pollution control device or waste heat boiler.\57\ In the October 12,
2005 final rule, we promulgated a dioxin/furan standard of 0.40 ng TEQ/
dscm provided that the combustion gas temperature at the inlet to the
initial particulate matter control device is 400 [deg]F or below (see
Sec.  63.1219(a)(1)(i)). The final standard for this subcategory was
less stringent than that proposed (0.28 ng TEQ/dscm) as a result of a
data base change between proposal and promulgation. 71 FR at 52636-638.
We made this data base change, which pertained to incinerator source
327 (specifically, test condition C10) in our data base, in response to
public comments to the proposed rule. 70 FR at 59432. In its petition
for reconsideration, the Sierra Club stated that the dioxin/furan floor
standard increased as a result of EPA's post proposal decision to use
different data to represent source 327 and that EPA had provided no
opportunity for public comment on this data handling decision. Pursuant
to section 307(d)(7)(B) of the CAA, we granted the Sierra Club's
petition for reconsideration of the dioxin/furan standard for
incinerators with either a dry air pollution control device or waste
heat boiler.
---------------------------------------------------------------------------

    \57\ The Sierra Club also petitioned EPA to reconsider the
dioxin/furan standard for the subcategory of incinerators with wet
or no air pollution control devices. As discussed in the September
6, 2006 notice, we denied this reconsideration request (71 FR at
52627). See also docket item EPA-HQ-OAR-2004-0022-0558.
---------------------------------------------------------------------------

    As stated in the September 6, 2006 reconsideration notice, the
arguments provided by the Sierra Club in its petition for
reconsideration did not convince us that our decision on what emissions
data to use to represent source 327 for the dioxin/furan MACT

floor analysis was erroneous or inappropriate. Therefore, in the
reconsideration notice we solicited comment on the identical MACT floor
analysis (for dioxin/furans for this incinerator subcategory) and
underlying data handling decision regarding source 327 as promulgated
in the October 12, 2005 final rule. 71 FR at 52636-38. That is, we
proposed not to use the dioxin/furan test results where source 327
encountered operational problems with its carbon injection system.
Instead, we proposed to use other valid emissions data in our emissions
data base from this source in the MACT floor analysis. In response to
the notice for reconsideration, we received five comment letters on
this issue. These comment letters are available in the official public
docket.\58\
---------------------------------------------------------------------------

    \58\ See comments 0563, 0565, 0567, 0568, and 0569 in the docket
(EPA-HQ-OAR-2004-0022).
---------------------------------------------------------------------------

1. Summary of the Final Action
    The comments to the reconsideration notice provided limited new
information regarding the dioxin/furan standard for incinerators with
either a dry air pollution control device or waste heat boiler. No new
technical information on the dioxin/furan test results that EPA
excluded were received in comments. We received one comment letter that
challenged whether we exercised appropriate judgment in excluding the
one test result from source 327. After evaluation of the comments, we
are deciding to retain the dioxin/furan standard as promulgated and are
making no changes to the final rule. Because we are not revising the
dioxin/furan standard for incinerators, the standard as promulgated
under Sec.  63.1219(a)(1) remains unchanged.
2. What Are the Responses to Major Comments?
    We received five comment letters in support of and one comment
letter objecting to our decision to replace the 2001 data for source
no. 327 with other dioxin/furan emissions data in our data base. A
summary of major comments received on this reconsideration issue and
EPA's responses to those comments are provided below.
    Comment: A comment was received stating that EPA did not explain
why the MACT floor standard was based exclusively on compliance test
data. The same commenter argues that the 2001 test results from source
327 (i.e., the test data during which operational problems with the
carbon injection system occurred) were conducted under compliance test
conditions and should be characterized as such in EPA's data base.
Finally, the commenter states that whether or not the test results for
source 327 were used to establish operating parameter limits is not
relevant in determining whether they are compliance test data.
    Response: We disagree with the comment. As explained in the
September 6, 2006 reconsideration notice, we solicited comment on the
identical MACT floor analysis and standard that was promulgated for
this subcategory of incinerators. 71 FR at 52636-38. As explained in
the proposed rule, EPA's data base is comprised of emissions data from
tests conducted for various reasons. For MACT floor analysis purposes,
all emissions data were characterized in one of four ways: ``compliance
test'' data, ``normal'' data, ``in-between'' data, and ``not
applicable'' data. See 69 FR at 21218-219 (April 20, 2004). After
characterizing the data, we followed a general ``data hierarchy'' to
identify the data to use for each emissions standard. 69 FR at 21229.
For the subcategory of existing incinerators with either a dry air
pollution control device or waste heat boiler, we tentatively concluded
at proposal and confirmed in the 2005 final rule that it is appropriate
to base the dioxin/furan standard on ``compliance test'' emissions data
associated with the most recent test campaign. See 69 FR at 21240
(April 20, 2004) and page 10-4 of ``Technical Support Document for HWC
MACT Standards, Volume III: Selection of MACT Standards'' (September
2005). Therefore, the record clearly shows our consistent intent to use
compliance test data to determine the MACT floor standard for this
subcategory of incinerators, as the data most representative of the
performance of sources in this subcategory.
    In response to public comments to the April 20, 2004 proposed rule,
the characterization of source 327's test data (i.e., test condition
327C10 in our data base) was changed from ``compliance test'' to ``not
applicable'' because the carbon injection system malfunctioned during
the test. As discussed in the technical support document, one of the
reasons data may be characterized as ``not applicable'' is if problems
were encountered during testing that ``prevented the data from being
used for regulatory compliance purposes.'' The operational troubles
experienced during testing prevented source 327 from using the data in
question to set operating parameter limits, a regulatory compliance
purpose. See ``Draft Technical Support Document for HWC MACT Standards,
Volume II: HWC Data Base'' (March 2004), pages 2-3 to 2-6, and
``Technical Support Document for HWC MACT Standards, Volume II: HWC
Data Base'' (September 2005), pages 2-11 to 2-13. If the data are
unsuitable for regulatory purposes (which is unquestioned here), then
EPA can reasonably decline to use the data to characterize the source's
performance for standard setting purposes.
    Comment: One commenter states that our decision not to use the 2001
test data from source 327 and instead use dioxin/furan emissions data
with higher levels from 1992 is arbitrary and capricious. This is
because EPA had no reason to believe that source 327 would perform
worse than the level it achieved despite operational problems.
    Response: The 2001 test data in our data base for source 327 do not
represent the source's performance over time because the source
encountered operational problems during testing. As a result, we
believe it is inappropriate to use such data when identifying MACT
floor standards (or any other standards, for that matter). The fact
remains that we have no valid data reflecting the performance and
performance variability of this source when using a carbon injection
system. While dioxin/furan emission results may be lower using the
carbon injection system, we are not in possession of such data. It is
also a fact that none of the available 1992 emissions data (i.e., the
only compliance test data in our data base for this source) is low
enough to be considered among the 12 percent of best performers. As a
result, available valid emissions data for source 327 have no direct
impact on the MACT floor analysis.
    Comment: One commenter stated that the dioxin/furan standard is
unlawful and arbitrary and capricious because the calculated MACT floor
of 0.42 ng TEQ/dscm is less stringent than the current interim standard
of 0.40 ng TEQ/dscm. Therefore, these results indicate that the MACT
floor methodology does not yield floors reflecting the actual
performance of the relevant best sources.
    Response: We disagree with the comment for the same reasons
discussed in Part Four, Section III.F of the October 12, 2005 final
rule. 70 FR at 59458.

H. Provisions of the Health-Based Compliance Alternative

    The October 12, 2005 final rule allowed sources to establish and
comply with health-based compliance alternatives for total chlorine for
hazardous waste combustors other than hydrochloric acid production
furnaces in lieu of the MACT technology-based emission standards
established under Sec. Sec.  63.1216, 63.1217, 63.1219, 63.1220,

and 63.1221. See 70 FR at 59413-19 and Sec.  63.1215.
    Sierra Club petitioned for reconsideration stating that EPA changed
several provisions of the health-based compliance alternative after the
period for public comment and therefore did not provide notice and
opportunity for public comment.\59\ In addition, Sierra Club stated
that three new provisions are problematic: (1) It is unlawful to allow
sources to comply with the health-based compliance alternative without
prior approval from the permitting authority; (2) it is unlawful to
allow a source to obtain an unlimited extension of the compliance date
if their eligibility demonstration is disapproved and the source is
unable to change the design or operation of the source to comply with
the MACT emission standards by the compliance date; and (3) the Agency
cannot rely on the Title V program as the vehicle for establishing
health-based compliance alternatives.
---------------------------------------------------------------------------

    \59\ See letter from James Pew to Stephen Johnson, dated
December 12, 2005, Section XII, docket item EPA-HQ-OAR-2004-0022-
0517.
---------------------------------------------------------------------------

    We granted reconsideration of these provisions because we developed
them in response to comments on the proposed rule, after the period for
public comment as Sierra Club stated. Furthermore, to address Sierra
Club's concerns, we proposed to revise the rule pertaining to these
provisions as follows: (1) The rule would state that the operating
requirements specified in the eligibility demonstration are
``applicable requirements'' as defined in 40 CFR 70.2 or 71.2 and
therefore must be incorporated in the Title V permit; (2) a source may
comply with the health-based compliance alternative without prior
approval from the permitting authority provided that the source has
made a good faith effort to provide complete and accurate information
and to respond to any requests for additional information; and (3) the
compliance date extension cannot exceed one year if the eligibility
demonstration is disapproved and the source is unable to change the
design or operation to comply with the MACT emission standards by the
compliance date.
1. Summary of the Final Action
    We are today promulgating revisions to the health-based compliance
alternative as proposed in the reconsideration notice. The comments to
the reconsideration notice did not provide a basis for us to conclude
that the health-based compliance alternative, as we proposed to revise
it, was inappropriate. Therefore, we reaffirm the health-based
compliance alternative that we promulgated in the October 12, 2005
final rule, as revised today subsequent to the reconsideration notice.
    Please note that the revised provisions are effective immediately,
and today's final rule does not change the October 14, 2008 compliance
date established by the October 12, 2005 final rule. Sources can
readily comply with the revised provisions promulgated today on the
compliance time line established by the October 12, 2005 final rule.
2. What Are the Responses to Major Comments?
    Comment: Sierra Club states that the health-based compliance
alternatives are implemented through Title V permits, and because Title
V permits expire, this is evidence that the health-based alternatives
are not emission standards within the meaning of CAA section 112(d)(4).
    Response: In the reconsideration notice, we explained that, because
the health-based compliance alternative requirements are clearly
defined (e.g., HCl-equivalent emission limits, chlorine feedrate
limits), and because any standards or requirements created under CAA
section 112 are considered ``applicable requirements'' under 40 CFR
part 70, the compliance alternatives would be incorporated into Title V
permits.\60\ 70 FR at 59481; 71 FR at 52639.
---------------------------------------------------------------------------

    \60\ Applicable requirements defined under Sec.  70.2 must be
included in Title V permit, as required under Sec.  70.6(a)(1).
---------------------------------------------------------------------------

    Nonetheless, in response to Sierra Club's reconsideration petition
that the Agency cannot rely on the Title V program as the vehicle for
establishing health-based compliance alternatives we proposed to revise
the rule to add clarifying regulatory language stating that Sec.
63.1215 requirements are applicable requirements under part 70 and
therefore must be included in the Title V permit as would any other
applicable requirement.
    We are promulgating that requirement today (see Sec.
63.1215(e)(3)) and disagree with the commenter's view that the health-
based alternatives are implemented through the Title V permit rather
than established as a national standard by rule. The rule itself
establishes not only the standard's level of protection, which is
uniform nationwide and assures that emissions of total chlorine from
each source complying with the alternative standard will be less than
the threshold level for total chlorine with an ample margin of
safety,\61\ but also establishes each and every step that sources must
use to calculate that standard. The permit writer ascertains that the
source has applied the rule properly (e.g., has not put incorrect
factual inputs into the equations and formulae provided in the rule).
Thus, the rule not only establishes the level of control (which is
uniform nationally, as just stated) but the exclusive means of
developing the emission limit which satisfies that level. Moreover,
sources must establish a numerical limit (using the exclusive protocols
set out in the rule) before permitting. This limit is immediately
enforceable against the source. The permitting process determines if
this limit was determined correctly (i.e. whether the source applied
the protocols in the rule correctly). See Sec.  63.1215(e) and (g).
---------------------------------------------------------------------------

    \61\ Specifically, that exposure to the actual individual most
exposed to the facility's emissions, considering off-site locations
where people congregate for work, school, or recreation, is less
than that level. See Sec.  63.1215(c)(ii).
---------------------------------------------------------------------------

    The situation is analogous to the way parametric monitoring limits
implementing numeric section 112(d)(2) standards are established: a
national rule establishes a numerical standard and specifies which
parameters are to be monitored; a source determines the actual levels
of those parameters based on site-specific conditions and establishes
enforceable parametric monitoring limits for itself; and a permit
writer decides whether to ratify the source's determination and
memorializes the quantified parametric monitoring limit in the source's
permit. Id. There is no suggestion that this process violates the
requirement that EPA establish national emission standards.
    Comment: Sierra Club states that allowing sources to comply with
the health-based compliance alternatives without prior approval from
the permitting authority further confirms that the alternatives are not
standards at all, and violates the CAA by allowing sources to operate
without any assurance that HAP emissions are controlled.
    Response: The comment is confusing, since MACT standards are
implemented in advance of permitting (as are the alternative section
112(d)(4) standards), and are, of course, emission standards. Further,
the health-based compliance alternative is a requirement established by
EPA ``which limits the quantity, rate, or concentration of emissions of
air pollutants on a continuous basis,'' and so is an ``emission
standard'' under section 302(k) of the Act (which definition applies to
section 112(d)).

The section 112(d)(4) standard is an emission concentration limit
(ppmv) for total chlorine that is demonstrated not to result in a
Hazard Index \62\ for hydrogen chloride and chlorine gas exceeding 1.0.
---------------------------------------------------------------------------

    \62\ The Hazard Index is the sum of the Hazard Quotients for
hydrogen chloride and chlorine gas. The Hazard Quotient (HQ) is the
ratio of the predicted ambient air concentration of a pollutant to
the air concentration at which no adverse effects are expected. For
chronic inhalation exposures, the HQ is calculated as the air
concentration divided by the reference concentration (RfC). For
acute inhalation exposures, the HQ is calculated as the air
concentration divided by the acute reference exposure level (aREL).
---------------------------------------------------------------------------

    Comment: Sierra Club states that EPA's ``individualized source-by-
source loophole program'' does not provide emission standards. The
comment continues that since section 112(d) standards must be
established on a category or subcategory basis, the most a section
112(d)(4) standard can lawfully do is require all sources to emit at
the uniform limit which will not result in adverse effects to human
health with an ample margin of safety. The commenter continues that to
satisfy section 112(d)(4), that standard must moreover account for the
individual circumstances of each emitting source (including receptor
location).
    Response: The standards adopted in the rule apply on a categorical
basis and assure that each source in the category adopting this
alternative emits total chlorine at a level which is protective of
human health with an ample margin of safety. The level of protection
afforded is identical in each instance the compliance alternative is
satisfied: exposure to less than the hazard index for total chlorine
(which hazard index reflects an ample margin of safety), and hence
exposure to less than the threshold level of effect for total chlorine.
Individual circumstances of each emitting source (such as dispersion
characteristics and the location of most-exposed receptor) must be
accounted for in demonstrating that the source is eligible for the
alternative standard (just as actual parametric monitoring limits
implementing numeric limits are established post-rule to account for
individual circumstances). See Sec.  63.1215(c)(2) which requires that
the demonstration of eligibility show that emissions of total chlorine
(measured as HCl equivalence) be shown to be less than the Hazard Index
for chronic exposure ``for the actual individual most exposed to the
facility's emissions, considering off-site locations where people
reside and where people congregate for work, school, or recreation'';
see also Sec.  63.1215(c)(3)(v) requiring the demonstration to account
for emissions from all emitting hazardous waste combustors at a site.
As explained in the previous response, this provision thus satisfies
the statutory definition of ``emission standard,'' as well as all
applicable section 112(d) requirements.
    Comment: Sierra Club states, without analysis, that the provision
violates RCRA as well as the Clean Air Act, because the standards are
insufficient to protect public health and the environment.
    Response: EPA showed in promulgating the provision that emissions
would be protective of human health and the environment (70 FR at
59479-80), and commenter has not provided information to the contrary.
    Comment: The commenter cites legislative history to the 1990
amendments (1 Legislative History at 866) in which Congress rejected a
provision which would have allowed individual sources to waive out of
MACT requirements by demonstrating that their HAP emissions pose
negligible risk to public health. The commenter views this history as
supporting its argument since it regards the provision here as
analogous.
    Response: EPA does not believe the provision discussed in the
legislative history is analogous. It would have allowed a demonstration
of low risk for all toxics, not just threshold pollutants. Section
112(d)(4) is limited in scope to threshold pollutants where the
Administrator has identified a level that protects public health with
an ample margin of safety. EPA's rule here reasonably implements that
authority.
    Comment: Sierra Club states that it is impermissible and further
indication that the health-based compliance alternatives are not
emission standards to allow an automatic extension of the compliance
date upon disapproval of an eligibility demonstration to allow the
source time to make changes to the design or operation of the combustor
or related systems as quickly as practicable to enable the source to
achieve compliance with the total chlorine MACT standards. Sources must
comply with MACT standards within no more than three years, absent an
individualized demonstration of a need for further time to install
controls.
    Response: We disagree with the characterization that the time
extension is automatic. Section 63.1215(e)(2)(i)(B) states that the
permitting authority may extend the compliance date by up to one year
(as revised by today's rule) to allow the source to make changes to the
design or operation of the combustor to achieve compliance with the
MACT total chlorine standards. An individualized showing is required to
support such an extension. In addition, an extension would be granted
only for the time needed (but not exceeding one year) to make the
changes required to achieve compliance with the emission standards.
That is expressly the purpose of the time extension provision of CAA
section 112(i)(3)(B), which allows extensions of a section 112(d)
standard's effective date for up to one year where necessary for the
installation of controls.
    Comment: Sierra Club states that EPA lacks authority to grant
source-by-source exemptions from Section 112 emission standards.
    Response: We agree. The health-based compliance alternatives are
section 112 emission standards, as we have explained in this preamble
and in the October 12, 2005 final rule. See 70 FR at 59479. Thus, no
sources are exempted from such standards.

IV. Response to Comments to the September 27, 2007 Notice

    On September 27, 2007, EPA issued a notice for public comment which
discussed the standards that EPA promulgated in October 2005, and
specifically identified which standards EPA believes are consistent
with the Act and caselaw, and which standards are not and need to be
reexamined through a subsequent rulemaking. 72 FR 54875. With respect
to those standards EPA announced it intended to defend, the notice
indicated the portions of the rationale upon which EPA intended to
rely, and which portions EPA would no longer rely upon as a
justification for the standards. EPA sought public comment on this
analysis and placed edited versions of various support documents in the
public docket, edited to remove portions of the rationale on which EPA
no longer planned to rely, and solicited public comment on these edits.
    After receipt of public comment, EPA has further narrowed the
number of standards it intends to defend. We respond here to the
principal public comments with respect to those standards which EPA has
announced its intention to defend. However, as an initial matter, one
commenter argued that EPA may not amend portions of the record or
revise rationales for the final rule without proposing to amend the
rule, i.e., recommencing rulemaking procedures. EPA disagrees. The
Clean Air Act provides that EPA may reconsider rules based on new
information which arose after the period for public comment. CAA
section 307(d)(7)(B). The Brick MACT opinion is such a type of new
information. Sierra Club v. EPA, 479 F.3d 875 (2007) (Brick MACT).
Also, EPA may decide itself to

reconsider a rule based on existence of such new information (i.e.,
initiate reconsideration sua sponte). See 72 FR at 76553 (December 20,
2006). EPA essentially adopted that course here, providing notice and
opportunity for public comment as required by section 307(d)(7)(B)
(including a comment period ultimately extended to two months (see 72
FR 59067 (October 18, 2007). However, to make explicit that this action
is part of a reconsideration process, EPA is including its responses to
comment here as part of the reconsideration process already initiated
for the Hazardous Waste Combustor MACT rule.\63\ Final edited versions
of the various support documents are also included in the public
docket.
---------------------------------------------------------------------------

    \63\ EPA also does not believe any commenters were prejudiced by
the procedure EPA adopted, since all the commenters had notice of
EPA's action, and had ample time to submit comments, of which they
availed themselves. In addition, EPA provided notice to the general
public by means of publication in the Federal Register so any
interested person could respond.
---------------------------------------------------------------------------

    With one exception, all commenters to the September 2007 notice
supported EPA's analysis of the standards and did not suggest any
changes to that analysis. The one adverse commenter was Earthjustice
(on behalf of Sierra Club), which submitted extensive comments raising
various challenges. Earthjustice, however, did not contest EPA's main
premise: sources which emit more hazardous air pollutant (HAP) over
time than other sources (e.g., those with lower emissions in single
tests) do not have to be regarded as best performing, and this holds
true for those higher-emitting sources which may emit less HAP in a
single snapshot test. 72 FR at 54877. EPA set out at length in the
October 2005 rule and the September 2007 notice why it believes it
identified as best performers sources emitting the lowest amount of HAP
over time and reasonably estimated their levels of performance. Most of
the responses below deal with the issue of the reasonableness of this
analysis.
    Before addressing these specifics, we first address certain general
points. EPA demonstrated in both the preamble to the final rule and in
the September notice that the commenter's preferred approach for the
existing source floor of taking the average of the lowest emitting
sources in single tests did not properly characterize these sources'
performance because it ignored their short- and long-term variability
and thus their performance over time. The commenter now maintains that
even if this is true, it is irrelevant because EPA must still show that
the sources the Agency identified as best are in fact best performers.
Although EPA must of course provide a reasoned explanation justifying
its selection of best performers and their level of performance, EPA
believes it is clear on this record that one cannot presume that
sources with lowest HAP emission in single tests are best performers,
or presume that single snapshot performance test information is an
adequate representation of sources' actual performance over either
short or long time periods. A further consequence, as explained in the
following paragraph, is that whatever methodology is utilized for
identifying best performing sources necessarily involves some type of
estimate as to sources' performance and that the starting point for
such estimates need not be sources with lowest HAP emissions in single
tests.
    Earthjustice, however, seizes on EPA's conclusion that sources
rejected by EPA as best performers ``likely'' perform worse over time,
calling this unwarranted speculation, and suggests more data-gathering
to develop a legally mandated quantum of proof (e.g., Earthjustice's
Comments pp. 1, 2, 8; docket item EPA-HQ-OAR-2004-0022-0613). As the
commenter is aware, however, no reliable quantification of performance
over time is now possible (except for particulate matter emissions from
sources equipped with fabric filters (see 72 FR at 54879)) because
continuous emission monitors for HAP do not exist, or for HAP for which
CEMS are just beginning to be implemented for HWCs, there are too few
data to evaluate sources' performance. Long-term performance of sources
for HAP therefore are necessarily estimates. EPA's conclusion that
sources it selected as best performers ``likely'' emit less HAP over
time is an accurate reflection that definitive proof (i.e., day-in,
day-out quantified performance) is impossible in the absence of
continuous emission monitoring results. More data collection would
yield more snapshot results, so long-term performance would still have
to be estimated.\64\ However, the record demonstrates that EPA's
conclusions are not mere speculations, but rather are supported by
sound evidence and are consequently reasonable. Mossville Environmental
Action Now v. EPA (Mossville), 370 F. 3d at 1240-41 (D.C. Cir. 2004)
(summarizing case law that EPA may use estimates to assess performance
of best-performing sources, and stating further that courts will accept
these estimates if they have a reasoned basis).
---------------------------------------------------------------------------

    \64\ However, in this rule, EPA has carefully compiled and
studied data from different tests from lowest emitting sources in
single tests to best estimate these sources' long-term performance.
---------------------------------------------------------------------------

    Finally, Earthjustice repeats earlier comments that because sources
maximize operating parameters when they conduct compliance tests in
order to obtain an ample compliance margin, compliance tests already
account for total operating variability. However, as explained in the
rulemaking, compliance tests can only account for controllable
operating variability, and there are numerous uncontrollable factors
that result in short- and long-term variability not accounted for in
compliance tests. 70 FR at 59439 (October 12, 2005). The record shows
that in virtually every case when comparisons with other test
conditions are possible, lowest emitters in one compliance test emitted
more HAP in other tests.\65\ Indeed, in most of the comparisons, the
sources emitted more than their estimated performance including run-to-
run variability (which we refer to as UPL99).\66\ Id.\ 67\ Another
example, as discussed above, is the Ash Grove Chanute source, where the
source in later tests emitted more particulate matter than projected by
EPA even after adjusting the source's initial test results to account
for run-to-run and test-to-test variability. This empirical
demonstration shows that lowest emitting sources in single tests can
emit more HAP over time, and that the amounts emitted routinely can
exceed even their estimated short-term variability or total
variability. Necessarily, the demonstration also shows that the single
test condition measurements do not fully encompass these sources'
actual variability. EPA thus correctly concluded that run-to-run and
test-to-test variability--short-term and long-term variability over and
beyond performance measured in a single stack test--are real and
appreciable, and consequently an

element of sources' performance. See Technical Support Document
(``TSD'') Vol. III, sections 16.3 to 16.6, 17.2 and 17.3.\68\
---------------------------------------------------------------------------

    \65\ See memorandum from Bob Holloway to docket entitled
``Analysis of Available Performance Data from Best Performing
Sources'', September 8, 2008.
    \66\ The UPL99 means the 99th percentile upper prediction limit
and is an estimate of the value that the source would achieve in 99
of 100 future tests if it could replicate the operating conditions
of the compliance test. 70 FR at 59437 (October 12, 2005).
    \67\ The commenter challenged EPA's statements, maintaining that
these data do not show which sources are the best performers. See,
e.g. Earthjustice's comments p. 3. EPA developed these data to show
that the commenter's argument that test conditions already account
for all of sources' operating variability ``and then some''
(Earthjustice's comments p. 4) is demonstrably incorrect, and that
an approach of averaging snap shot emission tests--even after
adjusting results to account for run-to-run variability, still does
not fully account for sources' full operating variability--i.e.,
their performance over time.
    \68\ USEPA, ``Technical Support Document for HWC MACT Standards,
Volume III: Selection of MACT Standards'', (TSD Vol. III) September
2005. Unless otherwise specified, all TSD references in this section
of the notice are to this document, which is available in the docket
to the rule.
---------------------------------------------------------------------------

A. Standards for Particulate Matter

1. Standards for Incinerators, Cement Kilns, Lightweight Aggregate
Kilns, and Solid Fuel Boilers
    EPA has carefully reviewed all of its data for particulate matter
and concluded, with certain exceptions, that the current standards
require some revision (in some cases due to record correction issues
rather than to issues related to section 112(d)(3) and the Brick MACT
opinion).\69\ The exceptions are the new source particulate matter
standards for incinerators, cement kilns (see also section III.E
above), and lightweight aggregate kilns, and the particulate matter
standards for existing and new solid fuel boilers. For these standards,
EPA believes that it properly assessed which sources are best
performing and reasonably estimated their level of performance. EPA
also has previously indicated why more stringent, beyond-the-floor
standards are or are not achievable for these source categories. See 71
FR at 14670; TSD Vol. III, sections 10.3.4, 12.3.4, 14.3.2 and 14.3.4.
---------------------------------------------------------------------------

    \69\ With respect to standards for particulate matter for
incinerators, for example, EPA is concerned that the database
includes certain types of specialty chemical demilitarization
operations where metals are not volatilized within the common pool
of incinerators (see also n. 72 below with respect to high and low
volatility metals emitted by incinerators). With respect to
particulate matter emitted by cement kilns, further study of
operating conditions of one of the sources classified as a best
performer may require reassessment of that source's performance.
---------------------------------------------------------------------------

2. Standards for Liquid Fuel Boilers
    EPA believes that the particulate matter standard for existing and
new liquid fuel boilers requires revision for the reasons discussed in
the September 2007 notice. 72 FR at 54880.

B. Standards for Semivolatile Metals and Low Volatile Metals

1. Standards for Incinerators and Solid Fuel Boilers
    EPA selected as best performers for semivolatile (lead and cadmium,
or SVM) and low volatile (arsenic, beryllium and chromium, or LVM) HAP
metals the sources with the best combination of hazardous waste
feedrate control of the respective metals and best system removal
efficiency (generally, most efficient emission controls). EPA continues
to believe that these sources will emit the least SVM and LVM over time
since they will have the least long-term variability. 72 FR 54880-881.
Comparative test data support this conclusion. Sources with lower SVM
and LVM emissions in single tests either have had emissions in historic
tests that are higher than the emissions of the sources EPA identified
as best performing, can reasonably be projected to emit more than the
EPA-identified best performers based on their historic performance
(historic system removal efficiency applied to amount fed in
performance test would result in higher emissions than EPA-identified
best performers),\ 70\ or are simply unrepresentative.\71\
---------------------------------------------------------------------------

    \70\ For example, incinerator source 327, which in a single test
condition had a UPL99 for SVM which is 25 times less than the
highest-emitting of the best-performing sources in the MACT pool,
would emit over three times more SVM than that highest-emitting best
performer assuming it fed the same amount of metals as in its
compliance test but removed them from its emissions at the
efficiency demonstrated in other of its historic compliance tests.
TSD Vol. III, Table 17.6 and App. E, Table SF-INC-SVM.
    \71\ Certain of the sources (incinerator sources 494 and 3011)
are specialty operations feeding large chunks of metal contaminated
with trace organics (e.g., inert materials, bulk explosives, metal
waste). These metals generally are not emitted because of the large
particle size of the feed--SVM are not volatilized and LVM are not
entrained in the combustion gas. These operations are not
representative of usual incineration, where metals are present in
the feed as organometallic compounds or metal dispersed in an
organic or aqueous liquid such that SVM is generally volatilized and
LVM is generally entrained in the combustion gas. USEPA, ``Technical
Support Document for HWC MACT Standards, Volume II: HWC Data Base'',
(TSD Vol. II) September 2005, App. B in data sheet ``inc-svm.xls'',
App. C in data sheets ``494.xls'' and ``3011.xls''.
---------------------------------------------------------------------------

    Earthjustice states that such comparisons are unwarranted because
there is no reason to assume a source would operate with a worse
efficiency than in their compliance test. Earthjustice Comments p. 9.
Removal efficiency is, however, a key aspect of normal operating
variability. Contrary to Earthjustice's suggestion, a source does not
choose to operate with worse control efficiency. Control equipment
simply does not operate uniformly day-in, day-out. That variation in
performance affects emissions and is part of a source's operating
performance. Moreover, EPA carefully examined whether the sources were
properly designed and operated during the comparative test conditions
and determined that they were. TSD Vol. III pp. 17-13 to 16. The
commenter presents no information questioning that analysis.
    Earthjustice also states repeatedly that EPA selected this floor
methodology for SVM and LVM to assure that all sources could meet MACT
floors, citing to 70 FR at 59442. E.g., Earthjustice's Comments p. 11.
EPA never made such a statement, and the record does not support the
commenter's assertion. For example, 60% (13 of 22) of incinerators had
emissions in the relevant test conditions (those considered in
establishing the standard) that were higher than the SVM floor, and
over 70% (19 of 26) had higher LVM emissions in those test conditions.
TSD Vol. III, App. E, Tables SF-INC-SVM and SF-INC-LVM.
2. Standards for Cement Kilns, Lightweight Aggregate Kilns, and Liquid
Fuel Boilers (Low and High Heating Value Subcategories)
    EPA has determined that these standards should be re-examined and
not defended in litigation.
3. Alternative to the Particulate Matter Standard for Liquid Fuel
Boilers
    EPA promulgated alternatives to the particulate matter standard for
each subcategory of liquid fuel boilers (i.e., high and low heating
value subcategories) under Sec.  63.1217(e). EPA believes that these
alternatives require revision for the reasons discussed in the
September 2007 notice. 72 FR at 54882.
4. Alternative Metal and Total Chlorine Standards for Cement Kilns and
Lightweight Aggregate Kilns
    EPA promulgated alternatives to the mercury, semivolatile volatile
metals, low volatile metals, and total chlorine standards for cement
and lightweight aggregate kilns. See alternatives under Sec.
63.1206(b)(9), (b)(10), and (b)(15). EPA has determined that these
alternatives should be re-examined and not defended in litigation. 72
FR at 54882-83.

C. Standards for Total Chlorine

1. Standards for Incinerators, Cement Kilns, Lightweight Aggregate
Kilns, Liquid Fuel Boilers, and Solid Fuel Boilers
    All comments on these source categories are already addressed
either in the final agency action on reconsideration (issue of
analytical bias with stack sampling method for total chlorine, see
section III.B of this preamble above), or in earlier parts of this
rulemaking. TSD Vol. III, Chapter 19. With respect to the standards for
total chlorine for existing and new cement kilns and liquid fuel
boilers (high heating value subcategory) and new lightweight aggregate
kilns, EPA believes these standards require revision

for the reasons signaled in the September 2007 notice. 72 FR at 54883.
Finally, with respect to the standards for total chlorine for liquid
fuel boilers (low heating value subcategory), EPA has determined that
these standards should also be re-examined and not defended in
litigation for reasons discussed in section IV.F.3 below.
2. Hydrochloric Acid Production Furnaces
    EPA adheres to the analysis set out in the September 2007 notice:
The pool of best performing sources are those emitting the least total
chlorine and EPA has discretion to express these sources' performance
in terms of percent reduction. Sections 112(i)(5)(A) and 129(a)(4) of
the Act support this conclusion (a point not addressed by Earthjustice
in its comments). See 72 FR at 54884/2.
    Earthjustice states that standards expressed in terms of control
efficiency are not ``emission standards'' under the Act. This is
incorrect. An ``emission standard'' includes ``a requirement * * *
which limits the quantity, rate, or concentration of emissions of air
pollutants on a continuous basis.'' CAA section 302(k). Standards
requiring HAP reduction of a given percent limit the emission quantity,
rate, and (in any realistic scenario) concentration of the HAP and so
falls squarely within the statutory definition.
    Earthjustice stresses the following language from Brick MACT: ``EPA
cannot circumvent Cement Kiln's holding that section 7412(d)(3)
requires floors based on the emission level actually achieved by the
best performers (those with the lowest emission levels), not the
emission level achievable by all sources * * *''. EPA is not
establishing a floor for these sources based on an emission level
achievable by all sources (six of ten sources in the category had test
conditions with higher (less efficient) performance than the MACT floor
(see TSD Vol. III, App. E, Table SO-HCLPF-CL)), or otherwise looking to
performance of sources other than the lowest emitting to establish this
floor.

D. Standards for Dioxins/Furans

1. Standards for Incinerators
    a. Dry Air Pollution Control Device or Waste Heat Boiler
Subcategory. The commenter challenges establishing the floor at the
level of the 2002 Interim Standard. EPA did so because the average of
the performance of the top 12 percent of lowest emitting sources was
slightly higher than that level, accounting for run-to-run (short-term)
variability. TSD Vol. III, App. C, Table E-INCDWHB-DF. Under these
circumstances, the Interim Standard is the best emissions information
available to EPA as to the performance of the lowest emitting sources.
As in Mossville, EPA may establish a MACT floor at a regulatory level
when the best performing sources performance over time (i.e.,
accounting for variability) ``barely satisfied'' the regulatory limit.
EPA thus disagrees with the commenter that the floor cannot be
established at the level of the Interim Standard because the Interim
Standard is a level sources are required to meet, not the lowest level
achieved.
    The commenter also continues to dispute that incinerators with dry
air pollution control devices or waste heat boilers are a separate
subcategory for purposes of a dioxin/furan standard. As explained at 69
FR 403 (January 5, 2004), subcategorization on the basis of air
pollution control technology is not legally permissible. But in this
case, dry air pollution control devices and waste heat boilers do not
capture dioxins but form them, making this a different type of process
for purposes of a dioxin/furan standard.
    b. Wet Air Pollution Control Device or No Air Pollution Control
Device Subcategory. EPA established the floor at the level of the
Interim Standard because the lowest emitting sources in single test
conditions had dioxin emissions in other tests much higher than the
Interim Standard. EPA's analysis was strongly influenced by comparative
test data from incinerator source 3016, which appeared to show multiple
orders of magnitude operating variability. EPA has since re-reviewed
all of the test data for this source and has found that the amount of
variability from this source was overstated because results of one of
the three test runs in test condition 2 were inadvertently omitted from
the calculation. Remaining sources demonstrate operating variability,
but not enough to justify retention of the Interim Standard as the MACT
floor. EPA therefore does not intend to defend this standard in
litigation, and will re-examine it.
2. Standards for Cement Kilns and Lightweight Aggregate Kilns
    EPA believes it erred in the way in which it assessed the relative
stringency of the calculated floors and the 2002 Interim Standards
(i.e., the dioxin/furan standards promulgated under Sec. Sec.  63.1204
and 63.1205) so that the promulgated standard is expressed incorrectly.
3. Standards for Liquid Fuel Boilers
    For existing liquid fuel boilers-dry air pollution control
subcategory, the commenter again challenges whether sources with dry
air pollution control devices can be categorized separately from other
boilers for purposes of assessing dioxin/furan performance. This point
is addressed in section IV.D.1.a above. With respect to the remaining
dioxin/furan standards (new source liquid fuel boilers-dry air
pollution control subcategory and existing and new source liquid fuel
boilers-wet or no air pollution control system subcategory), EPA
believes that these standards require revision for reasons discussed in
the September 2007 notice. 72 FR at 54886.
4. Standards for Solid Fuel Boilers and Hydrochloric Acid Production
Furnaces
    As discussed in the September 2007 notice, EPA believes that these
dioxin/furan standards require revision. 72 FR at 54886.

E. Standards for Non-Dioxin/Furan Organic HAP

    EPA has determined that these standards--carbon monoxide and
hydrocarbons, as surrogates for control of non-dioxin/furan organic
HAP--should be re-examined and not defended in litigation.

F. Standards for Mercury

1. Standards for Incinerators
    The commenter challenges use of the 2002 Interim Standard as the
standard for mercury for existing sources. EPA did so because the
average of the mercury emissions from the best performing sources under
any of the possible ranking methodologies was higher than the Interim
Standard. 72 FR at 54887. The commenter states that this is
impermissible (although any alternative would lead to a less stringent
standard than the one EPA promulgated). The commenter further states
that under Mossville, regulatory levels can constitute a floor if there
is a factual showing that best performers emit at a level close to that
regulatory level. Earthjustice's Comments p. 24. EPA agrees. That
factual showing exists here: The best performers are emitting at a
level even higher than the regulatory level (reflecting performance
before the Interim Standard took effect). The regulatory level thus is
a reasonable measure of best performance. Mossville, 370 F. 3d at 1240-
41.

2. Standards for Cement Kilns and Lightweight Aggregate Kilns
    As discussed in the September 2007 notice, EPA believes that the
mercury standards for existing and new cement kilns require revision.
72 FR at 54887-88. With respect to the mercury standards for existing
and new lightweight aggregate kilns, EPA has determined that these
standards should be re-examined and not defended in litigation.
3. Standards for Liquid Fuel Boilers
    In the promulgated rule, EPA had subcategorized liquid fuel boilers
based on thermal content of hazardous waste burned and established
separate standards for high heating value and low heating value
boilers. EPA has determined not to defend the high heating value
subcategory standards for the reasons stated at 72 FR at 54888. This
decision also necessitates revision of the mercury standards for the
low heating value subcategory because all sources' data will now be in
a common pool--i.e., There will no longer be high and low heating value
subcategories. See also preamble discussion at III.A above.
4. Standards for Solid Fuel Boilers
    The commenter again raises the issue of consideration of and means
of calculating run-to-run variability. EPA's response is at 70 FR
59438-40. EPA continues to believe that these standards are based on
the average performance of the best performing sources and that EPA has
reasonably ascertained that level of performance.

G. Normalization

    Ordinarily, one cannot meaningfully compare performance of
different entities without providing a common metric of comparison.
Miles per gallon is an example, whereby meaningful comparison of fuel
economy can be made for vehicles traveling different distances. Stating
that two vehicles traveled 200 and 300 miles respectively says nothing
about which has the better fuel economy performance. The commenter
states nonetheless that normalization is impermissible under section
112(d)(3). EPA continues to disagree. Section 112(d)(3) does not
address the issue of whether sources' performance can be expressed and
compared in normalized units, so the commenter's argument that the
approach is forbidden as a matter of law appears incorrect. See also 70
FR at 59451, 72 FR at 54888, and National Lime II, 233 F. 3d at 631,
632 (rejecting Chevron I argument that section 112(d)(3) requires EPA
to establish MACT floors ``at the lowest recorded emission level for
which it has data'' because ``[s]ection [112's] additional phrase says
nothing about what data the Agency should use to calculate emission
standards''). EPA's interpretation is moreover reasonable, since
normalizing emission results allows a meaningful way to determine which
performers are better, the very purpose of section 112(d)(3).

V. What Other Rule Provisions Are Being Amended or Clarified?

    We are making several corrections to 40 CFR part 63, Subpart EEE.
In addition, we are clarifying the particulate matter standard for
cement kilns.

A. What corrections are we making?

1. Revisions to Sec.  63.1207(d)
    The last sentences under Sec.  63.1207(d)(4)(i) and (ii) refer to
demonstrating compliance with ``the replacement standards promulgated
on or after October 12, 2005.'' This regulatory language is confusing.
We are revising these paragraphs to clarify that the ``replacement''
standards are the standards under Sec. Sec.  63.1219, 63.1220, and
63.1221. Accordingly, we are amending Sec.  63.1207(d)(4).
2. Revisions to Sec.  63.1207(m)
    Section 63.1207(m) waives the performance test if the HAP metals or
total chlorine feed rate (after conversion to an exhaust gas
concentration using continuously monitored exhaust gas flow data) is
less than the applicable emission rate, assuming that 100 percent of
the constituent in the feed is emitted from the combustion unit. This
provision applies to emission standards expressed either on a
volumetric flow rate of exhaust gas basis (i.e., [mu]g/dscm or ppmv) or
on a hazardous waste thermal concentration basis (i.e., pounds of HAP
emitted attributable to the hazardous waste per million Btu of heat
input from the hazardous waste).
    The performance test waiver provisions under Sec.  63.1207(m)(1),
which addresses emission standards expressed on a volumetric flow rate
of exhaust gas basis, currently state that a source is ``deemed to be
in compliance with an emission standard * * * if the twelve-hour
rolling average maximum theoretical emission concentration (MTEC) * * *
does not exceed the emission standard.'' The twelve-hour rolling
average requirement under Sec.  63.1207(m)(1) was appropriate when this
provision was codified in 1999 because all the metals and total
chlorine feedrate limits were specified as twelve-hour rolling average
limits. 64 FR at 52967, 53060-62 (September 30, 1999). However, when we
finalized standards for liquid and solid fuel boilers in 2005, twelve-
hour rolling average limits were not required for all standards. See,
for example, the rolling average requirements under Sec.
63.1209(n)(2)(v). Moreover, we also finalized in the 2005 rule a new
provision that allows sources to use shorter averaging periods than
those specified in the rule because shorter averaging periods result in
more stringent control of the parameter. Section 63.1209(r).\72\ EPA
inadvertently failed to revise Sec.  63.1207(m)(1) to remove the
twelve-hour rolling average requirement in the October 2005 rule.
Today, we are correcting that inadvertent error. Accordingly, we are
revising Sec.  63.1207(m)(1)(i).
---------------------------------------------------------------------------

    \72\ USEPA, ``Technical Support Document for HWC MACT Standards,
Volume IV: Compliance with the HWC MACT Standards'', September 2005,
Section 2.2.6.
---------------------------------------------------------------------------

3. Revisions to Sec.  63.1220(a)(2) and (b)(2)
    In an April 8, 2008 rule, we revised the mercury standards under
Sec.  63.1220(a)(2) and (b)(2) by clarifying that a source must comply
with the maximum concentration of mercury in the hazardous waste
limitation and either a hazardous waste maximum theoretical emission
concentration feed limit or stack gas concentration limit. 73 FR at
18972 (April 8, 2008) and 71 FR at 52641 (September 6, 2006). However,
the mercury standards issued on April 8 were not amended correctly,
which resulted in the maximum theoretical emission concentration feed
limit requirement being incorrectly repeated under Sec.
63.1220(a)(2)(iii) and (b)(2)(iii). Today, we are removing Sec.
63.1220(a)(2)(iii) and (b)(2)(iii), which paragraphs were correctly and
previously incorporated under Sec.  63.1220(a)(2)(ii) and (b)(2)(ii),
respectively.

B. Clarification of the PM Standard for Cement Kilns

    In their comments on the proposed rule, the Ash Grove Cement
Company (Ash Grove) and Cement Kiln Recycling Coalition (CKRC) each
sought clarification regarding the portion of the new source
particulate matter (PM) standard specifying that the prescribed
concentration limit be ``corrected to 7% oxygen.'' \73\ Ash Grove
raised its point in the context of its plans to build a new cement kiln
at its Foreman, Arkansas plant. The plant will be configured with an
energy-saving design in which combustion gases from the kiln and

non-combustion gases from the clinker cooler would be combined prior to
passing through the in-line raw mill, the PM control device, and the
emission stack. The purpose of this configuration is to recover heat
from the clinker cooler exhaust to aid in drying the raw feed in the
in-line raw mill. CKRC endorsed Ash Grove's comments and sought the
clarification more generically with respect to member companies' plans
to employ similar energy-saving engineering configurations in new kiln
designs.
---------------------------------------------------------------------------

    \73\ See docket items EPA-HQ-OAR-2004-0022-0538 (p. 5) and -0541
(p. 2).
---------------------------------------------------------------------------

    Ash Grove and CKRC noted in their comments that, under their
proposed design, the PM standard would be unattainable if the facility
were required to correct the combined gas stream to 7 percent oxygen.
The commenters acknowledged that the oxygen correction procedure is a
necessary component of a concentration-based emission standard because
it prevents a facility from meeting the standard by simply diluting the
regulated, dust-laden gas stream with clean air. In this case, however,
Ash Grove proposes to combine two regulated, dust-laden gas streams for
legitimate energy recovery purposes. In their comments, Ash Grove and
CKRC asked EPA to clarify that, in the Ash Grove design, the oxygen
associated with the clinker cooler exhaust does not represent dilution
air and should not be included in the oxygen correction calculation
when determining compliance with the PM standard of the Subpart EEE
MACT standard. That is, the oxygen contribution in the combined stream
attributable to the clinker cooler gas should be ``subtracted'' when
assessing compliance with the Subpart EEE standard.
    The Agency acknowledges that combining the two regulated gas
streams, as proposed in the Ash Grove design, is not impermissible
dilution that the oxygen correction factor of Subpart EEE is meant to
prevent.\74\ We also recognize that applying the oxygen correction
factor to the combined gas stream in this case would be tantamount to
requiring a clinker cooler PM emission rate of zero, which is not
physically possible.
---------------------------------------------------------------------------

    \74\ See also memorandum entitled ``Potential Environmental
Benefits of Combining Kiln Combustion and Clinker Cooler Gas,''
dated September 15, 2008, in the docket to the rule.
---------------------------------------------------------------------------

    Facilities which opt to combine their emissions streams, for heat
recovery or other legitimate purposes, are referred to the Agency's
long standing compliance policy. In the case where two (or more)
separately-regulated streams are physically combined in common duct
work prior to control, they are evaluated for compliance with the more
stringent standard; or, in the case where two (or more) separately
regulated streams are physically combined for a legitimate process
purpose, they should be evaluated for compliance with the emission
standard of the affected facility from which the gases are
discharged.\75\ These policies were developed specifically for
application of the opacity standard, where once two (or more) gas
streams are combined, it is not possible to evaluate them separately.
---------------------------------------------------------------------------

    \75\ See letter from Michael S. Alushin, USEPA, to Evelyn
Rodriquez Cintron, Commonwealth of Puerto, entitled ``Opacity Limit
for Commingled Emission Streams,'' dated March 24, 2005; letter from
Michael S. Alushin, USEPA, to Francis Torres, Torres and Garcia
P.S.C., entitled ``Opacity Limit for Commingled Emission Streams,''
dated March 24, 2005; memorandum from John B. Rasnic, USEPA, to
USEPA Regional Directors and Regional Counsels, entitled ``Opacity
Limitation for In-line Portland Cement Plants,'' dated September 7,
1996; and memorandum from John B. Rasnic, USEPA, to USEPA Regional
Directors and Regional Counsels, entitled ``Opacity Limitations for
the Portland Cement Plant New Source Performance Standards,'' dated
April 6, 1995. These documents are available on the Agency's
Applicability Determination Index Web site at http://cfpub.epa.gov/
adi/.
---------------------------------------------------------------------------

    In the case of streams combined from the clinker cooler and the
kiln, where separate PM emission standards apply, facilities may submit
site-specific compliance procedures to eliminate the effect of the
clinker cooler exhaust gas on the Subpart EEE oxygen correction
calculation. Any method proposed must be evaluated against the
standards forbidding circumvention at 40 CFR 63.4(b) and against the
requirements to provide means for accurate sampling of applicable
emission standards at 40 CFR 63.7(d). Any claims made under these
provisions should be submitted to the appropriate delegated authority
for site-specific implementation.
    Two commenters raised procedural objections to the Ash Grove and
CKRC requests for clarification on this oxygen correction issue.\76\
These comments appear to be based on the premise that EPA legally would
be required to publish a new notice of proposed rulemaking before
clarifying the issue. We disagree that such a new notice is necessary
in situations such as this, where it is merely responding to requests
for clarification and the clarification is fully consistent with the
plain text of the governing regulation (as explained above). EPA also
provided actual notice to all commenters and invited reply comments on
the issue, both a permissible means of giving notice and one which
removes any possible prejudice to persons receiving such notice. See
Small Refiners lead Phase-Down Task Force v. EPA, 705 F. 2d 506, 540,
549 (D.C. Cir. 1983).
---------------------------------------------------------------------------

    \76\ See docket items EPA-HQ-OAR-2004-0022-0548 and -0579.
---------------------------------------------------------------------------

VI. Summary of Environmental, Energy, and Economic Impacts

A. What facilities are affected by the final amendments?

    A description of the affected source categories is discussed in the
April 20, 2004 proposed rule. 69 FR at 21207-09. In the October 12,
2005 final rule, we estimated that there are a total of 267 sources
subject to the rule requirements, including 116 boilers (104 liquid
fuel boilers and 12 solid fuel boilers), 92 on-site incinerators, 25
cement kilns, 15 commercial incinerators, nine lightweight aggregate
kilns, and ten hydrochloric acid production furnaces. 70 FR at 59530.
While we are aware of several changes to the universe of operating
hazardous waste combustors, these estimates remain a reasonable
representation of existing operating sources.\77\
---------------------------------------------------------------------------

    \77\ Given the small size of the lightweight aggregate kiln
category, it is worth mentioning that the Solite Cascade plant in
Virginia has ceased operations. Prior to closure, this plant
operated four kiln sources. See also 70 FR at 59426.
---------------------------------------------------------------------------

    Today's action also revises the particulate matter standards for
new cement kilns and new incinerators. Based on comments received in
response to the March 23, 2006 proposed rule, EPA does not believe that
there are any cement kiln or incinerator sources that are currently
complying with the new source particulate matter standards. In
addition, EPA estimates that the majority of, if not all, sources that
will be subject to the revised new source standards over the next five
years will not be greenfield sources, but sources that upgrade at
existing facilities (e.g., a new state-of-the-art preheater/precalciner
kiln to replace one or more existing wet process cement kilns).\78\
---------------------------------------------------------------------------

    \78\ Examples of cement plants pursuing plant modernizations can
be found in several docket items, including EPA-HQ-OAR-2004-0022-
0383 (pg. 4), EPA-HQ-OAR-2004-0022-0521 (Attachments F, G, and H),
and EPA-HQ-OAR-2004-0022-0604 (pg. 8).
---------------------------------------------------------------------------

B. What are the air quality impacts?

    For existing sources, we estimate that there will be no air
emission impacts as the result of this rule. This is because today's
rule is not revising any of the emission standards promulgated in the
October 12, 2005 final rule. Furthermore, the final amendments to the
compliance and monitoring provisions will not affect the current level
of control at existing facilities subject to the rule.

    For new sources, we are promulgating revised particulate matter
standards for cement kilns and incinerators. The revised particulate
matter standards for new cement kilns and new incinerators are 0.0069
gr/dscf (an increase from 0.0023 gr/dscf) and 0.0016 gr/dscf (an
increase from 0.0015 gr/dscf), corrected to 7 percent oxygen,
respectively. For a new preheater/precalciner cement kiln with an
average gas flow rate of 250,000 dry standard cubic feet per minute
(dscfm) emitting particulate matter at 0.0069 gr/dscf, we estimate
emissions of particulate matter would be approximately 59 tons per
year. A similarly designed new cement kiln emitting particulate matter
at 0.0023 gr/dscf would emit approximately 20 tons per year. And for an
incinerator with an average gas flow rate of 25,000 dscfm, we estimate
that particulate matter emissions would increase by approximately 170
pounds per year per new incinerator if it were emitting particulate
matter at 0.0016 gr/dscf as compared to 0.0015 gr/dscf. However, as
discussed in section VI.A above, we do not believe that there are any
cement kiln or incinerator sources that are currently in operation and
complying with the particulate matter standards for new sources. Thus,
we estimate that there will be no actual increases in particulate
matter emissions at currently operating facilities as a result of
today's action. Moreover, we believe that the majority of new cement
kiln and incinerator sources over the next five years will be sources
that upgrade at existing facilities (e.g., an older existing source
replaced by a new source). See discussion in section VI.A above. For
these facilities, particulate matter emissions will actually decrease
from current levels because the new source standards finalized today
are more stringent than the standards for existing sources. For
example, the reduction in particulate matter emissions for a new
preheater/precalciner cement kiln with an average gas flow rate of
250,000 dscfm emitting particulate matter at 0.028 gr/dscf (the
existing source standard) as compared to 0.0069 gr/dscf (the new source
standard) is approximately 180 tons per year.\79\
---------------------------------------------------------------------------

    \79\ USEPA, ``Technical Support Document for HWC MACT Standards:
Petitions for Reconsideration Support Document,'' October 2008,
Section 2.3.3.
---------------------------------------------------------------------------

C. What are the water quality, solid waste, energy, cost and economic
impacts?

    This rule will result in negligible impacts to water quality, solid
waste, and energy requirements from levels presented in the October 12,
2005 rule. 70 FR at 59529. We likewise estimate minimal cost and no
economic impacts (as compared with the total costs and economic impacts
that were calculated for the October 12, 2005 rule).\80\
---------------------------------------------------------------------------

    \80\ USEPA, ``Technical Support Document for HWC MACT Standards:
Petitions for Reconsideration Support Document,'' October 2008,
Section 7.
---------------------------------------------------------------------------

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because it raises
novel legal or policy issues. Accordingly, EPA submitted this action to
the Office of Management and Budget (OMB) for review under EO 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action.
    In addition, this final rule is not considered to be an
economically significant action because the social costs for this rule
are significantly below the $100 million threshold established for
economically significant actions. This is because this final rule does
not have any significant new regulatory requirements as compared to the
requirements discussed in the October 12, 2005 final rule, a rule with
estimated total social costs of $22.6 million per year. See 70 FR at
59537.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
Today's rule amendments consist of new compliance options,
clarifications, and corrections to the existing rule that impose no new
net information collection requirements on industry or EPA. However,
the Office of Management and Budget (OMB) has previously approved the
information collection requirements contained in the existing
regulations (see 40 CFR part 9) under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control
number 2050-0171, EPA ICR number 1773.08. The OMB control numbers for
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any ``not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.''
    After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. As discussed
in the October 12, 2005 final rule (of which today's final rule
amends), we determined that hazardous waste combustion facilities are
not owned by small governmental jurisdiction or nonprofit
organizations. 70 FR at 59538. Therefore, in that rule only small
businesses were analyzed for small entity impacts (a small entity was
defined either by the number of employees or by the dollar amount of
sales). We found that few--a total of eight out of 145 facilities--of
the sources affected by the October 2005 rule were owned by small
businesses. Finally, our analysis indicated that none of these
facilities are likely to incur annualized compliance costs greater than
one percent of gross annual corporate revenues. Cost impacts were found
to range from less than 0.01 percent to 0.46 percent of annual gross
corporate revenues. 70 FR at 59538.
    Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities. We note that
today's final rule does not alter the number or type of small
businesses that were discussed in the October 12, 2005 final rule. In
addition, this rule revises or clarifies several compliance provisions
that increases flexibility and improves implementation.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.

EPA is taking this action to make certain amendments, corrections, and
clarifications to the October 12, 2005 final rule (70 FR 59402 and
59538). Thus, this rule is not subject to the requirements of section
202 and 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. The amendments,
corrections, and clarifications made through this action contain no
requirements that apply to such governments, impose no obligations upon
them, and will not result in any expenditures by them or any
disproportionate impacts on them. This rule is not subject to section
203 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
    This final rule does not have federalism implications. The final
rule does not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. This rule makes
certain amendments, corrections, and clarifications to the October 12,
2005 final rule (70 FR 59402 and 59538). These final amendments and
clarifications do not impose requirements on State and local
governments. Thus, Executive Order 13132 does not apply to this rule.

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

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). Today's rule
amendments, corrections, and clarifications do not impose requirements
on tribal governments. They also have no direct effects on tribal
governments, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes. Finally, tribal
governments do not own or operate any sources subject to the Hazardous
Waste Combustor MACT rule. Thus, Executive Order 13175 does not apply
to this rule.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the Order
has the potential to influence the regulation. This final rule is not
subject to Executive Order 13045 because it is based solely on
technology performance. Furthermore, this final rule is not considered
``economically significant'' as defined under EO 12866.

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

    This rule is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)) because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that this
rule is not likely to have any adverse energy effects because energy
requirements will not be significantly impacted by the amendments,
corrections, and clarifications finalized by this action.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    The amendments, corrections, and clarifications finalized today do
not involve technical standards. Therefore, EPA did not consider the
use of any voluntary consensus standards.

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

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low income populations because it does not
affect the level of protection provided to human health or the
environment. The corrections and clarifications in today's rule will
not affect the current level of control at facilities subject to these
rules. In addition, for reasons discussed in Section VI above, we
estimate that the revised particulate matter emission standards for new
cement kilns and new incinerators will not result in any adverse or
disproportional health or safety effects on minority or low-income
populations. As a result, we believe our findings regarding Executive
Order 12898 published in the October 12, 2005 rule are not adversely
impacted by today's action. 70 FR at 59539.

K. Congressional Review

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major action'' as defined by 5 U.S.C.
804(2). This final rule will be effective on October 28, 2008.

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.

    Dated: October 16, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:

PART 63--NATIONAL EMISSIONS STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES

0
1. The authority citation for part 63 continues to read as follows:

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

0
2. Section 63.1206 is amended as follows:
0
a. By revising paragraph (a)(1)(ii)(B)(3).
0
b. By revising paragraphs (c)(8)(iii), (c)(8)(iv), and (c)(9).

Sec.  63.1206  When and how must you comply with the standards and
operating requirements?

    (a) * * *
    (1) * * *
    (ii) * * *
    (B) * * *
    (3) If you commenced construction or reconstruction of a cement
kiln after April 20, 2004, you must comply with the new source emission
standard for particulate matter under Sec.  63.1220(b)(7)(i) by the
later of October 28, 2008 or the date the source starts operations.
* * * * *
    (c) * * *
    (8) * * *
    (iii) Bag leak detection system corrective measures requirements.
The operating and maintenance plan required by paragraph (c)(7) of this
section must include a corrective measures plan that specifies the
procedures you will follow in the case of a bag leak detection system
alarm or malfunction. The corrective measures plan must include, at a
minimum, the procedures used to determine and record the time and cause
of the alarm or bag leak detection system malfunction in accordance
with the requirements of paragraph (c)(8)(iii)(A) of this section as
well as the corrective measures taken to correct the control device or
bag leak detection system malfunction or to minimize emissions in
accordance with the requirements of paragraph (c)(8)(iii)(B) of this
section. Failure to initiate the corrective measures required by this
paragraph is failure to ensure compliance with the emission standards
in this subpart.
    (A) You must initiate the procedures used to determine the cause of
the alarm or bag leak detection system malfunction within 30 minutes of
the time the alarm first sounds; and
    (B) You must alleviate the cause of the alarm or bag leak detection
system malfunction by taking the necessary corrective measure(s) which
may include, but are not to be limited to, the following:
    (1) Inspecting the baghouse for air leaks, torn or broken filter
elements, or any other malfunction that may cause an increase in
emissions;
    (2) Sealing off defective bags or filter media;
    (3) Replacing defective bags or filter media, or otherwise
repairing the control device;
    (4) Sealing off a defective baghouse compartment;
    (5) Cleaning the bag leak detection system probe, or otherwise
repairing the bag leak detection system; or
    (6) Shutting down the combustor.
    (iv) Excessive exceedances notification. If you operate the
combustor when the detector response exceeds the alarm set-point or the
bag leak detection system is malfunctioning more than 5 percent of the
time during any 6-month block time period, you must submit a
notification to the Administrator within 30 days of the end of the 6-
month block time period that describes the causes of the exceedances
and bag leak detection system malfunctions and the revisions to the
design, operation, or maintenance of the combustor, baghouse, or bag
leak detection system you are taking to minimize exceedances and bag
leak detection system malfunctions. To document compliance with this
requirement:
    (A) You must keep records of the date, time, and duration of each
alarm and bag leak detection system malfunction, the time corrective
action was initiated and completed, and a brief description of the
cause of the alarm or bag leak detection system malfunction and the
corrective action taken;
    (B) You must record the percent of the operating time during each
6-month period that the alarm sounds and the bag leak detection system
malfunctions;
    (C) If inspection of the fabric filter demonstrates that no
corrective action is required, then no alarm time is counted; and
    (D) If corrective action is required, each alarm shall be counted
as a minimum of 1 hour. Each bag leak detection system malfunction
shall also be counted as a minimum of 1 hour.
    (9) Particulate matter detection system requirements. You must
continuously operate a particulate matter detection system (PMDS) that
meets the specifications and requirements of paragraphs (c)(9)(i)
through (v) of this section and you must comply with the corrective
measures and notification requirements of paragraphs (c)(9)(vii) and
(viii) of this section if your combustor either: Is equipped with an
electrostatic precipitator or ionizing wet scrubber and you do not
establish site-specific control device operating parameter limits under
Sec.  63.1209(m)(1)(iv) that are linked to the automatic waste feed
cutoff system under paragraph (c)(3) of this section, or is equipped
with a baghouse (fabric filter) and you do not operate a bag leak
detection system as provided by paragraph (c)(8)(i)(B) of this section.
    (i) PMDS requirements.--(A) The PMDS must be certified by the
manufacturer to be capable of continuously detecting and recording
particulate matter emissions at concentrations of 1.0 milligrams per
actual cubic meter unless you demonstrate, under Sec.  63.1209(g)(1),
that a higher detection limit would routinely detect particulate matter
loadings during normal operations;
    (B) The particulate matter detector shall provide output of
relative or absolute particulate matter loadings;
    (C) The PMDS shall be equipped with an alarm system that will sound
an audible alarm when an increase in relative or absolute particulate
loadings is detected over the set-point;
    (D) You must install, operate, and maintain the PMDS in a manner
consistent with the provisions of paragraph (c)(9) of this section and
available written guidance from the U.S. Environmental Protection
Agency or, in the absence of such written guidance, the manufacturer's
written specifications and recommendations for installation, operation,
maintenance and quality assurance of the system.
    (1) Set-points established without extrapolation. If you establish
the alarm set-point without extrapolation under paragraph
(c)(9)(iii)(A) of this section, you must request approval from the
regulatory authority, in the continuous monitoring system test plan, of
the quality assurance procedures that will reasonably ensure that PMDS
response values below the alarm set-point correspond to PM emission
concentrations below those demonstrated during the comprehensive
performance test. Your recommended

quality assurance procedures may include periodic testing under as-
found conditions (i.e., normal operations) to obtain additional PM
concentration and PMDS response run pairs, as warranted.
    (2) Set-points established with extrapolation. If you establish the
alarm set-point by extrapolation under paragraph (c)(9)(iii)(B) of this
section, you must request approval from the regulatory authority, in
the continuous monitoring system test plan, of the quality assurance
procedures that will reasonably ensure that PMDS response values below
the alarm set-point correspond to PM emission concentrations below the
value that correlates to the alarm set-point.
    (E) You must include procedures for installation, operation,
maintenance, and quality assurance of the PMDS in the site-specific
continuous monitoring system test plan required under Sec. Sec.
63.1207(e) and 63.8(e)(3);
    (F) Where multiple detectors are required to monitor multiple
control devices, the system's instrumentation and alarm system may be
shared among the detectors.
    (G) You must establish the alarm set-point as a 6-hour rolling
average as provided by paragraphs (c)(9)(ii), (c)(9)(iii), and
(c)(9)(iv) of this section;
    (H) Your PMDS must complete a minimum of one cycle of operation
(sampling, analyzing, and data recording) for each successive 15-minute
period. You must update the 6-hour rolling average of the detector
response each hour with a one-hour block average that is the average of
the detector responses over each 15-minute block; and
    (I) If you exceed the alarm set-point (or if your PMDS
malfunctions), you must comply with the corrective measures under
paragraph (c)(9)(vii) of this section.
    (ii) Establishing the alarm set-point for operations under the
Documentation of Compliance. You must establish the alarm set-point for
operations under the Documentation of Compliance (i.e., after the
compliance date but prior to submitting a Notification of Compliance
subsequent to conducting the initial comprehensive performance test) of
an existing source as follows:
    (A) You must obtain a minimum of three pairs of Method 5 or 5I
data, provided in appendix A-3 to part 60 of this chapter, and PMDS
data to establish an approximate correlation curve. Data obtained up to
60 months prior to the compliance date may be used provided that the
design and operation of the combustor or PMDS has not changed in a
manner that may adversely affect the correlation of PM concentrations
and PMDS response.
    (B) You must request approval from the regulatory authority, in the
continuous monitoring system test plan, of your determination whether
multiple correlation curves are needed considering the design and
operation of your combustor and PMDS.
    (C) You must approximate the correlation of the reference method
data to the PMDS data.
    (1) You may assume a linear correlation of the PMDS response to
particulate matter emission concentrations;
    (2) You may include a zero point correlation value. To establish a
zero point, you must follow one or more of the following steps:
    (i) Zero point data for in-situ instruments should be obtained, to
the extent possible, by removing the instrument from the stack and
monitoring ambient air on a test bench;
    (ii) Zero point data for extractive instruments should be obtained
by removing the extractive probe from the stack and drawing in clean
ambient air;
    (iii) Zero point data also can be obtained by performing manual
reference method measurements when the flue gas is free of PM emissions
or contains very low PM concentrations (e.g., when your process is not
operating, but the fans are operating or your source is combusting only
natural gas); and
    (iv) If none of the steps in paragraphs (c)(9)(ii)(B)(2)(i) through
(iii) of this section are possible, you must estimate the monitor
response when no PM is in the flue gas (e.g., 4 mA = 0 mg/acm).
    (3) For reference method data that were obtained from runs during a
test condition where controllable operating factors were held constant,
you must average the test run averages of PM concentrations and PMDS
responses to obtain a single pair of data for PM concentration and PMDS
response. You may use this pair of data and the zero point to define a
linear correlation model for the PMDS.
    (D) You must establish the alarm set-point as the PMDS response
that corresponds to a PM concentration that is 50% of the PM emission
standard or 125% of the highest PM concentration used to develop the
correlation, whichever is greater. For reference method data that were
obtained from runs during a test condition where controllable operating
factors were held constant, you must use the average of the test run
averages of PM concentrations for extrapolating the alarm set-point.
The PM emission concentration used to extrapolate the alarm set-point
must not exceed the PM emission standard, however.
    (iii) Establishing the initial alarm set-point for operations under
the Notification of Compliance. You must establish the initial alarm
set-point for operations under the Notification of Compliance as
provided by either paragraph (c)(9)(iii)(A) or paragraph (c)(9)(iii)(B)
of this section. You must periodically revise the alarm set-point as
provided by paragraph (c)(9)(iv) of this section.
    (A) Establishing the initial set-point without extrapolation. (1)
If you establish the initial alarm set-point without extrapolation, the
alarm set-point is the average of the test run averages of the PMDS
response during the runs of the comprehensive performance test that
document compliance with the PM emission standard.
    (2) During the comprehensive performance test, you may simulate PM
emission concentrations at the upper end of the range of normal
operations by means including feeding high levels of ash and detuning
the emission control equipment.
    (B) Establishing the initial set-point by extrapolation. You may
extrapolate the particulate matter detector response to establish the
alarm set-point under the following procedures:
    (1) You must request approval from the regulatory authority, in the
continuous monitoring system test plan, of the procedures you will use
to establish an approximate correlation curve using the three pairs of
Method 5 or 5I data (see methods in appendix A-3 of part 60 of this
chapter) and PMDS data from the comprehensive performance test, the
data pairs used to establish the correlation curve for the
Documentation of Compliance under paragraph (c)(9)(ii) of this section,
and additional data pairs, as warranted.
    (2) You must request approval from the regulatory authority, in the
continuous monitoring system test plan, of your determination of
whether multiple correlation curves are needed considering the design
and operation of your combustor and PMDS. If so, you must recommend the
number of data pairs needed to establish those correlation curves and
how the data will be obtained.
    (3) During the comprehensive performance test, you may simulate PM
emission concentrations at the upper end of the range of normal
operations by means including feeding high levels of ash and detuning
the emission control equipment.
    (4) Data obtained up to 60 months prior to the comprehensive
performance

test may be used provided that the design and operation of the
combustor or PMDS has not changed in a manner that may adversely affect
the correlation of PM concentrations and PMDS response.
    (5) You may include a zero point correlation value. To establish a
zero point, you must follow the procedures under paragraph
(c)(9)(ii)(C)(2) of this section.
    (6) You must use a least-squares regression model to correlate PM
concentrations to PMDS responses for data pairs. You may assume a
linear regression model approximates the relationship between PM
concentrations and PMDS responses.
    (7) You must establish the alarm set-point as the PMDS response
that corresponds to a PM concentration that is 50% of the PM emission
standard or 125% of the highest PM concentration used to develop the
correlation, whichever is greater. The emission concentration used to
extrapolate the PMDS response must not exceed the PM emission standard.
    (iv) Revising the Notification of Compliance alarm set-point. (A)
Revising set-points established without extrapolation. If you establish
the alarm set-point without extrapolation under paragraph
(c)(9)(iii)(A) of this section, you must establish a new alarm set-
point in the Notification of Compliance following each comprehensive
performance test as the average of the test run averages of the PMDS
response during the runs of the comprehensive performance test that
document compliance with the PM emission standard.
    (B) Revising set-points established with extrapolation. If you
establish the alarm set-point by extrapolation under paragraph
(c)(9)(iii)(B) of this section, you must request approval from the
regulatory authority, in the continuous monitoring system test plan, of
the procedures for periodically revising the alarm set-point,
considering the additional data pairs obtained during periodic
comprehensive performance tests and data pairs obtained from other
tests, such as for quality assurance.
    (v) Quality assurance. (A) Set-points established without
extrapolation. If you establish the alarm set-point without
extrapolation under paragraph (c)(9)(iii)(A) of this section, you must
request approval from the regulatory authority, in the continuous
monitoring system test plan, of the quality assurance procedures that
reasonably ensure that PMDS response values below the alarm set-point
correspond to PM emission concentrations below the average of the PM
concentrations demonstrated during the comprehensive performance test.
Your recommended quality assurance procedures may include periodic
testing under as-found conditions (i.e., normal operations) to obtain
additional PM concentration and PMDS response run pairs, as warranted.
    (B) Set-points established with extrapolation. If you establish the
alarm set-point by extrapolation under paragraph (c)(9)(iii)(B) of this
section, you must request approval from the regulatory authority, in
the continuous monitoring system test plan, of the quality assurance
procedures that reasonably ensure that PMDS response values below the
alarm set-point correspond to PM emission concentrations below the
value that correlated to the alarm set-point.
    (vi) PMDS are used for compliance assurance only. For a PMDS for
which the alarm set-point is established by extrapolation using a
correlation curve under paragraphs (c)(9)(ii), (c)(9)(iii)(B), and
(c)(9)(iv)(B) of this section, an exceedance of the PMDS response that
appears to correlate with a PM concentration that exceeds the PM
emission standard is not by itself evidence that the standard has been
exceeded.
    (vii) PMDS corrective measures requirements. The operating and
maintenance plan required by paragraph (c)(7) of this section must
include a corrective measures plan that specifies the procedures you
will follow in the case of a PMDS alarm or malfunction. The corrective
measures plan must include, at a minimum, the procedures used to
determine and record the time and cause of the alarm or PMDS
malfunction as well as the corrective measures taken to correct the
control device or PMDS malfunction or minimize emissions as specified
below. Failure to initiate the corrective measures required by this
paragraph is failure to ensure compliance with the emission standards
in this subpart.
    (A) You must initiate the procedures used to determine the cause of
the alarm or PMDS malfunction within 30 minutes of the time the alarm
first sounds or the PMDS malfunctions; and
    (B) You must alleviate the cause of the alarm or the PMDS
malfunction by taking the necessary corrective measure(s) which may
include shutting down the combustor.
    (viii) Excessive exceedances notification. If you operate the
combustor when the detector response exceeds the alarm set-point or
when the PMDS is malfunctioning more than 5 percent of the time during
any 6-month block time period, you must submit a notification to the
Administrator within 30 days of the end of the 6-month block time
period that describes the causes of the exceedances and the revisions
to the design, operation, or maintenance of the combustor, emission
control device, or PMDS you are taking to minimize exceedances. To
document compliance with this requirement:
    (A) You must keep records of the date, time, and duration of each
alarm and PMDS malfunction, the time corrective action was initiated
and completed, and a brief description of the cause of the alarm or
PMDS malfunction and the corrective action taken;
    (B) You must record the percent of the operating time during each
6-month period that the alarm sounds and the PMDS malfunctions;
    (C) If inspection of the emission control device demonstrates that
no corrective action is required, then no alarm time is counted; and
    (D) If corrective action to the emission control device is
required, each alarm shall be counted as a minimum of 1 hour. Each PMDS
malfunction shall also be counted as a minimum of 1 hour.

0
3. Section 63.1207 is amended by revising paragraphs (d)(4) and
(m)(1)(i) introductory text to read as follows:

Sec.  63.1207  What are the performance testing requirements?

* * * * *
    (d) * * *
    (4) Applicable testing requirements under the interim standards.
(i) Waiver of periodic comprehensive performance tests. Except as
provided by paragraph (c)(2) of this section, you must conduct only an
initial comprehensive performance test under the interim standards
(Sec. Sec.  63.1203 through 63.1205); all subsequent comprehensive
performance testing requirements are waived under the interim
standards. The provisions in the introductory text to paragraph (d) and
in paragraph (d)(1) of this section apply only to tests used to
demonstrate compliance with the standards under Sec. Sec.  63.1219
through 63.1221.
    (ii) Waiver of confirmatory performance tests. You are not required
to conduct a confirmatory test under the interim standards (Sec. Sec.
63.1203 through 63.1205). The confirmatory testing requirements in the
introductory text to paragraph (d) and in paragraph (d)(2) of this
section apply only after you have demonstrated compliance with the
standards under Sec. Sec.  63.1219 through 63.1221.
* * * * *
    (m) * * *
    (1) * * * (i) You are deemed to be in compliance with an emission
standard based on the volumetric flow rate of

exhaust gas (i.e., [mu]g/dscm or ppmv) if the maximum theoretical
emission concentration (MTEC) does not exceed the emission standard
over the relevant averaging period specified under Sec.  63.1209(l),
(n), and (o) of this section for the standard:
* * * * *

0
4. Section 63.1210 is amended by revising the table in paragraph (a)(1)
to read as follows:

Sec.  63.1210  What are the notification requirements?

    (a) * * *
    (1) * * *

------------------------------------------------------------------------
                 Reference                          Notification
------------------------------------------------------------------------
63.9(b)...................................  Initial notifications that
                                             you are subject to Subpart
                                             EEE of this Part.
63.9(d)...................................  Notification that you are
                                             subject to special
                                             compliance requirements.
63.9(j)...................................  Notification and
                                             documentation of any change
                                             in information already
                                             provided under Sec.   63.9.
63.1206(b)(5)(i)..........................  Notification of changes in
                                             design, operation, or
                                             maintenance.
63.1206(c)(8)(iv).........................  Notification of excessive
                                             bag leak detection system
                                             exceedances.
63.1206(c)(9)(v)..........................  Notification of excessive
                                             particulate matter
                                             detection system
                                             exceedances.
63.1207(e), 63.9(e) 63.9(g)(1) and (3)....  Notification of performance
                                             test and continuous
                                             monitoring system
                                             evaluation, including the
                                             performance test plan and
                                             CMS performance evaluation
                                             plan.\1\
63.1210(b)................................  Notification of intent to
                                             comply.
63.1210(d), 63.1207(j), 63.1207(k),         Notification of compliance,
 63.1207(l), 63.9(h), 63.10(d)(2),           including results of
 63.10(e)(2).                                performance tests and
                                             continuous monitoring
                                             system performance
                                             evaluations.
------------------------------------------------------------------------
\1\ You may also be required on a case-by-case basis to submit a
  feedstream analysis plan under Sec.   63.1209(c)(3).

* * * * *

0
5. Section 63.1215 is amended as follows:
0
a. By revising paragraphs (e)(2)(i)(B), (e)(2)(i)(C), and (e)(2)(i)(D).
0
b. By adding paragraph (e)(3).

Sec.  63.1215  What are health-based compliance alternatives for total
chlorine?

* * * * *
    (e) * * *
    (2) * * *
    (i) * * *
    (B) Your permitting authority should notify you of approval or
intent to disapprove your eligibility demonstration within 6 months
after receipt of the original demonstration, and within 3 months after
receipt of any supplemental information that you submit. A notice of
intent to disapprove your eligibility demonstration, whether before or
after the compliance date, will identify incomplete or inaccurate
information or noncompliance with prescribed procedures and specify how
much time you will have to submit additional information or to achieve
the MACT standards for total chlorine under Sec. Sec.  63.1216,
63.1217, 63.1219, 63.1220, and 63.1221. If your eligibility
demonstration is disapproved, the permitting authority may extend the
compliance date of the total chlorine standards up to one year to allow
you to make changes to the design or operation of the combustor or
related systems as quickly as practicable to enable you to achieve
compliance with the MACT total chlorine standards.
    (C) If your permitting authority has not approved your eligibility
demonstration by the compliance date, and has not issued a notice of
intent to disapprove your demonstration, you may begin complying, on
the compliance date, with the HCl-equivalent emission rate limits you
present in your eligibility demonstration provided that you have made a
good faith effort to provide complete and accurate information and to
respond to any requests for additional information in a timely manner.
If the permitting authority believes that you have not made a good
faith effort to provide complete and accurate information or to respond
to any requests for additional information, however, the authority may
notify you in writing by the compliance date that you have not met the
conditions for complying with the health-based compliance alternative
without prior approval. Such notice will explain the basis for
concluding that you have not made a good faith effort to comply with
the health-based compliance alternative by the compliance date.
    (D) If your permitting authority issues a notice of intent to
disapprove your eligibility demonstration after the compliance date,
the authority will identify the basis for that notice and specify how
much time you will have to submit additional information or to comply
with the MACT standards for total chlorine under Sec. Sec.  63.1216,
63.1217, 63.1219, 63.1220, and 63.1221. The permitting authority may
extend the compliance date of the total chlorine standards up to one-
year to allow you to make changes to the design or operation of the
combustor or related systems as quickly as practicable to enable you to
achieve compliance with the MACT standards for total chlorine.
* * * * *
    (3) The operating requirements in the eligibility demonstration are
applicable requirements for purposes of parts 70 and 71 of this chapter
and will be incorporated in the title V permit.
* * * * *

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6. Section 63.1219 is amended by revising paragraph (b)(7) to read as
follows:

Sec.  63.1219   What are the replacement standards for hazardous waste
incinerators?

* * * * *
    (b) * * *
    (7) Except as provided by paragraph (e) of this section,
particulate matter emissions in excess of 0.0016 gr/dscf corrected to 7
percent oxygen.
* * * * *

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7. Section 63.1220 is amended by removing paragraphs (a)(2)(iii) and
(b)(2)(iii) and revising paragraph (b)(7) to read as follows.

Sec.  63.1220  What are the replacement standards for hazardous waste
burning cement kilns?

* * * * *
    (b) * * *
    (7) For particulate matter, both:
    (i) Emissions in excess of 0.0069 gr/dscf corrected to 7 percent
oxygen; and
    (ii) Opacity greater than 20 percent, unless your source is
equipped with a bag leak detection system under Sec.  63.1206(c)(8) or
a particulate matter detection system under Sec.  63.1206(c)(9).
* * * * *
 [FR Doc. E8-25166 Filed 10-27-08; 8:45 am]

BILLING CODE 6560-50-P