[Federal Register Volume 78, Number 26 (Thursday, February 7, 2013)]
[Rules and Regulations]
[Pages 9112-9213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31632]



[[Page 9111]]

Vol. 78

Thursday,

No. 26

February 7, 2013

Part II





Environmental Protection Agency





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40 CFR Parts 60 and 241





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

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

[[Page 9112]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 241

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


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

AGENCY: Environmental Protection Agency.

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

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

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

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

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

I. Organization of This Document

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

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

[[Page 9113]]

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

A. Supplementary Information

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

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

[[Page 9114]]

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

B. Does this action apply to me?

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

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


[[Page 9115]]

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

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

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

D. Judicial Review

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

E. Executive Summary

Purpose of the Regulatory Action

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

Summary of Major Provisions for the Final Reconsideration Rule

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

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

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

[[Page 9116]]

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

Costs and Benefits

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

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

II. CISWI Reconsideration and Final Rule

A. Background Information

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

[[Page 9117]]

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

[[Page 9118]]

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

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

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

B. Summary of This Final Rule

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

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


[[Page 9119]]


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

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

[[Page 9120]]

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

[[Page 9121]]

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

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

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

[[Page 9122]]

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

C. Summary of Significant Changes Since Proposal

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

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

[[Page 9123]]

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

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

[[Page 9124]]

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

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

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

[[Page 9125]]

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

[[Page 9126]]

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

D. Technical Corrections and Clarifications

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

[[Page 9127]]

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

E. Major Public Comments and Responses

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

[[Page 9128]]

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

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

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

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

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

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

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

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

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

[[Page 9129]]

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

[[Page 9130]]

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

[[Page 9131]]

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

F. What other actions are we taking?

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

G. What are the impacts associated with the amendments?

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

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

[[Page 9132]]

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

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

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

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

[[Page 9133]]

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

[[Page 9134]]

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

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

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

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

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

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

[[Page 9135]]

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

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

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

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

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

III. NHSM Final Revisions

A. Statutory Authority

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

B. NHSM Rule History

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

[[Page 9136]]

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

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

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

C. Introduction--Summary of Regulations Being Finalized

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

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

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

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

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

[[Page 9137]]

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

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

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

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

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

[[Page 9138]]

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

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

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

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

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

[[Page 9139]]

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

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

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

[[Page 9140]]

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

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

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

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

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

[[Page 9141]]

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

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

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

[[Page 9142]]

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

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

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

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

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

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

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

[[Page 9143]]

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

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

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

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

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

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

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

[[Page 9144]]

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

[[Page 9145]]

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

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

[[Page 9146]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[[Page 9147]]

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

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

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

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

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

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

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

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

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

[[Page 9148]]

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

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

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

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

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

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

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

[[Page 9149]]

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

    \61\ See 76 FR 80481.
---------------------------------------------------------------------------

    A third commenter supported the agency's interpretation of what 
`can burn' means, stating that the fate and emissions of a contaminant, 
whether it is contained in a traditional fuel or a material being 
considered for legitimacy, are as dependent on the design of the 
combustion unit as they are on the fuel matrix. The commenter explained 
further that units should be considered able to burn several types of 
fuels as long as each type is within the design criteria of the feed 
system, the combustion chamber and any downstream pollution control 
device.
    Response: The EPA disagrees with those commenters questioning the 
relevance of what fuels combustion units are designed to burn in the 
context of the legitimacy criteria. If a NHSM does not contain 
contaminants at levels that are comparable to or lower than those found 
in any traditional fuel that a combustion unit could burn, then it 
follows that discard could be occurring if the NHSM were combusted. 
Whether contaminants in these cases would be destroyed or discarded 
through releases to the air, they could not be considered a normal part 
of a legitimate fuel and the NHSM would be considered a solid waste 
when used as a fuel in that combustion unit.\62\
---------------------------------------------------------------------------

    \62\ See 76 FR 15523.
---------------------------------------------------------------------------

    The reason we analyze what a unit is designed to burn is to decide 
the traditional fuel(s) to which contaminants should be compared. This 
comparison is then used as an aid to decide whether the NHSM is being 
legitimately used as a fuel or whether excess contaminants show that 
the burning is waste treatment. If a facility compared contaminants to 
a traditional fuel it cannot burn and that fuel is highly contaminated, 
a facility would then be able to burn excessive levels of

[[Page 9150]]

waste components in NHSMs as a means of discard. Regardless of any fuel 
value in the material, it would be a waste.
    Once this concept is established, certain factors are relevant to 
how we decide what a facility is designed to burn. The ability to burn 
a fuel in a combustion unit does have a basic set of requirements, the 
most basic of which is being able to get the material into the 
combustion unit. The agency reaffirms in today's final rule its 
interpretation from the proposal that to be able to burn NHSMs, a 
combustion unit should also be able to ensure the material is well 
mixed and maintain temperatures within unit specifications. Without 
these basic limits, there would be no point in distinguishing between 
fuels a unit is or is not ``designed to burn,'' and every combustion 
unit would be considered ``designed to burn'' any combustible material. 
Clearly, that is not the agency's intent. As illustrated by one of the 
commenters, when a unit cannot burn a fuel according to its own design 
specifications, excess air pollutants form and are likely to be 
discarded as emissions. Thus, the agency acknowledges that whether or 
not a NHSM is a waste may depend on the unit burning the material.
    Comment: One commenter asked for clarification on the issue of unit 
modifications. If a boiler hypothetically could be modified in any way 
to combust a different traditional fuel, the commenter noted, then a 
comparison to that fuel should be permissible to demonstrate that the 
NHSM is not a waste.
    Response: The EPA disagrees with this comment. As long as the 
modification remains hypothetical in nature, it stands to reason that 
the unit cannot yet burn the additional traditional fuel and the only 
reason it is comparing a NHSM to the dirtier fuel is to allow more 
waste input into the combustion unit. However, if the unit is actually 
modified to accept additional types of traditional fuels, then the 
owner or operator of the combustion unit can consider those traditional 
fuels in evaluating the NHSM for the contaminant legitimacy criterion. 
In this situation, such behavior shows that the combustor is serious 
about burning the other fuel and is willing to make the investment so 
that it can be burned properly instead of simply trying to gain 
comparison to a dirtier material.
    Comment: In the proposed rule, EPA specifically addressed used oil 
stating: ``Used oil is a special case and does not need to undergo the 
contaminant comparison. If it meets the specifications in 40 CFR 
279.11, it is a traditional fuel. If it does not meet the 
specifications (i.e., it is ``off-spec'' oil), it is a solid waste 
under the 2011 NHSM final rule.'' 76 FR 80481, fn. 44. Some commenters 
argued that off-spec used oil fuel, however, could satisfy all of EPA's 
legitimacy criteria, including a contaminant comparison with coal, a 
traditional fuel. Thus, if a combustion unit is ``designed to burn'' 
both coal and oil, the facility should be able to use coal as the 
traditional fuel for the purposes of determining whether the 
contaminants are comparable--even when the NHSM at issue is off-spec 
used oil, as defined in 40 CFR 279.11.
    Response: The Agency agrees with the commenter that contaminants in 
off-spec used oil burned for energy recovery in facilities that are 
designed to burn coal may be compared to coal for purposes of 
determining whether the off-spec used oil is a waste or non-waste 
product fuel. Accordingly, for purposes of waste/non-waste 
determinations, coal or oil, including on-spec used oil can be used as 
the traditional fuel identified for comparison of contaminants to meet 
the legitimacy criterion for units designed to burn both fuels. Some 
combustion units are designed to burn multiple fuels, such as both coal 
and oil, including on-spec used oil. Under these circumstances, the 
Agency agrees that the rules allow the comparison of contaminant levels 
to either traditional fuel. That is, to be designated as a non-waste, 
the off-spec used oil contaminant levels must be comparable to or lower 
than coal when coal is the traditional fuel used for comparison.
    EPA no longer finds, as stated in Footnote 44 of the proposed rule, 
that off-spec used oil is always a waste for facilities that are 
designed to burn coal. Off-spec used oil continues to be a waste, 
however, for facilities that are not designed to burn coal because off-
spec used oil contains contaminant levels that are not comparable to 
on-spec used oil. EPA also notes that in the preamble to the March 2011 
rule (p. 15506), the Agency specifically rejected the comparison of 
off-specification used oil contaminants to coal. That discussion, 
however, was in the context of a general contaminant comparison for 
units that burn only fuel oil. Coal may not be the comparison material 
for all off-specification used oil, but only for those facilities that 
are designed to burn coal as provided in the definition of this rule. 
Finally, we want to make clear that EPA has not modified the part 279 
regulations for management of used oil, and thus, burning of off-spec 
used oil for energy recovery is still subject to those rules, including 
the requirement that off-spec used oil can only be burned in certain 
units (see 40 CFR 279.61(a)).\63\
---------------------------------------------------------------------------

    \63\ Off-specification used oil can only be burned in the 
following types of units: (1) Industrial furnaces, as defined in 40 
CFR 260.10; (2) the following boilers, as defined in 40 CFR 260.10--
industrial boilers located on the site of a facility engaged in a 
manufacturing process where substances are transformed into new 
products, including the component parts of products, by mechanical 
or chemical processes, utility boilers used to produce electric 
power, steam, heated or cooled air, or other gases or fluids for 
sale, and used oil fired space heaters provided that the burner 
meets the provisions of 40 CFR 279.23; and (3) hazardous waste 
incinerators subject to regulation under subpart O of 40 CFR parts 
264 or 265.
---------------------------------------------------------------------------

    Comment: Commenters argue that the EPA has not adequately addressed 
how units designed to burn only NHSMs are to comply with the 
contaminant legitimacy criterion. The commenters explained that, under 
the rule structure as proposed, a NHSM may be classified as a waste 
simply due to a lack of a traditional fuel for comparison purposes. 
Comments acknowledge that the agency discussed the issue in the 
preamble to the proposed rule but the commenters disagree that the 
discussion provided any solution. Finally, commenters specifically 
requested that the EPA acknowledge the fact that a combustor designed 
for a particular NHSM fuel is dispositive that the NHSM is being 
legitimately burned for energy recovery.
    Response: The EPA disagrees with the assertion that the agency has 
failed to provide a solution for units designed only to burn NHSMs. The 
EPA also disagrees with the assertion made by commenters that the fact 
that a combustor has designed a combustion unit for a particular NHSM 
fuel is dispositive that the NHSM is being legitimately burned for 
energy recovery.
    The EPA acknowledges and is aware of units built specifically to 
burn NHSMs. One example is facilities built to burn resinated wood. The 
EPA notes that units built to burn such NHSMs are likely to be able to 
burn similar traditional fuels. Using the example of units built to 
burn resinated wood, the EPA considers it reasonable to assume that 
these units could also burn clean wood and, therefore, could make 
comparisons to that traditional fuel. The agency also notes that it is 
not aware of any units--and commenters have not identified any such 
units--that can burn only NHSMs.
    The EPA has nonetheless provided what it considers to be a 
reasonable solution. As explained in the preamble to the proposed rule, 
the EPA advises combustors faced with such a situation to compare solid 
NHSMs to solid traditional fuels, such as coal or biomass, liquid NHSMs 
to liquid

[[Page 9151]]

traditional fuels, such as oil, and gaseous NHSMs to gaseous 
traditional fuels, such as natural gas.\64\ In light of the explanation 
of ``designed to burn'' codified in the final contaminant legitimacy 
criterion, as well as industry comments that many combustion units can 
burn multiple types of fuel, the agency believes that its suggested 
approach adequately addresses the issue.
---------------------------------------------------------------------------

    \64\ See 76 FR 80481.
---------------------------------------------------------------------------

    Finally, the EPA acknowledges that combustion units can and have 
been designed specifically to burn NHSMs and that such units can 
recover energy. The agency notes, however, that persons can and have 
also designed incinerators to dispose of certain waste materials and 
that such units can also recover energy. The agency, therefore, does 
not consider it dispositive that if combustion units are designed to 
burn a specific material, that material must be a legitimate non-waste 
fuel.
d. Contaminant Comparisons Allowed
    The proposed revision to the contaminant legitimacy criterion for 
NHSMs used as a fuel included the following statement: ``In comparing 
contaminants between traditional fuel(s) and a non-hazardous secondary 
material, persons can use ranges of traditional fuel contaminant levels 
compiled from national surveys, as well as contaminant level data from 
the specific traditional fuel being replaced.'' The March 2011 final 
rule did not discuss the use of ranges when evaluating contaminant 
data, nor did it discuss the use of traditional fuel data from national 
surveys.
    The December 2011 proposed rule included these concepts to clarify 
that persons are not required to adhere to a single comparison 
methodology, nor are they required to compare contaminants in their 
NHSMs to contaminants in the specific traditional fuel source they burn 
(or would otherwise burn). In both instances, the additional language 
clarifies, but does not change the intent, of the March 2011 final 
rule.
    Regardless of the specific methodology chosen, a comparison will 
have to be made for each contaminant or group of contaminants between 
the NHSM and a traditional fuel or traditional fuel group. Generators 
or combustors can use either traditional fuel data collected by the EPA 
or their own data for traditional fuel comparison values.\65\ 
Generators or combustors are responsible, however, for providing NHSM 
comparison values in cases where testing is conducted. Examples of 
acceptable NHSM data could include both laboratory test results from a 
specific generator or combustor and industry-recognized values provided 
by a national trade organization.
---------------------------------------------------------------------------

    \65\ The EPA maintains an NHSM Web page with current information 
on contaminant levels in traditional fuels, examples of legitimacy 
determinations, and other information at http://www.epa.gov/epawaste/nonhaz/define/index.
---------------------------------------------------------------------------

    Given data for a particular traditional fuel, the EPA noted in the 
proposal that many combustors would choose to base the traditional fuel 
comparison value on the upper end of its statistical range and that 
this approach was reasonable. Anything less could result in 
``traditional fuel'' samples being considered solid waste if burned in 
the very combustion units designed to burn them. This was not the 
agency's intent in the March 2011 final rule.\66\ Given that selection 
(i.e., the range for traditional fuel contaminant values), the agency 
noted that acceptable NHSM comparison values would include the upper 
end of a statistical range, a calculation involving the mean and 
standard deviation or perhaps a single data point in situations where 
data are limited. The proposal reasoned that it would not be 
appropriate to compare an average NHSM contaminant value to the high 
end of a traditional fuel range, as the existence of an average implies 
multiple data points from which a more suitable statistic (e.g., range 
or standard deviation) could have been calculated.
---------------------------------------------------------------------------

    \66\ Traditional fuels, as defined in Sec.  241.2, are not 
required to meet the legitimacy criteria, and this scenario is only 
used to explain the logic behind basing a traditional fuel 
comparison value on the upper end of a statistical range.
---------------------------------------------------------------------------

    If each NHSM comparison value is comparable to or lower than its 
corresponding traditional fuel value, the material would be considered 
to meet the contaminant legitimacy criterion. An initial assessment 
would not need to be repeated, explained the proposal, provided the 
facility continues to operate in the same manner and use the same type 
of NHSMs as when the original assessment was made.
    Despite presenting several approaches for calculating NHSM 
comparison values, such as the upper end of a statistical range or a 
calculation involving the mean and standard deviation, the proposal did 
not preclude other reasonable methodologies. In the context of an 
inspection or enforcement action, the agency will evaluate the 
appropriateness of alternative methodologies and data sources on a 
case-by-case basis when determining whether the contaminant legitimacy 
criterion has been met.
    The EPA noted in the proposal that contaminant testing is not 
required and that process knowledge may be sufficient for particular 
contaminants in particular NHSMs. Even when analytical testing is not 
necessary, the EPA's regulations governing recordkeeping for units 
subject to emissions standards for boilers and process heaters issued 
pursuant to CAA section 112 require keeping a record to document the 
basis of non-waste determinations under the part 241 criteria 
(including the contaminant legitimacy criteria). See 40 CFR 40 CFR 
63.11225(c)(2)(ii) for area source boilers and 40 CFR 40 CFR 
63.7555(d)(2) for major source boilers.
    The EPA believes that the comments have not changed the basis for 
its decision to allow the use of ranges and surveys of traditional fuel 
contaminant levels. Nor have comments changed the agency's position 
that similar traditional fuels may be grouped for comparison purposes 
and that testing is not required in all cases. Thus, the EPA is 
adopting the reasoning from the proposal and adjusting the contaminant 
legitimacy criterion accordingly for NHSM used as a fuel.
    The EPA has decided, however, to make a modification to the 
regulatory language of the December 2011 proposed rule based on 
comments received. The final criterion issued today includes additional 
language clarifying the appropriate use of ranges when making 
contaminant comparisons between NHSMs and traditional fuels. Consistent 
with the rationale provided in the preamble to the proposed rule, 
additional language now states that in order to use the full range of 
contaminant values in traditional fuels, persons should also account 
for the variability in NHSM contaminant levels. Any additional 
reasoning for finalizing the revision with or without suggested 
modifications is described in the responses to comments below.
    Comment: Industry comments supported the proposed changes expressly 
allowing the use of ranges and national surveys of traditional fuel 
data, as did one state comment. One commenter stated that these changes 
provide a more practical approach to meeting the contaminant legitimacy 
criterion that recognizes the inherent variation of contaminants in 
NHSMs and traditional fuels. Several commenters supported the use of 
ranges by repeating the EPA's rationale from the proposal that using 
anything lower would logically result in a determination that some 
traditional fuels should not be burned in combustion units designed to 
burn those fuels. Another commenter stated that these clarifications 
describe appropriate methods of handling data

[[Page 9152]]

that are naturally variable and will result in fewer non-waste 
materials being arbitrarily identified as wastes.
    Environmental groups opposed the use of ranges to evaluate 
contaminants, expressing concern that C&D wood contaminant levels would 
be compared to the highest contaminant levels for coal. These 
commenters suggested that averages or medians be used instead.
    Response: Based on our review of the comments received, the EPA is 
retaining the approach outlined in the proposed rule to expressly allow 
the use of ranges and traditional fuel data from national surveys. As 
discussed in the proposed rule, the EPA considers it reasonable to 
allow combustors to use the range of contaminant levels present in 
traditional fuels because anything less could result in ``traditional 
fuel'' samples being considered solid waste if burned in the very 
combustion units designed to burn them. For this reason, the agency 
disagrees with comments stating that combustors should be limited to 
use of the average or median concentrations.
    The EPA acknowledges that the revisions adopted as final in today's 
rule would allow C&D wood contaminant levels to be compared to the 
highest contaminant levels for coal. The commenters do not specify, 
however, what C&D wood contaminant levels (averages or ranges) they are 
concerned would be compared to the highest levels in coal. The agency 
points out that the proposed revisions were not intended to allow 
average C&D wood contaminant levels to be compared to the highest 
levels in coal. In light of the concerns expressed by these commenters, 
the EPA has modified the proposed language to provide additional 
assurance that such average-to-maximum comparisons, which the agency 
has already determined are inappropriate, will not be allowed under 
today's final rule. The EPA has decided that such comparisons are 
inappropriate because, following the logic stated in the March 2011 
final rule, average-to-maximum comparisons do not demonstrate that 
contaminants in these cases could be considered a normal part of a 
legitimate fuel and are not being discarded.\67\
---------------------------------------------------------------------------

    \67\ See 76 FR 15523.
---------------------------------------------------------------------------

    Today's final criterion makes clear that the full range of 
traditional fuel contaminant values can only be used if persons also 
consider some measure of variability in the NHSM contaminant data. This 
will help to ensure that average to maximum comparisons will not be 
used to justify the combustion of NHSMs as non-waste fuels.
    Comment: Industry comments supported the concept discussed in the 
proposed rule that the contaminant legitimacy criterion does not 
require the testing of contaminant levels in NHSMs in all cases. The 
proposal noted that persons can instead use expert or process knowledge 
to justify decisions to rule out certain constituents. The proposal 
also noted that initial assessments would not need to be repeated, 
provided the facility continues to operate in the same manner and use 
the same type of NHSMs as when the original assessment was made. One 
commenter asked the EPA to confirm these statements, explaining that 
this policy will result in fewer NHSMs being arbitrarily identified as 
wastes. Another commenter stated that the flexibility provided by this 
policy will help ensure that regulated entities with varying levels of 
sophistication can better document that their NHSMs are non-waste 
fuels.
    Environmental groups, on the other hand, commented that the EPA 
must require testing for contaminants, citing the extremely variable 
nature of C&D wood as a problem. Commenters expressed concern that a 
large amount of material is going to be generated as abandoned and 
foreclosed housing is torn down, and the potential for liberating vast 
amounts of lead and other urban toxics, to say nothing of arsenic and 
chromium from pressure-treated wood, has never been higher.
    Response: Based on a review of the comments received, the EPA is 
maintaining its position that contaminant testing is not required in 
all situations. Requiring testing in some situations is unnecessary. 
Where a NHSM generator, processor or combustor knows a contaminant will 
either not be present or be present at a level below that in the 
appropriate traditional fuel or traditional product, the agency 
believes it is a reasonable and practical policy to allow persons to 
rely on either process knowledge or previous testing of the same 
material.
    The agency notes that there will be instances where testing is 
conducted and comparisons will have to account for the variability of 
contaminant levels in NHSMs, including lead concentrations in C&D wood. 
The agency also notes that today's final rule does not change its 
previously stated position that chromated copper arsenate-treated wood 
(CCA wood) would likely have contaminant levels not comparable to 
traditional fuels.\68\
---------------------------------------------------------------------------

    \68\ See 75 FR 31872.
---------------------------------------------------------------------------

    Comment: One commenter requested that the EPA clarify what it means 
by the upper end of the statistical range. Citing the EPA's statement 
in the proposal that ``it makes sense to base the traditional fuel 
comparison on the upper end of the statistical range,'' \69\ the 
commenter asked for confirmation that the maximum values in the 
traditional fuel data set can be used for comparison with a NHSM since 
all data corresponding to the traditional fuel are valid for 
comparison, not just values that are below some arbitrarily determined 
statistical parameter.
---------------------------------------------------------------------------

    \69\ See 76 FR 80481.
---------------------------------------------------------------------------

    Response: The word `ranges' in the proposed contaminant legitimacy 
criterion has been changed to `the full range' in the final criterion 
issued today. This term more clearly indicates the agency's intent to 
include all true values in between the minimum and the maximum.
    The agency has also separated the concepts of ranges and 
traditional fuel survey data in the regulatory language in order to 
make the criterion more transparent. The pertinent regulatory text in 
today's final rule reads as follows: ``In comparing contaminants 
between traditional fuel(s) and a non-hazardous secondary material, 
persons can use data for traditional fuel contaminant levels compiled 
from national surveys, as well as contaminant level data from the 
specific traditional fuel being replaced. To account for natural 
variability in contaminant levels, persons can use the full range of 
traditional fuel contaminant levels, provided such comparisons also 
consider variability in non-hazardous secondary material contaminant 
levels.''
    Comment: Several commenters noted that the agency proposed to allow 
the use of ``national'' surveys of traditional fuel data in the 
proposed contaminant legitimacy criterion and included several 
international data sources in its ``Contaminant Concentrations in 
Traditional Fuels: Tables for Comparison'' document.\70\ Several 
commenters asked that the word `national' be removed from the 
contaminant legitimacy criterion. Other commenters asked that the EPA 
either remove the word `national' or clarify that international data 
and surveys from other nations are also acceptable data sources.
---------------------------------------------------------------------------

    \70\ The EPA maintains a NHSM Web page with current information 
on contaminant levels in traditional fuels, examples of legitimacy 
determinations, and other information at http://www.epa.gov/epawaste/nonhaz/define/index.
---------------------------------------------------------------------------

    Response: The EPA has retained the proposed language, including the 
word ``national,'' which expressly allows national surveys of 
traditional fuel data to be used in contaminant comparisons

[[Page 9153]]

for NHSMs used as a fuel in combustion units. A statement that national 
surveys can be used does not preclude the use of appropriate 
international data. In fact, as the commenters recognize, the EPA 
included several international sources in its analysis of traditional 
fuels. These international sources were limited, however, to situations 
where no data or minimal data could be found from national sources or 
the agency had no reason to believe that data from national sources 
would be significantly different. At issue is whether the data are 
representative of traditional fuels that are purchased and burned at 
operating boilers in the United States. The agency has decided that it 
is reasonable to assume that national surveys of traditional fuels 
contain information about fuels purchased and burned at operating 
boilers in the United States.
    Comment: One commenter argued that the traditional fuel database 
compiled by the EPA should include the USGS coal data from not only the 
United States but also from around the world because those fuels are 
currently in use.
    Response: The EPA has maintained its decision not to reference the 
USGS COALQUAL database in its traditional fuel contaminant tables. It 
is the agency's understanding that the COALQUAL database contains trace 
metal analyses for coal and associated rocks taken directly from coal 
beds throughout the United States and that not all of these coal beds 
are currently being mined. It is also the agency's understanding that 
as-mined coal typically undergoes a series of processing steps, 
including crushing, screening, washing and physical separation 
techniques to remove rock and other impurities prior to being blended 
into clean, graded and uniform coal products suitable for use in 
commercial boilers.\71\
---------------------------------------------------------------------------

    \71\ Speight, J.G. Synthetic Fuels Handbook: Properties, 
Process, and Performance. McGraw-Hill, 2008. pg 141.
---------------------------------------------------------------------------

    In comparison, the EPA contaminant tables referenced by commenters 
are based largely on a comprehensive dataset that contains 
approximately 32,000 records of pre-combustion contaminant analyses 
performed on coal, wood, biomass and fuel oil samples that were 
actually used as fuel at boilers across the country. Thus, the agency 
has decided that the EPA dataset is more representative of contaminant 
levels in coal actually burned at operating boilers than the COALQUAL 
database. As a result, the EPA has decided not to use the COALQUAL 
database in developing the tables posted on the agency's Web site.
    We would also note that the decision not to use USGS data is 
consistent with the agency's position that product fuel oils, as 
opposed to virgin crude oil, should be measured for purposes of 
contaminant comparisons. As stated in the proposed rule, neither 
unrefined crude oil nor gasoline is typically burned in combustion 
units regulated by CAA sections 112 and 129. Similarly, as-mined coal 
is not typically burned in combustion units regulated by CAA sections 
112 and 129.
    Comment: One commenter suggested that for each contaminant or group 
of contaminants, either the UCL of the mean at a 90 percent confidence 
level or the UPL at a 90 percent confidence level for NHSMs could be 
compared to the maximum value for the appropriate traditional fuel.
    Response: First, we would note that in the preamble to the recent 
proposed rule, the EPA indicated that when compared to the full range 
of contaminants in traditional fuels, suitable measures of NHSM 
contaminants would include the upper end of a statistical range, a 
calculation involving the mean and standard deviation or perhaps a 
single data point in situations where data are limited. The agency also 
noted that the discussion in the preamble did not preclude ``other 
reasonable methodologies.'' \72\
---------------------------------------------------------------------------

    \72\ See 76 FR 80481.
---------------------------------------------------------------------------

    With respect to the specific approaches suggested by the 
commenters, the EPA agrees with the approach of comparing the UPL at a 
90 percent confidence level for each contaminant or group of 
contaminants in NHSMs to the maximum value for each contaminant or 
group of contaminants in the appropriate traditional fuel. 
Specifically, the UPL is an indicator of what a future measurement 
would be. In the context of NHSM contaminant levels, the UPL taken at a 
90 percent confidence level would yield a number, and a combustor could 
be confident that 90 percent of the time, the next measured contaminant 
level would be at or below that number. The UPL considers both the 
variability of the contaminant distribution and the uncertainty 
surrounding what the true mean is. The comment suggested taking a 
maximum value for traditional fuel contaminant levels and comparing it 
to the UPL at a 90 percent confidence level. Because both metrics 
account for the variability present in contaminant distributions, the 
EPA would consider this approach to be a reasonable methodology.
    The EPA does not agree, however, with an approach of using the UCL 
of the mean. That is, the UCL of the mean, regardless of the confidence 
level, is a measure of the mean and does not adequately factor in the 
variability present in both NHSMs and traditional fuel contaminant 
levels. The metric would be appropriate for a mean to mean comparison, 
but that is not what the commenter suggested. The comment suggested 
taking a maximum (which takes full advantage of the variability present 
in traditional fuel contaminant levels) and comparing it to a mean 
(which ignores the variability present in NHSM contaminant levels). The 
EPA does not consider this approach to be a reasonable methodology.
    To be clear, the EPA does not object to the use of confidence 
limits, or to the use of the UCL of the mean, on their own grounds. 
However, the agency believes it is inappropriate to make a comparison 
of mean contaminant levels in NHSMs to maximum contaminant levels in 
traditional fuels.
    Comment: One commenter suggested that the EPA allow entities to 
compare contaminants between NHSMs and traditional fuels on a pound of 
contaminants per Btu (lb/MMBtu) basis, as the agency said it would 
consider in the preamble discussion to the 2011 NHSM Final Rule.\73\
---------------------------------------------------------------------------

    \73\ See 76 FR 15525.
---------------------------------------------------------------------------

    Response: The EPA maintains its position that a direct comparison 
of contaminant levels, as opposed to the lb/MMBtu approach, is the most 
appropriate means of comparing contaminant levels. As was noted in the 
2011 NHSM Final Rule, however, the agency may still consider the lb/
MMBtu approach as guidance is developed for implementation.
3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels
    The new provisions at 40 CFR 241.4 were proposed to allow the EPA 
to list categorically certain NHSMs as non wastes--when used as a fuel 
in a combustion unit. Based on these categorical non-waste 
determinations, facilities burning NHSMs that qualify for the provision 
will not need to demonstrate that the NHSM meets the legitimacy 
criteria on a site-by-site basis. The EPA has determined that these 
NHSMs are categorical non-wastes as described and are not discarded 
when used as a fuel in a combustion unit.
    Categorical non-waste determinations only apply, however, to NHSMs 
that are burned as a fuel in combustion units for the purpose of 
recovery energy. Burning

[[Page 9154]]

a NHSM fuel in a combustion unit for energy recovery assumes a set of 
basic design requirements that ensures excess air pollutants are not 
formed and emission requirements under the CAA are met. As discussed in 
section III.D.2.c of this preamble, such basic design requirements 
include abilities to load the material into the unit, ensure the 
material is well mixed and maintain temperatures within unit 
specifications. For example, burning a whole tire in a boiler that is 
only designed to burn tires that are chipped and/or dewired would not 
be considered a fuel burned in a combustion unit for the purpose of 
recovering energy. The agency is not including specific regulatory text 
regarding this point since we believe it is understood that to be 
burned for energy recovery, the combustion unit must be able to burn 
the NHSM as a fuel.

a. Scrap Tires

    In the December 23, 2011, NHSM proposed rule, the EPA proposed the 
following regulatory language under 40 CFR 241.4 Non-Waste 
Determinations for Specific Non-Hazardous Secondary Materials When Used 
as a Fuel: ``Scrap tires that are not discarded and are managed under 
the oversight of established tire collection programs, including tires 
removed from vehicles and off-specification tires.'' Further, the 
addition of this provision (40 CFR 241.4(a)(1)) eliminated the need for 
the previous scrap tire provision at 40 CFR 241.3(b)(2)(i),\74\ which 
has been removed and reserved in today's final rule. Today's rule 
finalizes the proposed provision without changes.
---------------------------------------------------------------------------

    \74\ The scrap tire provision in the 2011 NHSM final rule is now 
removed and the section reserved in today's final rule: ``(b) The 
following non-hazardous secondary materials are not solid wastes 
when combusted:
     (2) The following non-hazardous secondary materials that have 
not been discarded and meet the legitimacy criteria specified in 
paragraph (d)(1) of this section when used in a combustion unit (by 
the generator or outside the control of the generator):
    (i) Scrap tires used in a combustion unit that are removed from 
vehicles and managed under the oversight of established tire 
collection programs.''
---------------------------------------------------------------------------

    Comment: One commenter stated that, ``in its latest proposal, EPA 
eliminates the need for scrap tires to meet its legitimacy criteria and 
simply declares that scrap tires collected under an established tire 
collection program are not waste regardless of whether they meet the 
agency's legitimacy criteria.''
    Response: The EPA disagrees with this comment. The EPA has not 
eliminated the legitimacy criteria for scrap tires. The categorical 
determination for scrap tires (as with all the categorical 
determinations in this rule) simply applies the agency's non-discard 
determination, made in the March 2011 rule and not reopened in this 
amendment, to the general category so that case-by-case determinations 
as to legitimacy would not need to be made by each facility. For the 
scrap tire category, scrap tires managed under established tire 
collection programs and used as a fuel need not make case-by-case 
legitimacy determinations. Moreover, the commenter has given us no 
information that the criteria are not met. In fact, the commenter 
simply repeats the argument made in previous rulemakings that the 
material is always a waste regardless of legitimacy criteria.
    Comment: Several commenters suggested that scrap tires should not 
have more restrictions under 40 CFR 241.4(a) for the categorical non-
waste status than does resinated wood. The non-waste determination for 
scrap tires, as proposed in 40 CFR 241.4(a)(1), read ``Scrap tires that 
are not discarded and are managed under the oversight of established 
tire collection programs, including tires removed from vehicles and 
off-specification tires.'' In comparison, the resinated wood 
description, as listed in 40 CFR 241.4(a)(2), is ``Resinated wood.'' 
The commenters reasoned that if all resinated wood can be non-waste, 
then all scrap tires should also qualify (regardless of the origin).
    Response: Please see the EPA's response in the resinated wood 
section below (section III.D.3.b of this preamble) relating to the 
241.4(a) criteria for resinated wood and the comparison to scrap tires. 
That response goes into detail explaining why the extra criteria are 
not needed for resinated wood and related discard issues. In addition, 
as noted previously in the NHSM rulemaking record (see docket EPA-HQ-
RCRA-2008-0329), numerous tire piles have been created in the past 
whereas this is not the case for resinated wood used as fuel. The 
existence of these historic tire dumps demonstrates that some tires 
have not been treated as a valuable commodity therefore necessitating 
the additional discard qualification in regulatory text. The specific 
tires described in the categorical determination are handled as a 
valuable commodity and do not include discarded tires.
    Comment: A commenter suggested that the EPA should add ``off-
specification tire components'' to the regulatory language. This 
revision would be in addition to the proposed text at 40 CFR 
241.4(a)(1) that adds ``off-specification tires.''
    Response: Off-specification tire components are covered in the 40 
CFR 241.4 categorical non-waste determinations for scrap tires. The 
term `scrap tire' is a general term for tires and can include, for 
example, whole tires, chipped tires, off-specification tires or off-
specification tire components (i.e., tread, sidewall or base) that are 
removed from vehicles or are generated by tire manufacturers, including 
retailers or other parties involved in the distribution and sale of new 
tires. This formulation was also stated in the December 2011 NHSM 
proposal \75\ and is adopted for today's final rule. The EPA sees no 
difference between tires and their various components. Thus, the EPA 
does not believe it necessary to modify the rule to include ``off-
specification tire components'' in the codified definition. They are 
understood to be included in the categorical non-waste provision.
---------------------------------------------------------------------------

    \75\ See 76 FR 80483.
---------------------------------------------------------------------------

    Comment: Many commenters mentioned the difficulty in complying with 
the regulations since it is very difficult to distinguish between tires 
removed from vehicles (and off-specification tires) versus tires from 
other origins. In regard to this issue, one commenter stated, ``a 
combustor cannot know the origin of the tire-derived fuel it is buying. 
In its response to requests for reconsideration of the CISWI rule, the 
EPA responded to this issue by recognizing that it is not possible for 
a combustor to know the source of all NHSM fuel and declined to impose 
this requirement stating:

    ``Rather, it is sufficient that the ultimate user verify that it 
is obtaining tires from an established tire collection program, 
which program can provide the user with reasonable assurance that it 
manages tires carefully from point of collection to point of burning 
and which does not receive tires which have been abandoned in 
landfills or otherwise. 76 Fed. Reg. 28318, 28322 (May 17, 2011).''

    Therefore, the commenter requests that the EPA codify this 
statement in the NHSM rule and expressly allow combustors to rely upon 
certifications of fuel suppliers that the fuel sold is not a solid 
waste.
    Another commenter said that for the EPA to require a tire storage 
facility to maintain separate classifications of tires (i.e., 
separating discarded tires from tire dumps from other tires) is not 
reasonable, because inspectors and operators would not be able to tell 
the piles apart. The EPA's current definition of scrap tires would 
place undue financial hardship on contractors and storage facilities.
    Response: The EPA has decided that a regulatory statement on this 
matter is

[[Page 9155]]

not necessary since the actual requirement for the combustor to 
determine where its tires come from when they are coming from an 
established tire collection program (or a contractual agreement) is 
provided for under the CAA and interpretations provided for that 
regulation. For example, major source boilers have a recordkeeping 
requirement for a non-waste determination at 40 CFR 63.7555 ``What 
records must I keep?'' Within those regulations for major source 
boilers, it requires the combustor to demonstrate that NHSMs are a non-
waste. To the extent that a combustor believes it appropriate, they may 
request haulers to verify that the tires would qualify as non-waste 
under 40 CFR 241.4 when combusted.
    If there is question about the origin of the tires, the EPA 
inspectors will not assume that tires are from discarded sources. As we 
note in the Federal Register notice (76 FR 28318, 28322), ``It is EPA's 
position that ultimate users are not responsible for knowing the source 
of all tires obtained from an established tire collection program* * * 
EPA does not interpret this language as requiring knowledge of each 
individual tire as this is a practical impossibility* * * users also 
should not assume that tires from established programs which 
participate in occasional cleanup days are discarded--both because 
there is no information that the tires from the cleanup efforts were 
discarded (and these programs are designed to prevent discarding) and 
whether the kiln received tires from the sporadic cleanup days in any 
case.''
    The Federal Register notice that the commenter cited (76 FR 28322) 
and a related letter to the docket (``Memorandum. Combustion in a 
Cement Kiln and Cement Kilns' Use of Tires as Fuel.'' April 25, 2011, 
Document ID: EPA-HQ-OAR-2002-0051-3582) provide sufficient guidance. 
The agency believes this issue does not merit additional regulation for 
the hauler.
    b. Resinated Wood
    In the December 23, 2011, proposed rule, the EPA proposed to 
designate in regulatory text that resinated wood is not a solid waste 
when used as a fuel. In making this determination, the agency analyzed 
these materials using the legitimacy criteria, concluding that 
resinated wood clearly is managed as a valuable commodity and has 
meaningful heating value and is used as fuel.\76\ While stating that 
these materials may not always meet the regulatory contaminant 
legitimacy criterion in every situation, we proposed to list 
categorically resinated wood as a non-waste fuel because, after 
balancing the regulatory legitimacy criteria and other relevant 
factors, the EPA determined that resinated wood that is used as fuel 
represents an integral component of the wood manufacturing process and, 
as such, is not being discarded when burned as fuel.
---------------------------------------------------------------------------

    \76\ See 76 FR 80483.
---------------------------------------------------------------------------

    Specifically, we noted the extent to which resinated wood is used 
as fuels throughout the wood manufacturing industry and that the use of 
resinated wood as fuel is essential to the wood manufacturing process. 
We also noted the prevalence of wood product plants that have been 
designed specifically to utilize these residuals for their fuel value; 
in fact many (if not most) wood products plants would not be able to 
operate as designed without the use of these materials. This 
determination was previously codified under 40 CFR 241.3 (b)(2)(ii) of 
the NHSM final rule, provided the resinated wood met the legitimacy 
criteria in 40 CFR 241.3(d)(1). However, based on the available 
information, as well as how this material is handled and used in the 
process, resinated wood is not being discarded when used as a fuel, and 
thus, should not be considered a solid waste when burned as a fuel. The 
EPA proposed to codify this determination by categorically listing 
resinated wood as a non-waste fuel in 40 CFR 241.4(a)(2).\77\ By 
specifically listing it as a non-waste fuel, combustors of this 
material would not need to demonstrate that they meet the legitimacy 
criteria on a site-by-site basis.
---------------------------------------------------------------------------

    \77\ See 76 FR 80483-80484.
---------------------------------------------------------------------------

    The EPA finds that this reasoning is supported by the entire 
rulemaking record, as explained in the December 2011 proposal, which 
rationale is adopted for the final rule as further supported by 
responses to comments below. Thus, the agency has determined to list 
categorically resinated wood as a non-waste fuel. In addition, after 
considering comments received on the proposal, the agency is revising 
the definition of ``resinated wood,'' as codified in 40 CFR 241.2.
    Comment: Most comments on this issue were supportive of a 
categorical determination that resinated wood is a non-waste fuel. One 
commenter maintained that the record for this rulemaking clearly 
establishes that resinated wood is highly valued within the wood 
products industry for its high fuel value, stating that ``Many 
facilities rely on mixing of these low moisture content wood materials 
with higher moisture content wood materials to manage and optimize 
combustion.'' This same commenter also stated that ``there exists 
within the wood products industry a developed market for purchase and 
sale of resinated wood between independent companies.'' In fact, many 
wood-fired boilers at wood products plants that do not generate sander 
dust have been retrofitted with sander dust injection burners so that 
sander dust can be properly combusted in those units, taking full 
advantage of the heat energy of sander dust.
    Another commenter stated that ``resinated fuels have been an 
integral part of the composite wood product industry's production 
process since the industry was established decades ago. As such, 
facilities' combustion and energy systems were designed and constructed 
to utilize most if not all of their own wood and wood by-products, 
including resinated trim and sander dust. Excluding resinated wood 
fuels from our manufacturing processes would require significant re-
engineering of our facilities and add insurmountable operating costs in 
order to substitute fossil fuels, as well as to transport and dispose 
of resinated wood fuels. Any other result would effectively make it 
nearly impossible for these manufacturing facilities to continue 
operations.'' This same commenter also noted that ``many of our 
facilities rely exclusively on resinated wood for its fuel and have 
limited access to substitutes.''
    Another commenter provided two examples of mills that utilize 
nearly 100 percent of sander dust, either to create new product as part 
of the manufacturing process or as fuel. In addition, two state 
commenters supported the proposed categorical non-waste determination 
for resinated wood.
    Response: Nearly all of the comments received regarding the 
proposed categorical non-waste determination were supportive of 
categorically listing resinated wood as a non-waste fuel when burned in 
combustion units for energy recovery. As noted above, the agency did 
receive a few additional examples of how the use of resinated wood as a 
fuel is an integral part of the wood manufacturing industry's 
production process (e.g., the facilities that would have to be 
significantly re-engineered if they could not use resinated wood for 
its fuel value and the mills that use 100 percent of the sander dust it 
generates, either by recycling it back into the process or burning it 
for fuel).
    Although we received one comment critical of the EPA's proposed 
listing of resinated wood as a non-waste fuel (addressed below), we did 
not receive

[[Page 9156]]

any comments that argued or suggested that the use of resinated wood as 
a fuel is not an integral component of the wood manufacturing process. 
Thus, we agree with commenters who encouraged the EPA to finalize 
resinated wood as a categorical non-waste fuel and will finalize this 
determination in today's rulemaking.
    Information in the record for this rulemaking clearly establishes 
that resinated wood is managed as a valuable commodity (40 CFR 
241.3(d)(1)(i)) and has meaningful heating value and is used as a fuel 
in combustion units that recover energy (40 CFR 241.3(d)(1)(ii)).\78\ 
In addition, we generally have determined that most resinated wood 
meets the contaminant legitimacy criterion as well ((40 CFR 
241.3(d)(1)(iii)), although we acknowledge that in some instances these 
materials may have levels of formaldehyde that are not comparable to 
traditional fuels.\79\
---------------------------------------------------------------------------

    \78\ See, e.g., 76 FR 80483. See also background document 
developed in support of the December 23, 2011, proposed rulemaking 
titled, ``Resinated Wood, Scrap Tire, and Pulp/Paper Sludge Support 
Document'' (EPA-HQ-RCRA-2008-0329-1880).
    \79\ Id.
---------------------------------------------------------------------------

    The EPA confirms the position discussed in the proposal and adopts 
it as its final rationale that there are instances where it is 
appropriate for the EPA to balance the regulatory legitimacy criteria 
with other relevant factors in order to determine whether a material is 
a legitimate fuel or is merely being discarded by being combusted. We 
have determined that resinated wood is one such example. Although 
resinated wood may not meet the regulatory contaminant legitimacy 
criteria in every situation, it is clear that resinated wood is still a 
``legitimate'' product fuel after one considers how integrally tied the 
use of resinated wood as a fuel is within the wood manufacturing 
process and industry. Nearly all comments received on this point 
concurred with this assessment. Thus, in today's final rule, we are 
codifying the determination that resinated wood, based on all 
information and the totality of the circumstances, is a non-waste when 
used as a fuel.
    Comment: One commenter, however, stated that the EPA's proposed 
categorical determination that resinated wood is a non-waste fuel is 
unlawful and arbitrary. The commenter stated that the EPA is now 
proposing to simply ``exempt'' resinated wood altogether, regardless of 
who burns it and whether it meets the legitimacy criteria. According to 
the comment, the EPA acknowledges that the formaldehyde levels in 
resinated wood would not always meet its contaminant legitimacy 
criterion--i.e., would not be comparable to the levels in any fuel that 
companies would otherwise burn. The commenter states that the EPA also 
acknowledges that burning resinated wood increases the emissions of 
formaldehyde, but nonetheless finds that, ``In general the motivation 
to use resinated wood as a fuel, even with the slightly higher 
formaldehyde levels, predominates over the motivation to dispose of the 
formaldehyde.'' The EPA's decision to remove the limits on the 
exemption for resinated wood and to ``categorically'' declare resinated 
wood to be a non-waste--regardless of who burns it, regardless of how 
contaminated it is, and regardless of the reality that some companies 
may be burning resinated wood as a cheap means of disposing of their 
toxic formaldehyde wastes--underscores this point.
    The comment continues that the EPA nowhere claims that companies 
burning resinated wood that they have not generated pay for these 
materials. Indeed, the EPA does not deny that these companies are paid 
to take the resinated wood they burn. Thus, the EPA provides no reason 
to believe that the resinated wood that is burned by a company other 
than the one that generated it has not been discarded by the company 
that generated it. Even under the EPA's own view of the meaning of 
discard, resinated wood burned by companies other than the generator of 
the resinated wood would be waste but for the agency's declaration that 
it is not waste.
    The commenter also states that the EPA admits that some companies 
may burn resinated wood because they want to dispose of the 
formaldehyde it contains (i.e., to dispose of the contaminated wood 
rather than to recover energy). Moreover, the levels of formaldehyde 
contamination in some resinated wood would exceed the EPA's legitimacy 
criteria, but for the EPA's declaration that these criteria do not 
apply. For these reasons as well, resinated wood is discarded even 
under the EPA's own view of what that term means.
    Further, the comment states that sources' alleged ``motivation'' 
for burning a material is to recover energy rather than to destroy the 
wood and the contaminants it contains--assuming arguendo that a 
source's motivation can even be determined--does not show that material 
is not a waste. Rather, resinated wood is a waste because it is 
discarded within the meaning of RCRA. Notably, the EPA does not suggest 
that there is any use for resinated wood that has been discarded other 
than--assuming it is a ``use'' at all--burning it. Moreover, 
establishing a ``motivation''-based test for whether resinated wood is 
or is not a waste conflicts with and defeats the CAA. Thus, the 
agency's categorical declaration that resinated wood is not a waste is 
unlawful.
    Response: The EPA strongly disagrees with the commenter's 
characterization of its categorical determinations. In making 
categorical determinations, the agency is not ``exempting'' these 
materials from regulation as a solid waste (i.e., if not for this 
``exemption,'' these materials would otherwise be regulated as solid 
waste). Rather, the EPA has determined that the specified NHSMs are not 
solid waste when used as fuels. Further, in making categorical 
determinations, the EPA is not saying that the legitimacy criteria are 
not relevant. In proposing the categorical non-waste determination for 
resinated wood, the agency stated we were ``balancing the legitimacy 
criteria and other relevant factors based on the fact that resinated 
wood residuals that are used as fuels represents an integral component 
to the wood manufacturing process and, as such, resinated wood 
residuals are not being discarded when burned as fuels.'' \80\ This 
remains the agency's final finding in this rule.
---------------------------------------------------------------------------

    \80\ See 76 FR 80483.
---------------------------------------------------------------------------

    Regarding the level of contaminants in resinated wood, the agency 
is not saying that resinated wood is a non-waste fuel ``regardless of 
how contaminated it is,'' as the commenter suggests. Based on all 
available information, the agency has concluded that resinated wood 
meets the legitimacy criteria for all contaminants with the possible 
exception in some situations of formaldehyde. In focusing specifically 
on formaldehyde, we also have stated that we have limited information 
regarding formaldehyde levels--that is, resins and adhesives containing 
formaldehyde react within the resin curing process leaving ``free 
formaldehyde at levels less than 0.02 percent (or 200 ppm), but noted 
that levels will be reduced further due to new national rules being 
developed by the CARB Composite Wood ATCM, per new Public Law 111-199. 
Thus, we have not said that contaminants do not matter. Rather, we have 
carefully analyzed contaminant levels in resinated wood and have 
determined, based both on contaminant levels, as well as how the use of 
these materials represents an integral part of the wood product 
manufacturing process, that resinated wood materials are a legitimate 
non-waste fuel.

[[Page 9157]]

    Further, we do not concede, as the commenter contends, that some 
companies burn resinated wood to destroy contaminants--in fact, we have 
determined just the opposite. We have determined that companies burning 
resinated wood do so because such an activity is integrally tied to 
their production process, not to dispose of the formaldehyde. This 
determination is based on that extent to which resinated wood is used 
as fuels throughout the wood manufacturing industry, as well as the 
fact that the use of resinated wood as fuel is essential to that 
industry (i.e., plants have been designed to use these materials as 
fuels and would be unable to operate if resinated wood was not 
available as a fuel source).
    Regarding the comments that the EPA acknowledges that burning 
resinated wood increases emissions of formaldehyde, the agency needs to 
correct this characterization. First, in the 2011 NHSM final rule, we 
stated that the criterion or test in determining the contaminant 
legitimacy criterion is based on the level of contaminants in the 
secondary material itself and not by comparing the differences in 
emissions.\81\ However, responding to comments we received regarding 
emission levels associated with burning resinated wood as a fuel, the 
agency determined that the amount of formaldehyde that is emitted from 
burning resinated wood residuals is in fact likely to decrease, given 
that Public Law 111-199 will reduce formaldehyde levels in these 
materials.\82\
---------------------------------------------------------------------------

    \81\ See, e.g., 76 FR 15502.
    \82\ Id.
---------------------------------------------------------------------------

    Regarding the commenter's statement that companies that burn 
resinated wood that they have received from offsite do not pay for it, 
the EPA disagrees with the argument put forth by the commenter as the 
facts in this instance do not support such a premise.
    As noted in the March 2011 final rule, inter-company transfers of 
resinated wood residuals are typically managed through buy-sell 
contracts and 6 percent of resinated wood residuals are sold into the 
fuel market and are used as either ``furnish'' (i.e., raw materials) or 
fuel at the receiving facilities.\83\ In addition, the EPA received 
additional comments on the proposed rule stating, ``* * *there exists 
within the wood products industry a developed market for purchase and 
sale of resinated wood between independent companies.''
---------------------------------------------------------------------------

    \83\ See 76 FR 15500.
---------------------------------------------------------------------------

    Moreover, while contractual arrangements can be used as evidence 
that the material is managed as a valuable commodity and that discard 
is not occurring when a material is transferred beyond the control of 
the generator, the price of an NHSM is not, by itself, dispositive of 
whether the material is or is not a waste. The main indication that 
resinated wood residuals are not solid waste is the fact that they are 
used as fuels in a way that represents an integral component to the 
wood products industry. As the EPA noted in the March 2011 final rule, 
``resinated wood residuals transferred off-site are utilized in the 
same manner as self-generated resinated wood residuals (i.e., contained 
in the same bins as furnish materials used in the product, transferred 
via conveyors or ducts), which the plants are specifically designed to 
burn as a fuel, [and therefore] we agree that this does not constitute 
discard.''\84\
---------------------------------------------------------------------------

    \84\ Id.
---------------------------------------------------------------------------

    The comment that the agency has simply declared that resinated wood 
is a non-waste ``regardless of who burns it'' is a mischaracterization 
of this categorical non-waste determination. Based on all information 
provided to the agency, we have determined the use of resinated wood as 
a fuel is an integral part of the industry's production processes and 
that these materials are managed as valuable commodities (i.e., fuels), 
have meaningful heating value and are used in combustion units that 
recover energy regardless of whether these materials remain within the 
control of the generator or are transferred offsite to another 
facility. On the other hand, we have no information that facilities are 
burning these materials merely to get rid of them (i.e., discard).
    The EPA finds irrelevant the commenter's statement that the EPA is 
looking to a source's motivation for using a material as a fuel 
conflicts with and defeats the CAA. The issue, rather, is whether 
motivation is relevant to a waste determination under RCRA. The D.C. 
Circuit confirmed the relevance of motivation in determining whether a 
recycled material is a waste. See, API v. EPA, 216 F.3d at 58 (court 
criticizes the EPA for not saying why it has concluded whether 
recycling motivation predominates over a disposal motivation). In this 
case, it is clear that the motivation for burning the resinated wood is 
to utilize its inherent value as a fuel and not for disposal. 
Commenters have provided the agency with information that facilities 
generating and managing resinated wood residuals consider these 
materials to be an integral part of their production process--both in 
the value these materials provide as being a critical source of energy 
as well as being recycled back into the manufacturing process to create 
more wood products. Thus, we are not convinced that a facility that 
considers the use of resinated wood as a fuel to be an integral part of 
its production processes, as has been established in the record, is 
motivated to discard these materials by burning to get rid of them.
    Comment: A few commenters stated that the EPA is not consistent in 
how discarded materials are designated as solid waste. In particular, 
the commenter stated that the EPA was proposing to list as a 
categorical non-waste fuel in 40 CFR part 241.4 resinated wood 
regardless of whether it is previously discarded, while the agency 
would require processing for scrap tires that have been discarded in 
landfills.
    Response: The agency disagrees that its treatment of resinated wood 
is inconsistent with its treatment of scrap tires. Nowhere does the 
agency state that resinated wood would be considered a non-waste fuel 
``regardless of whether it is previously discarded.'' The EPA, based on 
all information available, has determined that resinated wood is not 
being discarded when used as fuel, given the fact that resinated wood 
residuals that are used as fuels represent an integral component of the 
wood manufacturing process. If a shipment of resinated wood residuals 
was disposed of in a landfill, it would be a waste. In addition, if a 
shipment of resinated wood residuals were disposed of and later 
recovered to be used as a fuel, as is the case with scrap tires that 
are extracted from landfills, this would be a different scenario and 
would not be included within the categorical listing in 241.4(a)(2).
    As the record clearly shows, resinated wood is routinely handled 
and managed as a valuable fuel product within the wood products 
manufacturing industry. As noted in the rulemaking record (see docket 
EPA-HQ-RCRA-2008-0329), numerous scrap tire piles have been created in 
the past and it is a common practice to recover abandoned tires from 
tire piles and use them for fuel. This is not the case for resinated 
wood.
    Comment: While supportive of the agency's proposed listing of 
resinated wood as a non-waste fuel in 40 CFR part 241.4, two commenters 
suggested that the agency revise the definition of ``resinated wood'' 
as codified in 241.2. Currently, ``resinated wood'' is defined as, 
``wood products (containing resin adhesives) derived from primary and 
secondary wood products manufacturing and comprised of such items as 
board trim, sander dust, and

[[Page 9158]]

panel trim.'' However, these commenters request the EPA to revise this 
definition in order to clarify that the ``spectrum of resinated 
materials currently used as fuels throughout the wood product 
manufacturing process are included in the definition.'' Thus, 
commenters urge the EPA to revise the definition of resinated wood as 
follows: ``Resinated wood means wood products (containing binders and 
adhesives) produced by primary and secondary wood products 
manufacturing. Resinated wood includes residues from the manufacture 
and use of resinated wood, including materials such as board trim, 
sander dust, panel trim, and off-specification resinated wood 
products.''
    The suggested revised definition proposes two changes. First, the 
suggested definition replaces the phrase ``containing resin adhesives'' 
with the phrase, ``containing binders and adhesives.'' The second 
suggested revision to the definition is the specific inclusion of 
``off-specification resinated wood products.'' Commenters have 
indicated that these materials include materials that do not meet 
manufacturing specifications or are otherwise physically marred or 
damaged and thus, are not sold in the marketplace. This class of 
materials would not be expected to be chemically different than the 
resinated wood products that meet the manufacturing ``on-spec'' 
requirements. For example, off-specification resinated wood products 
would not be expected to have higher amount of resins (and therefore 
contaminants) than their on-specification counterparts. Commenters have 
indicated that off-specification resinated wood products are identical 
to their on-specification counterparts chemically and only differ in 
that they are do not meet a manufacturing quality or standard.
    Response: The agency recognizes that in order for a categorical 
non-waste determination to be meaningful and effective, it must be 
clear about the universe of materials that such a categorical non-waste 
determination encompasses. Thus, we agree with commenters who suggested 
specific revisions to the definition of ``resinated wood'' contained in 
part 241.2. Specifically, the EPA agrees that these revisions create a 
definition that more accurately captures the scope of resinated wood 
and is more representative of the resinated materials currently used as 
fuels throughout the wood product manufacturing process. First, by 
including the terms ``binders'' and ``adhesives,'' the universe of 
materials that we consider to be within this definition should be more 
clear, as these terms are widely used and accepted within the wood 
products manufacturing industry.
    With respect to the inclusion of off-specification resinated wood 
products, the EPA finds it appropriate to include this class within the 
definition of resinated wood. We note, however, that to the extent that 
a facility has reason to expect that the off-specification wood 
products are off-spec for chemical reasons, such that the levels of 
contaminants are expected to be greater than their on-spec 
counterparts, the EPA would not consider such materials to be within 
the scope of this definition. The agency will make this point more 
clear by specifying in the definition that the term ``off-specification 
resinated wood products'' are off-spec due to the fact that they do not 
meet a manufacturing quality or standard. Thus, in today's final rule, 
we are codifying the definition of resinated wood as follows: 
``Resinated wood means wood products (containing binders and adhesives) 
produced by primary and secondary wood products manufacturing. 
Resinated wood includes residues from the manufacture and use of 
resinated wood, including materials such as board trim, sander dust, 
panel trim and off-specification resinated wood products that do not 
meet a manufacturing quality or standard'' (emphasis added).
    Comment: One commenter noted that there are additional secondary 
materials produced by the wood manufacturing industry that are similar 
to resinated wood and, thus, should also be considered a non-waste 
fuel. The production of flooring and furniture creates final finishing 
trim, sander dust and process breakage that are both solid and 
resinated wood materials. In some cases, these materials are coated 
with finish materials used to color and protect the finished product. 
The commenter (a utility) indicated that their facilities receive these 
materials from furniture and flooring manufacturers and utilize them to 
offset the fuel load from fossil fuels due to their high heat capacity. 
Thus, the commenter requests that the EPA expand its definition of 
resinated wood materials to include these additional wood manufacturing 
secondary materials as non-waste fuels or otherwise describe the 
circumstances under which these additional materials would be 
considered a non-waste fuel.
    Response: It is possible that these materials (or some of these 
materials) could be within the definition of ``resinated wood,'' as 
codified in 40 CFR part 241.2; however, commenters have not provided 
the agency with information regarding the factors involved in 
determining whether these additional types of coated materials are 
legitimately used as product fuels. That is, commenters have not 
provided information regarding whether these ``finishing materials'' 
could have contaminant concerns and whether they are routinely used as 
fuels. Subsequent to this rulemaking, the agency would welcome 
information regarding these materials in order to make an informed 
decision regarding whether these materials fit within the definition of 
``resinated wood.'' Alternatively, the commenter may petition the 
agency to receive a non-waste determination per the petition process 
established in 40 CFR 241.3(c) if the commenter believes that this 
material may not be within the definition of ``resinated wood.''
4. Rulemaking Petition Process for Other Categorical Non-Waste 
Determinations (40 CFR 241.4(b))
    The EPA recognizes that there may be other NHSMs that can also be 
considered non-wastes when used as fuels in combustion units when 
balancing the legitimacy criteria and other relevant factors. Thus, 
under today's rule, we are finalizing the process outlined in the 
proposed rule whereby persons can submit a rulemaking petition to the 
Administrator where they can identify and request that additional NHSMs 
be listed in section 241.4. The petition process is similar to 40 CFR 
260.20, where any person may petition the Administrator to modify or 
revoke any provisions of the hazardous waste rules and where procedures 
governing the EPA's action on those petitions are established. The 40 
CFR 260.20 standards reflect normal, informal rulemaking procedures 
under the APA and thus, serve as an appropriate model for the NHSM 
rulemaking petitions under this section.
    In the context of a rulemaking petition under section 241.4(b), any 
person can petition the Administrator for a regulatory amendment to 
identify and request that additional NHSMs be included on the list of 
materials in section 241.4(a) that are not solid wastes when used as a 
fuel in a combustion unit. To be successful, the petitioner needs to 
demonstrate to the satisfaction of the Administrator that the proposed 
regulatory amendment involves a NHSM that has not been previously 
discarded (i.e., was not initially abandoned or thrown away), or if 
discarded, has been sufficiently processed into a legitimate fuel. The 
petitioner must also demonstrate that the material is used as a non-
waste fuel in a combustion unit because it either

[[Page 9159]]

meets the legitimacy criteria, or, after balancing the legitimacy 
criteria with other relevant factors, such NHSM(s) is not a solid waste 
when used as a fuel in a combustion unit.
    If the applicant believes that the NHSM is a legitimate product and 
not discarded despite not meeting the legitimacy criteria, additional 
information must be submitted to explain or describe why such NHSM 
should be considered a non-waste fuel. Possible factors to address 
include, but are not limited to:
     The extent that use of the NHSM has been integrally tied 
to the industrial production process. Information can include combustor 
design specifications, the extent that use of the material is 
integrated across the industry and the extent that use of the NHSM is 
essential to the industrial process,
     The extent that the NHSM is functionally the same as the 
comparable traditional fuel, and
     Other relevant factors.
    The application is required to include: (1) The petitioner's name 
and address; (2) a statement of the petitioner's interest in the 
proposed action; (3) a description of the proposed action, including 
the specific NHSM, the industry (i.e., NAICS code) and functional use 
(i.e., industrial functional code listed in 40 CFR 710.52(c)(4)(i)(C)); 
and (4) a statement of the need and justification for the proposed 
action, including any supporting tests, studies or other information. 
Where such NHSM(s) do not meet the legitimacy criteria, the applicant 
must explain why such NHSM(s) should be considered a non-waste fuel, 
balancing the legitimacy criteria with other relevant factors.
    Under this petition process, the Administrator makes a tentative 
decision to grant or deny a petition and then publish notice of such 
tentative decision, either in the form of an ANPRM, a proposed rule or 
a tentative determination to deny the petition, in the Federal Register 
for written public comment. The Administrator could, at its discretion, 
hold an informal public hearing to consider oral comments on the 
tentative decision. After evaluating all public comments, the 
Administrator makes a final decision by publishing in the Federal 
Register a regulatory amendment or a denial of the petition.
    Comment: One commenter does not support use of the legitimacy 
criteria, as provided in the proposed section 241.4(b)(3) to make a 
determination. A material which has not been discarded is, by 
definition, not a solid waste. However, if the EPA believes that other 
factors still should be considered, then the only other factor which 
should be considered is whether the material is being used legitimately 
as a fuel. The remaining legitimacy criteria are (and should be) 
irrelevant.
    Response: As discussed in the 2011 NHSM final rule, ``legitimacy'' 
is shorthand for referring to NHSM that are not abandoned or thrown 
away, are saved and are reused by being burned for their value as a 
fuel.\85\ The legitimacy criteria are the factors needed to be examined 
to make this determination. For example, it is relevant how the NHSM is 
managed and its heating value since burning materials that have minimal 
or limited heating value shows the material is being burned for discard 
and not energy recovery. In addition, the extent to which contaminants 
are present in NHSMs may also indicate that the real reason for burning 
the secondary material is simply to destroy or discard them--referred 
to as ``sham'' recycling. Thus, the agency is not simply ``punting'' to 
its legitimacy criteria but believes they provide a valid basis for 
showing that a NHSM is more commodity-like than waste-like.
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    \85\ See 76 FR 15471.
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    Comment: The current petition process is limited to NHSMs when used 
as fuels. Absent from this petition process are NHSMs used as 
ingredients and previously discarded materials that meet the fuel 
legitimacy criteria. We do not understand this distinction and urge the 
EPA to expand both the current and proposed petition processes to allow 
for non-waste determinations for a wider range of NHSMs.
    Response: In general, the 40 CFR part 241 regulations establishes a 
self-implementing approach for NHSM that can consider site-specific 
information, if necessary (i.e., facilities will make a self-
determination of whether the non-hazardous secondary fuel or ingredient 
in question meets the regulatory criteria). We note it is the EPA's 
intention to indicate in these rules, as clearly as possible, which 
non-hazardous materials used as fuels or ingredients in combustion 
units are or are not considered solid waste based on the criteria laid 
out in regulatory text. The agency expects this self-implementing 
approach will govern the majority of situations, including NHSMs used 
as ingredients and NHSMs processed from previously discarded materials.
    We would also note that the regulated community prior to proposing 
the December 2011 proposed rule and commenters to that proposed rule 
did not provide any instances where ingredients are combusted or are 
processed from previously discarded material that would be a candidate 
for listing categorically. Therefore, we do not believe it necessary to 
modify the proposed rule to address this situation. However, to the 
extent that there are instances where such materials do exist, persons 
can always petition the EPA to modify the rules, including allowing 
ingredients that are combusted to be categorically listed to account 
for such materials.
    Comment: In the NHSM Proposal, the EPA recognizes that a material 
can have levels of contaminants higher than traditional fuels, but 
still be combusted for a legitimate, energy-producing purpose (see 76 
FR 80483 discussing resinated wood). The EPA also has proposed that 
this is true for hazardous secondary materials as well (see 76 FR 
44094, 44122; July 22, 2011). Notwithstanding this admission, the EPA 
is not proposing to amend its legitimacy criterion for contaminants to 
make it a consideration, rather than a mandatory criterion. Thus, the 
EPA's NHSM Proposal is internally inconsistent. Under 40 CFR 
241.3(d)(iii), any material that has contaminants in concentrations 
higher than those found in traditional fuels is automatically 
considered a waste, no matter how integral the use of the material is 
to the manufacturing process or how legitimate the combustion is to the 
purpose of energy recovery. In contrast, under proposed 40 CFR 241.4, 
EPA recognizes that materials can have high levels of contaminants and 
still be non-waste material being legitimately combusted for energy 
recovery. To justify this inconsistency, the EPA argues that it needs 
to make a case-by-case determination that a material with higher levels 
of contaminants is a non-waste to ``prevent sham recycling'' (see 76 FR 
80482).
    Response: The EPA disagrees with the comment that the mandatory 
nature of the self-implementing Sec.  241.3 standards (including the 
contaminant legitimacy criterion) for individual facilities is 
inconsistent with the non-waste determinations outlined in Sec.  241.4. 
In particular, the legitimacy criteria (including the contaminant 
legitimacy criterion) must be met under the self-implementing standards 
for individual facilities outlined in Sec.  241.3, but the same 
criteria may be balanced by the EPA with other relevant factors under 
the categorical non-waste determinations outlined in Sec.  241.4.
    These differences are necessary and appropriate. Where a particular 
NHSM may not meet all the legitimacy criteria outlined in Sec.  
241.3(d)(1), but the

[[Page 9160]]

material is being used as a legitimate fuel, the agency has decided it 
is necessary to require a formal determination (i.e., not a self-
implementing decision) to prevent materials from being burned for 
discard under the guise of recycling. Furthermore, the agency has 
decided that such a determination should be subject to public notice 
and comment. In cases where the difference between recycling and waste 
treatment is difficult to distinguish, as is the case when elevated 
levels of contaminants are present, the potential for abuse is likely, 
and thus, regulatory oversight is appropriate when making a waste/non-
waste determination. This approach is also consistent with what the EPA 
proposed for the hazardous secondary material rule cited by the 
comment--that is, the balancing test would be used by the EPA in a 
petition process, not as a self-implementing determination.
    Comment: One commenter requested that the EPA should specifically 
recognize in the categorical petition that the existence of a supply 
contract between a generator of NSHMs and a combustor, with 
specifications that the NHSM must meet, should be considered 
dispositive evidence that the NHSM is not a waste and is combusted for 
energy recovery, not disposal.
    Response: We disagree with the commenter that the mere existence of 
a contract between the generator and combustor is dispositive evidence 
of the material being a non-waste. However, existence of a contract is 
a factor to be considered in a categorical non-waste determination. For 
example, under 40 CFR 241.4(a)(1), scrap tires managed under 
established tire collection programs are a categorical non-waste and 
the definition of ``established tire collection program'' (40 CFR 
241.2) explicitly recognizes contracts as evidence that the material 
has not been discarded. Specifically, ``Established tire collection 
program'' means ``a comprehensive collection system or contractual 
arrangement [emphasis added] that ensures scrap tires are not discarded 
and are handled as a valuable commodity through arrival at the 
combustion facility* * *''
    Comment: The timeframe for which the EPA must grant or deny the 
request should be included as well as defining the length of time of 30 
days that these notices will be open to public comment. What is the 
legal implication of an ``informal public hearing?'' How does this 
differ from a public information meeting? If it is ``informal,'' what 
is the purpose? What administrative procedures apply to comments made 
during the ``informal public hearing?''
    Response: The agency is not imposing a deadline on its decision to 
grant or deny a petition, or a specific time period for public comment, 
due to the potentially wide range of issues involved in considering a 
categorical non-waste petition and because of the many factors beyond 
its control. Informal public hearings, similar to formal public 
hearings, provide an opportunity for the public to provide comments and 
oral testimony on proposed agency actions . All testimony received 
becomes part of the public record. Public meetings, on the other hand, 
are less formal; anyone can attend, there are no formal time limits on 
statement, and the agency and/or the facility usually answer questions. 
The purpose of the meeting is to share information and discuss issues, 
not to make decisions.
    Comment: The final rule should make clear that the denial of a 
petition would not bar the filer of the denied petition from filing a 
subsequent petition for the same location and same materials.
    Response: Where the information submitted to make a categorical 
non-waste determination has fundamentally changed, the EPA agrees that 
a petition to categorically list a NHSM can be resubmitted for review.
5. Materials for Which Additional Information Was Requested
a. Pulp and Paper Sludge
    In the March 2011 NHSM final rule, the EPA concluded that pulp and 
paper sludges meet the legitimacy criteria and, thus, can be burned as 
a non-waste fuel provided such combustion units are within the control 
of the generator in accordance with section 241.3(b)(1).\86\ The 
December 2011 proposed rule discussed the information we currently have 
on pulp and paper sludges, and the additional information that the 
agency would need in order to categorically list these materials in 40 
CFR 241.4(a) as a non-waste fuel.\87\ If such information were provided 
to the EPA, the agency would then consider the legitimacy criteria and 
other factors relevant to a determination that these sludges are not 
solid wastes when combusted.
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    \86\ Pulp and paper sludges almost entirely remain on-site and 
within the control of the generator when burned as fuels. To the 
extent that pulp and paper sludges do not remain within the control 
of the generator and are used as fuels, the petition process 
established in 40 CFR 241.3(c) could apply to these materials, as 
appropriate.
    \87\ Additional information needed to categorically list pulp 
and paper sludges is discussed at 76 FR 80485.
---------------------------------------------------------------------------

    This categorical listing would put pulp and paper sludges in the 
same general grouping as resinated wood residuals. For resinated wood 
residuals, the EPA considered that use of that material as a fuel has 
been integrally tied to the industrial production process and is 
consistent with that of a fuel product. The proposal discussed similar 
information that was needed by the agency to support adding pulp and 
paper sludges to 40 CFR 241.4(a) as a categorical non-waste.
    Based on the comments received and information submitted, the EPA 
is listing as a categorical non-waste fuel under section 241.4 those 
dewatered pulp and paper sludges that are not discarded and are 
generated and burned on-site by pulp and paper mills that burn a 
significant portion of those residuals. Such residual must be dewatered 
and managed in a manner to preserve the meaningful heating value of 
those materials.
    This determination for pulp and paper sludge as a categorical non-
waste represents the agency's finding that, after balancing the 
regulatory \88\ legitimacy criteria with other relevant factors, the 
burning of this material as described in the categorical listing is a 
commodity fuel for legitimate energy recovery and not discard. That is, 
the agency has concluded that, for pulp and paper mills that burn a 
significant portion, pulp and paper sludges are integral to the mills' 
operations and provide a critical source of energy. Such mills are not 
burning these dewatered pulp and paper sludges to discard them but are 
burning them as a legitimate commodity fuel. These facilities take the 
steps necessary to dewater the pulp and paper sludges and to manage the 
dewatered sludge to maintain its meaningful heating value and not to 
dispose of the sludge. In addition, the agency finds for facilities 
burning a significant portion of the dewatered sludge that:
---------------------------------------------------------------------------

    \88\ As the EPA has previously stated (76 FR 15460), the Agency 
has established regulatory legitimacy criteria which may be used by 
companies on a case-by-case basis to show that they are not 
discarding material when used in a combustor. However, for the 
categorical determination, the Agency has determined that it is 
appropriate for the Agency, itself, to make the discard 
determination for material that does not meet the more strict 
regulatory criteria. Thus, the EPA has developed the categorical 
determination.
---------------------------------------------------------------------------

    (1) The sludges are managed in a manner that preserves meaningful 
heating value and, therefore, meets the managed as a valuable commodity 
(241.3(d)(1)(i)).
    (2) Dewatered sludge (i.e., dewatered through appropriate water 
removal practices, including dewatering presses, rotary driers, etc.) 
meets the meaningful heating value and used in combustion

[[Page 9161]]

units that recovery energy criterion (241.3(d)(1)(ii)).
    (3) The sludge meets the comparable contaminant criterion 
(241.3(d)(1)(iii)).
    The fact that these sludges meet the contaminant legitimacy 
criterion, in the EPA's view, show that these sludges when burned on-
site are not being discarded. While the agency is not defining a 
specific percentage of dewatered pulp and paper sludges that would need 
to be burned to qualify for the categorical listing in section 241.4, 
the agency would consider that the 42 mills that responded to an AFPA 
survey \89\ and that use dewatered pulp and paper sludge as fuels at a 
significant rate (between 70-100 percent of these materials that are 
generated and burned) meet the listing description. We also find that 
other mills that burn a significant portion of their dewatered pulp and 
paper sludges on-site as fuel would qualify for the listing 
description.\90\ For the pulp and paper mills that burn a relatively 
small percentage of their dewatered pulp and paper sludges on-site as a 
fuel (e.g., the five mills that responded to the AFPA survey that burn 
less than 20 percent), the agency has determined that those sludges are 
not viewed the same by the mill operator in that they do not need to 
rely on them for their energy value and are not included in the non-
waste categorical listing in section 241.4.
---------------------------------------------------------------------------

    \89\ See April 2, 2012, letter from Timothy G. Hunt to James 
Berlow. A copy of this letter has been placed in the docket for 
today's rulemaking.
    \90\ While the Agency is not including a specific requirement 
for pulp and paper mills to document the amount of dewatered 
wastewater treatment residuals they burn on-site as a fuel, we would 
recommend that such pulp and paper mills include such documentation 
in case there are any questions as to whether the pulp and paper 
mills dewatered wastewater treatment residuals qualifies for the 
categorical listing in 241.4. As an alternative, the pulp and paper 
mill can request the Agency to confirm (via letter) that the 
facility generates and burns on-site a significant portion of pulp 
and paper sludges such that the facilities pulp and paper sludges 
are included within the categorical listing.
---------------------------------------------------------------------------

    However, there is likely little difference as to how pulp and paper 
sludge may be defined under NHSM rules, whether a categorical or a 
facility-specific non-waste determination. That is, such dewatered pulp 
and paper sludges may still be considered non-waste fuels when burned 
as a fuel for energy recovery at mills that burn a relatively small 
percentage of these materials, although the rules require those 
facilities to document on a facility-specific basis that such sludges 
are non-waste fuels. As discussed in the final NHSM rule (76 FR 15488), 
dewatered pulp and paper sludges that are burned within the control of 
the generator and meet the legitimacy criteria, likely are non-waste 
fuels and thus can be burned in units subject to CAA section 112 
requirements.
    The agency has restricted the categorical listing to those 
dewatered pulp and paper sludges that are burned on-site because the 
agency has minimal information on how these NHSMs are managed when 
shipped offsite.\91\
---------------------------------------------------------------------------

    \91\ We note that in the situation where pulp and paper sludges 
are transferred beyond the control of the generator, a facility can 
petition the Agency to receive a non-waste determination, as 
appropriate.
---------------------------------------------------------------------------

    Outlined below are commenters' responses to the agency information 
requests regarding pulp and paper sludges and a categorical non-waste 
determination.
    Comment: The EPA requested information on how pulp and paper mill 
sludge is used as a legitimate fuel and not discarded at pulp and paper 
mills and how the material is integrated into the industrial production 
process.
    In responding to the agency's request, commenters first provided a 
summary of energy needs by the pulp and paper industry. The commenters 
indicated that the industry is somewhat unique in its energy profile 
and in how individual mills select appropriate fuels to support their 
energy needs. Most pulp and paper mill boilers are specifically 
designed to handle a variety of fuels; few boilers are designed to burn 
just traditional fuel. Even mills with boilers specifically permitted 
as pulp and paper sludge boilers also burn other fuels. Over the years, 
the industry has recognized the benefits of burning secondary 
materials, particularly those generated on-site. These secondary 
materials are derived from and have characteristics similar to 
traditional fuel, particularly the biomass used to produce pulp and 
paper products.
    Mills do not usually burn just one type of fuel at any one time. 
Some mills rely heavily on coal, others on natural gas or biomass. 
According to the commenter, the choice of fuel depends on availability, 
cost and need. Hogged fuel or coal may be the underlying fuel but it is 
supplemented by other traditional and non-traditional fuels. This is 
done in order to meet the energy needs of the mill but also to address 
best management practices for the boiler and meet air quality 
requirements. If the hogged fuel is wet, coal or resinated wood may be 
added to boost heat value. If the boiler is burning too hot, the 
addition of pulp and paper sludge enables the mill to regulate 
temperature. Pulp and paper sludge also may be burned because it has 
the best fuel value for the price. All of these decisions are based on 
the boiler conditions, fuel availability, energy needs, air quality 
requirements, as well as costs, and all are considered when the energy 
manager determines the right mix of fuel in any given day.
    As a result, the quantities of different types of fuels burned over 
the course of a year differ and the mill may not burn 100 percent of 
the available fuel generated during that year. Not all pulp and paper 
sludges are burned at a given mill over the course of a year nor are 
all recycled process residuals (old corrugated cardboard rejects) or 
all hogged fuel. The commenter emphasized that if only a percentage of 
a secondary material generated by the industry is used as a fuel, that 
it does not negate its value as a fuel. Rather, it reflects the 
realities of running a boiler for which the economic and operating 
conditions are interconnected and dynamic.
    For example in one mill, the commenter indicated that combination 
boilers are designed to burn a wide variety of fuels efficiently and 
cleanly. Two mills' boilers currently burn tire-derived fuel,\92\ while 
one burns waste paper generated at the mill. They all are capable of 
burning one or more fossil fuels: oil (including used oil), coal and 
gas. The four combination boilers burn large amounts of biomass, either 
generated on-site or purchased commercially. A portion of three of the 
mills' biomass consists of sludge generated on-site from their 
wastewater treatment processes.
---------------------------------------------------------------------------

    \92\ Tire-derived fuel used in the paper industry must be 
dewired since the wires often clog the feed system. Thus, the 
industry does not utilize whole tires.
---------------------------------------------------------------------------

    One state commenter also indicated that most mills operate boilers 
that are specifically designed to handle a variety of fuels--few 
boilers are designed to burn just traditional fuel and mills do not 
usually burn just one type of fuel at any one time. Bark and biomass 
fuel may be the primary fuel but it is supplemented by other 
traditional or alternative fuels.
    Secondary materials have been an important alternative fuel used 
safely by the mills in the commenter's state for many years. Most of 
that state's mills' have multi-fuel boilers. Their fuel handling 
equipment, mill wastewater treatment systems and other ancillary 
equipment were designed to combust alternative fuels, including pulp 
and paper sludge. Use of these fuels reduces reliance on purchased 
biomass and/or fossil fuels and provides a vehicle for beneficial reuse 
of the materials. In light of the greater stringency of the CISWI

[[Page 9162]]

regulations, the state indicated that the mills are likely to landfill 
these materials instead of recovering their fuel value if these 
materials are considered solid waste under the CISWI standards.
    Another industry commenter stated that four of their five U.S. pulp 
mills produce wastewater treatment residuals that are burned in 
biomass-fired combination fuel boilers. At one mill, the residual 
solids are harvested and sold under a purchase agreement to an Electric 
Utility Generating plant burning various sources of biomass because 
that mill does not have a biomass boiler designed to burn the 
residuals. The residuals are primary clarifier solids (mostly wood 
fibers too short for product use) which are harvested by dewatering 
through a screw press. The residuals are stockpiled in a specific 
managed area before being trucked to the power company. At that site, 
the materials are processed and conveyed with other forms of biomass 
for fuel in their biomass boiler. Use of the wastewater treatment 
residuals from the mill as a fuel at the purchasing site is permitted 
in their air permit.
    One commenter indicates that the energy manager at a mill will 
determine the approximate amount of different types of fuels needed to 
obtain the most energy under the best operating conditions. As pulp and 
paper sludge is generated, it is directed toward the hogged fuel pile 
or towards other non-fuel uses. This decision is based on whether the 
mill's boiler is designed and permitted to burn pulp and paper sludge 
and the amount is determined by the energy demands on that particular 
day.
    Another commenter believes that the fact that not all pulp and 
paper sludge is combusted at pulp and paper mills is evidence that the 
wood products industry only combusts pulp and paper sludge for 
legitimate energy recovery and not for disposal. According to the 
commenter, when the pulp and paper sludge is not needed as a fuel, it 
is used for non-fuel purposes or is discarded. When it is combusted, it 
is combusted for its energy value as a legitimate fuel.
    One mill described by a commenter has elected to divert its own-
make bark to beneficial use as mulch, rather than burning it, because 
it is of poorer quality than commercially available biomass. That same 
mill has recently invested in a new belt press which provides high 
quality sludge as fuel for its combination boiler. Since the press was 
installed in 2011, the percentage of mill sludge burned has increased 
to 80 percent from under 50 percent. Currently, the mill is burning 
more of the sludge from its process than the bark it also generates.
    At another plant, the commenter indicates that sludge is a by-
product of the AST process. Their mills employ primary clarifiers to 
separate out solids from wastewater, of which 50 percent is wood fiber, 
the primary component.\93\ These solids are staged in holding or blend 
tanks prior to drying. In addition to primary clarifiers and aeration 
basins, AST systems employ secondary clarifiers (large, open, circular 
concrete tanks) in which biological solids exiting the aeration 
basin(s) are separated by gravity from wastewater. The process is 
carefully regulated to accomplish two objectives: making the water as 
clean and free of solids as possible while retaining activated sludge 
(active microbes) to re-inject into the biological treatment stage of 
the process. As part of this continuous loop, some activated sludge 
must be removed from the system to maintain the optimal population of 
active microbes for effective treatment.
---------------------------------------------------------------------------

    \93\ Washington State Department of Ecology Industrial Footprint 
Project Waste Stream Reduction and Re[hyphen]Use in the Pulp and 
Paper Sector, June 2008.
---------------------------------------------------------------------------

    After excess secondary sludge is removed from the treatment loop at 
three of the mills, it is mixed with primary sludge in blend tanks 
prior to being dried on belt presses to a suitable moisture level for 
burning or other uses. Sludge is introduced into the mills' solid fuel 
feed systems by means of conveyers where it becomes thoroughly mixed 
with other fuels in the conveyer systems before being introduced into 
the mills' combination boilers. At one mill, primary sludge is dried 
separately by means of screw presses while secondary sludge is dried 
using a belt press. The two fuels are fed separately by conveyers onto 
the mill's main solid fuel conveyer which transports the bark/sludge 
mixture to a surge bin. The fuel is passed through a ``waste heat 
dryer,'' where it is briefly exposed to boiler flue gas before being 
fed into the combination boiler. The process at all four mills is 
continuous. Operators monitor and manage the sludge on a 24 hour basis. 
Sludge drying takes place entirely within buildings where the tanks, 
pipes, mixers, pumps, polymer feed systems, conveyers, presses, 
diversion gates and valves, monitoring devices and other equipment 
necessary to produce suitable sludge are housed.
    Sludge burned in the boilers is transported to the boilers on feed 
systems designed to ensure sludge, biomass and other solid fuels are 
homogeneous, thoroughly mixed and not exposed to the elements while 
being conveyed to the boilers. After its removal from wastewater 
treatment, no sludge touches the ground until it is burned, 
beneficially used (e.g., recycled feedstock to make newsprint) or 
landfilled.
    The commenters indicate that the moisture content of biomass is 
highly variable. Operators control fuel use based on the mill's need 
for steam and electricity, fuel costs, fuel quality and fuel 
availability. All factors can change at a moment's notice since the 
production process is constantly changing. Pulp and paper production 
swings or curtailments are common. Energy demand, fuel cost or fuel 
quality may make it necessary or desirable to reduce biomass and sludge 
combustion, even to switch entirely to fossil fuels. Environmental 
emissions occasionally can be a factor in fuel use, particularly during 
boiler startup or shutdown, or when the mill is experiencing rapid 
fluctuations in steam demand.
    Response: Based on the information submitted, and as discussed 
further in our responses below, the EPA is listing as a categorical 
non-waste fuel under section 241.4 dewatered pulp and paper sludges 
that are not discarded and are generated and burned on-site by pulp and 
paper mills that burn a significant portion of such materials where 
such dewatered residuals are managed in a manner that preserves the 
meaningful heating value of the materials.
    This determination for pulp and paper sludge as a categorical non-
waste fuel represents the agency's finding, after balancing the 
legitimacy criteria with other relevant factors, that those mills that 
burn a significant portion of these pulp and paper sludges are burning 
them as a commodity fuel for energy recovery and not discard. The 
discussion above indicates that these mills have been designed to 
utilize pulp and paper sludges and use of that material as a fuel is an 
integral part of facility operations. Decisions regarding use and the 
right mix of fuel in any given day are based on the boiler conditions, 
fuel availability, energy needs, air quality requirements and cost.
    Comment: The EPA requested information on the amount of pulp and 
paper sludge burned as fuel.
---------------------------------------------------------------------------

    \94\ Docket EPA-HQ-OAR-2003-0119-2619.
---------------------------------------------------------------------------

    In 2010, members of AF&PA burned 772,034 dry tons of pulp and paper 
sludge, which represents approximately 25 percent of the pulp and paper 
sludge generated by members of AFPA during the year.\94\ However, 
approximately 90 percent of the AF&PA member facilities that responded 
to their survey (42 out of

[[Page 9163]]

47) that use dewatered pulp and paper sludge as fuels do so at a 
significant rate (between 70-100 percent of these materials that are 
generated are burned). In fact, one third of the AF&PA facilities that 
responded to their survey (16) that burn pulp and paper sludges, burn 
100 percent of the materials generated.\95\
---------------------------------------------------------------------------

    \95\ See April 4, 2012, letter from Timothy G. Hunt to James 
Berlow. A copy of this letter has been placed in the docket for 
today's rulemaking.
---------------------------------------------------------------------------

    Response: As the commenter indicates, while 25 percent of pulp and 
paper sludges that are generated are used as fuels on an industry-wide 
basis, the vast majority of facilities that responded to the survey 
that use dewatered pulp and paper sludges as fuels do so at a 
significant rate. In light of the information on use of pulp and paper 
sludges, the agency finds that for those pulp and paper mills that burn 
a significant portion, that their use as a legitimate fuel is integral 
to the operation of the pulp and paper mill. The fact that these 
sludges meet the contaminant legitimacy criterion also, in the EPA's 
view, shows that these sludges when burned on-site are not being 
discarded.
    As discussed above, while the agency is not defining a specific 
percentage of dewatered pulp and paper sludges that would need to be 
burned to qualify for the categorical listing in section 241.4, the 
agency would consider the 42 mills that responded to the AF&PA survey 
as meeting the listing description. Where a facility has burned or 
burns in the future a significant portion of the dewatered pulp and 
paper sludges that are generated, the facility is clearly dependent 
upon the use of these materials as fuels in much the same way that wood 
manufacturing facilities are dependent upon the stream of resinated 
wood residuals to meet their energy demands. Specifically, we note that 
the percentage of overall use of pulp and paper sludges as a fuel at 
facilities burning a significant portion of the material (70 percent in 
the AF&PA comment above) is similar to the use of resinated wood within 
the wood products industry--approximately 73 percent of resinated wood 
generated is either used as a fuel or is recycled back into the wood 
manufacturing process.\96\ As noted above, mills that burn a 
significant portion of their dewatered pulp and paper sludges on-site 
as fuel in the future would also qualify for the listing 
description.\97\
---------------------------------------------------------------------------

    \96\ See Materials Characterization Paper In Support of the 
Final Rulemaking: Identification of Nonhazardous Secondary Materials 
That Are Solid Waste--Resinated Wood Products. Docket EPA-HQ-RCRA-
2008-0329-1820.
    \97\ While the Agency is not including a specific requirement 
for pulp and paper mills to document the amount of dewatered 
wastewater treatment residuals they burn on-site as a fuel, we would 
recommend that such pulp and paper mills include such documentation 
in case there are any questions as to whether the pulp and paper 
mills' dewatered wastewater treatment residuals qualifies for the 
categorical listing in 241.4.
---------------------------------------------------------------------------

    On the other hand, when a pulp and paper mill burns a relatively 
small percentage of their dewatered pulp and paper sludges on-site as a 
fuel (e.g., the five mills that responded to the AF&PA survey that burn 
less than 20 percent), the agency has determined that such sludges are 
not viewed the same by the mill operator in that they do not rely on 
the sludges for their energy value. As noted by one commenter, some 
mills may not produce pulp and paper sludge with sufficient fiber, such 
that the sludge is a viable fuel. Therefore, the agency finds that such 
pulp and paper sludge should not be included in the categorical listing 
in section 241.4.\98\ Those companies would need to make case-by-case 
determinations regarding legitimacy to support use as a fuel.
---------------------------------------------------------------------------

    \98\ The Agency acknowledges that some portion of these pulp and 
paper sludges are land applied. While the Agency considers such uses 
as beneficial, such recycling is not integral to pulp and paper 
operations, and therefore, the Agency would not consider this form 
of recycling in determining whether a facility is recycling a 
significant portion of their pulp and paper sludges.
---------------------------------------------------------------------------

    Comment: The EPA requested more data on contaminant levels--
particularly chlorine and metals.
    The NCASI undertook a thorough evaluation of data related to 
contaminant levels in pulp and paper sludge.\99\ NCASI looked at the 
most robust information about pulp and paper sludge which is found in 
the EPA's Boiler MACT database. That database has pulp and paper sludge 
data comprised of nearly 5,280 records of individual data points 
corresponding to 46 AF&PA member pulp mills.
---------------------------------------------------------------------------

    \99\ Docket EPA-HQ-OAR-2003-0119-2619.
---------------------------------------------------------------------------

    Table 8 of this preamble includes data from the EPA traditional 
fuels table as well as the EPA Boiler MACT database for pulp and paper 
sludge.
BILLING CODE 6560-50-P

[[Page 9164]]

[GRAPHIC] [TIFF OMITTED] TR07FE13.008


[[Page 9165]]


[GRAPHIC] [TIFF OMITTED] TR07FE13.009

    The commenter indicates, as shown in the table, that contaminant 
levels in pulp and paper sludge are well within the ranges of metals 
found in traditional fuels. For all 11 HAP metals, except Mn, the 90 
percent UPL value for sludges is less than the corresponding maximum 
for coal. For Mn, which is principally derived from biomass, the 90 
percent UPL value for sludges is well below the maximum for biomass. 
This is also reflected in the TSM comparisons with and without Mn 
between coal, biomass and pulp and paper mill sludges. Chlorine and 
total halogens (Cl + Fl) in sludge compare favorably with both biomass 
and coal. Nitrogen and sulfur in sludge also compare favorably with 
coal, although the commenter also points out that the nitrogen and 
sulfur contents are generally not indicative of HAP formation potential 
for any fuel, and in the case of pulp and paper mill sludges in 
particular, the sulfur content of these sludges is typically in the 
inorganic sulfate form that predominantly ends up in the combustion 
ashes.
    NCASI found a paucity of data on organics in pulp and paper sludge. 
Except for Ds/Fs, which had been evaluated extensively in the 1990s, 
organics are not expected to be found in pulp and paper sludges. Due to 
the changes in bleaching techniques which demonstrated significant 
reductions in

[[Page 9166]]

the existence of Ds/Fs in sludge, testing for even dioxins has not been 
undertaken recently. NCASI notes that of the data that do exist, 
organics are rarely found and those that are identified are frequently 
below the detection limit.
    Overall, the commenter states that contaminant levels in pulp and 
paper wastewater treatment residuals compare well to those found in 
traditional fuels.
    Response: Based on the information provided, the agency finds that 
pulp and paper sludges, meet the comparable contaminant criterion 
(241.3(d)(1)(iii)). The data confirms the conclusions in the NHSM final 
rule regarding chlorine and metals are comparable to the levels found 
in coal, which is a traditional fuel that may be burned in these 
facilities.
    Comment: The EPA requested information on what steps the industry 
has taken to ensure the quality of pulp and paper mill sludge when used 
as a fuel at pulp and paper mills is consistent with that of a fuel 
product.
    Commenters state that pulp and paper mills that generate pulp and 
paper sludge do so as part of their compliance with the CWA 
requirements, as well as part of an effort to return as much wood fiber 
to use as possible, either as an input to the manufacturing process or 
as a fuel. The strategies that each mill uses to meet those 
requirements differ depending upon the type of product, the location of 
the mill and the specific standards established by the EPA and the 
respective states. However, mills clean wastewaters prior to discharge, 
thus creating primary and a variety of secondary pulp and paper 
sludges, all of which capture wood fibers. Furthermore, the question of 
whether the quality of the pulp and paper sludge is appropriate for a 
particular mill is based on the boiler design. As such, there are some 
boilers well suited to burn it; others cannot burn the material.
    At one commenter's mill, for example, the company has invested over 
$7 million upgrading sludge drying and management equipment. The object 
of these large investments was not to remove all of the moisture in the 
sludge. Rather, it was to make sludge quality consistent with that of 
the wet biomass burned in its combination boilers. Either too much or 
too little moisture can have a deleterious effect on the boilers' 
combustion. One mill recently installed a belt press to improve the 
reliability of its sludge management system and increase the average 
solids content of its sludge. Since then, the sludge has occasionally 
caused combustion problems in the boiler because it was too dry, 
necessitating additional quality control to optimize the sludge's 
moisture content.
    Another commenter stated they invested over $3 million to prevent 
unwanted materials from reaching the treatment process and being 
discharged in mill effluent or being incorporated into the pulp and 
paper sludge. Their mills make coated paper products, the coatings 
consisting largely of clay and other minerals. Improved equipment and 
operating procedures have significantly lowered sewer losses of these 
materials, improving the quality of wastewater and reducing the ash 
content of these pulp and paper sludges. To further pollution 
prevention, their mills set stringent specifications for raw materials, 
such as sulfuric acid and caustic soda, which minimizes the 
introduction of trace amounts of heavy metals into the process.
    From the standpoint of process control, the commenter stated that 
sludge management processes are continuous, enclosed and carefully 
controlled. In contrast, bark and wood chips may be exposed to the 
elements for extended periods before being burned. Depending on the 
season, hardwood bark can get ``stringy'' and become very difficult to 
process as fuel. Frozen bark or chips can jam or disable equipment. 
Purchased fuel can have excessive rocks or grit. It is difficult to 
control the quality of biomass burned in the commenter's boilers. 
Sludge frequently exhibits less variability in quality than other types 
of biomass.
    Response: Based on the information provided, the agency finds that, 
for facilities burning a significant portion of the dewatered sludge, 
use of the material is integral to the facility's operations, 
particularly in the value these materials provide as a critical source 
of energy. At such facilities, sludge management processes are 
carefully controlled and the industry has taken the necessary steps to 
ensure the quality of pulp and paper mill sludge when used as a fuel at 
pulp and paper mills. On the other hand, for those pulp and paper mills 
that do not burn a significant portion of their dewatered wastewater 
treatment sludges, the agency does not believe that the same steps have 
been taken to ensure the quality of the pulp and paper mill sludge that 
is used as a fuel and thus, is not an integral part of the pulp and 
paper mill operations.
    Comment: The EPA requested information on what are the standard 
practices used to ensure pulp and paper sludge has meaningful heating 
value.
    As noted in the October 2011 pulp and paper sludge paper the AF&PA 
submitted prior to the December 2011 proposal, the overwhelming 
majority of pulp and paper mills remove water from pulp and paper 
sludge prior to managing it in any way. Belt and screw presses are most 
commonly used in the industry. Some mills use steam heated filter 
presses. Some pulp and paper sludge is also further dried in steam 
heated rotary driers. As indicated previously, sludge drying takes 
place entirely within buildings where equipment necessary to produce 
suitable sludge is housed. Sludge burned in the boilers is transported 
to the boilers on feed systems designed to ensure sludge, biomass and 
other solid fuels are homogeneous, thoroughly mixed and not exposed to 
the elements while being conveyed to the boilers. In all instances, the 
goal is to raise the solids content--and thus, Btu value.
    Response: Based on these comments and other information in the 
record, the agency finds that facilities that burn a significant 
portion of these materials take the steps necessary to dewater the pulp 
and paper sludge and to manage such dewatered sludge to maintain its 
meaningful heating value and burn the sludge for energy recovery.
    Comment: The EPA requested information on how pulp and paper mill 
sludge is managed when shipped offsite.
    There are several mills within the industry that have agreements 
with other facilities, primarily electric utilities that purchase pulp 
and paper sludges for use as biomass-based fuel. For the most part, 
these arrangements occur when there is a utility close to the pulp and 
paper mill because the cost of shipping such sludges long distances may 
be prohibitive. Pulp and paper sludges may be sent offsite when it is 
being used by other entities to produce another product, (including 
fuel pellets \100\), used for other purposes (land application, use as 
landfill cover), or for final disposal. Pulp and paper sludges are 
shipped by containers, truck or rail.
---------------------------------------------------------------------------

    \100\ When pulp and paper sludges are sufficiently processed, 
and such processed material meets the legitimacy criteria, the 
processed materials are non-waste fuels whether burned within or 
outside the control of the generator.
---------------------------------------------------------------------------

    Response: The agency recognizes that, as described above, some pulp 
and paper sludges are sent offsite for use as a fuel. However, the 
agency has restricted the categorical listing to those pulp and paper 
sludges that are burned on-site because the agency has minimal 
information on offsite use of these materials. In fact, the pulp and 
paper industry indicates that the great majority of these sludges, when 
burned as a fuel, are burned on-site. Also, in the few instances that 
the pulp and paper

[[Page 9167]]

industry discussed in their comments that these materials were shipped 
offsite, they seem to be sent to other industries. The fact that these 
sludges are sent to other industries would not necessarily disqualify 
those dewatered pulp and paper sludges from being considered for 
listing categorically. However, the agency does not have sufficient 
information to make any determination.\101\
---------------------------------------------------------------------------

    \101\ We note that in the situation where pulp and paper sludges 
are transferred beyond the control of the generator, a facility may 
also petition the Agency to receive a non-waste determination, as 
appropriate.
---------------------------------------------------------------------------

    Comment: For reasons stated previously in comments on the June 2010 
proposed rule, one commenter argues that pulp and paper sludges are 
waste when burned regardless of whether it is burned by the company 
that generated it and regardless of whether it meets the EPA's 
legitimacy criteria. Paper mill sludge is a waste because it is 
discarded within the meaning of RCRA.
    The EPA's description of pulp and paper sludge shows that it 
remains a waste even under the agency's own definition of discard. 
First, the EPA acknowledges that pulp and paper mills have no use for 
pulp and paper sludge; the fibers it contains are ``too short to be 
suitable for papermaking and it contains microorganisms that feed on 
organic material in the wastewater stream.'' \102\ Second, the fact 
that paper mill sludge comes from ``the wastewater stream,'' \103\ in 
itself confirms that it is a waste.
---------------------------------------------------------------------------

    \102\ See 76 FR 80485.
    \103\ Id.
---------------------------------------------------------------------------

    Third, the EPA's discussion of the contaminant levels in paper mill 
sludge shows substantial variation in chlorine levels. Where the EPA 
encounters such variability in the course of setting floors for CISWI 
units in the very same Federal Register notice, the agency uses a 99th 
percent UPL to assure that the level it chooses will not be exceeded. 
Yet, where the EPA encounters variability in the chlorine levels in 
pulp and paper sludge--variability that could lead to significantly 
higher emissions of chlorinated pollutants, such as HCl and dioxins--
the agency simply dismisses it without further ado. The EPA's disparate 
treatment of the variability of emissions for floor setting and of the 
chlorine levels in pulp and paper sludge for the purposes of 
considering a categorical declaration that such sludge is not a waste 
is unexplained and arbitrary.
    If the agency believes that such variability exists, it should be 
concerned about the possibility that some sludges may have far higher 
chlorine levels than it assumes--as, indeed, the record shows some 
sludge does--and should take steps to ensure that this is not the case 
before it even considers an exemption. Indeed, the agency's failure to 
examine this possibility renders the existing rule, which allows 
generators to burn their own sludge, arbitrary and capricious.
    Fourth, the EPA admits that sludge contains extremely low heating 
values, so low in some instances as to flunk the agency's legitimacy 
criteria. That sources typically dewater their sludges does not make 
these sludges any less a waste, even under the agency's own definition 
of discard. The EPA does not say what the heating value of the sludges 
is after dewatering, nor does it make any difference what the ``dry 
weight'' heating value of sludges might be, as they are not at ``dry 
weight'' when burned. The reality is that paper mills find it cheaper 
to burn their sludges than to dispose of them safely and that because 
these sludges are largely ``wastewater'' and contain high levels of 
chlorine and other contaminants, burning them requires large quantities 
of other fuel and generates high levels of pollution.
    Response: The agency disagrees with the commenter that all pulp and 
paper sludges are waste fuels when combusted. To the extent comments 
were submitted in response to the March 2011 final rule, the agency 
need not respond. Below, the EPA responds to the new points raised in 
the comments.
    With respect to the particular arguments on the categorical 
listing, the agency disagrees that the sludge remains a waste even 
under the agency's own definition of discard. The comment is incorrect 
when it states that the EPA has acknowledged pulp and paper mills have 
no use for pulp and paper sludge because the fibers it contains are 
``too short to be suitable for papermaking and it contains 
microorganisms that feed on organic material in the wastewater 
stream.'' \104\ In the proposed rule, we stated that fibers that end up 
being too short can be detrimental to paper quality. Although this 
would not be suitable for papermaking, these sludges are a valuable 
resource as energy-containing secondary materials as discussed in 
detail in the comments above. As much as 50 percent of the sludge is 
composed of wood fibers which are similar in content to other types of 
biomass fuel combusted.
---------------------------------------------------------------------------

    \104\ See 76 FR 80485.
---------------------------------------------------------------------------

    Further, the agency disagrees that pulp and paper mill sludges are 
wastes because they are contained in a ``wastewater'' stream. The D.C. 
Circuit in, API v. EPA, 216 F.3d at 58, rejected the proposition that 
the mere presence in a wastewater stream makes a material a waste. In 
API, the D.C. Circuit criticized the EPA for not saying why it 
concluded that the disposal motivation, compliance with water quality 
standards, predominated over the recycling motivation, recovery of oil 
from primary wastewater treatment. Plainly, the mere presence of oily 
material in wastewater did not make the oil a waste. In this case, the 
EPA has found in its categorical listing that the motivation for 
burning the pulp and paper sludge is to use its inherent value as a 
fuel and not for disposal. Comments have provided the agency with 
information that facilities that burn a significant portion of these 
sludges consider them to be an integral part of their production 
process, particularly in the value these materials provide as a 
critical source of energy. We disagree that the disposal motivation 
predominates over the true value of these sludges as an important fuel, 
integral to the production processes.
    The EPA also disagrees that the treatment of the variability of 
emissions for floor setting and of the chlorine levels in pulp and 
paper sludge for the purposes of considering a categorical declaration 
that such sludge is not a waste, is unexplained and arbitrary. The 
agency notes that, rather than dismissing the variability of chlorine 
levels in pulp and paper sludges, it has considered all available 
data--including data on variability--and reached the conclusion that 
contaminant levels in pulp and paper sludges are comparable to or lower 
than those in the appropriate traditional fuel(s). The EPA acknowledges 
that, based on data submitted to the agency since promulgation of the 
March 2011 final rule and presented in the December 2011 proposed rule, 
chlorine levels in paper mill sludge show substantial variation. This 
is an important factor to consider when making a categorical non-waste 
determination and the agency has considered mean concentrations, the 
range of concentrations, and variability when analyzing pulp and paper 
sludges.
    As stated in the proposed rule and information in the rulemaking 
record, data for pulp and paper sludges show mean chlorine 
concentrations of 361 ppm, well below the mean of 992 ppm observed in 
coal. Data for pulp and paper sludges also show maximum chlorine 
concentrations of 4,800 ppm, well below the maximum of 9,080 ppm 
observed in coal and below the maximum of 5,400 ppm observed in

[[Page 9168]]

untreated wood and biomass materials. The variability of chlorine 
levels in pulp and paper sludge is demonstrated by a standard deviation 
of the mean of 661 ppm.\105\ \106\ This variation in chlorine levels, 
although high, does not discount the fact that both average and maximum 
chlorine concentrations in pulp and paper sludge are lower than those 
in coal which is defined as a traditional fuel.
---------------------------------------------------------------------------

    \105\ See 76 FR 80485.
    \106\ Contaminant Concentrations in Traditional Fuels: Tables 
for Comparison, November 29, 2011, can be found at http://www.epa.gov/epawaste/nonhaz/define/index.
---------------------------------------------------------------------------

    The comment also implied that the EPA should use the 99 percent 
UPL, as is used to set the CISWI floors, to ensure that these pulp and 
paper sludges do not contain excessive contaminant levels. The agency 
disagrees that any one statistical tool or comparison methodology will 
fit every situation given the variety of NHSMs, traditional fuels, 
contaminants and combustion units that exist. Nevertheless, the agency 
has calculated the 99 percent UPL for chlorine levels in pulp and paper 
sludge in response to the comment and come to the same conclusion. The 
99 percent UPL for the same dataset of 93 samples analyzed in the 
proposed rule would be 6,970 ppm, a value below chlorine concentrations 
observed in coal.\107\
---------------------------------------------------------------------------

    \107\ The 99 percent Chebyshev UPL for non-normal datasets was 
calculated using EPA's ProUCL 4.0 Software available at http://www.epa.gov/nerlesd1/tsc/software.htm.
---------------------------------------------------------------------------

    Finally, we disagree that pulp and paper sludge contains extremely 
low heating values that would fail the agency's legitimacy criteria. In 
terms of meeting the legitimacy criteria for a meaningful heating 
value, the agency indicated in the NHSM final rule that pulp and paper 
sludges have a heating value of between 3,300-9,500 Btu/lb, on a dry 
basis--no specific information having been submitted on the ``as 
fired'' heating value of these materials. The final rule concluded that 
pulp and paper sludges meet the legitimacy criterion for being managed 
as a valuable commodity as they are dewatered to increase their energy 
value, collected on a continual or frequent basis (as produced), and 
further processed and consolidated, including the removal of biosolids. 
Further, as discussed in detail above, where a facility is burning a 
significant portion of the dewatered pulp and paper sludges that are 
generated as fuel rather than other purchased biomass or fossil fuels, 
pulp and paper sludges are integral to the facility's operations and 
the facility is clearly dependent upon the heating value of these 
materials.\108\ Thus, we find, as discussed in the final rule, that 
pulp and paper sludges are not discarded and generally meet the 
meaningful heating value legitimacy criterion (46 FR 15488).
---------------------------------------------------------------------------

    \108\ The final rule notes that meaningful heating value is 
derived from an NHSM with energy content lower than 5000Btu/lb if 
the ERU can cost-effectively recover meaningful energy from the NHSM 
used as fuel (76 FR 15541).
---------------------------------------------------------------------------

b. Coal Refuse \109\
---------------------------------------------------------------------------

    \109\ Coal refuse refers to any by-product of coal mining or 
coal cleaning operations, consisting primarily of non-combustible 
rock with attached coal. Due to advances in technology over the past 
century, the processing of coal has evolved, such that materials 
that are now generated in the coal mining process, which would have 
been considered coal mining rejects in the past and discarded in 
waste piles, are now handled and processed as coal.
---------------------------------------------------------------------------

    In the 2011 NHSM final rule, the EPA included currently generated 
coal refuse within the definition of traditional fuel codified in 40 
CFR 241.2. In discussing its determination that currently generated 
coal refuse is a traditional fuel, the agency said, ``the fact that 
coal refuse has been used and managed as a fuel for thirty years when 
coupled with the fact that coal refuse is unique from other non-
hazardous secondary materials in that it is a byproduct of fuel 
production processes and is itself a raw material that can be used as a 
fuel leads us to determine that coal refuse that is currently generated 
and used as a fuel should be considered a traditional `alternative 
fuel.' '' \110\
---------------------------------------------------------------------------

    \110\ See 76 FR 15507.
---------------------------------------------------------------------------

    The 2011 NHSM final rule also determined that coal refuse that has 
been placed in legacy piles would not meet the definition of 
traditional fuels, as they clearly have been discarded in the first 
instance.\111\ Since coal refuse recovered from legacy piles is 
subjected to the same operations that are used to process virgin coal, 
which serve to both increase energy values, as well as reduce 
contaminants, the EPA determined that such processes were sufficient to 
meet the definition of ``processing,'' as codified in 40 CFR 241.2, and 
such recovered coal refuse would not be considered a solid waste when 
used as a fuel in a combustion unit provided those materials satisfy 
the legitimacy criteria.\112\
---------------------------------------------------------------------------

    \111\ Id.
    \112\ See 76 FR 15509.
---------------------------------------------------------------------------

    The 2011 NHSM final rule also stated our belief that coal refuse 
recovered from legacy piles contains contaminants at levels that are 
comparable to or lower than coal refuse that is currently generated, as 
the recovered coal refuse is subject to the same processes as 
currently-generated coal refuse in order to meet the same fuel 
specifications. Since promulgation of the 2011 NHSM final rule, the 
agency has further clarified that it believes that coal refuse 
recovered from legacy piles that is processed and managed in the same 
manner as currently generated coal refuse satisfies the legitimacy 
criteria.\113\
---------------------------------------------------------------------------

    \113\ See August 15, 2011, letter to Jeff A. McNelly, ARIPPA 
(cited in the proposed rule: 76 FR 80486).
---------------------------------------------------------------------------

    Having determined that coal refuse recovered from legacy piles that 
is processed and managed in the same manner as currently generated coal 
refuse satisfies the legitimacy criteria, the 2011 proposed rule 
solicited comment on whether to categorically list post-processed coal 
refuse from legacy piles as a non-waste fuel in 40 CFR 241.4(a). 
However, the EPA made it clear that it was not reopening any other 
issues regarding coal refuse. Other comments regarding coal refuse are 
responded to in the record for the final rule. In this part of the 
preamble, we are only responding to the issue of whether coal refuse 
processed from legacy piles should be considered a non-waste fuel on a 
categorical basis. Accordingly, the EPA is not responding in this 
preamble or the Response to Comment document on issues regarding 
whether coal in legacy piles are traditional fuels.
    Comment: One commenter states that not every material that is 
discarded is treated as solid waste under the rule. For example, the 
EPA includes numerous materials within its definition of ``traditional 
fuels'' and ``clean cellulosic biomass'' that are commonly understood 
as used, discarded, and abandoned, listing, for example, corn stover, 
peanut shells and certain types of demolition materials. The commenter 
argues that each of these materials is either discarded or has filled 
its original purpose and may be collected by a different party for a 
different purpose (i.e., use as a fuel).
    The commenter continues that although the agency has ample 
authority to exempt certain articles from classification as solid 
wastes, it did not consistently apply the term ``discarded'' in the 
context of legacy coal refuse. For example, the EPA recognized that on-
specification used oil and clean C&D materials should be treated as 
traditional fuels when combusted for energy generation. Thus, the 
commenter urges the agency to revisit its application of the 
``discard'' principle and treat all coal refuse, regardless of when 
they were generated and regardless of processing to be fuels and not 
wastes.
    Response: The EPA disagrees with the comment, which seems to 
misunderstand the purpose of this

[[Page 9169]]

rulemaking action. If the agency determines in this rulemaking that a 
material is a solid waste when combusted, the unit combusting that 
material would be subject to emissions standards issued under CAA 
section 129 even if burned as a fuel. A material is not discarded 
simply because it is no longer used for its original purpose. It may be 
used as a fuel product by another party, providing the conditions the 
EPA has explained in the rule apply. In such a case, the reused 
material is not a waste. Further, the agency is not exempting any 
materials from the definition of solid waste. The EPA is only 
describing the kinds of materials that are wastes when burned in 
combustion units, even if they are burned for energy recovery. The EPA 
consistently applies the concept of ``discard.''
    Materials listed as examples of clean cellulosic biomass cited by 
the commenter have not been discarded in the first instance, as is 
clearly the case for coal refuse abandoned in legacy piles. While some 
materials have filled their original purpose, that fact, in and of 
itself, does not equate to discard. Clean cellulosic biomass is 
considered to be a type of ``alternative fuel'' within the definition 
of ``traditional fuel.'' Such alternative fuels are developed from 
virgin materials that can now be used as fuel products.\114\ This 
applies to the examples mentioned by the commenter, including corn 
stover, peanut shells and clean construction and demolition wood. 
Further, coal refuse mined today that would have previously been 
abandoned in piles are also alternative fuels that are now grouped in 
the traditional fuel category because of new technology. This is 
separate from coal in legacy piles that have been traditionally wastes.
---------------------------------------------------------------------------

    \114\ See definition of traditional fuels, as codified in 40 CFR 
241.2. We note that the December 2011 proposal did not solicit 
comment on the definition of traditional fuels.
---------------------------------------------------------------------------

    Further, there is a clear difference between the management of the 
listed examples of clean cellulosic biomass and coal refuse abandoned 
in legacy piles. For example, the commenter characterizes corn stover 
as ``typically left in the field to decay'' and thus discarded. The EPA 
assumes this statement is based on the historic use of leaving corn 
stover in the field as a cover to reduce erosion and for nutrient 
content.\115\ As noted by the agency previously, over the course of 
this rulemaking, an emerging market for corn stover and other primary 
and secondary agricultural residues is for use as a heat and power 
source for the production of corn and cellulosic ethanol.'' \116\ When 
the determination is made to use corn stover for its fuel value, the 
materials are managed differently than merely ``left in the field to 
decay.'' If there were legacy piles of such materials, they too would 
have to be treated as wastes while in the legacy piles. We would also 
note that it is not unreasonable to expect that agricultural materials, 
such as corn stover, may be left on the field until there are 
sufficient amounts of those materials to be collected, baled and 
transported. This is clearly a different scenario from coal refuse left 
in place in piles with no purpose other than abandonment and clearly 
managed as a waste for decades.
---------------------------------------------------------------------------

    \115\ See Petrolia, Dr. Daniel R., ``Economics of Crop Residues: 
Corn Stover.'' June 2009. A copy of this document has been placed in 
the docket to today's rulemaking.
    \116\ See Materials Characterization Paper in Support of the 
Final Rulemaking: Identification of Nonhazardous Secondary Materials 
That are Solid Waste, Biomass--Agricultural Residues and Food 
Scraps.'' February 3, 2011. A copy of this document can be found in 
the docket for today's rulemaking.
---------------------------------------------------------------------------

    With respect to used oil, the agency has already explained in the 
final March 2011 rule the difference between on-specification and off-
specification used oil as applied to the definition of solid waste. The 
on-specification used oil is considered an alternative fuel that has 
not been abandoned and, by regulation, may be burned with no more 
restrictions than refined product oil. Off-specification used oil is 
specifically described in the EPA's regulations as a material that may 
only be burned in certain combustors because it exceeds contaminant 
levels established under part 279, rendering it off-specification and, 
accordingly, evaluated under part 241 to determine its waste/non-waste 
status.\117\
---------------------------------------------------------------------------

    \117\ Note that Section III.D.2.c of today's preamble discusses 
circumstances under which off-specification used oil may use coal 
data when making contaminant comparisons.
---------------------------------------------------------------------------

    Comment: One commenter argues that off-specification tires are 
analogous to legacy coal refuse to the extent they are set aside and 
not used immediately by the factory. Since the agency proposes to 
include off-specification tires within the definition of ``established 
tire collection program'' and not consider these materials to be a 
solid waste when used a fuel, the agency should treat legacy coal 
refuse similarly.
    Response: We disagree with the commenter that coal refuse abandoned 
in legacy piles is analogous to the handling and management of off-
specification used tires. Coal refuse that has been placed in legacy 
piles decades ago has clearly been abandoned, thrown away and thus, 
discarded and historically managed as a waste. On the other hand, the 
agency has information that tire manufacturers that have produced off-
specification tires (including factory scrap) have contractual 
agreements in place to ensure these materials are collected, managed 
and transported to the combustor. In fact, it is the requirement that 
scrap tires (including off-specification tires) be managed pursuant to 
established tire collection programs that ensures these materials are 
managed as a valuable commodity in order to meet the categorical non-
waste determination codified in 40 CFR part 241.4(a).
    Further, as we have noted elsewhere in today's preamble, to the 
extent that these off-specification tires are discarded, such as in 
tire piles, they would be considered solid waste in that they have been 
discarded, and would not be included within the categorical listing of 
``scrap tires that are not discarded and are managed under the 
oversight of established tire collection programs, including tires 
removed from vehicles and off-specification tires.''
    Comment: One commenter states that the EPA, consistent with the 
intent of RCRA, should be encouraging the use of legacy coal refuse, 
not hampering them. The commenter argues that characterizing coal 
refuse in legacy piles as a solid waste could subject legacy coal 
refuse piles to additional federal and state requirements and 
potentially result in the piles being classified as open dumps or solid 
waste management units. Further, combustors of legacy coal refuse and 
their suppliers would also be more likely to be subject to citizen 
suits under RCRA 40 CFR 7002. This commenter argues that the 
determination that unprocessed legacy piles are different--and should 
be regulated differently--than coal refuse generated from current 
mining operations is illogical because the characteristics of the 
materials are the same. Thus, although the EPA takes the position that 
subjecting legacy coal to the types of operations that are used to 
process virgin coal is sufficient to convert the legacy coal refuse 
from solid waste into a non-waste fuel, the initial designation as 
solid waste risks regulatory confusion regarding the status of the 
numerous piles of legacy coal refuse.
    Response: This comment is clearly beyond the scope of this 
rulemaking proceeding. In the first place, legacy coal piles are, 
indeed, wastes. How they may be treated when they are in the piles is 
clearly beyond the scope of this rule. This rule deals with how the

[[Page 9170]]

legacy coal is to be treated when it is taken from the piles and burned 
for fuel.
    Comment: While supporting the concept of a categorical listing for 
legacy coal refuse, a few commenters argued that the agency should not 
require that legacy coal refuse be ``processed'' in order to be 
considered a non-waste fuel. One commenter noted that the EPA does not 
require traditional fuels or resinated wood to undergo processing to be 
treated as a fuel, even though many of those materials would be 
understood to be discarded.
    Another commenter noted that the term ``post-processing,'' which 
was used in the proposal as a shorthand description of legacy coal 
refuse that has undergone processing, is too vague and should be 
eliminated so the use of extracted coal refuse undergoing further 
processing at the generating facility is not discouraged. If applied 
too literally, the commenter continued, any ``post-processing'' 
provision being imposed on treating legacy coal piles as fuel would not 
benefit the CFB community and could hinder the usage of these piles as 
fuels. The commenter argues that the term ``post-processing'' could be 
interpreted as requiring processing at the coal refuse excavation site 
which would not be determinative of any relevant characterization of 
the coal refuse or its intended use as fuel.
    Response: In the 2011 NHSM final rule, the EPA discussed how a 
NHSM, once discarded, can be processed into a non-waste fuel.\118\ The 
proposed rule did not solicit comment on either the concept of 
processing a discarded NHSM into a non-waste fuel or the definition of 
``processing'' itself, as codified in section 241.2. Therefore, the 
agency does not address the concept or definition of processing in this 
final rulemaking.
---------------------------------------------------------------------------

    \118\ See 76 FR 15474-15477.
---------------------------------------------------------------------------

    Again, however, the comment suggests a need to clarify the nature 
of the rulemaking exercise that the EPA is currently engaged in. First, 
we disagree with the commenter's characterization that many of the 
traditional fuels and resinated wood should be understood to be 
discarded. Traditional fuels, by definition, are not discarded.\119\ If 
clearly discarded (e.g., a barrel of fuel oil dumped), even a 
traditional fuel would have to be processed per the part 241 
regulations in order to be a non-waste fuel. However, it is precisely 
because of their fuel value that makes it unlikely that traditional 
fuels will be discarded. We also disagree that resinated wood is 
discarded prior to being or when used as a fuel in a combustion unit. 
For a discussion of why we believe resinated wood is a non-waste fuel, 
please see section III.E.3.b of this preamble.\120\
---------------------------------------------------------------------------

    \119\ See last sentence of ``traditional fuels'' definition, as 
codified in 241.2: ``[Traditional] fuels are not secondary materials 
or solid wastes unless discarded'' (emphasis added).
    \120\ See also discussion included in the 2011 NHSM final rule 
(76 FR 15499-15502).
---------------------------------------------------------------------------

    As noted above, coal refuse abandoned in legacy piles has clearly 
been discarded in the first instance because the coal preparation 
technology did not yet exist that could utilize these materials for 
their fuel value. Thus, legacy coal refuse would have to be processed 
into a non-waste fuel. However, the agency has previously recognized 
the uniqueness of coal refuse in that it is a byproduct of fuel 
production processes and is itself a raw material that can be used as a 
fuel.\121\ In the 2011 NHSM final rule, the agency determined that coal 
refuse that is recovered from legacy piles and used as fuel that is 
subjected to the types of operations that are used to process virgin 
coal or currently generated coal refuse would meet our definition of 
processing as codified in 40 CFR 241.2.\122\
---------------------------------------------------------------------------

    \121\ See 76 FR 15507, which states, ``Coal refuse is unique, 
however, from other non-hazardous secondary materials addressed in 
this rulemaking, as it is generated in the process of producing 
fuels (i.e., the mining of coal for use as fuel) and its subsequent 
use and value as a secondary material is also as a fuel. Since the 
primary product of a coal mining operation is itself a fuel, we 
consider coal refuse to be more akin to a raw material that is 
subsequently processed and utilized to produce a fuel. In other 
words, coal refuse is different from other non-hazardous secondary 
materials, such as used tires or resinated wood residuals, in that 
it is generated in the production of fuel and can be used itself as 
a fuel (and in fact has never been used for anything else).''
    \122\ See 76 FR 15509. In addition, subsequent to the 2011 NHSM 
final rule, the EPA has reiterated this determination. See August 
15, 2011, letter to Jeff A. McNelly, ARIPPA (cited in the proposed 
rule: 76 FR 80486).
---------------------------------------------------------------------------

    As the processing that is required is no different than what 
currently-generated coal refuse is subject to, we do not believe the 
processing requirement would hinder the usage of coal refuse piles. The 
agency believes the only additional ``processing'' step is the actual 
extraction or recovery of the coal refuse from the legacy piles. To the 
extent that the term ``post-processing'' could be misconstrued as 
requiring an additional processing step at the extraction site or 
otherwise as compared to currently generated coal refuse, this was not 
the agency's intent. Rather, we have included the concept of 
``processing'' in the categorical non-waste determination for legacy 
coal refuse, as legacy coal refuse was clearly discarded and, prior to 
processing, is a solid waste. That said, we clarify again today that 
coal refuse recovered/removed from legacy piles that is processed in 
the same manner as currently generated coal refuse would meet the 
definition of processing as codified in section 241.2. No additional 
processing is required given the uniqueness of coal refuse. For 
commenters suggestions regarding the explicit wording of the 
categorical listing for legacy coal refuse, see additional response to 
comments below.
    Comment: In support of the agency's soliciting comment on whether 
to add legacy coal refuse to the list of categorical non-waste fuels 
proposed in 40 CFR part 241.4, one commenter states that once removed 
from the physical mining location, legacy coal refuse and currently-
generated coal refuse are indistinguishable. Thus, coal refuse from 
legacy piles will be managed in the same manner as coal refuse, will 
have similar heating value as coal refuse and be used as a fuel in a 
combustion unit that recovers energy and can be expected to have 
similar contaminant levels as coal refuse because it is ostensibly the 
same material.
    Response: We agree that coal refuse recovered/removed from legacy 
piles and processed in the same manner as currently generated coal 
refuse would meet both the definition of processing and the legitimacy 
criteria. Thus, we have determined to list ``coal refuse that has been 
recovered from legacy piles and processed in the same manner as 
currently-generated coal refuse'' to the list of categorical non-waste 
fuels codified in part 241.4(a) of today's rulemaking. The rationale 
for adding this NHSM to the list of non-waste fuels follows the 
reasoning finalized in part 241.4(b) in today's rulemaking. We agree 
with the reasoning of the comment and have, in fact, arrived at the 
very same reasoning in support of the categorical listing.
    Comment: One commenter argued that the EPA should treat legacy coal 
refuse as fuels, since they are chemically identical, if not superior 
fuels, to currently generated coal refuse that the agency considers to 
be a traditional fuel, per the definition codified in 40 CFR 241.2.
    Response: Again, the EPA must explain a misunderstanding expressed 
by the commenter. The comment seems to consider that material is either 
a ``fuel'' or a ``waste'' and misses the point that the distinction in 
this rulemaking is between a ``product'' and a ``waste'' fuel. Fuels 
may be wastes. The point is that the coal that has been abandoned in 
piles is a waste. However, the EPA has

[[Page 9171]]

determined that once processed that coal is either identical (or maybe 
even superior) to currently mined materials that would have become 
refuse in the past.
    The EPA agrees with, and has adopted, the same reasoning expressed 
by the commenter that the processed material is a product fuel. The 
disagreement between the EPA and the comment is the status of the 
legacy piles and the nomenclature of the coal finally burned. The coal 
is a processed fuel product, not a traditional fuel.
    Comment: One commenter stated that there are ``other relevant 
factors'' that the EPA should consider when determining whether coal 
refuse from legacy piles should be categorically listed as a non-waste 
fuel. Specifically, the commenter believes that the EPA should consider 
the ``overwhelming resultant environmental improvements'' associated 
with the cleanup of abandoned coal refuse piles, including the 
reduction of fire hazards and contaminant, siltation, and solids 
releases into the environment, as an ``other relevant factor'' as it 
considers listing legacy coal refuse as a non-waste fuel in Sec.  
241.4.
    Response: The EPA's decision to include processed legacy coal 
refuse to the list of non-waste fuels in Sec.  241.4(a) was based on 
the fact that such materials meet the definition of processing and the 
legitimacy criteria. We do not need to balance ``other relevant 
factors'' in making this determination, as would be appropriate under 
an analysis conducted under Sec.  241.4(b)(5)(ii).
    Comment: The EPA received a few comments regarding the specific 
wording of how coal refuse recovered from legacy piles should be 
identified and described in Sec.  241.4(a) should the agency determine 
to categorically list this NHSM pursuant to Sec.  241.4(a). One 
commenter suggested inserting the following text as a subsection within 
Sec.  241.4(a): ``Coal refuse that does not constitute currently-
generated coal refuse, but that is processed in the same manner as 
currently-generated coal refuse.'' As previously discussed, another 
commenter stated that the term ``post-processed'' was vague and could 
be interpreted to require additional processing that would hinder the 
usage of legacy coal refuse piles. Still another commenter suggested 
referencing the SMCRA in a categorical non-waste determination for coal 
refuse, which would ensure that the coal refuse is a fuel and minimize 
overlapping regulatory jurisdiction that could evolve.
    Response: As discussed above, we have determined to list ``coal 
refuse that has been recovered from legacy piles and processed in the 
same manner as currently-generated coal refuse'' to the list of 
categorical non-waste fuels, as codified in Sec.  241.4(a) of today's 
rulemaking. We believe this language accurately captures the scope of 
materials at issue and what must occur for the material to be 
categorically characterized as a non-waste fuel. That is, this 
categorical listing only applies to coal refuse that has been discarded 
in the first instance in legacy piles, subsequently recovered or 
removed from the discard environment and subjected to the same 
processes and operations as currently generated coal refuse.\123\ 
Further, this language should alleviate any concerns that the term 
``post-processed'' is vague since that term is not being used within 
this provision as finalized today.
---------------------------------------------------------------------------

    \123\ We note that it would not be appropriate to include 
currently generated coal refuse within this categorical non-waste 
determination, as we have previously determined and continue to 
believe that currently generated coal refuse is a traditional fuel.
---------------------------------------------------------------------------

    We do not agree with the comments that a categorical listing for 
legacy refuse should specifically reference SMCRA. As we noted in the 
preamble to the 2011 NHSM final rule, while the EPA recognizes that 
SMCRA is concerned with the management and removal of coal refuse piles 
at mining sites, SMCRA does not address the issue of ``discard,'' which 
is critical to the definition of solid waste under RCRA.\124\ Thus, a 
specific reference to SMCRA would be inappropriate as well as 
confusing. Further, we believe that a specific reference to SMCRA would 
be in fact more burdensome than the language of the categorical listing 
being codified today, which simply states that legacy coal refuse must 
be processed in the same manner as currently-generated coal refuse, 
regardless of whether such processing is done pursuant to SMCRA.
---------------------------------------------------------------------------

    \124\ See 76 FR 15510.
---------------------------------------------------------------------------

c. Manure
    In the 2011 NHSM final rule, the EPA stated that based on the 
information provided, we could not make a blanket determination that 
all manure is a traditional fuel or that it is a solid waste. However, 
upon reviewing the few comments and data received, we concluded that 
animal manure that is used as a fuel ``as generated'' does not satisfy 
the legitimacy criteria, and thus, if combusted ``as generated,'' would 
be a solid waste.\125\ However, the agency also noted that there were 
circumstances where manure would not be considered a solid waste when 
burned as a fuel for energy recovery, specifically: (1) When the manure 
remained within the control of the generator and met the legitimacy 
criteria; (2) when the manure was sufficiently processed (e.g., via 
anaerobic digestion or gasification processes) and the resulting 
material met the legitimacy criteria; and (3) when a facility received 
a determination from the agency pursuant to 241.3(c) stating that its 
manure was a non-waste when used as a fuel. For further discussion 
regarding our characterization of manure, see the preamble to the 2011 
NHSM final rule (76 FR 15479-15482).
---------------------------------------------------------------------------

    \125\ See 76 FR 15480.
---------------------------------------------------------------------------

    In the December 2011 proposed rule, the agency noted that some 
parties have identified the potential of manure to not be considered a 
solid waste. We, therefore, invited parties to present information, 
including data demonstrating that manure is not discarded either 
through the existing non-waste petition process or the proposed 
categorical determination process.\126\ The agency received no 
information or data that would allow it to consider proposing to list 
manure categorically as a non-waste fuel.\127\ Therefore, we are not 
taking any action in the rulemaking with respect to manure. However, 
the agency did receive several comments from one commenter which we 
will respond to below.
---------------------------------------------------------------------------

    \126\ See 76 FR 80472.
    \127\ In the preamble to the proposed rule, the agency indicated 
the type of information and data that should be submitted to 
categorically list manure as a non-waste fuel. Specifically: (1) The 
extent that use of the NHSM has been integrally tied to the 
industrial production process--information can include combustor 
design specifications, the extent that the use of the material is 
integrated across the industry and the extent that use of the NHSM 
is essential to the industrial process and/or (2) the extent that 
the NHSM is functionally the same as the comparable traditional fuel 
and (3) other relevant factors.
---------------------------------------------------------------------------

    Comment: The commenter states that dried animal manure should be 
included as a non-waste with the other fuels in 40 CFR 241.4(a). The 
commenter contends that there is no evidence that any animal manure is 
discarded, let alone sent to landfills. Manure is generally used as 
fertilizer on fields, although an important secondary purpose is for 
energy recovery/generation. In addition, the commenter states there are 
several known instances of additional plans for animal manure energy 
projects that are designed specifically to recover energy, including 
government funded projects.
    The commenter notes that after drying, animal manure has a 
meaningful Btu value equal to or above that of other

[[Page 9172]]

biomass that the EPA has determined to be a non-waste fuel (e.g., 
bagasse). The commenter also notes that there are contracts in place 
for livestock and poultry producers to supply manure to the combustor.
    Regarding contaminants in manure, the commenter states that the 
amount of contaminants is limited because the vast majority of 
applicable contaminants are directly related to the contaminants 
contained in the biomass consumed by the animals. The EPA has not 
presented any evidence that facilities are combusting manure in order 
to discard chlorine or nitrogen, the two contaminants identified by the 
EPA. These concentrated contaminants are no different than what occurs 
in the production of ``byproducts of ethanol natural fermentation 
processes,'' which the EPA is now proposing to include in the 
definition of ``clean cellulosic biomass.'' Based on a ``balancing of 
the legitimacy criteria and other such relevant factors,'' the EPA`s 
new standard, animal manure should be included in the 40 CFR 241.4(a) 
fuels list, along with resinated woods and scrap tires.
    Response: We disagree with the commenter on several points and do 
not believe that the case has been made to include animal manure as a 
categorical non-waste fuel in 40 CFR 241.4(a). First, in the 2011 NHSM 
final rule, we previously determined that animal manure that is used as 
fuel, ``as generated,'' would not satisfy the legitimacy criteria. This 
conclusion was based on the fact that such material likely would not 
satisfy the meaningful heating value and contaminant legitimacy 
criterion.\128\ Thus, we believe that the burning of such materials (as 
generated) would not be legitimate and would be seen as burning for 
discard. Further, the agency has never stated that a NHSM, including 
animal manure, has to be landfilled in order to be discarded, as the 
commenter implies. Regarding the use of manure as fertilizer, we have 
been clear that this rulemaking does not address that secondary use. 
The 2011 NHSM final rule states, ``We recognize that manure may also be 
beneficially used in other end uses, such as a fertilizer * * * EPA is 
not making any determination whether non-hazardous secondary materials 
are or are not solid wastes for other possible beneficial end uses. 
Such beneficial use determinations are generally made by the states for 
these other beneficial uses, and EPA will continue to look to the 
states to make such determinations.'' \129\
---------------------------------------------------------------------------

    \128\ See 76 FR 15480-15481.
    \129\ 76 FR 15482.
---------------------------------------------------------------------------

    The commenter notes additional plans for animal manure energy 
projects; however the fact that there are plans for future projects 
does not support a categorical non-waste determination today. As the 
EPA has acknowledged, facilities may be able to demonstrate that they 
satisfy the legitimacy criteria, either through a self-determination if 
the manure remains within the control of the generator or through the 
Sec.  241.3(c) non-waste determination petition process. Thus, any 
future energy project using animal manure as fuel could utilize either 
of these options for determining that the manure is a non-waste fuel, 
as appropriate.
    Regarding the commenter's points related to meaningful heating 
value of dried manure, the fact that dried manure may have a greater 
Btu value than bagasse is not directly on point. To demonstrate that a 
NHSM has meaningful heating value when used as a fuel, a facility does 
not compare relative Btu/lb of the NHSM against other traditional 
fuels, which themselves have a wide range of heating values. Rather, 
consistent with other EPA rulemakings, we have established 5,000 Btu/lb 
as a benchmark for demonstrating that a NHSM has meaningful heating 
value. Thus, to meet the meaningful heating value legitimacy criterion, 
the material would need to meet an ``as fired'' heating value of 5,000 
Btu/lb, or if lower than 5,000 Btu/lb, as fired, a person would need to 
demonstrate that the ERU can cost-effectively recover meaningful energy 
from the NHSM used as a fuel.\130\ We also note that the EPA did not 
reopen the meaningful heating value for fuels, as codified in 40 CFR 
241.3(d)(1)(ii), in the December 23, 2011, proposed rule. Thus, in 
order to meet this criterion, the dried manure would need to meet an 
``as fired'' heating value of 5,000 Btu/lb, or if lower than 5,000 Btu/
lb, the facility would need to demonstrate that the ERU can cost-
effectively recover meaningful energy from use of manure as a fuel.
---------------------------------------------------------------------------

    \130\ See 76 FR 15541.
---------------------------------------------------------------------------

    Regarding the commenter's statement regarding contracts between 
livestock and poultry producers and combustors, first we would note 
that no information has been provided to indicate who has entered such 
contracts or how many such contracts there are to consider this factor. 
However, as we have stated elsewhere in this preamble, contractual 
arrangements can be used as evidence that the material is managed as a 
valuable commodity and that discard is not occurring when a material is 
transferred beyond the control of the generator. However, the fact that 
there is a contractual relationship by itself is not dispositive that a 
material is not a waste, as there are contracts between parties to 
remove and dispose of wastes.
    We also believe that the commenter's statements that the 
concentrated levels of contaminants are no different than what occurs 
in the production of ``byproducts of ethanol natural fermentation 
processes'' is not supported by any information or data. That is, other 
than the general statement, the commenter has not provided contaminant 
data, for either animal manure or byproducts of ethanol natural 
fermentation processes, for the agency to analyze and compare.
    Thus, we have determined based on the lack of any information or 
data that animal manure should not be listed as a categorical non-waste 
fuel in Sec.  241.4(a).
    Comment: In the event that the agency does not list animal manure 
as a categorical non-waste fuel, the EPA could alternatively decide 
that processing of animal manure by drying, constitutes ``sufficient 
processing,'' such that previously discarded manure could be considered 
recovered for energy recovery, just like scrap tires could be processed 
and burned as a non-waste.
    Response: In the December 23, 2011 proposal, the agency did not 
solicit comment on the definition of ``processing,'' as codified in 40 
CFR 241.2. Thus, this comment is beyond the scope of the rulemaking and 
will not be addressed in today's final action.
d. Other Materials for Which Additional Information Was Not Requested
    In the December 2011 proposal, the agency solicited comment on a 
focused list of NHSMs and, in particular, whether these NHSMs would be 
appropriately included in the categorical list of non-waste fuels that 
the agency was proposing in 40 CFR 241.4(a). Specifically, the agency 
proposed and/or invited comment and additional information regarding 
potential categorical non-waste determinations for resinated wood, 
scrap tires managed pursuant to established tire collection programs, 
pulp and paper sludges, and coal refuse recovered from legacy piles.
    Although comment was requested only for these specific materials, 
the agency received comments that many other NHSMs be listed as 
categorical non-wastes for which it did not request additional 
information as a part of this rulemaking. As we have discussed 
elsewhere in today's preamble, we will not be responding to such 
comments and issues that are beyond the scope of

[[Page 9173]]

today's narrow rulemaking. We would also note that since the agency did 
not specifically solicit comments on these additional materials or 
propose that these NHSMs should be categorically listed in 40 CFR 
241.4(a), the Agency will be going through notice and comment 
rulemaking before making a final decision. However, we would like to 
note two additional NHSMs--paper recycling residuals and construction 
and demolition wood processed pursuant to best practices that, based on 
information provided to the agency,\131\ we now believe are good 
candidates and expect to propose categorical listings in 40 CFR 
241.4(a) in the near future for these two materials. With respect to a 
third NHSM--creosote-treated railroad ties, the Agency has recently 
received a draft petition from The American Forest & Paper Association 
and the American Wood Council seeking a categorical listing for these 
materials. As noted below, the Agency has requested additional 
information from the petitioners with regard to their request. If the 
additional information supports the representations made in the 
petitioners' draft December 6, 2012 petition, the EPA expects to 
propose a categorical listing for this material as well.\132\
---------------------------------------------------------------------------

    \131\ Comments on December 23, 2011 proposed rule supporting a 
categorical non-waste for paper recycling residuals: American Forest 
& Paper Association, et al. EPA-HQ-RCRA-2008-0329-1946-A1; Georgia-
Pacific LLC (GP) EPA-HQ-RCRA-2008-0329-1902-A1; National Alliance of 
Forest Owners (NAFO) EPA-HQ-RCRA-2008-0329-1950-A2; Packaging 
Corporation of America (PCA) EPA-HQ-RCRA-2008-0329-1966-A1; and 
United Steelworkers (USW) EPA-HQ-RCRA-2008-0329-1910-A1. Comments 
supporting a categorical non-waste for paper recycling residuals and 
C&D wood: American Forest & Paper Association, et al. EPA-HQ-RCRA-
2008-0329-1946-A1; Construction Materials Recycling Association 
(CMRA) EPA-HQ-RCRA-2008-0329-1928-A1; Covanta Energy Corporation 
(Covanta) EPA-HQ-RCRA-2008-0329-1893-A; Energy Recovery Council 
(ERC) EPA-HQ-RCRA-2008-0329-1927-A1; Georgia-Pacific LLC (GP) EPA-
HQ-RCRA-2008-0329-1902-A1; Michigan Biomass EPA-HQ-RCRA-2008-0329-
1905-A1; National Alliance of Forest Owners (NAFO) EPA-HQ-RCRA-2008-
0329-1950-A2; United Steelworkers (USW) EPA-HQ-RCRA-2008-0329-1910-
A1; Waste Management (WM) EPA-HQ-RCRA-2008-0329-1957-A2; and 
Weyerhaeuser EPA-HQ-RCRA-2008-0329-1930-A1.
    \132\ See draft letter from Paul Noe to Adminstrator Lisa 
Jackson, December 6, 2012, (item to be placed in the docket for 
today's rule).
---------------------------------------------------------------------------

Paper Recycling Residuals
    The first of these is paper recycling residuals (including old 
corrugated cardboard (OCC) rejects). In the 2011 NHSM final rule, EPA 
determined that paper recycling residuals, referred to as OCC rejects, 
are not discarded when used under the control of the generator, such as 
at pulp and paper mills, since these non-hazardous secondary materials 
are part of the industrial process.\133\ Regarding the legitimacy 
criteria, the Agency found that these materials meet the criteria with 
respect to management as a valuable commodity and used as a fuel when 
burned on-site. In addition, the Agency found that the contaminant 
levels in these materials are comparable to those in traditional fuels. 
With respect to the meaningful heating value criterion, the Agency 
determined that OCC rejects meet this criterion if it can be 
demonstrated that the combustion unit can cost-effectively recover 
energy from these materials.\134\
---------------------------------------------------------------------------

    \133\ [76 FR 15487]
    \134\ For a discussion of OCC rejects, see 76 FR 15486-7.
---------------------------------------------------------------------------

    Since publication of the March 2011 rule, the Agency has received 
additional information regarding the cost effectiveness of paper 
recycling residuals use as a fuel, including amounts of paper recycling 
residuals replacing traditional fuels at paper mills and percentages of 
residuals generated that are combusted as fuel. In general, this 
information also indicates that this material is primarily combusted as 
a fuel on-site or within the control of the generator.\135\ We have 
asked the industry for information to confirm this.
---------------------------------------------------------------------------

    \135\ See ``Generation, Management, and Processing of Paper 
Processing Residuals'' (Industrial Economics, October 26, 2012) 
(these items will be placed in the docket.)
---------------------------------------------------------------------------

    EPA believes the information received to date would tend to support 
a categorical determination of these residuals as non-waste fuels. For 
residuals that are transferred offsite, the Agency would like 
additional information about residuals that are also burned as a fuel 
at facilities that are not under the control of the generator, 
including information as to how and where they are burned and whether 
they are managed as a valuable commodity. If the Agency receives 
information confirming treatment of these materials offsite, the Agency 
would expect to include these residuals in a subsequent rulemaking.
Construction and Demolition Wood Processed Pursuant to Best Practices
    The second of these NHSMs is construction and demolition (C&D) wood 
processed pursuant to best practices and produced and managed under the 
oversight of a comprehensive collection system or contractual 
arrangement. In the March 2011 final rule, we determined that C&D wood 
that is sufficiently processed can be a non-waste fuel.\136\ The Agency 
has received additional information since the issuance of that rule on 
specific best management practices used by suppliers/processors of C&D 
wood. Such practices include processing to remove contaminants. EPA 
believes the information received to date would tend to support a 
listing of these materials as a categorical non-waste fuel and expects 
to propose that listing in a subsequent rulemaking.
---------------------------------------------------------------------------

    \136\ See 76FR 15485
---------------------------------------------------------------------------

Other Materials Under Consideration
    The American Forest & Paper Association and the American Wood 
Council submitted a draft petition to EPA on December 6, 2012 seeking a 
categorical listing for creosote-treated railroad ties.\137\ This draft 
petition lists their bases for the determination, with supporting 
information.
---------------------------------------------------------------------------

    \137\ Letter from American Forest & Paper Association and 
American Wood Council to Lisa Jackson, dated December 6, 2012 (a 
copy of this letter can be found in the docket for today's rule)
---------------------------------------------------------------------------

    The information included amounts of railroad ties combusted each 
year and value of the ties as fuel. Overall, the petitioners believe 
the information demonstrates that these materials are non-waste fuels 
and would allow EPA to categorically list this material, balancing the 
legitimacy criteria with other relevant factors. The draft petition 
provides information representing a determination that the material has 
high Btu value, and that the material satisfies the legitimacy 
criteria. The Agency is still in the process of reviewing the petition. 
However, in order to inform the scope of the non-waste category, we 
have also asked the petitioners to provide additional information, 
including:
    1. A list of industry sectors, in addition to forest product mills, 
that burn railroad ties for energy recovery
    2. The types of boilers (e.g., kilns, stoker boilers, circulating 
fluidized bed, etc.) that burn railroad ties for energy recovery
    3. The traditional fuels and relative amounts (e.g., startup, 30%, 
100%) of these traditional fuels that could otherwise generally be 
burned in these types of boilers
    4. The extent to which non-industrial boilers (e.g., commercial or 
residential boilers) burn railroad ties for energy recovery
    5. Laboratory analyses for contaminants known to be present in 
creosote-treated railroad ties or known to be significant components of 
creosote, specifically polycyclic aromatic hydrocarbons (i.e., PAH-16), 
dioxins, dibenzofurans, hexachlorobenzene, biphenyl, quinoline, 
cresols, and 2,4-dinitrotoluene.

[[Page 9174]]

    Assuming that the additional information supports and supplements 
the representations made in the petitioner's December 6, 2012 draft 
petition, the EPA also expects to propose a categorical listing for 
this material. To the extent that petitioners would like to provide 
additional information, the Agency will consider such information as 
well.
    EPA has also received a related letter from the Treated Wood 
Council asking that nonhazardous treated wood be determined as a 
categorical non-waste, a broader category that would include creosote-
treated ties.\138\ EPA is in the process of reviewing this letter, and 
may also propose a categorical listing for this broader set of treated 
wood material. Finally, we would note that if any person provides 
sufficient information to EPA regarding any other NHSM, EPA would also 
consider listing such material(s) categorically, pursuant to 40 CFR 
241.4(b).
---------------------------------------------------------------------------

    \138\ Letter from Jeffrey Miller, Treated Wood Council to Lisa 
Feldt, December 17, 2012. (a copy of this letter can be found in the 
docket to today's rule) Additional supporting information is found 
in the Comments of Treated Wood Council, dated Feb. 20, 2012)( EPA-
HQ-RCRA-2008-0329-1897.
---------------------------------------------------------------------------

6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition 
Process
    In the proposed rule, the EPA asked for comments on streamlining or 
other improvements to the existing provision for non-waste 
determinations codified at 40 CFR 241.3(c).
    The agency requested comment on whether the EPA's grant of the 
petition should apply as of the date that the petition was submitted to 
the agency.\139\ The agency also requested additional comment on 
whether any other changes could be made to the non-waste determination 
petition in order to streamline the process, while at the same time 
provide the EPA with the opportunity to ensure that such NHSMs are not 
being discarded. For example, the EPA requested comment on whether 
public comment should be sought on each individual petition.\140\
---------------------------------------------------------------------------

    \139\ See 76 FR 80473.
    \140\ See 76 FR 80474.
---------------------------------------------------------------------------

    Comment: Concerning the request for comment regarding when a 
petition determination would apply, the agency received several 
comments. Specifically, the agency requested comment on whether the 
EPA's grant of the petition should apply as of the date that the 
petition was submitted to the agency. Commenters agreed that a non-
waste determination under 40 CFR 241.3(c) should be retroactively 
applied to the date the petition was submitted.
    Commenters were concerned about the timeliness of the EPA's 
decision on these determinations and on the uncertainty surrounding the 
usage of the NHSMs while a non-waste determination petition is pending. 
The commenters argue that if a NHSM is determined to be non-waste, the 
combusted NHSM in question was also non-waste prior to the 
determination.
    Response: The agency understands the interests of petitioners 
awaiting an agency decision on the status of materials, while a 40 CFR 
241.3(c) petition is being considered. In order to lessen the 
uncertainty surrounding the regulatory status of a particular material, 
the agency will utilize the date the petition was submitted as the date 
that the combusted materials will be considered a non-waste if the 
agency grants the petition.
    Comment: Many commenters indicated concern that the petition 
process could take excessive time for the agency to reach a decision. 
They requested self-imposed timeframes for the EPA's granting/denying 
requests and a shorter length of time for the notices to be open for 
public comment (or omit it altogether). The combustors stated they need 
quick decisions in order to comply with the CAA regulations and to make 
efficient business decisions.
    Response: The agency considered the commenters' suggestion, but 
decided not to impose a deadline on its decision because there are many 
factors beyond its control, including how long it takes for the 
petitioner to submit a complete petition to EPA for evaluation. We 
would note, however, that even though the NHSM rule will become 
effective on April 8, 2013, for all practical purposes, existing 
facilities that currently burn NHSMs from off-site sources will have a 
substantial amount of time to submit and have the EPA process a non-
waste determination petition before having to comply with the CAA 
emission standards, as the compliance date for existing CISWI sources 
subject to CAA 129 standards is 5 years after the date of publication 
of the CISWI final rule or 3 years after the state plan is approved, 
whichever happens earlier and February 7, 2016, to comply with the 
Boiler MACT rule.141 142 Thus, we believe that there will be 
more than adequate time for persons to determine whether or not a NHSM 
sent to a combustion unit not under the control of the generator has 
not been discarded and meets the legitimacy criteria, prepare and 
submit a non-waste determination petition to the EPA, have the EPA 
process the petition, including soliciting comment on the EPA's 
proposed determination, and make a final decision.
---------------------------------------------------------------------------

    \141\ We recognize that new sources that are coming online that 
will have to comply with these rules much sooner than do existing 
sources. As such, the Agency will consider prioritizing the 
processing of non-waste petitions it has received from new sources 
as appropriate.
    \142\ Note that the compliance date for the Area Source Boiler 
Rule is March 21, 2014.
---------------------------------------------------------------------------

    In regard to the comment on reducing the time the petition 
application is open for public comment, the agency decided that the 
comment period shall remain at 30 days but the regulatory text is 
changed from ``at least 30 days'' to ``30 days'' in order to promote 
clarity, while affording an opportunity for public comment.
    Comment: One commenter strongly encouraged the agency to develop 
and deploy an on-line form to identify materials for non-waste 
determinations. Commenters also noted that the EPA should provide more 
detailed information about how the determinations are made 
(particularly for the comparable contaminant determinations).
    Response: The agency will consider the development of a form to 
identify the specific information needed to determine whether a NHSM 
meets the legitimacy criteria and other provisions. If the agency 
develops such a form, it would be made available on the NHSM Web site. 
Please note that traditional fuel data (including tables for 
traditional contaminants) are available to the public, which they may 
find useful in assessing the contaminant legitimacy criteria. Refer to 
those tables in ``Contaminant Concentrations in Traditional Fuels: 
Tables for Comparison'' currently posted on the NHSM web site at http://www.epa.gov/osw/nonhaz/define/index.htm. That document will aid in 
comparing the concentration of contaminants in their NHSMs to 
concentration of contaminants in traditional fuels. In addition, rule 
clarification letters and petition findings are also posted on the Web 
site when finalized.
    Comment: A commenter suggested that the non-waste petition process 
should allow for ``balancing'' of legitimacy criteria similar to that 
included for categorical determinations in 40 CFR 241.4.
    Response: Under 40 CFR 241.4 of the proposed regulation, the EPA 
can balance the legitimacy criteria with other relevant factors in 
making categorical non-waste determinations. As the commenter points 
out, we have not discussed the applicability for similar balancing 
under 40 CFR 241.3 non-waste determination petitions. The EPA 
distinguished between 40 CFR 241.3 and 40 CFR 241.4 because in the

[[Page 9175]]

latter, the EPA makes the determination based on its review and 
analysis of industry-wide data and other factors, as opposed to a 
specific site. However, the EPA recognizes the points the commenter 
raises and will consider whether such modifications may be appropriate.
    Comment: Several commenters were interested in features that 
streamline and add flexibility to the administrative petition process, 
particularly in the situation where a petition can apply to multiple 
combustors.
    One commenter noted that any interested person--including forest 
owners--should be able to initiate the petition process, not just 
combustors. The petitions should be allowed for entire classes of a 
NHSM rather than requiring a case-by-case analysis. These 
clarifications will encourage all members in the biomass supply chain 
to promote their products and co-products as clean, renewable fuels and 
promote the development of new markets for biomass materials. Other 
commenters also stressed the need for the EPA to clarify that the 
petition can apply to more than one combustor so that redundant 
petitions do not need to be filed in every region.
    A commenter also stated that the benefits from petitions could be 
achieved more efficiently if the regulatory language was changed to 
allow for nation-wide petitions under 40 CFR 241.3(c) for classes of 
combustion units rather than requiring separate petitions for each EPA 
region.
    Response: The agency agrees with the commenters that the process 
should accommodate for petition applications from third party producers 
of a NHSM that can be used as a non-waste NHSM fuel at many combustion 
units instead of just accepting petitions from individual combustors or 
combustors within the control of one EPA region. This can make for a 
more streamlined and efficient process. Therefore, the regulatory 
provision at 40 CFR 241.3(c) has been modified to allow for the 
petition to be sent to the Assistant Administrator for the OSWER 
instead of each Regional Administrator if the petition covers more than 
one EPA Region. This is at the option of the petitioner. The Assistant 
Administrator for the OSWER would be responsible for the EPA's 
administrative process in order to finalize the petition decision under 
40 CFR 241.3(c) and the regulatory language has been modified 
accordingly.
    Finally, as noted in the 2011 NHSM final rulemaking, states, or 
private entities, can submit non-waste determination petitions to the 
EPA on behalf of petitioners. They can petition for a single combustor 
or a class of combustors (e.g., a specific usage of a non-hazardous 
secondary material in a particular state). Therefore, in regard to the 
comment on nationwide petitions for classes of combustion units, the 
petition process accommodates for these classes of combustion units. 
This assumes that the petition identifies all of the specific NHSMs 
that the classes of combustion units use as fuel (that are applicable 
to a 40 CFR 241.3(c) petition) and gives the information necessary to 
meet the legitimacy criteria and other requirements.
    Note that if a petition covers multiple facilities in a single 
region, the petition should be sent to the Regional Administrator for 
that Region, not to the Assistant Administrator for the OSWER.
    Comment: Several commenters argued that the 40 CFR 241.3(c) 
petitions should not require public comment for each individual 
petition.
    One commenter stated that ``the administrative petition process 
could be further streamlined by not seeking public comment on every 
individual petition. By filing an administrative petition, a petitioner 
is not seeking to change the EPA's regulatory program or create new 
legal rights or obligations. Instead, the administrative petition 
process provides an opportunity for a petitioner to obtain in advance 
[A]gency concurrence, based on sound science, with respect to the 
classification of a particular feedstock under existing regulations. In 
this respect, the administrative petition process differs from the 
categorical non-waste determination * * * where EPA makes changes to 
the regulatory status of certain non-hazardous secondary materials that 
are reflected in the Code of Federal Regulations. Because the public--
through this rulemaking process--has an opportunity to provide input on 
EPA's regulations, there is no need to provide a second opportunity for 
public comment when those regulations are applied by the EPA in 
specific contexts through the administrative petition process.''
    In addition, other commenters indicated that public notice and 
comment is not necessary, since the NHSM rulemaking process has already 
taken comment on the methodology, in addition to other rationale. In 
particular, one commenter stated, ``Streamlining could be further 
facilitated by recognizing that solicitation of public comment on each 
individual application would be redundant and unnecessary given the 
public's ample opportunity during this rulemaking to comment on the 
evaluation criteria that will govern non-waste determination 
petitions.'' Another commenter stated, ``The reason for public 
participation in the hazardous waste petition process is that the 
materials subject to the petition are to be removed from the hazardous 
waste regulatory program. In the NHSM world, the secondary materials 
subject to the petition are merely obtaining clarity about regulatory 
status--they are not seeking a change in regulatory status. Therefore, 
the need for the full public participation process is not necessary or 
warranted.''
    Response: Although industry commenters argued that public 
participation is unnecessary, the EPA still believes that public 
participation is an important part of a transparent decision making 
process and values how it increases transparency. In the final rule, we 
will retain the public participation requirement in order to promote 
public awareness.
7. Revised Introductory Text for 40 CFR 241.3(a)
    As part of its discussion clarifying the non-waste determination 
petition processes, the EPA noted that it had examined a number of 
specific NHSMs and decided which were to be considered solid wastes 
based on the record available at the time the March 2011 final rule was 
issued.\143\ The rule itself had stated at 40 CFR 241.3(a) that 
secondary materials were solid wastes except for those described in 
section 241.3(b). Essentially, section 241.3(b) is the operative 
section that states what materials are not wastes. The purpose of the 
non-waste determination petition process in section 241.3(c) and the 
new proposed petition process in section 241.4 is to allow various 
parties the opportunity to provide information and data so that the EPA 
could decide what other NHSMs are not solid wastes. The preamble stated 
that the agency proposed to amend section 241.3(a) to state that such 
secondary materials are ``presumed to be'' solid wastes except for 
those described in section 241.3(b) in order to better reflect the 
rulemaking record.
---------------------------------------------------------------------------

    \143\ See 76 FR 80473.
---------------------------------------------------------------------------

    Comment: No commenters supported inclusion of the ``presumed to 
be'' language in the rule.
    Most of the commenters on the language argue that it means that the 
EPA continues to improperly determine that certain NHSMs are 
presumptively wastes. Commenters generally argue that the ``presumed to 
be'' language shows that the EPA, in spite of statements to the 
contrary, is continuing to make an inappropriate determination

[[Page 9176]]

that NHSMs transferred to other parties are presumptively wastes until 
a combustor proves otherwise. According to comments, the use of the 
``presumed to be'' language is a clear statement that the EPA is making 
the presumption. The addition of these words does not change the fact 
that, under the EPA's regulatory framework, NHSMs are wastes until 
proven otherwise.
    Several commenters, in fact, argued that to address the legal flaws 
in the proposal, the EPA should reverse the presumption and presume 
that NHSMs burned for energy recovery or used as an ingredient is not 
for the purpose of disposal and, therefore, is not a waste.
    Response: The EPA is not addressing in this rulemaking the comment 
that the agency has inappropriately made presumptions about whether 
materials are wastes. This issue has not been reopened. Instead, the 
agency has only opened very specific issues on particular wastes.
    In the December 2011, proposal at 76 FR 80473, the EPA referred to 
the March 2011 preamble in which the agency stated that it has not 
``arbitrarily determined that secondary materials transferred between 
companies are wastes. Instead, the EPA has evaluated whether certain 
categories of materials are discarded or not. The Agency has not 
adopted the extremes of saying that all burning of secondary material, 
regardless of ultimate use, is waste treatment or that any secondary 
material that is recycled for legitimate fuel value is a commodity and 
not a waste. Wastes may have value, but are still wastes.'' 76 FR 
15471. Further, the agency stated that it ``has examined a number of 
specific materials, recycled within the control of the generator and 
transferred to a third party for recycling, and determined whether they 
would be appropriately placed within the waste or non-waste 
categories.'' Id. The EPA went on to examine a number of different 
categories of NHSMs used as fuels and ingredients that was summarized 
in the Federal Register (76 FR 15477-15520). The EPA cannot ``reverse'' 
a presumption that it never made to declare that materials burned for 
energy recovery are presumptively non-wastes. Further, it would be 
entirely improper for the agency to do so. The EPA has evaluated 
specific groups of materials as to their waste status, while the 
comments regarding reversal of a purported presumption have only 
presented arguments ``in broad abstraction, providing little detail 
about the many processes throughout the industry that generate residual 
material'' that could be subject to this rule. Association of Battery 
Recyclers v. EPA, 208 F.3d 1047, 1056.\144\ Accordingly, the agency 
stands on its March 2011 rulemaking record for the issues discussed in 
these comments.
---------------------------------------------------------------------------

    \144\ Note how the April 4, 2012, letter from Timothy G. Hunt to 
James Berlow (a copy of which is in the docket for today's rule), 
provided specific information on pulp and paper sludge where the EPA 
added a categorical determination based on specific information 
provided by industry.
---------------------------------------------------------------------------

    Comment: Comments objected that the change in word choice that 
materials are ``presumed to be'' solid wastes from the statement that 
that materials ``are'' solid wastes (except as otherwise provided in 
the regulation) still puts the burden to prove material is not a waste 
on persons who use NHSMs in combustion units. One comment, in 
particular, noted that there would be no practical effect of the new 
language even though it is viewed by the EPA as an ``optically less 
drastic stance.'' That is, there would be no real leeway for a party in 
an enforcement proceeding to counter the EPA's prosecution based on the 
fact that the secondary material in question is only ``presumed to be'' 
a waste, rather than the material ``is'' a waste.
    Response: The EPA has decided not to retain the ``presumed to be'' 
language, since it is unnecessary and does not actually reflect the 
rulemaking record. No comment argued in favor of it. In addition, there 
is no need to temper the existing language stating that a material is a 
solid waste if it does not fall within the Sec.  241.3(b) categories or 
the non-waste determination processes. As noted in the previous 
response to comments regarding the agency's ``presumption'' of the 
waste status of materials, the agency stands on its March 2011 
rulemaking record.

E. Cost and Benefits of the Final Rule

    The RCRA aspects of this rule do not directly invoke any costs 
(excluding minor administrative burden/cost), or benefits. Any RCRA 
related costs to the regulated community, and corresponding benefits to 
human health and the environment, have been considered as part of the 
CISWI action, and the corresponding CISWI and Boiler MACT (area source 
and major source) final rules. As such, the agency has not prepared a 
separate cost-benefit assessment in support of this part of the final 
rule. Consequently, any potential costs or benefits, including impacts 
to small entities, indirectly associated with the RCRA aspects of this 
rule are addressed in the corresponding impact assessment prepared in 
support of the CISWI part of this action.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action'' because it may raise 
novel legal or policy issues. Accordingly, the EPA submitted this 
action to OMB for review under Executive Order 12866 and 13563 (76 FR 
3821, January 21, 2011). Any changes made in response to OMB 
recommendations have been documented in the docket for this action.
    In addition, the EPA prepared an update to the RIA of the potential 
costs and benefits associated with this action. The RIA available in 
the docket describes in detail the empirical basis for the EPA's 
assumptions and characterizes the various sources of uncertainties 
affecting the estimates below and a memo documents the updates since 
the RIA was prepared. Table 9 of this preamble shows the results of the 
cost and benefits analysis for these final rules.

    Table 9--Summary of the Monetized Benefits, Social Costs and Net
            Benefits for the Final CISWI NSPS and EG in 2015
                         [Millions of 2008$] \1\
------------------------------------------------------------------------
                                  3 Percent discount  7 Percent discount
                                         rate                rate
------------------------------------------------------------------------
Total Monetized Benefits \2\....  $420 to $1,000....  $380 to $930
Total Social Costs \3\..........  $258..............  $258
Net Benefits....................  $160 to $770......  $120 to $670
                                    Health effects from exposure to HAP
                                     780 tons of HCl, 2.5 tons of lead,
                                   1.8 tons of Cd, 680 pounds of Hg, and
                                        58 grams of dioxins/furans).

[[Page 9177]]

 
Non-monetized Benefits..........      Health effects from exposure to
                                    criteria pollutants (20,000 tons of
                                    CO, 6,300 tons of SO2, 5,400 tons of
                                      NO2, and secondary formation of
                                                  ozone).
                                            Ecosystem effects.
                                          Visibility impairment.
------------------------------------------------------------------------
\1\ All estimates are for the implementation year (2015) and are rounded
  to two significant figures. These results reflect the lowest cost
  disposal assumption.
\2\ The total monetized benefits reflect the human health benefits
  associated with reducing exposure to PM2.5 through reductions of PM2.5
  precursors such as directly emitted particles, SO2, and NOX. It is
  important to note that the monetized benefits include many but not all
  health effects associated with PM2.5 exposure. Monetized benefits are
  shown as a range from Pope, et al. (2002) to Laden, et al. (2006).
  These models assume that all fine particles, regardless of their
  chemical composition, are equally potent in causing premature
  mortality because the scientific evidence is not yet sufficient to
  allow differentiation of effect estimates by particle type.
\3\ The methodology used to estimate social costs for 1 year in the
  multimarket model using surplus changes results in the same social
  costs for both discount rates.

B. Paperwork Reduction Act

    This action does not require any new information collection. This 
action is believed to result in no additional impact on the aggregate 
information collection estimate of project cost and hour burden made 
and approved by OMB. Due to changes in the CISWI inventory and 
monitoring requirements of the CISWI rule, the information collection 
estimate of project cost and hour burden have been revised. Therefore, 
only the CISWI ICR has been revised. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    However, OMB has previously approved the information collection 
requirements contained in the existing CISWI and NHSM \145\ regulations 
(40 CFR part 60, subparts CCCC and DDDD, and 40 CFR part 241) under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., and 
has been assigned EPA ICR number 2384.05 for subpart CCCC, 40 CFR part 
60, EPA ICR number 2385.05 for subpart DDDD, 40 CFR part 60, and EPA 
ICR number 2382.03 for 40 CFR part 241.
---------------------------------------------------------------------------

    \145\ Identification of Non-Hazardous Secondary Materials That 
Are Solid Waste, Final Rule. March 11, 2011.
---------------------------------------------------------------------------

C. Regulatory Flexibility Act

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the APA or any other statute unless the 
agency certifies that the rule will not have a SISNOSE. Small entities 
include small businesses, small organizations and small governmental 
jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the SBA's regulations at 13 CFR 121.201; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; or 
(3) a small organization that is any not-for-profit enterprise that is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a SISNOSE. 
This final rule will not impose any new requirements on any entities 
because it does not impose any additional regulatory requirements 
relative to those specified in the March 2011 final CISWI and NHSM 
rules. The March 2011 final CISWI and NHSM rules were both certified as 
not having a SISNOSE. In this final action, there are four fewer small 
entities in the CISWI than in the March 2011 final CISWI rule, as 
discussed in the ``Regulatory Impact Results for the Reconsideration 
Final for Standards of Performance for New Stationary Sources and 
Emission Guidelines for Existing Sources: Commercial and Industrial 
Solid Waste Incineration Units'' memorandum in the CISWI docket.

D. Unfunded Mandates Reform Act

    This action does not contain a federal mandate that may result in 
expenditures of $100 million or more for state, local and tribal 
governments, in the aggregate or the private sector in any one year. 
This rule finalizes amendments to the final CISWI rule provisions and 
technical clarifications to the final NHSM rule. Thus, this rule is not 
subject to the requirements of sections 202 or 205 of UMRA. However, 
the March 2011 final CISWI rule contains a federal mandate that may 
result in expenditures of $100 million or more for state, local and 
tribal governments, in the aggregate, or the private sector in any 1 
year. Accordingly, we have prepared under section 202 of the UMRA a 
written statement, which is summarized in the preamble to the final 
CISWI rule (76 FR 15747).
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This final rule will not impose 
direct compliance costs on state or local governments and will not 
preempt state law. Thus, Executive Order 13132 does not apply to this 
action.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175, (65 FR 67249, November 9, 2000). The EPA is not 
aware of any CISWI in Indian country or owned or operated by Indian 
tribal governments. The CISWI aspects of this rule may, however, invoke 
minor indirect tribal implications to the extent that entities 
generating solid wastes on tribal lands could be affected. However, any 
indirect NHSM impacts that may occur as a result of the CISWI action 
are expected to be negligible due to the very limited focus of the 
CISWI part or this rule.

[[Page 9178]]

Thus, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is based 
solely on technology performance and technical corrections.

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

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the NTTAA of 1995, Public Law 104-113, 12(d) (15 
U.S.C. 272 note) directs the EPA to use VCS in its regulatory 
activities, unless to do so would be inconsistent with applicable law 
or otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures and business practices) that are developed or adopted by VCS 
bodies. The NTTAA directs the EPA to provide Congress, through OMB, 
explanations when the agency decides not use available and applicable 
VCS.
    This action does not involve any revisions to the technical 
standards or test methods required in the final CISWI rule. Therefore, 
the EPA did not reconsider the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on EJ. Its main provision directs federal 
agencies, to the greatest extent practicable and permitted by law, to 
make EJ part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects of their programs, policies and activities on 
minority populations and low-income populations in the United States.
    The EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. The amendments do not relax the control measures on 
sources regulated by the CISWI rule, and, therefore, will not cause 
emissions increases from these sources. The March 2011 final CISWI rule 
will reduce emissions of all the listed HAP emitted from this source. 
Furthermore, the targeted revisions finalized in the NHSM section of 
this rule are designed to improve the management of these materials, 
thereby helping to further ensure against any disproportionately high 
and adverse human health or environmental effects on minority or low-
income populations.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
SBREFA of 1996, generally provides that before a rule may take effect, 
the agency promulgating the rule must submit a rule report, which 
includes a copy of the rule, to each House of the Congress and to the 
Comptroller General of the United States. The EPA will submit a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
United States prior to publication of the rule in the Federal Register. 
A major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2). This rule will be effective February 7, 2013.

List of Subjects

40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Incorporation by 
reference.

40 CFR Part 241

    Environmental protection, air pollution control, waste treatment 
and disposal.

    Dated: December 20, 2012.
Lisa P. Jackson,
Administrator.
    For the reasons cited in the preamble, Title 40, chapter I, parts 
60 and 241 of the Code of Federal Regulations are amended as follows:

PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES

0
1. The authority for part 60 continues to read as follows:

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


0
2. Effective February 7, 2013, the May 18, 2011 (76 FR 28662), delay of 
the effective date amending subparts CCCC and DDDD, at 76 FR 15703 
(March 21, 2011), is lifted.

Subpart CCCC--[Amended]

0
3. Section 60.2005 is revised to read as follows:


Sec.  60.2005  When does this subpart become effective?

    This subpart takes effect on August 7, 2013. Some of the 
requirements in this subpart apply to planning the CISWI unit (i.e., 
the preconstruction requirements in Sec. Sec.  60.2045 and 60.2050). 
Other requirements such as the emission limitations and operating 
limits apply after the CISWI unit begins operation.

0
4. Section 60.2015 is amended by revising paragraphs (a)(1) and (2) and 
(b) to read as follows:


Sec.  60.2015  What is a new incineration unit?

    (a) * * *
    (1) A CISWI unit that commenced construction after June 4, 2010.
    (2) A CISWI unit that commenced reconstruction or modification 
after August 7, 2013.
    (b) This subpart does not affect your CISWI unit if you make 
physical or operational changes to your incineration unit primarily to 
comply with subpart DDDD of this part (Emission Guidelines and 
Compliance Times for Commercial and Industrial Solid Waste Incineration 
Units). Such changes do not qualify as reconstruction or modification 
under this subpart.

0
5. Section 60.2020 is amended by:
0
a. Revising paragraph (c).
0
b. Revising paragraph (e)(3).
0
c. Adding paragraph (e)(4).
0
d. Revising paragraph (f)(3).
0
e. Adding paragraph (f)(4).
0
f. Revising paragraph (n).
0
g. Adding paragraph (o).
    The revisions and additions read as follows:


Sec.  60.2020  What combustion units are exempt from this subpart?

* * * * *
    (c) Municipal waste combustion units. Incineration units that are 
subject to

[[Page 9179]]

subpart Ea of this part (Standards of Performance for Municipal Waste 
Combustors); subpart Eb of this part (Standards of Performance for 
Large Municipal Waste Combustors); subpart Cb of this part (Emission 
Guidelines and Compliance Time for Large Municipal Combustors); subpart 
AAAA of this part (Standards of Performance for Small Municipal Waste 
Combustion Units); or subpart BBBB of this part (Emission Guidelines 
for Small Municipal Waste Combustion Units).
* * * * *
    (e) * * *
    (3) You submit documentation to the Administrator notifying the EPA 
that the qualifying small power production facility is combusting 
homogenous waste.
    (4) You maintain the records specified in Sec.  60.2175(w).
    (f) * * *
    (3) You submit documentation to the Administrator notifying the 
Agency that the qualifying cogeneration facility is combusting 
homogenous waste.
    (4) You maintain the records specified in Sec.  60.2175(x).
* * * * *
    (n) Sewage sludge incineration units. Incineration units combusting 
sewage sludge for the purpose of reducing the volume of the sewage 
sludge by removing combustible matter that are subject to subpart LLLL 
of this part (Standards of Performance for Sewage Sludge Incineration 
Units) or subpart MMMM of this part (Emission Guidelines for Sewage 
Sludge Incineration Units).
    (o) Other solid waste incineration units. Incineration units that 
are subject to subpart EEEE of this part (Standards of Performance for 
Other Solid Waste Incineration Units) or subpart FFFF of this part 
(Emission Guidelines and Compliance Times for Other Solid Waste 
Incineration Units).

0
6. Section 60.2030 is amended by revising paragraph (c)(10) to read as 
follows:


Sec.  60.2030  Who implements and enforces this subpart?

* * * * *
    (c) * * *
    (10) Determination of whether a qualifying small power production 
facility or cogeneration facility under Sec.  60.2020(e) or (f) is 
combusting homogenous waste.

0
7. Section 60.2045 is amended by revising paragraph (b) to read as 
follows:


Sec.  60.2045  Who must prepare a siting analysis?

* * * * *
    (b) You must prepare a siting analysis for CISWI units that 
commenced construction after June 4, 2010, or that commenced 
reconstruction or modification after August 7, 2013.
* * * * *

0
8. Section 60.2105 is amended by revising paragraph (b) to read as 
follows:


Sec.  60.2105  What emission limitations must I meet and by when?

* * * * *
    (b) An incinerator unit that commenced construction after November 
30, 1999, but no later than June 4, 2010, or that commenced 
reconstruction or modification on or after June 1, 2001 but no later 
than August 7, 2013, must meet the more stringent emission limit for 
the respective pollutant in table 1 of this subpart or table 6 of 
subpart DDDD.
0
9. Section 60.2110 is amended by:
0
a. Revising paragraphs (a)(2), (e), and (f).
0
b. Redesignating paragraph (g) as paragraph (h) and revising newly 
designated paragraph (h).
0
c. Adding paragraphs (g) and (i).
    The revisions and additions read as follows:


Sec.  60.2110  What operating limits must I meet and by when?

    (a) * * *
    (2) Minimum pressure drop across the wet particulate matter 
scrubber, which is calculated as the lowest 1-hour average pressure 
drop across the wet scrubber measured during the most recent 
performance test demonstrating compliance with the particulate matter 
emission limitations; or minimum amperage to the wet scrubber, which is 
calculated as the lowest 1-hour average amperage to the wet scrubber 
measured during the most recent performance test demonstrating 
compliance with the particulate matter emission limitations.
* * * * *
    (e) If you use activated carbon sorbent injection to comply with 
the emission limitations, you must measure the sorbent flow rate during 
the performance testing. The operating limit for the carbon sorbent 
injection is calculated as the lowest 1-hour average sorbent flow rate 
measured during the most recent performance test demonstrating 
compliance with the mercury emission limitations. For energy recovery 
units, when your unit operates at lower loads, multiply your sorbent 
injection rate by the load fraction, as defined in this subpart, to 
determine the required injection rate (e.g., for 50 percent load, 
multiply the injection rate operating limit by 0.5).
    (f) If you use selective noncatalytic reduction to comply with the 
emission limitations, you must measure the charge rate, the secondary 
chamber temperature (if applicable to your CISWI unit), and the reagent 
flow rate during the nitrogen oxides performance testing. The operating 
limits for the selective noncatalytic reduction are calculated as the 
highest 1-hour average charge rate, lower secondary chamber 
temperature, and lowest reagent flow rate measured during the most 
recent performance test demonstrating compliance with the nitrogen 
oxides emission limitations.
    (g) If you use a dry scrubber to comply with the emission 
limitations, you must measure the injection rate of each sorbent during 
the performance testing. The operating limit for the injection rate of 
each sorbent is calculated as the lowest 1-hour average injection rate 
or each sorbent measured during the most recent performance test 
demonstrating compliance with the hydrogen chloride emission 
limitations. For energy recovery units, when your unit operates at 
lower loads, multiply your sorbent injection rate by the load fraction, 
as defined in this subpart, to determine the required injection rate 
(e.g., for 50 percent load, multiply the injection rate operating limit 
by 0.5).
    (h) If you do not use a wet scrubber, electrostatic precipitator, 
or fabric filter to comply with the emission limitations, and if you do 
not determine compliance with your particulate matter emission 
limitation with a particulate matter CEMS, you must maintain opacity to 
less than or equal to 10 percent opacity (1-hour block average).
    (i) If you use a PM CPMS to demonstrate compliance, you must 
establish your PM CPMS operating limit and determine compliance with it 
according to paragraphs (i)(1) through (5) of this section.
    (1) Determine your operating limit as the average PM CPMS output 
value recorded during the performance test or at a PM CPMS output value 
corresponding to 75% of the emission limit if your PM performance test 
demonstrates compliance below 75% of the emission limit. You must 
verify an existing or establish a new operating limit after each 
repeated performance test. You must repeat the performance test 
annually and reassess and adjust the site-specific operating limit in 
accordance with the results of the performance test.
    (A) Your PM CPMS must provide a 4-20 milliamp output and the 
establishment of its relationship to manual reference method 
measurements must be determined in units of milliamps.

[[Page 9180]]

    (B) Your PM CPMS operating range must be capable of reading PM 
concentrations from zero to a level equivalent to at least two times 
your allowable emission limit. If your PM CPMS is an auto-ranging 
instrument capable of multiple scales, the primary range of the 
instrument must be capable of reading PM concentration from zero to a 
level equivalent to two times your allowable emission limit.
    (C) During the initial performance test or any such subsequent 
performance test that demonstrates compliance with the PM limit, record 
and average all milliamp output values from the PM CPMS for the periods 
corresponding to the compliance test runs (e.g., average all your PM 
CPMS output values for three corresponding 2-hour Method 5I test runs).
    (2) If the average of your three PM performance test runs are below 
75% of your PM emission limit, you must calculate an operating limit by 
establishing a relationship of PM CPMS signal to PM concentration using 
the PM CPMS instrument zero, the average PM CPMS values corresponding 
to the three compliance test runs, and the average PM concentration 
from the Method 5 or performance test with the procedures in 
(i)(1)through (5) of this section.
    (i) Determine your instrument zero output with one of the following 
procedures:
    (A) Zero point data for in-situ instruments should be obtained by 
removing the instrument from the stack and monitoring ambient air on a 
test bench.
    (B) Zero point data for extractive instruments should be obtained 
by removing the extractive probe from the stack and drawing in clean 
ambient air.
    (C) The zero point can also can be established obtained by 
performing manual reference method measurements when the flue gas is 
free of PM emissions or contains very low PM concentrations (e.g., when 
your process is not operating, but the fans are operating or your 
source is combusting only natural gas) and plotting these with the 
compliance data to find the zero intercept.
    (D) If none of the steps in paragraphs (i)(2)(i) through (iv) of 
this section are possible, you must use a zero output value provided by 
the manufacturer.
    (ii) Determine your PM CPMS instrument average in milliamps, and 
the average of your corresponding three PM compliance test runs, using 
equation 1.
[GRAPHIC] [TIFF OMITTED] TR07FE13.000

Where:

    X1 = the PM CPMS data points for the three runs 
constituting the performance test,
    Y1 = the PM concentration value for the three runs 
constituting the performance test, and
    n = the number of data points.

    (iii) With your instrument zero expressed in milliamps, your three 
run average PM CPMS milliamp value, and your three run average PM 
concentration from your three compliance tests, determine a 
relationship of lb/Mmbtu per milliamp with equation 2.
[GRAPHIC] [TIFF OMITTED] TR07FE13.001

Where:

    R = the relative mg/dscm per milliamp for your PM CPMS,
    Y1 = the three run average mg/dscm PM concentration,
    X1 = the three run average milliamp output from you 
PM CPMS, and
    z = the milliamp equivalent of your instrument zero determined 
from (2)(i).

    (iv) Determine your source specific 30-day rolling average 
operating limit using the mg/dscm per milliamp value from Equation 2 in 
equation 3, below. This sets your operating limit at the PM CPMS output 
value corresponding to 75% of your emission limit.
[GRAPHIC] [TIFF OMITTED] TR07FE13.002

Where:

    Ol = the operating limit for your PM CPMS on a 30-day 
rolling average, in milliamps.
    L = your source emission limit expressed in lb/Mmbtu,
    z = your instrument zero in milliamps, determined from (2)(a), 
and
    R = the relative mg/dscm per milliamp for your PM CPMS, from 
Equation 3.

    (3) If the average of your three PM compliance test runs is at or 
above 75% of your PM emission limit you must determine your operating 
limit by averaging the PM CPMS milliamp output corresponding to your 
three PM performance test runs that demonstrate compliance with the 
emission limit using equation 4 and you must submit all compliance test 
and PM CPMS data according to the reporting requirements in paragraph 
(i)(5) of this section.
[GRAPHIC] [TIFF OMITTED] TR07FE13.003

Where:

    X1 = the PM CPMS data points for all runs i,
    n = the number of data points, and
    Oh = your site specific operating limit, in 
milliamps.

    (4) To determine continuous compliance, you must record the PM CPMS 
output data for all periods when the process is operating and the PM 
CPMS is not out-of-control. You must demonstrate continuous compliance 
by using all quality-assured hourly average data collected by the PM 
CPMS for all operating hours to calculate the arithmetic average 
operating parameter in units of the operating limit (e.g., milliamps, 
PM concentration, raw data signal) on a 30-day rolling average basis.
    (5) For PM performance test reports used to set a PM CPMS operating 
limit, the electronic submission of the test report must also include 
the make and model of the PM CPMS instrument, serial number of the 
instrument, analytical principle of the instrument (e.g., beta 
attenuation), span of the instruments primary analytical range, 
milliamp value equivalent to the instrument zero output, technique by 
which this zero value was determined, and the average milliamp signals 
corresponding to each PM compliance test run.

0
10. Section 60.2115 is amended by revising the section heading and the 
introductory text to read as follows:


Sec.  60.2115  What if I do not use a wet scrubber, fabric filter, 
activated carbon injection, selective noncatalytic reduction, an 
electrostatic precipitator, or a dry scrubber to comply with the 
emission limitations?

    If you use an air pollution control device other than a wet 
scrubber, activated carbon injection, selective noncatalytic reduction, 
fabric filter, an electrostatic precipitator, or a dry scrubber or 
limit emissions in some other manner, including material balances, to 
comply with the emission limitations under Sec.  60.2105, you must 
petition the EPA Administrator for specific operating limits to be

[[Page 9181]]

established during the initial performance test and continuously 
monitored thereafter. You must submit the petition at least sixty days 
before the performance test is scheduled to begin. Your petition must 
include the five items listed in paragraphs (a) through (e) of this 
section.
* * * * *

0
11. Section 60.2120 is revised to read as follows:


Sec.  60.2120  Affirmative defense for violation of emission standards 
during malfunction.

    In response to an action to enforce the standards set forth in 
paragraph Sec.  60.2105 you may assert an affirmative defense to a 
claim for civil penalties for violations of such standards that are 
caused by malfunction, as defined at 40 CFR 60.2. Appropriate penalties 
may be assessed if you fail to meet your burden of proving all of the 
requirements in the affirmative defense. The affirmative defense shall 
not be available for claims for injunctive relief.
    (a) Assertion of affirmative defense. To establish the affirmative 
defense in any action to enforce such a standard, you must timely meet 
the reporting requirements in paragraph (b) of this section, and must 
prove by a preponderance of evidence that:
    (1) The violation:
    (i) Was caused by a sudden, infrequent, and unavoidable failure of 
air pollution control equipment, process equipment, or a process to 
operate in a normal or usual manner; and
    (ii) Could not have been prevented through careful planning, proper 
design or better operation and maintenance practices; and (iii) Did not 
stem from any activity or event that could have been foreseen and 
avoided, or planned for; and
    (iv) Was not part of a recurring pattern indicative of inadequate 
design, operation, or maintenance; and
    (2) Repairs were made as expeditiously as possible when a violation 
occurred; and
    (3) The frequency, amount, and duration of the violation (including 
any bypass) were minimized to the maximum extent practicable; and
    (4) If the violation resulted from a bypass of control equipment or 
a process, then the bypass was unavoidable to prevent loss of life, 
personal injury, or severe property damage; and
    (5) All possible steps were taken to minimize the impact of the 
violation on ambient air quality, the environment, and human health; 
and
    (6) All emissions monitoring and control systems were kept in 
operation if at all possible, consistent with safety and good air 
pollution control practices; and
    (7) All of the actions in response to the violation were documented 
by properly signed, contemporaneous operating logs; and
    (8) At all times, the affected source was operated in a manner 
consistent with good practices for minimizing emissions; and
    (9) A written root cause analysis has been prepared, the purpose of 
which is to determine, correct, and eliminate the primary causes of the 
malfunction and the violation resulting from the malfunction event at 
issue. The analysis shall also specify, using best monitoring methods 
and engineering judgment, the amount of any emissions that were the 
result of the malfunction.
    (b) Report. The owner or operator seeking to assert an affirmative 
defense shall submit a written report to the Administrator with all 
necessary supporting documentation, that it has met the requirements 
set forth in paragraph (a) of this section. This affirmative defense 
report shall be included in the first periodic compliance, deviation 
report or excess emission report otherwise required after the initial 
occurrence of the violation of the relevant standard (which may be the 
end of any applicable averaging period). If such compliance, deviation 
report or excess emission report is due less than 45 days after the 
initial occurrence of the violation, the affirmative defense report may 
be included in the second compliance, deviation report or excess 
emission report due after the initial occurrence of the violation of 
the relevant standard.

0
12. Section 60.2125 is amended by:
0
a. Revising paragraph (g) introductory text.
0
b. Redesignating paragraphs (g)(2) and (3) as paragraphs (g)(3) and 
(4), respectively.
0
c. Revising newly designated paragraphs (g)(3) and (4).
0
d. Adding new paragraph (g)(2).
0
e. Revising paragraph (i).
0
f. Adding paragraph (j).
    The revisions and additions read as follows:


Sec.  60.2125  How do I conduct the initial and annual performance 
test?

* * * * *
    (g) You must determine dioxins/furans toxic equivalency by 
following the procedures in paragraphs (g)(1) through (4) of this 
section.
* * * * *
    (2) Quantify isomers meeting identification criteria 2, 3, 4, and 5 
in Section 5.3.2.5 of Method 23, regardless of whether the isomers meet 
identification criteria 1 and 7. You must quantify the isomers per 
Section 9.0 of Method 23. (Note: You may reanalyze the sample aliquot 
or split to reduce the number of isomers not meeting identification 
criteria 1 or 7 of Section 5.3.2.5.)
    (3) For each dioxin/furan (tetra-through octa-chlorinated) isomer 
measured in accordance with paragraph (g)(1) and (2) of this section, 
multiply the isomer concentration by its corresponding toxic 
equivalency factor specified in table 3 of this subpart.
    (4) Sum the products calculated in accordance with paragraph (g)(3) 
of this section to obtain the total concentration of dioxins/furans 
emitted in terms of toxic equivalency.
* * * * *
    (i) If you have an applicable opacity operating limit, you must 
determine compliance with the opacity limit using Method 9 at 40 CFR 
part 60, appendix A-4 of this part, based on three 1-hour blocks 
consisting of ten 6-minute average opacity values, unless you are 
required to install a continuous opacity monitoring system, consistent 
with Sec. Sec.  60.2145 and 60.2165.
    (j) You must determine dioxins/furans total mass basis by following 
the procedures in paragraphs (j)(1) through (3) of this section.
    (1) Measure the concentration of each dioxin/furan tetra-through 
octa-chlorinated isomer emitted using EPA Method 23 at 40 CFR part 60, 
appendix A-7.
    (2) Quantify isomers meeting identification criteria 2, 3, 4, and 5 
in Section 5.3.2.5 of Method 23, regardless of whether the isomers meet 
identification criteria 1 and 7. You must quantify the isomers per 
Section 9.0 of Method 23. (Note: You may reanalyze the sample aliquot 
or split to reduce the number of isomers not meeting identification 
criteria 1 or 7 of Section 5.3.2.5.)
    (3) Sum the quantities measured in accordance with paragraphs 
(j)(1) and (2) of this section to obtain the total concentration of 
dioxins/furans emitted in terms of total mass basis.
0
13. Section 60.2140 is amended by revising paragraph (c) to read as 
follows:


Sec.  60.2140  By what date must I conduct the initial performance 
test?

* * * * *
    (c) If you commence combusting or recommence combusting a solid 
waste at an existing combustion unit at any commercial or industrial 
facility and you have not conducted a performance test consistent with 
the provisions of this subpart while combusting the solid waste within 
the 6 months preceding

[[Page 9182]]

the reintroduction of that solid waste in the combustion chamber, you 
must conduct a performance test within 60 days commencing or 
recommencing solid waste combustion.

0
14. Section 60.2145 is amended by:
0
a. Revising paragraph (a)(6).
0
b. Revising paragraphs (b) through (d).
0
c. Revising paragraphs (f) through (j).
0
d. Revising paragraph (m)(2).
0
e. Revising paragraph (n)(4).
0
f. Revising paragraphs (s) introductory text, (s)(1) introductory text, 
and (s)(2).
0
g. Revising paragraph (t) introductory text and (t)(1) introductory 
text.
0
h. Revising paragraph (u).
0
i. Adding paragraphs (w) and (x).
    The revisions and additions read as follows:


Sec.  60.2145  How do I demonstrate continuous compliance with the 
emission limitations and the operating limits?

    (a) * * *
    (6) All monitoring systems necessary for compliance with any newly 
applicable monitoring requirements which apply as a result of the 
cessation or commencement or recommencement of combusting solid waste 
must be installed and operational as of the effective date of the 
waste-to-fuel, or fuel-to-waste switch. All calibration and drift 
checks must be performed as of the effective date of the waste-to-fuel, 
or fuel-to-waste switch. Relative accuracy tests must be performed as 
of the performance test deadline for PM CEMS (if PM CEMS are elected to 
demonstrate continuous compliance with the particulate matter emission 
limits). Relative accuracy testing for other CEMS need not be repeated 
if that testing was previously performed consistent with Clean Air Act 
section 112 monitoring requirements or monitoring requirements under 
this subpart.
    (b) You must conduct an annual performance test for the pollutants 
listed in table 1 of this subpart or tables 5 through 8 of this subpart 
and opacity for each CISWI unit as required under Sec.  60.2125. The 
annual performance test must be conducted using the test methods listed 
in table 1 of this subpart or tables 5 through 8 of this subpart and 
the procedures in Sec.  60.2125. Annual performance tests are not 
required if you use CEMS or continuous opacity monitoring systems to 
determine compliance.
    (c) You must continuously monitor the operating parameters 
specified in Sec.  60.2110 or established under Sec.  60.2115 and as 
specified in Sec.  60.2170. Use 3-hour block average values to 
determine compliance (except for baghouse leak detection system alarms) 
unless a different averaging period is established under Sec.  60.2115 
or, for energy recovery units, where the averaging time for each 
operating parameter is a 30-day rolling, calculated each hour as the 
average of the previous 720 operating hours. Operation above the 
established maximum, below the established minimum, or outside the 
allowable range of operating limits specified in paragraph (a) of this 
section constitutes a deviation from your operating limits established 
under this subpart, except during performance tests conducted to 
determine compliance with the emission and operating limits or to 
establish new operating limits. Operating limits are confirmed or 
reestablished during performance tests.
    (d) You must burn only the same types of waste and fuels used to 
establish subcategory applicability (for energy recovery units) and 
operating limits during the performance test.
* * * * *
    (f) For energy recovery units, you must conduct an annual 
performance test for opacity (except where particulate matter CEMS or 
continuous opacity monitoring systems are used are used) and the 
pollutants listed in table 6 of this subpart.
    (g) You may elect to demonstrate continuous compliance with the 
carbon monoxide emission limit using a carbon monoxide CEMS according 
to the following requirements:
    (1) You must measure emissions according to Sec.  60.13 to 
calculate 1-hour arithmetic averages, corrected to 7 percent oxygen. 
CEMS data during startup and shutdown, as defined in this subpart, are 
not corrected to 7 percent oxygen, and are measured at stack oxygen 
content. You must demonstrate initial compliance with the carbon 
monoxide emissions limit using a 30-day rolling average of these 1-hour 
arithmetic average emission concentrations, including CEMS data during 
startup and shutdown as defined in this subpart, calculated using 
Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR 
part 60, appendix A-7 of this part.
    (2) Operate the carbon monoxide CEMS in accordance with the 
requirements of performance specification 4A of appendix B of this part 
and quality assurance procedure 1 of appendix F of this part.
    (h) Coal and liquid/gas energy recovery units with average annual 
heat input rates greater than or equal to 250 MMBtu/hr may elect to 
demonstrate continuous compliance with the particulate matter emissions 
limit using a particulate matter CEMS according to the procedures in 
Sec.  60.2165(n) instead of the particulate matter continuous parameter 
monitoring system (CPMS) specified in Sec.  60.2145. Coal and liquid/
gas energy recovery units with annual average heat input rates less 
than 250 MMBtu/hr, incinerators, and small remote incinerators may also 
elect to demonstrate compliance using a particulate matter CEMS 
according to the procedures in Sec.  60.2165(n) instead of particulate 
matter testing with EPA Method 5 at 40 CFR part 60, appendix A-3 and, 
if applicable, the continuous opacity monitoring requirements in 
paragraph (i) of this section.
    (i) For energy recovery units with annual average heat input rates 
greater than or equal to 10 MMBtu/hour and less than 250 MMBtu/hr, you 
must install, operate, certify and maintain a continuous opacity 
monitoring system (COMS) according to the procedures in Sec.  60.2165.
    (j) For waste-burning kilns, you must conduct an annual performance 
test for cadmium, lead, dioxins/furans and hydrogen chloride as listed 
in table 7 of this subpart. You must determine compliance with hydrogen 
chloride using a hydrogen chloride CEMS if you do not use an acid gas 
wet scrubber or dry scrubber. You must determine compliance with 
nitrogen oxides, sulfur dioxide, and carbon monoxide using CEMS. You 
must determine compliance with particulate matter using CPMS. You must 
determine compliance with the mercury emissions limit using a mercury 
CEMS according to the following requirements:
    (1) Operate a CEMS system in accordance with performance 
specification 12A of 40 CFR part 60, appendix B or a sorbent trap based 
integrated monitor in accordance with performance specification 12B of 
40 CFR part 60, appendix B. The duration of the performance test must 
be a calendar month. For each calendar month in which the waste-burning 
kiln operates, hourly mercury concentration data, and stack gas 
volumetric flow rate data must be obtained. You must demonstrate 
compliance with the mercury emissions limit using a 30-day rolling 
average of these 1-hour mercury concentrations, including CEMS data 
during startup and shutdown as defined in this subpart, calculated 
using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 
CFR part 60, appendix A-7 of this part. CEMS data during startup and 
shutdown, as defined in this subpart, are not corrected to 7 percent 
oxygen, and are measured at stack oxygen content.
    (2) Owners or operators using a mercury CEMS must install, operate,

[[Page 9183]]

calibrate, and maintain an instrument for continuously measuring and 
recording the mercury mass emissions rate to the atmosphere according 
to the requirements of performance specifications 6 and 12A of 40 CFR 
part 60, appendix B, and quality assurance procedure 6 of 40 CFR part 
60, appendix F.
    (3) The owner or operator of a waste-burning kiln must demonstrate 
initial compliance by operating a mercury CEMS while the raw mill of 
the in-line kiln/raw mill is operating under normal conditions and 
including at least one period when the raw mill is off.
* * * * *
    (m) * * *
    (2) Use a flow sensor with a measurement sensitivity at full scale 
of no greater than 2 percent.
* * * * *
    (n) * * *
    (4) Perform checks at the frequency outlined in your site-specific 
monitoring plan to ensure pressure measurements are not obstructed 
(e.g., check for pressure tap pluggage daily).
* * * * *
    (s) For facilities using a CEMS to demonstrate compliance with the 
sulfur dioxide emission limit, compliance with the sulfur dioxide 
emission limit may be demonstrated by using the CEMS specified in Sec.  
60.2165 to measure sulfur dioxide. CEMS data during startup and 
shutdown, as defined in this subpart, are not corrected to 7 percent 
oxygen, and are measured at stack oxygen content. You must calculate a 
30-day rolling average of the 1-hour arithmetic average emission 
concentrations, including CEMS data during startup and shutdown as 
defined in this subpart, calculated using Equation 19-19 in section 
12.4.1 of EPA Reference Method 19 at 40 CFR part 60, Appendix A-7 of 
this part. The sulfur dioxide CEMS must be operated according to 
performance specification 2 in appendix B of this part and must follow 
the procedures and methods specified in this paragraph (s). For sources 
that have actual inlet emissions less than 100 parts per million dry 
volume, the relative accuracy criterion for inlet sulfur dioxide CEMS 
should be no greater than 20 percent of the mean value of the reference 
method test data in terms of the units of the emission standard, or 5 
parts per million dry volume absolute value of the mean difference 
between the reference method and the CEMS, whichever is greater.
    (1) During each relative accuracy test run of the CEMS required by 
performance specification 2 in appendix B of this part, collect sulfur 
dioxide and oxygen (or carbon dioxide) data concurrently (or within a 
30- to 60-minute period) with both the CEMS and the test methods 
specified in paragraphs (s)(1)(i) and (ii) of this section.
* * * * *
    (2) The span value of the CEMS at the inlet to the sulfur dioxide 
control device must be 125 percent of the maximum estimated hourly 
potential sulfur dioxide emissions of the unit subject to this rule. 
The span value of the CEMS at the outlet of the sulfur dioxide control 
device must be 50 percent of the maximum estimated hourly potential 
sulfur dioxide emissions of the unit subject to this rule.
* * * * *
    (t) For facilities using a CEMS to demonstrate continuous 
compliance with the nitrogen oxides emission limit, compliance with the 
nitrogen oxides emission limit may be demonstrated by using the CEMS 
specified in Sec.  60.2165 to measure nitrogen oxides. CEMS data during 
startup and shutdown, as defined in this subpart, are not corrected to 
7 percent oxygen, and are measured at stack oxygen content. You must 
calculate a 30-day rolling average of the 1-hour arithmetic average 
emission concentrations, including CEMS data during startup and 
shutdown as defined in this subpart, using Equation 19-19 in section 
12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-7 of 
this part. The nitrogen oxides CEMS must be operated according to 
performance specification 2 in appendix B of this part and must follow 
the procedures and methods specified in paragraphs (t)(1) through (5) 
of this section.
    (1) During each relative accuracy test run of the CEMS required by 
performance specification 2 of appendix B of this part, collect 
nitrogen oxides and oxygen (or carbon dioxide) data concurrently (or 
within a 30- to 60-minute period) with both the CEMS and the test 
methods specified in paragraphs (t)(1)(i) and (ii) of this section.
* * * * *
    (u) For facilities using a CEMS to demonstrate continuous 
compliance with any of the emission limits of this subpart, you must 
complete the following:
    (1) Demonstrate compliance with the appropriate emission limit(s) 
using a 30-day rolling average of 1-hour arithmetic average emission 
concentrations, including CEMS data during startup and shutdown as 
defined in this subpart, calculated using Equation 19-19 in section 
12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-7 of 
this part. CEMS data during startup and shutdown, as defined in the 
subpart, are not corrected to 7 percent oxygen, and are measured at 
stack oxygen content.
    (2) Operate all CEMS in accordance with the applicable procedures 
under appendices B and F of this part.
* * * * *
    (w) For energy recovery units with a design heat input capacity of 
100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, 
you must install, operate, and maintain a oxygen analyzer system as 
defined in Sec.  60.2265 according to the procedures in paragraphs 
(w)(1) through (4) of this section.
    (1) The oxygen analyzer system must be installed by the initial 
performance test date specified in Sec.  60.2675.
    (2) You must operate the oxygen trim system within compliance with 
paragraph (w)(3) of this section at all times.
    (3) You must maintain the oxygen level such that the 30-day rolling 
average that is established as the operating limit for oxygen is not 
below the lowest hourly average oxygen concentration measured during 
the most recent CO performance test.
    (4) You must calculate and record a 30-day rolling average oxygen 
concentration using Equation 19-19 in section 12.4.1 of EPA Reference 
Method 19 of Appendix A-7 of this part.
    (x) For energy recovery units with annual average heat input rates 
greater than or equal to 250 MMBtu/hour and waste-burning kilns, you 
must install, calibrate, maintain, and operate a PM CPMS and record the 
output of the system as specified in paragraphs (x)(1) through (8) of 
this section. For other energy recovery units, you may elect to use PM 
CPMS operated in accordance with this section. PM CPMS are suitable in 
lieu of using other CMS for monitoring PM compliance (e.g., bag leak 
detectors, ESP secondary power, PM scrubber pressure).
    (1) Install, calibrate, operate, and maintain your PM CPMS 
according to the procedures in your approved site-specific monitoring 
plan developed in accordance with Sec.  60.2145(l) and (x)(1)(i) 
through (iii) of this section.
    (i) The operating principle of the PM CPMS must be based on in-
stack or extractive light scatter, light scintillation, beta 
attenuation, or mass accumulation detection of the exhaust gas or 
representative sample. The reportable measurement output from the PM 
CPMS must be expressed as milliamps.
    (ii) The PM CPMS must have a cycle time (i.e., period required to 
complete sampling, measurement, and reporting

[[Page 9184]]

for each measurement) no longer than 60 minutes.
    (iii) The PM CPMS must be capable of detecting and responding to 
particulate matter concentrations of no greater than 0.5 mg/actual 
cubic meter.
    (2) During the initial performance test or any such subsequent 
performance test that demonstrates compliance with the PM limit, you 
must adjust the site-specific operating limit in accordance with the 
results of the performance test according to the procedures specified 
in Sec.  60.2110.
    (3) Collect PM CPMS hourly average output data for all energy 
recovery unit or waste-burning kiln operating hours. Express the PM 
CPMS output as milliamps.
    (4) Calculate the arithmetic 30-day rolling average of all of the 
hourly average PM CPMS output collected during all energy recovery unit 
or waste-burning kiln operating hours data (milliamps).
    (5) You must collect data using the PM CPMS at all times the energy 
recovery unit or waste-burning kiln is operating and at the intervals 
specified in paragraph (x)(1)(ii) of this section, except for periods 
of monitoring system malfunctions, repairs associated with monitoring 
system malfunctions, required monitoring system quality assurance or 
quality control activities (including, as applicable, calibration 
checks and required zero and span adjustments), and any scheduled 
maintenance as defined in your site-specific monitoring plan.
    (6) You must use all the data collected during all energy recovery 
unit or waste-burning kiln operating hours in assessing the compliance 
with your operating limit except:
    (i) Any data collected during monitoring system malfunctions, 
repairs associated with monitoring system malfunctions, or required 
monitoring system quality assurance or quality control activities 
conducted during monitoring system malfunctions are not used in 
calculations (report any such periods in your annual deviation report);
    (ii) Any data collected during periods when the monitoring system 
is out of control as specified in your site-specific monitoring plan, 
repairs associated with periods when the monitoring system is out of 
control, or required monitoring system quality assurance or quality 
control activities conducted during out-of-control periods are not used 
in calculations (report emissions or operating levels and report any 
such periods in your annual deviation report);
    (iii) Any PM CPMS data recorded during periods of CEMS data during 
startup and shutdown, as defined in this subpart.
    (7) You must record and make available upon request results of PM 
CPMS system performance audits, as well as the dates and duration of 
periods from when the PM CPMS is out of control until completion of the 
corrective actions necessary to return the PM CPMS to operation 
consistent with your site-specific monitoring plan.
    (8) For any deviation of the 30-day rolling average PM CPMS average 
value from the established operating parameter limit, you must:
    (i) Within 48 hours of the deviation, visually inspect the air 
pollution control device;
    (ii) If inspection of the air pollution control device identifies 
the cause of the deviation, take corrective action as soon as possible 
and return the PM CPMS measurement to within the established value; and
    (iii) Within 30 days of the deviation or at the time of the annual 
compliance test, whichever comes first, conduct a PM emissions 
compliance test to determine compliance with the PM emissions limit and 
to verify. Within 45 days of the deviation, you must re-establish the 
CPMS operating limit. You are not required to conduct additional 
testing for any deviations that occur between the time of the original 
deviation and the PM emissions compliance test required under this 
paragraph.
    (iv) PM CPMS deviations leading to more than four required 
performance tests in a 12-month process operating period (rolling 
monthly) constitute a violation of this subpart.

0
15. Section 60.2165 is amended by:
0
a. Revising paragraph (c).
0
b. Revising paragraphs (g) through (k).
0
c. Revising paragraphs (l)(1) and (2).
0
d. Revising paragraph (m) introductory text.
0
e. Revising paragraph (n) introductory text.
0
f. Removing paragraph (n)(14).
0
g. Revising paragraphs (n)(6), (n)(7), (n)(9) through (n)(11), (n)(12) 
introductory text, and (n)(12)(ii).
0
h. Revising paragraphs (o)(1) and (2).
0
i. Adding paragraphs (q), (r), and (s).
    The revisions and additions read as follows:


Sec.  60.2165  What monitoring equipment must I install and what 
parameters must I monitor?

* * * * *
    (c) If you are using something other than a wet scrubber, activated 
carbon, selective non-catalytic reduction, an electrostatic 
precipitator, or a dry scrubber to comply with the emission limitations 
under Sec.  60.2105, you must install, calibrate (to the manufacturers' 
specifications), maintain, and operate the equipment necessary to 
monitor compliance with the site-specific operating limits established 
using the procedures in Sec.  60.2115.
* * * * *
    (g) For waste-burning kilns not equipped with a wet scrubber or dry 
scrubber, in place of hydrogen chloride testing with EPA Method 321 at 
40 CFR part 63, appendix A, an owner or operator must install, 
calibrate, maintain, and operate a CEMS for monitoring hydrogen 
chloride emissions discharged to the atmosphere and record the output 
of the system. To demonstrate continuous compliance with the hydrogen 
chloride emissions limit for units other than waste-burning kilns not 
equipped with a wet scrubber or dry scrubber, a facility may substitute 
use of a hydrogen chloride CEMS for conducting the hydrogen chloride 
annual performance test, monitoring the minimum hydrogen chloride 
sorbent flow rate, monitoring the minimum scrubber liquor pH, and 
monitoring minimum injection rate.
    (h) To demonstrate continuous compliance with the particulate 
matter emissions limit, a facility may substitute use of a particulate 
matter CEMS for conducting the PM annual performance test and using 
other CMS for monitoring PM compliance (e.g., bag leak detectors, ESP 
secondary power, PM scrubber pressure).
    (i) To demonstrate continuous compliance with the dioxin/furan 
emissions limit, a facility may substitute use of a continuous 
automated sampling system for the dioxin/furan annual performance test. 
You must record the output of the system and analyze the sample 
according to EPA Method 23 at 40 CFR part 60, appendix A-7 of this 
part. This option to use a continuous automated sampling system takes 
effect on the date a final performance specification applicable to 
dioxin/furan from continuous monitors is published in the Federal 
Register. The owner or operator who elects to continuously sample 
dioxin/furan emissions instead of sampling and testing using EPA Method 
23 at 40 CFR part 60, appendix A-7 must install, calibrate, maintain, 
and operate a continuous automated sampling system and must comply with 
the requirements specified in Sec.  60.58b(p) and (q). A facility may 
substitute continuous dioxin/furan monitoring for the minimum sorbent 
flow rate, if activated carbon sorbent

[[Page 9185]]

injection is used solely for compliance with the dioxin/furan emission 
limit.
    (j) To demonstrate continuous compliance with the mercury emissions 
limit, a facility may substitute use of a continuous automated sampling 
system for the mercury annual performance test. You must record the 
output of the system and analyze the sample at set intervals using any 
suitable determinative technique that can meet performance 
specification 12B. The owner or operator who elects to continuously 
sample mercury emissions instead of sampling and testing using EPA 
Reference Method 29 or 30B at 40 CFR part 60, appendix A-8 of this 
part, ASTM D6784-02 (Reapproved 2008) (incorporated by reference, see 
Sec.  60.17), or an approved alternative method for measuring mercury 
emissions, must install, calibrate, maintain, and operate a continuous 
automated sampling system and must comply with performance 
specification 12A and quality assurance procedure 5, as well as the 
requirements specified in Sec.  60.58b(p) and (q). A facility may 
substitute continuous mercury monitoring for the minimum sorbent flow 
rate, if activated carbon sorbent injection is used solely for 
compliance with the mercury emission limit.
    (k) To demonstrate continuous compliance with the nitrogen oxides 
emissions limit, a facility may substitute use of a CEMS for the 
nitrogen oxides annual performance test to demonstrate compliance with 
the nitrogen oxides emissions limits and monitoring the charge rate, 
secondary chamber temperature, and reagent flow for selective 
noncatalytic reduction, if applicable.
    (1) Install, calibrate, maintain, and operate a CEMS for measuring 
nitrogen oxides emissions discharged to the atmosphere and record the 
output of the system. The requirements under performance specification 
2 of appendix B of this part, the quality assurance procedure one of 
appendix F of this part and the procedures under Sec.  60.13 must be 
followed for installation, evaluation, and operation of the CEMS.
    (2) Following the date that the initial performance test for 
nitrogen oxides is completed or is required to be completed under Sec.  
60.2125, compliance with the emission limit for nitrogen oxides 
required under Sec.  60.52b(d) must be determined based on the 30-day 
rolling average of the hourly emission concentrations using CEMS outlet 
data. The 1-hour arithmetic averages must be expressed in parts per 
million by volume corrected to 7 percent oxygen (dry basis) and used to 
calculate the 30-day rolling average concentrations. CEMS data during 
startup and shutdown, as defined in this subpart, are not corrected to 
7 percent oxygen, and are measured at stack oxygen content. The 1-hour 
arithmetic averages must be calculated using the data points required 
under Sec.  60.13(e)(2).
    (l) * * *
    (1) Install, calibrate, maintain, and operate a CEMS for measuring 
sulfur dioxide emissions discharged to the atmosphere and record the 
output of the system. The requirements under performance specification 
2 of appendix B of this part, the quality assurance requirements of 
procedure one of appendix F of this part and procedures under Sec.  
60.13 must be followed for installation, evaluation, and operation of 
the CEMS.
    (2) Following the date that the initial performance test for sulfur 
dioxide is completed or is required to be completed under Sec.  
60.2125, compliance with the sulfur dioxide emission limit may be 
determined based on the 30-day rolling average of the hourly arithmetic 
average emission concentrations using CEMS outlet data. The 1-hour 
arithmetic averages must be expressed in parts per million corrected to 
7 percent oxygen (dry basis) and used to calculate the 30-day rolling 
average emission concentrations. CEMS data during startup and shutdown, 
as defined in this subpart, are not corrected to 7 percent oxygen, and 
are measured at stack oxygen content. The 1-hour arithmetic averages 
must be calculated using the data points required under Sec.  
60.13(e)(2).
    (m) For energy recovery units over 10 MMBtu/hr but less than 250 
MMBtu/hr annual average heat input rates that do not use a wet 
scrubber, fabric filter with bag leak detection system, or particulate 
matter CEMS, you must install, operate, certify, and maintain a 
continuous opacity monitoring system according to the procedures in 
paragraphs (m)(1) through (5) of this section by the compliance date 
specified in Sec.  60.2105. Energy recovery units that use a CEMS to 
demonstrate initial and continuing compliance according to the 
procedures in Sec.  60.2165(n) are not required to install a continuous 
opacity monitoring system and must perform the annual performance tests 
for the opacity consistent with Sec.  60.2145(f).
* * * * *
    (n) For coal and liquid/gas energy recovery units, incinerators, 
and small remote incinerators, an owner or operator may elect to 
install, calibrate, maintain, and operate a CEMS for monitoring 
particulate matter emissions discharged to the atmosphere and record 
the output of the system. The owner or operator of an affected facility 
who continuously monitors particulate matter emissions instead of 
conducting performance testing using EPA Method 5 at 40 CFR part 60, 
appendix A-3 or, as applicable, monitor with a particulate matter CPMS 
according to paragraph (r) of this section, must install, calibrate, 
maintain, and operate a CEMS and must comply with the requirements 
specified in paragraphs (n)(1) through (13) of this section.
* * * * *
    (6) The owner or operator of an affected facility must conduct an 
initial performance test for particulate matter emissions as required 
under Sec.  60.2125. Compliance with the particulate matter emission 
limit, if PM CEMS are elected for demonstrating compliance, must be 
determined by using the CEMS specified in this paragraph (n) to measure 
particulate matter. You must calculate a 30-day rolling average of 1-
hour arithmetic average emission concentrations, including CEMS data 
during startup and shutdown, as defined in this subpart, using Equation 
19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, 
appendix A-7.
    (7) Compliance with the particulate matter emission limit must be 
determined based on the 30-day rolling average calculated using 
Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR 
part 60, appendix A-7 from the 1-hour arithmetic average CEMS outlet 
data.
* * * * *
    (9) The 1-hour arithmetic averages required under paragraph (n)(7) 
of this section must be expressed in milligrams per dry standard cubic 
meter corrected to 7 percent oxygen (dry basis) and must be used to 
calculate the 30-day rolling average emission concentrations. CEMS data 
during startup and shutdown, as defined in this subpart, are not 
corrected to 7 percent oxygen, and are measured at stack oxygen 
content. The 1-hour arithmetic averages must be calculated using the 
data points required under Sec.  60.13(e)(2).
    (10) All valid CEMS data must be used in calculating average 
emission concentrations even if the minimum CEMS data requirements of 
paragraph (n)(8) of this section are not met.
    (11) The CEMS must be operated according to performance 
specification 11 in appendix B of this part.
    (12) During each relative accuracy test run of the CEMS required by 
performance specification 11 in appendix B of this part, particulate 
matter and oxygen (or carbon dioxide) data must be collected 
concurrently (or

[[Page 9186]]

within a 30- to 60-minute period) by both the CEMS and the following 
test methods.
* * * * *
    (ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B, 
as applicable, must be used.
* * * * *
    (o) * * *
    (1) Install, calibrate, maintain, and operate a CEMS for measuring 
carbon monoxide emissions discharged to the atmosphere and record the 
output of the system. The requirements under performance specification 
4B of appendix B of this part, the quality assurance procedure 1 of 
appendix F of this part and the procedures under Sec.  60.13 must be 
followed for installation, evaluation, and operation of the CEMS.
    (2) Following the date that the initial performance test for carbon 
monoxide is completed or is required to be completed under Sec.  
60.2140, compliance with the carbon monoxide emission limit may be 
determined based on the 30-day rolling average of the hourly arithmetic 
average emission concentrations, including CEMS data during startup and 
shutdown as defined in this subpart, using CEMS outlet data. Except for 
CEMS data during startup and shutdown, as defined in this subpart, the 
1-hour arithmetic averages must be expressed in parts per million 
corrected to 7 percent oxygen (dry basis) and used to calculate the 30-
day rolling average emission concentrations. CEMS data during startup 
and shutdown, as defined in this subpart, are not corrected to 7 
percent oxygen, and are measured at stack oxygen content. The 1-hour 
arithmetic averages must be calculated using the data points required 
under Sec.  60.13(e)(2).
* * * * *
    (q) For energy recovery units with a design heat input capacity of 
100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, 
you must install, operate, and maintain a oxygen analyzer system as 
defined in Sec.  60.2265 according to the procedures in paragraphs 
(q)(1) through (4) of this section.
    (1) The oxygen analyzer system must be installed by the initial 
performance test date specified in Sec.  60.2675.
    (2) You must operate the oxygen trim system within compliance with 
paragraph (q)(3) of this section at all times.
    (3) You must maintain the oxygen level such that the 30-day rolling 
average that is established as the operating limit for oxygen according 
to paragraph (q)(4) or this section is not below the lowest hourly 
average oxygen concentration measured during the most recent CO 
performance test.
    (4) You must calculate and record a 30-day rolling average oxygen 
concentration using Equation 19-19 in section 12.4.1 of EPA Reference 
Method 19 of Appendix A-7 of this part.
    (r) For energy recovery units with annual average heat input rates 
greater than or equal to 250 MMBtu/hour and waste-burning kilns, you 
must install, calibrate, maintain, and operate a PM CPMS and record the 
output of the system as specified in paragraphs (r)(1) through (8) of 
this section. If you elect to use a particulate matter CEMS as 
specified in paragraph (n) of this section, you are not required to use 
a PM CPMS to monitor particulate matter emissions. For other energy 
recovery units, you may elect to use PM CPMS operated in accordance 
with this section. PM CPMS are suitable in lieu of using other CMS for 
monitoring PM compliance (e.g., bag leak detectors, ESP secondary 
power, PM scrubber pressure).
    (1) Install, calibrate, operate, and maintain your PM CPMS 
according to the procedures in your approved site-specific monitoring 
plan developed in accordance with Sec.  60.2145(l) and (r)(1)(i) 
through (iii) of this section.
    (i) The operating principle of the PM CPMS must be based on in-
stack or extractive light scatter, light scintillation, beta 
attenuation, or mass accumulation detection of PM in the exhaust gas or 
representative sample. The reportable measurement output from the PM 
CPMS must be expressed as milliamps.
    (ii) The PM CPMS must have a cycle time (i.e., period required to 
complete sampling, measurement, and reporting for each measurement) no 
longer than 60 minutes.
    (iii) The PM CPMS must be capable of detecting and responding to 
particulate matter concentrations of no greater than 0.5 mg/actual 
cubic meter.
    (2) During the initial performance test or any such subsequent 
performance test that demonstrates compliance with the PM limit, you 
must adjust the site-specific operating limit in accordance with the 
results of the performance test according to the procedures specified 
in Sec.  60.2110.
    (3) Collect PM CPMS hourly average output data for all energy 
recovery unit or waste-burning kiln operating hours. Express the PM 
CPMS output as milliamps.
    (4) Calculate the arithmetic 30-day rolling average of all of the 
hourly average PM CPMS output collected during all energy recovery unit 
or waste-burning kiln operating hours data (milliamps).
    (5) You must collect data using the PM CPMS at all times the energy 
recovery unit or waste-burning kiln is operating and at the intervals 
specified in paragraph (r)(1)(ii) of this section, except for periods 
of monitoring system malfunctions, repairs associated with monitoring 
system malfunctions, required monitoring system quality assurance or 
quality control activities (including, as applicable, calibration 
checks and required zero and span adjustments), and any scheduled 
maintenance as defined in your site-specific monitoring plan.
    (6) You must use all the data collected during all energy recovery 
unit or waste-burning kiln operating hours in assessing the compliance 
with your operating limit except:
    (i) Any data collected during monitoring system malfunctions, 
repairs associated with monitoring system malfunctions, or required 
monitoring system quality assurance or quality control activities 
conducted during monitoring system malfunctions are not used in 
calculations (report any such periods in your annual deviation report);
    (ii) Any data collected during periods when the monitoring system 
is out of control as specified in your site-specific monitoring plan, 
repairs associated with periods when the monitoring system is out of 
control, or required monitoring system quality assurance or quality 
control activities conducted during out-of-control periods are not used 
in calculations (report emissions or operating levels and report any 
such periods in your annual deviation report);
    (iii) Any PM CPMS data recorded during periods of CEMS data during 
startup and shutdown, as defined in this subpart.
    (7) You must record and make available upon request results of PM 
CPMS system performance audits, as well as the dates and duration of 
periods from when the PM CPMS is out of control until completion of the 
corrective actions necessary to return the PM CPMS to operation 
consistent with your site-specific monitoring plan.
    (8) For any deviation of the 30-day rolling average PM CPMS average 
value from the established operating parameter limit, you must:
    (i) Within 48 hours of the deviation, visually inspect the air 
pollution control device;
    (ii) If inspection of the air pollution control device identifies 
the cause of the deviation, take corrective action as soon as possible 
and return the PM CPMS

[[Page 9187]]

measurement to within the established value; and
    (iii) Within 30 days of the deviation or at the time of the annual 
compliance test, whichever comes first, conduct a PM emissions 
compliance test to determine compliance with the PM emissions limit and 
to verify. Within 45 days of the deviation, you must re-establish the 
CPMS operating limit. You are not required to conduct additional 
testing for any deviations that occur between the time of the original 
deviation and the PM emissions compliance test required under this 
paragraph.
    (iv) PM CPMS deviations leading to more than four required 
performance tests in a 12-month process operating period (rolling 
monthly) constitute a violation of this subpart.
    (s) If you use a dry scrubber to comply with the emission limits of 
this subpart, you must monitor the injection rate of each sorbent and 
maintain the 3-hour block averages at or above the operating limits 
established during the hydrogen chloride performance test.
0
16. Section 60.2170 is amended by revising paragraph (b) to read as 
follows:


Sec.  60.2170  Is there a minimum amount of monitoring data I must 
obtain?

* * * * *
    (b) You may not use data recorded during monitoring system 
malfunctions or out-of-control periods, repairs associated with 
monitoring system malfunctions or out-of-control periods, or required 
monitoring system quality assurance or control activities in 
calculations used to report emissions or operating levels. You must use 
all the data collected during all other periods in assessing the 
operation of the control device and associated control system.
* * * * *

0
17. Section 60.2175 is amended by:
0
a. Revising the introductory text.
0
b. Revising paragraph (b)(5).
0
c. Revising paragraph (e).
0
d. Revising paragraph (p)(4).
0
e. Adding paragraphs (p)(8) and (p)(9).
0
f. Revising paragraphs (v) and (w).
0
g. Adding paragraph (x).
    The revisions and additions read as follows:


Sec.  60.2175  What records must I keep?

    You must maintain the items (as applicable) as specified in 
paragraphs (a), (b), and (e) through (x) of this section for a period 
of at least 5 years:
* * * * *
    (b) * * *
    (5) For affected CISWI units that establish operating limits for 
controls other than wet scrubbers under Sec.  60.2110(d) through (g) or 
Sec.  60.2115, you must maintain data collected for all operating 
parameters used to determine compliance with the operating limits. For 
energy recovery units using activated carbon injection or a dry 
scrubber, you must also maintain records of the load fraction and 
corresponding sorbent injection rate records.
* * * * *
    (e) Identification of calendar dates and times for which data show 
a deviation from the operating limits in table 2 of this subpart or a 
deviation from other operating limits established under Sec.  
60.2110(d) through (g) or Sec.  60.2115 with a description of the 
deviations, reasons for such deviations, and a description of 
corrective actions taken.
* * * * *
    (p) * * *
    (4) All 1-hour average concentrations of carbon monoxide emissions. 
You must indicate which data are CEMS data during startup and shutdown.
* * * * *
    (8) All 1-hour average percent oxygen concentrations.
    (9) All 1-hour average PM CPMS readings or particulate matter CEMS 
outputs.
* * * * *
    (v) For operating units that combust non-hazardous secondary 
materials that have been determined not to be solid waste pursuant to 
Sec.  241.3(b)(1) of this chapter, you must keep a record which 
documents how the secondary material meets each of the legitimacy 
criteria under Sec.  241.3(d)(1). If you combust a fuel that has been 
processed from a discarded non-hazardous secondary material pursuant to 
Sec.  241.3(b)(4) of this chapter, you must keep records as to how the 
operations that produced the fuel satisfies the definition of 
processing in Sec.  241.2 and each of the legitimacy criteria of Sec.  
241.3(d)(1) of this chapter. If the fuel received a non-waste 
determination pursuant to the petition process submitted under Sec.  
241.3(c) of this chapter, you must keep a record that documents how the 
fuel satisfies the requirements of the petition process. For operating 
units that combust non-hazardous secondary materials as fuel per Sec.  
241.4, you must keep records documenting that the material is a listed 
non-waste under Sec.  241.4(a).
    (w) Records of the criteria used to establish that the unit 
qualifies as a small power production facility under section 3(17)(C) 
of the Federal Power Act (16 U.S.C. 796(17)(C)) and that the waste 
material the unit is proposed to burn is homogeneous.
    (x) Records of the criteria used to establish that the unit 
qualifies as a cogeneration facility under section 3(18)(B) of the 
Federal Power Act (16 U.S.C. 796(18)(B)) and that the waste material 
the unit is proposed to burn is homogeneous.

0
18. Section 60.2210 is amended by revising paragraph (m) introductory 
text and paragraph (n) to read as follows:


Sec.  60.2210  What information must I include in my annual report?

* * * * *
    (m) If there were periods during which the continuous monitoring 
system, including the CEMS, was out of control as specified in 
paragraph (o) of this section, the annual report must contain the 
following information for each deviation from an emission or operating 
limitation occurring for a CISWI unit for which you are using a 
continuous monitoring system to comply with the emission and operating 
limitations in this subpart.
* * * * *
    (n) If there were periods during which the continuous monitoring 
system, including the CEMS, was not out of control as specified in 
paragraph (o) of this section, a statement that there were not periods 
during which the continuous monitoring system was out of control during 
the reporting period.
* * * * *

0
19. Section 60.2235 is revised to read as follows:


Sec.  60.2235  In what form can I submit my reports?

    (a) Submit initial, annual, and deviation reports electronically or 
in paper format, postmarked on or before the submittal due dates.
    (b) Submit results of performance tests and CEMS performance 
evaluation tests as follows.
    (1) Within 60 days after the date of completing each performance 
test as required by this subpart, you must submit the results of the 
performance tests required by this subpart to EPA's WebFIRE database by 
using the Compliance and Emissions Data Reporting Interface (CEDRI) 
that is accessed through EPA's Central Data Exchange (CDX)(www.epa.gov/cdx). Performance test data must be submitted in the file format 
generated through use of EPA's Electronic Reporting Tool (ERT) (see 
http://www.epa.gov/ttn/chief/ert/index.html). Only data collected using 
test methods on the ERT Web site are subject to this requirement for 
submitting reports electronically to WebFIRE. Owners or operators who 
claim that some of the information being

[[Page 9188]]

submitted for performance tests is confidential business information 
(CBI) must submit a complete ERT file including information claimed to 
be CBI on a compact disk, flash drive, or other commonly used 
electronic storage media to EPA. The electronic media must be clearly 
marked as CBI and mailed to U.S. EPA/OAPQS/CORE CBI Office, Attention: 
WebFIRE Administrator, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. 
The same ERT file with the CBI omitted must be submitted to EPA via CDX 
as described earlier in this paragraph. At the discretion of the 
delegated authority, you must also submit these reports, including the 
confidential business information, to the delegated authority in the 
format specified by the delegated authority. For any performance test 
conducted using test methods that are not listed on the ERT Web site, 
the owner or operator shall submit the results of the performance test 
in paper submissions to the Administrator.
    (2) Within 60 days after the date of completing each CEMS 
performance evaluation test, as defined in this subpart and required by 
this subpart, you must submit the relative accuracy test audit (RATA) 
data electronically into EPA's Central Data Exchange by using CEDRI as 
mentioned in paragraph (b)(1) of this section. Only RATA pollutants 
that can be documented with the ERT (as listed on the ERT Web site) are 
subject to this requirement. For any performance evaluations with no 
corresponding RATA pollutants listed on the ERT Web site, the owner or 
operator shall submit the results of the performance evaluation in 
paper submissions to the Administrator.

0
20. Section 60.2265 is amended by:
0
a. Adding in alphabetical order definitions for ``30-day rolling 
average,'' ``Annual heat input,'' ``Average annual heat input rate,'' 
``CEMS data during startup and shutdown,'' ``Contained gaseous 
material,'' ``Continuous emission monitoring system,'' ``Dry 
scrubber,'' ``Foundry sand thermal reclamation unit,'' ``Load 
fraction,'' ``Municipal solid waste or municipal type solid waste,'' 
``Oxygen analyzer system,'' ``Oxygen trim system,'' ``Responsible 
official,'' and ``Solid waste.''
0
b. Revising definitions for ``Chemical recovery unit,'' ``Commercial 
and industrial solid waste incineration (CISWI) unit,'' ``Continuous 
monitoring system (CMS),'' ``Cyclonic burn barrel,'' ``Energy recovery 
unit,'' ``Energy recovery unit designed to burn biomass (Biomass),'' 
``Incinerator,'' ``Modification or modified CISWI unit,'' ``Process 
change,'' ``Raw mill,'' ``Small, remote incinerator,'' ``Soil treatment 
unit,'' ``Solid waste incineration unit,'' ``Space heater,'' and 
``Waste-burning kiln.''
0
c. Removing the definition for ``Homogeneous wastes'' and ``Cyclonic 
barrel burner.''
    The revisions and additions read as follows:


Sec.  60.2265  What definitions must I know?

* * * * *
    30-day rolling average means the arithmetic mean of the previous 
720 hours of valid operating data. Valid data excludes periods when 
this unit is not operating. The 720 hours should be consecutive, but 
not necessarily continuous if operations are intermittent.
* * * * *
    Annual heat input means the heat input for the 12 months preceding 
the compliance demonstration.
* * * * *
    Average annual heat input rate means annual heat input divided by 
the hours of operation for the 12 months preceding the compliance 
demonstration.
* * * * *
    CEMS data during startup and shutdown means the following:
    (1) For incinerators, small remote incinerators, and energy 
recovery units: CEMS data collected during the first hours of a CISWI 
unit startup from a cold start until waste is fed to the unit and the 
hours of operation following the cessation of waste material being fed 
to the CISWI unit during a unit shutdown. For each startup event, the 
length of time that CEMS data may be claimed as being CEMS data during 
startup must be 48 operating hours or less. For each shutdown event, 
the length of time that CEMS data may be claimed as being CEMS data 
during shutdown must be 24 operating hours or less.
    (2) For waste-burning kilns: CEMS data collected during the periods 
of kiln operation that do not include normal operations. Startup begins 
when the kiln's induced fan is turned on and continues until continuous 
feed is introduced into the kiln, at which time the kiln is in normal 
operating mode. Shutdown begins when feed to the kiln is halted.
    Chemical recovery unit means combustion units burning materials to 
recover chemical constituents or to produce chemical compounds where 
there is an existing commercial market for such recovered chemical 
constituents or compounds. The following seven types of units are 
considered chemical recovery units:
    (1) Units burning only pulping liquors (i.e., black liquor) that 
are reclaimed in a pulping liquor recovery process and reused in the 
pulping process.
    (2) Units burning only spent sulfuric acid used to produce virgin 
sulfuric acid.
    (3) Units burning only wood or coal feedstock for the production of 
charcoal.
    (4) Units burning only manufacturing byproduct streams/residue 
containing catalyst metals that are reclaimed and reused as catalysts 
or used to produce commercial grade catalysts.
    (5) Units burning only coke to produce purified carbon monoxide 
that is used as an intermediate in the production of other chemical 
compounds.
    (6) Units burning only hydrocarbon liquids or solids to produce 
hydrogen, carbon monoxide, synthesis gas, or other gases for use in 
other manufacturing processes.
    (7) Units burning only photographic film to recover silver.
* * * * *
    Commercial and industrial solid waste incineration (CISWI) unit 
means any distinct operating unit of any commercial or industrial 
facility that combusts, or has combusted in the preceding 6 months, any 
solid waste as that term is defined in 40 CFR part 241. If the 
operating unit burns materials other than traditional fuels as defined 
in Sec.  241.2 that have been discarded, and you do not keep and 
produce records as required by Sec.  60.2175(v), the operating unit is 
a CISWI unit. While not all CISWI units will include all of the 
following components, a CISWI unit includes, but is not limited to, the 
solid waste feed system, grate system, flue gas system, waste heat 
recovery equipment, if any, and bottom ash system. The CISWI unit does 
not include air pollution control equipment or the stack. The CISWI 
unit boundary starts at the solid waste hopper (if applicable) and 
extends through two areas: The combustion unit flue gas system, which 
ends immediately after the last combustion chamber or after the waste 
heat recovery equipment, if any; and the combustion unit bottom ash 
system, which ends at the truck loading station or similar equipment 
that transfers the ash to final disposal. The CISWI unit includes all 
ash handling systems connected to the bottom ash handling system.
    Contained gaseous material means gases that are in a container when 
that container is combusted.
    Continuous emission monitoring system (CEMS) means the total 
equipment that may be required to meet

[[Page 9189]]

the data acquisition and availability requirements of this subpart, 
used to sample, condition (if applicable), analyze, and provide a 
record of emissions.
    Continuous monitoring system (CMS) means the total equipment, 
required under the emission monitoring sections in applicable subparts, 
used to sample and condition (if applicable), to analyze, and to 
provide a permanent record of emissions or process parameters. A 
particulate matter continuous parameter monitoring system (PM CPMS) is 
a type of CMS.
    Cyclonic burn barrel means a combustion device for waste materials 
that is attached to a 55 gallon, open-head drum. The device consists of 
a lid, which fits onto and encloses the drum, and a blower that forces 
combustion air into the drum in a cyclonic manner to enhance the mixing 
of waste material and air. A cyclonic burn barrel is not an 
incinerator, a waste-burning kiln, an energy recovery unit or a small, 
remote incinerator under this subpart.
* * * * *
    Dry scrubber means an add-on air pollution control system that 
injects dry alkaline sorbent (dry injection) or sprays an alkaline 
sorbent (spray dryer) to react with and neutralize acid gas in the 
exhaust stream forming a dry powder material. Sorbent injection systems 
in fluidized bed boilers and process heaters are included in this 
definition. A dry scrubber is a dry control system.
* * * * *
    Energy recovery unit means a combustion unit combusting solid waste 
(as that term is defined by the Administrator in 40 CFR part 241) for 
energy recovery. Energy recovery units include units that would be 
considered boilers and process heaters if they did not combust solid 
waste.
    Energy recovery unit designed to burn biomass (Biomass) means an 
energy recovery unit that burns solid waste, biomass, and non-coal 
solid materials but less than 10 percent coal, on a heat input basis on 
an annual average, either alone or in combination with liquid waste, 
liquid fuel or gaseous fuels.
* * * * *
    Foundry sand thermal reclamation unit means a type of part 
reclamation unit that removes coatings that are on foundry sand. A 
foundry sand thermal reclamation unit is not an incinerator, a waste-
burning kiln, an energy recovery unit or a small, remote incinerator 
under this subpart.
    Incinerator means any furnace used in the process of combusting 
solid waste (as that term is defined by the Administrator in 40 CFR 
part 241) for the purpose of reducing the volume of the waste by 
removing combustible matter. Incinerator designs include single chamber 
and two-chamber.
* * * * *
    Load fraction means the actual heat input of an energy recovery 
unit divided by heat input during the performance test that established 
the minimum sorbent injection rate or minimum activated carbon 
injection rate, expressed as a fraction (e.g., for 50 percent load the 
load fraction is 0.5).
* * * * *
    Modification or modified CISWI unit means a CISWI unit that has 
been changed later than August 7, 2013 and that meets one of two 
criteria:
    (1) The cumulative cost of the changes over the life of the unit 
exceeds 50 percent of the original cost of building and installing the 
CISWI unit (not including the cost of land) updated to current costs 
(current dollars). To determine what systems are within the boundary of 
the CISWI unit used to calculate these costs, see the definition of 
CISWI unit.
    (2) Any physical change in the CISWI unit or change in the method 
of operating it that increases the amount of any air pollutant emitted 
for which section 129 or section 111 of the Clean Air Act has 
established standards.
    Municipal solid waste or municipal-type solid waste means 
household, commercial/retail, or institutional waste. Household waste 
includes material discarded by residential dwellings, hotels, motels, 
and other similar permanent or temporary housing. Commercial/retail 
waste includes material discarded by stores, offices, restaurants, 
warehouses, nonmanufacturing activities at industrial facilities, and 
other similar establishments or facilities. Institutional waste 
includes materials discarded by schools, by hospitals (nonmedical), by 
nonmanufacturing activities at prisons and government facilities, and 
other similar establishments or facilities. Household, commercial/
retail, and institutional waste does include yard waste and refuse-
derived fuel. Household, commercial/retail, and institutional waste 
does not include used oil; sewage sludge; wood pallets; construction, 
renovation, and demolition wastes (which include railroad ties and 
telephone poles); clean wood; industrial process or manufacturing 
wastes; medical waste; or motor vehicles (including motor vehicle parts 
or vehicle fluff).
* * * * *
    Oxygen analyzer system means all equipment required to determine 
the oxygen content of a gas stream and used to monitor oxygen in the 
boiler or process heater flue gas, boiler or process heater, firebox, 
or other appropriate location. This definition includes oxygen trim 
systems and certified oxygen CEMS. The source owner or operator is 
responsible to install, calibrate, maintain, and operate the oxygen 
analyzer system in accordance with the manufacturer's recommendations.
    Oxygen trim system means a system of monitors that is used to 
maintain excess air at the desired level in a combustion device. A 
typical system consists of a flue gas oxygen and/or carbon monoxide 
monitor that automatically provides a feedback signal to the combustion 
air controller.
* * * * *
    Process change means any of the following physical or operational 
changes:
    (1) A physical change (maintenance activities excluded) to the 
CISWI unit which may increase the emission rate of any air pollutant to 
which a standard applies;
    (2) An operational change to the CISWI unit where a new type of 
non-hazardous secondary material is being combusted;
    (3) A physical change (maintenance activities excluded) to the air 
pollution control devices used to comply with the emission limits for 
the CISWI unit (e.g., replacing an electrostatic precipitator with a 
fabric filter);
    (4) An operational change to the air pollution control devices used 
to comply with the emission limits for the affected CISWI unit (e.g., 
change in the sorbent injection rate used for activated carbon 
injection).
* * * * *
    Raw mill means a ball or tube mill, vertical roller mill or other 
size reduction equipment, that is not part of an in-line kiln/raw mill, 
used to grind feed to the appropriate size. Moisture may be added or 
removed from the feed during the grinding operation. If the raw mill is 
used to remove moisture from feed materials, it is also, by definition, 
a raw material dryer. The raw mill also includes the air separator 
associated with the raw mill.
* * * * *
    Responsible official means one of the following:
    (1) For a corporation: A president, secretary, treasurer, or vice-
president of the corporation in charge of a principal business 
function, or any other person who performs similar policy or decision-
making functions for the corporation, or a duly authorized

[[Page 9190]]

representative of such person if the representative is responsible for 
the overall operation of one or more manufacturing, production, or 
operating facilities applying for or subject to a permit and either:
    (i) The facilities employ more than 250 persons or have gross 
annual sales or expenditures exceeding $25 million (in second quarter 
1980 dollars); or
    (ii) The delegation of authority to such representatives is 
approved in advance by the permitting authority;
    (2) For a partnership or sole proprietorship: A general partner or 
the proprietor, respectively;
    (3) For a municipality, State, Federal, or other public agency: 
Either a principal executive officer or ranking elected official. For 
the purposes of this part, a principal executive officer of a Federal 
agency includes the chief executive officer having responsibility for 
the overall operations of a principal geographic unit of the agency 
(e.g., a Regional Administrator of EPA); or
    (4) For affected facilities:
    (i) The designated representative in so far as actions, standards, 
requirements, or prohibitions under Title IV of the Clean Air Act or 
the regulations promulgated thereunder are concerned; or
    (ii) The designated representative for any other purposes under 
part 60.
* * * * *
    Small, remote incinerator means an incinerator that combusts solid 
waste (as that term is defined by the Administrator in 40 CFR part 241) 
and combusts 3 tons per day or less solid waste and is more than 25 
miles driving distance to the nearest municipal solid waste landfill.
    Soil treatment unit means a unit that thermally treats petroleum-
contaminated soils for the sole purpose of site remediation. A soil 
treatment unit may be direct-fired or indirect fired. A soil treatment 
unit is not an incinerator, a waste-burning kiln, an energy recovery 
unit or a small, remote incinerator under this subpart.
    Solid waste means the term solid waste as defined in 40 CFR 241.2.
    Solid waste incineration unit means a distinct operating unit of 
any facility which combusts any solid waste (as that term is defined by 
the Administrator in 40 CFR part 241) material from commercial or 
industrial establishments or the general public (including single and 
multiple residences, hotels and motels). Such term does not include 
incinerators or other units required to have a permit under section 
3005 of the Solid Waste Disposal Act. The term ``solid waste 
incineration unit'' does not include:
    (1) Materials recovery facilities (including primary or secondary 
smelters) which combust waste for the primary purpose of recovering 
metals;
    (2) Qualifying small power production facilities, as defined in 
section 3(17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or 
qualifying cogeneration facilities, as defined in section 3(18)(B) of 
the Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous 
waste (such as units which burn tires or used oil, but not including 
refuse-derived fuel) for the production of electric energy or in the 
case of qualifying cogeneration facilities which burn homogeneous waste 
for the production of electric energy and steam or forms of useful 
energy (such as heat) which are used for industrial, commercial, 
heating or cooling purposes; or
    (3) Air curtain incinerators provided that such incinerators only 
burn wood wastes, yard wastes, and clean lumber and that such air 
curtain incinerators comply with opacity limitations to be established 
by the Administrator by rule.
    Space heater means a unit that meets the requirements of 40 CFR 
279.23. A space heater is not an incinerator, a waste-burning kiln, an 
energy recovery unit or a small, remote incinerator under this subpart.
* * * * *
    Waste-burning kiln means a kiln that is heated, in whole or in 
part, by combusting solid waste (as that term is defined by the 
Administrator in 40 CFR part 241). Secondary materials used in Portland 
cement kilns shall not be deemed to be combusted unless they are 
introduced into the flame zone in the hot end of the kiln or mixed with 
the precalciner fuel.
* * * * *

0
21. Table 1 to subpart CCCC of part 60 is amended by:
0
a. Revising the table heading.
0
b. Revising the entry for ``Carbon monoxide''.
0
c. Revising the entry for ``Dioxin/Furan (toxic equivalency basis)''.
0
d. Revising the entry for ``Hydrogen Chloride''.
0
e. Revising the entry for ``Nitrogen Oxides''.
0
f. Revising the entry for ``Sulfur Dioxide''.
    The revisions read as follows:

  Table 1 to Subpart CCCC of Part 60--Emission Limitations for CISWI Units for Which Construction is Commenced
     After November 30, 1999, But no Later Than June 4, 2010, or for Which Modification or Reconstruction is
                      Commenced on or After June 1, 2001, But no Later Than August 7, 2013
----------------------------------------------------------------------------------------------------------------
                                                                                              And determining
      For the air pollutant           You must meet this      Using this averaging time    compliance using this
                                   emission limitation \a\                                        method
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Carbon monoxide..................  157 parts per million    3-run average (1 hour         Performance test
                                    by dry volume.           minimum sample time per       (Method 10 at 40 CFR
                                                             run).                         part 60, appendix A-
                                                                                           4).
Dioxin/Furan (toxic equivalency    0.41 nanograms per dry   3-run average (collect a      Performance test
 basis).                            standard cubic meter.    minimum volume of 4 dry       (Method 23 of
                                                             standard cubic meters per     appendix A-7 of this
                                                             run).                         part).
Hydrogen chloride................  62 parts per million by  3-run average (For Method     Performance test
                                    dry volume.              26, collect a minimum         (Method 26 or 26A at
                                                             volume of 120 liters per      40 CFR part 60,
                                                             run. For Method 26A,          appendix A-8).
                                                             collect a minimum volume of
                                                             1 dry standard cubic meter
                                                             per run).
 
                                                  * * * * * * *
Nitrogen Oxides..................  388 parts per million    3-run average (for Method     Performance test
                                    by dry volume.           7E, 1 hour minimum sample     (Method 7 or 7E at 40
                                                             time per run).                CFR part 60, appendix
                                                                                           A-4).
 

[[Page 9191]]

 
                                                  * * * * * * *
Sulfur Dioxide...................  20 parts per million by  3-run average (For Method 6,  Performance test
                                    dry volume.              collect a minimum volume of   (Method 6 or 6C at 40
                                                             20 liters per run. For        CFR part 60, appendix
                                                             Method 6C, collect sample     A-4).
                                                             for a minimum duration of 1
                                                             hour per run).
----------------------------------------------------------------------------------------------------------------
\a\ All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard
  conditions.
\b\ Incorporated by reference, see Sec.   60.17.

* * * * *

0
22. Table 2 to subpart CCCC of part 60 is amended by revising footnote 
a to read as follows:
    Table 2 to Subpart CCCC of Part 60--Operating Limits for Wet 
Scrubbers
* * * * *
    \a\ Calculated each hour as the average of the previous 3 
operating hours.

0
23. Table 5 to subpart CCCC of part 60 is amended by:
0
a. Revising the table heading.
0
b. Revising the entry for ``Carbon Monoxide''.
0
c. Revising the entry for ``Dioxin/furan (Total Mass Basis)''.
0
d. Revising the entry for ``Hydrogen chloride''.
0
e. Revising the entry for ``Lead''.
0
f. Revising the entry for ``Mercury''.
0
g. Revising the entry for ``Nitrogen Oxides''.
0
h. Revising the entry for ``Sulfur dioxide''.
0
i. Adding footnote c.
    The revisions and addition read as follows:

Table 5 to Subpart CCCC of Part 60--Emission Limitations for Incinerators That Commenced Construction After June
                 4, 2010, or That Commenced Reconstruction or Modification After August 7, 2013
----------------------------------------------------------------------------------------------------------------
                                                                                              And determining
      For the air  pollutant          You must meet this      Using this averaging time    compliance using this
                                   emission limitation \a\                                        method
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Carbon monoxide..................  17 parts per million by  3-run average (1 hour         Performance test
                                    dry volume.              minimum sample time per       (Method 10 at 40 CFR
                                                             run).                         part 60, appendix A-
                                                                                           4).
Dioxin/furan (Total Mass Basis)..  0.58 nanograms per dry   3-run average (collect a      Performance test
                                    standard cubic meter     minimum volume of 4 dry       (Method 23 at 40 CFR
                                    \c\.                     standard cubic meters per     part 60, appendix A-
                                                             run).                         7).
 
                                                  * * * * * * *
Hydrogen chloride................  0.091 parts per million  3-run average (For Method     Performance test
                                    by dry volume.           26, collect a minimum         (Method 26 or 26A at
                                                             volume of 360 liters per      40 CFR part 60,
                                                             run. For Method 26A,          appendix A-8).
                                                             collect a minimum volume of
                                                             3 dry standard cubic meters
                                                             per run).
Lead.............................  0.015 milligrams per     3-run average (collect a      Performance test
                                    dry standard cubic       minimum volume of 4 dry       (Method 29 of
                                    meter \c\.               standard cubic meters per     appendix A-8 at 40
                                                             run).                         CFR part 60). Use
                                                                                           ICPMS for the
                                                                                           analytical finish.
Mercury..........................  0.00084 milligrams per   3-run average (collect        Performance test
                                    dry standard cubic       enough volume to meet a       (Method 29 or 30B at
                                    meter \c\.               detection limit data          40 CFR part 60,
                                                             quality objective of 0.03     appendix A-8) or ASTM
                                                             ug/dry standard cubic         D6784-02 (Reapproved
                                                             meter).                       2008).\b\
Nitrogen Oxides..................  23 parts per million     3-run average (for Method     Performance test
                                    dry volume.              7E, 1 hour minimum sample     (Method 7 or 7E at 40
                                                             time per run).                CFR part 60, appendix
                                                                                           A-4).
 
                                                  * * * * * * *
Sulfur dioxide...................  11 parts per million     3-run average (1 hour         Performance test
                                    dry volume.              minimum sample time per       (Method 6 or 6C at 40
                                                             run).                         CFR part 60, appendix
                                                                                           A-4).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/
  furans, you must meet either the Total Mass Limit or the toxic equivalency basis limit.
\b\ Incorporated by reference, see Sec.   60.17.
\c\ If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant
  for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing
  according to Sec.   60.2155 if all of the other provisions of Sec.   60.2155 are met. For all other pollutants
  that do not contain a footnote ``c'', your performance tests for this pollutant for at least 2 consecutive
  years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip
  testing.


[[Page 9192]]


0
24. Table 6 to subpart CCCC of part 60 is amended by:
0
a. Revising the table heading.
0
b. Revising the entry for ``Cadmium''.
0
c. Revising the entry for ``Carbon monoxide''.
0
d. Revising the entry for ``Dioxins/furans (Total Mass Basis)''.
0
e. Revising the entry for ``Dioxins/furans (toxic equivalency basis)''.
0
f. Revising the entry for ``Hydrogen chloride''.
0
g. Revising the entry for ``Lead''.
0
h. Revising the entry for ``Mercury''.
0
i. Revising the entry for ``Oxides of nitrogen''.
0
j. Revising the entry for ``Particulate matter (filterable)''.
0
k. Revising the entry for ``Sulfur dioxide''.
0
l. Adding footnote c.
    The revisions and addition read as follows:

 Table 6 to Subpart CCCC of Part 60--Emission Limitations for Energy Recovery Units That Commenced Construction
            After June 4, 2010, or That Commenced Reconstruction or Modification After August 7, 2013
----------------------------------------------------------------------------------------------------------------
                                      You must meet this emission
                                            limitation \a\              Using this averaging    And determining
     For the air pollutant      --------------------------------------          time            compliance using
                                     Liquid/Gas           Solids                                  this method
----------------------------------------------------------------------------------------------------------------
Cadmium........................  0.023 milligrams   Biomass--0.0014    3-run average (collect  Performance test
                                  per dry standard   milligrams per     a minimum volume of 4   (Method 29 at 40
                                  cubic meter.       dry standard       dry standard cubic      CFR part 60,
                                                     cubic meter. \c\   meters per run).        appendix A-8).
                                                    Coal--0.0095                                Use ICPMS for
                                                     milligrams per                             the analytical
                                                     dry standard                               finish.
                                                     cubic meter.
Carbon monoxide................  35 parts per       Biomass--240       3-run average (1 hour   Performance test
                                  million dry        parts per          minimum sample time     (Method 10 at 40
                                  volume.            million dry        per run).               CFR part 60,
                                                     volume.                                    appendix A-4).
                                                    Coal--95 parts
                                                     per million dry
                                                     volume.
Dioxin/furans (Total Mass        No Total Mass      Biomass--0.52      3-run average (collect  Performance test
 Basis).                          Basis limit,       nanograms per      a minimum volume of 4   (Method 23 at 40
                                  must meet the      dry standard       dry standard cubic      CFR part 60,
                                  toxic              cubic meter. \c\   meters).                appendix A-7).
                                  equivalency       Coal--5.1
                                  basis limit        nanograms per
                                  below.             dry standard
                                                     cubic meter. \c\.
Dioxins/furans (toxic            0.093 nanograms    Biomass--0.076     3-run average (collect  Performance test
 equivalency basis).              per dry standard   nanograms per      a minimum volume of 4   (Method 23 of
                                  cubic meter. \c\   dry standard       dry standard cubic      appendix A-7 of
                                                     cubic meter. \c\   meters per run).        this part).
                                                    Coal--0.075
                                                     nanograms per
                                                     dry standard
                                                     cubic meter. \c\.
Hydrogen chloride..............  14 parts per       Biomass--0.20      3-run average (For      Performance test
                                  million dry        parts per          Method 26, collect a    (Method 26 or
                                  volume.            million dry        minimum volume of 360   26A at 40 CFR
                                                     volume.            liters per run. For     part 60,
                                                    Coal--13 parts      Method 26A, collect a   appendix A-8).
                                                     per million dry    minimum volume of 3
                                                     volume.            dry standard cubic
                                                                        meters per run).
Lead...........................  0.096 milligrams   Biomass--0.014     3-run average (collect  Performance test
                                  per dry standard   milligrams per     a minimum volume of 4   (Method 29 at 40
                                  cubic meter.       dry standard       dry standard cubic      CFR part 60,
                                                     cubic meter. \c\   meters per run).        appendix A-8).
                                                    Coal--0.14                                  Use ICPMS for
                                                     milligrams per                             the analytical
                                                     dry standard                               finish.
                                                     cubic meter..
Mercury........................  0.00056            Biomass--0.0022    3-run average (collect  Performance test
                                  milligrams per     milligrams per     enough volume to meet   (Method 29 or
                                  dry standard       dry standard       an in-stack detection   30B at 40 CFR
                                  cubic meter. \c\   cubic meter.       limit data quality      part 60,
                                                    Coal--0.016         objective of 0.03 ug/   appendix A-8) or
                                                     milligrams per     dscm).                  ASTM D6784-02
                                                     dry standard                               (Reapproved
                                                     cubic meter.                               2008)b.
Oxides of nitrogen.............  76 parts per       Biomass--290       3-run average (for      Performance test
                                  million dry        parts per          Method 7E, 1 hour       (Method 7 or 7E
                                  volume.            million dry        minimum sample time     at 40 CFR part
                                                     volume.            per run).               60, appendix A-
                                                    Coal--340 parts                             4).
                                                     per million dry
                                                     volume.

[[Page 9193]]

 
Particulate matter (filterable)  110 milligrams     Biomass--5.1       3-run average (collect  Performance test
                                  per dry standard   milligrams per     a minimum volume of 1   (Method 5 or 29
                                  cubic meter.       dry standard       dry standard cubic      at 40 CFR part
                                                     cubic meter.       meter per run).         60, appendix A-3
                                                    Coal--160                                   or appendix A-8)
                                                     milligrams per                             if the unit has
                                                     dry standard                               an annual
                                                     cubic meter.                               average heat
                                                                                                input rate less
                                                                                                than 250 MMBtu/
                                                                                                hr; or PM CPMS
                                                                                                (as specified in
                                                                                                Sec.
                                                                                                60.2145(x)) if
                                                                                                the unit has an
                                                                                                annual average
                                                                                                heat input rate
                                                                                                equal to or
                                                                                                greater than 250
                                                                                                MMBtu/hr.
Sulfur dioxide.................  720 parts per      Biomass--7.3       3-run average (for      Performance test
                                  million dry        parts per          Method 6, collect a     (Method 6 or 6C
                                  volume.            million dry        minimum of 60 liters,   at 40 CFR part
                                                     volume.            for Method 6C,1 hour    60, appendix A-
                                                    Coal--650 parts     minimum sample time     4).
                                                     per million dry    per run).
                                                     volume.
----------------------------------------------------------------------------------------------------------------
\a\ All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/
  furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit.
\b\ Incorporated by reference, see Sec.   60.17.
\c\ If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant
  for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing
  according to Sec.   60.2155 if all of the other provisions of Sec.   60.2155 are met. For all other pollutants
  that do not contain a footnote ``c'', your performance tests for this pollutant for at least 2 consecutive
  years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip
  testing.


0
25. Table 7 to Subpart CCCC of part 60 is revised to read as follows:

  Table 7 to Subpart CCCC of Part 60--Emission Limitations for Waste-burning Kilns That Commenced Construction
                   After June 4, 2010, or Reconstruction or Modification After August 7, 2013
----------------------------------------------------------------------------------------------------------------
                                          You must meet this                                 And determining
        For the air pollutant            emission  limitation     Using this averaging    compliance using  this
                                                 \a\                      time                    method
----------------------------------------------------------------------------------------------------------------
Cadmium..............................  0.0014 milligrams per    3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 4    (Method 29 at 40 CFR
                                        meter. \b\               dry standard cubic       part 60, appendix A-
                                                                 meters per run).         8). Use ICPMS for the
                                                                                          analytical finish.
Carbon monoxide......................  90 (long kilns)/190      3-run average (1 hour    Performance test
                                        (preheater/              minimum sample time      (Method 10 at 40 CFR
                                        precalciner) parts per   per run).                part 60, appendix A-
                                        million dry volume.                               4).
Dioxins/furans (total mass basis)....  0.51 nanograms per dry   3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 4    (Method 23 at 40 CFR
                                        \b\                      dry standard cubic       part 60, appendix A-
                                                                 meters per run).         7).
Dioxins/furans (toxic equivalency      0.075 nanograms per dry  3-run average (collect   Performance test
 basis).                                standard cubic meter.    a minimum volume of 4    (Method 23 at 40 CFR
                                        \b\                      dry standard cubic       part 60, appendix A-
                                                                 meters).                 7).
Hydrogen chloride....................  3.0 parts per million    3-run average (1 hour    Performance test
                                        dry volume. \b\          minimum sample time      (Method 321 at 40 CFR
                                                                 per run) or 30-day       part 63, appendix A)
                                                                 rolling average if HCl   or HCl CEMS if a wet
                                                                 CEMS are used.           scrubber or dry
                                                                                          scrubber is not used.
Lead.................................  0.014 milligrams per     3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 4    (Method 29 at 40 CFR
                                        meter. \b\               dry standard cubic       part 60, appendix A-
                                                                 meters).                 8). Use ICPMS for the
                                                                                          analytical finish.

[[Page 9194]]

 
Mercury..............................  0.0037 milligrams per    30-day rolling average.  Mercury CEMS or sorbent
                                        dry standard cubic                                trap monitoring system
                                        meter.                                            (performance
                                                                                          specification 12A or
                                                                                          12B, respectively, of
                                                                                          appendix B of this
                                                                                          part.)
Oxides of nitrogen...................  200 parts per million    30-day rolling average.  NOx CEMS (performance
                                        dry volume.                                       specification 2 of
                                                                                          appendix B and
                                                                                          procedure 1 of
                                                                                          appendix F of this
                                                                                          part).
Particulate matter (filterable)......  2.2 milligrams per dry   30-day rolling average.  PM CPMS (as specified
                                        standard cubic meter.                             in Sec.   60.2145(x)).
Sulfur dioxide.......................  28 parts per million     30-day rolling average.  Sulfur dioxide CEMS
                                        dry volume.                                       (performance
                                                                                          specification 2 of
                                                                                          appendix B and
                                                                                          procedure 1 of
                                                                                          appendix F of this
                                                                                          part).
----------------------------------------------------------------------------------------------------------------
\a\ All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/
  furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit.
\b\ If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant
  for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing
  according to Sec.   60.2155 if all of the other provisions of Sec.   60.2155 are met. For all other pollutants
  that do not contain a footnote ``b'', your performance tests for this pollutant for at least 2 consecutive
  years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip
  testing.


0
26. Table 8 to Subpart CCCC of part 60 is revised to read as follows:

     Table 8 to Subpart CCCC of Part 60--Emission Limitations for Small, Remote Incinerators That Commenced
     Construction After June 4, 2010, Or That Commenced Reconstruction or Modification After August 7, 2013
----------------------------------------------------------------------------------------------------------------
                                          You must meet this                                 And determining
        For the air pollutant            emission  limitation     Using this averaging    compliance using  this
                                                 \a\                      time                    method
----------------------------------------------------------------------------------------------------------------
Cadmium..............................  0.67 milligrams per dry  3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 1    (Method 29 at 40 CFR
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meters per run).         8).
Carbon monoxide......................  13 parts per million     3-run average (1 hour    Performance test
                                        dry volume.              minimum sample time      (Method 10 at 40 CFR
                                                                 per run).                part 60, appendix A-
                                                                                          4).
Dioxins/furans (total mass basis)....  1,800 nanograms per dry  3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 1    (Method 23 at 40 CFR
                                        \b\                      dry standard cubic       part 60, appendix A-
                                                                 meters per run).         7).
Dioxins/furans (toxic equivalency      31 nanograms per dry     3-run average (collect   Performance test
 basis).                                standard cubic meter.    a minimum volume of 1    (Method 23 at 40 CFR
                                        \b\                      dry standard cubic       part 60, appendix A-
                                                                 meters).                 7).
Fugitive ash.........................  Visible emissions for    Three 1-hour             Visible emissions test
                                        no more than 5 percent   observation periods.     (Method 22 at 40 CFR
                                        of the hourly                                     part 60, appendix A-
                                        observation period.                               7).
Hydrogen chloride....................  200 parts per million    3-run average (For       Performance test
                                        by dry volume.           Method 26, collect a     (Method 26 or 26A at
                                                                 minimum volume of 60     40 CFR part 60,
                                                                 liters per run. For      appendix A-8).
                                                                 Method 26A, collect a
                                                                 minimum volume of 1
                                                                 dry standard cubic
                                                                 meter per run).
Lead.................................  2.0 milligrams per dry   3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 1    (Method 29 at 40 CFR
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meters).                 8). Use ICPMS for the
                                                                                          analytical finish.
Mercury..............................  0.0035 milligrams per    3-run average (For       Performance test
                                        dry standard cubic       Method 29 and ASTM       (Method 29 or 30B at
                                        meter.                   D6784-02 (Reapproved     40 CFR part 60,
                                                                 2008) \b\, collect a     appendix A-8) or ASTM
                                                                 minimum volume of 2      D6784-02 (Reapproved
                                                                 dry standard cubic       2008). \b\
                                                                 meters per run. For
                                                                 Method 30B, collect a
                                                                 minimum volume as
                                                                 specified in Method
                                                                 30B at 40 CFR part 60,
                                                                 appendix A).

[[Page 9195]]

 
Oxides of nitrogen...................  170 parts per million    3-run average (for       Performance test
                                        dry volume.              Method 7E, 1 hour        (Method 7 or 7E at 40
                                                                 minimum sample time      CFR part 60, appendix
                                                                 per run).                A-4).
Particulate matter (filterable)......  270 milligrams per dry   3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 1    (Method 5 or 29 at 40
                                                                 dry standard cubic       CFR part 60, appendix
                                                                 meters).                 A-3 or appendix A-8).
Sulfur dioxide.......................  1.2 parts per million    3-run average (1 hour    Performance test
                                        dry volume.              minimum sample time      (Method 6 or 6c at 40
                                                                 per run).                CFR part 60, appendix
                                                                                          A-4).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/
  furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit.
\b\ Incorporated by reference, see Sec.   60.17.

Subpart DDDD--[Amended]

0
27. Section 60.2505 is amended by:
0
a. Revising paragraph (a).
0
b. Revising paragraph (c).
0
c. Revising paragraph (d).
    The revisions read as follows:


Sec.  60.2505  Am I affected by this subpart?

    (a) If you are the Administrator of an air quality program in a 
state or United States protectorate with one or more existing CISWI 
units that meet the criteria in paragraphs (b) through (d) of this 
section, you must submit a state plan to U.S. Environmental Protection 
Agency (EPA) that implements the emission guidelines contained in this 
subpart.
* * * * *
    (c) You must submit a state plan that meets the requirements of 
this subpart and contains the more stringent emission limit for the 
respective pollutant in table 6 of this subpart or table 1 of subpart 
CCCC of this part to EPA by February 7, 2014 for incinerators that 
commenced construction after November 30, 1999, but no later than June 
4, 2010, or commenced modification or reconstruction after June 1, 2001 
but no later than August 7, 2013.
    (d) You must submit a state plan to EPA that meets the requirements 
of this subpart and contains the emission limits in tables 7 through 9 
of this subpart by February 7, 2014, for CISWI units other than 
incinerator units that commenced construction on or before June 4, 
2010, or commenced modification or reconstruction after June 4, 2010 
but no later than August 7, 2013.

0
28. Section 60.2525 is amended by revising paragraph (b) to read as 
follows:


Sec.  60.2525  What if my state plan is not approvable?

* * * * *
    (b) If you do not submit an approvable state plan (or a negative 
declaration letter) to EPA that meets the requirements of this subpart 
and contains the emission limits in tables 6 through 9 of this subpart 
for CISWI units that commenced construction on or before June 4, 2010, 
then EPA will develop a federal plan according to Sec.  60.27 to 
implement the emission guidelines contained in this subpart. Owners and 
operators of CISWI units not covered by an approved state plan must 
comply with the federal plan. The federal plan is an interim action and 
will be automatically withdrawn when your state plan is approved.
* * * * *

0
29. Section 60.2535 is amended by:
0
a. Revising paragraph (a) introductory text.
0
b. Revising paragraph (b) introductory text.
0
c. Revising paragraph (b)(1).
    The revisions read as follows:


Sec.  60.2535  What compliance schedule must I include in my state 
plan?

    (a) For CISWI units in the incinerator subcategory that commenced 
construction on or before November 30, 1999, your state plan must 
include compliance schedules that require CISWI units to achieve final 
compliance as expeditiously as practicable after approval of the state 
plan but not later than the earlier of the two dates specified in 
paragraphs (a)(1) and (2) of this section.
* * * * *
    (b) For CISWI units in the incinerator subcategory that commenced 
construction after November 30, 1999, but on or before June 4, 2010, 
and for CISWI units in the small remote incinerator, energy recovery 
unit, and waste-burning kiln subcategories that commenced construction 
before June 4, 2010, your state plan must include compliance schedules 
that require CISWI units to achieve final compliance as expeditiously 
as practicable after approval of the state plan but not later than the 
earlier of the two dates specified in paragraphs (b)(1) and (2) of this 
section.
    (1) February 7, 2018.
* * * * *

0
30. Section 60.2545 is amended by revising paragraph (c) to read as 
follows:


Sec.  60.2545  Does this subpart directly affect CISWI unit owners and 
operators in my state?

* * * * *
    (c) If you do not submit an approvable plan to implement and 
enforce the guidelines contained in this subpart by February 7, 2014, 
for CISWI units that commenced construction on or before June 4, 2010, 
EPA will implement and enforce a federal plan, as provided in Sec.  
60.2525, to ensure that each unit within your state that commenced 
construction on or before June 4, 2010, reaches compliance with all the 
provisions of this subpart by February 7, 2018.

0
31. Section 60.2550 is amended by revising paragraph (a)(1) to read as 
follows:


Sec.  60.2550  What CISWI units must I address in my state plan?

    (a) * * *
    (1) CISWI units in your state that commenced construction on or 
before June 4, 2010, or commenced modification or reconstruction after

[[Page 9196]]

June 4, 2010 but no later than August 7, 2013.
* * * * *

0
32. Section 60.2555 is amended by:
0
a. Revising paragraph (c).
0
b. Revising paragraph (e)(3).
0
c. Adding paragraph (e)(4).
0
d. Revising paragraph (f)(3).
0
e. Adding paragraph (f)(4).
0
f. Revising paragraph (n).
0
g. Adding paragraph (o).
    The revisions and additions read as follows:


Sec.  60.2555  What combustion units are exempt from my state plan?

* * * * *
    (c) Municipal waste combustion units. Incineration units that are 
subject to subpart Ea of this part (Standards of Performance for 
Municipal Waste Combustors); subpart Eb of this part (Standards of 
Performance for Large Municipal Waste Combustors); subpart Cb of this 
part (Emission Guidelines and Compliance Time for Large Municipal 
Combustors); AAAA of this part (Standards of Performance for Small 
Municipal Waste Combustion Units); or subpart BBBB of this part 
(Emission Guidelines for Small Municipal Waste Combustion Units).
* * * * *
    (e) * * *
    (3) You submit documentation to the Administrator notifying the 
Agency that the qualifying small power production facility is 
combusting homogenous waste.
    (4) You maintain the records specified in Sec.  60.2740(v).
    (f) * * *
    (3) You submit documentation to the Administrator notifying the 
Agency that the qualifying cogeneration facility is combusting 
homogenous waste.
    (4) You maintain the records specified in Sec.  60.2740(w).
* * * * *
    (n) Sewage sludge incineration units. Incineration units combusting 
sewage sludge for the purpose of reducing the volume of the sewage 
sludge by removing combustible matter that are subject to subpart LLLL 
of this part (Standards of Performance for Sewage Sludge Incineration 
Units) or subpart MMMM of this part (Emission Guidelines for Sewage 
Sludge Incineration Units).
    (o) Other solid waste incineration units. Incineration units that 
are subject to subpart EEEE of this part (Standards of Performance for 
Other Solid Waste Incineration Units) or subpart FFFF of this part 
(Emission Guidelines and Compliance Times for Other Solid Waste 
Incineration Units).

0
33. Section 60.2675 is amended by:
0
a. Revising paragraph (a)(2).
0
b. Revising paragraph (e).
0
c. Revising paragraph (f).
0
d. Redesignating paragraph (g) as paragraph (h).
0
e. Adding new paragraph (g).
0
f. Adding paragraph (i).
    The revisions and addition read as follows:


Sec.  60.2675  What operating limits must I meet and by when?

    (a) * * *
    (2) Minimum pressure drop across the wet particulate matter 
scrubber, which is calculated as the lowest 1-hour average pressure 
drop across the wet scrubber measured during the most recent 
performance test demonstrating compliance with the particulate matter 
emission limitations; or minimum amperage to the wet scrubber, which is 
calculated as the lowest 1-hour average amperage to the wet scrubber 
measured during the most recent performance test demonstrating 
compliance with the particulate matter emission limitations.
* * * * *
    (e) If you use activated carbon sorbent injection to comply with 
the emission limitations, you must measure the sorbent flow rate during 
the performance testing. The operating limit for the carbon sorbent 
injection is calculated as the lowest 1-hour average sorbent flow rate 
measured during the most recent performance test demonstrating 
compliance with the mercury emission limitations. For energy recovery 
units, when your unit operates at lower loads, multiply your sorbent 
injection rate by the load fraction, as defined in this subpart, to 
determine the required injection rate (e.g., for 50 percent load, 
multiply the injection rate operating limit by 0.5).
    (f) If you use selective noncatalytic reduction to comply with the 
emission limitations, you must measure the charge rate, the secondary 
chamber temperature (if applicable to your CISWI unit), and the reagent 
flow rate during the nitrogen oxides performance testing. The operating 
limits for the selective noncatalytic reduction are calculated as the 
highest 1-hour average charge rate, lowest secondary chamber 
temperature, and lowest reagent flow rate measured during the most 
recent performance test demonstrating compliance with the nitrogen 
oxides emission limitations.
    (g) If you use a dry scrubber to comply with the emission 
limitations, you must measure the injection rate of each sorbent during 
the performance testing. The operating limit for the injection rate of 
each sorbent is calculated as the lowest 1-hour average injection rate 
of each sorbent measured during the most recent performance test 
demonstrating compliance with the hydrogen chloride emission 
limitations. For energy recovery units, when your unit operates at 
lower loads, multiply your sorbent injection rate by the load fraction, 
as defined in this subpart, to determine the required injection rate 
(e.g., for 50 percent load, multiply the injection rate operating limit 
by 0.5).
    (h) If you do not use a wet scrubber, electrostatic precipitator, 
or fabric filter to comply with the emission limitations, and if you do 
not determine compliance with your particulate matter emission 
limitation with a particulate matter CEMS, you must maintain opacity to 
less than or equal to ten percent opacity (1-hour block average).
    (i) If you use a PM CPMS to demonstrate compliance, you must 
establish your PM CPMS operating limit and determine compliance with it 
according to paragraphs (i)(1) through (5) of this section.
    (1) During the initial performance test or any such subsequent 
performance test that demonstrates compliance with the PM limit, record 
all hourly average output values (milliamps) from the PM CPMS for the 
periods corresponding to the test runs (e.g., three 1-hour average PM 
CPMS output values for three 1-hour test runs).
    (i) Your PM CPMS must provide a 4-20 milliamp output and the 
establishment of its relationship to manual reference method 
measurements must be determined in units of milliamps.
    (ii) Your PM CPMS operating range must be capable of reading PM 
concentrations from zero to a level equivalent to at least two times 
your allowable emission limit. If your PM CPMS is an auto-ranging 
instrument capable of multiple scales, the primary range of the 
instrument must be capable of reading PM concentration from zero to a 
level equivalent to two times your allowable emission limit.
    (iii) During the initial performance test or any such subsequent 
performance test that demonstrates compliance with the PM limit, record 
and average all milliamp output values from the PM CPMS for the periods 
corresponding to the compliance test runs (e.g., average all your PM 
CPMS output values for three corresponding 2-hour Method 5I test runs).
    (2) If the average of your three PM performance test runs are below 
75% of your PM emission limit, you must calculate an operating limit by 
establishing a relationship of PM CPMS signal to PM concentration using 
the PM CPMS instrument zero, the average PM

[[Page 9197]]

CPMS values corresponding to the three compliance test runs, and the 
average PM concentration from the Method 5 or performance test with the 
procedures in (i)(1)through (5) of this section.
    (i) Determine your instrument zero output with one of the following 
procedures:
    (A) Zero point data for in-situ instruments should be obtained by 
removing the instrument from the stack and monitoring ambient air on a 
test bench.
    (B) Zero point data for extractive instruments should be obtained 
by removing the extractive probe from the stack and drawing in clean 
ambient air.
    (C) The zero point can also can be established obtained by 
performing manual reference method measurements when the flue gas is 
free of PM emissions or contains very low PM concentrations (e.g., when 
your process is not operating, but the fans are operating or your 
source is combusting only natural gas) and plotting these with the 
compliance data to find the zero intercept.
    (D) If none of the steps in paragraphs (i)(2)(i) through (iv) of 
this section are possible, you must use a zero output value provided by 
the manufacturer.
    (ii) Determine your PM CPMS instrument average in milliamps, and 
the average of your corresponding three PM compliance test runs, using 
equation 5.
[GRAPHIC] [TIFF OMITTED] TR07FE13.004

Where:

    X1 = the PM CPMS data points for the three runs 
constituting the performance test,
    Y1 = the PM concentration value for the three runs 
constituting the performance test, and
    n = the number of data points.

    (iii) With your instrument zero expressed in milliamps, your three 
run average PM CPMS milliamp value, and your three run average PM 
concentration from your three compliance tests, determine a 
relationship of lb/Mmbtu per milliamp with equation 6.
[GRAPHIC] [TIFF OMITTED] TR07FE13.005

Where:

    R = the relative mg/dscm per milliamp for your PM CPMS,
    Y1 = the three run average mg/dscm PM concentration,
    X1 = the three run average milliamp output from you 
PM CPMS, and
    z = the milliamp equivalent of your instrument zero determined 
from (2)(i).

    (iv) Determine your source specific 30-day rolling average 
operating limit using the mg/dscm per milliamp value from Equation 6 in 
equation 7, below. This sets your operating limit at the PM CPMS output 
value corresponding to 75% of your emission limit.
[GRAPHIC] [TIFF OMITTED] TR07FE13.006

Where:

    Ol = the operating limit for your PM CPMS on a 30-day 
rolling average, in milliamps.
    L = your source emission limit expressed in lb/Mmbtu,
    z = your instrument zero in milliamps, determined from (2)(a), 
and
    R = the relative mg/dscm per milliamp for your PM CPMS, from 
Equation 3.

    (3) If the average of your three PM compliance test runs is at or 
above 75% of your PM emission limit you must determine your operating 
limit by averaging the PM CPMS milliamp output corresponding to your 
three PM performance test runs that demonstrate compliance with the 
emission limit using equation 8 and you must submit all compliance test 
and PM CPMS data according to the reporting requirements in paragraph 
(i)(5) of this section.
[GRAPHIC] [TIFF OMITTED] TR07FE13.007

Where:

    X1 = the PM CPMS data points for all runs i,
    n = the number of data points, and
    Oh = your site specific operating limit, in 
milliamps.

    (4) To determine continuous compliance, you must record the PM CPMS 
output data for all periods when the process is operating and the PM 
CPMS is not out-of-control. You must demonstrate continuous compliance 
by using all quality-assured hourly average data collected by the PM 
CPMS for all operating hours to calculate the arithmetic average 
operating parameter in units of the operating limit (e.g., milliamps, 
PM concentration, raw data signal) on a 30-day rolling average basis.
    (5) For PM performance test reports used to set a PM CPMS operating 
limit, the electronic submission of the test report must also include 
the make and model of the PM CPMS instrument, serial number of the 
instrument, analytical principle of the instrument (e.g., beta 
attenuation), span of the instruments primary analytical range, 
milliamp value equivalent to the instrument zero output, technique by 
which this zero value was determined, and the average milliamp signals 
corresponding to each PM compliance test run.

0
34. Section 60.2680 is amended by revising the section heading and 
paragraph (a) introductory text to read as follows:


Sec.  60.2680  What if I do not use a wet scrubber, fabric filter, 
activated carbon injection, selective noncatalytic reduction, an 
electrostatic precipitator, or a dry scrubber to comply with the 
emission limitations?

    (a) If you use an air pollution control device other than a wet 
scrubber, activated carbon injection, selective noncatalytic reduction, 
fabric filter, an electrostatic precipitator, or a dry scrubber or 
limit emissions in some other manner, including mass balances, to 
comply with the emission limitations under Sec.  60.2670, you must 
petition the EPA Administrator for specific operating limits to be 
established during the initial performance test and continuously 
monitored thereafter. You must submit the petition at least sixty days 
before the performance test is scheduled to begin. Your petition must 
include the five items listed in paragraphs (a)(1) through (5) of this 
section.
* * * * *

0
35. Section 60.2685 is revised to read as follows:


Sec.  60.2685  Affirmative Defense for Violation of Emission Standards 
During Malfunction.

    In response to an action to enforce the standards set forth in 
paragraph Sec.  60.2670 you may assert an affirmative defense to a 
claim for civil penalties for violations of such standards that are

[[Page 9198]]

caused by malfunction, as defined at 40 CFR 60.2. Appropriate penalties 
may be assessed if you fail to meet your burden of proving all of the 
requirements in the affirmative defense. The affirmative defense shall 
not be available for claims for injunctive relief.
    (a) Assertion of affirmative defense. To establish the affirmative 
defense in any action to enforce such a standard, you must timely meet 
the reporting requirements in paragraph (b) of this section, and must 
prove by a preponderance of evidence that:
    (1) The violation:
    (i) Was caused by a sudden, infrequent, and unavoidable failure of 
air pollution control equipment, process equipment, or a process to 
operate in a normal or usual manner; and
    (ii) Could not have been prevented through careful planning, proper 
design or better operation and maintenance practices; and
    (iii) Did not stem from any activity or event that could have been 
foreseen and avoided, or planned for; and
    (iv) Was not part of a recurring pattern indicative of inadequate 
design, operation, or maintenance; and
    (2) Repairs were made as expeditiously as possible when a violation 
occurred. Off-shift and overtime labor were used, to the extent 
practicable to make these repairs; and
    (3) The frequency, amount and duration of the violation (including 
any bypass) were minimized to the maximum extent practicable; and
    (4) If the violation resulted from a bypass of control equipment or 
a process, then the bypass was unavoidable to prevent loss of life, 
personal injury, or severe property damage; and
    (5) All possible steps were taken to minimize the impact of the 
violation on ambient air quality, the environment, and human health; 
and
    (6) All emissions monitoring and control systems were kept in 
operation if at all possible, consistent with safety and good air 
pollution control practices; and
    (7) All of the actions in response to the violation were documented 
by properly signed, contemporaneous operating logs; and
    (8) At all times, the affected CISWI unit was operated in a manner 
consistent with good practices for minimizing emissions; and
    (9) A written root cause analysis has been prepared, the purpose of 
which is to determine, correct, and eliminate the primary causes of the 
malfunction and the violation resulting from the malfunction event at 
issue. The analysis shall also specify, using best monitoring methods 
and engineering judgment, the amount of any emissions that were the 
result of the malfunction.
    (b) Report. The owner or operator seeking to assert an affirmative 
defense shall submit a written report to the Administrator with all 
necessary supporting documentation, that it has met the requirements 
set forth in paragraph (a) of this section. This affirmative defense 
report shall be included in the first periodic compliance, deviation 
report or excess emission report otherwise required after the initial 
occurrence of the violation of the relevant standard (which may be the 
end of any applicable averaging period). If such compliance, deviation 
report or excess emission report is due less than 45 days after the 
initial occurrence of the violation, the affirmative defense report may 
be included in the second compliance, deviation report or excess 
emission report due after the initial occurrence of the violation of 
the relevant standard.

0
36. Section 60.2690 is amended by:
0
a. Revising paragraph (g) introductory text.
0
b. Redesignating paragraphs (g)(2) and (3) as paragraphs (g)(3) and 
(4), respectively.
0
c. Revising newly designated paragraphs (g)(3) and (4).
0
d. Adding new paragraph (g)(2).
0
e. Adding paragraph (j).
    The revisions and additions read as follows:


Sec.  60.2690  How do I conduct the initial and annual performance 
test?

* * * * *
    (g) You must determine dioxins/furans toxic equivalency by 
following the procedures in paragraphs (g)(1) through (4) of this 
section.
* * * * *
    (2) Quantify isomers meeting identification criteria 2, 3, 4, and 5 
in Section 5.3.2.5 of Method 23, regardless of whether the isomers meet 
identification criteria 1 and 7. You must quantify the isomers per 
Section 9.0 of Method 23. (Note: You may reanalyze the sample aliquot 
or split to reduce the number of isomers not meeting identification 
criteria 1 or 7 of Section 5.3.2.5.)
    (3) For each dioxin/furan (tetra- through octa-chlorinated) isomer 
measured in accordance with paragraph (g)(1) and (2) of this section, 
multiply the isomer concentration by its corresponding toxic 
equivalency factor specified in table 4 of this subpart.
    (4) Sum the products calculated in accordance with paragraph (g)(3) 
of this section to obtain the total concentration of dioxins/furans 
emitted in terms of toxic equivalency.
* * * * *
    (j) You must determine dioxins/furans total mass basis by following 
the procedures in paragraphs (j)(1) through (3) of this section.
    (1) Measure the concentration of each dioxin/furan tetra- through 
octa-chlorinated isomer emitted using EPA Method 23 at 40 CFR part 60, 
appendix A-7.
    (2) Quantify isomers meeting identification criteria 2, 3, 4, and 5 
in Section 5.3.2.5 of Method 23, regardless of whether the isomers meet 
identification criteria 1 and 7. You must quantify the isomers per 
Section 9.0 of Method 23. (Note: You may reanalyze the sample aliquot 
or split to reduce the number of isomers not meeting identification 
criteria 1 or 7 of Section 5.3.2.5.)
    (3) Sum the quantities measured in accordance with paragraphs 
(j)(1) and (2) of this section to obtain the total concentration of 
dioxins/furans emitted in terms of total mass basis.
0
37.Section 60.2710 is revised to read as follows:
0
a. Revising paragraph (a)(6).
0
b. Revising paragraphs (b) through (d).
0
c. Revising paragraph (f).
0
d. Revising paragraphs (g) introductory text and (g)(1).
0
e. Revising paragraphs (h) and (i).
0
f. Revising paragraphs (j) introductory text, (j)(1), and (j)(3).
0
j. Revising paragraph (l) introductory text.
0
k. Revising paragraph (m)(2).
0
l. Revising paragraph (n)(4).
0
m. Revising paragraph (o).
0
n. Revising paragraph (r)(1).
0
o. Revising paragraphs (s) introductory text, (s)(1) introductory text, 
and (s)(2).
0
p. Revising paragraph (t) introductory text, (t)(1) introductory text, 
and (t)(2).
0
q. Revising paragraphs (u)(1) and (u)(2).
0
r. Revising paragraphs (w) introductory paragraph, (w)(1), (w)(2), and 
(w)(3).
0
s. Adding paragraph (x).
    The revisions and addition read as follows:


Sec.  60.2710  How do I demonstrate continuous compliance with the 
emission limitations and the operating limits?

    (a) * * *
    (6) All monitoring systems necessary for compliance with any newly 
applicable monitoring requirements which apply as a result of the 
cessation or commencement or recommencement of combusting solid waste 
must be installed and operational as of the

[[Page 9199]]

effective date of the waste-to-fuel, or fuel-to-waste switch. All 
calibration and drift checks must be performed as of the effective date 
of the waste-to-fuel, or fuel-to-waste switch. Relative accuracy tests 
must be performed as of the performance test deadline for PM CEMS (if 
PM CEMS are elected to demonstrate continuous compliance with the 
particulate matter emission limits). Relative accuracy testing for 
other CEMS need not be repeated if that testing was previously 
performed consistent with section 112 monitoring requirements or 
monitoring requirements under this subpart.
    (b) You must conduct an annual performance test for the pollutants 
listed in table 2 of this subpart or tables 6 through 9 of this subpart 
and opacity for each CISWI unit as required under Sec.  60.2690. The 
annual performance test must be conducted using the test methods listed 
in table 2 of this subpart or tables 6 through 9 of this subpart and 
the procedures in Sec.  60.2690. Opacity must be measured using EPA 
Reference Method 9 at 40 CFR part 60. Annual performance tests are not 
required if you use CEMS or continuous opacity monitoring systems to 
determine compliance.
    (c) You must continuously monitor the operating parameters 
specified in Sec.  60.2675 or established under Sec.  60.2680 and as 
specified in Sec.  60.2735. Operation above the established maximum or 
below the established minimum operating limits constitutes a deviation 
from the established operating limits. Three-hour block average values 
are used to determine compliance (except for baghouse leak detection 
system alarms) unless a different averaging period is established under 
Sec.  60.2680 or, for energy recovery units, where the averaging time 
for each operating parameter is a 30-day rolling, calculated each hour 
as the average of the previous 720 operating hours. Operation above the 
established maximum, below the established minimum, or outside the 
allowable range of the operating limits specified in paragraph (a) of 
this section constitutes a deviation from your operating limits 
established under this subpart, except during performance tests 
conducted to determine compliance with the emission and operating 
limits or to establish new operating limits. Operating limits are 
confirmed or reestablished during performance tests.
    (d) You must burn only the same types of waste and fuels used to 
establish subcategory applicability (for ERUs) and operating limits 
during the performance test.
* * * * *
    (f) For energy recovery units, you must conduct an annual 
performance test for opacity using EPA Reference Method 9 at 40 CFR 
part 60 (except where particulate matter continuous monitoring system 
or continuous parameter monitoring systems are used) and the pollutants 
listed in table 7 of this subpart.
    (g) For facilities using a CEMS to demonstrate compliance with the 
carbon monoxide emission limit, compliance with the carbon monoxide 
emission limit may be demonstrated by using the CEMS according to the 
following requirements:
    (1) You must measure emissions according to Sec.  60.13 to 
calculate 1-hour arithmetic averages, corrected to 7 percent oxygen. 
CEMS data during startup and shutdown, as defined in this subpart, are 
not corrected to 7 percent oxygen, and are measured at stack oxygen 
content. You must demonstrate initial compliance with the carbon 
monoxide emissions limit using a 30-day rolling average of the 1-hour 
arithmetic average emission concentrations, including CEMS data during 
startup and shutdown as defined in this subpart, calculated using 
Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR 
part 60, appendix A-7.
* * * * *
    (h) Coal and liquid/gas energy recovery units with annual average 
heat input rates greater than 250 MMBtu/hr may elect to demonstrate 
continuous compliance with the particulate matter emissions limit using 
a particulate matter CEMS according to the procedures in Sec.  
60.2730(n) instead of the continuous parameter monitoring system 
specified in Sec.  60.2710(i). Coal and liquid/gas energy recovery 
units with annual average heat input rates less than 250 MMBtu/hr, 
incinerators, and small remote incinerators may also elect to 
demonstrate compliance using a particulate matter CEMS according to the 
procedures in Sec.  60.2730(n) instead of particulate matter testing 
with EPA Method 5 at 40 CFR part 60, appendix A-3 and, if applicable, 
the continuous opacity monitoring requirements in paragraph (i) of this 
section.
    (i) For energy recovery units with annual average heat input rates 
greater than or equal to 10 MMBTU/hour but less than 250 MMBtu/hr you 
must install, operate, certify and maintain a continuous opacity 
monitoring system (COMS) according to the procedures in Sec.  60.2730.
    (j) For waste-burning kilns, you must conduct an annual performance 
test for the pollutants (except mercury and particulate matter, and 
hydrogen chloride if no acid gas wet scrubber is used) listed in table 
8 of this subpart. If your waste-burning kiln is not equipped with a 
wet scrubber or dry scrubber, you must determine compliance with the 
hydrogen chloride emission limit using a CEMS as specified in Sec.  
60.2730. You must determine compliance with particulate matter using 
CPMS. You must determine compliance with the mercury emissions limit 
using a mercury CEMS according to the following requirements:
    (1) Operate a CEMS in accordance with performance specification 12A 
at 40 CFR part 60, appendix B or a sorbent trap based integrated 
monitor in accordance with performance specification 12B at 40 CFR part 
60, appendix B. The duration of the performance test must be a calendar 
month. For each calendar month in which the waste-burning kiln 
operates, hourly mercury concentration data and stack gas volumetric 
flow rate data must be obtained. You must demonstrate compliance with 
the mercury emissions limit using a 30-day rolling average of these 1-
hour mercury concentrations, including CEMS data during startup and 
shutdown as defined in this subpart, calculated using Equation 19-19 in 
section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix 
A-7 of this part. CEMS data during startup and shutdown, as defined in 
this subpart, are not corrected to 7 percent oxygen, and are measured 
at stack oxygen content.
* * * * *
    (3) The owner or operator of a waste-burning kiln must demonstrate 
initial compliance by operating a mercury CEMS while the raw mill of 
the in-line kiln/raw mill is operating under normal conditions and 
including at least one period when the raw mill is off.
* * * * *
    (l) For each CMS required in this section, you must develop and 
submit to the EPA Administrator for approval a site-specific monitoring 
plan according to the requirements of this paragraph (l) that addresses 
paragraphs (l)(1)(i) through (vi) of this section.
* * * * *
    (m) * * *
    (2) Use a flow sensor with a measurement sensitivity at full scale 
of no greater than 2 percent.
* * * * *
    (n) * * *
    (4) Perform checks at the frequency outlined in your site-specific 
monitoring

[[Page 9200]]

plan to ensure pressure measurements are not obstructed (e.g., check 
for pressure tap pluggage daily).
* * * * *
    (o) If you have an operating limit that requires a pH monitoring 
system, you must meet the requirements in paragraphs (l) and (o)(1) 
through (4) of this section.
    (1) Install the pH sensor in a position that provides a 
representative measurement of scrubber effluent pH.
    (2) Ensure the sample is properly mixed and representative of the 
fluid to be measured.
    (3) Conduct a performance evaluation of the pH monitoring system in 
accordance with your monitoring plan at least once each process 
operating day.
    (4) Conduct a performance evaluation (including a two-point 
calibration with one of the two buffer solutions having a pH within 1 
of the pH of the operating limit) of the pH monitoring system in 
accordance with your monitoring plan at the time of each performance 
test but no less frequently than quarterly.
* * * * *
    (r) * * *
    (1) Install a bag leak detection sensor(s) in a position(s) that 
will be representative of the relative or absolute particulate matter 
loadings for each exhaust stack, roof vent, or compartment (e.g., for a 
positive pressure fabric filter) of the fabric filter.
* * * * *
    (s) For facilities using a CEMS to demonstrate compliance with the 
sulfur dioxide emission limit, compliance with the sulfur dioxide 
emission limit may be demonstrated by using the CEMS specified in Sec.  
60.2730 to measure sulfur dioxide. CEMS data during startup and 
shutdown, as defined in this subpart, are not corrected to 7 percent 
oxygen, and are measured at stack oxygen content. You must calculate a 
30-day rolling average of the 1-hour arithmetic average emission 
concentrations, including CEMS data during startup and shutdown as 
defined in this subpart, using Equation 19-19 in section 12.4.1 of EPA 
Reference Method 19 at 40 CFR part 60, appendix A-7. The sulfur dioxide 
CEMS must be operated according to performance specification 2 in 
appendix B of this part and must follow the procedures and methods 
specified in this paragraph(s). For sources that have actual inlet 
emissions less than 100 parts per million dry volume, the relative 
accuracy criterion for inlet sulfur dioxide CEMS should be no greater 
than 20 percent of the mean value of the reference method test data in 
terms of the units of the emission standard, or 5 parts per million dry 
volume absolute value of the mean difference between the reference 
method and the CEMS, whichever is greater.
    (1) During each relative accuracy test run of the CEMS required by 
performance specification 2 in appendix B of this part, collect sulfur 
dioxide and oxygen (or carbon dioxide) data concurrently (or within a 
30- to 60-minute period) with both the CEMS and the test methods 
specified in paragraphs (s)(1)(i) and (ii) of this section.
* * * * *
    (2) The span value of the CEMS at the inlet to the sulfur dioxide 
control device must be 125 percent of the maximum estimated hourly 
potential sulfur dioxide emissions of the unit subject to this rule. 
The span value of the CEMS at the outlet of the sulfur dioxide control 
device must be 50 percent of the maximum estimated hourly potential 
sulfur dioxide emissions of the unit subject to this rule.
* * * * *
    (t) For facilities using a CEMS to demonstrate continuous 
compliance with the nitrogen oxides emission limit, compliance with the 
nitrogen oxides emission limit may be demonstrated by using the CEMS 
specified in Sec.  60.2730 to measure nitrogen oxides. CEMS data during 
startup and shutdown, as defined in this subpart, are not corrected to 
7 percent oxygen, and are measured at stack oxygen content. You must 
calculate a 30-day rolling average of the 1-hour arithmetic average 
emission concentration using Equation 19-19 in section 12.4.1 of EPA 
Reference Method 19 at 40 CFR part 60, appendix A-7. The nitrogen 
oxides CEMS must be operated according to performance specification 2 
in appendix B of this part and must follow the procedures and methods 
specified in paragraphs (t)(1) through (t)(5) of this section.
    (1) During each relative accuracy test run of the CEMS required by 
performance specification 2 of appendix B of this part, collect 
nitrogen oxides and oxygen (or carbon dioxide) data concurrently (or 
within a 30- to 60-minute period) with both the CEMS and the test 
methods specified in paragraphs (t)(1)(i) and (ii) of this section.
    (i) For nitrogen oxides, EPA Reference Method 7 or 7E at 40 CFR 
part 60, appendix A-4 must be used.
    (ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B, 
or as an alternative ANSI/ASME PTC 19.10-1981 (incorporated by 
reference, see Sec.  60.17), as applicable, must be used.
    (2) The span value of the CEMS must be 125 percent of the maximum 
estimated hourly potential nitrogen oxide emissions of unit.
* * * * *
    (u) * * *
    (1) Demonstrate compliance with the appropriate emission limit(s) 
using a 30-day rolling average of 1-hour arithmetic average emission 
concentrations, including CEMS data during startup and shutdown, as 
defined in this subpart, calculated using Equation 19-19 in section 
12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-7. CEMS 
data during startup and shutdown, as defined in this subpart, are not 
corrected to 7 percent oxygen, and are measured at stack oxygen 
content.
    (2) Operate all CEMS in accordance with the applicable procedures 
under appendices B and F of this part.
* * * * *
    (w) For energy recovery units with a design heat input capacity of 
100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, 
you must install, operate, and maintain an oxygen analyzer system as 
defined in Sec.  60.2875 according to the procedures in paragraphs 
(w)(1) through (4) of this section.
    (1) The oxygen analyzer system must be installed by the initial 
performance test date specified in Sec.  60.2675.
    (2) You must operate the oxygen trim system within compliance with 
paragraph (w)(3) of this section at all times.
    (3) You must maintain the oxygen level such that the 30-day rolling 
average that is established as the operating limit for oxygen is not 
below the lowest hourly average oxygen concentration measured during 
the most recent CO performance test.
* * * * *
    (x) For energy recovery units with annual average heat input rates 
greater than or equal to 250 MMBtu/hour and waste-burning kilns, you 
must install, calibrate, maintain, and operate a PM CPMS and record the 
output of the system as specified in paragraphs (x)(1) through (8) of 
this section. For other energy recovery units, you may elect to use PM 
CPMS operated in accordance with this section. PM CPMS are suitable in 
lieu of using other CMS for monitoring PM compliance (e.g., bag leak 
detectors, ESP secondary power, PM scrubber pressure).
    (1) Install, calibrate, operate, and maintain your PM CPMS 
according to the procedures in your approved site-specific monitoring 
plan developed in accordance with Sec.  60.2710(l) and (x)(1)(i) 
through (iii) of this section.
    (i) The operating principle of the PM CPMS must be based on in-
stack or

[[Page 9201]]

extractive light scatter, light scintillation, beta attenuation, or 
mass accumulation of the exhaust gas or representative sample. The 
reportable measurement output from the PM CPMS must be expressed as 
milliamps.
    (ii) The PM CPMS must have a cycle time (i.e., period required to 
complete sampling, measurement, and reporting for each measurement) no 
longer than 60 minutes.
    (iii) The PM CPMS must be capable of detecting and responding to 
particulate matter concentrations of no greater than 0.5 mg/actual 
cubic meter.
    (2) During the initial performance test or any such subsequent 
performance test that demonstrates compliance with the PM limit, you 
must adjust the site-specific operating limit in accordance with the 
results of the performance test according to the procedures specified 
in Sec.  60.2675.
    (3) Collect PM CPMS hourly average output data for all energy 
recovery unit or waste-burning kiln operating hours. Express the PM 
CPMS output as milliamps.
    (4) Calculate the arithmetic 30-day rolling average of all of the 
hourly average PM CPMS output collected during all energy recovery unit 
or waste-burning kiln operating hours data (milliamps).
    (5) You must collect data using the PM CPMS at all times the energy 
recovery unit or waste-burning kiln is operating and at the intervals 
specified in paragraph (x)(1)(ii) of this section, except for periods 
of monitoring system malfunctions, repairs associated with monitoring 
system malfunctions, required monitoring system quality assurance or 
quality control activities (including, as applicable, calibration 
checks and required zero and span adjustments), and any scheduled 
maintenance as defined in your site-specific monitoring plan.
    (6) You must use all the data collected during all energy recovery 
unit or waste-burning kiln operating hours in assessing the compliance 
with your operating limit except:
    (i) Any data collected during monitoring system malfunctions, 
repairs associated with monitoring system malfunctions, or required 
monitoring system quality assurance or quality control activities 
conducted during monitoring system malfunctions are not used in 
calculations (report any such periods in your annual deviation report);
    (ii) Any data collected during periods when the monitoring system 
is out of control as specified in your site-specific monitoring plan, 
repairs associated with periods when the monitoring system is out of 
control, or required monitoring system quality assurance or quality 
control activities conducted during out-of-control periods are not used 
in calculations (report emissions or operating levels and report any 
such periods in your annual deviation report);
    (iii) Any PM CPMS data recorded during periods of CEMS data during 
startup and shutdown, as defined in this subpart.
    (7) You must record and make available upon request results of PM 
CPMS system performance audits, as well as the dates and duration of 
periods from when the PM CPMS is out of control until completion of the 
corrective actions necessary to return the PM CPMS to operation 
consistent with your site-specific monitoring plan.
    (8) For any deviation of the 30-day rolling average PM CPMS average 
value from the established operating parameter limit, you must:
    (i) Within 48 hours of the deviation, visually inspect the air 
pollution control device;
    (ii) If inspection of the air pollution control device identifies 
the cause of the deviation, take corrective action as soon as possible 
and return the PM CPMS measurement to within the established value; and
    (iii) Within 30 days of the deviation or at the time of the annual 
compliance test, whichever comes first, conduct a PM emissions 
compliance test to determine compliance with the PM emissions limit and 
to verify. Within 45 days of the deviation, you must re-establish the 
CPMS operating limit. You are not required to conduct additional 
testing for any deviations that occur between the time of the original 
deviation and the PM emissions compliance test required under this 
paragraph.
    (iv) PM CPMS deviations leading to more than four required 
performance tests in a 12-month process operating period (rolling 
monthly) constitute a violation of this subpart.
0
38. Section 60.2720 is amended by revising paragraph (a)(3)(ii) to read 
as follows:


Sec.  60.2720  May I conduct performance testing less often?

    (a) * * *
    (3) * * *
    (ii) For fugitive emissions, visible emissions (of combustion ash 
from the ash conveying system) for 2 percent of the time during each of 
the three 1-hour observation periods.
* * * * *
0
39. Section 60.2730 is amended by:
0
a. Revising paragraph (c).
0
b. Revising paragraph (e) introductory text.
0
c. Revising paragraphs (f) through (j).
0
d. Revising paragraph (l)(1) and (2).
0
e. Revising paragraph (m) introductory text.
0
f. Revising paragraphs (n) introductory text, (n)(6), (n)(7), (n)(9), 
(n)(10), (n)(11), and paragraph (n)(12) introductory text.
0
g. Removing paragraph (n)(14).
0
h. Revising paragraphs (o)(1), (o)(2), and (o)(9).
0
i. Adding paragraphs (r) and (s).
    The revisions and additions read as follows:


Sec.  60.2730  What monitoring equipment must I install and what 
parameters must I monitor?

* * * * *
    (c) If you are using something other than a wet scrubber, activated 
carbon, selective non-catalytic reduction, an electrostatic 
precipitator, or a dry scrubber to comply with the emission limitations 
under Sec.  60.2670, you must install, calibrate (to the manufacturers' 
specifications), maintain, and operate the equipment necessary to 
monitor compliance with the site-specific operating limits established 
using the procedures in Sec.  60.2680.
* * * * *
    (e) If you use selective noncatalytic reduction to comply with the 
emission limitations, you must complete the following:
* * * * *
    (f) If you use an electrostatic precipitator to comply with the 
emission limits of this subpart, you must monitor the secondary power 
to the electrostatic precipitator collection plates and maintain the 3-
hour block averages at or above the operating limits established during 
the mercury or particulate matter performance test.
    (g) For waste-burning kilns not equipped with a wet scrubber or dry 
scrubber, in place of hydrogen chloride testing with EPA Method 321 at 
40 CFR part 63, appendix A, an owner or operator must install, 
calibrate, maintain, and operate a CEMS for monitoring hydrogen 
chloride emissions discharged to the atmosphere and record the output 
of the system. To demonstrate continuous compliance with the hydrogen 
chloride emissions limit for units other than waste-burning kilns not 
equipped with a wet scrubber or dry scrubber, a facility may substitute 
use of a hydrogen chloride CEMS for conducting the hydrogen chloride 
annual performance test, monitoring the minimum hydrogen chloride 
sorbent flow rate, monitoring the minimum scrubber liquor pH.

[[Page 9202]]

    (h) To demonstrate continuous compliance with the particulate 
matter emissions limit, a facility may substitute use of a particulate 
matter CEMS for conducting the particulate matter annual performance 
test and other CMS monitoring for PM compliance (e.g., bag leak 
detectors, ESP secondary power, PM scrubber pressure).
    (i) To demonstrate continuous compliance with the dioxin/furan 
emissions limit, a facility may substitute use of a continuous 
automated sampling system for the dioxin/furan annual performance test. 
You must record the output of the system and analyze the sample 
according to EPA Method 23 at 40 CFR part 60, appendix A-7. This option 
to use a continuous automated sampling system takes effect on the date 
a final performance specification applicable to dioxin/furan from 
continuous monitors is published in the Federal Register. The owner or 
operator who elects to continuously sample dioxin/furan emissions 
instead of sampling and testing using EPA Method 23 at 40 CFR part 60, 
appendix A-7 must install, calibrate, maintain and operate a continuous 
automated sampling system and must comply with the requirements 
specified in Sec.  60.58b(p) and (q). A facility may substitute 
continuous dioxin/furan monitoring for the minimum sorbent flow rate, 
if activated carbon sorbent injection is used solely for compliance 
with the dioxin/furan emission limit.
    (j) To demonstrate continuous compliance with the mercury emissions 
limit, a facility may substitute use of a continuous automated sampling 
system for the mercury annual performance test. You must record the 
output of the system and analyze the sample at set intervals using any 
suitable determinative technique that can meet performance 
specification 12B criteria. This option to use a continuous automated 
sampling system takes effect on the date a final performance 
specification applicable to mercury from monitors is published in the 
Federal Register. The owner or operator who elects to continuously 
sample mercury emissions instead of sampling and testing using EPA 
Method 29 or 30B at 40 CFR part 60, appendix A-8, ASTM D6784-02 
(Reapproved 2008) (incorporated by reference, see Sec.  60.17), or an 
approved alternative method for measuring mercury emissions, must 
install, calibrate, maintain and operate a continuous automated 
sampling system and must comply with the requirements specified in 
Sec.  60.58b(p) and (q). A facility may substitute continuous mercury 
monitoring for the minimum sorbent flow rate, if activated carbon 
sorbent injection is used solely for compliance with the mercury 
emission limit.
    (k) To demonstrate continuous compliance with the nitrogen oxides 
emissions limit, a facility may substitute use of a CEMS for the 
nitrogen oxides annual performance test to demonstrate compliance with 
the nitrogen oxides emissions limits and monitoring the charge rate, 
secondary chamber temperature and reagent flow for selective 
noncatalytic reduction, if applicable.
    (1) Install, calibrate, maintain and operate a CEMS for measuring 
nitrogen oxides emissions discharged to the atmosphere and record the 
output of the system. The requirements under performance specification 
2 of appendix B of this part, the quality assurance procedure 1 of 
appendix F of this part and the procedures under Sec.  60.13 must be 
followed for installation, evaluation and operation of the CEMS.
    (2) Following the date that the initial performance test for 
nitrogen oxides is completed or is required to be completed under Sec.  
60.2690, compliance with the emission limit for nitrogen oxides 
required under Sec.  60.52b(d) must be determined based on the 30-day 
rolling average of the hourly emission concentrations using CEMS outlet 
data. The 1-hour arithmetic averages must be expressed in parts per 
million by volume corrected to 7 percent oxygen (dry basis) and used to 
calculate the 30-day rolling average concentrations. CEMS data during 
startup and shutdown, as defined in this subpart, are not corrected to 
7 percent oxygen, and are measured at stack oxygen content. The 1-hour 
arithmetic averages must be calculated using the data points required 
under Sec.  60.13(e)(2).
    (l) * * *
    (1) Install, calibrate, maintain and operate a CEMS for measuring 
sulfur dioxide emissions discharged to the atmosphere and record the 
output of the system. The requirements under performance specification 
2 of appendix B of this part, the quality assurance requirements of 
procedure 1 of appendix F of this part and the procedures under Sec.  
60.13 must be followed for installation, evaluation and operation of 
the CEMS.
    (2) Following the date that the initial performance test for sulfur 
dioxide is completed or is required to be completed under Sec.  
60.2690, compliance with the sulfur dioxide emission limit may be 
determined based on the 30-day rolling average of the hourly arithmetic 
average emission concentrations using CEMS outlet data. The 1-hour 
arithmetic averages must be expressed in parts per million corrected to 
7 percent oxygen (dry basis) and used to calculate the 30-day rolling 
average emission concentrations. CEMS data during startup and shutdown, 
as defined in this subpart, are not corrected to 7 percent oxygen, and 
are measured at stack oxygen content. The 1-hour arithmetic averages 
must be calculated using the data points required under Sec.  
60.13(e)(2).
    (m) For energy recovery units that do not use a wet scrubber, 
fabric filter with bag leak detection system, or particulate matter 
CEMS, you must install, operate, certify and maintain a continuous 
opacity monitoring system according to the procedures in paragraphs 
(m)(1) through (5) of this section by the compliance date specified in 
Sec.  60.2670. Energy recovery units that use a particulate matter CEMS 
to demonstrate initial and continuing compliance according to the 
procedures in Sec.  60.2730(n) are not required to install a continuous 
opacity monitoring system and must perform the annual performance tests 
for opacity consistent with Sec.  60.2710(f).
* * * * *
    (n) For coal and liquid/gas energy recovery units, incinerators, 
and small remote incinerators, an owner or operator may elect to 
install, calibrate, maintain and operate a CEMS for monitoring 
particulate matter emissions discharged to the atmosphere and record 
the output of the system. The owner or operator of an affected facility 
who continuously monitors particulate matter emissions instead of 
conducting performance testing using EPA Method 5 at 40 CFR part 60, 
appendix A-3 or, as applicable, monitor with a particulate matter CPMS 
according to paragraph (r) of this section, must install, calibrate, 
maintain and operate a CEMS and must comply with the requirements 
specified in paragraphs (n)(1) through (13) of this section.
* * * * *
    (6) The owner or operator of an affected facility must conduct an 
initial performance test for particulate matter emissions as required 
under Sec.  60.2690. Compliance with the particulate matter emission 
limit, if PM CEMS are elected for demonstrating compliance, must be 
determined by using the CEMS specified in paragraph (n) of this section 
to measure particulate matter. You must calculate a 30-day rolling 
average of 1-hour arithmetic average emission concentrations, including 
CEMS data during startup and shutdown, as defined in this subpart, 
using Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 
CFR part 60, appendix A-7 of this part.

[[Page 9203]]

    (7) Compliance with the particulate matter emission limit must be 
determined based on the 30-day rolling average calculated using 
Equation 19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR 
part 60, Appendix A-7 of the part from the 1-hour arithmetic average of 
the CEMS outlet data.
* * * * *
    (9) The 1-hour arithmetic averages required under paragraph (n)(7) 
of this section must be expressed in milligrams per dry standard cubic 
meter corrected to 7 percent oxygen (or carbon dioxide)(dry basis) and 
must be used to calculate the 30-day rolling average emission 
concentrations. CEMS data during startup and shutdown, as defined in 
this subpart, are not corrected to 7 percent oxygen, and are measured 
at stack oxygen content. The 1-hour arithmetic averages must be 
calculated using the data points required under Sec.  60.13(e)(2).
    (10) All valid CEMS data must be used in calculating average 
emission concentrations even if the minimum CEMS data requirements of 
paragraph (n)(8) of this section are not met.
    (11) The CEMS must be operated according to performance 
specification 11 in appendix B of this part.
    (12) During each relative accuracy test run of the CEMS required by 
performance specification 11 in appendix B of this part, particulate 
matter and oxygen (or carbon dioxide) data must be collected 
concurrently (or within a 30-to 60-minute period) by both the CEMS and 
the following test methods.
* * * * *
    (o) * * *
    (1) Install, calibrate, maintain, and operate a CEMS for measuring 
carbon monoxide emissions discharged to the atmosphere and record the 
output of the system. The requirements under performance specification 
4B of appendix B of this part, the quality assurance procedure 1 of 
appendix F of this part and the procedures under Sec.  60.13 must be 
followed for installation, evaluation, and operation of the CEMS.
    (2) Following the date that the initial performance test for carbon 
monoxide is completed or is required to be completed under Sec.  
60.2690, compliance with the carbon monoxide emission limit may be 
determined based on the 30-day rolling average of the hourly arithmetic 
average emission concentrations, including CEMS data during startup and 
shutdown as defined in this subpart, using CEMS outlet data. Except for 
CEMS data during startup and shutdown, as defined in this subpart, the 
1-hour arithmetic averages must be expressed in parts per million 
corrected to 7 percent oxygen (dry basis) and used to calculate the 30-
day rolling average emission concentrations. CEMS data collected during 
startup or shutdown, as defined in this subpart, are not corrected to 7 
percent oxygen, and are measured at stack oxygen content. The 1-hour 
arithmetic averages must be calculated using the data points required 
under Sec.  60.13(e)(2).
* * * * *
    (q) For energy recovery units with a design heat input capacity of 
100 MMBtu per hour or greater that do not use a carbon monoxide CEMS, 
you must install, operate, and maintain a oxygen analyzer system as 
defined in Sec.  60.2875 according to the procedures in paragraphs 
(q)(1) through (4) of this section.
    (1) The oxygen analyzer system must be installed by the initial 
performance test date specified in Sec.  60.2675.
    (2) You must operate the oxygen trim system within compliance with 
paragraph (q)(3) of this section at all times.
    (3) You must maintain the oxygen level such that the 30-day rolling 
average that is established as the operating limit for oxygen according 
to paragraph (q)(4) of this section is not below the lowest hourly 
average oxygen concentration measured during the most recent CO 
performance test.
    (4) You must calculate and record a 30-day rolling average oxygen 
concentration using Equation 19-19 in section 12.4.1 of EPA Reference 
Method 19 of Appendix A-7 of this part.
    (r) For energy recovery units with annual average heat input rates 
greater than or equal to 250 MMBtu/hour and waste-burning kilns, you 
must install, calibrate, maintain, and operate a PM CPMS and record the 
output of the system as specified in paragraphs (r)(1) through (8) of 
this section. For other energy recovery units, you may elect to use PM 
CPMS operated in accordance with this section. PM CPMS are suitable in 
lieu of using other CMS for monitoring PM compliance (e.g., bag leak 
detectors, ESP secondary power, PM scrubber pressure).
    (1) Install, calibrate, operate, and maintain your PM CPMS 
according to the procedures in your approved site-specific monitoring 
plan developed in accordance with Sec.  60.2710(l) and (r)(1)(i) 
through (iii) of this section.
    (i) The operating principle of the PM CPMS must be based on in-
stack or extractive light scatter, light scintillation, beta 
attenuation, or mass accumulation of the exhaust gas or representative 
sample. The reportable measurement output from the PM CPMS must be 
expressed as milliamps.
    (ii) The PM CPMS must have a cycle time (i.e., period required to 
complete sampling, measurement, and reporting for each measurement) no 
longer than 60 minutes.
    (iii) The PM CPMS must be capable of detecting and responding to 
particulate matter concentrations of no greater than 0.5 mg/actual 
cubic meter.
    (2) During the initial performance test or any such subsequent 
performance test that demonstrates compliance with the PM limit, you 
must adjust the site-specific operating limit in accordance with the 
results of the performance test according to the procedures specified 
in Sec.  60.2675.
    (3) Collect PM CPMS hourly average output data for all energy 
recovery unit or waste-burning kiln operating hours. Express the PM 
CPMS output as milliamps..
    (4) Calculate the arithmetic 30-day rolling average of all of the 
hourly average PM CPMS output collected during all energy recovery unit 
or waste-burning kiln operating hours data (milliamps).
    (5) You must collect data using the PM CPMS at all times the energy 
recovery unit or waste-burning kiln is operating and at the intervals 
specified in paragraph (r)(1)(ii) of this section, except for periods 
of monitoring system malfunctions, repairs associated with monitoring 
system malfunctions, required monitoring system quality assurance or 
quality control activities (including, as applicable, calibration 
checks and required zero and span adjustments), and any scheduled 
maintenance as defined in your site-specific monitoring plan.
    (6) You must use all the data collected during all energy recovery 
unit or waste-burning kiln operating hours in assessing the compliance 
with your operating limit except:
    (i) Any data collected during monitoring system malfunctions, 
repairs associated with monitoring system malfunctions, or required 
monitoring system quality assurance or quality control activities 
conducted during monitoring system malfunctions are not used in 
calculations (report any such periods in your annual deviation report);
    (ii) Any data collected during periods when the monitoring system 
is out of control as specified in your site-specific monitoring plan, 
repairs associated with periods when the monitoring system is out of 
control, or required monitoring system quality assurance or quality

[[Page 9204]]

control activities conducted during out-of-control periods are not used 
in calculations (report emissions or operating levels and report any 
such periods in your annual deviation report);
    (iii) Any PM CPMS data recorded during periods of CEMS data during 
startup and shutdown, as defined in this subpart.
    (7) You must record and make available upon request results of PM 
CPMS system performance audits, as well as the dates and duration of 
periods from when the PM CPMS is out of control until completion of the 
corrective actions necessary to return the PM CPMS to operation 
consistent with your site-specific monitoring plan.
    (8) For any deviation of the 30-day rolling average PM CPMS average 
value from the established operating parameter limit, you must:
    (i) Within 48 hours of the deviation, visually inspect the air 
pollution control device;
    (ii) If inspection of the air pollution control device identifies 
the cause of the deviation, take corrective action as soon as possible 
and return the PM CPMS measurement to within the established value; and
    (iii) Within 30 days of the deviation or at the time of the annual 
compliance test, whichever comes first, conduct a PM emissions 
compliance test to determine compliance with the PM emissions limit and 
to verify. Within 45 days of the deviation, you must re-establish the 
CPMS operating limit. You are not required to conduct additional 
testing for any deviations that occur between the time of the original 
deviation and the PM emissions compliance test required under this 
paragraph.
    (iv) PM CPMS deviations leading to more than four required 
performance tests in a 12-month process operating period (rolling 
monthly) constitute a violation of this subpart.
    (s) If you use a dry scrubber to comply with the emission limits of 
this subpart, you must monitor the injection rate of each sorbent and 
maintain the 3-hour block averages at or above the operating limits 
established during the hydrogen chloride performance test.

0
40. Section 60.2740 is amended by:
0
a. Revising introductory text.
0
b. Revising paragraph (b)(5).
0
c. Revising paragraph (e).
0
d. Revising paragraphs (o)(2) through (7).
0
e. Adding paragraphs (o)(8) and (9).
0
f. Revising paragraph (u) and (v).
0
g. Adding paragraph (w).
    The revisions read as follows:


Sec.  60.2740  What records must I keep?

    You must maintain the items (as applicable) as specified in 
paragraphs (a), (b), and (e) through (w) of this section for a period 
of at least 5 years:
* * * * *
    (b) * * *
    (5) For affected CISWI units that establish operating limits for 
controls other than wet scrubbers under Sec.  60.2675(d) through (g) or 
Sec.  60.2680, you must maintain data collected for all operating 
parameters used to determine compliance with the operating limits. For 
energy recovery units using activated carbon injection or a dry 
scrubber, you must also maintain records of the load fraction and 
corresponding sorbent injection rate records.
* * * * *
    (e) Identification of calendar dates and times for which data show 
a deviation from the operating limits in table 3 of this subpart or a 
deviation from other operating limits established under Sec.  
60.2675(d) through (g) or Sec.  60.2680 with a description of the 
deviations, reasons for such deviations, and a description of 
corrective actions taken.
* * * * *
    (o) * * *
    (2) All 1-hour average concentrations of sulfur dioxide emissions. 
You must indicate which data are CEMS data during startup and shutdown.
    (3) All 1-hour average concentrations of nitrogen oxides emissions. 
You must indicate which data are CEMS data during startup and shutdown.
    (4) All 1-hour average concentrations of carbon monoxide emissions. 
You must indicate which data are CEMS data during startup and shutdown.
    (5) All 1-hour average concentrations of particulate matter 
emissions. You must indicate which data are CEMS data during startup 
and shutdown.
    (6) All 1-hour average concentrations of mercury emissions. You 
must indicate which data are CEMS data during startup and shutdown.
    (7) All 1-hour average concentrations of hydrogen chloride 
emissions. You must indicate which data are CEMS data during startup 
and shutdown.
    (8) All 1-hour average percent oxygen concentrations.
    (9) All 1-hour average PM CPMS readings or particulate matter CEMS 
outputs.
* * * * *
    (u) For operating units that combust non-hazardous secondary 
materials that have been determined not to be solid waste pursuant to 
Sec.  241.3(b)(1), you must keep a record which documents how the 
secondary material meets each of the legitimacy criteria under Sec.  
241.3(d)(1). If you combust a fuel that has been processed from a 
discarded non-hazardous secondary material pursuant to Sec.  
241.3(b)(4), you must keep records as to how the operations that 
produced the fuel satisfies the definition of processing in Sec.  241.2 
and each of the legitimacy criteria in Sec.  241.3(d)(1) of this 
chapter. If the fuel received a non-waste determination pursuant to the 
petition process submitted under Sec.  241.3(c), you must keep a record 
that documents how the fuel satisfies the requirements of the petition 
process. For operating units that combust non-hazardous secondary 
materials as fuel per Sec.  241.4, you must keep records documenting 
that the material is a listed non-waste under Sec.  241.4(a).
    (v) Records of the criteria used to establish that the unit 
qualifies as a small power production facility under section 3(17)(C) 
of the Federal Power Act (16 U.S.C. 796(17)(C)) and that the waste 
material the unit is proposed to burn is homogeneous.
    (w) Records of the criteria used to establish that the unit 
qualifies as a cogeneration facility under section 3(18)(B) of the 
Federal Power Act (16 U.S.C. 796(18)(B)) and that the waste material 
the unit is proposed to burn is homogeneous.

0
41. Section 60.2770 is amended by:
0
a. Revising paragraph (m) introductory text.
0
b. Revising paragraph (n).
0
c. Adding paragraph (p).
    The revisions and addition read as follows:


Sec.  60.2770  What information must I include in my annual report?

* * * * *
    (m) If there were periods during which the continuous monitoring 
system, including the CEMS, was out of control as specified in 
paragraph (o) of this section, the annual report must contain the 
following information for each deviation from an emission or operating 
limitation occurring for a CISWI unit for which you are using a 
continuous monitoring system to comply with the emission and operating 
limitations in this subpart.
* * * * *
    (n) If there were periods during which the continuous monitoring 
system, including the CEMS, was not out of control as specified in 
paragraph (o) of this section, a statement that there were not periods 
during which the continuous monitoring system was out of control during 
the reporting period.
* * * * *

[[Page 9205]]

    (p) For energy recovery units, include the annual heat input and 
average annual heat input rate of all fuels being burned in the unit to 
verify which subcategory of energy recovery unit applies.

0
42. Section 60.2795 is revised to read as follows:


Sec.  60.2795  In what form can I submit my reports?

    (a) Submit initial, annual, and deviation reports electronically or 
in paper format, postmarked on or before the submittal due dates.
    (b) Submit results of performance tests and CEMS performance 
evaluation tests as follows.
    (1) Within 60 days after the date of completing each performance 
test as required by this subpart, you must submit the results of the 
performance tests required by this subpart to EPA's WebFIRE database by 
using the Compliance and Emissions Data Reporting Interface (CEDRI) 
that is accessed through EPA's Central Data Exchange (CDX)(www.epa.gov/cdx). Performance test data must be submitted in the file format 
generated through use of EPA's Electronic Reporting Tool (ERT) (see 
http://www.epa.gov/ttn/chief/ert/index.html). Only data collected using 
test methods on the ERT Web site are subject to this requirement for 
submitting reports electronically to WebFIRE. Owners or operators who 
claim that some of the information being submitted for performance 
tests is confidential business information (CBI) must submit a complete 
ERT file including information claimed to be CBI on a compact disk, 
flash drive, or other commonly used electronic storage media to EPA. 
The electronic media must be clearly marked as CBI and mailed to U.S. 
EPA/OAPQS/CORE CBI Office, Attention: WebFIRE Administrator, MD C404-
02, 4930 Old Page Rd., Durham, NC 27703. The same ERT file with the CBI 
omitted must be submitted to EPA via CDX as described earlier in this 
paragraph. At the discretion of the delegated authority, you must also 
submit these reports, including the confidential business information, 
to the delegated authority in the format specified by the delegated 
authority. For any performance test conducted using test methods that 
are not listed on the ERT Web site, the owner or operator shall submit 
the results of the performance test in paper submissions to the 
Administrator.
    (2) Within 60 days after the date of completing each CEMS 
performance evaluation test, as defined in this subpart and required by 
this subpart, you must submit the relative accuracy test audit (RATA) 
data electronically into EPA's Central Data Exchange by using CEDRI as 
mentioned in paragraph (b)(1) of this section. Only RATA pollutants 
that can be documented with the ERT (as listed on the ERT Web site) are 
subject to this requirement. For any performance evaluations with no 
corresponding RATA pollutants listed on the ERT Web site, the owner or 
operator shall submit the results of the performance evaluation in 
paper submissions to the Administrator.

0
43. Section 60.2875 is amended by:
0
a. Adding definitions for ``30-day rolling average,'' ``Annual heat 
input,'' ``Average annual heat input rate,'' ``Contained gaseous 
material,'' ``Continuous emission monitoring system,'' ``Dry 
scrubber,'' ``Foundry sand thermal reclamation unit,'' ``Load 
fraction,'' ``Municipal solid waste or municipal type solid waste,'' 
``Oxygen analyzer system,'' ``Oxygen trim system,'' ``Responsible 
official,'' and ``Solid waste.''
0
b. Revising definitions for ``Calendar year,'' ``Chemical recovery 
unit,'' ``Commercial and industrial solid waste incinerator (CISWI),'' 
``Continuous monitoring system (CMS),'' ``Cyclonic burn barrel,'' 
``Energy recovery unit,'' ``Energy recovery unit designed to burn 
biomass (Biomass),'' ``Energy recovery unit designed to burn liquid 
waste materials and gas (Liquid/gas),'' ``Incinerator,'' ``Modification 
or modified CISWI unit,'' ``Process change'', ``Raw mill'', ``Small, 
remote incinerator'', ``Soil treatment unit,'' ``Solid waste 
incineration unit,'' ``Space heater,'' ``Waste burning kiln,'' and 
``Wet scrubber.''
0
c. Removing the definitions for ``Cyclonic barrel burner'' and 
``Homogeneous waste.''
    The revisions and additions read as follows:


Sec.  60.2875  What definitions must I know?

* * * * *
    30-day rolling average means the arithmetic mean of the previous 
720 hours of valid operating data. Valid data excludes periods when 
this unit is not operating. The 720 hours should be consecutive, but 
not necessarily continuous if operations are intermittent.
* * * * *
    Annual heat input means the heat input for the 12 months preceding 
the compliance demonstration.
* * * * *
    Average annual heat input rate means annual heat input divided by 
the hours of operation for the 12 months preceding the compliance 
demonstration.
* * * * *
    Calendar year means 365 consecutive days starting on January 1 and 
ending on December 31.
    CEMS data during startup and shutdown means the following:
    (1) For incinerators, small remote incinerators, and energy 
recovery units: CEMS data collected during the first hours of operation 
of a CISWI unit startup from a cold start until waste is fed into the 
unit and the hours of operation following the cessation of waste 
material being fed to the CISWI unit during a unit shutdown. For each 
startup event, the length of time that CEMS data may be claimed as 
being CEMS data during startup must be 48 operating hours or less. For 
each shutdown event, the length of time that CEMS data may be claimed 
as being CEMS data during shutdown must be 24 operating hours or less.
    (2) For waste-burning kilns: CEMS data collected during the periods 
of kiln operation that do not include normal operations. Startup begins 
when the kiln's induced fan is turned on and continues until continuous 
feed is introduced into the kiln, at which time the kiln is in normal 
operating mode. Shutdown begins when feed to the kiln is halted.
    Chemical recovery unit means combustion units burning materials to 
recover chemical constituents or to produce chemical compounds where 
there is an existing commercial market for such recovered chemical 
constituents or compounds. A chemical recovery unit is not an 
incinerator, a waste-burning kiln, an energy recovery unit or a small, 
remote incinerator under this subpart. The following seven types of 
units are considered chemical recovery units:
    (1) Units burning only pulping liquors (i.e., black liquor) that 
are reclaimed in a pulping liquor recovery process and reused in the 
pulping process.
    (2) Units burning only spent sulfuric acid used to produce virgin 
sulfuric acid.
    (3) Units burning only wood or coal feedstock for the production of 
charcoal.
    (4) Units burning only manufacturing byproduct streams/residue 
containing catalyst metals that are reclaimed and reused as catalysts 
or used to produce commercial grade catalysts.
    (5) Units burning only coke to produce purified carbon monoxide 
that is used as an intermediate in the production of other chemical 
compounds.
    (6) Units burning only hydrocarbon liquids or solids to produce 
hydrogen,

[[Page 9206]]

carbon monoxide, synthesis gas, or other gases for use in other 
manufacturing processes.
    (7) Units burning only photographic film to recover silver.
* * * * *
    Commercial and industrial solid waste incineration (CISWI) unit 
means any distinct operating unit of any commercial or industrial 
facility that combusts, or has combusted in the preceding 6 months, any 
solid waste as that term is defined in 40 CFR part 241. If the 
operating unit burns materials other than traditional fuels as defined 
in Sec.  241.2 that have been discarded, and you do not keep and 
produce records as required by Sec.  60.2740(u), the operating unit is 
a CISWI unit. While not all CISWI units will include all of the 
following components, a CISWI unit includes, but is not limited to, the 
solid waste feed system, grate system, flue gas system, waste heat 
recovery equipment, if any, and bottom ash system. The CISWI unit does 
not include air pollution control equipment or the stack. The CISWI 
unit boundary starts at the solid waste hopper (if applicable) and 
extends through two areas: The combustion unit flue gas system, which 
ends immediately after the last combustion chamber or after the waste 
heat recovery equipment, if any; and the combustion unit bottom ash 
system, which ends at the truck loading station or similar equipment 
that transfers the ash to final disposal. The CISWI unit includes all 
ash handling systems connected to the bottom ash handling system.
    Contained gaseous material means gases that are in a container when 
that container is combusted.
    Continuous emission monitoring system (CEMS) means the total 
equipment that may be required to meet the data acquisition and 
availability requirements of this subpart, used to sample, condition 
(if applicable), analyze, and provide a record of emissions.
    Continuous monitoring system (CMS) means the total equipment, 
required under the emission monitoring sections in applicable subparts, 
used to sample and condition (if applicable), to analyze, and to 
provide a permanent record of emissions or process parameters. A 
particulate matter continuous parameter monitoring system (PM CPMS) is 
a type of CMS.
    Cyclonic burn barrel means a combustion device for waste materials 
that is attached to a 55 gallon, open-head drum. The device consists of 
a lid, which fits onto and encloses the drum, and a blower that forces 
combustion air into the drum in a cyclonic manner to enhance the mixing 
of waste material and air. A cyclonic burn barrel is not an 
incinerator, a waste-burning kiln, an energy recovery unit or a small, 
remote incinerator under this subpart.
* * * * *
    Dry scrubber means an add-on air pollution control system that 
injects dry alkaline sorbent (dry injection) or sprays an alkaline 
sorbent (spray dryer) to react with and neutralize acid gas in the 
exhaust stream forming a dry powder material. Sorbent injection systems 
in fluidized bed boilers and process heaters are included in this 
definition. A dry scrubber is a dry control system.
* * * * *
    Energy recovery unit means a combustion unit combusting solid waste 
(as that term is defined by the Administrator in 40 CFR part 241) for 
energy recovery. Energy recovery units include units that would be 
considered boilers and process heaters if they did not combust solid 
waste.
    Energy recovery unit designed to burn biomass (Biomass) means an 
energy recovery unit that burns solid waste, biomass, and non-coal 
solid materials but less than 10 percent coal, on a heat input basis on 
an annual average, either alone or in combination with liquid waste, 
liquid fuel or gaseous fuels.
* * * * *
    Energy recovery unit designed to burn liquid waste materials and 
gas (Liquid/gas) means an energy recovery unit that burns a liquid 
waste with liquid or gaseous fuels not combined with any solid fuel or 
waste materials.
* * * * *
    Foundry sand thermal reclamation unit means a type of part 
reclamation unit that removes coatings that are on foundry sand. A 
foundry sand thermal reclamation unit is not an incinerator, a waste-
burning kiln, an energy recovery unit or a small, remote incinerator 
under this subpart.
    Incinerator means any furnace used in the process of combusting 
solid waste (as that term is defined by the Administrator in 40 CFR 
part 241) for the purpose of reducing the volume of the waste by 
removing combustible matter. Incinerator designs include single chamber 
and two-chamber.
* * * * *
    Load fraction means the actual heat input of an energy recovery 
unit divided by heat input during the performance test that established 
the minimum sorbent injection rate or minimum activated carbon 
injection rate, expressed as a fraction (e.g., for 50 percent load the 
load fraction is 0.5).
* * * * *
    Modification or modified CISWI unit means a CISWI unit that has 
been changed later than August 7, 2013, and that meets one of two 
criteria:
    (i) The cumulative cost of the changes over the life of the unit 
exceeds 50 percent of the original cost of building and installing the 
CISWI unit (not including the cost of land) updated to current costs 
(current dollars). To determine what systems are within the boundary of 
the CISWI unit used to calculate these costs, see the definition of 
CISWI unit.
    (2) Any physical change in the CISWI unit or change in the method 
of operating it that increases the amount of any air pollutant emitted 
for which section 129 or section 111 of the Clean Air Act has 
established standards.
    Municipal solid waste or municipal-type solid waste means 
household, commercial/retail, or institutional waste. Household waste 
includes material discarded by residential dwellings, hotels, motels, 
and other similar permanent or temporary housing. Commercial/retail 
waste includes material discarded by stores, offices, restaurants, 
warehouses, nonmanufacturing activities at industrial facilities, and 
other similar establishments or facilities. Institutional waste 
includes materials discarded by schools, by hospitals (nonmedical), by 
nonmanufacturing activities at prisons and government facilities, and 
other similar establishments or facilities. Household, commercial/
retail, and institutional waste does include yard waste and refuse-
derived fuel. Household, commercial/retail, and institutional waste 
does not include used oil; sewage sludge; wood pallets; construction, 
renovation, and demolition wastes (which include railroad ties and 
telephone poles); clean wood; industrial process or manufacturing 
wastes; medical waste; or motor vehicles (including motor vehicle parts 
or vehicle fluff).
* * * * *
    Oxygen analyzer system means all equipment required to determine 
the oxygen content of a gas stream and used to monitor oxygen in the 
boiler or process heater flue gas, boiler/process heater, firebox, or 
other appropriate location. This definition includes oxygen trim 
systems and certified oxygen CEMS. The source owner or operator is 
responsible to install, calibrate, maintain, and operate the oxygen 
analyzer system in accordance with the manufacturer's recommendations.
    Oxygen trim system means a system of monitors that is used to 
maintain excess

[[Page 9207]]

air at the desired level in a combustion device. A typical system 
consists of a flue gas oxygen and/or carbon monoxide monitor that 
automatically provides a feedback signal to the combustion air 
controller.
* * * * *
    Process change means any of the following physical or operational 
changes:
    (1) A physical change (maintenance activities excluded) to the 
CISWI unit which may increase the emission rate of any air pollutant to 
which a standard applies;
    (2) An operational change to the CISWI unit where a new type of 
non-hazardous secondary material is being combusted;
    (3) A physical change (maintenance activities excluded) to the air 
pollution control devices used to comply with the emission limits for 
the CISWI unit (e.g., replacing an electrostatic precipitator with a 
fabric filter);
    (4) An operational change to the air pollution control devices used 
to comply with the emission limits for the affected CISWI unit (e.g., 
change in the sorbent injection rate used for activated carbon 
injection).
* * * * *
    Raw mill means a ball or tube mill, vertical roller mill or other 
size reduction equipment, that is not part of an in-line kiln/raw mill, 
used to grind feed to the appropriate size. Moisture may be added or 
removed from the feed during the grinding operation. If the raw mill is 
used to remove moisture from feed materials, it is also, by definition, 
a raw material dryer. The raw mill also includes the air separator 
associated with the raw mill.
* * * * *
    Responsible official means one of the following:
    (1) For a corporation: A president, secretary, treasurer, or vice-
president of the corporation in charge of a principal business 
function, or any other person who performs similar policy or decision-
making functions for the corporation, or a duly authorized 
representative of such person if the representative is responsible for 
the overall operation of one or more manufacturing, production, or 
operating facilities applying for or subject to a permit and either:
    (i) The facilities employ more than 250 persons or have gross 
annual sales or expenditures exceeding $25 million (in second quarter 
1980 dollars); or
    (ii) The delegation of authority to such representatives is 
approved in advance by the permitting authority;
    (2) For a partnership or sole proprietorship: a general partner or 
the proprietor, respectively;
    (3) For a municipality, State, Federal, or other public agency: 
Either a principal executive officer or ranking elected official. For 
the purposes of this part, a principal executive officer of a Federal 
agency includes the chief executive officer having responsibility for 
the overall operations of a principal geographic unit of the agency 
(e.g., a Regional Administrator of EPA); or
    (4) For affected facilities:
    (i) The designated representative in so far as actions, standards, 
requirements, or prohibitions under Title IV of the Clean Air Act or 
the regulations promulgated thereunder are concerned; or
    (ii) The designated representative for any other purposes under 
part 60.
* * * * *
    Small, remote incinerator means an incinerator that combusts solid 
waste (as that term is defined by the Administrator in 40 CFR part 241) 
and combusts 3 tons per day or less solid waste and is more than 25 
miles driving distance to the nearest municipal solid waste landfill.
    Soil treatment unit means a unit that thermally treats petroleum-
contaminated soils for the sole purpose of site remediation. A soil 
treatment unit may be direct-fired or indirect fired. A soil treatment 
unit is not an incinerator, a waste-burning kiln, an energy recovery 
unit or a small, remote incinerator under this subpart.
    Solid waste means the term solid waste as defined in 40 CFR 241.2.
    Solid waste incineration unit means a distinct operating unit of 
any facility which combusts any solid waste (as that term is defined by 
the Administrator in 40 CFR part 241) material from commercial or 
industrial establishments or the general public (including single and 
multiple residences, hotels and motels). Such term does not include 
incinerators or other units required to have a permit under section 
3005 of the Solid Waste Disposal Act. The term ``solid waste 
incineration unit'' does not include:
    (1) Materials recovery facilities (including primary or secondary 
smelters) which combust waste for the primary purpose of recovering 
metals;
    (2) Qualifying small power production facilities, as defined in 
section 3(17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or 
qualifying cogeneration facilities, as defined in section 3(18)(B) of 
the Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous 
waste (such as units which burn tires or used oil, but not including 
refuse-derived fuel) for the production of electric energy or in the 
case of qualifying cogeneration facilities which burn homogeneous waste 
for the production of electric energy and steam or forms of useful 
energy (such as heat) which are used for industrial, commercial, 
heating or cooling purposes; or
    (3) Air curtain incinerators provided that such incinerators only 
burn wood wastes, yard wastes and clean lumber and that such air 
curtain incinerators comply with opacity limitations to be established 
by the Administrator by rule.
    Space heater means a unit that meets the requirements of 40 CFR 
279.23. A space heater is not an incinerator, a waste-burning kiln, an 
energy recovery unit or a small, remote incinerator under this subpart.
* * * * *
    Waste-burning kiln means a kiln that is heated, in whole or in 
part, by combusting solid waste (as the term is defined by the 
Administrator in 40 CFR part 241). Secondary materials used in Portland 
cement kilns shall not be deemed to be combusted unless they are 
introduced into the flame zone in the hot end of the kiln or mixed with 
the precalciner fuel.
    Wet scrubber means an add-on air pollution control device that uses 
an aqueous or alkaline scrubbing liquor to collect particulate matter 
(including nonvaporous metals and condensed organics) and/or to absorb 
and neutralize acid gases.
* * * * *

0
44. Table 1 to subpart DDDD is amended by revising footnotes a and b to 
read as follows:

Table 1 to Subpart DDDD of Part 60--Model Rule--Increments of Progress 
and Compliance Schedules

* * * * *
    \a\ Site-specific schedules can be used at the discretion of the 
state.
    \b\ The date can be no later than 3 years after the effective 
date of state plan approval or December 1, 2005 for CISWI units that 
commenced construction on or before November 30, 1999. The date can 
be no later than 3 years after the effective date of approval of a 
revised state plan or February 7, 2018, for CISWI units that 
commenced construction on or before June 4, 2010.


0
45. Table 2 to subpart DDDD of part 60 is amended by:
0
a. Revising the table heading.
0
b. Revising the entry for ``Hydrogen Chloride''.
0
c. Revising the entry for ``Opacity''.
0
d. Revising the entry for ``Oxides of nitrogen''.

[[Page 9208]]

0
e. Revising footnotes a and b.
    The revisions read as follows:

     Table 2 to Subpart DDDD of Part 60--Model Rule--Emission Limitations That Apply to Incinerators Before
                                    [Date to be specified in state plan] \b\
----------------------------------------------------------------------------------------------------------------
                                      You must meet this                                    And determining
       For the air pollutant               emission         Using this averaging time    compliance  using this
                                        limitation\a\                                            method
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Hydrogen chloride.................  62 parts per million   3-run average (For Method   Performance test (Method
                                     by dry volume.         26, collect a minimum       26 or 26A at 40 CFR part
                                                            volume of 120 liters per    60, appendix A-8).
                                                            run. For Method 26A,
                                                            collect a minimum volume
                                                            of 1 dry standard cubic
                                                            meter per run).
 
                                                  * * * * * * *
Opacity...........................  10 percent...........  Three 1-hour blocks         Performance test (Method
                                                            consisting of ten 6-        9 at 40 CFR part 60,
                                                            minute average opacity      appendix A-4).
                                                            values.
Oxides of nitrogen................  388 parts per million  3-run average (1 hour       Performance test (Methods
                                     by dry volume.         minimum sample time per     7or 7E at 40 CFR part
                                                            run).                       60, appendix A-4).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard
  conditions.
\b\ Applies only to incinerators subject to the CISWI standards through a state plan or the Federal plan prior
  to June 4, 2010. The date specified in the state plan can be no later than 3 years after the effective date of
  approval of a revised state plan or February 7, 2018.

* * * * *

0
46. Table 6 to subpart DDDD of part 60 is amended by:
0
a. Revising the entry for ``Carbon monoxide''.
0
b. Revising the entry for ``Lead''.
0
c. Revising the entry for ``Mercury''.
0
d. Revising the entry for ``Oxides of nitrogen''.
0
e. Revising the entry for ``Sulfur dioxide''.
0
f. Revising footnote a.
0
g. Redesignating footnote c as footnote d.
0
h. Adding footnote c.
    The revisions read as follows:

  Table 6 to Subpart DDDD of Part 60--Model Rule--Emission Limitations That Apply to Incinerators On and After
                                    [Date to be specified in state plan] \a\
----------------------------------------------------------------------------------------------------------------
                                      You must meet this                                    And determining
       For the air pollutant         emission limitation    Using this averaging time    compliance using this
                                             \b\                                                 method
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Carbon monoxide...................  17 parts per million   3-run average (1 hour       Performance test (Method
                                     dry volume.            minimum sample time per     10 at 40 CFR part 60,
                                                            run).                       appendix A-4).
 
                                                  * * * * * * *
Lead..............................  0.015 milligrams per   3-run average (collect a    Performance test (Method
                                     dry standard cubic     minimum volume of 2 dry     29 at 40 CFR part 60,
                                     meter. \c\             standard cubic meters).     appendix A-8). Use ICPMS
                                                                                        for the analytical
                                                                                        finish.
Mercury...........................  0.0048 milligrams per  3-run average (For Method   Performance test (Method
                                     dry standard cubic     29 an ASTM D6784-02         29 or 30B at 40 CFR part
                                     meter.                 (Reapproved 2008) \d\,      60, appendix A-8) or
                                                            collect a minimum volume    ASTM D6784-02
                                                            of 2 dry standard cubic     (Reapproved 2008). \d\
                                                            meters per run. For
                                                            Method 30B, collect a
                                                            minimum sample as
                                                            specified in Method 30B
                                                            at 40 CFR part 60,
                                                            appendix A).
Oxides of nitrogen................  53 parts per million   3-run average (for Method   Performance test (Method
                                     dry volume.            7E, 1 hour minimum sample   7 or 7E at 40 CFR part
                                                            time per run).              60, appendix A-4).
 
                                                  * * * * * * *
Sulfur dioxide....................  11 parts per million   3-run average (1 hour       Performance test (Method
                                     dry volume.            minimum sample time per     6 or 6c at 40 CFR part
                                                            run).                       60, appendix A-4).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ The date specified in the state plan can be no later than 3 years after the effective date of approval of a
  revised state plan or February 7, 2018.
\c\ If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant
  for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing
  according to Sec.   60.2720 if all of the other provisions of Sec.   60.2720 are met. For all other pollutants
  that do not contain a footnote ``c'', your performance tests for this pollutant for at least 2 consecutive
  years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip
  testing.
\d\ Incorporated by reference, see Sec.   60.17.


[[Page 9209]]


0
47. Table 7 to subpart DDDD of part 60 is revised to read as follows:

 Table 7 to Subpart DDDD of Part 60--Model Rule--Emission Limitations That Apply to Energy Recovery Units After
                                                  May 20, 2011
                                    [Date to be specified in state plan] \a\
----------------------------------------------------------------------------------------------------------------
                                  You must meet this emission limitation
                                                    \b\                       Using this        And determining
      For the air pollutant      ----------------------------------------   averaging time     compliance using
                                      Liquid/Gas            Solids                                this method
----------------------------------------------------------------------------------------------------------------
Cadmium.........................  0.023 milligrams    Biomass--0.0014     3-run average       Performance test
                                   per dry standard    milligrams per      (collect a          (Method 29 at 40
                                   cubic meter.        dry standard        minimum volume of   CFR part 60,
                                                       cubic meter. \c\    2 dry standard      appendix A-8).
                                                      Coal--0.0095         cubic meters).      Use ICPMS for the
                                                       milligrams per                          analytical
                                                       dry standard                            finish.
                                                       cubic meter..
Carbon monoxide.................  35 parts per        Biomass--260 parts  3-run average (1    Performance test
                                   million dry         per million dry     hour minimum        (Method 10 at 40
                                   volume.             volume.             sample time per     CFR part 60,
                                                      Coal--95 parts per   run).               appendix A-4).
                                                       million dry
                                                       volume.
Dioxins/furans (total mass        2.9 nanograms per   Biomass--0.52       3-run average       Performance test
 basis).                           dry standard        nanograms per dry   (collect a          (Method 23 at 40
                                   cubic meter.        standard cubic      minimum volume of   CFR part 60,
                                                       meter. \c\          4 dry standard      appendix A-7).
                                                      Coal--5.1            cubic meter).
                                                       nanograms per dry
                                                       standard cubic
                                                       meter. \c\.
Dioxins/furans (toxic             0.32 nanograms per  Biomass--0.12       3-run average       Performance test
 equivalency basis).               dry standard        nanograms per dry   (collect a          (Method 23 at 40
                                   cubic meter.        standard cubic      minimum volume of   CFR part 60,
                                                       meter.              4 dry standard      appendix A-7).
                                                      Coal--0.075          cubic meters).
                                                       nanograms per dry
                                                       standard cubic
                                                       meter. \c\.
Hydrogen chloride...............  14 parts per        Biomass--0.20       3-run average (for  Performance test
                                   million dry         parts per million   Method 26,          (Method 26 or 26A
                                   volume.             dry volume.         collect a minimum   at 40 CFR part
                                                      Coal--13 parts per   of 120 liters;      60, appendix A-
                                                       million dry         for Method 26A,     8).
                                                       volume.             collect a minimum
                                                                           volume of 1 dry
                                                                           standard cubic
                                                                           meter).
Lead............................  0.096 milligrams    Biomass--0.014      3-run average       Performance test
                                   per dry standard    milligrams per      (collect a          (Method 29 at 40
                                   cubic meter.        dry standard        minimum volume of   CFR part 60,
                                                       cubic meter. \c\.   2 dry standard      appendix A-8).
                                                      Coal--0.14           cubic meters).      Use ICPMS for the
                                                       milligrams per                          analytical
                                                       dry standard                            finish.
                                                       cubic meter. \c\.
Mercury.........................  0.0024 milligrams   Biomass--0.0022     3-run average (For  Performance test
                                   per dry standard    milligrams per      Method 29 and       (Method 29 or 30B
                                   cubic meter.        dry standard        ASTM D6784-02       at 40 CFR part
                                                       cubic meter.        (Reapproved 2008)   60, appendix A-8)
                                                      Coal--0.016          \d\, collect a      or ASTM D6784-02
                                                       milligrams per      minimum volume of   (Reapproved 2008)
                                                       dry standard        2 dry standard      \d\.
                                                       cubic meter.        cubic meters per
                                                                           run. For Method
                                                                           30B, collect a
                                                                           minimum sample as
                                                                           specified in
                                                                           Method 30B at 40
                                                                           CFR part 60,
                                                                           appendix A).
Oxides of nitrogen..............  76 parts per        Biomass--290 parts  3-run average (for  Performance test
                                   million dry         per million dry     Method 7E, 1 hour   (Method 7 or 7E
                                   volume.             volume.             minimum sample      at 40 CFR part
                                                      Coal--340 parts      time per run).      60, appendix A-
                                                       per million dry                         4).
                                                       volume.
Particulate matter filterable...  110 milligrams per  Biomass--11         3-run average       Performance test
                                   dry standard        milligrams per      (collect a          (Method 5 or 29
                                   cubic meter.        dry standard        minimum volume of   at 40 CFR part
                                                       cubic meter.        1 dry standard      60, appendix A-3
                                                      Coal--160            cubic meter).       or appendix A-8)
                                                       milligrams per                          if the unit has
                                                       dry standard                            an annual average
                                                       cubic meter.                            heat input rate
                                                                                               less than or
                                                                                               equal to 250
                                                                                               MMBtu/hr; or PM
                                                                                               CPMS (as
                                                                                               specified in Sec.
                                                                                                 60.2710(x)) if
                                                                                               the unit has an
                                                                                               annual average
                                                                                               heat input rate
                                                                                               greater than 250
                                                                                               MMBtu/hr.
Sulfur dioxide..................  720 parts per       Biomass--7.3 parts  3-run average (1    Performance test
                                   million dry         per million dry     hour minimum        (Method 6 or 6c
                                   volume.             volume.             sample time per     at 40 CFR part
                                                      Coal--650 parts      run).               60, appendix A-
                                                       per million dry                         4).
                                                       volume.

[[Page 9210]]

 
Fugitive ash....................  Visible emissions   Visible emissions   Three 1-hour        Visible emission
                                   for no more than    for no more than    observation         test (Method 22
                                   5 percent of the    5 percent of the    periods.            at 40 CFR part
                                   hourly              hourly                                  60, appendix A-
                                   observation         observation                             7).
                                   period.             period.
----------------------------------------------------------------------------------------------------------------
\a\ The date specified in the state plan can be no later than 3 years after the effective date of approval of a
  revised state plan or February 7, 2018.
\b\ All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard
  conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis
  limit.
\c\ If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant
  for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing
  according to Sec.   60.2720 if all of the other provisions of Sec.   60.2720 are met. For all other pollutants
  that do not contain a footnote ``c'', your performance tests for this pollutant for at least 2 consecutive
  years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip
  testing, with the exception of annual performance tests to certify a CEMS or PM CPMS.
\d\ Incorporated by reference, see Sec.   60.17.


0
48. Table 8 to subpart DDDD of part 60 is revised to read as follows:

  Table 8 to Subpart DDDD of Part 60--Model Rule--Emission Limitations That Apply to Waste-Burning Kilns After
                                    [Date to be specified in state plan.] \a\
----------------------------------------------------------------------------------------------------------------
                                          You must meet this                                 And determining
        For the air pollutant            emission  limitation     Using this averaging    compliance using this
                                                 \b\                      time                    method
----------------------------------------------------------------------------------------------------------------
Cadmium..............................  0.0014 milligrams per    3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 2    (Method 29 at 40 CFR
                                        meter. \c\.              dry standard cubic       part 60, appendix A-
                                                                 meters).                 8).
Carbon monoxide......................  110 (long kilns)/790     3-run average (1 hour    Performance test
                                        (preheater/              minimum sample time      (Method 10 at 40 CFR
                                        precalciner) parts per   per run).                part 60, appendix A-
                                        million dry volume.                               4).
Dioxins/furans (total mass basis)....  1.3 nanograms per dry    3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 4    (Method 23 at 40 CFR
                                        \c\.                     dry standard cubic       part 60, appendix A-
                                                                 meters).                 7).
Dioxins/furans (toxic equivalency      0.075 nanograms per dry  3-run average (collect   Performance test
 basis).                                standard cubic meter.    a minimum volume of 4    (Method 23 at 40 CFR
                                        \c\.                     dry standard cubic       part 60, appendix A-
                                                                 meters).                 7).
Hydrogen chloride....................  3.0 parts per million    3-run average (collect   Performance test
                                        dry volume. \c\.         a minimum volume of 1    (Method 321 at 40 CFR
                                                                 dry standard cubic       part 63, appendix A of
                                                                 meter) or 30-day         this part) or HCl CEMS
                                                                 rolling average if HCl   if a wet scrubber is
                                                                 CEMS is being used.      not used.
Lead.................................  0.014 milligrams per     3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 2    (Method 29 at 40 CFR
                                        meter. \c\.              dry standard cubic       part 60, appendix A-
                                                                 meters).                 8).
Mercury..............................  0.011 milligrams per     30-day rolling average.  Mercury CEMS or sorbent
                                        dry standard cubic                                trap monitoring system
                                        meter.                                            (performance
                                                                                          specification 12A or
                                                                                          12B, respectively, of
                                                                                          appendix B of this
                                                                                          part.)
Oxides of nitrogen...................  630 parts per million    3-run average (for       Performance test
                                        dry volume.              Method 7E, 1 hour        (Method 7 or 7E at 40
                                                                 minimum sample time      CFR part 60, appendix
                                                                 per run).                A-4).
Particulate matter filterable........  4.6 milligrams per dry   30-day rolling average.  PM CPMS (as specified
                                        standard cubic meter.                             in Sec.   60.2710(x))
Sulfur dioxide.......................  600 parts per million    3-run average (for       Performance test
                                        dry volume.              Method 6, collect a      (Method 6 or 6c at 40
                                                                 minimum of 20 liters;    CFR part 60, appendix
                                                                 for Method 6C, 1 hour    A-4).
                                                                 minimum sample time
                                                                 per run).
----------------------------------------------------------------------------------------------------------------
\a\ The date specified in the state plan can be no later than 3 years after the effective date of approval of a
  revised state plan or February 7, 2018.
\b\ All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/
  furans, you must meet either the total mass basis limit or the toxic equivalency basis limit.
\c\ If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant
  for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing
  according to Sec.   60.2720 if all of the other provisions of Sec.   60.2720 are met. For all other pollutants
  that do not contain a footnote ``c'', your performance tests for this pollutant for at least 2 consecutive
  years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip
  testing, with the exception of annual performance tests to certify a CEMS or PM CPMS.


0
49. Table 9 to subpart DDDD of part 60 is revised to read as follows:

[[Page 9211]]



  Table 9 to Subpart DDDD of Part 60--Model Rule--Emission Limitations That Apply to Small, Remote Incinerators
                                                      After
                                    [Date to be specified in state plan] \a\
----------------------------------------------------------------------------------------------------------------
                                                                                             And determining
        For the air pollutant             You must meet this      Using this averaging    compliance using this
                                        emission limitation\b\            time                    method
----------------------------------------------------------------------------------------------------------------
Cadmium..............................  0.95 milligrams per dry  3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 1    (Method 29 at 40 CFR
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meters per run).         8).
Carbon monoxide......................  64 parts per million     3-run average (1 hour    Performance test
                                        dry volume.              minimum sample time      (Method 10 at 40 CFR
                                                                 per run).                part 60, appendix A-
                                                                                          4).
Dioxins/furans (total mass basis)....  4,400 nanograms per dry  3-run average (collect   Performance test
                                        standard cubic meter     a minimum volume of 1    (Method 23 at 40 CFR
                                        \b\.                     dry standard cubic       part 60, appendix A-
                                                                 meters per run).         7).
Dioxins/furans (toxic equivalency      180 nanograms per dry    3-run average (collect   Performance test
 basis).                                standard cubic meter     a minimum volume of 1    (Method 23 at 40 CFR
                                        \b\.                     dry standard cubic       part 60, appendix A-
                                                                 meters).                 7).
Fugitive ash.........................  Visible emissions for    Three 1-hour             Visible emissions test
                                        no more than 5 percent   observation periods.     (Method 22 at 40 CFR
                                        of the hourly                                     part 60, appendix A-
                                        observation period.                               7).
Hydrogen chloride....................  300 parts per million    3-run average (For       Performance test
                                        dry volume.              Method 26, collect a     (Method 26 or 26A at
                                                                 minimum volume of 120    40 CFR part 60,
                                                                 liters per run. For      appendix A-8).
                                                                 Method 26A, collect a
                                                                 minimum volume of 1
                                                                 dry standard cubic
                                                                 meter per run).
Lead.................................  2.1 milligrams per dry   3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 1    (Method 29 at 40 CFR
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meters).                 8). Use ICPMS for the
                                                                                          analytical finish.
Mercury..............................  0.0053 milligrams per    3-run average (For       Performance test
                                        dry standard cubic       Method 29 and ASTM       (Method 29 or 30B at
                                        meter.                   D6784-02 (Reapproved     40 CFR part 60,
                                                                 2008),\c\ collect a      appendix A-8) or ASTM
                                                                 minimum volume of 2      D6784-02 (Reapproved
                                                                 dry standard cubic       2008). \c\
                                                                 meters per run. For
                                                                 Method 30B, collect a
                                                                 minimum sample as
                                                                 specified in Method
                                                                 30B at 40 CFR part 60,
                                                                 appendix A).
Oxides of nitrogen...................  190 parts per million    3-run average (for       Performance test
                                        dry volume.              Method 7E, 1 hour        (Method 7 or 7E at 40
                                                                 minimum sample time      CFR part 60, appendix
                                                                 per run).                A-4).
Particulate matter...................  270 milligrams per dry   3-run average (collect   Performance test
(filterable).........................   standard cubic meter.    a minimum volume of 1    (Method 5 or 29 at 40
                                                                 dry standard cubic       CFR part 60, appendix
                                                                 meters).                 A-3 or appendix A-8).
Sulfur dioxide.......................  150 parts per million    3-run average (for       Performance test
                                        dry volume.              Method 6, collect a      (Method 6 or 6c at 40
                                                                 minimum of 20 liters     CFR part 60, appendix
                                                                 per run; for Method      A-4).
                                                                 6C, 1 hour minimum
                                                                 sample time per run).
----------------------------------------------------------------------------------------------------------------
\a\ The date specified in the state plan can be no later than 3 years after the effective date of approval of a
  revised state plan or February 7, 2018.
\b\ All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard
  conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis
  limit.
\c\ Incorporated by reference, see Sec.   60.17.

PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION 
UNITS

0
50. The authority citation for part 241 continues to read as follows:

    Authority:  42 U.S.C. 6903, 6912, 7429.

Subpart A--General

0
51. Section 241.2 is amended by:
0
a. Revising the definition of ``Clean cellulosic biomass'';
0
b. Revising the definition of ``Contaminants'';
0
c. Revising the definition of ``Established tire collection programs''; 
and
0
d. Revising the definition of ``Resinated wood''.
    The revisions read as follows:


Sec.  241.2  Definitions.

* * * * *
    Clean cellulosic biomass means those residuals that are akin to 
traditional cellulosic biomass, including, but not limited to: 
Agricultural and forest-derived biomass (e.g., green wood, forest 
thinnings, clean and unadulterated bark, sawdust, trim, tree harvesting 
residuals from logging and sawmill materials, hogged fuel, wood 
pellets, untreated wood pallets); urban wood (e.g., tree trimmings, 
stumps, and related forest-derived biomass from urban settings); corn 
stover and other biomass crops used specifically for the production of 
cellulosic biofuels (e.g., energy cane, other fast growing grasses, 
byproducts of ethanol natural fermentation processes); bagasse and 
other crop residues (e.g., peanut shells, vines, orchard trees, hulls, 
seeds, spent grains, cotton byproducts, corn and peanut production 
residues, rice milling and grain elevator operation residues); wood 
collected from forest fire clearance activities, trees and clean wood 
found in disaster debris, clean biomass from land clearing operations, 
and clean construction and demolition wood. These fuels are not 
secondary materials or solid wastes unless discarded. Clean biomass is 
biomass that does not contain contaminants at concentrations not

[[Page 9212]]

normally associated with virgin biomass materials.
* * * * *
    Contaminants means all pollutants listed in Clean Air Act sections 
112(b) or 129(a)(4), with the following three modifications:
    (1) The definition includes the elements chlorine, fluorine, 
nitrogen, and sulfur in cases where non-hazardous secondary materials 
are burned as a fuel and combustion will result in the formation of 
hydrogen chloride (HCl), hydrogen fluoride (HF), nitrogen oxides 
(NOX), or sulfur dioxide (SO2). Chlorine, 
fluorine, nitrogen, and sulfur are not included in the definition in 
cases where non-hazardous secondary materials are used as an ingredient 
and not as a fuel.
    (2) The definition does not include the following pollutants that 
are either unlikely to be found in non-hazardous secondary materials 
and products made from such materials or are adequately measured by 
other parts of this definition: hydrogen chloride (HCl), chlorine gas 
(Cl2), hydrogen fluoride (HF), nitrogen oxides 
(NOX), sulfur dioxide (SO2), fine mineral fibers, 
particulate matter, coke oven emissions, opacity, diazomethane, white 
phosphorus, and titanium tetrachloride.
    (3) The definition does not include m-cresol, o-cresol, p-cresol, 
m-xylene, o-xylene, and p-xylene as individual contaminants distinct 
from the grouped pollutants total cresols and total xylenes.
* * * * *
    Established tire collection program means a comprehensive 
collection system or contractual arrangement that ensures scrap tires 
are not discarded and are handled as valuable commodities through 
arrival at the combustion facility. This can include tires that were 
not abandoned and were received from the general public at collection 
program events.
* * * * *
    Resinated wood means wood products (containing binders and 
adhesives) produced by primary and secondary wood products 
manufacturing. Resinated wood includes residues from the manufacture 
and use of resinated wood, including materials such as board trim, 
sander dust, panel trim, and off-specification resinated wood products 
that do not meet a manufacturing quality or standard.
* * * * *

Subpart B--Identification of Non-Hazardous Secondary Materials That 
Are Solid Wastes When Used as Fuels or Ingredients in Combustion 
Units

0
52. Amend 241.3 as follows:
0
a. Revise paragraph (a) and (b).
0
b. Revise paragraph (c) introductory text, and paragraphs (c)(1) 
introductory text, (c)(2) introductory text, and (c)(2)(ii), (iii), and 
(iv).
0
c. Revise paragraph (d)(1)(iii).
    The revisions read as follows:


Sec.  241.3  Standards and procedures for identification of non-
hazardous secondary materials that are solid wastes when used as fuels 
or ingredients in combustion units.

    (a) Except as provided in paragraph (b) of this section or in Sec.  
241.4(a) of this subpart, non-hazardous secondary materials that are 
combusted are solid wastes, unless a petition is submitted to, and a 
determination granted by, the EPA pursuant to paragraph (c) of this 
section. The criteria to be addressed in the petition, as well as the 
process for making the non-waste determination, are specified in 
paragraph (c) of this section.
    (b) The following non-hazardous secondary materials are not solid 
wastes when combusted:
    (1) Non-hazardous secondary materials used as a fuel in a 
combustion unit that remain within the control of the generator and 
that meet the legitimacy criteria specified in paragraph (d)(1) of this 
section.
    (2) The following non-hazardous secondary materials that have not 
been discarded and meet the legitimacy criteria specified in paragraph 
(d)(1) of this section when used in a combustion unit (by the generator 
or outside the control of the generator):
    (i) [Reserved]
    (ii) [Reserved]
    (3) Non-hazardous secondary materials used as an ingredient in a 
combustion unit that meet the legitimacy criteria specified in 
paragraph (d)(2) of this section.
    (4) Fuel or ingredient products that are used in a combustion unit, 
and are produced from the processing of discarded non-hazardous 
secondary materials and that meet the legitimacy criteria specified in 
paragraph (d)(1) of this section, with respect to fuels, and paragraph 
(d)(2) of this section, with respect to ingredients. The legitimacy 
criteria apply after the non-hazardous secondary material is processed 
to produce a fuel or ingredient product. Until the discarded non-
hazardous secondary material is processed to produce a non-waste fuel 
or ingredient, the discarded non-hazardous secondary material is 
considered a solid waste and would be subject to all appropriate 
federal, state, and local requirements.
    (c) The Regional Administrator may grant a non-waste determination 
that a non-hazardous secondary material that is used as a fuel, which 
is not managed within the control of the generator, is not discarded 
and is not a solid waste when combusted. This responsibility may be 
retained by the Assistant Administrator for the Office of Solid Waste 
and Emergency Response if combustors are located in multiple EPA 
Regions and the petitioner requests that the Assistant Administrator 
process the non-waste determination petition. If multiple combustion 
units are located in one EPA Region, the application must be submitted 
to the Regional Administrator for that Region. The criteria and process 
for making such non-waste determinations includes the following:
    (1) Submittal of an application to the Regional Administrator for 
the EPA Region where the facility or facilities are located or the 
Assistant Administrator for the Office of Solid Waste and Emergency 
Response for a determination that the non-hazardous secondary material, 
even though it has been transferred to a third party, has not been 
discarded and is indistinguishable in all relevant aspects from a fuel 
product. The determination will be based on whether the non-hazardous 
secondary material that has been discarded is a legitimate fuel as 
specified in paragraph (d)(1) of this section and on the following 
criteria:
* * * * *
    (2) The Regional Administrator or Assistant Administrator for the 
Office of Solid Waste and Emergency Response will evaluate the 
application pursuant to the following procedures:
* * * * *
    (ii) The Regional Administrator or Assistant Administrator for the 
Office of Solid Waste and Emergency Response will evaluate the 
application and issue a draft notice tentatively granting or denying 
the application. Notification of this tentative decision will be 
published in a newspaper advertisement or radio broadcast in the 
locality where the facility combusting the non-hazardous secondary 
material is located, and be made available on the EPA's Web site.
    (iii) The Regional Administrator or the Assistant Administrator for 
the Office of Solid Waste and Emergency Response will accept public 
comments on the tentative decision for 30 days, and may also hold a 
public hearing upon request or at his discretion. The Regional 
Administrator or the Assistant

[[Page 9213]]

Administrator for the Office of Solid Waste and Emergency Response will 
issue a final decision after receipt of comments and after a hearing 
(if any). If a determination is made that the non-hazardous secondary 
material is a non-waste fuel, it will be retroactive and apply on the 
date the petition was submitted.
    (iv) If a change occurs that affects how a non-hazardous secondary 
material meets the relevant criteria contained in this paragraph after 
a formal non-waste determination has been granted, the applicant must 
re-apply to the Regional Administrator or the Assistant Administrator 
for the Office of Solid Waste and Emergency Response for a formal 
determination that the non-hazardous secondary material continues to 
meet the relevant criteria and, thus, is not a solid waste.
    (d) * * *
    (1) * * *
    (iii) The non-hazardous secondary material must contain 
contaminants or groups of contaminants at levels comparable in 
concentration to or lower than those in traditional fuel(s) which the 
combustion unit is designed to burn. In determining which traditional 
fuel(s) a unit is designed to burn, persons may choose a traditional 
fuel that can be or is burned in the particular type of boiler, whether 
or not the combustion unit is permitted to burn that traditional fuel. 
In comparing contaminants between traditional fuel(s) and a non-
hazardous secondary material, persons can use data for traditional fuel 
contaminant levels compiled from national surveys, as well as 
contaminant level data from the specific traditional fuel being 
replaced. To account for natural variability in contaminant levels, 
persons can use the full range of traditional fuel contaminant levels, 
provided such comparisons also consider variability in non-hazardous 
secondary material contaminant levels. Such comparisons are to be based 
on a direct comparison of the contaminant levels in both the non-
hazardous secondary material and traditional fuel(s) prior to 
combustion.
* * * * *

0
55. Add Sec.  241.4 to read as follows:


Sec.  241.4  Non-Waste Determinations for Specific Non-Hazardous 
Secondary Materials When Used as a Fuel.

    (a) The following non-hazardous secondary materials are not solid 
wastes when used as a fuel in a combustion unit:
    (1) Scrap tires that are not discarded and are managed under the 
oversight of established tire collection programs, including tires 
removed from vehicles and off-specification tires.
    (2) Resinated wood.
    (3) Coal refuse that has been recovered from legacy piles and 
processed in the same manner as currently-generated coal refuse.
    (4) Dewatered pulp and paper sludges that are not discarded and are 
generated and burned on-site by pulp and paper mills that burn a 
significant portion of such materials where such dewatered residuals 
are managed in a manner that preserves the meaningful heating value of 
the materials.
    (b) Any person may submit a rulemaking petition to the 
Administrator to identify additional non-hazardous secondary materials 
to be listed in paragraph (a) of this section. Contents and procedures 
for the submittal of the petitions include the following:
    (1) Each petition must be submitted to the Administrator by 
certified mail and must include:
    (i) The petitioner's name and address;
    (ii) A statement of the petitioner's interest in the proposed 
action;
    (iii) A description of the proposed action, including (where 
appropriate) suggested regulatory language; and
    (iv) A statement of the need and justification for the proposed 
action, including any supporting tests, studies, or other information. 
Where the non-hazardous secondary material does not meet the legitimacy 
criteria, the applicant must explain why such non-hazardous secondary 
material should be considered a non-waste fuel, balancing the 
legitimacy criteria with other relevant factors.
    (2) The Administrator will make a tentative decision to grant or 
deny a petition and will publish notice of such tentative decision, 
either in the form of an advanced notice of proposed rulemaking, a 
proposed rule, or a tentative determination to deny the petition, in 
the Federal Register for written public comment.
    (3) Upon the written request of any interested person, the 
Administrator may, at its discretion, hold an informal public hearing 
to consider oral comments on the tentative decision. A person 
requesting a hearing must state the issues to be raised and explain why 
written comments would not suffice to communicate the person's views. 
The Administrator may in any case decide on its own motion to hold an 
informal public hearing.
    (4) After evaluating all public comments the Administrator will 
make a final decision by publishing in the Federal Register a 
regulatory amendment or a denial of the petition.
    (5) The Administrator will grant or deny a petition based on the 
weight of evidence showing the following:
    (i) The non-hazardous secondary material has not been discarded in 
the first instance and is legitimately used as a fuel in a combustion 
unit, or if discarded, has been sufficiently processed into a material 
that is legitimately used as a fuel.
    (ii) Where any one of the legitimacy criteria in Sec.  241.3(d)(1) 
is not met, that the use of the non-hazardous secondary material is 
integrally tied to the industrial production process, that the non-
hazardous secondary material is functionally the same as the comparable 
traditional fuel, or other relevant factors as appropriate.

[FR Doc. 2012-31632 Filed 2-6-13; 8:45 am]
BILLING CODE 6560-50-P