# Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Proposed Amendments; Non-Hazardous Secondary Materials That Are Solid Waste > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-31648 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** December 23, 2011 - **Citation:** 76 FR 80452 ## Text 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 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 CO 2 Carbon Dioxide Catalyst Carbon Monoxide Oxidation Catalyst Cl 2 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) NO X 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 SO 2 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: Category NAICS 1 Code Examples of potentially regulated entities Any industrial or commercial facility using a solid waste incinerator 211, 212, 486 Mining, oil and gas exploration operations; pipeline operators. 221 Utility providers. 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 generating a non hazardous secondary material that may be burned for fuel or destruction 2 111 Crop Production. 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 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 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. Table 1—Comparison of Existing Source MACT Floor Limits for 2000 CISWI Rule and the Proposed MACT Floor Limits Pollutant (units) a Incinerators (2000 CISWI limit) CISWI Subcategories Incinerators ERUs—Solids ERUs—Liquid/Gas Waste-burning kilns Small, remote incinerators HCl (ppmv) 62 29 0.50 b 14 3.0 b 220 CO (ppmv) 157 b 36 490 (biomass units)/46 (coal units) 36 120 (long kilns)/410 (preheater/precalciner) 20 Pb (mg/dscm) 0.04 0.0036 0.0019 (biomass units)/0.0031 (coal units) 0.096 0.0043 2.7 Cd (mg/dscm) 0.004 0.0026 0.00078 (biomass units)/0.058 (coal units) 0.023 0.00082 0.61 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 (coal units) 110 9.2 230 Dioxin, furans, total (ng/dscm) (no limit) 4.6 0.52 (biomass units)/0.51 (coal units) b b 2.9 3.6 1,200 Dioxin, furans, TEQ (ng/dscm) 0.41 0.13 0.12 (biomass units)/0.075 (coal units) b b 0.32 0.075 b 57 NO X (ppmv) 388 53 290 (biomass units)/ 340 (coal units) 76 630 240 SO 2 (ppmv) 20 11 7.3 (biomass units)/ 650 (coal units) 720 830 420 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 Pollutant (units) a Incinerators (2000 limit) Final CISWI Subcategories Incinerators ERUs—Solids ERUs—Liquid/Gas Waste-burning kilns Small, remote incinerators HCl (ppmv) 62 0.091 0.50 c b 14 3.0 b 200 CO (ppmv) 157 12 160 (biomass units)/46 (coal units) 36 90 (long kilns)/320 (preheater/precalciner) 12 Pb (mg/dscm) 0.04 b 0.0019 0.0019 (biomass units)/0.0031 (coal units) c 0.096 0.0043 c 0.26 Cd (mg/dscm) 0.004 0.0023 0.00014 (biomass units)/0.058 (coal units) 0.023 0.00082 c c 0.61 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 (coal units) c 110 8.9 c 230 Dioxin, furans, total (ng/dscm) (no limit) b 0.058 0.52 (biomass units)/0.51 (coal units) b (no limit) 0.51 b c 1,200 Dioxin, furans, TEQ (ng/dscm) 0.41 0.13 0.076 (biomass units)/0.075 (coal units) b d 0.093 0.075 b 31 NO X (ppmv) 388 23 290 c (biomass units)/340 (coal units) 76 200 b 78 SO 2 (ppmv) 20 c 11 7.3 c (biomass units)/650 (coal units) 720 130 1.2 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 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, NO X and SO 2 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, NO X and SO 2 . 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, NO X , SO 2 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 Pollutant (units) Existing kilns New kilns Hg (lb/MM ton clinker) 58 21 PM (lb/ton clinker) 0.052 0.050 NO X (lb/ton clinker) 6.7 2.1 SO 2 (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 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, 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 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 § 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 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 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 (§ 60.2977 and § 60.3078) and subpart III of part 62 (§ 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, 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 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: • Final rule § 60.2165, a new paragraph break is needed for (n)(4); • Final rule § 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 Pollutant Reductions achieved through meeting MACT (ton/yr) Reductions achieved assuming incinerators and small, remote incinerators use 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 NO X 5,299 5,405 SO 2 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 Pollutant Emission reduction for CISWI subcategory model units (tpy unless otherwise noted) Incinerator Small, 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 NO X 16.3 0.15 SO 2 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 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 NO X , CO, PM and SO 2 and an increase in CO 2 emissions. Since NO X and SO 2 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 SO 2 ; 890 tons of CO; 46 tons of NO X ; 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 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 $3.8 million. Using alternate relationships between PM 2.5 and premature mortality supplied by experts, higher and lower benefits estimates are plausible, but most of the expert-based estimates fall between these two estimates. 1 A summary of the monetized benefits estimates at discount rates of 3 percent and 7 percent is in Table 6 of this preamble. 1 Roman, et al., 2008. Expert Judgment Assessment of the Mortality Impact of Changes in Ambient Fine Particulate Matter in the U.S. Environ. Sci. Technol., 42, 7, 2268—2274. Table 6—Summary of the Monetized Benefits Estimates for the CISWI NSPS and EG in 2015 [Millions of 2008$] a, b Pollutant Estimated Emission Reductions (tpy) Total Monetized Benefits (3% Discount Rate) Total Monetized Benefits (7% Discount Rate) PM 2.5 670 $150 to $370 $140 to $340. PM 2.5 Precursors SO 2 5,033 $150 to $360 $130 to $330. NO X 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 PM 2.5 . 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. CO 2 -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 PM 2.5 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 PM 2.5 and PM 2.5 precursor emissions. To estimate human health benefits derived from reducing PM 2.5 and PM 2.5 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 PM 2.5 and PM 2.5 precursors into changes in ambient PM 2.5 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 PM 2.5 , SO 2 and NO X 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 PM 2.5 . For example, SO 2 has a lower benefit-per-ton estimate than direct PM 2.5 because it does not directly transform into PM 2.5 , and because sulfate particles formed from SO 2 emissions can transport many miles, including over areas with low populations. Direct PM 2.5 emissions convert directly into ambient PM 2.5 , thus, to the extent that emissions occur in population areas, exposures to direct PM 2.5 will tend to be higher, and monetized health benefits will be higher than for SO 2 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 PM 2.5 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 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 PM 2.5 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 PM 2.5 . Using the Pope, et al., (2002) study, 85 percent of the population is exposed at or above the LML of 7.5 μg/m 3 . Using the Laden, et al., (2006) study, 40 percent of the population is exposed above the LML of 10 μg/m 3 . It is important to emphasize that we have high confidence in PM 2.5 -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 PM 2.5 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 PM 2.5 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 PM 2.5 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: PM 2.5 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 CO 2 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 CO 2 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 § 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. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-31648. Public record. Not legal advice.