                             M   100 or 93% reduction...  51 or 94% reduction...         2.5
                                             S   100 or 93% reduction...  51 or 94% reduction...         4.5
                                            SR   3,100..................  398...................       440
CO (ppmv)...........................          L  40.....................  25....................         3.9
                                             M   40.....................  25....................         3.0
                                             S   40.....................  25....................         8.2
                                            SR   40.....................  25....................        12
Pb (mg/dscm)........................          L  1.2 or 70% reduction...  0.64 or 71% reduction.         0.013
                                             M   1.2 or 70% reduction...  0.64 or 71% reduction.         0.017
                                             S   1.2 or 70% reduction...  0.64 or 71% reduction.         0.18
                                            SR   10.....................  0.60..................         0.35
Cd (mg/dscm)........................          L  0.16 or 65% reduction..  0.060 or 74% reduction         0.0041
                                             M   0.16 or 65% reduction..  0.060 or 74% reduction         0.0071
                                             S   0.16 or 65% reduction..  0.060 or 74% reduction         0.012
                                            SR   4......................  0.050.................         0.068
Hg (mg/dscm)........................          L  0.55 or 85% reduction..  0.33 or 96% reduction.         0.0095
                                             M   0.55 or 85% reduction..  0.33 or 96% reduction.         0.0079
                                             S   0.55 or 85% reduction..  0.33 or 96% reduction.         0.0075
                                            SR   7.5....................  0.25..................         0.0040
PM (gr/dscf)........................          L  0.015..................  0.015.................         0.0056
                                             M   0.03...................  0.030.................         0.012
                                             S   0.05...................  0.030.................         0.017
                                            SR   0.086..................  0.030.................         0.030
CDD/CDF, total (ng/dscm)............          L  125....................  115...................         1.6
                                             M   125....................  115...................         0.63
                                             S   125....................  115...................         8.3
                                            SR   800....................  800...................       130
CDD/CDF, TEQ (ng/dscm)..............          L  2.3....................  2.0...................         0.029
                                             M   2.3....................  2.0...................         0.0097
                                             S   2.3....................  2.0...................         0.0080
                                            SR   15.....................  15....................         2.6
NOX (ppmv)..........................          L  250....................  212...................       140
                                          M, S   250....................  212...................       200
                                            SR   250....................  212...................       110
SO2 (ppmv)..........................          L, 55.....................  28....................         2.8
                                            SR   55.....................  28....................       43
----------------------------------------------------------------------------------------------------------------
\1\ L = Large; M = Medium; S = Small; SR = Small Rural.
\2\ All emission limits are measured at 7 percent oxygen.

    With four exceptions, the emission limits for existing HMIWI being 
proposed in this action are more stringent than the 5-year review 
emission limits proposed in 2007. The HCl, Cd, and SO2 
emission limits for existing small rural units being proposed in this 
action are higher than the 5-year review limits proposed in 2007 (398 
ppm versus 440 ppm for HCl; 0.050 mg/dscm versus 0.068 mg/dscm for Cd; 
and 28 ppm versus 43 ppm for SO2). The PM emission limit 
being proposed for small rural HMIWI is the same as the 5-year review 
emission limit proposed in 2007. These differences in emission limits 
are likely due to the fact that there are now four fewer small rural 
HMIWI (leaving only two rural units).

C. Rationale for Other Proposed Amendments

1. Performance Testing and Monitoring Requirements
    We are proposing some adjustments to the performance testing and 
monitoring requirements that were promulgated in 1997. For existing 
large, medium, and small HMIWI (i.e., all currently operating large, 
medium, and small HMIWI), we are proposing retaining the current 
requirements of the rule and adding the following requirements:
     Demonstration of initial compliance with the revised 
NOX and SO2 emission limits;
     Annual inspections of scrubbers, fabric filters, and other 
air pollution control devices that may be used to meet the emission 
limits; and
     One-time testing of the ash handling operations at the 
time of the next compliance test using EPA Method 22 of appendix A-7 of 
40 CFR part 60.
    For existing small rural HMIWI, who have been subject to fewer 
performance testing and monitoring requirements, we are proposing 
retaining the current requirements of the rule and adding the following 
requirements:
     Demonstration of initial compliance with the revised 
NOX, SO2, HCl, Cd, and Pb emission limits;
     Annual compliance testing for PM, CO, and HCl;
     Annual inspections of scrubbers, fabric filters, and other 
air pollution control devices that may be used to meet the emission 
limits; and

[[Page 72986]]

     One-time testing of the ash handling operations at the 
time of the next compliance test using EPA Method 22 of appendix A-7 of 
40 CFR part 60.
    Currently, existing HMIWI are not required to conduct initial 
emissions testing for NOX or SO2. Existing small 
rural HMIWI are not currently required to conduct initial compliance 
testing for HCl, Pb, Cd, NOX, or SO2, and are 
also not required to conduct annual compliance testing for any of the 
nine regulated pollutants. In addition, existing HMIWI are not 
currently required to conduct any testing of the ash handling. These 
proposed requirements were selected to provide additional assurance 
that sources continue to operate at the levels established during their 
initial performance test. The proposed amendments would allow sources 
to use the results of previous emissions tests to demonstrate 
compliance with the revised emission limits as long as the sources 
certify that the previous test results are representative of current 
operations. Those sources whose previous emissions tests do not 
demonstrate compliance with one or more of the revised emission limits 
would be required to conduct another emissions test for those 
pollutants (note that most sources are already required to test for 
HCl, CO, and PM on an annual basis).
    Additional requirements also are proposed for new HMIWI. For new 
sources, we are proposing retaining the current requirements and adding 
the following requirements:
     Demonstration of initial compliance with the revised 
NOX and SO2 emission limits;
     Annual inspections of scrubbers, fabric filters, and other 
air pollution control devices that may be used to meet the emission 
limits;
     Use of CO CEMS;
     Use of bag leak detection systems for fabric-filter 
controlled units; and
     Annual testing of the ash handling operations using EPA 
Method 22 of appendix A-7 of 40 CFR part 60.
    For existing sources, we also are proposing to allow for the 
optional use of bag leak detection systems. We also are clarifying that 
the rule allows for the following optional CEMS use: CO CEMS for 
existing sources; and PM CEMS, HCl CEMS, multi-metals CEMS, Hg CEMS, 
integrated sorbent trap Hg monitoring, and integrated sorbent trap 
dioxin monitoring for existing and new sources. The optional use of HCl 
CEMS, multi-metals CEMS, integrated sorbent trap Hg monitoring, and 
integrated sorbent trap dioxin monitoring will be available on the date 
a final performance specification for these monitoring systems is 
published in the Federal Register or the date of approval of a site-
specific monitoring plan. The proposed monitoring provisions are 
discussed below.
    a. Monitoring Provisions for SNCR. The proposed amendments would 
require monitoring of secondary chamber temperature and reagent (e.g., 
ammonia or urea) injection rate for HMIWI that install SNCR as a method 
of reducing NOX emissions. All HMIWI are currently required 
to monitor secondary chamber temperature.
    b. Bag Leak Detection Systems. The proposed amendments would 
provide, as an alternative PM monitoring technique for existing 
sources, and a requirement for new sources, the use of bag leak 
detection systems on HMIWI controlled with fabric filters. Bag leak 
detection systems have been applied successfully at many industrial 
sources. EPA is proposing to remove the opacity testing requirements 
for HMIWI that use bag leak detection systems.
    c. CO CEMS. The proposed amendments would require the use of CO 
CEMS for new sources, and allow the use of CO CEMS on existing sources. 
Owners and operators that use CO CEMS would be able to discontinue 
their annual CO compliance test as well as their monitoring of the 
secondary chamber temperature, unless the source uses SNCR technology. 
The continuous monitoring of CO emissions is an effective way of 
ensuring that the combustion unit is operating properly. The proposed 
amendments incorporate the use of performance specification (PS)-4B 
(Specifications and Test Procedures for Carbon Monoxide and Oxygen 
Continuous Monitoring Systems in Stationary Sources) of appendix B of 
40 CFR part 60.
    The proposed CO emission limits are based on data from infrequent 
(normally annual) stack tests and compliance would be demonstrated by 
stack tests. The change to use of CO CEMS for measurement and 
enforcement of the same emission limits must be carefully considered in 
relation to an appropriate averaging period for data reduction. In past 
EPA rulemakings for incineration units, EPA has selected averaging 
times between 4 hours and 24 hours. Because sufficient CO CEMS data are 
unavailable for HMIWI, EPA concluded that the use of a 24-hour block 
average was appropriate to address potential changes in CO emissions 
that cannot be accounted for with short term stack test data. The 24-
hour block average would be calculated following procedures in EPA 
Method 19 of appendix A-7 of 40 CFR part 60. Facilities electing to use 
CO CEMS as an optional method would be required to notify EPA 1 month 
before starting use of CO CEMS and 1 month before stopping use of the 
CO CEMS. In addition, EPA specifically requests comment on whether 
continuous monitoring of CO emissions should be required for all 
existing HMIWI.
    d. PM CEMS. The proposed amendments would allow the use of PM CEMS 
as an alternative testing and monitoring method. Owners or operators 
who choose to rely on PM CEMS would be able to discontinue their annual 
PM compliance test. In addition, because units that demonstrate 
compliance with the PM emission limits with a PM CEMS would clearly be 
meeting the opacity standard, compliance demonstration with PM CEMS 
would be considered a substitute for opacity testing. Owners and 
operators that use PM CEMS also would be able to discontinue their 
monitoring of minimum wet scrubber pressure drop, horsepower, or 
amperage. The proposed amendments incorporate the use of PS-11 
(Specifications and Test Procedures for Particulate Matter Continuous 
Emission Monitoring Systems at Stationary Sources) of appendix B of 40 
CFR part 60 for PM CEMS, and PS-11 QA Procedure 2 to ensure that PM 
CEMS are installed and operated properly and produce good quality 
monitoring data.
    The proposed PM emission limits are based on data from infrequent 
(normally annual) stack tests and compliance would be demonstrated by 
stack tests. The use of PM CEMS for measurement and enforcement of the 
same emission limits must be carefully considered in relation to an 
appropriate averaging period for data reduction. Because PM CEMS data 
are unavailable for HMIWI, EPA concluded that the use of a 24-hour 
block average was appropriate to address potential changes in PM 
emissions that cannot be accounted for with short term stack test data. 
The 24-hour block average would be calculated following procedures in 
EPA Method 19 of appendix A-7 of 40 CFR part 60. An owner or operator 
of an HMIWI unit who wishes to use PM CEMS would be required to notify 
EPA 1 month before starting use of PM CEMS and 1 month before stopping 
use of the PM CEMS.
    e. Other CEMS and Monitoring Systems. EPA also is proposing the 
optional use of HCl CEMS, multi-metals CEMS, Hg CEMS, integrated 
sorbent trap Hg monitoring, and integrated sorbent trap dioxin 
monitoring as alternatives to the existing methods for demonstrating 
compliance with the HCl, metals (Pb, Cd, and Hg), and CDD/CDF

[[Page 72987]]

emissions limits. Because CEMS data for HMIWI are unavailable for HCl 
and metals, EPA concluded that the use of a 24-hour block average was 
appropriate to address potential changes in emissions of HCl and metals 
that cannot be accounted for with short term stack test data. EPA has 
concluded that the use of 24-hour block averages would be appropriate 
to address emissions variability, and EPA has included the use of 24-
hour block averages in the proposed rule. The 24-hour block averages 
would be calculated following procedures in EPA Method 19 of appendix A 
of 40 CFR part 60. Although final performance specifications are not 
yet available for HCl CEMS and multi-metals CEMS, EPA is considering 
development of performance specifications. The proposed rule specifies 
that these options will be available to a facility on the date a final 
performance specification is published in the Federal Register or the 
date of approval of a site-specific monitoring plan.
    The use of HCl CEMS would allow the discontinuation of HCl sorbent 
flow rate monitoring, scrubber liquor pH monitoring, and the annual 
testing requirements for HCl. EPA has proposed PS-13 (Specifications 
and Test Procedures for Hydrochloric Acid Continuous Monitoring Systems 
in Stationary Sources) of appendix B of 40 CFR part 60 and believes 
that performance specification can serve as the basis for a performance 
specification for HCl CEMS use at HMIWI. In addition to the procedures 
used in proposed PS-13 for initial accuracy determination using the 
relative accuracy test, a comparison against a reference method, EPA is 
taking comment on an alternate initial accuracy determination 
procedure, similar to the one in section 11 of PS-15 (Performance 
Specification for Extractive FTIR Continuous Emissions Monitor Systems 
in Stationary Sources) of appendix B of 40 CFR part 60 using the 
dynamic or analyte spiking procedure.
    EPA believes multi-metals CEMS can be used in many applications, 
including HMIWI. EPA has monitored side-by-side evaluations of multi-
metals CEMS with EPA Method 29 of appendix A-8 of 40 CFR part 60 at 
industrial waste incinerators and found good correlation. EPA also 
approved the use of multi-metals CEMS as an alternative monitoring 
method at a hazardous waste combustor. EPA believes it is possible to 
adapt proposed PS-10 (Specifications and Test Procedures for Multi-
metals Continuous Monitoring Systems in Stationary Sources) of appendix 
B of 40 CFR part 60 or other EPA performance specifications to allow 
the use of multi-metals CEMS at HMIWI. In addition to the procedures 
used in proposed PS-10 for initial accuracy determination using the 
relative accuracy test, a comparison against a reference method, EPA is 
taking comment on an alternate initial accuracy determination 
procedure, similar to the one in section 11 of PS-15 using the dynamic 
or analyte spiking procedure.
    Relative to the use of Hg CEMS and integrated sorbent trap Hg 
monitoring, EPA believes that the specifications and procedures 
described in the May 18, 2005 Federal Register notice that promulgated 
standards of performance for new and existing electric utility steam 
generating units (70 FR 28606) could provide the technical basis for 
site-specific monitoring plans. The options of using Hg CEMS or an 
integrated sorbent trap Hg monitoring system would take effect on the 
date a final performance specification is published in the Federal 
Register or the date of approval of a site-specific monitoring plan. An 
owner or operator of an HMIWI unit who wishes to use Hg CEMS would be 
required to notify EPA 1 month before starting use of Hg CEMS and 1 
month before stopping use of the Hg CEMS. The use of multi-metals CEMS 
or Hg CEMS would allow the discontinuation of wet scrubber outlet flue 
gas temperature monitoring. Mercury sorbent flow rate monitoring could 
not be eliminated in favor of a multi-metals CEMS or Hg CEMS because it 
also is an indicator of CDD/CDF control. Additionally, there is no 
annual metals test that could be eliminated.
    The integrated sorbent trap monitoring of Hg would entail use of a 
continuous automated sampling system with analysis of the samples at 
set intervals using any suitable determinative technique that can meet 
appropriate criteria. The option to use a continuous automated sampling 
system would take effect on the date a final performance specification 
is published in the Federal Register or the date of approval of a site-
specific monitoring plan. Integrated sorbent trap monitoring of Hg 
would allow the discontinuation of wet scrubber outlet flue gas 
temperature monitoring. Mercury sorbent flow rate monitoring could not 
be eliminated in favor of integrated sorbent trap monitoring of Hg 
because it also is an indicator of CDD/CDF control. Additionally, there 
is no annual Hg test that could be eliminated.
    The integrated sorbent trap monitoring of dioxin would entail use 
of a continuous automated sampling system and analysis of the sample 
according to EPA Reference Method 23 of appendix A-7 of 40 CFR part 60. 
The option to use a continuous automated sampling system would take 
effect on the date a final performance specification is published in 
the Federal Register or the date of approval of a site-specific 
monitoring plan. Integrated sorbent trap monitoring of dioxin would 
allow the discontinuation of fabric filter inlet temperature 
monitoring. Dioxin/furan sorbent flow rate monitoring could not be 
eliminated in favor of integrated sorbent trap monitoring of dioxin 
because it also is an indicator of Hg control. Additionally, there is 
no annual CDD/CDF test that could be eliminated. If integrated sorbent 
trap monitoring of dioxin as well as multi-metals CEMS, Hg CEMS, or 
integrated sorbent trap Hg monitoring are used, Hg sorbent flow rate 
monitoring and CDD/CDF sorbent flow rate monitoring (in both cases 
activated carbon is the sorbent) could be eliminated. EPA requests 
comment on other parameter monitoring requirements that could be 
eliminated upon use of any or all of the optional CEMS discussed above. 
Table 16 of this preamble presents a summary of the HMIWI operating 
parameters, the pollutants influenced by each parameter, and 
alternative monitoring options for each parameter.

    Table 16--Summary of HMIWI Operating Parameters, Pollutants Influenced by Each Parameter, and Alternative
                                      Monitoring Options for Each Parameter
----------------------------------------------------------------------------------------------------------------
                                   Pollutants influenced by operating parameter  (by control
 Operating parameter/ monitoring                         device type)                             Alternative
           requirement           ------------------------------------------------------------     monitoring
                                     Dry scrubber        Wet scrubber       Combined system         options
----------------------------------------------------------------------------------------------------------------
Maximum charge rate.............  All...............  All...............  All...............  None.

[[Page 72988]]

 
Minimum secondary chamber         PM, CO, CDD/CDF...  PM, CO, CDD/CDF...  PM, CO, CDD/CDF...  CO CEMS.\1,2\
 temperature.
Maximum fabric filter inlet       CDD/CDF...........  ..................  CDD/CDF...........  Integrated sorbent
 temperature.                                                                                  trap dioxin
                                                                                               monitoring system
                                                                                               (ISTDMS).
Minimum CDD/CDF sorbent flow      CDD/CDF...........  ..................  CDD/CDF...........  ISTDMS and multi-
 rate.                                                                                         metals CEMS, Hg
                                                                                               CEMS or
                                                                                               integrated
                                                                                               sorbent trap
                                                                                               mercury
                                                                                               monitoring system
                                                                                               (ISTMMS).
Minimum Hg sorbent flow rate....  Hg................  ..................  Hg................  ..................
Minimum HCl sorbent flow rate...  HCl...............  ..................  HCl...............  HCl CEMS.
Minimum scrubber pressure drop/   ..................  PM................  PM................  PM CEMS.
 horsepower amperage.
Minimum scrubber liquor flow      ..................  HCl, PM, Cd, Pb,    HCl, PM, Cd, Pb,    HCl CEMS, PM CEMS,
 rate.                                                 Hg, CDD/CDF.        Hg, CDD/CDF.        multi-metals
                                                                                               CEMS, ISTDMS, and
                                                                                               ISTMMS.
Minimum scrubber liquor pH......  ..................  HCl...............  HCl...............  HCl CEMS.
Maximum flue gas temperature      ..................  Hg................  ..................  Hg CEMS, ISTMMS,
 (wet scrubber outlet).                                                                        or multi-metals
                                                                                               CEMS.
Do not use bypass stack (except   All...............  All...............  All...............  None.
 during startup, shutdown, and
 malfunction).
Air pollution control device      All...............  All...............  All...............  None.
 inspections.
----------------------------------------------------------------------------------------------------------------
\1\ Optional method for existing sources; required for new sources.
\2\ Monitoring secondary chamber temperature could not be eliminated if the source uses SNCR technology.

    Table 17 of this preamble presents a summary of the HMIWI test 
methods and approved alternative compliance methods.

                    Table 17--Summary of HMIWI Test Methods and Approved Alternative Methods
----------------------------------------------------------------------------------------------------------------
                                                                  Approved alternative
         Pollutant/parameter              Test method(s) \1\           method(s)                 Comments
----------------------------------------------------------------------------------------------------------------
PM...................................  Method 5, Method 29....  PM CEMS................  PM CEMS are optional
                                                                                          for all sources in
                                                                                          lieu of annual PM
                                                                                          test.
CO...................................  Method 10..............  CO CEMS................  CO CEMS are optional
                                                                                          for existing sources
                                                                                          in lieu of annual CO
                                                                                          test; CO CEMS are
                                                                                          required for new
                                                                                          sources.
HCl..................................  Method 26 or Method 26A  HCl CEMS...............  HCl CEMS are optional
                                                                                          for all sources in
                                                                                          lieu of annual HCl
                                                                                          test.
Cd...................................  Method 29..............  Multi-metals CEMS......
Pb...................................  Method 29..............  Multi-metals CEMS......
Hg...................................  Method 29..............  ASTM D6784-02, multi-
                                                                 metals CEMS, Hg CEMS,
                                                                 or integrated sorbent
                                                                 trap mercury
                                                                 monitoring system.
CDD/CDF..............................  Method 23..............  Integrated sorbent trap
                                                                 dioxin monitoring
                                                                 system.
Opacity..............................  Method 22..............  Bag leak detection       Bag leak detection
                                                                 system or PM CEMS.       systems are optional
                                                                                          for existing sources;
                                                                                          and are required for
                                                                                          new sources in lieu of
                                                                                          annual opacity test.
Flue and exhaust gas analysis........  Method 3, 3A, or 3B....  ASME PTC 19-10-1981
                                                                 Part 10.
Opacity from ash handling............  Method 22..............  None...................
----------------------------------------------------------------------------------------------------------------
\1\ EPA Reference Methods in appendix A of 40 CFR part 60.


[[Page 72989]]

V. Impacts of the Proposed Action for Existing Units

    Over the last 3 years, about 25 percent (19 of 76 units) of the 
existing HMIWI have ceased operation. This trend is not surprising, and 
supports EPA's analysis, which shows that even in the absence of 
increased regulatory requirements, less expensive alternative waste 
disposal options are available for almost all facilities that operate 
HMIWI. Therefore, EPA expects this trend of unit closures to continue 
even in the absence of the proposed regulatory changes. The additional 
costs that would be imposed by this action are likely to accelerate the 
trend towards alternative waste disposal options, and our analysis 
suggests that sources are likely to respond to the proposed increased 
regulatory requirements by choosing to shut down existing HMIWI and 
utilizing alternative waste disposal options rather than incurring the 
costs of continued operation and compliance.
    The EPA's objective is not to discourage continued use of HMIWI; 
EPA's objective is to adopt EG for existing HMIWI that fulfill the 
requirements of CAA section 129. In doing so, the primary outcome 
associated with adoption of these EG may be an increase in the use of 
alternative waste disposal and a decrease in the use of HMIWI. 
Consequently, EPA's impact analyses of the proposed rule include 
complete analyses of two potential scenarios. The first scenario, which 
will be referred to as the ``MACT compliance'' option for the remainder 
of this preamble, assumes that all units continue operation and take 
the necessary steps to achieve compliance. The second scenario, which 
will be referred to as the ``alternative disposal'' option for the 
remainder of this preamble, assumes that all facilities choose to 
discontinue operation of their HMIWI in favor of an alternative waste 
disposal option. While several different disposal options, such as 
sending waste to a municipal waste combustor or commercial HMIWI, may 
be available to some facilities, EPA assessed the impacts of one 
alternative waste disposal option. This option involves on-site 
sterilization of the waste using an autoclave followed by landfilling 
of the sterilized waste. EPA selected the autoclave/landfilling option 
because it is widely available. The results of both options are 
provided in the discussion of impacts. While the likely outcome of the 
proposed rule revisions is somewhere in between the two options that 
EPA selected for analysis (some units will comply with the standards 
and some will discontinue operations), EPA's analyses provide a broad 
picture of potential impacts.
    As explained in section IV.A.2 of this preamble, the proposed 
emission limits for existing HMIWI are based on the average of the best 
performing 12 percent of sources for each pollutant in each 
subcategory. This proposed action would require varying degrees of 
improvements in performance by almost all HMIWI. Depending on the 
current configuration of each unit and air pollution controls, the 
improvements could be achieved either through the addition of add-on 
air pollution control devices (APCD), improvement of existing add-on 
APCD, increase in sorbent usage rates, and various combustion 
improvements. More specifically, the improvements anticipated include: 
most wet scrubber-controlled units adding a fabric filter-based system 
for improved control of PM and metals; most units with fabric filter-
based systems adding a packed bed wet scrubber for improved control of 
HCl; adding activated carbon injection or increasing activated carbon 
usage rate for improved Hg and dioxin control; upgrading fabric filter 
performance for improved control of PM and metals; increasing lime use 
for improved control of HCl and, in a few instances, SO2; 
and combustion improvements primarily associated with decreasing CO and 
CDD/CDF emissions. We also project that a few units may require add-on 
controls (SNCR) to meet the proposed NOX emission levels. 
Facilities may resubmit their most recent compliance test data for each 
pollutant if the data show that their HMIWI meets the proposed emission 
limits. In these instances, facilities must certify that the test 
results are representative of current operations. Those facilities 
would then not be required to test for those pollutants to prove 
initial compliance with the revised emission limits.

A. What are the primary air impacts?

    EPA estimates that reductions of approximately 468,000 pounds per 
year (lb/yr) of the regulated pollutants would be achieved if all 
existing HMIWI improved performance to meet the proposed emissions 
limits. If all HMIWI selected an alternative disposal method, 
reductions of approximately 1.52 million lb/yr would be achieved. Table 
18 shows the estimated reductions by pollutant for the two scenarios.

     Table 18--Projected Emission Reductions for MACT Compliance and
             Alternative Disposal Options for Existing HMIWI
------------------------------------------------------------------------
                                                           Reductions
                                         Reductions     achieved through
              Pollutant               achieved through     alternative
                                        meeting MACT     disposal  (lb/
                                           (lb/yr)             yr)
------------------------------------------------------------------------
HCl.................................           184,000           198,000
CO..................................             6,860            20,200
Pb..................................               361               420
Cd..................................                22              35.1
Hg..................................               637               682
PM..................................            27,300            89,900
CDD/CDF.............................            0.0907            0.0985
NOX.................................           148,000         1,080,000
SO2.................................           100,000           126,000
                                     -----------------------------------
Total...............................           468,000         1,520,000
------------------------------------------------------------------------

B. What are the water and solid waste impacts?

    EPA estimates that, based on the MACT compliance option, 
approximately 4,420 tpy of additional solid waste and 187,000 gallons 
per year of additional wastewater would be generated as a result of 
operating additional controls or using increased amounts of various 
sorbents.
    EPA estimates that, based on the alternative disposal option, 
approximately 15,100 tpy of additional solid waste would be sent to 
landfills. This option would result in no additional waste water 
impacts.

C. What are the energy impacts?

    EPA estimates that approximately 29,100 megawatt-hours per year of 
additional electricity would be required to support the increased 
control requirements associated with the MACT compliance option.
    For the alternative disposal option, EPA estimates that 
approximately 12,400 megawatt-hours per year of additional electricity 
would be required to operate the autoclaves.

D. What are the secondary air impacts?

    Secondary air impacts associated with the MACT compliance option 
are direct impacts that result from the increase in natural gas and/or 
electricity use that we estimate may be required to enable facilities 
to achieve the proposed emission limits. We estimate that the 
adjustments could result in emissions of 941 lb/yr of PM; 8,870 lb/yr 
of CO; 9,290 lb/yr of NOX; and 1,880 lb/yr of SO2 
from the increased electricity and natural gas usage.
    For the alternative disposal option, EPA estimates secondary air 
impacts of 692 lb/yr of PM; 5,040 lb/yr of CO; 2,550

[[Page 72990]]

lb/yr of NOX; and 4,980 lb/yr of SO2 from the 
additional electricity that would be required to operate the 
autoclaves. In addition, EPA estimates that landfilling would result in 
an additional 626 tpy of methane and 0.03 lb/yr of mercury emissions.

E. What are the cost and economic impacts?

    EPA estimates that for the MACT compliance option, the national 
total costs for the 57 existing HMIWI to comply with this proposed 
action would be approximately $21.1 million in each of the first 3 
years of compliance. This estimate includes the costs that would be 
incurred based on the anticipated performance improvements (i.e., costs 
of new APCD and improvements in performance of existing APCD), and the 
additional monitoring (i.e., annual control device inspections), 
testing (i.e., initial EPA Method 22 of appendix A-7 test and initial 
compliance testing), and recordkeeping and reporting costs that would 
be incurred by all 57 HMIWI as a result of this proposed action. 
Approximately 96 percent of the estimated total cost in the first year 
is for emissions control, and the remaining 4 percent is for 
monitoring, testing, recordkeeping and reporting.
    EPA estimates that for the alternative disposal option, the 
national total costs for the 57 existing HMIWI to dispose of their 
solid waste by autoclaving and landfilling would be approximately $10.6 
million per year. This estimate includes the costs that would be 
incurred based on the purchase and operation of autoclaves and the 
projected landfill tipping fees that would be incurred based on the 
volume of waste to be landfilled.
    Currently, there are 57 existing HMIWI at 51 facilities. They may 
be divided into two broad categories: (1) Captive HMIWI, which are co-
owned and co-located with generating facilities and provide on-site 
incineration services for waste generated by the hospital, research 
facility, university, or pharmaceutical operations; and (2) commercial 
HMIWI, which provide commercial incineration services for waste 
generated off-site by firms unrelated to the firm that owns the HMIWI. 
EPA analyzed the impacts on captive HMIWI and commercial HMIWI using 
different methods. Of the 57 HMIWI, 14 are commercial and 43 are 
captive.
    Owners of captive HMIWI may choose to incur the costs of complying 
with the proposed revised HMIWI standards or close the HMIWI and switch 
to another disposal technology like autoclaving and landfilling or have 
their waste handled by a commercial disposal service. EPA's estimate of 
autoclaving and landfilling costs indicate that even without additional 
regulatory costs, the costs of autoclaving and landfilling may be lower 
than the costs of incinerating. However, even if all owners of captive 
HMIWI choose to continue to operate with the additional regulatory 
cost, the cost-to-sales ratios for firms owning captive HMIWI are low. 
This reflects the relatively small share of overall costs that are 
associated with hospital/medical/infectious waste management at these 
firms. Of the 35 firms owning captive HMIWI, 22 have costs of 
compliance that are less than 0.1 percent of firm sales. Of the 13 with 
costs exceeding 0.1 percent of sales, only one, a hospital, has costs 
exceeding 1 percent of sales, and their cost-to-sales ratio is 1.01 
percent. Therefore, EPA expects no significant impact on the prices and 
quantities of the underlying services of the owners of the captive 
HMIWI, whether the costs are passed on or absorbed.
    Impacts on commercial HMIWI are analyzed using the simplifying 
assumption that they operate as regional monopolists (in general, only 
one HMIWI is considered as a treatment option by generators located 
nearby). The approach to modeling the impact for commercial HMIWI seems 
very appropriate for all of the facilities except for one. The other 
commercial HMIWI facilities have costs of compliance that are no more 
than 6.1 percent of revenues. That one facility has a ratio of 28.5 
percent. Even with monopoly pricing power and the highest estimated 
waste throughput, it is not clear whether the company will be able to 
acquire the capital and pass on such a large price increase. Additional 
information and modeling would be required to project the outcome for 
this facility with confidence. For more details regarding EPA's 
analysis of the economic impacts, see the docket entry entitled 
``Economic Impacts of Revised MACT Standards for Hospital/Medical/
Infectious Waste Incinerators.''

VI. Impacts of the Proposed Action for New Units

    Information provided to EPA indicates that negative growth has been 
the trend for HMIWI for the past several years. While existing units 
continue to shut down, since promulgation of the HMIWI NSPS in 1997, 
four new units have been constructed and one unit has been 
reconstructed. This information indicates that in the absence of 
further regulation, new HMIWI may be built. However, based on the 
stringency of revisions being proposed for the NSPS, sources would 
likely respond to the proposed rule by choosing not to construct new 
HMIWI and would utilize alternative waste disposal options rather than 
incur the costs of compliance.
    Considering this information, EPA does not anticipate any new 
HMIWI, and therefore, no impacts of the proposed NSPS for new units. 
For purposes of demonstrating that emissions reductions would result 
from the NSPS in the unlikely event that a new unit is constructed, EPA 
estimated emissions reductions and other impacts expected for each of 
the three HMIWI model plants.

A. What are the primary air impacts?

    EPA estimated emissions reductions for each of the model plants to 
demonstrate that the NSPS would, if a new unit were built, reduce 
emissions compared to an HMIWI meeting the current NSPS. Table 19 of 
this preamble presents the emissions reductions for the HMIWI model 
plants. The three model plants (with capacities of 100 lb/hr, 400 lb/
hr, and 4,000 lb/hr) represent typical HMIWI. For pollutants where a 
``zero'' value is shown, the model plant performance estimate meets the 
proposed new source limit, which is not surprising since the models are 
based on the performance of the newest sources, which are among the 
best performers in the industry.

                              Table 19--Emissions Reductions on a Model Plant Basis
----------------------------------------------------------------------------------------------------------------
                                                                  Emission reduction for HMIWI model plants (lb/
                                                                                        yr)
                            Pollutant                            -----------------------------------------------
                                                                     100 lb/hr       400 lb/hr      4,000 lb/hr
                                                                     capacity        capacity        capacity
----------------------------------------------------------------------------------------------------------------
HCl.............................................................               0             262           2,340
CO..............................................................            30.5            5.15             124

[[Page 72991]]

 
Pb..............................................................               0               0            3.82
Cd..............................................................               0               0           0.296
Hg..............................................................               0           0.245            2.51
PM..............................................................               0               0           2,360
Dioxins/furans, TEQ.............................................               0       6.15x10-6               0
NOX.............................................................             863           3,120               0
SO2.............................................................              49              72               0
    Total.......................................................             942           3,460           4,840
----------------------------------------------------------------------------------------------------------------

B. What are the water and solid waste impacts?

    While EPA believes it is unlikely that any new HMIWI will be 
constructed, we estimated the following water or solid waste impacts 
associated with the proposed NSPS for three different HMIWI model 
sizes: for large units, we estimate 7,120 gallons per year of 
additional wastewater and 51 tpy of additional solid waste; for medium 
units, we estimate 877 gallons per year of additional wastewater and 
5.7 tpy of additional solid waste; and, for small units, we estimate 30 
gallons per year of additional wastewater and no additional solid 
waste.

C. What are the energy impacts?

    While EPA believes it is unlikely that any new HMIWI will be 
constructed, we estimated the following energy impacts associated with 
the proposed NSPS for three different HMIWI model sizes: For large 
units, we estimate that 3,980 megawatt-hours per year of additional 
electricity would be required to support the increased control 
requirements; for medium units, we estimate 448 megawatt-hours per 
year; and, for small units, we estimate 107 megawatt-hours per year.

D. What are the secondary air impacts?

    Secondary air impacts for new HMIWI are direct impacts that would 
result from the increase in natural gas and/or electricity use that we 
estimate may be required to enable facilities to achieve the proposed 
emission limits. While EPA believes it is unlikely that any new HMIWI 
will be constructed, we estimated the secondary air impacts associated 
with the proposed NSPS for three different HMIWI model sizes. For large 
units, we estimate that the adjustments could result in emissions of 40 
lb/yr of PM; 1,180 lb/yr of CO; 1,320 lb/yr of NOX; and 120 
lb/yr of SO2. For medium units, we estimate that the 
adjustments could result in emissions of 4.5 lb/yr of PM; 132 lb/yr of 
CO; 149 lb/yr of NOX; and 14 lb/yr of SO2. For 
small units, we estimate that the adjustments could result in emissions 
of 1.2 lb/yr of PM; 32 lb/yr of CO; 35 lb/yr of NOX; and 4.2 
lb/yr of SO2.
    For the alternative disposal option, EPA estimated secondary air 
impacts from the additional electricity that would be required to 
operate autoclaves in lieu of each size of HMIWI. For large units, we 
estimate secondary emissions of 66 lb/yr of PM; 478 lb/yr of CO; 241 
lb/yr of NOX; and 471 lb/yr of SO2. For medium 
units, we estimate secondary emissions of 5.0 lb/yr of PM; 36 lb/yr of 
CO; 18 lb/yr of NOX; and 36 lb/yr of SO2. For 
small units, we estimate secondary emissions of 1.2 lb/yr of PM; 9.1 
lb/yr of CO; 4.6 lb/yr of NOX; and 9.0 lb/yr of 
SO2. In addition, EPA estimates that an additional 59 tpy of 
methane and 0.003 lb/yr of mercury emissions would result from 
landfilling waste that would have been processed in a large HMIWI, 3.3 
tpy of methane and 0.0002 lb/yr of mercury emissions would result from 
landfilling waste that would have been processed in a medium HMIWI, and 
0.5 tpy of methane and 0.00003 lb/yr of mercury emissions would result 
from landfilling waste that would have been processed in a small HMIWI.

E. What are the cost and economic impacts?

    While EPA projects that three new HMIWI would be constructed in the 
absence of the proposed revisions, we believe that, in response to the 
proposed revisions, sources may decide against constructing new HMIWI. 
Nevertheless, we estimated the following costs associated with 
installation and operation of air pollution controls needed to meet the 
proposed NSPS: For new large units, $476,000 per year; for new medium 
units, $195,000 per year; and, for new small units, $120,000 per year.
    EPA's analysis of impacts of the proposed revisions to the HMIWI 
standards on potential new HMIWI sources compares the with-regulation 
estimated prices that would be charged by new large, medium, and small 
HMIWI to the range of with-regulation prices estimated to be charged by 
existing commercial HMIWI in various regional markets. This comparison 
indicates that new large and medium commercial HMIWI may be viable, but 
new small commercial HMIWI probably would not be viable. On the other 
hand, generators of hospital/medical/infectious waste could have 
reasons to purchase and install a new small HMIWI. Comparison of 
autoclave treatment coupled with off-site landfill disposal shows that, 
for new facilities as for existing ones, autoclave/landfill treatment 
and disposal is generally less costly than incineration. Thus, the 
motivation to improve waste segregation to minimize the waste that must 
be incinerated is likely to continue.

VII. Relationship of the Proposed Action to Section 112(c)(6) of the 
CAA

    Section 112(c)(6) of the CAA requires EPA to identify categories of 
sources of seven specified pollutants to assure that sources accounting 
for not less than 90 percent of the aggregate emissions of each such 
pollutant are subject to standards under CAA section 112(d)(2) or 
112(d)(4). EPA has identified HMIWI as a source category that emits 
five of the seven CAA section 112(c)(6) pollutants: polycyclic organic 
matter (POM), dioxins, furans, Hg, and polychlorinated biphenyls 
(PCBs). (The POM emitted by HMIWI is composed of 16 polyaromatic 
hydrocarbons (PAH) and extractable organic matter (EOM).) In the 
Federal Register notice Source Category Listing for Section 112(d)(2) 
Rulemaking Pursuant to Section 112(c)(6) Requirements, 63 FR 17838, 
17849, Table 2 (1998), EPA identified medical waste incinerators (now 
referred to as HMIWI) as a source category ``subject to regulation'' 
for purposes of CAA section 112(c)(6) with

[[Page 72992]]

respect to the CAA section 112(c)(6) pollutants that HMIWI emit. HMIWI 
are solid waste incineration units currently regulated under CAA 
section 129. For purposes of CAA section 112(c)(6), EPA has determined 
that standards promulgated under CAA section 129 are substantively 
equivalent to those promulgated under CAA section 112(d). (See Id. at 
17845; see also 62 FR 33625, 33632 (1997).) As discussed in more detail 
below, the CAA section 129 standards effectively control emissions of 
the five identified CAA section 112(c)(6) pollutants. Further, since 
CAA section 129(h)(2) precludes EPA from regulating these substantial 
sources of the five identified CAA section 112(c)(6) pollutants under 
CAA section 112(d), EPA cannot further regulate these emissions under 
that CAA section. As a result, EPA considers emissions of these five 
pollutants from HMIWI ``subject to standards'' for purposes of CAA 
section 112(c)(6).
    As required by the statute, the CAA section 129 HMIWI standards 
include numeric emission limitations for the nine pollutants specified 
in section 129(a)(4). The combination of waste segregation, good 
combustion practices, and add-on air pollution control equipment (dry 
sorbent injection fabric filters, wet scrubbers, or combined fabric 
filter and wet scrubber systems) effectively reduces emissions of the 
pollutants for which emission limits are required under CAA section 
129: Hg, CDD/CDF, Cd, Pb, PM, SO2, HCl, CO, and 
NOX. Thus, the NSPS and EG specifically require reduction in 
emissions of three of the CAA section 112(c)(6) pollutants: dioxins, 
furans, and Hg. As explained below, the air pollution controls 
necessary to comply with the requirements of the HMIWI NSPS and EG also 
effectively reduce emissions of the following CAA section 112(c)(6) 
pollutants that are emitted from HMIWI: POM and PCBs. Although the CAA 
section 129 HMIWI standards do not have separate, specific emissions 
standards for PCBs and POM, emissions of these two CAA section 
112(c)(6) pollutants are effectively controlled by the same control 
measures used to comply with the numerical emissions limits for the 
pollutants enumerated in section 129(a)(4). Specifically, as byproducts 
of combustion, the formation of PCBs and POM is effectively reduced by 
the combustion and post-combustion practices required to comply with 
the CAA section 129 standards. Any PCBs and POM that do form during 
combustion are further controlled by the various post-combustion HMIWI 
controls. The add-on PM control systems (either fabric filter or wet 
scrubber) and activated carbon injection in the fabric filter-based 
systems further reduce emissions of these organic pollutants, and also 
reduce Hg emissions, as is evidenced by HMIWI performance data. 
Specifically, the post-MACT compliance tests at currently operating 
HMIWI that were also operational at the time of promulgation of the 
1997 standards show that, for those units, the 1997 HMIWI MACT 
regulations reduced Hg emissions by about 60 percent and CDD/CDF 
emissions by about 80 percent from pre-MACT levels. (Note that these 
reductions do not reflect unit shutdowns, units for which exemptions 
were granted, or new units.) Moreover, similar controls have been 
demonstrated to effectively reduce emissions of POM and PCBs from 
another incineration source category (municipal solid waste 
combustors). It is, therefore, reasonable to conclude that POM and PCB 
emissions are substantially controlled at all 57 HMIWI. Thus, while the 
proposed rule does not identify specific limits for POM and PCB, 
emissions of those pollutants are, for the reasons noted above, 
nonetheless ``subject to regulation'' for purposes of section 112(c)(6) 
of the CAA.

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735; October 4, 1993), this 
action is a ``significant regulatory action'' because it is likely to 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order. Accordingly, EPA submitted this action to the Office of 
Management and Budget (OMB) for review under Executive Order 12866, and 
any changes made in response to OMB recommendations have been 
documented in the docket for this action.

B. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to the OMB under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. The Information Collection Request (ICR) documents 
prepared by EPA have been assigned EPA ICR number 2335.01 for subpart 
Ce, 40 CFR part 60, and 1730.07 for subpart Ec, 40 CFR part 60.
    The requirements in this proposed action result in industry 
recordkeeping and reporting burden associated with review of the 
amendments for all HMIWI, EPA Method 22 of appendix A-7 testing for all 
HMIWI, and inspections of scrubbers, fabric filters, and other air 
pollution control devices that may be used to meet the emission limits 
for all HMIWI. Stack testing and development of new parameter limits 
would be necessary for HMIWI that need to make performance improvements 
in order to meet the proposed emission limits and for HMIWI that, prior 
to this proposed action, have not been required to demonstrate 
compliance with certain pollutants. Any new HMIWI would also be 
required to continuously monitor CO emissions. New HMIWI equipped with 
fabric filters would also be required to purchase bag leak detectors.
    The annual average burden associated with the EG over the first 3 
years following promulgation of this proposed action is estimated to be 
44,275 hours at a total annual labor cost of $1,873,286. The total 
annualized capital/startup costs and operation and maintenance (O&M) 
costs associated with the monitoring requirements, EPA Method 22 of 
appendix A-7 testing, storage of data and reports, and photocopying and 
postage over the 3-year period of the ICR are estimated at $1,457,506 
and $687,398 per year, respectively. (The annual inspection costs are 
included under the recordkeeping and reporting labor costs.) The annual 
average burden associated with the NSPS over the first 3 years 
following promulgation of this proposed action is estimated to be 2,705 
hours at a total annual labor cost of $102,553. The total annualized 
capital/startup costs are estimated at $137,058, with total operation 
and maintenance costs of $116,190 per year. Burden is defined at 5 CFR 
1320.3(b)
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it currently displays 
a valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, EPA has established a public docket for 
this action, which includes these ICR documents, under Docket ID No. 
EPA-HQ-OAR-2006-0534. Submit any comments related to the ICR documents 
for this proposed action to EPA and OMB. See ADDRESSES section at the 
beginning of this action for where to submit comments to EPA. Send 
comments to OMB at the Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725 17th Street, NW., Washington, DC 
20503, Attention: Desk Office for EPA.

[[Page 72993]]

Since OMB is required to make a decision concerning the ICR between 30 
and 60 days after December 1, 2008, a comment to OMB is best assured of 
having its full effect if OMB receives it by December 31, 2008. The 
final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the Agency certifies that 
the proposed action will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small government organizations, and small government 
jurisdictions.
    For purposes of assessing the impacts of this proposed action on 
small entities, small entity is defined as follows: (1) A small 
business as defined by the Small Business Administration's (SBA) 
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-for-profit enterprise that is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The one 
small entity directly regulated by this proposed action is a small 
governmental jurisdiction that owns two HMIWI. We have determined that 
this one small entity may experience an impact of approximately $1.56 
million per year to comply with the proposed rule, resulting in a cost-
to-sales ratio of approximately 6.1 percent. The one small entity is a 
commercial facility owned by a county in Texas. Because there are only 
nine other commercial facilities and the closest are in Tennessee and 
Kansas, the entity is a regional monopolist and is able to raise the 
price by more than the per unit cost increase. We expect there to be a 
reduction in the amount of its services demanded due to the price 
change. Because of closures of captive HMIWI there may also be an 
increase in the demand for its services that may reduce the decrease in 
revenues associated with the price increase.
    Three other entities are defined as borderline small: Their parent 
company sales or employment in 2007 are above the SBA size-cutoff for 
small entities in their NAICS codes, but are near enough to the size 
cut-off that variations in sales or employment over time might move 
them below the small business criterion. One of them is the facility 
with a cost-to-sale a ratio of 28.5 percent. Additional information and 
modeling would be required to project the outcome for this facility 
with confidence.
    Although the proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of this rule on small entities. For each 
subcategory of HMIWI, we are proposing emission limits that are based 
on the MACT floor level of control, which is the minimum level of 
stringency that can be considered in establishing MACT standards. 
Although under the CAA and the case law EPA can set standards no less 
stringent than the MACT floor and, therefore, we were unable to reduce 
the impact of the emission limits on the small entity that would be 
regulated by the proposed rule, EPA worked to minimize the costs of 
testing and monitoring requirements to the extent possible under the 
statute. We continue to be interested in the potential impacts of this 
proposed action on small entities and welcome comments on issues 
related to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538 
for State, local, or tribal governments or the private sector. This 
proposed action imposes no enforceable duty on any State, local or 
tribal governments or the private sector.
    Therefore, this proposed action is not subject to the requirements 
of sections 202 or 205 of the UMRA.
    This proposed action 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. There are 2 
HMIWI owned by one small governmental jurisdiction that would be 
regulated by this proposed action. For each subcategory of HMIWI, we 
are proposing emission limits that are based on the MACT floor level of 
control, which is the minimum level of stringency that can be 
considered in establishing MACT standards. EPA can set standards no 
less stringent than the MACT floor and, under this proposed action, all 
HMIWI would be subject to emission limits based on the MACT floors. 
Thus, the regulatory requirements being proposed would not be 
considered as significantly or uniquely affecting the small entity that 
would be impacted by the proposed rule because it would be subject to 
standards based on the same minimum levels of stringency as all other 
HMIWI.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255; August 10, 1999), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications.'' ``Policies that have 
federalism implications'' are defined in the Executive Order to include 
regulations that 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.''
    This proposed rule 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 proposed action will not 
impose substantial direct compliance costs on State or local 
governments, and will not preempt State law. Thus, Executive Order 
13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, (65 FR 67249; November 9, 2000). EPA is not 
aware of any HMIWI owned or operated by Indian tribal governments. 
Thus, Executive Order 13175 does not apply to this action.
    EPA specifically solicits additional comment on this proposed 
action from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885; April 23, 1997) 
as applying to those regulatory actions that

[[Page 72994]]

concern health or safety risks, such that the analysis required under 
section 5-501 of the Order has the potential to influence the 
regulation. This proposed action is not subject to Executive Order 
13045 because it is based solely on technology performance.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not a ``significant energy action'' as defined in 
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. EPA estimates that the requirements in 
this proposed action would cause most HMIWI to modify existing air 
pollution control devices (e.g., increase the horsepower of their wet 
scrubbers) or install and operate new control devices, resulting in 
approximately 29,100 megawatt-hours per year of additional electricity 
being used.
    Given the negligible change in energy consumption resulting from 
this proposed action, EPA does not expect any significant price 
increase for any energy type. The cost of energy distribution should 
not be affected by this proposed action at all since the action would 
not affect energy distribution facilities. We also expect that any 
impacts on the import of foreign energy supplies, or any other adverse 
outcomes that may occur with regards to energy supplies would not be 
significant. We, therefore, conclude that if there were to be any 
adverse energy effects associated with this proposed action, they would 
be minimal.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113 (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards (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. NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable VCS.
    This proposed rulemaking involves technical standards. EPA has 
decided to use two VCS in this proposed rule. One VCS, ASME PTC 19.10-
1981, ``Flue and Exhaust Gas Analyses,'' is cited in this proposed rule 
for its manual method of measuring the content of the exhaust gas as an 
acceptable alternative to EPA Method 3B of appendix A-2. This standard 
is available from the American Society of Mechanical Engineers (ASME), 
P.O. Box 2900, Fairfield, NJ 07007-2900; or Global Engineering 
Documents, Sales Department, 15 Inverness Way East, Englewood, CO 
80112.
    Another VCS, ASTM D6784-02, ``Standard Test Method for Elemental, 
Oxidized, Particle-Bound and Total Mercury Gas Generated from Coal-
Fired Stationary Sources (Ontario Hydro Method),'' is cited in this 
proposed rule as an acceptable alternative to EPA Method 29 of appendix 
A-8 (portion for mercury only) for measuring mercury. This standard is 
available from the American Society for Testing and Materials (ASTM), 
100 Barr Harbor Drive, Post Office Box C700, West Conshohocken, PA 
19428-2959; or ProQuest, 300 North Zeeb Road, Ann Arbor, MI 48106.
    While the Agency has identified 16 VCS as being potentially 
applicable to this proposed rule, we have decided not to use these VCS 
in this rulemaking. The use of these VCS would be impractical because 
they do not meet the objectives of the standards cited in this rule. 
See the docket for this proposed rule for the reasons for these 
determinations.
    Under 40 CFR 60.13(i) of the NSPS General Provisions, a source may 
apply to EPA for permission to use alternative test methods or 
alternative monitoring requirements in place of any required testing 
methods, performance specifications, or procedures in the final rule 
and any amendments.
    EPA welcomes comments on this aspect of the proposed rulemaking and 
specifically invites the public to identify potentially-applicable 
voluntary consensus standards and to explain why such standards should 
be used in this regulation.

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 environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice 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 low-income 
populations in the United States.
    EPA has determined that this proposed 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 populations. This action would establish national standards that 
would result in reductions in emissions of HCl, CO, Cd, Pb, Hg, PM, 
CDD/CDF, NOX and SO2 from all HMIWI and thus 
decrease the amount of such emissions to which all affected populations 
are exposed.

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: November 14, 2008.
Stephen L. Johnson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I, part 
60 of the Code of Federal Regulations is proposed to be amended as 
follows:

PART 60--[AMENDED]

    1. The authority citation for part 60 continues to read as follows:

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

Subpart Ce--[Amended]

    2. Section 60.32e is amended by revising paragraph (a) and adding 
paragraph (j) to read as follows:


Sec.  60.32e  Designated facilities.

    (a) Except as provided in paragraphs (b) through (h) of this 
section, the designated facility to which the guidelines apply is each 
individual HMIWI:
    (1) For which construction was commenced on or before June 20, 
1996, or for which modification was commenced on or before March 16, 
1998.
    (2) For which construction was commenced on or before December 1, 
2008, or for which modification is commenced on or before [DATE 6 
MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE Federal Register].
* * * * *
    (j) The requirements of this subpart as promulgated on September 
15, 1997,

[[Page 72995]]

shall apply to the designated facilities defined in paragraph (a)(1) of 
this section until the applicable compliance date of the requirements 
of this subpart, as amended on [DATE OF PUBLICATION OF THE FINAL RULE 
IN THE Federal Register]. Upon the compliance date of the requirements 
of this subpart, designated facilities as defined in paragraph (a)(1) 
of this section are no longer subject to the requirements of this 
subpart, as promulgated on September 15, 1997, but are subject to the 
requirements of this subpart, as amended on [DATE OF PUBLICATION OF THE 
FINAL RULE IN THE Federal Register].
    3. Section 60.33e is revised to read as follows:


Sec.  60.33e  Emission guidelines.

    (a) For approval, a State plan shall include the requirements for 
emission limits at least as protective as the following requirements, 
as applicable:
    (1) For a designated facility as defined in Sec.  60.32e(a)(1), the 
requirements listed in Table 1 of this subpart, except as provided in 
paragraph (b) of this section.
    (2) For a designated facility as defined in Sec.  60.32e(a)(2), the 
requirements listed in Table 1A of this subpart, except as provided in 
paragraph (b) of this section.
    (b) For approval, a State plan shall include the requirements for 
emission limits for any small HMIWI constructed on or before June 20, 
1996, which is located more than 50 miles from the boundary of the 
nearest Standard Metropolitan Statistical Area (defined in Sec.  
60.31e) and which burns less than 2,000 pounds per week of hospital 
waste and medical/infectious waste that are at least as protective as 
the requirements in paragraphs (b)(1) and (b)(2) of this section, as 
applicable. The 2,000 lb/week limitation does not apply during 
performance tests.
    (1) For a designated facility as defined in Sec.  60.32e(a)(1), the 
requirements listed in Table 2 of this subpart.
    (2) For a designated facility as defined in Sec.  60.32e(a)(2), the 
requirements listed in Table 2A of this subpart.
    (c) For approval, a State plan shall include the requirements for 
stack opacity at least as protective as the following, as applicable:
    (1) For a designated facility as defined in Sec.  60.32e(a)(1), the 
requirements in Sec.  60.52c(b)(1) of subpart Ec of this part.
    (2) For a designated facility as defined in Sec.  60.32e(a)(2), the 
requirements in Sec.  60.52c(b)(2) of subpart Ec of this part.
    4. Section 60.36e is amended as follows:
    a. By revising paragraph (a) introductory text;
    b. By revising paragraph (b);
    c. By adding paragraph (c); and
    d. By adding paragraph (d).


Sec.  60.36e  Inspection guidelines.

    (a) For approval, a State plan shall require each small HMIWI 
subject to the emission limits under Sec.  60.33e(b) and each HMIWI 
subject to the emission limits under Sec.  60.33e(a)(2) to undergo an 
initial equipment inspection that is at least as protective as the 
following within 1 year following approval of the State plan:
* * * * *
    (b) For approval, a State plan shall require each small HMIWI 
subject to the emission limits under Sec.  60.33e(b) and each HMIWI 
subject to the emission limits under Sec.  60.33e(a)(2) to undergo an 
equipment inspection annually (no more than 12 months following the 
previous annual equipment inspection), as outlined in paragraph (a) of 
this section.
    (c) For approval, a State plan shall require each small HMIWI 
subject to the emission limits under Sec.  60.33e(b)(2) and each HMIWI 
subject to the emission limits under Sec.  60.33e(a)(2) to undergo an 
initial air pollution control device inspection, as applicable, that is 
at least as protective as the following within 1 year following 
approval of the State plan:
    (1) At a minimum, an inspection shall include the following:
    (i) Inspect air pollution control device(s) for proper operation, 
if applicable;
    (ii) Ensure proper calibration of thermocouples, sorbent feed 
systems, and any other monitoring equipment; and
    (iii) Generally observe that the equipment is maintained in good 
operating condition.
    (2) Within 10 operating days following an air pollution control 
device inspection, all necessary repairs shall be completed unless the 
owner or operator obtains written approval from the State agency 
establishing a date whereby all necessary repairs of the designated 
facility shall be completed.
    (d) For approval, a State plan shall require each small HMIWI 
subject to the emission limits under Sec.  60.33e(b)(2) and each HMIWI 
subject to the emission limits under Sec.  60.33e(a)(2) to undergo an 
air pollution control device inspection, as applicable, annually (no 
more than 12 months following the previous annual air pollution control 
device inspection), as outlined in paragraph (c) of this section.
    5. Section 60.37e is amended as follows:
    a. By revising paragraph (a);
    b. By revising paragraphs (b) introductory text and (b)(1);
    c. By redesignating paragraphs (c) and (d) as paragraphs (d) and 
(e);
    d. By redesignating paragraphs (b)(2) through (b)(5) as paragraphs 
(c)(1) through (c)(4);
    e. By adding a new paragraph (b)(2);
    f. By adding paragraph (c) introductory text;
    g. By revising newly redesignated paragraphs (c)(3) and (c)(4);
    h. By revising newly redesignated paragraph (d);
    i. By revising newly redesignated paragraph (e) introductory text;
    j. By revising newly redesignated paragraph (e)(3); and
    k. By adding paragraph (f).


Sec.  60.37e  Compliance, performance testing, and monitoring 
guidelines.

    (a) Except as provided in paragraph (b) of this section, for 
approval, a State plan shall include the requirements for compliance 
and performance testing listed in Sec.  60.56c of subpart Ec of this 
part, with the following exclusions:
    (1) For a designated facility as defined in Sec.  60.32e(a)(1) 
subject to the emission limits in Sec.  60.33e(a)(1), excluding the 
test methods listed in Sec.  60.56c(b)(7) and (8), the fugitive 
emissions testing requirements under Sec.  60.56c(b)(14) and (c)(3), 
the CO CEMS requirements under Sec.  60.56c(c)(4), and the compliance 
requirements for monitoring listed in Sec.  60.56c(c)(5)(ii) through 
(v), (c)(6), (c)(7), (e)(6) through (10), (f)(7) through (10), (g)(6) 
through (10), and (h).
    (2) For a designated facility as defined in Sec.  60.32e(a)(2) 
subject to the emission limits in Sec.  60.33e(a)(2), excluding the 
annual fugitive emissions testing requirements under Sec.  
60.56c(c)(3), the CO CEMS requirements under Sec.  60.56c(c)(4), and 
the compliance requirements for monitoring listed in Sec.  
60.56c(c)(5)(ii) through (v), (c)(6), (c)(7), (e)(6) through (10), 
(f)(7) through (10), and (g)(6) through (10). Sources subject to the 
emission limits under Sec.  60.33e(a)(2) may, however, elect to use CO 
CEMS as specified under Sec.  60.56c(c)(4) or bag leak detection 
systems as specified under Sec.  60.57c(h).
    (b) Except as provided in paragraphs (b)(1) and (b)(2) of this 
section, for approval, a State plan shall require each small HMIWI 
subject to the emission limits under Sec.  60.33e(b) to meet the 
performance testing requirements listed in Sec.  60.56c of subpart Ec 
of this part. The 2,000 lb/week limitation under Sec.  60.33e(b) does 
not apply during performance tests.

[[Page 72996]]

    (1) For a designated facility as defined in Sec.  60.32e(a)(1) 
subject to the emission limits under Sec.  60.33e(b)(1), excluding the 
test methods listed in Sec.  60.56c(b)(7), (8), (12), (13) (Pb and Cd), 
and (14), the annual PM, CO, and HCl emissions testing requirements 
under Sec.  60.56c(c)(2), the annual fugitive emissions testing 
requirements under Sec.  60.56c(c)(3), the CO CEMS requirements under 
Sec.  60.56c(c)(4), and the compliance requirements for monitoring 
listed in Sec.  60.56c(c)(5) through (7), and (d) through (k).
    (2) For a designated facility as defined in Sec.  60.32e(a)(2) 
subject to the emission limits under Sec.  60.33e(b)(2), excluding the 
annual fugitive emissions testing requirements under Sec.  
60.56c(c)(3), the CO CEMS requirements under Sec.  60.56c(c)(4), and 
the compliance requirements for monitoring listed in Sec.  
60.56c(c)(5)(ii) through (v), (c)(6), (c)(7), (e)(6) through (10), 
(f)(7) through (10), and (g)(6) through (10). Sources subject to the 
emission limits under Sec.  60.33e(b)(2) may, however, elect to use CO 
CEMS as specified under Sec.  60.56c(c)(4) or bag leak detection 
systems as specified under Sec.  60.57c(h).
    (c) For approval, a State plan shall require each small HMIWI 
subject to the emission limits under Sec.  60.33e(b) that is not 
equipped with an air pollution control device to meet the following 
compliance and performance testing requirements:
* * * * *
    (3) Except as provided in paragraph (c)(4) of this section, 
operation of the designated facility above the maximum charge rate and 
below the minimum secondary chamber temperature (each measured on a 3-
hour rolling average) simultaneously shall constitute a violation of 
the PM, CO, and dioxin/furan emission limits.
    (4) The owner or operator of a designated facility may conduct a 
repeat performance test within 30 days of violation of applicable 
operating parameter(s) to demonstrate that the designated facility is 
not in violation of the applicable emission limit(s). Repeat 
performance tests conducted pursuant to this paragraph must be 
conducted using the identical operating parameters that indicated a 
violation under paragraph (c)(3) of this section.
    (d) For approval, a State plan shall include the requirements for 
monitoring listed in Sec.  60.57c of subpart Ec of this part for HMIWI 
subject to the emission limits under Sec.  60.33e(a) and (b), except as 
provided for under paragraph (e) of this section.
    (e) For approval, a State plan shall require small HMIWI subject to 
the emission limits under Sec.  60.33e(b) that are not equipped with an 
air pollution control device to meet the following monitoring 
requirements:
* * * * *
    (3) The owner or operator of a designated facility shall obtain 
monitoring data at all times during HMIWI operation except during 
periods of monitoring equipment malfunction, calibration, or repair. At 
a minimum, valid monitoring data shall be obtained for 75 percent of 
the operating hours per day for 90 percent of the operating hours per 
calendar quarter that the designated facility is combusting hospital 
waste and/or medical/infectious waste.
    (f) The owner or operator of a designated facility as defined in 
Sec.  60.32e(a)(2) subject to emission limits under Sec.  60.33e(a)(2) 
or (b)(2) may use the results of previous emissions tests to 
demonstrate compliance with the emission limits, provided that the 
conditions in paragraphs (f)(1) through (f)(3) of this section are met:
    (1) The designated facility's previous emissions tests must have 
been conducted using the applicable procedures and test methods listed 
in Sec.  60.56c(b) of subpart Ec of this part. Previous emissions test 
results obtained using EPA-accepted voluntary consensus standards are 
also acceptable.
    (2) The HMIWI at the designated facility shall currently be 
operated in a manner (e.g., with charge rate, secondary chamber 
temperature, etc.) that would be expected to result in the same or 
lower emissions than observed during the previous emissions test(s), 
and the HMIWI may not have been modified such that emissions would be 
expected to exceed (notwithstanding normal test-to-test variability) 
the results from previous emissions test(s).
    (3) The previous emissions test(s) must have been conducted in 1996 
or later.
    6. Section 60.38e is amended as follows:
    a. By revising paragraph (a);
    b. By revising paragraph (b) introductory text; and
    c. By revising paragraph (b)(1).


Sec.  60.38e  Reporting and recordkeeping guidelines.

    (a) Except as provided in paragraphs (a)(1) and (a)(2) of this 
section, for approval, a State plan shall include the reporting and 
recordkeeping requirements listed in Sec.  60.58c(b) through (g) of 
subpart Ec of this part.
    (1) For a designated facility as defined in Sec.  60.32e(a)(1) 
subject to emission limits under Sec.  60.33e(a)(1) or (b)(1), 
excluding Sec.  60.58c(b)(2)(ii) (fugitive emissions), (b)(2)(viii) 
(NOX reagent), (b)(2)(xvii) (air pollution control device 
inspections), (b)(2)(xviii) (bag leak detection system alarms), 
(b)(2)(xix) (CO CEMS data), and (b)(7) (siting documentation).
    (2) For a designated facility as defined in Sec.  60.32e(a)(2) 
subject to emission limits under Sec.  60.33e(a)(2) or (b)(2), 
excluding Sec.  60.58c(b)(2)(xviii) (bag leak detection system alarms), 
(b)(2)(xix) (CO CEMS data), and (b)(7) (siting documentation).
    (b) For approval, a State plan shall require the owner or operator 
of each HMIWI subject to the emission limits under Sec.  60.33e to:
    (1) As specified in Sec.  60.36e, maintain records of the annual 
equipment inspections that are required for each HMIWI subject to the 
emission limits under Sec.  60.33e(a)(2) and (b), and the annual air 
pollution control device inspections that are required for each HMIWI 
subject to the emission limits under Sec.  60.33e(a)(2) and (b)(2), any 
required maintenance, and any repairs not completed within 10 days of 
an inspection or the timeframe established by the State regulatory 
agency; and
* * * * *
    7. Section 60.39e is amended as follows:
    a. By revising paragraph (a);
    b. By revising paragraph (c) introductory text;
    c. By revising paragraph (c)(1);
    d. By revising paragraph (d)(3); and
    e. By revising paragraph (f).


Sec.  60.39e  Compliance times.

    (a) Each State in which a designated facility is operating shall 
submit to the Administrator a plan to implement and enforce the 
emission guidelines as specified in paragraphs (a)(1) and (a)(2) of 
this section:
    (1) Not later than September 15, 1998, for the emission guidelines 
as promulgated on September 15, 1997.
    (2) Not later than [DATE 1 YEAR AFTER DATE OF PUBLICATION OF THE 
FINAL RULE IN THE Federal Register], for the emission guidelines as 
amended on [DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal 
Register].
* * * * *
    (c) State plans that specify measurable and enforceable incremental 
steps of progress towards compliance for designated facilities planning 
to install the necessary air pollution control equipment may allow 
compliance on or before the date 3 years after EPA approval of the 
State plan (but not later than September 16, 2002), for the emission 
guidelines as promulgated on

[[Page 72997]]

September 15, 1997, and not later than [DATE 5 YEARS AFTER PUBLICATION 
OF THE FINAL RULE IN THE Federal Register] for the emission guidelines 
as amended on [DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal 
Register]. Suggested measurable and enforceable activities to be 
included in State plans are:
    (1) Date for submitting a petition for site-specific operating 
parameters under Sec.  60.56c(j) of subpart Ec of this part.
* * * * *
    (d) * * *
    (3) If an extension is granted, require compliance with the 
emission guidelines on or before the date 3 years after EPA approval of 
the State plan (but not later than September 16, 2002), for the 
emission guidelines as promulgated on September 15, 1997, and not later 
than [DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE Federal 
Register] for the emission guidelines as amended on [DATE OF 
PUBLICATION OF THE FINAL RULE IN THE Federal Register].
* * * * *
    (f) The Administrator shall develop, implement, and enforce a plan 
for existing HMIWI located in any State that has not submitted an 
approvable plan within 2 years after September 15, 1997, for the 
emission guidelines as promulgated on September 15, 1997, and within 2 
years after [DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal 
Register] for the emission guidelines as amended on [DATE OF 
PUBLICATION OF THE FINAL RULE IN THE Federal Register]. Such plans 
shall ensure that each designated facility is in compliance with the 
provisions of this subpart no later than 5 years after September 15, 
1997, for the emission guidelines as promulgated on September 15, 1997, 
and no later than 5 years after [DATE OF PUBLICATION OF THE FINAL RULE 
IN THE Federal Register] for the emission guidelines as amended on 
[DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register].
    8. The heading to Table 1 to subpart Ce is revised to read as 
follows:
    Table 1 to Subpart Ce of Part 60-Emission Limits for Small, Medium, 
and Large HMIWI at Designated Facilities As Defined in Sec.  
60.32e(a)(1)
    9. Amend Subpart Ce by adding Table 1A to subpart Ce to read as 
follows:

 Table 1A--to Subpart Ce of Part 60-Emission Limits for Small, Medium, and Large HMIWI at Designated Facilities
                                        as Defined in Sec.   60.32e(a)(2)
----------------------------------------------------------------------------------------------------------------
                                                                                  Emission limits
                                                                 -----------------------------------------------
             Pollutant                Units  (7 percent oxygen,                     HMIWI size
                                              dry basis)         -----------------------------------------------
                                                                       Small          Medium           Large
----------------------------------------------------------------------------------------------------------------
Particulate matter.................  Milligrams per dry standard      39 (0.017)      28 (0.012)     13 (0.0056)
                                      cubic meter (mg/dscm)
                                      (grains per dry standard
                                      cubic foot (gr/dscf)).
Carbon monoxide....................  Parts per million by volume             8.2             3.0             3.9
                                      (ppmv).
Dioxins/furans.....................  Nanograms per dry standard     8.3 (3.7) or  0.63 (0.28) or   1.6 (0.70) or
                                      cubic meter total dioxins/          0.0080          0.0097   0.029 (0.013)
                                      furans (ng/dscm) (grains          (0.0035)        (0.0043)
                                      per billion dry standard
                                      cubic feet (gr/10\9\
                                      dscf)) or ng/dscm TEQ (gr/
                                      10\9\ dscf).
Hydrogen chloride..................  Ppmv.......................             4.5             2.5             2.4
Sulfur dioxide.....................  Ppmv.......................             2.8             2.8             2.8
Nitrogen oxides....................  Ppmv.......................             200             200             140
Lead...............................  mg/dscm (grains per            0.18 (0.079)  0.017 (0.0075)  0.013 (0.0057)
                                      thousand dry standard
                                      cubic feet (gr/10\3\
                                      dscf)).
Cadmium............................  mg/dscm (gr/10\3\ dscf)....  0.012 (0.0053)          0.0071          0.0041
                                                                                        (0.0031)        (0.0018)
Mercury............................  mg/dscm (gr/10\3\ dscf)....          0.0075          0.0079          0.0095
                                                                        (0.0033)        (0.0035)        (0.0042)
----------------------------------------------------------------------------------------------------------------

    10. The heading to Table 2 to subpart Ce is revised to read as 
follows:
    Table 2 to Subpart Ce of Part 60. Emission Limits for Small HMIWI 
which Meet the Criteria under Sec.  60.33e(b)(1)
    11. Amend Subpart Ce by adding Table 2A to subpart Ce to read as 
follows:

 Table 2a to Subpart Ce of Part 60-Emission Limits for Small HMIWI Which
               Meet the Criteria Under Sec.   60.33e(b)(2)
------------------------------------------------------------------------
                                     Units (7 percent     HMIWI emission
           Pollutant                oxygen, dry basis)        limits
------------------------------------------------------------------------
Particulate matter.............  mg/dscm (gr/dscf)......      69 (0.030)
Carbon monoxide................  Ppmv...................              12
Dioxins/furans.................  ng/dscm total dioxins/      130 (57) or
                                  furans (gr/10\9\ dscf)       2.6 (1.2)
                                  or ng/dscm TEQ (gr/
                                  10\9\ dscf).
Hydrogen chloride..............  Ppmv...................             440
Sulfur dioxide.................  Ppmv...................              43
Nitrogen oxides................  Ppmv...................             110
Lead...........................  Mg/dscm (gr/10\3\ dscf)     0.35 (0.16)
Cadmium........................  Mg/dscm (gr/10\3\ dscf)   0.068 (0.030)
Mercury........................  Mg/dscm (gr/10\3\ dscf)          0.0040
                                                                (0.0018)
------------------------------------------------------------------------


[[Page 72998]]

Subpart Ec--[Amended]

    12. Section 60.50c is amended as follows:
    a. By revising paragraph (a);
    b. By adding paragraph (m); and
    c. By adding paragraph (n).


Sec.  60.50c  Applicability and delegation of authority.

    (a) Except as provided in paragraphs (b) through (h) of this 
section, the affected facility to which this subpart applies is each 
individual hospital/medical/infectious waste incinerator (HMIWI):
    (1) For which construction is commenced after June 20, 1996 but no 
later than December 1, 2008; or
    (2) For which modification is commenced after March 16, 1998 but no 
later than [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE 
Federal Register].
    (3) For which construction is commenced after December 1, 2008; or
    (4) For which modification is commenced after [DATE 6 MONTHS AFTER 
PUBLICATION OF THE FINAL RULE IN THE Federal Register].
* * * * *
    (m) The requirements of this subpart as promulgated on September 
15, 1997, shall apply to the affected facilities defined in paragraph 
(a)(1) and (2) of this section until the applicable compliance date of 
the requirements of subpart Ce of this part, as amended on [DATE OF 
PUBLICATION OF THE FINAL RULE IN THE Federal Register]. Upon the 
compliance date of the requirements of the amended subpart Ce of this 
part, affected facilities as defined in paragraph (a) of this section 
are no longer subject to the requirements of this subpart, but are 
subject to the requirements of subpart Ce of this part, as amended on 
[DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register]. 
Compliance with subpart Ce of this part, as amended on [DATE OF 
PUBLICATION OF THE FINAL RULE IN THE Federal Register] is required on 
or before the date 3 years after EPA approval of the State plan for 
States in which an affected facility as defined in paragraph (a) of 
this section is located (but not later than the date 5 years after 
promulgation of the amended subpart).
    (n) The requirements of this subpart, as amended on [DATE OF 
PUBLICATION OF THE FINAL RULE IN THE Federal Register], shall become 
effective [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE 
Federal Register].
    13. Section 60.51c is amended by adding definitions for ``Bag leak 
detection system'' and ``Minimum reagent flow rate'' in alphabetical 
order and revising the definition for ``Minimum secondary chamber 
temperature'' to read as follows:


Sec.  60.51c  Definitions.

    Bag leak detection system means an instrument that is capable of 
monitoring PM loadings in the exhaust of a fabric filter in order to 
detect bag failures. A bag leak detection system includes, but is not 
limited to, an instrument that operates on triboelectric, light-
scattering, light-transmittance, or other effects to monitor relative 
PM loadings.
* * * * *
    Minimum reagent flow rate means 90 percent of the highest 3-hour 
average reagent flow rate at the inlet to the selective noncatalytic 
reduction technology (taken, at a minimum, once every minute) measured 
during the most recent performance test demonstrating compliance with 
the NOX emission limit.
* * * * *
    Minimum secondary chamber temperature means 90 percent of the 
highest 3-hour average secondary chamber temperature (taken, at a 
minimum, once every minute) measured during the most recent performance 
test demonstrating compliance with the PM, CO, dioxin/furan, and 
NOX emission limits.
* * * * *
    14. Section 60.52c is amended as follows:
    a. By revising paragraph (a);
    b. By revising paragraph (b); and
    c. By revising paragraph (c).


Sec.  60.52c  Emission limits.

    (a) On and after the date on which the initial performance test is 
completed or is required to be completed under Sec.  60.8, whichever 
date comes first, no owner or operator of an affected facility shall 
cause to be discharged into the atmosphere:
    (1) From an affected facility as defined in Sec.  60.50c(a)(1) and 
(2), any gases that contain stack emissions in excess of the limits 
presented in Table 1 to this subpart.
    (2) From an affected facility as defined in Sec.  60.50c(a)(3) and 
(4), any gases that contain stack emissions in excess of the limits 
presented in Table 1A to this subpart.
    (b) On and after the date on which the initial performance test is 
completed or is required to be completed under Sec.  60.8, whichever 
date comes first, no owner or operator of an affected facility shall 
cause to be discharged into the atmosphere:
    (1) From an affected facility as defined in Sec.  60.50c(a)(1) and 
(2), any gases that exhibit greater than 10 percent opacity (6-minute 
block average).
    (2) From an affected facility as defined in Sec.  60.50c(a)(3) and 
(4), any gases that exhibit greater than 2 percent opacity (6-minute 
block average).
    (c) On and after the date on which the initial performance test is 
completed or is required to be completed under Sec.  60.8, whichever 
date comes first, no owner or operator of an affected facility as 
defined in Sec.  60.50c(a)(1) and (2) and utilizing a large HMIWI, and 
in Sec.  60.50c(a)(3) and (4), shall cause to be discharged into the 
atmosphere visible emissions of combustion ash from an ash conveying 
system (including conveyor transfer points) in excess of 5 percent of 
the observation period (i.e., 9 minutes per 3-hour period), as 
determined by EPA Reference Method 22 of appendix A-1 of this part, 
except as provided in paragraphs (d) and (e) of this section.
* * * * *
    15. Section 60.56c is amended as follows:
    a. By revising paragraph (b) introductory text;
    b. By revising paragraphs (b)(4) and (b)(6);
    c. By redesignating paragraphs (b)(7) through (b)(12) as paragraphs 
(b)(9) through (b)(14);
    d. By adding paragraphs (b)(7) and (b)(8);
    e. By revising newly redesignated paragraphs (b)(9) and (b)(10);
    f. By revising newly redesignated paragraph (b)(11) introductory 
text;
    g. By revising newly redesignated paragraphs (b)(12) and (b)(13);
    h. By revising paragraphs (c)(2) and (c)(3);
    i. By redesignating paragraph (c)(4) as paragraph (c)(5);
    j. By revising newly redesignated paragraph (c)(5);
    k. By adding paragraphs (c)(4), (c)(6), and (c)(7);
    l. By revising paragraph (d) introductory text;
    m. By revising paragraph (e) introductory text;
    n. By adding paragraphs (e)(6) through (e)(10);
    o. By revising paragraph (f) introductory text;
    p. By adding paragraphs (f)(7) through (f)(10);
    q. By revising paragraph (g) introductory text;
    r. By adding paragraphs (g)(6) through (g)(10);
    s. By redesignating paragraphs (h) through (j) as paragraphs (i) 
through (k);

[[Page 72999]]

    t. By adding paragraph (h); and
    u. By revising newly redesignated paragraphs (i) and (j).


Sec.  60.56c  Compliance and performance testing.

* * * * *
    (b) The owner or operator of an affected facility as defined in 
Sec.  60.50c(a)(1) and (2), shall conduct an initial performance test 
as required under Sec.  60.8 to determine compliance with the emission 
limits using the procedures and test methods listed in paragraphs 
(b)(1) through (b)(6) and (b)(9) through (b)(14) of this section. The 
owner or operator of an affected facility as defined in Sec.  
60.50c(a)(3) and (4), shall conduct an initial performance test as 
required under Sec.  60.8 to determine compliance with the emission 
limits using the procedures and test methods listed in paragraphs 
(b)(1) through (b)(14). The use of the bypass stack during a 
performance test shall invalidate the performance test.
* * * * *
    (4) EPA Reference Method 3, 3A, or 3B of appendix A-2 of this part 
shall be used for gas composition analysis, including measurement of 
oxygen concentration. EPA Reference Method 3, 3A, or 3B of appendix A-2 
of this part shall be used simultaneously with each of the other EPA 
reference methods. As an alternative to EPA Reference Method 3B, ASME 
PTC-19-10-1981 Part 10 may be used.
* * * * *
    (6) EPA Reference Method 5 of appendix A-3 or Method 29 of appendix 
A-8 of this part shall be used to measure the particulate matter 
emissions. As an alternative, PM CEMS may be used as specified in 
paragraph (c)(5) of this section.
    (7) EPA Reference Method 7E of appendix A-4 of this part shall be 
used to measure NOX emissions.
    (8) EPA Reference Method 6C of appendix A-4 of this part shall be 
used to measure SO2 emissions.
    (9) EPA Reference Method 9 of appendix A-4 of this part shall be 
used to measure stack opacity. As an alternative, demonstration of 
compliance with the PM standards using bag leak detection systems as 
specified in Sec.  60.57c(h) or PM CEMS as specified in paragraph 
(c)(5) of this section is considered demonstrative of compliance with 
the opacity requirements.
    (10) EPA Reference Method 10 or 10B of appendix A-4 of this part 
shall be used to measure the CO emissions. As specified in paragraph 
(c)(4) of this section, use of CO CEMS are required for affected 
facilities under Sec.  60.50c(a)(3) and (4).
    (11) EPA Reference Method 23 of appendix A-7 of this part shall be 
used to measure total dioxin/furan emissions. As an alternative, an 
owner or operator may elect to sample dioxins/furans by installing, 
calibrating, maintaining, and operating a continuous automated sampling 
system for monitoring dioxin/furan emissions as specified in paragraph 
(c)(6) of this section. For Method 23 of appendix A-7 sampling, the 
minimum sample time shall be 4 hours per test run. If the affected 
facility has selected the toxic equivalency standards for dioxins/
furans, under Sec.  60.52c, the following procedures shall be used to 
determine compliance:
* * * * *
    (12) EPA Reference Method 26 or 26A of appendix A-8 of this part 
shall be used to measure HCl emissions. As an alternative, HCl CEMS may 
be used as specified in paragraph (c)(5) of this section.
    (13) EPA Reference Method 29 of appendix A-8 of this part shall be 
used to measure Pb, Cd, and Hg emissions. As an alternative, Hg 
emissions may be measured using ASTM D6784-02. As an alternative for 
Pb, Cd, and Hg, multi-metals CEMS or Hg CEMS, may be used as specified 
in paragraph (c)(5) of this section. As an alternative, an owner or 
operator may elect to sample Hg by installing, calibrating, 
maintaining, and operating a continuous automated sampling system for 
monitoring Hg emissions as specified in paragraph (c)(7) of this 
section.
* * * * *
    (c) * * *
    (2) Except as provided in paragraphs (c)(4) and (c)(5) of this 
section, determine compliance with the PM, CO, and HCl emission limits 
by conducting an annual performance test (no more than 12 months 
following the previous performance test) using the applicable 
procedures and test methods listed in paragraph (b) of this section. If 
all three performance tests over a 3-year period indicate compliance 
with the emission limit for a pollutant (PM, CO, or HCl), the owner or 
operator may forego a performance test for that pollutant for the 
subsequent 2 years. At a minimum, a performance test for PM, CO, and 
HCl shall be conducted every third year (no more than 36 months 
following the previous performance test). If a performance test 
conducted every third year indicates compliance with the emission limit 
for a pollutant (PM, CO, or HCl), the owner or operator may forego a 
performance test for that pollutant for an additional 2 years. If any 
performance test indicates noncompliance with the respective emission 
limit, a performance test for that pollutant shall be conducted 
annually until all annual performance tests over a 3-year period 
indicate compliance with the emission limit. The use of the bypass 
stack during a performance test shall invalidate the performance test.
    (3) For an affected facility as defined in Sec.  60.50c(a)(1) and 
(2) and utilizing a large HMIWI, and in Sec.  60.50c(a)(3) and (4), 
determine compliance with the visible emission limits for fugitive 
emissions from flyash/bottom ash storage and handling by conducting a 
performance test using EPA Reference Method 22 of appendix A-7 on an 
annual basis (no more than 12 months following the previous performance 
test).
    (4) For an affected facility as defined in Sec.  60.50c(a)(3) and 
(4), determine compliance with the CO emission limit using a CO CEMS 
according to paragraphs (c)(4)(i) through (c)(4)(iii) of this section:
    (i) Determine compliance with the CO emission limit using a 24-hour 
block average, calculated as specified in section 12.4.1 of EPA 
Reference Method 19 of appendix A-7 of this part.
    (ii) Operate the CO CEMS in accordance with the applicable 
procedures under appendices B and F of this part.
    (iii) Use of a CO CEMS may be substituted for the CO annual 
performance test and minimum secondary chamber temperature to 
demonstrate compliance with the CO emission limit.
    (5) Facilities using CEMS to demonstrate compliance with any of the 
emission limits under Sec.  60.52c shall:
    (i) For an affected facility as defined in Sec.  60.50c(a)(1) and 
(2), determine compliance with the appropriate emission limit(s) using 
a 12-hour rolling average, calculated each hour as the average of the 
previous 12 operating hours (not including startup, shutdown, or 
malfunction).
    (ii) For an affected facility as defined in Sec.  60.50c(a)(3) and 
(4), determine compliance with the appropriate emission limit(s) using 
a 24-hour block average, calculated as specified in section 12.4.1 of 
EPA Reference Method 19 of appendix A-7 of this part.
    (iii) Operate all CEMS in accordance with the applicable procedures 
under appendices B and F of this part. For those CEMS for which 
performance specifications have not yet been promulgated (HCl, multi-
metals), this option for an affected facility as defined in Sec.  
60.50c(a)(3) and (4) takes effect on

[[Page 73000]]

the date a final performance specification is published in the Federal 
Register or the date of approval of a site-specific monitoring plan.
    (iv) For an affected facility as defined in Sec.  60.50c(a)(3) and 
(4), be allowed to substitute use of an HCl CEMS for the HCl annual 
performance test, minimum HCl sorbent flow rate, and minimum scrubber 
liquor pH to demonstrate compliance with the HCl emission limit.
    (v) For an affected facility as defined in Sec.  60.50c(a)(3) and 
(4), be allowed to substitute use of a PM CEMS for the PM annual 
performance test and minimum pressure drop across the wet scrubber, if 
applicable, to demonstrate compliance with the PM emission limit.
    (6) An affected facility as defined in Sec.  60.50c(a)(3) and (4) 
using a continuous automated sampling system to demonstrate compliance 
with the dioxin/furan emission limits under Sec.  60.52c shall record 
the output of the system and analyze the sample according to EPA 
Reference Method 23 of 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 monitors is 
published in the Federal Register or the date of approval of a site-
specific monitoring plan. The owner or operator of an affected facility 
as defined in Sec.  60.50c(a)(3) and (4) who elects to continuously 
sample dioxin/furan emissions instead of sampling and testing using EPA 
Reference Method 23 of appendix A-7 shall install, calibrate, maintain, 
and operate a continuous automated sampling system and shall comply 
with the requirements specified in Sec.  60.58b(p) and (q) of subpart 
Eb of this part.
    (7) An affected facility as defined in Sec.  60.50c(a)(3) and (4) 
using a continuous automated sampling system to demonstrate compliance 
with the Hg emission limits under Sec.  60.52c shall record the output 
of the system and analyze the sample at set intervals using any 
suitable determinative technique that can meet appropriate performance 
criteria. This option to use a continuous automated sampling system 
takes effect on the date a final performance specification applicable 
to Hg from monitors is published in the Federal Register or the date of 
approval of a site-specific monitoring plan. The owner or operator of 
an affected facility as defined in Sec.  60.50c(a)(3) and (4) who 
elects to continuously sample Hg emissions instead of sampling and 
testing using EPA Reference Method 29 of appendix A-8 of this part, or 
an approved alternative method for measuring Hg emissions, shall 
install, calibrate, maintain, and operate a continuous automated 
sampling system and shall comply with the requirements specified in 
Sec.  60.58b(p) and (q) of subpart Eb of this part.
    (d) Except as provided in paragraphs (c)(4) through (c)(7) of this 
section, the owner or operator of an affected facility equipped with a 
dry scrubber followed by a fabric filter, a wet scrubber, or a dry 
scrubber followed by a fabric filter and wet scrubber shall:
* * * * *
    (e) Except as provided in paragraph (i) of this section, for 
affected facilities equipped with a dry scrubber followed by a fabric 
filter:
* * * * *
    (6) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the CO emission limit as measured by the CO 
CEMS specified in paragraph (c)(4) of this section shall constitute a 
violation of the CO emission limit.
    (7) For an affected facility as defined in Sec.  60.50c(a)(3) and 
(4), failure to initiate corrective action within 1 hour of a bag leak 
detection system alarm; or failure to operate and maintain the fabric 
filter such that the alarm is not engaged for more than 5 percent of 
the total operating time in a 6-month block reporting period shall 
constitute a violation of the PM emission limit. If inspection of the 
fabric filter demonstrates that no corrective action is required, no 
alarm time is counted. If corrective action is required, each alarm is 
counted as a minimum of 1 hour. If it takes longer than 1 hour to 
initiate corrective action, the alarm time is counted as the actual 
amount of time taken to initiate corrective action. If the bag leak 
detection system is used to demonstrate compliance with the opacity 
limit, this would also constitute a violation of the opacity emission 
limit.
    (8) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the PM, HCl, Pb, Cd, and/or Hg emission 
limit as measured by the CEMS specified in paragraph (c)(5) of this 
section shall constitute a violation of the applicable emission limit.
    (9) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the CDD/CDF emission limit as measured by 
the continuous automated sampling system specified in paragraph (c)(6) 
of this section shall constitute a violation of the CDD/CDF emission 
limit.
    (10) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the Hg emission limit as measured by the 
continuous automated sampling system specified in paragraph (c)(7) of 
this section shall constitute a violation of the Hg emission limit.
    (f) Except as provided in paragraph (i) of this section, for 
affected facilities equipped with a wet scrubber:
* * * * *
    (7) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the CO emission limit as measured by the CO 
CEMS specified in paragraph (c)(4) of this section shall constitute a 
violation of the CO emission limit.
    (8) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the PM, HCl, Pb, Cd, and/or Hg emission 
limit as measured by the CEMS specified in paragraph (c)(5) of this 
section shall constitute a violation of the applicable emission limit.
    (9) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the CDD/CDF emission limit as measured by 
the continuous automated sampling system specified in paragraph (c)(6) 
of this section shall constitute a violation of the CDD/CDF emission 
limit.
    (10) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the Hg emission limit as measured by the 
continuous automated sampling system specified in paragraph (c)(7) of 
this section shall constitute a violation of the Hg emission limit.
    (g) Except as provided in paragraph (i) of this section, for 
affected facilities equipped with a dry scrubber followed by a fabric 
filter and a wet scrubber:
* * * * *
    (6) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the CO emission limit as measured by the CO 
CEMS specified in paragraph (c)(4) of this section shall constitute a 
violation of the CO emission limit.
    (7) For an affected facility as defined in Sec.  60.50c(a)(3) and 
(4), failure to initiate corrective action within 1 hour of a bag leak 
detection system alarm; or failure to operate and maintain the fabric 
filter such that the alarm is not engaged for more than 5 percent of 
the total operating time in a 6-month block reporting period shall 
constitute a violation of the PM emission limit. If inspection of the 
fabric filter demonstrates that no corrective action is required, no 
alarm time is counted. If corrective action is required, each alarm is 
counted as a minimum of 1 hour. If it takes longer than 1 hour to 
initiate corrective action, the alarm time is counted as the actual 
amount of time taken to initiate corrective action. If the bag leak 
detection system is used to demonstrate compliance with the opacity 
limit, this would also constitute a violation of the opacity emission 
limit.

[[Page 73001]]

    (8) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the PM, HCl, Pb, Cd, and/or Hg emission 
limit as measured by the CEMS specified in paragraph (c)(5) of this 
section shall constitute a violation of the applicable emission limit.
    (9) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the CDD/CDF emission limit as measured by 
the continuous automated sampling system specified in paragraph (c)(6) 
of this section shall constitute a violation of the CDD/CDF emission 
limit.
    (10) Operation of the affected facility as defined in Sec.  
60.50c(a)(3) and (4) above the Hg emission limit as measured by the 
continuous automated sampling system specified in paragraph (c)(7) of 
this section shall constitute a violation of the Hg emission limit.
    (h) The owner or operator of an affected facility as defined in 
Sec.  60.50c(a)(3) and (4) equipped with selective noncatalytic 
reduction technology shall:
    (1) Establish the maximum charge rate, the minimum secondary 
chamber temperature, and the minimum reagent flow rate as site specific 
operating parameters during the initial performance test to determine 
compliance with the emission limits;
    (2) Following the date on which the initial performance test is 
completed or is required to be completed under Sec.  60.8, whichever 
date comes first, ensure that the affected facility does not operate 
above the maximum charge rate, or below the minimum secondary chamber 
temperature or the minimum reagent flow rate measured as 3-hour rolling 
averages (calculated each hour as the average of the previous 3 
operating hours) at all times except during periods of startup, 
shutdown and malfunction. Operating parameter limits do not apply 
during performance tests.
    (3) Except as provided in paragraph (i) of this section, operation 
of the affected facility above the maximum charge rate, below the 
minimum secondary chamber temperature, and below the minimum reagent 
flow rate simultaneously shall constitute a violation of the 
NOX emission limit.
    (i) The owner or operator of an affected facility may conduct a 
repeat performance test within 30 days of violation of applicable 
operating parameter(s) to demonstrate that the affected facility is not 
in violation of the applicable emission limit(s). Repeat performance 
tests conducted pursuant to this paragraph shall be conducted using the 
identical operating parameters that indicated a violation under 
paragraph (e), (f), (g), or (h) of this section.
    (j) The owner or operator of an affected facility using an air 
pollution control device other than a dry scrubber followed by a fabric 
filter, a wet scrubber, a dry scrubber followed by a fabric filter and 
a wet scrubber, or selective noncatalytic reduction technology to 
comply with the emission limits under Sec.  60.52c shall petition the 
Administrator for other site-specific operating parameters to be 
established during the initial performance test and continuously 
monitored thereafter. The owner or operator shall not conduct the 
initial performance test until after the petition has been approved by 
the Administrator.
* * * * *
    16. Section 60.57c is amended as follows:
    a. By revising paragraph (a);
    b. By redesignating paragraphs (b) through (d) as paragraphs (c) 
through (e);
    c. By adding paragraph (b);
    d. By revising newly redesignated paragraphs (d) and (e); and
    e. By adding paragraphs (f), (g), and (h).


Sec.  60.57c  Monitoring requirements

    (a) Except as provided in Sec.  60.56c(c)(4) through (c)(7), the 
owner or operator of an affected facility shall install, calibrate (to 
manufacturers' specifications), maintain, and operate devices (or 
establish methods) for monitoring the applicable maximum and minimum 
operating parameters listed in Table 3 to this subpart (unless CEMS are 
used as a substitute for certain parameters as specified) such that 
these devices (or methods) measure and record values for these 
operating parameters at the frequencies indicated in Table 3 of this 
subpart at all times except during periods of startup and shutdown.
    (b) The owner or operator of an affected facility as defined in 
Sec.  60.50c(a)(3) and (4) that uses selective noncatalytic reduction 
technology shall install, calibrate (to manufacturers' specifications), 
maintain, and operate devices (or establish methods) for monitoring the 
operating parameters listed in Sec. 1A60.56c(h) such that the devices 
(or methods) measure and record values for the operating parameters at 
all times except during periods of startup and shutdown. Operating 
parameter values shall be measured and recorded at the following 
minimum frequencies:
    (1) Maximum charge rate shall be measured continuously and recorded 
once each hour;
    (2) Minimum secondary chamber temperature shall be measured 
continuously and recorded once each minute; and
    (3) Minimum reagent flow rate shall be measured hourly and recorded 
once each hour.
* * * * *
    (d) The owner or operator of an affected facility using an air 
pollution control device other than a dry scrubber followed by a fabric 
filter, a wet scrubber, a dry scrubber followed by a fabric filter and 
a wet scrubber, or selective noncatalytic reduction technology to 
comply with the emission limits under Sec.  60.52c shall install, 
calibrate (to manufacturers' specifications), maintain, and operate the 
equipment necessary to monitor the site-specific operating parameters 
developed pursuant to Sec.  60.56c(j).
    (e) The owner or operator of an affected facility shall obtain 
monitoring data at all times during HMIWI operation except during 
periods of monitoring equipment malfunction, calibration, or repair. At 
a minimum, valid monitoring data shall be obtained for 75 percent of 
the operating hours per day for 90 percent of the operating days per 
calendar quarter that the affected facility is combusting hospital 
waste and/or medical/infectious waste.
    (f) The owner or operator of an affected facility as defined in 
Sec.  60.50c(a)(3) and (4) shall ensure that each HMIWI subject to the 
emission limits in Sec.  60.52c undergoes an initial air pollution 
control device inspection that is at least as protective as the 
following:
    (1) At a minimum, an inspection shall include the following:
    (i) Inspect air pollution control device(s) for proper operation, 
if applicable;
    (ii) Ensure proper calibration of thermocouples, sorbent feed 
systems, and any other monitoring equipment; and
    (iii) Generally observe that the equipment is maintained in good 
operating condition.
    (2) Within 10 operating days following an air pollution control 
device inspection, all necessary repairs shall be completed unless the 
owner or operator obtains written approval from the Administrator 
establishing a date whereby all necessary repairs of the designated 
facility shall be completed.
    (g) The owner or operator of an affected facility as defined in 
Sec.  60.50c(a)(3) and (4) shall ensure that each HMIWI subject to the 
emission limits under Sec.  60.52c undergoes an air pollution control 
device inspection

[[Page 73002]]

annually (no more than 12 months following the previous annual air 
pollution control device inspection), as outlined in paragraphs (f)(1) 
and (f)(2) of this section.
    (h) For affected facilities as defined in Sec.  60.50c(a)(3) and 
(4) that use an air pollution control device that includes a fabric 
filter and are not demonstrating compliance using PM CEMS, determine 
compliance with the PM emission limit using a bag leak detection system 
and meet the requirements in paragraphs (h)(1) through (h)(12) of this 
section for each bag leak detection system.
    (1) Each triboelectric bag leak detection system shall be 
installed, calibrated, operated, and maintained according to the 
``Fabric Filter Bag Leak Detection Guidance,'' (EPA-454/R-98-015, 
September 1997). This document is available from the U.S. Environmental 
Protection Agency (U.S. EPA); Office of Air Quality Planning and 
Standards; Sector Policies and Programs Division; Measurement Policy 
Group (D-243-02), Research Triangle Park, NC 27711. This document is 
also available on the Technology Transfer Network (TTN) under Emission 
Measurement Center Continuous Emission Monitoring. Other types of bag 
leak detection systems shall be installed, operated, calibrated, and 
maintained in a manner consistent with the manufacturer's written 
specifications and recommendations.
    (2) The bag leak detection system shall be certified by the 
manufacturer to be capable of detecting PM emissions at concentrations 
of 10 milligrams per actual cubic meter (0.0044 grains per actual cubic 
foot) or less.
    (3) The bag leak detection system sensor shall provide an output of 
relative PM loadings.
    (4) The bag leak detection system shall be equipped with a device 
to continuously record the output signal from the sensor.
    (5) The bag leak detection system shall be equipped with an audible 
alarm system that will sound automatically when an increase in relative 
PM emissions over a preset level is detected. The alarm shall be 
located where it is easily heard by plant operating personnel.
    (6) For positive pressure fabric filter systems, a bag leak 
detector shall be installed in each baghouse compartment or cell.
    (7) For negative pressure or induced air fabric filters, the bag 
leak detector shall be installed downstream of the fabric filter.
    (8) Where multiple detectors are required, the system's 
instrumentation and alarm may be shared among detectors.
    (9) The baseline output shall be established by adjusting the range 
and the averaging period of the device and establishing the alarm set 
points and the alarm delay time according to section 5.0 of the 
``Fabric Filter Bag Leak Detection Guidance.''
    (10) Following initial adjustment of the system, the sensitivity or 
range, averaging period, alarm set points, or alarm delay time may not 
be adjusted. In no case may the sensitivity be increased by more than 
100 percent or decreased more than 50 percent over a 365-day period 
unless such adjustment follows a complete fabric filter inspection that 
demonstrates that the fabric filter is in good operating condition. 
Each adjustment shall be recorded.
    (11) Record the results of each inspection, calibration, and 
validation check.
    (12) Initiate corrective action within 1 hour of a bag leak 
detection system alarm; operate and maintain the fabric filter such 
that the alarm is not engaged for more than 5 percent of the total 
operating time in a 6-month block reporting period. If inspection of 
the fabric filter demonstrates that no corrective action is required, 
no alarm time is counted. If corrective action is required, each alarm 
is counted as a minimum of 1 hour. If it takes longer than 1 hour to 
initiate corrective action, the alarm time is counted as the actual 
amount of time taken to initiate corrective action.
    17. Section 60.58c is amended as follows:
    a. By revising paragraph (a)(2)(iv);
    b. By redesignating paragraphs (b)(2)(viii) through (b)(2)(xv) as 
paragraphs (b)(2)(ix) through (b)(2)(xvi);
    c. By adding paragraph (b)(2)(viii);
    d. By revising newly designated paragraph (b)(2)(xvi);
    e. By adding paragraphs (b)(2)(xvii) through (b)(2)(xix);
    f. By revising paragraphs (b)(6) and (b)(11);
    g. By revising paragraph (c) introductory text;
    h. By revising paragraphs (c)(1) and (c)(2);
    i. By adding paragraph (c)(4);
    j. By revising paragraph (d) introductory text;
    k. By revising paragraphs (d)(1) through (d)(3);
    l. By adding paragraphs (d)(9) through (d)(11); and
    m. By adding paragraph (g).


Sec.  60.58c  Reporting and recordkeeping requirements.

    (a) * * *
    (2) * * *
    (iv) If applicable, the petition for site-specific operating 
parameters under Sec.  60.56c(j).
* * * * *
    (b) * * *
    (2) * * *
    (viii) For affected facilities as defined in Sec.  60.50c(a)(3) and 
(4), amount and type of NOX reagent used during each hour of 
operation, as applicable;
* * * * *
    (xvi) For affected facilities complying with Sec.  60.56c(j) and 
Sec.  60.57c(d), the owner or operator shall maintain all operating 
parameter data collected;
    (xvii) For affected facilities as defined in Sec.  60.50c(a)(3) and 
(4), records of the annual air pollution control device inspections, 
any required maintenance, and any repairs not completed within 10 days 
of an inspection or the timeframe established by the Administrator.
    (xviii) For affected facilities as defined in Sec.  60.50c(a)(3) 
and (4), records of each bag leak detection system alarm, the time of 
the alarm, the time corrective action was initiated and completed, and 
a brief description of the cause of the alarm and the corrective action 
taken, as applicable.
    (xix) For affected facilities as defined in Sec.  60.50c(a)(3) and 
(4), concentrations of CO as determined by the continuous emission 
monitoring system.
* * * * *
    (6) The results of the initial, annual, and any subsequent 
performance tests conducted to determine compliance with the emission 
limits and/or to establish or re-establish operating parameters, as 
applicable, and a description, including sample calculations, of how 
the operating parameters were established or re-established, if 
applicable.
* * * * *
    (11) Records of calibration of any monitoring devices as required 
under Sec.  60.57c(a) through (d).
    (c) The owner or operator of an affected facility shall submit the 
information specified in paragraphs (c)(1) through (c)(4) of this 
section no later than 60 days following the initial performance test. 
All reports shall be signed by the facilities manager.
    (1) The initial performance test data as recorded under Sec.  
60.56c(b)(1) through (b)(14), as applicable.
    (2) The values for the site-specific operating parameters 
established pursuant to Sec.  60.56c(d), (h), or (j), as applicable, 
and a description, including sample calculations, of how the operating 
parameters were established during the initial performance test.
* * * * *

[[Page 73003]]

    (4) For each affected facility as defined in Sec.  60.50c(a)(3) and 
(4) that uses a bag leak detection system, analysis and supporting 
documentation demonstrating conformance with EPA guidance and 
specifications for bag leak detection systems in Sec.  60.57c(h).
    (d) An annual report shall be submitted 1 year following the 
submission of the information in paragraph (c) of this section and 
subsequent reports shall be submitted no more than 12 months following 
the previous report (once the unit is subject to permitting 
requirements under title V of the Clean Air Act, the owner or operator 
of an affected facility must submit these reports semiannually). The 
annual report shall include the information specified in paragraphs 
(d)(1) through (11) of this section. All reports shall be signed by the 
facilities manager.
    (1) The values for the site-specific operating parameters 
established pursuant to Sec.  60.56(d), (h), or (j), as applicable.
    (2) The highest maximum operating parameter and the lowest minimum 
operating parameter, as applicable, for each operating parameter 
recorded for the calendar year being reported, pursuant to Sec.  
60.56(d), (h), or (j), as applicable.
    (3) The highest maximum operating parameter and the lowest minimum 
operating parameter, as applicable, for each operating parameter 
recorded pursuant to Sec.  60.56(d), (h), or (j) for the calendar year 
preceding the year being reported, in order to provide the 
Administrator with a summary of the performance of the affected 
facility over a 2-year period.
* * * * *
    (9) For affected facilities as defined in Sec.  60.50c(a)(3) and 
(4), records of the annual air pollution control device inspection, any 
required maintenance, and any repairs not completed within 10 days of 
an inspection or the timeframe established by the Administrator.
    (10) For affected facilities as defined in Sec.  60.50c(a)(3) and 
(4), records of each bag leak detection system alarm, the time of the 
alarm, the time corrective action was initiated and completed, and a 
brief description of the cause of the alarm and the corrective action 
taken, as applicable.
    (11) For affected facilities as defined in Sec.  60.50c(a)(3) and 
(4), concentrations of CO as determined by the continuous emission 
monitoring system.
* * * * *
    (g) For affected facilities, as defined in Sec.  60.50c(a)(3) and 
(4), that choose to submit an electronic copy of stack test reports to 
EPA's WebFIRE data base, as of December 31, 2011, the owner or operator 
of an affected facility shall enter the test data into EPA's data base 
using the Electronic Reporting Tool located at http://www.epa.gov/ttn/chief/ert/ert_tool.html.
    18. The heading to Table 1 to subpart Ec is revised to read as 
follows:
    Table 1 to Subpart Ec of Part 60-Emission Limits for Small, Medium, 
and Large HMIWI at Affected Facilities as Defined in Sec.  60.50c(a)(1) 
and (2)
    19. Amend Subpart Ec by adding Table 1A to subpart Ec to read as 
follows:

 Table 1A--to Subpart Ec of Part 60-Emission Limits for Small, Medium, and Large HMIWI at Affected Facilities as
                                     Defined in Sec.   60.50c(a)(3) and (4)
----------------------------------------------------------------------------------------------------------------
                                                                                  Emission limits
                                                                 -----------------------------------------------
             Pollutant                 Units (7 percent oxygen,                     HMIWI size
                                              dry basis)         -----------------------------------------------
                                                                       Small          Medium           Large
----------------------------------------------------------------------------------------------------------------
Particulate matter.................  Milligrams per dry standard      39 (0.017)     23 (0.0099)     11 (0.0048)
                                      cubic meter (grains per
                                      dry standard cubic foot).
Carbon monoxide....................  Parts per million by volume             8.2             1.9             2.9
Dioxins/ furans....................  Nanograms per dry standard     8.3 (3.7) or  0.35 (0.16) or  0.60 (0.27) or
                                      cubic meter total dioxins/    0.0080 (0.00          0.0097  0.014 (0.0062)
                                      furans (grains per billion             35)        (0.0043)
                                      dry standard cubic feet)
                                      or nanograms per dry
                                      standard cubic meter TEQ
                                      (grains per billion dry
                                      standard cubic feet).
Hydrogen chloride..................  Parts per million by volume             4.5             1.8            0.75
Sulfur dioxide.....................  Parts per million by volume            0.78            0.78             1.9
Nitrogen oxides....................  Parts per million by volume              38              38             110
Lead...............................  Milligrams per dry standard    0.18 (0.079)   0.016 (0.070)         0.00047
                                      cubic meter (grains per                                          (0.00021)
                                      thousand dry standard
                                      cubic feet.
Cadmium............................  Milligrams per dry standard     0.012 (0.00          0.0071  0.00012 (0.000
                                      cubic meter (grains per                53)        (0.0031)            053)
                                      thousand dry standard
                                      cubic feet) or percent
                                      reduction.
Mercury............................  Milligrams per dry standard    0.0075 (0.00    0.0020 (0.00   0.00093 (0.00
                                      cubic meter (grains per                33)            088)            041)
                                      thousand dry standard
                                      cubic feet) or percent
                                      reduction.
----------------------------------------------------------------------------------------------------------------

[FR Doc. E8-27732 Filed 11-28-08; 8:45 am]
BILLING CODE 6560-50-P