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

Federal RegisterFeb 7, 2013

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 241

[EPA-HQ-OAR-2003-0119 and EPA-HQ-RCRA 2008-0329; FRL-9764-1]

RIN 2060-AR15 and 2050-AG44

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

AGENCY:

Environmental Protection Agency.

ACTION:

Final rule; notice of final action on reconsideration.

SUMMARY:

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

DATES:

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

ADDRESSES:

The EPA established a single docket under Docket ID Number EPA-HQ-OAR-2003-0119 for this action on the commercial and industrial solid waste incineration rule. The EPA also established a single docket under Docket ID Number EPA-HQ-RCRA-2008-0329 for this action on the non-hazardous secondary materials rule. All documents in the docket are listed in the

http://www.regulations.gov

index. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in

http://www.regulations.gov

or in hard copy at the EPA Docket Center, EPA West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744 and the telephone number for the Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT:

For further information regarding the commercial and industrial solid waste incineration reconsideration and final amendments, contact Ms. Toni Jones, Fuels and Incineration Group, Sector Policies and Programs Division (E143-05), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0316; fax number: (919) 541-3470; email address:

jones.toni@epa.gov

, or Ms. Amy Hambrick, Fuels and Incineration Group, Sector Policies and Programs Division (E143-05), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0964; fax number: (919) 541-3470; email address:

hambrick.amy@epa.gov

For further information regarding the Non-Hazardous Secondary Materials final rule, contact Mr. George Faison, Program Implementation and Information Division, Office of Resource Conservation and Recovery, 5303P, Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue NW., Washington, DC 20460-0002; telephone number: 703-305-7652; fax number: 703-308-0509; email address:

faison.george@epa.gov

I. Organization of This Document

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

I. Organization of This Document

A. Supplementary Information

B. Does this action apply to me?

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

D. Judicial Review

E. Executive Summary

II. CISWI Reconsideration and Final Rule

A. Background Information

1. What is the history of the CISWI standards?

2. How is the definition of solid waste addressed in the final CISWI rule?

3. What is the relationship between this rule and other combustion rules?

4. What is the response to the vacatur of effective dates?

B. Summary of This Final Rule

1. Subcategories of Affected Units and Emission Standards

2. Fuel Switching Provisions

3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment Units, Laboratory Analysis Units and Space Heaters

4. Affirmative Defense for Malfunction Events

5. Oxygen Correction Requirements and CO Monitoring Requirements

6. Full-load Stack Test Requirement for CO Coupled With Continuous O

Monitoring

7. Non-detect Methodology Using Three Times the Detection Level

8. Definitions for Foundry Sand Thermal Reclamation Unit and Chemical Recovery Unit

9. Definition of Contained Gaseous Material

10. Parametric Monitoring Provisions for Additional Control Device Types

11. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-burning Kilns

12. Revised Definition of Waste-burning Kiln

13. Revised Definition of Solid Waste

14. Compliance Dates

15. Revised New Source Performance Standards

C. Summary of Significant Changes Since Proposal

1. Revision of the Subcategories

2. Revisions to the Monitoring Requirements

3. Oxygen Monitoring Requirements

4. Removal of the Definition of Homogeneous Waste

5. Non-detect Methodology Using Three Times the Detection Level

6. Parametric Monitoring for Additional Control Device Types

7. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-burning Kilns

8. Compliance Dates

9. Definition of Waste-burning Kiln

10. Exemption for Other Solid Waste Incineration (OSWI) Units

D. Technical Corrections and Clarifications

E. Major Public Comments and Responses

F. What other actions are we taking?

G. What are the impacts associated with the amendments?

1. What are the primary air impacts?

2. What are the water and solid waste impacts?

3. What are the energy impacts?

4. What are the secondary air impacts?

5. What are the cost and economic impacts?

6. What are the benefits?

III. NHSM Final Revisions

A. Statutory Authority

B. NHSM Rule History

C. Introduction—Summary of Regulations Being Finalized

1. Revised Definitions

a. Clean Cellulosic Biomass

b. Contaminants

c. Established Tire Collection Programs

d. Resinated Wood

2. Contaminant Legitimacy Criterion for NHSM Used as Fuels

3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels

a. Scrap Tires

b. Resinated Wood

c. Coal Refuse

d. Pulp and Paper Sludge

4. Rulemaking Petition Process for Other Categorical Non-Waste Determinations (40 CFR 241.4(b))

5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition Process

6. Revised Introductory Text for 40 CFR 241.3(a)

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

1. Revised Definitions

a. Clean Cellulosic Biomass

b. Contaminants

c. Established Tire Collection Programs

2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels

a. General Comments on the Revised Contaminant Legitimacy Criterion

b. Grouping of Contaminants

c. Meaning of Designed to Burn

d. Contaminant Comparisons Allowed

3. Categorical Non-Waste Determinations for Specific NHSM Used as Fuels

a. Scrap Tires

b. Resinated Wood

4. Rulemaking Petition Process for Other Categorical Non-Waste Determinations (40 CFR 241.4(b))

5. Materials for Which Additional Information was Requested

a. Pulp and Paper Sludge

b. Coal Refuse

c. Manure

d. Other Materials for Which Additional Information was Not Requested

6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition Process

7. Revised Introductory Text for 40 CFR 241.3(a)

E. Cost and Benefits of the Final Rule

IV. Statutory and Executive Order Reviews

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

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

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

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

I. National Technology Transfer and Advancement Act

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

K. Congressional Review Act

A. Supplementary Information

Acronyms and Abbreviations.

The following acronyms and abbreviations are used in this document.

ACI activated carbon injection

AF&PA American Forest & Paper Association

ANPRM Advanced Notice of Proposed Rulemaking

ANSI American National Standards Institute

APA Administrative Procedure Act

ARIPPA Anthracite Region Independent Power Producers Association

ASME American Society of Mechanical Engineers

AST activated sludge treatment

ASTM American Society for Testing and Materials

ATCM Air Toxic Control Measure

Btu British thermal unit

CAA Clean Air Act

CARB California Air Resources Board

CBI Confidential Business Information

CCA chromated copper arsenate

Cd cadmium

C&D construction & demolition

CDX Central Data Exchange

CFB circulating fluidized bed

CEMS continuous emissions monitoring systems

CERCLA Comprehensive Environmental Response, Compensation, and Liability Act

CFR Code of Federal Regulations

CISWI Commercial and Industrial Solid Waste Incineration

CO carbon monoxide

carbon dioxide

Catalyst carbon monoxide oxidation catalyst

chlorine gas

CPMS continuous parametric monitoring system

CWA Clean Water Act

D/F dioxin/furan

dscm dry standard cubic meter

DSW Definition of Solid Waste

EG emission guidelines

EJ Environmental Justice

EOM extractable organic matter

EPA U.S. Environmental Protection Agency

ERT Electronic Reporting Tool

ERU energy recovery unit

ESP electrostatic precipitator

FF fabric filters

Federal Register

HAP hazardous air pollutants

HCl hydrogen chloride

HF hydrogen fluoride

Hg mercury

HMI hospital, medical and infectious

HMIWI Hospital, Medical and Infectious Waste Incineration

ICR Information Collection Request

Lb pound

LML lowest measured level

Mg milligram

Mn manganese

MACT maximum achievable control technology

MDL method detection level

mg/dscm milligrams per dry standard cubic meter

mmBtu/hr million British thermal units per hour

MSW Municipal Solid Waste

MW megawatts

MWC Municipal Waste Combustor

NAAQS National Ambient Air Quality Standards

NAICS North American Industrial Classification System

NCASI National Council on Air and Stream Improvement

ND nondetect

NESHAP National Emission Standards for Hazardous Air Pollutants

ng/dscm nanograms per dry standard cubic meter

NHSM non-hazardous secondary material(s)

NIST National Institute of Standards and Technology

nitrogen oxides

NSPS New Source Performance Standards

NTTAA National Technology Transfer and Advancement Act

OAQPS Office of Air Quality Planning and Standards

OMB Office of Management and Budget

OSWI Other Solid Waste Incineration

OSWER Office of Solid Waste and Emergency Response

Oxygen

PAH polycyclic aromatic hydrocarbons

Pb lead

PCBs polychlorinated biphenyls

PCDD polychlorinated dibenzodioxins

PCDF polychlorinated dibenzofurans

PIC product of incomplete combustion

PM particulate matter

POM polycyclic organic matter

ppm parts per million

ppmv parts per million by volume

ppmvd parts per million by dry volume

PQL practical quantitation limit

PRA Paper Reduction Act

PS Performance Specification

lb/MMBtu pound per million British thermal units

RCRA Resource Conservation and Recovery Act

RDL reported detection level

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

RIN Regulatory Information Number

RTO regenerative thermal oxidizer

RTR residual risk and technology review

SBA Small Business Administration

SBREFA Small Business Regulatory Enforcement Fairness Act

SISNOSE Significant Economic Impact on a Substantial Number of Small Entities

SMCRA Surface Mining Control and Reclamation Act of 1977

SNCR selective noncatalytic reduction

sulfur dioxide

SSI Sewage Sludge Incineration

SSM startup, shutdown and malfunction

SVOC Semi-Volatile Organic Compound

SWDA Solid Waste Disposal Act

TBtu tera British thermal unit

TEOM Tapered Element Oscillating Microbalance

TEQ Toxic Equivalency

The Court U.S. Court of Appeals for the District of Columbia Circuit

TMB Total Mass Basis

TOX Total Organic Halogens

tpy tons per year

TSM Total Selected Metal

TTN Technology Transfer Network

UCL upper confidence limit

ug/dscm micrograms per dry standard cubic meter

UMRA Unfunded Mandates Reform Act

UL upper limit

UPL upper prediction limit

U.S.C. United States Code

USGS United States Geological Survey

VCS Voluntary Consensus Standards

VOC volatile organic compound

WWW Worldwide Web

B. Does this action apply to me?

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

Category

NAICS

Code

Examples of potentially regulated entities

Any industrial or commercial facility using a solid waste incinerator

211, 212, 486

Oil and Gas Extraction, mining (except oil and gas); Pipeline Transportation

221

Utilities

321, 322, 337

Wood Product Manufacturing, Paper Manufacturing, Furniture and Related Product Manufacturing

325, 326

Chemical Manufacturing, Plastics and Rubber Products Manufacturing

327

Nonmetallic Mineral Product Manufacturing,

333, 336

Machinery Manufacturing, Transportation Equipment Manufacturing

423, 44

Merchant Wholesalers, Durable Goods, Retail Trade

Any facility or entity generating a non hazardous secondary material that may be burned for fuel or destruction

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

Paper Manufacturing

324

Petroleum and Coal Products Manufacturing

325

Chemical Manufacturing

326

Plastics and Rubber Products Manufacturing

327

NonMetallic Mineral Product Manufacturing

331

Primary Metal Manufacturing

332

Fabricated Metal Product Manufacturing

333

Machinery Manufacturing

334

Computer and Electronic Product Manufacturing

336

Transportation Equipment Manufacturing

337

Furniture and Related Product Manufacturing

339

Miscellaneous Manufacturing

423

Merchant Wholesalers, Durable Goods

424

Merchant Wholesalers, Nondurable Goods

44-45

Retail Trade (all categories, including non-store retailers, vending and direct sellers)

486

Pipeline Transportation

493

Warehousing and Storage

511

Publishing Industries (except internet)

531

Real Estate

541

Professional, Scientific and Technical Services

611

Educational Services

622

Hospitals

623

Nursing and Residential Care Facilities

624

Social Assistance

713930

Boating Clubs with Marinas

721

Accommodation

722

Food Services and Drinking Places

813

Religious, Grantmaking, Civic, Professional and Similar Organizations

Public Administration

North American Industry Classification System.

Note that some of these NAICS may overlap with institutional facility types where incinerators are regulated by the Other Solid Waste Incinerators (OSWI) emission guidelines and NSPS.

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

FOR FURTHER INFORMATION CONTACT

section.

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

The docket number for the action regarding the CISWI NSPS (40 CFR part 60, subpart CCCC) and EG (40 CFR part 60, subpart DDDD) is Docket ID Number EPA-HQ-OAR-2003-0119.

Worldwide Web. In addition to being available in the docket, an electronic copy of the final action is available on the WWW through the TTN Web site. Following signature, the EPA posted a copy of the final action on the TTN's policy and guidance page for newly proposed or promulgated rules at

http://www.epa.gov/ttn/oarpg

. The TTN provides information and technology exchange in various areas of air pollution control.

D. Judicial Review

Under the CAA section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in The Court April 8, 2013. Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. This section also provides a mechanism for us to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 20004, with a copy to the persons listed in the preceding

FOR FURTHER INFORMATION CONTACT

section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20004. Note, under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements. Resource Conservation and Recovery Act sections of the rule would be subject to judicial review under RCRA.

E. Executive Summary

Purpose of the Regulatory Action

The EPA is promulgating final rules that establish standards for new and existing CISWI units. Section 129 of the CAA, titled “Solid Waste Combustion,” requires the EPA to develop and adopt standards for commercial and industrial solid waste incineration units pursuant to CAA sections 111 and 129. This final rule makes certain revisions to the final “Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units,” 76 FR 15704 (March 21, 2011), based on the issues proposed for reconsideration issues (76 FR 40582) and in response to public comments on the proposed CISWI reconsideration rule.

On May 18, 2011, the EPA issued a notice that delayed the effective dates of the March 21, 2011, CISWI rule (the “Delay Notice”). 76 FR 28662 (May 18, 2011). As the result of that action, the 2000 CISWI rule remained in effect. The Court vacated the Delay Notice in January 2012. However, because the Delay Notice delayed the effectiveness of the CISWI rule from May 2011 through vacatur of that notice in January 2012, the revisions to the 2000 CISWI rule that were finalized in the 2011 CISWI rule were never codified in the CFR, but instead appear as notes after the corresponding provisions of the 2000 CISWI rule in the CFR. Although the issues on reconsideration were limited in the December 2011 CISWI reconsideration proposal, we had to include in that proposed reconsideration rule all of the regulatory changes that had been made since the 2000 rule because the 2011 CISWI rule was not codified in the CFR. Specifically, we included in the December 23, 2011, proposed reconsideration rule all of the regulatory changes the EPA had made to the 2000 CISWI rule in the 2011 CISWI rule, as well as the changes to the 2011 CISWI rule that the EPA proposed to make on reconsideration. In response to the Court's vacatur of the Delay Notice in January 2012, this final action lifts the delay of effectiveness so that the CFR can be revised to properly reflect the revisions to the 2000 CISWI rule that were finalized in the 2011 CISWI rule. This final action also contains regulatory text that amends the 2011 CISWI rule to address the reconsideration. Therefore, this final rule's amendatory language differs from that of the December 2011 reconsideration proposal as it amends the 2011 CISWI rule instead of the 2000 CISWI rule. This change to the amendatory baseline in no way alters our limitation of the issues for comment for which we granted reconsideration. We have provided in the CISWI docket a redline/strikeout file of the 2000 CISWI rule to help implementing agencies and affected sources to identify the sum total of the revisions made to the 2000 CISWI rule through today's final notice pursuant to the 2011 CISWI rule and this final action.

Summary of Major Provisions for the Final Reconsideration Rule

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

The nine pollutants for which we must issue emission standards under section 129 are: PM, SO

, HCl, NO

, CO, Pb, Cd, Hg, D/F. CAA section 129(a)(4).

The EPA established or revised standards for four subcategories of CISWI units in the 2011 CISWI rule: incinerators; small remote incinerators; ERUs; and waste-burning kilns. The 2011 CISWI rule also included two subcategories of ERUs. In this final rule, we have further subcategorized ERUs and subcategorized waste-burning kilns based on design type differences. Thus, the final rule includes three subcategories of ERUs and separate CO limits for two subcategories of waste-burning kilns.

We have further revised some of the CISWI limits proposed in the reconsideration notice in response to comments on CO span methodology and because we incorporated additional data, including new data submitted during the comment period. These changes primarily affect the ERU and waste-burning kiln subcategories but also affect some of the limits in each of the four subcategories.

To ensure compliance with the emission limits, this final rule establishes stack testing and continuous monitoring requirements. The rule allows sources to use CEMS if an owner

or operator chooses to do so. Continuous parameters and emissions levels (if used) are measured as either a 3-hour block or a 30-day rolling average basis, depending on the parameter being measured and the subcategory of CISWI.

Since sources may choose to cease or start combusting solid waste at any time due to market conditions or for other reasons, the final rule contains provisions that specify the steps necessary for sources to switch applicability between this final rule and other applicable emission standards issued pursuant to CAA section 112. This rule also contains revisions to some of the monitoring, recordkeeping and reporting requirements.

The date existing sources must comply with the final CISWI rule depends primarily on state plan approval but may be no later than the date 5 years after publication of this final rule in the

Federal Register

. For new sources, the effective date is either August 7, 2013, or the date of startup of the source, whichever is later. New sources are defined as sources that began construction on or after June 4, 2010, or commenced reconstruction or modification after August 7, 2013.

Costs and Benefits

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

Table 1—Summary of the Monetized Benefits, Social Costs and Net Benefits for the Final CISWI NSPS and EG In 2015

[Millions of 2008$]

3 Percent discount rate

7 Percent discount rate

Total Monetized Benefits

$420 to $1,000

$380 to $930

Total Social Costs

$258

Net Benefits

$160 to $770

$120 to $670

Health effects from exposure to HAP 780 tons of HCl, 2.5 tons of lead, 1.8 tons of Cd, 680 pounds of Hg, and 58 grams of dioxins/furans).

Non-monetized Benefits

Health effects from exposure to criteria pollutants (20,000 tons of CO2 6,300 tons of SO2, 5,400 tons of NO2, and secondary formation of ozone).

Ecosystem effects.

Visibility impairment.

All estimates are for the implementation year (2015) and are rounded to two significant figures. These results reflect the lowest cost disposal assumption.

The total monetized benefits reflect the human health benefits associated with reducing exposure to PM

2.5

through reductions of PM

2.5

precursors such as directly emitted particles, SO2, and NO

. It is important to note that the monetized benefits include many but not all health effects associated with PM

2.5

exposure. Monetized benefits are shown as a range from Pope, et al. (2002) to Laden, et al. (2006). These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to allow differentiation of effect estimates by particle type.

The methodology used to estimate social costs for 1 year in the multimarket model using surplus changes results in the same social costs for both discount rates.

II. CISWI Reconsideration and Final Rule

A. Background Information

1. What is the history of the CISWI standards?

On December 1, 2000, the EPA promulgated NSPS and EG for CISWI units (60 FR 75338), hereinafter referred to as the 2000 CISWI rule. On January 30, 2001, the Sierra Club filed a petition for review in the Court challenging the EPA's final CISWI rule. On August 17, 2001, the EPA granted a Request for Reconsideration, pursuant to CAA section 307(d)(7)(B), submitted on behalf of the National Wildlife Federation and the Louisiana Environmental Action Network, related to the definition of “commercial and industrial solid waste incineration unit” and “commercial or industrial waste” in the 2000 CISWI rule. In granting the petition for reconsideration, the EPA agreed to undertake further notice and comment proceedings related to these definitions. On September 6, 2001, the Court entered an order granting the EPA's motion for a voluntary remand of the CISWI rule, without vacatur. The EPA requested a voluntary remand of the final CISWI rule to address concerns related to the EPA's procedures for establishing MACT floors for CISWI units in light of the Court's decision in

Cement Kiln Recycling Coalition

EPA,

255 F.3d 855 (DC Cir. 2001)(Cement Kiln). Neither the EPA's granting of the petition for reconsideration, nor the Court's order granting a voluntary remand, stayed, vacated or otherwise influenced the effectiveness of the 2000 CISWI rule. Therefore, the remand order had no effect on the effectiveness of the 2000 CISWI rule.

On February 17, 2004, the EPA published a proposed rule (CISWI Definitions Rule) soliciting comments on the definitions of “solid waste,” “commercial and industrial waste,” and “commercial and industrial solid waste

incineration unit.” On September 22, 2005, the EPA published in the

Federal Register

the final rule reflecting our decisions with respect to the CISWI Definitions Rule. The rule was challenged and, on June 8, 2007, the Court vacated and remanded the CISWI Definitions Rule. In vacating the rule, the Court found that CAA section 129 unambiguously includes among the incineration units subject to its standards, any facility that combusts any solid waste material, subject to four statutory exceptions. While the Court vacated the CISWI Definitions Rule, the 2000 CISWI rule remained in effect.

On March 21, 2011, the EPA promulgated revised NSPS and EG for CISWI units (76 FR 15704)(2011 CISWI rule). That action constituted a partial response to the voluntary remand of the 2000 CISWI rule and to the 2007 vacatur and remand of the CISWI Definitions Rule. In addition, the EPA addressed the 5-year technology review that is required under CAA section 129(a)(5). On the same day, the EPA issued a notice that it intended to reconsider certain aspects of the 2011 CISWI rule that warrant further opportunity for public comment (76 FR 15266).

Following promulgation of the 2011 CISWI rule, the EPA received petitions for reconsideration from the following organizations (“Petitioners”): Alaska Oil and Gas Association/Alaska Miners Association/ConocoPhillips (AOGA), American Chemistry Council (ACC), American Foundry Society (AFS), American Iron and Steel Institute (AISI) and American Coke and Coal Chemicals Institute (ACCCI), Anthracite Region Independent Power Producers Association (ARIPPA), American Petroleum Institute (API) and National Petrochemical and Refiners Association (NPRA), Auto Industry Forum (AIF), Citizens Energy Group (CEG), Council of Industrial Boiler Owners (CIBO), Earthjustice/Sierra Club, Edison Mission Energy, Hovensa L.L.C. and Tesoro Hawaii Corp., Industry Coalition (AF&PA et al.), JELD-WEN Inc., Portland Cement Association (PCA), Renovar Energy Corp., and Waste Management Inc. (WM). Copies of these petitions are provided in the docket (see Docket ID Number EPA-HQ-OAR-2003-0119). Petitioners, pursuant to CAA section 307(d)(7)(B), requested that the EPA reconsider numerous provisions in the 2011 CISWI rule.

On May 18, 2011, the EPA issued a notice to postpone the effective dates of the March 21, 2011, final CISWI rule. This notice also requested that the public submit additional data and information to the EPA by July 15, 2011, for review and consideration in the reconsideration proceedings.

On December 23, 2011, the EPA published a proposed rule soliciting comment on the issues on which the EPA was granting reconsideration. In March 2011, the EPA had publically stated its intent to reconsider some of these issues. 76 FR 15266. The EPA limited comment in the December 23, 2011, proposed rule to the specific issues on which it was granting reconsideration which included the following:

• Revising the subcategories and emission limits for ERUs and waste-burning kilns to reflect updated inventories and additional data.

• Establishing limitations on fuel switching provisions.

• Definitions of cyclonic burn barrels, burn-off ovens, soil treatment units, laboratory analysis units and space heaters from CISWI subcategories.

• Providing an affirmative defense for malfunction events.

• Revisions to the CO monitoring requirements.

• Establishing a full-load stack test requirement for CO coupled with continuous O

(trim) monitoring.

• Establishing a definition of “homogeneous waste.”

• Responding to comments on the 2011 CISWI rule regarding the use of fuel variability in emission limit calculations.

• Responding to comments on the 2011 CISWI rule regarding the review of D/F data and non-detect methodology using three times the detection level.

• Responding to comments on the 2011 CISWI rule regarding providing an option for sources to use emissions averaging to demonstrate compliance.

• Establishing a definition for foundry sand thermal reclamation unit.

• Reinstating the definition of contained gaseous material.

• Revising the definition of chemical recovery unit.

• Allowing for the use of feed stream analysis or other supplemental information to demonstrate compliance.

• Responding to comments on the 2011 CISWI rule regarding providing percent reduction alternative standards.

• Providing parametric monitoring provisions for additional control device types.

• Revisions to the continuous monitoring provisions for large ERUs.

• Extending effective dates.

• Technical corrections and clarifications.

2. How is the definition of solid waste addressed in the final CISWI rule?

The RCRA definition of solid waste is integral in defining the CISWI source category. The EPA defines NHSMs that are solid waste under RCRA in the final “Identification of Non-Hazardous Secondary Materials That Are Solid Waste” Rulemaking. In an action parallel to the March 21, 2011, final CISWI rule, the EPA promulgated a final rule that identifies whether NHSMs are or are not solid waste when used as fuels or ingredients in combustion units. That action, hereinafter referred to as the “2011 NHSM final rule,” is relevant to the final CISWI rule because some ERUs and waste-burning kilns combust, in their combustion units, secondary materials that are solid waste under the 2011 NHSM final rule. Commercial and industrial units that combust solid waste are subject to standards issued pursuant to CAA section 129, rather than to standards issued pursuant to CAA section 112 that would otherwise be applicable to such units (e.g., units that would be boilers, process heaters or cement kilns if they were not combusting solid waste).

3. What is the relationship between this rule and other combustion rules?

These amendments address the combustion of solid waste materials (as defined by the Administrator under RCRA in the NHSM Definition rule) in combustion units at commercial and industrial facilities. If an owner or operator of a CISWI unit permanently ceases combusting solid waste, the affected unit would no longer be subject to the CISWI rule because the unit would not be a solid waste incineration unit subject to standards under CAA section 129. Standards issued pursuant to section 112 of the CAA may apply to CISWI units that cease combusting solid waste. For example, CAA section 112 standards applicable to boilers and process heaters at major sources and boilers at area sources would apply to boilers and process heaters that cease combusting solid waste. Boilers and process heaters that are located at commercial and industrial facilities and that combust solid waste are subject to CISWI as ERUs. The EPA has also finalized the CAA section 112 standards for the Portland Cement Manufacturing Industry (75 FR 21136, September 9, 2010). Cement kilns combusting solid waste are waste-burning kilns subject to CISWI, not the otherwise applicable CAA section 112 standards.

4. What is the response to the vacatur of effective dates?

On January 9, 2012, the Court vacated the May 18, 2011, Delay Notice, which delayed the effective dates of the 2011 CISWI rule. On February 7, 2012, the EPA issued a no action assurance letter

regarding certain notification deadlines in the March 2011 CISWI rule.

The EPA has conducted outreach to each EPA Regional Office and it has not found any new CISWI units that commenced construction since the proposed CISWI rule was published on June 10, 2010. The CAA defines a “new source,” in part, as any source that commences construction after the publication date of proposed CAA section 111 and 129 standards

CAA section 129(g)(2). Based on our outreach efforts, we do not believe there are any CISWI units that are in noncompliance with the NSPS contained in the final 2011 CISWI rule.

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

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

B. Summary of This Final Rule

As stated above, the December 23, 2011, proposed rule addressed specific issues and provisions the EPA identified for reconsideration. This summary of the final rule reflects the agency's final action in regards to those provisions identified for reconsideration and on other discrete matters identified in response to comments or data received during the comment period. Information on other provisions and issues not proposed for reconsideration is contained in the notice and record for the 2011 CISWI rule. 76 FR 15704 (March 21, 2011).

1. Subcategories of Affected Units and Emission Standards

This final rule defines a CISWI unit, in part, as any combustion unit at a commercial or industrial facility that is used to combust solid waste (as defined under RCRA)(40 CFR 60.2265 (NSPS) and 60.2875 (EG)). We have established standards in this final rule for the following four subcategories of CISWI units: Incinerators (i.e., units designed to burn discarded waste materials for the purpose of disposal); small, remote incinerators; ERUs (i.e., units that would be boilers or process heaters if they did not combust solid waste); and waste burning kilns (i.e., units that would be cement kilns if they did not combust solid waste). We have further subcategorized ERUs into three subcategories and waste burning kilns into two subcategories for CO emission limits only. Changes to the subcategories made since proposal are discussed below in section II.C of this preamble: “Summary of Significant Changes Since Proposal.”

The final rule emission limits for new and existing sources in the solid-fuel burning ERU subcategory and the waste-burning kilns subcategories were revised based on changes to the inventories for those subcategories as discussed below in section II.C of this preamble: “Summary of Significant Changes Since Proposal.” Tables 2 and 3 of this preamble present the final emission limits for all subcategories for existing and new sources, respectively.

Table 2—Comparison of Existing Source MACT Floor Limits for 2000 CISWI Rule and the Final MACT Floor Limits

Pollutant (units)

Incinerators (2000 CISWI limit)

CISWI Subcategories

Incinerators

ERUs—Solids

ERUs—Liquid/Gas

Waste-burning kilns

Small, remote incinerators

HCl (ppmv)

0.20 (biomass units)/13 (coal units)

3.0

300

CO (ppmv)

157

260 (biomass units)/95 (coal units)

110 (long kilns)/790 (preheater/precalciner)

Pb (mg/dscm)

0.04

0.015

0.014

(biomass units)/0.14

(coal units)

0.096

0.014

2.1

Cd (mg/dscm)

0.004

0.0026

0.0014

(biomass units)/0.0095 (coal units)

0.023

0.0014

0.95

Hg (mg/dscm)

0.47

0.0048

0.0022 (biomass units)/0.016 (coal units)

0.0024

0.011

0.0053

PM, filterable (mg/dscm)

11 (biomass units)/160 (coal units)

110

4.6

270

Dioxin, furans, total (ng/dscm)

(no limit)

4.6

0.52

(biomass units)/5.1

(coal units)

2.9

1.3

4,400

Dioxin, furans, TEQ (ng/dscm)

0.41

0.13

0.12 (biomass units)/0.075

(coal units)

0.32

0.075

180

(ppmv)

388

290 (biomass units)/ 340 (coal units)

630

190

(ppmv)

7.3 (biomass units)/650 (coal units)

720

600

150

All emission limits are expressed as concentrations corrected to 7 percent O

See the memorandum in the CISWI docket “CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule” for details on this calculation.

Table 3—Comparison of New Source MACT Floor Limits for 2000 CISWI Rule and the Final MACT Floor Limits

Pollutant (units)

Incinerators (2000 limit)

Final CISWI subcategories

Incinerators

ERUs—Solids

ERUs—Liquid/Gas

Waste-burning kilns

Small, remote incinerators

HCl (ppmv)

0.091

0.20 (biomass units)/13 (coal units)

3.0

200

CO (ppmv)

157

240 (biomass units)/95 (coal units)

90 (long kilns)/190 (preheater/precalciner)

Pb (mg/dscm)

0.04

0.015

0.014

(biomass units)/0.14

(coal units)

0.096

0.014

2.0

Cd (mg/dscm)

0.004

0.0023

0.0014

(biomass units)/0.0095 (coal units)

0.023

0.0014

0.67

Hg (mg/dscm)

0.47

0.00084

0.0022

(biomass units)/0.016(coal units)

0.00056

0.0037

0.0035

PM, filterable (mg/dscm)

5.1 (biomass units)/160 (coal units)

110

2.2

270

Dioxin, furans, total (ng/dscm)

(no limit)

0.58

0.52

(biomass units)/5.1

(coal units)

(no limit)

0.51

1,800

Dioxin, furans, TEQ (ng/dscm)

0.41

0.13

0.076

(biomass units)/0.075

(coal units)

0.093

0.075

(ppmv)

388

290

(biomass units)/340 (coal units)

200

170

(ppmv)

7.3

(biomass units)/650 (coal units)

720

1.2

All emission limits are measured at 7 percent O

See the memorandum “CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule” for details on this calculation.

The NSPS limit equals the EG limit. The EG limit was selected as the NSPS limit.

D/F TEQ and Hg limits for ERUs—liquid/gas were replaced with D/F TEQ limits for liquid fuel major source boilers. See “CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule” for details.

SO2 limits for Waste-burning kilns were replaced with SO2 limits for Portland Cement NSPS kilns. See “CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule” for details.

2. Fuel Switching Provisions

The EPA is finalizing the proposed fuel switching provisions that address the situation where CISWI units cease combusting solid waste, and where existing commercial and industrial combustion units begin combusting solid waste (40 CFR 60.2330 for existing units and 40 CFR 60.2710 for new units). Units that cease combusting solid waste remain subject to CISWI for at least 6 months after solid waste is last added to the combustion chamber. After 6 months, sources must either comply with any applicable section 112 standard or, if they intend to combust solid waste in the future, opt to remain subject to CISWI and continue to comply with the applicable provisions. Combustion units located at commercial or industrial facilities that begin combusting solid waste are solid waste incineration units on the date they begin combusting solid waste. Existing units that begin combusting solid waste within 6 months of the effective date of the CISWI EG must comply with the standards on the effective date of those standards. Existing units that begin combusting solid waste after the effective date of the CISWI EG must comply with those standards at the time the unit begins combusting solid waste.

3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment Units, Laboratory Analysis Units and Space Heaters

We are finalizing the proposed definitions for cyclonic burn barrels, burn-off ovens, soil treatment units, and laboratory analysis units. We have revised the proposed definition for space heaters to clarify applicability for units that meet the requirements of 40 CFR part 279. The final definitions describe the types of units and state that these different types of units are not incinerators, small remote incinerators, ERUs, or waste burning kilns. The EPA is including these definitions in the final rule to differentiate these units from the units for which the agency established standards in the 2011 CISWI rule and this final action.

4. Affirmative Defense for Malfunction Events

The EPA is retaining in the final rule the proposed affirmative defense to civil penalties for malfunction events. The EPA first included an affirmative defense in the 2011 final rule in an attempt to balance a tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission standards may be violated under circumstances beyond the control of the source. This final reconsideration attempts to add clarification to the affirmative defense by revising some of the regulatory provisions that specify the elements that are necessary to establish this affirmative defense as proposed—with minor changes from proposal described later in this section.

Sources are required to comply with the CISWI standards at all times, and the EPA recognizes that even equipment that is properly designed and maintained can sometimes fail and that such failure may cause an exceedance of the relevant standard. The EPA must establish emission standards that “limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” 42 U.S.C. 7602(k) (defining “emission limitation and emission standard”). See generally

Sierra Club

EPA,

551 F.3d 1019, 1021 (D.C. Cir. 2008.) The affirmative defense for malfunction events meets this requirement by ensuring that even where there is a malfunction, the emission standard is still enforceable through injunctive relief. See generally,

Luminant Generation Co.

EPA,

2012 U.S. App. LEXIS 15722 (5th Cir. 2012)

(upholding EPA's approval of affirmative defense provisions in a CAA State Implementation Plan). While “continuous” standards, on the one hand, are required, there is also case law indicating that in many situations it is appropriate for the EPA to account for the practical realities of technology. For example, in

Essex Chemical

Ruckelshaus,

486 F.2d 427, 433 (D.C. Cir. 1973), the D.C. Circuit acknowledged that in setting standards under CAA section 111 “variant provisions” such as provisions allowing for upsets during startup, shutdown and equipment malfunction “appear necessary to preserve the reasonableness of the standards as a whole and that the record does not support the `never to be exceeded' standard currently in force.” See also,

Portland Cement Association

Ruckelshaus,

486 F.2d 375 (D.C. Cir. 1973). Though intervening case law such as

Sierra Club

EPA

and the CAA 1977 amendments call into question the relevance of these cases today, they support the EPA's view that a system that incorporates some level of flexibility is reasonable.

The affirmative defense provisions allow sources to avoid civil penalties for exceedances caused by a malfunction event if the source demonstrates by a preponderance of the evidence that the malfunction event meets the definition of malfunction in 40 CFR 60.2. By incorporating an affirmative defense, the EPA has formalized its approach to upset events beyond the control of the source. In a Clean Water Act setting, the Ninth Circuit required this type of formalized approach when regulating “upsets beyond the control of the permit holder.”

Marathon Oil Co.

EPA,

564 F.2d 1253, 1272-73 (9th Cir. 1977). See also,

Mont. Sulphur & Chem. Co.

United States EPA,

2012 U.S. App. LEXIS 1056 (Jan 19, 2012) (rejecting industry argument that reliance on the affirmative defense was not adequate). But see,

Weyerhaeuser Co.

Costle,

590 F.2d 1011, 1057-58 (D.C. Cir. 1978) (holding that an informal approach is adequate). The affirmative defense provisions give the EPA the flexibility to both ensure that its emission standards are “continuous” as required by 42 U.S.C. 7602(k), and account for unplanned upsets and thus support the reasonableness of the standard as a whole. In addition, the affirmative defense provisions are designed to ensure that steps are taken to correct the malfunction, minimize emissions during the malfunction, and prevent future malfunctions.

We are promulgating revisions to the affirmative defense provisions in section 60.2120 and 60.2685 as described at proposal (76 FR 80461) and making some minor additional revisions. The terms “exceedance” and “excess emissions” and “applicable emission limitations were being exceeded” were replaced with the term “violation” to more accurately reflect that the affirmative defense is only available when there has been a violation of the standard. The phrase “emission limit” was changed to “emission standards” to reflect that the affirmative defense could be applicable to certain work practice standards. The word “however” was removed to incorporate more plain language into the regulation. The term “notification” was changed to “reporting” to reflect that the root cause analysis required under affirmative defense would be submitted with other periodic reporting. The term “and monitoring” was deleted because monitoring malfunctions are defined differently than malfunctions of process and control units and the affirmative defense is intended to apply to malfunctions to affected units that cause a failure to meet an emission standard. In multiple instances the word “were” was changed to “was” to improve the clarity of a provision. The term “facility” was changed to “affected source” to clarify that the affected source regulated by the rule must be operated in a manner consistent with good practices for minimizing emissions versus the entire facility. The phrase “off shift and overtime labor were used, to the extent practicable to make these repairs” was removed. The EPA no longer believes the language concerning the use of off-shift and overtime labor is necessary because the regulation requires that to establish the affirmative defense the owner must prove by a preponderance of the evidence that repairs were made as expeditiously as possible when a violation occurs. Although we believe that use of off-shift or overtime labor could be cited as evidence that the owner or operator expedited repairs, we do not believe this level of detail is necessary in the regulatory text. The written report required when asserting an affirmative defense was changed from a separate “semiannual” report to a report that is submitted with the first periodic compliance, deviation report, or excess emission report due after the event. Lastly, the requirement to notify the Administrator by telephone or facsimile within two business days” was removed when we refined the affirmative defense reporting requirements based upon comments received.

5. Oxygen Correction Requirements and CO Monitoring Requirements

We are finalizing provisions for calculating the 30-day CO rolling average that allow uncorrected CEMS reading to be used during the period of operation from a cold start to bring the combustion unit up to minimal normal operating temperature. We are also allowing uncorrected CEMS readings to be used in 30-day average calculations for the period of operation following the last waste material (or material feed for waste burning kilns) being fed to the combustion unit during shutdown procedures of the unit. For every type of CISWI unit except waste-burning kilns, the period of time allowed for uncorrected CEMS data during a startup shall be 48 hours or less per startup event and shall be 24 hours or less for each shutdown event. For waste-burning kilns, the period of startup begins when the kiln's induced draft fan is turned on and fuel is being combusted and continues until continuous feed is introduced into the kiln, at which time the kiln is in normal operating mode. Shutdown begins when feed to the kiln is halted. Sources must indicate in the CEMS data records which CEMS data are obtained during the startup and shutdown periods. Since the O

correction calculation will affect all corrected CEMS data, we have expanded these provisions in the final rule to allow for uncorrected CEMS data for any pollutant that sources elect to measure continuously with CEMS and calculate 30-day rolling averages to demonstrate continuous compliance.

Additionally, we have finalized removal of continuous CO monitoring requirements for new and existing ERU units. We are instead requiring annual CO stack tests and continuous O

monitoring and we are allowing CO monitoring with CEMS as a compliance alternative. We have also removed the continuous CO monitoring requirements for new CISWI units in the other subcategories, but sources may demonstrate compliance using CO CEMS if they so choose. The authority to use uncorrected CEMS data during startup and shutdowns discussed above applies to all CISWI sources that elect to demonstrate compliance with any emission limits with a CEMS instead of performing annual stack tests. Changes to the CO and other optional CEMS monitoring requirements made since proposal are discussed below in Section II.C of this preamble: “Summary of Significant Changes Since Proposal.”

6. Full-Load Stack Test Requirement for CO Coupled With Continuous O

Monitoring

We are finalizing the full-load stack test and continuous O

monitoring provisions in today's action that allow existing sources to use their current O

analyzer and O

trim systems to demonstrate continuous compliance. Based on comments received, we have made some clarifying changes to these provisions to be clear that existing O

trim systems and O

monitors may be used to demonstrate continuous compliance, as well as clarifications on establishing the operating limits for O

content. Changes to the continuous O

monitoring requirements made since proposal are discussed below in section II.C of this preamble: “Summary of Significant Changes Since Proposal.”

7. Non-Detect Methodology Using Three Times the Detection Level

Since proposal, the EPA continued its review of sampling volumes and detection levels across various emission testing ICR efforts on various combustion sources to encompass additional pollutants measured using EPA Reference Method 29 (See memorandum “Updated data and procedure for handling below detection level data in analyzing various pollutant emissions databases for MACT and RTR emissions limits” in the CISWI docket). As a result of this analysis, we have determined recommended values for three times the RDL that may be used as a minimum emission limit value that can be accurately measured by most laboratories for Cd and Pb.

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

Furthermore, based on comments on our application of this non-detect methodology approach to CO data measured using instrument methods, we have made some modifications to the span calculation approach used in the proposed rule. Changes to the emission limits for Cd, Pb and the span adjustment calculations for CO made since proposal are discussed below in section II.C of this preamble: “Summary of Significant Changes Since Proposal.”

8. Definitions for Foundry Sand Thermal Reclamation Unit and Chemical Recovery Unit

We are finalizing the proposed definitions of “foundry sand thermal reclamation unit” and “chemical recovery unit” to clarify that these units are not incinerators, waste-burning kilns, ERUs or small, remote incinerators under subparts CCCC or DDDD.

9. Definition of Contained Gaseous Material

In today's final rule, we have reintroduced and finalized the definition for “contained gaseous material” as found in the 2000 CISWI rule as proposed. As discussed earlier, the Court's vacatur of the Delay Notice now requires this definition to be reintroduced since we are now amending the 2011 CISWI rule instead of making amendments to the 2000 CISWI rule as when we published the December 2011 reconsideration proposal.

10. Parametric Monitoring Provisions for Additional Control Device Types

In the proposed rule, we requested comment on whether there were additional control device types that we should identify monitoring provisions for in the rule. We received comments on this topic and, in today's final rule, are including monitoring provisions for sorbent injection rate for dry scrubber control devices (40 CFR 60.2165 and 40 CR 60.2730). We have also clarified that sources that elect to use optional CEMS to monitor continuous compliance for Hg, D/Fs or NO

may do so as a substitute for parametric monitoring of ACI and SNCR control devices, respectively. Changes to the parametric monitoring provisions made since proposal are discussed below in section II.C of this preamble: “Summary of Significant Changes Since Proposal.”

11. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-Burning Kilns

In today's rule, we are finalizing some revisions to the monitoring requirements for ERUs with an annual average heat input rate greater than 250 MMBtu/hr and extending the same PM continuous monitoring provisions to waste-burning kilns. In the final 2011 CISWI rule, these units were required to monitor continuously for PM using a PM CEMS; however, the PM CEMS technology may not be sufficient to certify accurate monitor performance in the PM concentration range of the CISWI biomass ERU and waste-burning kiln limits. Therefore, we are requiring continuous PM parameter monitoring systems for these units similar to those being required for major industrial boilers and utility boilers. The EPA is further requiring that a site-specific parametric operating limit be established during the performance test, that there be continuous monitoring of that parametric limit using a PM CPMS, that four deviations within a 12-month operating period constitute a violation and trigger immediate corrective action and a Method 5 performance test within 30 days with an additional 15 days to reestablish a site-specific operating limit.

We have revised all operating parameter averaging for ERU units to be on a 30-day rolling average and allowed the sorbent injection parameter to be adjusted for varying ERUs based on load. Changes to the PM continuous monitoring provisions and operating parameter provisions made since proposal are discussed below in section II.C of this preamble: “Summary of Significant Changes Since Proposal.”

12. Revised Definition of Waste-Burning Kiln

This final rule includes a definition of waste-burning kiln that has been revised since the March 2011 CISWI Rule. This definition helps clarify the EPA's intent regarding which types of Portland cement kilns are considered subject to CISWI standards and which kilns are subject to the Portland cement NESHAP. Since proposal, some additional language was added to this definition to further clarify our proposed definition. Changes to the definition of waste burning kiln made since proposal are discussed below in section II.C of this preamble: “Summary of Significant Changes Since Proposal.”

13. Revised Definition of Solid Waste

In the March 21, 2011, final CISWI rule, we removed the definition of solid waste that was present in the 2000 CISWI Rule in light of the definition of solid waste in the final NHSM rule. Because applicability of section 129 hinges on sources combusting solid waste, we believe it is appropriate to include a definition of that term in the CISWI rule. For that reason, the final rule contains a definition of solid waste that refers to the final NHSM rule at 40 CFR 241.2.

14. Compliance Dates

In the final rule, we are revising the compliance dates for new and existing CISWI units to reflect the effective dates of this final rule. The compliance date for existing sources depends primarily on state plan approval but may be no later than the date 5 years after publication of this final rule in the

Federal Register

. The EG are implemented through a state implementation plan or a federal plan. Under the final amendments to the EG, and consistent with the CAA section 129, revised state plans containing the revised existing source emission limits

and other requirements in the final amendments are due within 1 year after promulgation of the final reconsideration amendments. States must submit revised state plans to the EPA by February 7, 2014. The EPA will revise the existing federal plan to incorporate any changes and other requirements that the EPA has promulgated. The federal plan applies to CISWI units in any state without an approved state plan. Additional discussion of the state plan implementation schedule can be found at 76 FR 15711.

For new sources, the compliance date is either August 7, 2013 or the date of startup of the source, whichever is later. New sources are defined as sources that began construction on or after June 4, 2010, or commenced reconstruction or modification after August 7, 2013.

15. Revised New Source Performance Standards

In the 2011 CISWI rule and the proposed reconsideration rule, EPA determined that the best controlled similar unit under section 129(a)(2) was not a solid waste incineration unit for certain new source standards. Specifically, the new source limits for certain pollutants from waste burning kilns and ERUs were based on cement kilns and boilers, respectively. See memorandum “CISWI Emission Limit Calculations for Existing and New Sources” in the CISWI docket. Both the industrial boiler NESHAP and the Portland cement NESHAP are being revised, and additional data has been incorporated into the new source MACT analyses for those rules. As a result of the new data and analyses, several of the new source NESHAP limits are being revised and EPA is changing the following new source limits in CISWI based on the revised limits in the NESHAPs: NO

for waste-burning kilns, and Hg and PCDD/PCDF for ERU-liquid/gas units.

C. Summary of Significant Changes Since Proposal

1. Revision of the Subcategories

Energy Recovery Units

In the final 2011 CISWI Rule, we established separate subcategories based on the types of fuels and wastes ERUs were designed to burn. Energy Recovery Units (e.g., units that would be boilers and process heaters but for that fact that they combust solid waste) designed to burn gaseous fuels and liquids that are solid waste were included in one primary subcategory and the other primary subcategory was for units designed to burn solid fuels or predominantly non-coal solid materials. In the final 2011 CISWI rule, the solid fuel ERU subcategory was further divided into separate subcategories for coal and biomass units, with separate limits for CO, NO

and SO

to account for significant differences in unit design for these two types of fuels and the impacts the different unit designs have on emissions of these pollutants.

Because the public was not afforded an opportunity to comment on the revision to the ERU subcategory, we identified this as a reconsideration issue in the March 21, 2011, notice of intent to reconsider certain aspects of the 2011 CISWI Rule. Certain petitions for reconsideration supported the further subcategorization of the solid-fuel ERU subcategory and suggested that all nine emission limits should be divided between coal and biomass ERUs, instead of only having different limits for CO, NO

and SO

We granted reconsideration of our subcategorization approach for ERUs and proposed to establish different emission limits for PM, Cd, Pb, and D/F between coal and biomass units, in addition to establishing different limits for CO, NO

and SO

. We also solicited comment on whether we should also subcategorize solid-fuel ERUs for HCl and Hg.

Based on comments and information received during the comment period, we have determined that it is appropriate to subcategorize solid fuel ERUs for all nine CAA section 129 pollutants. We recognize that there are significant design and operational differences between biomass and coal ERU units that impact the generation of all nine regulated pollutants, and, for this reason, we are establishing separate emission standards for all nine pollutants from coal and biomass ERUs in this final rule.

In addition, since issuing the proposed reconsideration CISWI rule, we have received comments and data which allowed us to update our inventory of ERUs. The inventory adjustments we made more accurately reflect the inventory of solid waste combustion units. Based on comments from the operator of the units, we removed three units from the final rule inventory of biomass ERUs that were determined to be non-waste burning units and we re-analyzed the emission limits for the solid-biomass ERU subcategory. The commenter explained that, although permitted to burn materials that would be considered solid waste, these units had ceased burning the materials in question several years ago and would not recommence burning these in the future. Thus, at the time of testing, these units were not solid waste incineration units. We also received additional CO emissions data and re-analyzed the performance of the best-performing ERU in the solid-coal ERU subcategory. The emission limits in this final rule reflect the new inventory and emission data received; however, we have used the same methodology as in the 2011 CISWI rule and December 23, 2011, reconsideration proposal for establishing the emission limits.

Waste-Burning Kilns

Prior to the reconsideration proposal, the EPA performed an analysis of the materials being combusted in the entire inventory of Portland cement kilns in light of the final NHSM rule (See memorandum “Revised Floors without Kilns that Would have been CISWI Kilns Had the Solid Waste Definition Applied” in the CISWI docket). As a result of this analysis, we added 11 kilns to our inventory of waste-burning kilns. In addition to this, we further reviewed the Portland cement emissions test records and identified some additional test data for kilns that were added to the CISWI inventory following the March 21, 2011, final rule publication. This newly-identified data was extracted and compiled into the CISWI database, and then the MACT floor emission limits were re-calculated in the December 23, 2011, proposed rule to reflect the updated inventory and additional data. Following proposal, we were also notified of one additional waste-burning kiln and that one of the kilns in the inventory was not burning waste materials. We made these adjustments to our inventory, bringing the total waste-burning kiln inventory to 23 kilns. We recalculated the standards in this final rule to include all 23 waste burning kilns.

As with the new ERU standards, we have used the same methodology to establish today's emission limits as we used for the final 2011 CISWI rule. We have also retained the emissions concentration basis for the standards. However, Table 4 of this preamble presents the emission limits for PM, NO

, SO

and Hg on a production basis for comparison.

Table 4—Waste-Burning Kiln Emission Limits Expressed in Production Basis

Pollutant (units)

Existing kilns

New

kilns

Hg (lb/MM ton clinker)

PM (lb/ton clinker)

0.026

0.013

(lb/ton clinker)

6.7

1.5

(lb/ton clinker)

8.9

0.4

Approximate.

Small Remote Incinerators

After the reconsideration proposal, we received additional information from stakeholders of additional units in operation and planned for operation within the next year or two that would qualify as small remote incinerators. The resulting changes included moving one unit from the small remote incinerator subcategory to the incinerator subcategory due to the unit's proximity to a landfill in Alaska. An additional 15 small remote incinerators were added to our inventory of existing units, bringing the total of this subcategory to 28 units. This additional information resulted in changes to the emissions limits.

2. Revisions to the Monitoring Requirements

After the March 21, 2001 final rule, petitioners identified computational issues for correcting CO concentration measurements to 7 percent O

for periods when the O

content of the flue gas approaches the ambient air O

content during startup and shutdown periods for sources that demonstrate compliance with the CO limit using CEMS. The equation for the 7 percent O

correction is X ppm CO* (20.9−7)/(20.9−%O

of flue gas stream). As seen by this equation, as the flue gas stream O

content gets closer to 20.9, the value of X is multiplied by an ever increasing factor. For example, when the stack gas O

content is 4 percent, the factor is 0.82. If the stack gas O

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 O

content, but would become a 1,540 ppm corrected concentration for a stack gas at 20 percent O

content. In the extreme, at a 20.8 percent stack gas concentration (i.e., approximating ambient air O

content), the same 100 ppm measurement would be corrected to 13,900 ppm.

Petitioners noted that O

contents relatively close to ambient air often are maintained during combustion unit startup and shutdown in order to safely operate the combustion unit. Therefore, CO readings during these periods would be multiplied by an uncharacteristically high correction factor, and the resulting corrected CO concentrations inflated due to the 7 percent O

correction. Petitioners and commenters presented data that show these corrected data points would have the potential to drive the 30-day rolling average values beyond the emission limit for the affected units, but this would not be an accurate reflection of the CO emissions.

Petitioners suggested various approaches to remedy this situation, with one being to not require the 7 percent O

correction requirement during unit startup and shutdown for sources that demonstrate compliance with the CO limit using CEMS. In other words, the CEMS data as reported at stack gas concentration without O

correction would be included in the rolling average calculations for periods when the combustion unit is either being started up or shutdown instead of applying the O

correction to that data before it is included in the calculation of the 30 day rolling average. During all other operating periods, the CEMS data would be corrected to a 7 percent O

concentration prior to calculating the rolling average. Stated otherwise, the data obtained during startup and shutdown, which will not include the 7 percent O

correction, will be added to the O

corrected data collected during all other periods to calculate the 30-day average that is used to determine continuous compliance with the applicable CO limit for sources that demonstrate compliance using CEMS.

Prior to issuing the reconsideration proposal, we received data for one unit in one subcategory (coal ERUs) that indicated startups usually occur over a 4-hour period and shutdowns occur over a 1 hour period. Therefore, we proposed provisions for calculating the 30-day CO rolling average that would allow the source to use CEMS data that does not include the O

correction to be used during the first 4 hours of operation from a cold start and the 1 hour of operation following the last waste material being fed to the combustion unit during shutdown procedures of the unit. Since proposal, however, we received comments on this provision, primarily pointing out that longer periods are required to protect combustion equipment from rapid temperature swings, which could cause damage to the fireboxes or kiln surfaces. Commenters also contended that the limited information concerning the startup and shutdown periods during which the O

correction would not be required did not reflect the needs for all combustor types or control device configurations. We have therefore revised the shutdown and startup period of operation to be more generally applicable to CISWI units. In the case of ERUs, incinerators and small remote incinerators, we determined that the startup period should include the times prior to the source reaching the minimal operating temperature, but in no case longer than 48 hours. For shutdown, we determined as at proposal that shutdown begins after the last waste has been fed to the combustor prior to shutdown but we have revised the final rule to indicate that the shutdown period may not exceed 24 hours. We have, therefore, specified in the final rule an UL of 48 hours for startup periods to use uncorrected CEMS data and 24 hours for shutdown periods to use uncorrected CEMS data for ERUs, incinerators and small remote incinerators. For waste-burning kilns, these periods are triggered off of material feed to the kiln rather than solely waste feed. This addresses the fact that kilns, unlike other CISWI units, are producing product rather than solely disposing of waste or recovering energy. Therefore, for waste-burning kilns, startup begins when the kiln's induced fan is turned on and continues until continuous feed is introduced into the kiln at which time the kiln is in normal operating mode. Shutdown begins when feed to the kiln is halted.

As at proposal, sources must indicate in the CEMS data records which CEMS data are uncorrected because they were obtained during the startup and shutdown period.

The O

correction issue described above for CO CEMS data collected during startup and shutdown applies equally to other pollutants measured with a CEMS that is corrected to 7 percent O

. The final CISWI rule allows sources to demonstrate compliance with any of the standards using CEMS, and, for this reason, we have expanded authorization to use uncorrected CEMS data during periods of startup and shutdown to all pollutants for which a source demonstrates compliance with CEMS. In the final rule, the 7 percent O

correction is not required during startup and shutdowns for any CISWI sources that elect to demonstrate continuous compliance with any of the emission limits with a CEMS instead of stack tests.

3. Oxygen Monitoring Requirements

At proposal, we included provisions and definitions in an attempt to ensure that sources would be able to use existing O

monitoring systems to meet the continuous O

monitoring requirements. However, commenters identified potential issues with our proposed provisions and definitions. To address these commenters' concerns, we

have revised the provisions in 40 CFR 60.2165 and 40 CFR 60.2730 to clarify the methodology for establishing and monitoring the O

level. Furthermore, the definition of “oxygen analyzer system” has been revised to clarify the appropriate locations and nomenclature of possible existing monitoring systems so that their use to meet these requirements is fully enabled.

4. Removal of the Definition of Homogeneous Waste

The EPA included in the final 2011 CISWI Rule a definition of homogenous waste and a process for evaluating claims that a particular waste stream is homogenous. The definition was added to the 2011 CISWI rule in response to comment. Because the determination of homogeneity of a waste stream is relevant to applicability of CAA section 129 to qualifying small power producers and qualifying cogeneration facilities, we determined it was reasonable to include a definition of “homogenous waste” and a process by which sources could obtain a determination that a waste stream is homogenous from the EPA.

In the 2011 CISWI Rule, the EPA stated that a determination concerning whether a waste is homogeneous is made on a case-by-case basis. The EPA added provisions to the CISWI final rule that require source owners or operators seeking the exemption to submit a request for a homogeneous waste determination to the EPA, and that they support their request with information describing the materials to be combusted and why they believe the waste is homogeneous. The 2011 CISWI rule also stated that the determination of what constitutes a homogeneous waste is not delegable to the state or local agencies. In the December 23, 2011, reconsideration proposal, we proposed for comment the definition of “homogeneous waste” and the provisions for making homogeneous waste determinations that were included in the 2011 CISWI rule.

Commenters generally did not agree with the proposed definition and provisions for making a homogeneous waste determination, arguing that the definition and provisions introduced ambiguities and stipulations that would prevent classification of many materials (including fossil fuels) as being “homogeneous.” We reevaluated the definition and provisions in light of the comments and determined that the definition and provisions could be interpreted in a manner that would be unduly restrictive; however, we also determined that commenters proposed alternative definitions and provisions were equally problematic. Therefore, the final rule does not include a definition of “homogeneous waste”. We are also removing the requirement that qualifying small power producers and qualifying cogeneration facilities that combust solid waste obtain a determination from EPA that such waste is homogenous. Because the final rule does not include a homogenous waste definition or a process to obtain a determination from EPA, we believe that it is appropriate to inform the EPA when a unit qualifies as a small power generator or cogeneration facility as defined under section 129 because the site specific fact patterns for different types of waste may vary considerably. Therefore, the final rule requires qualifying small power producers and qualifying cogeneration facilities that combust solid waste notify the EPA that such waste is homogeneous. (40 CFR 60.2020 and 40 CFR 60.2555).

Section 129 states, in part, that the term “solid waste incineration unit” does not include:

* * * qualifying small power production facilities, as defined in section

796 (17)(C)

of title

, or qualifying cogeneration facilities, as defined in section

796 (18)(B)

of title

, which burn homogeneous waste (

such as units which burn tires or used oil, but not including refuse-derived fuel

) for the production of electric energy or in the case of qualifying cogeneration facilities which burn homogeneous waste for the production of electric energy and steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes * * * CAA Section 129(g)(1)(B) (

emphasis added

)

We believe that the parenthetical contained in the exemption that prohibits refuse derived fuel, which is made from municipal solid waste, from qualifying as homogenous waste and allows tires and used oil to qualify as homogenous wastes provides guidance on what constitutes a homogenous waste. We do not accept industry's assertion that any waste from a common source is homogeneous, or that in all cases combining two homogeneous wastes results in a homogeneous waste, as doing so could result in almost any waste stream being homogenous. We do not believe that is consistent with the statute. Instead, we believe Congress intended this exemption to apply only when the waste stream has a consistent makeup that allows the source and the enforcement authority to predict the range of emissions from the combustion of the waste on an ongoing basis.

In keeping with this interpretation, we maintain that the homogeneous wastes are generally material specific (e.g., tires or used oil). We believe this means that a homogeneous waste is of known origin and that it can be identified as a specific material or materials—using the example in the Act, certain used oils or scrap tires. By contrast, municipal solid waste can be identified as municipal solid waste as a general term, but it is not composed of only one or two specific type of waste; e.g. municipal solid waste cannot be identified as one specific material or group of materials. Regarding variability of the composition of homogeneous waste throughout, homogeneous waste may have variations in composition, but it should generally be within the range of operations which produce the waste (e.g., size, contaminant levels, state of matter.) We also believe that off-spec materials may be homogeneous, even if they are not homogeneous to the on-spec material, and that, if combusted together, both the on-spec and off-spec materials may require separate homogenous waste determinations. We also believe that homogeneous waste should have predictable known contaminant levels, even if those contaminant levels vary within a range. We may question the homogeneity of a specific material if it is adulterated such that it takes on the characteristics of a different type of waste (e.g., used oil which is so contaminated with PCB's from a leaking heat exchanger, such that the used oil takes on the characteristics of a waste PCB stream as opposed to a used oil stream) or where the BTU value of a waste is so altered that other fuels must be introduced to ensure combustion and preserve the purpose of combustion under the exemption, i.e. to produce energy.

5. Non-Detect Methodology Using Three Times the Detection Level

Prior to reconsideration proposal, the EPA conducted a review of sampling volumes and detection levels across various emission testing ICR efforts on various combustion sources (See memorandum “Updated data and procedure for handling below detection level data in analyzing various pollutant emissions databases for MACT and RTR emissions limits” in the CISWI docket). As a result of this analysis, we determined recommended values for three times the RDL (3xRDL) that may be used as a minimum emission limit value that can be accurately measured by most laboratories. These recommended values were then compared with calculated emission limits and, if the calculated limit was less than the recommended 3xRDL, the 3xRDL value was selected as the limit. Since the December 23, 2011, reconsideration proposal was published,

we have continued our review and determined 3xRDL values for additional metals measured using EPA Reference Method 29. These include recommended values for Cd and Pb and we have applied this methodology to those emission limits in addition to the D/F and Hg limits that were reevaluated in the reconsideration proposal. As discussed in the reconsideration proposal, the premise for this approach is the same as described in the final 2011 CISWI rule but using a broader data set to establish the 3xRDL value. We have not changed the methodology of the emission limit calculation or tabulation of the three times the detection limit value that was used in the final 2011 CISWI rule.

Since reconsideration proposal, some commenters have noted that the EPA Method 5 minimum catch values were below levels established in similar studies on this reference method. In light of these comments, we have reconsidered the 1 mg minimum catch value used in the reconsideration proposal and are now using a 1 mg minimum catch in establishing the final rule emission limits. Our review and determination of the 1 mg minimum catch are discussed in “Minimum Detection Limit for EPA Method 5” in the CISWI docket.

In a similar fashion, the CO span adjustment methodology has been further refined in consideration of comments on the approach used to adjust CO instrumental test methods readings in reconsideration proposal. The methodology for adjusting CO emission test run data to reflect the limitations from the instrument span used at testing is described in the “CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule” memorandum in the CISWI docket.

6. Parametric Monitoring for Additional Control Device Types

In the December 23, 2011, reconsideration proposal, we stated that we believed the control devices with monitoring provisions expressly identified in the rules should encompass most types of control devices that we anticipate the various types of CISWI units will use to meet the emission limits. However, recognizing that a source might want to employ another type of control that is not addressed, we provided provisions for sources to petition for specific operating limits for alternative control devices to be established during a performance test. These provisions also allow specific operating limits to be established for CISWI units without any air pollution control devices, such as for units that employ material balance operating limits in conjunction with periodic stack testing to demonstrate continuous compliance.

We also determined that dry sorbent injection (or dry scrubbers) may be one type of additional control device that CISWI units may widely use to control acid gases. Commenters agreed with our statement and encouraged the EPA to identify operating parameters for dry scrubbing systems in the final rule. We have done so, by both defining “dry scrubber” in the rule, and specifying that the sorbent injection rate must be monitored and maintained at or above the operating rate established during the HCl performance test (40 CFR 60.2165 and 40 CFR 60.2730). Furthermore, we have determined that the sorbent injection rate for ERUs can be adjusted to reflect operating loads that are less than those during the performance testing. Commenters have made arguments that requiring a high sorbent injection rate during reduced boiler loads can lead to fouling and plugging issues, especially for acid gas sorbent injection. To address this particular concern, and to provide consistency with other industrial boiler rules, we are also providing this parametric monitoring provision for sorbent injection air pollution control devices.

Also regarding monitoring, we determined after proposal that we had not clarified in the rule that sources opting to use CEMS to measure NO

, Hg or D/F were not required to monitor ACI rates (for Hg and D/F CEMS-equipped units) or SNCR parameter monitoring (for NO

CEMS-equipped units). Our intent had been to not require applicable control device parameter monitoring if a CEMS was in use for the pollutant being controlled by the device. Control device parameter monitoring is an acceptable and established method for determining continuous compliance and it is appropriate to require such monitoring when coupled with period stack testing. However, direct, continuous emission measurements with a CEMS are sufficient for determining compliance for CISWI units without requiring parametric monitoring. In cases where CEMS data are available to directly measure regulated pollutants, operating parameter data would be duplicative.

7. Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-Burning Kilns

In today's rule, we are finalizing monitoring requirements for ERUs with an annual average heat input rate greater than 250 MMBtu/hr. As we stated in the proposal, recent EPA experience with the utility boiler source category has led the EPA to allow PM CEMS as an alternative, rather than a requirement. Industry commenters have maintained that there were several problems with implementing the monitoring requirements to demonstrate compliance using a PM CEMS and with the requirements to conduct a periodic audit of the PM CEMS in accordance with PS 11 of appendix B and Procedure 2 of appendix F to part 60. As we discuss in response to these comments later in this preamble (See II.E), the PM CEMS technology may not be sufficient to certify accurate monitor performance in the PM concentration range of the CISWI biomass ERU limits. Furthermore, in related ongoing work on the Portland cement source category, we realize that similar concerns regarding PM CEMS are applicable. Therefore, we are also removing PM CEMS (PS-11) requirements for waste-burning kilns, and instead, requiring PM CEMS equipment for these units that are used for continuous parametric monitoring rather than for direct measure of compliance with the numerical PM emissions limit, similar to those being required for major industrial boilers and utility boilers. However, PM CEMS (PS-11), are still allowed as an option for coal ERUs, incinerators and small remote incinerators, since the emission limits for these subcategories do not pose the same technical concerns as for biomass ERUs and waste-burning kilns. To be consistent with these other rules, we have incorporated 30-day rolling averages to be measured with PM CPMS. The EPA is further requiring that a site-specific parametric operating limit be established during the performance test, that there be continuous monitoring of that parametric limit using a PM CPMS, that an exceedance of that site-specific operating limit be reported as a deviation and trigger immediate corrective action and a Method 5 performance test within 45 days.

8. Compliance Dates

At reconsideration proposal, we proposed to extend the compliance dates for existing units in the incinerator, ERU and waste-burning kiln subcategories. We are finalizing the revision of the effective dates for those three subcategories and, based on comments received, we are also extending the compliance date for units in the small remote incinerator subcategory. The EPA proposed to amend the standards for CO for all subcategories of CISWI; to further

subcategorize certain subcategories; to change several other pollutant standards for incinerator, ERU and waste burning kilns subcategories; to change the compliance regime from CEMS-based to stack-test/parametric-monitoring based for certain pollutants and unit types; and to change the compliance calculation provisions for sources that are required or that elect to use CEMS to demonstrate continuous compliance. These proposed changes may occasion the need for additional time for sources to study the possibility of different control and monitoring strategies than would have been considered if we had not amended the 2011 CISWI rule. New compliance strategies may require time to implement. New engineering studies may be needed, potential suppliers identified, a new bidding/procurement process undertaken and the appropriate construction and operating permits obtained. Significant plant redesign, in the form of new ductwork and new fan design and changes in the main control equipment may be needed. See US EPA, Engineering and Economic Factors Affecting the Installation of Control Technologies for Multipollutant Strategies, October 2002. Depending on the type of control, this normally requires 15-27 months. Multiple control systems may take longer. Id. Installation of controls normally occurs at times of unit outages, which will likely end up being at differing times of the year for each of the CISWI subcategories. For example, for waste-burning kilns, this would occur during winter months (to coincide with kiln outages during low production seasons). However, for small remote incinerators, facility retrofits would need to occur while road access to the site is available and climatic conditions allow for construction. Also, small remote incinerators have the additional component of having to increase the footprint of the site to accommodate additional space for control devices and waste segregation facilities. This additional permitting requirement and construction effort is not something other CISWI subcategories have to face but adds an additional consideration to developing a compliance strategy. In general, though, the differing construction constraints for the various subcategories of CISWI likely mean that there will be a wide variety to the rate of progress towards compliance for the differing CISWI sources. Further, commenters have argued that, due to the delay of the final 2011 CISWI rule, uncertainty on selecting a compliance strategy was created, essentially putting internal compliance implementation activities on hold until the reconsideration was complete. As a result of these considerations, we have finalized extending compliance for all subcategories of CISWI. Comments on extending the compliance date and our responses to these comments are found in the “Summary of Comments and Responses to the CISWI Reconsideration” document in the CISWI docket.

The compliance date for existing CISWI sources subject to standards in this final rule is 5 years after the date of publication of this final rule or 3 years after the state plan is approved, whichever happens earlier. This date is being finalized in order to provide facilities sufficient time to install controls or to make other compliance-related decisions. However, the CAA section 129(f)(2) does require that the promulgated standards be effective “as expeditiously as practicable after approval of a State plan,” so that states have the flexibility to determine that the standards for existing units within their purview may have a compliance date which is less than the allowable 3 years following approval of the state plan. For new sources, the EPA is finalizing the proposed change of the compliance date to 6 months after the date of publication of the final reconsideration rule or at startup, whichever is later.

9. Definition of Waste-Burning Kiln

In the December 23, 2011, reconsideration proposal, we proposed revisions to the definition of “waste-burning kiln” to indicate that the term “does not include a kiln that is feeding non-hazardous secondary ingredients exclusively into the cold end of the kiln.” In proposing this language, the EPA intended to codify principles set out in a previous action granting and denying reconsideration of the NESHAP for Portland cement kilns. See 76 FR 28318, 28322 (May 17, 2011); see also Memorandum “Revised Floors Without Kilns That Would Have Been CISWI Kilns Had the Solid Waste Definition Applied” (EPA, April 25, 2011) (which memorandum is summarized in the May 17

Federal Register

notice). The May 17, 2011, notice and April 25, 2011, memorandum state in essence that combustion does not occur in any region of a cement kiln except the hot end and that cement kiln dust added to the hot end of a cement kiln also is not combusted since it is inorganic and essentially inert.

The language used at proposal captured some but not all of these principles, since it referred only to the “cold end” of a cement kiln, as pointed out by a number of commenters. The EPA is revising the definition in the final rule to accurately reflect the May 17 preamble and April 25 memorandum discussion of when combustion occurs in a cement kiln. In addition, we are adding the fact that combustion in a cement kiln does also take place in the combustion zone of a precalciner or riser duct burner.

One further clarification is appropriate. The May 17, 2011, preamble contains one reference to legitimacy criteria for determining when a secondary material is being recycled. 76 FR at 28322/1-2. The threshold issue for determining if a unit is subject to section 129 is whether it “combusts” solid waste material (see section 129 (g)(1)). For cement kilns, this determination does not necessarily turn on legitimacy of recycling, but rather on the nature of the cement kiln process. Consequently, if combustion of solid waste is not occurring, a unit is not a CISWI, irrespective of whether or not legitimate recycling is occurring.

10. Exemption for Other Solid Waste Incineration (OSWI) Units

Following publication of the December 23, 2011, reconsideration proposal, we realized that the CISWI rule did not contain any language to clarify overlap with another CAA section 129 regulation applicable to OSWI units. The CISWI rule already contains exemptions for MWCs, HMIWIs and SSIs, but omitted similar language for OSWI units. Therefore, in this final rule, we are providing language in 40 CFR 60.2020 and 60.2555 that clarifies that incineration units that are subject to 40 CFR part 60 subparts EEEE or FFFF are exempt from the CISWI rule.

D. Technical Corrections and Clarifications

We are also including some technical corrections and clarifications in the final rule, as outlined below:

• Operating parameter limits during performance testing—While we believe it is intrinsic that established operating parameter limits do not apply during subsequent performance testing since they are being confirmed or reestablished during the subsequent testing, we provided language in the proposed rule in the NSPS to clarify that they are waived during performance testing (40 CFR 60.2145(c)). However, we inadvertently omitted this clarifying language in the emission guidelines so we have added clarifying language in the final emission guidelines at 40 CFR 60.2710(c).

• Bypass stacks on waste-burning kilns—While not included in the final

rule text, we are clarifying here that the definition of “bypass stack” in today's final rule does not have the same meaning as an “alkali bypass” used by some waste-burning kilns that manufacture Portland cement.

• Clarifying that, consistent with CAA section 129(f)(1), June 4, 2010, is the appropriate new source applicability date in 40 CFR 60.2015(a)(1).

• Revising the title of Table 2 to subpart DDDD to clarify that these emission limits apply to incinerators which are currently subject to CISWI emission limits promulgated in the 2000 CISWI rule.

• Clarifying that petitions for specific operating limits for control devices not listed in this subpart must be submitted to the Administrator at least 60 days before the performance test is scheduled to begin (40 CFR 60.2115 and 40 CFR 60.2680).

• Providing definitions of “30-day rolling average” and “responsible official” to clarify what is meant by these terms.

• Adding text to the provisions for PM monitoring provisions for ERUs to clarify that the 250 MMBtu/hr threshold is based upon the average annual heat input rate, consistent with how this threshold is applied in the industrial boiler NESHAP.

• Revising the affirmative defense text to clarify that these provisions apply to violations of standards and to further clarify the reporting requirements and criteria for sources seeking to assert an affirmative defense (40 CFR 60.2120 and 40 CFR 60.2685).

• Revising the recordkeeping provisions in 40 CFR 60.2175(v) and 40 CFR 60.2740(u) to reflect the categorical non-waste determination provisions of 40 CFR 241.4.

• Revising the electronic reporting provisions in 40 CFR 60.2235 and 40 CFR 60.2795 to clarify the timing and mechanism for submitting these reports and to be consistent with the electronic reporting language in more recent rulemakings.

• Revising the definition of “process change” to clarify the intended types of changes that would require re-testing.

• Making corrections to the D/F calculation methodologies for toxic equivalency basis and adding calculation methodology provisions for D/F TMB.

• Revising the definition of “space heater” to clarify applicability for units that meet the requirements of 40 CFR 279.

• Revising the emission limits for those pollutants for which data available from a similar source was determined to be better suited for calculating the new source limits. Notably, this is the case for NO

for waste-burning kilns, and for Hg and PCDD/PCDF for ERU-liquid/gas units. These revisions reflect updates made to emission limits of the selected similar sources.

E. Major Public Comments and Responses

We have included some of the major comment topics and our responses below in the preamble. All other comments and responses are provided in the “Reconsideration Response to Public Comments Document” in the CISWI docket.

Solid-Fuel ERU Subcategorization

Comment:

Several commenters support the proposed separate coal and biomass standards for D/Fs, CO, NO

, PM, Cd and Pb. However, these commenters further urge the EPA to establish separate standards for HCl and Hg for coal and biomass. Commenters state that the EPA's recognition that design and operational differences between combustors designed to combust coal and those designed to combust biomass is evidence to support subcategorizing emission limits for all pollutants. One commenter discussed differences in biomass and coal fuel rank, and the significant boiler design differences in furnace height and volume that exist between units designed to combust different fuel ranks of coal-fired boiler furnaces. As an example, one commenter noted that a low-rank coal (high slagging lignite) furnace can be 1.65 times the plan area, and 1.45 times the furnace height, of a similar capacity furnace combusting a high rank coal (medium volatile bituminous). The commenter stated that this large difference exists even among varying grades of coal, with biomass units being fuels of even lower rank than lignite. Therefore, according to the commenter, furnace area and height (and hence, volume) are significantly different between ERUs designed to combust coal and those designed for biomass combustion. The commenter highlighted an analysis of their existing boilers to see the feasibility of substituting biomass for coal. The commenter's results indicated that, due to fundamental design attributes of their coal-fired units, they could only co-fire up to 20 percent biomass in the units. The commenter explained that this limitation was due to design issues pertaining to the unit being designed for coal, such as superheater tube spacing, number and location of soot blowers, fouling characteristics of biomass ash and the impact the high moisture levels of biomass fuels have on fan capacity. The commenter stated that these findings further support that coal and biomass are not interchangeable within ERUs and therefore supports subcategorizing emission limits between the two types of unit. The commenter also contended that the EPA acknowledged significant design differences and their impacts on Hg emissions during development of the Utility MACT Final Rule. The commenter urges the EPA to take a similar approach in CISWI. One commenter agreed with differentiation between coal-fired and biomass ERUs but supported keeping solid-fuel ERUs together for purposed of HCl and Hg emission limits. Another commenter argued that all of the EPA's subcategories are unlawful and arbitrary, noting that their reasons for this belief were given in their comments on the 2010 proposal.

Response:

Based on our proposal and follow-up comments summarized below, the EPA is finalizing separate limits for all nine pollutants for biomass and coal ERUs. We agree with comments concerning differences in moisture content between biomass and coal-fired units. We reviewed data in the CISWI database and see that the stack gas moisture content of coal-fired ERUs is around 11.6 percent and is about 19.2 percent for the biomass ERUs. We have considered the technical arguments provided by commenters on CISWI ERUs, other technical differences we have previously considered in our decision to subcategorize ERUs and how these design differences impact pollutant emission characteristics of the ERU. As a result, we have determined that subcategorizing all nine pollutant emission limits between coal and biomass solid-fuel ERUs is appropriate for the final CISWI rule.

One commenter supported the differentiation between coal and biomass, but in keeping HCl and Hg limits together. However, for the reasons given above, we have determined that all nine pollutants should be subcategorized.

Contained Gaseous Material

Comment:

Commenters support the EPA retaining the 2000 CISWI rule's definition of “contained gaseous material.” Some commenters believe that the EPA should expressly include the definition of “contained gaseous material” in the amendatory text to confirm that the definition is back in the CISWI rule.

Response:

We believe that the commenters misunderstood what the EPA proposed. Specifically, the basis of

the reconsideration proposal amendatory text was the 2000 CISWI rule—not the 2011 CISWI rule—because the 2011 CISWI rule had not been codified in the CFR pursuant to the Delay Notice. Therefore, by not including the amendatory instruction to delete the definition in the 2000 rule in the proposed reconsideration rule, we proposed to retain the definition as contained in the 2000 CISWI rule. However, as explained above, due to the vacatur of the Delay Notice, the 2011 CISWI rule is in effect and the definition of contained gaseous material does not appear in that rule. For that reason, we are including the definition of “contained gaseous material” found in the 2000 CISWI rule in today's final rule.

Comment:

Many commenters who supported the EPA retaining the 2000 CISWI rule's definition of “contained gaseous material” also urged the Agency to make clear that this definition should apply when interpreting the term “solid waste” under RCRA.

Response:

As aforementioned, the Agency is including the definition of “contained gaseous material” found in the 2000 CISWI Rule in today's final rule. Specifically, the definition of “contained gaseous material” is codified today, consistent with the 2000 CISWI Rule, as meaning, “gases that are in a container when that container is combusted.”

See 65 FR at 75359 and 75373.

CAA section 129(g)(6) states that the definition of “solid waste” shall have the meaning established by the Administrator pursuant to RCRA. We agree that the definition of contained gaseous materials in the final CISWI rule is consistent with the interpretation of that term under RCRA for the purpose of defining when non-hazardous secondary materials are solid wastes when combusted in CISWI units.

As discussed in more detail in the NHSM portion of the December 2011 reconsideration proposal and in various letters issued by EPA,

the NHSM rulemaking did not change any previous EPA position as it relates to whether “contained gaseous material” is a solid waste under RCRA.”

Note that for the purposes of CISWI, contained gaseous materials are limited to gases in a container when that container is combusted. This limitation is due to the fact that CAA section 129 is focused exclusively on combustion of non-hazardous solid wastes. On the other hand, RCRA is focused on more than just combustion of non-hazardous solid wastes (e.g., treatment, storage, and disposal of hazardous and non-hazardous wastes); thus, this limitation is inapplicable to RCRA. We also note that the term 'container' as used in this definition is broader than the term as used in the hazardous waste regulations (see 40 CFR 260.10, definition of container). Specifically, the term here is not limited to a portable device, but also includes stationary containers. We believe that these interpretations under the CAA and RCRA are consistent.

For example, see June 25, 2012 letter from Assistant Administrator Mathy Stanislaus to Paul Noe. A copy of this letter has been placed in the docket for today's rulemaking.

See 76 FR at 80472-80473.

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

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

Comment:

Some commenters also requested that EPA clarify that landfill gas is not considered to be a “contained gaseous material” and/or a “solid waste” under RCRA.

Response:

We agree with commenters that landfill gases must be in a container when that container is combusted to be considered “contained gaseous material” under today's final CISWI regulations.

However, given that landfill gas is emitted from solid waste (i.e., non-hazardous solid waste landfills or municipal waste landfills), EPA has distinct and independent authority under RCRA to regulate this material as part of our authority to regulate solid waste landfills (for example, in order to address the risk of explosions posed by methane emissions per 40 CFR 258.23).

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

Oxygen Correction During Startup and Shutdown

Comment:

Commenters generally support allowing the use of uncorrected CEMS data during startup and shutdown. Several commenters are concerned that the 4‐ hour startup and a 1-hour shutdown period (derived from a single coal fired unit) are not sufficient for all the CISWI unit types and technologies. Other commenters believe there should be no time limitations on shutdown and startups. One commenter, however, believes the proposed time limit is appropriate. Some commenters recommend using the Boiler MACT rule approach using load to define when the O

corrections do not apply.

Commenters

also urge the EPA to eliminate the O

correction for all CEM-measured emission limits, not just CO, during startup and shutdown periods. Commenters also support making this allowance available to all types of CISWI unit, not only ERUs.

Response:

In today's final rule, we are retaining the provision that allows sources to use uncorrected CO CEMS data during periods of startup and shutdown. Based on comments and the technical justifications for allowing the use of uncorrected CEMS data identified during the comment period, we are expanding this provision to any pollutant for which continuous compliance is being determined using CEMS as explained above in “Section II.C: Summary of Significant Changes Since Proposal.”

Particulate Matter Continuous Monitoring Provisions for Large ERUs and Waste-Burning Kilns

Comment:

Several commenters supported the EPA's proposal to remove requirements for PM CEMS (using PS-11) for continuous compliance for large ERUs and waste-burning kilns, stating that PM CEMS usefulness and application issues of these monitors are uncertain. Commenters asserted that, for biomass ERUs and sources with low PM concentration, PM CEMS were not adequate to accurately monitor low PM concentrations. Commenters further contended that PM CPMS are essentially the same thing as PM CEMS, and that there were no clear instructions on how to “certify” PM CPMS, as was required in the proposed rule. Commenters added that they do not understand how the recording of hourly and 30-day rolling averages of the output from these monitors will be useful to demonstrate

performance or evaluate compliance with a PM limit. One commenter suggested that the EPA remove the PM CPMS requirements altogether for all industrial boilers.

Response:

We are revising the PM CEMS requirements in the final rule as explained above.

In responding to this comment specifically, we believe it is useful to review the procedures and acceptance criteria of PS-11, the protocol mandated by the 2011 final CISWI rule.

Performance Specification-11

PS-11 is structured differently than other PSs that apply to validating the performance of gaseous pollutant CEMS. This is primarily because the pollutant, PM, is defined entirely by the test method specified by regulation to measure it. As the industry commenters note, there are no independent standard reference materials for PM concentrations as there are for gaseous pollutants (e.g., NIST traceable compressed gases for validating SO

or NO

instrumental measurements). The only reference standard for determining the PM concentration in an air or stack gas sample is the reference test method. In the case of the CISWI final rule, the rule specifies EPA Method 5 for measuring filterable PM concentration (e.g., in mg/dscm).

Performance Specification 11 provides procedures and acceptance criteria for validating the performance of several types of PM CEMS technologies. Although there are multiple instrument and data reporting operational performance checks in PS-11 that are similar in concept to those for gaseous pollutant CEMS, there is a principal PM CEMS performance requirement that is distinctly different. That difference is the development of a site-specific PM CEMS correlation or mathematical response curve. There are two key procedural elements to developing that correlation. First, PS-11 requires that the source conduct stack test runs using an EPA PM test method (e.g., Method 5) and simultaneously collect corresponding PM CEMS output data. Second, the source must vary the operation of the control device manually in order to produce a range of PM concentrations. Performance Specification 11, section 8.6, requires at least five test runs at each of three different operating conditions (i.e., low, mid and high PM concentrations) for a total of 15 or more test runs that range from 25 to 100 percent of allowable emissions. Then the source must use the test method data and the corresponding PM CEMS output data to develop an equation (i.e., a calculated linear or nonlinear curve) that will be used to define the relationship between the PM CEMS output and the test method measured PM concentrations. Each site-specific correlation must meet several PS-11 acceptance criteria including limits on confidence interval and tolerance interval equating to ±25 percent of the applicable emissions limit.

Discussion of Technical Issues

In prior comments submitted to the EPA on the PM CEMS requirements for waste-burning kilns, one issue raised about conducting the testing to meet the PS-11 correlation development requirement is the impracticality of varying the emissions from a FF control device. Many CISWI units subject to the standards use FF control devices.

We agree with commenters that there are typically few, if any, physical adjustments one can apply to a FF or to the waste-burning kiln process to change the outlet PM concentration significantly. A FF produces essentially a constant outlet concentration even with changes to the inlet loading or flow (

http://www.epa.gov/ttnchie1/mkb/documents/ff-pulse.pdf

). Although PS-11 allows some flexibility when control device perturbations are not possible, the resulting correlation would apply for only the narrow range of concentrations measured during the testing. The result would be that the PM CEMS would be correlated only for a relatively small range of conditions below the applicable compliance limit. This range would not necessarily include situations where the standard might be exceeded. Without the ability to calculate emissions should the FF performance change from initial test conditions (e.g., bag leaks begin to develop), such a limited correlation range would render the PM CEMS less reliable for calculating long term average concentrations or emissions rates and for verifying compliance. Additionally, it is difficult and resource intensive to modify baghouse control efficiency in a way that is representative of normal operations at a waste-burning kiln.

Commenters also cited problems in developing correlations in stack gases with variable PM constituents and physical characteristics when using light scatter or scintillation detection PM CEMS devices. As noted above and in the EPA's technology background documents (e.g.,

http://www.epa.gov/ttn/emc/cem/pmcemsknowfinalrep.pdf

and

http://www.epa.gov/ttn/emc/cem/r4703-02-07.pdf

), the correlations developed for these types of instruments are inherently dependent on the particle structure, size and other physical characteristics as well as PM mass in the exhaust gases for each site. Put another way, these light-based PM CEMS produce a signal that can vary when different fuels or raw materials are introduced to the kilns or ERU even when the FF outlet mass concentration remains unchanged.

To the extent that physical characteristics of the PM in the stack remain stable, correlations for light-based PM CEMS meeting PS-11 performance criteria can represent mass rates to the degree of accuracy required by PS-11. For example, there are various design structures used in some light-based PM CEMS devices that can mitigate the effects of changes in the physical aspects of particles on measurement uncertainty. In addition to the type of light effect measured (e.g., Rayleigh or Mie scattering or light scintillation), the detector wavelength and the frequency are design factors that will affect how the PM CEMS responds to small changes in the physical appearance of the PM.

On this point, we note that if a source owner were concerned about the ability of a light-based PM CEMS to meet the requirements of PS-11 because of variable physical characteristics of particles in the stack, there is at least one other PM CEMS technology based more directly on mass measurement rather than on light scatter or light scintillation characteristics. The currently available Beta gauge technology does not suffer from this particular technical problem. The Beta attenuation PM CEMS, also called Beta gauge, extracts a sample for the stack gas and collects the PM on a filter tape. The device periodically advances the tape from the sampling mode to an area where the sample is exposed to Beta radiation. The detector measures the amount of Beta emitted by the sample and that amount can be directly related to the mass of PM on the filter. The Beta gauge sensitivity or detection limit can be enhanced (i.e., lowered) with greater sample volumes produced from sampling intervals up to an hour or longer.

Another PM mass detector projected for greater use as PM CEMS is the TEOM. Often used in measuring ambient levels of PM, the TEOM operates on a basic principle that can be made traceable to NIST laboratory standards. The TEOM can provide a continuous measure of PM mass in a sample extracted from the stack and routed to the detector. Tapered element oscillating microbalance based PM CEMS are not yet commercially available.

Commenters identified another factor contributing to the difficulty of meeting PS-11 correlation requirements for low PM concentrations corresponding to a low applicable emissions limit, as with the promulgated PM standards here for waste-burning kilns and biomass ERUs. We have recently reevaluated the capabilities of the EPA Method 5 for measuring low concentrations of PM (See the memo “Revision of Estimated Method 5 Detection Limit” in the CISWI docket) and have determined a Method 5 method detection limit of approximately 2 mg/dscm for a 1-hour test run. The uncertainty of a measurement with Method 5 at this PM concentration would be from 50 to 100 percent (i.e., ±1 to 2 mg/dscm). We can determine a PQL using ~3 × method detection limit to reduce that Method 5 measurement uncertainty to ±10 to 20 percent. That means that the PQL for a 1-hour test run with Method 5 would be approximately 6 mg/dscm ±0.6 to 1.2 mg/dscm.

The CISWI PM emissions limit for existing waste-burning kiln sources is 3.6 mg/dscm, and is 11 mg/dscm for biomass ERUs. The new source limits are the same for waste-burning kilns but are 5.1 mg/dscm for biomass ERUs. As noted above, PS-11 specifies acceptable criteria for a correlation directly related to the applicable emissions limit. For a PM CEMS set up to measure compliance with a 3.6 mg/dscm limit, the inherent uncertainty associated with a 1-hour Method 5 measurement (±0.6 to 1.2 mg/dscm) would constitute more than half of the ±25 percent of the applicable PS-11 acceptance threshold (i.e., ±0.9 mg/dscm) of the mid-level PS-11 correlation test (i.e., the correlation for the middle of the three PS-11 correlation points). Factoring in the inherent PM CEMS response variability and the uncertainty associated with the representative sampling (e.g., PM and flow stratification), we agree with commenters that trying to satisfy PS-11 at such low concentrations using 1-hour Method 5 test runs would be problematic. This drawback applies regardless of the type of PM CEMS technology used.

As commenters to the Portland Cement NESHAP have noted, one can improve the method detection capabilities of the Method 5 or other filterable PM test method by increasing sampling volume and run time. For example, a test run time of about 2 hours will improve the Method 5 PQL to about 3 mg/dscm. The measurement uncertainty associated with a 2-hour test run at 3 mg/dscm would be about ±0.3 to 0.6 mg/dscm. At this level, the uncertainty associated with the PM test method measurements alone would be about half of the correlation limit allowed in PS-11. To achieve a PQL of 1 mg/dscm and a measurement uncertainty of about ±0.01 to 0.2 mg/dscm, one would need to conduct a test run of 6 hours or longer. As noted above, the PS-11 correlation calculations would also have to account for any PM CEMS analytical and measurement variability.

Using data from longer Method 5 test runs will improve the probability of a PM CEMS meeting PS-11 correlation requirements but, as commenters note, will also raise practicality concerns without completely resolving the issue. For example, the time to complete 15 1-hour test runs under three different emissions conditions may be 3 to 6 days of field work, while the time to complete 15 6-hour test runs under three different emissions conditions will require at least 2 weeks of field work in order to produce and maintain the operating conditions associated with three different emissions rates. Longer test runs lower the variability of Method 5 PM measurements at near detection limit levels from ± 50 percent to below ± 25 percent; however, the variability of Method 5 results at these low levels represents a significantly larger portion of the ± 25 percent correlation requirement of PS-11 than would Method 5 data collected at higher PM concentrations. Method 5 measurement uncertainty becomes increasingly greater with lowering PM concentration and thus reference measurement variability hinders the PS-11 correlation process the most for the best performing sources. Thus, the ultimate result might still lack certainty and would also pose the most difficulty and uncertainty to those sources with lower PM concentrations (potentially disadvantaging more efficient operators).

Although longer Method 5 test runs and longer beta gauge sampling times reduce difficulties with PS-11 correlation for a PM CEMS, the EPA believes that this correlation will not be technically achievable for a significant number of waste-burning kiln and biomass ERU sources, a result in part due to the Method 5 PM emissions measurement variability at the low concentrations necessary to maintain compliance with the standard. The PM CEMS correlations then become approximations more qualitative than quantitative with high levels of uncertainty at low concentrations (i.e., the correlations do not meet PS-11 requirements). This characteristic exists regardless of the type of PM CEMS technology used by the source since it involves variability not only of the PM CEMS but also the Method 5 test data, variability of raw material and additive feeds to the waste-burning kiln, and the changing particle sizes, shapes, and density with process operations (e.g., mill on versus mill off, type of fuel being used in the ERU).

Making PM CEMS work at low concentrations (<10 mg/dscm) at waste-burning kiln and biomass ERU sources is not impossible; although, to expect that correlations would be achievable at all low emissions sources would be unrealistic. Additionally, the technical limitations do not mean that PM CEMS cannot be used to monitor for compliance. A PM CEMS that does not meet the EPA correlation requirements can still produce data indicative of trends and changes in emissions control. Particulate Matter CEMS technology can be effective in monitoring control device performance (see, e.g., 77 FR 9371 (February 16, 2012)) where the EPA established PM CPMS parametric operating limits for electric utility steam generating units.

A Monitoring Approach Alternative to PM CEMS and PS-11

To address technical issues associated with PM CEMS meeting PS-11 correlation requirements at low PM emissions concentrations from waste-burning kilns and biomass ERUs, the impracticability in perturbing FF emission rates to establish PS 11 correlation curves, and the potentially variable PM emissions characteristics expected from waste-burning kilns, the EPA is finalizing the change of the compliance basis for the PM emissions limit from PM CEMS. For monitoring continuous compliance, the rule requires PM CEMS equipment but, as explained below, that equipment would be used for continuous parametric monitoring rather than for direct measure of compliance with the numerical PM emissions limit.

Specifically, this final rule recognizes the value of PM monitoring technology sensitive to changes in PM emissions concentrations and use of such a tool to assure continued good operation of PM control equipment. This approach avoids the PM CEMS calibration (i.e., PS-11 correlation). Therefore, the EPA is including provisions that a site-specific parametric operating limit be established during the performance test, that there be continuous monitoring of that parametric limit using a PM CPMS, that an exceedance of that site-specific operating limit be reported as a deviation and trigger immediate corrective action and a Method 5 performance test within 45 days.

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

F. What other actions are we taking?

In this final action, we are denying requests for reconsideration on all issues contained in the petitioners' requests for reconsideration that we did not include in the December 23, 2011, proposed rule. The issues for which we are denying reconsideration failed to meet the standard for reconsideration under CAA section 307(d)(7)(B) and we determined that reconsideration was not otherwise appropriate. Specifically, on these issues, the petitioner has failed to show the following: That it was impracticable to raise their objections during the comment period; or that the grounds for their objections arose after the close of the comment period; and/or that their concern is of central relevance to the outcome of the rules. We have concluded that no clarifications to the underlying rules are warranted for the 19 remaining petitioners' issues for the reasons set forth in the memorandum titled “Denied CISWI Petition Issues” found in the CISWI docket. The following issues are addressed in that memorandum.

• Work practice standards should be used for startup/shutdowns and malfunctions.

• Exempt or revise limits for units combusting de minimis amounts of waste.

• Clarify applicability of CISWI standards to marine vessel units or units located on the outer continental shelf.

• Clarify applicability to temporary or portable units.

• Reduce performance testing requirements to be more consistent with requirements of other rules.

• Reconsider elimination of provisions that allow missing CEMS data.

• Do not include emissions data for combination boiler units.

• CISWI does not satisfy CAA 112(c)(6) requirements for POM and PCB.

• MACT floor statistical approach concerns.

• MACT floor must reflect the average, the UPL is not the same as the average emission level.

• MACT floor pollutant-by-pollutant approach concerns.

• Non-detect methodology is unlawful.

• Beyond-the-floor analysis is unlawful and arbitrary.

• Compliance cost and wildlife concerns for small remote incinerators.

• “Refinery gas” definition should be included in the CISWI rule.

• Clarify that construction and demolition wood is not a solid waste.

G. What are the impacts associated with the amendments?

1. What are the primary air impacts?

We have estimated the potential emissions reductions from existing sources that may be achieved through implementation of the emission limits. However, we realize that some CISWI owners and operators are likely to determine that alternatives to waste incineration are viable, such as further waste segregation or sending the waste to a landfill or MWC, if available. In fact, sources operating incinerators, where energy recovery is not a goal, may find it cost effective to discontinue use of their CISWI unit altogether. Therefore, we have estimated emissions reductions attributable to existing sources complying with the limits, as well as those reductions that would occur if the facilities with incinerators and small, remote incinerators decide to discontinue the use of their CISWI unit and use alternative waste disposal options.

For units combusting wastes for energy production, such as ERUs and waste-burning kilns, the decision to combust or not to combust waste will depend on several factors. One factor is the cost to replace the energy provided by the waste material with a traditional fuel, such as natural gas. Another factor would be whether the owner or operator is purchasing the waste or obtaining it at no cost from other generators, or if they are generating the waste on-site and will have to dispose of the materials in another fashion, such as landfills. Lastly, these units would have to compare the control requirements needed to meet the CISWI emission limits with those needed if they stop burning solid waste and are then subject to a NESHAP instead. As mentioned before, we have attempted to align the monitoring requirements for similar non-waste-burning sources as closely as possible in an effort to make them consistent and to help sources make the cross-walk between waste and non-waste regulatory requirements as simple as possible.

The emissions reductions that would be achieved under this final rule using the definition of solid waste under RCRA and the proposed CISWI emission limits are presented in Table 5 of this preamble.

Table 5—Emissions Reductions for MACT Compliance and Alternative Disposal Options for Existing CISWI Using the Emission Limits

Pollutant

Reductions achieved through meeting MACT

(ton/yr)

Reductions achieved

assuming incinerators

and small, remote

incinerators use alternative disposal

(ton/yr)

HCl

772.2

784.3

20,093

20,058

2.5

2.71

1.807

1.809

0.341

0.344

PM (filterable)

2,397

2,401

dioxin, furans

0.000062

0.000064

5,292

5,399

6,211

6,262

Total

34,771

34,909

The estimated emission reduction does not account for any secondary impacts associated with alternate disposal of diverted ERU fuel.

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

Table 6—Emissions Reductions on a Model Plant Basis

Pollutant

Emission reduction for CISWI subcategory model units

(tpy unless otherwise noted)

Incinerator

Small, remote

incinerator

HCl

2.62

0.0

0.25

0.55

0.11

0.15

0.019

0.0026

0.00036

PM (filterable)

103

10.7

D/F (total mass)

0.0011

0.0

11.3

0.0

5.1

4.5

Total

122

22.0

D/F estimates are given in lb/yr.

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

tire management plan. Likewise, new sources could engineer their process to minimize waste generation in the first place or to separate wastes so that the materials sent to a combustion unit would not meet the definition of solid waste to begin with. For waste that is generated, our cost analyses have found that alternative waste disposal is generally available and less expensive.

2. What are the water and solid waste impacts?

In our analysis, we have selected the lowest cost alternative (i.e., compliance or alternative disposal) for each facility. We anticipate affected sources will need to apply additional controls to meet the emission limits. These controls may use water, such as wet scrubbers, which would need to be treated. We estimate an annual requirement of 71 billion gallons per year of additional water would be required as a result of operating additional controls or increased sorbent use.

Likewise, the addition of PM controls or improvements to controls already in place will increase the amount of particulate collected that will require disposal. Furthermore, ACI may be used by some sources, which will result in additional solid waste needing disposal. The annual amounts of solid waste that would require disposal are anticipated to be approximately 25,400 tpy from PM capture and 13,700 tpy from ACI.

Perhaps the largest impact on solid waste would come from owners and operators who decide to discontinue the use of their CISWI unit and instead send waste to the landfill or MWC for disposal. Based on tipping fees and availability, we would expect most, if not all, of this diverted waste to be sent to a local landfill. As we discuss above, it may be that a good portion of the incinerators would determine that alternative disposal is a better choice than compliance with the standards. We estimate that approximately 110,600 tpy of waste would be diverted to a landfill.

For new CISWI units, we estimate an annual requirement of 980,000 gallons per year of additional water would be required as a result of operating additional controls. The annual amounts of solid waste that would require disposal are anticipated to be approximately 6.8 tpy from PM capture and 4.7 tpy from ACI.

3. What are the energy impacts?

The energy impacts associated with meeting the emission limits would consist primarily of additional electricity needs to run added or improved air pollution control devices. For example, increased scrubber pump horsepower may cause slight increases in electricity consumption and sorbent injection controls would likewise require electricity to power pumps and motors. In our analysis, we have selected the lowest cost alternative (i.e., compliance or alternative disposal) for each facility. By our estimate, we anticipate that an additional 217,400 MW-hours per year would be required for the additional and improved control devices.

As discussed earlier, there could be instances where owners and operators of ERUs and waste-burning kilns decide to cease burning waste materials. In these cases, the energy provided by the burning of waste would need to be replaced with a traditional fuel, such as natural gas. Assuming an estimate that 50 percent of the energy input to ERUs and kilns are from waste materials, an estimate of the energy that would be replaced with a traditional fuel if all existing units stopped burning waste materials, is approximately 56 TBtu/yr.

For new CISWI units, we anticipate that 94 MW-hours per year would be required for additional and improved control devices. Since we do not anticipate any new energy recovery or waste-burning kiln units to be constructed, there would be no additional estimate for energy that would be replaced with a traditional fuel.

4. What are the secondary air impacts?

For CISWI units adding controls to meet the emission limits, we anticipate minor secondary air impacts. The combustion of fuel needed to generate additional electricity and to operate RTO controls would yield slight increases in emissions, including NO

, CO, PM and SO

and an increase in CO

emissions. Since NO

and SO

are covered by capped emissions trading programs, and methodological limitations prevent us from quantifying the change in CO and PM, we do not estimate an increase in secondary air impacts for this rule from additional electricity demand.

We believe it likely that the incinerators may elect to discontinue the use of their CISWI unit and send the waste to the landfill or other disposal means. As we discussed in the solid waste impacts above, this could result in approximately 110,600 tpy of waste going to landfills. By using the EPA's Landfill Gas Estimation Model, we estimate that, over the 20-year expected life of a CISWI unit, the resulting methane generated by a landfill receiving the waste would be about 96,400 tons. If this landfill gas were combusted in a flare, assuming typical flare emission factors and landfill gas chlorine, Hg and sulfur concentrations, the following emissions would be expected: 20 tons of PM; 8 tons of HCl; 16 tons of SO

; 890 tons of CO; 46 tons of NO

; and 1.4 lbs of Hg.

Similar to existing units, we anticipate minor secondary air impacts for new CISWI units adding controls as discussed above.

5. What are the cost and economic impacts?

We have estimated compliance costs for all existing units to add the necessary controls and monitoring equipment, and to implement the inspections, recordkeeping and reporting requirements to comply with the final CISWI standards. We have also analyzed the costs of alternative disposal for the subcategories that may have alternative options to burning waste, specifically for the incinerators and the small, remote incinerators that may have an alternative to incineration. In our analysis, we have selected the lowest cost alternative (i.e., compliance or alternative disposal) for each facility. Based on this analysis, we anticipate an overall total capital investment of $816 million with an associated total annual cost of $271 million ($2008). For comparison, the 2011 final rule, estimated an overall total capital investment of $652 million with an associated total annual cost of $232 million ($2008). The annualized cost of today's final rule are approximately 17% higher than those of the final 2011 CISWI rule. The changes in cost result from revising the inventories of the ERUs, waste-burning kilns, and small remote incinerators as discussed in Section II.C. of this preamble: “Summary of Significant Changes Since Proposal.”

Under the rule, the EPA's economic model suggests the average national market-level variables (prices, production-levels, consumption, international trade) will not change significantly (e.g., are less than 0.001 percent).

The EPA performed a screening analysis for impacts on small entities by comparing compliance costs to sales/revenues (e.g., sales and revenue tests). The EPA's analysis found the tests were below 3 percent for four of the five small entities included in the screening analysis.

In addition to estimating this rule's social costs and benefits, the EPA has estimated the employment impacts of the final rule. We expect that the rule's direct impact on employment will be small. For the reconsideration final, the estimated employment changes range

between −400 to +900 employees, with a central estimate of +200.

We have not quantified the rule's indirect or induced impacts. For further explanation and discussion of our analysis, see the introductory memo and Section 3 of the RIA.

For new CISWI units, we have estimated compliance costs for units coming online in the next 5 years. This analysis is based on the assumption that one new incinerator will come online over 5 years and that three new small remote incinerators will come online in the next year, followed by one new small remote incinerator per year for subsequent years. Additionally, it was assumed that each model unit will add the necessary controls, monitoring equipment, inspections, recordkeeping and reporting requirements to comply with NSPS limits. Based on our analysis, we anticipate an overall total capital investment of $9.3 million over 5 years with an associated total annual cost (for 2015) of $2.7 million.

6. What are the benefits?

We estimate the monetized benefits of this regulatory action to be $420 million to $1.0 billion (2008$), 3 percent (discount rate) in the implementation year (2015). The monetized benefits of the regulatory action at a 7 percent discount rate are $380 million to $930 million (2008$). Using alternate relationships between 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.

Since the reconsideration proposal, we have made several updates to the approach we use to estimate mortality and morbidity benefits in the PM NAAQS RIAs (U.S. EPA, 2012a,b)

11 12

, including updated epidemiology studies, health endpoints, and population data. Although we have not re-estimated the benefits for this rule to apply this new approach, these updates generally offset each other, and we anticipate that the rounded benefits estimated for this rule are unlikely to be different than those provided below. More information on these updates can be found in the PM NAAQS RIAs .A summary of the monetized benefits estimates at discount rates of 3 percent and 7 percent is in Table 7 of this preamble.

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.

U.S. Environmental Protection Agency (U.S. EPA). 2012a.

Regulatory Impact Analysis for the Proposed Revisions to the National Ambient Air Quality Standards for Particulate Matter.

EPA-452/R-12-003. Office of Air Quality Planning and Standards, Health and Environmental Impacts Division. June. Available at

http://www.epa.gov/ttnecas1/regdata/RIAs/PMRIACombinedFile_Bookmarked.pdf

U.S. Environmental Protection Agency (U.S. EPA). 2012b.

Regulatory Impact Analysis for the Final Revisions to the National Ambient Air Quality Standards for Particulate Matter.

EPA-452/R-12-003. Office of Air Quality Planning and Standards, Health and Environmental Impacts Division. December. Available at

http://www.epa.gov/pm/2012/finalria.pdf

Table 7—Summary of the Monetized Benefits Estimates for the CISWI NSPS and EG in 2015

[Millions of 2008$]

a b

Pollutant

Estimated emission reductions

(tpy)

Total monetized benefits

(3% Discount Rate)

Total monetized benefits

(7% Discount Rate)

2.5

917

$210 to $510

$190 to $460.

Precursors

6,262

$180 to $450

$170 to $410.

5,399

$26 to $64

$24 to $58.

Total

$420 to $1,000

$380 to $930.

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 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. To estimate human health benefits of this rule, the EPA used benefit-per-ton factors to quantify the changes in PM

2.5

-related health impacts and monetized benefits based on changes in SO

and NO

emissions. 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).

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 the scientific evidence is not yet sufficient to support the development of differential effects estimates by particle type. Directly emitted PM

2.5

, SO

and NO

are the primary precursors affected by this rule. Even though we assume that all fine particles have equivalent health effects, the benefit-per-ton estimates vary between precursors depending on the location and magnitude of their impact on PM

2.5

levels, which drive population exposure. For example, SO

has a lower benefit-per-ton estimate than direct PM

2.5

because it does not form as much PM

2.5

, thus, the exposure would be lower and the monetized health benefits would be lower.

It is important to note that the magnitude of the PM

2.5

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

and the extended Six Cities cohort study.

In the RIA for this rule, which is available in the docket, we also include benefits estimates derived from expert judgments and other assumptions.

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.

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

. Using the Laden, et al., (2006) study, 40 percent of the population is exposed above the LML of 10 µg/m

. 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.

Every benefit analysis examining the potential effects of a change in environmental protection requirements is limited, to some extent, by data gaps, model capabilities (such as geographic coverage) and uncertainties in the underlying scientific and economic studies used to configure the benefit and cost models. Despite these uncertainties, we believe the benefit analysis for this rule provides a reasonable indication of the expected health benefits of the rulemaking under a set of reasonable assumptions. This analysis does not include the type of detailed uncertainty assessment found in the 2006 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

provides an indication of the sensitivity of our results to various assumptions.

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 20,000 tons of carbon monoxide, 780 tons of HCl, 2.5 tons of lead, 1.8 tons of cadmium, 680 pounds of mercury, and 58 grams of total D/F each year. Although we do not have sufficient information or modeling available to provide monetized estimates for this rulemaking, we include a qualitative assessment of the health effects of these air pollutants in the RIA for this rule, which is available in the docket.

For more information on the benefits analysis, please refer to the RIA for this rulemaking, which is available in the docket.

III. NHSM Final Revisions

A. Statutory Authority

The EPA is promulgating these regulations under the authority of sections 2002(a)(1) and 1004(27) of the RCRA, as amended, 42 U.S.C. 6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the CAA ((42 U.S.C. 7429) directs the EPA to establish standards for CISWIs, which burn solid waste. Section 129(g)(6) of the CAA provides that the term “solid waste” is to be established by the EPA under RCRA. Section 2002(a)(1) of RCRA authorizes the agency to promulgate regulations as are necessar

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