
[Federal Register Volume 76, Number 247 (Friday, December 23, 2011)]
[Proposed Rules]
[Pages 80452-80530]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31648]



[[Page 80451]]

Vol. 76

Friday,

No. 247

December 23, 2011

Part II





Environmental Protection Agency





-----------------------------------------------------------------------





40 CFR Parts 60 and 241





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

  Federal Register / Vol. 76 , No. 247 / Friday, December 23, 2011 / 
Proposed Rules  

[[Page 80452]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 241

[EPA-HQ-OAR-2003-0119 and EPA-HQ-RCRA 2008-0329; FRL-9503-7]
RIN 2060-AR15 and 2050-AG44


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rules; Reconsideration of final rule.

-----------------------------------------------------------------------

SUMMARY: On March 21, 2011, the EPA promulgated its final response to 
the 2001 voluntary remand of the December 1, 2000, new source 
performance standards and emission guidelines for commercial and 
industrial solid waste incineration units and the vacatur and remand of 
several definitions by the District of Columbia Circuit Court of 
Appeals in 2007. Following that action, the Administrator received 
petition[s] for reconsideration as well as identified some issues that 
warrant further opportunity for public comment. In response to the 
petition[s], the EPA is reconsidering and requesting comment on several 
provisions of the final new source performance standards and emission 
guidelines for commercial and industrial solid waste incineration 
units.
    In addition, the EPA is proposing amendments to the regulations 
which were codified by the Non-Hazardous Secondary Materials 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 proposed 
amendments is to clarify several provisions in order to implement the 
Non-Hazardous Secondary Materials rule as the Agency originally 
intended.

DATES: Comments must be received on or before February 21, 2012.
    Public Hearing. If anyone contacts the EPA requesting to speak at a 
public hearing by January 3, 2012, a public hearing will be held on 
January 9, 2012. For further information on the public hearing and 
requests to speak, contact Ms. Janet Eck at (919) 541-7946 to verify 
that a hearing will be held.

ADDRESSES: Submit your comments on the commercial and industrial solid 
waste incineration reconsideration and proposed rule, identified by 
Docket ID No. EPA-HQ-OAR-2003-0119, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Email: a-and-r-Docket@epa.gov, Attention Docket ID No. 
EPA-HQ-OAR-2003-0119.
     Fax: (202) 566-9744, Attention Docket ID No. EPA-HQ-OAR-
2003-0119.
     Mail: EPA Docket Center (EPA/DC), Environmental Protection 
Agency, Mailcode 6102T, 1200 Pennsylvania Ave. NW., Washington, DC 
20460, Attention Docket ID No. EPA-HQ-OAR-2003-0119. Please include a 
total of two copies. We request that a separate copy also be sent to 
the contact person identified below (see FOR FURTHER INFORMATION 
CONTACT).
     Hand Delivery: In person or by Courier, deliver comments 
to: EPA Docket Center (EPA/DC), Room 3334, 1301 Constitution Ave. NW., 
Washington, DC 20004. Such deliveries are accepted only during the 
docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Submit your comments on the Non-Hazardous Secondary Materials 
proposed rule, identified by Docket ID No. EPA-HQ-RCRA-2008-0329, by 
one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Email: Comments may be sent by electronic mail (email) to: 
rcra-docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA-2008-0329.
     Fax: Comments may be faxed to (202) 566-9744, Attention 
Docket ID No. EPA-HQ-RCRA-2008-0329.
     Mail: Send comments to: RCRA Docket, EPA Docket Center, 
Environmental Protection Agency, Mailcode: 28221T, 1200 Pennsylvania 
Ave. NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-RCRA-
2008-0329. Please include a total of two copies of your comments. We 
request that a separate copy also be sent to the contact person 
identified below (see FOR FURTHER INFORMATION CONTACT).
     Hand Delivery: Deliver two copies of your comments to: 
Environmental Protection Agency, EPA Docket Center, Room 3334, 1301 
Constitution Avenue NW., Washington DC, Attention Docket ID No. EPA-HQ-
RCRA-2008-0329. Such deliveries are only accepted during the Docket's 
normal hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments on the commercial and industrial 
solid waste incineration reconsideration and proposal to Docket ID No. 
EPA-HQ-OAR-2003-0119. Direct your comments on the Non-Hazardous 
Secondary Materials proposed rule to Docket ID No. EPA-HQ-RCRA-2008-
0329. The EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
confidential business information or other information whose disclosure 
is restricted by statute. Do not submit information that you consider 
to be confidential business information or otherwise protected through 
http://www.regulations.gov or email. The http://www.regulations.gov Web 
site is an ``anonymous access'' system, which means the EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an email comment directly to the EPA 
without going through http://www.regulations.gov, your email address 
will be automatically captured and included as part of the comment that 
is placed in the public docket and made available on the Internet. If 
you submit an electronic comment, the EPA recommends that you include 
your name and other contact information in the body of your comment and 
with any disk or CD-ROM you submit. If the EPA cannot read your comment 
due to technical difficulties and cannot contact you for clarification, 
the EPA may not be able to consider your comment. Electronic files 
should avoid the use of special characters, any form of encryption, and 
be free of any defects or viruses. For additional information about the 
EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: 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

[[Page 80453]]

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

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

7-PAH 7 Polyaromatic Hydrocarbons
16-PAH 16 Polyaromatic Hydrocarbons
ACI Activated Carbon Injection
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
ASTM American Society for Testing and Materials
ATCM Air Toxic Control Measure
BAT Best Available Technology
Btu British Thermal Unit
CAA Clean Air Act
CARB California Air Resources Board
CBI Confidential Business Information
CBO Carbon burn-out
Cd Cadmium
CDX Central Data Exchange
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
The Court U.S. Court of Appeals for the District of Columbia Circuit
CSA Canadian Standards Association
CWA Clean Water Act
D/F Dioxin/Furan
DIFF Dry Sorbent Injection Fabric Filter
dscf Dry Standard Cubic Foot
dscm Dry Standard Cubic Meter
DSW Definition of Solid Waste
EG Emission Guidelines
EJ Environmental Justice
EMPC Estimated Maximum Possible Concentration
EOM Extractable Organic Matter
EPA U.S. Environmental Protection Agency
ERT Electronic Reporting Tool
ERU Energy Recovery Unit
ESP Electrostatic Precipitator
FF Fabric Filters
HAP Hazardous Air Pollutants
HCl Hydrogen Chloride
HF Hydrogen Fluoride (HF)
Hg Mercury
HMI Hospital, Medical and Infectious
HMIWI Hospital, Medical and Infectious Waste Incineration
HWC Hazardous Waste Combustor
ICR Information Collection Request
ISO International Standards Organization
LBMS Linkageless Burner Management System
LML Lowest Measured Level
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
ND Nondetect
NESHAP National Emission Standards for Hazardous Air Pollutants
ng/dscm Nanograms per Dry Standard Cubic Meter
NHSM Non-Hazardous Secondary Material(s)
NOX Nitrogen Oxides
NSPS New Source Performance Standards
NTTAA National Technology Transfer and Advancement Act
OAQPS Office of Air Quality Planning and Standards
O&M Operations and Maintenance
OMB Office of Management and Budget
OP Office of Policy
OSWI Other Solid Waste Incineration
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
PRA Paper Reduction Act
PS Performance Specification
QA/QC Quality Assurance/Quality Control
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
SCR Selective Catalytic Reduction
SARU Sulfuric Acid Regeneration Unit
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
TEF Total Equivalency Factor
TEQ Toxic Equivalency
TMB Total Mass Basis
TOX Total Organic Halogens
tpy Tons Per Year
TRI Toxics Release Inventory
TSR Thermal Sand Reclamation
TTN Technology Transfer Network
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
UTL Upper Tolerance Limit
VCS Voluntary Consensus Standards
VOC Volatile Organic Compound
WWW Worldwide Web

A. Does this document of reconsideration and proposal apply to me?

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

 
------------------------------------------------------------------------
                                                        Examples of
           Category               NAICS \1\ Code   potentially regulated
                                                          entities
------------------------------------------------------------------------
Any industrial or commercial        211, 212, 486  Mining, oil and gas
 facility using a solid waste                       exploration
 incinerator.                                       operations; pipeline
                                                    operators.
                                              221  Utility providers.

[[Page 80454]]

 
                                    321, 322, 337  Manufacturers of wood
                                                    products;
                                                    manufacturers of
                                                    pulp, paper and
                                                    paperboard;
                                                    manufacturers of
                                                    furniture and
                                                    related products.
                                         325, 326  Manufacturers of
                                                    chemicals and allied
                                                    products;
                                                    manufacturers of
                                                    plastics and rubber
                                                    products.
                                              327  Manufacturers of
                                                    cement; nonmetallic
                                                    mineral product
                                                    manufacturing.
                                         333, 336  Manufacturers of
                                                    machinery;
                                                    manufacturers of
                                                    transportation
                                                    equipment.
                                          423, 44  Merchant wholesalers,
                                                    durable goods;
                                                    retail trade.
Any facility or entity                        111  Crop Production.
 generating a non 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  Pulp, Paper, and
                                                    Paper Products.
                                              324  Petroleum and Coal
                                                    Products
                                                    Manufacturing.
                                              325  Chemical
                                                    Manufacturing.
                                              326  Plastics and Rubber
                                                    Products
                                                    Manufacturing.
                                              327  Non-Metallic Mineral
                                                    Product
                                                    Manufacturing.
                                              331  Primary Metal
                                                    Manufacturing.
                                              332  Fabricated and 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  Durable Goods
                                                    Merchant
                                                    Wholesalers.
                                              424  Nondurable Goods
                                                    Merchant
                                                    Wholesalers.
                                            44-45  Retail Trade.
                                              486  Pipeline
                                                    Transportation.
                                              493  Warehousing and
                                                    Storage.
                                              511  Publishing Industry
                                                    (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  Marinas.
                                              721  Lodging, Restaurant.
                                              722  Food Services and
                                                    Drinking Places.
                                              813  Religious,
                                                    Grantmaking, Civic,
                                                    Professional, and
                                                    Similar
                                                    Organizations.
                                               92  Public
                                                    Administration.
------------------------------------------------------------------------
\1\ North American Industry Classification System.
\2\ May be some overlap with the incinerators.

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

B. What should I consider as I prepare my comments to the EPA?

    Submitting CBI. Do not submit information that you consider to be 
CBI electronically through http://www.regulations.gov, or email. For 
comments on the CISWI reconsideration and proposal, send or deliver 
information identified as CBI to only the following address: Ms. Toni 
Jones, c/o OAQPS Document Control Officer (Room C404-02), U.S. 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711, Attn: Docket ID No. EPA-HQ-OAR-2003-119.
    Clearly mark the part or all of the information that you claim to 
be CBI. For CBI information in a disk or CD-ROM that you mail to the 
EPA, mark the

[[Page 80455]]

outside of the disk or CD-ROM as CBI and then identify electronically 
within the disk or CD-ROM the specific information that is claimed as 
CBI. In addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. If you submit a disk or CD-ROM that does not contain 
CBI, mark the outside of the disk or CD-ROM clearly that it does not 
contain CBI. Information marked as CBI will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    If you have any questions about CBI or the procedures for claiming 
CBI, please consult the person identified in the FOR FURTHER 
INFORMATION CONTACT section.

C. How do I obtain a copy of this document and other related 
information?

    The docket number for the proposed action regarding the CISWI NSPS 
(40 CFR part 60, subpart CCCC) and EG (40 CFR part 60, subpart DDDD) is 
Docket ID No. EPA-HQ-OAR-2003-0119.

Worldwide Web

    In addition to being available in the docket, an electronic copy of 
the proposed action is available on the WWW through the TTN Web. 
Following signature, the EPA posted a copy of the proposed action on 
the TTN's policy and guidance page for newly proposed or promulgated 
rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and 
technology exchange in various areas of air pollution control.
    Organization of this Document. The following outline is provided to 
aid in locating information in this preamble.

I. CISWI Reconsideration and Proposal
    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?
    B. Actions We Are Taking
    C. Discussion of Issues for Reconsideration
    1. Revision of the Subcategories
    2. Establishment of Limitations on Fuel Switching Provisions
    3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil 
Treatment Units, Laboratory Analysis Units, and Space Heaters from 
CISWI Subcategories
    4. Providing an affirmative defense for malfunction events
    5. Revisions to the CO Monitoring Requirements
    6. Establishing a Full-load Stack Test Requirement for CO 
Coupled with Continuous Oxygen Monitoring
    7. Establishing a Definition of ``Homogeneous Waste''
    8. Incorporating Fuel Variability into Emission Limit 
Calculations
    9. Review of D/F Data and Non-detect Methodology Using Three 
Times the Detection Level
    10. Providing an Option for Sources to Use Emissions Averaging 
to Demonstrate Compliance
    11. Definitions
    12. Allowances for Using Feed Stream Analysis or Other 
Supplemental Information to Demonstrate Compliance
    13. Providing Percent Reduction Alternative Standards
    14. Providing Parametric Monitoring Provisions for Additional 
Control Device Types
    15. Revisions to the Continuous Monitoring Provisions for Large 
ERUs
    16. Extending Compliance Dates
    D. Technical Corrections and Clarifications
    1. Providing a Definition of Municipal Solid Waste
    2. Energy Recovery Units Designed to Burn Non-coal Solid 
Materials
    3. Typographical Errors and Corrections
    E. Environmental, Energy and Economic Impacts
    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?
II. NHSM Proposed Revisions
    A. Statutory Authority
    B. What is the intent of this proposal?
    C. What is the scope of this proposal?
    1. Revised Definitions
    2. Contaminant Legitimacy Criterion for NHSM Used as Fuels
    3. Categorical Non-Waste Determinations for Specific NHSM Used 
as Fuels
    4. Additional Request for Comment
    5. Clarification Letters Issued After Promulgation of the NHSM 
Final Rule
    6. Clarification of the Process for Submittal of Non-Waste 
Petitions
    D. Rationale for the Proposed Revisions to the Part 241 
Requirements
    1. Revised Definitions
    2. Revisions to the Contaminant Legitimacy Criterion for NHSM 
Used as Fuels
    3. Categorical Determinations That Specific NHSM Are Not Solid 
Waste When Used as a Fuel
    4. Rulemaking Petition Process for Other Non-Waste 
Determinations
    E. Additional Request for Comment
    1. Pulp and Paper Sludges
    2. Coal Refuse
    F. Effect of This Proposed Rule on Other Programs
    1. Clean Air Act
    2. Subtitle C Hazardous Waste Program/Definition of Solid Waste 
Rule
    G. State Authority
    1. Relationship to State Programs
    2. State Adoption of the Rulemaking
    H. Cost and Benefits of the Proposed Rule
III. 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

I. CISWI Reconsideration and Proposal

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 EPA's CISWI rulemaking. 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

[[Page 80456]]

had no impact on the implementation 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 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 remains in effect.
    On March 21, 2011, the EPA promulgated revised NSPS and EG for 
CISWI units (76 FR 15704). That action constitutes the EPA's 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). Following that action, the Administrator received 
petition[s] for reconsideration as well as identified some issues that 
warrant further opportunity for public comment. In response to the 
petition[s], the EPA is reconsidering and requesting comment on several 
provisions of the final new source performance standards and emission 
guidelines for commercial and industrial solid waste incineration 
units.
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 the NHSM 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 the standards and procedures for identifying whether 
NHSM 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., boilers, process heaters and cement 
kilns).
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 concurrent Non-
hazardous Solid Waste Definition Rulemaking) 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 this regulation under CAA section 129. 
Section 112 rules of the CAA, applicable to boilers and process heaters 
at major sources and boilers at area sources, would apply to subject 
boilers and process heaters that do not combust solid waste. Boilers 
and process heaters that combust solid waste are subject to CISWI as 
ERUs. EPA has also finalized revised CAA section 112 NESHAP from 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 NESHAP.

B. Actions We Are Taking

    In this notice, we are granting reconsideration of, and requesting 
comment on, certain issues raised by Petitioners in their petitions for 
reconsideration and the issues identified by the EPA in the March 21, 
2011, notice of reconsideration. These provisions are: (1) Revision of 
the subcategory of ERUs; (2) establishment of limitations on fuel 
switching provisions; (3) revision of the definition of cyclonic burn 
barrels; (4) establishment of the procedures for providing an 
affirmative defense for malfunction events; (5) revisions to the carbon 
monoxide monitoring requirements; (6) establishment of a full-load 
stack test requirement for CO coupled with continuous oxygen monitoring 
for CISWI units; and (7) establishment of a definition of ``homogeneous 
waste'' in the CISWI rule. The EPA is also proposing certain revisions, 
which are: (1) Revised emission limits for the waste-burning kiln and 
ERU subcategories to reflect updated inventories and additional data, 
(2) the removal of continuous CO monitoring with CO CEMS requirements, 
(3) the removal of oxygen correction requirements for CO emission 
limits for ERUs during periods of startup and shutdown, and (4) the 
replacement of continuous PM monitoring for ERUs greater than 250 
MMBtu/hr design heat input capacity with continuous parameter 
monitoring system requirements. The EPA is taking comment on those 
revisions . Additionally, the EPA is proposing amendments and technical 
corrections to the final rule to clarify questions on final rule 
language and correct minor typographical errors raised by stakeholders 
subject to the final rule. Section I.C. of this preamble summarizes 
these issues and discusses our proposed responses to each issue.
    We are also proposing other clarification changes and technical 
corrections to certain provisions in the final rule.
    We are seeking public comment only on the issues specifically 
identified in this notice. We will not respond to any comments 
addressing other aspects of the final rule or any other related 
rulemakings.

C. Discussion of Issues for Reconsideration

    This section of the preamble contains the EPA's basis for the 
provisions we are reconsidering in this proposed rule. We solicit 
comment on all proposed responses and revisions discussed in the 
following sections.
1. Revision of the Subcategories
    Today's proposal incorporates new emission limits based on revised 
inventories for two of the final rule subcategories, solid-fuel burning 
ERUs and waste-burning kilns. Tables 1 and 2 present the proposed 
emission limits for all subcategories for existing and new sources, 
respectively.

[[Page 80457]]



                     Table 1--Comparison of Existing Source MACT Floor Limits for 2000 CISWI Rule and the Proposed 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  0.50....................          \b\ 14  3.0 \b\................             220
CO (ppmv)............................             157          \b\ 36  490 (biomass units)/46                36  120 (long kilns)/410                 20
                                                                        (coal units).                             (preheater/
                                                                                                                  precalciner).
Pb (mg/dscm).........................            0.04          0.0036  0.0019 (biomass units)/            0.096  0.0043.................             2.7
                                                                        0.0031 (coal units).
Cd (mg/dscm).........................           0.004          0.0026  0.00078 (biomass units)/           0.023  0.00082................            0.61
                                                                        0.058 (coal units).
Hg (mg/dscm).........................            0.47          0.0054  0.0020..................      \b\ 0.0031  0.011 \b\..............          0.0057
PM, filterable (mg/dscm).............              70              34  11 (biomass units)/86                110  9.2....................             230
                                                                        (coal units).
Dioxin, furans, total (ng/dscm)......      (no limit)             4.6  0.52 (biomass units)/            \b\ 2.9  3.6....................           1,200
                                                                        0.51 (coal units) \b\.
Dioxin, furans, TEQ (ng/dscm)........            0.41            0.13  0.12 (biomass units)/           \b\ 0.32  0.075 \b\..............              57
                                                                        0.075 (coal units) \b\.
NOX (ppmv)...........................             388              53  290 (biomass units)/....              76  630....................             240
                                                                       340 (coal units)........
SO2 (ppmv)...........................              20              11  7.3 (biomass units)/....             720  830....................             420
                                                                       650 (coal units)........
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ All emission limits are expressed as concentrations corrected to 7 percent oxygen.
\b\ See the memorandum ``CISWI Emission Limit Calculations for Existing and New Sources for Reconsideration Proposal'' for details on this calculation.


                       Table 2--Comparison of New Source MACT Floor Limits for 2000 CISWI Rule and the Proposed 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  0.50 \c\................          \b\ 14  3.0 \b\................             200
CO (ppmv)............................             157              12  160 (biomass units)/46                36  90 (long kilns)/320                  12
                                                                        (coal units).                             (preheater/
                                                                                                                  precalciner).
Pb (mg/dscm).........................            0.04      \b\ 0.0019  0.0019 (biomass units)/            0.096  0.0043 \c\.............            0.26
                                                                        0.0031 (coal units) \c\.
Cd (mg/dscm).........................           0.004          0.0023  0.00014 (biomass units)/           0.023  0.00082 \c\............        \c\ 0.61
                                                                        0.058 (coal units).
Hg (mg/dscm).........................            0.47     \b\ 0.00084  0.0020 \c\..............     \d\ 0.00091  0.0037 \b\.............      \b\ 0.0035
PM, filterable (mg/dscm).............              70              18  5.1 (biomass units)/86               110  8.9....................         \c\ 230
                                                                        (coal units) \c\.
Dioxin, furans, total (ng/dscm)......      (no limit)       \b\ 0.058  0.52 (biomass units)/         (no limit)  0.51 \b\...............       \c\ 1,200
                                                                        0.51 (coal units) \b\.
Dioxin, furans, TEQ (ng/dscm)........            0.41            0.13  0.076 (biomass units)/         \d\ 0.093  0.075 \b\..............              31
                                                                        0.075 (coal units) \b\.
NOX (ppmv)...........................             388              23  290 \c\ (biomass units)/              76  200 \b\................              78
                                                                        340 (coal units).
SO2 (ppmv)...........................              20          \c\ 11  7.3 \c\ (biomass units)/             720  130....................             1.2
                                                                        650 (coal units).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ All emission limits are measured at 7 percent oxygen.
\b\ See the memorandum ``CISWI Emission Limit Calculations for Existing and New Sources for Reconsideration Proposal'' 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 Reconsideration Proposal'' for details.
\e\ Hg limit was developed using material input data from CISWI kilns identified within the Portland Cement NESHAP database. See the memorandum ``CISWI
  Emission Limit Calculations for Existing and New Sources for Reconsideration Proposal'' for details on this calculation.

a. Energy Recovery Units
    In the final rule, we established separate subcategories based on 
the types of fuels and wastes ERUs were designed to burn. Energy 
Recovery Units (i.e., units that would be boilers and process heaters 
but 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

[[Page 80458]]

burn solid fuels or predominantly non-coal solid materials. 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.
    Petitioners have contended that they did not have adequate 
opportunity to comment on the ERU subcategories presented in the final 
rule. Some have 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 are granting 
reconsideration of our subcategorization approach for ERUs and are also 
proposing to divide emission limits for PM, Cd, Pb and D/F between coal 
and biomass units. The generation of PM is affected by the combustor 
design and operation. Therefore, design differences between biomass and 
coal ERU units have an impact on the generation of PM. We also are 
separating Cd and Pb with PM primarily due to the observation that 
these metals typically precipitate onto PM and are controlled along 
with PM. Finally, while D/F formation depends to some extent on the 
amount of chlorine available in the combustion gases, it is also 
affected by the amount of time the chlorine and hydrocarbon materials 
remain within a particular temperature range. The time gases remain in 
this range is a function of the combustor design, therefore, we have 
proposed separate limits for D/F as well. We are taking comment on the 
proposed revisions to the subcategorization of ERUs, including whether 
we should also subcategorize for HCl and Hg.
    Since issuing the final CISWI rule, we have received data and 
information in both petitions and data submittals that indicated our 
inventory of ERUs used to develop the final rule standards required 
some adjustments to more accurately reflect the definition of solid 
waste in the 2011 NHSM final rule. Based on the new data, we removed 
five units from the final rule inventory that we determined to be non-
waste burning units, and we added three units to our inventory that we 
determined combust solid waste. We also received emissions data for the 
newly added units and re-analyzed the performance of ERUs in the solid-
biomass and solid-coal ERU subcategories. The emission limits in 
today's proposal reflect the new inventory and emission data received; 
however, we have used the same methodology as in the final rule for 
establishing emission limits. We are not taking comment on this 
methodology.
b. Waste-Burning Kilns
    The EPA has 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 have added 11 more 
kilns to our inventory of waste-burning kilns. We have also obtained 
emissions test data for the newly identified CISWI kilns and re-
calculated the MACT floor emission limits for the waste-burning kilns 
subcategory based on the new inventory and additional data.
    We determined that in the case of CO emissions, it is appropriate 
to subcategorize by kiln type. In this case we are subcategorizing into 
two kiln types, long kilns (which include both dry and wet process 
kilns) and kilns that have preheaters (with or without precalciners. A 
review of the available data for CO emissions for CISWI kilns indicates 
that there are significant differences between CO emissions for these 
two types of kilns. The CO emissions from the three long kilns were all 
below 100 ppmv. CO emissions from the three preheater kilns were all 
above 300 ppmv. We note that the CO emission factors for long kilns are 
at least a factor of 5 less than those for preheater or preheater 
precalciner kilns. We attribute this difference to the presence of the 
preheater, which results in a different temperature profile than exists 
in the cold end section of a long kiln.
    As with the new ERU standards, we have used the same methodology to 
establish today's proposed emission limits as we used for the final 
rule; therefore, we are not accepting comment on the methodology used 
to calculate the limits. We are also requesting comment on whether 
waste-burning kiln emission limits should be expressed on a production 
(e.g., lb per million tons clinker produced) basis instead of, or in 
addition to, concentration based limits. Table 3 presents the emission 
limits for PM, NOX, SO2 and Hg on a production 
basis for comparison. Comments should clarify which pollutants could 
warrant production-based limits and the rationale for using a 
production basis.

   Table 3--Waste-Burning Kiln Emission Limits Expressed in Production
                                  Basis
------------------------------------------------------------------------
                                               Existing
             Pollutant (units)                  kilns        New kilns
------------------------------------------------------------------------
Hg (lb/MM ton clinker)....................         58             21
PM (lb/ton clinker).......................          0.052          0.050
NOX (lb/ton clinker)......................          6.7            2.1
SO2 (lb/ton clinker)......................         12.3            1.9
------------------------------------------------------------------------

2. Establishment of Limitations on Fuel Switching Provisions
    The final rule included provisions to address the situation where 
CISWI units cease combusting solid waste, and where existing commercial 
and industrial facilities start combusting solid waste. Units that 
cease combusting solid waste remain subject to CISWI for at least 6 
months after solid waste is added to the combustion chamber. After 6 
months, sources must either comply with any applicable section 112 
standards or, if they intend to combust solid waste in the unit in the 
future, opt to remain subject to CISWI. Sources switching out of CISWI 
due to cessation of solid waste combustion must submit advance 
notification of the effective date of the waste-to-non-waste fuel 
switch consistent with new procedures in the final rule. Units that 
begin combusting solid waste are considered affected sources under 
CISWI EG, and must comply as expeditiously as possible as required by 
the state or federal CISWI 111(d)/129 plan revision, whichever is 
applicable.
    The EPA acknowledges that sources may stop and start combusting 
solid waste in their combustion units, and that regulatory procedures 
are necessary to guide sources through the changes in applicability 
that may result due to a switch in combustion materials. The provisions 
in the final rule account for the fact that facilities may start and 
stop combusting solid waste and ensure that any resulting changes in 
applicability

[[Page 80459]]

between section 129 and section 112 rules do not occur with so much 
frequency that sources are unable to demonstrate continuing compliance 
with the applicable standards. To ensure that frequent switching does 
not impede our ability to determine continuous compliance and create 
undue permitting and testing burdens, sources remain subject to CISWI 
for a minimum of 6 months. The definition of CISWI unit has been 
revised to clarify that a CISWI unit includes a distinct operating unit 
of any commercial or industrial facility that combusts any solid waste 
in a consecutive 6-month period. We believe this change will reduce 
administrative and compliance costs to both the source and the 
regulatory agencies. For example, sources will not have to re-establish 
initial compliance with CISWI or revise their operating permit to 
reflect a switch out of and back into the CISWI regulations. Instead, 
facilities that combust solid waste would continue to be subject to the 
CISWI regulations for the 6-month period after waste is added to the 
combustion unit. For example, if a source burns waste on January 1, 
they would be subject to CISWI through June 30. If during that 6-month 
period they burned waste again, for example on March 1, the 6-month 
window would now be until September 30. The regulations also allow 
facilities to remain subject to CISWI beyond 6 months after cessation 
of solid waste combustion, at their own discretion, if the source 
determines that continued compliance with CISWI is appropriate because 
the source intends to combust solid waste in the future. Source owners 
or operators may, alternatively, choose a date at least 6 months after 
ceasing solid waste combustion on which they would no longer be subject 
to CISWI, and would instead be subject to any applicable section 112 
standards. This date is called the effective date of the waste-to-fuel 
switch.
    Specifically, the new provisions direct a source owner or operator 
to establish an effective date for the waste-to-non-waste fuel, or non-
waste fuel-to-waste switch, and that date becomes the date on which all 
of the newly applicable requirements apply. When a source begins 
combusting solid waste, the effective date of the non-waste fuel-to-
waste switch must be the same as the actual date the unit begins 
combusting solid waste because by statute any source that combusts any 
solid waste is a solid waste incineration unit subject to standards 
under CAA section 129. See section 129(g)(1) (defining ``solid waste 
incineration unit''). For sources that cease burning solid waste, the 
effective date for the waste-to-fuel switch is a date that is at least 
6 months after the last date on which solid waste is added to the 
combustion unit. This allows sources that cease combusting solid waste 
to comply with an applicable NESHAP or opt to remain subject to CISWI 
at the discretion of the owner or operator. We allow the owner or 
operator of a CISWI unit the option of remaining subject to CISWI to 
account for sources that may want to retain the ability to burn waste 
intermittently without having to periodically switch between the 
section 112 and section 129 regulatory programs. If a source wishes to 
end applicability of CISWI to its unit, the source must submit an 
advance notification of the effective date, established as described 
above, of the waste-to-non-waste fuel switch. The source must be in 
compliance on the effective date of the waste-to-non-waste fuel switch 
with any NESHAP that applies as a result of ceasing the combustion of 
solid waste. The source must remain in continuous compliance with the 
CISWI regulations until that date.
    The new waste-to-non-waste fuel switch provisions in the final rule 
include requirements to conduct performance testing that will assure 
compliance with all applicable standards. Specifically, performance 
tests must be conducted within 60 days of the date on which the unit 
begins combusting solid waste. In addition, the owner or operator must 
collect and report any PM CEMS and/or PM parametric monitoring data for 
those monitors that are operated at the same time as the performance 
test to determine whether the existing calibrations and/or correlations 
are still applicable. After the testing is completed, and it is 
demonstrated that the source is operating in compliance with the 
applicable standards, the owner or operator should adjust any PM CEMS 
calibration and any correlation for PM to correspond to the performance 
test results and data.
    The new provisions also require advance notification of the 
effective date of the waste-to-non-waste fuel switch. The notification 
includes basic information that will enable the reviewing authority to 
determine the date on which CISWI will no longer apply to the facility 
and the date on which any newly applicable section 112 regulations may 
apply. Notification must be submitted to both the EPA Regional Office 
and the delegated state or local agency. To ensure that frequent 
switching does not impede our ability to determine continuous 
compliance, sources may not switch between applicable section 129 and 
section 112 standards without completing the initial performance test. 
Therefore, sources that wish to start burning solid waste before they 
have demonstrated compliance with their existing section 112 standard 
must complete the performance test for the 112 rule before switching to 
solid waste combustion. If a source switches back to a non-waste fuel 
or non-waste material for which a performance test was conducted within 
the 6 months preceding the effective date of the switch, and if there 
are no changed conditions that would affect emissions, the source need 
not retest that source until 6 months from the effective date of the 
switch. If a source is subject to any emission limits for which 
compliance is determined on an annual average or other averaging period 
that is for a period of time greater than the period in which the 
source will be combusting the fuel or non-waste material, the source 
must comply with the emission limit averaged over the shorter time 
period in which the fuel or material is combusted. For example, if a 
source chooses to demonstrate compliance with the Hg limits of the 
major source Boiler NESHAP through fuel analysis, which has a 12-month 
rolling average limit, and opts to start combusting solid waste and 
become subject to CISWI after combusting the fuel under the Boiler 
NESHAP for only 9 months, the source must demonstrate compliance with 
the Hg limit based on a 9 month rolling average instead of the annual 
average. The EPA believes this is necessary to assure that switching to 
solid waste combustion does not compromise our ability to determine 
compliance with standards under section 112.
    The rules do not allow for compliance extensions associated with 
changes to the fuels or materials that are combusted. After the first 
substantive compliance date (e.g., the effective date of the state 
program or 5 years after publication of the final CISWI rule for 
incineration units), sources must be in compliance with the standard 
that is applicable to the source based on the type of unit and the 
fuels or materials that are combusted. An existing source will not be 
considered a new source solely due to a combustion material switch. 
Assuming new source applicability is not triggered, existing sources 
that change fuels or materials are considered existing sources and, as 
such, they must be in compliance on the date they begin combusting the 
new fuel or material. For all sources that commence combustion of solid 
waste,

[[Page 80460]]

the CISWI requirements become applicable on the date that the fuel 
switch occurs.
    While we believe the final rule reflects reasonable approaches 
consistent with the requirements of the CAA, we believe reconsideration 
and an additional opportunity for public review and comment are 
appropriate. Therefore, we are seeking comment on the fuel switching 
provisions included in the final CISWI rule, particularly on whether 
the provisions should include further clarification on the timeline and 
regulatory requirements of a fuel switch. Additionally, we are 
soliciting comment on an alternative time period for switching 
frequency (e.g., 12 months).
3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment 
Units, Laboratory Analysis Units, and Space Heaters from CISWI 
Subcategories
    The EPA included in the final rule definitions for units that 
differentiated such units from the four subcategories for which the 
Agency finalized standards on March 21, 2011. The definitions were not 
proposed and the EPA is proposing those definitions in this notice to 
provide the public an opportunity to comment on them. We discuss each 
definition below.
    In the proposed CISWI rule, the EPA included cyclonic burn barrels 
within the definition for incinerators. Based on the information 
received during the comment period, the EPA determined that cyclonic 
burn barrels and traditional incinerators should be separate 
subcategories. See 40 CFR 60.2265 and 60.2875 (defining ``cyclonic burn 
barrel'' to mean a combustion device for waste materials that is 
attached to a 55 gallon, openhead drum. The device consists of a lid, 
which fits onto and encloses the drum, and a blower that forces 
combustion air into the drum in a cyclonic manner to enhance the mixing 
of waste material and air. A cyclonic burn barrel is not an 
incinerator, waste-burning kiln, an ERU or a small, remote incinerator 
under subparts CCCC or DDDD.)
    In addition, information we have obtained since proposal indicates 
that there may be many more cyclonic burn barrels than those we have 
identified, and we have almost no emission data on which to set 
emissions standards for cyclonic burn barrels. We also received 
information that it is difficult, if not impossible, to test cyclonic 
burn barrels for the CAA section 129 pollutants using available test 
methods. For these reasons, we concluded in the final rules that 
cyclonic burn barrels were not incinerators and that we could not 
establish standards for such units at the time we issued the final 
rules. We further determined in the final rule that we did not need to 
regulate cyclonic burn barrels to comply with our CAA section 112(c)(6) 
obligation for the reasons set forth in the preamble to the final rule. 
We have not received any new emission data for cyclonic burn barrels; 
therefore, we are not proposing to establish standards for such units 
in this notice. We solicit comment concerning our decisions in regard 
to cyclonic burn barrels and the definition as set forth in the final 
rule.
    We estimated in the proposed CISWI rule that there were 
approximately 36 burn-off ovens and we proposed standards for the 
subcategory based on an incomplete emission data set. We received many 
comments during the comment period that indicated that there may be 
15,000 more units in the burn-off oven subcategory than we had 
identified, and the comments also indicated that the subcategory for 
which we established one set of standards in fact has many different 
types of units that should not be regulated under one standard. Based 
on the comments, the lack of data, and our determination that we did 
not need to regulate burn-off ovens to comply with our CAA section 
112(c)(6) obligation, we did not finalize standards for burn-off ovens. 
We revised the definition of burn-off oven in the final rule to 
distinguish such units from the units for which we established 
standards. We have not received data that would allow us to establish 
standards for the various burn-off oven subcategories and, therefore, 
we are not proposing standards in this reconsideration notice. We 
solicit comment on our decisions concerning to burn-off ovens and on 
our definition as set forth in the final rule.
    The EPA believed there were two soil treatment units prior to 
proposing the CISWI standards and we proposed to include soil treatment 
units in the waste-burning kilns subcategory. Commenters indicated that 
soil treatment units are not kilns and also that the Agency had 
significantly underestimated the number of such units currently in 
operation. Based on the comments and our determination that we did not 
need such units to comply with our CAA section 112(c)(6) obligation, we 
did not finalize standards for soil treatment units. We included a 
definition for soil treatment unit in the final rule to distinguish 
such units from the units for which we established standards. We have 
not received additional data since issuing the final standards that 
would allow us to adequately characterize the soil treatment unit 
subcategory and we are not proposing standards for such units in this 
reconsideration notice. We solicit comment concerning our decisions in 
regard to soil treatment units and our definition as set forth in the 
final rule.
    The EPA received many comments concerning laboratory analysis units 
during the comment period on the proposed rule. The EPA concluded based 
on those comments that samples used in laboratory analysis units have a 
purpose separate from the disposal of material. Furthermore, we believe 
based on the information available that the material that is combusted 
in such units is likely not a solid waste as that term is defined in 
the 2011 NHSM final rule. For these reasons and because we determined 
we do not need such units to comply with our CAA 112(c)(6) obligation, 
we included in the final rule a definition of laboratory analysis unit 
that distinguishes such units from the units for which we established 
standards. We have not received any information since issuing the final 
rule on the emissions from laboratory analysis units or the nature of 
the material combusted in such units that causes us to revise the 
conclusions reached in the final rule. We solicit comment concerning 
our decisions in regard to laboratory analysis units and our definition 
as set forth in the final rule.
    The EPA did not consider space heaters in the proposed rule. The 
Agency received comments inquiring whether such units were subject to 
the proposed standards if they combusted solid waste. Because the EPA 
did not consider such units when proposing the CISWI standards and we 
did not have emissions data for space heaters, we included in the final 
rule a definition of space heaters that was intended to distinguish 
such units from the units for which the Agency finalized standards. As 
with the other units discussed in this section, the EPA does not have 
to regulate space heaters to comply with the CAA 112(c)(6) obligation. 
We have not received any emissions information on space heaters since 
issuing the final CISWI standards; therefore, we are not proposing to 
regulate such units in the reconsideration notice. We have, however, 
identified typographical errors included in the definition of space 
heater contained in the final CISWI standards and we are proposing a 
definition that corrects those typographical errors: ``Space heater 
means a usually portable appliance for heating a relatively small area. 
A space heater is not an incinerator, waste-burning kiln, an energy 
recovery unit or a small, remote incinerator under this subpart.'' We 
solicit comment our

[[Page 80461]]

decisions in regard to space heaters and our revised definition set 
forth above.
4. Providing an affirmative defense for malfunction events
    The EPA recognizes that even equipment that is properly designed 
and maintained can sometimes fail and that such failure can sometimes 
cause an exceedance of the relevant emission standard. (See, e.g., 
State Implementation Plans: Policy Regarding Excessive Emissions During 
Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on Excess 
Emissions During Startup, Shutdown, Maintenance, and Malfunctions (Feb. 
15, 1983)). The EPA therefore added to the final rule an affirmative 
defense to civil penalties for exceedances of emission limits that are 
caused by malfunctions. See 40 CFR 60.2265 and 60.2875 (defining 
``affirmative defense'' to mean, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, regarding 
which the defendant has the burden of proof, and the merits of which 
are independently and objectively evaluated in a judicial or 
administrative proceeding.). We also added other regulatory provisions 
to specify the elements that are necessary to establish this 
affirmative defense; the source must prove by a preponderance of the 
evidence that it has met all of the elements set forth in 60.2120 and 
60.2685. See 40 CFR 22.24. The criteria ensure that the affirmative 
defense is available only where the event that causes an exceedance of 
the emission limit meets the narrow definition of malfunction in 40 CFR 
60.2 (sudden, infrequent, not reasonable preventable and not caused by 
poor maintenance and/or careless operation). For example, to 
successfully assert the affirmative defense, the source must prove by a 
preponderance of the evidence that excess emissions ``[w]ere caused by 
a sudden, infrequent, and unavoidable failure of air pollution control 
and monitoring equipment, process equipment, or a process to operate in 
a normal or usual manner. * * *'' The criteria also are designed to 
ensure that steps are taken to correct the malfunction, to minimize 
emissions in accordance with section Sec.  60.11(d) and to prevent 
future malfunctions. For example, the source must prove by a 
preponderance of the evidence that ``[r]epairs were made as 
expeditiously as possible when the applicable emission limitations were 
being exceeded.* * *'' and that ``[a]ll possible steps were taken to 
minimize the impact of the excess emissions on ambient air quality, the 
environment and human health * * *'' In any judicial or administrative 
proceeding, the Administrator may challenge the assertion of the 
affirmative defense and, if the respondent has not met its burden of 
proving all of the requirements in the affirmative defense, appropriate 
penalties may be assessed in accordance with section 113 of the CAA. 
See also 40 CFR 22.77.
    While we believe the final rule reflects reasonable approaches 
consistent with the requirements of the CAA, we believe reconsideration 
and additional opportunity for public review and comment should be 
obtained. We are therefore seeking comment on the inclusion of the 
affirmative defense provisions in the final rule.
5. Revisions to the CO Monitoring Requirements
    In the March 21, 2011, notice of reconsideration, the EPA initiated 
reconsideration of the requirements to continuously monitor for CO. 
Petitioners have identified computational issues for correcting CO 
concentration measurements to 7 percent oxygen for periods when the 
oxygen content of the flue gas approaches the ambient air oxygen 
content. The equation for the 7 percent oxygen 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 oxygen content gets closer to 20.9, the value of X 
is multiplied by an ever increasing factor. For example, when the stack 
gas oxygen content is 4 percent, the factor is 0.82. If the stack gas 
oxygen 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 oxygen content, but would become a 
1,540 ppm corrected concentration for a stack gas at 20 percent oxygen 
content. In the extreme, at a 20.8 percent stack gas concentration 
(i.e., approximating ambient air oxygen content), the same 100 ppm 
measurement would be corrected to 13,700 ppm.
    Petitioners have noted that oxygen contents relatively close to 
ambient air are often 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 are artificially inflated due to the 7 
percent oxygen correction. Petitioners and commenters argue and 
presented data that show these artificially inflated data points drive 
the 30-day rolling average values for the unit beyond the emission 
limit.
    Petitioners have suggested various approaches to remedy this 
situation, with one being to simply waive the 7 percent oxygen 
correction requirement during unit startup and shutdowns. In other 
words, the CEMS data as reported at stack gas concentration would be 
included in the rolling average calculations for periods when the 
combustion unit is either being started up or shutdown. During all 
other operating periods, the CEMS data are corrected to a 7 percent 
oxygen concentration prior to calculating the rolling average.
    We received data for one unit in one subcategory (coal ERUs) that 
indicates startups usually occur over a 4 hour period, and shutdowns 
occur over a 1 hour period. Therefore, we are proposing provisions for 
calculating the 30-day CO rolling average that allow the uncorrected 
CEMS reading 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. Sources must indicate in the CEMS data records which CEMS 
data are obtained during the 4 hour startup and 1 hour shutdown period.
    Additionally, in order to be consistent with similar requirements 
for non-waste fuel-fired boilers and process heaters, we are proposing 
to remove continuous CO monitoring requirements for new and existing 
ERU units, instead making CO monitoring with CEMS a compliance 
alternative and, for larger units, requiring annual CO stack tests and 
continuous oxygen monitoring instead. We have also removed the 
continuous CO monitoring requirements for new CISWI units in the other 
subcategories, but allow them to demonstrate compliance using CO CEMS 
if they so choose. The 7 percent oxygen correction waiver during 
startup and shutdowns discussed above would apply to any CISWI sources 
that elect to demonstrate compliance with the CO limits with a CO CEMS 
instead of performing stack tests. We are requesting comment on these 
proposed revisions to the final rule CO monitoring requirements.
6. Establishing a Full-load Stack Test Requirement for CO Coupled with 
Continuous Oxygen Monitoring
    In the March 21, 2011, notice of reconsideration, the EPA initiated 
reconsideration on the requirement of coupling a full-load stack test 
for CO coupled with continuous oxygen monitoring to demonstrate 
continuous compliance with the CO emission limits. While this 
requirement pertains

[[Page 80462]]

primarily to requirements contained within the major source boiler 
NESHAP, there are similar requirements in the final CISWI rule for 
existing units. Specifically, existing ERUs with a design heat input 
capacity over 100 MMBtu/hr must demonstrate continuous compliance with 
the CO emission limits with an annual CO stack test and monitoring the 
oxygen content of the flue gas using a continuous oxygen monitoring 
system.
    As discussed earlier, we have removed the CO CEMS requirements for 
existing units, instead allowing the option for sources to use CO CEMS 
to demonstrate compliance with the standards. We are also requesting 
comment on whether allowing the option to use CO CEMS instead of oxygen 
monitoring is of potential use to affected sources and implementing 
agencies, and also whether the oxygen monitoring requirements coupled 
with an annual CO stack provides an appropriate parameter to ensure 
optimized combustion short of direct CO measurements.
    Petitioners have also commented that the final rule continuous 
oxygen monitoring requirements would preclude the use of existing 
oxygen monitoring systems that may already be installed on these units 
to help manage combustor operation. Petitioners have claimed that, by 
requiring the system meet Performance Specification 3 requirements, it 
is unlikely that existing oxygen monitors are located in a position 
that would enable their use for compliance demonstration. As a result, 
sources would need to install and operate an additional oxygen 
monitoring system. Petitioners contend that this additional system 
would be an added expense and would be located too far downstream of 
the combustion chamber to provide accurate data regarding combustion 
characteristics so would be of no use to combustor operation.
    We are therefore proposing revisions to the continuous oxygen 
monitoring provisions in today's action that would afford the ability 
for existing sources to use their current oxygen analyzer and oxygen 
trim systems to demonstrate continuous compliance. We are requesting 
comment on the practicality of the proposed provisions, and whether 
alternative monitoring approaches are available that would ensure that 
the oxygen monitoring system is sited and operated to give accurate 
readings while minimizing the need for potentially duplicative 
monitoring systems.
7. Establishing a Definition of ``Homogeneous Waste''
    The EPA included in the final CISWI rule a definition of homogenous 
waste and a process for evaluating claims that a particular waste 
stream is homogenous.
    Homogeneous wastes are stable, consistent in formulation, have 
known fuel properties, have a defined origin, have predictable chemical 
and physical attributes, and result in consistent combustion 
characteristics and have a consistent emissions profile. Qualifying 
small power production and cogeneration facilities requesting an 
exemption from CISWI on the basis that they burn homogeneous waste may 
be asked to demonstrate, using defined test methods acceptable to the 
EPA, that the physical and chemical characteristics of the waste are 
consistent throughout such that the emission profile of any sample of 
waste combusted is similar or identical to any other sample. Mixtures 
of different types of wastes are generally not homogeneous, unless the 
mixtures are from materials that are each individually determined to be 
homogeneous, are from known origin, are mixed in constant proportion, 
and are conditioned or processed, such as could occur in the 
gasification of the wastes. MSW can never be homogeneous because it 
does not have a defined origin. Likewise, refuse derived fuel cannot be 
homogeneous because it is derived from MSW. Refuse derived fuel is also 
specifically excluded from the qualifying small power production and 
cogeneration facilities exemption at CAA section 129(g)(1).
    In the final 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 fuel 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 final rule also 
indicated that the determination of what constitutes a homogeneous 
waste is not delegable to the state or local agencies.
    We are proposing the definition of homogeneous waste and the 
provisions for making homogenous waste determinations to provide the 
public an opportunity to comment on the provision.
8. Incorporating Fuel Variability Into Emission Limit Calculations
    The proposed and final CISWI rule emission limits were calculated 
based primarily on emissions test data. Commenters urged the EPA to 
incorporate fuel variability into the emission limit calculations as 
was done in the boiler NESHAP. Petitioners have since claimed that the 
EPA did not adequately address comments regarding this issue. In 
today's proposal, we are providing further clarification on our 
response to this issue.
    In the preamble to the final CISWI rule, we explained the 
methodology used to establish the final emission limits, which relied 
almost exclusively on direct measurements. Commercial and Industrial 
Solid Waste Incineration units by definition are burning wastes, 
usually in combination with various non-waste fuels, and often with a 
variety of different waste streams. As a result, fuel variability data 
would only account for a variability found in a fraction of the 
materials being input into the unit. We have, in fact, considered total 
material feed variability in establishing limits for Hg for waste-
burning kilns (76 FR 15727). To enable this analysis, we had to rely on 
data available from sources that provided materials analysis for all 
materials being fed into Portland cement kilns over a 30-day span. We 
did not, and do not still, have such data available for other 
pollutants and other types of CISWI units. Therefore, we are not 
proposing the use of fuel variability in our emission limit 
methodology, except as noted above. We are requesting comments and 
supporting data that would allow us to consider an approach similar to 
the waste-burning kiln Hg limits for other pollutants and 
subcategories.
9. Review of D/F Data and Non-Detect Methodology Using Three Times the 
Detection Level
    Several petitioners have argued that the D/F emission limits are 
based primarily on emissions data that are below detection levels and 
have suggested that these data not be included in emissions 
calculations, or at a minimum, establish a minimum emission limit value 
that is quantifiable by most laboratories available to analyze this 
data. We proposed and, in the final rule, used a methodology that sets 
the emission limit at a level that is at least three times the 
detection limit of the emission tests of the best performing units used 
in the MACT floor emission limit calculations. We have, however, 
reviewed the D/F data in more detail to

[[Page 80463]]

ensure that all data are correctly identified as either non-detection 
or detection level limited, where some of the fractions may be non-
detection, but not all of them. While our findings found the most data 
were accurately identified, there were a few average values that were 
reclassified as ``detection level limited.'' However, these 
corresponding run data were correctly identified and were included in 
the three times the detection limit methodology. Therefore, no D/F 
emission limits were impacted due to this review.
    In addition, 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 have 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 is less than 
the recommended 3xRDL, the 3xRDL value is selected as the limit. This 
premise for this approach is the same as described in the final 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 
CISWI rule. Therefore, we are not accepting comment on the emission 
limit calculation methodology.
    One petitioner has suggested that D/F emission limits should not be 
less than 0.3 ng/dscm. We are requesting comment and data on whether 
0.3 ng/dscm or the recommended 3xRDL values for each test method are 
sufficient to reflect quantifiable concentration levels, or whether 
other values should be selected as a lower quantification boundary for 
emission limits for CISWI sources.
10. Providing an Option for Sources To Use Emissions Averaging To 
Demonstrate Compliance
    Several petitioners contend that the EPA did not adequately address 
comments on the issue of allowing sources with multiple CISWI units at 
a facility to use emissions averaging to demonstrate compliance, 
similar to the provisions provided in the major source boiler NESHAP. 
The boiler MACT allows emissions averaging across subcategories within 
an affected facility. The applicability of CISWI is such that each unit 
is an affected facility, if it otherwise meets the applicability of the 
rule. We cannot allow emissions averaging across affected facilities 
because we establish MACT on an affected facility basis and it would be 
impossible to justify MACT when averaged across affected facilities.
11. Definitions
a. Establishing a Definition of Foundry Sand Thermal Reclamation Unit
    Following publication of the final rule and the NHSM rule, we were 
made aware of a certain class of unit that had not previously been 
considered a CISWI unit, but could potentially be considered a type of 
CISWI once the NHSM rule came into effect. These units are called TSR 
units, and are a component of a foundry's ``sand loop.'' We have 
concluded that these units are parts reclamation units as defined in 
the 2000 CISWI rule. We defined parts reclamation units as ``unit[s] 
that burn coatings off parts (e.g., tools, equipment) so that the parts 
can be reconditioned and reused.'' In the 2011 CISWI rule, parts 
reclamation units are a subcategory of burn-off ovens. Thermal 
reclamation units that recover foundry sands serve the same purpose as 
other parts reclamation units that recover metal parts. Specifically, 
foundry sand units recover parts (i.e., sand) by removing coatings 
(e.g., binders and resins) from the foundry molds. Thus, TSR units are 
part reclamation units that remove coatings that are on foundry sand, 
which allows re-use of the sand. As with other burn-off ovens, TSR 
parts reclamation units conserve natural resources (i.e., virgin sand) 
and minimize the use of landfill capacity for foundry sand.
    As with other burn-off ovens, we do not currently have emissions 
data for TSR units and regulation of such units is not required to 
comply with the Agency's CAA 112(c)(6) obligation. For these reasons, 
we are not proposing standards for TSR units are this time.
    We are soliciting comment on the proposed definition of TSR units.
b. Removing the Definition of Contained Gaseous Material
    The EPA did not propose to remove the definition of contained 
gaseous material in the proposed CISWI standards. In the final CISWI 
rule preamble (76 FR 15708), we removed definitions that define or 
clarify what constitutes a solid waste from the standards to minimize 
confusion in light of the definition of solid waste in the final NHSM 
rule. The definition of ``contained gaseous material'' was one of the 
definitions that was removed from the 2000 CISWI standards.
    Several petitioners asked for confirmation that the Agency had not 
changed its historical interpretation of what gases could be considered 
to be solid waste (i.e., a ``contained gas''). These petitioners also 
requested that the EPA reconsider the removal of the definition of 
``contained gaseous material'' in the CISWI rule, since the same 
definition appears in subparts EEEE and FFFF of part 60 (Sec.  60.2977 
and Sec.  60.3078) and subpart III of part 62 (Sec.  62.14840). The 
Agency did not intend to create ambiguity by removing the definition of 
``contained gaseous material'' from the CISWI rule. Accordingly, the 
proposed CISWI reconsideration rule includes the same definition of 
``contained gaseous material'' that was removed from the final CISWI 
rule. This definition is consistent with the definition in the subparts 
cited above. Moreover, our proposal to add the definition of 
``contained gaseous material'' to the proposed CISWI reconsideration 
rule is consistent with the position in other sections of this preamble 
that address the NHSM rule where we make clear that the Agency is not 
changing any of its previous positions with regard to contained gas. 
The EPA is soliciting comment on the need to retain the definition of 
contained gaseous material.
c. Revising Definition of Chemical Recovery Unit
    Following publication of the final rule and the NHSM rule, we 
received additional information about a handful of combustion units 
that had previously not been regulated as CISWI sources, but could 
potentially be considered a type of CISWI unit once the 2011 NHSM final 
rule came into effect. However, these units do not adequately fit into 
any of the four subcategories of units in the final CISWI standards. 
The units that have been identified are SARUs that may be burning 
sulfur-bearing compounds which are classified as non-hazardous waste at 
facilities that are non-RCRA part B permitted SARUs. Stakeholders have 
identified four such facilities, and have contended that response to 
comments and preamble language in both the 2011 NHSM final rule and the 
final CISWI rule are confusing and inadequately address their 
particular questions on applicability of CISWI to these units. The 
stakeholders ask specifically which subcategory should apply to these 
units,

[[Page 80464]]

noting that none of the four subcategory definitions expressly includes 
SARUs in their definitions. Furthermore, stakeholders note that the EPA 
has included a definition of chemical recovery unit in the final rule 
that more properly addresses SARUs as well as other types of chemical 
recovery unit.
    To address this issue and clarify applicability for chemical 
recovery units more generally, we are revising the definition of 
chemical recovery unit to clarify that chemical recovery units are not 
incinerators, waste-burning kilns, ERUs or small, remote incinerators 
under subparts CCCC or DDDD.
12. Allowances for Using Feed Stream Analysis or Other Supplemental 
Information To Demonstrate Compliance
    The final rule specifies emissions testing, continuous emissions 
monitoring, and control device parameter monitoring to ensure 
continuing compliance with the emission standards. Some petitioners 
have requested responses to comments on providing provisions that would 
allow use of feed stream analysis and other supplemental information 
instead of the monitoring requirements specified. As an example, 
petitioners have asked if a source could use a material analysis to 
show that only minimal amounts of a pollutant compound enter the 
combustion unit. That data, along with data on the flue gas flow rate 
information could be used by sources to calculate a maximum possible 
pollutant concentration. The petitioners further argue that the source 
could then demonstrate that the maximum potential concentration is less 
than the applicable emission limit, and the source would not have to 
perform an emissions test for that pollutant.
    We have not proposed any such provisions in today's rule, and 
believe that direct measurement of emissions is the most comprehensive 
and accurate method to ascertain compliance with the final standards. 
Furthermore, CAA section 129(c) states that the EPA ``shall * * * 
promulgate regulations requiring the owner or operator of each solid 
waste incineration unit--(1) To monitor emissions from the unit at the 
point at which such emissions are emitted into the ambient air * * * 
and at such other points as necessary to protect public health and the 
environment.'' The EPA is thus constrained by the statute in our 
ability to implement the commenter's proposed monitoring approach.
13. Providing Percent Reduction Alternative Standards
    The final rule contains numeric emission limits for all nine 
pollutants listed in CAA section 129(a)(4) (requiring numerical 
emissions limits for the 9 identified pollutants). The proposed and 
final rules describe at length the methodology used to establish these 
emission limits. However, petitioners and commenters suggested that the 
EPA should also establish alternative percent reduction standards to 
the numeric emission limits. Petitioners allege that we did not 
adequately address this comment in the preamble to our final rule or 
supporting documents. Therefore, we are providing our response to this 
issue in today's proposal.
    The CISWI database does not include percent removal data except in 
very limited instances. These data were seldom provided voluntarily, 
and were not required by the EPA during the emission test ICR. This is 
due to the increased cost of performing pre- and post-emission control 
device emissions tests to determine the removal efficiency of the 
control device. Source operators will typically not choose to perform 
extra testing at additional cost voluntarily, and the EPA went to great 
lengths to minimize burden on sources during the testing ICR. As a 
result, we do not have percent reduction data for the best performing 
CISWI sources, and cannot develop a percent reduction alternative 
standard that reflects the best sources' performance.
    Additionally, there are arguments that percent reduction standards 
are not legally permissible (See 74 FR 21149). As discussed in the 
Portland cement NESHAP proposal preamble, the Brick MACT opinion states 
``that best performers are those emitting the least HAP.'' It further 
discusses how a percent reduction standard downplays the role of 
pollutant inputs on emissions, thereby allowing more pollutants to be 
emitted provided a given level of removal efficiency.
    Finally, we do not specify the control devices necessary to meet 
the numeric limits as in some other rules. Sources may evaluate their 
source emissions and determine the appropriate control strategy or 
devices needed to comply with the emission limits. Percent reduction 
standards are more appropriately applied when there is a specified 
control device that potential emission streams must be routed through, 
such as a flare. In these cases, a percent reduction alternative 
provides a design and performance metric for the required type of 
control device. This is not the case with CISWI since the rule does not 
specify a control device for all sources.
    Due to the reasons discussed above, we have not proposed any 
percent reduction alternative standards.
14. Providing Parametric Monitoring Provisions for Additional Control 
Device Types
    The final rules added monitoring parameters for sources that use 
wet scrubbers, ESPs, activated carbon sorbent injection, or SCR. 
However, one petitioner has claimed that we did not adequately address 
comments on this issue in the final rule preamble or supporting 
documents. Therefore, we are responding that we have included such 
provisions that commenters requested. The control devices with 
monitoring provisions expressly identified in the rules should 
encompass most types of control devices that we would anticipate the 
various types of CISWI units to use to meet the emission limits. In the 
case that there is another type of control that is not addressed, we 
have provided provisions for sources to petition for specific operating 
limits for the control device 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 material balance operating limits to demonstrate continuous 
compliance. However, we recognize that dry sorbent injection for acid 
gas control may be one additional type of control that affected sources 
may use, and are requesting comment on whether we should specify 
monitoring provisions for this type of control and recommendations on 
which parameters should be specified. Lastly, we also request comment 
on whether there are any additional types of control devices that we 
should identify monitoring parameters for in the rule.
15. Revisions to the Continuous Monitoring Provisions for Large ERUs
    In today's rule, we are proposing some revisions to the monitoring 
requirements for ERUs with a design heat input capacity greater than 
250 MMBtu/hr. In the final rules, these units were required to monitor 
continuously for PM using a PM CEMS; however, recent EPA experience 
with the utility boiler source category has led the EPA to allow PM 
CEMS as an alternative, rather than a requirement. The PM CEMS 
technology may not be sufficient to certify accurate monitor 
performance in the PM concentration range of the CISWI ERU limits. 
Therefore, we are requiring continuous parameter

[[Page 80465]]

monitoring systems for these units similar to those being required for 
major industrial boilers and utility boilers. Likewise, to be 
consistent with these other rules, we have revised all operating 
parameter averaging for ERU units to be on a 30-day rolling average. 
Due to the relatively long operational campaigns of ERUs, the longer 
averaging time will allow operators sufficient flexibility for 
operational and control device adjustments should they be needed for 
short term fuel or waste characteristics variability. The EPA has 
determined the 30-day rolling average reporting basis is appropriate 
for this rule. The operating limits established through performance 
testing in this rule represent short term process and control operating 
conditions representative of compliance. Concerns of variability 
outside the operators control such as fuel content, seasonal factors, 
load cycling, and infrequent hours of needed operation prompted us to 
look at longer averaging periods on which to base operating compliance 
determination. We are aware from studies of emissions over long 
averaging periods (See memorandums ``Changing Averaging Time as an 
Incentive'' and ``Assessment of Using Single Point Stack Test Data to 
Derive 30-Day Rolling Average Emissions Limits'' in the CISWI docket) 
that long term (e.g., 30-day) average emissions for a operating in 
compliance will have a variability of about half of that represented by 
the results of short term testing. Given that short term tests are 
representative of distinct points along a continuum of that inherent 
operational variability, we believe it appropriate to provide a means 
for the source operator to account for that variability by applying a 
long term average for establishing compliance. We expect more 
problematic control system variability (e.g., ESP transformer failure 
or scrubber Venturi fan failure) to result in deviations from a 30-day 
average relative to compliance almost as much as for a shorter term 
average.
16. Extending Compliance Dates
    On May 18, 2011, the EPA issued a stay of the effective date of the 
final rule. The EPA plans to reset the compliance dates of the rule 
when the final reconsideration is published. The EPA is proposing to 
set the compliance date for existing sources in the incinerator, ERU, 
and waste-burning kiln subcategories 5 years after the date of 
publication of the final reconsideration rule or 3 years after the 
state plan is approved, whichever happens earlier. This date is being 
proposed in order to provide facilities sufficient time to install 
controls or to make other compliance-related decisions. For new sources 
in the incinerator, ERU, and waste-burning kiln subcategories, the EPA 
is proposing to change the compliance date to 6 months after the date 
of publication of the final reconsideration rule. Since there were no 
major changes to the emission standards from final rule for the small 
remote incinerator subcategory, the EPA is soliciting comment on the 
need to extend the compliance date for this subcategory. Particularly, 
the EPA is requesting additional data that supports the need to revise 
the emission standards for the small remote incinerator subcategory.
    The EPA determined that it is appropriate to extend the compliance 
dates for the incinerator, ERU, and waste-burning kiln subcategories 
for several reasons. First, proposed changes to the emission limits for 
these subcategories will have a significant impact on the compliance 
strategies that are selected by the affected sources. For instance, the 
proposed changes in emission limits for existing ERU, and waste-burning 
kiln subcategories may require different control strategies selections 
than the emission limits finalized in March 2011. Second, when the EPA 
announced the reconsideration and issued the stay of the effective 
date, a signal was sent to industry and to the states responsible for 
implementing the EG that requirements may change significantly. The 
resulting uncertainty has limited the ability of affected sources to 
begin making appropriate selections of control technologies and other 
compliance decisions. Even if significant changes were not being 
proposed, an extended compliance date would likely be necessary to 
provide enough time for facilities to achieve compliance. Additionally, 
not extending the compliance date may be problematic for states and 
implementing agencies since the increments of progress for rule 
compliance are keyed off of the approval date of the revised state 
plan. Without a final rule in place, states and implementing agencies 
will be unable to adequately update and implement a state plan. For all 
of the reasons discussed above, the EPA has determined that it is 
necessary to extend the compliance date for existing sources in the ERU 
and waste-burning kiln subcategories based on the date that the 
reconsideration of the final rule is completed. Finally, the EPA has 
received comments that the availability of control equipment and 
vendors to install control equipment for CISWI units is in question due 
to the large number of units requiring controls in conjunction with the 
parallel rulemaking for industrial boilers and electric generating 
units that will require controls from many of the same vendors. While 
the EPA believes that the maximum time allotted under section 129 
provides enough time for CISWI units to achieve compliance, the EPA 
recognizes that maintaining the compliance dates from the final rule 
would essentially provide less than 2 years for states to implement a 
revised state plan and for increments of progress to be scheduled. 
Because the stringency of the final standards will not be determined 
until the reconsideration is final, sources will not be able to begin 
planning a compliance strategy and states will be uncertain on an 
appropriate schedule for increments of progress, which includes 
submittal of a final control plan. The EPA is requesting comment on the 
proposed changes to the compliance dates.

D. Technical Corrections and Clarifications

    In today's rule, we are also proposing some changes to the final 
rule to correct minor typographical errors and clarify portions. This 
section of the preamble summarizes these corrections and 
clarifications.
1. Providing a Definition of Municipal Solid Waste
    We are including the definition of ``municipal solid waste'' in the 
CISWI rule definitions. This definition is the same definition used in 
the CAA section 129 standards for MWC units. We believe that including 
this definition will further clarify applicability for MWC owners who 
question whether CISWI or MWC rules are applicable to their solid waste 
combustion unit.
2. Energy Recovery Units Designed to Burn Non-Coal Solid Materials
    We are amending the definition of ``Energy recovery unit designed 
to burn biomass (Biomass)'' to clarify that this definition applies to 
all ERUs designed to burn non-coal solid materials. While we believe 
biomass to be the majority of such materials, we wanted to more broadly 
define this source category to clarify applicability for ERUs that are 
burning less than 10 percent coal on a heat input basis. We are also 
amending recordkeeping requirements for ERU units to require records of 
fuel inputs to ensure that the units are meeting the applicability for 
coal or non-coal ERUs.
3. Typographical Errors and Corrections
    The following items are typographical errors in the final rule that 
we are correcting in today's proposal:

[[Page 80466]]

     Final rule Sec.  60.2165, a new paragraph break is needed 
for (n)(4);
     Final rule Sec.  60.2265, a new paragraph break is needed 
for the definition of ``Solid waste incineration unit;''
     Amendatory instruction 50, paragraph (b) was not 
added but was amended; and
     Footnote ``a'' for Table 9 to Subpart DDDD does not have 
the sentence allowing facilities to meet either the Total or TEQ for 
the D/F standard. It is included in all other tables (for new and 
existing sources).

E. Environmental, Energy and Economic Impacts

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 proposed 
rule using the definition of solid waste under RCRA and the proposed 
CISWI emission limits are presented in Table 4 of this preamble.

    Table 4--Emissions Reductions for MACT Compliance and Alternative
      Disposal Options for Existing CISWI Using the Emission Limits
------------------------------------------------------------------------
                                                             Reductions
                                                              achieved
                                                              assuming
                                                Reductions  incinerators
                                                 achieved    and small,
                  Pollutant                      through       remote
                                                 meeting    incinerators
                                                MACT (ton/       use
                                                   yr)       alternative
                                                              disposal
                                                            (ton/yr) \a\
------------------------------------------------------------------------
HCl..........................................        578.0         590.1
CO...........................................       22,104        22,069
Pb...........................................         3.09          3.09
Cd...........................................        1.620         1.622
Hg...........................................        0.143         0.147
PM (filterable)..............................        1,439         1,442
Dioxin, furans...............................     0.000101      0.000104
NOX..........................................        5,299         5,405
SO2..........................................        4,983         5,033
                                              --------------------------
    Total....................................       34,406        34,544
------------------------------------------------------------------------
\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 28 
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 proposal, 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 proposed emission limits. Table 5 of this 
preamble presents the model plant emissions reductions that would be 
expected for new sources.

          Table 5--Emissions Reductions on a Model Plant Basis
------------------------------------------------------------------------
                                                 Emission reduction for
                                                 CISWI subcategory model
                                                    units (tpy unless
                                                    otherwise noted)
                   Pollutant                   -------------------------
                                                                Small,
                                                Incinerator     remote
                                                             incinerator
------------------------------------------------------------------------
HCl...........................................         3.67          0.0
CO............................................         1.23         0.25
Pb............................................         0.83       0.0037
Cd............................................        0.022       0.0007
Hg............................................        0.004     0.000012
PM (filterable)...............................          148          0.5
D/F (total mass) \a\..........................       0.0018          0.0
NOX...........................................         16.3         0.15
SO2...........................................          7.6         0.15
                                               -------------------------
    Total.....................................          178         1.05
------------------------------------------------------------------------
\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

[[Page 80467]]

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 compliance date for the CISWI standards, find a way to 
obtain their tires through an approved 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 90 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 22,549 tpy from PM capture and 9,820 
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 110,417 tpy of waste 
would be diverted to a landfill.
    For new CISWI units, we estimate an annual requirement of 9,102 
million 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 
7,275 tpy from PM capture and 8,173 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 242,283 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 511 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 110,417 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 96,300 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 proposed 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 $859 million with an associated total annual cost 
of $270 million ($2008).
    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 0.02 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 five of the nine 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. We 
have not quantified the rule's indirect or induced impacts. For further 
explanation and discussion of our analysis, see Chapter 4 of the RIA.
    For new CISWI units, we have estimated compliance costs for units

[[Page 80468]]

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 
one new small, remote incinerator will come online each year over the 
next 5 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 $8.4 million over 5 years with an associated total annual 
cost (for 2015) of $2.6 million.
6. What are the benefits?
    We estimate the monetized benefits of this regulatory action to be 
$330 million to $800 million (2008$), 3 percent discount rate) in the 
implementation year (2015). The monetized benefits of the regulatory 
action at a 7 percent discount rate are $300 million to $720 million 
(2008$). These estimates reflect energy disbenefits valued at $3.8 
million. 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.\1\ A summary of the monetized benefits 
estimates at discount rates of 3 percent and 7 percent is in Table 6 of 
this preamble.
---------------------------------------------------------------------------

    \1\ 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.

             Table 6--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        (3% Discount Rate)          (7% Discount Rate)
                                               (tpy)
----------------------------------------------------------------------------------------------------------------
PM2.5...................................             670  $150 to $370..............  $140 to $340.
----------------------------------------------------------------------------------------------------------------
                                                PM2.5 Precursors
----------------------------------------------------------------------------------------------------------------
SO2.....................................           5,033  $150 to $360..............  $130 to $330.
NOX.....................................           5,405  $26 to $64................  $24 to $58.
    Total...............................  ..............  $330 to $800..............  $300 to $720.
----------------------------------------------------------------------------------------------------------------
\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 estimates do not include the energy disbenefits
  valued at $3.8 million, but the rounded totals do not change. CO2-related disbenefits were calculated using
  the social cost of carbon, which is discussed further in the RIA.
\b\ The estimates in this table reflect the estimates in the RIA. Due to last minute changes to the March 2011
  final CISWI rule, we were unable to incorporate the final engineering costs and emission reductions into the
  RIA, which would decrease the costs by approximately 22 percent and increase the monetized benefits by
  approximately 4 percent from those shown here.

    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. 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).\2\
---------------------------------------------------------------------------

    \2\ 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 there is no clear scientific evidence that would 
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 because 
each ton of precursor reduced has a different propensity to form 
PM2.5. For example, SO2 has a lower benefit-per-
ton estimate than direct PM2.5 because it does not directly 
transform into PM2.5, and because sulfate particles formed 
from SO2 emissions can transport many miles, including over 
areas with low populations. Direct PM2.5 emissions convert 
directly into ambient PM2.5, thus, to the extent that 
emissions occur in population areas, exposures to direct 
PM2.5 will tend to be higher, and monetized health benefits 
will be higher than for SO2 emissions.
    For context, it is important to note that the magnitude of the PM 
benefits is largely driven by the concentration response function for 
premature mortality. Experts have advised the EPA 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 \3\ and the extended Six Cities cohort study.\4\ In the RIA for 
this rule, which is available in the docket, we also include benefits 
estimates derived from expert judgments and other assumptions.
---------------------------------------------------------------------------

    \3\ 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.
    \4\ 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

[[Page 80469]]

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 [mu]g/m\3\. Using the Laden, et al., (2006) 
study, 40 percent of the population is exposed above the LML of 10 
[mu]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.
    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 \5\ 
provides an indication of the sensitivity of our results to various 
assumptions.
---------------------------------------------------------------------------

    \5\ 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 25,000 tons of CO, 470 
tons of HCl, 4.1 tons of Pb, 0.95 tons of Cd, 260 pounds of Hg and 92 
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.
    In addition, the monetized benefits estimates provided in Table 12 
of this preamble do not reflect the disbenefits associated with 
increased electricity and fuel consumption to operate the control 
devices. We estimate that the increases in emissions of CO2 
would have disbenefits valued at $3.8M at a 3 percent discount rate. 
Carbon Dioxide-related disbenefits were calculated using the social 
cost of carbon, which is discussed further in the RIA. However, these 
disbenefits do not change the rounded total monetized benefits. In the 
RIA, we also provide the monetized CO2 disbenefits using 
discount rates of 5 percent (average), 2.5 percent (average), and 3 
percent (95th percentile).

II. NHSM Proposed Revisions

A. Statutory Authority

    The EPA is proposing amendments to the NHSM 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 
directs the EPA to establish standards for CISWI, which burn solid 
waste. Section 129(g)(6) provides that the term ``solid waste'' is to 
be established by the EPA under RCRA (42 U.S.C. 7429). 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. What is the intent of this proposal?

    Today's proposal would clarify several provisions in 40 CFR part 
241, which provides the standards and procedures for identifying 
whether NHSM are solid waste when used as fuels or ingredients in 
combustion units. The part 241 regulations were promulgated on March 
21, 2011, in the ``Identification of Non-Hazardous Secondary Materials 
That Are Solid Waste'' final rule (the 2011 NHSM final rule).\6\ On the 
same day, the EPA promulgated final emissions standards for both area 
and major source boilers and process heaters under section 112 of the 
CAA and for CISWI under section 129 of the CAA, as well as for new and 
existing sewage sludge incinerators.\7\ These rules are interrelated 
because facilities that burn solid waste, as that term is defined under 
section 129(g)(6) of the CAA, are regulated as CISWI units pursuant to 
section 129 and facilities that do not burn solid waste are regulated 
as boilers and process heaters, under section 112.
---------------------------------------------------------------------------

    \6\ 76 FR 15456.
    \7\ See National Emissions Standards for Area Source Industrial, 
Commercial, and Institutional Boilers (76 FR 15554), National 
Emission Standards for Hazardous Air Pollutants for Major Sources: 
Industrial, Commercial, and Institutional Boilers and Process 
Heaters (76 FR 15608), Standards of Performance for New Stationary 
Sources and Emission Guidelines for Existing Sources: Commercial and 
Industrial Solid Waste Incineration Units (76 FR 15704), and 
Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Sewage Sludge Incineration Units 
(76 FR 15372). We also note that on the same day, EPA announced it 
was initiating a reconsideration process with respect to certain 
aspects of the CAA section 112 and 129 rules so as to take 
additional comment and provide opportunity for submission of 
information relevant to those standards. 76 FR 15266.
---------------------------------------------------------------------------

    Since promulgation of the 2011 NHSM final rule, the regulated 
community has raised a number of issues and concerns regarding the part 
241 requirements, including the implementation of those requirements. 
For example, the regulated community raised concerns and questions as 
to certainty about whether particular materials are solid wastes and 
how they could demonstrate compliance with the legitimacy criteria--
with most focusing on the contaminant legitimacy criterion for NHSM 
used as fuels (codified in Sec.  241.3(d)(1)(iii)). Further, the 
regulated community asserts that under the current NHSM rule, waste 
streams that the Agency itself found to be non-waste fuels when 
combusted may not meet the legitimacy criteria as established (e.g., 
resinated wood). It was also brought to the Agency's attention that the 
provision identifying tires recovered from an established tire 
collection program as a non-waste fuel when combusted is limited to 
tires ``from the point of removal from the vehicle through arrival at 
the combustion facility.'' The regulated community asserts that this 
language precludes burning as a non-waste fuel off-specification tires 
(including factory scrap tires) that have never been placed on an 
automobile, even though they are not discarded.
    The Agency has re-examined the 2011 NHSM final rule and is 
proposing amendments and clarifications on certain issues 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 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.

[[Page 80470]]

C. What is the scope of this proposal?

    The regulatory changes being proposed today are summarized below. 
The intent of this summary is to give a brief overview of the proposed 
changes. More detailed discussions, including the Agency's rationale 
for these proposed changes, are discussed in section II.D of today's 
action. In addition, to aid commenters in their review, the EPA has 
also included in the docket for today's proposal an informational 
redline/strikeout version of the proposed revised regulations as 
compared to the current CFR.
    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.
1. Revised Definitions
    In today's action, the EPA is proposing to revise certain 
definitions codified in Sec.  241.2. Specifically, the EPA is proposing 
to revise, for the purposes of clarifying the regulations, the 
following definitions: (1) ``clean cellulosic biomass,'' (2) 
``contaminants,'' and (3) ``established tire collection programs.''
a. Clean Cellulosic Biomass
    The EPA is proposing to revise the definition of ``clean cellulosic 
biomass'' to list additional examples of biomass materials that are 
appropriately included within this definition. The 2011 NHSM final rule 
defined ``clean cellulosic biomass'' as meaning ``those residuals that 
are akin to traditional cellulosic biomass, such as forest-derived 
biomass (e.g., green wood, forest thinnings, clean and unadulterated 
bark, sawdust, trim, and tree harvesting residuals from logging and 
sawmill materials), corn stover and other biomass crops used 
specifically for energy production (e.g., energy cane, other fast 
growing grasses), bagasse and other crop residues (e.g., peanut 
shells), 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 normally associated with virgin biomass materials'' 
(codified in 40 CFR 241.2).
    In today's proposal, the EPA is adding more examples of biomass 
materials that should be included within this definition. 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 
not exhaustive, it is more comprehensive than the list that appeared in 
the definition included in the 2011 NHSM final rule.
    Thus, the EPA is proposing to revise the definition of ``clean 
cellulosic biomass'' as follows: ``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 normally associated with virgin biomass materials.''
    In accordance with the above traditional fuels definition, clean 
construction and demolition 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 construction and demolition wood that may contain 
contaminated material (76 FR 15485). Additionally, construction and 
demolition wood that has been processed (e.g., sorted) to remove 
contaminants (such as lead-painted wood, treated wood containing 
contaminants such as arsenic and chromium, metals and other non-wood 
materials), and is size-reduced prior to burning likely meets the 
processing and legitimacy criteria for contaminants, and thus can be 
combusted as a non-waste fuel. Such construction and demolition wood 
may contain de minimis amounts of contaminants and other materials 
provided it meets the legitimacy criteria for contaminant levels (76 FR 
154586).
    See section II.D.1 for more information regarding the revised 
definition of ``clean cellulosic biomass.''
b. Contaminants
    The 2011 NHSM final rule defined ``contaminants'' as meaning ``any 
constituent in non-hazardous secondary materials that will result in 
emissions of the air pollutants identified in Clean Air Act section 
112(b) or the nine pollutants listed under Clean Air Act section 
129(a)(4) when such non-hazardous secondary materials are burned as a 
fuel or used as an ingredient, including those constituents that could 
generate products of incomplete combustion'' (codified in 40 CFR 
241.2).
    The EPA is proposing to revise the definition of ``contaminants'' 
to clarify what will be considered contaminants for the purposes of the 
legitimacy criteria. Specifically, several pollutants listed in CAA 
sections 112(b) and 129(a)(4) form during combustion, so elemental 
precursors to those pollutants that are found in the NHSM prior to 
combustion are being added to the revised contaminant definition in 
place of the pollutants themselves. In addition, those pollutants from 
CAA section 112(b) and 129(a)(4) lists that we do not expect to find in 
any NHSM are also specifically excluded from the definition of 
contaminants (see discussion in section II.D.1.b). We do not expect 
this change to affect any of the decisions previously made on whether 
NHSMs are solid wastes when burned as fuels.
    We are also proposing to revise this definition to clarify that, 
for the purpose of meeting the contaminant legitimacy criterion, 
contaminant levels found in the NHSM prior to being fed into combustion 
units, should be evaluated rather than emissions from those units. 
Specifically, there appears to be confusion within the regulated 
community that in determining whether or not a NHSM meets the 
``contaminant legitimacy criterion,'' emissions from the combustion 
unit are to be considered in making such an evaluation. Both in today's 
proposal and in the 2011 NHSM final rule preamble and regulatory text, 
it was clear that the NHSM itself was to be evaluated and not the 
emissions from the combustion unit. This approach is more appropriate, 
since the question is whether or not a NHSM is being burned for 
discard, and elevated contaminant levels in the

[[Page 80471]]

NHSM could be indicative of burning for discard. Thus, the EPA is 
clearing up any inadvertent ambiguity in the regulation itself. The 
rationale for this approach can be found in the rulemaking record for 
the final rule.\8\ EPA is not proposing any revisions to that approach, 
but is simply clarifying the regulatory text to better reflect the 
Agency's intention.
---------------------------------------------------------------------------

    \8\ For example, see 76 FR 15524-5.
---------------------------------------------------------------------------

    Thus, the Agency is proposing to revise the definition of 
``contaminants'' as follows: ``Contaminants means all pollutants listed 
in Clean Air Act sections 112(b) and 129(a)(4), with modifications 
outlined in this definition to reflect constituents found in non-
hazardous secondary materials prior to combustion. The definition 
includes the following elemental contaminants that commonly form Clean 
Air Act section 112(b) and 129(a)(4) pollutants: Antimony, arsenic, 
beryllium, cadmium, chlorine, chromium, cobalt, fluorine, lead, 
manganese, mercury, nickel, nitrogen, selenium, and sulfur. The 
definition does not include the following Clean Air Act section 112(b) 
and 129(a)(4) pollutants that are either unlikely to be found in non-
hazardous secondary materials prior to combustion 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, diazomethane, white 
phosphorus, titanium tetrachloride, m-cresol, o-cresol, p-cresol, m-
xylene, o-xylene, and p-xylene.'' For more information and the 
rationale regarding the proposed revision to the definition of 
``contaminants,'' see section II.D.1 of today's proposed rule.
c. Established Tire Collection Programs
    The EPA is proposing to revise the definition of ``established tire 
collection programs'' to clarify that off-specification tires 
(including factory scrap tires) are not discarded when combusted, in 
the same way as tires that are removed from vehicles.
    The 2011 NHSM final rule defined ``established tire collection 
program'' as meaning ``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'' (codified 
in 40 CFR 241.2). However, that definition did not account for 
``factory scrap'' or ``off-specification'' 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.
    Thus, the Agency is proposing to revise the definition of 
``established tire collection program'' to mean ``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.'' For more information regarding 
the proposed revision to the definition of ``established tire 
collection program,'' see section II.D.1 of today's proposed rule.
2. Contaminant Legitimacy Criterion for NHSM Used as Fuels
    The 2011 NHSM final rule codified three self-implementing 
legitimacy criteria that NHSM must meet in order to be considered a 
non-waste fuel when burned in a combustion unit (40 CFR 241.3(d)(1)(i)-
(iii)). One of these criteria focused on comparing levels of 
contaminants contained in the NHSM to levels of those constituents 
found in traditional fuels. Specifically, the contaminant legitimacy 
criterion for fuels was finalized as follows: ``The non-hazardous 
secondary material must contain contaminants at levels comparable in 
concentration to or lower than those in traditional fuels which the 
combustion unit is designed to burn. Such comparison is to be based on 
a direct comparison of the contaminant levels in the non-hazardous 
secondary material to the traditional fuel itself.'' 40 CFR 
241.3(d)(1)(iii). The existing language provides flexibility for 
persons to make comparisons on a contaminant-by-contaminant basis or on 
a group of contaminants-by-group of contaminants basis in determining 
what constituents to compare. The phrase ``traditional fuels which the 
combustion unit is designed to burn'' also provides the flexibility to 
choose among multiple fuel options.
    Industry groups have expressed concern that the regulatory language 
does not clearly reflect the EPA's intent.\9\ The EPA agrees that the 
regulatory language can be revised to better reflect the EPA's intent 
in implementing the contaminant legitimacy criterion. Therefore, the 
Agency is proposing to revise this criterion to read, ``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 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. 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. 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.'' We are taking comment on how this revised contaminant 
legitimacy criterion would apply to specific fuels.
---------------------------------------------------------------------------

    \9\ See, for example, June 24, 2011 letter from Tracey Norberg 
of the Rubber Manufacturers Association and Paul Noe of the American 
Forest & Paper Association to OSWER Assistant Administrator Mathy 
Stanislaus. A copy of this letter can be found in the docket for 
today's rule.
---------------------------------------------------------------------------

    For more information regarding the proposed revisions to the 
contaminant legitimacy criterion for NHSM used as fuels, see section 
II.D.2 of today's proposed rule.
3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels
    The EPA is proposing to identify several NHSMs as not being solid 
waste when burned as a fuel in a combustion unit where the Agency has 
sufficient information to determine that discard is not occurring when 
these materials are being used as fuels. Specifically, the Agency 
recognizes that certain NHSMs may not meet the legitimacy criteria, 
especially the ``contaminant legitimacy criterion,'' in all instances, 
but the material would still generally be considered a non-waste fuel. 
While we do not agree it is appropriate for the regulated community to 
make these judgments as part of the self-implementing aspects of the 
NHSM final rule, it is appropriate that the Agency do so, by balancing 
the legitimacy criteria and such other relevant factors that the 
Administrator may identify, in determining that a NHSM is not a solid 
waste when used as a fuel in a combustion unit. Thus, in today's 
proposed rule, we are identifying the following specific materials as 
non-waste fuels: (1) scrap tires that have not been discarded and are 
managed under the oversight of established tire collection programs, 
including tires removed from vehicles

[[Page 80472]]

and off-specification tires, and (2) resinated wood. Thus, persons who 
burn these NHSMs as a fuel would not need to evaluate them using the 
self-implementing legitimacy criteria when burned.
    In addition, the Agency recognizes that there may be other NHSMs 
that should also be considered non-waste fuels, based on a balancing of 
the legitimacy criteria with other relevant factors. Therefore, we are 
proposing to create a petition process that would provide the regulated 
community an opportunity to submit a rulemaking petition to the EPA for 
a determination that a particular NHSM should not be considered solid 
waste when burned as a fuel in a combustion unit. This process could be 
used when a facility does not believe that the self-implementing 
legitimacy criteria yields a clear result or does not accurately 
reflect whether the material is being discarded. A brief discussion of 
the specific NHSMs being proposed to be listed as not solid waste is 
provided below, as well as an overview of the petition process for 
identifying additional NHSMs as not being solid wastes when burned as a 
fuel in a combustion unit for energy recovery. See section II.D.3 and 4 
of today's proposed rule for a detailed discussion of these topics.
a. Scrap Tires
    In the 2011 NHSM final rule, the EPA determined that scrap tires 
removed from vehicles and managed pursuant to established tire 
collection programs would not be considered a solid waste. This 
determination was codified in Sec.  241.3(b)(2)(i). This determination 
was made after the EPA analyzed scrap tires removed from vehicles and 
managed pursuant to established tire collection programs and concluded 
that (1) these materials would meet the legitimacy criteria for fuels, 
and (2) these materials were not discarded when transferred off-site 
from the generating facility.\10\
---------------------------------------------------------------------------

    \10\ See 76 FR 15490-15499.
---------------------------------------------------------------------------

    Since promulgation of the 2011 NHSM final rule, the EPA has 
received information that tire manufacturers, including downstream 
distribution channels, may produce tires that are not suitable for use 
on vehicles, but like the tires removed from vehicles, are usable as 
legitimate fuels. They are, for all intents and purposes, the same as 
the vehicle tires managed under the oversight of established tire 
collection programs. As a result, the revised definition of 
``established tire collection program,'' would encompass off-
specification tires (including factory scrap tires) that are 
contractually arranged to be collected, managed, and transported 
between a tire manufacturer, which would include retailers and other 
parties involved in the distribution and sale of new tires and a 
combustor. We note that tires coming from vehicles that are part of an 
established tire collection program would be a non-waste fuel under the 
2011 NHSM final rule. The EPA is not reopening this determination in 
today's proposed rule.
    For clarity, the Agency is proposing to add 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, to the categorical list of non-waste fuels (see 40 
CFR 241.4(a)). For more on this determination and the off-specification 
tires from tire manufacturers or downstream distribution channels, see 
section II.D.3 of today's proposed rule.
b. Resinated Wood
    The 2011 NHSM final rule determined that resinated wood is not a 
solid waste when used as a fuel regardless of whether it remained 
within the control of the generator (see 40 CFR 241.3(b)(2)(ii)). This 
determination was made after the EPA analyzed resinated wood and 
concluded that (1) resinated wood generally would meet the legitimacy 
criteria for fuels, and (2) resinated wood was not discarded when 
transferred off-site from the generating facility.\11\ Today's action 
proposes to revise part 241 to state affirmatively that resinated wood, 
when used as a fuel, is not being burned for discard and is not a solid 
waste. We are proposing to codify this determination based on our 
belief that the use of resinated wood as fuel represents an integral 
component to the wood manufacturing process and, as such, resinated 
wood is not being discarded, and therefore not solid waste, when burned 
as fuel. For more on this proposed revision, see section II.D.3 of 
today's proposed rule.
---------------------------------------------------------------------------

    \11\ For a full discussion and rationale for why EPA reached 
this conclusion, see 76 FR 15499-15502.
---------------------------------------------------------------------------

c. Rulemaking Petition Process for Other Non-Waste Determinations
    Under today's rule, the Agency is proposing to create a rulemaking 
petition process that would provide persons an opportunity to submit a 
rulemaking petition to the Administrator, seeking a categorical 
determination for additional NHSMs to be listed in section 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 proposed in 241.4(b). For more information regarding the 
rulemaking petition process, see section II.D.4 of today's proposal. 
Parties have identified the potential of manure not being solid waste. 
Parties can present information including data demonstrating that 
manure is not discarded either through the existing non-waste petition 
process or the proposed categorical determination process.
4. Additional Request for Comment
    As discussed elsewhere in this preamble, the Agency requests 
additional information regarding pulp and paper sludge in order for the 
Agency to determine whether a categorical determination that pulp and 
paper sludge is a non-waste, when used as fuel, is appropriate. 
Information that would be particularly helpful includes: (1) 
Documentation of how the use of pulp and paper sludges that are used as 
a fuel are integrated into the industrial production process and the 
steps taken industry-wide to ensure that this NHSM is consistently used 
as a legitimate fuel and is not discarded, including when transferred 
to a different person for use as a fuel; (2) documentation on the 
amount of pulp and paper sludges burned as a fuel (whether within the 
control of the generator or outside the control of the generator), and 
what determines which pulp and paper sludges are burned as a fuel, as 
opposed to being land applied or disposed; (3) additional data 
regarding the contaminant levels of the various HAP, such as chlorine 
and metals, and what steps the industry has taken to ensure the quality 
of these sludges when used as a fuel are consistent with that of fuel 
product; (4) information on standard practices used to ensure that 
these sludges have a meaningful heating value, including the types of 
dewatering and other processing steps that these sludges are subject 
to, as well as information on whether any pulp and paper sludges that 
are burned as a fuel are done so without any processing, including 
dewatering; and (5) when shipped to a different person for use as a 
fuel, how these sludges are managed, including how they are shipped, 
any processing that may occur, and how long these sludges are typically 
stored prior to being burned as a fuel.
5. Clarification Letters Issued After Promulgation of the NHSM Final 
Rule
    After promulgation of the 2011 NHSM final rule, a number of 
questions were raised regarding certain issues,

[[Page 80473]]

including whether the EPA was changing its position regarding 
``contained gaseous materials'' and whether they are solid wastes when 
burned in combustion units. While there was no regulatory text or 
discussion in the preamble to the final NHSM rule, the Agency did 
respond to several comments that were submitted to the EPA during the 
comment period. Specifically, its response to the fourth comment in 
part 3b.I3 of the document entitled, ``Responses to Comments Document 
for the Identification of Non-Hazardous Secondary Materials that are 
Solid Waste (February 2011),'' \12\ created concerns among the 
regulated community that the Agency had changed a long-standing 
interpretation of what constitutes a ``contained gaseous material'' for 
purposes of defining the term solid waste under RCRA.
---------------------------------------------------------------------------

    \12\ See ``Responses to Comments Document for the Identification 
of Non-Hazardous Secondary Materials that are Solid Waste (February 
2011). A copy of this document can be found at http://www.epa.gov/epawaste/nonhaz/define/index.htm.
---------------------------------------------------------------------------

    In a letter sent to the American Forest and Paper Association, the 
EPA clarified that it was not changing its previous interpretations and 
that such interpretations still were the Agency's position.\13\ 
Specifically, as we state in the letter, ``EPA was responding to a 
comment requesting that we include in the NHSM final rule a definition 
of `contained gaseous material.' The Agency does not believe that 
including such a definition in the rule is necessary. However, our 
response seems to have caused confusion about whether the Agency was 
changing its prior interpretations regarding the burning of gaseous 
materials, for example in fume incinerators, and whether or not such 
burning is considered to be treatment of a solid waste by burning. The 
response does not change any previous EPA positions. We clarify here 
that the Agency's previous statements and interpretations remain 
effective. Thus, burning of gaseous material, such as in fume 
incinerators (as well as other combustion units, including air 
pollution control devices that may combust gaseous material) does not 
involve treatment or other management of a solid waste (as defined in 
RCRA section 1004(27).'' Thus, we are stating again in the preamble to 
today's proposed rule that we are not changing any of our previous 
interpretations as it relates to whether ``contained gaseous material'' 
is a solid waste.
---------------------------------------------------------------------------

    \13\ May 13, 2011 Letter to Tim Hunt, American Forest and Paper 
Association. A copy of this letter has been placed in the docket for 
today's proposed rule.
---------------------------------------------------------------------------

    In addition to this letter, the Agency has also issued a number of 
other letters in which we clarify how the 2011 NHSM final rule 
addresses certain materials or activities. For example, the EPA has 
issued clarification letters covering the following materials and 
issues: (1) July 21, 2011, letter to Pamela F. Faggert, Dominion 
Resources Services, regarding materials that are used in recirculation/
reinjection processes and CBO units; (2) August 5, 2011, letter to Sue 
Briggum, Waste Management, regarding landfill gas; (3) August 5, 2011, 
letter to Tracey Norberg, Rubber Manufacturers Association, regarding 
off-specification tires (including factory scrap tires); and (4) August 
15, 2011, letter to Jeff A. McNelly, ARIPPA, regarding coal refuse in 
legacy piles. We are not taking comment on these letters, since they 
reflect the Agency's interpretation of its existing March 21, 2011, 
NHSM rule.
6. Clarification of the Process for Submittal of Non-Waste Petitions
    The 2011 NHSM final rule established a non-waste determination 
process that provides persons with an administrative petition process 
for receiving a formal determination from the EPA Regional 
Administrator that a NHSM that is used as a fuel, and which is not 
managed within the control of the generator, can be considered a non-
waste fuel provided they are able to demonstrate that such material has 
not been discarded and is indistinguishable in all relevant aspects 
from a fuel product. (40 CFR 241.3(c)).
    As discussed in the March 21, 2011 final rule (76 FR 15471), EPA 
has not arbitrarily determined that secondary materials transferred 
between companies are wastes. Instead, EPA examined a number of 
specific recycled materials, both within the control of the generator 
and transferred to a third party for recycling and decided that 
materials are to be considered solid wastes except in certain instances 
described in 40 CFR 241.3(b). These determinations were based on the 
record available to EPA. In order to better reflect the evidentiary 
record, EPA is proposing to amend the language of 40 CFR 241.3(a) to 
state that except for materials described in 241.3(b), and newly 
proposed section 241.4, combusted non-hazardous secondary materials are 
``presumed'' to be solid wastes.
    This petition process provides an opportunity under 40 CFR 241.3(c) 
for companies to show that their materials are not wastes. The petition 
process is essential because NHSMs are recycled and managed in many 
different ways and the Agency may lack the specific details in certain 
cases to know whether or not such NHSMs are or are not waste (76 FR 
15472). We believe that the petition process provides an important 
assurance to the community on waste status and relevant standards and 
also provides an opportunity to demonstrate that the particular NHSM 
was not discarded. The Agency solicits comment on the petition process 
as it relates this approach, and on whether or not the regulatory text 
should also be changed to address this situation as it relates to the 
petition process where such NHSM has not in fact been discarded.
    In evaluating whether to grant or deny the petition, the ultimate 
question that EPA will need to answer is whether or not the NHSM has 
been discarded. If the applicant is able to demonstrate that such NHSM 
has not been discarded, including meeting the legitimacy criteria, it 
is likely that the Agency will grant the petition. Under the existing 
regulations, until EPA acts on such petition, the NHSM is considered to 
be a solid waste. However, we would note that if the NHSM has not been 
discarded, EPA's grant of the petition would apply as of the date that 
the petition was submitted to the Agency. The Agency solicits comment 
on whether or not the regulatory text should also be changed to address 
this situation where such NHSM has not in fact been discarded.
    Since promulgation of the 2011 NHSM final rule, concerns have been 
raised that the information required for a non-waste determination 
petition would be extensive and the timeframe for issuance of the 
decision lengthy. The Agency wishes to clarify that we do not intend 
that the application required or the petition process itself to be 
burdensome or time and resource intensive for the applicant.
    As noted in the March 2011 final rule, the applicant must 
demonstrate that the NHSM that is to be burned as a fuel has not been 
discarded, is a legitimate product fuel (per Sec.  241.3(d)(1)), 
considering the five criteria identified in Sec.  241.3(c)(1)(i)-(v):
    (1) Whether market participants treat the non-hazardous secondary 
material as a product rather than as a solid waste;
    (2) Whether the chemical and physical identity of the non-hazardous 
secondary material is comparable to commercial fuels; \14\
---------------------------------------------------------------------------

    \14\ As discussed elsewhere in today's proposal, EPA is 
clarifying that in making comparisons between the NHSM and the 
traditional fuel, the owner or operator can consider individual 
constituents or grouping of constituents. See section II.D.2 of this 
preamble for further discussion.

---------------------------------------------------------------------------

[[Page 80474]]

    (3) Whether the non-hazardous secondary material will be used in a 
reasonable time frame given the state of the market;
    (4) Whether the constituents in the non-hazardous secondary 
material are released to the air, water or land from the point of 
generation to the point just prior to combustion of the secondary 
material at levels comparable to what would otherwise be released from 
traditional fuels; and
    (5) Other relevant factors.\15\
---------------------------------------------------------------------------

    \15\ The Agency included this criterion to allow the applicant 
to make additional arguments that such NHSMs are a non-waste fuel. 
For example, if there is a contractual or other written agreement 
between the generator of the NHSM and the facility that combusts the 
NHSM that lays out how this material is to be handled or used as a 
fuel that may indicate how the material would meet the legitimacy 
criteria, this would be a relevant factor that EPA would consider in 
determining whether such NHSM is a non-waste fuel.
---------------------------------------------------------------------------

    Overall, applicants, in many cases can utilize existing information 
already in hand (e.g., laboratory analysis data or process knowledge) 
rather than develop additional information specifically for the non-
waste determination petition. In addition, as noted in the previous 
footnote, there may already be a contractual or other written agreement 
between the generator of the NHSM and the combustion facility that 
burns such NHSM that lays out how this material is to be handled or 
used as a fuel that may indicate how the material would meet the 
legitimacy criteria that would be a relevant factor that EPA would 
consider in determining whether such NHSM is a non-waste fuel. As noted 
elsewhere in this preamble, EPA has collected contaminant data for 
various traditional fuels, which are available for use in meeting the 
contaminant legitimacy criterion as needed, to the extent that the 
applicant wants to utilize these data.\16\ Potential applicants can 
include the generator of the NHSM, the facility that combusts the NHSM, 
an interested third party or a state agency (see FR 15530). 
Applications can also be submitted for a single combustor or a class of 
combustors, provided such combustion units are within the jurisdiction 
of the Regional Administrator. Useful information could also include a 
description of the nature of the relationship between the generator and 
the combustor, as well as a description of how the NHSM will be managed 
as it is transported off-site and after it arrives at the combustor. We 
believe this type of information should be readily available to 
potential applicants.
---------------------------------------------------------------------------

    \16\ EPA's contaminant data are provided at the Web site for the 
NHSM rule at http://www.epa.gov/epawaste/nonhaz/define/index.htm. 
However, as we have noted elsewhere, the applicant can rely on other 
data that they may have or become aware of.
---------------------------------------------------------------------------

    In addition, the EPA does not intend that the application review 
process itself be either time consuming or extensive. Rather, the 
Regional Administrator will evaluate the petition and issue a draft 
notice tentatively granting or denying the petition. Notification of 
the decision will be provided by local newspaper or radio. Public 
comment will be accepted for thirty days and a public hearing held upon 
request. A final decision will be issued after consideration of the 
comments as expeditiously as possible.
    In summary, we do not envision that the information submitted in a 
petition for a non-waste determination would be more than is required 
for making a self-determination that a NHSM is a non-waste when burned 
within the control of the generator. However, because there are nearly 
200,000 boilers and incinerators that can be used to burn such NHSMs, 
the EPA believes it is important that the Agency have the information 
necessary to ensure that the legitimacy criteria are met and that 
materials are not being discarded. The Agency requests comment on 
whether any other changes could be made to the non-waste determination 
petition process to streamline the process, while at the same time 
provide EPA with the opportunity to ensure that such NHSMs are not 
being discarded. For example, because the public has had the 
opportunity to comment on the basic criteria in determining whether the 
NHSM should be considered a non-waste fuel, we are seeking comment on 
whether the Agency should further streamline the process by not seeking 
public comment on each individual petition.

D. Rationale for the Proposed Revisions to the Part 241 Requirements

    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. Thus, the Agency is not providing additional discussion of 
the background or rationale for the NHSM rule in general. For a 
detailed discussion of the NHSM final rule, see 76 FR 15532-15545. The 
EPA is proposing the revisions and clarifications discussed below.
1. Revised Definitions
    In today's action, the EPA is proposing to revise several 
definitions codified in Sec.  241.2, including the definitions of 
``clean cellulosic biomass,'' ``contaminants,'' and ``established tire 
collection programs.''
a. Clean Cellulosic Biomass
    In today's action, we are proposing to revise the definition of 
``clean cellulosic biomass.'' In particular, following promulgation of 
the 2011 NHSM final rule, the Agency received additional information 
regarding other types of biomass not explicitly listed in the 
definition of clean cellulosic biomass codified in Sec.  241.2, which 
persons believe also are clean cellulosic biomass. However, there was 
some confusion as to whether the definition included these materials. 
For example, questions arose whether the EPA would consider orchard 
trees, vines and hulls, to be within the definition of clean cellulosic 
biomass (and, therefore, a traditional fuel) if the biomass material 
was not specifically listed within the regulatory definition. 
Consequently, we are proposing to revise the definition of ``clean 
cellulosic biomass'' in two ways: (1) to clarify that the list of 
biomass materials are examples within the definition and is not 
intended to be an exhaustive list, and (2) to provide a more 
comprehensive list of clean cellulosic biomass to guide the regulated 
community.
    Specifically, we are proposing to make the following revisions and 
additions to the definition: (1) Explicitly acknowledge that the list 
of biomass materials is not exclusive by adding the phrase, 
``including, but not limited to''; (2) revise the category ``forest-
derived biomass'' to include ``agricultural biomass''; (3) add hogged 
fuel, wood pellets, and untreated wood pallets as examples of forest-
derived biomass; (4) add the category of ``urban wood'' and provide 
examples, including tree trimmings, stumps, and related forest-derived 
biomass from urban settings (note that ``urban wood'' is limited to 
forest-derived biomass from urban settings and does not include 
construction and demolition materials. Certain construction and 
demolition materials are included as a separate type of biomass within 
the definition of ``clean cellulosic biomass''); (5) add more examples 
of types of crop residues (vines, orchard trees, hulls, seeds spent 
grains, cotton byproducts, corn and peanut production residues, rice 
milling and grain elevator operation residues); and (6) revise the 
category of ``other biomass crops used specifically for

[[Page 80475]]

energy production'' to read as ``other biomass crops used specifically 
for the production of cellulosic biofuels'' and include ``byproducts of 
ethanol natural fermentation processes'' as an example of this type of 
biomass.
    These proposed revisions and additional examples more clearly 
recognize and describe the various categories of biomass materials that 
we consider to be within the definition of ``clean cellulosic biomass'' 
and, therefore, within the definition of traditional fuels. We believe 
that these additional examples clearly meet the definition of clean 
cellulosic biomass, in that they will not contain contaminants at 
concentrations not normally associated with virgin biomass materials. 
In fact, many of the examples being added in today's proposal are 
themselves virgin materials (e.g., tree trimmings, stumps, orchard 
trees, etc.). We believe that providing these additional examples 
within the definition of clean cellulosic biomass is consistent with 
the intent of the 2011 NHSM final rule. Further, we believe that such 
revisions make it more clear that the types of biomass materials the 
Agency would consider to be within the definition of clean cellulosic 
biomass (and a traditional fuel) are not limited to those explicitly 
listed in the definition, as we believe that it would be impractical if 
not impossible to capture all types of biomass materials that can be 
used as fuels within this single definition.
    Thus, in today's proposed rule, the EPA is proposing to revise the 
definition of ``clean cellulosic biomass'' as follows: ``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 normally 
associated with virgin biomass materials.''
b. Contaminants
    In today's action, we are proposing a number of changes to the 
definition of ``contaminants'' in an effort to clarify what 
constituents are subject to the contaminant legitimacy criterion. The 
proposed definition is as follows: ``Contaminants means all pollutants 
listed in Clean Air Act sections 112(b) and 129(a)(4), with 
modifications outlined in this definition to reflect constituents found 
in non-hazardous secondary materials prior to combustion. The 
definition includes the following elemental contaminants that commonly 
form Clean Air Act section 112(b) and 129(a)(4) pollutants: antimony, 
arsenic, beryllium, cadmium, chlorine, chromium, cobalt, fluorine, 
lead, manganese, mercury, nickel, nitrogen, selenium, and sulfur. The 
definition does not include the following Clean Air Act section 112(b) 
and 129(a)(4) pollutants that are either unlikely to be found in non-
hazardous secondary materials prior to combustion 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, diazomethane, white 
phosphorus, titanium tetrachloride, m-cresol, o-cresol, p-cresol, m-
xylene, o-xylene, and p-xylene.''
    Before discussing these changes, we first want to note that the 
2011 NHSM final rule and today's proposed rule identify 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). 
Today's proposed definition provides clarification by listing the 
constituents that belong to the third group.\17\ Specifically, several 
pollutants listed in CAA section 112(b) and section 129(a)(4) form 
during combustion, so elemental precursors to those pollutants that are 
found in the NHSM prior to combustion are being added to the 
contaminant definition in place of the pollutants themselves. For 
example, when present in a NHSM undergoing combustion, chlorine readily 
forms HCl, fluorine readily forms HF, nitrogen readily forms 
NOX, and sulfur readily forms SO2. Because forms 
of these four elements found in materials prior to combustion are not 
directly identified as CAA air pollutants, yet the forms they take due 
to combustion are directly identified as CAA air pollutants, we believe 
it would be less confusing to include these elements in the 
``contaminants'' definition.
---------------------------------------------------------------------------

    \17\ Eleven metal elements directly identified in CAA section 
112(b) are listed in the definition to provide the regulated 
community with a complete list of elements that are considered 
``contaminants'' under the rule.
---------------------------------------------------------------------------

    Also, we are proposing to exclude from the definition of 
contaminants those pollutants in the CAA sections 112(b) and 129(a)(4) 
lists that we do not expect to find in any NHSM. Specifically:
     Hydrogen chloride, Cl2, HF, NOX, and 
SO2 are identified as CAA list pollutants that are excluded 
from the definition since they are unlikely to be found in NHSM prior 
to combustion and have been replaced by the elements chlorine, 
fluorine, nitrogen and sulfur as discussed above; \18\
---------------------------------------------------------------------------

    \18\ Carbon monoxide (CO) is unlikely to be found in solid or 
liquid NHSMs, and EPA expects that combustors can use process 
knowledge to justify not testing for CO in these cases. CO remains 
in the contaminants definition, however, because no clear surrogate 
exists to replace it--neither the 2011 NHSM final rule nor today's 
proposed rule considers the elements carbon and oxygen to be 
contaminants.
---------------------------------------------------------------------------

     Fine mineral fibers are excluded 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 are excluded 
because they are products of combustion unlikely to exist in NHSM prior 
to combustion;
     Cresol isomers m-cresol, o-cresol and p-cresol are 
excluded because the listed pollutant cresols/cresylic acid includes 
these three isomers;
     Xylene isomers m-xylene, o-xylene and p-xylene are 
excluded because the listed pollutant xylenes includes these three 
isomers; and
     Diazomethane, white phosphorus and titanium tetrachloride 
are excluded because their high reactivity makes their presence in 
NHSMs very unlikely.
    In addition, two phrases present in the 2011 NHSM final rule 
``contaminants'' definition are not present in today's proposed 
definition. First, the phrase concerning constituents ``that will 
result in emissions of air pollutants'' has been

[[Page 80476]]

removed since the regulated community appears to be confused that in 
determining whether or not a NHSM meets the ``contaminant legitimacy 
criterion,'' emissions from the combustion unit were to be considered 
in making the evaluation. The EPA disagrees and directs readers to the 
language in sections 241.3(d)(1)(iii) and 241.3(d)(2)(iv), which 
clearly states that the contaminant comparisons are based on the 
presence of contaminants in the NHSM that enters the combustion unit.
    Second, the phrase ``including those constituents that could 
generate products of incomplete combustion,'' also referred to as PICs, 
has been removed because it is duplicative and potentially misleading. 
Specifically, this phrase has been removed because all PICs that the 
Agency considers air pollutants--including dioxins, dibenzofurans, 
PCBs, and PAHs--are already listed in CAA sections 112(b) or 129(a)(4) 
and are thus included in the ``contaminants'' definition. More 
importantly, it is 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 NHSM itself, 
and what it contains prior to combustion, is the subject of this rule. 
Thus, both changes clarify--but do not alter--the constituents subject 
to the contaminant legitimacy criterion.
c. Established Tire Collection Programs
    Under the 2011 NHSM final rule, whole scrap tires (that are removed 
from vehicles) had to be managed under an ``established tire collection 
program'' in addition to meeting other criteria in order to be 
considered a non-waste fuel. The 2011 NHSM final rule defined 
``established tire collection program'' as meaning ``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'' (codified in 40 CFR 241.2).
    However, this definition does not directly account for ``factory 
scrap'' tires or ``off-specification'' tires that are contractually 
arranged to be collected, managed and transported between a tire 
manufacturer (including retailers and other parties involved in the 
distribution and sale of new tires) and a combustor--a fact pattern the 
Agency views as being within the intent of the regulatory definition of 
``established tire collection program'' because the tires are not 
discarded. Thus, the Agency is proposing to define ``established tire 
collection program'' to mean ``a comprehensive collection system or 
contractual arrangement that ensures scrap tires are not discarded and 
are handled as valuable commodities from the point of removal from the 
vehicle or the point at which they are generated at a tire manufacturer 
(including retailers or other parties involved in the distribution and 
sale of new tires) through arrival at the combustion facility.'' The 
Agency did not include the provisions for the ``factory scrap'' or 
``off-specification'' tires in the 2011 NHSM final rule since 
information or comments were not provided to the EPA during the 
rulemaking process and thus, the Agency was not aware of the issue. The 
Agency did not receive comments about factory scrap or off-
specification tires on the ANPRM or the proposed rule. Following 
promulgation of the 2011 NHSM final rule, the EPA learned that off-
specification tires (including factory scrap tires), which include 
whole tires and tire components that do not meet manufacturer 
specifications, are collected at tire manufacturing facilities or 
manufacturer's downstream distribution channels--retailers and other 
parties involved in the distribution and sale of new tires. As noted in 
the revised definition, we interpret the term ``tire manufacturers'' 
broadly to include retailers and other parties that are involved in the 
distribution and sale of new tires, as we believe that these parties 
also manage tires as valuable commodities, such that discard is not 
occurring when these tires are transferred to a combustor.
    If at any point in the process, a tire component or whole tire is 
not suitable for use as a vehicle tire, it is separated from the other 
tire components (or whole tires) and is stored in a protected 
environment in order to accumulate a sufficient quantity for shipment. 
The management of these tires is tightly controlled. Proprietary 
information could be collected by competitors by analyzing the factory 
scrap tire components, particularly from the uncured components (not 
yet vulcanized through heat and pressure), so the tires are stored in a 
safe manner, in part, to prevent theft.\19\ Thus, we believe that 
factory scrap and off-specification tires are handled in the same 
protective manner as those that qualified to be managed under the 
oversight of established tire collection programs as described in the 
2011 NHSM final rule.
---------------------------------------------------------------------------

    \19\ Personal communication from Tracey Norberg to EPA, 
September 13, 2011. A copy of this communication has been placed in 
the docket in today's rule.
---------------------------------------------------------------------------

    The tire manufacturers, as well as the manufacturers' downstream 
distribution channels, that are included in the definition of 
``established tire collection programs'' (1) have contractual 
arrangements with combustors, typically cement kilns (due to the high 
heating value and beneficial contribution to the cement production), to 
take and use their tires as fuels; or (2) are covered under the 
oversight of other collection programs that qualify under established 
tire collection programs (i.e., oversight of state tire programs).
    As discussed in the 2011 NHSM final rule, the intent of the 
requirement for ``removal from the vehicle'' was to distinguish these 
tires from those that were previously abandoned, and thus discarded. 
The changes to the definition in this proposed rule align the codified 
definition of established tire collection programs with the intent of 
the definition. We also note that we are proposing to delete the 
reference to section 241.3(b)(2)(i) that was included in the previous 
definition of established tire collection programs, since the citation 
is no longer accurate based on other revisions being proposed today 
(e.g., see the discussion regarding scrap tires managed pursuant to 
established tire collection programs in section II.D.3). Refer to the 
2011 NHSM final rule for more background and information regarding the 
characterization of ``established tire collection programs.'' \20\
---------------------------------------------------------------------------

    \20\ See 76 FR 15490-15499 and 15534-15535.
---------------------------------------------------------------------------

2. Revisions to the Contaminant Legitimacy Criterion for NHSM Used as 
Fuels
    Several changes are being proposed in today's rule to the 
contaminant legitimacy criterion for NHSM used as fuel. These proposed 
changes to the wording in Sec.  241.3(d)(1)(iii) emphasize the 
flexibility that is already embodied in the 2011 NHSM final rule. 
First, today's proposal replaces ``contaminants'' with the phrase 
``contaminants or groups of contaminants'' to clarify that the 
regulatory definition allows groups of contaminants to be evaluated, 
where appropriate, in determining whether a NHSM meets the contaminant 
legitimacy criterion. Second, today's proposal codifies language from 
the preamble of the 2011 NHSM final rule stating that the ``designed to 
burn'' concept includes traditional fuels that can be burned or are 
burned in a particular unit, whether or not the unit is permitted to 
burn that traditional fuel.

[[Page 80477]]

    In addition, the proposed regulations include text confirming that 
contaminant comparisons may use ranges from national surveys of 
traditional fuel data. Neither the 2011 NHSM final rule nor today's 
proposed rule requires persons to compare contaminants in their NHSM to 
contaminants in the specific traditional fuel source they burn (or 
would otherwise burn). As an example, 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. Regulatory text confirming 
this flexibility is only included in today's proposed regulations to 
clarify what is inherent in the 2011 NHSM final rule.
    Two other issues have arisen during implementation of the 2011 NHSM 
final rule that, while not leading to specific regulatory changes in 
today's proposal, still merit discussion. The first issue is 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 rule out certain constituents. The second issue is that persons may 
use data from a group of similar traditional fuels for contaminant 
comparisons, provided the unit could burn each traditional fuel. This 
idea grows from the ``designed to burn'' concept explained in the 2011 
NHSM final rule and codified in today's proposal, as 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. See 
section II.D.2.b for more discussion of this rationale.
a. What are the contaminants?
    While persons may satisfy the contaminant legitimacy criterion on a 
contaminant-by-contaminant basis, comparing groups of contaminants in 
the NHSM to similar groups in traditional fuels could also be 
appropriate, provided the grouped contaminants 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. 
One approach to grouping contaminants, as shown in Tables 7 and 8 
below, could include TOX, nitrogenated compounds, VOC, SVOC, D/F, PCB, 
PAH, and radionuclides. 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.\21\
---------------------------------------------------------------------------

    \21\ 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.\22\
---------------------------------------------------------------------------

    \22\ 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.\23\
---------------------------------------------------------------------------

    \23\ Commercial and Industrial Solid Waste Incinerators NESHAP.
---------------------------------------------------------------------------

    A look at Tables 7 and 8 below also reveals that 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, Cd compounds, etc.).
    If persons choose to group contaminants, analytical methods for the 
NHSM and traditional fuel should account for the same list of compounds 
to the extent possible. Persons may be able to exclude some members of 
a particular contaminant group from testing based on process knowledge, 
but methods for testing the group as a whole should generally account 
for all other members of the contaminant group.
    Some data sources may define contaminant groups more broadly than 
this rule, thus resulting in a definition for a particular group that 
includes compounds not considered contaminants under the rule. Such 
data sources may be all that is available in the literature in some 
cases, but they may still be appropriate. Total VOC and total SVOC 
analyses offer an instructive example because, depending on the test 
used and the material analyzed, such analyses may include 
concentrations of methane, acetone, or other compounds not considered 
contaminants under the NHSM final rule. Several solutions exist to make 
the results meaningful, however. One approach would be to specifically 
subtract compounds like methane that are not considered contaminants 
under the rule and are expected to boost a total group count in 
traditional fuels. Another approach would be to measure each applicable 
compound individually and add the totals.
    The tables presented below would separate the list of potential 
contaminants into the 15 elements listed in today's proposed definition 
of ``contaminants'' and the 163 compounds or groups of compounds 
inferred from that definition by their inclusion on the CAA sections 
112 or 129 lists. The elements listed in Table 7 are considered 
contaminants because they commonly form air pollutants listed on either 
the CAA section 112 HAP list, the CAA section 129 list, or both lists. 
The compounds or groups of compounds listed in Table 8 are considered 
contaminants because they are directly on either the CAA section 112 
HAP list, the CAA section 129 list, or both lists.24 25 The 
Agency wants to make clear that persons can use other approaches that 
they can show are technically reasonable, whether it is on a 
contaminant-by-contaminant basis or involves grouping contaminants. The 
Agency is only offering these tables to provide the regulated community 
with one reasonable approach for how a grouping of contaminants could 
be implemented.
---------------------------------------------------------------------------

    \24\ Clean Air Act section 112(b). See http://www.epa.gov/ttn/atw/pollutants/atwsmod.html for modifications to the original list 
of Hazardous Air Pollutants.
    \25\ Clean Air Act section 129(a)(4). See http://www.epa.gov/ttnatw01/129/sec129.pdf.

[[Page 80478]]



                                               Table 7--Elements Considered Contaminants--With Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Antimony (Sb)................................  Antimony compounds are a CAA section 112 HAP.
2. Arsenic (As).................................  Arsenic compounds are a CAA section 112 HAP.
3. Beryllium (Be)...............................  Beryllium compounds are a CAA section 112 HAP.
4. Cadmium (Cd).................................  Cadmium compounds are a CAA section 112 HAP.
5. Chlorine (Cl)................................  Hydrogen chloride/hydrochloric acid is on the CAA HAP & 129 lists.
6. Chromium (Cr)................................  Chromium compounds are a CAA section 112 HAP.
7. Cobalt (Co)..................................  Cobalt compounds are a CAA section 112 HAP.
8. Fluorine (F).................................  Hydrogen fluoride/hydrofluoric acid is a CAA section 112 HAP.
9. Lead (Pb)....................................  Lead compounds are a CAA section 112 HAP.
10. Manganese (Mn)..............................  Manganese compounds are a CAA section 112 HAP.
11. Mercury (Hg)................................  Mercury compounds are a CAA section 112 HAP.
12. Nickel (Ni).................................  Nickel compounds are a CAA section 112 HAP.
13. Nitrogen (N)................................  Nitrogen oxides (NOX) are a CAA section 129 pollutant.
14. Selenium (Se)...............................  Selenium compounds are a CAA section 112 HAP.
15. Sulfur (S)..................................  Sulfur dioxide (SO2) is a CAA section 129 pollutant.
--------------------------------------------------------------------------------------------------------------------------------------------------------


                      Table 8--Compounds Considered Contaminants--With Group Information 26
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
1 Acetaldehyde.................  VOC \27\.
2 Acetamide....................  ...................  SVOC \28\.........  ..................  Nitrogenated.
3 Acetonitrile (methyl cyanide)  VOC................  ..................  ..................  Nitrogenated.
4 Acetophenone.................  VOC.
5 2-Acetylaminofluorene........  ...................  ..................  ..................  Nitrogenated.
6 Acrolein.....................  VOC.
7 Acrylamide...................  VOC................  ..................  ..................  Nitrogenated.
8 Acrylic acid.................  VOC.
9 Acrylonitrile................  VOC................  ..................  ..................  Nitrogenated.
10 Allyl chloride..............  VOC................  ..................  Org. Halogen \29\.  ..................
11 4-Aminobiphenyl.............  ...................  SVOC..............  ..................  Nitrogenated.
12 Aniline.....................  VOC................  ..................  ..................  Nitrogenated.
13 o-Anisidine.................  ...................  SVOC..............  ..................  Nitrogenated.
14 Asbestos
15 Benzene.....................  VOC
16 Benzidine...................  ...................  SVOC..............  ..................  Nitrogenated.
17 Benzotrichloride............  ...................  SVOC..............  Org. Halogen.       ..................
18 Benzyl chloride.............  VOC................  ..................  Org. Halogen.       ..................
19 Biphenyl....................  ...................  SVOC.
20 Bis (2-ethylhexyl) phthalate  ...................  SVOC.               ..................  ..................
 (DEHP).
21 Bis (chloromethyl) ether....  VOC................  ..................  Org. Halogen.       ..................
22 Bromoform...................  VOC................  ..................  Org. Halogen.       ..................
23 1,3-Butadiene...............  VOC
24 Calcium cyanamide...........  ...................  ..................  ..................  Nitrogenated.
25 Captan......................  ...................  SVOC..............  Org. Halogen......  Nitrogenated.
26 Carbaryl....................  ...................  SVOC..............  ..................  Nitrogenated.
27 Carbon disulfide............  VOC.
28 Carbon monoxide.............  ...................  ..................  ..................  ..................
29 Carbon tetrachloride........  VOC................  ..................  Org. Halogen.       ..................
30 Carbonyl sulfide............  VOC.
31 Catechol....................  VOC.
32 Chloramben..................  ...................  SVOC..............  Org. Halogen......  Nitrogenated.
33 Chlordane...................  ...................  SVOC..............  Org. Halogen......  ..................
34 Chloroacetic acid...........  VOC................  ..................  Org. Halogen.       ..................
35 2-Chloroacetophenone........  ...................  SVOC..............  Org. Halogen.       ..................
36 Chlorobenzene...............  VOC................  ..................  Org. Halogen.       ..................
37 Chlorobenzilate.............  ...................  SVOC..............  Org. Halogen.       ..................
38 Chloroform..................  VOC................  ..................  Org. Halogen.       ..................
39 Chloromethyl methyl ether...  VOC................  ..................  Org. Halogen.       ..................
40 Chloroprene.................  VOC................  ..................  Org. Halogen.       ..................
41 * Cresols/Cresylic acid \30\  VOC.
42 Cumene......................  VOC.
43 * Cyanide compounds \31\....  ...................  ..................  ..................  Nitrogenated.
44 2, 4-D, salts and esters....  ...................  SVOC..............  Org. Halogen.       ..................
45 DDE.........................  ...................  SVOC..............  Org. Halogen.       ..................
                                --------------------------------------------------------------------------------
46 * Dibenzofurans \32\........                   Consider Dioxins & Furans as a Distinct Group.
                                --------------------------------------------------------------------------------
47 1, 2-Dibromo-3-chloropropane  VOC................  ..................  Org. Halogen.       ..................
48 Dibutylphthalate............  ...................  SVOC.
49 1, 4-Dichlorobenzene(p).....  VOC................  ..................  Org. Halogen.       ..................
50 3, 3-Dichlorobenzidene......  ...................  SVOC..............  Org. Halogen......  Nitrogenated.
51 Dichloroethyl ether (bis (2-  VOC................  ..................  Org. Halogen.       ..................
 chloroethyl) ether).
52 1, 3-Dichloropropene........  VOC................  ..................  Org. Halogen.       ..................

[[Page 80479]]

 
53 Dichlorvos..................  ...................  SVOC..............  Org. Halogen.       ..................
54 Diethanolamine..............  ...................  SVOC..............  ..................  Nitrogenated.
55 Diethyl sulfate.............  VOC.
56 3, 3-Dimethoxybenzidine.....  ...................  ..................  ..................  Nitrogenated.
57 Dimethyl aminoazobenzene....  ...................  ..................  ..................  Nitrogenated.
58 N, N-Dimethylaniline........  VOC................  ..................  ..................  Nitrogenated.
59 3, 3'-Dimethyl benzidine....  ...................  SVOC..............  ..................  Nitrogenated.
60 Dimethyl carbamoyl chloride.  VOC................  ..................  Org. Halogen......  Nitrogenated.
61 Dimethyl formamide..........  VOC................  ..................  ..................  Nitrogenated.
62 1, 1-Dimethyl hydrazine.....  VOC................  ..................  ..................  Nitrogenated.
63 Dimethyl phthalate..........  ...................  SVOC.
64 Dimethyl sulfate............  VOC.
65 4, 6-Dinitro-o-cresol, and    ...................  SVOC..............  ..................  Nitrogenated.
 salts.
66 2, 4-Dinitrophenol..........  ...................  SVOC..............  ..................  Nitrogenated.
67 2, 4-Dinitrotoluene.........  ...................  SVOC..............  ..................  Nitrogenated.
68 1, 4-Dioxane (1, 4-           VOC.
 diethyleneoxide).
69 1, 2-Diphenylhydrazine......  ...................  SVOC..............  ..................  Nitrogenated.
70 Epichlorohydrin (1-chloro-    VOC................  ..................  Org. Halogen.
 2,3-epoxypropane).
71 1, 2-Epoxybutane............  VOC.
72 Ethyl acrylate..............  VOC.
73 Ethyl benzene...............  VOC.
74 Ethyl carbamate (urethane)..  VOC................  ..................  ..................  Nitrogenated.
75 Ethyl chloride                VOC................  ..................  Org. Halogen.
 (chloroethane).
76 Ethylene dibromide            VOC................  ..................  Org. Halogen......
 (dibromoethane).
77 Ethylene dichloride (1, 2-    VOC................  ..................  Org. Halogen......
 Dichloroethane).
78 Ethylene glycol.............  ...................  SVOC.
79 Ethylene imine (aziridine)..  VOC................  ..................  ..................  Nitrogenated.
80 Ethylene oxide..............  VOC.
81 Ethylene thiourea...........  ...................  SVOC..............  ..................  Nitrogenated.
82 Ethylidene dichloride (1, 1-  VOC................  ..................  Org. Halogen......
 Dichloroethane).
83 Formaldehyde................  VOC.
84 * Glycol ethers \33\........  ...................  SVOC.
85 Heptachlor..................  ...................  SVOC..............  Org. Halogen......
86 Hexachlorobenzene...........  ...................  SVOC..............  Org. Halogen......
87 Hexachlorobutadiene.........  VOC................  ..................  Org. Halogen......
88 Hexachlorocyclopentadiene     ...................  SVOC..............  Org. Halogen......
 (HCCPD).
89 Hexachloroethane............  VOC................  ..................  Org. Halogen......
90 Hexamethylene-1, 6-           ...................  SVOC..............  ..................  Nitrogenated.
 diisocyanate.
91 Hexamethylphosphoramide.....  ...................  SVOC..............  ..................  Nitrogenated.
92 Hexane......................  VOC................
93 Hydrazine...................  ...................  ..................  ..................  Nitrogenated.
94 Hydroquinone................  ...................  SVOC.
95 Isophorone..................  VOC................
96 Lindane (all isomers).......  ...................  SVOC..............  Org. Halogen......
97 Maleic anhydride............  ...................  SVOC.
98 Methanol....................  VOC.
99 Methoxychlor................  ...................  SVOC..............  Org. Halogen......
100 Methyl bromide               VOC................  ..................  Org. Halogen......
 (bromomethane).
101 Methyl chloride              VOC................  ..................  Org. Halogen......
 (chloromethane).
102 Methyl chloroform (1, 1, 1-  VOC................  ..................  Org. Halogen......
 trichloroethane).
103 Methyl hydrazine...........  VOC................  ..................  ..................  Nitrogenated.
104 Methyl iodide (Iodomethane)  VOC................  ..................  Org. Halogen......
105 Methyl isobutyl ketone.....  VOC.
106 Methyl isocyanate..........  VOC................  ..................  ..................  Nitrogenated.
107 Methyl methacrylate........  VOC.
108 Methyl tert butyl ether      VOC.
 (MTBE).
109 4, 4-Methylene bis (2-       ...................  ..................  Org. Halogen......  Nitrogenated.
 chloroaniline).
110 Methylene chloride           VOC................  ..................  Org. Halogen......
 (dichloromethane).
111 4, 4'-Methylenedianiline...  ...................  ..................  ..................  Nitrogenated.
112 Methylene diphenyl           ...................  SVOC..............  ..................  Nitrogenated.
 diisocyanate (MDI).
113 Naphthalene................  ...................  SVOC.
114 Nitrobenzene...............  VOC................  ..................  ..................  Nitrogenated.
115 4-Nitrobiphenyl............  ...................  SVOC..............  ..................  Nitrogenated.
116 4-Nitrophenol..............  ...................  SVOC..............  ..................  Nitrogenated.
117 2-Nitropropane.............  VOC................  ..................  ..................  Nitrogenated.
118 N-Nitrosodimethylamine       VOC................  ..................  ..................  Nitrogenated.
 (NDMA).
119 N-Nitroso-N-methylurea.....  VOC................  ..................  ..................  Nitrogenated.
120 N-Nitrosomorpholine........  VOC................  ..................  ..................  Nitrogenated.
121 Parathion..................  ...................  SVOC..............  ..................  Nitrogenated.
122 Pentachloronitrobenzene      ...................  SVOC..............  Org. Halogen......  Nitrogenated.
 (Quintobenzene).
123 Pentachlorophenol..........  ...................  SVOC..............  Org. Halogen......
124 Phenol.....................  VOC.
125 p-Phenylenediamine.........  ...................  SVOC..............  ..................  Nitrogenated.
126 Phosgene...................  VOC................  ..................  Org. Halogen......

[[Page 80480]]

 
127 Phosphine
128 Phthalic anhydride.........  ...................  SVOC..............  ..................  ..................
                                --------------------------------------------------------------------------------
129 * Polychlorinated biphenyls                         Consider PCBs as a Distinct Group.
 (PCBs) \34\.
                                --------------------------------------------------------------------------------
130 * Polycyclic Organic Matter                       Consider Total PAH as a Distinct Group
 (or Total PAH) \35\.
                                --------------------------------------------------------------------------------
131 1, 3-Propane sultone.......  VOC.
132 [beta]-Propiolactone.......  VOC................
133 Propionaldehyde............  VOC................
134 Propoxur (Baygon)..........  ...................  SVOC..............  ..................  Nitrogenated.
135 Propylene dichloride (1, 2-  VOC................  ..................  Org. Halogen......  ..................
 dichloropropane).
136 Propylene oxide............  VOC................
137 1, 2-Propylenimine (2-       VOC................  ..................  ..................  Nitrogenated.
 methyl aziridine).
138 Quinoline..................  ...................  SVOC..............  ..................  Nitrogenated.
139 Quinone....................  ...................  SVOC..............
140 * Radionuclides (including
 radon).\36\
141 Styrene....................  VOC................
142 Styrene oxide..............  VOC................
                                --------------------------------------------------------------------------------
143 * 2, 3, 7, 8-                                  Consider Dioxins/Furans as a Distinct Group.
 Tetrachlorodibenzo-p-dioxin &
 other dioxins \37\.
                                --------------------------------------------------------------------------------
144 1, 2, 2, 2-                  VOC................  ..................  Org. Halogen......  ..................
 Tetrachloroethane.
145 Tetrachloroethylene          VOC................  ..................  Org. Halogen......  ..................
 (perchloroethylene).
146 Toluene....................  VOC................
147 2, 4-Toluene diamine.......  ...................  SVOC..............  ..................  Nitrogenated.
148 2, 4-Toluene diisocyanate..  ...................  SVOC..............  ..................  Nitrogenated.
149 o-Toluidine................  ...................  SVOC..............  ..................  Nitrogenated.
150 Toxaphene (chlorinated       ...................  SVOC..............  Org. Halogen.       ..................
 camphenes).
151 1, 2, 4-Trichlorobenzene...  VOC................  ..................  Org. Halogen.       ..................
152 1, 1, 2-Trichloroethane....  VOC................  ..................  Org. Halogen.       ..................
153 Trichloroethylene (TCE)....  VOC................  ..................  Org. Halogen.       ..................
154 2, 4, 5-Trichlorophenol....  ...................  SVOC..............  Org. Halogen.       ..................
155 2, 4, 6-Trichlorophenol....  ...................  SVOC..............  Org. Halogen.       ..................
156 Triethylamine..............  VOC................  ..................  ..................  Nitrogenated.
157 Trifluralin................  ...................  SVOC..............  Org. Halogen......  Nitrogenated.
158 2, 2, 4-Trimethylpentane...  VOC.
159 Vinyl acetate..............  VOC.
160 Vinyl bromide..............  VOC................  ..................  Org. Halogen.       ..................
161 Vinyl chloride.............  VOC................  ..................  Org. Halogen.       ..................
162 Vinylidene chloride (1, 1-   VOC................  ..................  Org. Halogen.       ..................
 dichloroethylene).
163 * Xylenes \38\.............  VOC................
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \26\ Spicer, Chester W. et al., Hazardous Air Pollutant 
Handbook, Lewis, Boca Raton, FL, 2002, pg. 23-53.
    \27\ Volatile organic compounds (VOC) are identified here as 
organic compounds with a vapor pressure greater than 0.1 mm Hg at 25 
[deg]C.
    \28\ Semi-volatile organic compounds (SVOC) are identified here 
as organic compounds with a vapor pressure between 10-7 
and 0.1 mm Hg at 25 [deg]C.
    \29\ Organic halogens are identified here as any compound that 
contains both carbon and a halogen (chlorine, bromine, fluorine, or 
iodine).
    \30\ Cresols are a group that includes three compounds.
    \31\ Cyanide compounds are a group that includes hydrogen 
cyanide, propionitrile, cyanogens, and a number of possible particle 
phase compounds.
    \32\ Dibenzofurans are a group that includes 135 polychlorinated 
dibenzofurans (PCDFs).
    \33\ Glycol ethers are a group that includes roughly 30 
compounds.
    \34\ PCBs are a group that includes 209 congeners.
    \35\ Polycyclic Organic Matter (POM) is a group that 
theoretically may include millions of compounds. Only 100 or so, 
however, have been identified and studied.
    \36\ Radionuclides are a group that includes uranium, radon, and 
radium isotopes.
    \37\ Dioxins are a group that includes 75 polychlorinated 
dibenzo dioxins (PCDDs).
    \38\ Xylenes are a group that includes three compounds.
---------------------------------------------------------------------------

    Tables 7 and 8 do not include the 17 compounds specifically removed 
from the proposed regulatory definition of contaminants in Sec.  241.2. 
As discussed in section II.D.1., HCl, Cl2, HF), 
NOX, and SO2 are excluded from Table 8 and 
replaced by the elements chlorine, fluorine, nitrogen and sulfur in 
Table 7. This is necessary because of differences between NHSMs prior 
to combustion and the emissions that will result from that combustion. 
NHSMs prior to combustion are not expected to contain the CAA 112/129 
pollutants HCl, Cl2, HF, NOX or SO2, 
and measuring forms of their precursors (the elements chlorine, 
fluorine, nitrogen and sulfur) is the only way to account for these 
pollutants prior to combustion.
    In addition, fine mineral fibers, PM, and coke oven emissions are 
excluded because they are unlikely to exist in NHSMs prior to 
combustion. Diazomethane, white phosphorus and titanium tetrachloride 
are also excluded because their reactivity makes their presence in 
NHSMs very unlikely.\39\ Finally, the three cresol isomers are included 
in Table 8 under cresols/cresylic acid, itself a listed HAP; and 
similarly, the three xylene isomers are included in Table 8 under 
xylenes, also a listed HAP.
---------------------------------------------------------------------------

    \39\ Spicer, Chester W. et al., Hazardous Air Pollutant 
Handbook, Lewis, Boca Raton, FL, 2002, pp 11-21.
---------------------------------------------------------------------------

b. What does ``designed to burn'' mean?
    To meet the contaminant legitimacy criterion, persons must compare 
contaminants in the NHSM they wish to burn to contaminants in the 
traditional fuel the unit is ``designed to burn.'' \40\ Today's 
proposal codifies that data for any traditional fuel the unit can burn 
or does burn may be used for these comparisons, whether or not the 
unit's

[[Page 80481]]

air permit lists the traditional fuel. The reason such comparisons to 
traditional fuel(s) are conducted is to assist in making a 
determination of whether or not the NHSM is being discarded, which 
makes differentiating between ``can burn'' and ``does burn'' 
irrelevant. Please note that for a unit to be able to burn a 
traditional fuel, it needs an appropriate feed mechanism (e.g., a way 
to load solid fuel of a particular size into the unit). The unit would 
also need the ability to adjust physical parameters to ensure spatial 
mixing and flame stability per unit specifications.
---------------------------------------------------------------------------

    \40\ As explained in Section II.D.2.a, today's proposed rule 
makes it clear that ``contaminants'' may be an individual 
contaminant or group of contaminants.
---------------------------------------------------------------------------

    Traditional fuels are defined in Sec.  241.2 as follows: 
``Traditional fuels means materials that are produced as fuels and are 
unused products that have not been discarded and therefore, are not 
solid wastes, including: (1) fuels that have been historically managed 
as valuable fuel products rather than being managed as waste materials, 
including fossil fuels (e.g., coal, oil and natural gas), their 
derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, 
refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace 
gas, recovered gaseous butane, and coke oven gas) and cellulosic 
biomass (virgin wood); and (2) alternative fuels developed from virgin 
materials that can now be used as fuel products, including used oil 
which meets the specifications outlined in 40 CFR 279.11, currently 
mined coal refuse that previously had not been usable as coal, and 
clean cellulosic biomass. These fuels are not secondary materials or 
solid wastes unless discarded.''
    Because most combustion units can burn different--but related--
traditional fuels, 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.41 42
---------------------------------------------------------------------------

    \41\ 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 6). February 2011. http://www.epa.gov/ttn/atw/boiler/boilerpg.html#TECH.
    \42\ The fuel analysis information in this OAQPS database is one 
example of a ``national survey'' of traditional fuel information, as 
referenced in the proposed contaminant legitimacy criterion at Sec.  
241.3(d)(1)(iii).
---------------------------------------------------------------------------

    To further clarify the impact of the new proposed ``designed to 
burn'' language on contaminant comparisons, potential categories for 
coal, wood and oil are described below. A coal group could include data 
on anthracite, lignite, bituminous and sub-bituminous coal. A wood or 
biomass group could include data on unadulterated lumber, timber, bark, 
biomass and hogged fuel. An oil group could include data on fuel oils 
1-6, diesel fuel, kerosene and other petroleum based 
oils.43 44 In cases where a unit can burn traditional fuels 
from several categories, such as a boiler that can burn either coal or 
biomass, contaminant comparisons could be made using data from either 
fuel category at the combustor's discretion. In other words, if a 
facility burns biomass in its combustion unit, but that same combustion 
unit could also burn coal, the facility could compare its secondary 
material to either traditional fuel.
---------------------------------------------------------------------------

    \43\ We do not believe that the oil group should include 
unrefined crude oil or gasoline, as neither is typically burned in 
combustion units subject to the CAA sections 112 or 129 standards.
    \44\ Used oil is a special case and does not need to undergo the 
contaminant comparison. If it meets the specifications in 40 CFR 
Part 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.
---------------------------------------------------------------------------

    Some fossil fuel derivatives (e.g., petroleum coke, coal tar oil) 
and alternative fuels (e.g., clean cellulosic biomass) are defined as 
traditional fuels and, therefore, do not need to meet the legitimacy 
criteria to be burned. The EPA lacks sufficient contaminant data, 
however, to assist those wishing to compare NHSM to these traditional 
fuels. In addition, other units currently exist that burn only NHSMs. 
Both situations raise the question of what traditional fuel(s) to use 
for contaminant comparisons. In addition to being able to burn 
derivative fuels, alternative fuels, or NHSM, most combustion units can 
also burn other traditional fuel(s). In such cases, it is appropriate 
to make the comparison to one of the traditional fuel categories 
discussed above: either coal or wood for solids or oil for liquids. For 
example, if a combustion unit only burns a solid form of NHSM, the 
combustor could compare contaminants in the NHSM against either coal or 
wood in order to demonstrate compliance with the contaminant legitimacy 
criterion, provided the combustion unit is designed to burn such solid 
forms of fuel.
c. What contaminant comparisons are allowed?
    Regardless of the specific methodology chosen, a comparison will 
have to be made for each contaminant or group of contaminants between a 
traditional fuel or group of traditional fuels and the NHSM. Generators 
or combustors can use either traditional fuel data collected by the EPA 
or their own data for traditional fuel comparison values.\45\ 
Generators or combustors are responsible, however, for either providing 
NHSM comparison values in cases where testing is required or 
documenting why testing is unnecessary. 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.
---------------------------------------------------------------------------

    \45\ The EPA has collected current information on levels of 
contaminants in traditional fuels, which can be found at http://www.epa.gov/epawaste/nonhaz/define/index and used by the regulated 
community as they so choose. The EPA will update this information as 
appropriate.
---------------------------------------------------------------------------

    Given data for a particular traditional fuel, it makes intuitive 
sense to base the traditional fuel comparison value on the upper end of 
its statistical range. Anything less could result in ``traditional 
fuel'' samples being considered solid waste if burned in the very 
combustion units designed to burn them--not the Agency's intent in 
either the 2011 NHSM final rule or today's proposed rule.\46\ Given 
that selection, 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. 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.
---------------------------------------------------------------------------

    \46\ 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 generally 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.
    We would finally note that 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, today's preamble discussion does 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

[[Page 80482]]

whether the legitimacy criteria have been met.
    Even when analytical testing is not necessary, combustors burning 
NHSM under CAA section 112 must document the basis of their 
determinations pertaining to the part 241 criteria (including the 
contaminant legitimacy criteria) in accordance with applicable air 
regulations. These regulations can be found in Sec.  63.11225(c)(2)(ii) 
for area source boilers, in Sec.  63.7555(d)(2) for major source 
boilers, and in Sec.  60.2175(v) and Sec.  60.2740(u) for incinerators.
3. Categorical Determinations That Specific NHSM Are Not Solid Waste 
When Used as a Fuel
    Issues were raised after promulgation of the 2011 NHSM final rule 
concerning application of the legitimacy criteria, and the extent of 
the information required to make demonstrations that a NHSM was not a 
solid waste. To provide additional clarity and assist in implementation 
of the rule, the Agency is proposing to codify in Sec.  241.4 
determinations that certain NHSMs are not solid wastes when used as a 
fuel, where the Agency has sufficient information and knowledge that 
these NHSMs are not wastes. The practical effect of these categorical 
listings is that persons that generate or burn these materials will not 
need to make individual determinations, as required under the existing 
rules, that these materials meet the legitimacy criteria. Except where 
noted, combustors of these materials will not be required to provide 
further information demonstrating their non-waste status.\47\
---------------------------------------------------------------------------

    \47\ In the 2011 NHSM final rule, scrap tires managed under 
established tire collection programs and resinated wood were 
designated as non-wastes when used both within and outside generator 
control (see Sec.  241.3(b)(2). The final rule indicated that the 
Agency would solicit comment in the future on additional non-
hazardous secondary materials that can be used as a non-waste fuel 
both by the generator and outside the control of the generator (76 
FR 15472).
---------------------------------------------------------------------------

    Thus, the Agency is proposing a list of secondary materials that 
are non-wastes when used as a fuel in a combustion unit, based on a 
balancing of the legitimacy criteria and other such relevant factors 
that the Administrator may identify. Such additional factors may 
include, but are not limited to, whether the NHSM's use as a fuel has 
been integrally tied to the industrial production process and the 
extent to which the NHSM is functionally the same as the comparable 
traditional fuel.
    We note that a balancing approach to considering the legitimacy 
criteria along with other relevant factors is not included in the 
standards and procedures for making individual non-waste determinations 
under Sec.  241.3. 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.
    Regarding the proposed categorical determinations in Sec.  241.4, 
where a particular NHSM may not meet all the legitimacy criteria 
outlined in Sec.  241.3(d)(1), it is necessary to require a formal 
determination in order to prevent sham recycling (i.e., materials being 
discarded under the guise of recycling). The EPA has long acknowledged 
that, ``[w]ith respect to the issue of whether [an] activity is sham 
recycling, this question involves assessing the intent of the owner or 
operator by evaluating circumstantial evidence, always a difficult 
task.'' \48\ In cases where the difference between recycling and 
treatment is difficult to distinguish, ``[t]he potential for abuse is 
such that great care must be used when making a determination that a 
particular activity is to go unregulated (i.e., it is one of those 
activities which is beyond the scope of our jurisdiction).'' \49\ 
However, the Agency also believes that there are cases where a 
secondary material may not fully meet the self-implementing legitimacy 
criteria, but upon consideration of other relevant factors, it can be 
determined that the material is a legitimate fuel and is not merely 
being discarded by being burned.
---------------------------------------------------------------------------

    \48\ See April 26, 1989 Memorandum from Sylvia K. Lowrance, 
Director, Office of Solid Waste to Hazardous Waste Management 
Division Directors, Regions I-X. A copy of this document has been 
placed in the docket for today's rulemaking.
    \49\ Id.
---------------------------------------------------------------------------

    In addition to the proposed categorical determination that certain 
secondary materials are not wastes when combusted as a fuel, the Agency 
is proposing a rulemaking petition process for individuals to request 
categorical determinations for additional NHSM as not being a solid 
waste when burned as a fuel in combustion units. This process is 
outlined in section II.D.4.
    The information and rationale that the Agency is relying upon to 
propose the section 241.4 categorical determinations for certain 
secondary materials is discussed below.
a. Scrap Tires
    In the 2011 NHSM final rule, the EPA determined that scrap tires 
removed from vehicles and managed pursuant to established tire 
collection programs would not be considered a solid waste, provided 
they meet the legitimacy criteria in Sec.  241.3(d)(1). The 2011 NHSM 
final rule preamble also concluded that, as a category, scrap tires 
managed pursuant to established tire collection programs would meet the 
legitimacy criteria for NHSMs used as fuels. Questions have arisen, 
however, as to whether persons must still demonstrate for each facility 
that this material meets the legitimacy criteria. To clarify this 
point, we are proposing to codify a categorical determination in 
today's rule to designate scrap tires that have not been discarded and 
are managed under the oversight of established tire collection programs 
(as defined in 241.2), including tires removed from vehicles and off-
specification tires, are not solid wastes when used as fuels in 
combustion units. Thus, persons who generate and/or burn such scrap 
tires would not need to make an individual legitimacy determination 
that such scrap tires are non-waste fuels.
    As discussed in section II.D.1 of today's action, the term 
``established tire collection program'' is proposed to encompass off-
specification tires (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. Thus, under 
the proposal, ``established tire collection program'' means ``a 
comprehensive collection system or contractual arrangement that ensures 
scrap tires are not discarded and are handled as valuable commodities 
through arrival at the combustion facility.'' The established tire 
collection programs ensure the tires are not discarded. The rationale 
for the related edits to the definition of established tire collection 
programs are described in the section II.D.1.
    As discussed in the 2011 NHSM final rule, scrap tires from vehicles 
meet the legitimacy criteria (Sec.  241.3(d)(1)) for being handled as a 
valuable commodity, for having meaningful heating value, and for 
comparable contaminants.\50\ Specifically, scrap tires are considered 
to be handled as a valuable commodity when they are collected under 
established tire collection programs. Because scrap tires have an 
exceptionally high heating value (12,000 Btu/lb to 16,000 Btu/lb), they 
are considered to meet the legitimacy criteria for meaningful heating 
value. In fact, the heating value of scrap tires is higher than typical 
coal values and other solid fuels.\51\ In developing the

[[Page 80483]]

2011 NHSM final rule, the EPA analyzed contaminant concentrations in 
scrap tires and determined that contaminant levels were comparable to 
or lower than levels in traditional fuels; therefore, scrap tires are 
considered to meet the legitimacy criterion for comparable 
contaminants.\52\
---------------------------------------------------------------------------

    \50\ 76 FR at 15535.
    \51\ ASTM Standard D6700-01, 2006, ``Standard Practice for Use 
of Scrap Tire-Derived Fuel,'' ASTM International, West Conshohocken, 
PA, 2003, DOI: 10.1520/C0033-03, http://www.astm.org.
    \52\ 76 FR at 15492. Data cited submitted as comments on the 
2010 NHSM Proposed Rule and can be found in the docket EPA-HQ-RCRA-
2008-0329. See also Materials Characterization Papers in Support of 
the Final Rulemakings--Identification of Non-Hazardous Secondary 
Materials that are Solid Wastes: Scrap Tires (February 3, 2011); 
Traditional Fuels and Key Derivatives (February 7, 2011) in docket 
EPA-HQ-RCRA-2008-0329. We also note that we have developed, in 
support of today's proposed rulemaking, a new background document 
that includes updated information regarding scrap tires, as well as 
the other NHSM discussed in today's proposal. This document is 
entitled ``Resinated Wood, Scrap Tire, and Pulp/Paper Sludge Support 
Document'' and can also be found in docket EPA-HQ-RCRA-2008-0329.
---------------------------------------------------------------------------

    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; it does not include whole tires 
that have been discarded and burned directly without processing as a 
fuel. The provision in Sec.  241.4 specifically references only those 
scrap tires that have not been discarded and are managed under the 
oversight of established tire collection programs, including tires 
removed from vehicles and off-specification tires. Thus, the regulatory 
text has been revised to make this point clear.
b. Resinated Wood 53
---------------------------------------------------------------------------

    \53\ 40 CFR 241.2 defines resinated wood 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 panel trim.
---------------------------------------------------------------------------

    The EPA is proposing to designate resinated wood as not being a 
solid waste when used as a fuel. This determination was previously 
codified under Sec.  241.3 (b)(2)(ii) of the NHSM final rule, provided 
the resinated wood met the legitimacy criteria in Sec.  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.
    As discussed in the 2011 NHSM final rule, wood product plants have 
been designed to specifically utilize these residuals that the wood 
manufacturing process creates and would not be able to operate as 
designed without this material. For example, sander dust injector 
systems have been specifically developed to accommodate the unique 
combustion requirements of this material and these injector systems 
have been installed on many boiler and wood drying systems within the 
industry.\54\ Burners designed to combust sander dust or trim may not 
be suitable for combusting other fuels--thus, the cost of these 
residual materials relative to the cost of using other fuels would be a 
major consideration.\55\ Overall, in composite panel manufacturing, 
plants typically reuse 58 percent of these residual materials in the 
process and 35 percent is burned for energy recovery.\56\
---------------------------------------------------------------------------

    \54\ American Forest and Paper Association, August 3, 2010. EPA 
Docket ID EPA-HQ-RCRA-2008-0329.
    \55\ For example, Composite Panel Association, in comments on 
the NHSM Proposed Rule, stated, ``Estimates for the cost of a 
composite panel plant to switch boiler fuel from a trim/sander dust 
mix to natural gas ranged from $1 million to $3.5 million a year 
depending on boiler size and the price of natural gas. For direct 
fired dryers alone, the cost to switch from sander dust to natural 
gas ranged from $350,000 to $1.4 million a year, again depending on 
dryer size and gas prices. These costs do not include the re-
engineering costs that would be necessitated nor do they include the 
cost of transportation or off-site disposal of this valuable fuel. 
Moreover, these costs do not take into account the severe costs 
implications on all wood product facilities that currently utilize 
resinated fuels in process heaters or dryers.'' EPA Docket ID: EPA-
HQ-RCRA-2008-0329-1358.
    \56\ The Generation and Utilization of Residuals from Composite 
Panel Products; Forest Products Journal 54:2, 2004; David C. Smith.
---------------------------------------------------------------------------

    Resinated wood is highly valued within the wood products industry 
for its high fuel value relative to other wood fuels generated and 
burned at these facilities for energy recovery. Many facilities rely on 
mixing of these low moisture content wood materials with higher 
moisture materials. Resinated wood residuals are routinely transferred 
between either intra- or inter- company facilities and used as either 
``furnish'' (i.e., raw materials) or fuel at the receiving facilities. 
The material being transferred off-site is used and handled in the same 
manner that resinated wood residuals are used when generated on-site. 
In general, the motivation to use the resinated wood as a fuel, even 
with the slightly higher formaldehyde levels, predominates over the 
motivation to dispose of the formaldehyde. See American Petroleum 
Institute v. EPA, 216 F.3d 50, 58 (DC Cir. 2000) (in declaring 
reclaimed oily wastewater to be a waste, the EPA failed to explain why 
the discard motivation predominated the recycling motivation). Indeed, 
discard of the formaldehyde is a very distant second to the fuel 
product use of the resinated wood.
    The heating value range presented (8,500-9,000 Btu/lb) indicates 
that resinated wood residuals have heating values significantly greater 
than the 5,000 Btu/lb level described in the preamble to the 2011 NHSM 
final rule for presuming compliance with the meaningful heating value 
legitimacy criterion (codified at Sec.  241.3(d)(1)(ii)). Resinated 
wood residuals also are managed as a valuable commodity since these 
residuals are managed as a primary fuel for wood products 
manufacturers.
    While we received limited contaminant information prior to the 
promulgation of the final rule, the data we have suggest that resins 
and adhesives containing formaldehyde react within the resin curing 
process, leaving ``free'' formaldehyde at levels less than 0.02 percent 
(or 200 ppm). In addition, new national rules, as mandated by the CARB 
Composite Wood ATCM, per new Public Law 111-199, will reduce the 
formaldehyde levels even further.\57\
---------------------------------------------------------------------------

    \57\ Information received from the wood manufacturing industry 
indicates that formaldehyde levels will be reduced to less than 100 
ppm in resinated wood based on the new CARB rules. These data are 
provided in the docket for today's proposed rule.
---------------------------------------------------------------------------

    While we acknowledge that these levels may not always meet the 
contaminant legitimacy criterion in every situation, in today's action, 
we are proposing a categorical non-waste determination for resinated 
wood that is used as fuel. We are proposing to codify this 
determination, 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. That is, the purpose of burning these wood 
residuals (including the resins that they contain, which themselves 
contribute to the heating value of the material) is not to destroy or 
discard them, as they are clearly considered and managed as a valuable 
commodity to the manufacturing process.
    In making this determination, we note the extent to which resinated 
wood is used as fuels throughout the wood manufacturing industry and 
that often the use of resinated wood as fuel is essential to the wood 
manufacturing process. We also note 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

[[Page 80484]]

materials as fuel. Thus, resinated wood residuals are not being 
discarded when used as fuel and, therefore, we are proposing to 
specifically identify them as a non-waste fuel in Sec.  241.4. By 
specifically listing them as a non-waste fuel, generators or combustors 
of this material will not need to make legitimacy determinations on a 
site-by-site basis.
4. Rulemaking Petition Process for Other Non-Waste Determinations
    The Agency recognizes that there may be other NHSMs that can also 
be considered non-wastes when burned as fuels in combustion units when 
balancing the legitimacy criteria and other relevant factors. Thus, 
under today's proposed rule, we are proposing a process whereby persons 
may submit a rulemaking petition to the Administrator where they can 
identify and request that additional NHSMs be listed in section 
241.4.\58\ The petition process would be 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 section 260.20 
standards reflect normal, informal rulemaking procedures under the APA 
and thus serve as an appropriate model for the NHSM petitions under 
this section.
---------------------------------------------------------------------------

    \58\ This approach is consistent with the approach EPA recently 
proposed in the July 2011 Definition of Solid Waste (DSW) proposed 
rule (76 FR 44094), whereby the Agency is proposing to require that 
persons who claim that they are legitimately reclaiming a hazardous 
secondary material meet all four legitimacy criteria, but is 
providing a petition process whereby they can petition EPA that such 
materials, when looking at the hazardous secondary material and 
recycling activity as a whole, would still be considered legitimate 
recycling. The primary difference between the two is that in the DSW 
proposed rule, the demonstration is made on a site-specific basis, 
whereas in today's proposed rule, the demonstration would be made on 
a material-by-material basis.
---------------------------------------------------------------------------

    In the context of a rulemaking petition under section 241.4(b), any 
person would be able to 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 would need 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). The petitioner must also demonstrate that 
the material is used as a non-waste fuel in a combustion unit because 
it either 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 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, and/or
     The extent that the NHSM is functionally the same as the 
comparable traditional fuel, and
     Other relevant factors.
    The application would be 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 should be considered a non-waste fuel, 
balancing the legitimacy criteria with other relevant factors.
    Under this petition process, the Administrator would make 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 would make a final decision by publishing in the Federal 
Register a regulatory amendment or a denial of the petition.

E. Additional Request for Comment

1. Pulp and Paper Sludges
    As we discuss elsewhere in this preamble, the Agency is proposing 
to identify and categorically list NHSMs as being a non-waste fuel, 
whether burned within the control of the generator or outside the 
control of the generator (see 241.4(a)). By listing these NHSMs 
categorically, persons would not have to make individual determinations 
as to whether or not these NHSMs are solid wastes. In addition, the 
Agency is also proposing that in considering whether or not to list a 
NHSM as a non-waste fuel, that the Agency can balance the legitimacy 
criteria, and such other relevant factors that the Administrator may 
identify. Such additional factors may include, but are not limited to, 
whether the NHSM's use as a fuel has been integrally tied to the 
industrial production process and the extent to which the NHSM when 
used as a fuel is consistent with that of fuel product.
    With regard to pulp and paper sludges, the 2011 NHSM final rule 
specifically concluded the following ``The final rule will retain the 
proposed approach--pulp and paper sludges managed within control of the 
generator are a non-waste fuel as they would seem to meet all of the 
legitimacy criteria * * * '', (See 76 FR 15488, March 21, 2011). We 
received several questions about these materials following issuance of 
the final rule. As discussed below, based on the current record, the 
EPA continues to believe that these pulp and paper sludges meet the 
legitimacy criteria and can be burned as a non-waste fuel in accordance 
with existing section 241.3(b)(1) provided such combustion units are 
within the control of the generator. In this section, we discuss the 
information we currently have on these sludges, and the additional 
information that the Agency needs before we could categorically list 
these materials in section 241.4(a) as a non-waste fuel. If such 
information is provided to the EPA, and after balancing the legitimacy 
criteria with other relevant factors that the EPA believes that these 
sludges are not solid wastes when combusted, the EPA is prepared to add 
pulp and paper sludges to the list of non-waste fuels in section 
241.4(a).
    Pulp and paper mill sludges, both primary and secondary, are 
produced from the wastewater treatment of process effluents. In the 
pulping and papermaking process, maximizing wood fiber recovery is 
essential in making the process efficient and cost-effective. However, 
there are fibers that end up being too short (fines) that can be 
detrimental to paper quality and that inhibit the papermaking capacity 
of the paper machine. Mills thoroughly clean and screen the wood fibers 
to retain the suitable fibers and remove the excess fines. These fines 
end up in the

[[Page 80485]]

wastewater stream and, eventually, in the sludge. Therefore, these 
sludges, which are approximately 90-95 percent biomass on a dry weight 
basis, are essentially no different than the biomass-based wood fibers 
that enter the pulping or papermaking process, except that the fibers 
are too short to be suitable for papermaking; these sludges also 
contain microorganisms that feed on organic material in the wastewater 
stream.
    The EPA compared the contaminant concentrations in pulp and paper 
sludges to levels found in coal and untreated wood, since both these 
traditional fuels can be burned in pulp and paper mills. As we 
discussed in the preamble to the final NHSM rule, chlorine levels from 
one set of pulp and paper sludge samples submitted in the public 
comments had an arithmetic mean of 465 ppm, a median of 318 ppm, a 
maximum level among mill means of 2,399 ppm, and a maximum among 
individual analyses of 4,800 ppm (all on a dry weight basis). Other 
samples had chlorine concentrations of between 1,050-4,800 ppm (dry 
basis). When comparing information on pulp and paper sludge to the 
information that we have compiled on coal, we found that chlorine 
levels in coal are reported to be as high as 7,400 ppm, and that 
average chlorine values for bituminous and sub-bituminous coal are 
1,200 ppm and 140 ppm, respectively. Thus, the average chlorine levels 
reported in most pulp and paper sludge are likely to be comparable with 
average chlorine levels found in bituminous coal. We also determined 
that the chlorine levels in pulp and paper sludge would be comparable 
to untreated wood, given that untreated wood had chlorine levels as 
high as 11,890 ppm.\59\ We note that there is one sample in the 
submitted data set for a pulp and paper sludge that has a chlorine 
concentration of 16,550 ppm. However, since this was the only sample 
with such a high concentration of chlorine, we did not think that it 
was representative of pulp and paper sludges generally. Since 
promulgation of the 2011 NHSM final rule, EPA has received additional 
contaminant data regarding these pulp and paper sludges from the forest 
products industry, which demonstrate even more clearly that this one 
sample is anomalous. Regarding chlorine levels in particular, the 
forest products industry provided data for 93 samples of pulp and paper 
sludges. This data set shows the mean value for chlorine to be 361 ppm, 
with a standard deviation of 661 ppm, and a 90 percent confidence 
interval at 1,217 ppm. We also determined that the levels of metals 
were lower in pulp and paper sludges than in both untreated wood and 
coal. Such data further support the conclusions outlined in the final 
NHSM rule that, based on information received by the Agency, pulp and 
paper sludge meets the contaminant legitimacy criterion (76 FR 15488).
---------------------------------------------------------------------------

    \59\ Since promulgation of the 2011 NHSM final rule, the EPA has 
updated and reorganized its traditional fuel data to reflect data 
supporting the 2011 Major Source Boiler final rule and the 2011 
CISWI final rule, whereas the previous version of the paper relied 
on data supporting the 2010 Major Source Boiler proposed rule and 
the 2010 CISWI proposed rule. Contaminant data have also been 
reorganized to better reflect revisions to the definition of 
``contaminants'' and the contaminant legitimacy criterion in today's 
proposed NHSM rule. The updated data can be found at http://www.epa.gov/epawaste/nonhaz/define/index. The Agency will update 
this information as appropriate.
---------------------------------------------------------------------------

    While pulp and paper sludges can have a heating value below 5,000 
Btu/lb, pulp and paper mills typically improve the heating value 
through dewatering. Data from the Boiler/CISWI database established for 
those rules indicate that Btu/lb values exceeded 5,000 Btu/lb for pulp 
and paper sludge measured on a dry weight basis. Thus, we believe that 
pulp and paper sludges meet the meaningful heating value legitimacy 
criterion when dewatered. Also, since pulp and paper sludges are 
handled promptly (i.e., not stored for long periods of time and are 
contained in storage units along with traditional fuels (such as wood 
and bark) with minimal loss (similar to a valuable commodity), the EPA 
believes that pulp and paper sludges are managed as a valuable 
commodity (see 76 FR 15488-89, March 21, 2011).
    Thus, based on the current record, the EPA believes that these pulp 
and paper sludges meet the legitimacy criteria and 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).\60\ As noted in 
section II. D., facilities are not required to test contaminant levels 
to demonstrate such legitimacy, but rather, persons can use expert or 
process knowledge, as well as data generated from similar facilities, 
to make those determinations.
---------------------------------------------------------------------------

    \60\ We also note that 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.
---------------------------------------------------------------------------

    To the extent industry and other commenters believe that these pulp 
and paper sludges should be categorically listed in section 241.4(a), 
they will need to provide the Agency with appropriate information, as 
discussed later in this section. In such instances, the Agency can list 
a NHSM as a non-waste fuel by balancing the legitimacy criteria and 
such other relevant factors that the Administrator may identify.
    For example, the Agency is proposing to list categorically 
resinated wood residuals as a non-waste fuel balancing the legitimacy 
criteria with other relevant factors. These other additional factors 
include, but are not limited to, whether the NHSM's use as a fuel has 
been integrally tied to the industrial production process and the 
extent to which the NHSM is consistent with that of a fuel product. 
Specifically, as discussed in section II.D.3.b, we are relying on 
information about the high Btu values, the fact that wood product 
plants have been designed to specifically utilize these residuals that 
the wood manufacturing process creates and without which they would not 
be able to operate as designed, and information about how the materials 
are managed off-site as an indication that these materials are not 
being discarded.
    For pulp and paper sludges, we would need similar information to 
support adding these materials to section 241.4(a). Specifically, the 
types of information that would be particularly helpful include: (1) 
Documentation of how the use of pulp and paper sludges that are used as 
a fuel are integrated into the industrial production process and the 
steps taken industry-wide to ensure that this NHSM is consistently used 
as a legitimate fuel and is not discarded, including when transferred 
to a different person for use as a fuel, (2) documentation on the 
amount of pulp and paper sludges burned as a fuel (whether within the 
control of the generator or outside the control of the generator), and 
what determines which pulp and paper sludges are burned as a fuel, as 
opposed to being land applied or disposed,\61\ (3) additional data 
regarding the contaminant levels of the various HAP, such as chlorine 
and metals, and what steps the industry has taken to ensure the quality 
of these sludges when used as a fuel are consistent with that of fuel 
product, (4) information on standard practices used to ensure that 
these sludges have a meaningful heating value, including the types of 
dewatering and other processing steps that these sludges are subject 
to, as well as information on whether any pulp and paper sludges that 
are burned as a fuel are done so without any processing,

[[Page 80486]]

including dewatering, and (5) when shipped to a different person for 
use as a fuel, how these sludges are managed, including how they are 
shipped, any processing that may occur, and how long these sludges are 
typically stored prior to being burned as a fuel. If the information 
that the EPA receives suggests that after a balancing of the legitimacy 
criteria and any other relevant factors, such that when the facts are 
viewed, as a whole, the sludges are non-waste fuels, the EPA will 
consider adding pulp and paper sludge to the list of non-waste fuels in 
40 CFR 241.4(a).
---------------------------------------------------------------------------

    \61\ The Agency's latest data indicate that between 20 and 25 
percent of these pulp and paper sludge are burned as a fuel.
---------------------------------------------------------------------------

2. Coal Refuse
    Coal refuse is generated when coal is mined, and is comprised of 
non-combustible rock with some attached carbon material that is not 
easily separated due to its small size. The EPA`s Coal Refuse Materials 
Characterization Paper indicates that there are 18 coal refuse plants 
(Fossil Fuel Electric Power Generation-NAICS 221112), and 13 more that 
use it as a secondary fuel, with bituminous coal as their primary fuel. 
This paper did not provide an official estimate of the annual volume of 
coal refuse that is generated, nor the amount that is stored in legacy 
piles.
    In an August 15, 2011 letter to the Anthracite Region Independent 
Power Producers Association (ARIPPA), EPA addressed industry concerns 
about whether coal refuse from legacy piles, when used as a fuel in 
combustion units, would be considered a solid waste under the non-
hazardous secondary materials (NHSM) rule. After reaffirming that EPA 
has determined that currently-generated coal refuse is an alternative 
fuel, EPA addressed coal refuse from legacy piles. While noting that 
coal refuse from legacy piles ``* * * has clearly been discarded and is 
a solid waste unless sufficiently processed into a new legitimate fuel 
product,'' EPA also states that it has determined that such refuse is 
processed no differently than currently generated coal refuse, and 
therefore meets EPA`s requirements for processing under 40 CFR 241.2. 
The EPA goes on to declare that post-processed coal refuse from legacy 
piles meets the first two criteria for treatment as a non-waste fuel 
when combusted: materials are managed in the same manner, and would 
have similar heating values, as currently generated coal refuse, which 
is a traditional fuel.
    The EPA then addresses the third criterion--whether the material 
contains contaminants at levels comparable to or lower than traditional 
fuels. The EPA affirms that because currently-generated coal refuse is 
a traditional fuel, such fuel is the traditional fuel benchmark when 
comparing contaminant levels with coal refuse found in legacy piles. 
The EPA also notes that since legacy coal refuse is processed in the 
same manner as currently-generated coal refuse, EPA expects that post-
processed coal refuse from legacy piles satisfies EPA`s contaminant 
legitimacy criterion. Thus, post-processed coal refuse from legacy 
piles are not being discarded when used as fuel and, therefore, we are 
taking comment on specifically identifying them as a non-waste fuel in 
Sec.  241.4.

F. Effect of This Proposed Rule on Other Programs

1. Clean Air Act
    During the 2011 NHSM final rulemaking, the EPA assessed the effects 
of that final rule on other programs. See 76 FR 15545-15546. The 
reconsideration proposals for the CISWI and boiler rules are consistent 
with the proposed revisions. These proposed NHSM revisions resulted in 
only minimal changes to the inventories for CISWI and boilers.
2. Subtitle C Hazardous Waste Program/Definition of Solid Waste Rule
    The result of this rule will have no effect on the RCRA subtitle C 
hazardous waste program because it does not address hazardous waste. 
The RCRA subtitle C hazardous waste federal program has a long 
regulatory history in defining ``solid waste'' for purposes of the 
hazardous waste regulations. However, the 40 CFR 261.2 definition of 
solid waste explicitly applies only to wastes that also are hazardous 
for purposes of the subtitle C regulations (see 40 CFR 261.1(b)(1)). 
Section 129 of the CAA also specifically excludes subtitle C combustion 
units from coverage under that section.
    Section 7003 of the RCRA gives the EPA the authority to compel 
actions to abate conditions that may present an ``imminent and 
substantial endangerment'' involving both solid and hazardous wastes. 
The EPA uses this authority on a case-by-case basis. The Agency can 
determine in a specific factual context whether a NHSM causes an 
imminent and substantial endangerment to human health and the 
environment. Also, RCRA sections 3007 and 3008 establish the EPA's 
inspection and federal enforcement authority to address violations of 
the subtitle C hazardous waste regulations. Nothing in this rule shall 
impact the EPA's ability to act pursuant to RCRA sections 3007, 3008 
and 7003. The rule also does not limit or otherwise affect the EPA's 
ability to pursue potentially responsible persons under section 107 of 
CERCLA for releases or threatened releases of hazardous substances.

G. State Authority

1. Relationship to State Programs
    This proposal does not change the relationship to state programs as 
described in the 2011 NHSM final rule. Refer to section IX of the 2011 
NHSM final rule (76 FR 15546) for the discussion on state authority 
including: ``Applicability of State Solid Waste Definitions and 
Beneficial Use Determinations'' and ``Clarifications on the 
Relationship to State Programs.'' The Agency, however, would like to 
reiterate a few points.
    Section 129 of the CAA states that the term ``solid waste'' shall 
have the meaning ``established by the Administrator pursuant to 
[RCRA].'' Consequently, the EPA issued the final NHSM rule to provide a 
definition of ``solid waste'' under RCRA in order to determine which 
NHSMs would be subject to the emissions standards under sections 112 
and 129 of the CAA. In short, if a NHSM is not a ``solid waste'' under 
RCRA, and is burned in a combustion unit, then the combustion unit that 
burns the material would be subject to the applicable CAA section 112 
requirements. On the other hand, if the NHSM is considered a ``solid 
waste,'' then the combustion unit that burns the material would be 
subject to the applicable CAA 129 requirements, even if energy or 
material recovery also occurs. The part 241 waste determination only 
applies to those NHSMs that are combusted and does not address other 
uses.
    This proposed rule (like the March 2011 final rule) is not intended 
to interfere with a state's program authority over the general 
management of waste. For a further discussion on the relationship to 
state authority, see the discussion in the preamble to the 2011 NHSM 
final rule at 76 FR 15546.
2. State Adoption of the Rulemaking
    No federal approval procedures for state adoption of today's 
proposed rule are included in this rulemaking action under RCRA 
subtitle D. Although the EPA does promulgate criteria for solid waste 
landfills and approves state MSW landfill permitting programs, RCRA 
does not provide the EPA with authority to approve state programs 
beyond MSW landfill permitting programs. While states are not required 
to adopt regulations promulgated under RCRA

[[Page 80487]]

subtitle D, some states incorporate federal regulations by reference or 
have specific state statutory requirements that their state program can 
be no more stringent than the federal regulations. In those cases, the 
EPA anticipates that, if required by state law, the changes being 
proposed today, if finalized, will be incorporated (or possibly adopted 
by authorized state air programs) consistent with the state's laws and 
administrative procedures.

H. Cost and Benefits of the Proposed Rule

    The RCRA aspects of this proposed 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 current 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 proposal. Consequently, any potential costs or 
benefits, including impacts to small entities, indirectly associated 
with the RCRA aspects of this proposal are addressed in the 
corresponding impacts assessment prepared in support of the CISWI part 
of this action.

III. 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 Executive 
Order 13563 (76 FR 3821, January 21, 2011). Any changes made in 
response to OMB recommendations have been documented in the docket for 
this action.

B. Paperwork Reduction Act

    This proposed rule does not impose any new information collection 
burden. However, OMB has previously approved the information collection 
requirements contained in the existing CISWI and NHSM \62\ regulations 
(40 CFR part 60, subparts CCCC and DDDD, and 40 CFR part 241) under the 
provisions of the PRA, 44 U.S.C. 3501, et seq., and has been assigned 
EPA ICR number 2384.03 for subpart CCCC, 40 CFR part 60, EPA ICR number 
2385.03 for subpart DDDD, 40 CFR part 60, and EPA ICR number 2382.03 
for 40 CFR part 241.
---------------------------------------------------------------------------

    \62\ Identification of Non-Hazardous Secondary Materials That 
Are Solid Waste, Final Rule. March 11, 2011.
---------------------------------------------------------------------------

    This action is believed to result in no changes to the information 
collection requirements of the final NHSM rule and will have no impact 
on the 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.

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 significant economic 
impact on a substantial number of small entities. Small entities 
include small businesses, small organizations and small governmental 
jurisdictions.
    For purposes of assessing the impacts of the 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 this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed 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 significant economic impact on a substantial number of 
small entities. In this proposed action, there are three fewer small 
entities in the CISWI than in the March 2011 final CISWI rule, as 
discussed in the ``Economic Impact Analysis: Reconsideration Proposal 
Inputs Comparison'' memorandum in the CISWI docket. We continue to be 
interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This proposed rule 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 proposes 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 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 action is 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 proposed 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.
    In the spirit of Executive Order 13132 and consistent with the EPA 
policy to promote communications between the EPA and state and local 
governments, the EPA specifically solicited comment on the proposed 
CISWI and NHSM regulations from state and local officials.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175, (65 FR 67249; November 9, 2000). 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

[[Page 80488]]

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. Thus, Executive Order 13175 does not apply to this 
action.
    The EPA specifically solicits additional comment on this proposed 
action from tribal officials.

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 
proposed rule 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 a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to result in a significant adverse effect on the supply, 
distribution, or use of energy. The EPA estimates that the requirements 
in this rule would cause most CISWI in the ERU and waste-burning kiln 
subcategories to modify existing air pollution control devices (e.g., 
increase the horsepower of their wet scrubbers) or install and operate 
new control devices, resulting in approximately 242,283 MW-hours per 
year of additional electricity being used.
    Given the negligible change in energy consumption expected to 
result from this rule, the EPA does not expect any significant price 
increase for any energy type. The cost of energy distribution should 
not be affected by this rule at all since the rule would not affect 
energy distribution facilities. We also expect that any impacts on the 
import of foreign energy supplies, or any other adverse outcomes that 
may occur with regards to energy supplies, would not be significant. 
We, therefore, conclude that if there were to be any adverse energy 
effects associated with this rule, they would be minimal.

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 proposed rulemaking 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 for this 
proposal.

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 proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income 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 proposed 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.

List of Subjects

40 CFR Part 60

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

40 CFR Part 241

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

    Dated: December 2, 2011.
Lisa P. Jackson,
Administrator.
    For the reasons stated in the preamble, Title 40, chapter I, of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 60--[AMENDED]

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

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

    2. Section 60.17 is amended by:
    a. Adding paragraph (a)(93).
    b. Revising paragraph (h)(4).
    c. Adding paragraph (o).


Sec.  60.17  Incorporations by reference.

* * * * *
    (a) * * *
    (93) ASTM D6784-02 (Reapproved 2008) Standard Test Method for 
Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas 
Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), 
approved April 1, 2008, IBR approved for Sec. Sec.  60.2165(j), 
60.2730(j), tables 1, 5, 6 and 8 to subpart CCCC, and tables 2, 6, 7, 
and 9 to subpart DDDD, Sec. Sec.  60.4900(b)(4)(v), 60.5220(b)(4)(v), 
tables 1 and 2 to subpart LLLL, and tables 2 and 3 to subpart MMMM.
* * * * *
    (h) * * *
    (4) ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analyses [Part 
10, Instruments and Apparatus], IBR approved for Sec.  60.56c(b)(4), 
Sec.  60.63(f)(2) and (f)(4), Sec.  60.106(e)(2), Sec. Sec.  
60.104a(d)(3), (d)(5), (d)(6), (h)(3), (h)(4), (h)(5), (i)(3), (i)(4), 
(i)(5), (j)(3), and (j)(4), Sec.  60.105a(d)(4), (f)(2), (f)(4), 
(g)(2), and (g)(4), Sec.  60.106a(a)(1)(iii), (a)(2)(iii), (a)(2)(v), 
(a)(2)(viii), (a)(3)(ii), and (a)(3)(v), and Sec.  60.107a(a)(1)(ii), 
(a)(1)(iv), (a)(2)(ii), (c)(2), (c)(4), and (d)(2), tables 1 and 3 of 
subpart EEEE, tables 2 and 4 of subpart FFFF, table 2 of subpart JJJJ, 
Sec. Sec.  60.4415(a)(2) and (a)(3), 60.2145(s)(1)(i) and (ii), 
60.2145(t)(1)(ii), 60.2145(t)(5)(i), 60.2710(s)(1)(i) and (ii), 
60.2710(t)(1)(ii), 60.2710(t)(5)(i), 60.2710(w)(3), 60.2730(q)(3), 
60.4900(b)(4)(vii) and (viii), 60.4900(b)(5)(i), 60.5220(b)(4)(vii) and 
(viii), 60.5220(b)(5)(i), tables 1 and 2 to subpart LLLL, and tables 2 
and 3 to subpart MMMM.
* * * * *

[[Page 80489]]

    (o) The following material is available from the U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460, 
(202) 272-0167, http://www.epa.gov.
    (1) Office of Air Quality Planning and Standards (OAQPS) Fabric 
Filter Bag Leak Detection Guidance, EPA-454/R-98-015, September 1997, 
IBR approved for Sec. Sec.  60.2145(r)(2), 60.2710(r)(2), 
60.4905(b)(3)(i)(B), and 60.5225(b)(3)(i)(B).
    (2) [Reserved]
    3. Revise the heading for subpart CCCC to read as follows:

Subpart CCCC--Standards of Performance for Commercial and 
Industrial Solid Waste Incineration Units

* * * * *
    4. Section 60.2005 is revised to read as follows:


Sec.  60.2005  When does this subpart become effective?

    This subpart takes effect on [DATE 6 MONTHS AFTER PUBLICATION OF 
THE FINAL RULE IN THE FEDERAL REGISTER]. 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.
    5. Section 60.2015 is revised to read as follows:


Sec.  60.2015  What is a new incineration unit?

    (a) A new incineration unit is an incineration unit that meets any 
of the criteria specified in paragraph (a)(1) through (a)(2) of this 
section.
    (1) A CISWI unit that commenced construction after [DATE OF 60 DAYS 
AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
    (2) A CISWI unit that commenced reconstruction or modification 
after [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL 
REGISTER].
    (b) This subpart does not affect your CISWI unit if you make 
physical or operational changes to your incineration unit 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.
    6. Section 60.2020 is amended by:
    a. Revising the introductory text.
    b. Removing and reserving paragraph (b).
    c. Revising paragraph (c).
    d. Revising paragraphs (e)(3), (f)(3), (g), (m), and (n).
    e. Removing and reserving paragraphs (j), (k), and (l).
    f. Removing paragraph (o).


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

    This subpart exempts the types of units described in paragraphs 
(a), (c) through (i), and (n) of this section, but some units are 
required to provide notifications. Air curtain incinerators are exempt 
from the requirements in this subpart except for the provisions in 
Sec. Sec.  60.2242, 60.2250, and 60.2260.
* * * * *
    (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); 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 a request to the Administrator for a determination 
that the qualifying cogeneration facility is combusting homogenous 
waste as that term is defined in Sec.  60.2265. The request must 
include information sufficient to document that the unit meets the 
criteria of the definition of a small power production facility and 
that the waste material the unit is proposed to burn is homogeneous.
* * * * *
    (f) * * *
    (3) You submit a request to the Administrator for a determination 
that the qualifying cogeneration facility is combusting homogenous 
waste as that term is defined in Sec.  60.2265. The request must 
include information sufficient to document that the unit meets the 
criteria of the definition of a cogeneration facility and that the 
waste material the unit is combusting is homogeneous.
    (g) Hazardous waste combustion units. Units for which you are 
required to get a permit under section 3005 of the Solid Waste Disposal 
Act.
* * * * *
    (m) Sewage treatment plants. Incineration units regulated under 
subpart O of this part (Standards of Performance for Sewage Treatment 
Plants).
    (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).


Sec.  60.2025  [Removed]

    7. Section 60.2025 is removed.
    8. Section 60.2030 is amended by:
    a. Revising paragraph (c) introductory text.
    b. Removing and reserving paragraph (c)(5).
    c. Adding paragraphs (c)(8) through (c)(10).


Sec.  60.2030  Who implements and enforces this subpart?

* * * * *
    (c) The authorities that will not be delegated to state, local, or 
tribal agencies are specified in paragraphs (c)(1) through (4) and 
(c)(6) through (10) of this section.
* * * * *
    (8) Approval of alternative opacity emission limits in Sec.  
60.2105 under Sec.  60.11(e)(6) through (8).
    (9) Performance test and data reduction waivers under Sec.  
60.2125(j), 60.8(b)(4) and (5).
    (10) Determination of whether a qualifying small power production 
facility or cogeneration facility under Sec.  60.2020(e) or (f) is 
combusting homogenous waste as that term is defined in Sec.  60.2265.
    9. Section 60.2045 is revised to read as follows:


Sec.  60.2030  Who implements and enforces this subpart?

    (a) You must prepare a siting analysis if you plan to commence 
construction of an incinerator after December 1, 2000.
    (b) You must prepare a siting analysis for CISWI units that 
commenced construction after June 4, 2010, or that commenced 
reconstruction or modification after [DATE 6 MONTHS AFTER PUBLICATION 
OF THE FINAL RULE IN THE FEDERAL REGISTER].
    (c) You must prepare a siting analysis if you are required to 
submit an initial application for a construction permit under 40 CFR 
part 51, subpart I, or 40 CFR part 52, as applicable, for the 
reconstruction or modification of your CISWI unit.
    10. Section 60.2070 is amended by revising paragraph (c)(1)(vii) to 
read as follows:

[[Page 80490]]

Sec.  60.2070  What are the operator training and qualification 
requirements?

* * * * *
    (c) * * *
    (1) * * *
    (vii) Actions to prevent and correct malfunctions or to prevent 
conditions that may lead to malfunctions.
* * * * *
    11. Section 60.2085 is amended by revising paragraph (d) to read as 
follows:


Sec.  60.2085  How do I maintain my operator qualification?

* * * * *
    (d) Prevention and correction of malfunctions or conditions that 
may lead to malfunction.
* * * * *
    12. Section 60.2105 is revised to read as follows:


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

    (a) You must meet the emission limitations for each CISWI unit, 
including bypass stack or vent, specified in table 1 of this subpart or 
tables 5 through 8 of this subpart by the applicable date in Sec.  
60.2140. You must be in compliance with the emission limitations of 
this subpart that apply to you at all times.
    (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 [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL 
REGISTER] must meet the more stringent emission limit for the 
respective pollutant in table 1 of this subpart or table 6 of subpart 
DDDD.
    13. Section 60.2110 is amended by:
    a. Revising paragraph (a) introductory text.
    b. Revising paragraphs (a)(2) through (4).
    c. Adding paragraphs (d) through (g).


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

    (a) If you use a wet scrubber(s) to comply with the emission 
limitations, you must establish operating limits for up to four 
operating parameters (as specified in table 2 of this subpart) as 
described in paragraphs (a)(1) through (4) of this section during the 
initial performance test.
* * * * *
    (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 fan for 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.
    (3) Minimum scrubber liquid flow rate, which is calculated as the 
lowest 1-hour average liquid flow rate at the inlet to the wet acid gas 
or particulate matter scrubber measured during the most recent 
performance test demonstrating compliance with all applicable emission 
limitations.
    (4) Minimum scrubber liquor pH, which is calculated as the lowest 
1-hour average liquor pH at the inlet to the wet acid gas scrubber 
measured during the most recent performance test demonstrating 
compliance with the hydrogen chloride emission limitation.
* * * * *
    (d) If you use an electrostatic precipitator to comply with the 
emission limitations, you must measure the (secondary) voltage and 
amperage of the electrostatic precipitator collection plates during the 
particulate matter performance test. Calculate the average electric 
power value (secondary voltage x secondary current = secondary electric 
power) for each test run. The operating limit for the electrostatic 
precipitator is calculated as the lowest 1-hour average secondary 
electric power 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.
    (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 
lowest 1-hour average charge rate, secondary chamber temperature, and 
reagent flow rate measured during the most recent performance test 
demonstrating compliance with the nitrogen oxides emission limitations.
    (g) 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).
    14. Section 60.2115 is revised to read as follows:


Sec.  60.2115  What if I do not use a wet scrubber, fabric filter, 
activated carbon injection, selective noncatalytic reduction, or an 
electrostatic precipitator 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, or an electrostatic precipitator 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 established during 
the initial performance test and continuously monitored thereafter. You 
must not conduct the initial performance test until after the petition 
has been approved by the Administrator. Your petition must include the 
five items listed in paragraphs (a) through (e) of this section.
    (a) Identification of the specific parameters you propose to use as 
additional operating limits.
    (b) A discussion of the relationship between these parameters and 
emissions of regulated pollutants, identifying how emissions of 
regulated pollutants change with changes in these parameters and how 
limits on these parameters will serve to limit emissions of regulated 
pollutants.
    (c) A discussion of how you will establish the upper and/or lower 
values for these parameters which will establish the operating limits 
on these parameters.
    (d) A discussion identifying the methods you will use to measure 
and the instruments you will use to monitor these parameters, as well 
as the relative accuracy and precision of these methods and 
instruments.
    (e) A discussion identifying the frequency and methods for 
recalibrating the instruments you will use for monitoring these 
parameters.
    15. Section 60.2120 is revised to read as follows:

[[Page 80491]]

Sec.  60.2120  Affirmative Defense for Exceedance of an Emission Limit 
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 exceedances of such standards that are 
caused by malfunction, as defined at 40 CFR 60.2. Appropriate penalties 
may be assessed, however, 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) To establish the affirmative defense in any action to enforce 
such a limit, you must timely meet the notification requirements in 
paragraph (b) of this section, and must prove by a preponderance of 
evidence that:
    (1) The excess emissions:
    (i) Were caused by a sudden, infrequent, and unavoidable failure of 
air pollution control and monitoring 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) Were not part of a recurring pattern indicative of inadequate 
design, operation, or maintenance; and
    (2) Repairs were made as expeditiously as possible when the 
applicable emission limitations were being exceeded. Off-shift and 
overtime labor were used, to the extent practicable to make these 
repairs; and
    (3) The frequency, amount and duration of the excess emissions 
(including any bypass) were minimized to the maximum extent practicable 
during periods of such emissions; and
    (4) If the excess emissions 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 
excess emissions on ambient air quality, the environment and human 
health; and
    (6) All emissions and/or parameter monitoring and systems, as well 
as 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 excess emissions were 
documented by properly signed, contemporaneous operating logs; and
    (8) At all times, the facility 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 excess emissions resulting from the malfunction 
event at issue. The analysis shall also specify, using best monitoring 
methods and engineering judgment, the amount of excess emissions that 
were the result of the malfunction.
    (b) Notification. The owner or operator of the facility 
experiencing an exceedance of its emission limit(s) during a 
malfunction shall notify the Administrator by telephone or facsimile 
(FAX) transmission as soon as possible, but no later than two business 
days after the initial occurrence of the malfunction, if it wishes to 
avail itself of an affirmative defense to civil penalties for that 
malfunction. The owner or operator seeking to assert an affirmative 
defense shall also submit a written report to the Administrator within 
45 days of the initial occurrence of the exceedance of the standard in 
Sec.  60.2105 to demonstrate, with all necessary supporting 
documentation, that it has met the requirements set forth in paragraph 
(a) of this section. The owner or operator may seek an extension of 
this deadline for up to 30 additional days by submitting a written 
request to the Administrator before the expiration of the 45 day 
period. Until a request for an extension has been approved by the 
Administrator, the owner or operator is subject to the requirement to 
submit such report within 45 days of the initial occurrence of the 
exceedance.
    16. Section 60.2125 is amended by:
    a. Revising paragraph (c).
    b. Revising paragraphs (g)(1) and (2).
    c. Adding paragraphs (h) and (i) to read as follows:


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

* * * * *
    (c) All performance tests must be conducted using the minimum run 
duration specified in table 1 of this subpart or tables 5 through 8 of 
this subpart.
* * * * *
    (g) * * *
    (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) For each dioxin/furan (tetra-through octa-chlorinated) isomer 
measured in accordance with paragraph (g)(1) of this section, multiply 
the isomer concentration by its corresponding toxic equivalency factor 
specified in table 3 of this subpart.
* * * * *
    (h) Method 22 at 40 CFR part 60, appendix A-7 of this part must be 
used to determine compliance with the fugitive ash emission limit in 
table 1 of this subpart or tables 5 through 8 of this subpart.
    (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.
    17. Section 60.2130 is revised to read as follows:


Sec.  60.2130  How are the performance test data used?

    You use results of performance tests to demonstrate compliance with 
the emission limitations in table 1 of this subpart or tables 5 through 
8 of this subpart.
    18. Section 60.2135 is revised to read as follows:


Sec.  60.2135  How do I demonstrate initial compliance with the 
emission limitations and establish the operating limits?

    You must conduct a performance test, as required under Sec. Sec.  
60.2125 and 60.2105 to determine compliance with the emission 
limitations in table 1 of this subpart or tables 5 through 8 of this 
subpart, to establish compliance with any opacity operating limit in 
Sec.  60.2110, and to establish operating limits using the procedures 
in Sec. Sec.  60.2110 or 60.2115. The 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. 
The use of the bypass stack during a performance test shall invalidate 
the performance test. You must conduct a performance evaluation of each 
continuous monitoring system within 60 days of installation of the 
monitoring system.
    19. Section 60.2140 is revised to read as follows:


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

    (a) The initial performance test must be conducted within 60 days 
after your CISWI unit reaches the charge rate at which it will operate, 
but no later than 180 days after its initial startup.
    (b) If you commence or recommence combusting a solid waste at an 
existing

[[Page 80492]]

combustion unit at any commercial or industrial facility, and you 
conducted a test consistent with the provisions of this subpart while 
combusting the solid waste within the 6 months preceding the 
reintroduction of that solid waste in the combustion chamber, you do 
not need to retest until 6 months from the date you reintroduce that 
solid waste.
    (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 given solid waste 
within the 6 months preceding 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.
    20. Section 60.2141 is added to read as follows:


Sec.  60.2141  By what date must I conduct the initial air pollution 
control device inspection?

    (a) The initial air pollution control device inspection must be 
conducted within 60 days after installation of the control device and 
the associated CISWI unit reaches the charge rate at which it will 
operate, but no later than 180 days after the device's initial startup.
    (b) Within 10 operating days following an air pollution control 
device inspection, all necessary repairs must be completed unless the 
owner or operator obtains written approval from the state agency 
establishing a date whereby all necessary repairs of the designated 
facility must be completed.
    21. Section 60.2145 is revised to read as follows:


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

    (a) Compliance with standards.
    (1) The emission standards and operating requirements set forth in 
this subpart apply at all times.
    (2) If you cease combusting solid waste, you may opt to remain 
subject to the provisions of this subpart. Consistent with the 
definition of CISWI unit, you are subject to the requirements of this 
subpart at least 6 months following the last date of solid waste 
combustion. Solid waste combustion is ceased when solid waste is not in 
the combustion chamber (i.e., the solid waste feed to the combustor has 
been cut off for a period of time not less than the solid waste 
residence time).
    (3) If you cease combusting solid waste, you must be in compliance 
with any newly applicable standards on the effective date of the waste-
to-fuel switch. The effective date of the waste-to-fuel switch is a 
date selected by you, that must be at least 6 months from the date that 
you ceased combusting solid waste, consistent with Sec.  60.2145(a)(2). 
Your source must remain in compliance with this subpart until the 
effective date of the waste-to-fuel switch.
    (4) If you own or operate an existing commercial or industrial 
combustion unit that combusted a fuel or non-waste material, and you 
commence or recommence combustion of solid waste, you are subject to 
the provisions of this subpart as of the first day you introduce or 
reintroduce solid waste to the combustion chamber, and this date 
constitutes the effective date of the fuel-to-waste switch. You must 
complete all initial compliance demonstrations for any section 112 
standards that are applicable to your facility before you commence or 
recommence combustion of solid waste. You must provide 30 days prior 
notice of the effective date of the waste-to-fuel switch. The 
notification must identify:
    (i) The name of the owner or operator of the CISWI unit, the 
location of the source, the emissions unit(s) that will cease burning 
solid waste, and the date of the notice;
    (ii) The currently applicable subcategory under this subpart, and 
any 40 CFR part 63 subpart and subcategory that will be applicable 
after you cease combusting solid waste;
    (iii) The fuel(s), non-waste material(s) and solid waste(s) the 
CISWI unit is currently combusting and has combusted over the past 6 
months, and the fuel(s) or non-waste materials the unit will commence 
combusting;
    (iv) The date on which you became subject to the currently 
applicable emission limits;
    (v) The date upon which you will cease combusting solid waste, and 
the date (if different) that you intend for any new requirements to 
become applicable (i.e., the effective date of the waste-to-fuel 
switch), consistent with (2) and (3)) above.
    (5) All air pollution control equipment necessary for compliance 
with any newly applicable emissions limits 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.
    (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. 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. 
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 energy recovery units) and 
operating limits during the performance test.
    (e) For energy recovery units, incinerators, and small remote 
units, you must perform an annual visual emissions test for ash 
handling.
    (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 CEMS or continuous parameter 
monitoring system are used) and the pollutants listed in table 6 of 
this subpart.

[[Page 80493]]

    (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) For waste-burning kilns, demonstrate continuous compliance with 
the particulate matter emissions limit using a particulate matter CEMS 
according to the procedures in Sec.  60.2165(n). Energy recovery units 
with design heat input capacities 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.
    (i) For energy recovery units with design heat input capacities 
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. You must determine compliance with nitrogen oxides, 
sulfur dioxide, carbon monoxide, and particulate matter using CEMS. 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.
    (2) Owners or operators using a mercury CEMS must install, operate, 
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 
while the raw mill of the in-line kiln/raw mill is not operating.
    (k) If you use an air pollution control device to meet the emission 
limitations in this subpart, you must conduct an initial and annual 
inspection of the air pollution control device. The inspection must 
include, at a minimum, the following:
    (1) Inspect air pollution control device(s) for proper operation.
    (2) Develop a site-specific monitoring plan according to the 
requirements in paragraph (l) of this section. This requirement also 
applies to you if you petition the EPA Administrator for alternative 
monitoring parameters under Sec.  60.13(i).
    (l) For each continuous monitoring system 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.
    (1) You must submit this site-specific monitoring plan at least 60 
days before your initial performance evaluation of your continuous 
monitoring system.
    (i) Installation of the continuous monitoring system sampling probe 
or other interface at a measurement location relative to each affected 
process unit such that the measurement is representative of control of 
the exhaust emissions (e.g., on or downstream of the last control 
device).
    (ii) Performance and equipment specifications for the sample 
interface, the pollutant concentration or parametric signal analyzer 
and the data collection and reduction systems.
    (iii) Performance evaluation procedures and acceptance criteria 
(e.g., calibrations).
    (iv) Ongoing operation and maintenance procedures in accordance 
with the general requirements of Sec.  60.11(d).
    (v) Ongoing data quality assurance procedures in accordance with 
the general requirements of Sec.  60.13.
    (vi) Ongoing recordkeeping and reporting procedures in accordance 
with the general requirements of Sec.  60.7(b), (c) introductory text, 
(c)(1), (c)(4), (d), (e), (f), and (g).
    (2) You must conduct a performance evaluation of each continuous 
monitoring system in accordance with your site-specific monitoring 
plan.
    (3) You must operate and maintain the continuous monitoring system 
in continuous operation according to the site-specific monitoring plan.
    (m) If you have an operating limit that requires the use of a flow 
monitoring system, you must meet the requirements in paragraphs (l) and 
(m)(1) through (4) of this section.
    (1) Install the flow sensor and other necessary equipment in a 
position that provides a representative flow.
    (2) Use a flow sensor with a measurement sensitivity of no greater 
than 2 percent of the expected process flow rate.
    (3) Minimize the effects of swirling flow or abnormal velocity 
distributions due to upstream and downstream disturbances.
    (4) Conduct a flow monitoring system performance evaluation in 
accordance with your monitoring plan at the time of each performance 
test but no less frequently than annually.
    (n) If you have an operating limit that requires the use of a 
pressure monitoring system, you must meet the requirements in 
paragraphs (l) and (n)(1) through (6) of this section.
    (1) Install the pressure sensor(s) in a position that provides a 
representative measurement of the pressure (e.g., PM scrubber pressure 
drop).
    (2) Minimize or eliminate pulsating pressure, vibration, and 
internal and external corrosion.
    (3) Use a pressure sensor with a minimum tolerance of 1.27 
centimeters of water or a minimum tolerance of 1 percent of the 
pressure monitoring system operating range, whichever is less.
    (4) Perform checks at least once each process operating day to 
ensure pressure measurements are not obstructed (e.g., check for 
pressure tap pluggage daily).
    (5) Conduct a performance evaluation of the pressure monitoring 
system in

[[Page 80494]]

accordance with your monitoring plan at the time of each performance 
test but no less frequently than annually.
    (6) If at any time the measured pressure exceeds the manufacturer's 
specified maximum operating pressure range, conduct a performance 
evaluation of the pressure monitoring system in accordance with your 
monitoring plan and confirm that the pressure monitoring system 
continues to meet the performance requirements in your monitoring plan. 
Alternatively, install and verify the operation of a new pressure 
sensor.
    (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.
    (p) If you have an operating limit that requires a secondary 
electric power monitoring system for an electrostatic precipitator, you 
must meet the requirements in paragraphs (l) and (p)(1) and (2) of this 
section.
    (1) Install sensors to measure (secondary) voltage and current to 
the precipitator collection plates.
    (2) Conduct a performance evaluation of the electric power 
monitoring system in accordance with your monitoring plan at the time 
of each performance test but no less frequently than annually.
    (q) If you have an operating limit that requires the use of a 
monitoring system to measure sorbent injection rate (e.g., weigh belt, 
weigh hopper, or hopper flow measurement device), you must meet the 
requirements in paragraphs (l) and (q)(1) and (2) of this section.
    (1) Install the system in a position(s) that provides a 
representative measurement of the total sorbent injection rate.
    (2) Conduct a performance evaluation of the sorbent injection rate 
monitoring system in accordance with your monitoring plan at the time 
of each performance test but no less frequently than annually.
    (r) If you elect to use a fabric filter bag leak detection system 
to comply with the requirements of this subpart, you must install, 
calibrate, maintain, and continuously operate a bag leak detection 
system as specified in paragraphs (l) and (r)(1) through (5) of this 
section.
    (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.
    (2) Use a bag leak detection system certified by the manufacturer 
to be capable of detecting particulate matter emissions at 
concentrations of 10 milligrams per actual cubic meter or less.
    (3) Conduct a performance evaluation of the bag leak detection 
system in accordance with your monitoring plan and consistent with the 
guidance provided in EPA-454/R-98-015 (incorporated by reference, see 
Sec.  60.17).
    (4) Use a bag leak detection system equipped with a device to 
continuously record the output signal from the sensor.
    (5) Use a bag leak detection system equipped with a system that 
will sound an alarm when an increase in relative particulate matter 
emissions over a preset level is detected. The alarm must be located 
where it is observed readily by plant operating personnel.
    (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 and calculating a 30-day rolling 
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 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 continuous emissions monitors 
and the test methods specified in paragraphs (s)(1)(i) and (ii) of this 
section.
    (i) For sulfur dioxide, EPA Reference Method 6 or 6C, or as an 
alternative ANSI/ASME PTC 19.10-1981 (incorporated by reference, see 
Sec.  60.17) 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), must be used.
    (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.
    (3) Conduct accuracy determinations quarterly and calibration drift 
tests daily in accordance with procedure 1 in appendix F of this part.
    (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 and calculating a 
30-day rolling 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 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.
    (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 
at 40 CFR part 60, appendix A-3, or as an alternative ANSI/ASME PTC 19-
10.1981 (incorporated by reference, see Sec.  60.17), as applicable, 
must be used.

[[Page 80495]]

    (2) The span value of the CEMS must be 125 percent of the maximum 
estimated hourly potential nitrogen oxide emissions of the unit.
    (3) Conduct accuracy determinations quarterly and calibration drift 
tests daily in accordance with procedure 1 in appendix F of this part.
    (4) The owner or operator of an affected facility may request that 
compliance with the nitrogen oxides emission limit be determined using 
carbon dioxide measurements corrected to an equivalent of 7 percent 
oxygen. If carbon dioxide is selected for use in diluent corrections, 
the relationship between oxygen and carbon dioxide levels must be 
established during the initial performance test according to the 
procedures and methods specified in paragraphs (t)(4)(i) through 
(t)(4)(iv) of this section. This relationship may be re-established 
during performance compliance tests.
    (i) The fuel factor equation in Method 3B must be used to determine 
the relationship between oxygen and carbon dioxide at a sampling 
location. 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 to determine the oxygen concentration at the same location as 
the carbon dioxide monitor.
    (ii) Samples must be taken for at least 30 minutes in each hour.
    (iii) Each sample must represent a 1-hour average.
    (iv) A minimum of three runs must be performed.
    (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, 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 all CEMS in accordance with the applicable procedures 
under appendices B and F of this part.
    (v) Use of the bypass stack at any time is an emissions standards 
deviation for particulate matter, HCl, Pb, Cd, Hg, NOX, 
SO2, and dioxin/furans.
    (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.  60.2265 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 with the oxygen level 
set at the minimum percent oxygen by volume that is established as the 
operating limit for oxygen according to paragraph (w)(3) of this 
section.
    (3) You must maintain the oxygen level such that it 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 design heat input capacities 
greater than or equal to 250 MMBtu/hour, you must install, certify, 
maintain, and operate a PM CPMS monitoring emissions discharged to the 
atmosphere and record the output of the system as specified in 
paragraphs (x)(1) through (5) of this section. For other energy 
recovery units, you may elect to use PM CPMS operated in accordance 
with this section in lieu of using other CMS for monitoring PM 
compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber 
pressure).
    (1) Install, certify, 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, or beta 
attenuation of the exhaust gas or representative exhaust gas sample. 
The reportable measurement output from the PM CPMS may be expressed as 
milliamps, stack concentration, or other raw data signal.
    (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.
    (3) Collect PM CPMS hourly average output data for all energy 
recovery unit operating hours. Express the PM CPMS output as millamps, 
PM concentration, or other raw data signal value.
    (4) Calculate the arithmetic 30-day rolling average of all of the 
hourly average PM CPMS output collected during all energy recovery unit 
operating hours data (e.g., milliamps, PM concentration, raw data 
signal).
    22. Section 60.2150 is revised to read as follows:


Sec.  60.2150  By what date must I conduct the annual performance test?

    You must conduct annual performance tests between 11 and 13 months 
of the previous performance test.
    23. Section 60.2151 is added to read as follows:


Sec.  60.2151  By what date must I conduct the annual air pollution 
control device inspection?

    On an annual basis (no more than 12 months following the previous 
annual air pollution control device inspection), you must complete the 
air pollution control device inspection as described in Sec.  60.2141.
    24. Section 60.2155 is revised to read as follows:


Sec.  60.2155  May I conduct performance testing less often?

    (a) You must conduct annual performance tests according to the 
schedule specified in Sec.  60.2150, with the following exceptions:
    (1) You may conduct a repeat performance test at any time to 
establish new values for the operating limits to apply from that point 
forward, as specified in Sec.  60.2160. The Administrator may request a 
repeat performance test at any time.
    (2) You must repeat the performance test within 60 days of a 
process change, as defined in Sec.  60.2265.
    (3) If the initial or any subsequent performance test for any 
pollutant in table 1 or tables 5 through 8 of this subpart, as 
applicable, demonstrates that the emission level for the pollutant is 
no greater than the emission level specified in paragraph (a)(3)(i) or 
(ii) of this section, as applicable, and you are not required to 
conduct a performance test for the pollutant in response to a request 
by the Administrator in paragraph (a)(1) of this section or a process 
change in paragraph (a)(2) of this section, you may elect to skip 
conducting a performance test for the pollutant for the next 2 years. 
You must conduct a performance test for the pollutant during the third 
year and no more than 37 months following the previous performance test 
for the pollutant. For cadmium and lead, both cadmium and lead must be 
emitted at emission levels no greater than their respective emission 
levels specified in paragraph (a)(3)(i) of this section for you to 
qualify for less frequent testing under this paragraph.
    (i) For particulate matter, hydrogen chloride, mercury, nitrogen 
oxides, sulfur dioxide, cadmium, lead and

[[Page 80496]]

dioxins/furans, the emission level equal to 75 percent of the 
applicable emission limit in table 1 or tables 5 through 8 of this 
subpart, as applicable, to this subpart.
    (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.
    (4) If you are conducting less frequent testing for a pollutant as 
provided in paragraph (a)(3) of this section and a subsequent 
performance test for the pollutant indicates that your CISWI unit does 
not meet the emission level specified in paragraph (a)(3)(i) or (ii) of 
this section, as applicable, you must conduct annual performance tests 
for the pollutant according to the schedule specified in paragraph (a) 
of this section until you qualify for less frequent testing for the 
pollutant as specified in paragraph (a)(3) of this section.
    (b) [Reserved]
    25. Section 60.2165 is amended by:
    a. Revising paragraph (b)(6).
    b. Revising paragraph (c).
    c. Adding paragraphs (d) through (r).
    The revisions and additions read as follows:


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

* * * * *
    (b) * * *
    (6) The bag leak detection system must be equipped with an alarm 
system that will alert automatically an operator when an increase in 
relative particulate matter emissions over a preset level is detected. 
The alarm must be located where it is observed easily by plant 
operating personnel.
* * * * *
    (c) If you are using something other than a wet scrubber, activated 
carbon, selective non-catalytic reduction, or an electrostatic 
precipitator 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.
    (d) If you use activated carbon injection to comply with the 
emission limitations in this subpart, you must measure the minimum 
mercury sorbent flow rate once per hour.
    (e) If you use selective noncatalytic reduction to comply with the 
emission limitations, you must complete the following:
    (1) Following the date on which the initial performance test is 
completed or is required to be completed under Sec.  60.2125, whichever 
date comes first, ensure that the affected facility does not operate 
above the maximum charge rate, or below the minimum secondary chamber 
temperature (if applicable to your CISWI unit) or the minimum reagent 
flow rate measured as 3-hour block averages at all times.
    (2) Operation of the affected facility above the maximum charge 
rate, below the minimum secondary chamber temperature and below the 
minimum reagent flow rate simultaneously constitute a violation of the 
nitrogen oxides emissions limit.
    (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, 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, 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, and monitoring the 
minimum scrubber liquor pH.
    (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 
monitoring the minimum pressure drop across the wet scrubber, if 
applicable.
    (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).
    (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).
    (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.
    (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 (dry basis) and used to calculate the 30-day rolling 
average concentrations. The 1-hour arithmetic averages must be 
calculated using the data points required under Sec.  60.13(e)(2).

[[Page 80497]]

    (l) To demonstrate continuous compliance with the sulfur dioxide 
emissions limit, a facility may substitute use of a continuous 
automated sampling system for the sulfur dioxide annual performance 
test to demonstrate compliance with the sulfur dioxide emissions 
limits.
    (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 and daily geometric average emission 
percent reductions. 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 design heat input 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).
    (1) Install, operate, and maintain each continuous opacity 
monitoring system according to performance specification 1 of 40 CFR 
part 60, appendix B.
    (2) Conduct a performance evaluation of each continuous opacity 
monitoring system according to the requirements in Sec.  60.13 and 
according to PS-1 of 40 CFR part 60, appendix B.
    (3) As specified in Sec.  60.13(e)(1), each continuous opacity 
monitoring system must complete a minimum of one cycle of sampling and 
analyzing for each successive 10-second period and one cycle of data 
recording for each successive 6-minute period.
    (4) Reduce the continuous opacity monitoring system data as 
specified in Sec.  60.13(h)(1).
    (5) Determine and record all the 6-minute averages (and 1-hour 
block averages as applicable) collected.
    (n) For energy recovery units with design capacities greater than 
250 MMBtu/hr, in place of particulate matter testing with EPA Method 5 
at 40 CFR part 60, appendix A-3, an owner or operator may install, 
calibrate, maintain, and operate a CEMS for monitoring particulate 
matter emissions discharged to the atmosphere and record the output of 
the system. For waste-burning kilns, a CEMS for monitoring particulate 
matter emissions is required. 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 must install, calibrate, maintain and operate a CEMS and 
must comply with the requirements specified in paragraphs (n)(1) 
through (n)(14) of this section.
    (1) Notify the Administrator 1 month before starting use of the 
system.
    (2) Notify the Administrator 1 month before stopping use of the 
system.
    (3) The monitor must be installed, evaluated, and operated in 
accordance with the requirements of performance specification 11 of 
appendix B of this part and quality assurance requirements of procedure 
two of appendix F of this part and Sec.  60.13. Use Method 5 or Method 
5I of Appendix A of this part for the PM CEMS correlation testing.
    (4) The initial performance evaluation must be completed no later 
than 180 days after the date of initial startup of the affected 
facility, as specified under Sec.  60.2125 or within 180 days of 
notification to the Administrator of use of the continuous monitoring 
system if the owner or operator was previously determining compliance 
by Method 5 performance tests, whichever is later.
    (5) The owner or operator of an affected facility may request that 
compliance with the particulate matter emission limit be determined 
using carbon dioxide measurements corrected to an equivalent of 7 
percent oxygen. The relationship between oxygen and carbon dioxide 
levels for the affected facility must be established according to the 
procedures and methods specified in Sec.  60.2145(s)(5)(i) through 
(iv).
    (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 must be determined by using the CEMS specified in paragraph (n) 
of this section to measure particulate matter and calculating a 30-day 
rolling 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.
    (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.
    (8) At a minimum, valid continuous monitoring system hourly 
averages must be obtained as specified in Sec.  60.2170(e).
    (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. 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 
continuous emissions monitors and the following test methods.
    (i) For particulate matter, EPA Reference Method 5 must be used.
    (ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B, 
as applicable, must be used.
    (13) Quarterly accuracy determinations and daily calibration drift 
tests must be performed in accordance with procedure 2 in appendix F of 
this part.
    (14) When particulate matter emissions data are not obtained 
because of CEMS breakdowns, repairs, calibration checks, and zero and 
span adjustments, emissions data must be obtained by using other 
monitoring systems as approved by the Administrator or EPA Reference 
Method 19 at 40 CFR part 60, appendix A-7 to provide, as necessary, 
valid emissions data for a minimum of 85 percent of the hours per day, 
90 percent of the hours

[[Page 80498]]

per calendar quarter, and 95 percent of the hours per calendar year 
that the affected facility is operated and combusting waste.
    (o) To demonstrate continuous compliance with the carbon monoxide 
emissions limit, you may elect to use a continuous automated sampling 
system.
    (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).
    (p) The owner/operator of an affected source with a bypass stack 
shall install, calibrate (to manufacturers' specifications), maintain, 
and operate a device or method for measuring the use of the bypass 
stack including date, time and duration.
    (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 with the oxygen level 
set at the minimum percent oxygen by volume that is established as the 
operating limit for oxygen according to paragraph (q)(3) of this 
section.
    (3) You must maintain the oxygen level such that it 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 design heat input capacities 
greater than or equal to 250 MMBtu/hour, you must install, certify, 
maintain, and operate a PM CPMS monitoring emissions discharged to the 
atmosphere and record the output of the system as specified in 
paragraphs (r)(1) through (5) 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 in lieu of using other 
CMS for monitoring PM compliance (e.g., bag leak detectors, ESP 
secondary power, PM scrubber pressure)
    (1) Install, certify, 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, or beta 
attenuation of the exhaust gas or representative exhaust gas sample. 
The reportable measurement output from the PM CPMS may be expressed as 
milliamps, stack concentration, or other raw data signal.
    (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.
    (3) Collect PM CPMS hourly average output data for all energy 
recovery unit operating hours. Express the PM CPMS output as millamps, 
PM concentration, or other raw data signal value.
    (4) Calculate the arithmetic 30-day rolling average of all of the 
hourly average PM CPMS output collected during all energy recovery unit 
operating hours data (e.g., milliamps, PM concentration, raw data 
signal).
    26. Section 60.2170 is revised to read as follows:


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

    For each continuous monitoring system required or optionally 
allowed under Sec.  60.2165, you must collect data according to this 
section:
    (a) You must operate the monitoring system and collect data at all 
required intervals at all times compliance is required except for 
periods of monitoring system malfunctions or out-of-control periods, 
repairs associated with monitoring system malfunctions or out-of-
control periods (as specified in 60.2210(o) of this part), and required 
monitoring system quality assurance or quality control activities 
(including, as applicable, calibration checks and required zero and 
span adjustments). A monitoring system malfunction is any sudden, 
infrequent, not reasonably preventable failure of the monitoring system 
to provide valid data. Monitoring system failures that are caused in 
part by poor maintenance or careless operation are not malfunctions. 
You are required to effect monitoring system repairs in response to 
monitoring system malfunctions or out-of-control periods and to return 
the monitoring system to operation as expeditiously as practicable.
    (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.
    (c) Except for periods of monitoring system malfunctions or out-of-
control periods, repairs associated with monitoring system malfunctions 
or out-of-control periods, and required monitoring system quality 
assurance or quality control activities including, as applicable, 
calibration checks and required zero and span adjustments, failure to 
collect required data is a deviation of the monitoring requirements.
    27. Section 60.2175 is amended by:
    a. Revising the introductory text.
    b. Revising paragraphs (b)(5) and (e).
    c. Removing and reserving paragraphs (c) and (d).
    d. Adding paragraphs (o) through (v).


Sec.  60.2175  What records must I keep?

    You must maintain the items (as applicable) as specified in 
paragraphs (a), (b), and (e) through (u) of this section for a period 
of at least 5 years:
* * * * *

[[Page 80499]]

    (b) * * *
    (5) For affected CISWI units that establish operating limits for 
controls other than wet scrubbers under Sec.  60.2110(d) through (f) or 
Sec.  60.2115, you must maintain data collected for all operating 
parameters used to determine compliance with the operating limits.
* * * * *
    (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 (f) or Sec.  60.2115 with a description of the 
deviations, reasons for such deviations, and a description of 
corrective actions taken.
* * * * *
    (o) Maintain records of the annual air pollution control device 
inspections that are required for each CISWI unit subject to the 
emissions limits in table 1 of this subpart or tables 5 through 8 of 
this subpart, any required maintenance, and any repairs not completed 
within 10 days of an inspection or the timeframe established by the 
state regulatory agency.
    (p) For continuously monitored pollutants or parameters, you must 
document and keep a record of the following parameters measured using 
continuous monitoring systems.
    (1) All 6-minute average levels of opacity.
    (2) All 1-hour average concentrations of sulfur dioxide emissions.
    (3) All 1-hour average concentrations of nitrogen oxides emissions.
    (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.
    (6) All 1-hour average concentrations of mercury emissions.
    (7) All 1-hour average concentrations of hydrogen chloride 
emissions.
    (8) All 1-hour average percent oxygen concentrations.
    (9) All 1-hour average PM CPMS readings or particulate matter 
continuous emissions monitor outputs.
    (q) Records indicating use of the bypass stack, including dates, 
times, and durations.
    (r) If you choose to stack test less frequently than annually, 
consistent with Sec.  60.2155(a) through (c), you must keep annual 
records that document that your emissions in the previous stack test(s) 
were less than 75 percent of the applicable emission limit and document 
that there was no change in source operations including fuel 
composition and operation of air pollution control equipment that would 
cause emissions of the relevant pollutant to increase within the past 
year.
    (s) Records of the occurrence and duration of each malfunction of 
operation (i.e., process equipment) or the air pollution control and 
monitoring equipment.
    (t) Records of all required maintenance performed on the air 
pollution control and monitoring equipment.
    (u) Records of actions taken during periods of malfunction to 
minimize emissions in accordance with Sec.  60.11(d), including 
corrective actions to restore malfunctioning process and air pollution 
control and monitoring equipment to its normal or usual manner of 
operation.
    (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. 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 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.
    28. Section 60.2210 is amended by revising paragraph (e) and adding 
paragraphs (k) through (p) to read as follows:


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

* * * * *
    (e) If no deviation from any emission limitation or operating limit 
that applies to you has been reported, a statement that there was no 
deviation from the emission limitations or operating limits during the 
reporting period.
* * * * *
    (k) If you had a malfunction during the reporting period, the 
compliance report must include the number, duration, and a brief 
description for each type of malfunction that occurred during the 
reporting period and that caused or may have caused any applicable 
emission limitation to be exceeded. The report must also include a 
description of actions taken by an owner or operator during a 
malfunction of an affected source to minimize emissions in accordance 
with Sec.  60.11(d), including actions taken to correct a malfunction.
    (l) For each deviation from an emission or operating limitation 
that occurs for a CISWI unit for which you are not using a continuous 
monitoring system to comply with the emission or operating limitations 
in this subpart, the annual report must contain the following 
information.
    (1) The total operating time of the CISWI unit at which the 
deviation occurred during the reporting period.
    (2) Information on the number, duration, and cause of deviations 
(including unknown cause, if applicable), as applicable, and the 
corrective action taken.
    (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.
    (1) The date and time that each malfunction started and stopped.
    (2) The date, time, and duration that each CMS was inoperative, 
except for zero (low-level) and high-level checks.
    (3) The date, time, and duration that each continuous monitoring 
system was out-of-control, including start and end dates and hours and 
descriptions of corrective actions taken.
    (4) The date and time that each deviation started and stopped, and 
whether each deviation occurred during a period of malfunction or 
during another period.
    (5) A summary of the total duration of the deviation during the 
reporting period, and the total duration as a percent of the total 
source operating time during that reporting period.
    (6) A breakdown of the total duration of the deviations during the 
reporting period into those that are due to control equipment problems, 
process problems, other known causes, and other unknown causes.
    (7) A summary of the total duration of continuous monitoring system 
downtime during the reporting period, and the total duration of 
continuous monitoring system downtime as a percent of the total 
operating time of the CISWI unit at which the continuous monitoring 
system downtime occurred during that reporting period.
    (8) An identification of each parameter and pollutant that was 
monitored at the CISWI unit.

[[Page 80500]]

    (9) A brief description of the CISWI unit.
    (10) A brief description of the continuous monitoring system.
    (11) The date of the latest continuous monitoring system 
certification or audit.
    (12) A description of any changes in continuous monitoring system, 
processes, or controls since the last reporting period.
    (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.
    (o) A continuous monitoring system is out of control in accordance 
with the procedure in 40 CFR part 60, appendix F of this part, as if 
any of the following occur.
    (1) The zero (low-level), mid-level (if applicable), or high-level 
calibration drift exceeds two times the applicable calibration drift 
specification in the applicable performance specification or in the 
relevant standard.
    (2) The continuous monitoring system fails a performance test audit 
(e.g., cylinder gas audit), relative accuracy audit, relative accuracy 
test audit, or linearity test audit.
    (3) The continuous opacity monitoring system calibration drift 
exceeds two times the limit in the applicable performance specification 
in the relevant standard.
    (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.
    29. Section 60.2220 is amended by revising paragraph (c) and 
removing paragraphs (e) and (f).
    The revision reads as follows:


Sec.  60.2220  What must I include in the deviation report?

* * * * *
    (c) Durations and causes of the following:
    (1) Each deviation from emission limitations or operating limits 
and your corrective actions.
    (2) Bypass events and your corrective actions.
* * * * *
    30. Section 60.2230 is revised to read as follows:


Sec.  60.2230  Are there any other notifications or reports that I must 
submit?

    (a) Yes. You must submit notifications as provided by Sec.  60.7.
    (b) If you cease combusting solid waste but continue to operate, 
you must provide 30 days prior notice of the effective date of the 
waste-to-fuel switch, consistent with Sec.  60.2145(a). The 
notification must identify:
    (1) The name of the owner or operator of the CISWI unit, the 
location of the source, the emissions unit(s) that will cease burning 
solid waste, and the date of the notice;
    (2) The currently applicable subcategory under this subpart, and 
any 40 CFR part 63 subpart and subcategory that will be applicable 
after you cease combusting solid waste;
    (3) The fuel(s), non-waste material(s) and solid waste(s) the CISWI 
unit is currently combusting and has combusted over the past 6 months, 
and the fuel(s) or non-waste materials the unit will commence 
combusting;
    (4) The date on which you became subject to the currently 
applicable emission limits;
    (5) The date upon which you will cease combusting solid waste, and 
the date (if different) that you intend for any new requirements to 
become applicable (i.e., the effective date of the waste-to-fuel 
switch), consistent with paragraphs (2) and (3)) of this section.
    31. 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) As of January 1, 2012, and within 60 days after the date of 
completing each performance test, as defined in Sec.  63.2, conducted 
to demonstrate compliance with this subpart, you must submit relative 
accuracy test audit (i.e., reference method) data and performance test 
(i.e., compliance test) data, except opacity data, electronically to 
EPA's Central Data Exchange (CDX) by using the Electronic Reporting 
Tool (ERT) (see http://www.epa.gov/ttn/chief/ert/erttool.html/) or 
other compatible electronic spreadsheet. Only data collected using test 
methods compatible with ERT are subject to this requirement to be 
submitted electronically into EPA's WebFIRE database.
    32. Section 60.2242 is revised to read as follows:


Sec.  60.2242  Am I required to apply for and obtain a Title V 
operating permit for my unit?

    Yes. Each CISWI unit and air curtain incinerator subject to 
standards under this subpart must operate pursuant to a permit issued 
under section 129(e) and Title V of the Clean Air Act.
    33. Section 60.2250 is revised to read as follows:


Sec.  60.2250  What are the emission limitations for air curtain 
incinerators?

    Within 60 days after your air curtain incinerator reaches the 
charge rate at which it will operate, but no later than 180 days after 
its initial startup, you must meet the two limitations specified in 
paragraphs (a) and (b) of this section.
    (a) Maintain opacity to less than or equal to 10 percent opacity 
(as determined by the average of three 1-hour blocks consisting of ten 
6-minute average opacity values), except as described in paragraph (b) 
of this section.
    (b) Maintain opacity to less than or equal to 35 percent opacity 
(as determined by the average of three 1-hour blocks consisting of ten 
6-minute average opacity values) during the startup period that is 
within the first 30 minutes of operation.
    34. Section 60.2260 is amended by revising paragraph (d) to read as 
follows:


Sec.  60.2260  What are the recordkeeping and reporting requirements 
for air curtain incinerators?

* * * * *
    (d) You must submit the results (as determined by the average of 
three 1-hour blocks consisting of ten 6-minute average opacity values) 
of the initial opacity tests no later than 60 days following the 
initial test. Submit annual opacity test results within 12 months 
following the previous report.
* * * * *
    35. Section 60.2265 is amended by:
    a. Adding definitions for ``Affirmative defense'', ``Annual heat 
input'', ``Average annual heat input rate'', ``Burn-off oven'', 
``Bypass stack'', ``CEMS data during startup and shutdown'', ``Chemical 
recovery unit'', ``Continuous monitoring system'', ``Energy recovery 
unit'', ``Energy recovery unit designed to burn biomass (Biomass)'', 
``Energy recovery unit designed to burn coal (Coal)'', ``Energy 
recovery unit designed to burn solid materials (Solids)'', ``Foundry 
sand thermal reclamation unit'', ``Homogeneous wastes'' 
``Incinerator'', ``Kiln'', ``Laboratory analysis unit'', ``Minimum 
voltage or amperage'', ``Opacity'', ``Operating day'', ``Oxygen 
analyzer system'', ``Oxygen trim system'', ``Performance evaluation'', 
``Performance test'', ``Process change'', ``Raw mill'', ``Small remote 
incinerator'', ``Soil treatment unit'', ``Solid waste incineration 
unit'', ``Space heater'' and ``Waste-burning kiln'', in alphabetical 
order.
    b. Revising the definition for ``Commercial and industrial solid 
waste incineration (CISWI) unit'', ``Cyclonic

[[Page 80501]]

burn barrel'', ``dioxin/furans'', ``Modification or modified CISWI 
unit'', and ``Wet scrubber''.
    c. Removing paragraph (3) of the definition for ``Deviation.''
    d. Removing the definition for ``Agricultural waste'', ``Commercial 
or industrial waste'', and ``Solid waste''. The additions and revisions 
read as follows:


Sec.  60.2265  What definitions must I know?

* * * * *
    Affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, regarding 
which the defendant has the burden of proof, and the merits of which 
are independently and objectively evaluated in a judicial or 
administrative proceeding.
    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.
* * * * *
    Burn-off oven means any rack reclamation unit, part reclamation 
unit, or drum reclamation unit. A burn-off oven is not an incinerator, 
waste-burning kiln, an energy recovery unit or a small, remote 
incinerator under this subpart.
    Bypass stack means a device used for discharging combustion gases 
to avoid severe damage to the air pollution control device or other 
equipment.
* * * * *
    CEMS data during startup and shutdown means carbon monoxide CEMS 
data collected during the first 4 hours of operation of energy recovery 
unit startup from a cold start and the hour of operation following the 
cessation of waste material being fed to the energy recovery unit 
during a unit shutdown.
    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, 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 which 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 material is a 
solid waste and 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.
* * * * *
    Continuous monitoring system (CMS) means the total equipment, 
required under the emission monitoring sections in applicable subparts, 
used to sample and condition (if applicable), to analyze, and to 
provide a permanent record of emissions or process parameters. A 
particulate matter continuous parameter monitoring system (PM CPMS) is 
a type of CMS.
* * * * *
    Cyclonic burn barrel means a combustion device for waste materials 
that is attached to a 55 gallon, openhead drum. The device consists of 
a lid, which fits onto and encloses the drum, and a blower that forces 
combustion air into the drum in a cyclonic manner to enhance the mixing 
of waste material and air. A cyclonic burn barrel is not an 
incinerator, waste-burning kiln, an energy recovery unit or a small, 
remote incinerator under this subpart.
    Deviation means any instance in which an affected source subject to 
this subpart, or an owner or operator of such a source:
    (1) Fails to meet any requirement or obligation established by this 
subpart, including but not limited to any emission limitation, 
operating limit, or operator qualification and accessibility 
requirements.
    (2) Fails to meet any term or condition that is adopted to 
implement an applicable requirement in this subpart and that is 
included in the operating permit for any affected source required to 
obtain such a permit.
    Dioxins/furans means tetra- through octa-chlorinated dibenzo-p-
dioxins and dibenzofurans.
* * * * *
    Energy recovery unit means a combustion unit combusting solid waste 
(as that term is defined by the Administrator under the Resource 
Conservation and Recovery Act 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 coal (Coal) means an energy 
recovery unit that burns solid waste and at least 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.
    Energy recovery unit designed to burn solid materials (Solids) 
includes energy

[[Page 80502]]

recovery units designed to burn coal and energy recovery units designed 
to burn biomass.
* * * * *
    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, waste-
burning kiln, an energy recovery unit or a small, remote incinerator 
under this subpart.
* * * * *
    Homogeneous wastes are stable, consistent in formulation, have 
known fuel properties, have a defined origin, have predictable chemical 
and physical attributes, and result in consistent combustion 
characteristics and have a consistent emissions profile.
    Incinerator means any furnace used in the process of combusting 
solid waste (as that term is defined by the Administrator under 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.
    Kiln means an oven or furnace, including any associated preheater 
or precalciner devices, used for processing a substance by burning, 
firing or drying. Kilns include cement kilns that produce clinker by 
heating limestone and other materials for subsequent production of 
Portland Cement.
    Laboratory analysis unit means units that burn samples of materials 
for the purpose of chemical or physical analysis. A laboratory analysis 
unit is not an incinerator, waste-burning kiln, an energy recovery unit 
or a small, remote incinerator under this subpart.
* * * * *
    Minimum voltage or amperage means 90 percent of the lowest test-run 
average voltage or amperage to the electrostatic precipitator measured 
during the most recent particulate matter or mercury performance test 
demonstrating compliance with the applicable emission limits.
    Modification or modified CISWI unit means a CISWI unit that has 
been changed later than June 1, 2001, 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.
    Opacity means the degree to which emissions reduce the transmission 
of light and obscure the view of an object in the background.
    Operating day means a 24-hour period between 12:00 midnight and the 
following midnight during which any amount of solid waste is combusted 
at any time in the CISWI unit.
    Oxygen analyzer system means all equipment required to determine 
the oxygen content of a gas stream and used to monitor oxygen in the 
boiler flue gas or firebox. This definition includes oxygen trim 
systems. 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.
* * * * *
    Performance evaluation means the conduct of relative accuracy 
testing, calibration error testing, and other measurements used in 
validating the continuous monitoring system data.
    Performance test means the collection of data resulting from the 
execution of a test method (usually three emission test runs) used to 
demonstrate compliance with a relevant emission standard as specified 
in the performance test section of the relevant standard.
    Process change means a significant permit revision, but only with 
respect to those pollutant-specific emission units for which the 
proposed permit revision is applicable, including but not limited to a 
change in the air pollution control devices used to comply with the 
emission limits for the affected CISWI unit (e.g., change in the 
sorbent used for activated carbon injection).
* * * * *
    Raw mill means a ball and 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.
* * * * *
    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, waste-burning kiln, an energy recovery unit 
or a small, remote incinerator under this subpart.
    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 usually portable appliance for heating a 
relatively small area. A space heater is not an incinerator, waste-
burning kiln, an

[[Page 80503]]

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). A waste-burning kiln does not 
include a kiln that is feeding non-hazardous secondary ingredients 
exclusively into the cold end of the kiln.
    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.
* * * * *
    36. Table 1 of subpart CCCC is revised to 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
                  [Date 6 months after publication of the Final Rule in the Federal Register].
----------------------------------------------------------------------------------------------------------------
                                          You must meet this                                 And determining
        For the air pollutant            emission  limitation     Using this averaging    compliance using this
                                                 \a\                      time                    method
----------------------------------------------------------------------------------------------------------------
Cadmium..............................  0.004 milligrams per     3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 1    (Method 29 at 40 CFR
                                        meter.                   dry standard cubic       part 60, appendix A-
                                                                 meter per run).          8).
Carbon Monoxide......................  157 parts per million    3-run average (1 hour    Performance test
                                        by dry volume.           minimum sample time      (Method 10 at 40 CFR
                                                                 per run).                part 60, appendix A-
                                                                                          4).
Dioxin/Furan (toxic equivalency        0.41 nanograms per dry   3-run average (collect   Performance test
 basis).                                standard cubic meter.    a minimum volume of 2    (Method 23 of appendix
                                                                 dry standard cubic       A-7 of this part).
                                                                 meters per run).
Hydrogen Chloride....................  62 parts per million by  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.................................  0.04 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-
                                                                 meter per run).          8).
Mercury..............................  0.47 milligrams per dry  3-run average (For       Performance test
                                        standard cubic meter.    Method 29 and ASTM       (Method 29 or 30B at
                                                                 D6784-02 (Reapproved     40 CFR part 60,
                                                                 2008),\b\ collect a      appendix A-8) or ASTM
                                                                 minimum volume of 1      D6784-02 (Reapproved
                                                                 dry standard cubic       2008).\b\
                                                                 meter per run. For
                                                                 Method 30B, collect a
                                                                 minimum sample as
                                                                 specified in Method
                                                                 30B at 40 CFR part 60,
                                                                 appendix A).
Opacity..............................  10 percent.............  Three 1-hour blocks      Performance test
                                                                 consisting of ten 6-     (Method 9 at 40 CFR
                                                                 minute averages          part 60, appendix A-
                                                                 opacity values.          4).
Nitrogen Oxides......................  388 parts per million    3-run average (for       Performance test
                                        by 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...................  70 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
                                                                 meter per run).          A-3 or A-8).
Sulfur Dioxide.......................  20 parts per million by  3-run average (For       Performance test
                                        dry volume.              Method 6, collect a      (Method 6 or 6C at 40
                                                                 minimum volume of 20     CFR part 60, appendix
                                                                 liters per run. For      A-4.
                                                                 Method 6C, collect
                                                                 sample 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.

    37. Table 4 of subpart CCCC is amended by revising the entry for 
``Annual Report'' and ``Emission limitation or operating limit 
deviation report.''

[[Page 80504]]



                     Table 4 to Subpart CCCC of Part 60--Summary of Reporting Requirements a
----------------------------------------------------------------------------------------------------------------
              Report                         Due date                    Contents                 Reference
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Annual report.....................  No later than 12 months      Name and address   Sec.  Sec.   60.2205
                                     following the submission    Statement and       and 60.2210.
                                     of the initial test         signature by responsible
                                     report. Subsequent          official.
                                     reports are to be           Date of report...
                                     submitted no more than 12   Values for the
                                     months following the        operating limits.
                                     previous report.            Highest recorded
                                                                 3-hour average and the
                                                                 lowest 3-hour average, as
                                                                 applicable, for each
                                                                 operating parameter
                                                                 recorded for the calendar
                                                                 year being reported.
                                                                 If a performance
                                                                 test was conducted during
                                                                 the reporting period, the
                                                                 results of the test.
                                                                 If a performance
                                                                 test was not conducted
                                                                 during the reporting
                                                                 period, a statement that
                                                                 the requirements of Sec.
                                                                  60.2155(a) were met.
                                                                 Documentation of
                                                                 periods when all
                                                                 qualified CISWI unit
                                                                 operators were
                                                                 unavailable for more than
                                                                 8 hours but less than 2
                                                                 weeks.
                                                                 If you are
                                                                 conducting performance
                                                                 tests once every 3 years
                                                                 consistent with Sec.
                                                                 60.2155(a), the date of
                                                                 the last 2 performance
                                                                 tests, a comparison of
                                                                 the emission level you
                                                                 achieved in the last 2
                                                                 performance tests to the
                                                                 75 percent emission limit
                                                                 threshold required in
                                                                 Sec.   60.2155(a) and a
                                                                 statement as to whether
                                                                 there have been any
                                                                 operational changes since
                                                                 the last performance test
                                                                 that could increase
                                                                 emissions.
 
                                                  * * * * * * *
Emission limitation or operating    By August 1 of that year     Dates and times    Sec.   60.2215 and
 limit deviation report.             for data collected during   of deviation.               60.2220.
                                     the first half of the       Averaged and
                                     calendar year. By           recorded data for those
                                     February 1 of the           dates.
                                     following year for data     Duration and
                                     collected during the        causes of each deviation
                                     second half of the          and the corrective
                                     calendar year.              actions taken.
                                                                 Copy of operating
                                                                 limit monitoring data and
                                                                 any test reports.
                                                                 Dates, times and
                                                                 causes for monitor
                                                                 downtime incidents.
----------------------------------------------------------------------------------------------------------------
\a\ This table is only a summary, see the referenced sections of the rule for the complete requirements.

    38. Table 5 to Subpart CCCC is added to 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
                   [Date 6 months after publication of the Final Rule in the Federal Register]
----------------------------------------------------------------------------------------------------------------
                                                                                             And determining
        For the air pollutant             You must meet this      Using this averaging    compliance using this
                                       emission limitation \a\            time                    method
----------------------------------------------------------------------------------------------------------------
Cadmium..............................  0.0023 milligrams per    3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 4    (Method 29 at 40 CFR
                                        meter.                   dry standard cubic       part 60, appendix A-8
                                                                 meter per run).          of this part).
                                                                                         Use ICPMS for the
                                                                                          analytical finish.
Carbon Monoxide......................  12 parts per million by  3-run average (1 hour    Performance test
                                        dry volume.              minimum sample time      (Method 10 at 40 CFR
                                                                 per run).                part 60, appendix A-
                                                                                          4).
Dioxin/furan (Total Mass Basis)......  0.58 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-
                                                                 meter per run).          7).
Dioxin/furan (toxic equivalency        0.13 nanograms per dry   3-run average (collect   Performance test
 basis).                                standard cubic meter.    a minimum volume of 4    (Method 23 at 40 CFR
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meter per run).          7).

[[Page 80505]]

 
Hydrogen Chloride....................  0.091 part per million   3-run average (For       Performance test
                                        by dry volume.           Method 26, collect a     (Method 26 or 26A at
                                                                 minimum volume of 360    40 CFR part 60,
                                                                 liters per run. For      appendix A-8).
                                                                 Method 26A, collect a
                                                                 minimum volume of 3
                                                                 dry standard cubic
                                                                 meter per run).
Lead.................................  0.0019 milligrams per    3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 4    (Method 29 of appendix
                                        meter.                   dry standard cubic       A-8 at 40 CFR part
                                                                 meter per run).          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    (Method 29 or 30B at
                                        meter \c\.               a detection limit data   40 CFR part 60,
                                                                 quality objective of     appendix A-8) or ASTM
                                                                 0.03 [mu]g/dry           D6784-02 (Reapproved
                                                                 standard cubic meter).   2008) \b\.
Nitrogen Oxides......................  23 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)......  18 milligrams per dry    3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 2    (Method 5 or 29 at 40
                                                                 dry standard cubic       CFR part 60, appendix
                                                                 meters per run).         A-3 or appendix A-8 at
                                                                                          40 CFR part 60).
Sulfur dioxide.......................  11 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.
Fugitive ash.........................  Visible emissions for    Three 1-hour             Visible emission test
                                        no more than 5 percent   observation periods.     (Method 22 at 40 CFR
                                        of the hourly                                     part 60, appendix A-
                                        observation period.                               7).
----------------------------------------------------------------------------------------------------------------
\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 provision 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 75 percent of this limit in order to qualify for skip testing.

    39. Table 6 to Subpart CCCC is added to 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
                   [Date 6 months after publication of the Final Rule in the Federal Register]
----------------------------------------------------------------------------------------------------------------
                                  You must meet this emission limitation
                                                    \a\                       Using this        And determining
      For the air pollutant      ----------------------------------------   averaging time     compliance using
                                      Liquid/Gas            Solids                                this method
----------------------------------------------------------------------------------------------------------------
Cadmium.........................  0.023 milligrams    Biomass--0.00014    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.        4 dry standard      appendix A-8).
                                                      Coal--0.058          cubic meters per    Use ICPMS for the
                                                       milligrams per      run).               analytical
                                                       dry standard                            finish.
                                                       cubic meter..
Carbon monoxide.................  36 parts per        Biomass--160 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--46 parts per   run).               appendix A-4).
                                                       million dry
                                                       volume..
Dioxins/furans (Total Mass        No Total Mass       Biomass--0.52       3-run average       Performance test
 Basis).                           Basis limit, must   nanograms per dry   (collect a          (Method 23 at 40
                                   meet the toxic      standard cubic      minimum volume of   CFR part 60,
                                   equivalency basis   meter \c\.          4 dry standard      appendix A-7).
                                   limit below.       Coal--0.51           cubic meters).
                                                       nanograms per dry
                                                       standard cubic
                                                       meter \c\..

[[Page 80506]]

 
Dioxins/furans (toxic             0.093 nanograms     Biomass--0.076      3-run average       Performance test
 equivalency basis).               per dry standard    nanograms per dry   (collect a          (Method 23 of
                                   cubic meter \c\.    standard cubic      minimum volume of   appendix A-7 of
                                                       meter \c\.          4 dry standard      this part).
                                                      Coal--0.075          cubic meters per
                                                       nanograms per dry   run).
                                                       standard cubic
                                                       meter \c\..
Hydrogen chloride...............  14 parts per        0.50 parts per      3-run average (For  Performance test
                                   million dry         million dry         Method 26,          (Method 26 or 26A
                                   volume.             volume.             collect a minimum   at 40 CFR part
                                                                           volume of 360       60, appendix A-
                                                                           liters per run.     8).
                                                                           For Method 26A,
                                                                           collect a minimum
                                                                           volume of 3 dry
                                                                           standard cubic
                                                                           meters per run).
Lead............................  0.096 milligrams    Biomass--0.0019     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.        4 dry standard      appendix A-8).
                                                      Coal--0.0031         cubic meters per    Use ICPMS for the
                                                       milligrams per      run).               analytical
                                                       dry standard                            finish.
                                                       cubic meter..
Mercury.........................  0.00091 milligrams  0.0020 milligrams   3-run average       Performance test
                                   per dry standard    per dry standard    (collect enough     (Method 29 or 30B
                                   cubic meter \c\.    cubic meter.        volume to meet an   at 40 CFR part
                                                                           in-stack            60, appendix A-8)
                                                                           detection limit     or ASTM D6784-02
                                                                           data quality        (Reapproved 2008)
                                                                           objective of 0.03   \b\.
                                                                           [mu]g/dscm).
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--5.1        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--86             cubic meter per     or appendix A-8)
                                                       milligrams per      run).               if the unit has a
                                                       dry standard                            design capacity
                                                       cubic meter..                           less than 250
                                                                                               MMBtu/hr; or PM
                                                                                               CEMS (performance
                                                                                               specification 11
                                                                                               of appendix B and
                                                                                               procedure 2 of
                                                                                               appendix F of
                                                                                               this part) if the
                                                                                               unit has a design
                                                                                               capacity equal to
                                                                                               or greater than
                                                                                               250 MMBtu/hr. Use
                                                                                               Method 5 or 5I of
                                                                                               Appendix A of
                                                                                               this part and
                                                                                               collect a minimum
                                                                                               sample volume of
                                                                                               1 dscm per test
                                                                                               run for the PM
                                                                                               CEMS correlation
                                                                                               testing.
Sulfur dioxide..................  720 parts per       Biomass--7.3 parts  3-run average (for  Performance test
                                   million dry         per million dry     Method 6, collect   (Method 6 or 6C
                                   volume.             volume.             a minimum of 60     at 40 CFR part
                                                      Coal--650 parts      liters, for         60, appendix A-4.
                                                       per million dry     Method 6C, 1 hour
                                                       volume..            minimum sample
                                                                           time per run).
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\ 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 provision 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 75 percent of this limit in order to qualify for skip testing.


[[Page 80507]]

    40. Table 7 to Subpart CCCC is added 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
                   [Date 6 months after publication of the Final Rule in the Federal Register]
----------------------------------------------------------------------------------------------------------------
                                          You must meet this                                 And determining
        For the air pollutant            emission  limitation     Using this averaging    compliance using this
                                                 \a\                      time                    method
----------------------------------------------------------------------------------------------------------------
Cadmium..............................  0.00082 milligrams per   3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 4    (Method 29 at 40 CFR
                                        meter.                   dry standard cubic       part 60, appendix A-
                                                                 meters per run).         8). Use ICPMS for the
                                                                                          analytical finish.
Carbon monoxide......................  90 (long kilns)/320      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 is not used.
Lead.................................  0.0043 milligrams per    3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 4    (Method 29 at 40 CFR
                                        meter.                   dry standard cubic       part 60, appendix A-
                                                                 meters).                 8). Use ICPMS for the
                                                                                          analytical finish.
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 Continuous
                                        dry volume.                                       Emissions Monitoring
                                                                                          System (performance
                                                                                          specification 2 of
                                                                                          appendix B and
                                                                                          procedure 1 of
                                                                                          appendix F of this
                                                                                          part). Use a span
                                                                                          value of 400 ppm.
Particulate matter (filterable)......  8.9 milligrams per dry   30-day rolling average.  PM Continuous Emissions
                                        standard cubic meter.                             Monitoring System
                                                                                          (performance
                                                                                          specification 11 of
                                                                                          appendix B and
                                                                                          procedure 2 of
                                                                                          appendix F of this
                                                                                          part).
Sulfur dioxide.......................  130 parts per million    30-day rolling average.  Sulfur dioxide
                                        dry volume.                                       Continuous Emissions
                                                                                          Monitoring System
                                                                                          (performance
                                                                                          specification 2 of
                                                                                          appendix B and
                                                                                          procedure 1 of
                                                                                          appendix F of this
                                                                                          part). Use a span
                                                                                          value of 260 ppm.
----------------------------------------------------------------------------------------------------------------
\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 provision 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 75 percent of this limit in order to qualify for skip testing.

    41. Table 8 to Subpart CCCC is added 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
                   [Date 6 months after publication of the Final Rule in the Federal Register]
----------------------------------------------------------------------------------------------------------------
                                          You must meet this                                 And determining
        For the air pollutant            emission  limitation     Using this averaging    compliance using this
                                                 \a\                      time                    method
----------------------------------------------------------------------------------------------------------------
Cadmium..............................  0.61 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-
                                                                 meter per run).          8).

[[Page 80508]]

 
Carbon monoxide......................  12 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)....  1,200 nanograms per dry  3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 1    (Method 23 at 40 CFR
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meter 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
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meter per run).          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.................................  0.26 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-
                                                                 meter).                  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).
Oxides of nitrogen...................  78 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)......  230 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
                                                                 meter).                  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.
Fugitive ash.........................  Visible emissions for    Three 1-hour             Visible emission test
                                        no more than 5 percent   observation periods.     (Method 22 at 40 CFR
                                        of the hourly                                     part 60, appendix A-
                                        observation period.                               7).
----------------------------------------------------------------------------------------------------------------
\a\ 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.
\b\ Incorporated by reference, see Sec.   60.17.

    42. Revise the heading for subpart DDDD to read as follows:

Subpart DDDD-Emissions Guidelines and Compliance Times for 
Commercial and Industrial Solid Waste Incineration Units

* * * * *
    43. Section 60.2500 is revised to read as follows:


Sec.  60.2500  What is the purpose of this subpart?

    This subpart establishes emission guidelines and compliance 
schedules for the control of emissions from commercial and industrial 
solid waste incineration (CISWI) units. The pollutants addressed by 
these emission guidelines are listed in table 2 of this subpart and 
tables 6 through 9 of this subpart. These emission guidelines are 
developed in accordance with sections 111(d) and 129 of the Clean Air 
Act and subpart B of this part.
    44. Section 60.2505 is revised to 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 meets the criteria in paragraphs (b) through (d) of this 
section, you must submit a state plan to EPA that implements the 
emission guidelines contained in this subpart.
    (b) You must submit a state plan to EPA by December 3, 2001 for 
incinerator units that commenced construction on or before November 30, 
1999 and that were not modified or reconstructed after June 1, 2001.
    (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 [DATE 1 YEAR AFTER PUBLICATION OF THE FINAL 
RULE IN THE FEDERAL REGISTER] 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 [DATE 6 MONTHS AFTER

[[Page 80509]]

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
    (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 [DATE 1 YEAR AFTER PUBLICATION OF THE FINAL RULE IN 
THE FEDERAL REGISTER] for CISWI units other than incinerator units that 
commenced construction on or before June 4, 2010.
    45. Section 60.2525 is revised to read as follows:


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

    (a) If you do not submit an approvable state plan (or a negative 
declaration letter) by December 2, 2002, 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.
    (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.
    46. Section 60.2535 is amended by:
    a. Revising paragraph (a) introductory text.
    b. Redesignating paragraph (b) as paragraph (d).
    c. Adding paragraphs (b) and (c).


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 energy recovery units and waste-burning 
kilns 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) [DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE 
FEDERAL REGISTER].
    (2) 3 years after the effective date of state plan approval.
    (c) For CISWI units in the small remote incinerator subcategory 
that commenced construction after November 30, 1999, but on or before 
June 4, 2010, your state plan must include compliance schedules that 
require small remote incinerator 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) March 21, 2016.
    (2) 3 years after the effective date of state plan approval.
* * * * *
    47. Section 60.2540 is amended by revising paragraph (a) to read as 
follows:


Sec.  60.2540  Are there any state plan requirements for this subpart 
that apply instead of the requirements specified in subpart B?

* * * * *
    (a) State plans developed to implement this subpart must be as 
protective as the emission guidelines contained in this subpart. State 
plans must require all CISWI units to comply by the dates specified in 
Sec.  60.2535. This applies instead of the option for case-by-case less 
stringent emission standards and longer compliance schedules in Sec.  
60.24(f).
* * * * *
    48. Section 60.2541 is added to read as follows:


Sec.  60.2541  In lieu of a state plan submittal, are there other 
acceptable option(s) for a state to meet its Clean Air Act section 
111(d)/129(b)(2) obligations?

    Yes, a state may meet its Clean Air Act section 111(d)/129 
obligations by submitting an acceptable written request for delegation 
of the federal plan that meets the requirements of this section. This 
is the only other option for a state to meet its Clean Air Act section 
111(d)/129 obligations.
    (a) An acceptable federal plan delegation request must include the 
following:
    (1) A demonstration of adequate resources and legal authority to 
administer and enforce the federal plan.
    (2) The items under Sec.  60.2515(a)(1), (2), and (7).
    (3) Certification that the hearing on the state delegation request, 
similar to the hearing for a state plan submittal, was held, a list of 
witnesses and their organizational affiliations, if any, appearing at 
the hearing, and a brief written summary of each presentation or 
written submission.
    (4) A commitment to enter into a Memorandum of Agreement with the 
Regional Administrator who sets forth the terms, conditions, and 
effective date of the delegation and that serves as the mechanism for 
the transfer of authority. Additional guidance and information is given 
in EPA's Delegation Manual, Item 7-139, Implementation and Enforcement 
of 111(d)(2) and 111(d)/(2)/129(b)(3) federal plans.
    (b) A state with an already approved CISWI Clean Air Act section 
111(d)/129 state plan is not precluded from receiving EPA approval of a 
delegation request for the revised federal plan, providing the 
requirements of paragraph (a) of this section are met, and at the time 
of the delegation request, the state also requests withdrawal of EPA's 
previous state plan approval.
    (c) A state's Clean Air Act section 111(d)/129 obligations are 
separate from its obligations under Title V of the Clean Air Act.
    49. Section 60.2542 is added to read as follows:


Sec.  60.2542  What authorities will not be delegated to state, local, 
or tribal agencies?

    The authorities listed under Sec.  60.2030(c) will not be delegated 
to state, local, or tribal agencies.
    50. Section 60.2545 is amended by revising paragraph (b) and adding 
paragraph (c) to read as follows:


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

* * * * *
    (b) If you do not submit an approvable plan to implement and 
enforce the guidelines contained in this subpart for CISWI units that 
commenced construction on or before November 30, 1999 by December 2, 
2002, EPA will implement and enforce a federal plan, as provided in 
Sec.  60.2525, to ensure that each unit within your state reaches 
compliance with all the provisions of this subpart by December 1, 2005.
    (c) If you do not submit an approvable plan to implement and 
enforce the

[[Page 80510]]

guidelines contained in this subpart by [DATE 1 YEAR AFTER PUBLICATION 
OF THE FINAL RULE IN THE FEDERAL REGISTER] 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 [DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE 
FEDERAL REGISTER].
    51. Section Sec.  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) Incineration units in your state that commenced construction on 
or before June 4, 2010.
* * * * *
    52. Section Sec.  60.2555 is amended by:
    a. Revising the introductory text.
    b. Removing and reserving paragraph (b).
    c. Revising paragraphs (c), (e)(3), (f)(3), and (g).
    d. Removing and reserving paragraphs (j), (k), and (l).
    e. Revising paragraphs (m) and (n).
    f. Removing paragraph (o).


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

    This subpart exempts the types of units described in paragraphs 
(a), (c) through (i), (m), and (n) of this section, but some units are 
required to provide notifications. Air curtain incinerators are exempt 
from the requirements in this subpart except for the provisions in 
Sec. Sec.  60.2805, 60.2860, and 60.2870.
* * * * *
    (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); 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 a request to the Administrator for a determination 
that the qualifying cogeneration facility is combusting homogenous 
waste as that term is defined in Sec.  60.2875. The request must 
include information sufficient to document that the unit meets the 
criteria of the definition of a small power production facility and 
that the waste material the unit is proposed to burn is homogeneous.
* * * * *
    (f) * * *
    (3) You submit a request to the Administrator for a determination 
that the qualifying cogeneration facility is combusting homogenous 
waste as that term is defined in Sec.  60.2875. The request must 
include information sufficient to document that the unit meets the 
criteria of the definition of a cogeneration facility and that the 
waste material the unit is proposed to burn is homogeneous.
    (g) Hazardous waste combustion units. Units for which you are 
required to get a permit under section 3005 of the Solid Waste Disposal 
Act.
* * * * *
    (m) Sewage treatment plants. Incineration units regulated under 
subpart O of this part (Standards of Performance for Sewage Treatment 
Plants).
    (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).


Sec.  60.2558  [Removed]

    53. Section 60.2558 is removed.
    54. Section 60.2635 is amended by revising paragraph (c)(1)(vii) to 
read as follows:


Sec.  60.2635  What are the operator training and qualification 
requirements?

* * * * *
    (c) * * *
    (1) * * *
    (vii) Actions to prevent and correct malfunctions or to prevent 
conditions that may lead to malfunctions.
* * * * *
    55. Section 60.2650 is amended by revising paragraph (d) to read as 
follows:


Sec.  60.2650  How do I maintain my operator qualification?

* * * * *
    (d) Prevention and correction of malfunctions or conditions that 
may lead to malfunction.
* * * * *
    56. Section 60.2670 is revised to read as follows:


Sec.  60.2670  What emission limitations must I meet and by when?

    (a) You must meet the emission limitations for each CISWI unit, 
including bypass stack or vent, specified in table 2 of this subpart or 
tables 6 through 9 of this subpart by the final compliance date under 
the approved state plan, federal plan, or delegation, as applicable. 
The emission limitations apply at all times the unit is operating 
including and not limited to startup, shutdown, or malfunction.
    (b) Units that do not use wet scrubbers must maintain opacity to 
less than or equal to the percent opacity (three 1-hour blocks 
consisting of ten 6-minute average opacity values) specified in table 2 
of this subpart, as applicable.
    57. Section 60.2675 is amended by:
    a. Revising paragraphs (a) introductory text and paragraphs (a)(2) 
through (4).
    b. Revising paragraph (b).
    c. Adding paragraphs (d), (e), (f), and (g).
    The revisions and addtions read as follows:


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

    (a) If you use a wet scrubber(s) to comply with the emission 
limitations, you must establish operating limits for up to four 
operating parameters (as specified in table 3 of this subpart) as 
described in paragraphs (a)(1) through (4) of this section during the 
initial performance test.
* * * * *
    (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 fan for 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.
    (3) Minimum scrubber liquid flow rate, which is calculated as the 
lowest 1-hour average liquid flow rate at the inlet to the wet acid gas 
or particulate matter scrubber measured during the most recent 
performance test demonstrating compliance with all applicable emission 
limitations.
    (4) Minimum scrubber liquor pH, which is calculated as the lowest 
1-hour average liquor pH at the inlet to the wet

[[Page 80511]]

acid gas scrubber measured during the most recent performance test 
demonstrating compliance with the HCl emission limitation.
    (b) You must meet the operating limits established during the 
initial performance test on the date the initial performance test is 
required or completed (whichever is earlier). You must conduct an 
initial performance evaluation of each continuous monitoring system and 
continuous parameter monitoring system within 60 days of installation 
of the monitoring system.
* * * * *
    (d) If you use an electrostatic precipitator to comply with the 
emission limitations, you must measure the (secondary) voltage and 
amperage of the electrostatic precipitator collection plates during the 
particulate matter performance test. Calculate the average electric 
power value (secondary voltage x secondary current = secondary electric 
power) for each test run. The operating limit for the electrostatic 
precipitator is calculated as the lowest 1-hour average secondary 
electric power 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.
    (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 
lowest 1-hour average charge rate, secondary chamber temperature, and 
reagent flow rate measured during the most recent performance test 
demonstrating compliance with the nitrogen oxides emission limitations.
    (g) 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 continuous emissions monitoring 
system, you must maintain opacity to less than or equal to ten percent 
opacity (1-hour block average).
    58. Section 60.2680 is revised to read as follows:


Sec.  60.2680  What if I do not use a wet scrubber, fabric filter, 
activated carbon injection, selective noncatalytic reduction, or an 
electrostatic precipitator 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, or an electrostatic precipitator 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 not conduct the initial performance test until after the petition 
has been approved by the Administrator. Your petition must include the 
five items listed in paragraphs (a)(1) through (5) of this section.
    (1) Identification of the specific parameters you propose to use as 
additional operating limits.
    (2) A discussion of the relationship between these parameters and 
emissions of regulated pollutants, identifying how emissions of 
regulated pollutants change with changes in these parameters and how 
limits on these parameters will serve to limit emissions of regulated 
pollutants.
    (3) A discussion of how you will establish the upper and/or lower 
values for these parameters which will establish the operating limits 
on these parameters.
    (4) A discussion identifying the methods you will use to measure 
and the instruments you will use to monitor these parameters, as well 
as the relative accuracy and precision of these methods and 
instruments.
    (5) A discussion identifying the frequency and methods for 
recalibrating the instruments you will use for monitoring these 
parameters.
    (b) [Reserved]
    59. Section 60.2685 is revised to read as follows:


Sec.  60.2685  Affirmative Defense for Exceedance of an Emission Limit 
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 exceedances of such standards that are 
caused by malfunction, as defined at Sec.  60.2. Appropriate penalties 
may be assessed, however, 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) To establish the affirmative defense in any action to enforce 
such a limit, you must timely meet the notification requirements in 
paragraph (b) of this section, and must prove by a preponderance of 
evidence that:
    (1) The excess emissions:
    (i) Were caused by a sudden, infrequent, and unavoidable failure of 
air pollution control and monitoring 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) Were not part of a recurring pattern indicative of inadequate 
design, operation, or maintenance; and
    (2) Repairs were made as expeditiously as possible when the 
applicable emission limitations were being exceeded. Off-shift and 
overtime labor were used, to the extent practicable to make these 
repairs; and
    (3) The frequency, amount and duration of the excess emissions 
(including any bypass) were minimized to the maximum extent practicable 
during periods of such emissions; and
    (4) If the excess emissions 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 
excess emissions on ambient air quality, the environment and human 
health; and
    (6) All emissions and/or parameter monitoring and systems, as well 
as control systems, were kept in operation if at all possible, 
consistent with safety and good air pollution control practices;
    (7) All of the actions in response to the excess emissions were 
documented by properly signed, contemporaneous operating logs;
    (8) At all times, the facility 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 excess emissions resulting from the malfunction 
event at issue. The analysis shall also specify, using best monitoring 
methods and engineering judgment, the

[[Page 80512]]

amount of excess emissions that were the result of the malfunction.
    (b) Notification. The owner or operator of the facility 
experiencing an exceedance of its emission limit(s) during a 
malfunction shall notify the Administrator by telephone or facsimile 
(FAX) transmission as soon as possible, but no later than two business 
days after the initial occurrence of the malfunction, if it wishes to 
avail itself of an affirmative defense to civil penalties for that 
malfunction. The owner or operator seeking to assert an affirmative 
defense shall also submit a written report to the Administrator within 
45 days of the initial occurrence of the exceedance of the standard in 
Sec.  60.2670 to demonstrate, with all necessary supporting 
documentation, that it has met the requirements set forth in paragraph 
(a) of this section. The owner or operator may seek an extension of 
this deadline for up to 30 additional days by submitting a written 
request to the Administrator before the expiration of the 45-day 
period. Until a request for an extension has been approved by the 
Administrator, the owner or operator is subject to the requirement to 
submit such report within 45 days of the initial occurrence of the 
exceedances.
    60. Section 60.2690 is amended by revising paragraphs (c) and 
(g)(1) and (2) and adding paragraphs (h) and (i) to read as follows:


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

* * * * *
    (c) All performance tests must be conducted using the minimum run 
duration specified in tables 2 and 6 through 9 of this subpart.
* * * * *
    (g) * * *
    (1) Measure the concentration of each dioxin/furan tetra- through 
octa-isomer emitted using EPA Method 23 at 40 CFR part 60, appendix A.
    (2) For each dioxin/furan (tetra-through octa-chlorinated) isomer 
measured in accordance with paragraph (g)(1) of this section, multiply 
the isomer concentration by its corresponding toxic equivalency factor 
specified in table 4 of this subpart.
* * * * *
    (h) Method 22 at 40 CFR part 60, appendix A-7 must be used to 
determine compliance with the fugitive ash emission limit in table 2 of 
this subpart or tables 6 through 9 of this subpart.
    (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, 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.  60.2710 and 
Sec.  60.2730.
    61. Section 60.2695 is revised to read as follows:


Sec.  60.2695  How are the performance test data used?

    You use results of performance tests to demonstrate compliance with 
the emission limitations in table 2 of this subpart or tables 6 through 
9 of this subpart.
    62. Section 60.2700 is revised to read as follows:


Sec.  60.2700  How do I demonstrate initial compliance with the amended 
emission limitations and establish the operating limits?

    You must conduct a performance test, as required under Sec. Sec.  
60.2690 and 60.2670, to determine compliance with the emission 
limitations in table 2 of this subpart and tables 6 through 9 of this 
subpart, to establish compliance with any opacity operating limits in 
Sec.  60.2675, and to establish operating limits using the procedures 
in Sec.  60.2675 or Sec.  60.2680. The performance test must be 
conducted using the test methods listed in table 2 of this subpart and 
tables 6 through 9 of this subpart and the procedures in Sec.  60.2690. 
The use of the bypass stack during a performance test shall invalidate 
the performance test. You must conduct a performance evaluation of each 
continuous monitoring system within 60 days of installation of the 
monitoring system.
    63. Section 60.2705 is revised to read as follows:


Sec.  60.2705  By what date must I conduct the initial performance 
test?

    (a) The initial performance test must be conducted no later than 
180 days after your final compliance date. Your final compliance date 
is specified in table 1 of this subpart.
    (b) If you commence or recommence combusting a solid waste at an 
existing combustion unit at any commercial or industrial facility and 
you conducted a test consistent with the provisions of this subpart 
while combusting the given solid waste within the 6 months preceding 
the reintroduction of that solid waste in the combustion chamber, you 
do not need to retest until 6 months from the date you reintroduce that 
solid waste.
    (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 given solid waste 
within the 6 months preceding 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.
    64. Section 60.2706 is added to read as follows:


Sec.  60.2706  By what date must I conduct the initial air pollution 
control device inspection?

    (a) The initial air pollution control device inspection must be 
conducted within 60 days after installation of the control device and 
the associated CISWI unit reaches the charge rate at which it will 
operate, but no later than 180 days after the final compliance date for 
meeting the amended emission limitations.
    (b) Within 10 operating days following an air pollution control 
device inspection, all necessary repairs must be completed unless the 
owner or operator obtains written approval from the state agency 
establishing a date whereby all necessary repairs of the designated 
facility must be completed.
    65. Section 60.2710 is revised to read as follows:


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

    (a) Compliance with standards.
    (1) The emission standards and operating requirements set forth in 
this subpart apply at all times.
    (2) If you cease combusting solid waste you may opt to remain 
subject to the provisions of this subpart. Consistent with the 
definition of CISWI unit, you are subject to the requirements of this 
subpart at least 6 months following the last date of solid waste 
combustion. Solid waste combustion is ceased when solid waste is not in 
the combustion chamber (i.e., the solid waste feed to the combustor has 
been cut off for a period of time not less than the solid waste 
residence time).
    (3) If you cease combusting solid waste you must be in compliance 
with any newly applicable standards on the effective date of the waste-
to-fuel switch. The effective date of the waste-to-fuel switch is a 
date selected by you, that must be at least 6 months from the date that 
you ceased combusting solid waste, consistent with Sec.  60.2710(a)(2). 
Your source must remain in compliance with this subpart until the 
effective date of the waste-to-fuel switch.
    (4) If you own or operate an existing commercial or industrial 
combustion unit that combusted a fuel or non-waste

[[Page 80513]]

material, and you commence or recommence combustion of solid waste, you 
are subject to the provisions of this subpart as of the first day you 
introduce or reintroduce solid waste to the combustion chamber, and 
this date constitutes the effective date of the fuel-to-waste switch. 
You must complete all initial compliance demonstrations for any section 
112 standards that are applicable to your facility before you commence 
or recommence combustion of solid waste. You must provide 30 days prior 
notice of the effective date of the waste-to-fuel switch. The 
notification must identify:
    (i) The name of the owner or operator of the CISWI unit, the 
location of the source, the emissions unit(s) that will cease burning 
solid waste, and the date of the notice;
    (ii) The currently applicable subcategory under this subpart, and 
any 40 CFR part 63 subpart and subcategory that will be applicable 
after you cease combusting solid waste;
    (iii) The fuel(s), non-waste material(s) and solid waste(s) the 
CISWI unit is currently combusting and has combusted over the past 6 
months, and the fuel(s) or non-waste materials the unit will commence 
combusting;
    (iv) The date on which you became subject to the currently 
applicable emission limits;
    (v) The date upon which you will cease combusting solid waste, and 
the date (if different) that you intend for any new requirements to 
become applicable (i.e., the effective date of the waste-to-fuel 
switch), consistent with (2) and (3) above.
    (5) All air pollution control equipment necessary for compliance 
with any newly applicable emissions limits 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.
    (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. 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. 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.
    (e) For energy recovery units, incinerators, and small remote 
units, you must perform annual visual emissions test for ash handling.
    (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.
    (2) Operate the carbon monoxide continuous emissions monitoring 
system in accordance with the applicable requirements of performance 
specification 4A of appendix B and the quality assurance procedures of 
appendix F of this part.
    (h) For waste-burning kilns, demonstrate continuous compliance with 
the particulate matter emissions limit using a particulate matter 
continuous emissions monitoring system according to the procedures in 
Sec.  60.2730(n). Energy recovery units with design heat input 
capacities 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).
    (i) For energy recovery units with design capacities 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, you must determine compliance with the hydrogen chloride 
emission limit using a CEMS as specified in Sec.  60.2730. 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.
    (2) Owners or operators using a mercury continuous emissions 
monitoring systems must install, operate, calibrate and maintain an

[[Page 80514]]

instrument for continuously measuring and recording the mercury mass 
emissions rate to the atmosphere according to the requirements of 
performance specifications 6 and 12A at 40 CFR part 60, appendix B and 
quality assurance procedure 5 at 40 CFR part 60, appendix F.
    (3) The owner or operator of a waste-burning kiln must demonstrate 
initial compliance by operating a mercury continuous emissions monitor 
while the raw mill of the in-line kiln/raw mill is operating under 
normal conditions and while the raw mill of the in-line kiln/raw mill 
is not operating.
    (k) If you use an air pollution control device to meet the emission 
limitations in this subpart, you must conduct an initial and annual 
inspection of the air pollution control device. The inspection must 
include, at a minimum, the following:
    (1) Inspect air pollution control device(s) for proper operation.
    (2) Develop a site-specific monitoring plan according to the 
requirements in paragraph (l) of this section. This requirement also 
applies to you if you petition the EPA Administrator for alternative 
monitoring parameters under Sec.  60.13(i).
    (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.
    (1) You must submit this site-specific monitoring plan at least 60 
days before your initial performance evaluation of your continuous 
monitoring system.
    (i) Installation of the continuous monitoring system sampling probe 
or other interface at a measurement location relative to each affected 
process unit such that the measurement is representative of control of 
the exhaust emissions (e.g., on or downstream of the last control 
device).
    (ii) Performance and equipment specifications for the sample 
interface, the pollutant concentration or parametric signal analyzer 
and the data collection and reduction systems.
    (iii) Performance evaluation procedures and acceptance criteria 
(e.g., calibrations).
    (iv) Ongoing operation and maintenance procedures in accordance 
with the general requirements of Sec.  60.11(d).
    (v) Ongoing data quality assurance procedures in accordance with 
the general requirements of Sec.  60.13.
    (vi) Ongoing recordkeeping and reporting procedures in accordance 
with the general requirements of Sec.  60.7(b), (c), (c)(1), (c)(4), 
(d), (e), (f), and (g).
    (2) You must conduct a performance evaluation of each continuous 
monitoring system in accordance with your site-specific monitoring 
plan.
    (3) You must operate and maintain the continuous monitoring system 
in continuous operation according to the site-specific monitoring plan.
    (m) If you have an operating limit that requires the use of a flow 
monitoring system, you must meet the requirements in paragraphs (l) and 
(m)(1) through (4) of this section.
    (1) Install the flow sensor and other necessary equipment in a 
position that provides a representative flow.
    (2) Use a flow sensor with a measurement sensitivity of no greater 
than 2 percent of the expected process flow rate.
    (3) Minimize the effects of swirling flow or abnormal velocity 
distributions due to upstream and downstream disturbances.
    (4) Conduct a flow monitoring system performance evaluation in 
accordance with your monitoring plan at the time of each performance 
test but no less frequently than annually.
    (n) If you have an operating limit that requires the use of a 
pressure monitoring system, you must meet the requirements in 
paragraphs (l) and (n)(1) through (6) of this section.
    (1) Install the pressure sensor(s) in a position that provides a 
representative measurement of the pressure (e.g., PM scrubber pressure 
drop).
    (2) Minimize or eliminate pulsating pressure, vibration, and 
internal and external corrosion.
    (3) Use a pressure sensor with a minimum tolerance of 1.27 
centimeters of water or a minimum tolerance of 1 percent of the 
pressure monitoring system operating range, whichever is less.
    (4) Perform checks at least once each process operating day to 
ensure pressure measurements are not obstructed (e.g., check for 
pressure tap pluggage daily).
    (5) Conduct a performance evaluation of the pressure monitoring 
system in accordance with your monitoring plan at the time of each 
performance test but no less frequently than annually.
    (6) If at any time the measured pressure exceeds the manufacturer's 
specified maximum operating pressure range, conduct a performance 
evaluation of the pressure monitoring system in accordance with your 
monitoring plan and confirm that the pressure monitoring system 
continues to meet the performance requirements in your monitoring plan. 
Alternatively, install and verify the operation of a new pressure 
sensor.
    (o) If you have an operating limit that requires the use of a 
pressure monitoring system, you must meet the requirements in 
paragraphs (l) and (n)(1) through (6) of this section.
    (1) Install the pressure sensor(s) in a position that provides a 
representative measurement of the pressure (e.g., PM scrubber pressure 
drop).
    (2) Minimize or eliminate pulsating pressure, vibration, and 
internal and external corrosion.
    (3) Use a pressure sensor with a minimum tolerance of 1.27 
centimeters of water or a minimum tolerance of 1 percent of the 
pressure monitoring system operating range, whichever is less.
    (4) Perform checks at least once each process operating day to 
ensure pressure measurements are not obstructed (e.g., check for 
pressure tap pluggage daily).
    (5) Conduct a performance evaluation of the pressure monitoring 
system in accordance with your monitoring plan at the time of each 
performance test but no less frequently than annually.
    (6) If at any time the measured pressure exceeds the manufacturer's 
specified maximum operating pressure range, conduct a performance 
evaluation of the pressure monitoring system in accordance with your 
monitoring plan and confirm that the pressure monitoring system 
continues to meet the performance requirements in your monitoring plan. 
Alternatively, install and verify the operation of a new pressure 
sensor.
    (p) If you have an operating limit that requires a secondary 
electric power monitoring system for an electrostatic precipitator, you 
must meet the requirements in paragraphs (l) and (p)(1) and (2) of this 
section.
    (1) Install sensors to measure (secondary) voltage and current to 
the precipitator collection plates.
    (2) Conduct a performance evaluation of the electric power 
monitoring system in accordance with your monitoring plan at the time 
of each performance test but no less frequently than annually.
    (q) If you have an operating limit that requires the use of a 
monitoring system to measure sorbent injection rate (e.g., weigh belt, 
weigh hopper, or hopper flow measurement device), you must meet the 
requirements in paragraphs (l) and (q)(1) through (3) of this section.
    (1) Install the system in a position(s) that provides a 
representative measurement of the total sorbent injection rate.
    (2) Conduct a performance evaluation of the sorbent injection rate 
monitoring

[[Page 80515]]

system in accordance with your monitoring plan at the time of each 
performance test but no less frequently than annually.
    (r) If you elect to use a fabric filter bag leak detection system 
to comply with the requirements of this subpart, you must install, 
calibrate, maintain, and continuously operate a bag leak detection 
system as specified in paragraphs (l) and (r)(1) through (5) of this 
section.
    (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.
    (2) Use a bag leak detection system certified by the manufacturer 
to be capable of detecting particulate matter emissions at 
concentrations of 10 milligrams per actual cubic meter or less.
    (3) Conduct a performance evaluation of the bag leak detection 
system in accordance with your monitoring plan and consistent with the 
guidance provided in EPA-454/R-98-015 (incorporated by reference, see 
Sec.  60.17).
    (4) Use a bag leak detection system equipped with a device to 
continuously record the output signal from the sensor.
    (5) Use a bag leak detection system equipped with a system that 
will sound an alarm when an increase in relative particulate matter 
emissions over a preset level is detected. The alarm must be located 
where it is observed readily by plant operating personnel.
    (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 and calculating a 30-day rolling 
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 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 continuous emissions monitors 
and the test methods specified in paragraphs (s)(1)(i) and (s)(1)(ii) 
of this section.
    (i) For sulfur dioxide, EPA Reference Method 6 or 6C, or as an 
alternative ANSI/ASME PTC 19.10-1981 (incorporated by reference, see 
Sec.  60.17) 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 continuous emissions monitoring system 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.
    (3) Conduct accuracy determinations quarterly and calibration drift 
tests daily in accordance with procedure 1 in appendix F of this part.
    (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 and calculating a 
30-day rolling 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.
    (3) Conduct accuracy determinations quarterly and calibration drift 
tests daily in accordance with procedure 1 in appendix F of this part.
    (4) The owner or operator of an affected facility may request that 
compliance with the nitrogen oxides emission limit be determined using 
carbon dioxide measurements corrected to an equivalent of 7 percent 
oxygen. If carbon dioxide is selected for use in diluent corrections, 
the relationship between oxygen and carbon dioxide levels must be 
established during the initial performance test according to the 
procedures and methods specified in paragraphs (t)(4)(i) through 
(t)(4)(iv) of this section. This relationship may be reestablished 
during performance compliance tests.
    (i) The fuel factor equation in Method 3B must be used to determine 
the relationship between oxygen and carbon dioxide at a sampling 
location. Method 3A, 3B, or as an alternative ANSI/ASME PTC 19.10-1981 
(incorporated by reference, see Sec.  60.17), as applicable, must be 
used to determine the oxygen concentration at the same location as the 
carbon dioxide monitor.
    (ii) Samples must be taken for at least 30 minutes in each hour.
    (iii) Each sample must represent a 1-hour average.
    (iv) A minimum of 3 runs must be performed.
    (u) For facilities using a continuous emissions monitoring system 
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, calculated using Equation 19-19 in 
section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix 
A-7.
    (2) Operate all continuous emissions monitoring system in 
accordance with the applicable procedures under appendices B and F of 
this part.
    (v) Use of the bypass stack at any time is an emissions standards 
deviation for particulate matter, HCl, Pb, Cd, Hg, NO\X\, 
SO2, and dioxin/furans.
    (w) For energy recovery units with a design heat input capacity of 
100 MMBtu per hour or greater that do not use an carbon monoxide CEMS, 
you must install, operate, and maintain a oxygen analyzer system as 
defined in Sec.  60.2875 according to the procedures in

[[Page 80516]]

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 with the oxygen level 
set at the minimum percent oxygen by volume that is established as the 
operating limit for oxygen according to paragraph (w)(3) of this 
section.
    (3) You must maintain the oxygen level such that it 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 design heat input capacities 
greater than or equal to 250 MMBtu/hour, you must install, certify, 
maintain, and operate a PM CPMS monitoring emissions discharged to the 
atmosphere and record the output of the system as specified in 
paragraphs (x)(1) through (5) of this section. For other energy 
recovery units, you may elect to use PM CPMS operated in accordance 
with this section in lieu of using other CMS for monitoring PM 
compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber 
pressure)
    (1) Install, certify, 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 extractive light scatter, light scintillation, or beta 
attenuation of the exhaust gas or representative exhaust gas sample. 
The reportable measurement output from the PM CPMS may be expressed as 
milliamps, stack concentration, or other raw data signal.
    (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) Collect PM CPMS hourly average output data for all energy 
recovery unit operating hours. Express the PM CPMS output as millamps, 
PM concentration, or other raw data signal value.
    (3) Calculate the arithmetic 30-day rolling average of all of the 
hourly average PM CPMS output collected during all energy recovery unit 
operating hours data (e.g., milliamps, PM concentration, raw data 
signal).
    66. Section 60.2715 is revised to read as follows:


Sec.  60.2715  By what date must I conduct the annual performance test?

    You must conduct annual performance tests between 11 and 13 months 
of the previous performance test.
    67. Section 60.2716 is added to read as follows:


Sec.  60.2716  By what date must I conduct the annual air pollution 
control device inspection?

    On an annual basis (no more than 12 months following the previous 
annual air pollution control device inspection), you must complete the 
air pollution control device inspection as described in Sec.  60.2706.
    68. Section 60.2720 is revised to read as follows:


Sec.  60.2720  May I conduct performance testing less often?

    (a) You must conduct annual performance tests according to the 
schedule specified in Sec.  60.2715, with the following exceptions:
    (1) You may conduct a repeat performance test at any time to 
establish new values for the operating limits to apply from that point 
forward, as specified in Sec.  60.2725. The Administrator may request a 
repeat performance test at any time.
    (2) You must repeat the performance test within 60 days of a 
process change, as defined in Sec.  60.2875.
    (3) If the initial or any subsequent performance test for any 
pollutant in table 2 or tables 6 through 9 of this subpart, as 
applicable, demonstrates that the emission level for the pollutant is 
no greater than the emission level specified in paragraph (a)(3)(i) or 
(ii) of this section, as applicable, and you are not required to 
conduct a performance test for the pollutant in response to a request 
by the Administrator in paragraph (a)(1) of this section or a process 
change in paragraph (a)(2) of this section, you may elect to skip 
conducting a performance test for the pollutant for the next 2 years. 
You must conduct a performance test for the pollutant during the third 
year and no more than 37 months following the previous performance test 
for the pollutant. For cadmium and lead, both cadmium and lead must be 
emitted at emission levels no greater than their respective emission 
levels specified in paragraph (a)(3)(i) of this section for you to 
qualify for less frequent testing under this paragraph.
    (i) For particulate matter, hydrogen chloride, mercury, carbon 
monoxide, nitrogen oxides, sulfur dioxide, cadmium, lead, and dioxins/
furans, the emission level equal to 75 percent of the applicable 
emission limit in table 2 or tables 6 through 9 of this subpart, as 
applicable, to this subpart.
    (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 observations periods.
    (4) If you are conducting less frequent testing for a pollutant as 
provided in paragraph (a)(3) of this section and a subsequent 
performance test for the pollutant indicates that your CISWI unit does 
not meet the emission level specified in paragraph (a)(3)(i) or (ii) of 
this section, as applicable, you must conduct annual performance tests 
for the pollutant according to the schedule specified in paragraph (a) 
of this section until you qualify for less frequent testing for the 
pollutant as specified in paragraph (a)(3) of this section.
    (b) [Reserved]
    69. Section 60.2730 is amended by revising paragraphs (b)(6) and 
(c) and adding paragraphs (d) through (r) to read as follows:


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

* * * * *
    (b) * * *
    (6) The bag leak detection system must be equipped with an alarm 
system that will alert automatically an operator when an increase in 
relative particulate matter emission over a preset level is detected. 
The alarm must be located where it is observed easily by plant 
operating personnel.
* * * * *
    (c) If you are using something other than a wet scrubber, activated 
carbon, selective non-catalytic reduction, or an electrostatic 
precipitator 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.
    (d) If you use activated carbon injection to comply with the 
emission limitations in this subpart, you must measure the minimum 
sorbent flow rate once per hour.
    (e) If you use selective noncatalytic reduction to comply with the 
emission limitations, you must complete the following:

[[Page 80517]]

    (1) Following the date on which the initial performance test is 
completed or is required to be completed under Sec.  60.2690, whichever 
date comes first, ensure that the affected facility does not operate 
above the maximum charge rate, or below the minimum secondary chamber 
temperature (if applicable to your CISWI unit) or the minimum reagent 
flow rate measured as 3-hour block averages at all times.
    (2) Operation of the affected facility above the maximum charge 
rate, below the minimum secondary chamber temperature and below the 
minimum reagent flow rate simultaneously constitute a violation of the 
nitrogen oxides emissions limit.
    (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, 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, a facility may substitute use of a hydrogen chloride 
continuous emissions monitoring system for conducting the hydrogen 
chloride annual performance test, monitoring the minimum hydrogen 
chloride sorbent flow rate and monitoring the minimum scrubber liquor 
pH.
    (h) To demonstrate continuous compliance with the particulate 
matter emissions limit, a facility may substitute use of a particulate 
matter continuous emissions monitoring system for conducting the 
particulate matter annual performance test and monitoring the minimum 
pressure drop across the wet scrubber, if applicable.
    (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).
    (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).
    (k) To demonstrate continuous compliance with the nitrogen oxides 
emissions limit, a facility may substitute use of a continuous 
emissions monitoring system for the nitrogen oxides annual performance 
test to demonstrate compliance with the nitrogen oxides emissions 
limits.
    (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 (dry basis) and used to calculate the 30-day rolling 
average concentrations. The 1-hour arithmetic averages must be 
calculated using the data points required under Sec.  60.13(e)(2).
    (l) To demonstrate continuous compliance with the sulfur dioxide 
emissions limit, a facility may substitute use of a continuous 
automated sampling system for the sulfur dioxide annual performance 
test to demonstrate compliance with the sulfur dioxide emissions 
limits.
    (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. 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 
continuous emissions monitoring system 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).
    (1) Install, operate and maintain each continuous opacity 
monitoring system according to performance specification 1 at 40 CFR 
part 60, appendix B.
    (2) Conduct a performance evaluation of each continuous opacity 
monitoring system according to the requirements in Sec.  60.13 and 
according to performance

[[Page 80518]]

specification 1 at 40 CFR part 60, appendix B.
    (3) As specified in Sec.  60.13(e)(1), each continuous opacity 
monitoring system must complete a minimum of one cycle of sampling and 
analyzing for each successive 10-second period and one cycle of data 
recording for each successive 6-minute period.
    (4) Reduce the continuous opacity monitoring system data as 
specified in Sec.  60.13(h)(1).
    (5) Determine and record all the 6-minute averages (and 1-hour 
block averages as applicable) collected.
    (n) For energy recovery units with design capacities greater than 
250 MMBtu/hr and waste-burning kilns, in place of particulate matter 
testing with EPA Method 5 at 40 CFR part 60, appendix A-3, an owner or 
operator must 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 must install, calibrate, maintain and 
operate a CEMS and must comply with the requirements specified in 
paragraphs (n)(1) through (14) of this section.
    (1) Notify the Administrator 1 month before starting use of the 
system.
    (2) Notify the Administrator 1 month before stopping use of the 
system.
    (3) The monitor must be installed, evaluated and operated in 
accordance with the requirements of performance specification 11 of 
appendix B of this part and quality assurance requirements of procedure 
2 of appendix F of this part and Sec.  60.13.
    (4) The initial performance evaluation must be completed no later 
than 180 days after the final compliance date for meeting the amended 
emission limitations, as specified under Sec.  60.2690 or within 180 
days of notification to the Administrator of use of the continuous 
monitoring system if the owner or operator was previously determining 
compliance by Method 5 at 40 CFR part 60, appendix A-3 performance 
tests, whichever is later.
    (5) The owner or operator of an affected facility may request that 
compliance with the particulate matter emission limit be determined 
using carbon dioxide measurements corrected to an equivalent of 7 
percent oxygen. The relationship between oxygen and carbon dioxide 
levels for the affected facility must be established according to the 
procedures and methods specified in Sec.  60.2710(s)(5)(i) through 
(iv).
    (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 must be determined by using the CEMS specified in paragraph (n) 
of this section to measure particulate matter and calculating a 30-day 
rolling 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 of 
this part.
    (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.
    (8) At a minimum, valid continuous monitoring system hourly 
averages must be obtained as specified Sec.  60.2735.
    (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. 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 
continuous emissions monitors and the following test methods.
    (i) For particulate matter, EPA Reference Method 5 at 40 CFR part 
60, appendix A-3 must be used.
    (ii) For oxygen (or carbon dioxide), EPA Reference Method 3A or 3B 
at 40 CFR part 60, appendix A-2, as applicable, must be used.
    (13) Quarterly accuracy determinations and daily calibration drift 
tests must be performed in accordance with procedure 2 in appendix F of 
this part.
    (14) When particulate matter emissions data are missing because of 
CEMS breakdowns, repairs, calibration checks and zero and span 
adjustments, you must collect emissions data by using other monitoring 
systems as approved by the Administrator or EPA Reference Method 19 at 
40 CFR part 60, appendix A-7 to provide, as necessary, valid emissions 
data for a minimum of 85 percent of the hours per day, 90 percent of 
the hours per calendar quarter, and 95 percent of the hours per 
calendar year that the affected facility is operated and combusting 
waste.
    (o) To demonstrate continuous compliance with the carbon monoxide 
emissions limit, a facility may substitute use of a continuous 
automated sampling system for the carbon monoxide annual performance 
test to demonstrate compliance with the carbon monoxide emissions 
limits.
    (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 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).
    (p) The owner/operator of an affected source with a bypass stack 
shall install, calibrate (to manufacturers' specifications), maintain 
and operate a device or method for measuring the use of the bypass 
stack including date, time and duration.
    (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

[[Page 80519]]

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 with the oxygen level 
set at the minimum percent oxygen by volume that is established as the 
operating limit for oxygen according to paragraph (q)(3) of this 
section.
    (3) You must maintain the oxygen level such that it 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 design heat input capacities 
greater than or equal to 250 MMBtu/hour, you must install, certify, 
maintain, and operate a PM CPMS monitoring emissions discharged to the 
atmosphere and record the output of the system as specified in 
paragraphs (r)(1) through (5) of this section. For other energy 
recovery units, you may elect to use PM CPMS operated in accordance 
with this section in lieu of using other CMS for monitoring PM 
compliance (e.g., bag leak detectors, ESP secondary power, PM scrubber 
pressure).
    (1) Install, certify, 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, or beta 
attenuation of the exhaust gas or representative exhaust gas sample. 
The reportable measurement output from the PM CPMS may be expressed as 
milliamps, stack concentration, or other raw data signal.
    (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) Collect PM CPMS hourly average output data for all energy 
recovery unit operating hours. Express the PM CPMS output as millamps, 
PM concentration, or other raw data signal value.
    (3) Calculate the arithmetic 30-day rolling average of all of the 
hourly average PM CPMS output collected during all energy recovery unit 
operating hours data (e.g., milliamps, PM concentration, raw data 
signal).
    70. Section 60.2735 is revised to read as follows:


Sec.  60.2735  Is there a minimum amount of monitoring data I must 
obtain?

    For each continuous monitoring system required or optionally 
allowed under Sec.  60.2730, you must monitor and collect data 
according to this section:
    (a) You must operate the monitoring system and collect data at all 
required intervals at all times compliance is required except for 
periods of monitoring system malfunctions or out-of-control periods, 
repairs associated with monitoring system malfunctions or out-of-
control periods (as specified in Sec.  60.2770(o) of this part), and 
required monitoring system quality assurance or quality control 
activities including, as applicable, calibration checks and required 
zero and span adjustments. A monitoring system malfunction is any 
sudden, infrequent, not reasonably preventable failure of the 
monitoring system to provide valid data. Monitoring system failures 
that are caused in part by poor maintenance or careless operation are 
not malfunctions. You are required to effect monitoring system repairs 
in response to monitoring system malfunctions or out-of-control periods 
and to return the monitoring system to operation as expeditiously as 
practicable.
    (b) You may not use data recorded during the monitoring system 
malfunctions, 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.
    (c) Except for periods of monitoring system malfunctions or out-of-
control periods, repairs associated with monitoring system malfunctions 
or out-of-control periods, and required monitoring system quality 
assurance or quality control activities including, as applicable, 
calibration checks and required zero and span adjustments, failure to 
collect required data is a deviation of the monitoring requirements.
    71. Section 60.2740 is amended by:
    a. Revising the introductory text.
    b. Revising paragraphs (b)(5) and (e).
    c. Removing and reserving paragraphs (c) and (d).
    d. Adding paragraphs (n) through (u).
    The revisions and additions 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 (u) 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 (f) or 
Sec.  60.2680, you must maintain data collected for all operating 
parameters used to determine compliance with the operating limits.
* * * * *
    (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 (f) or Sec.  60.2680 with a description of the 
deviations, reasons for such deviations, and a description of 
corrective actions taken.
* * * * *
    (n) Maintain records of the annual air pollution control device 
inspections that are required for each CISWI unit subject to the 
emissions limits in table 2 of this subpart or tables 6 through 9 of 
this subpart, any required maintenance and any repairs not completed 
within 10 days of an inspection or the timeframe established by the 
state regulatory agency.
    (o) For continuously monitored pollutants or parameters, you must 
document and keep a record of the following parameters measured using 
continuous monitoring systems.
    (1) All 6-minute average levels of opacity.
    (2) All 1-hour average concentrations of sulfur dioxide emissions.
    (3) All 1-hour average concentrations of nitrogen oxides emissions.
    (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.
    (6) All 1-hour average concentrations of mercury emissions.
    (7) All 1-hour average concentrations of hydrogen chloride 
emissions.
    (8) All 1-hour average percent oxygen concentrations.
    (9) All 1-hour average PM CPMS readings or particulate matter 
continuous emissions monitor outputs.
    (p) Records indicating use of the bypass stack, including dates, 
times and durations.

[[Page 80520]]

    (q) If you choose to stack test less frequently than annually, 
consistent with Sec.  60.2720(a) through (c), you must keep annual 
records that document that your emissions in the previous stack test(s) 
were less than 75 percent of the applicable emission limit and document 
that there was no change in source operations including fuel 
composition and operation of air pollution control equipment that would 
cause emissions of the relevant pollutant to increase within the past 
year.
    (r) Records of the occurrence and duration of each malfunction of 
operation (i.e., process equipment) or the air pollution control and 
monitoring equipment.
    (s) Records of all required maintenance performed on the air 
pollution control and monitoring equipment.
    (t) Records of actions taken during periods of malfunction to 
minimize emissions in accordance with Sec.  60.11(d), including 
corrective actions to restore malfunctioning process and air pollution 
control and monitoring equipment to its normal or usual manner of 
operation.
    (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. 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. 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.
    72. Section 60.2770 is amended by revising paragraph (e) and adding 
paragraphs (k) through (p) to read as follows:


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

* * * * *
    (e) If no deviation from any emission limitation or operating limit 
that applies to you has been reported, a statement that there was no 
deviation from the emission limitations or operating limits during the 
reporting period.
* * * * *
    (k) If you had a malfunction during the reporting period, the 
compliance report must include the number, duration, and a brief 
description for each type of malfunction that occurred during the 
reporting period and that caused or may have caused any applicable 
emission limitation to be exceeded. The report must also include a 
description of actions taken by an owner or operator during a 
malfunction of an affected source to minimize emissions in accordance 
with Sec.  60.11(d), including actions taken to correct a malfunction.
    (l) For each deviation from an emission or operating limitation 
that occurs for a CISWI unit for which you are not using a CMS to 
comply with the emission or operating limitations in this subpart, the 
annual report must contain the following information.
    (1) The total operating time of the CISWI unit at which the 
deviation occurred during the reporting period.
    (2) Information on the number, duration, and cause of deviations 
(including unknown cause, if applicable), as applicable, and the 
corrective action taken.
    (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.
    (1) The date and time that each malfunction started and stopped.
    (2) The date, time, and duration that each CMS was inoperative, 
except for zero (low-level) and high-level checks.
    (3) The date, time, and duration that each continuous monitoring 
system was out-of-control, including start and end dates and hours and 
descriptions of corrective actions taken.
    (4) The date and time that each deviation started and stopped, and 
whether each deviation occurred during a period of malfunction or 
during another period.
    (5) A summary of the total duration of the deviation during the 
reporting period, and the total duration as a percent of the total 
source operating time during that reporting period.
    (6) A breakdown of the total duration of the deviations during the 
reporting period into those that are due to control equipment problems, 
process problems, other known causes, and other unknown causes.
    (7) A summary of the total duration of continuous monitoring system 
downtime during the reporting period, and the total duration of 
continuous monitoring system downtime as a percent of the total 
operating time of the CISWI unit at which the continuous monitoring 
system downtime occurred during that reporting period.
    (8) An identification of each parameter and pollutant that was 
monitored at the CISWI unit.
    (9) A brief description of the CISWI unit.
    (10) A brief description of the continuous monitoring system.
    (11) The date of the latest continuous monitoring system 
certification or audit.
    (12) A description of any changes in continuous monitoring system, 
processes, or controls since the last reporting period.
    (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.
    (o) A continuous monitoring system is out of control if any of the 
following occur.
    (1) The zero (low-level), mid-level (if applicable), or high-level 
calibration drift exceeds two times the applicable calibration drift 
specification in the applicable performance specification or in the 
relevant standard.
    (2) The continuous monitoring system fails a performance test audit 
(e.g., cylinder gas audit), relative accuracy audit, relative accuracy 
test audit, or linearity test audit.
    (3) The continuous opacity monitoring system calibration drift 
exceeds two times the limit in the applicable performance specification 
in the relevant standard.
    (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.
    73. Section 60.2780 is amended by revising paragraph (c) and 
removing paragraphs (e) and (f).


Sec.  60.2780  What must I include in the deviation report?

* * * * *
    (c) Durations and causes of the following:
    (1) Each deviation from emission limitations or operating limits 
and your corrective actions.
    (2) Bypass events and your corrective actions.
* * * * *
    74. Section 60.2790 is revised to read as follows:

[[Page 80521]]

Sec.  60.2790  Are there any other notifications or reports that I must 
submit?

    (a) Yes. You must submit notifications as provided by Sec.  60.7.
    (b) If you cease combusting solid waste but continue to operate, 
you must provide 30 days prior notice of the effective date of the 
waste-to-fuel switch, consistent with Sec.  60.2710(a). The 
notification must identify:
    (1) The name of the owner or operator of the CISWI unit, the 
location of the source, the emissions unit(s) that will cease burning 
solid waste, and the date of the notice;
    (2) The currently applicable subcategory under this subpart, and 
any 40 CFR part 63 subpart and subcategory that will be applicable 
after you cease combusting solid waste;
    (3) The fuel(s), non-waste material(s) and solid waste(s) the CISWI 
unit is currently combusting and has combusted over the past 6 months, 
and the fuel(s) or non-waste materials the unit will commence 
combusting;
    (4) The date on which you became subject to the currently 
applicable emission limits;
    (5) The date upon which you will cease combusting solid waste, and 
the date (if different) that you intend for any new requirements to 
become applicable (i.e., the effective date of the waste-to-fuel 
switch), consistent with paragraphs (b)(2) and (3) of this section).
    75. 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) After December 31, 2011, within 60 days after the date of 
completing each performance evaluation or performance test, as they are 
defined in Sec.  63.2, conducted to demonstrate compliance with this 
subpart, the owner or operator of the affected facility must submit the 
relative accuracy test audit data and performance test data, except 
opacity data, to EPA by successfully submitting the data electronically 
to EPA's Central Data Exchange (CDX) by using the Electronic Reporting 
Tool (ERT) (see http://www.epa.gov/ttn/chief/ert/ert_tool.html).
    76. Section 60.2805 is revised to read as follows:


Sec.  60.2805  Am I required to apply for and obtain a Title V 
operating permit for my unit?

    Yes. Each CISWI unit and air curtain incinerator subject to 
standards under this subpart must operate pursuant to a permit issued 
under Clean Air Act sections 129(e) and Title V.
    77. Section 60.2860 is revised to read as follows:


Sec.  60.2860  What are the emission limitations for air curtain 
incinerators?

    After the date the initial stack test is required or completed 
(whichever is earlier), you must meet the limitations in paragraphs (a) 
and (b) of this section.
    (a) Maintain opacity to less than or equal to 10 percent opacity 
(as determined by the average of three 1-hour blocks consisting of ten 
6-minute average opacity values), except as described in paragraph (b) 
of this section.
    (b) Maintain opacity to less than or equal to 35 percent opacity 
(as determined by the average of three 1-hour blocks consisting of ten 
6-minute average opacity values) during the startup period that is 
within the first 30 minutes of operation.
    78. Section 60.2870 is amended by revising paragraph (c)(2) to read 
as follows:


Sec.  60.2870  What are the recordkeeping and reporting requirements 
for air curtain incinerators?

* * * * *
    (c) * * *
    (2) The results (as determined by the average of three 1-hour 
blocks consisting of ten 6-minute average opacity values) of the 
initial opacity tests.
* * * * *
    79. Section 60.2875 is amended by:
    a. Adding definitions for ``Affirmative defense,'' ``Annual heat 
input,'' ``Average annual heat input rate,'' ``Burn-off oven,'' 
``Bypass stack,'' ``CEMS data during startup and shutdown'', ``Chemical 
recovery unit,'' ``Continuous monitoring system,'' ``Energy recovery 
unit,'' ``Energy recovery unit designed to burn biomass (Biomass),'' 
``Energy recovery unit designed to burn coal (Coal),'' ``Energy 
recovery unit designed to burn liquid wastes material and gas (Liquid/
gas),'' ``Energy recovery unit designed to burn solid materials 
(Solid),'' ``Foundry sand thermal reclamation unit,'' ``Homogeneous 
wastes,'' ``Incinerator,'' ``Kiln,'' ``Laboratory analysis unit,'' 
``Minimum voltage or amperage,'' ``Opacity,'' ``Operating day,'' 
``Oxygen analyzer system,'' ``Oxygen trim system,'' ``Performance 
evaluation,'' ``Performance test,'' ``Process change,'' ``Raw mill,'' 
``Small remote incinerator,'' ``Soil treatment unit,'' ``Solid waste 
incineration unit,'' ``Space heater'' and ``Waste-burning kiln,'' in 
alphabetical order.
    b. Revising the definition for ``Commercial and industrial solid 
waste incineration (CISWI) unit,'' ``Cyclonic burn barrel'', 
``Modification,'' and ``Wet scrubber.''
    c. Removing paragraph (3) of the definition for ``Deviation.''
    d. Removing the definition for ``Agricultural waste,'' ``Commercial 
or industrial waste,'' and ``Solid waste.''
    The additions and revisions read as follows:


Sec.  60.2875  What definitions must I know?

* * * * *
    Affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, regarding 
which the defendant has the burden of proof, and the merits of which 
are independently and objectively evaluated in a judicial or 
administrative proceeding.
    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.
* * * * *
    Burn-off oven means any rack reclamation unit, part reclamation 
unit, or drum reclamation unit. A burn-off oven is not an incinerator, 
waste-burning kiln, an energy recovery unit or a small, remote 
incinerator under this subpart.
    Bypass stack means a device used for discharging combustion gases 
to avoid severe damage to the air pollution control device or other 
equipment.
* * * * *
    CEMS data during startup and shutdown means carbon monoxide CEMS 
data collected during the first 4 hours of operation of energy recovery 
unit startup from a cold start and the hour of operation following the 
cessation of waste material being fed to the energy recovery unit 
during a unit shutdown.
    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, 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

[[Page 80522]]

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.  60.2740(u), the material is a 
solid waste and 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.
* * * * *
    Continuous monitoring system (CMS) means the total equipment, 
required under the emission monitoring sections in applicable subparts, 
used to sample and condition (if applicable), to analyze, and to 
provide a permanent record of emissions or process parameters. A 
particulate matter continuous parameter monitoring system (PM CPMS) is 
a type of CMS.
* * * * *
    Cyclonic burn barrel means a combustion device for waste materials 
that is attached to a 55 gallon, openhead drum. The device consists of 
a lid, which fits onto and encloses the drum, and a blower that forces 
combustion air into the drum in a cyclonic manner to enhance the mixing 
of waste material and air. A cyclonic burn barrel is not an 
incinerator, waste-burning kiln, an energy recovery unit or a small, 
remote incinerator under this subpart.
    Deviation means any instance in which an affected source subject to 
this subpart, or an owner or operator of such a source:
    (1) Fails to meet any requirement or obligation established by this 
subpart, including but not limited to any emission limitation, 
operating limit, or operator qualification and accessibility 
requirements.
    (2) Fails to meet any term or condition that is adopted to 
implement an applicable requirement in this subpart and that is 
included in the operating permit for any affected source required to 
obtain such a permit.
* * * * *
    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 coal (Coal) means an energy 
recovery unit that burns solid waste and at least 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 material 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.
    Energy recovery unit designed to burn solid materials (Solid) 
includes energy recovery units designed to burn coal and energy 
recovery units designed to burn biomass.
* * * * *
    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, waste-
burning kiln, an energy recovery unit or a small, remote incinerator 
under this subpart.
* * * * *
    Homogeneous wastes are stable, consistent in formulation, have 
known fuel properties, have a defined origin, have predictable chemical 
and physical attributes, and result in consistent combustion 
characteristics and have a consistent emissions profile.
    Incinerator means any furnace used in the process of combusting 
solid waste (as the 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.
    Kiln means an oven or furnace, including any associated preheater 
or precalciner devices, used for processing a substance by burning, 
firing or drying. Kilns include cement kilns that produce clinker by 
heating limestone and other materials for subsequent production of 
Portland Cement.
    Laboratory analysis unit means units that burn samples of materials 
for the purpose of chemical or physical analysis. A laboratory analysis 
unit is not an incinerator, waste-burning kiln, an energy recovery unit 
or a small, remote incinerator under this subpart.
* * * * *
    Minimum voltage or amperage means 90 percent of the lowest test-run 
average voltage or amperage to the electrostatic precipitator measured 
during the most recent particulate matter or mercury performance test 
demonstrating compliance with the applicable emission limits.
    Modification or modified CISWI unit means a CISWI unit that has 
been changed later than June 1, 2001, 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 Clean Air Act section 129 or section 111 has established 
standards.

[[Page 80523]]

    Opacity means the degree to which emissions reduce the transmission 
of light and obscure the view of an object in the background.
    Operating day means a 24-hour period between 12:00 midnight and the 
following midnight during which any amount of solid waste is combusted 
at any time in the CISWI unit.
    Oxygen analyzer system means all equipment required to determine 
the oxygen content of a gas stream and used to monitor oxygen in the 
boiler flue gas or firebox. This definition includes oxygen trim 
systems. 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.
* * * * *
    Performance evaluation means the conduct of relative accuracy 
testing, calibration error testing, and other measurements used in 
validating the continuous monitoring system data.
    Performance test means the collection of data resulting from the 
execution of a test method (usually three emission test runs) used to 
demonstrate compliance with a relevant emission standard as specified 
in the performance test section of the relevant standard.
    Process change means a significant permit revision, but only with 
respect to those pollutant-specific emission units for which the 
proposed permit revision is applicable, including but not limited to a 
change in the air pollution control devices used to comply with the 
emission limits for the affected CISWI unit (e.g., change in the 
sorbent used for activated carbon injection).
* * * * *
    Raw mill means a ball and 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.
* * * * *
    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, waste-burning kiln, an energy recovery unit 
or a small, remote incinerator under this subpart.
    Solid waste incineration unit means a distinct operating unit of 
any facility which combusts any solid (as that term is defined by the 
Administrator in 40 CFR part 241) waste 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 (A) materials recovery facilities 
(including primary or secondary smelters) which combust waste for the 
primary purpose of recovering metals, (B) 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 (C) 
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 usually portable appliance for heating a 
relatively small area. A space heater is not an incinerator, 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). A waste-burning kiln does not 
include a kiln that is feeding non-hazardous secondary ingredients 
exclusively into the cold end of the kiln.
    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.
* * * * *
    80. Table 1 to Subpart DDDD of Part 60 is revised to read as 
follows:

 Table 1 to Subpart DDDD of Part 60--Model Rule--Increments of Progress
                        and Compliance Schedules
------------------------------------------------------------------------
 Comply with these increments of progress        By these dates \a\
------------------------------------------------------------------------
Increment 1--Submit final control plan....  (Dates to be specified in
                                             state plan).
Increment 2--Final compliance.............  (Dates to be specified in
                                             state plan).\b\
------------------------------------------------------------------------
\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 [DATE 5 YEARS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE
  IN THE FEDERAL REGISTER] for CISWI units that commenced construction
  on or before June 4, 2010. For small remote incinerators, the date can
  be no later than 3 years after the effective date of approval of a
  revised state plan or March 21, 2016 for small remote incinerator
  CISWI units that commenced construction on or before June 4, 2010.

    81. Table 2 to subpart DDDD is amended by:
    a. Revising the heading.
    b. Revising the entries for ``Hydrogen chloride,'' ``Mercury,'' 
``Opacity'' and ``Oxides of nitrogen.''
    c. Adding footnotes b and c.

[[Page 80524]]



 Table 2 to Subpart DDDD of Part 60-Model Rule--Emission Limitations That Apply Before [Date To Be Specified in
                                                 State Plan] \b\
----------------------------------------------------------------------------------------------------------------
                                                                                             And determining
        For the air pollutant             You must meet this      Using this averaging    compliance using this
                                       emission limitation \a\            time                    method
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Hydrogen chloride....................  62 parts per million by  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).
 
                                                  * * * * * * *
Mercury..............................  0.47 milligrams per dry  3-run average (1 hour    Performance test
                                        standard cubic meter.    minimum sample time      (Method 29 or 30B at
                                                                 per run).                40 CFR part 60,
                                                                                          appendix A-8) or ASTM
                                                                                          D6784-02 (Reapproved
                                                                                          2008).\c\
Opacity..............................  10 percent.............  Three 1-hour blocks      Performance test
                                                                 consisting of ten 6-     (Method 9 at 40 CFR
                                                                 minute average opacity   part 60, appendix A-
                                                                 values.                  4).
 
                                                  * * * * * * *
Oxides of nitrogen...................  388 parts per million    3-run average (1 hour    Performance test
                                        by dry volume.           minimum sample time      (Methods 7 or 7E at 40
                                                                 per run).                CFR part 60, appendix
                                                                                          A-4).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\b\ 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 [DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
\c\ Incorporated by reference, see Sec.   60.17.

    82. Table 4 of subpart DDDD is amended by revising the column 
headings to read as follows:

    Table 4 to Subpart DDDD of Part 60--Model Rule--Toxic Equivalency
                                 Factors
------------------------------------------------------------------------
        Dioxin/furan isomer                Toxic equivalency factor
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------

    83. Table 5 of subpart DDDD is amended by:
    a. Revising the entry for ``Annual Report''.
    b. Revising the entry for ``Emission limitation or operating limit 
deviation report''.

                    Table 5 to Subpart DDDD of Part 60--Summary of Reporting Requirement \a\
----------------------------------------------------------------------------------------------------------------
              Report                         Due date                    Contents                 Reference
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Annual report.....................  No later than 12 months      Name and address.  Sec.  Sec.   60.2765
                                     following the submission    Statement and       and 60.2770.
                                     of the initial test         signature by responsible
                                     report. Subsequent          official.
                                     reports are to be           Date of report...
                                     submitted no more than 12   Values for the
                                     months following the        operating limits..
                                     previous report.            Highest recorded
                                                                 3-hour average and the
                                                                 lowest 3-hour average, as
                                                                 applicable, for each
                                                                 operating parameter
                                                                 recorded for the calendar
                                                                 year being reported..
                                                                 If a performance
                                                                 test was conducted during
                                                                 the reporting period, the
                                                                 results of the test.
                                                                 If a performance
                                                                 test was not conducted
                                                                 during the reporting
                                                                 period, a statement that
                                                                 the requirements of Sec.
                                                                  60.2720(a) were met.

[[Page 80525]]

 
                                                                 Documentation of
                                                                 periods when all
                                                                 qualified CISWI unit
                                                                 operators were
                                                                 unavailable for more than
                                                                 8 hours but less than 2
                                                                 weeks.
                                                                 If you are
                                                                 conducting performance
                                                                 tests once every 3 years
                                                                 consistent with Sec.
                                                                 60.2720(a), the date of
                                                                 the last 2 performance
                                                                 tests, a comparison of
                                                                 the emission level you
                                                                 achieved in the last 2
                                                                 performance tests to the
                                                                 75 percent emission limit
                                                                 threshold required in
                                                                 Sec.   60.2720(a) and a
                                                                 statement as to whether
                                                                 there have been any
                                                                 operational changes since
                                                                 the last performance test
                                                                 that could increase
                                                                 emissions.
 
                                                  * * * * * * *
Emission limitation or operating    By August 1 of that year     Dates and times    Sec.   60.2775 and
 limit deviation report.             for data collected during   of deviation.               60.2780.
                                     the first half of the       Averaged and
                                     calendar year. By           recorded data for those
                                     February 1 of the           dates..
                                     following year for data     Duration and
                                     collected during the        causes of each deviation
                                     second half of the          and the corrective
                                     calendar year.              actions taken..
                                                                 Copy of operating
                                                                 limit monitoring data and
                                                                 any test reports..
                                                                 Dates, times and
                                                                 causes for monitor
                                                                 downtime incidents..
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ This table is only a summary, see the referenced sections of the rule for the complete requirements.

    84. Table 6 to Subpart DDDD is added 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\
----------------------------------------------------------------------------------------------------------------
                                                                                             And determining
        For the air pollutant             You must meet this      Using this averaging    compliance using this
                                       emission limitation \b\            time                    method
----------------------------------------------------------------------------------------------------------------
Cadmium..............................  0.0026 milligrams per    3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 2    (Method 29 at 40 CFR
                                        meter.                   dry standard cubic       part 60, appendix A-
                                                                 meters).                 8). Use ICPMS for the
                                                                                          analytical finish.
Carbon monoxide......................  36 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)....  4.6 nanograms per dry    3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 2    (Method 23 at 40 CFR
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meters).                 7).
Dioxins/furans (toxic equivalency      0.13 nanograms per dry   3-run average (collect   Performance test
 basis).                                standard cubic meter.    a minimum volume of 2    (Method 23 at 40 CFR
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meters).                 7).
Hydrogen chloride....................  29 parts per million     3-run average (For       Performance test
                                        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.................................  0.0036 milligrams per    3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 2    (Method 29 at 40 CFR
                                        meter.                   dry standard cubic       part 60, appendix A-
                                                                 meters).                 8). Use ICPMS for the
                                                                                          analytical finish.
Mercury..............................  0.0054 milligrams per    3-run average (For       Performance test
                                        dry standard cubic       Method 29 an 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).\c\
                                                                 meters per run. For
                                                                 Method 30B, collect a
                                                                 minimum sample as
                                                                 specified in Method
                                                                 30B at 40 CFR part 60,
                                                                 appendix A).

[[Page 80526]]

 
Oxides of nitrogen...................  53 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........  34 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
                                                                 meter).                  A-3 or appendix A-8).
Sulfur dioxide.......................  11 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.
Fugitive ash.........................  Visible emissions for    Three 1-hour             Visible emission test
                                        no more than 5% of the   observation periods.     (Method 22 at 40 CFR
                                        hourly observation                                part 60, appendix A-
                                        period.                                           7).
----------------------------------------------------------------------------------------------------------------
\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 [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
\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\ Incorporated by reference, see Sec.   60.17.

    85. Table 7 of Subpart DDDD is added as follows:

 Table 7 to Subpart DDDD of Part 60--Model Rule--Emission Limitations That Apply to Energy Recovery Units After
                                    [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--0.00078    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.        2 dry standard      appendix A-8).
                                                      Coal--0.058          cubic meters).      Use ICPMS for the
                                                       milligrams per                          analytical
                                                       dry standard                            finish.
                                                       cubic meter..
Carbon monoxide.................  36 parts per        Biomass--490 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--46 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\.          1 dry standard      appendix A-7).
                                                      Coal--0.51           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        0.50 parts per      3-run average (for  Performance test
                                   million dry         million dry         Method 26,          (Method 26 or 26A
                                   volume.             volume.             collect a minimum   at 40 CFR part
                                                                           of 120 liters;      60, appendix A-
                                                                           for Method 26A,     8).
                                                                           collect a minimum
                                                                           volume of 1 dry
                                                                           standard cubic
                                                                           meter).
Lead............................  0.096 milligrams    Biomass--0.0019     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.        2 dry standard      appendix A-8).
                                                      Coal--0.0031         cubic meters).      Use ICPMS for the
                                                       milligrams per                          analytical
                                                       dry standard                            finish.
                                                       cubic meter..

[[Page 80527]]

 
Mercury.........................  0.031 milligrams    0.0020 milligrams   3-run average (For  Performance test
                                   per dry standard    per dry standard    Method 29 and       (Method 29 or 30B
                                   cubic meter.        cubic meter.        ASTM D6784-02       at 40 CFR part
                                                                           (Reapproved 2008)   60, appendix A-8)
                                                                           \b\, collect a      or ASTM D6784-02
                                                                           minimum volume of   (Reapproved 2008)
                                                                           2 dry standard      \d\.
                                                                           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 or 30-  1 dry standard      60, appendix A-3
                                                       day rolling         cubic meter).       or appendix A-8)
                                                       average if PM                           if the unit has a
                                                       CEMS is required                        design capacity
                                                       or being used.                          less than or
                                                      Coal--86                                 equal to 250
                                                       milligrams per                          MMBtu/hr; or PM
                                                       dry standard                            CEMS (performance
                                                       cubic meter or 30-                      specification 11
                                                       day rolling                             of appendix B and
                                                       average if PM                           procedure 2 of
                                                       CEMS is required                        appendix F of
                                                       or being used..                         this part) if the
                                                                                               unit has a design
                                                                                               capacity greater
                                                                                               than 250 MMBtu/
                                                                                               hr. Use Method 5
                                                                                               or 5I of Appendix
                                                                                               A of this part
                                                                                               and collect a
                                                                                               minimum sample
                                                                                               volume of 1 dscm
                                                                                               for the PM CEMS
                                                                                               correlation
                                                                                               testing.
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-4.
                                                       per million dry
                                                       volume..
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 [DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]
\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 provision 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 75 percent of this limit in order to qualify for skip testing.
\d\ Incorporated by reference, see Sec.   60.17.

    86. Table 8 of Subpart DDDD is added 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\
----------------------------------------------------------------------------------------------------------------
                                                                                             And determining
        For the air pollutant             You must meet this      Using this averaging    compliance using this
                                       emission limitation \b\            time                    method
----------------------------------------------------------------------------------------------------------------
Cadmium..............................  0.00082 milligrams per   3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 2    (Method 29 at 40 CFR
                                        meter.                   dry standard cubic       part 60, appendix A-
                                                                 meters).                 8).

[[Page 80528]]

 
Carbon monoxide......................  120 (long kilns)/410     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)....  3.6 nanograms per dry    3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 1    (Method 23 at 40 CFR
                                                                 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 1    (Method 23 at 40 CFR
                                        \c\.                     dry standard cubic       part 60, appendix A-
                                                                 meter).                  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.................................  0.0043 milligrams per    3-run average (collect   Performance test
                                        dry standard cubic       a minimum volume of 2    (Method 29 at 40 CFR
                                        meter.                   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). Use a span gas
                                                                                          with a concentration
                                                                                          of 1000 ppm or less.
Particulate matter filterable........  9.2 milligrams per dry   30-day rolling average.  PM CEMS (performance
                                        standard cubic meter.                             specification 11 of
                                                                                          appendix B and
                                                                                          procedure 2 of
                                                                                          appendix F of this
                                                                                          part; Use Method 5 or
                                                                                          5I of Appendix A of
                                                                                          this part and collect
                                                                                          a minimum sample
                                                                                          volume of 2 dscm for
                                                                                          the PM CEMS
                                                                                          correlation testing.).
Sulfur dioxide.......................  830 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 [DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]
\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 provision 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 75 percent of this limit in order to qualify for skip testing.

    87. Table 9 of Subpart DDDD is added as follows:

  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..............................  0.61 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-
                                                                 meter).                  8).
Carbon monoxide......................  20 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)....  1,200 nanograms per dry  3-run average (collect   Performance test
                                        standard cubic meter.    a minimum volume of 1    (Method 23 at 40 CFR
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meter).                  7).
Dioxins/furans (toxic equivalency      57 nanograms per dry     3-run average (collect   Performance test
 basis).                                standard cubic meter.    a minimum volume of 1    (Method 23 at 40 CFR
                                                                 dry standard cubic       part 60, appendix A-
                                                                 meter).                  7).

[[Page 80529]]

 
Hydrogen chloride....................  220 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.................................  2.7 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-
                                                                 meter).                  8).
Mercury..............................  0.0057 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) \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...................  240 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........  230 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
                                                                 meter).                  A-3 or appendix A-8).
Sulfur dioxide.......................  420 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).
Fugitive ash.........................  Visible emissions for    Three 1-hour             Visible emission test
                                        no more than 5 percent   observation periods.     (Method 22 at 40 CFR
                                        of the hourly                                     part 60, appendix A-
                                        observation period.                               7).
----------------------------------------------------------------------------------------------------------------
\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 [DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
\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

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

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

Subpart A--General

    89. Section 241.2 is amended by:
    a. Revising the definition of ``clean cellulosic biomass.''
    b. Revising the definition of ``contaminants.''
    c. Revising the definition of ``established tire collection 
programs.''


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 
normally associated with virgin biomass materials.
* * * * *
    Contaminants means all pollutants listed in Clean Air Act sections 
112(b) and 129(a)(4), with modifications outlined in this definition to 
reflect constituents found in non-hazardous secondary materials prior 
to combustion. The definition includes the following elemental 
contaminants that commonly form Clean Air Act section 112(b) and 
129(a)(4) pollutants: Antimony, arsenic, beryllium, cadmium, chlorine, 
chromium, cobalt, fluorine, lead, manganese, mercury, nickel, nitrogen, 
selenium, and sulfur. The definition does not include the following 
Clean Air Act section 112(b) and 129(a)(4) pollutants that are either 
unlikely to be found in non-hazardous secondary materials prior to 
combustion 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, diazomethane, white phosphorus, titanium tetrachloride, 
m-cresol, o-cresol, p-cresol, m-xylene, o-xylene, and p-xylene.
* * * * *

[[Page 80530]]

    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.
* * * * *

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

    90. Amend 241.3 as follows:
    a. Revise paragraph (a),
    b. Remove and reserve paragraphs (b)(2)(i) and (ii),
    c. Revise paragraph (d)(1)(iii).


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 
241.4(a) of this subpart, non-hazardous secondary materials that are 
combusted are presumed to be solid wastes, unless a petition is 
submitted to, and a determination granted by, the Regional 
Administrator 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.
* * * * *
    (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 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. 
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. 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.
* * * * *
    91. 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.
    (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 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 section 
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. 2011-31648 Filed 12-22-11; 8:45 am]
BILLING CODE 6560-50-P


