OAR­
2003­
0119
Commercial
and
Industrial
Solid
Waste
Incineration
Unit
New
Source
Performance
Standards
and
Emission
Guidelines:
Definitions
Summary
of
Public
Comments
and
Responses
Contract
No.
68­
D­
01­
081
Work
Assignment
No.
3­
16
U.
S.
Environmental
Protection
Agency
Office
of
Air
Quality
Planning
and
Standards
Emission
Standards
Division
Research
Triangle
Park,
North
Carolina
27711
September
14,
2005
0154­
03­
008\
CISWI
comment­
response.
doc
i
Disclaimer
This
report
has
been
reviewed
by
the
Emission
Standards
Division
of
the
Office
of
Air
Quality
Planning
and
Standards,
and
EPA,
and
approved
for
publication.
Mention
of
trade
names
or
commercial
products
is
not
intended
to
constitute
endorsement
or
recommendation
for
use.
0154­
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CISWI
comment­
response.
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ii
TABLE
OF
CONTENTS
Chapter
Page
1
Summary
............................................................................................................
1
1.1
Summary
of
Changes
Since
Proposal
.......................................................
1
2
Summary
of
Public
Comments..........................................................................
3
3
General
Comments
on
Definitions
....................................................................
5
4
Definition
of
Commercial
and
Industrial
Solid
Waste
Incineration
(
CISWI)
Unit
..............................................................................
17
5
Definition
of
Commercial
or
Industrial
Waste
...............................................
19
6
Definition
of
Solid
Waste
.................................................................................
23
7
Waste
Heat
Recovery
Units
.............................................................................
27
8
Miscellaneous
...................................................................................................
30
8.1
Bagasse
..................................................................................................
30
8.2
Clarifications
to
the
Applicability
of
the
CISWI
Rules
That
are
Not
Related
to
the
Proposed
Definition
Changes.....................................
31
8.3
Rulemaking
Process................................................................................
33
LIST
OF
TABLES
Table
Page
2­
1.
List
of
Commenters
for
the
Commercial
and
Industrial
Solid
Waste
Incineration
Unit
NSPS
and
EG:
Definitions
.......................................................................................
3
0154­
03­
008\
CISWI
comment­
response.
doc
1
Chapter
1
Summary
On
December
1,
2000,
EPA
promulgated
new
source
performance
standards
(
NSPS)
and
emission
guidelines
for
commercial
and
industrial
solid
waste
incineration
(
CISWI)
units
(
hereafter
referred
to
as
the
"
CISWI
Rules").
On
August
17,
2001,
EPA
granted
a
petition
for
reconsideration
regarding
the
definitions
of
"
commercial
or
industrial
waste"
and
"
commercial
and
industrial
solid
waste
incineration
unit"
in
the
final
rules.
On
February
17,
2004,
a
Federal
Register
notice
was
published
soliciting
comments
on
the
definitions
of
"
solid
waste,"

"
commercial
or
industrial
waste"
and
"
commercial
and
industrial
solid
waste
incineration
unit"
in
the
CISWI
rules.

Twelve
public
comment
letters
were
received
from
a
wide
variety
of
sources,
consisting
mainly
of
government
agencies,
environmental
organizations,
industry
and
utility
associations,
and
owner/
operators
of
incinerators
and
other
types
of
facilities.

All
of
the
comments
that
were
submitted
and
the
responses
to
these
comments
are
summarized
in
this
document.
This
summary
is
the
basis
for
the
revisions
made
to
the
CISWI
definitions
between
proposal
and
promulgation.

1.1
SUMMARY
OF
CHANGES
SINCE
PROPOSAL
The
major
differences
between
the
definitions
we
are
promulgating
for
the
CISWI
rules
and
those
proposed
on
February
17,
2004
(
69
FR
7396),
are
that
we
have
removed
the
language
in
the
proposed
definition
of
"
commercial
or
industrial
waste"
that
served
to
include
units
with
only
waste
heat
recovery
in
the
CISWI
source
category,
and
we
are
not
promulgating
the
definition
of
"
waste
heat
recovery"
at
this
time.
These
changes
were
made
because
we
have
not
0154­
03­
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CISWI
comment­
response.
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2
assessed
the
impacts
of
including
units
with
waste
heat
recovery
in
the
CISWI
rules.
An
impacts
assessment
is
necessary,
but
is
best
done
when
we
respond
to
the
CISWI
remand
and
can
perform
comprehensive
analyses
that
address
the
addition
of
waste
heat
recovery
units,
other
questions
on
the
applicability
of
the
CISWI
rules
and
interface
with
the
rules
for
the
other
solid
waste
incineration
(
OSWI)
source
category,
and
remand
issues
regarding
determination
of
the
MACT
floor
and
emission
limits.
Otherwise,
editorial
changes
were
made
to
the
definition
of
"
commercial
or
industrial
waste"
to
reduce
repetition
among
the
definitions
and
better
express
our
intent.
0154­
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CISWI
comment­
response.
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3
Chapter
2
Summary
of
Public
Comments
The
EPA
received
a
total
of
12
letters
commenting
on
the
proposed
definitions
for
the
CISWI
rules,
some
of
which
contained
attachments.
A
list
of
commenters,
their
affiliations,
and
the
EPA
docket
item
number
assigned
to
their
correspondence
is
provided
in
Table
2­
1.
To
achieve
an
organized
presentation,
we
have
grouped
the
comments
by
topic
in
Chapters
3
through
8
of
this
document.

Table
2­
1.
List
of
Commenters
for
the
Commercial
and
Industrial
Solid
Waste
Incineration
Unit
NSPS
and
EG:
Definitions
(
OAR­
2003­
0119)

Docket
No.
Commenter's
Name
and
Addressa
OAR­
2003­
0119­
0002
John
R.
Evans,
Lyondell
Chemical
Company,
Houston,
TX
OAR­
2003­
0119­
0003
Michael
R.
Benoit,
Cement
Kiln
Recycling
Coalition,
Washington,
DC
OAR­
2003­
0119­
0004
Michael
R.
Benoit,
Cement
Kiln
Recycling
Coalition,
Washington,
DC
(
Comment
Attachment)
OAR­
2003­
0119­
0005
Michael
R.
Benoit,
Cement
Kiln
Recycling
Coalition,
Washington,
DC
(
Comment
Attachment)
OAR­
2003­
0119­
0006
Michael
R.
Benoit,
Cement
Kiln
Recycling
Coalition,
Washington,
DC
(
Comment
Attachment)
OAR­
2003­
0119­
0007
Michael
R.
Benoit,
Cement
Kiln
Recycling
Coalition,
Washington,
DC
(
Comment
Attachment)
OAR­
2003­
0119­
0008
Derek
Maat,
Tyonek
Native
Corporation,
Nikiski,
AK
(
on
behalf
of
Envirotech
LLC)
OAR­
2003­
0119­
0009
William
F.
Petersen,
PPLC,
Washington,
DC
(
on
behalf
of
AF&
PA,
ACC,
API,
CIBO)
OAR­
2003­
0119­
0010
William
F.
Petersen,
PPLC,
Washington,
DC
(
on
behalf
of
AF&
PA,
ACC,
API,
CIBO)
[
Duplicate
comment]
OAR­
2003­
0119­
0011
David
Buff,
Golder
Associates,
Inc.,
Gainesville,
FL
0154­
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CISWI
comment­
response.
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Table
2­
1.
List
of
Commenters
for
the
Commercial
and
Industrial
Solid
Waste
Incineration
Unit
NSPS
and
EG:
Definitions
(
OAR­
2003­
0119)

Docket
No.
Commenter's
Name
and
Addressa
OAR­
2003­
0119­
0012
Earth
Justice,
Washington,
DC
OAR­
2003­
0119­
0013
K.
T.
Murphy,
Ashland,
Inc.
Columbus,
OH
OAR­
2003­
0119­
0014
Barry
Stephens,
Tennessee
Department
of
Environment
and
Conservation,
Nashville,
TN
OAR­
2003­
0119­
0015
Peter
Briggs,
United
States
Sugar
Corporation,
Clewiston,
FL
OAR­
2003­
0119­
0016
C.
David
Cooper
&
David
Buff,
United
States
Sugar
Corporation,
Clewiston,
FL
(
Comment
Attachment)
OAR­
2003­
0119­
0017
Earth
Justice,
Washington,
DC
(
duplicate
comment
to
OAR­
2003­
0119­
0012)
OAR­
2003­
0119­
0018
Earth
Justice,
Washington,
DC
(
duplicate
comment
to
OAR­
2003­
0119­
0012)
OAR­
2003­
0119­
0019
Earth
Justice,
Washington,
DC
(
duplicate
comment
to
OAR­
2003­
0119­
0012)
OAR­
2003­
0119­
0020
Earth
Justice,
Washington,
DC
(
duplicate
comment
to
OAR­
2003­
0119­
0012)
OAR­
2003­
0119­
0021
Earth
Justice,
Washington,
DC
(
duplicate
comment
to
OAR­
2003­
0119­
0012)
OAR­
2003­
0119­
0022
Earth
Justice,
Washington,
DC
(
duplicate
comment
to
OAR­
2003­
0119­
0012)
OAR­
2003­
0119­
0023
Earth
Justice,
Washington,
DC
(
duplicate
comment
to
OAR­
2003­
0119­
0012)
OAR­
2003­
0119­
0024
Earth
Justice,
Washington,
DC
(
duplicate
comment
to
OAR­
2003­
0119­
0012)
OAR­
2003­
0119­
0025
Barry
Stephens,
Tennessee
Department
of
Environment
and
Conservation,
Nashville,
TN
(
duplicate
comment
to
OAR­
2003­
0119­
0014)
OAR­
2003­
0119­
0026
Utility
Solid
Waste
Activities
Group,
Washington,
DC
OAR­
2003­
0119­
0027
Ron
Mathier,
Georgia
Department
of
Natural
Resources,
Atlanta,
GA
OAR­
2003­
0119­
0028
Margaret
Hoffman,
Texas
Commission
on
Environmental
Quality,
Austin,
TX
a
Commenters
listed
multiple
times
due
to
duplicate
comments
and
attachments
are
referred
to
in
Chapters
3
through
8
of
this
document
by
the
first
number
that
was
assigned
to
that
commenter
in
the
docket.
0154­
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CISWI
comment­
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5
Chapter
3
General
Comments
on
Definitions
Comment:
One
commenter
(
OAR­
2003­
0119­
0012)
stated
that
EPA's
attempts
to
fabricate
ambiguity
in
section
129
are
without
merit.
The
commenter
stated
that,
regardless
of
whether
EPA
has
discretion
to
draw
the
line
between
different
types
of
solid
waste
combustion
units,
the
agency
does
not
have
the
discretion
to
exempt
any
such
units
from
regulation
under
section
129
(
except
for
those
expressly
enumerated
in
section
129(
g)(
1)).
The
commenter
added
that,
contrary
to
EPA's
claim,
the
critical
question
is
not
whether
a
unit
"
is
designed
and
operated
to
recover
heat
for
a
useful
purpose,"
but,
rather,
is
"
does
the
unit
combust
solid
waste?"
Finally,

the
commenter
added
that,
read
as
a
whole,
section
129
requires
that
the
CISWI
standards
must
apply
to
all
combustion
units
that
burn
waste
from
commercial
and
industrial
facilities.
The
commenter
contended
that
EPA's
narrow
definitions
of
"
commercial
or
industrial
waste"
and
"
commercial
and
industrial
solid
waste
incineration
unit"
unlawfully
exempt
the
majority
of
CISWI
units
from
regulation
under
section
129.
The
commenter
also
pointed
out
that
most
CISWI
units
fall
below
the
major
source
threshold
established
in
CAA
section
112(
a).
The
commenter
viewed
EPA's
definitions
in
the
CISWI
rule
as
an
attempt
to
regulate
many
sources
under
section
112,
instead
of
regulating
all
sources
under
section
129.
Section
112
requires
emissions
standards
based
on
generally
available
control
technology
(
GACT)
for
non­
major
sources.

Response:
EPA
disagrees
with
the
commenter.
Contrary
to
the
commenters'
assertion,

section
129
is
ambiguous
because
it
does
not
contain
definitions
of
certain
terms.
EPA
has
reasonably
interpreted
section
129
in
establishing
the
regulatory
definitions
described
in
the
notice.
The
statutory
provisions
of
sections
129(
a),
(
g),
and
(
h)
of
the
CAA
collectively
call
for
0154­
03­
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CISWI
comment­
response.
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6
EPA
to
determine,
as
part
of
the
regulatory
process,
which
combustion
units
should
be
subject
to
regulation
under
section
129.
Section
129
of
the
CAA
directs
EPA
to
promulgate
standards
under
section
111
applicable
to
"
solid
waste
incineration
units
combusting
commercial
or
industrial
waste."
42
U.
S.
C.
§
7429(
a)(
1)(
D).
However,
section
129
does
not
define
commercial
or
industrial
waste.
Inherent
in
EPA's
implementation
of
this
statutory
provision
is
the
discretion
to
reasonably
define
what
constitutes
this
undefined
type
of
solid
waste.
Furthermore,
the
language
of
CAA
section
129(
h)
makes
clear
the
Congressional
intent
that
nonhazardous
combustion
sources
not
be
regulated
under
both
section
129
and
section
112.
Thus,
for
the
CISWI
rules,
EPA
must
determine
which
types
of
sources
are
included
in
the
CISWI
source
category.

The
distinction
between
CISWI
units
and
non­
CISWI
combustion
units
is
not
readily
apparent.
For
example,
there
is
general
agreement
that
burning
coal
in
a
coal­
fired
boiler
is
not
commercial
or
industrial
waste,
because
coal
is
commonly
thought
of
as
a
fuel.
However,
there
are
many
other
materials
that
are
burned
in
commercial
and
industrial
boilers
for
energy
recovery.

Such
materials
include
wood,
other
biomass,
bagasse
burned
in
boilers
at
sugar
plants
to
produce
the
heat
needed
to
refine
sugar
from
sugar
cane,
and
many
other
materials
generated
as
part
of
commercial
or
manufacturing
activities.
When
these
materials
are
burned
in
a
boiler
to
recover
heat
for
a
useful
purpose,
it
is
reasonable
to
consider
these
materials,
like
coal,
to
be
a
fuel
and
distinct
from
commercial
and
industrial
solid
waste.
Combustion
of
such
materials,
when
burned
in
a
boiler
that
recovers
energy
for
a
useful
purpose,
is
not
considered
waste
combustion
and
is
appropriately
addressed
under
CAA
section
112
regulations
for
boilers
(
e.
g.,
the
boilers
NESHAP
and
area
source
boilers
standards).
On
the
other
hand,
if
materials
were
burned
in
a
combustion
unit
without
heat
recovery,
the
combustion
would
serve
no
useful
purpose
other
than
destruction
or
disposal
of
an
unwanted
material,
and
EPA
would
then
consider
it
appropriate
to
identify
the
material
as
a
commercial
or
industrial
waste
and
regulate
the
combustion
unit
under
section
129
as
a
CISWI
unit.

In
addition,
many
units
that
are
designed
and
operated
for
energy
recovery
and
predominantly
burn
materials
that
are
widely
considered
fuels
will
occasionally
fire
small
amounts
of
other
materials
in
these
units
that
could
be
considered
waste
in
some
circumstances.
However,

these
units
continue
to
recover
energy
from
the
combustion
of
these
additional
materials.
Thus,
it
0154­
03­
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CISWI
comment­
response.
doc
7
is
not
immediately
clear
how
EPA
should
classify
such
units
that
are
designed
and
operated
for
energy
recovery
but
occasionally
combust
waste­
like
materials.

The
EPA
has
determined
that
for
purposes
of
the
CISWI
rules,
the
critical
consideration
in
determining
whether
the
unit
is
burning
commercial
or
industrial
waste
is
the
primary
function
of
the
combustion
unit;
and
the
primary
indicator
of
function
is
whether
or
not
a
unit
is
designed
and
operated
to
recover
energy
for
a
useful
purpose.
Accordingly,
we
are
promulgating
definitions
of
"
commercial
or
industrial
waste"
and
"
CISWI
unit"
to
include
in
the
CISWI
rules
units
whose
design
does
not
provide
for
energy
recovery
or
that
are
operated
without
energy
recovery.
We
continue
to
define
energy
recovery
as
the
recovery
of
heat
(
thermal
energy)
for
a
useful
purpose.

The
revised
definition
of
"
commercial
or
industrial
waste"
does
not
change
the
existing
scope
of
the
CISWI
category,
but
contains
editorial
revisions
to
more
clearly
express
our
intent,
as
described
in
later
responses.

The
determination
that
units
(
such
as
boilers)
that
recover
energy
for
a
useful
purpose
are
not
subject
to
the
CISWI
rules
does
not
exclude
them
from
regulation.
As
noted
earlier,
EPA
has
already
regulated
commercial
and
industrial
boilers
and
process
heaters
located
at
major
sources
under
40
CFR
63,
subpart
DDDDD
(
the
boilers
NESHAP).
The
EPA
is
addressing
commercial
and
institutional
boilers
and
process
heaters
located
at
area
sources
under
the
section
112
area
source
boilers
standards,
currently
under
development.
Additionally,
other
categories
of
specialty
combustion
units,
such
as
hazardous
waste
combustors
and
cement
kilns
are
regulated
under
separate
section
112
NESHAP.
Section
112
addresses
hazardous
air
pollutants
such
as
hazardous
metals,
organic
compounds,
and
hydrogen
chloride
(
HCl).

The
major
differences
between
the
definitions
we
are
promulgating
for
the
CISWI
rules
and
those
proposed
on
February
17,
2004
(
69
FR
7396),
are
that
we
have
removed
the
language
in
the
proposed
definition
of
"
commercial
or
industrial
waste"
that
served
to
include
units
with
only
waste
heat
recovery
in
the
CISWI
source
category,
and
we
are
not
promulgating
the
definition
of
"
waste
heat
recovery"
at
this
time.
We
are
not
taking
final
action
on
these
changes
because
we
have
not
yet
had
an
opportunity
to
assess
the
impacts
of
including
units
with
waste
heat
recovery
in
the
CISWI
rules.
An
impacts
assessment
is
necessary,
but
is
best
done
when
we
respond
to
the
CISWI
remand
and
can
perform
comprehensive
analyses
that
address
the
addition
of
waste
heat
recovery
units,
any
questions
on
the
applicability
of
the
CISWI
rules
raised
by
promulgation
of
the
section
129
rules
for
the
other
solid
waste
incineration
(
OSWI)
source
0154­
03­
008\
CISWI
comment­
response.
doc
8
category,
and
remand
issues
regarding
determination
of
the
MACT
floor
and
emission
limits.

When
we
respond
to
the
remand
of
the
CISWI
rules,
we
currently
plan
to
propose
additional
regulatory
language
to
address
units
with
only
waste
heat
recovery
and
to
provide
opportunity
for
additional
comment
on
the
inclusion
of
these
units
in
the
CISWI
source
category.

Comment:
One
commenter
(
OAR­
2003­
0119­
0012)
pointed
out
that
despite
EPA's
claim
that
it
has
"
considerable
discretion
to
regulate
a
variety
of
sources
as
solid
waste
incinerators,"

section
129(
a)(
1)
requires
EPA
to
"
establish
performance
standards
and
other
requirements
pursuant
to
section
7411
of
this
title
and
this
section
for
each
category
of
solid
waste
incineration
units."
42
U.
S.
C.
§
7429(
a)(
1)(
A)
(
emphasis
added).
The
commenter
believes
these
categories
are
very
broad,
based
on
language
in
section
129(
g)(
1),
which
defines
"
solid
waste
incineration
unit"

to
mean
"
a
distinct
operating
unit
of
any
facility
which
combusts
any
solid
waste
material
from
commercial
or
industrial
establishments."
42
U.
S.
C.
§
7429(
g)(
1).
The
commenter
also
argued
that
the
text
of
section
129
shows
that
Congress
expressly
considered
the
issue
of
whether
to
regulate
heat
recovery
units
under
section
129
by
providing
only
limited,
specific
exemptions.

Thus,
according
to
the
commenter's
interpretation
of
the
statute,
EPA
must
set
section
129
standards
for
any
unit
that
combusts
any
solid
waste,
with
the
narrow
exception
of
the
categories
of
energy
recovery
units
specifically
enumerated
in
section
129(
g)(
1).
The
commenter
also
asserts
that
EPA
acknowledged
this
position
in
the
hospital,
medical,
and
infectious
waste
incinerator
(
HMIWI)
rules
by
stating
the
following:

The
EPA
disagrees
with
commenters
that
contend
EPA
has
no
authority
to
regulate
cement
kilns
under
section
129.
Section
129(
a)(
1)(
A)
requires
the
Administrator
to
establish
performance
standards
and
other
requirements
for
each
category
of
solid
waste
incineration
units.
Congress
specifically
listed
in
section
129
various
categories
of
solid
waste
incineration
units
that
EPA
must
regulate.
Section
129(
g)(
1)
broadly
defines
solid
waste
incineration
unit
as
"
a
distinct
operating
units
of
any
facility
which
combusts
any
solid
waste
material..."
This
definition
clearly
indicates
Congress'
intent
to
regulate
more
than
just
incinerators
because
the
definition
sweeps
within
its
scope
any
facility
that
is
combusting
any
solid
waste.

Response:
Inherent
in
EPA's
implementation
of
CAA
section
129
is
the
discretion
to
identify
the
types
of
sources
covered
by
the
statutorily
undefined
category
of
commercial
or
industrial
solid
waste
incineration
units.
Considered
as
a
whole,
the
statutory
provisions
of
section
129(
a),
(
g),
and
(
h)
require
that
EPA
determine,
as
part
of
the
regulatory
process,
which
0154­
03­
008\
CISWI
comment­
response.
doc
9
units
should
be
subject
to
regulation
under
section
129.
For
example,
as
explained
in
the
previous
response,
EPA
has
determined
that
boilers
combusting
materials
for
energy
recovery
are
subject
to
section
112
and
hence,
are
not
subject
to
section
129.

The
commenter
relies
on
the
statutory
definition
of
solid
waste
incineration
unit
to
argue
that
any
unit
combusting
any
solid
waste
at
any
time
should
be
covered
under
CISWI.
However,

we
do
not
agree
with
this
broad
interpretation
of
the
definition
of
"
solid
waste
incineration
unit"

based
on
the
use
of
the
modifier
"
any."
We
believe
the
word
"
any"
should
be
interpreted
within
the
broader
frame
of
reference
of
its
statutory
context,
consistent
with
observations
of
the
Supreme
Court
in
Nixon
v.
Missouri
Municipal
League,
541
U.
S.
125,
124
S.
Ct.
1555
(
2004).

In
this
recent
opinion,
the
Court
observed
that
Congress's
understanding
of
"
any"
can
differ
depending
on
the
statutory
setting.
124
S.
Ct.
at
1561.
Nixon
and
a
related
line
of
cases
support
looking
for
indications
in
the
statute
that
suggest
a
more
limited
meaning
of
the
modified
term
is
possible
or
intended.
See
70
Fed.
Reg.
33838,
33842
(
June.
10,
2005).
Indications
of
a
more
limited
meaning
can
be
found
within
the
definition
of
solid
waste
incineration
unit
in
section
129(
g)(
1)
and
section
129(
h).

The
commenter
argues
that
EPA
should
stop
reading
the
definition
of
"
solid
waste
incineration
unit"
in
section
129(
g)(
1)
after
the
phrase
"
any
solid
waste
material."
Thus,

according
to
the
commenter,
a
CISWI
unit
must
include
"
any
facility
which
combusts
any
solid
waste
material."
However,
the
commenter
fails
to
give
meaning
to
the
remainder
of
the
sentence
in
section
129(
g)(
1),
which
provides
that
a
solid
waste
incineration
unit
under
section
129
includes
a
facility
that
combusts
"
any
solid
waste
material
from
commercial
and
industrial
establishments."
There
is
a
distinction
between
"
any
solid
waste
material"
and
"
any
solid
waste
material
from
commercial
and
industrial
establishments."
In
order
to
identify
solid
waste
material
from
commercial
or
industrial
establishments,
we
have
promulgated
a
definition
of
"
commercial
or
industrial
waste"
which
incorporates
the
broader
definition
of
"
solid
waste."
As
discussed
in
the
earlier
response,
because
it
is
sometimes
not
obvious
whether
a
commercial
and
industrial
establishment
treats
material
as
a
waste
or
as
a
fuel,
we
have
developed
the
definition
of
commercial
or
industrial
waste
to
identify
solid
waste
from
commercial
and
industrial
establishments
based
on
whether
the
waste
is
burned
without
energy
recovery.

We
recognize
that
Congress
specifically
defined
municipal
waste
to
include
"
refuse
(
and
refuse­
derived
fuel)
collected
from
the
general
public
and
from
residential,
commercial,
0154­
03­
008\
CISWI
comment­
response.
doc
10
institutional,
and
industrial
sources 
."
42
U.
S.
C.
§
7429(
g)(
5).
However,
we
read
this
definition
to
provide
more
specific
meaning
to
the
phrase
"
solid
waste 
from
the
general
public"

set
forth
in
section
129(
g)(
1)
of
the
Act.
Although
Congress
listed
waste
from
"
commercial"
and
"
industrial"
sources
in
the
definition
of
municipal
waste
in
section
129(
g)(
5),
reading
section
129
as
a
whole,
it
does
not
appear
that
Congress
intended
all
such
waste
to
be
municipal
waste
because
it
required
separate
regulations
for
units
combusting
"
commercial
or
industrial
waste."

This
view
is
also
supported
by
the
exclusion
of
"
industrial
process
wastes"
from
the
definition
of
municipal
waste
in
section
129(
g)(
5).
Thus,
we
have
defined
"
commercial
or
industrial
waste"
as
combustion
of
solid
waste
"
at
any
commercial
or
industrial
facility"
in
part
to
help
distinguish
CISWI
units
from
municipal
waste
combustors
and
to
distinguish
the
"
commercial
or
industrial
waste"
burned
by
CISWI
units
from
municipal
waste
that
may
contain
some
refuse
from
commercial
or
industrial
facilities.

Moreover,
we
do
not
agree
that
the
"
small
power
production
facilities"
or
"
qualifying
cogeneration
facilities"
described
in
section
129(
g)(
1)
are
the
only
types
of
energy
recovery
facilities
that
are
properly
excluded
from
the
CISWI
category.
To
the
extent
that
another
type
of
energy
recovery
facility
is
not
considered
to
be
combusting
solid
waste
from
a
commercial
and
industrial
establishment,
that
facility
should
also
be
excluded
from
the
CISWI
category.
We
do
not
read
section
129(
g)(
1)
to
establish
an
exclusive
list
of
excluded
sources.
See
National
Wildlife
Federation
v.
Gorsuch,
693
F.
2d
156,
172
(
D.
C.
Cir.
1982)
(
use
of
the
term
"
includes"

allows
for
additional,
unstated
meanings);
Chemehuevi
Indian
Tribe
v.
California
St.
Bd.
of
Equalization,
757
F.
2d
1047,
1054
(
9th
Cir.
1985),
rev'd
on
different
grounds,
106
S.
Ct.
289
(
1985)
("
includes"
is
a
term
of
enlargement,
not
of
limitation);
United
States
v.
Huber,
603
F.
2d
387,
394
(
2d
Cir.
1979),
cert.
denied,
100
S.
Ct.
1312
(
1980)
(
use
of
the
word
"
includes,"
rather
than
a
more
restrictive
term
such
as
"
means,"
indicates
that
the
list
is
not
exhaustive
but
merely
illustrative).

Furthermore,
the
definition
of
"
solid
waste
incineration
unit"
applies
to
all
categories
of
units
subject
to
section
129.
The
enumerated
exclusions
in
section
129(
g)(
1)
ensure
that
specific
types
of
facility
are
not
included
in
any
category
under
section
129.
Thus,
we
do
not
read
these
exclusions
to
be
an
exclusive
list
of
energy
recovery
facilities
that
are
not
included
in
the
CISWI
source
category.
0154­
03­
008\
CISWI
comment­
response.
doc
11
Furthermore,
section
129(
h)(
2)
states
that
any
unit
subject
to
a
section
129
standard
cannot
also
be
subject
to
a
112(
d)
standard.
The
rules
of
logic
support
the
position
that
the
contra
positive
of
that
statement
is
equally
true
 
any
unit
subject
to
a
section
112(
d)
standard
cannot
also
be
subject
to
a
section
129
standard.
This
indicates
a
Congressional
intent
not
to
give
the
word
"
any"
the
broad
meaning
suggested
by
the
commenter
because
it
would
require
that
EPA
periodically
address
units
regulated
by
section
112
under
section
129
at
times
when
such
units
combust
solid
waste
material,
even
if
such
units
are
designed
and
operated
for
energy
recovery.

The
quote
cited
by
the
commenter
regarding
cement
kilns
expressed
EPA's
position
that
we
have
the
authority
to
regulate
units
under
section
129
based
on
their
primary
function.
Thus,

we
indicated
that
if
we
determined
that
a
unit,
that
might
be
called
a
cement
kiln
was
actually
functioning
more
like
incinerator,
we
would
have
the
authority
to
regulate
that
unit
under
section
129
even
though
it
was
not
identified
as
an
incinerator.
However,
we
did
not
make
a
finding
at
that
time
that
we
were
required
to
regulate
cement
kilns
under
section
129
because
they
functioned
as
incinerators.
In
addition,
it
appears
from
the
quote
that
we
focused
at
that
time
only
on
the
phrase
"
any
solid
waste
material"
without
considering
the
additional
language
"
from
commercial
or
industrial
establishments"
that
is
relevant
to
the
CISWI
category.

Ultimately,
we
determined
that
cement
kilns
should
not
be
regulated
in
the
final
HMIWI
rules,
but
instead
should
be
regulated
under
section
112.
Cement
kilns,
including
those
burning
nonhazardous
solid
waste
for
purposes
of
energy
recovery,
have
been
regulated
since
1999
under
the
portland
cement
manufacturing
industry
NESHAP,
which
is
based
on
maximum
achievable
control
technology
(
MACT).
The
NESHAP
regulates
both
major
and
area
sources,
and
its
requirements
reduce
emission
of
PM,
multiple
metals,
dioxins/
furans,
and
total
hydrocarbons
(
which
are
a
surrogate
for
other
organic
HAP
including
polycyclic
organic
matter
(
POM),

benzene,
toluene,
and
formaldehyde).
The
rule
has
already
been
implemented
and
sources
are
complying
with
it.
As
discussed
above,
section
129(
h)(
2)
of
the
CAA
is
clear
that
regulations
under
sections
129
and
112
are
mutually
exclusive.
Accordingly,
sources
such
as
cement
kilns,

boilers
and
process
heaters
that
are
subject
to
section
112
standards
are
not
CISWI
units.

Comment:
One
commenter
(
OAR­
2003­
0119­
0026)
believes
that
electric
steam
generating
units
that
are
already
subject
to
NSPS
controls
under
40
CFR
60
subparts
Da
or
Db
should
not
be
subject
to
regulation
under
section
129.
The
commenter
stated
that
EPA
did
not
0154­
03­
008\
CISWI
comment­
response.
doc
12
consider
electric
utilities
that
co­
combust
solid
waste
with
fuel
in
its
rulemaking
activities,
and
therefore,
EPA's
regulatory
impact
analysis
did
not
account
for
such
units.
The
commenter
urged
EPA
to
clarify
that
the
definitions
of
"
commercial
or
industrial
waste"
and
"
commercial
and
industrial
solid
waste
incineration
(
CISWI)
unit"
do
not
inadvertently
result
in
the
CAA
section
129
program
regulating
electric
utility
boilers,
including
circumstances
where
such
boilers
cocombust
very
small
amounts
of
non­
hazardous
solid
waste
with
fuel
during
the
production
of
power.
An
example
is
periodic
boiler
cleaning,
when
deposits
that
accumulate
on
the
interior
of
boiler
tube
walls
are
removed
with
a
cleaning
agent.
The
resulting
material
is
combusted
in
the
boiler
with
fuel
while
the
boiler
is
being
operated
to
recovery
energy
and
produce
power.

Combustion
is
a
highly
effective
method
of
destroying
such
materials.
The
commenter
pointed
out
that
EPA
agreed
with
their
comment
on
the
November
1999
CISWI
proposal
that
the
regulatory
text
swept
too
broadly
by
potentially
capturing
the
episodic
circumstances
in
which
electric
utilities
combust
small
amounts
of
such
non­
hazardous
solid
waste
with
fuel.
The
commenter
also
stated
that
the
legislative
history
makes
clear
that
Congress
intended
section
129
to
apply
only
to
units
dedicated
to
solid
waste
combustion
and
cited
specific
legislative
history
supporting
this
point.
The
commenter
further
stated
that
application
of
section
129
to
electric
utility
boilers
would
be
at
odds
with
CAA
section
112,
and
the
language
of
the
CAA
makes
clear
Congress'
intent
for
EPA
to
regulate
nonhazardous
waste
combustion
sources
under
either
CAA
section
129
or
CAA
section
112,
but
not
both.

Response:
We
agree
that
electric
utility
boilers
should
not
be
covered
by
the
CISWI
rules
because
they
are
designed
and
operated
for
purposes
of
energy
recovery
and
do
not
function
as
incinerators.
We
addressed
this
issue
in
the
November
2000
CISWI
comment
response
document
(
EPA­
453/
R­
00­
008).
Electric
utility
boilers
are
regulated
under
authorities
other
than
section
129.

Furthermore,
the
wording
of
CAA
section
129(
h)
makes
clear
the
Congressional
intent
for
CAA
regulations
under
section
112
or
section
129
to
be
mutually
exclusive.
In
section
112(
n)(
1)(
A),
Congress
set
forth
limited
circumstances
under
which
EPA
could
regulate
electric
utility
boilers
under
section
112.
First,
Congress
instructed
EPA
to
complete
a
study
of
the
hazards
to
public
health
reasonably
expected
to
occur
as
a
result
of
emissions
by
electric
utility
steam
generating
units
of
pollutants
listed
in
section
112
after
imposition
of
the
requirements
of
the
CAA.
Then,
it
required
EPA
to
regulate
electric
utility
steam
generating
units
under
section
0154­
03­
008\
CISWI
comment­
response.
doc
13
112
if
the
Administrator
finds
such
regulation
is
appropriate
and
necessary
considering
the
results
of
the
study
required
by
section
112(
n).
The
EPA
recently
determined
that
is
was
neither
appropriate
nor
necessary
to
regulate
electric
utility
boilers
under
Section
112.
70
FR
15994
(
Mar.
29,
2005).
The
fact
that
the
CAA
specifically
addressed
electric
utilities
under
section
112
indicates
that
Congress
did
not
intend
them
to
be
regulated
under
section
129.

Similarly,
since
promulgation
of
the
CISWI
rules,
EPA
promulgated
section
112
regulations
for
industrial,
commercial
and
institutional
boilers
(
40
CFR
63,
subpart
DDDDD).

That
rule
applies
to
some
electric
steam
generating
units
(
e.
g.,
independent
power
producers).

The
language
of
CAA
section
112(
h)
makes
clear
the
Congressional
intent
for
CAA
regulation
under
section
129
or
section
112
to
be
mutually
exclusive.
Accordingly,
sources
subject
to
section
112
standards
are
not
CISWI
units.

We
are
making
minor
adjustments
to
the
definition
of
"
commercial
or
industrial
waste"
to
clarify
our
intent
that
boilers
operated
for
energy
recovery
are
not
subject
to
CISWI,
even
if
such
units
combust
a
small
amount
of
material
that
might,
under
some
circumstances,
be
considered
waste
along
with
other
fuels.
The
revised
definition
clarifies
that
(
as
described
in
the
proposal
preamble
and
the
previous
response),
the
critical
consideration
in
determining
whether
a
unit
is
burning
commercial
or
industrial
waste
is
the
function
of
the
combustion
unit,
and
the
primary
indicator
of
function
is
whether
or
not
the
unit
is
designed
and
operated
to
recover
energy
for
a
useful
purpose.
The
revised
definition
is:

Commercial
or
industrial
waste
means
solid
waste
(
as
defined
in
this
subpart)
that
is
combusted
at
any
commercial
or
industrial
facility
using
controlled
flame
combustion
in
an
enclosed,
distinct
operating
unit:
(
1)
whose
design
does
not
provide
for
energy
recovery
(
as
defined
in
this
subpart);
or
(
2)
operated
without
energy
recovery
(
as
defined
in
this
subpart).
Commercial
or
industrial
waste
also
means
solid
waste
(
as
defined
in
this
subpart)
combusted
in
an
air
curtain
incinerator
that
is
a
distinct
operating
unit
of
any
commercial
or
industrial
facility.

The
referenced
definition
of
energy
recovery,
which
has
not
been
changed,
incorporates
the
concept
of
recovering
thermal
energy
for
"
useful
purposes."
This
revised
definition
of
"
commercial
or
industrial
waste"
excludes
from
CISWI
units
(
such
as
boilers)
whose
design
provides
for
energy
recovery
and
that
are
operated
for
energy
recovery.
However,
units
designed
and
operated
without
energy
recovery
remain
subject
to
the
CISWI
rule
as
discussed
in
the
preamble
to
the
proposed
rule.
We
believe
the
revised
definition
is
sufficiently
clear
to
exclude
0154­
03­
008\
CISWI
comment­
response.
doc
14
utility
steam
generating
units
from
the
CISWI
rules,
but
if
any
ambiguities
remain,
they
can
be
addressed
when
EPA
proposes
and
promulgates
our
response
to
the
remand
of
the
CISWI
rules.

Comment:
One
commenter
(
OAR­
2003­
0119­
0008)
strongly
believes
that
a
unit
that
incinerates
solid
waste
at
a
rate
of
less
than
1,000
lb/
hr
and
recovers
heat
from
the
outside
of
the
burn
chamber
of
the
unit
for
useful
purposes
should
be
exempt
from
the
CISWI
rules.
The
commenter
believes
that
such
units
are
necessary
in
remote
locations
in
northern
climates
for
disposal
of
small
volumes
of
solid
waste
and
to
generate
heat
as
a
useful
resource.

Response:
The
commenter
has
not
provided
any
specific
data
to
support
the
technical
or
legal
basis
for
a
size
cutoff.
However,
at
this
time,
waste
heat
recovery
units
are
not
covered
under
CISWI
because
we
have
not
assessed
the
impacts
of
including
such
units
in
the
CISWI
rules.
An
impacts
assessment
is
necessary,
but
is
best
done
when
we
respond
to
the
CISWI
remand
and
can
perform
comprehensive
analyses
that
address
the
addition
of
waste
heat
recovery
units,
any
questions
on
the
applicability
of
the
CISWI
rules
that
may
be
raised
by
promulgation
of
rules
for
the
other
solid
waste
incineration
(
OSWI)
source
category,
and
remand
issues
regarding
determination
of
the
MACT
floor
and
emission
limits.
In
subsequent
rulemaking
action
in
response
to
the
CISWI
remand,
we
currently
intend
to
propose
additional
regulatory
language
to
address
units
with
only
waste
heat
recovery
and
assess
the
impacts
of
the
inclusion
of
these
units
in
the
CISWI
category.

Comment:
One
commenter
(
OAR­
2003­
0119­
0011)
supports
the
approach
taken
by
EPA
in
distinguishing
between
incinerators
that
burn
nonhazardous
solid
waste
for
purposes
of
disposal
and
combustion
units
that
burn
fuel
for
purposes
of
useful
energy
recovery.
Another
commenter
(
OAR­
2003­
0119­
0015)
also
supports
EPA's
proposed
definitions.

Response:
The
EPA
acknowledges
the
commenters'
support
for
the
proposed
approach.

We
are
finalizing
the
definitions
as
proposed,
with
minor
clarifications,
and
as
described
in
other
responses,
we
are
not
including
units
with
waste
heat
recovery
in
the
CISWI
rules
at
this
time.

Comment:
One
commenter
(
OAR­
2003­
0119­
0009)
stated
that
if
EPA
were
to
broaden
the
definitions
beyond
what
was
proposed
in
the
February
17,
2004
notice
(
as
suggested
by
some
commenters),
the
rulemaking
would
require
a
new
database
that
considers
all
of
the
potentially
impacted
sources.
Furthermore,
such
a
change
would
not
make
sense
because
the
types
of
units
covered
would
have
no
technical
similarity
or
common
control
approach,
but
would
be
grouped
0154­
03­
008\
CISWI
comment­
response.
doc
15
together
because
of
legalistic
and
environmentally
meaningless
distinctions
in
the
types
of
fuel
they
burned.

Response:
The
EPA
is
promulgating
the
definitions
as
proposed
with
some
modifications
that
are
not
intended
to
broaden
the
scope
of
the
category
beyond
what
we
proposed.
However,

at
a
later
date,
we
will
propose
to
include
units
with
only
waste
heat
recovery
in
the
CISWI
category.
We
will
add
these
waste
heat
recovery
units
to
our
database
and
evaluate
them
in
conjunction
with
additional
action
we
will
propose
on
the
voluntary
remand
of
the
CISWI
standards.

As
explained
in
the
February
17,
2004
notice
of
proposed
rule,
the
revised
CISWI
definitions
must
also
address
an
unintended
regulatory
gap.
The
boilers
NESHAP
covers
combustion
units
at
industrial
and
commercial
facilities
that
burn
solid
materials
for
energy
recovery,
but
excludes
waste
heat
recovery
units
(
also
known
as
"
waste
heat
boilers").
For
example,
the
boilers
NESHAP
would
exclude
a
combustion
unit
that
does
not
have
heat
recovery
in
the
firebox
and
recovers
heat
only
with
a
waste
heat
boiler.
The
CISWI
rule,
as
promulgated
in
December
2000,
covers
units
at
commercial
and
industrial
sites
that
burn
solid
materials
with
no
energy
recovery.
Therefore,
neither
rule
covered
combustion
units
at
commercial
and
industrial
sites
that
recover
heat
with
a
waste
heat
recovery
unit
(
which
recovers
heat
from
the
hot
combustion
gases
following
the
combustion
firebox).

Although
EPA
is
not
taking
final
action
on
waste
heat
recovery
units
at
this
time,
the
Agency
is
still
inclined
to
cover
waste
heat
recovery
units
in
the
CISWI
rules
because
of
the
similarities
of
such
units
and
units
currently
covered
by
CISWI.
Incineration
units
are
designed
to
discard
materials
by
burning
them
at
high
temperatures
and
leaving
as
little
residue
as
possible.

Incineration
units
do
not
have
heat
recovery
in
the
combustion
firebox,
but
they
may
be
followed
by
waste
heat
recovery
units.
Unlike
a
boiler
(
which
is
specifically
designed
to
recover
the
maximum
amount
of
heat
from
a
material's
combustion),
waste
heat
recovery
units
are
designed
to
cool
the
exhaust
gas
stream
from
an
incineration
unit,
and/
or
recover,
indirectly,
the
useful
heat
remaining
in
the
exhaust
gas.
The
presence
of
a
waste
heat
recovery
unit
on
the
exhaust
gas
does
not
change
the
fact
that
the
unit
combusting
the
material
is
primarily
an
incineration
unit.
Such
units
are
designed
and
operated
similar
to
units
without
heat
recovery;
but
an
external
device
(
the
waste
heat
recovery
unit)
has
been
added
to
recover
some
of
the
heat
from
the
incineration
unit's
exhaust
gas.
0154­
03­
008\
CISWI
comment­
response.
doc
16
Comment:
One
commenter
(
OAR­
2003­
0119­
0003)
strongly
supports
EPA's
approach
of
not
specifying
a
particular
level
of
British
thermal
units
per
pound
(
Btu/
lb)
as
a
regulatory
threshold.
The
commenter
also
included
a
discussion
of
the
5,000
Btu/
lb
threshold
that
EPA
had
previously
proposed
in
the
CISWI
rule,
and
pointed
out
that
valid
energy
recovery
could
be
obtained
from
materials
with
lower
Btu
values.
The
commenter
indicated
(
in
attached
comments
submitted
in
response
to
previous
rulemakings)
that
valid
energy
recovery
from
the
cement
kiln
process
has
been
obtained
with
materials
with
heating
values
between
996
and
1,948
Btu/
lb,
but
recommended
that,
if
EPA
does
adopt
a
Btu
threshold,
a
threshold
of
3,000
Btu/
lb
is
appropriate
and
conservatively
high.

Response:
The
EPA
agrees
that
a
Btu
threshold
is
not
needed
for
reasons
described
in
the
February
2004
notice
and
the
2000
CISWI
promulgation
preamble.
In
the
preamble
to
the
December
1,
2000,
final
CISWI
rule
(
65
FR
75342),
EPA
summarized
commenters'
statements
that
"...
the
universe
of
materials
burned
for
energy
recovery
is
much
broader
than
those
defined
as
"
fuels."
For
example,
several
of
today's
combustion
technologies
and
some
new
emerging
technologies
can
burn
materials
for
energy
recovery
having
heat
values
less
than
the
proposed
5,000
Btu/
lb
threshold
for
considering
a
material
a
fuel."
The
EPA
responded
that
"...
we
agree
that
several
of
today's
combustion
technologies,
including
some
emerging
technologies,
may
be
capable
of
burning
materials
with
a
heat
value
of
less
than
5,000
Btu/
lb
to
recover
energy.

Therefore,
we
have
deleted
the
requirement
from
the
definition
of
solid
waste
in
the
final
NSPS
and
EG."
We
still
maintain
this
position.
In
addition
to
the
information
submitted
by
the
commenter
(
OAR­
2003­
0119­
0003)
stating
that
cement
kilns
can
recover
heat
from
materials
in
the
1,000
to
2,000
Btu/
lb
range,
EPA
has
found
examples
of
fluidized
bed
combustion
units
and
other
technologies,
used
at
pulp
and
paper
mills
and
for
other
utility,
industrial,
or
commercial
uses,
that
recover
useful
energy
from
sludges
and
other
materials
with
low
Btu
contents
(
e.
g.,
in
the
range
of
1,000
to
3,800
Btu/
lb).
There
is
no
bright­
line
Btu
value
that
can
be
used
to
distinguish
if
a
material
is
a
fuel
burned
for
energy
recovery
or
a
waste
disposed
of
for
purposes
other
than
energy
recovery.
The
approach
taken
in
the
February
2004
proposed
definition
is
more
workable
than
a
Btu/
lb
cutoff.

We
also
reiterate
that,
by
excluding
combustion
units
such
as
boilers
and
cement
kilns
from
the
CISWI
rules,
we
are
not
excluding
them
from
regulation.
We
are
simply
determining
which
authority
(
section
129
or
112)
applies
to
various
types
of
combustion
units.
Boilers
at
0154­
03­
008\
CISWI
comment­
response.
doc
17
major
sources
and
cement
kilns
at
major
and
area
sources
are
regulated
by
section
112
standards
for
hazardous
air
pollutants,
and
EPA
is
currently
developing
section
112
standards
for
boilers
located
at
area
sources.
0154­
03­
008\
CISWI
comment­
response.
doc
18
Chapter
4
Definition
of
Commercial
And
Industrial
Solid
Waste
Incineration
(
CISWI)
Unit
Comment:
One
commenter
(
OAR­
2003­
0119­
0011)
agrees
with
the
proposed
definition
of
"
commercial
and
industrial
solid
waste
incineration
(
CISWI)
unit,"
but
suggested
adding
a
phrase
as
shown
(
in
italics):
"
Commercial
and
industrial
solid
waste
incineration
(
CISWI)
unit
means
any
combustion
unit
that
combusts
commercial
or
industrial
waste
(
as
defined
in
this
subpart)
in
an
enclosed
unit
using
controlled
flame
combustion,
that
is
a
distinct
operating
unit
of
any..."

Response:
We
have
determined
that
this
wording
change
is
not
necessary.
The
definition
of
"
commercial
or
industrial
waste"
already
specifies
that
to
be
considered
commercial
or
industrial
waste,
the
waste
must
be
combusted
in
an
enclosed
unit
using
controlled
flame
combustion.
The
definition
of
"
CISWI
unit"
includes
only
units
burning
commercial
or
industrial
waste
(
as
defined
in
the
subpart).
These
definitions,
read
together,
clearly
limit
CISWI
units
to
enclosed
units
using
controlled
flame
combustion,
so
the
suggested
revision
to
the
CISWI
unit
definition
is
not
necessary.
Because
these
definitions
are
intended
to
be
read
together,
we
believe
it
would
be
redundant
to
repeat
language
in
both
definitions.

However,
we
note
that
our
proposed
definitions
do
contain
some
redundant
language
that
should
be
removed.
For
example,
we
are
removing
the
following
phrase
from
the
definition
of
"
commercial
or
industrial
waste:"
"(
including
field
erected,
modular,
and
custom
built
incineration
units
operating
with
starved
or
excess
air)."
This
language
is
already
contained
within
the
definition
of
"
CISWI
unit"
and
need
not
be
included
in
the
definition
of
the
waste.
0154­
03­
008\
CISWI
comment­
response.
doc
19
Comment:
One
commenter
(
OAR­
2003­
0119­
0003)
supports
EPA's
continued
exemption
of
cement
kilns
from
the
definition
of
"
CISWI
unit,"
regardless
of
what
type
of
fuel
the
cement
kilns
are
burning.

Response:
As
pointed
out
by
the
commenter,
we
regulate
cement
kilns
(
including
those
burning
nonhazardous
solid
waste)
under
the
section
112
portland
cement
manufacturing
industry
NESHAP
(
40
CFR
63
subpart
LLL).
The
wording
of
section
129
makes
it
clear
that
the
same
source
cannot
be
regulated
under
both
sections
112
and
129.
The
commenter
also
describes
several
technical
differences
between
cement
kilns
that
are
designed
and
operated
to
recover
energy
as
an
integral
part
of
a
manufacturing
process
and
incinerators
without
energy
recovery
that
fall
under
the
CISWI
definitions.
These
include
differences
in
raw
material
chemistry,

combustion
unit
design,
temperature,
turbulence,
and
residence
time.
We
agree
that
cement
kilns
that
burn
some
nonhazardous
solid
waste
are
the
same
as
the
other
cement
kilns
regulated
by
the
portland
cement
manufacturing
industry
NESHAP
in
terms
of
combustion
technology,
emission
characteristics,
and
control
techniques,
and
thus
should
be
regulated
as
cement
kilns
under
that
NESHAP
rather
than
incinerators
under
the
CISWI
rules.
0154­
03­
008\
CISWI
comment­
response.
doc
20
Chapter
5
Definition
of
Commercial
or
Industrial
Waste
Comment:
One
commenter
(
OAR­
2003­
0119­
0002)
supports
EPA's
definition
of
"
commercial
or
industrial
waste."
The
commenter
agrees
that,
considering
high
energy
costs,

materials
burned
for
heat
recovery
should
not
be
considered
solid
waste.
The
commenter
also
agrees
that
materials
burned
without
heat
recovery
for
a
useful
purpose
should
be
regulated
as
commercial
and
industrial
solid
waste.

Response:
The
EPA
acknowledges
the
commenter's
support
for
the
proposed
definition
of
"
commercial
or
industrial
waste."
We
are
promulgating
the
definition
proposed
in
the
February
17,
2004
Federal
Register
notice,
with
minor
clarifications,
and,
as
described
elsewhere
in
this
document,
we
are
not
including
units
with
waste
heat
recovery
in
the
CISWI
rules
at
this
time.

Comment:
One
commenter
(
OAR­
2003­
0119­
0011)
agrees
with
the
proposed
definition
of
"
commercial
or
industrial
waste,"
but
suggested
some
rewording
(
shown
in
italics)
for
clarity
as
follows:
"
Commercial
or
industrial
waste
means:
(
1)
Solid
waste
(
as
defined
in
this
subpart)

combusted
in
an
enclosed
unit
using
controlled
flame
combustion
that
is
a
distinct
operating
unit
of
any
commercial
or
industrial
facility
(
including
field­
erected,
modular,
and
custom
built
incineration
units
operating
with
starved
or
excess
air),
where
the
solid
waste
is
combusted:
(
a)

Without
heat
recovery;
(
b)
For
reasons
that
do
not
include
heat
recovery
for
a
useful
purpose;

or
(
c)
With
only
waste
heat
recovery
(
i.
e.,
no
heat
recovery
in
the
combustion
firebox).
(
2)
Solid
waste
(
as
defined
in
this
subpart),
combusted
in
an
air
curtain
incinerator
that
is
a
distinct
operating
unit
of
any
commercial
or
industrial
facility."
0154­
03­
008\
CISWI
comment­
response.
doc
21
Response:
We
agree
with
the
commenter
that
there
is
room
to
improve
the
clarity
of
the
proposed
definition
and
have
made
some
modifications
to
the
definitions
of
"
commercial
or
industrial
waste"
with
this
in
mind.
However,
we
have
reorganized
the
proposed
definition
in
a
different
manner
than
suggested
by
the
commenter.
The
full
revised
definition
is
presented
in
a
previous
comment
response.
We
believe
our
modified
definitions
are
clearer
than
the
reworded
definition
of
commercial
or
industrial
waste
provided
by
the
commenter,
which
retains
some
parenthetical
language
that
is
repetitive
with
other
definitions.
In
addition,
the
commenter's
definition
does
not
reflect
our
decision
to
omit
the
phrase
"
combusted
for
reasons
that
do
not
include
the
recovery
of
heat
for
a
useful
purpose"
and
insert
the
phrase
"
whose
design
does
not
provide
for
energy
recovery
(
as
defined
in
this
subpart)"
to
better
reflect
the
key
principal
that
we
discussed
in
the
preamble
of
the
proposed
rule.
Furthermore,
EPA's
revised
definition
better
reflects
our
decision
not
to
regulate
units
with
only
waste
heat
recovery
at
this
time,
but
to
propose
to
regulate
such
units
when
we
respond
to
the
remand
of
the
CISWI
rules.

Comment:
One
commenter
(
OAR­
2003­
0119­
0026)
believes
that
there
is
no
reason
to
deviate
from
the
definitions
in
the
Dec.
1,
2000
CISWI
rule,
but
if
the
definitions
are
amended,

the
term
"
commercial
or
industrial
waste"
should
include
only
wastes
combusted
in
units
without
any
heat
recovery.
The
commenter
suggested
the
following
definition:
"
Commercial
or
industrial
waste
means
solid
waste
(
as
defined
in
this
subpart)
combusted
in
a
unit
that
does
not
recover
heat
for
a
useful
purpose
(
e.
g.,
no
heat
recovery
in
the
combustion
firebox)
and
such
combustion
occurs
in
an
enclosed
unit
using
controlled
flame
combustion..."

Response:
The
commenter
represents
electric
utilities.
As
described
in
a
previous
response
in
Chapter
3,
we
have
made
additional
changes
to
the
definition
to
better
reflect
EPA's
intent,
and
we
do
not
believe
that
electric
utility
steam
generating
units
are
covered
under
the
revised
definition
of
"
commercial
or
industrial
waste."

Comment:
One
commenter
(
OAR­
2003­
0119­
0027)
stated
that
the
definition
of
"
commercial
or
industrial
waste"
(
both
the
promulgated
and
newly
proposed
definitions)
appears
to
define
when
combustion
of
commercial
or
industrial
waste
is
subject
to
the
CISWI
rule
rather
than
defining
the
term.
The
commenter
added
that
EPA
states
in
its
discussion
on
69
FR
7396
(
February
14,
2004),
that
"
it
is
reasonable
to
define
commercial
or
industrial
waste,
for
purposes
of
identifying
commercial
and
industrial
solid
waste
incineration
units
subject
to
regulation
under
section
129
of
the
CAA,
as
follows:
solid
materials
burned
at
commercial
or
industrial
facilities
0154­
03­
008\
CISWI
comment­
response.
doc
22
are
commercial
or
industrial
waste
unless
they
are
(
1)
hazardous
solid
wastes,
(
2)
subject
to
one
of
the
exemptions
included
in
section
129
of
the
CAA
(
e.
g.,
material
recovery
facility,
qualifying
small
power
production
facility),
or
(
3)
burned
with
heat
recovery
for
a
useful
purpose...
."
The
commenter
agrees
that
this
definition
is
effective
and
straightforward
and
would
like
for
EPA
to
explain
why
this
language
was
not
included
in
the
proposed
commercial
or
industrial
waste
definition.

Response:
The
statement
from
the
preamble
cited
by
the
commenter
summarizes
general
concepts
that
are
reflected
in
the
definitions
proposed
in
February
2004
and
other
portions
of
our
CISWI
regulations
that
we
did
not
address
in
the
February
2004
notice.
For
example,
hazardous
solid
wastes
and
wastes
subject
to
the
exemptions
in
section
129
of
the
CAA
are
excluded
in
the
applicability
sections
of
the
CISWI
rules
(
§
60.2020
of
subpart
CCCC
and
§
60.2555
of
subpart
DDDD).
These
sections
of
our
rules
also
address
materials
recovery
units
and
small
power
production
facilities.
Thus,
we
do
not
believe
these
exemptions
needed
to
be
reiterated
in
the
definitions
of
commercial
or
industrial
waste
and
CISWI
unit
that
are
at
issue
in
this
action.

The
definitions
on
which
we
sought
comment
in
this
action
primarily
address
the
third
concept
of
whether
energy
is
recovered
for
a
useful
purpose
and
whether
waste
heat
recovery
units
should
be
included
in
the
CISWI
category.
As
explained
in
the
February
2004
proposal,
the
definitions
in
the
final
(
December
1,
2000)
CISWI
rules
leave
an
unintended
regulatory
gap,
where
incineration
units
with
only
waste
heat
recovery
used
at
commercial
and
industrial
sites
would
not
be
covered
by
the
boilers
NESHAP
or
the
CISWI
rules.
Such
units
are
similar
to
incinerators
already
covered
by
the
CISWI
rules,
yet
are
unregulated.
To
address
this
regulatory
gap,
EPA
proposed
that
these
units
should
be
subject
to
the
CISWI
rules
rather
than
the
boilers
NESHAP
for
reasons
described
in
the
February
17,
2004
proposal
(
69
FR
7396).
Because
of
the
need
to
address
waste
heat
recovery
units,
we
did
not
believe
our
proposed
definitions
could
be
limited
solely
to
addressing
the
third
concept
of
energy
recovery
for
a
useful
purpose.
As
explained
in
other
responses,
we
have
determined
that
CISWI
units
include
those
units
that
combust
materials
combusted
in
a
unit
that
is
designed
or
operated
without
energy
recovery.
However,
at
this
time,

waste
heat
recovery
units
are
not
covered
under
CISWI
because
we
have
not
assessed
the
impacts
of
including
such
units
in
the
CISWI
rules.
An
impacts
assessment
is
necessary,
but
is
best
done
when
we
respond
to
the
CISWI
remand
and
can
perform
comprehensive
analyses
that
address
the
addition
of
waste
heat
recovery
units,
other
questions
on
the
applicability
of
the
CISWI
rules
and
0154­
03­
008\
CISWI
comment­
response.
doc
23
interface
with
the
rules
for
the
other
solid
waste
incineration
(
OSWI)
source
category,
and
remand
issues
regarding
determination
of
the
MACT
floor
and
emission
limits.
In
subsequent
rulemaking
action,
we
will
propose
additional
regulatory
language
to
address
units
with
only
waste
heat
recovery
and
assess
the
impacts
of
the
inclusion
of
these
units
in
the
CISWI
category.

We
are,
therefore,
promulgating
the
definitions
as
proposed
in
February
2004,
with
minor
clarifications.
0154­
03­
008\
CISWI
comment­
response.
doc
24
Chapter
6
Definition
of
Solid
Waste
Comment:
One
commenter
(
OAR­
2003­
0119­
0012)
stated
that
EPA's
arguments
about
the
definition
of
solid
waste
are
irrelevant
and
without
merit.
Pointing
to
section
129(
g)(
6),

which
provides
that
solid
waste
shall
have
the
meanings
established
by
EPA
pursuant
to
the
Solid
Waste
Disposal
Act
(
SWDA),
the
commenter
argues
that
EPA
has
established
only
one
"
comprehensive
definition"
of
solid
waste
under
the
SWDA:
the
definition
in
40
CFR
261.2.
69
FR
at
7395/
2.
Furthermore,
the
commenter
asserts
that
this
definition
was
the
only
comprehensive
definition
that
existed
when
Congress
enacted
section
129,
which,
in
the
commenter's
view
indicates
that
Congress
intended
EPA
to
use
that
definition.
The
commenter
made
this
point
in
an
attempt
to
refute
EPA's
argument
that
because
section
261.2
"
defines
solid
waste
specifically
for
purposes
of
identifying
hazardous
solid
waste
[
it]
could
not
serve
as
a
regulatory
definition
for
purposes
of
identifying
nonhazardous
solid
waste
under
CAA
section
129."
The
commenter
pointed
out
that
EPA
has
not
provided
a
reason
that
this
definition
is
unusable
for
identifying
nonhazardous
solid
waste,
and
the
refusal
to
use
the
definition
is
arbitrary,
capricious,
and
unlawful.
Finally,
the
commenter
added
that
even
if
EPA
were
not
compelled
to
use
the
definition
provided
in
40
CFR
261.2,
EPA's
attempt
to
provide
a
new
definition
solely
for
the
purpose
of
the
CISWI
regulation
is
unlawful
because
the
CAA
provides
that
"
solid
waste"
shall
have
the
meaning
established
by
EPA
"
pursuant
to
the
Solid
Waste
Disposal
Act."

Response:
We
disagree
with
the
commenter.
Section
129(
g)
states
that
"
solid
waste
...

shall
have
the
meanings
established
by
the
Administrator
pursuant
to
the
Solid
Waste
Disposal
Act."
Section
129(
g)
also
states
that
the
term
"
solid
waste
incineration
unit"
does
not
include
0154­
03­
008\
CISWI
comment­
response.
doc
25
units
required
to
have
a
permit
under
section
3005
of
the
SWDA.
This
reference
to
section
3005
of
the
SWDA
refers
to
the
hazardous
waste
regulatory
program
authorized
under
the
SWDA.

This
language
effectively
limits
the
scope
of
EPA's
authority
under
section
129
to
units
that
burn
nonhazardous
solid
waste.

However,
the
definition
of
"
solid
waste"
in
section
261.2
cited
by
the
commenter
applies
only
to
hazardous
wastes,
whereas
the
CISWI
rules
apply
to
only
nonhazardous
solid
wastes.
To
develop
and
implement
the
hazardous
waste
regulatory
program
authorized
by
the
SWDA,
EPA
adopted
a
definition
of
hazardous
waste
pursuant
to
the
SWDA.
This
definition
is
found
in
part
261
of
title
40
of
the
CFR.
In
defining
hazardous
waste,
part
261
also
defines
solid
waste.

However,
in
doing
so
40
CFR
261.1(
b)(
1)
states
that
this
definition
of
solid
waste
applies
only
to
wastes
that
are
hazardous
for
purposes
of
implementing
subtitle
C
of
RCRA.
Section
261.1(
b)(
2)

indicates
that
the
Part
261
definition
identifies
only
some
of
the
wastes
that
are
considered
solid
wastes
under
other
sections
of
RCRA.

Much
of
the
complexity
and
specificity
of
the
part
261
definition
was
unique
to
hazardous
waste
and
was
needed
to
assure
that
hazardous
waste
is
properly
identified,
tracked,
transported,

and
disposed
of,
and
is
not
inappropriately
discarded
or
abandoned.
One
United
States
Appeals
Court
has
recognized
that
the
words
of
the
RCRA
statute
contemplate
that
EPA
refine
and
narrow
the
definition
of
solid
waste
for
the
sole
purpose
of
Subchapter
C
of
RCRA.
Connecticut
Coastal
Fisherman's
Ass'n
v.
Remington
Arms
Co.,
Inc.,
989
F.
2d
1305,
1315
(
2d
Cir.
1993).

This
court
recognized
that
the
RCRA
statute
contemplate
more
than
one
definition
for
the
term
"
solid
waste."
Id.

Consequently,
we
looked
to
the
definition
of
solid
waste
in
the
SWDA
and
to
other
regulatory
definitions
of
solid
waste
adopted
by
EPA
under
the
authority
of
that
statute
that
also
apply
to
various
types
of
nonhazardous
solid
wastes
(
i.
e.,
definitions
found
in
40
CFR
parts
240
through
259).
These
definitions
reflect
the
general
definition
of
solid
waste
found
in
the
SWDA
(
42
U.
S.
C.
6903),
but
they
each
vary
slightly
depending
on
the
particular
regulatory
circumstances.
Furthermore,
these
solid
waste
definitions
found
in
the
rules
for
nonhazardous
solid
wastes
do
not
contain
the
extensive
detail
found
in
the
definition
of
solid
waste
in
the
part
261
hazardous
waste
rules.

The
fact
that
the
language
of
the
individual
regulatory
definitions
of
solid
waste
vary
from
definition
to
definition
indicates
that
the
Administrator
has
not
adopted
a
single
authoritative
0154­
03­
008\
CISWI
comment­
response.
doc
26
definition
to
identify
nonhazardous
solid
waste
under
the
SWDA.
Because
the
Administrator
has
not
adopted
a
single
authoritative
definition
of
nonhazardous
solid
waste,
it
is
reasonable
for
EPA
to
adopt
an
appropriate
definition
for
purposes
of
the
final
CISWI
rule
so
long
as
it
is
not
inconsistent
with
the
SWDA.
As
described
in
previous
Federal
Register
notices
pertaining
to
the
CISWI
rules
(
64
FR
67104,
November
30,
1999
and
65
FR
75342,
December
1,
2000)
EPA
has
adopted,
under
the
joint
authority
of
the
CAA
and
RCRA,
a
definition
of
solid
waste
that
is
used
solely
to
identify
nonhazardous
solid
waste
for
the
regulatory
programs
authorized
by
CAA
section
129,
such
as
the
CISWI
rules.
The
definition
proposed
in
the
February
2004
CISWI
notice
is
the
same
as
the
definition
previously
adopted
for
the
CISWI
rules,
and
we
consider
the
definition
of
solid
waste
in
the
rules
to
be
consistent
with
the
SWDA.

Comment:
Several
commenters
(
OAR­
2003­
0119­
0009,
OAR­
2003­
0119­
0011,
0013)

support
the
proposed
definition
of
"
solid
waste,"
which
is
the
same
as
that
already
contained
in
40
CFR
§
60.2265.
One
of
these
commenters
(
OAR­
2003­
0119­
0009)
stated
that,
to
implement
this
[
CISWI]
rule,
EPA
should
continue
to
use
definitions
designed
to
address
the
particular
regulatory
problems
that
it
poses
in
the
context
of
the
CAA
as
a
whole,
rather
than
being
bound
by
definitions
under
RCRA
that
were
designed
to
serve
completely
different
purposes.
The
commenters
stated
that,
since
EPA
has
never
established
a
single,
all­
purpose
definition
of
solid
waste
under
RCRA,
EPA
was
authorized
to
establish
a
definition
of
"
solid
waste"
to
implement
CISWI,
as
long
as
that
definition
was
consistent
with
RCRA.
The
commenter
added
that
EPA's
definition
of
"
commercial
or
industrial
waste"
under
CISWI
is
fully
consistent
with
RCRA.
The
statute,
§
1004(
27),
defines
solid
waste
as
discarded
material.
Since
materials
from
which
useful
energy
or
raw
materials
are
recovered
are
not
discarded,
the
CISWI
rule
definition
fully
implements
the
statute.
The
commenter
added
that
units
excluded
from
CISWI
were
not
excluded
from
regulation
under
the
CAA,
but
would
instead
be
subject
to
similar
standards
under
section
112.
The
fact
that
units
will
be
regulated
should
broaden
EPA's
discretion.
The
commenter
supports
the
major
aspects
of
the
proposal.

Response:
We
agree
that
the
proposed
definition
of
solid
waste
is
appropriate
for
the
reasons
set
forth
in
our
prior
response.
We
agree
that
EPA
has
never
established
a
single,

allpurpose
definition
of
solid
waste
under
RCRA
and
that
we
have
the
authority
to
establish
a
definition
of
solid
waste
for
purposes
of
the
CISWI
rules.
0154­
03­
008\
CISWI
comment­
response.
doc
27
Comment:
One
commenter
(
OAR­
2003­
0119­
0027)
requested
that
EPA
answer
the
following
question:
does
wood
waste,
clean
lumber,
and
yard
waste
meet
the
definition
of
solid
waste
in
the
CISWI
NSPS
and
EG?

Response:
Yes,
these
materials
meet
the
definition
of
solid
waste
in
the
CISWI
rule.

However,
these
materials
are
not
necessarily
commercial
or
industrial
wastes
and
units
combusting
such
materials
are
not
necessarily
CISWI
units.
An
owner/
operator
of
a
specific
combustion
unit
burning
these
material
must
also
review
the
applicability
section
of
the
CISWI
rules
and
other
definitions
in
the
rules
to
determine
if
their
unit
is
subject
to
the
CISWI
rules.
0154­
03­
008\
CISWI
comment­
response.
doc
28
Chapter
7
Waste
Heat
Recovery
Units
Comment:
One
commenter
(
OAR­
2003­
0119­
0013)
does
not
support
the
inclusion
of
waste
heat
recovery
units
in
CISWI
as
proposed
in
the
Feb.
17,
2004
notice.
The
commenter
added
that
they
operate
one
unit
that
recovers
considerable
amounts
of
energy
outside
of
the
firebox.
The
commenter
supports
the
current
definition
of
solid
waste,
which
defines
waste
as
"
discarded"
materials,
and
points
out
that
the
waste
stream
combusted
in
their
unit
with
external
heat
recovery
involved
is
not
discarded
but
is
used
beneficially.
Finally,
the
commenter
points
out
that
broadening
the
definitions
in
the
final
rule
will
broaden
the
rule
beyond
the
units
represented
by
EPA's
CISWI
database
and
would
require
a
whole
new
rulemaking.

Response:
We
recognize
that
including
units
with
waste
heat
recovery
would
broaden
the
scope
and
coverage
of
the
CISWI
rules.
Because
we
have
not
assessed
the
impacts
of
requiring
such
units
to
comply
with
the
CISWI
rules,
we
have
decided
not
to
include
units
with
waste
heat
recovery
in
the
CISWI
rules
at
this
time.
We
plan
to
perform
the
necessary
analyses
and
we
will
propose
to
regulate
waste
heat
recovery
units
when
we
respond
to
the
CISWI
remand
that
we
requested
on
other
grounds
because
of
the
court's
opinion
in
Cement
Kiln
Recycling
Coalition
v.

EPA,
255
F.
2d
885
(
D.
C.
Cir.
2001).

In
addition
to
the
decisions
on
coverage
of
units
with
only
waste
heat
recovery,
the
remand
will
address
such
issues
as
the
MACT
floor
determination,
emission
limits,
and
other
questions
on
the
applicability
of
the
December
2000
CISWI
rules
and
the
interface
with
the
final
rules
for
other
solid
waste
incineration
(
OSWI)
units.
To
properly
address
these
issues,
we
will
need
to
perform
additional
analyses
to
determine
the
changes
that
will
occur
to
the
CISWI
regulations
and
the
associated
environmental,
economic,
and
other
impacts
of
these
changes.
To
0154­
03­
008\
CISWI
comment­
response.
doc
29
completely
assess
the
impacts,
these
analyses
are
best
performed
when
we
are
addressing
all
of
the
issues
involved
with
the
CISWI
remand
including,
among
other
things,
potential
changes
to
the
number
of
regulated
units
(
e.
g.,
by
the
addition
of
units
with
only
waste
heat
recovery)
and
the
control
techniques
used
in
the
newly
expanded
CISWI
source
category.
Therefore,
at
the
time
of
the
remand,
we
will
take
public
comments
on
any
proposed
changes
and
their
associated
impacts,
and
then
promulgate
final
rules.

Comment:
One
commenter
(
OAR­
2003­
0119­
0009)
believes
that
including
waste
heat
recovery
units
makes
sense
in
general
terms,
but
that
the
approach
requires
adjustment
to
the
definition
of
waste
heat
recovery
(
and/
or
waste
heat
boiler)
to
avoid
unintended
consequences.

The
commenter
provided
several
examples
of
sources
that
may
be
covered
that
EPA
did
not
intend
to
cover,
including:
(
1)
gasification
units
used
in
the
forest
products
industry,
in
which
the
gasification,
which
is
clearly
energy
recovery,
takes
place
outside
the
firebox;
(
2)
boilers
designed
to
burn
wet
fuels,
in
which
the
combustion
takes
place
in
small
cells,
and
the
exhaust
from
multiple
cells
combines
in
a
separate
chamber
where
heat
recovery
takes
place;
(
3)
thermal
oil
heaters,
which
generally
place
heat
recovery
sections
outside
of
the
combustion
chamber
for
safety
reasons;
and
(
4)
process
heaters
where
combustion
gases
are
too
hot
for
the
process
to
safely
use
cool
the
gases
with
dilution
air
and
heat
recovery
takes
place
from
the
diluted
gases;
(
5)

direct­
fired
lumber
kilns
that
burn
biomass­
these
may
be
claimed
to
be
subject
to
CISWI
standards,
particularly
when
the
combustion
unit
must
be
vented
to
the
atmosphere
during
process
upsets
(
emissions
from
these
units
are
fully
addressed
in
the
plywood
and
composite
wood
products
(
PCWP)
NESHAP)
;
and
(
6)
wood
products
hybrid
systems
(
burning
residuals)
that
have
multiple
heat
recovery
units.
All
or
portions
of
the
heat
recovery
may
not
be
in
the
firebox,

and
these
units
may
be
temporarily
vented
to
the
atmosphere
during
certain
conditions.

Depending
on
the
conditions,
these
units
are
subject
to
either
the
PCWP
or
boilers
NESHAP.

To
resolve
these
unintended
consequences
(
to
avoid
covering
the
types
of
sources
described
above),
the
commenter
believes
that
EPA
should
make
the
definition
of
a
waste
heat
recovery
unit
identical
with
the
definition
for
waste
heat
boiler
in
the
boilers
NESHAP.

Response:
As
discussed
earlier,
we
have
decided
not
to
include
units
with
only
waste
heat
recovery
in
the
CISWI
rules
at
this
time.
We
will
address
the
comment
when
we
respond
to
the
CISWI
remand.
0154­
03­
008\
CISWI
comment­
response.
doc
30
Comment:
One
commenter
(
OAR­
2003­
0119­
0027)
stated
that
by
covering
units
that
recover
heat
outside
of
the
firebox,
the
CISWI
rule
will
probably
force
at
least
one
combustion
unit
in
their
State,
which
recovers
waste
heat
for
a
legitimate
useful
purpose,
to
shut
down
due
to
the
high
cost
of
pollution
controls
and
testing.
Facilities
in
this
position
will
likely
require
some
time
to
find
alternative
sources
of
heat
for
their
operations.
One
facility
in
the
commenter's
State
has
indicated
that
it
will
consider
replacing
their
waste
heat
unit
(
which
combusts
clean
wood
scraps)
with
an
air
curtain
incinerator
(
which
will
have
to
meet
opacity
limits
only).

Response:
As
discussed
earlier,
we
have
decided
not
to
include
units
with
only
waste
heat
recovery
in
the
CISWI
rules
at
this
time.
We
will
address
the
comment
when
we
respond
to
the
CISWI
remand.

Comment:
One
commenter
(
OAR­
2003­
0119­
0013)
supports
the
continued
use
of
the
current
definition
of
heat
recovery.
The
commenter
stated
that
their
CISWI
unit
can
meet
the
limits
without
air
pollution
controls,
but
that
the
existing
regulation
presents
a
paperwork
and
training
burden
with
little
commensurate
environmental
benefit.
If
the
exemption
for
units
with
downstream
heat
recovery
is
removed,
another
one
of
the
company's
units
at
a
different
facility
will
be
subject
to
the
regulation,
and
will
have
to
obtain
a
title
V
permit
and
incur
other
costs
associated
with
the
rule,
again
with
little
environmental
benefit
(
since
they
anticipate
that
the
unit
can
meet
the
emission
limits
without
add­
on
controls).
A
potential
remedy
to
this
situation
would
be
for
EPA
to
exempt
units
which
do
not
require
add­
on
control
devices
in
future
CISWI
rulemaking.

Response:
As
discussed
earlier,
we
have
decided
not
to
include
units
with
only
waste
heat
recovery
in
the
CISWI
rules
at
this
time.
We
will
address
the
comment
when
we
respond
to
the
CISWI
remand.
0154­
03­
008\
CISWI
comment­
response.
doc
31
Chapter
8
Miscellaneous
8.1
BAGASSE
Comment:
One
commenter
(
OAR­
2003­
0119­
0011)
suggested
wording
changes
to
specific
passages
in
the
February
2004
notice
to
reflect
that
bagasse,
when
burned
in
a
boiler
to
produce
heat
needed
to
produce
sugar
from
sugar
cane,
is
clearly
a
fuel
and
is
more
properly
regulated
under
CAA
section
112
than
section
129.

Response:
The
EPA
agrees
that
boilers
combusting
bagasse
and
other
materials
for
energy
recovery
are
properly
regulated
under
section
112.
The
applicability
and
definitions
in
the
boilers
NESHAP
were
written
to
cover
such
units.
The
CISWI
rules
will
apply
only
to
waste
that
is
combusted
in
a
unit:
(
1)
whose
design
does
not
provide
for
energy
recovery;
or
(
2)
operated
without
energy
recovery.
The
language
revisions
suggested
by
the
commenter
were
not
changes
to
the
proposed
definitions
themselves,
but
changes
to
the
discussion
in
the
February
17,
2004
Federal
Register
notice
that
solicited
comment
on
the
definitions.
The
EPA
is
not
republishing
the
language
from
the
February
2004
notice
that
these
commenters
found
objectionable
in
the
preamble
to
the
final
action
on
these
definitions.

Comment:
One
commenter
(
OAR­
2003­
0119­
0011)
stated
that
there
is
no
doubt
that
certain
biomass
materials
are
fuels.
The
commenter
pointed
out
that
for
the
past
200
years
the
main
fuel
of
the
U.
S.
sugar
industry
has
been
bagasse,
which
has
a
heat
content
of
about
4,000
Btu/
lb
as
produced
in
the
mill.
The
commenter
also
pointed
out
that
bagasse
has
been
consistently
characterized
by
both
the
sugar
industry
and
government
regulators
as
a
product
of
sugar
production,
and
that
EPA
(
and
the
rest
of
the
world)
has
recognized
that
bagasse
is
a
renewable
resource.
In
addition,
the
use
of
bagasse
as
fuel
reduces
net
CO2
emissions,
thus
helping
in
the
fight
against
global
climate
change,
and
reduces
our
dependence
on
fossil
fuel
0154­
03­
008\
CISWI
comment­
response.
doc
32
combustion.
One
commenter
(
OAR­
2003­
0119­
0011)
also
stated
that
bagasse
should
be
removed
from
the
definition
of
agricultural
waste
because
bagasse
has
never
been
considered
as
a
waste
material,
nor
has
bagasse
been
routinely
discarded.
It
is
either
used
as
a
fuel
or
sold
as
a
source
of
lignin
for
paper
production,
as
a
raw
material
for
furfural,
and
for
many
other
uses.

Response:
The
EPA
agrees
that
bagasse,
when
burned
in
a
boiler
for
energy
recovery,
is
a
fuel
rather
than
a
commercial
or
industrial
waste.
Boilers
combusting
bagasse
are
covered
under
section
112
rules,
such
as
the
boilers
NESHAP
and
the
upcoming
area
source
boilers
standards.

The
definitions
in
the
CISWI
rules
are
clear,
and
will
not
cause
bagasse
that
is
burned
in
a
boiler
to
be
covered
by
the
CISWI
rules.
However,
EPA
is
not
removing
bagasse
from
the
definition
of
"
agricultural
waste"
in
the
CISWI
rules.
If
bagasse
or
other
agricultural
materials
are
combusted
for
disposal
in
a
unit
without
energy
recovery
rather
than
combusted
for
energy
recovery,
they
would
be
considered
a
commercial
or
industrial
waste.
We
note,
however,
that
the
CISWI
rules
exempt
incineration
units
burning
90
percent
or
more
agricultural
wastes,
as
long
as
they
follow
the
notification
and
recordkeeping
requirements
in
§
60.2020(
b)
of
subpart
CCCC
or
§
60.2555(
b)

of
subpart
DDDD.

Comment:
One
commenter
(
OAR­
2003­
0119­
0015)
supports
the
comments
submitted
on
behalf
of
the
Florida
Sugar
Industry
by
another
commenter
(
OAR­
2003­
0119­
0011).

Response:
The
EPA
understands
that
this
commenter
agrees
with
the
comments
submitted
on
behalf
of
the
Florida
Sugar
Industry
and
has
addressed
the
comments
throughout
this
document.

8.2
CLARIFICATIONS
TO
THE
APPLICABILITY
OF
THE
CISWI
RULES
THAT
ARE
NOT
RELATED
TO
THE
PROPOSED
DEFINITION
CHANGES
Comment:
One
commenter
(
OAR­
2003­
0119­
0027)
requested
that
the
definition
of
commercial
and
industrial
solid
waste
incineration
unit
be
amended
to
clarify
that
air
curtain
incinerators
burning
wood
waste,
clean
lumber,
and
yard
waste
are
not
solid
waste
incineration
units
and
are
therefore
not
subject
to
title
V
permitting
requirements.
The
commenter
believes
that
these
area
sources,
typically
small
wood
pallet
recyclers,
are
more
effectively
regulated
with
SIP
permits.

Response:
This
comment
is
not
related
to
the
changes
in
the
definitions
of
"
commercial
or
industrial
waste"
and
"
CISWI
unit"
discussed
in
the
February
2004
proposal
and,
therefore,
so
is
0154­
03­
008\
CISWI
comment­
response.
doc
33
outside
the
scope
of
the
current
regulatory
action.
However,
EPA
will
consider
this
comment
in
conjunction
with
additional
actions
to
amend
the
CISWI
rule
that
we
will
be
taking
in
response
to
the
court
remand
that
we
requested
voluntarily.

Comment:
One
commenter
(
OAR­
2003­
0119­
0027)
requested
that
EPA
address
whether
pyrolysis
and
gasification
units
meet
the
definition
of
CISWI
unit.

Response:
This
comment
is
not
related
to
the
changes
in
the
definitions
of
"
commercial
or
industrial
waste"
and
"
CISWI
unit"
discussed
in
the
February
2004
proposal
and,
therefore,
is
outside
the
scope
of
the
current
regulatory
action.
However,
EPA
will
consider
this
comment
in
conjunction
with
additional
action
to
amend
the
CISWI
rule
that
we
will
be
taking
in
response
to
the
court
remand
that
we
requested
voluntarily.

Comment:
One
commenter
(
OAR­
2003­
0119­
0014)
asked
EPA
to
clarify
whether
the
exemption
in
§
60.2555(
n)(
7)
for
"
units
burning
only
photographic
film
to
recover
silver"
or
the
exemption
in
§
60.2555(
h)
for
"
materials
recovery
units
that
combust
waste
for
the
primary
purpose
of
recovering
metals"
would
apply
to
silver
recovery
operations
that
combust
materials
other
than
photographic
film
(
e.
g.,
x­
ray
film,
silver­
rich
sludges
from
photographic
paper
coating).
The
commenter
also
asked
whether
such
units
could
combust
some
non­
silver
bearing
waste
such
as
plastic
and
cardboard
film
packaging,
and
still
be
eligible
for
these
exemptions.

Response:
This
comment
is
not
related
to
the
changes
in
the
definitions
of
"
commercial
or
industrial
waste"
and
"
CISWI
unit"
discussed
in
the
February
2004
proposal
and,
therefore,
is
outside
the
scope
of
the
current
regulatory
action.
However,
EPA
will
consider
this
comment
in
conjunction
with
additional
action
to
amend
the
CISWI
rule
that
we
will
be
taking
in
response
the
court
remand
that
we
requested
voluntarily.

Comment:
One
commenter
(
OAR­
2003­
0119­
0009)
requested
clarification
of
the
provisions
of
§
§
60.2025
and
60.2558
to
indicate
that
the
recovered
chemical
constituents
can
be
used
in
a
manner
other
than
the
original
use
in
the
process
upstream
of
the
stream
being
burned.

The
quality
of
recovered
constituents
may
make
them
more
suited
to
a
different
application,
and
providing
this
clarification
will
enhance
the
ability
to
reuse
recovered
materials.

Response:
This
comment
is
not
related
to
the
changes
in
the
definitions
of
"
commercial
or
industrial
waste"
and
"
CISWI
unit"
discussed
in
the
February
2004
proposal
and,
therefore,
is
outside
the
scope
of
the
current
regulatory
action.
However,
EPA
will
consider
this
comment
in
0154­
03­
008\
CISWI
comment­
response.
doc
34
conjunction
with
additional
action
to
amend
the
CISWI
rule
that
we
will
be
taking
in
response
the
court
remand
that
we
requested
voluntarily.

Comment:
One
commenter
(
OAR­
2003­
0119­
0009)
urged
EPA
to
retain
the
15
specific
exemptions
set
out
in
40
CFR
60.2020.
The
commenter
noted
that
it
does
not
appear
that
EPA
is
taking
comment
on
the
exemptions,
but
commented
anyway.

Response:
The
EPA
did
not
seek
comment
on
the
15
exemptions
already
contained
in
the
CISWI
rules,
and
they
are
outside
the
scope
of
the
current
regulatory
action.
The
exemptions
are
not
affected
by
the
changes
in
the
definitions
of
"
commercial
or
industrial
waste"
and
"
CISWI
unit"
discussed
in
the
February
2004
proposal,
and
we
intend
to
retain
them.

Comment:
One
commenter
(
OAR­
2003­
0119­
0014)
stated
that
section
129
exempts
precious
metal
recovery
operations
from
regulation
as
incinerators,
and
that
these
facilities
could
be
considered
for
regulation
under
section
112,
particularly
since
HAP
emissions
could
be
significant.

Response:
This
comment
is
not
related
to
the
changes
in
the
definitions
of
"
commercial
or
industrial
waste"
and
"
CISWI
unit"
discussed
in
the
February
2004
proposal
and,
therefore,
is
outside
the
scope
of
the
current
regulatory
action.

8.3
RULEMAKING
PROCESS
Comment:
One
commenter
(
OAR­
2003­
0119­
0012)
challenged
the
rulemaking
process,

arguing
that
EPA
committed
to
convene
further
proceedings
to
allow
for
additional
public
comment
on
the
CISWI
definitions,
but
then
finalized
the
boiler
rule
under
section
112.
In
the
commenter's
view,
this
series
of
events
rendered
the
reconsideration
proceeding
on
the
CISWI
definitions
meaningless
since
EPA
has
already
decided
which
units
would
be
covered
under
the
boiler
rule.

Response:
In
order
to
comply
with
a
deadline
established
in
a
Consent
Decree
(
which
was
negotiated
and
signed
by
counsel
for
the
commenter),
EPA
was
required
to
finalize
the
boilers
rule
under
section
112
by
February
27,
2004.
As
a
result
of
this
deadline,
EPA
did
not
have
the
ability
to
wait
to
finalize
the
boiler
rule
until
the
conclusion
of
EPA's
reconsideration
of
the
CISWI
definitions.
The
notice
of
proposed
rulemaking
on
the
CISWI
definitions
was
signed
by
the
Assistant
Administrator
for
Air
and
Radiation
on
February
10,
2004
and
published
on
Federal
Register
on
February
17,
2004.
The
Administrator
signed
the
boiler
rule
on
February
26,
2004
0154­
03­
008\
CISWI
comment­
response.
doc
35
and
EPA
published
the
rule
in
the
Federal
Register
on
September
14,
2004
after
an
unforeseen
delay.

Because
these
actions
occurred
contemporaneously,
we
acknowledged
in
the
Response
to
Comments
document
for
the
boiler
rule
that
we
were
soliciting
further
comment
on
the
CISWI
definitions.
See
"
Response
to
Public
Comments
on
Proposed
Industrial,
Commercial,
and
Institutional
Boilers
and
Process
Heaters
NESHAP"
(
Boilers
RTC).
In
that
document,
we
stated
that
"[
c]
hanges
made
to
the
CISWI
rule
in
the
promulgated
rule
that
affect
boilers
and
process
heaters
will
be
dealt
with
after
the
promulgation
of
the
boiler
MACT
standards."
Boilers
RTC
at
167.
Thus,
we
informed
the
public
that
we
would
take
further
action
to
address
the
scope
of
the
boilers
rule
if
it
was
necessary
after
our
reconsideration
of
the
CISWI
definitions.

Our
final
action
in
the
boilers
rule
on
February
26,
2004
was
informed
by
the
definitions
that
we
had
proposed
on
February
17,
2004
in
the
CISWI
reconsideration
action.
Thus,
at
that
time,
we
had
intended
for
the
scope
of
the
boilers
rule
to
be
consistent
with
the
proposed
scope
of
the
CISWI
rule.
Our
rationale
for
the
action
in
the
boilers
rule
was
based
on
what
EPA
proposed
in
the
reconsideration
action
on
the
CISWI
definitions.
However,
as
shown
by
the
statements
described
above,
we
continued
to
recognize
that
it
might
be
necessary
to
make
changes
to
the
CISWI
definitions
and
boiler
rule
based
on
public
comments
received
on
this
reconsideration.
We
made
clear
that
our
final
action
in
the
boilers
rule
did
not
preclude
the
possibility
of
further
action
to
amend
the
scope
of
the
boilers
rule
after
receiving
public
comments
on
the
scope
of
the
CISWI
definitions.
