# Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-13687 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** June 23, 2016 - **Citation:** 81 FR 40956 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2003-0119; FRL-9945-72-OAR] RIN 2060-AS11 Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; notice of final action on reconsideration. SUMMARY: This action sets forth the Environmental Protection Agency's (EPA) final decision on the issues for which it granted reconsideration on January 21, 2015, which pertain to certain aspects of the February 7, 2013, 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). The EPA is finalizing proposed actions on these four topics: Definition of “continuous emission monitoring system (CEMS) data during startup and shutdown periods;” particulate matter (PM) limit for the waste-burning kiln subcategory; fuel variability factor (FVF) for coal-burning energy recovery units (ERUs); and the definition of “kiln.” This action also includes our final decision to deny the requests for reconsideration of all other issues raised in the petitions for reconsideration of the 2013 final commercial and industrial solid waste incineration rule for which we did not grant reconsideration. DATES: The amendments in this rule to 40 CFR part 60, subpart DDDD, are effective June 23, 2016, and to 40 CFR part 60, subpart CCCC, are effective December 23, 2016. The incorporation by reference of certain publications listed in this rule was approved February 7, 2013. ADDRESSES: The EPA has established a docket for this action on the commercial and industrial solid waste incineration rule under Docket ID No. EPA-HQ-OAR-2003-0119. 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, contact Dr. Nabanita Modak Fischer, Fuels and Incineration Group, Sector Policies and Programs Division (E143-05), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5572; fax number: (919) 541-3470; email address: modak.nabanita@epa.gov . SUPPLEMENTARY INFORMATION: Organization of This Document. The following outline is provided to aid in locating information in this preamble. I. General Information A. Does this reconsideration action apply to me? B. How do I obtain a copy of this document and other related information? C. Judicial Review II. Summary of Final Amendments A. Background Information B. Actions We Are Taking C. Other Actions We Are Taking III. Summary of Significant Changes Since Proposal IV. Summary of Significant Comments and Responses A. Definition of “CEMS Data During Startup and Shutdown Periods” B. PM Limit for the Waste-Burning Kiln Subcategory C. FVF for Coal-Burning Energy Recovery Units D. Definition of “Kiln” V. Technical Corrections and Clarifications A. 2000 CISWI New Source Applicability Clarification for Incinerators and Air Curtain Incinerators B. Typographical Errors and Corrections C. Clarifications VI. Environmental, Energy and Economic Impacts VII. 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 (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) 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 (NTTAA) and 1 CFR part 51 J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) Preamble Acronyms and Abbreviations. The following acronyms and abbreviations are used in this document. Btu British thermal unit CAA Clean Air Act CBI Confidential business information Cd Cadmium CEMS Continuous emissions monitoring systems CFR Code of Federal Regulations CISWI Commercial and Industrial Solid Waste Incineration CO Carbon monoxide CO 2 Carbon dioxide CPMS Continuous Parameter Monitoring System dscm Dry standard cubic meter EG Emission Guidelines EJ Environmental Justice EPA U.S. Environmental Protection Agency ERU Energy recovery unit ESP Electrostatic precipitator FVF Fuel variability factor HCl Hydrogen chloride Hg Mercury ICR Information collection request MACT Maximum achievable control technology mg/dscm Milligrams per dry standard cubic meter mmBtu/hr Million British thermal units per hour NAICS North American Industrial Classification System NESHAP National emission standards for hazardous air pollutants ng/dscm Nanograms per dry standard cubic meter NHSM Non-hazardous secondary material(s) NO X Nitrogen oxides NSPS New source performance standards NTTAA National Technology Transfer and Advancement Act OAQPS Office of Air Quality Planning and Standards OMB Office of Management and Budget Pb Lead PM Particulate matter (filterable, unless otherwise specified) ppm Parts per million ppmv Parts per million by volume ppmvd Parts per million by dry volume PS Performance Specification RCRA Resource Conservation and Recovery Act RIN Regulatory Information Number SBA Small Business Administration SO 2 Sulfur dioxide SSM Startup, shutdown, and malfunction The Court United States Court of Appeals for the District of Columbia Circuit TTN Technology Transfer Network ug/dscm Micrograms per dry standard cubic meter UMRA Unfunded Mandates Reform Act U.S.C. United States Code VCS Voluntary consensus standards WWW World Wide Web I. General Information A. Does this reconsideration action apply to me? Categories and entities potentially affected by the proposed action are those that operate Commercial and Industrial Solid Waste Incineration (CISWI) units. The New Source Performance Standards (NSPS) and Emission Guidelines (EG), hereinafter referred to as “standards,” for CISWI affect the following categories of sources: Category NAICS 1 code Examples of potentially regulated entities Any industrial or commercial facility using a solid waste incinerator 211, 212, 486 Mining; oil and gas exploration operations; pipeline operators. 221 Utility providers. 321, 322, 337 Manufacturers of wood products; manufacturers of pulp, paper and paperboard; manufacturers of furniture and related products. 325, 326 Manufacturers of chemicals and allied products; manufacturers of plastics and rubber products. 327 Manufacturers of cement; nonmetallic mineral product manufacturing. 333, 336 Manufacturers of machinery; manufacturers of transportation equipment. 423, 44 Merchant wholesalers, durable goods; retail trade. 1 North American Industrial Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this final action. To determine whether your facility would be affected by this 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 part 241. If you have any questions regarding the applicability of this final action to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. How do I obtain a copy of this document and other related information? The docket number for this final action regarding the CISWI NSPS (40 CFR part 60, subpart CCCC) and EG (40 CFR part 60, subpart DDDD) is Docket ID No. EPA-HQ-OAR-2003-0119. In addition to being available in the docket, an electronic copy of this final action is available on the World Wide Web (WWW) through the Technology Transfer Network (TTN) Web. Following signature, the EPA posted a copy of the proposed action at http://www.epa.gov/ttn/atw/129/ciwi/ciwipg.html . The TTN provides information and technology exchange in various areas of air pollution control. C. 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 United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) by August 22, 2016. 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. 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. II. Summary of Final Amendments A. Background Information On March 21, 2011, the EPA promulgated revised NSPS and EG for CISWI units. Following that action, the Administrator received petitions for reconsideration that identified certain issues that warranted further opportunity for public comment. In response to the petitions, the EPA reconsidered and requested comment on several provisions of the February 2011 final NSPS and EG for commercial and industrial solid waste incineration units. The EPA published the proposed revisions to the NSPS and EG for commercial and industrial solid waste units on December 23, 2011 (76 FR 80452). On February 7, 2013, the EPA promulgated the final reconsidered NSPS and EG for CISWI units (78 FR 9112). The final rule made some revisions to the December 2011 proposed reconsideration rule in response to comments and additional information received. Following that action, the EPA again received petitions for reconsideration. These petitions stated certain provisions should be reconsidered and that the public lacked sufficient opportunity to comment on some of the provisions contained in the final 2013 CISWI rule. On January 21, 2015, the EPA reconsidered and requested comment on four provisions of the 2013 final NSPS and EG for CISWI units. Additionally, the EPA proposed clarifying changes and corrections to the final rule, some of which were raised in petitions for reconsideration of the 2013 CISWI rule. The EPA also proposed to amend the final rule by removing the affirmative defense provision. The EPA continued to evaluate the remaining issues raised in the petitions for reconsideration of the February 7, 2013 final CISWI reconsideration based on public comments received on the January 21, 2015, proposed reconsideration. For a more detailed background and additional information on how this rule is related to other CAA combustion rules issued under CAA section 112 and the Resource Conservation and Recovery Act (RCRA) definition of solid waste, refer to prior notices (76 FR 15704, 78 FR 9112). B. Actions We Are Taking In this document, we are finalizing amendments associated with certain issues raised by Petitioners in their petitions for reconsideration on the 2013 CISWI rule. These provisions are: (1) Definition of “CEMS data during startup and shutdown periods;” (2) particulate matter (PM) limit for the waste-burning kiln subcategory; (3) fuel variability factor (FVF) for coal-burning energy recovery units (ERUs); and (4) the definition of “kiln.” The final amendments are summarized as follows: 1. Definition of “CEMS data during startup and shutdown periods”: The EPA is revising the “CEMS data during startup and shutdown” definition to be subcategory-specific. For ERUs and waste-burning kilns, the definitions reflect provisions similar to those of the non-waste counterpart National Emission Standards for Hazardous Air Pollutants (NESHAP) to CISWI for the type of source ( i.e., boilers and cement kilns). Therefore, ERUs will comply with provisions similar to those in the major source Boiler NESHAP, and waste-burning kilns will comply with provisions similar to those in the Portland Cement NESHAP. For incinerators and small remote incinerators, the proposed definition ( i.e., from a cold start and up to 48 hours for startup and 24 hours or less for shutdown) will apply. 2. Particulate matter limit for the waste-burning kiln subcategory: The EPA has determined that the test averages, instead of the individual test runs, should be used to establish the standards for new and existing waste-burning kilns. Based on that approach, the final PM emission limits for existing kilns is 13.5 mg/dscm and the final PM emission limit for new kilns is 4.9 mg/dscm. 3. Fuel variability factor (FVF) for coal-burning energy recovery units: The EPA is incorporating a fuel variability factor and adopting as final the emission limits discussed in the proposed rule for cadmium (Cd), hydrogen chloride (HCl), mercury (Hg), lead (Pb), filterable particulate matter (PM), and nitrogen oxides (NO X ). Additionally, the EPA has re-evaluated the fuel sulfur data with paired sulfur dioxide (SO 2 ) data and is incorporating a FVF into the floor calculations for SO 2 . The final SO 2 limit for existing and new coal ERUs is 850 parts per million by dry volume (ppmvd). 4. Definition of “kiln”: The EPA is finalizing a definition of “kiln” that is consistent with that of the Portland Cement NESHAP. The terms “in-line raw mill” and “in-line coal mill” are included in the definition, and, therefore, have been added to the definitions within the CISWI rule. Furthermore, the EPA is finalizing the proposed compliance demonstration and ongoing monitoring method for waste-burning kilns that combine emission streams from the in-line raw mill and/or the in-line coal mill and exhaust through multiple stacks. The EPA is also finalizing clarifying language that makes the monitoring requirements for waste-burning kilns consistent with those in the Portland Cement NESHAP. Specifically, we are not requiring that CEMS or PM continuous parameter monitoring systems (CPMS) be installed on separate alkali bypass or in-line coal mill stacks. Instead, as is the case with the Portland Cement NESHAP, the results of the initial and subsequent performance tests for the alkali bypass and in-line coal mill stacks can be used to determine the combined emissions to demonstrate compliance with the relevant emissions limit. However, unlike the Portland Cement NESHAP, the performance test must be conducted on an annual basis (between 11 and 13 calendar months following the previous performance test) to keep the testing schedule for these stacks consistent with the CISWI rule's annual performance testing requirements. Section IV of this preamble discusses these issues in further detail and presents the revisions necessary to address each issue. Additionally, the EPA is clarifying certain applicability provisions relating to incinerator units and air curtain incinerator units subject to the 2000 CISWI NSPS and is correcting various typographical errors identified in the rule as published in the CFR. Section V of this preamble discusses these issues in further detail. The EPA is also finalizing the proposed amendments to the final rule by removing the affirmative defense provision for the reasons set forth in the proposed rule. See 80 FR 3018, 3025 (January 21, 2015). C. Other Actions We Are Taking Section 307(d)(7)(B) of the CAA states that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time 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 the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed. If the Administrator refuses to convene such a proceeding, such person may seek review of such refusal in the United States court of appeals for the appropriate circuit (as provided in subsection (b)).” As to the first procedural criterion for reconsideration, a petitioner must show why the issue could not have been presented during the comment period, either because it was impracticable to raise the issue during that time or because the grounds for the issue arose after the period for public comment (but within 60 days of publication of the final action). The EPA is denying the petitions for reconsideration on a number of issues because this criterion has not been met. In many cases, the petitions reiterate comments made on the proposed December 2011 rule during the public comment period for that rule. On those issues, the EPA responded to those comments in the final rule and made appropriate revisions to the proposed rule after consideration of public comments received. It is well established that an agency may refine its proposed approach without providing an additional opportunity for public comment. See Community Nutrition Institute v. Block, 749 F.2d at 58 and International Fabricare Institute v. EPA, 972 F.2d 384, 399 (D.C. Cir. 1992) (notice and comment is not intended to result in “interminable back-and-forth[,]” nor is an agency required to provide additional opportunity to comment on its response to comments) and Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983) (“notice requirement should not force an agency endlessly to repropose a rule because of minor changes”). In the EPA's view, an objection is of central relevance to the outcome of the rule only if it provides substantial support for the argument that the promulgated regulation should be revised. See Union Oil v. EPA, 821 F.2d 768, 683 (D.C. Cir. 1987) (court declined to remand rule because petitioners failed to show substantial likelihood that final rule would have been changed based on information in petition). See also the EPA's Denial of the Petitions to Reconsider the Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202 of the Clean Air Act, 75 FR at 49556, 49561 (August 13, 2010). See also 75 FR at 49556, 49560-49563 (August 13, 2010) and 76 FR at 4780, 4786-4788 (January 26, 2011) for additional discussion of the standard for reconsideration under CAA section 307(d)(7)(B). This action includes our final decision to deny the requests for reconsideration with respect to all issues raised in the petitions for reconsideration of the final 2013 CISWI rule for which we did not grant reconsideration. These denied requests for reconsideration are discussed in detail in the “Reconsideration issues on the 2013 final rule” memorandum found in the docket to this rulemaking. III. Summary of Significant Changes Since Proposal The EPA did not propose revisions to the definition of “CEMS data during startup and shutdown,” but requested comment and suggestions for provisions in this definition that would address the transitional operation period at startup. Based on our review of comments received and suggestions on provisions, we are finalizing revised subcategory-specific definitions for “CEMS data during startup and shutdown” that are operationally representative for the subcategory of unit, and more closely resemble the non-waste burning regulatory definitions of these periods of operation. This issue, and the rationale for doing so, are discussed in greater detail in section IV.A. of this preamble. Similarly, the EPA did not propose PM emission limits for waste-burning kilns based on test average data instead of test run data, but requested comment on the appropriateness of such an approach for this set of data. Upon consideration of comments, the EPA has determined to adopt the emission limits based on test average data for PM for the waste-burning kiln subcategory, and we have discussed our rationale for this in section IV.B. of this preamble. The EPA did not propose but requested comment and additional data concerning the need for a FVF for coal-fired ERUs. Potential emission limits based on periods of non-waste combustion and, if applicable, a FVF for coal ERUs were discussed in the proposal for coal-burning ERUs for Cd, HCl, Hg, Pb, PM, and NO X . Based on comments and additional analysis, the EPA is adopting these emission limits and also incorporating a FVF into the floor calculations for the SO 2 emission limit. The EPA did not discuss a FVF for SO 2 at proposal because the sulfur data the EPA had intended to use to develop the FVF appeared to have only one data point that could be paired with SO 2 emissions test data. It was brought to the EPA's attention during the comment period, however, that there were in fact two data points in the sulfur data set that could be paired with emissions test data. It was not initially clear that the coal samples dated 4-9 days prior to the emissions test were paired samples. However, during the comment period, a commenter informed the EPA these data were paired and the different dates were due to the lag time between sampling and actual combustion. This clarification enabled the EPA to determine that sufficient paired data exist for the calculation of a FVF for SO 2 , which resulted in a revised SO 2 emission limit of 850 ppmvd for new and existing coal ERUs. Consistent with the January 21, 2015 proposal, the EPA is adopting this revised emission limit to account for the fuel variability for this subcategory of CISWI units. Section IV.C of this preamble discusses this issue in further detail and responds to comments on the issue. Additionally, the HCl CEMS requirements for waste-burning kilns not equipped with acid gas wet or dry scrubbers have been revised in response to comments and to be more consistent with more recently promulgated monitoring provisions included in the Portland Cement NESHAP rule. These revised provisions allow sources to use CEMS installed and operated according to either Performance Specification 15 or Performance Specification 18 to continuously monitor HCl emissions. The revised provisions also provide additional clarification and detail to sources on the procedures to use for calibrating and verifying the performance of the HCl CEMS. IV. Summary of Significant Comments and Responses This section of the preamble summarizes the major comments received regarding the reconsidered issues and the EPA's responses in support of this final rule. For other comments not discussed here, refer to the “Summary of Public Comments and Responses for Commercial and Industrial Solid Waste Incineration Units: 2015 Reconsideration and Final Amendments” in the docket. A. Definition of “CEMS Data During Startup and Shutdown Periods” Background: In the January 21, 2015, proposal, the EPA requested comments on the definition of “CEMS data during startup and shutdown” that was in the February 2013 final rule. As background, the 2011 CISWI final rule contained CEMS monitoring requirements for carbon monoxide (CO) from new sources, including a provision that mandated a 7 percent oxygen correction. After the 2011 CISWI final rule was published, petitioners indicated that correcting CO concentration measurements to 7 percent oxygen is problematic during startup and shutdown periods when the flue gas oxygen content approaches the oxygen content of ambient air, especially with regard to the ERU subcategory. Oxygen contents are often maintained relatively close to ambient air during combustion unit startup and shutdown in order to safely operate the unit, but, as a result, the corrected CO values during these periods are artificially inflated due to the oxygen correction calculation. Petitioners presented data that demonstrated how these inflated data points drive the 30-day rolling average values beyond the emission limit. To resolve this issue, the EPA determined that the 7 percent oxygen correction would not be required for CEMS data collected during periods of startup and shutdown, referred to and defined as “CEMS data during startup and shutdown.” Based on data submitted for coal-burning ERUs, a new definition of “CEMS data during startup and shutdown” was proposed in the December 2011 reconsideration proposal that referred to the data collected during the first 4 hours of operation of an energy recovery unit starting up from a cold start and the hour of operation following the cessation of waste material being fed to the unit during shutdown. The EPA received comments on the proposed definition expressing concern that the time limits included in the definition may not accurately represent all CISWI unit types. Further, commenters argued that the same logic should apply for all CEMS-measured emission limits, not just CO. They explained that, even though CEMS is a compliance alternative rather than a requirement for most CISWI standards, other air regulations and permit requirements may require the units to continue to monitor emissions using CEMS data. Therefore, in the February 2013 CISWI final rule, the definition was revised to include all pollutants measured with a CEMS, expanded to include a separate definition for waste-burning kilns, and revised to remove the 4-hour and 1-hour time limits in the definition. Within that definition, the EPA defined the end of the startup period and the beginning of the shutdown period as the introduction and cessation of waste fed to the unit, respectively. Information available for the best performing units described their typical operation and supported defining the startup and shutdown periods based on the introduction and cessation of waste being fed to the units. Furthermore, for the incinerator, small remote incinerator, and the ERU subcategories, the February 2013 action specified an upper limit of 48 hours for startup periods and 24 hours for shutdown periods of CEMS data, consistent with information provided by commenters. After the February 2013 CISWI final rule was promulgated, the EPA received petitions stating that stakeholders did not have the opportunity to comment on the final definition, especially the clause that defines the beginning and ending of these periods as the introduction and cessation, respectively, of waste material being fed to the combustor. Petitioners argued that, with the inclusion of the provision ending startup when waste is added to the unit, the end of startup will occur too early because units that combust waste often introduce waste before steady state operations to transition from startup fuel to waste and other primary fuel combustion. For this reason, the petitioners argued that the EPA should extend the startup period duration to include the period of time when sources are transitioning to waste combustion from the startup fuel. On January 21, 2015, the EPA requested comment on whether the definition should be revised to extend the startup period to include this transitional period of combustor operation. In addition, the EPA requested that commenters suggest provisions that would ensure adequate application of the CEMS data during startup and shutdown definition, such as maximum allowable time limits after introduction of waste, if the agency were to allow solid waste combustion during startup. Comment: Several commenters supported, to a degree, the EPA's change in the 2013 final rule from the proposed 4-hour and 1-hour time limits on the definitions of CEMS data during startup and shutdown to the more subcategory-specific definitions found in the 2013 final rule, but suggested additional revisions to make the definition more accurately reflect these periods for certain types of units. Commenters noted technical reasons during startup that cause corrected emissions concentrations to possibly show emissions in excess of those occurring during normal, steady-state operation due to the 7 percent oxygen correction. These reasons included: (1) Stack oxygen levels approach ambient levels, inflating oxygen correction factors even though mass emission rates are low; (2) the combustor has not attained optimal temperature, turbulence, and residence time conditions, which are key factors for control of combustion-related emissions; and (3) air pollution control equipment has not achieved necessary minimum temperature and/or other operating conditions necessary for effective steady-state performance on which the standards are based. The commenters also asserted that, while elevated emissions do occur during startups, the magnitude and period of elevated emissions will be actively minimized as required by the “general duty” provisions to minimize emissions at all times including startups and shutdowns. Additionally, the commenters argued that, for ERUs, at least, unit operators are economically motivated to minimize the duration of any startups, because the shorter the startup, the quicker a unit can be brought online to sell steam and/or connect to the grid and sell power. Also with respect to ERUs, commenters stated that units firing solid material on grates or in fluidized beds require more time for the material to fully ignite and achieve the optimal combustion conditions than gaseous or liquid-fired units do. The commenters stated that elevated corrected emission concentrations following initial solid material firing is an inherent characteristic of ERU subcategories such as stoker and fluidized bed biomass ERUs. In conclusion, the commenters recommended that, given the virtually identical technologies used for both boilers and CISWI ERUs, the EPA should incorporate language in the CEMS data definition similar to that which it proposed in the major source and area source Boiler NESHAP rules. One commenter provided mark-up language reflecting major source boiler language in the “CEMS data for startup and shutdown” definition that would apply specifically to CISWI ERUs, and a separate definition that could apply to incinerators and small remote incinerators. For ERUs, the commenter suggested the following definition, which eliminates the “cold start” and “until waste is fed to the unit” language, and adds the concept of tying the CEMS data during startup period to the time that useful thermal energy is generated. The commenter suggested that CEMS data during startup and shutdown should be defined as follows: For energy recovery units: CEMS data collected during the first hours of operation of a CISWI unit startup including the hours of operation firing non-waste fuel and the hours following introduction of waste to the unit until 4 hours after when the ERU makes useful thermal energy (such as steam or heat) for heating, cooling, and process purposes, or generates electricity, whichever is earlier, and the hours of operation following the cessation of waste material being fed to the CISWI unit during a unit shutdown. For each startup event, the length of time that CEMS data may be claimed as being CEMS data during startup must be 48 operating hours or less. For each shutdown event, the length of time that CEMS data may be claimed as being CEMS data during shutdown must be 24 operating hours or less. As an alternative to the above definition, the commenter suggested the definition could include the period of time up to 6 hours following introduction of waste to the unit instead of tying the definition to “useful thermal energy.” The commenter noted that this might allow the definition to be applicable to incinerators and small remote incinerators. Another commenter suggested that the first 48 hours of startup and the last 24 hours of shutdown for incinerators, small remote incinerators, and energy recovery units is adequate in most cases. This commenter stated that any time the feed to a combustion chamber is modified ( e.g., new material added, same material with higher or lower feed rates), the combustion process is disturbed. The commenter further stated that the length of time it takes for the combustion process to re-stabilize depends upon a number of factors (size of the combustion unit, amount of waste introduced, the Btu content of the waste introduced, the combustibility of that waste, the operating conditions, etc.). Therefore, the commenter recommended that the CEMS data during startup and shutdown are best decided on a site-specific basis and urged the EPA to allow this as an option. With respect to waste-burning kilns, one commenter argued that it is highly beneficial to have the definitions of startup and shutdown for kilns in the CISWI rule match the definitions in the Portland Cement NESHAP. Therefore, the commenter supported having a separate definition of CEMS data during startup and shutdown that applied to waste-burning kilns, and that this definition should also reflect provisions found in the Portland Cement NESHAP. The commenter provided the following language as a suggestion on what would be appropriate, and also suggested a corresponding footnote to clarify that the 7 percent oxygen adjustment need not be applied during periods of startup and shutdown: “ CEMS data during startup and shutdown means the following: (2) For waste-burning kilns: CEMS data collected during the periods of kiln operation that do not include normal operations. Startup means the time from when a shutdown kiln first begins firing fuel until it begins producing clinker. Startup begins when a shutdown kiln turns on the induced draft fan and begins firing fuel in the main burner. Startup ends when feed is being continuously introduced into the kiln for at least 120 minutes or when the feed rate exceeds 60 percent of the kiln design limitation rate, whichever occurs first. Shutdown means the cessation of kiln operation. Shutdown begins when feed to the kiln is halted and ends when continuous kiln rotation ceases.” Response: Based on these comments and the EPA's goal to provide, where appropriate, consistent regulatory provisions, the EPA has determined to revise the definition of “CEMS data during startup and shutdown” to be subcategory-specific. For ERUs and waste-burning kilns, for example, the definition will reflect definitions similar to those of the non-waste counterpart NESHAP to CISWI for the type of source. Therefore, the final definition for ERUs will reflect provisions found in the major source Boiler NESHAP, and the final definition for waste-burning kilns will reflect provisions similar to those in the Portland Cement NESHAP. For incinerators and small remote incinerators, the proposed definition ( i.e., from a cold start and up to 48 hours for startup and 24 hours or less for shutdown) will still apply. These subcategory-specific definitions provide a consistent basis for ERUs and kilns that may change applicability periodically so that owners and operators will have a consistent requirement for demonstrating compliance regardless of the mode (waste or non-waste) the unit is being operated in. Furthermore, for incinerators and small remote incinerators, industry commenters are confident that the full range of these sources will be able to maintain compliance with these time allowances that were proposed. We note that certain commenters indicate that reasons for changing the definitions include that the units may have greater emissions during startup and shutdown and also that pollution control equipment may not be fully operational during startup. The EPA is not revising the definitions to allow sources to violate the standard; instead the change is designed to better reflect the actual operating conditions during startup and shutdown. The oxygen correction is thus designed to allow sources to use actual stack oxygen levels during these periods instead of numbers corrected to 7 percent oxygen. 1 If sources believe that, even with the stack oxygen correction, emissions will exceed the levels of the standard because of incomplete combustion or because air pollution controls are not fully operational, they must take steps ( e.g., burn clean startup fuel for longer periods) to ensure compliance. 1 Stack oxygen data must still be measured during these periods, but since a correction to stack oxygen essentially means multiplying the measured concentration by 1, the concentration value measured at stack oxygen is used to calculate average concentrations. Finally, the subcategory-specific definitions of “CEMS data during startup and shutdown” in this final rule more clearly specify the beginning and end of startup and shutdown periods for each subcategory of CISWI unit. However, we realize in doing so that the previous, separate definitions of “startup period” and “shutdown” that have been held over from the 2000 CISWI rule may now cause confusion for waste-burning kilns and ERUs especially. Because the 2000 CISWI rule applied to incinerator units (and not ERUs and waste-burning kilns), we recognize the need to clarify that the “startup period” and “shutdown” definitions apply only to incinerators and small, remote incinerators. For this reason, the EPA is revising the definitions of “startup period” and “shutdown” to clarify that they are intended to apply only to incinerators and small, remote incinerators. Comment: One commenter argued that allowing sources to comply with emissions standards based on uncorrected emissions measurements would be unlawful and arbitrary. The commenter explained that the EPA does not claim that all units will have oxygen levels close to the ambient air, that any units' oxygen levels will actually be at the level of the ambient air during these periods, or that any units' oxygen levels will be at that high level consistently. The commenter suggested that the EPA should instead consider several other approaches. First, the commenter suggested that the EPA could require sources to show compliance during these periods using another method, such as stack tests. The commenter stated that the EPA recognized that CEMS are a compliance alternative rather than a requirement for most CISWI standards. The commenter also argued that the EPA stated it is maintaining CEMS as a compliance alternative during these periods because “other air regulations and permit requirements may require” CEMS data. However, the commenter argued that the EPA did not state what these other requirements are, or why the same CEMS problems it has identified here do not apply to them. The commenter further argued that even if other regulatory requirements do require sources to maintain CEMS data, that does not compel the EPA to accept their data as demonstrative of compliance with the requirements of the performance standards and emissions guidelines for air pollution from CISWI. The commenter also suggested that, if the CEMS compliance alternative were retained, the EPA could require sources to correct their measurements to the level of oxygen actually present, as measured by an oxygen analyzer or another method. Finally, the commenter offered as an alternative that the EPA could develop mass-based limits instead of concentration-based limits, which do not require oxygen correction. The commenter concluded that, because the EPA has not even considered these alternatives, the proposal to allow sources to show compliance based on measurements it does not dispute will be inaccurate is arbitrary as well as unlawful. Response: As we noted in the proposed rule, the rules generally require stack emissions testing. These tests can span several hours. The CISWI rule emission limits were based on data obtained during normal operations, which is also what the rule requires for conducting performance testing ( see 40 CFR 60.2125(a) and 40 CFR 60.2690(a)). As has been noted in other comments and in the costing analyses presented in support of the CISWI rulemaking, the emission testing program is not trivial in cost and effort. Therefore, adding a requirement for additional stack testing during startup and shutdown periods, which seems to be what this commenter suggests, would further add to the compliance cost of the rule for obtaining data for a small portion of the source's operations. The EPA does not believe this additional monitoring is required to assure compliance with the standards. As noted before and by some commenters, monitoring by CEMS is an alternative, and may be useful for sources that are required by permit or for Acid Rain program requirements (40 CFR part 75) to continually monitor emissions of certain pollutants, primarily NO X and SO 2 . The EPA realized that the interaction of newly applicable CISWI standards to ERUs and waste-burning kilns may differ from existing requirements for these sources developed under the Acid Rain program, permit requirements enacted for state or local conditions, or even under various consent decrees. The EPA also recognizes that different programs measure and evaluate emissions for various purposes and in differing formats ( e.g., lb/MMBtu), and therefore disagrees with the commenter's assertions that if these other programs do not need these provisions, then neither should CISWI. In fact, the EPA maintains that the reasons other programs may not require separate definitions is because they already have separate startup and shutdown requirements in place for the program. For example, appendix F of 40 CFR part 75 allows sources to calculate a NO X emission rate using a “diluent cap” during periods of operation (startup and shutdown) where CO 2 and O 2 are near ambient air levels. 2 As many commenters have noted, these “CEMS data during startup and shutdown” revisions being finalized are necessary to make attainable the CISWI requirement for the standards to “apply at all times” for sources that are otherwise required to measure emissions using CEMS or that opt to measure emissions continually. Further, the EPA does acknowledge that there are instances, such as this one, where consistent regulatory provisions will make compliance demonstrations easier for affected sources and implementing agencies while still maintaining the integrity and goals of the regulation. That is the case here, where multiple programs may require or allow CEMS data for continuous compliance demonstrations. 2 See the “2013 revision of the Part 75 Emissions Policy Manual” accessed August 18, 2015 at http://www.epa.gov/airmarkets/documents/monitoring/Final-Part75-Policy-Manual-2013-revised-08-27-13.pdf . The commenter also suggested that either using CEMS data corrected to stack oxygen or developing a mass-based standard should be investigated. In essence, though, the revised provisions allow CEMS data to be “corrected to” stack oxygen levels (that is, the numerator and denominator of the oxygen correction are equal, so the correction factor equals 1). Sources must still measure and record concentrations and stack oxygen levels during these periods, and must keep records of periods of CEMS data that are being claimed as periods of startup and shutdown ( See 40 CFR 60.2175(p) and 40 CFR 60.2740(o)). As many commenters have already noted, the oxygen levels fluctuate widely during startup and shutdown periods, so any basis other than using stack oxygen levels for correction during this period would run into the same type of calculation issue that we are attempting to remedy. Similarly, a mass-based standard for CISWI units would be a significant departure from the format of the existing standards, further complicating compliance demonstrations by the facility and assessment by the implementing agency. In order to develop a calculation-based approach, the EPA would need to have information on the specific materials being fed and resultant emissions for each of the best performing units during startup and shutdown periods. These are data that we do not have and the commenter did not provide any recommendations on an approach that the EPA could consider absent these data. In addition, the EPA did not reopen the specific standards or form of the standards in the proposed rule, and we decline to establish mass-based emission standards for that reason as well. We are not revising the standards, but are revising only the monitoring provisions of the standards to ensure that CEMS data collected are representative of actual emissions during startup and shutdown periods and are not being artificially inflated or influenced due to the 7 percent oxygen correction. In the revisions, these intervals are clearly defined and specific to the unit type to ensure this period is reasonable to ensure safe operation while minimizing emissions. B. PM Limit for the Waste-Burning Kiln Subcategory Background: In the January 21, 2015, proposal, the EPA solicited comments on the data set used to determine PM limits for new and existing waste-burning kilns in the February 2013 final rule. The March 2011 CISWI final rule promulgated PM emissions limits of 6.2 milligrams per dry standard cubic meter (mg/dscm) for existing units, and 2.5 mg/dscm for new units, both corrected to 7 percent oxygen. In an action parallel to the March 21, 2011, final CISWI rule, the EPA promulgated a final rule that identifies the standards and procedures for identifying whether non-hazardous secondary materials (NHSM) are or are not solid waste when used as fuels or ingredients in combustion units. The EPA defines the NHSM that are solid waste under RCRA in the final “Identification of Non-Hazardous Secondary Materials That Are Solid Waste” rulemaking. The RCRA definition of solid waste is integral in defining the CISWI source category. Commercial and industrial units that combust solid waste are subject to standards issued pursuant to CAA section 129, rather than to standards issued pursuant to CAA section 112 that would otherwise be applicable to such units ( e.g., boilers, process heaters and cement kilns). Cement kilns combusting solid waste are waste-burning kilns subject to CISWI, not the otherwise applicable Portland Cement NESHAP. Following promulgation of the 2011 CISWI rule, the EPA again analyzed the materials being combusted in the entire national inventory of Portland cement kilns in light of the revisions to the NHSM rule, and made revisions to the CISWI waste-burning kiln inventory. When kilns were added to the inventory and their emissions data considered, the resulting NSPS and EG PM emission limits proposed in the December 2011 reconsideration were less stringent than those established in the March 2011 CISWI final rule. Following the December 2011 reconsideration proposal, the EPA learned that one of the kilns in the CISWI inventory was no longer burning waste, and another kiln that was not thought to be burning waste materials was doing so. The CISWI waste-burning kiln inventory was revised during the period between proposal and final to reflect these changes, and the database updated to include emissions data for the newly identified unit, as well as some additional test reports obtained for units within the inventory. The EPA calculated the maximum achievable control technology (MACT) floors after making the appropriate revisions to the inventory and the new NSPS and EG PM emission limits were more stringent than those proposed in the December 2011 reconsideration proposal. Table 1 of this preamble tracks the progression of the waste-burning kiln PM limits from the March 2011 final rule through the February 2013 final rule. Throughout the CISWI rulemaking process from March 2011 through February 2013, the EPA used the same calculation methodology ( i.e., the upper prediction limit calculated from a population of individual test runs) to establish the emission limits for waste-burning kilns. However, the data set used in these calculations has changed and grown over this period of time as the agency has revised the CISWI inventory based on information submitted to the agency by the regulated community and new data are submitted. As a result, a petitioner has suggested that the current PM emission data set for waste-burning kilns is robust enough to warrant using 3-run emission test averages as the data population rather than the individual test runs. According to the commenter, using this approach to calculate emission limits would result in PM emission limits that are different than those of the February 2013 CISWI final rule. In the context of MACT analyses, as the EPA noted in the January 21, 2015 proposal, emission test averages or individual test run data can be used to determine emissions variability of best performers. We also noted that we typically use individual test runs, but for categories with data from 15 3 or more sources, which would provide at least 45 test runs, we may choose to use test averages. In these larger data sets, the use of test averages are likely to be sufficiently representative of long term performance and variability without the need for use of the individual test runs. 3 The 15 test average number discussed in the January 21, 2015 proposal was not a “bright line” value used to establish a possible threshold for when test runs versus test averages may be selected. Rather, this number was an illustrative number that was being discussed as an example in internal EPA discussions at the time the proposal was being written. In the January 21, 2015 proposal, the EPA solicited comment on the data set used in the February 2013 final rule, as well as whether this data set warrants a different calculation approach due to its size or other factors. See the memoranda titled “Potential Emission Limits Calculation Analyses for Waste-burning Kilns and Coal ERUs,” “Approach for Applying the Upper Prediction Limit to Limited Data Sets,” and “Use of the Upper Prediction Limit for Calculating MACT Floors” in the CISWI docket for more details. Comment: Two commenters supported the use of emission test averages to determine emission standards. One commenter strongly believed that use of test averages is the only valid way to conduct calculations of upper predictive limit (UPL) or other variability analyses because only test averages, and not individual test runs, are statistically independent from one another, as the UPL calculation requires. Both commenters argued that it is crucial that the UPL calculation reflect the actual variability of compliance test results for the best performing kilns that set the floors, and stated that this goal is best accomplished by using stack test results (which are the average of three consecutive test runs) in the UPL calculation, rather than using test runs as individual data points. One commenter noted that the data set for PM emissions from waste-burning kilns is among the largest for any source category or pollutant in the CISWI rule, consisting of 24 stack tests (equivalent to 72 individual test runs) for the pool of three best performers. One commenter described control measures that Portland Cement NESHAP and waste-burning kilns will need to take to meet the 13.5 mg/dscm limit for existing waste-burning kilns that was discussed, noting that baghouse equipment will still need to be improved at many kilns to meet this limit. The commenter also pointed out that the performance of a baghouse on a kiln is comparable whether it is a Portland Cement NESHAP kiln or a CISWI kiln. The commenter went on to use this discussion and data from the Portland Cement NESHAP analyses to support the 13.5 mg/dscm limit (which equates to 0.075 lb/ton clinker on a production basis, as compared to the existing kiln PM limit of 0.07 lb/ton clinker in the Portland Cement NESHAP) and to demonstrate that the current beyond-the-floor analysis done for the 2013 CISWI final rule is still applicable despite the new PM emission limit. Response: We agree that the data set for PM for existing waste-burning kilns is sufficiently large to support using stack test averages, as some commenters have supported. For new sources, the EPA realizes that there is a smaller number of data points available when test averages are considered since only the data from the best-performing source are included in the calculation. 4 However, as the EPA has intended within each of the CISWI subcategories, a consistent approach to the emission limit calculation is used for existing and new sources within a subcategory ( e.g., upper limit for small remote, UPL for waste-burning kilns). That is, in the case of PM for waste-burning kilns, the UPL using test averages is being used to calculate both existing and new source emission limits. 4 Although this data set is smaller than that for existing sources, the EPA does not consider the new source data set to be a small or limited data set. We also note that, for this particular data set, there are distinct advantages to using this approach. One advantage is that there is a significant amount of test data for the best-performing source. These runs reflect various fuel and waste material firing conditions for the best-performing unit. By splitting the data for the best-performing source into sets of three according to the operational condition (waste or non-waste), each of the resulting averages is more representative of the fuel, waste, and operational variability demonstrated by the other 3-run test averages found in the data set for this source and for the other existing source best performers. In other words, the time periods—and variability in process inputs and operations these periods represent—are approximately equal for each data point in the average data set for existing and new sources. This approach also has the added benefit of a slightly larger time period of operations being represented by the data, since there is one additional average that can be included in the data pool ( i.e., no test run data are available, but the average is). We also reviewed the information submitted by the commenters on the costs and emission improvement requirements existing kilns will need to undertake to meet the revised emission limits, as well as our own assessment of control improvements needed, and agree with the assessment that beyond-the-floor emission standards for waste-burning kiln PM limits are unwarranted. In our analysis, the same kilns that would need improvements for the 2013 PM limits still need to add these improvements to meet the 13.5 mg/dscm standards (as well as the CISWI limits for Cd and Pb, which are not being revised but are also controlled by PM control devices). The technology most likely being used to meet the standards would be fabric filters (baghouses), which is a physical control technology. Information supplied by the industry indicate that many cement kilns will require highly efficient fabric filters to meet the 13.5 mg/dscm standards. Fabric filters do not have a variable component, such as sorbent injection rates, that can be varied easily once the system is designed and the filter media specified. Therefore, unlike other control technologies, the PM removal efficiency of fabric filters does not depend on other factors in the process and control device's performance will essentially be the same regardless of other process inputs. Therefore, the EPA is finalizing the 13.5 mg/dscm and 4.9 mg/dscm emission limits discussed at proposal for existing and new waste-burning kilns, respectively, based on the analysis of emission test average data. The calculated PM emission limits using the test averages are presented in Table 1 of this preamble for comparison. The calculations used to support the 2015 emission limit values, analyses of impacts and discussion of beyond-the-floor considerations are available in the “Revised Emission Limits and Impacts Analyses for Waste-burning Kilns and Coal ERUs” memorandum in the docket to this rulemaking. Table 1—Waste-Burning Kiln PM Emission Limits From March 2011 Final Rule Through 2015 Final Reconsideration Source type (units) March 2011 final rule December 2011 proposed rule February 2013 final rule 2015 Final rule test average-based limits 2 New Sources (mg/dscm) 1 2.5 8.9 2.2 4.9 Existing Sources (mg/dscm) 1 6.2 9.2 4.6 13.5 1 Corrected to 7 percent oxygen (O 2 ). 2 These final limits are the same as those discussed in the January 21, 2015 proposal. Comment: One commenter disagreed with the proposed approach of using stack test average data, arguing that because the EPA's standards are already set at the floor, and the floor is the minimum stringency permitted by the CAA, the EPA's proposed change is unlawful at Chevron step one. 5 The commenter further argued that the EPA does not give any statutory reasons for its proposed change, and therefore its proposal is unreasonable at Chevron step two. NRDC v. EPA, No. 12-1321, slip op. at 23 (D.C. Cir. Dec. 23, 2014) (“EPA must `ground its reasons for action or inaction in the statute.' ”) (quoting Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2441 (2014)). The commenter contended that the only reason the EPA gives in support of this change is that the data set for kilns is relatively large and so switching to test averages instead of individual test runs “is expected to make very little difference.” The commenter concluded that the EPA's proposed change illustrates that the UPL approach is unlawful and arbitrary because it does not yield reasonable estimates of the “average emission limitation achieved” by the best performing units. An industry commenter asserted that the stack test averages yield reasonable estimates of the average emission limitation achieved by the best performing units, and referred to their original comment submittal to the proposed rule as support. The commenter then repeated that the EPA should use stack test averages in the UPL calculation whenever there are sufficient data to support their use. The commenter concluded that the use of test runs can be justified only when the limited availability of emissions data demands the use of test runs; this is not the case in the CISWI PM limit for kilns. 5 Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984). Response: As discussed earlier, the EPA incorporated considerable new data and moved kilns from the NESHAP to CISWI between the proposed and final CISWI reconsideration concluded in 2013. The inclusion of additional sources and data lead to more stringent standards and the public was not provided an opportunity to comment on those limits and the manner of their calclulation. For this reason, parties petitioned EPA to reconsider those limits consistent with CAA section 307(d)(7)(B), and the EPA granted reconsideration consistent with the statute to provide the public an opportunity to comment. The EPA maintains that its actions in response to the changed circumstances ( i.e., new data and sources) and the petitions for reconsideration are consistent with the statute and, for this reason, we reject the commenter's argument that EPA has somehow violated the standard setting provisions of section 112. Further, we have determined that the data set for existing waste-burning kilns for PM is sufficient to address longer-term performance and variability among the best-performing sources and justifies the use of test average data. While the data set for new waste-burning kilns is smaller in count than that of the existing sources, it is not considered a small data set, and the EPA has concerns about not treating variability consistently between existing and new source emission limits within the same subcategory. With respect to the commenter's arguments about the UPL calculation methodology, the EPA did not open the UPL calculation methodology for reconsideration, so we are not responding to the commenter's arguments on this issue. C. FVF for Coal-Burning Energy Recovery Units Background: In the January 21, 2015, proposal, the EPA requested comments and supporting data regarding the need to establish an FVF for the ERU solids (coal) subcategory. In particular, the EPA requested comments on using stack test data from coal-only periods of operation in our emission limit calculations, and whether the EPA should re-evaluate the NO X emission limit by using the additional CEMS data provided for the best-performing unit. The preamble to the 2013 final CISWI rule (78 FR 9112, February 7, 2013) explained the methodology used to establish the final emission limits, which relied almost exclusively on direct emissions measurements. A petitioner requested that EPA reconsider the decision not to incorporate fuel variability into the emission limit calculations for coal-fired ERUs based on new information. Table 2 of this preamble presents a comparison of the 2013 final rule emission limits for existing coal ERUs and the emission limits calculated using all data available ( i.e., waste and coal-only modes of operation), FVF calculation techniques, and the additional CEMS data provided by the petitioner. Table 2—Existing Coal ERU Emission Limits From February 2013 Final Rule and Based on FVF Plus Additional CEMS Data Pollutant (units) February 2013 final rule emission limit 1 Final emission limits using additional data and FVF 1 Cadmium (Cd) (mg/dscm) 0.0095 2 0.0017 Hydrogen Chloride (HCl) (ppmv) 13 3 58 Mercury (Hg) (mg/dscm) 0.016 2 0.013 Lead (Pb) (mg/dscm) 0.14 3 0.057 Particulate Matter (PM filterable) (mg/dscm) 160 2 130 Nitrogen Oxides (NO X ) (ppmv) 340 2 460 Sulfur Dioxide (SO 2 ) (ppmv) 650 850 1 All emission limits are expressed as concentrations corrected to 7 percent O 2 . 2 Unable to calculate FVF, final emission limit reflects use of additional data for coal-only mode of operation. 3 Based on maximum ratio in data set to calculate FVF for final emission limit. If average ratios were used instead, HCl emission limit would be 19 (parts per million by volume) ppmv and Pb would be 0.047 mg/dscm. Comment: Several commenters supported the revision of these emission limits, claiming that the EPA should account for all sources of emissions variability. Commenters argued that adjustments for fuel variability should be based on worst case conditions so that the floors represent the emission limitations that the best performers can achieve under the worst foreseeable circumstances. They maintained that emissions test data only reflect the pollutant content of a unit's inputs at the time of emissions testing, noting that fuel and solid waste composition vary over time. As an example, commenters referenced HCl data submitted for the top performer, noting that if the HCl limit for existing units remains at 13 ppmv (from the 2013 final CISWI rule), the best performing unit would fail to meet the limit consistently. The commenters further expressed their support for basing the FVF on the maximum ratio of non-paired fuel data with paired fuel data (yielding a limit of 58 ppmv) as opposed to the average ratio (yielding a limit of 19 ppmv), because the HCl data showed the average-based limit was also exceeded several times over an 8-year period. In order to make the HCl limit achievable in practice, the commenters concluded that the EPA must set the final HCl limit to 58 ppmv. One commenter pointed out that the consideration of fuel variability is of particular importance because a CISWI unit remains a CISWI unit until it ceases to burn waste for at least 6 months. The commenter explained that estimating emission levels achieved when a unit was burning waste and coal does not reflect the level achieved when combusting only coal. Commenters also called attention to the boiler and process heater standards, which account for fuel supply variability, and contended that the EPA should do the same for CIWSI because ERUs would be subject to the boiler standards if they did not combust waste in addition to fossil fuels. One commenter indicated that the EPA had not properly addressed fuel variability for the SO 2 emission limit. According to the commenter, previously submitted data showed that the 2013 final limit of 650 ppmvd would not be high enough to allow the top performer to comply every day under all operating conditions. In developing the potential limits presented in the proposed reconsideration, the EPA did not develop a FVF for SO 2 because only one fuel data point for sulfur was available to be paired with SO 2 emissions data. The commenter explained that even though only one date from the fuel data matched up with the week of SO 2 CEMS data, the lag time between the fuel sample date and actual combustion in the boiler is typically 4-9 days, so portions of both the August 14 and August 21, 2009, coal shipments would have been burned during the CEMS period from August 23 through August 30, 2009. Therefore, the commenter explained, sulfur data from these two shipments could be paired with the CEMS data, which would make it appropriate to develop a FVF for SO 2 , similar to what was done for HCl. Response: The EPA is finalizing the emission limits for Cd, HCl, Hg, Pb, PM, and NO X that incorporate a FVF and coal-only mode of operation data and were discussed in the January 21, 2015 proposal. See 80 FR at 3023. In addition, the EPA has determined that we have sufficient data to incorporate a FVF into the SO 2 limit in the same manner as the standards for the other section 129 pollutants above. At proposal, the agency explained our rationale for considering emission limits that incorporate a FVF for fuel-dependent pollutants ( i.e., HCl, Pb, Cd, Hg, and SO 2 ) [ See 80 FR at 3022] and presented the methodology [See Memo titled “Potential Emission Limits Calculations Analyses for Waste-burning Kilns and Coal ERUs, December 12, 2014] we would use to do so. We also presented the available data. In addition, for Cd, HCl, Hg, Pb, PM and NO X , the EPA identified the emission limits that incorporate a FVF and were derived from that data and using the proposed methodology. The proposal did not identify a specific SO 2 emission limit that incorporated a FVF because, as explained in the proposal, at that time, the EPA did not believe the data from the best performing units included the information necessary to calculate a FVF for SO 2 . See 80 FR at 3022; see also Memo titled “Potential Emission Limits Calculations Analyses for Waste-burning Kilns and Coal ERUs, December 12, 2014. The proposal, however, made clear that the rationale for deciding to incorporate a FVF into the emission limits for coal-fired ERUs applied to all fuel-dependent pollutants, including SO 2, and the agency provided the methodology for incorporated a FVF. The comments received demonstrated that the available SO 2 data from the best performing units—the data in the docket at the time of proposal—does in fact include the information required to establish a fuel variability factor. Specifically, the EPA confirms that the data set includes sufficient paired SO 2 data to evaluate the need for a FVF. Thus, all information necessary to address whether a FVF should be incorporated into the SO 2 standard, and to identify the specific SO 2 emission limit incorporating a FVF was available in the docket at the time of proposal. Thus, in this final rule, the EPA has re-evaluated the fuel sulfur data with paired SO 2 data and is incorporating a FVF in the floor calculations for SO 2 using the same methodology that was discussed in the proposal. The resulting SO 2 limit for existing and new coal ERUs is 850 ppmvd. Comment: One commenter did not support the incorporation of FVFs in determining emission limits, arguing that increasing the floors to account for variability would be unlawful and arbitrary because the UPL methodology used to develop the floors already accounts for emissions variability. According to the commenter, the floors should not be increased further because CAA section 129 directs that standards should be no less stringent than the average emissions achieved by the best performing units. In other words, the commenter explained, a standard must reflect a reasonable estimate of the actual performance of the best units. The commenter further noted that even if it were lawful to incorporate a FVF at all, the FVF should be based on the average ratio, as opposed to the maximum ratio, because the maximum ratio does not yield a reasonable estimate of the average emissions limitation achieved by the best performing sources, yielding floors less stringent than the statute permits. Response: The EPA disagrees with the argument that incorporating a FVF in these standards overaccounts for variability. Fuel data provided for the top performing units show that performance for coal-burning ERUs, based solely on the short-term stack test data available for these units, does not adequately reflect the sustained performance and different fuel inputs that are used by the best performing source upon which the standards were based. As stated in response to similar comments submitted on the Boiler NESHAP ( See EPA-HQ-OAR-2002-0058-3511, excerpt 15, page 111), and consistent with the DC Circuit Court ruling, the EPA is mindful that MACT floors need to reflect achieved performance of the best-performing units, that HAP (or pollutant, for CAA section 129 rules such as CISWI) content of process inputs (raw materials and fuels) should be accounted for in ascertaining the sources' performance as necessary, and that the EPA cannot consider costs in ascertaining the level of the MACT floor. See, e.g., Brick MACT, 479 F. 3d at 880-81, 882-83; NRDC v. EPA, 489 F. 3d 1364, 1376 (D.C. Cir. 2007) (“Plywood MACT”); see also Cement Kiln Recycling Coalition v. EPA, 255 F. 3d 855, 861-62 (D.C. Cir. 2001) (“achievability” requirement of CAA section 112 (d)(2) cannot override the requirement that floors be calculated on the basis of what best performers actually achieved). The EPA is also mindful of the need to account for sources' variability (both due to control device performance and variability in inputs) in assessing sources' performance when developing technology-based standards. See, e.g., Mossville Environmental Action Now v. EPA, 370 F. 3d 1232, 1242 (D.C. Cir. 2004); National Lime I, 627 F. 2d 416, 433-34 (D.C. Cir. 1980). In most cases, the UPL sufficiently accounts for both control device performance and input variability. However, in this case, a review of the data for the best-performing coal-burning ERUs indicated that short-term stack test data alone did not fully account for longer term emissions performance in this case. While fuels combusted within a short term 3-hour test would be expected to be fairly consistent in their contaminant levels, multi-year fuel input data for the best-performing unit show that Hg, Cl, Pb, and sulfur levels can vary significantly between the times the best performing unit is combusting a combination of waste and traditional fuel and the times it is combusting traditional fuels alone, and that there is variability in the pollutant content of the traditional fuel alone as well. In light of this, the EPA believes it is reasonable to incorporate a FVF for this subcategory of CISWI units to better reflect the performance of the best performing coal-burning ERUs. Regarding the commenter's assertions that the average ratio should be used instead of the maximum ratio in calculating the FVF, we note that, unlike situations present in the Boiler NESHAP, the best-performing units in the coal ERU subcategory (all located at the same facility) are not burning a variety of fuels. These CISWI ERU units burn coal, and periodically an industrial waste generated at the facility. Therefore, there is one fuel and one waste that is input that will influence emissions. This is not the case for the boiler best-performers in the Boiler NESHAP solid fuel subcategory, as these consisted of a “mix of biomass, coal and other solid fossil fuel” data ( See EPA-HQ-OAR-2002-0058-3836, August 2012). In the boiler rulemaking, the EPA was concerned that this heterogeneous mix of best performer fuel inputs and the use of the maximum ratio would overestimate fuel variability. However, for the CISWI coal ERUs, we are dealing with a single fuel type (coal), and the same concern does not apply. Since CISWI applicability extends for a period beyond the waste-combustion periods, variability in this one fuel influences emissions for a significant portion of the best-performers' operations. Therefore, we have determined that the maximum ratio is appropriate in this case to fully account for the best-performer's variability in fuel inputs. The FVF accounts for fuel variability between sources using long-term fuel measurement data that represent inherent natural variations in fuel usage at the best performing unit over time. The FVF is used in conjunction with the 99 percent UPL to characterize long-term variability due to technological controls and fuel characteristics. The results are MACT floors that reasonably estimate the performance over time of the best performing sources (there are three identical units at one facility that are best performers for this subcategory of unit, with only one additional unit that may be in this subcategory). These calculations are described in more detail in the “Revised Emission Limits and Impacts Analyses for Waste-burning Kilns and Coal ERUs” memorandum found in the docket to this rulemaking. For these reasons, the EPA is adopting the revised emission limits for coal ERUs discussed in the January 21, 2015, proposal, and the agency is also incorporating a FVF into the SO 2 limit as discussed above. D. Definition of “Kiln” Background: In the January 21, 2015, notice, the EPA requested comment on its proposal to revise the definition of “kiln” and proposal to add definitions of “in-line raw mill” and “in-line coal mill” to further clarify the boundaries of the waste-burning kiln. Because the in-line raw mill and in-line coal mill are part of the kiln, the kiln emission limits also apply to the exhaust of the in-line raw mill and in-line coal mill. For more background on this issue, the EPA discussed at length in the preamble to the proposed Portland Cement NESHAP a potential regulatory regime to cover situations where a portion of the kiln exhaust is ducted to the coal mill. See 77 FR 42383-85; see also the regulatory text at 77 FR 42398, 42402-06, 42408-09. For waste-burning kilns, the EPA proposed language in the definition of “kiln” to make it consistent with that of the Portland Cement NESHAP. The terms “in-line raw mill” and “in-line coal mill” were proposed to be included in the definition, and, therefore, were proposed to be added to the definitions within the CISWI rule. In addition to the proposed definitional amendments in the January 21, 2015, notice, the EPA proposed a compliance demonstration and ongoing monitoring method for waste-burning kilns that combine emission streams from the in-line raw mill and in-line coal mill and exhaust through multiple stacks. The EPA is finalizing the proposed approach with some minor revisions to address comments as discussed below. The final rule will allow sources to measure pollutant concentrations and flows from each of the stacks ( i.e., kiln, alkali bypass, and in-line coal mill, as applicable) and calculate a flow-weighted average kiln stack concentration that must be met in order to be in compliance with the CISWI waste-burning kiln emission limits. These provisions are modeled upon similar provisions and equations found in the Portland Cement NESHAP, and should streamline compliance demonstrations for waste-burning kilns that combine streams prior to discharge to the atmosphere through one or more stacks. The proposed calculation method and measurement location options are found in 40 CFR 60.2145 and 40 CFR 60.2710. The EPA requested comment on the definitional and calculation method changes for demonstrating compliance for waste-burning kilns that combine streams prior to discharge to the atmosphere through one or more stacks. Comment: Although there were no specific comments on the revised definition of “kiln” or on the addition of the definitions of “in-line raw mill” and “in-line coal mill,” one commenter expressed the need to change monitoring and compliance requirements for alkali bypass and/or in-line coal mill to be consistent with the Portland Cement NESHAP. The commenter contended the use of CEMS and the PM CPMS for either an alkali bypass or an in-line coal mill is unnecessary, as they represent a relatively minor part of the overall kiln emissions and their emissions will vary directionally with the main kiln stack concentrations. Therefore, the commenter suggested that monitoring the main kiln stack alone can provide an indication of overall emissions and compliance. The commenter stated that the appropriate monitoring and compliance requirements have already been addressed in the Portland Cement NESHAP rule and requested that the EPA adopt a similar approach for the CISWI standards. The commenter also suggested that the EPA clarify the level of testing and monitoring that applies to either an alkali by-pass or an in-line coal mill. Response: To provide additional consistency between CISWI and the Portland Cement NESHAP, the EPA is adding clarifying language in the final rule that makes the monitoring requirements for waste-burning kilns consistent with those in the Portland Cement NESHAP. Specifically, we are not requiring that CEMS or PM CPMS need to be installed on separate alkali bypass or in-line coal mill stacks. Instead, as is the case with the Portland Cement NESHAP, the results of the initial and subsequent performance test for the alkali bypass and in-line coal mill stacks can be used to determine the combined emissions to demonstrate compliance with the relevant emissions limit. However, unlike the Portland Cement NESHAP, the performance test must be conducted on an annual basis (between 11 and 13 calendar months following the previous performance test) to keep the testing schedule for these stacks consistent with the CISWI rule's annual performance testing requirements. V. Technical Corrections and Clarifications In the January 21, 2015, notice, the EPA proposed to correct minor typographical errors and clarify provisions of the final rule that may have been unclear. The EPA is finalizing these corrections, which are summarized in this section of the preamble. There were some comments received on these clarifications. These comments, and responses to them, are found in the “2013 CISWI Rule Reconsideration Response to Comments.” A. 2000 CISWI New Source Applicability Clarification for Incinerators and Air Curtain Incinerators Following promulgation of the February 2013 CISWI final rule, the EPA received questions regarding the continued applicability of the 2000 CISWI NSPS for units that are subject to the 2000 CISWI NSPS as they are transitioned from the 2000 NSPS to the February 2013 EG with which they will eventually be required to comply. The 2000 CISWI NSPS are the same as the 2000 CISWI EG and limited in applicability to the incinerator subcategory and air curtain incinerators so only these types of CISWI units being regulated in the February 2013 CISWI final rules are affected by this applicability issue. The EPA intended, consistent with the statute and our stated intent (see 76 FR 15711, March 21, 2011), to continue to regulate these units as “new” sources under the 2000 NSPS, and then regulate them as “existing” sources under the 2013 EG once these units were covered under an approved state plan or federal plan that implements the February 2013 CISWI final EG. The language in the February 7, 2013, NSPS at 40 CFR 60.2105 and the title of Table 1 to 40 CFR part 60, subpart CCCC make the EPA's intent to do so evident. However, the applicability section in 40 CFR 60.2015 omitted the applicability provisions for incinerators and air curtain incinerators that are subject to the 2000 CISWI NSPS. In this final rule, the EPA is finalizing proposed additional language in 40 CFR 60.2015(a) and 40 CFR 60.2105(b) that clarifies that these incinerators and air curtain incinerators remain “new” units regulated under the 2000 NSPS until such time that an approved state plan or federal plan implements the February 2013 EG for those units, at which time such units will be subject to the 2013 EG to the extent those limits are more stringent than the 2000 CISWI NSPS limits, which will continue to apply if they are more stringent. B. Typographical Errors and Corrections The following items are typographical errors in the final rule that we are correcting in this final action: • References in 40 CFR 60.2020(e), 60.2020(f), 60.2555(e), and 60.2555(f) were changed from “. . . paragraphs (e)(1) through (3) . . .” to “. . . paragraphs (e)(1) through (4) . . .”. • Restructured 40 CFR 60.2060 to add paragraph (b) that clarifies waste management plan submittal timeline for CISWI units that commence reconstruction or modification after August 7, 2013. • References in 40 CFR 60.2020(i) and 60.2245 were revised to include 40 CFR 60.2242 in addition to 40 CFR 60.2245 through 60.2260 ( i.e., clarifies that air curtain incinerators burning wood waste, clean lumber, and/or yard waste must obtain title V permits). • References in 40 CFR 60.2555(i) and 60.2810 were revised to include 40 CFR 60.2805 in addition to 40 CFR 60.2810 through 60.2870 ( i.e., clarifies that air curtain incinerators burning wood waste, clean lumber, and/or yard waste must obtain title V permits). • References in 40 CFR 60.2110(i)(2)(i)(D) and 40 CFR 60.2675(i)(2)(i)(D) were changed from “. . . paragraphs (i)(2)(i) through (iv) . . .” to “. . . paragraphs (i)(2)(i)(A) through (i)(2)(i)(C) . . .”. • Two references in the definitions of terms for Equation 3 in 40 CFR 60.2110(i)(2)(iv) were revised. For the `z' term, “(2)(a)” was corrected to “(2)(i)”, and for the `R' term, “Equation 3” was corrected to “Equation 2”. • Two references in the definitions of terms for Equation 3 in 40 CFR 60.2675(i)(2)(iv) were revised. For the `z' term, “(2)(a)” was corrected to “(2)(i)”, and for the `R' term, “Equation 3” was corrected to “Equation 2”. • The language in 40 CFR 60.2140(c) and 60.2705(c) were revised to include the phrase “commence or recommence combusting” to be parallel to the same terminology in 40 CFR 60.2140(b) and 60.2705(b), respectively. • Extra spaces were removed from 40 CFR 60.2145(v) and 60.2710(v). • The reference in 40 CFR 60.2145(w)(1) was changed from “§ 60.2675” to “§ 60.2140”. • The references in 40 CFR 60.2145(x)(1) were changed from “. . . § 60.2145(l) and (x)(1)(i) through (iii) . . .” to “. . . paragraphs (l) and (x)(1)(i) through (x)(1)(iii) . . .” • The references in 40 CFR 60.2710(x)(1) were changed from “. . .§ 60.2710(l) and (x)(1)(i) through (iii). . .” to “. . . paragraphs (l) and (x)(1)(i) through (x)(1)(iii). . .” • Language in 40 CFR 60.2145(x)(1)(iii), 60.2165(r)(1)(iii), 60.2710(x)(1)(iii) and 60.2730(r)(1)(iii) was revised to clarify the PM continuous parameter monitoring system (CPMS) detection limit. The phrase “of no greater than” was changed to “increments no greater than”. • Provisions for PM CPMS in both subparts were revised to also clarify the output signals from digital monitoring devices and remove “lb/Mmbtu” typographical errors. • The reference in 40 CFR 60.2165(q)(1) was changed from “§ 60.2675” to “§ 60.2140”. • Text in 40 CFR 60.2165(q)(3) was corrected from “. . .paragraph (q)(4) or this section . . .” to “. . . paragraph (q)(4) of this section . . .”. • The title of 40 CFR part 60, subpart CCCC Table 1 was revised to clarify that these emission limits apply to incinerators that were subject to the 2000 CISWI rule provisions. • The dates in paragraphs (a)(1) and (2) of 40 CFR 60.2535 from the 2000 CISWI rule were omitted in the current CFR version of the rule, and have been reinserted. • Added text in 40 CFR 60.2525(b) and 60.2535(b) to clarify applicability for incinerators and air curtain incinerators that were reconstructed or modified on or after June 1, 2001, but no later than August 7, 2013. • Revised the language of 40 CFR 60.2550(b) to reflect the August 7, 2013 date for purposes of applicability with 40 CFR part 60, subpart CCCC. • The text “over 10 MMBtu/hr but less than 250 MMBtu/hr annual average heat input rates” was added to 40 CFR 60.2730(m) for clarification and consistency. • The definition of chemical recovery unit in 40 CFR 60.2265 was revised to be consistent with the definition provided in 40 CFR 60.2875. The following text was added: “A chemical recovery unit is not an incinerator, a waste-burning kiln, an energy recovery unit or a small, remote incinerator under this subpart.” • Clarifying language was added to the HCl row of 40 CFR part 60, subpart DDDD Table 8. Compliance method text was changed from “. . . if a wet scrubber is not used” to “. . . if a wet scrubber or dry scrubber is not used.” • Text in 40 CFR 60.2165(o) was corrected from “. . . you must use a continuous automated sampling system . . .” to “. . . you may substitute use of a continuous automated sampling system for the carbon monoxide annual performance test.” • Revise the definition of “Oxygen trim system” to include draft controller and to clarify that it is a system that maintains the desired excess air level over the operating load range. • Revise the definition of “Reconstruction” in both subparts to reflect the correct criterion that reconstruction begins on or after August 7, 2013. • Renumbered equations in 40 CFR part 60, subpart DDDD to be in sequence within the subpart instead of being a continuation with 40 CFR part 60, subpart CCCC. • Revised paragraphs 40 CFR 60.2030(c), 60.2210(h), 60.2220(d), 60.2235, 60.2770(h), 60.2780(d) and 60.2795 to reflect the most recent electronic reporting guidance available and to further clarify reporting requirements. • Revised paragraphs 40 CFR 60.2145(j)(1) and 60.2710(j)(1) to reflect the most recent guidance available for HCl CEMS installed and certified in accordance to Performance Specification 15 or Performance Specification 18. • Table footnotes were converted from alphabetical to numeric format. • Deleted inadvertent footnote references to the following: Dioxin/furan TEQ and TMB rows of 40 CFR part 60, subpart CCCC Table 8; Dioxin/furan TMB row and Pb row of 40 CFR part 60, subpart DDDD Table 7; Dioxin/furan row of 40 CFR part 60, subpart DDDD Table 8; and dioxin/furan row of 40 CFR part 60, subpart DDDD Table 9. C. Clarifications Since publication of the February 7, 2013, final CISWI rule, the EPA has received stakeholder questions and requests for clarification on certain rule provisions. We are not finalizing any regulatory language changes for the following items, but are providing some clarification to these questions. Furthermore, comments received on these clarifications and responses to these comments are found in the “Response to Comments on the 2015 CISWI Reconsideration” document found in the docket: • Mass balance as operating limits for units without certain control devices—A stakeholder has asked for clarification on whether a mass balance could be used as an operating parameter, and whether this must be measured as a 30-day rolling average instead of taking a monthly sample. Furthermore, the stakeholder also asked whether the material balance allows them to waive annual stack testing. The EPA clarifies that mass balance operating parameters do not replace annual stack testing. Stack testing and operating parameters work in tandem to ensure ongoing compliance with the standards. We do, however, accept that mass balance could be an allowable operating parameter in cases where no control device is needed to meet the pollutant's specific emission limit applicable to the unit, provided the petition for the operating parameter limits meets the requirements specified in 40 CFR 60.2115 and 40 CFR 60.2680. We also point out that these requirements also allow any source to request a different averaging time that is appropriate for the source and operating parameter. • Clarification on who the “EPA Administrator” is and whom to contact for requests for averaging times, qualifying facility notifications, etc. We have received questions on how to contact the Administrator to submit notifications, reports and requests. The contact information is given in the General Provisions, under 40 CFR 60.4, and has addresses listed by EPA Regional Offices. VI. Environmental, Energy and Economic Impacts This action finalizes the proposed provisions and makes technical and clarifying corrections, but does not cause substantive changes to the impacts on the environment, energy generation and usage, and economic factors for affected sources from the February 7, 2013, final CISWI rule (78 FR 9112). The number of sources requiring improved emission control performance is the same as estimated in the final 2013 rule. While the emission limits have been relaxed slightly for PM in the waste-burning kilns, the assumed controls required to meet the final standards are still the same as those estimated for the final 2013 rule. That is, waste-burning kilns that would require additional controls to meet the final 2013 rule's PM and metals emission limits will still require those control improvements to meet the limits being finalized in this action. The main difference is an increased margin of compliance for these units, as well as a PM limit that is very consistent with the non-waste burning (Portland Cement NESHAP) PM emission limits, thereby streamlining compliance. For the coal-fired ERU subcategory, certain emission limits are relaxed while others have been made more stringent. The net result in emissions reductions are negligible, however, and there are no changes in the control cost estimates for units in this subcategory. As with the waste-burning kilns, the main difference for the coal ERUs is that there is a somewhat greater margin of compliance available in the standards being finalized, and thus, ensuring that the best performing units may be able to demonstrate sustained compliance with the MACT standards in multiple modes of operation (waste and non-waste modes). Taken together, the revised emission limits being finalized in this action could result in allowable emission estimates, primarily in PM, that are greater than those assumed for the 2013 final rule by about 297 tpy. In other words, there could potentially be 297 fewer tpy of PM emission reductions as a result of this final rule when compared to the 2013 final rule's estimated emission reductions. We have estimated these emission impacts in the memorandum “Revised Emission Limits and Impacts Analyses for Waste-burning Kilns and Coal ERUs” available in the docket. We have not revised the regulatory impacts assessment prepared for the 2013 final rule since the expected emissions control costs are unchanged and the change in estimated emission reductions are relatively minor when compared to the 34,771 tpy overall emission reductions estimated for the February 7, 2013, final rule ( See 78 FR 9132). VII. Statutory and Executive Order Reviews Additional information about these statues and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders . A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review. B. Paperwork Reduction Act (PRA) This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations (40 CFR part 60, subpart CCCC and 40 CFR part 60, subpart DDDD) and has assigned OMB control number 2060-0664 for subpart CCCC and OMB control number 2060-0662 for subpart DDDD. This action is believed to result in no changes to the information collection requirements of the February 2013 final CISWI rule, so that the information collection estimate of project cost and hour burden from the final CISWI rule have not been revised. C. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. This final rule will not impose any new requirements on any entities because it does not impose any additional regulatory requirements relative to those specified in the February 2013 final CISWI rule. The February 2013 final CISWI rule was certified as not having a significant economic impact on a substantial number of small entities. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities. D. Unfunded Mandates Reform Act (UMRA) This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector. E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175. The EPA is not aware of any CISWI in Indian country or owned or operated by Indian tribal governments. The CISWI aspects of this rule may, however, invoke minor indirect tribal implications to the extent that entities generating solid wastes on tribal lands could be affected. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR Part 51 This action does not involve technical standards. This action is not finalizing any new incorporation by reference material, so therefore this action is not making any amendments to the incorporations by reference found in 40 CFR 60.17. The incorporation by reference of this document was already approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51 for § 60.14, effective February 7, 2013. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information). J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. It does not affect the level of protection provided to human health or the environment. The final CISWI rule will reduce emissions of all the listed toxics emitted from this source, thereby helping to further ensure against any disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. K. Congressional Review Act (CRA) This action is subject to the CRA, and the EPA will submit a rule report to House of Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Incorporation by reference. Dated: May 5, 2016. Gina McCarthy, Administrator. For the reasons stated in the preamble, the Environmental Protection Agency is amending title 40, chapter I, of the Code of Federal Regulations as follows: PART 60—STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401, et seq. 2. Part 60 is amended by revising subpart CCCC to read as follows: Subpart CCCC—Standards of Performance for Commercial and Industrial Solid Waste Incineration Units Sec. Introduction 60.2000 What does this subpart do? 60.2005 When does this subpart become effective? Applicability 60.2010 Does this subpart apply to my incineration unit? 60.2015 What is a new incineration unit? 60.2020 What combustion units are exempt from this subpart? 60.2030 Who implements and enforces this subpart? 60.2035 How are these new source performance standards structured? 60.2040 Do all eleven components of these new source performance standards apply at the same time? Preconstruction Siting Analysis 60.2045 Who must prepare a siting analysis? 60.2050 What is a siting analysis? Waste Management Plan 60.2055 What is a waste management plan? 60.2060 When must I submit my waste management plan? 60.2065 What should I include in my waste management plan? Operator Training and Qualification 60.2070 What are the operator training and qualification requirements? 60.2075 When must the operator training course be completed? 60.2080 How do I obtain my operator qualification? 60.2085 How do I maintain my operator qualification? 60.2090 How do I renew my lapsed operator qualification? 60.2095 What site-specific documentation is required? 60.2100 What if all the qualified operators are temporarily not accessible? Emission Limitations and Operating Limits 60.2105 What emission limitations must I meet and by when? 60.2110 What operating limits must I meet and by when? 60.2115 What if I do not use a wet scrubber, fabric filter, activated carbon injection, selective noncatalytic reduction, an electrostatic precipitator, or a dry scrubber to comply with the emission limitations? Performance Testing 60.2125 How do I conduct the initial and annual performance test? 60.2130 How are the performance test data used? Initial Compliance Requirements 60.2135 How do I demonstrate initial compliance with the emission limitations and establish the operating limits? 60.2140 By what date must I conduct the initial performance test? 60.2141 By what date must I conduct the initial air pollution control device inspection? Continuous Compliance Requirements 60.2145 How do I demonstrate continuous compliance with the emission limitations and the operating limits? 60.2150 By what date must I conduct the annual performance test? 60.2151 By what date must I conduct the annual air pollution control device inspection? 60.2155 May I conduct performance testing less often? 60.2160 May I conduct a repeat performance test to establish new operating limits? Monitoring 60.2165 What monitoring equipment must I install and what parameters must I monitor? 60.2170 Is there a minimum amount of monitoring data I must obtain? Recordkeeping and Reporting 60.2175 What records must I keep? 60.2180 Where and in what format must I keep my records? 60.2185 What reports must I submit? 60.2190 What must I submit prior to commencing construction? 60.2195 What information must I submit prior to initial startup? 60.2200 What information must I submit following my initial performance test? 60.2205 When must I submit my annual report? 60.2210 What information must I include in my annual report? 60.2215 What else must I report if I have a deviation from the operating limits or the emission limitations? 60.2220 What must I include in the deviation report? 60.2225 What else must I report if I have a deviation from the requirement to have a qualified operator accessible? 60.2230 Are there any other notifications or reports that I must submit? 60.2235 In what form can I submit my reports? 60.2240 Can reporting dates be changed? Title V Operating Permits 60.2242 Am I required to apply for and obtain a Title V operating permit for my unit? Air Curtain Incinerators 60.2245 What is an air curtain incinerator? 60.2250 What are the emission limitations for air curtain incinerators? 60.2255 How must I monitor opacity for air curtain incinerators? 60.2260 What are the recordkeeping and reporting requirements for air curtain incinerators? Definitions 60.2265 What definitions must I know? Tables to Subpart CCCC Table 1 to Subpart CCCC of Part 60—Emission Limitations for Incinerators for Which Construction Is Commenced After November 30, 1999, But No Later Than June 4, 2010, or for Which Modification or Reconstruction Is Commenced on or After June 1, 2001, But No Later Than August 7, 2013 Table 2 to Subpart CCCC of Part 60—Operating Limits for Wet Scrubbers Table 3 to Subpart CCCC of Part 60—Toxic Equivalency Factors Table 4 to Subpart CCCC of Part 60—Summary of Reporting Requirements Table 5 to Subpart CCCC of Part 60—Emission Limitations for Incinerators That Commenced Construction After June 4, 2010, or That Commenced Reconstruction or Modification After August 7, 2013 Table 6 to Subpart CCCC of Part 60—Emission Limitations for Energy Recovery Units That Commenced Construction After June 4, 2010, or That Commenced Reconstruction or Modification After August 7, 2013 Table 7 to Subpart CCCC of Part 60—Emission Limitations for Waste-burning Kilns That Commenced Construction After June 4, 2010, or Reconstruction or Modification After August 7, 2013 Table 8 to Subpart CCCC of Part 60—Emission Limitations for Small, Remote Incinerators That Commenced Construction After June 4, 2010, or That Commenced Reconstruction or Modification After August 7, 2013 Subpart CCCC—Standards of Performance for Commercial and Industrial Solid Waste Incineration Units Introduction § 60.2000 What does this subpart do? This subpart establishes new source performance standards for commercial and industrial solid waste incineration (CISWI) units. § 60.2005 When does this subpart become effective? This subpart takes effect on August 7, 2013. Some of the requirements in this subpart apply to planning the CISWI unit ( i.e., the preconstruction requirements in §§ 60.2045 and 60.2050). Other requirements such as the emission limitations and operating limits apply after the CISWI unit begins operation. Applicability § 60.2010 Does this subpart apply to my incineration unit? Yes, if your incineration unit meets all the requirements specified in paragraphs (a) through (c) of this section: (a) Your incineration unit is a new incineration unit as defined in § 60.2015; (b) Your incineration unit is a CISWI unit as defined in § 60.2265; and (c) Your incineration unit is not exempt under § 60.2020. § 60.2015 What is a new incineration unit? (a) A new incineration unit is an incineration unit that meets any of the criteria specified in paragraphs (a)(1) through (3) of this section: (1) A CISWI unit that commenced construction after June 4, 2010; (2) A CISWI unit that commenced reconstruction or modification after August 7, 2013; and (3) Incinerators and air curtain incinerators, as defined in this subpart, that commenced construction after November 30, 1999, but no later than June 4, 2010, or that commenced reconstruction or modification on or after June 1, 2001, but no later than August 7, 2013, are considered new incineration units and remain subject to the applicable requirements of this subpart until the units become subject to the requirements of an approved state plan or federal plan that implements subpart DDDD of this part (Emission Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units). (b) This subpart does not affect your CISWI unit if you make physical or operational changes to your incineration unit primarily to comply with subpart DDDD of this part (Emission Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units). Such changes do not qualify as reconstruction or modification under this subpart. § 60.2020 What combustion units are exempt from this subpart? This subpart exempts the types of units described in paragraphs (a), (c) through (i), and (n) of this section, but some units are required to provide notifications. Air curtain incinerators are exempt from the requirements in this subpart except for the provisions in §§ 60.2242, 60.2250, and 60.2260. (a) Pathological waste incineration units. Incineration units burning 90 percent or more by weight (on a calendar quarter basis and excluding the weight of auxiliary fuel and combustion air) of pathological waste, low-level radioactive waste, and/or chemotherapeutic waste as defined in § 60.2265 are not subject to this subpart if you meet the two requirements specified in paragraphs (a)(1) and (2) of this section: (1) Notify the Administrator that the unit meets these criteria; and (2) Keep records on a calendar quarter basis of the weight of pathological waste, low-level radioactive waste, and/or chemotherapeutic waste burned, and the weight of all other fuels and wastes burned in the unit. (b) [Reserved] (c) Municipal waste combustion units. Incineration units that are subject to subpart Ea of this part (Standards of Performance for Municipal Waste Combustors); subpart Eb of this part (Standards of Performance for Large Municipal Waste Combustors); subpart Cb of this part (Emission Guidelines and Compliance Time for Large Municipal Combustors); subpart AAAA of this part (Standards of Performance for Small Municipal Waste Combustion Units); or subpart BBBB of this part (Emission Guidelines for Small Municipal Waste Combustion Units). (d) Medical waste incineration units. Incineration units regulated under subpart Ec of this part (Standards of Performance for Hospital/Medical/Infectious Waste Incinerators for Which Construction is Commenced After June 20, 1996) or subpart Ce of this part (Emission Guidelines and Compliance Times for Hospital/Medical/Infectious Waste Incinerators). (e) Small power production facilities. Units that meet the three requirements specified in paragraphs (e)(1) through (4) of this section: (1) The unit qualifies as a small power-production facility under section 3(17)(C) of the Federal Power Act (16 U.S.C. 796(17)(C)); (2) The unit burns homogeneous waste (not including refuse-derived fuel) to produce electricity; (3) You submit documentation to the Administrator notifying the EPA that the qualifying small power production facility is combusting homogenous waste; and (4) You maintain the records specified in § 60.2175(w). (f) Cogeneration facilities. Units that meet the three requirements specified in paragraphs (f)(1) through (4) of this section: (1) The unit qualifies as a cogeneration facility under section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)); (2) The unit burns homogeneous waste (not including refuse-derived fuel) to produce electricity and steam or other forms of energy used for industrial, commercial, heating, or cooling purposes; (3) You submit documentation to the Administrator notifying the Agency that the qualifying cogeneration facility is combusting homogenous waste; and (4) You maintain the records specified in § 60.2175(x). (g) Hazardous waste combustion units. Units for which you are required to get a permit under section 3005 of the Solid Waste Disposal Act. (h) Materials recovery units. Units that combust waste for the primary purpose of recovering metals, such as primary and secondary smelters. (i) Air curtain incinerators. Air curtain incinerators that burn only the materials listed in paragraphs (i)(1) through (3) of this section are only required to meet the requirements under § 60.2242 and under “Air Curtain Incinerators” (§§ 60.2245 through 60.2260): (1) 100 percent wood waste; (2) 100 percent clean lumber; and (3) 100 percent mixture of only wood waste, clean lumber, and/or yard waste. (j)-(l) [Reserved] (m) Sewage treatment plants. Incineration units regulated under subpart O of this part (Standards of Performance for Sewage Treatment Plants). (n) Sewage sludge incineration units. Incineration units combusting sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter that are subject to subpart LLLL of this part (Standards of Performance for New Sewage Sludge Incineration Units) or subpart MMMM of this part (Emission Guidelines and Compliance Times for Existing Sewage Sludge Incineration Units). (o) Other solid waste incineration units. Incineration units that are subject to subpart EEEE of this part (Standards of Performance for Other Solid Waste Incineration Units for Which Construction is Commenced After December 9, 2004, or for Which Modification or Reconstruction is Commenced on or After June 16, 2006) or subpart FFFF of this part (Emission Guidelines and Compliance Times for Other Solid Waste Incineration Units That Commenced Construction On or Before December 9, 2004). § 60.2030 Who implements and enforces this subpart? (a) This subpart can be implemented and enforced by the U.S. Environmental Protection Agency (EPA), or a delegated authority such as your state, local, or tribal agency. If the EPA Administrator has delegated authority to your state, local, or tribal agency, then that agency (as well as EPA) has the authority to implement and enforce this subpart. You should contact your EPA Regional Office to find out if this subpart is delegated to your state, local, or tribal agency. (b) In delegating implementation and enforcement authority of this subpart to a state, local, or tribal agency, the authorities contained in paragraph (c) of this section are retained by the EPA Administrator and are not transferred to the state, local, or tribal agency. (c) The authorities that will not be delegated to state, local, or tribal agencies are specified in paragraphs (c)(1) through (4) and (c)(6) through (11) of this section: (1) Approval of alternatives to the emission limitations in table 1 of this subpart and operating limits established under § 60.2110; (2) Approval of major alternatives to test methods; (3) Approval of major alternatives to monitoring; (4) Approval of major alternatives to recordkeeping and reporting; (5) [Reserved] (6) The requirements in § 60.2115; (7) The requirements in § 60.2100(b)(2); (8) Approval of alternative opacity emission limits in § 60.2105 under § 60.11(e)(6) through (8); (9) Performance test and data reduction waivers under § 60.2125(j), § 60.8(b)(4) and (5); (10) Determination of whether a qualifying small power production facility or cogeneration facility under § 60.2020(e) or (f) is combusting homogenous waste; and (11) Approval of an alternative to any electronic reporting to the EPA required by this subpart. § 60.2035 How are these new source performance standards structured? These new source performance standards contain the eleven major components listed in paragraphs (a) through (k) of this section: (a) Preconstruction siting analysis; (b) Waste management plan; (c) Operator training and qualification; (d) Emission limitations and operating limits; (e) Performance testing; (f) Initial compliance requirements; (g) Continuous compliance requirements; (h) Monitoring; (i) Recordkeeping and reporting; (j) Definitions; and (k) Tables. § 60.2040 Do all eleven components of these new source performance standards apply at the same time? No. You must meet the preconstruction siting analysis and waste management plan requirements before you commence construction of the CISWI unit. The operator training and qualification, emission limitations, operating limits, performance testing and compliance, monitoring, and most recordkeeping and reporting requirements are met after the CISWI unit begins operation. Preconstruction Siting Analysis § 60.2045 Who must prepare a siting analysis? (a) You must prepare a siting analysis if you plan to commence construction of an incinerator after December 1, 2000. (b) You must prepare a siting analysis for CISWI units that commenced construction after June 4, 2010, or that commenced reconstruction or modification after August 7, 2013. (c) You must prepare a siting analysis if you are required to submit an initial application for a construction permit under 40 CFR part 51, subpart I, or 40 CFR part 52, as applicable, for the reconstruction or modification of your CISWI unit. § 60.2050 What is a siting analysis? (a) The siting analysis must consider air pollution control alternatives that minimize, on a site-specific basis, to the maximum extent practicable, potential risks to public health or the environment. In considering such alternatives, the analysis may consider costs, energy impacts, nonair environmental impacts, or any other factors related to the practicability of the alternatives. (b) Analyses of your CISWI unit's impacts that are prepared to comply with state, local, or other federal regulatory requirements may be used to satisfy the requirements of this section, provided they include the consideration of air pollution control alternatives specified in paragraph (a) of this section. (c) You must complete and submit the siting requirements of this section as required under § 60.2190(c) prior to commencing construction. Waste Management Plan § 60.2055 What is a waste management plan? A waste management plan is a written plan that identifies both the feasibility and the methods used to reduce or separate certain components of solid waste from the waste stream in order to reduce or eliminate toxic emissions from incinerated waste. § 60.2060 When must I submit my waste management plan? (a) You must submit a waste management plan prior to commencing construction. (b) For CISWI units that commence reconstruction or modification after August 7, 2013, you must submit a waste management plan prior to the commencement of modification or reconstruction. § 60.2065 What should I include in my waste management plan? A waste management plan must include consideration of the reduction or separation of waste-stream elements such as paper, cardboard, plastics, glass, batteries, or metals; or the use of recyclable materials. The plan must identify any additional waste management measures and implement those measures the source considers practical and feasible, considering the effectiveness of waste management measures already in place, the costs of additional measures, the emissions reductions expected to be achieved, and any other environmental or energy impacts they might have. Operator Training and Qualification § 60.2070 What are the operator training and qualification requirements? (a) No CISWI unit can be operated unless a fully trained and qualified CISWI unit operator is accessible, either at the facility or can be at the facility within 1 hour. The trained and qualified CISWI unit operator may operate the CISWI unit directly or be the direct supervisor of one or more other plant personnel who operate the unit. If all qualified CISWI unit operators are temporarily not accessible, you must follow the procedures in § 60.2100. (b) Operator training and qualification must be obtained through a state-approved program or by completing the requirements included in paragraph (c) of this section. (c) Training must be obtained by completing an incinerator operator training course that includes, at a minimum, the three elements described in paragraphs (c)(1) through (3) of this section: (1) Training on the eleven subjects listed in paragraphs (c)(1)(i) through (xi) of this section; (i) Environmental concerns, including types of emissions; (ii) Basic combustion principles, including products of combustion; (iii) Operation of the specific type of incinerator to be used by the operator, including proper startup, waste charging, and shutdown procedures; (iv) Combustion controls and monitoring; (v) Operation of air pollution control equipment and factors affecting performance (if applicable); (vi) Inspection and maintenance of the incinerator and air pollution control devices; (vii) Actions to prevent and correct malfunctions or to prevent conditions that may lead to malfunctions; (viii) Bottom and fly ash characteristics and handling procedures; (ix) Applicable federal, state, and local regulations, including Occupational Safety and Health Administration workplace standards; (x) Pollution prevention; and (xi) Waste management practices. (2) An examination designed and administered by the instructor. (3) Written material covering the training course topics that may serve as reference material following completion of the course. § 60.2075 When must the operator training course be completed? The operator training course must be completed by the later of the three dates specified in paragraphs (a) through (c) of this section: (a) Six months after your CISWI unit startup; (b) December 3, 2001; and (c) The date before an employee assumes responsibility for operating the CISWI [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-13687. Public record. Not legal advice.