[Federal Register Volume 76, Number 54 (Monday, March 21, 2011)]
[Rules and Regulations]
[Pages 15554-15606]
[FR Doc No: 2011-4493]

Vol. 76

Monday,

No. 54

March 21, 2011

Part IV

Environmental Protection Agency

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40 CFR Part 63

National Emission Standards for Hazardous Air Pollutants for Area
Sources: Industrial, Commercial, and Institutional Boilers; Final Rule

Federal Register / Vol. 76 , No. 54 / Monday, March 21, 2011 / Rules
and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2006-0790; FRL-9273-5]
RIN 2060-AM44

National Emission Standards for Hazardous Air Pollutants for Area
Sources: Industrial, Commercial, and Institutional Boilers

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is promulgating national emission standards for control of
hazardous air pollutants from two area source categories: Industrial
boilers and commercial and institutional boilers. The final emission
standards for control of mercury and polycyclic organic matter
emissions from coal-fired area source boilers are based on the maximum
achievable control technology. The final emission standards for control
of hazardous air pollutants emissions from biomass-fired and oil-fired
area source boilers are based on EPA's determination as to what
constitutes the generally available control technology or management
practices.

DATES: Effective Date: This final rule is effective on May 20, 2011.
The incorporation by reference of certain publications listed in this
final rule were approved by the Director of the Federal Register as of
May 20, 2011.

ADDRESSES: EPA established a docket under Docket ID No. EPA-HQ-OAR-
2006-0790 for this action. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at EPA's Docket Center,
Public Reading Room, EPA West Building, Room 3334, 1301 Constitution
Ave., NW., Washington, DC. This Docket Facility 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 Air Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Mr. James Eddinger, Energy Strategies
Group, Sector Policies and Programs Division, (D243-01), Office of Air
Quality Planning and Standards, U.S. Environmental Protection Agency,
Research Triangle Park, North Carolina 27711; Telephone number: (919)
541-5426; Fax number<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Acronyms and Abbreviations. The following acronyms and
abbreviations are used in this document.

    Btu British thermal unit
CAA Clean Air Act
CBI Confidential Business Information
CEMS Continuous Emission Monitoring System
CFR Code of Federal Regulations
CO Carbon monoxide
ERT Electronic Reporting Tool
FR Federal Register
GACT Generally Available Control Technology
HAP Hazardous Air Pollutant
HCl Hydrogen chloride
ICR Information Collection Request
kWh Kilowatt hour
MACT Maximum Achievable Control Technology
MMBtu/h Million Btu per hour
NAICS North American Industry Classification System
NESHAP National Emission Standards for Hazardous Air Pollutants
NOX Nitrogen oxides
NSPS New Source Performance Standards
PM Particulate matter
PM2.5 Fine particulate matter
POM Polycyclic organic matter
ppm Parts per million
RCRA Resource Conservation and Recovery Act
TBtu Trillion British thermal units
tpy Tons per year
SO2 Sulfur dioxide
UPL Upper Prediction limit
VOC Volatile organic compound

    Organization of This Document. The information in this preamble is
organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document?
    C. Judicial Review
II. Background Information
    A. What is the statutory authority and regulatory approach for
this final rule?
    B. What source categories are affected by the standards?
    C. What is the relationship between this rule and other related
national emission standards?
    D. How did we gather information for this rule?
    E. How are the area source boiler HAP addressed by this rule?
    F. What are the costs and benefits of this final rule?
III. Summary of This Final Rule
    A. Do these standards apply to my source?
    B. What is the affected source?
    C. When must I comply with the final standards?
    D. What are the MACT and GACT standards?
    E. What are the Startup, Shutdown, and Malfunction (SSM)
requirements?
    F. What are the initial compliance requirements?
    G. What are the continuous compliance requirements?
    H. What are the notification, recordkeeping and reporting
requirements?
    I. Submission of Emissions Test Results to EPA
IV. Summary of Significant Changes Following Proposal
    A. Changes to Subcategories
    B. Change From MACT to GACT for Biomass and Oil Subcategories
    C. MACT Floor UPL Methodology/Emission Limits
    D. Clarification of Energy Assessment Requirements
    E. Revised Subcategory Limits
    F. Demonstrating Compliance
    G. Affirmative Defense
    H. Technical/Editorial Corrections
V. Significant Area Source Public Comments and Rationale for Changes
to Proposed Rule
    A. Legal and Applicability Issues
    B. CO Limits
    C. MACT Floor Analysis
    D. Beyond the Floor Analysis
    E. GACT Standards
    F. Subcategories
    G. Startup, Shutdown, and Malfunction
    H. Compliance Requirements
    I. Cost/Economic Impacts
    J. Title V Permitting Requirements
VI. Relationship of this Action to CAA Section 112(c)(6)
VII. Summary of the Impacts of This Final Rule
    A. What are the air impacts?
    B. What are the cost impacts?
    C. What are the economic impacts?
    D. What are the benefits?
    E. What are the water and solid waste impacts?
    F. What are the energy impacts?
VIII. Statutory and Executive Order Review
    A. Executive Order 12866 and 13563: Regulatory Planning and
Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
    D. Unfunded Mandates Reform Act of 1995
    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

I. General Information

A. Does this action apply to me?

    The regulated categories and entities potentially affected by the
final standards include:

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                                                  NAICS
                    Category                      code                Examples of regulated entities
                                                   \1\
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Any area source facility using a boiler as          321  Wood product manufacturing.
 defined in this proposed rule.
                                                     11  Agriculture, greenhouses.
                                                    311  Food manufacturing.
                                                    327  Nonmetallic mineral product manufacturing.
                                                    424  Wholesale trade, nondurable goods.
                                                    531  Real estate.
                                                    611  Educational services.
                                                    813  Religious, civic, professional, and similar
                                                          organizations.
                                                     92  Public administration.
                                                    722  Food services and drinking places.
                                                     62  Health care and social assistance.
----------------------------------------------------------------------------------------------------------------
\1\ North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. To determine whether your facility, company, business,
organization, etc., is regulated by this action, you should examine the
applicability criteria in 40 CFR 63.11193 of subpart JJJJJJ (National
Emission Standards for Hazardous Air Pollutants for Industrial,
Commercial, and Institutional Boilers Area Sources). If you have any
questions regarding the applicability of this action to a particular
entity, consult either the delegated regulatory authority for the
entity or your EPA regional representative as listed in 40 CFR 63.13 of
subpart A (General Provisions).

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

    In addition to being available in the docket, an electronic copy of
this final action will also be available on the Worldwide Web (WWW)
through the Technology Transfer Network (TTN). Following signature, a
copy of the final action will be posted on the TTN's policy and
guidance page for newly proposed or promulgated rules at the following
address: http://www.epa.gov/ttn/oarpg. The TTN provides information and
technology exchange in various areas of air pollution control.

C. Judicial Review

    Under section 307(b)(1) of the CAA, judicial review of this final
rule is available only by filing a petition for review in the U.S.
Court of Appeals for the District of Columbia Circuit (the Court) by
May 20, 2011. 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. CAA
section 307(d)(7)(B) also provides a mechanism for EPA 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 the 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 20460, with a copy to the person listed in
the preceding FOR FURTHER GENERAL 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 EPA to enforce these requirements.

II. Background Information

A. What is the statutory authority and regulatory approach for this
final rule?

    Section 112(d) of the CAA requires us to establish NESHAP for both
major and area sources of HAP that are listed for regulation under CAA
section 112(c). A major source emits or has the potential to emit 10
tpy or more of any single HAP or 25 tpy or more of any combination of
HAP. An area source is a HAP-emitting stationary source that is not a
major source.
    Section 112(k)(3)(B) of the CAA calls for EPA to identify at least
30 HAP which, as the result of emissions from area sources, pose the
greatest threat to public health in the largest number of urban areas.
EPA implemented this provision in 1999 in the Integrated Urban Air
Toxics Strategy (Strategy), (64 FR 38715, July 19, 1999). Specifically,
in the Strategy, EPA identified 30 HAP that pose the greatest potential
health threat in urban areas, and these HAP are referred to as the ``30
urban HAP.'' CAA section 112(c)(3) requires EPA to list sufficient
categories or subcategories of area sources to ensure that area sources
representing 90 percent of the emissions of the 30 urban HAP are
subject to regulation. A primary goal of the Strategy is to achieve a
75 percent reduction in cancer incidence attributable to HAP emitted
from stationary sources.
    Under CAA section 112(d)(5), we may elect to promulgate standards
or requirements for area sources ``which provide for the use of
generally

available control technologies [``GACT''] or management practices by
such sources to reduce emissions of hazardous air pollutants.''
Additional information on GACT is found in the Senate report on the
legislation (Senate Report Number 101-228, December 20, 1989), which
describes GACT as:

* * * methods, practices and techniques which are commercially
available and appropriate for application by the sources in the
category considering economic impacts and the technical capabilities
of the firms to operate and maintain the emissions control systems.

    Consistent with the legislative history, we can consider costs and
economic impacts in determining GACT, which is particularly important
when developing regulations for source categories that may have many
small businesses such as these.
    Determining what constitutes GACT involves considering the control
technologies and management practices that are generally available to
the area sources in the source category. We also consider the standards
applicable to major sources in the analogous source category to
determine if the control technologies and management practices are
transferable and generally available to area sources. In appropriate
circumstances, we may also consider technologies and practices at area
and major sources in similar categories to determine whether such
technologies and practices could be considered generally available for
the area source categories at issue. Finally, as noted above, in
determining GACT for a particular area source category, we consider the
costs and economic impacts of available control technologies and
management practices on that category.
    While GACT may be a basis for standards for most types of HAP
emitted from area sources, CAA section 112(c)(6) requires that EPA list
categories and subcategories of sources assuring that sources
accounting for not less than 90 percent of the aggregate emissions of
each of seven specified HAP are subject to standards under CAA sections
112(d)(2) or (d)(4), which require the application of the more
stringent MACT. The seven HAP specified in CAA section 112(c)(6) are as
follows: Alkylated lead compounds, POM, hexachlorobenzene, mercury,
polychlorinated biphenyls (PCBs), 2,3,7,8-tetrachlorodibenzofurans, and
2,3,7,8-tetrachlorodibenzo-p-dioxin.
    The CAA section 112(c)(6) list of source categories currently
includes industrial coal combustion, industrial oil combustion,
industrial wood combustion, commercial coal combustion, commercial oil
combustion, and commercial wood combustion. (See 63 FR 17849, April 10,
1998.) We listed these source categories under CAA section 112(c)(6)
based on the source categories' contribution of mercury and POM. In the
documentation for the CAA section 112(c)(6) listing, the commercial
fuel combustion categories included institutional fuel combustion. (See
``1990 Emissions Inventory of Section 112(c)(6) Pollutants, Final
Report,'' April 1998.) As discussed in the preamble to the proposed
rule, we concluded we only needed to address mercury emissions from the
coal-fueled portion of these categories in order to ensure that 90
percent of the aggregate emissions of mercury would be subject to
standards under CAA sections 112(d)(2) or 112(d)(4). (See 75 FR 31898,
June 4, 2010.) As discussed in this preamble, based on public comments
received, we re-examined the emission inventory and the need to address
POM emissions from the area source subcategories to meet the CAA
section 112(c)(6) 90 percent requirement, and concluded we only need to
address POM emissions from the coal-fueled portion of these categories
under CAA section 112(d)(2) or 112(d)(4).
    With this final rule and the major source boilers rule, we believe
that we have subjected to regulation at least 90 percent of the CAA
section 112(c)(6) 1990 emissions inventory for mercury and POM.
Consequently, we are regulating coal-fired area source boilers under
MACT because we need these sources to meet the 90 percent requirement
for mercury and POM in CAA section 112(c)(6).
    The ``MACT'' required by CAA sections 112(d)(2) or 112(d)(4) can be
based on the emissions reductions achievable through application of
measures, processes, methods, systems, or techniques including, but not
limited to: (1) Reducing the volume of, or eliminating emissions of,
such pollutants through process changes, substitutions of materials, or
other modifications; (2) enclosing systems or processes to eliminate
emissions; (3) collecting, capturing, or treating such pollutants when
released from a process, stack, storage or fugitive emission point; (4)
design, equipment, work practices, or operational standards as provided
in CAA section 112(h); or (5) a combination of the above.
    The MACT floor is the minimum control level allowed for NESHAP and
is defined under CAA section 112(d)(3). For new sources, MACT based
standards cannot be less stringent than the emission control achieved
in practice by the best-controlled similar source, as determined by the
Administrator. The MACT based standards for existing sources can be
less stringent than standards for new sources, but they cannot be less
stringent than the average emission limitation achieved by the best
performing 12 percent of existing sources in the category or
subcategory (for which the Administrator has emission information) for
source categories and subcategories with 30 or more sources, or the
best performing 5 sources for categories and subcategories with fewer
than 30 sources (CAA section 112(d)(3)(A) and (B)).
    Although emission standards are often structured in terms of
numerical emissions limits, alternative approaches are sometimes
necessary and authorized pursuant to CAA section 112. For example, in
some cases, physically measuring emissions from a source may not be
practicable due to technological and economic limitations. Section
112(h) of the CAA authorizes the Administrator to promulgate a design,
equipment, work practice, or operational standard, or combination
thereof, consistent with the provisions of CAA sections 112(d) or (f),
in those cases where, in the judgment of the Administrator, it is not
feasible to prescribe or enforce an emission standard. Section
112(h)(2) of the CAA provides that the phrase ``not feasible to
prescribe or enforce an emission standard'' includes ``the situation in
which the Administrator determines that * * * the application of
measurement methodology to a particular class of sources is not
practicable due to technological and economic limitations.''
    As noted above in this section of the preamble, we listed
industrial coal combustion, industrial oil combustion, industrial wood
combustion, commercial coal combustion, commercial oil combustion, and
commercial wood combustion under CAA section 112(c)(6) based on the
source categories' contribution of mercury and POM. We listed these
same categories under CAA section 112(c)(3) for their contribution of
mercury, arsenic, beryllium, cadmium, lead, chromium, manganese,
nickel, POM (as 7-PAH (polynuclear aromatic hydrocarbons)), ethylene
dioxide, and PCBs.
    We have developed final standards to reflect the application of
MACT for mercury and POM from coal-fired area source boilers and have
applied GACT for the urban HAP noted above for boilers firing other
fuels and for urban

HAP (other than mercury and POM) from coal-fired area source boilers.

B. What source categories are affected by the standards?

    The source categories affected by the standards are industrial
boilers and commercial and institutional boilers. Both source
categories were included in the area source list published on July 19,
1999 (64 FR 38721). The inclusion of these two source categories on the
CAA section 112(c)(3) area source category list is based on 1990
emissions data, as EPA used 1990 as the baseline year for that listing.
We describe above in Section II.A of this preamble the pollutants that
formed the basis of the listings.
    This rule applies to all existing and new industrial boilers,
institutional boilers, and commercial boilers located at area sources.
Boiler means an enclosed combustion device having the primary purpose
of recovering thermal energy in the form of steam or hot water. The
industrial boiler source category includes boilers used in
manufacturing, processing, mining, refining, or any other industry. The
commercial boiler source category includes boilers used in commercial
establishments such as stores/malls, laundries, apartments,
restaurants, and hotels/motels. The institutional boiler source
category includes boilers used in medical centers (e.g., hospitals,
clinics, nursing homes), educational and religious facilities (e.g.,
schools, universities, churches), and municipal buildings (e.g.,
courthouses, prisons).

C. What is the relationship between this rule and other related
national emission standards?

    This rule regulates industrial boilers and institutional/commercial
boilers that are located at area sources of HAP. Today, in a parallel
action, a NESHAP for industrial, commercial, and institutional boilers
and process heaters located at major sources is being promulgated
reflecting the application of MACT. The major source NESHAP regulates
emissions of PM (as a surrogate for non-mercury metals), mercury, HCl
(as a surrogate for acid gases), dioxins/furans, and CO (as a surrogate
for non-dioxin organic HAP) from existing and new major source boilers.
    This rule covers boilers located at area source facilities. In
addition to the major source MACT for boilers being issued today, the
Agency is also issuing emission standards today pursuant to CAA section
129 for commercial and industrial solid waste incineration units. In a
parallel action, EPA is finalizing a solid waste definition rulemaking
pursuant to subtitle D of RCRA. That action is relevant to this
proceeding because if an industrial, commercial, or institutional
boiler located at an area source combusts secondary materials that are
``solid waste,'' as that term is defined by the Administrator under
RCRA, those boilers would be subject to section 129 of the CAA, not
section 112.
    As background, in 2007, the United States Court of Appeals for the
District of Columbia Circuit (DC Circuit) vacated the ``CISWI
Definitions Rule'' (70 FR 55568, September 22, 2005), which amended the
definitions of ``commercial and industrial solid waste incinerator
(CISWI),'' ``commercial or industrial waste,'' and ``solid waste'' in
40 CFR 60, subparts CCCC and DDDD, and which EPA issued pursuant to CAA
section 129. The Court found that the definitions in that rule were
inconsistent with the CAA. Specifically, the Court held that the term
``solid waste incineration unit'' in CAA section 129(g)(1)
``unambiguously include[s] among the incineration units subject to its
standards any facility that combusts any commercial or industrial solid
waste material at all--subject to the four statutory exceptions
identified [in CAA section 129(g)(1)].'' NRDC v. EPA, 489 F.3d at 1257-
58.
    Based on the information available to the Agency, we determined
that the boilers that are subject to this area source rule combust
predominantly coal, oil, or biomass. We have further determined that
the boilers subject to this rule may combust non-hazardous secondary
materials that do not meet the definition of ``solid waste'' pursuant
to the rulemaking of subtitle D of RCRA. A boiler located at an area
source burning any secondary materials considered ``solid waste'' would
be considered a solid waste incineration unit subject to regulation
under CAA section 129. In the final area source boiler rulemaking, EPA
is providing specific language to ensure clarity regarding the
necessary steps that must be followed for combustion units that begin
combusting non-hazardous solid waste materials and become subject to
section 129 standards instead of section 112 standards or combustion
units that discontinue combustion of non-hazardous solid waste
materials and become subject to section 112 standards instead of
section 129 standards.
    Some of the affected sources subject to this rule may also be
subject to the NSPS for industrial, commercial, and institutional
boilers (40 CFR part 60, subparts Db and Dc). EPA codified these NSPS
in 1986, and revised portions of them in 1999 and 2006. The two NSPS
regulate emissions of PM, SO2, and NOX from
boilers constructed after June 19, 1984. Sources subject to the NSPS
that are located at area source facilities are also subject to this
rule because this rule regulates HAP. In developing this rule, we have
streamlined the monitoring and recordkeeping requirements to avoid
duplicating requirements in the NSPS.

D. How did we gather information for this rule?

    We gathered information for this rule from states' boiler
inspection lists, company Web sites, published literature, state
permits, current state and federal regulations, and from an ICR
conducted for the major source NESHAP. After proposal, we received
additional emission test reports during the public comment period.
    We developed an initial nationwide population of area source
boilers based on boiler inspector data-bases from 13 states. The boiler
inspector data-bases include steam boilers that are required to be
inspected for safety or insurance purposes. We classified the area
source boilers to NAICS codes based on the ``name'' of the facility at
which the boiler was located. However, many of the boilers in the
boiler inspector data-base could not be readily assigned to an NAICS
code and, thus, we did not categorize them.
    We reviewed state and other federal regulations that apply to the
area sources in the source categories for information concerning
existing HAP emission control approaches. For example, as noted above,
the NSPS for small industrial, commercial, and institutional boilers in
40 CFR part 60, subpart Dc apply to boilers at some area sources.
Similarly, permit requirements established by the Ohio, Illinois,
Vermont, New Hampshire, and Maine air regulatory agencies apply to some
area sources. We also reviewed standards for boilers at major sources
that would be appropriate for and transferable to boilers at area
sources. For example, we determined that management practices, such as,
tune-ups and operator training applicable to major source boilers are
also feasible for boilers at area sources.

E. How are the area source boiler HAP addressed by this rule?

    As explained in Section II.A of this preamble, industrial coal
combustion, industrial oil combustion, industrial wood combustion,
commercial coal combustion, commercial oil combustion, and commercial
wood combustion are listed under CAA section 112(c)(6) due to
contributions of mercury and POM and these same categories are listed
under CAA section 112(c)(3) for their contribution of mercury, arsenic,
beryllium, cadmium, lead, chromium, manganese, nickel, POM, ethylene
dioxide, and PCB.
    With respect to the CAA section 112(c)(3) pollutants, we used
surrogates because, as explained in this section of the preamble, it
was not practical to establish individual standards for each specific
HAP. We grouped the CAA section 112(c)(3) pollutants, which formed the
basis for the listing of these two source categories, into three common
groupings: Mercury, non-mercury metallic HAP (arsenic, beryllium,
cadmium, chromium, lead, manganese, and nickel), and organic HAP (POM,
ethylene dichloride, and PCB). In general, the pollutants within each
group have similar characteristics and can be controlled with the same
techniques.
    For the non-mercury metallic HAP, we selected PM as a surrogate.
The inherent variability and unpredictability of the non-mercury metal
HAP compositions and amounts in fuel has a material effect on the
composition and amount of non-mercury metal HAP in the emissions from
the boiler. As a result, establishing individual numerical emissions
limits for each non-mercury HAP metal species is difficult given the
level of uncertainty about the individual non-mercury metal HAP
compositions of the fuels that will be combusted. An emission
characteristic common to all boilers is that the non-mercury metal HAP
are a component of the PM contained in the fly ash emitted from the
boiler. A sufficient correlation exists between PM and non-mercury
metallic HAP to rely on PM as a surrogate for these HAP and for their
control.\1\ Therefore, the same control techniques that would be used
to control the fly-ash PM will control non-mercury metallic HAP.
Emissions limits established to achieve control of PM will also achieve
control of non-mercury metallic HAP. Furthermore, establishing separate
standards for each individual HAP would impose costly and significantly
more complex compliance and monitoring requirements and achieve little,
if any, HAP emissions reductions beyond what would be achieved using
the surrogate pollutant approach.
---------------------------------------------------------------------------

    \1\ In National Lime Ass'n v. EPA, 233 F. 3d 625, 633 (DC Cir.
2000), the court upheld EPA's use of particulate matter as a
surrogate for HAP metals.
---------------------------------------------------------------------------

    For organic urban HAP, we selected CO as a surrogate for organic
compounds, including POM, emitted from the various fuels burned in
boilers. The presence of CO is an indicator of incomplete combustion. A
high level of CO in emissions is a potential indication of elevated
organic HAP emissions because organic HAP, like CO, are formed as a
byproduct of combustion, and both would increase with an increase in
the level of incomplete combustion. Monitoring equipment for CO is
readily available, which is not the case for organic HAP. Also, it is
significantly easier and less expensive to measure and monitor CO
emissions than to measure and monitor emissions of each individual
organic HAP. We considered other surrogates, such as total hydrocarbon
(THC), but lacked data on emissions and permit limits for area source
boilers. Therefore, using CO as a surrogate for organic urban HAP is a
reasonable approach because minimizing CO emissions will result in
minimizing organic urban HAP emissions.
    Based on these considerations, we are promulgating GACT standards
for PM (as a surrogate for the individual urban metal HAP) for coal,
biomass, and oil-fired boilers and CO (as a surrogate pollutant for the
individual urban organic HAP) for biomass-fired and oil-fired boilers.
We are also establishing MACT standards for mercury and for POM (using
CO as a surrogate pollutant) for coal-fired boilers. The MACT standard
for POM from coal-fired boilers would also be GACT for urban organic
HAP other than POM.

F. What are the costs and benefits of this final rule?

    EPA estimated the costs and benefits associated with the final
rule, and the results are shown in the following table. For more
information on the costs and benefits for this rule, see the Regulatory
Impact Analysis (RIA).

    Summary of the Monetized Benefits, Social Costs, and Net Benefits for the Boiler Area Source Rule in 2014
                                             [Millions of 2008$] \1\
----------------------------------------------------------------------------------------------------------------
                                                    3% Discount rate                   7% Discount rate
----------------------------------------------------------------------------------------------------------------
                                       Final MACT/GACT Approach: Selected
----------------------------------------------------------------------------------------------------------------
Total Monetized Benefits \2\.............  $210 to $520.....................  $190 to $470
Total Social Costs \3\...................  $490.............................  $490
Net Benefits.............................  -$280 to $30.....................  -$300 to -$20
                                           1,100 tons of carbon monoxide
                                           340 tons of HCl
                                           8 tons of HF
                                           90 pounds of mercury
Non-monetized Benefits;..................  320 tons of other metals
                                           < 1 gram of dioxins/furans (TEQ)
                                           Health effects from SO2 exposure
                                           Ecosystem effects
                                           Visibility impairment
----------------------------------------------------------------------------------------------------------------
                                       Proposed MACT Approach: Alternative
----------------------------------------------------------------------------------------------------------------
Total Monetized Benefits \2\.............  $200 to $490.....................  $180 to $440
Total Social Costs \3\...................  $850.............................  $850

Net Benefits.............................  -$650 to -$360...................  -$670 to -$410
Non-monetized Benefits...................  1,100 tons of carbon monoxide
                                           340 tons of HCl
                                           8 tons of HF
                                           90 pounds of mercury
                                           320 tons of other metals
                                           <1 gram of dioxins/furans (TEQ)
                                           Health effects from SO2 exposure
                                           Ecosystem effects
                                           Visibility impairment
----------------------------------------------------------------------------------------------------------------
\1\ All estimates are for the implementation year (2014), and are rounded to two significant figures. These
  results include units anticipated to come online and 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 directly emitted PM2.5 and PM2.5 precursors such as SO2. It is important to note that
  the monetized benefits include many but not all health effects associated with PM2.5 exposure. 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 there is
  no clear scientific evidence that would support the development of differential effects estimates by particle
  type. These estimates include energy disbenefits valued at less than $1 million.
\3\ The methodology used to estimate social costs for one year in the multimarket model using surplus changes
  results in the same social costs for both discount rates.

III. Summary of This Final Rule

A. Do these standards apply to my source?

    This rule applies to you if you own or operate a boiler combusting
solid fossil fuels, biomass, or liquid fuels located at an area source.
The standards do not apply to boilers that are subject to another
standard under 40 CFR part 63 or to a standard developed under CAA
section 129.
    This rule applies to you if you own or operate a boiler combusting
natural gas, located at an area source, which switches to combusting
solid fossil fuels, biomass, or liquid fuel after June 4, 2010.

B. What is the affected source?

    This final rule affects industrial boilers, institutional boilers,
and commercial boilers. The affected source is the collection of all
existing boilers within a subcategory located at an area source
facility or each new boiler located at an area source facility.

C. When must I comply with these standards?

    The owner or operator of an existing source subject to a work
practice or management practice standard of a tune-up is required to
comply with this final rule no later than March 21, 2012. The owner or
operator of an existing source subject to emission limits or an energy
assessment requirement is required to comply with this final rule no
later than March 21, 2014. The owner or operator of a new source is
required to comply on May 20, 2011 or upon startup of the facility,
whichever is later. Owners and operators subject to 40 part CFR 60,
subpart CCCC or subpart DDDD who cease combusting solid waste must be
in compliance with this subpart on the effective date that the unit
ceased combusting solid waste, consistent with 40 CFR part 60, subpart
CCCC or subpart DDDD.

D. What are the MACT and GACT standards?

    Emission standards are in the form of numerical emission limits for
new and existing area source boilers. The MACT emission limits for
mercury and CO (as a surrogate for POM) are presented, along with the
GACT emission limits for PM (as a surrogate for urban metals), in Table
1 of this preamble. The units are pounds of PM or mercury per million
British thermal units (lb/MMBtu) and ppm for CO.

                                Table 1--Emission Limits for Area Source Boilers
----------------------------------------------------------------------------------------------------------------
                                   Heat input
          Subcategory               (MMBtu/h)        Pollutants                    Emission limits
----------------------------------------------------------------------------------------------------------------
New coal-fired boiler.........  >=30              a. Particulate    0.03 lb per MMBtu of heat input.
                                                   Matter.
                                                  b. Mercury......  0.0000048 lb per MMBtu of heat input.
                                                  c. Carbon         400 ppm by volume on a dry basis corrected
                                                   Monoxide.         to 3 percent oxygen.
                                >=10 and <30      a. Particulate    0.42 lb per MMBtu of heat input.
                                                   Matter.
                                                  b. Mercury......  0.0000048 lb per MMBtu of heat input.
                                                  c. Carbon         400 ppm by volume on a dry basis corrected
                                                   Monoxide.         to 3 percent oxygen.
New biomass-fired boiler......  >=30              Particulate       0.03 lb per MMBtu of heat input.
                                                   Matter.
                                >=10 and <30      Particulate       0.07 lb per MMBtu of heat input.
                                                   Matter.
New oil-fired boiler..........  >=30              Particulate       0.03 lb per MMBtu of heat input.
                                                   Matter.
                                >=10 and <30      Particulate       0.03 lb per MMBtu of heat input.
                                                   Matter.
Existing coal-Fired boiler....  >=10              a. Mercury......  0.0000048 lb per MMBtu of heat input.

                                                  b. Carbon         400 ppm by volume on a dry basis corrected
                                                   Monoxide.         to 7 percent oxygen.
----------------------------------------------------------------------------------------------------------------

    The emission limits for PM apply only to new boilers. The emission
limits for mercury and CO apply only to boilers in the coal
subcategory; the emission limits for existing area source boilers in
the coal subcategory are applicable only to area source boilers that
have a designed heat input capacity of 10 million MMBtu/h or greater.
    If your boiler burns any solid fossil fuel and no more than 15
percent biomass on a total fuel annual heat input basis, the boiler is
in the coal subcategory. If your boiler burns at least 15 percent
biomass on a total fuel annual heat input basis, the unit is in the
biomass subcategory. If your boiler burns any liquid fuel and is not in
either the coal or the biomass subcategory, the unit is in the oil
subcategory, except if the unit burns oil only during periods of gas
curtailment.
    As allowed under CAA section 112(h), a work practice standard is
being promulgated for new and existing coal-fired area source boilers
with a designed heat input capacity of less than 10 MMBtu/h. The work
practice standard for new and existing coal-fired area source boilers
requires the implementation of a tune-up program. We are also requiring
all biomass-fired and oil-fired area source boilers to implement a
tune-up program as a management practice.
    An additional standard is being promulgated for existing area
source facilities having an affected boiler with a designed heat input
capacity of 10 MMBtu/h or greater that requires the performance of an
energy assessment, by qualified personnel, on the boiler and its energy
use systems to identify cost-effective energy conservation measures.

E. What are the startup, shutdown, and malfunction (SSM) requirements?

    The United States Court of Appeals for the District of Columbia
Circuit vacated portions of two provisions in EPA's CAA section 112
regulations governing the emissions of HAP during periods of startup,
shutdown, and malfunction (SSM). Sierra Club v. EPA, 551 F.3d 1019 (DC
Cir. 2008), cert. denied, 130 S. Ct. 1735 (U.S. 2010). Specifically,
the Court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and
40 CFR 63.6(h)(1), that are part of a regulation, commonly referred to
as the ``General Provisions Rule'' (40 CFR 63, subpart A), that EPA
promulgated under CAA section 112 of the CAA. When incorporated into
CAA section 112(d) regulations for specific source categories, these
two provisions exempted sources from the requirement to comply with the
otherwise applicable CAA section 112(d) emission standard during
periods of SSM.
    Consistent with Sierra Club v. EPA, EPA has established standards
in this rule that apply at all times. EPA has attempted to ensure that
we have not incorporated into the regulatory language any provisions
that are inappropriate, unnecessary, or redundant in the absence of an
SSM exemption.
    In establishing the standards in this rule, EPA has taken into
account startup and shutdown periods and, for the reasons explained
below, has established different standards for those periods.
    EPA has revised this final rule to require sources to meet a work
practice standard, including following the manufacturer's recommended
procedures for minimizing startup and shutdown periods, to demonstrate
compliance with the emission limits for all subcategories of new and
existing area source boilers (that would otherwise be subject to
numeric emission limits) during periods of startup and shutdown. As
discussed in Section V.G of this preamble, we considered whether
performance testing, and therefore, enforcement of numeric emission
limits, would be practicable during periods of startup and shutdown.
With regards to performance testing, EPA determined that it is not
technically feasible to complete stack testing--in particular, to
repeat the multiple required test runs--during periods of startup and
shutdown due to physical limitations and the short duration of startup
and shutdown periods. Operating in startup and shutdown mode for
sufficient time to conduct the required test runs could result in
higher emissions than would otherwise occur. Based on these specific
facts for the boilers and process heater source category, EPA has
developed a separate standard for these periods, and we are finalizing
work practice standards to meet this requirement. The work practice
standard requires sources to minimize periods of startup and shutdown
following the manufacturer's recommended procedures, if available. If
manufacturer's recommended procedures are not available, sources must
follow recommended procedures for a unit of similar design for which
manufacturer's recommended procedures are available.
    Periods of startup, normal operations, and shutdown are all
predictable and routine aspects of a source's operations. However, by
contrast, malfunction is defined as a ``sudden, infrequent, and not
reasonably preventable failure of air pollution control and monitoring
equipment, process equipment or a process to operate in a normal or
usual manner * * *'' (40 CFR 63.2). EPA has determined that
malfunctions should not be viewed as a distinct operating mode and,
therefore, any emissions that occur at such times do not need to be
factored into development of CAA section 112(d) standards, which, once
promulgated, apply at all times. In Mossville Environmental Action Now
v. EPA, 370 F.3d 1232, 1242 (DC Cir. 2004), the court upheld as
reasonable standards that had factored in variability of emissions
under all operating conditions. However, nothing in section 112(d) or
in case law requires that EPA anticipate and account for the
innumerable types of potential malfunction events in setting emission
standards. See, Weyerhaeuser v. Costle, 590 F.2d 1011, 1058 (DC Cir.
1978) (``In the nature of things, no general limit, individual permit,
or even any upset provision can anticipate all upset situations. After
a certain point, the transgression of regulatory limits caused by
`uncontrollable acts of third parties,' such as strikes, sabotage,
operator intoxication or insanity, and a variety of other
eventualities, must be a matter for the administrative exercise of
case-by-case enforcement discretion, not for specification in advance
by regulation.'').
    Further, it is reasonable to interpret CAA section 112(d) as not
requiring EPA to account for malfunctions in setting emissions
standards. For example, we note that CAA section 112 uses the concept
of ``best performing'' sources in defining MACT, the level of

stringency that major source standards must meet. Applying the concept
of ``best performing'' to a source that is malfunctioning presents
significant difficulties. The goal of best performing sources is to
operate in such a way as to avoid malfunctions of their units.
Similarly, although standards for area sources are generally not
required to be set based on ``best performers,'' we believe that what
is ``generally available'' should not be based on periods in which
there is a ``failure to operate.''
    Moreover, even if malfunctions were considered a distinct operating
mode, we believe it would be impracticable to take malfunctions into
account in setting CAA section 112(d) standards for area source
boilers. As noted above, by definition, malfunctions are sudden and
unexpected events and it would be difficult to set a standard that
takes into account the myriad different types of malfunctions that can
occur across all sources in the category. Moreover, malfunctions can
vary in frequency, degree, and duration, further complicating standard
setting.
    In the event that a source fails to comply with the applicable CAA
section 112(d) standards as a result of a malfunction event (see 40 CFR
63.2 (definition of malfunction), EPA must determine an appropriate
response based on, among other things, the good faith efforts of the
source to minimize emissions during malfunction periods, including
preventative and corrective actions, as well as root cause analyses to
ascertain and rectify excess emissions. EPA would also consider whether
the source's failure to comply with the CAA section 112(d) standard
was, in fact, ``sudden, infrequent, not reasonably preventable'' and
was not instead ``caused in part by poor maintenance or careless
operation.'' (See 40 CFR 63.2 (definition of malfunction).)
    Finally, EPA recognizes that even equipment that is properly
designed and maintained can sometimes fail and that such failure can
sometimes cause an exceedance of the relevant emission standard. (See,
e.g., State Implementation Plans: Policy Regarding Excessive Emissions
During Malfunctions, Startup, and Shutdown (September 20, 1999); Policy
on Excess Emissions During Startup, Shutdown, Maintenance, and
Malfunctions (February 15, 1983)). EPA is therefore adding to this
final rule an affirmative defense to civil penalties for exceedances of
emission limits that are caused by malfunctions. (See 40 CFR 63.11226
(defining ``affirmative defense'' to mean, in the context of an
enforcement proceeding, a response or defense put forward by a
defendant, regarding which the defendant has the burden of proof, and
the merits of which are independently and objectively evaluated in a
judicial or administrative proceeding).) We also have added other
regulatory provisions to specify the elements that are necessary to
establish this affirmative defense; the source must prove by a
preponderance of the evidence that it has met all of the elements set
forth in 63.11226. (See 40 CFR 22.24.) The criteria ensure that the
affirmative defense is available only where the event that causes an
exceedance of the emission limit meets the narrow definition of
malfunction in 40 CFR 63.2 (sudden, infrequent, not reasonable
preventable and not caused by poor maintenance and or careless
operation). For example, to successfully assert the affirmative
defense, the source must prove by a preponderance of the evidence that
excess emissions ``[w]ere caused by a sudden, infrequent, and
unavoidable failure of air pollution control and monitoring equipment,
process equipment, or a process to operate in a normal or usual manner
* * *.'' The criteria also are designed to ensure that steps are taken
to correct the malfunction, to minimize emissions in accordance with 40
CFR 63.11205(a), and to prevent future malfunctions. For example, the
source must prove by a preponderance of the evidence that ``[r]epairs
were made as expeditiously as possible when the applicable emission
limitations were being exceeded * * *'' and that ``[a]ll possible steps
were taken to minimize the impact of the excess emissions on ambient
air quality, the environment and human health * * *.'' In any judicial
or administrative proceeding, the Administrator may challenge the
assertion of the affirmative defense and, if the respondent has not met
its burden of proving all of the requirements in the affirmative
defense, appropriate penalties may be assessed in accordance with CAA
section 113 of the CAA (see also 40 CFR 22.77).

F. What are the initial compliance requirements?

    For new and existing area source boilers with applicable emission
limits, you must conduct initial performance tests to determine
compliance with the PM, mercury, and CO emission limits. The
performance tests to demonstrate compliance with the mercury emission
limit can be either a stack test, which also requires a fuel analysis,
or only a fuel analysis.
    As part of the initial compliance demonstration, you must monitor
specified operating parameters during the initial performance tests
that demonstrate compliance with the PM, mercury, and CO emission
limits for area source boilers. The test average establishes your site-
specific operating levels.
    For owners or operators of existing and new coal-fired area source
boilers having a heat input capacity of less than 10 MMBtu/h and all
existing and new biomass-fired and oil-fired area source boilers, you
must submit to the delegated authority or EPA, as appropriate,
documentation that a tune-up was conducted.
    For owners or operators of existing area source facilities having a
boiler with a heat input capacity of 10 MMBtu/h or greater and subject
to this rule, you must submit to the delegated authority or EPA, as
appropriate, documentation that the energy assessment was performed and
the cost-effective energy conservation measures identified.

G. What are the continuous compliance requirements?

    If you demonstrate initial compliance with the emission limits by
performance (stack) tests, then you must conduct stack tests every 3
years. Furthermore, to demonstrate continuous compliance with the PM,
CO, and mercury emission limits, you must monitor and comply with the
applicable site-specific operating limits.
    For area source boilers that must comply with the PM and mercury
emission limits, you must continuously monitor opacity and maintain the
opacity at or below 10 percent (daily block average) or:
    1. If the boiler is controlled with a fabric filter, the fabric
filter may be continuously operated such that the alarm on the bag leak
detection system does not sound more than 5 percent of the operating
time during any 6-month period.
    2. If the boiler is controlled with an electrostatic precipitator
(ESP), you must maintain the minimum voltage and secondary amperage (or
total power input) of the ESP at or above the minimum operating limits
established during the performance test.
    3. If the boiler is controlled with a wet scrubber, you must
monitor pressure drop and liquid flow rate of the scrubber and maintain
the daily block averages at or above the minimum operating limits
established during the performance test.
    4. For boilers with sorbent or carbon injection systems which must
comply with an applicable mercury emission limit, you must maintain the
daily block averages at or above the minimum sorbent flow rate, as
calculated according to 40 CFR 63.11221(a)(5).

    If you elected to demonstrate initial compliance with the mercury
emission limit by fuel analysis, as determined according to 40 CFR
63.11211(b), you must conduct a monthly fuel analysis and maintain the
annual average at or below the limit indicated in Table 1 of this
preamble.
    For boilers that demonstrate compliance with the PM and mercury
emission limits by performance (stack) tests, you must maintain monthly
fuel records that demonstrate that you burned no new fuel type or new
mixture (monthly average) as set during the performance test. If you
plan to burn a new fuel type or new mixture that is different from what
was burned during the initial performance test, then you must conduct a
new performance test to demonstrate continuous compliance with the PM
emission limit and mercury emission limit.
    For boilers that must comply with the CO emission limits, you must
continually monitor oxygen and maintain an oxygen concentration level,
on a 30-day rolling average basis, at no less than 90 percent of the
average oxygen concentration measured during the most recent
performance test.
    Biomass and oil-fired boilers must meet the management practice
standards defined in Table 2 to 40 CFR part 63, subpart JJJJJJ.

H. What are the notification, recordkeeping and reporting requirements?

    All new and existing sources will be required to comply with some
requirements of the General Provisions (40 CFR part 63, subpart A),
which are identified in Table 6 to subpart JJJJJJ. The General
Provisions include specific requirements for notifications,
recordkeeping, and reporting. If performance tests are required under
subpart JJJJJJ, then the notification and reporting requirements for
performance tests in the General Provisions also apply.
    Each owner or operator is required to submit a notification of
compliance status report, as required by 40 CFR 63.9(h) of the General
Provisions. Subpart JJJJJJ rule requires the owner or operator to
include in the notification of compliance status report certifications
of compliance with rule requirements.
    If your unit is subject to an emission limit, then you must
prepare, by March 1 of each year, an annual compliance certification
report for the previous calendar year certifying the truth, accuracy
and completeness of the notification and a statement of whether the
source has complied with all the relevant standards and other
requirements of this subpart.
    This rule requires records to demonstrate compliance with each
emission limit, work practice standard, and management practice. These
recordkeeping requirements are specified directly in the General
Provisions to 40 CFR part 63.
    Records for applicable management practices must be maintained.
Specifically, the owner or operator must keep records of the dates and
the results of each boiler tune-up.
    Records are required for either continuously monitored parameter
data for a control device, if a device is used to control the
emissions, or continuous opacity monitoring system (COMS) data.
    Each owner and operator is required to keep the following records:
    (1) All reports and notifications submitted to comply with this
final rule;
    (2) Continuous monitoring data as required in this final rule;
    (3) Each instance in which you did not meet each emission limit,
work/management practice, and operating limit (i.e., deviations from
this final rule);
    (4) Monthly fuel use by each boiler including a description of the
type(s) of fuel(s) burned, amount of each fuel type burned, and units
of measure;
    (5) A copy of the results of all performance tests, energy
assessments, opacity observations, performance evaluations, or other
compliance demonstrations conducted to demonstrate initial or
continuous compliance with this final rule; and
    (6) A copy of your site-specific monitoring plan developed for this
final rule, if applicable.
    Records must be retained for at least 5 years. In addition,
monitoring plans, operating and maintenance plans, and other plans must
be updated as necessary and kept for as long as they are still current.

I. Submission of Emissions Test Results to EPA

    Compliance test data are necessary for many purposes including
compliance determinations, development of emission factors, and
determining annual emission rates. EPA has found it burdensome and time
consuming to collect emission test data because of varied locations for
data storage and varied data storage methods.
    One improvement that has occurred in recent years is the
availability of stack test reports in electronic format as a
replacement for bulky paper copies.
    In this action, we are taking a step to improve data accessibility
for stack tests (and in the future continuous monitoring data). Boiler
area sources are required to submit to WebFIRE (an EPA electronic data
base) an electronic copy of stack test reports as well as process data.
Data entry requires only access to the Internet and is expected to be
completed by the stack testing company as part of the work that it is
contracted to perform.
    Please note that the requirement to submit source test data
electronically to EPA does not require any additional performance
testing. In addition, when a facility submits performance test data to
WebFIRE, there are no additional requirements for data compilation;
instead, we believe industry will greatly benefit from improved
emissions factors, fewer information requests, and better regulation
development as discussed below. Because the information that is being
reported is already required in the existing test methods and is
necessary to evaluate the conformance to the test methods, facilities
are already collecting and compiling these data. The Electronic
Reporting Tool (ERT) was developed with input from stack testing
companies, who already collect and compile performance test data
electronically. One major advantage of submitting source test data
through ERT is that it provides a standardized method to compile and
store all the documentation required by subpart JJJJJJ. Another
important benefit of submitting these data to EPA at the time the
source test is conducted is that these data should reduce the effort
involved in data collection activities in the future for these source
categories. This results in a reduced burden on both affected
facilities (in terms of reduced manpower to respond to data collection
requests) and EPA (in terms of preparing and distributing data
collection requests). Finally, another benefit of submitting these data
to WebFIRE electronically is that these data will greatly improve the
overall quality of the existing and new emissions factors by
supplementing the pool of emissions test data upon which emissions
factors are based and by ensuring that data are more representative of
current industry operational procedures. A common complaint we hear
from industry and regulators is that emissions factors are out-dated or
not representative of a particular source category. Receiving recent
performance test results would ensure that emissions factors are
updated and more accurate. In summary, receiving these test data
already collected for other purposes and using them in the emissions
factors development program will save

industry, state/local/tribal agencies, and EPA time and money.
    As mentioned earlier, the electronic data-base that will be used is
EPA's WebFIRE, which is a Web site accessible through EPA's TTN
(technology transfer network). The WebFIRE Web site was constructed to
store emissions test data for use in developing emission factors. A
description of the WebFIRE data-base can be found at http://cfpub.epa.gov/oarweb/index.cfm?action=fire.main. The ERT will be able
to transmit the electronic report through EPA's Central Data Exchange
(CDX) network for storage in the WebFIRE data base. Although ERT is not
the only electronic interface that can be used to submit source test
data to the CDX for entry into WebFIRE, it makes submittal of data very
straightforward and easy. A description of the ERT can be found at
http://www.epa.gov/ttn/chief/ert/ert_tool.html.
    The ERT can be used to document the conduct of stack tests for
various pollutants including PM, mercury, dioxin/furan, and HCl.
Presently, the ERT does not accept opacity data or CEMS data.

IV. Summary of Significant Changes Following Proposal

A. Changes to Subcategories

    We have redefined the coal, biomass and oil subcategories for area
source boilers to clarify the fuel-type inputs that would define each
subcategory. The proposed rule defined the biomass subcategory to
include any boiler that burns any amount of biomass, either alone or in
combination with a liquid or gaseous fuel. This definition excluded
boilers that burned biomass with coal; boilers burning greater than 10
percent coal on an annual fuel heat input basis were defined under the
coal-fired subcategory. This final rule defines the biomass subcategory
to include any boiler that burns at least 15 percent of biomass on an
annual heat input basis.
    Similarly, the proposed rule defined the oil subcategory to include
any boiler that burns any liquid fuel either alone or in combination
with gaseous fuels, and excluded boilers that burned solid fuels. We
have revised this final rule to define the oil subcategory to include
any boiler that burns any liquid fuel and is not in either the biomass
or coal subcategory.
    The coal subcategory in this final rule has been revised to include
any boiler combusting any solid fossil fuels and no more than 15
percent biomass. This final rule defines solid fossil fuels to include,
but not limited to, coal, petroleum coke, and tire derived fuel (TDF).

B. Change From MACT to GACT for Biomass and Oil Subcategories

    The proposed rule set MACT-based emission limits for CO (as a
surrogate pollutant for the individual urban organic HAP) from new and
existing biomass-fired and oil-fired boilers. For POM from area source
boilers classified as biomass-fired or oil-fired, as well as with
respect to other urban HAP besides POM, we have revised this final rule
standards to reflect GACT for these two area source subcategories (see
Section V.D of this preamble). We are implementing management practice
standards, as allowed by CAA section 112(d)(5), for control of POM from
new and existing area source boilers in the biomass and oil
subcategories. The management practice standard requires the
implementation of a tune-up program.

C. MACT Floor UPL Methodology/Emission Limits

    At proposal, we used a 99 percent UPL calculation to determine
variability. In this final rule, we have determined that 99 percent UPL
is appropriate for fuel based HAP and a 99.9 percent UPL is appropriate
for combustion dependent HAP (i.e., CO). We have modified our
assumptions when results of the skewness and kurtosis tests result in a
tie between normal and log-normal calculations, or when there is not
enough data to complete the skewness and kurtosis tests, to choose the
log-normal results. We have also revised the UPL calculation to convert
log-normally distributed data to an arithmetic mean instead of a
geometric mean. Further, for fuel based HAP (i.e., mercury), we have
implemented an additional fuel variability factor in the emission
limits.

D. Clarification of Energy Assessment Requirements

    The proposed rule required owners and operators of existing area
source boilers with a heat input capacity of 10 MMBtu/h and greater to
have an energy assessment performed by a qualified professional. The
proposed rule defined an energy assessment as an ``in-depth assessment
of a facility to identify immediate and long-term opportunities to save
energy, focusing on the steam and process heating systems which
involves a thorough examination of potential savings from energy
efficiency improvements, waste minimization and pollution prevention,
and productivity improvement.'' The requirements for the energy
assessment, defined in Table 3 of the proposed rule, included visually
inspecting the boiler system, establishing operating characteristics
and energy system specifications, identifying the boiler's major energy
consuming systems, listing major energy conservation measures, and a
comprehensive report detailing the ways to improve efficiency, the cost
of specific improvements, and the benefits associated with such.
    This final rule requires an energy assessment for all existing
boilers with a heat input capacity of 10 MMBtu/h or greater, and
clarifies the definition of energy assessment with respect to the
requirements of Table 3 of this final rule. The revised definition
provides a maximum duration for performing the energy assessment and
defines the evaluation requirements for each boiler system and energy
use system. These requirements are based on the total annual heat input
of the affected boilers.
    This final rule requires an energy assessment for facilities with
affected boilers using less than 0.3 trillion Btu per year heat input
to be one day in length maximum. The boiler system and energy use
system accounting for at least 50 percent of the energy output from the
boilers must be evaluated to identify energy savings opportunities
within the limit of performing a one-day energy assessment. An energy
assessment for a facility with affected boilers using 0.3 to 1 TBtu/
year must be three days in length maximum. From these boilers, the
boiler system and any energy use system accounting for at least 33
percent of the energy output will be evaluated, within the limit of
performing a three day energy assessment. For facilities with affected
boilers using greater than 1 TBtu/year heat input, the energy
assessment must comprise the boiler system and any energy use system
accounting for at least 20 percent of the energy output to identify
energy savings opportunities.
    We have also added a definition for ``energy use systems'' to
clarify the components, in addition to the boiler system, which must be
considered during the energy assessment.

E. Revised Subcategory Limits

    The proposed rule set emission limits for PM (as a surrogate for
the individual urban metal HAP) for all new area source boilers and CO
(as a surrogate pollutant for the individual urban organic HAP) for all
new area source boilers and for existing area source boilers with a
heat input capacity of 10 MMBtu/h or greater. The proposed rule also
set emission limits for mercury from new and existing coal-fired
boilers.

    In this final rule, the emission limits for mercury and CO have
been revised for existing coal-fired boilers with a heat input capacity
greater than 10 MMBtu/h. The MACT emission limits for the coal
subcategory have been revised based on the revised MACT floor approach
(see Section V of this preamble). Existing boilers in the biomass and
oil subcategories are not required to meet emission limits for CO in
this final rule; these units must meet the management practice
standards of implementing a boiler tune-up program.
    In this final rule, the PM emission limits for new area source
boilers have been revised based on the size category. For new boilers
in the coal, biomass, and oil subcategories with a heat input capacity
less than 10 MMBtu/h, GACT is a management practice of a tune-up. For
new boilers between 10 and 30 MMBtu/h heat input, the PM limit has been
revised to reflect the performance of GACT, which is a multiclone. The
emission limits for mercury and CO have been revised for new coal-fired
boilers with a heat input capacity greater than 10 MMBtu/h. New boilers
in the biomass and oil subcategories are not required to meet emission
limits for CO; these units must meet the management practice standards
of a tune-up.
    Table 2 of this preamble summarizes the revised emission limits for
each pollutant for each subcategory.

                                                   Table 2--Revised Emission Limits for Subpart JJJJJJ
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Heat input (MMBtu/
           Subcategory                      hr)                Pollutant        Proposed emission limit                Final emission limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
New coal-fired boiler............  >=30                  Particulate Matter..  0.03 lb per MMBtu of      0.03 lb per MMBtu of heat input
                                                                                heat input.
                                                         Mercury.............  0.000003 lb per MMBtu of  0.0000048 lb per MMBtu of heat input
                                                                                heat input.
                                                         Carbon Monoxide.....  310 ppm by volume on a    400 ppm by volume on a dry basis corrected to 3
                                                                                dry basis corrected to    percent oxygen
                                                                                7 percent oxygen
                                   >=10 and <30          Particulate Matter..  0.03 lb per MMBtu of      0.42 lb per MMBtu of heat input
                                                                                heat input
                                                         Mercury.............  0.000003 lb per MMBtu of  0.0000048 lb per MMBtu of heat input
                                                                                heat input.
                                                         Carbon Monoxide.....  310 ppm by volume on a    400 ppm by volume on a dry basis corrected to 3
                                                                                dry basis corrected to    percent oxygen
                                                                                7 percent oxygen
New biomass-fired boiler.........  >=30                  Particulate Matter..  0.03 lb per MMBtu of      0.03 lb per MMBtu of heat input
                                                                                heat input.
                                                         Carbon Monoxide.....  100 ppm by volume on a    Management Practice Standards (see Table 2 to
                                                                                dry basis corrected to    subpart JJJJJJ)
                                                                                7 percent oxygen.
                                   >=10 and <30          Particulate Matter..  0.03 lb per MMBtu of      0.07 lb per MMBtu of heat input
                                                                                heat input.
                                                         Carbon Monoxide.....  100 ppm by volume on a    Management Practice Standards (see Table 2 to
                                                                                dry basis corrected to    subpart JJJJJJ)
                                                                                7 percent oxygen.
New oil-fired boiler.............  >=30                  Particulate Matter..  0.03 lb per MMBtu of      0.03 lb per MMBtu of heat input
                                                                                heat input.
                                                         Carbon Monoxide.....  1 ppm by volume on a dry  Management Practice Standards (see Table 2 to
                                                                                basis corrected to 3      subpart JJJJJJ)
                                                                                percent oxygen.
                                   >=10 and <30          Particulate Matter..  0.03 lb per MMBtu of      0.03 lb per MMBtu of heat input
                                                                                heat input.
                                                         Carbon Monoxide.....  1 ppm by volume on a dry  Management Practice Standards (see Table 2 to
                                                                                basis corrected to 3      subpart JJJJJJ)
                                                                                percent oxygen.
Existing coal-Fired boiler.......  >=10                  Mercury.............  0.000003 lb per MMBtu of  0.0000048 lb per MMBtu of heat input
                                                                                heat input.
                                                         Carbon Monoxide.....  310 ppm by volume on a    400 ppm by volume on a dry basis corrected to 3
                                                                                dry basis corrected to    percent oxygen
                                                                                7 percent oxygen
Existing biomass-fired boiler....                        Carbon Monoxide.....  160 ppm by volume on a    Management Practice Standards (see Table 2 to
                                                                                dry basis corrected to    subpart JJJJJJ)
                                                                                7 percent oxygen
Existing coal-fired boiler.......                        Carbon Monoxide.....  2 ppm by volume on a dry  Management Practice Standards (see Table 2 to
                                                                                basis corrected to 3      subpart JJJJJJ)
                                                                                percent oxygen
--------------------------------------------------------------------------------------------------------------------------------------------------------

F. Demonstrating Compliance

    We have revised the compliance dates for existing affected sources
according to the applicable provisions for each affected source (e.g.,
work practice standards, emission limits, management practice
standards, and/or an energy assessment). Under the proposed rule,
owners and operators of existing sources would have had to comply with
this final rule within 3 years following March 21, 2011. This final
rule requires that if you own or operate an existing source subject to
a work practice or management practice standard of a tune-up, you must
comply with this final rule no later than March 21, 2012. If you own or
operate an existing source subject to an emission limit or an energy
assessment requirement, you must comply with this final rule no later
than March 21, 2014. Under the proposed rule, the owner or operator of
a new source would have been required to comply on the date of
publication of the final rule or upon startup of the facility, which
ever was later. Because this rule is subject to the Congressional
Review Act, the owner or operator of a new source is required to comply
on May 20, 2011 or upon startup of the facility, whichever is later.
    Additionally, we have clarified the compliance requirements for
commercial and industrial solid waste incineration units subject to 40
CFR part 60, subpart CCCC or subpart DDDD that cease combusting solid
waste and become subject to Subpart JJJJJJ. Owners and operators of
commercial and industrial solid waste incineration units must be in
compliance with this subpart on the effective date of the waste to fuel
switch (at least 12 months from the date that the owner or operator
ceased

combusting solid waste), if the effective date is after the applicable
compliance dates discussed above.
    We have also revised the proposed continuous compliance
requirements to be consistent with changes to the emission limits in
this final rule, and are no longer requiring CO CEMS for biomass, oil,
and coal-fired units. For new and existing coal units with a heat input
capacity greater than 10 MMBtu/h, we are requiring stack testing every
3 years to demonstrate compliance with the CO emission limits. Because
boilers in the biomass and oil subcategories are only required to meet
the management practice standards in Table 2 of 40 CFR part 63, subpart
JJJJJJ, no testing for CO emissions is required for these units.

G. Affirmative Defense

    We have added provisions to this final rule to include an
affirmative defense to civil penalties for exceedances of emission
limits that are caused by malfunctions. Consistent with Sierra Club v.
EPA, EPA has established standards in this rule that apply at all
times. However, in response to an action to enforce the standards set
forth in 40 CFR 63.11201, you may assert an affirmative defense for
exceedances of such standards that are caused by malfunction, as
defined at 40 CFR 63.2. (See 40 CFR 63.11226 (defining ``affirmative
defense'' to mean, in the context of an enforcement proceeding, a
response or defense put forward by a defendant, regarding which the
defendant has the burden of proof, and the merits of which are
independently and objectively evaluated in a judicial or administrative
proceeding). The included provisions specify the elements that are
necessary to establish an affirmative defense for periods of
malfunction, including evidence and notification requirements that must
be prepared by the source.

H. Technical/Editorial Corrections

    In this final action, we are making a number of technical
corrections and clarifications to subpart JJJJJJ. These changes improve
the clarity and procedures for implementing the emission limitations to
affected sources. We are also clarifying several definitions to help
affected sources determine their applicability. We have modified some
of the regulatory language that we proposed based on public comments.
    We made several changes to the initial compliance demonstration
requirements. We revised 40 CFR 63.11211(a) to clarify that sources
using a second fuel only for start up, shutdown, and/or transient flame
stability are still considered to be sources using a single fuel. We
deleted 40 CFR 63.11210(b) to remove the requirement that boilers with
a heat input capacity above 100 MMBtu/h are required to demonstrate
compliance by conducting a performance evaluation of their CO CEMS.
    We made a change to the monitoring requirements in 40 CFR 63.11225
(40 CFR 63.11224 in the proposed rule). We deleted paragraph (e) to
remove the requirement that boilers having a heat input capacity of 100
MMBtu/h and subject to a CO limit install a CO CEMS.
    In response to comments asking for clarification, we have added
definitions to 40 CFR 63.11237 for ``Annual heat input basis,''
``Energy use system,'' ``Hot water heater,'' ``Minimum scrubber
pressure drop,'' ``Minimum voltage or amperage,'' ``Qualified energy
assessor,'' and ``Solid fossil fuel.'' We have also revised several
definitions in that section based on public comments. For example, we
revised the definition of ``Boiler'' to describe what is meant by the
term ``controlled flame combustion'' as used in that definition.
    Several of the definitions in 40 CFR 64.11237 were revised to
clarify the types of equipment to which different standards apply. For
example, the definition of ``Waste heat boiler'' was revised to remove
the criteria that 50 percent of total rated heat input capacity had to
be from supplemental burners. We also revised the definition of
``Natural gas'' to include gas derived from naturally occurring
mixtures found in geological formations as long as the principal
constituent is methane, consistent with the definition provided in 40
CFR part 60 subpart Db. A definition of propane was also incorporated
into the definition of natural gas.

V. Significant Area Source Public Comments and Rationale for Changes to
Proposed Rule

    This section contains a brief summary of major comments and
responses. EPA received many comments on this subpart covering numerous
topics. EPA's responses to all comments, including those below, can be
found in the comment response document for Area Source Industrial,
Commercial, and Institutional Boilers in the docket.

A. Legal and Applicability Issues

Section 112(c)(6) of the CAA
    Comment: Some commenters stated that EPA misinterpreted the statute
in using MACT instead of GACT for area sources. These commenters argued
that the statute allows for setting a standard under CAA section
112(d)(2) that can be satisfied using the alternative GACT procedure
specified in CAA section 112(d)(5) to meet the 112(c)(6) requirements.
    Response: We disagree with the comment that the CAA gives EPA
discretion to promulgate GACT standards pursuant to section 112(d)(5)
for area source categories required to be regulated under section
112(c)(6). Section 112(c)(6) of the CAA explicitly requires that
``sources accounting for not less than 90 per centum of the aggregate
emissions of each [pollutant specified in this provision] are subject
to standards under subsection 112(d)(2) or (d)(4) * * *.'' (Emphasis
added). The plain language of section 112(c)(6) requires that the
Agency set standards under section 112(d)(2) or (d)(4). There is no
ambiguity in this language and thus the legislative history cited by
the commenter is irrelevant. As such, the Agency is appropriately
setting standards for the sources at issue pursuant to section
112(d)(2).
    The commenter argues that section 112(d)(5) trumps the very
specific language in section 112(c)(6). We disagree. Congress
unambiguously required the Agency to set standards for these
persistent, bioaccumulative HAP under section 112(d)(2) or (d)(4). Had
Congress wanted us to permit EPA to issue GACT standards for the
112(c)(6) HAP, it would have said that EPA could issue standards under
section 112(d), as it did in section 112(k)(3)(B) of the Act, noting
that area sources shall be subject to standards issued pursuant to
``subsection (d) of this section.'' Congress could not have been more
precise in section 112(c)(6), and we reject the commenter's
interpretation.
    EPA has consistently maintained that standards under section
112(d)(2) or (d)(4) are required for the pollutants listed in section
112(c)(6). In this case, we are setting a section 112(d)(2) MACT
standard for mercury and CO (as a surrogate for POM) for coal-fired
area source boilers, which are the 112(c)(6) pollutants that form the
basis for the listing of the source category at issue here.
    Comment: One commenter argued that EPA did not provide
justification for its decision that mercury and POM must be regulated
pursuant to CAA section 112(c)(6) at area source boilers to satisfy the
requirements that 90 percent of nationwide emissions of these
pollutants must be reduced. The commenter further stated that the
proposed rule and supporting documentation provide no rational basis or
adequate factual justification for the need to regulate area source POM
or

mercury emissions to satisfy CAA section 112(c)(6). Specifically, the
commenter stated that neither the proposed rule nor the MACT floor memo
provide data that support the proposed determination that 90.3 percent
of the 1990 emissions inventory for mercury is already subject to
regulation. In contrast, another commenter said that, once a category
is listed under CAA section 112(c)(6), the only procedure available to
EPA for refraining from promulgating a MACT-based standard for the
category is to remove the category from the CAA section 112(c) list
through the use of CAA section 112(c)(9), regardless of whether the
category is needed to meet the 90 percent requirement in CAA section
112(c)(6).
    Response: The statute does not limit EPA's discretion as to how it
fulfills its obligations under CAA section 112(c)(6). To the extent
that the commenters seek to challenge whether EPA has selected
appropriate categories to meet its obligations under CAA section
112(c)(6) or whether EPA has met the requirement in CAA section
112(c)(6) to regulate categories emitting at least 90 percent of the
specified pollutants (in this case, mercury and POM), such challenges
should not be reviewed in the context of a review of an individual
NESHAP. Rather, if review is appropriate, it should be in the context
of an EPA finding that it has fulfilled its obligations under CAA
section 112(c)(6), and an accounting by the agency of how it reached
the 90 percent threshold for each pollutant. Nevertheless, the docket
for this rulemaking contains a spreadsheet that demonstrates our belief
that we have met the 90 percent requirement for POM and for mercury
with this final rule.
    While we are promulgating GACT-based provisions at this time for
mercury and POM from biomass-fired and oil-fired area source boilers,
note that we have not removed or ``delisted'' oil-fired and biomass-
fired area source boilers by this action. We are not promulgating MACT-
based regulations at this time because they are unnecessary to meet the
requirements of CAA section 112(c)(6).
    Comment: Comments received suggested EOM was not appropriate for
representing POM emissions. The commenters noted a drawback to using
EOM as a surrogate for POM is the limited amount of data available to
quantify emissions and the few EOM inventories or emission factors in
existence. Commenters also stated that EOM includes other extractible
organics in addition to the PAHs. The commenters suggest that the
reasonable assumption is that any observed health effects come from the
PAH fraction and since EOM includes compounds other than PAH, it should
not be used as a surrogate for POM.
    Response: This issue primarily affects whether biomass-fired and
oil-fired boilers are needed to meet the CAA section 112(c)(6)
requirements. EPA has considered commenter input and revised the final
rule based on our re-examination of our section 112(c)(6) baseline
inventory for POM. As we noted in the proposed rule, we reexamine the
inventory associated with the original listing as we learn more about
the source category in the rule development process (75 FR 31904).
Based on a re-examination of the emission inventory in light of
comments, we have determined that we only need to address the coal-
fired portion of the area source segments of these categories under CAA
section 112(c)(6) in order to meet the 90 percent threshold requirement
of that provision for both mercury and POM.
    As discussed in the preamble to the June 2010 proposed rule (75 FR
31896), we have determined that we must regulate mercury and POM from
coal-fired area source boilers in order to meet the requirements in CAA
section 112(c)(6), and we are establishing MACT-based limits for
mercury and POM (using CO as a surrogate) for this subcategory. We are
implementing work practice standards, as allowed by CAA section 112(h),
for control of mercury and POM from new and existing area source
boilers in the coal subcategory with a designed heat input capacity
less than 10 MMBtu/h.
    In the CAA section 112(c)(6) source listing, we used three
indicators (7-PAH, 16-PAH, and extractable organic matter (EOM)) to
represent POM emissions and compiled three separate baseline
inventories for POM, one for each indicators. In light of the comment
described above regarding EOM, we re-examined our three section
112(c)(6) baseline inventories for POM. For the reason stated below, we
have decided to use only the baseline inventory for 16-PAH in
determining the 90 percent threshold under section 112(c)(6).
    We agree with the commenters who have identified data gaps in our
knowledge of what source categories are emitting EOM. While we have
data on 16-PAH emissions for 94 categories, we only have available data
on EOM emissions for 18 source categories. The lack of available data
on EOM emission creates a distorted picture of the relative
contributions of source categories for which there are available EOM
data. The lack of source categories making up the total EOM inventory
makes the relative contribution of the few categories that do have data
unrealistically inflated.\2\ We therefore cannot say with confidence
that by using the baseline inventory for EOM we are capturing 90
percent of the baseline POM emissions, as required by section
112(c)(6). Similarly, we have data on 7-PAH for 32 categories,
considerably fewer than the 94 categories for which we have 16-PAH
data. Because the 16-PAH inventory allows for the most accurate
representation of the universe of categories that emit POM, we have
decided to use that baseline inventory for determining the 90 percent
threshold for POM under section 112(c)(6). Based on the baseline
inventory for 16-PAH, regulating POM emissions from area source biomass
and oil boilers are not needed to meet the CAA section 112(c)(6)
obligations. Thus, POM emissions from area source boilers in the
biomass and oil subcategories can be regulated under GACT, instead of
MACT.
---------------------------------------------------------------------------

    \2\ When justifying its use in the 1998 inventory, we said that
EPA would undertake an effort to develop a robust inventory for EOM
sources to feed into the CAA section 112(c)(6) inventory. Had more
data been gathered, perhaps EOM would have proved to be a more
useful indicator of POM. However, the anticipated inventory was not
developed.
---------------------------------------------------------------------------

    With respect to mercury and POM from area source boilers classified
as biomass-fired or oil-fired, as well as with respect to other urban
HAP besides POM, we have revised the final rule standards to reflect
GACT for these two area source subcategories (see Section IV.B of this
preamble). We are implementing management practice standards, as
allowed by CAA section 112(d)(5), for control of POM from new and
existing area source boilers in the biomass and oil subcategories. The
management practice standard for new and existing area source boilers
requires the implementation of a tune-up program.
    As stated previously in the preamble to the June 2010 proposed
rule, we determined that the control technologies currently used by
facilities in the source category to reduce non-mercury metallic HAP
and PM (multiclone, fabric filters, and ESP) are generally available
and cost effective for new area source boilers. Additionally, these
controls are commonly required by state and other federal regulations
that apply to the area source boilers in the source category.
Therefore, we are establishing numeric emission limits representing
GACT for all new area source boilers with a heat

input capacity greater than 10 MMBtu/h (using PM as a surrogate).
Emission Standards for HAP Other Than Mercury
    Comment: One commenter stated that CAA section 112(c)(6) provides
that EPA must ``list categories and subcategories of sources assuring
that sources accounting for not less than 90 percent of each
[enumerated] pollutant are subject to standards under subsection (d)(2)
or (d)(4) of this section.'' The commenter also stated that the DC
Circuit has held repeatedly that when EPA sets standards for a category
or subcategory of sources under section 112(d)(2), EPA has a statutory
duty to set emission standards for each HAP that the sources in that
category or subcategory emit. The commenter concluded that when EPA
sets standards for area source boilers under section 112(d)(2), as
section 112(c)(6) requires it to do, EPA must set section 112(d)(2)
emission standards for all the HAP that area source boilers emit.
    The commenter said that EPA appears to believe that because area
source boilers are needed only to reach the section 112(c)(6)
requirement of 90 percent for mercury and POM and not for the other
pollutants enumerated in section 112(c)(6), EPA's only obligation under
section 112(c)(6) is to set section 112(d)(2) standards for mercury and
POM. The commenter said that section 112(c)(6) expressly requires EPA
to issue section 112(d)(2) standards for the ``sources'' in the
categories listed under section 112(c)(6), not some subset of the
pollutants that those sources emit, and that section 112(d)(2)
standards must include emission standards for each HAP that a source
category emits. The commenter continued by stating that nothing in the
CAA exempts EPA from this requirement. The commenter concluded that,
had Congress wished to give EPA discretion to set standards for only
some of the pollutants emitted by a category listed under section
112(c)(6), it would have done so expressly.
    Response: EPA disagrees with the comment that, even though EPA
lists a category under section 112(c)(6) due to the emissions of one or
more HAP specified in that section, EPA must issue emission standards
for all HAP (including HAP not listed in section 112(c)(6)) that
sources in that category emit. The commenter cited in support the
opinion by the United States Court of Appeals for the DC Circuit in
National Lime Ass'n v. EPA, 233 F.3d 625, 633-634 (DC Cir. 2000)). The
part of the National Lime opinion referenced in the comment dealt with
EPA's failure to set emission standards for certain HAP emitted by
major sources of cement manufacturing because the Agency found no
sources using control technologies for those HAP. In rejecting EPA's
argument, the court stated that EPA has ``a statutory obligation to set
emission standards for each listed HAP.'' Id. at 634. The Court noted
the list of HAP in section 112(b) and stated that section 112(d)(1)
requires that EPA ``promulgate regulations establishing emission
standards for each category or subcategory of major sources * * * of
hazardous air pollutants listed for regulation * * *'' Id. (Emphasis
added). For the reasons stated below, we do not believe that today's
final rule is controlled by or otherwise conflicts with the National
Lime decision.
    National Lime did not involve section 112(c)(6). That provision is
ambiguous as to whether standards for listed source categories must
address all HAP or only the section 112(c)(6) HAP for which the source
category was listed. Section 112(c)(6) requires that ``sources
accounting for not less than 90 per centum of the aggregate emissions
of each such [specific] pollutant are subject to standards under
subsection (d)(2) or (d)(4).'' This language can reasonably be read to
mean standards for the section 112(c)(6) HAP or standards for all HAP
emitted by the source. Under either reading, the source would be
subject to a section 112(d)(2) or (d)(4) standard.
    The commenter insists that once a section 112(d)(2) standard comes
into play, all HAP must be controlled (per National Lime). But this
result is not compelled by the pertinent provision, section 112(c)(6).
That provision is obviously intended to ensure controls for specific
persistent, bioaccumulative HAP, and this purpose is served by a
reading which compels regulation under section 112(d)(2) only of the
HAP for which a source category is listed under section 112(c)(6),
rather than for all HAP.
    The facts here support the reasonableness of EPA's approach. Area
source boilers are included in source categories listed under section
112(c)(6) for regulation under section 112(d)(2) solely due to its
mercury and POM emissions. There is special statutory sensitivity to
regulation of area source categories in section 112. For example, an
area source category may be listed for regulation under section 112 if
EPA makes an adverse effects finding pursuant to Section 112(c)(3) or
if EPA determines that the area source category is needed to meet its
section 112(c)(3) obligations to regulate urban HAP or its section
112(c)(6) obligations to regulate certain persistent bioaccumulative
HAP. Moreover, to the extent EPA lists an area source category pursuant
to section 112(c)(3) (whether that finding is based on adverse effects
to human health or the environment or a finding that the source is
needed to meet the 90 percent requirement in section 112(c)(3)), the
statute gives EPA discretion to set GACT standards for such sources (42
U.S.C. 7412(d)(5)).
    EPA does not interpret section 112 (c)(6) to create a means of
automatically compelling regulation of all HAP emitted by area sources
unrelated to the core object of section 112(c)(6), which is control of
the specific persistent, bioaccumulative HAP, and thereby bypassing
these otherwise applicable preconditions to setting section 112(d)
standards for area sources. Nor does National Lime address the issue,
since the case dealt exclusively with major sources (233 F. 3d at 633).
Consequently, EPA disagrees with the comment that it is compelled to
promulgate section 112(d)(2) MACT standards for all HAP emitted by area
source boilers.
Beyond-the-Floor Option
    We are promulgating the proposed standard requiring the performance
of an energy assessment for existing area source facilities having an
affected boiler with a designed heat input capacity of 10 MMBtu/h or
greater. This final rule requires the performance of an energy
assessment, by qualified personnel, on the boiler and its energy use
systems to identify cost-effective energy conservation measures. As
discussed in the June 2010 proposed rule, an energy assessment provides
valuable information on improving energy efficiency. Owners and
operators are encouraged, but not required, to use the results of the
energy assessment to increase the energy-efficiency and cost-efficiency
of their boiler system.
    In the proposed rule, the energy assessment requirement was a
beyond-the-floor option for the MACT-based mercury and CO emission
standards because additional emission reductions would be realized as
the results of these energy assessments, if implemented. In this final
rule, the energy assessment requirement is both a beyond-the-floor
control for the MACT-based standards for the coal subcategory and a
GACT for the biomass and oil subcategory because energy assessments are
generally available and have already been performed at numerous
facilities.
    The principal arguments against an energy assessment requirement
are: (1) EPA lacks authority to impose requirements on portions of the
source that are not designated as part of the

affected source, such as non-emitting energy using systems at a
facility; (2) EPA has not quantified the reductions associated with the
energy assessment requirement, therefore it cannot be ``beyond the
floor;'' and (3) the bare requirement to perform an audit without being
required to implement its findings is not a standard under CAA section
112(d).
    With respect to the first argument, we have carefully limited the
requirement to perform an energy assessment to specific portions of the
source that directly affect emissions from the affected boiler, as
indicated by the revised definition of an energy assessment in section
63.11237 of subpart JJJJJJ. The emissions that are being controlled
come from the affected source. For coal-fired units, the process
changes resulting from a change in an energy using system will reduce
the volume of emissions at the affected source. For biomass-fired and
oil-fired area sources, better management practices at energy using
systems will reduce the emissions of HAP from the affected source by
reducing fuel consumption and the HAP released through combustion of
fuel. In either case, the requirement controls the emissions of the
affected source.
    With respect to the second argument, the energy assessment will
generate emission reductions through the reduction in fuel use beyond
those required by the floor. While the precise quantity of emission
reductions will vary from source to source and cannot be precisely
estimated, the requirement is clearly directionally sound and thus
consistent with the requirement to examine beyond the floor controls.
By definition, any emission reduction would be cost effective or else
it would not be implemented.
    Finally, with respect to the third argument, the requirement to
perform the energy audit is, of course, a requirement that can be
enforced and thus a standard. As noted, while we do not know the
precise reductions that will occur at individual sources, the record
indicates that energy assessments reduce fuel consumption and that
parties will implement recommendations from an auditor that they
believe are prudent.\3\ Therefore, the requirement to perform an energy
assessment can both be enforced and will result in emission reductions.
---------------------------------------------------------------------------

    \3\ Case studies and success stories highlighting energy savings
achieved by companies that have participated in Save Energy Now
energy assessments and used Industrial Technologies Program software
tools to improve energy efficiency can be found at http://www1.eere.energy.gov/industry/saveenergynow/case_studies.html and
at the Department of Energy's Energy Assessment Centers Database
http://iac.rutgers.edu/database.
---------------------------------------------------------------------------

Section 112(h) of the CAA
    Comment: Commenters stated that setting work practice standards in
lieu of emission standards for area source boilers with a heat input
capacity less than 10 MMBtu/h is unlawful and arbitrary. Commenters
cited EPA's determination with respect to the technical and economic
limitations on the enforcement of emission standards for boilers with
heat input capacity less than 10 MMBtu/h, and stated that these
limitations do not satisfy CAA section 112(h) conditions for setting
work practice standards in lieu of emission standards. Some commenters
argued that the technical limitations of measuring PM using Method 5,
as discussed in the preamble to the proposed June 2010 rule, do not
apply to mercury and CO. Other commenters remarked that the absence of
sampling ports and stacks at area source boilers does not provide a
basis for a technical or economic limitation, stating that sources are
able to work around this issue. Multiple commenters said that the lack
of measuring ports (which can affect retrofitting new boiler
installations into existing buildings), other design requirements for
efficient exhaust from smaller boilers, and the inapplicability of
approved test methods would make measurement technically and
economically impractical for both existing and new sources. Commenters
specifically cited CAA section 112(h)(1) and (2), which allows the
agency to prescribe work practice standards only if it is ``not
feasible to prescribe or enforce an emission standard * * * due to
technological or economic limitations.''
    Response: EPA disagrees with commenters. As discussed in the
preamble to the June 2010 proposed rule, CAA section 112(h) authorizes
the Administrator to promulgate ``a design, equipment, work practice,
or operational standard, or combination thereof,'' consistent with the
provisions of CAA sections 112(d) or (f), in those cases where, in the
judgment of the Administrator, it is not feasible to prescribe or
enforce an emission standard. CAA section 112(h)(2)(B) further defines
the term ``not feasible'' to mean when ``the application of measurement
technology to a particular class of sources is not practicable due to
technological and economic limitations.'' We have elected to implement
work practice standards for coal-fired boilers with a heat input
capacity of less than 10 MMBtu/h because we have determined that the
standard reference methods for measuring emissions of mercury, CO (as a
surrogate for POM), and PM (as a surrogate for urban non-mercury
metals) are not applicable for sampling small diameter (less than 12
inches) stacks. Furthermore, through the comment process, we have
learned that common, very small boilers (less than 5 MMBtu/h) typically
exhaust through vents and not stacks, and that the installation of
ports into small diameter vents for smaller boilers would likely
interfere with the functionality of exhaust systems for new and
existing boilers. Because many existing area source boilers with a
capacity below 10 MMBtu/h generally have stacks with diameters less
than 12 inches, and because many area source boilers do not currently
have sampling ports or a platform for accessing the exhaust stack, we
have determined that the testing and monitoring costs that area source
boiler facilities would incur to demonstrate compliance with the
proposed emission limits would present an excessive burden for smaller
sources. Thus, we are establishing work practice standards to limit the
emissions of mercury and CO (as a surrogate for POM) for existing and
new coal-fired area source boilers having a heat input capacity of less
than 10 MMBTU/h.
De minimis Levels
    Comment: Several commenters stated that EPA should establish a de
minimis heat input level (less than 1 MMBtu/h heat input capacity)
below which area sources are not subject to regulation or only subject
to work practice standards. These commenters referenced water heaters
and small comfort heating units that are not used in industrial,
commercial, or institutional processes but instead used to provide hot
water for personal use or seasonal comfort heating. Other commenters
noted that State rules that require work practice requirements for
boilers all have a lower limit on applicability of typically 1 to 5
MMBtu/h; these commenters stated that EPA has provided no basis for
applying work practice standards to boilers of this size.
    Response: EPA must establish standards for each category or
subcategory of major sources and area sources of HAP listed pursuant to
CAA section 112(c). EPA may distinguish among classes, types, and size
in establishing such standards but the standards established must be
applicable to new and existing sources of HAP within the category.
However, we agree with the commenters that the categories of boiler
covered by this rule are industrial boilers, commercial

boilers, and institutional boilers. In the proposed rule, we did not
list hot water heaters as exempted as we did in the proposed Boiler
MACT for major sources. As stated in the preamble to the proposed
Boiler MACT, hot water heaters meet the definition of a boiler but are
more appropriately described as residential-type boilers, not
industrial, commercial, or institutional boilers because their output
is intended for personal use rather than for use in an industrial,
commercial, or institutional process. The primary reason for exempting
hot water heaters in the Boiler MACT was that hot water heaters are not
part of the listed source category. Because hot water heaters generally
use natural gas and gas-fired boilers were not part of the area source
category, we did not include a similar exemption in the proposed rule.
To be consistent with the Boiler MACT, we have included in this final
rule a similar exemption and definition for hot water heaters.

B. CO Limits

    Comment: Multiple commenters argued that EPA's determination of
using CO as a surrogate for POM is inappropriate. Several of these
commenters reiterated that there is no reliable correlation between CO
and POM. Some commenters stated that CO is not an appropriate surrogate
for POM or organic HAP at lower CO emission levels. For instance, one
commenter stated that while there is a linear correlation between
decreasing CO and decreasing HAP at higher levels, once CO values fall
under 100 ppm, further reduction of CO does not provide any substantial
correlating reduction of HAP. Other commenters stated that CO is an
inadequate surrogate for POM because there is no POM invariably present
in CO; likewise, commenters stated that because CO and POM have
different mechanisms of formation and reduction, CO cannot be
considered as a reliable surrogate.
    Several commenters suggested total hydrocarbon (THC) as a better
surrogate, stating that THC levels are often more stable and less
reactive to load swings than CO. Commenters noted that THC has been
used as a surrogate for organic HAP emissions in other regulatory
efforts, including the hazardous waste incinerator MACT.
    Response: EPA acknowledges commenters' concerns. Based on new data
received during the public comment period, we have re-examined our
analysis and revised the final standards for CO. As previously
discussed, this final rule only establishes CO emission limits for
coal-fired boilers pursuant to CAA section 112(c)(6). We are
implementing management practice standards, as allowed by CAA section
112(d)(5), for control of CO from new and existing area source boilers
in the biomass and oil subcategories. Additionally, for the coal
subcategory, we have revised the final CO emission limits to ensure a
more accurate correlation between POM and CO levels. EPA is aware of
one European study \4\ that finds the correlation between CO and POM
(or organic HAP, in general) is weaker at lower CO concentrations (less
than 100 ppmv) but we did not have the opportunity to examine the data
relied on by the study and no data supporting this supposition were
submitted as part of the public comments. We have revised the final
standards (400 ppm) based on 99.9 percent UPL as discussed in Section
IV.C of this preamble. EPA believes that CO is a reliable surrogate for
POM at this emission level. EPA considered using THC as a surrogate for
POM, however, we did not have available THC data for area sources.
---------------------------------------------------------------------------

    \4\ European Wood-Heating Technology Survey: An Overview of
Combustion Principles and the Energy and Emissions Performance
Characteristics of Commercially Available Systems in Austria,
Germany, Denmark, Norway, and Sweden; Final Report; Prepared for the
New York State Energy Research and Development Authority; NYSERDA
Report 10-01; April 2010.
---------------------------------------------------------------------------

    Comment: Several commenters expressed concern with respect to the
proposed CO limits. Some commenters stated that the proposed CO limits
are unachievable for some units, including liquid-fired boilers.
Commenters further stated that meeting the CO limits would be more
burdensome for area sources than major sources. Specifically, many
commenters argued that the CO limits are unfeasible from a measurement,
operability, and cost standpoint, particularly when considered
simultaneously with other limits (NOX, VOC). Some commenters
expressed concern that prioritizing CO reduction may promote boiler
inefficiency and result in higher emissions of NOX.
    Other commenters suggested that the CO emission limits should be
determined using long-term CEMS data to account for natural variability
in CO emissions. Commenters also offered alternatives for control of
POM. One commenter suggested that EPA consider cleaner fuels or end of
stack technologies for control, such as fabric filters and scrubbers
that capture POM and POM-precursors.
    Response: As discussed above, this final rule establishes MACT-
based emission limits for CO only for new and existing coal-fired
boilers. In this final rule, area source boilers in the biomass and
oil-fired subcategories are not required to meet CO emission limits;
these boilers are instead required to meet the management practice
standard which consists of a tune-up. The MACT-based CO emission limits
are still required for coal-fired area source boilers in order to meet
our obligation under CAA section 112(c)(6). Based on the available CO
data and the revised UPL calculation methodology, the final CO emission
limits for coal-fired area source boilers are higher than the proposed
limits which should provide more assurance that the limit can be
achieved at all times. EPA notes that the available dataset did not
include sufficient long-term CEMS data for area sources to be used to
set a limit. Therefore, we have established the CO standards based on
the data provided using the revised UPL methodology to account for
variability over the operating cycle of typical industrial, commercial,
and institutional boilers. We also considered other appropriate control
options for sources in each subcategory, including switching to clean
fuels and end of stack technologies. We considered whether fuel
switching could be technically achieved by boilers in the subcategory
considering the existing design of boilers and the availability of
various types of fuel. We determined that fuel switching was not an
appropriate control technology based on the overall effect of fuel
switching on HAP emissions and the technical and design considerations
discussed previously in the preamble to the proposed June 2010 rule (75
FR 31896). This determination is discussed in the memorandum
``Development of Fuel Switching Costs and Emission Reductions for
Industrial, Commercial, and Institutional Boilers and Process Heaters
National Emission Standards for Hazardous Air Pollutants--Area Source''
located in the docket. Additionally, EPA did not identify add-on
control technologies available for control of CO in use at area source
boilers.
C. MACT Floor Analysis
Pollutant-by-Pollutant Approach
    Comment: Several commenters argued that the pollutant-by-pollutant
approach used by EPA is not appropriate. Commenters rejected the
pollutant-by-pollutant approach on the basis that both PM and CO
emission limits are not achievable even for the best performing
sources. These commenters argued that because the proposed area source
MACT standards rely on a different set of best performing sources for
each separate HAP standard, no single source is in the

population of units for both the PM and CO emission limits, and
therefore, the approach does not reflect the performance of the best
performing boilers. Rather, commenters asserted that the proposed
limits were unrealistic, unnecessarily stringent, and unachievable.
Commenters further stated that the provisions of CAA sections
112(d)(1), (2), and (3) of the CAA require that standards must be based
on actual sources, and cannot be the product of pollutant-by-pollutant
``cherry-picking.'' Commenters stated that EPA does not have the
authority to ``distinguish'' units and sources by individual pollutant.
Other commenters stated that EPA must set limits for each HAP that the
sources in the subcategory emit, and not solely mercury or POM. These
commenters stated that to ignore the emitted HAP violates the CAA and
the court order.
    Response: EPA is mindful that MACT floors must reflect achieved
performance. EPA is also mindful that that costs cannot be considered
by EPA in ascertaining the level of the MACT floor. See, e.g., Brick
MACT, 479 F. 3d at 880-81, 882-83; NRDC v. EPA, 489 F. 3d 1364, 1376
(DC Cir. 2007) (``Plywood MACT''); see also Cement Kiln Recycling
Coalition v. EPA, 255 F. 3d 855, 861-62 (DC Cir. 2001)
(``achievability'' requirement of CAA section 112(d)(2) cannot override
the requirement that floors be calculated on the basis of what best
performers actually achieved).
    EPA has carefully developed data for each standard, assessing both
technological controls and HAP inputs in doing so. The MACT floor
variability methodology is discussed in a later response.
    Among all boilers at area sources, only new and existing coal-fired
ones will need to meet MACT-based limits. Nevertheless, it is true that
at least some coal-fired area source boilers will need to install
controls to meet these standards, and that these controls have
significant costs. This is part of the expected MACT process where, by
definition, the averaged performance of the very best performers sets
the minimum level of the standard. The Agency believes that it has
followed the statute and applicable case law in developing its floor
methodology. Although industry commenters maintain these sources cannot
meet the standards, which are predicated on their own performance
without adding controls, this contention lacks a basis in the record.
For mercury, 6 of the 7 boilers for which EPA has emissions data are
meeting the MACT floor standards for mercury. For CO, 13 of the 16
boilers in the MACT pool meet the promulgated standard. In those
instances where commenters provided actual data on these plants'
performance, EPA took the information into account in developing the
final standards. Indeed, EPA adjusted all of the standards based on
actual data presented. We have emissions data on a limited number of
area source units. The available information does indicate that at
least one unit meets both the final PM and CO emission limits.
Dataset for the MACT Floor Analysis
    Comment: Commenters stated numerous objections to the dataset used
for the MACT floor analysis. Some commenters stated that it is
inappropriate to apply limits from data submitted as part of the major
source industrial boiler MACT ICR to area sources. Commenters objected
to EPA's assertion that boilers at area sources are similar in size and
operation to major source boilers; one commenter noted that EPA did not
use test data from area source facilities to set major source floors.
    Other commenters stated that the emission limits are significantly
flawed because they are based on inadequate data and not representative
of the units in the source category. These commenters stated that the
data collected is insufficient because it represents the performance of
less than 1 percent of almost 183,000 existing area source boilers,
particularly given that EPA based the analysis on the top 12 percent of
units for which data were available. Commenters further stated that
there was insufficient data available to establish appropriate boiler-
type subcategories.
    Some commenters expressed that EPA must include emissions data
collected by state and local permitting authorities in establishing the
MACT floor; these commenters stated that these data are more objective
than the newer industry testing and are also necessary to fill in
``gaps'' in the existing data. Other commenters requested that certain
data should be excluded from the MACT floor analysis. For instance,
some commenters stated that non-detect data should be excluded or that
the analysis should be adjusted to account for the capabilities of the
test methods. These commenters stated that the non-detect data results
in an unreasonably low MACT floor; some commenters stated that the
proposed limits are in some cases below the detection capability of the
required test method. Commenters also stated that EPA has not justified
using three times the detection level in its analysis. These commenters
stated that this method biases the results towards higher HAP
emissions, results in a hypothetical standard that is unrealistic and
not determined as required by statute.
    Response: EPA acknowledges commenters' concerns. As mentioned
elsewhere in this preamble, EPA is required to establish MACT floor
levels using existing emissions information. For all data sets, the
final emission limits are based on the available data and EPA's
assessment of variability. Since proposal we have received updated data
on certain boilers and used that data to revise our emission estimates
from the best performing sources. We re-evaluated the information
available for the area source category and revised the proposed MACT-
based CO emission limits such that they only apply to boilers in the
coal subcategory. As discussed above, based on information received
during the public comment period, we determined that regulating POM
emissions from area source biomass and oil boilers is not needed to
meet our CAA section 112(c)(6) obligations; we only need to regulate
coal-fired area source boilers under section 112(d)2) to meet the 90
percent requirement set forth in CAA section 112(c)(6) for POM. The
emissions limits for CO for coal-fired boilers were based on the
available information from the ICR and state operating permits, as well
as that received in comments.
    EPA disagrees with commenters who stated that we excluded emissions
data collected by state and local permitting authorities in
establishing the MACT floor. The available state permits obtained for
coal-fired area source boilers limiting CO emissions were for 11 units
located in Ohio (3 units), and Illinois (8 units). We also obtained CO
emission data from five coal-fired area source boilers as part of the
information collection effort for the major source NESHAP. Even though
the latter data were gathered in the course of collecting data on major
sources, the emission data on these five boilers is from emission
sources in the area source coal-fired boiler subcategory.
    With respect to non-detect data, EPA considered and accounted for
non-detect data when conducting the MACT analysis for mercury for
existing and new coal-fired boilers in this final rule. EPA developed a
methodology to account for the imprecision introduced by incorporating
non-detect data into the MACT floor calculation. At very low emission
levels where emissions tests result in non-detect values, the inherent
imprecision in the pollutant measurement method has a large influence
on the reliability of the data

underlying the MACT floor emission limit. Because of sample and
emission matrix effects, laboratory techniques, sample size, and other
factors, method detection levels normally vary from test to test for
any specific test method and pollutant measurement. The confidence
level that a value, measured at the detection level is greater than
zero, is about 99 percent. The expected measurement imprecision for an
emissions value occurring at or near the method detection level is
about 40 to 50 percent. Pollutant measurement imprecision decreases to
a consistent level of 10 to 15 percent for values measured at a level
about three times the method detection level.\5\
---------------------------------------------------------------------------

    \5\ American Society of Mechanical Engineers, Reference Method
Accuracy and Precision (ReMAP): Phase 1, Precision of Manual Stack
Emission Measurements, CRTD Vol. 60, February 2001.
---------------------------------------------------------------------------

    One approach that we believe can be applied to account for
measurement variability in this situation starts with defining a method
detection level that is representative of the data used in the data
pool. The first step in this approach would be to identify the highest
test-specific method detection level reported in a data set that is
also equal to or less than the average emission calculated for the data
set. This approach has the advantage of relying on the data collected
to develop the MACT floor emission limit, while to some degree,
minimizing the effect of a test(s) with an inordinately high method
detection level (e.g., the sample volume was too small, the laboratory
technique was insufficiently sensitive or the procedure for determining
the detection level was other than that specified).
    The second step is to determine the value equal to three times the
representative method detection level and compare it to the calculated
MACT floor emission limit. If three times the representative method