[Federal Register Volume 78, Number 26 (Thursday, February 7, 2013)]
[Rules and Regulations]
[Pages 9111-9213]
[FR Doc No: 2012-31632]

Vol. 78

Thursday,

No. 26

February 7, 2013

Part II

Environmental Protection Agency

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40 CFR Parts 60 and 241

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

Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 /
Rules and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60 and 241

[EPA-HQ-OAR-2003-0119 and EPA-HQ-RCRA 2008-0329; FRL-9764-1]
RIN 2060-AR15 and 2050-AG44

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

AGENCY: Environmental Protection Agency.

ACTION: Final rule; notice of final action on reconsideration.

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

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

ADDRESSES: The EPA established a single docket under Docket ID Number
EPA-HQ-OAR-2003-0119 for this action on the commercial and industrial
solid waste incineration rule. The EPA also established a single docket
under Docket ID Number EPA-HQ-RCRA-2008-0329 for this action on the
non-hazardous secondary materials rule. All documents in the docket are
listed in the http://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., confidential
business information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, will be publicly available only in hard copy. Publicly
available docket materials are available either electronically in
http://www.regulations.gov or in hard copy at the EPA Docket Center,
EPA West Building, Room 3334, 1301 Constitution Ave. NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is<PHONE_NUMBER> and the telephone number for the
Docket Center is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: For further information regarding the
commercial and industrial solid waste incineration reconsideration and
final amendments, contact Ms. Toni Jones, Fuels and Incineration Group,
Sector Policies and Programs Division (E143-05), Environmental
Protection Agency, Research Triangle Park, North Carolina 27711;
telephone number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; email
address<EMAIL_ADDRESS>or Ms. Amy Hambrick, Fuels and
Incineration Group, Sector Policies and Programs Division (E143-05),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>;
email address<EMAIL_ADDRESS>    For further information regarding the Non-Hazardous Secondary
Materials final rule, contact Mr. George Faison, Program Implementation
and Information Division, Office of Resource Conservation and Recovery,
5303P, Environmental Protection Agency, Ariel Rios Building, 1200
Pennsylvania Avenue NW., Washington, DC 20460-0002; telephone number:
703-305-7652; fax number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
I. Organization of This Document

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

I. Organization of This Document
    A. Supplementary Information
    B. Does this action apply to me?
    C. Where can I get a copy of this document?
    D. Judicial Review
    E. Executive Summary
II. CISWI Reconsideration and Final Rule
    A. Background Information
    1. What is the history of the CISWI standards?
    2. How is the definition of solid waste addressed in the final
CISWI rule?
    3. What is the relationship between this rule and other
combustion rules?
    4. What is the response to the vacatur of effective dates?
    B. Summary of This Final Rule
    1. Subcategories of Affected Units and Emission Standards
    2. Fuel Switching Provisions
    3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil
Treatment Units, Laboratory Analysis Units and Space Heaters
    4. Affirmative Defense for Malfunction Events
    5. Oxygen Correction Requirements and CO Monitoring Requirements
    6. Full-load Stack Test Requirement for CO Coupled With
Continuous O2 Monitoring
    7. Non-detect Methodology Using Three Times the Detection Level
    8. Definitions for Foundry Sand Thermal Reclamation Unit and
Chemical Recovery Unit
    9. Definition of Contained Gaseous Material
    10. Parametric Monitoring Provisions for Additional Control
Device Types
    11. Particulate Matter Continuous Monitoring Provisions for
Large ERUs and Waste-burning Kilns
    12. Revised Definition of Waste-burning Kiln
    13. Revised Definition of Solid Waste
    14. Compliance Dates
    15. Revised New Source Performance Standards
    C. Summary of Significant Changes Since Proposal
    1. Revision of the Subcategories
    2. Revisions to the Monitoring Requirements
    3. Oxygen Monitoring Requirements
    4. Removal of the Definition of Homogeneous Waste
    5. Non-detect Methodology Using Three Times the Detection Level
    6. Parametric Monitoring for Additional Control Device Types
    7. Particulate Matter Continuous Monitoring Provisions for Large
ERUs and Waste-burning Kilns
    8. Compliance Dates
    9. Definition of Waste-burning Kiln
    10. Exemption for Other Solid Waste Incineration (OSWI) Units
    D. Technical Corrections and Clarifications
    E. Major Public Comments and Responses
    F. What other actions are we taking?

    G. What are the impacts associated with the amendments?
    1. What are the primary air impacts?
    2. What are the water and solid waste impacts?
    3. What are the energy impacts?
    4. What are the secondary air impacts?
    5. What are the cost and economic impacts?
    6. What are the benefits?
III. NHSM Final Revisions
    A. Statutory Authority
    B. NHSM Rule History
    C. Introduction--Summary of Regulations Being Finalized
    1. Revised Definitions
    a. Clean Cellulosic Biomass
    b. Contaminants
    c. Established Tire Collection Programs
    d. Resinated Wood
    2. Contaminant Legitimacy Criterion for NHSM Used as Fuels
    3. Categorical Non-Waste Determinations for Specific NHSM Used
as Fuels
    a. Scrap Tires
    b. Resinated Wood
    c. Coal Refuse
    d. Pulp and Paper Sludge
    4. Rulemaking Petition Process for Other Categorical Non-Waste
Determinations (40 CFR 241.4(b))
    5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination
Petition Process
    6. Revised Introductory Text for 40 CFR 241.3(a)
    D. Comments on the Proposed Rule and Rationale for Final
Decisions
    1. Revised Definitions
    a. Clean Cellulosic Biomass
    b. Contaminants
    c. Established Tire Collection Programs
    2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels
    a. General Comments on the Revised Contaminant Legitimacy
Criterion
    b. Grouping of Contaminants
    c. Meaning of Designed to Burn
    d. Contaminant Comparisons Allowed
    3. Categorical Non-Waste Determinations for Specific NHSM Used
as Fuels
    a. Scrap Tires
    b. Resinated Wood
    4. Rulemaking Petition Process for Other Categorical Non-Waste
Determinations (40 CFR 241.4(b))
    5. Materials for Which Additional Information was Requested
    a. Pulp and Paper Sludge
    b. Coal Refuse
    c. Manure
    d. Other Materials for Which Additional Information was Not
Requested
    6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination
Petition Process
    7. Revised Introductory Text for 40 CFR 241.3(a)
    E. Cost and Benefits of the Final Rule
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

A. Supplementary Information

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

ACI activated carbon injection
AF&PA American Forest & Paper Association
ANPRM Advanced Notice of Proposed Rulemaking
ANSI American National Standards Institute
APA Administrative Procedure Act
ARIPPA Anthracite Region Independent Power Producers Association
ASME American Society of Mechanical Engineers
AST activated sludge treatment
ASTM American Society for Testing and Materials
ATCM Air Toxic Control Measure
Btu British thermal unit
CAA Clean Air Act
CARB California Air Resources Board
CBI Confidential Business Information
CCA chromated copper arsenate
Cd cadmium
C&D construction & demolition
CDX Central Data Exchange
CFB circulating fluidized bed
CEMS continuous emissions monitoring systems
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act
CFR Code of Federal Regulations
CISWI Commercial and Industrial Solid Waste Incineration
CO carbon monoxide
CO2 carbon dioxide
Catalyst carbon monoxide oxidation catalyst
Cl2 chlorine gas
CPMS continuous parametric monitoring system
CWA Clean Water Act
D/F dioxin/furan
dscm dry standard cubic meter
DSW Definition of Solid Waste
EG emission guidelines
EJ Environmental Justice
EOM extractable organic matter
EPA U.S. Environmental Protection Agency
ERT Electronic Reporting Tool
ERU energy recovery unit
ESP electrostatic precipitator
FF fabric filters
FR Federal Register
HAP hazardous air pollutants
HCl hydrogen chloride
HF hydrogen fluoride
Hg mercury
HMI hospital, medical and infectious
HMIWI Hospital, Medical and Infectious Waste Incineration
ICR Information Collection Request
Lb pound
LML lowest measured level
Mg milligram
Mn manganese
MACT maximum achievable control technology
MDL method detection level
mg/dscm milligrams per dry standard cubic meter
mmBtu/hr million British thermal units per hour
MSW Municipal Solid Waste
MW megawatts
MWC Municipal Waste Combustor
NAAQS National Ambient Air Quality Standards
NAICS North American Industrial Classification System
NCASI National Council on Air and Stream Improvement
ND nondetect
NESHAP National Emission Standards for Hazardous Air Pollutants
ng/dscm nanograms per dry standard cubic meter
NHSM non-hazardous secondary material(s)
NIST National Institute of Standards and Technology
NOX nitrogen oxides
NSPS New Source Performance Standards
NTTAA National Technology Transfer and Advancement Act
OAQPS Office of Air Quality Planning and Standards
OMB Office of Management and Budget
OSWI Other Solid Waste Incineration
OSWER Office of Solid Waste and Emergency Response
O2 Oxygen
PAH polycyclic aromatic hydrocarbons
Pb lead
PCBs polychlorinated biphenyls
PCDD polychlorinated dibenzodioxins
PCDF polychlorinated dibenzofurans
PIC product of incomplete combustion
PM particulate matter
POM polycyclic organic matter
ppm parts per million
ppmv parts per million by volume
ppmvd parts per million by dry volume
PQL practical quantitation limit
PRA Paper Reduction Act
PS Performance Specification
lb/MMBtu pound per million British thermal units
RCRA Resource Conservation and Recovery Act
RDL reported detection level
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RIN Regulatory Information Number
RTO regenerative thermal oxidizer
RTR residual risk and technology review
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act

SISNOSE Significant Economic Impact on a Substantial Number of Small
Entities
SMCRA Surface Mining Control and Reclamation Act of 1977
SNCR selective noncatalytic reduction
SO2 sulfur dioxide
SSI Sewage Sludge Incineration
SSM startup, shutdown and malfunction
SVOC Semi-Volatile Organic Compound
SWDA Solid Waste Disposal Act
TBtu tera British thermal unit
TEOM Tapered Element Oscillating Microbalance
TEQ Toxic Equivalency
The Court U.S. Court of Appeals for the District of Columbia Circuit
TMB Total Mass Basis
TOX Total Organic Halogens
tpy tons per year
TSM Total Selected Metal
TTN Technology Transfer Network
UCL upper confidence limit
ug/dscm micrograms per dry standard cubic meter
UMRA Unfunded Mandates Reform Act
UL upper limit
UPL upper prediction limit
U.S.C. United States Code
USGS United States Geological Survey
VCS Voluntary Consensus Standards
VOC volatile organic compound
WWW Worldwide Web

B. Does this action apply to me?

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

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                                                   NAICS \1\
                    Category                          Code         Examples of potentially regulated entities
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Any industrial or commercial facility using a       211, 212,  Oil and Gas Extraction, mining (except oil and
 solid waste incinerator.                                 486   gas); Pipeline Transportation
                                                          221  Utilities
                                                    321, 322,  Wood Product Manufacturing, Paper Manufacturing,
                                                          337   Furniture and Related Product Manufacturing
                                                     325, 326  Chemical Manufacturing, Plastics and Rubber
                                                                Products Manufacturing
                                                          327  Nonmetallic Mineral Product Manufacturing,
                                                     333, 336  Machinery Manufacturing, Transportation Equipment
                                                                Manufacturing
                                                      423, 44  Merchant Wholesalers, Durable Goods, Retail Trade
Any facility or entity generating a non                   111  Crop Production
 hazardous secondary material that may be burned
 for fuel or destruction \2\.
                                                          112  Animal Production
                                                          113  Forestry and Logging
                                                          115  Support Activities for Agriculture and Forestry
                                                          211  Oil and Gas Extraction
                                                          212  Mining (except oil and gas)
                                                          221  Utilities
                                                          236  Construction of Buildings
                                                          311  Food Manufacturing
                                                          312  Beverage and Tobacco Product Manufacturing
                                                          313  Textile Mills
                                                          316  Leather and Allied Product Manufacturing
                                                          321  Wood Product Manufacturing
                                                          322  Paper Manufacturing
                                                          324  Petroleum and Coal Products Manufacturing
                                                          325  Chemical Manufacturing
                                                          326  Plastics and Rubber Products Manufacturing
                                                          327  NonMetallic Mineral Product Manufacturing
                                                          331  Primary Metal Manufacturing
                                                          332  Fabricated Metal Product Manufacturing
                                                          333  Machinery Manufacturing
                                                          334  Computer and Electronic Product Manufacturing
                                                          336  Transportation Equipment Manufacturing
                                                          337  Furniture and Related Product Manufacturing
                                                          339  Miscellaneous Manufacturing
                                                          423  Merchant Wholesalers, Durable Goods
                                                          424  Merchant Wholesalers, Nondurable Goods
                                                        44-45  Retail Trade (all categories, including non-store
                                                                retailers, vending and direct sellers)
                                                          486  Pipeline Transportation
                                                          493  Warehousing and Storage
                                                          511  Publishing Industries (except internet)
                                                          531  Real Estate
                                                          541  Professional, Scientific and Technical Services
                                                          611  Educational Services
                                                          622  Hospitals
                                                          623  Nursing and Residential Care Facilities
                                                          624  Social Assistance
                                                       713930  Boating Clubs with Marinas
                                                          721  Accommodation
                                                          722  Food Services and Drinking Places
                                                          813  Religious, Grantmaking, Civic, Professional and
                                                                Similar Organizations
                                                           92  Public Administration
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\1\ North American Industry Classification System.
\2\ Note that some of these NAICS may overlap with institutional facility types where incinerators are regulated
  by the Other Solid Waste Incinerators (OSWI) emission guidelines and NSPS.

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

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

    The docket number for the action regarding the CISWI NSPS (40 CFR
part 60, subpart CCCC) and EG (40 CFR part 60, subpart DDDD) is Docket
ID Number EPA-HQ-OAR-2003-0119.
    Worldwide Web. In addition to being available in the docket, an
electronic copy of the final action is available on the WWW through the
TTN Web site. Following signature, the EPA posted a copy of the final
action on the TTN's policy and guidance page for newly proposed or
promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides
information and technology exchange in various areas of air pollution
control.

D. Judicial Review

    Under the CAA section 307(b)(1), judicial review of this final rule
is available only by filing a petition for review in The Court April 8,
2013. Under CAA section 307(d)(7)(B), only an objection to this final
rule that was raised with reasonable specificity during the period for
public comment can be raised during judicial review. This section also
provides a mechanism for us to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to EPA that it was impracticable to raise such objection within [the
period for public comment] or if the grounds for such objection arose
after the period for public comment (but within the time specified for
judicial review) and if such objection is of central relevance to the
outcome of this rule.'' Any person seeking to make such a demonstration
to us should submit a Petition for Reconsideration to the Office of the
Administrator, Environmental Protection Agency, Room 3000, Ariel Rios
Building, 1200 Pennsylvania Ave. NW., Washington, DC 20004, with a copy
to the persons listed in the preceding FOR FURTHER INFORMATION CONTACT
section, and the Associate General Counsel for the Air and Radiation
Law Office, Office of General Counsel (Mail Code 2344A), Environmental
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20004.
Note, under CAA section 307(b)(2), the requirements established by this
final rule may not be challenged separately in any civil or criminal
proceedings brought by the EPA to enforce these requirements. Resource
Conservation and Recovery Act sections of the rule would be subject to
judicial review under RCRA.

E. Executive Summary

Purpose of the Regulatory Action

    The EPA is promulgating final rules that establish standards for
new and existing CISWI units. Section 129 of the CAA, titled ``Solid
Waste Combustion,'' requires the EPA to develop and adopt standards for
commercial and industrial solid waste incineration units pursuant to
CAA sections 111 and 129. This final rule makes certain revisions to
the final ``Standards of Performance for New Stationary Sources and
Emission Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration Units,'' 76 FR 15704 (March 21, 2011), based
on the issues proposed for reconsideration issues (76 FR 40582) and in
response to public comments on the proposed CISWI reconsideration rule.
    On May 18, 2011, the EPA issued a notice that delayed the effective
dates of the March 21, 2011, CISWI rule (the ``Delay Notice''). 76 FR
28662 (May 18, 2011). As the result of that action, the 2000 CISWI rule
remained in effect. The Court vacated the Delay Notice in January 2012.
However, because the Delay Notice delayed the effectiveness of the
CISWI rule from May 2011 through vacatur of that notice in January
2012, the revisions to the 2000 CISWI rule that were finalized in the
2011 CISWI rule were never codified in the CFR, but instead appear as
notes after the corresponding provisions of the 2000 CISWI rule in the
CFR. Although the issues on reconsideration were limited in the
December 2011 CISWI reconsideration proposal, we had to include in that
proposed reconsideration rule all of the regulatory changes that had
been made since the 2000 rule because the 2011 CISWI rule was not
codified in the CFR. Specifically, we included in the December 23,
2011, proposed reconsideration rule all of the regulatory changes the
EPA had made to the 2000 CISWI rule in the 2011 CISWI rule, as well as
the changes to the 2011 CISWI rule that the EPA proposed to make on
reconsideration. In response to the Court's vacatur of the Delay Notice
in January 2012, this final action lifts the delay of effectiveness so
that the CFR can be revised to properly reflect the revisions to the
2000 CISWI rule that were finalized in the 2011 CISWI rule. This final
action also contains regulatory text that amends the 2011 CISWI rule to
address the reconsideration. Therefore, this final rule's amendatory
language differs from that of the December 2011 reconsideration
proposal as it amends the 2011 CISWI rule instead of the 2000 CISWI
rule. This change to the amendatory baseline in no way alters our
limitation of the issues for comment for which we granted
reconsideration. We have provided in the CISWI docket a redline/
strikeout file of the 2000 CISWI rule to help implementing agencies and
affected sources to identify the sum total of the revisions made to the
2000 CISWI rule through today's final notice pursuant to the 2011 CISWI
rule and this final action.

Summary of Major Provisions for the Final Reconsideration Rule

    In general, the final rule establishes revised numeric emission
limits for some new and existing CISWI units for certain of the nine
pollutants listed in section 129(a)(4) of the CAA.\1\
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    \1\ The nine pollutants for which we must issue emission
standards under section 129 are: PM, SO2, HCl,
NOX, CO, Pb, Cd, Hg, D/F. CAA section 129(a)(4).
---------------------------------------------------------------------------

    The EPA established or revised standards for four subcategories of
CISWI units in the 2011 CISWI rule: incinerators; small remote
incinerators; ERUs; and waste-burning kilns. The 2011 CISWI rule also
included two subcategories of ERUs. In this final rule, we have further
subcategorized ERUs and subcategorized waste-burning kilns based on
design type differences. Thus, the final rule includes three
subcategories of ERUs and separate CO limits for two subcategories of
waste-burning kilns.
    We have further revised some of the CISWI limits proposed in the
reconsideration notice in response to comments on CO span methodology
and because we incorporated additional data, including new data
submitted during the comment period. These changes primarily affect the
ERU and waste-burning kiln subcategories but also affect some of the
limits in each of the four subcategories.
    To ensure compliance with the emission limits, this final rule
establishes stack testing and continuous monitoring requirements. The
rule allows sources to use CEMS if an owner

or operator chooses to do so. Continuous parameters and emissions
levels (if used) are measured as either a 3-hour block or a 30-day
rolling average basis, depending on the parameter being measured and
the subcategory of CISWI.
    Since sources may choose to cease or start combusting solid waste
at any time due to market conditions or for other reasons, the final
rule contains provisions that specify the steps necessary for sources
to switch applicability between this final rule and other applicable
emission standards issued pursuant to CAA section 112. This rule also
contains revisions to some of the monitoring, recordkeeping and
reporting requirements.
    The date existing sources must comply with the final CISWI rule
depends primarily on state plan approval but may be no later than the
date 5 years after publication of this final rule in the Federal
Register. For new sources, the effective date is either August 7, 2013,
or the date of startup of the source, whichever is later. New sources
are defined as sources that began construction on or after June 4,
2010, or commenced reconstruction or modification after August 7, 2013.

Costs and Benefits

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

    Table 1--Summary of the Monetized Benefits, Social Costs and Net
            Benefits for the Final CISWI NSPS and EG In 2015
                         [Millions of 2008$]\1\
------------------------------------------------------------------------
                               3 Percent discount    7 Percent discount
                                      rate                  rate
------------------------------------------------------------------------
Total Monetized Benefits\2\.        $420 to $1,000          $380 to $930
Total Social Costs\3\.......                  $258                  $258
Net Benefits................          $160 to $770          $120 to $670
------------------------------------------------------------------------
                                Health effects from exposure to HAP 780
                              tons of HCl, 2.5 tons of lead, 1.8 tons of
                                 Cd, 680 pounds of Hg, and 58 grams of
                                           dioxins/furans).
Non-monetized Benefits......   Health effects from exposure to criteria
                              pollutants (20,000 tons of CO[ihel2] 6,300
                                   tons of SO[ihel2], 5,400 tons of
                                 NO[ihel2], and secondary formation of
                                                ozone).
                                          Ecosystem effects.
                                        Visibility impairment.
------------------------------------------------------------------------
\1\ All estimates are for the implementation year (2015) and are rounded
  to two significant figures. These results reflect the lowest cost
  disposal assumption.
\2\ The total monetized benefits reflect the human health benefits
  associated with reducing exposure to PM2.5 through reductions of PM2.5
  precursors such as directly emitted particles, SO[ihel2], and NOX. It
  is important to note that the monetized benefits include many but not
  all health effects associated with PM2.5 exposure. Monetized benefits
  are shown as a range from Pope, et al. (2002) to Laden, et al. (2006).
  These models assume that all fine particles, regardless of their
  chemical composition, are equally potent in causing premature
  mortality because the scientific evidence is not yet sufficient to
  allow differentiation of effect estimates by particle type.
\3\ The methodology used to estimate social costs for 1 year in the
  multimarket model using surplus changes results in the same social
  costs for both discount rates.

II. CISWI Reconsideration and Final Rule

A. Background Information

1. What is the history of the CISWI standards?
    On December 1, 2000, the EPA promulgated NSPS and EG for CISWI
units (60 FR 75338), hereinafter referred to as the 2000 CISWI rule. On
January 30, 2001, the Sierra Club filed a petition for review in the
Court challenging the EPA's final CISWI rule. On August 17, 2001, the
EPA granted a Request for Reconsideration, pursuant to CAA section
307(d)(7)(B), submitted on behalf of the National Wildlife Federation
and the Louisiana Environmental Action Network, related to the
definition of ``commercial and industrial solid waste incineration
unit'' and ``commercial or industrial waste'' in the 2000 CISWI rule.
In granting the petition for reconsideration, the EPA agreed to
undertake further notice and comment proceedings related to these
definitions. On September 6, 2001, the Court entered an order granting
the EPA's motion for a voluntary remand of the CISWI rule, without
vacatur. The EPA requested a voluntary remand of the final CISWI rule
to address concerns related to the EPA's procedures for establishing
MACT floors for CISWI units in light of the Court's decision in Cement
Kiln Recycling Coalition v. EPA, 255 F.3d 855 (DC Cir. 2001)(Cement
Kiln). Neither the EPA's granting of the petition for reconsideration,
nor the Court's order granting a voluntary remand, stayed, vacated or
otherwise influenced the effectiveness of the 2000 CISWI rule.
Therefore, the remand order had no effect on the effectiveness of the
2000 CISWI rule.
    On February 17, 2004, the EPA published a proposed rule (CISWI
Definitions Rule) soliciting comments on the definitions of ``solid
waste,'' ``commercial and industrial waste,'' and ``commercial and
industrial solid waste

incineration unit.'' On September 22, 2005, the EPA published in the
Federal Register the final rule reflecting our decisions with respect
to the CISWI Definitions Rule. The rule was challenged and, on June 8,
2007, the Court vacated and remanded the CISWI Definitions Rule. In
vacating the rule, the Court found that CAA section 129 unambiguously
includes among the incineration units subject to its standards, any
facility that combusts any solid waste material, subject to four
statutory exceptions. While the Court vacated the CISWI Definitions
Rule, the 2000 CISWI rule remained in effect.
    On March 21, 2011, the EPA promulgated revised NSPS and EG for
CISWI units (76 FR 15704)(2011 CISWI rule). That action constituted a
partial response to the voluntary remand of the 2000 CISWI rule and to
the 2007 vacatur and remand of the CISWI Definitions Rule. In addition,
the EPA addressed the 5-year technology review that is required under
CAA section 129(a)(5). On the same day, the EPA issued a notice that it
intended to reconsider certain aspects of the 2011 CISWI rule that
warrant further opportunity for public comment (76 FR 15266).
    Following promulgation of the 2011 CISWI rule, the EPA received
petitions for reconsideration from the following organizations
(``Petitioners''): Alaska Oil and Gas Association/Alaska Miners
Association/ConocoPhillips (AOGA), American Chemistry Council (ACC),
American Foundry Society (AFS), American Iron and Steel Institute
(AISI) and American Coke and Coal Chemicals Institute (ACCCI),
Anthracite Region Independent Power Producers Association (ARIPPA),
American Petroleum Institute (API) and National Petrochemical and
Refiners Association (NPRA), Auto Industry Forum (AIF), Citizens Energy
Group (CEG), Council of Industrial Boiler Owners (CIBO), Earthjustice/
Sierra Club, Edison Mission Energy, Hovensa L.L.C. and Tesoro Hawaii
Corp., Industry Coalition (AF&PA et al.), JELD-WEN Inc., Portland
Cement Association (PCA), Renovar Energy Corp., and Waste Management
Inc. (WM). Copies of these petitions are provided in the docket (see
Docket ID Number EPA-HQ-OAR-2003-0119). Petitioners, pursuant to CAA
section 307(d)(7)(B), requested that the EPA reconsider numerous
provisions in the 2011 CISWI rule.
    On May 18, 2011, the EPA issued a notice to postpone the effective
dates of the March 21, 2011, final CISWI rule. This notice also
requested that the public submit additional data and information to the
EPA by July 15, 2011, for review and consideration in the
reconsideration proceedings.
    On December 23, 2011, the EPA published a proposed rule soliciting
comment on the issues on which the EPA was granting reconsideration. In
March 2011, the EPA had publically stated its intent to reconsider some
of these issues. 76 FR 15266. The EPA limited comment in the December
23, 2011, proposed rule to the specific issues on which it was granting
reconsideration which included the following:
     Revising the subcategories and emission limits for ERUs
and waste-burning kilns to reflect updated inventories and additional
data.
     Establishing limitations on fuel switching provisions.
     Definitions of cyclonic burn barrels, burn-off ovens, soil
treatment units, laboratory analysis units and space heaters from CISWI
subcategories.
     Providing an affirmative defense for malfunction events.
     Revisions to the CO monitoring requirements.
     Establishing a full-load stack test requirement for CO
coupled with continuous O2 (trim) monitoring.
     Establishing a definition of ``homogeneous waste.''
     Responding to comments on the 2011 CISWI rule regarding
the use of fuel variability in emission limit calculations.
     Responding to comments on the 2011 CISWI rule regarding
the review of D/F data and non-detect methodology using three times the
detection level.
     Responding to comments on the 2011 CISWI rule regarding
providing an option for sources to use emissions averaging to
demonstrate compliance.
     Establishing a definition for foundry sand thermal
reclamation unit.
     Reinstating the definition of contained gaseous material.
     Revising the definition of chemical recovery unit.
     Allowing for the use of feed stream analysis or other
supplemental information to demonstrate compliance.
     Responding to comments on the 2011 CISWI rule regarding
providing percent reduction alternative standards.
     Providing parametric monitoring provisions for additional
control device types.
     Revisions to the continuous monitoring provisions for
large ERUs.
     Extending effective dates.
     Technical corrections and clarifications.
2. How is the definition of solid waste addressed in the final CISWI
rule?
    The RCRA definition of solid waste is integral in defining the
CISWI source category. The EPA defines NHSMs that are solid waste under
RCRA in the final ``Identification of Non-Hazardous Secondary Materials
That Are Solid Waste'' Rulemaking. In an action parallel to the March
21, 2011, final CISWI rule, the EPA promulgated a final rule that
identifies whether NHSMs are or are not solid waste when used as fuels
or ingredients in combustion units. That action, hereinafter referred
to as the ``2011 NHSM final rule,'' is relevant to the final CISWI rule
because some ERUs and waste-burning kilns combust, in their combustion
units, secondary materials that are solid waste under the 2011 NHSM
final rule. Commercial and industrial units that combust solid waste
are subject to standards issued pursuant to CAA section 129, rather
than to standards issued pursuant to CAA section 112 that would
otherwise be applicable to such units (e.g., units that would be
boilers, process heaters or cement kilns if they were not combusting
solid waste).
3. What is the relationship between this rule and other combustion
rules?
    These amendments address the combustion of solid waste materials
(as defined by the Administrator under RCRA in the NHSM Definition
rule) in combustion units at commercial and industrial facilities. If
an owner or operator of a CISWI unit permanently ceases combusting
solid waste, the affected unit would no longer be subject to the CISWI
rule because the unit would not be a solid waste incineration unit
subject to standards under CAA section 129. Standards issued pursuant
to section 112 of the CAA may apply to CISWI units that cease
combusting solid waste. For example, CAA section 112 standards
applicable to boilers and process heaters at major sources and boilers
at area sources would apply to boilers and process heaters that cease
combusting solid waste. Boilers and process heaters that are located at
commercial and industrial facilities and that combust solid waste are
subject to CISWI as ERUs. The EPA has also finalized the CAA section
112 standards for the Portland Cement Manufacturing Industry (75 FR
21136, September 9, 2010). Cement kilns combusting solid waste are
waste-burning kilns subject to CISWI, not the otherwise applicable CAA
section 112 standards.
4. What is the response to the vacatur of effective dates?
    On January 9, 2012, the Court vacated the May 18, 2011, Delay
Notice, which delayed the effective dates of the 2011 CISWI rule. On
February 7, 2012, the EPA issued a no action assurance letter

regarding certain notification deadlines in the March 2011 CISWI rule.
    The EPA has conducted outreach to each EPA Regional Office and it
has not found any new CISWI units that commenced construction since the
proposed CISWI rule was published on June 10, 2010. The CAA defines a
``new source,'' in part, as any source that commences construction
after the publication date of proposed CAA section 111 and 129
standards\2\ CAA section 129(g)(2). Based on our outreach efforts, we
do not believe there are any CISWI units that are in noncompliance with
the NSPS contained in the final 2011 CISWI rule.
---------------------------------------------------------------------------

    \2\ The date for determining whether a source is a ``new''
source is the publication date of the proposed standards. The final
rule and reconsideration proposal contained a typographical error in
40 CFR 60.2015(a)(1) that did not specify the June 4, 2010, proposal
date.
---------------------------------------------------------------------------

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

B. Summary of This Final Rule

    As stated above, the December 23, 2011, proposed rule addressed
specific issues and provisions the EPA identified for reconsideration.
This summary of the final rule reflects the agency's final action in
regards to those provisions identified for reconsideration and on other
discrete matters identified in response to comments or data received
during the comment period. Information on other provisions and issues
not proposed for reconsideration is contained in the notice and record
for the 2011 CISWI rule. 76 FR 15704 (March 21, 2011).
1. Subcategories of Affected Units and Emission Standards
    This final rule defines a CISWI unit, in part, as any combustion
unit at a commercial or industrial facility that is used to combust
solid waste (as defined under RCRA)(40 CFR 60.2265 (NSPS) and 60.2875
(EG)). We have established standards in this final rule for the
following four subcategories of CISWI units: Incinerators (i.e., units
designed to burn discarded waste materials for the purpose of
disposal); small, remote incinerators; ERUs (i.e., units that would be
boilers or process heaters if they did not combust solid waste); and
waste burning kilns (i.e., units that would be cement kilns if they did
not combust solid waste). We have further subcategorized ERUs into
three subcategories and waste burning kilns into two subcategories for
CO emission limits only. Changes to the subcategories made since
proposal are discussed below in section II.C of this preamble:
``Summary of Significant Changes Since Proposal.''
    The final rule emission limits for new and existing sources in the
solid-fuel burning ERU subcategory and the waste-burning kilns
subcategories were revised based on changes to the inventories for
those subcategories as discussed below in section II.C of this
preamble: ``Summary of Significant Changes Since Proposal.'' Tables 2
and 3 of this preamble present the final emission limits for all
subcategories for existing and new sources, respectively.

                      Table 2--Comparison of Existing Source MACT Floor Limits for 2000 CISWI Rule and the Final MACT Floor Limits
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                CISWI Subcategories
                                        Incinerators  --------------------------------------------------------------------------------------------------
        Pollutant (units) \a\            (2000 CISWI                                              ERUs--Liquid/                            Small, remote
                                           limit)       Incinerators         ERUs--Solids              Gas         Waste-burning kilns     incinerators
--------------------------------------------------------------------------------------------------------------------------------------------------------
HCl (ppmv)...........................              62              29  0.20 (biomass units)/13           \b\ 14  \b\ 3.0................             300
                                                                        (coal units).
CO (ppmv)............................             157              17  260 (biomass units)/95                35  110 (long kilns)/790                 64
                                                                        (coal units).                             (preheater/
                                                                                precalciner).
Pb (mg/dscm).........................            0.04           0.015  0.014\b\ (biomass units)/          0.096  0.014 \b\..............             2.1
                                                                        0.14 \b\ (coal units).
Cd (mg/dscm).........................           0.004          0.0026  0.0014 \b\ (biomass                0.023  0.0014 \b\.............            0.95
                                                                        units)/0.0095 (coal
                                                                        units).
Hg (mg/dscm).........................            0.47          0.0048  0.0022 (biomass units)/       \b\ 0.0024  0.011 \b\..............          0.0053
                                                                        0.016 (coal units).
PM, filterable (mg/dscm).............              70              34  11 (biomass units)/160               110  4.6....................             270
                                                                        (coal units).
Dioxin, furans, total (ng/dscm)......      (no limit)             4.6  0.52 \b\ (biomass units)/        \b\ 2.9  1.3....................           4,400
                                                                        5.1 \b\ (coal units).
Dioxin, furans, TEQ (ng/dscm)........            0.41            0.13  0.12 (biomass units)/           \b\ 0.32  0.075 \b\..............             180
                                                                        0.075 \b\ (coal units).
NOX (ppmv)...........................             388              53  290 (biomass units)/ 340              76  630....................             190
                                                                        (coal units).
SO2 (ppmv)...........................              20              11  7.3 (biomass units)/650              720  600....................             150
                                                                        (coal units).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ All emission limits are expressed as concentrations corrected to 7 percent O2.
\b\ See the memorandum in the CISWI docket ``CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule'' for
  details on this calculation.

                         Table 3--Comparison of New Source MACT Floor Limits for 2000 CISWI Rule and the Final MACT Floor Limits
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Final CISWI subcategories
                                        Incinerators  --------------------------------------------------------------------------------------------------
        Pollutant (units) \a\           (2000 limit)                                              ERUs--Liquid/                            Small, remote
                                                        Incinerators         ERUs--Solids              Gas         Waste-burning kilns     incinerators
--------------------------------------------------------------------------------------------------------------------------------------------------------
HCl (ppmv)...........................              62           0.091  \c\0.20 (biomass units)/          \b\ 14  3.0 \b\................             200
                                                                        13 (coal units).
CO (ppmv)............................             157              17  240 (biomass units)/95                35  90 (long kilns)/190                  13
                                                                        (coal units).                             (preheater/
                                                                                precalciner).
Pb (mg/dscm).........................            0.04       \b\ 0.015  0.014 \b\ (biomass                 0.096  0.014 \b\..............             2.0
                                                                        units)/0.14 \b\ (coal
                                                                        units).
Cd (mg/dscm).........................           0.004          0.0023  0.0014 \c\ (biomass                0.023  0.0014 \b\.............            0.67
                                                                        units)/0.0095 (coal
                                                                        units).
Hg (mg/dscm).........................            0.47     \b\ 0.00084  0.0022 \c\ (biomass          \d\ 0.00056  0.0037\b\..............          0.0035
                                                                        units)/0.016(coal
                                                                        units).
PM, filterable (mg/dscm).............              70              18  5.1 (biomass units)/160              110  2.2....................         \c\ 270
                                                                        (coal units).
Dioxin, furans, total (ng/dscm)......      (no limit)        \b\ 0.58  0.52 \b\ (biomass units)/     (no limit)  0.51 \b\...............           1,800
                                                                        5.1 \b\ (coal units).
Dioxin, furans, TEQ (ng/dscm)........            0.41            0.13  0.076 \b\ (biomass             \d\ 0.093  0.075 \b\..............              31
                                                                        units)/0.075 \b\ (coal
                                                                        units).
NOX (ppmv)...........................             388              23  290 \c\ (biomass units)/              76  200 \b\................             170
                                                                        340 (coal units).
SO2 (ppmv)...........................              20          \c\ 11  7.3 \c\ (biomass units)/             720  28.....................             1.2
                                                                        650 (coal units).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ All emission limits are measured at 7 percent O2.
\b\ See the memorandum ``CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule'' for details on this
  calculation.
\c\ The NSPS limit equals the EG limit. The EG limit was selected as the NSPS limit.
\d\ D/F TEQ and Hg limits for ERUs--liquid/gas were replaced with D/F TEQ limits for liquid fuel major source boilers. See ``CISWI Emission Limit
  Calculations for Existing and New Sources for the Reconsideration Final Rule'' for details.
\e\ SO[ihel2] limits for Waste-burning kilns were replaced with SO[ihel2] limits for Portland Cement NSPS kilns. See ``CISWI Emission Limit Calculations
  for Existing and New Sources for the Reconsideration Final Rule'' for details.

2. Fuel Switching Provisions
    The EPA is finalizing the proposed fuel switching provisions that
address the situation where CISWI units cease combusting solid waste,
and where existing commercial and industrial combustion units begin
combusting solid waste (40 CFR 60.2330 for existing units and 40 CFR
60.2710 for new units). Units that cease combusting solid waste remain
subject to CISWI for at least 6 months after solid waste is last added
to the combustion chamber. After 6 months, sources must either comply
with any applicable section 112 standard or, if they intend to combust
solid waste in the future, opt to remain subject to CISWI and continue
to comply with the applicable provisions. Combustion units located at
commercial or industrial facilities that begin combusting solid waste
are solid waste incineration units on the date they begin combusting
solid waste. Existing units that begin combusting solid waste within 6
months of the effective date of the CISWI EG must comply with the
standards on the effective date of those standards. Existing units that
begin combusting solid waste after the effective date of the CISWI EG
must comply with those standards at the time the unit begins combusting
solid waste.
3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil Treatment
Units, Laboratory Analysis Units and Space Heaters
    We are finalizing the proposed definitions for cyclonic burn
barrels, burn-off ovens, soil treatment units, and laboratory analysis
units. We have revised the proposed definition for space heaters to
clarify applicability for units that meet the requirements of 40 CFR
part 279. The final definitions describe the types of units and state
that these different types of units are not incinerators, small remote
incinerators, ERUs, or waste burning kilns. The EPA is including these
definitions in the final rule to differentiate these units from the
units for which the agency established standards in the 2011 CISWI rule
and this final action.
4. Affirmative Defense for Malfunction Events
    The EPA is retaining in the final rule the proposed affirmative
defense to civil penalties for malfunction events. The EPA first
included an affirmative defense in the 2011 final rule in an attempt to
balance a tension, inherent in many types of air regulation, to ensure
adequate compliance while simultaneously recognizing that despite the
most diligent of efforts, emission standards may be violated under
circumstances beyond the control of the source. This final
reconsideration attempts to add clarification to the affirmative
defense by revising some of the regulatory provisions that specify the
elements that are necessary to establish this affirmative defense as
proposed--with minor changes from proposal described later in this
section.
    Sources are required to comply with the CISWI standards at all
times, and the EPA recognizes that even equipment that is properly
designed and maintained can sometimes fail and that such failure may
cause an exceedance of the relevant standard. The EPA must establish
emission standards that ``limit the quantity, rate, or concentration of
emissions of air pollutants on a continuous basis.'' 42 U.S.C. 7602(k)
(defining ``emission limitation and emission standard''). See generally
Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008.) The
affirmative defense for malfunction events meets this requirement by
ensuring that even where there is a malfunction, the emission standard
is still enforceable through injunctive relief. See generally, Luminant
Generation Co. v. EPA, 2012 U.S. App. LEXIS 15722 (5th Cir. 2012)

(upholding EPA's approval of affirmative defense provisions in a CAA
State Implementation Plan). While ``continuous'' standards, on the one
hand, are required, there is also case law indicating that in many
situations it is appropriate for the EPA to account for the practical
realities of technology. For example, in Essex Chemical v. Ruckelshaus,
486 F.2d 427, 433 (D.C. Cir. 1973), the D.C. Circuit acknowledged that
in setting standards under CAA section 111 ``variant provisions'' such
as provisions allowing for upsets during startup, shutdown and
equipment malfunction ``appear necessary to preserve the reasonableness
of the standards as a whole and that the record does not support the
`never to be exceeded' standard currently in force.'' See also,
Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir.
1973). Though intervening case law such as Sierra Club v. EPA and the
CAA 1977 amendments call into question the relevance of these cases
today, they support the EPA's view that a system that incorporates some
level of flexibility is reasonable.
    The affirmative defense provisions allow sources to avoid civil
penalties for exceedances caused by a malfunction event if the source
demonstrates by a preponderance of the evidence that the malfunction
event meets the definition of malfunction in 40 CFR 60.2. By
incorporating an affirmative defense, the EPA has formalized its
approach to upset events beyond the control of the source. In a Clean
Water Act setting, the Ninth Circuit required this type of formalized
approach when regulating ``upsets beyond the control of the permit
holder.'' Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 (9th Cir.
1977). See also, Mont. Sulphur & Chem. Co. v. United States EPA, 2012
U.S. App. LEXIS 1056 (Jan 19, 2012) (rejecting industry argument that
reliance on the affirmative defense was not adequate). But see,
Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057-58 (D.C. Cir. 1978)
(holding that an informal approach is adequate). The affirmative
defense provisions give the EPA the flexibility to both ensure that its
emission standards are ``continuous'' as required by 42 U.S.C. 7602(k),
and account for unplanned upsets and thus support the reasonableness of
the standard as a whole. In addition, the affirmative defense
provisions are designed to ensure that steps are taken to correct the
malfunction, minimize emissions during the malfunction, and prevent
future malfunctions.
    We are promulgating revisions to the affirmative defense provisions
in section 60.2120 and 60.2685 as described at proposal (76 FR 80461)
and making some minor additional revisions. The terms ``exceedance''
and ``excess emissions'' and ``applicable emission limitations were
being exceeded'' were replaced with the term ``violation'' to more
accurately reflect that the affirmative defense is only available when
there has been a violation of the standard. The phrase ``emission
limit'' was changed to ``emission standards'' to reflect that the
affirmative defense could be applicable to certain work practice
standards. The word ``however'' was removed to incorporate more plain
language into the regulation. The term ``notification'' was changed to
``reporting'' to reflect that the root cause analysis required under
affirmative defense would be submitted with other periodic reporting.
The term ``and monitoring'' was deleted because monitoring malfunctions
are defined differently than malfunctions of process and control units
and the affirmative defense is intended to apply to malfunctions to
affected units that cause a failure to meet an emission standard. In
multiple instances the word ``were'' was changed to ``was'' to improve
the clarity of a provision. The term ``facility'' was changed to
``affected source'' to clarify that the affected source regulated by
the rule must be operated in a manner consistent with good practices
for minimizing emissions versus the entire facility. The phrase ``off
shift and overtime labor were used, to the extent practicable to make
these repairs'' was removed. The EPA no longer believes the language
concerning the use of off-shift and overtime labor is necessary because
the regulation requires that to establish the affirmative defense the
owner must prove by a preponderance of the evidence that repairs were
made as expeditiously as possible when a violation occurs. Although we
believe that use of off-shift or overtime labor could be cited as
evidence that the owner or operator expedited repairs, we do not
believe this level of detail is necessary in the regulatory text. The
written report required when asserting an affirmative defense was
changed from a separate ``semiannual'' report to a report that is
submitted with the first periodic compliance, deviation report, or
excess emission report due after the event. Lastly, the requirement to
notify the Administrator by telephone or facsimile within two business
days'' was removed when we refined the affirmative defense reporting
requirements based upon comments received.
5. Oxygen Correction Requirements and CO Monitoring Requirements
    We are finalizing provisions for calculating the 30-day CO rolling
average that allow uncorrected CEMS reading to be used during the
period of operation from a cold start to bring the combustion unit up
to minimal normal operating temperature. We are also allowing
uncorrected CEMS readings to be used in 30-day average calculations for
the period of operation following the last waste material (or material
feed for waste burning kilns) being fed to the combustion unit during
shutdown procedures of the unit. For every type of CISWI unit except
waste-burning kilns, the period of time allowed for uncorrected CEMS
data during a startup shall be 48 hours or less per startup event and
shall be 24 hours or less for each shutdown event. For waste-burning
kilns, the period of startup begins when the kiln's induced draft fan
is turned on and fuel is being combusted and continues until continuous
feed is introduced into the kiln, at which time the kiln is in normal
operating mode. Shutdown begins when feed to the kiln is halted.
Sources must indicate in the CEMS data records which CEMS data are
obtained during the startup and shutdown periods. Since the
O2 correction calculation will affect all corrected CEMS
data, we have expanded these provisions in the final rule to allow for
uncorrected CEMS data for any pollutant that sources elect to measure
continuously with CEMS and calculate 30-day rolling averages to
demonstrate continuous compliance.
    Additionally, we have finalized removal of continuous CO monitoring
requirements for new and existing ERU units. We are instead requiring
annual CO stack tests and continuous O2 monitoring and we
are allowing CO monitoring with CEMS as a compliance alternative. We
have also removed the continuous CO monitoring requirements for new
CISWI units in the other subcategories, but sources may demonstrate
compliance using CO CEMS if they so choose. The authority to use
uncorrected CEMS data during startup and shutdowns discussed above
applies to all CISWI sources that elect to demonstrate compliance with
any emission limits with a CEMS instead of performing annual stack
tests. Changes to the CO and other optional CEMS monitoring
requirements made since proposal are discussed below in Section II.C of
this preamble: ``Summary of Significant Changes Since Proposal.''

6. Full-Load Stack Test Requirement for CO Coupled With Continuous
O2 Monitoring
    We are finalizing the full-load stack test and continuous
O2 monitoring provisions in today's action that allow
existing sources to use their current O2 analyzer and
O2 trim systems to demonstrate continuous compliance. Based
on comments received, we have made some clarifying changes to these
provisions to be clear that existing O2 trim systems and
O2 monitors may be used to demonstrate continuous
compliance, as well as clarifications on establishing the operating
limits for O2 content. Changes to the continuous
O2 monitoring requirements made since proposal are discussed
below in section II.C of this preamble: ``Summary of Significant
Changes Since Proposal.''
7. Non-Detect Methodology Using Three Times the Detection Level
    Since proposal, the EPA continued its review of sampling volumes
and detection levels across various emission testing ICR efforts on
various combustion sources to encompass additional pollutants measured
using EPA Reference Method 29 (See memorandum ``Updated data and
procedure for handling below detection level data in analyzing various
pollutant emissions databases for MACT and RTR emissions limits'' in
the CISWI docket). As a result of this analysis, we have determined
recommended values for three times the RDL that may be used as a
minimum emission limit value that can be accurately measured by most
laboratories for Cd and Pb.\3\
---------------------------------------------------------------------------

    \3\ The RDL methodology is consistent with the RDL methodology
outlined in the December 2011 reconsideration proposal. 76 FR 80463.
---------------------------------------------------------------------------

    Furthermore, based on comments on our application of this non-
detect methodology approach to CO data measured using instrument
methods, we have made some modifications to the span calculation
approach used in the proposed rule. Changes to the emission limits for
Cd, Pb and the span adjustment calculations for CO made since proposal
are discussed below in section II.C of this preamble: ``Summary of
Significant Changes Since Proposal.''
8. Definitions for Foundry Sand Thermal Reclamation Unit and Chemical
Recovery Unit
    We are finalizing the proposed definitions of ``foundry sand
thermal reclamation unit'' and ``chemical recovery unit'' to clarify
that these units are not incinerators, waste-burning kilns, ERUs or
small, remote incinerators under subparts CCCC or DDDD.
9. Definition of Contained Gaseous Material
    In today's final rule, we have reintroduced and finalized the
definition for ``contained gaseous material'' as found in the 2000
CISWI rule as proposed. As discussed earlier, the Court's vacatur of
the Delay Notice now requires this definition to be reintroduced since
we are now amending the 2011 CISWI rule instead of making amendments to
the 2000 CISWI rule as when we published the December 2011
reconsideration proposal.
10. Parametric Monitoring Provisions for Additional Control Device
Types
    In the proposed rule, we requested comment on whether there were
additional control device types that we should identify monitoring
provisions for in the rule. We received comments on this topic and, in
today's final rule, are including monitoring provisions for sorbent
injection rate for dry scrubber control devices (40 CFR 60.2165 and 40
CR 60.2730). We have also clarified that sources that elect to use
optional CEMS to monitor continuous compliance for Hg, D/Fs or
NO2 may do so as a substitute for parametric monitoring of
ACI and SNCR control devices, respectively. Changes to the parametric
monitoring provisions made since proposal are discussed below in
section II.C of this preamble: ``Summary of Significant Changes Since
Proposal.''
11. Particulate Matter Continuous Monitoring Provisions for Large ERUs
and Waste-Burning Kilns
    In today's rule, we are finalizing some revisions to the monitoring
requirements for ERUs with an annual average heat input rate greater
than 250 MMBtu/hr and extending the same PM continuous monitoring
provisions to waste-burning kilns. In the final 2011 CISWI rule, these
units were required to monitor continuously for PM using a PM CEMS;
however, the PM CEMS technology may not be sufficient to certify
accurate monitor performance in the PM concentration range of the CISWI
biomass ERU and waste-burning kiln limits. Therefore, we are requiring
continuous PM parameter monitoring systems for these units similar to
those being required for major industrial boilers and utility boilers.
The EPA is further requiring that a site-specific parametric operating
limit be established during the performance test, that there be
continuous monitoring of that parametric limit using a PM CPMS, that
four deviations within a 12-month operating period constitute a
violation and trigger immediate corrective action and a Method 5
performance test within 30 days with an additional 15 days to
reestablish a site-specific operating limit.
    We have revised all operating parameter averaging for ERU units to
be on a 30-day rolling average and allowed the sorbent injection
parameter to be adjusted for varying ERUs based on load. Changes to the
PM continuous monitoring provisions and operating parameter provisions
made since proposal are discussed below in section II.C of this
preamble: ``Summary of Significant Changes Since Proposal.''
12. Revised Definition of Waste-Burning Kiln
    This final rule includes a definition of waste-burning kiln that
has been revised since the March 2011 CISWI Rule. This definition helps
clarify the EPA's intent regarding which types of Portland cement kilns
are considered subject to CISWI standards and which kilns are subject
to the Portland cement NESHAP. Since proposal, some additional language
was added to this definition to further clarify our proposed
definition. Changes to the definition of waste burning kiln made since
proposal are discussed below in section II.C of this preamble:
``Summary of Significant Changes Since Proposal.''
13. Revised Definition of Solid Waste
    In the March 21, 2011, final CISWI rule, we removed the definition
of solid waste that was present in the 2000 CISWI Rule in light of the
definition of solid waste in the final NHSM rule. Because applicability
of section 129 hinges on sources combusting solid waste, we believe it
is appropriate to include a definition of that term in the CISWI rule.
For that reason, the final rule contains a definition of solid waste
that refers to the final NHSM rule at 40 CFR 241.2.
14. Compliance Dates
    In the final rule, we are revising the compliance dates for new and
existing CISWI units to reflect the effective dates of this final rule.
The compliance date for existing sources depends primarily on state
plan approval but may be no later than the date 5 years after
publication of this final rule in the Federal Register. The EG are
implemented through a state implementation plan or a federal plan.
Under the final amendments to the EG, and consistent with the CAA
section 129, revised state plans containing the revised existing source
emission limits

and other requirements in the final amendments are due within 1 year
after promulgation of the final reconsideration amendments. States must
submit revised state plans to the EPA by February 7, 2014. The EPA will
revise the existing federal plan to incorporate any changes and other
requirements that the EPA has promulgated. The federal plan applies to
CISWI units in any state without an approved state plan. Additional
discussion of the state plan implementation schedule can be found at 76
FR 15711.
    For new sources, the compliance date is either August 7, 2013 or
the date of startup of the source, whichever is later. New sources are
defined as sources that began construction on or after June 4, 2010, or
commenced reconstruction or modification after August 7, 2013.
15. Revised New Source Performance Standards
    In the 2011 CISWI rule and the proposed reconsideration rule, EPA
determined that the best controlled similar unit under section
129(a)(2) was not a solid waste incineration unit for certain new
source standards. Specifically, the new source limits for certain
pollutants from waste burning kilns and ERUs were based on cement kilns
and boilers, respectively. See memorandum ``CISWI Emission Limit
Calculations for Existing and New Sources'' in the CISWI docket. Both
the industrial boiler NESHAP and the Portland cement NESHAP are being
revised, and additional data has been incorporated into the new source
MACT analyses for those rules. As a result of the new data and
analyses, several of the new source NESHAP limits are being revised and
EPA is changing the following new source limits in CISWI based on the
revised limits in the NESHAPs: NOX for waste-burning kilns,
and Hg and PCDD/PCDF for ERU-liquid/gas units.

C. Summary of Significant Changes Since Proposal

1. Revision of the Subcategories
Energy Recovery Units
    In the final 2011 CISWI Rule, we established separate subcategories
based on the types of fuels and wastes ERUs were designed to burn.
Energy Recovery Units (e.g., units that would be boilers and process
heaters but for that fact that they combust solid waste) designed to
burn gaseous fuels and liquids that are solid waste were included in
one primary subcategory and the other primary subcategory was for units
designed to burn solid fuels or predominantly non-coal solid materials.
In the final 2011 CISWI rule, the solid fuel ERU subcategory was
further divided into separate subcategories for coal and biomass units,
with separate limits for CO, NOX and SO2 to
account for significant differences in unit design for these two types
of fuels and the impacts the different unit designs have on emissions
of these pollutants.
    Because the public was not afforded an opportunity to comment on
the revision to the ERU subcategory, we identified this as a
reconsideration issue in the March 21, 2011, notice of intent to
reconsider certain aspects of the 2011 CISWI Rule. Certain petitions
for reconsideration supported the further subcategorization of the
solid-fuel ERU subcategory and suggested that all nine emission limits
should be divided between coal and biomass ERUs, instead of only having
different limits for CO, NOX and SO2.
    We granted reconsideration of our subcategorization approach for
ERUs and proposed to establish different emission limits for PM, Cd,
Pb, and D/F between coal and biomass units, in addition to establishing
different limits for CO, NOX and SO2. We also
solicited comment on whether we should also subcategorize solid-fuel
ERUs for HCl and Hg.
    Based on comments and information received during the comment
period, we have determined that it is appropriate to subcategorize
solid fuel ERUs for all nine CAA section 129 pollutants. We recognize
that there are significant design and operational differences between
biomass and coal ERU units that impact the generation of all nine
regulated pollutants, and, for this reason, we are establishing
separate emission standards for all nine pollutants from coal and
biomass ERUs in this final rule.
    In addition, since issuing the proposed reconsideration CISWI rule,
we have received comments and data which allowed us to update our
inventory of ERUs. The inventory adjustments we made more accurately
reflect the inventory of solid waste combustion units. Based on
comments from the operator of the units, we removed three units from
the final rule inventory of biomass ERUs that were determined to be
non-waste burning units and we re-analyzed the emission limits for the
solid-biomass ERU subcategory. The commenter explained that, although
permitted to burn materials that would be considered solid waste, these
units had ceased burning the materials in question several years ago
and would not recommence burning these in the future. Thus, at the time
of testing, these units were not solid waste incineration units. We
also received additional CO emissions data and re-analyzed the
performance of the best-performing ERU in the solid-coal ERU
subcategory. The emission limits in this final rule reflect the new
inventory and emission data received; however, we have used the same
methodology as in the 2011 CISWI rule and December 23, 2011,
reconsideration proposal for establishing the emission limits.
Waste-Burning Kilns
    Prior to the reconsideration proposal, the EPA performed an
analysis of the materials being combusted in the entire inventory of
Portland cement kilns in light of the final NHSM rule (See memorandum
``Revised Floors without Kilns that Would have been CISWI Kilns Had the
Solid Waste Definition Applied'' in the CISWI docket). As a result of
this analysis, we added 11 kilns to our inventory of waste-burning
kilns. In addition to this, we further reviewed the Portland cement
emissions test records and identified some additional test data for
kilns that were added to the CISWI inventory following the March 21,
2011, final rule publication. This newly-identified data was extracted
and compiled into the CISWI database, and then the MACT floor emission
limits were re-calculated in the December 23, 2011, proposed rule to
reflect the updated inventory and additional data. Following proposal,
we were also notified of one additional waste-burning kiln and that one
of the kilns in the inventory was not burning waste materials. We made
these adjustments to our inventory, bringing the total waste-burning
kiln inventory to 23 kilns. We recalculated the standards in this final
rule to include all 23 waste burning kilns.
    As with the new ERU standards, we have used the same methodology to
establish today's emission limits as we used for the final 2011 CISWI
rule. We have also retained the emissions concentration basis for the
standards. However, Table 4 of this preamble presents the emission
limits for PM, NOX, SO2 and Hg on a production
basis for comparison.

   Table 4--Waste-Burning Kiln Emission Limits Expressed in Production
                                  Basis
------------------------------------------------------------------------
                                                      Existing     New
                  Pollutant (units)                     kilns     kilns
                                                         \a\       \a\
------------------------------------------------------------------------
Hg (lb/MM ton clinker)..............................        58        21
PM (lb/ton clinker).................................     0.026     0.013
NOX (lb/ton clinker)................................       6.7       1.5

SO2 (lb/ton clinker)................................       8.9       0.4
------------------------------------------------------------------------
\a\ Approximate.

Small Remote Incinerators
    After the reconsideration proposal, we received additional
information from stakeholders of additional units in operation and
planned for operation within the next year or two that would qualify as
small remote incinerators. The resulting changes included moving one
unit from the small remote incinerator subcategory to the incinerator
subcategory due to the unit's proximity to a landfill in Alaska. An
additional 15 small remote incinerators were added to our inventory of
existing units, bringing the total of this subcategory to 28 units.
This additional information resulted in changes to the emissions
limits.
2. Revisions to the Monitoring Requirements
    After the March 21, 2001 final rule, petitioners identified
computational issues for correcting CO concentration measurements to 7
percent O2 for periods when the O2 content of the
flue gas approaches the ambient air O2 content during
startup and shutdown periods for sources that demonstrate compliance
with the CO limit using CEMS. The equation for the 7 percent
O2 correction is X ppm CO* (20.9-7)/(20.9-%O2 of
flue gas stream). As seen by this equation, as the flue gas stream
O2 content gets closer to 20.9, the value of X is multiplied
by an ever increasing factor. For example, when the stack gas
O2 content is 4 percent, the factor is 0.82. If the stack
gas O2 content is 20 percent, the factor increases to 15.4.
Therefore, a flue gas CO concentration reading of 100 ppm would be
corrected to 82 ppm for a stack gas at 4 percent O2 content,
but would become a 1,540 ppm corrected concentration for a stack gas at
20 percent O2 content. In the extreme, at a 20.8 percent
stack gas concentration (i.e., approximating ambient air O2
content), the same 100 ppm measurement would be corrected to 13,900
ppm.
    Petitioners noted that O2 contents relatively close to
ambient air often are maintained during combustion unit startup and
shutdown in order to safely operate the combustion unit. Therefore, CO
readings during these periods would be multiplied by an
uncharacteristically high correction factor, and the resulting
corrected CO concentrations inflated due to the 7 percent O2
correction. Petitioners and commenters presented data that show these
corrected data points would have the potential to drive the 30-day
rolling average values beyond the emission limit for the affected
units, but this would not be an accurate reflection of the CO
emissions.
    Petitioners suggested various approaches to remedy this situation,
with one being to not require the 7 percent O2 correction
requirement during unit startup and shutdown for sources that
demonstrate compliance with the CO limit using CEMS. In other words,
the CEMS data as reported at stack gas concentration without
O2 correction would be included in the rolling average
calculations for periods when the combustion unit is either being
started up or shutdown instead of applying the O2 correction
to that data before it is included in the calculation of the 30 day
rolling average. During all other operating periods, the CEMS data
would be corrected to a 7 percent O2 concentration prior to
calculating the rolling average. Stated otherwise, the data obtained
during startup and shutdown, which will not include the 7 percent
O2 correction, will be added to the O2 corrected
data collected during all other periods to calculate the 30-day average
that is used to determine continuous compliance with the applicable CO
limit for sources that demonstrate compliance using CEMS.
    Prior to issuing the reconsideration proposal, we received data for
one unit in one subcategory (coal ERUs) that indicated startups usually
occur over a 4-hour period and shutdowns occur over a 1 hour period.
Therefore, we proposed provisions for calculating the 30-day CO rolling
average that would allow the source to use CEMS data that does not
include the O2 correction to be used during the first 4
hours of operation from a cold start and the 1 hour of operation
following the last waste material being fed to the combustion unit
during shutdown procedures of the unit. Since proposal, however, we
received comments on this provision, primarily pointing out that longer
periods are required to protect combustion equipment from rapid
temperature swings, which could cause damage to the fireboxes or kiln
surfaces. Commenters also contended that the limited information
concerning the startup and shutdown periods during which the
O2 correction would not be required did not reflect the
needs for all combustor types or control device configurations. We have
therefore revised the shutdown and startup period of operation to be
more generally applicable to CISWI units. In the case of ERUs,
incinerators and small remote incinerators, we determined that the
startup period should include the times prior to the source reaching
the minimal operating temperature, but in no case longer than 48 hours.
For shutdown, we determined as at proposal that shutdown begins after
the last waste has been fed to the combustor prior to shutdown but we
have revised the final rule to indicate that the shutdown period may
not exceed 24 hours. We have, therefore, specified in the final rule an
UL of 48 hours for startup periods to use uncorrected CEMS data and 24
hours for shutdown periods to use uncorrected CEMS data for ERUs,
incinerators and small remote incinerators. For waste-burning kilns,
these periods are triggered off of material feed to the kiln rather
than solely waste feed. This addresses the fact that kilns, unlike
other CISWI units, are producing product rather than solely disposing
of waste or recovering energy. Therefore, for waste-burning kilns,
startup begins when the kiln's induced fan is turned on and continues
until continuous feed is introduced into the kiln at which time the
kiln is in normal operating mode. Shutdown begins when feed to the kiln
is halted.
    As at proposal, sources must indicate in the CEMS data records
which CEMS data are uncorrected because they were obtained during the
startup and shutdown period.
    The O2 correction issue described above for CO CEMS data
collected during startup and shutdown applies equally to other
pollutants measured with a CEMS that is corrected to 7 percent
O2. The final CISWI rule allows sources to demonstrate
compliance with any of the standards using CEMS, and, for this reason,
we have expanded authorization to use uncorrected CEMS data during
periods of startup and shutdown to all pollutants for which a source
demonstrates compliance with CEMS. In the final rule, the 7 percent
O2 correction is not required during startup and shutdowns
for any CISWI sources that elect to demonstrate continuous compliance
with any of the emission limits with a CEMS instead of stack tests.
3. Oxygen Monitoring Requirements
    At proposal, we included provisions and definitions in an attempt
to ensure that sources would be able to use existing O2
monitoring systems to meet the continuous O2 monitoring
requirements. However, commenters identified potential issues with our
proposed provisions and definitions. To address these commenters'
concerns, we

have revised the provisions in 40 CFR 60.2165 and 40 CFR 60.2730 to
clarify the methodology for establishing and monitoring the
O2 level. Furthermore, the definition of ``oxygen analyzer
system'' has been revised to clarify the appropriate locations and
nomenclature of possible existing monitoring systems so that their use
to meet these requirements is fully enabled.
4. Removal of the Definition of Homogeneous Waste
    The EPA included in the final 2011 CISWI Rule a definition of
homogenous waste and a process for evaluating claims that a particular
waste stream is homogenous. The definition was added to the 2011 CISWI
rule in response to comment. Because the determination of homogeneity
of a waste stream is relevant to applicability of CAA section 129 to
qualifying small power producers and qualifying cogeneration
facilities, we determined it was reasonable to include a definition of
``homogenous waste'' and a process by which sources could obtain a
determination that a waste stream is homogenous from the EPA.
    In the 2011 CISWI Rule, the EPA stated that a determination
concerning whether a waste is homogeneous is made on a case-by-case
basis. The EPA added provisions to the CISWI final rule that require
source owners or operators seeking the exemption to submit a request
for a homogeneous waste determination to the EPA, and that they support
their request with information describing the materials to be combusted
and why they believe the waste is homogeneous. The 2011 CISWI rule also
stated that the determination of what constitutes a homogeneous waste
is not delegable to the state or local agencies. In the December 23,
2011, reconsideration proposal, we proposed for comment the definition
of ``homogeneous waste'' and the provisions for making homogeneous
waste determinations that were included in the 2011 CISWI rule.
    Commenters generally did not agree with the proposed definition and
provisions for making a homogeneous waste determination, arguing that
the definition and provisions introduced ambiguities and stipulations
that would prevent classification of many materials (including fossil
fuels) as being ``homogeneous.'' We reevaluated the definition and
provisions in light of the comments and determined that the definition
and provisions could be interpreted in a manner that would be unduly
restrictive; however, we also determined that commenters proposed
alternative definitions and provisions were equally problematic.
Therefore, the final rule does not include a definition of
``homogeneous waste''. We are also removing the requirement that
qualifying small power producers and qualifying cogeneration facilities
that combust solid waste obtain a determination from EPA that such
waste is homogenous. Because the final rule does not include a
homogenous waste definition or a process to obtain a determination from
EPA, we believe that it is appropriate to inform the EPA when a unit
qualifies as a small power generator or cogeneration facility as
defined under section 129 because the site specific fact patterns for
different types of waste may vary considerably. Therefore, the final
rule requires qualifying small power producers and qualifying
cogeneration facilities that combust solid waste notify the EPA that
such waste is homogeneous. (40 CFR 60.2020 and 40 CFR 60.2555).
    Section 129 states, in part, that the term ``solid waste
incineration unit'' does not include:

* * * qualifying small power production facilities, as defined in
section 796 (17)(C) of title 16, or qualifying cogeneration
facilities, as defined in section 796 (18)(B) of title 16, which
burn homogeneous waste (such as units which burn tires or used oil,
but not including refuse-derived fuel) for the production of
electric energy or in the case of qualifying cogeneration facilities
which burn homogeneous waste for the production of electric energy
and steam or forms of useful energy (such as heat) which are used
for industrial, commercial, heating or cooling purposes * * * CAA
Section 129(g)(1)(B) (emphasis added)

    We believe that the parenthetical contained in the exemption that
prohibits refuse derived fuel, which is made from municipal solid
waste, from qualifying as homogenous waste and allows tires and used
oil to qualify as homogenous wastes provides guidance on what
constitutes a homogenous waste. We do not accept industry's assertion
that any waste from a common source is homogeneous, or that in all
cases combining two homogeneous wastes results in a homogeneous waste,
as doing so could result in almost any waste stream being homogenous.
We do not believe that is consistent with the statute. Instead, we
believe Congress intended this exemption to apply only when the waste
stream has a consistent makeup that allows the source and the
enforcement authority to predict the range of emissions from the
combustion of the waste on an ongoing basis.
    In keeping with this interpretation, we maintain that the
homogeneous wastes are generally material specific (e.g., tires or used
oil). We believe this means that a homogeneous waste is of known origin
and that it can be identified as a specific material or materials--
using the example in the Act, certain used oils or scrap tires. By
contrast, municipal solid waste can be identified as municipal solid
waste as a general term, but it is not composed of only one or two
specific type of waste; e.g. municipal solid waste cannot be identified
as one specific material or group of materials. Regarding variability
of the composition of homogeneous waste throughout, homogeneous waste
may have variations in composition, but it should generally be within
the range of operations which produce the waste (e.g., size,
contaminant levels, state of matter.) We also believe that off-spec
materials may be homogeneous, even if they are not homogeneous to the
on-spec material, and that, if combusted together, both the on-spec and
off-spec materials may require separate homogenous waste
determinations. We also believe that homogeneous waste should have
predictable known contaminant levels, even if those contaminant levels
vary within a range. We may question the homogeneity of a specific
material if it is adulterated such that it takes on the characteristics
of a different type of waste (e.g., used oil which is so contaminated
with PCB's from a leaking heat exchanger, such that the used oil takes
on the characteristics of a waste PCB stream as opposed to a used oil
stream) or where the BTU value of a waste is so altered that other
fuels must be introduced to ensure combustion and preserve the purpose
of combustion under the exemption, i.e. to produce energy.
5. Non-Detect Methodology Using Three Times the Detection Level
    Prior to reconsideration proposal, the EPA conducted a review of
sampling volumes and detection levels across various emission testing
ICR efforts on various combustion sources (See memorandum ``Updated
data and procedure for handling below detection level data in analyzing
various pollutant emissions databases for MACT and RTR emissions
limits'' in the CISWI docket). As a result of this analysis, we
determined recommended values for three times the RDL (3xRDL) that may
be used as a minimum emission limit value that can be accurately
measured by most laboratories. These recommended values were then
compared with calculated emission limits and, if the calculated limit
was less than the recommended 3xRDL, the 3xRDL value was selected as
the limit. Since the December 23, 2011, reconsideration proposal was
published,

we have continued our review and determined 3xRDL values for additional
metals measured using EPA Reference Method 29. These include
recommended values for Cd and Pb and we have applied this methodology
to those emission limits in addition to the D/F and Hg limits that were
reevaluated in the reconsideration proposal. As discussed in the
reconsideration proposal, the premise for this approach is the same as
described in the final 2011 CISWI rule but using a broader data set to
establish the 3xRDL value. We have not changed the methodology of the
emission limit calculation or tabulation of the three times the
detection limit value that was used in the final 2011 CISWI rule.
    Since reconsideration proposal, some commenters have noted that the
EPA Method 5 minimum catch values were below levels established in
similar studies on this reference method. In light of these comments,
we have reconsidered the 1 mg minimum catch value used in the
reconsideration proposal and are now using a 1 mg minimum catch in
establishing the final rule emission limits. Our review and
determination of the 1 mg minimum catch are discussed in ``Minimum
Detection Limit for EPA Method 5'' in the CISWI docket.
    In a similar fashion, the CO span adjustment methodology has been
further refined in consideration of comments on the approach used to
adjust CO instrumental test methods readings in reconsideration
proposal. The methodology for adjusting CO emission test run data to
reflect the limitations from the instrument span used at testing is
described in the ``CISWI Emission Limit Calculations for Existing and
New Sources for the Reconsideration Final Rule'' memorandum in the
CISWI docket.
6. Parametric Monitoring for Additional Control Device Types
    In the December 23, 2011, reconsideration proposal, we stated that
we believed the control devices with monitoring provisions expressly
identified in the rules should encompass most types of control devices
that we anticipate the various types of CISWI units will use to meet
the emission limits. However, recognizing that a source might want to
employ another type of control that is not addressed, we provided
provisions for sources to petition for specific operating limits for
alternative control devices to be established during a performance
test. These provisions also allow specific operating limits to be
established for CISWI units without any air pollution control devices,
such as for units that employ material balance operating limits in
conjunction with periodic stack testing to demonstrate continuous
compliance.
    We also determined that dry sorbent injection (or dry scrubbers)
may be one type of additional control device that CISWI units may
widely use to control acid gases. Commenters agreed with our statement
and encouraged the EPA to identify operating parameters for dry
scrubbing systems in the final rule. We have done so, by both defining
``dry scrubber'' in the rule, and specifying that the sorbent injection
rate must be monitored and maintained at or above the operating rate
established during the HCl performance test (40 CFR 60.2165 and 40 CFR
60.2730). Furthermore, we have determined that the sorbent injection
rate for ERUs can be adjusted to reflect operating loads that are less
than those during the performance testing. Commenters have made
arguments that requiring a high sorbent injection rate during reduced
boiler loads can lead to fouling and plugging issues, especially for
acid gas sorbent injection. To address this particular concern, and to
provide consistency with other industrial boiler rules, we are also
providing this parametric monitoring provision for sorbent injection
air pollution control devices.
    Also regarding monitoring, we determined after proposal that we had
not clarified in the rule that sources opting to use CEMS to measure
NOX, Hg or D/F were not required to monitor ACI rates (for
Hg and D/F CEMS-equipped units) or SNCR parameter monitoring (for
NOX CEMS-equipped units). Our intent had been to not require
applicable control device parameter monitoring if a CEMS was in use for
the pollutant being controlled by the device. Control device parameter
monitoring is an acceptable and established method for determining
continuous compliance and it is appropriate to require such monitoring
when coupled with period stack testing. However, direct, continuous
emission measurements with a CEMS are sufficient for determining
compliance for CISWI units without requiring parametric monitoring. In
cases where CEMS data are available to directly measure regulated
pollutants, operating parameter data would be duplicative.
7. Particulate Matter Continuous Monitoring Provisions for Large ERUs
and Waste-Burning Kilns
    In today's rule, we are finalizing monitoring requirements for ERUs
with an annual average heat input rate greater than 250 MMBtu/hr. As we
stated in the proposal, recent EPA experience with the utility boiler
source category has led the EPA to allow PM CEMS as an alternative,
rather than a requirement. Industry commenters have maintained that
there were several problems with implementing the monitoring
requirements to demonstrate compliance using a PM CEMS and with the
requirements to conduct a periodic audit of the PM CEMS in accordance
with PS 11 of appendix B and Procedure 2 of appendix F to part 60. As
we discuss in response to these comments later in this preamble (See
II.E), the PM CEMS technology may not be sufficient to certify accurate
monitor performance in the PM concentration range of the CISWI biomass
ERU limits. Furthermore, in related ongoing work on the Portland cement
source category, we realize that similar concerns regarding PM CEMS are
applicable. Therefore, we are also removing PM CEMS (PS-11)
requirements for waste-burning kilns, and instead, requiring PM CEMS
equipment for these units that are used for continuous parametric
monitoring rather than for direct measure of compliance with the
numerical PM emissions limit, similar to those being required for major
industrial boilers and utility boilers. However, PM CEMS (PS-11), are
still allowed as an option for coal ERUs, incinerators and small remote
incinerators, since the emission limits for these subcategories do not
pose the same technical concerns as for biomass ERUs and waste-burning
kilns. To be consistent with these other rules, we have incorporated
30-day rolling averages to be measured with PM CPMS. The EPA is further
requiring that a site-specific parametric operating limit be
established during the performance test, that there be continuous
monitoring of that parametric limit using a PM CPMS, that an exceedance
of that site-specific operating limit be reported as a deviation and
trigger immediate corrective action and a Method 5 performance test
within 45 days.
8. Compliance Dates
    At reconsideration proposal, we proposed to extend the compliance
dates for existing units in the incinerator, ERU and waste-burning kiln
subcategories. We are finalizing the revision of the effective dates
for those three subcategories and, based on comments received, we are
also extending the compliance date for units in the small remote
incinerator subcategory. The EPA proposed to amend the standards for CO
for all subcategories of CISWI; to further

subcategorize certain subcategories; to change several other pollutant
standards for incinerator, ERU and waste burning kilns subcategories;
to change the compliance regime from CEMS-based to stack-test/
parametric-monitoring based for certain pollutants and unit types; and
to change the compliance calculation provisions for sources that are
required or that elect to use CEMS to demonstrate continuous
compliance. These proposed changes may occasion the need for additional
time for sources to study the possibility of different control and
monitoring strategies than would have been considered if we had not
amended the 2011 CISWI rule. New compliance strategies may require time
to implement. New engineering studies may be needed, potential
suppliers identified, a new bidding/procurement process undertaken and
the appropriate construction and operating permits obtained.
Significant plant redesign, in the form of new ductwork and new fan
design and changes in the main control equipment may be needed. See US
EPA, Engineering and Economic Factors Affecting the Installation of
Control Technologies for Multipollutant Strategies, October 2002.
Depending on the type of control, this normally requires 15-27 months.
Multiple control systems may take longer. Id. Installation of controls
normally occurs at times of unit outages, which will likely end up
being at differing times of the year for each of the CISWI
subcategories. For example, for waste-burning kilns, this would occur
during winter months (to coincide with kiln outages during low
production seasons). However, for small remote incinerators, facility
retrofits would need to occur while road access to the site is
available and climatic conditions allow for construction. Also, small
remote incinerators have the additional component of having to increase
the footprint of the site to accommodate additional space for control
devices and waste segregation facilities. This additional permitting
requirement and construction effort is not something other CISWI
subcategories have to face but adds an additional consideration to
developing a compliance strategy. In general, though, the differing
construction constraints for the various subcategories of CISWI likely
mean that there will be a wide variety to the rate of progress towards
compliance for the differing CISWI sources. Further, commenters have
argued that, due to the delay of the final 2011 CISWI rule, uncertainty
on selecting a compliance strategy was created, essentially putting
internal compliance implementation activities on hold until the
reconsideration was complete. As a result of these considerations, we
have finalized extending compliance for all subcategories of CISWI.
Comments on extending the compliance date and our responses to these
comments are found in the ``Summary of Comments and Responses to the
CISWI Reconsideration'' document in the CISWI docket.
    The compliance date for existing CISWI sources subject to standards
in this final rule is 5 years after the date of publication of this
final rule or 3 years after the state plan is approved, whichever
happens earlier. This date is being finalized in order to provide
facilities sufficient time to install controls or to make other
compliance-related decisions. However, the CAA section 129(f)(2) does
require that the promulgated standards be effective ``as expeditiously
as practicable after approval of a State plan,'' so that states have
the flexibility to determine that the standards for existing units
within their purview may have a compliance date which is less than the
allowable 3 years following approval of the state plan. For new
sources, the EPA is finalizing the proposed change of the compliance
date to 6 months after the date of publication of the final
reconsideration rule or at startup, whichever is later.
9. Definition of Waste-Burning Kiln
    In the December 23, 2011, reconsideration proposal, we proposed
revisions to the definition of ``waste-burning kiln'' to indicate that
the term ``does not include a kiln that is feeding non-hazardous
secondary ingredients exclusively into the cold end of the kiln.'' In
proposing this language, the EPA intended to codify principles set out
in a previous action granting and denying reconsideration of the NESHAP
for Portland cement kilns. See 76 FR 28318, 28322 (May 17, 2011); see
also Memorandum ``Revised Floors Without Kilns That Would Have Been
CISWI Kilns Had the Solid Waste Definition Applied'' (EPA, April 25,
2011) (which memorandum is summarized in the May 17 Federal Register
notice). The May 17, 2011, notice and April 25, 2011, memorandum state
in essence that combustion does not occur in any region of a cement
kiln except the hot end and that cement kiln dust added to the hot end
of a cement kiln also is not combusted since it is inorganic and
essentially inert.
    The language used at proposal captured some but not all of these
principles, since it referred only to the ``cold end'' of a cement
kiln, as pointed out by a number of commenters. The EPA is revising the
definition in the final rule to accurately reflect the May 17 preamble
and April 25 memorandum discussion of when combustion occurs in a
cement kiln. In addition, we are adding the fact that combustion in a
cement kiln does also take place in the combustion zone of a
precalciner or riser duct burner.
    One further clarification is appropriate. The May 17, 2011,
preamble contains one reference to legitimacy criteria for determining
when a secondary material is being recycled. 76 FR at 28322/1-2. The
threshold issue for determining if a unit is subject to section 129 is
whether it ``combusts'' solid waste material (see section 129 (g)(1)).
For cement kilns, this determination does not necessarily turn on
legitimacy of recycling, but rather on the nature of the cement kiln
process. Consequently, if combustion of solid waste is not occurring, a
unit is not a CISWI, irrespective of whether or not legitimate
recycling is occurring.
10. Exemption for Other Solid Waste Incineration (OSWI) Units
    Following publication of the December 23, 2011, reconsideration
proposal, we realized that the CISWI rule did not contain any language
to clarify overlap with another CAA section 129 regulation applicable
to OSWI units. The CISWI rule already contains exemptions for MWCs,
HMIWIs and SSIs, but omitted similar language for OSWI units.
Therefore, in this final rule, we are providing language in 40 CFR
60.2020 and 60.2555 that clarifies that incineration units that are
subject to 40 CFR part 60 subparts EEEE or FFFF are exempt from the
CISWI rule.

D. Technical Corrections and Clarifications

    We are also including some technical corrections and clarifications
in the final rule, as outlined below:
     Operating parameter limits during performance testing--
While we believe it is intrinsic that established operating parameter
limits do not apply during subsequent performance testing since they
are being confirmed or reestablished during the subsequent testing, we
provided language in the proposed rule in the NSPS to clarify that they
are waived during performance testing (40 CFR 60.2145(c)). However, we
inadvertently omitted this clarifying language in the emission
guidelines so we have added clarifying language in the final emission
guidelines at 40 CFR 60.2710(c).
     Bypass stacks on waste-burning kilns--While not included
in the final

rule text, we are clarifying here that the definition of ``bypass
stack'' in today's final rule does not have the same meaning as an
``alkali bypass'' used by some waste-burning kilns that manufacture
Portland cement.
     Clarifying that, consistent with CAA section 129(f)(1),
June 4, 2010, is the appropriate new source applicability date in 40
CFR 60.2015(a)(1).
     Revising the title of Table 2 to subpart DDDD to clarify
that these emission limits apply to incinerators which are currently
subject to CISWI emission limits promulgated in the 2000 CISWI rule.
     Clarifying that petitions for specific operating limits
for control devices not listed in this subpart must be submitted to the
Administrator at least 60 days before the performance test is scheduled
to begin (40 CFR 60.2115 and 40 CFR 60.2680).
     Providing definitions of ``30-day rolling average'' and
``responsible official'' to clarify what is meant by these terms.
     Adding text to the provisions for PM monitoring provisions
for ERUs to clarify that the 250 MMBtu/hr threshold is based upon the
average annual heat input rate, consistent with how this threshold is
applied in the industrial boiler NESHAP.
     Revising the affirmative defense text to clarify that
these provisions apply to violations of standards and to further
clarify the reporting requirements and criteria for sources seeking to
assert an affirmative defense (40 CFR 60.2120 and 40 CFR 60.2685).
     Revising the recordkeeping provisions in 40 CFR 60.2175(v)
and 40 CFR 60.2740(u) to reflect the categorical non-waste
determination provisions of 40 CFR 241.4.
     Revising the electronic reporting provisions in 40 CFR
60.2235 and 40 CFR 60.2795 to clarify the timing and mechanism for
submitting these reports and to be consistent with the electronic
reporting language in more recent rulemakings.
     Revising the definition of ``process change'' to clarify
the intended types of changes that would require re-testing.
     Making corrections to the D/F calculation methodologies
for toxic equivalency basis and adding calculation methodology
provisions for D/F TMB.
     Revising the definition of ``space heater'' to clarify
applicability for units that meet the requirements of 40 CFR 279.
     Revising the emission limits for those pollutants for
which data available from a similar source was determined to be better
suited for calculating the new source limits. Notably, this is the case
for NOX for waste-burning kilns, and for Hg and PCDD/PCDF
for ERU-liquid/gas units. These revisions reflect updates made to
emission limits of the selected similar sources.

E. Major Public Comments and Responses

    We have included some of the major comment topics and our responses
below in the preamble. All other comments and responses are provided in
the ``Reconsideration Response to Public Comments Document'' in the
CISWI docket.
Solid-Fuel ERU Subcategorization
    Comment: Several commenters support the proposed separate coal and
biomass standards for D/Fs, CO, NOX, SO2, PM, Cd
and Pb. However, these commenters further urge the EPA to establish
separate standards for HCl and Hg for coal and biomass. Commenters
state that the EPA's recognition that design and operational
differences between combustors designed to combust coal and those
designed to combust biomass is evidence to support subcategorizing
emission limits for all pollutants. One commenter discussed differences
in biomass and coal fuel rank, and the significant boiler design
differences in furnace height and volume that exist between units
designed to combust different fuel ranks of coal-fired boiler furnaces.
As an example, one commenter noted that a low-rank coal (high slagging
lignite) furnace can be 1.65 times the plan area, and 1.45 times the
furnace height, of a similar capacity furnace combusting a high rank
coal (medium volatile bituminous). The commenter stated that this large
difference exists even among varying grades of coal, with biomass units
being fuels of even lower rank than lignite. Therefore, according to
the commenter, furnace area and height (and hence, volume) are
significantly different between ERUs designed to combust coal and those
designed for biomass combustion. The commenter highlighted an analysis
of their existing boilers to see the feasibility of substituting
biomass for coal. The commenter's results indicated that, due to
fundamental design attributes of their coal-fired units, they could
only co-fire up to 20 percent biomass in the units. The commenter
explained that this limitation was due to design issues pertaining to
the unit being designed for coal, such as superheater tube spacing,
number and location of soot blowers, fouling characteristics of biomass
ash and the impact the high moisture levels of biomass fuels have on
fan capacity. The commenter stated that these findings further support
that coal and biomass are not interchangeable within ERUs and therefore
supports subcategorizing emission limits between the two types of unit.
The commenter also contended that the EPA acknowledged significant
design differences and their impacts on Hg emissions during development
of the Utility MACT Final Rule. The commenter urges the EPA to take a
similar approach in CISWI. One commenter agreed with differentiation
between coal-fired and biomass ERUs but supported keeping solid-fuel
ERUs together for purposed of HCl and Hg emission limits. Another
commenter argued that all of the EPA's subcategories are unlawful and
arbitrary, noting that their reasons for this belief were given in
their comments on the 2010 proposal.
    Response: Based on our proposal and follow-up comments summarized
below, the EPA is finalizing separate limits for all nine pollutants
for biomass and coal ERUs. We agree with comments concerning
differences in moisture content between biomass and coal-fired units.
We reviewed data in the CISWI database and see that the stack gas
moisture content of coal-fired ERUs is around 11.6 percent and is about
19.2 percent for the biomass ERUs. We have considered the technical
arguments provided by commenters on CISWI ERUs, other technical
differences we have previously considered in our decision to
subcategorize ERUs and how these design differences impact pollutant
emission characteristics of the ERU. As a result, we have determined
that subcategorizing all nine pollutant emission limits between coal
and biomass solid-fuel ERUs is appropriate for the final CISWI rule.
    One commenter supported the differentiation between coal and
biomass, but in keeping HCl and Hg limits together. However, for the
reasons given above, we have determined that all nine pollutants should
be subcategorized.
Contained Gaseous Material
    Comment: Commenters support the EPA retaining the 2000 CISWI rule's
definition of ``contained gaseous material.'' Some commenters believe
that the EPA should expressly include the definition of ``contained
gaseous material'' in the amendatory text to confirm that the
definition is back in the CISWI rule.
    Response: We believe that the commenters misunderstood what the EPA
proposed. Specifically, the basis of

the reconsideration proposal amendatory text was the 2000 CISWI rule--
not the 2011 CISWI rule--because the 2011 CISWI rule had not been
codified in the CFR pursuant to the Delay Notice. Therefore, by not
including the amendatory instruction to delete the definition in the
2000 rule in the proposed reconsideration rule, we proposed to retain
the definition as contained in the 2000 CISWI rule. However, as
explained above, due to the vacatur of the Delay Notice, the 2011 CISWI
rule is in effect and the definition of contained gaseous material does
not appear in that rule. For that reason, we are including the
definition of ``contained gaseous material'' found in the 2000 CISWI
rule in today's final rule.
    Comment: Many commenters who supported the EPA retaining the 2000
CISWI rule's definition of ``contained gaseous material'' also urged
the Agency to make clear that this definition should apply when
interpreting the term ``solid waste'' under RCRA.
    Response: As aforementioned, the Agency is including the definition
of ``contained gaseous material'' found in the 2000 CISWI Rule in
today's final rule. Specifically, the definition of ``contained gaseous
material'' is codified today, consistent with the 2000 CISWI Rule, as
meaning, ``gases that are in a container when that container is
combusted.''\4\
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    \4\ See 65 FR at 75359 and 75373.
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    CAA section 129(g)(6) states that the definition of ``solid waste''
shall have the meaning established by the Administrator pursuant to
RCRA. We agree that the definition of contained gaseous materials in
the final CISWI rule is consistent with the interpretation of that term
under RCRA for the purpose of defining when non-hazardous secondary
materials are solid wastes when combusted in CISWI units.\5\ As
discussed in more detail in the NHSM portion of the December 2011
reconsideration proposal and in various letters issued by EPA,\6\ the
NHSM rulemaking did not change any previous EPA position as it relates
to whether ``contained gaseous material'' is a solid waste under
RCRA.'' \7\
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    \5\ Note that for the purposes of CISWI, contained gaseous
materials are limited to gases in a container when that container is
combusted. This limitation is due to the fact that CAA section 129
is focused exclusively on combustion of non-hazardous solid wastes.
On the other hand, RCRA is focused on more than just combustion of
non-hazardous solid wastes (e.g., treatment, storage, and disposal
of hazardous and non-hazardous wastes); thus, this limitation is
inapplicable to RCRA. We also note that the term 'container' as used
in this definition is broader than the term as used in the hazardous
waste regulations (see 40 CFR 260.10, definition of container).
Specifically, the term here is not limited to a portable device, but
also includes stationary containers. We believe that these
interpretations under the CAA and RCRA are consistent.
    \6\ For example, see June 25, 2012 letter from Assistant
Administrator Mathy Stanislaus to Paul Noe. A copy of this letter
has been placed in the docket for today's rulemaking.
    \7\ See 76 FR at 80472-80473.
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    We note, however, that although gases must be ``contained'' to be
solid wastes under RCRA, EPA maintains separate and independent
authority under RCRA to regulate certain types of uncontained gases
whether or not they themselves are solid wastes (e.g., gases emitted
from the management of hazardous waste).\8\
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    \8\ RCRA section 3002(a) directs EPA to establish standards for
hazardous waste generators and RCRA section 3004(a) directs EPA to
establish performance standards for all facilities that treat, store
or dispose of hazardous waste. Both of these provisions grant
authority to control gaseous emissions from hazardous waste
management as may be necessary to protect human health and the
environment. RCRA sections 3004(n), and (o)(1)(B), further direct
EPA to regulate air emissions from, respectively, hazardous waste
treatment, storage and disposal facilities; and hazardous waste
incinerators. The authority provided in RCRA section 3004(q) to
regulate fuel produced from hazardous waste also encompasses gaseous
fuels (when they are produced from hazardous wastes).The authority
provided in RCRA section 3004(u) to control ``releases'' of
hazardous constituents from solid waste management units at a
facility seeking a RCRA permit also encompasses gaseous releases
(when the gases are hazardous constituents). The authority granted
under these sections of the statute is independent of EPA's
authorities over solid waste. As an example, EPA has authority to
regulate emissions generated during treatment of hazardous waste,
including volatilization and incineration of hazardous waste.
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    Comment: Some commenters also requested that EPA clarify that
landfill gas is not considered to be a ``contained gaseous material''
and/or a ``solid waste'' under RCRA.
    Response: We agree with commenters that landfill gases must be in a
container when that container is combusted to be considered ``contained
gaseous material'' under today's final CISWI regulations.
    However, given that landfill gas is emitted from solid waste (i.e.,
non-hazardous solid waste landfills or municipal waste landfills), EPA
has distinct and independent authority under RCRA to regulate this
material as part of our authority to regulate solid waste landfills
(for example, in order to address the risk of explosions posed by
methane emissions per 40 CFR 258.23).\9\
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    \9\ RCRA Subtitle D gives EPA authority to set standards for
non-hazardous waste disposal facilities, including standards for air
emissions. For example, EPA's criteria for municipal solid waste
landfills, established pursuant to RCRA sections 1008(a)(3), 2002,
4004(a), and 4010(c), generally address air quality by prohibiting
the open burning of waste and by setting limits on the concentration
of explosive gases (i.e., methane). See also March 6, 1986 Letter
from Marcia E. Williams to Mr. H. Lanier Hickman, Jr., which states,
``[W]e believe it is clear that the U.S. Environmental Protection
Agency (EPA) has the authority under both Sections 3004(n) and
4004(a) of RCRA, as well as the CAA, to regulate gaseous emissions
from hazardous and non-hazardous waste landfills.''
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Oxygen Correction During Startup and Shutdown
    Comment: Commenters generally support allowing the use of
uncorrected CEMS data during startup and shutdown. Several commenters
are concerned that the 4[hyphen] hour startup and a 1-hour shutdown
period (derived from a single coal fired unit) are not sufficient for
all the CISWI unit types and technologies. Other commenters believe
there should be no time limitations on shutdown and startups. One
commenter, however, believes the proposed time limit is appropriate.
Some commenters recommend using the Boiler MACT rule approach using
load to define when the O2 corrections do not apply.
    Commenters also urge the EPA to eliminate the O2
correction for all CEM-measured emission limits, not just CO, during
startup and shutdown periods. Commenters also support making this
allowance available to all types of CISWI unit, not only ERUs.
    Response: In today's final rule, we are retaining the provision
that allows sources to use uncorrected CO CEMS data during periods of
startup and shutdown. Based on comments and the technical
justifications for allowing the use of uncorrected CEMS data identified
during the comment period, we are expanding this provision to any
pollutant for which continuous compliance is being determined using
CEMS as explained above in ``Section II.C: Summary of Significant
Changes Since Proposal.''
Particulate Matter Continuous Monitoring Provisions for Large ERUs and
Waste-Burning Kilns
    Comment: Several commenters supported the EPA's proposal to remove
requirements for PM CEMS (using PS-11) for continuous compliance for
large ERUs and waste-burning kilns, stating that PM CEMS usefulness and
application issues of these monitors are uncertain. Commenters asserted
that, for biomass ERUs and sources with low PM concentration, PM CEMS