[Federal Register Volume 78, Number 22 (Friday, February 1, 2013)]
[Rules and Regulations]
[Pages 7487-7522]
[FR Doc No: 2012-31645]

Vol. 78

Friday,

No. 22

February 1, 2013

Part II

Environmental Protection Agency

-----------------------------------------------------------------------

40 CFR Part 63

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

Federal Register / Vol. 78 , No. 22 / Friday, February 1, 2013 /
Rules and Regulations

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2006-0790; FRL-9698-5]
RIN 2060-AR14

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

AGENCY: Environmental Protection Agency (EPA).

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

-----------------------------------------------------------------------

SUMMARY: In this action, the EPA is taking final action on
reconsideration of certain issues related to the emission standards to
control hazardous air pollutants from new and existing industrial,
commercial and institutional boilers at area sources which were issued
under section 112 of the Clean Air Act. As part of this action, the EPA
is amending certain compliance dates for the standard and making
technical corrections to the final rule to clarify definitions,
references, applicability and compliance issues raised by petitioners
and other stakeholders affected by the rule. The EPA today is taking
final action on the proposed reconsideration.

DATES: This final rule is effective on February 1, 2013. The
incorporation by reference of certain publications listed in this final
rule were approved by the Director of the Federal Register as of
February 1, 2013.

ADDRESSES: The EPA established a single 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.,
confidential business information 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 the EPA's Docket Center, Public Reading Room, EPA West
Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC
20004. 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: Ms. Mary Johnson, Energy Strategies
Group (D243-01), Sector Policies and Programs Division, Office of Air
Quality Planning and Standards, Environmental Protection Agency,
Research Triangle Park, North Carolina 27711; telephone number: (919)
541-5025; fax number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
Executive Summary

Purpose of This Regulatory Action

    The EPA is taking final action on its proposed reconsideration of
certain provisions of its March 21, 2011, final rule that established
emission standards for the source category of new and existing
industrial, commercial, and institutional boilers located at area
source facilities listed pursuant to CAA sections 112(c)(3), 112(c)(6),
and 112(k)(3)(B).
    Section 112(d) of the CAA requires the EPA to regulate HAP from
both major and area stationary sources. Section 112(d)(5) of the CAA
allows the EPA to establish standards for area sources of HAP ``which
provide for the use of generally available control technologies (GACT)
or management practices by such sources to reduce emissions of
hazardous air pollutants.'' While GACT serves as the basis for
standards of most emissions from area source boilers, two pollutants
emitted by coal-fired boilers, POM as 7-PAH and Hg, must be regulated
based on the performance of MACT. These two pollutants are regulated
based on MACT because area source industrial, commercial and
institutional boilers combusting coal were listed under section
112(c)(6) of the CAA due to the source categories' emissions of POM and
Hg. Section 112(c)(6) requires the EPA to regulate sources listed
pursuant to that provision by issuing standards under section 112(d)(2)
or (d)(4). The final rule meets this requirement by setting MACT
standards for Hg and CO (as a surrogate for POM) for units in the coal-
fired subcategory. Further, the final rule sets standards based on GACT
for the urban HAP, other than Hg and POM, emitted from coal-fired
boilers that pose the greatest public health risk, pursuant to section
112(c)(3) of the CAA, including arsenic, beryllium, cadmium, lead,
chromium, manganese, nickel, ethylene dioxide, and PCBs. In addition,
the final rule sets standards based on GACT for boilers combusting oil
or biomass for urban HAP, including Hg, arsenic, beryllium, cadmium,
lead, chromium, manganese, nickel, POM, ethylene dioxide, and PCBs.
    In developing the MACT standards for coal-fired boilers, the EPA
considered section 112(h) of the CAA, which allows the EPA to establish
work practice standards in lieu of numerical emission limits under
section 112(d)(2) only in cases where the agency determines that it is
not feasible to prescribe or enforce an emission standard. The EPA has
set work practice standards for emissions of Hg and POM from small
coal-fired boilers, pursuant to section 112(h), in the form of periodic
tune-ups.
    This final rule amends certain provisions of the final rule issued
by EPA on March 11, 2011, and responds to petitions for reconsideration
filed by a number of different entities.

Summary of Major Reconsideration Provisions

    In general, the final rule requires facilities classified as area
sources of HAP with affected boilers to reduce emissions of harmful
toxic air emissions from these combustion sources, improving air
quality, and protecting public health in communities where these
facilities are located.
    Recognizing the diversity of this source category and the multiple
sectors of the economy this rule affects, the EPA is establishing seven
subcategories for boilers based on the design of the combustion
equipment and operating schedules of the unit. In addition to the coal,
biomass, and oil subcategories in the March 2011 final rule, we are
establishing subcategories for seasonal boilers, limited-use boilers,
oil-fired boilers with heat input capacity of equal to or less than 5
MMBtu/hr, and certain boilers that use a continuous oxygen trim system.
    Numerical emission limits, based on MACT, are established for Hg
and CO at new and existing large coal-fired boilers (i.e., with a
design heat input capacity of 10 MMBtu/hr or more). A review of the
data has resulted in changes to the Hg and CO emission limits contained
in the March 2011 final rule. The EPA is also establishing a CEMS
alternative compliance option for the numeric CO emission limit. Coal-
fired boilers subject to a CO emission limit can comply with the limit
using a periodic stack test and CPMS, or by using CEMS. The CO CEMS
alternative compliance option is based on a 10-day rolling average and
provides additional compliance flexibility to sources with existing CO
CEMS equipment. New and existing small coal-fired units (i.e., with a
design heat input capacity of less than 10 MMBtu/hr) are subject to
periodic tune-up work practices for CO and Hg in lieu of numeric
emission limits because the EPA found that it was technologically

and economically impracticable to apply measurement methodology to
these small sources, pursuant to CAA section 112(h).
    Numerical emission limits, based on GACT, are established for PM as
a surrogate for urban metal HAP other than Hg for new large coal-fired
boilers. New and existing small coal-fired boilers are subject to
periodic tune-up management practices for PM as a surrogate for urban
metal HAP other than Hg, and for CO as a surrogate for urban organic
HAP other than POM, based on GACT.
    New large biomass- and oil-fired boilers are subject to numerical
emission limits for PM as a surrogate for urban metal HAP, based on
GACT. Existing biomass and oil-fired boilers and new small biomass- and
oil-fired boilers are subject to periodic tune-up management practices
for PM as a surrogate for urban metal HAP, based on GACT. New and
existing biomass- and oil-fired boilers are subject to periodic tune-up
management practices for CO as a surrogate for urban organic HAP, based
on GACT. Certain other subcategories (seasonal boilers, limited-use
boilers, oil-fired boilers with heat input capacity of equal to or less
than 5 MMBtu/hr, and boilers with an oxygen trim system) are subject to
periodic tune-up work practice or management practice requirements
tailored to their schedule of operation and types of fuel.
    The compliance date for existing sources is March 21, 2014. The
compliance date for new sources that began operations on or before May
20, 2011 is May 20, 2011. For new sources that start up after May 20,
2011, the compliance date is the date of startup. New sources are
defined as sources that began operation after June 4, 2010.

Costs and Benefits

    This final action is intended to clarify definitions, references,
applicability and compliance issues, but not change the coverage of the
final rule. The final rule will affect an estimated 180,000 existing
area source boilers and the EPA projects that approximately an
additional 6,800 new boilers will be subject to the rule over the
initial 3-year period. The clarifications should make it easier for
owners and operators and for local and state authorities to understand
and implement the rule's requirements. As compared to the March 2011
final rule, this final rule will not affect the estimated emission
reductions, control costs or the benefits of the rule in substance.
This final rule does not impose any additional regulatory requirements
beyond those imposed by the previously promulgated boiler area source
rule and, in fact, will result in a decrease in regulatory requirements
for certain subcategories of boilers. A more detailed discussion of the
costs and benefits of the March 2011 final rule is provided at 76 FR
15579, March 21, 2011, and 76 FR 80542, December 23, 2011. Section VI
of this preamble provides a discussion of the impacts of this final
rule.

SUPPLEMENTARY INFORMATION:

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

7-PAH 7-polynuclear aromatic hydrocarbons
ACI activated carbon injection
ASTM American Society for Testing and Materials
Btu British thermal unit
CO carbon monoxide
CEMS continuous emission monitoring system
CDX Central Data Exchange
CAA Clean Air Act
CFR Code of Federal Regulations
COMS continuous opacity monitoring system
CPMS continuous parameter monitoring system
DOE Department of Energy
ERT Electronic Reporting Tool
ESP electrostatic precipitator
FR Federal Register
GACT generally available control technologies
HAP hazardous air pollutants
Hg mercury
HQ Headquarters
ISO International Standards Organization
lb pounds
MACT maximum achievable control technology
MMBtu million British thermal units
NAA No Action Assurance
NAICS North American Industry Classification System
NESHAP national emission standards for hazardous air pollutants
NSPS new source performance standard
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
PCBs polychlorinated biphenyls
PM particulate matter
POM polycyclic organic matter
ppm parts per million
PSD prevention of significant deterioration
RFA Regulatory Flexibility Act
RIN Regulatory Information Number
TBtu trillion British thermal units
TTN Technology Transfer Network
tpy tons per year
UMRA Unfunded Mandates Reform Act of 1995
UPL upper prediction limit
VCS Voluntary Consensus Standards
WWW Worldwide Web

    Organization of This Document. The information presented 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
III. Summary of Final Action on Reconsideration
    A. Affected Sources
    B. Source Category Exclusions
    C. Emission Limits
    D. Tune-Up Work Practice and Management Practice Standards
    E. Energy Assessment Work Practice and Management Practice
Standards
    F. GACT-Based Standards
    G. Initial Compliance
    H. Operating Limits
    I. Continuous Compliance
    J. Periods of Startup and Shutdown
    K. Affirmative Defense Language
    L. Notification, Recordkeeping and Reporting Requirements
    M. Title V Permitting Requirements
    N. Definition of Period of Gas Curtailment or Supply
Interruption
    O. Miscellaneous Technical Corrections
    P. Other Issues
IV. Summary of Significant Changes Since Proposed Action on
Reconsideration
    A. Applicability
    B. Tune-Up Requirements
    C. Energy Assessment
    D. Clarification of Oxygen Concentration Operating Limits
    E. Definitions Regarding Averaging Times
    F. Fuel Sampling Frequency
    G. Performance Testing Frequency
    H. Startup and Shutdown Definitions
    I. Notifications
    J. Miscellaneous Definitions
V. Other Actions the EPA Is Taking
VI. Impacts Associated With This Final Rule
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. General Information

A. Does this action apply to me?

    The regulated categories and entities potentially affected by this
action include:

----------------------------------------------------------------------------------------------------------------
          Industry category           NAICS Code \a\                Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Any area source facility using a                 321  Wood product manufacturing.
 boiler as defined in the final                   11  Agriculture, greenhouses.
 rule..                                          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.
                                               22111  Electric power generation.
----------------------------------------------------------------------------------------------------------------
\a\ 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 regulated by this
final action. To determine whether your facility may be affected 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 final rule to a particular entity, consult either the air permit
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 action will also be available on the WWW through the TTN.
Following signature, a copy of the 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 the CAA section 307(b)(1), 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 by April 2, 2013. Under
CAA section 307(d)(7)(B), only an objection to this final rule that was
raised with reasonable specificity during the period for public comment
can be raised during judicial review.
    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

    Section 112(d) of the CAA requires the EPA to establish NESHAP for
both major and area sources of HAP that are listed for regulation under
CAA section 112(c). A major source is any stationary source that 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 stationary
source that is not a major source.
    On March 21, 2011 (76 FR 15554), the EPA issued the NESHAP for
industrial, commercial and institutional area source boilers pursuant
to CAA sections 112(c)(3), 112(c)(6), and 112(k)(3)(B).
    CAA section 112(k)(3)(B) directs the EPA to identify at least 30
HAP that, as a result of emissions from area sources, pose the greatest
threat to public health in the largest number of urban areas. The EPA
implemented this provision in 1999 in the Integrated Urban Air Toxics
Strategy, (64 FR 38715, July 19, 1999) (Strategy). Specifically, in the
Strategy, the 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.'' Section 112(c)(3) of the CAA requires the 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. Under CAA section 112(d)(5), the EPA 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.''
    CAA section 112(c)(6) requires that the 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, Hg, PCBs, 2,3,7,8-
tetrachlorodibenzofuran, and 2,3,7,8-tetrachlorodibenzo-p-dioxin.
    As noted in the preamble to the final rule, (76 FR 15556, March 21,
2011), we listed area source industrial boilers and commercial/
institutional boilers combusting coal under CAA section 112(c)(6) based
on the source categories' contribution of Hg and POM, and under CAA
section 112(c)(3) for their contribution of arsenic, beryllium,
cadmium, lead, chromium, manganese, nickel, ethylene dioxide, and PCBs,
as well as Hg and POM. We promulgated final standards for coal-fired
area source boilers to reflect the application of MACT for Hg and POM,
and to reflect GACT for the urban HAP other than Hg and POM.
    We listed industrial and commercial/institutional boilers
combusting oil or biomass under CAA section 112(c)(3) for their
contribution of Hg, arsenic, beryllium, cadmium, lead, chromium,
manganese, nickel, POM, ethylene dioxide, and PCBs. For boilers firing
oil or biomass, the final standards reflect GACT for all of the urban
HAP.
    On March 21, 2011, we also published a notice to initiate the
reconsideration of certain aspects of the final rule for area source
industrial, commercial and institutional boilers (76 FR 15266). The
reconsideration notice identified several provisions of the final rule
where additional public comment was appropriate. The notice also
identified several issues of central relevance to the rulemaking where
reconsideration was appropriate under CAA section 307(d).
    Following promulgation of the final rule, the EPA also received
petitions for reconsideration from the following organizations
(Petitioners): American

Sugar Cane League of the U.S.A., Alaska Oil and Gas Association,
American Coke and Coal Chemicals Institute, American Iron and Steel
Institute, American Petroleum Institute, Council of Industrial Boiler
Owners, Industry Coalition (American Forest and Paper Association
(AF&PA) et. al.), National Petrochemical and Refiners Association,
Sierra Club, and the State of Washington Department of Ecology.
Petitioners, pursuant to CAA section 307(d)(7)(B), requested that the
EPA reconsider numerous provisions in the rules. On December 23, 2011,
the EPA granted the petitions for reconsideration on certain issues,
and proposed certain revisions to the final rule in response to the
reconsideration petitions and to address the issues that the EPA
previously identified as warranting reconsideration. That proposal
solicited comment on several specific aspects of the rule, including:
     Establishing separate requirements for seasonally operated
boilers.
     Addressing temporary boilers.
     Clarifying the initial compliance schedule for existing
boilers subject to tune-ups.
     Defining periods of gas curtailment.
     Providing an optional CO compliance mechanism using CEMS.
     Averaging times for parameter monitoring.
     Providing an affirmative defense for malfunction events.
     Adjusting frequency of tune-up work practices for very
small units.
     Selecting a 99 percent confidence interval for setting the
CO emission limit.
     Establishing GACT-based limits for biomass and oil-fired
boilers.
     Scope and duration of the energy assessment and deadline
for completing the assessment.
     Revising GACT-based limits for PM at new oil-fired
boilers.
     Exempting area sources from title V permitting
requirements.
    In this action, the EPA is finalizing multiple changes to this
NESHAP after considering public comments on the items under
reconsideration.

III. Summary of Final Action on Reconsideration

    As stated above, the December 23, 2011, proposed rule addressed
specific issues and provisions the EPA identified for reconsideration.
This summary reflects the agency's final action in regards to those
provisions identified for reconsideration and on other discrete matters
identified in response to comments or data received during the comment
period.

A. Affected Sources

    This final rule amends 40 CFR 63.11194 to specify that an existing
dual-fuel fired boiler (i.e., commenced construction or reconstruction
on or before June 4, 2010) meeting the definition of gas-fired boiler,
as defined in 40 CFR 63.11237, that meets the applicability
requirements of subpart JJJJJJ after June 4, 2010 due to a fuel switch
from gaseous fuel to solid fossil fuel, biomass, or liquid fuel is
considered to be an existing source under this subpart as long as the
boiler was designed to accommodate the alternate fuel. A new or
reconstructed dual-fuel fired boiler (i.e., commenced construction or
reconstruction after June 4, 2010) meeting the definition of gas-fired
boiler, as defined in 40 CFR 63.11237, that meets the applicability
criteria of subpart JJJJJJ after June 4, 2010 due to a fuel switch from
gaseous fuel to solid fossil fuel, biomass, or liquid fuel is
considered to be a new source under this subpart.

B. Source Category Exclusions

    This final rule amends the list of boilers that are not part of the
source categories subject to subpart JJJJJJ. We are revising this list
(as set forth in 40 CFR 63.11195) to clarify certain boiler types and
to include certain additional boilers that may be located at an
industrial, commercial or institutional area source facility. These
revisions of the source categories are described below.
1. Electric Boilers
    The EPA is amending 40 CFR 63.11195 by adding electric boilers to
the list of boilers not subject to subpart JJJJJJ. Electric boilers are
defined in 40 CFR 63.11237 as follows:

    Electric boiler means a boiler in which electric heating serves
as the source of heat. Electric boilers that burn gaseous or liquid
fuel during periods of electrical power curtailment or failure are
included in this definition.
2. Residential Boilers
    The EPA is amending 40 CFR 63.11195 by adding residential boilers
to the list of boilers not subject to subpart JJJJJJ. We are clarifying
that a residential boiler may be part of a residential combined heat
and power system and that a boiler serving a single unit residence
dwelling that has since been converted or subdivided into condominiums
or apartments may also be considered a residential boiler. Residential
boilers are defined in 40 CFR 63.11237 as follows:

    Residential boiler means a boiler used to provide heat and/or
hot water and/or as part of a residential combined heat and power
system. This definition includes boilers located at an institutional
facility (e.g., university campus, military base, church grounds) or
commercial/industrial facility (e.g., farm) used primarily to
provide heat and/or hot water for:
    (1) A dwelling containing four or fewer families, or
    (2) A single unit residence dwelling that has since been
converted or subdivided into condominiums or apartments.
3. Temporary Boilers
    The EPA is amending 40 CFR 63.11195 by adding temporary boilers to
the list of boilers not subject to subpart JJJJJJ. Similar to
residential boilers, we did not intend to regulate temporary boilers
under the area source standards because they are not part of either the
industrial boiler source category or the commercial/institutional
boiler source category. We note that neither the CAA section 112(c)(6)
inventory nor the CAA section 112(c)(3) inventory included temporary
boilers. In this final action, the EPA is simply clarifying the scope
of categories regulated by subpart JJJJJJ. By their nature of being
temporary, these boilers are operating in place of another non-
temporary boiler while that boiler is being constructed, replaced or
repaired, in which case we would have counted the non-temporary boiler
as one being regulated. Additionally, the final major source rule for
boilers excludes temporary boilers.
    The definition of ``temporary boiler'' specifies that a boiler is
not a temporary boiler if it remains at a location within the facility
and performs the same or similar function for more than 12 consecutive
months unless the regulatory agency approves an extension. The
definition of ``temporary boiler'' also specifies that any temporary
boiler that replaces a temporary boiler at a location within the
facility and performs the same or similar function will be included in
calculating the consecutive time period unless there is a gap in
operation of 12 months or more. Temporary boilers are defined in 40 CFR
63.11237 as follows:

    Temporary boiler means any gaseous or liquid fuel boiler that is
designed to, and is capable of, being carried or moved from one
location to another by means of, for example, wheels, skids,
carrying handles, dollies, trailers, or platforms. A boiler is not a
temporary boiler if any one of the following conditions exists:
    (1) The equipment is attached to a foundation.
    (2) The boiler or a replacement remains at a location within the
facility and performs the same or similar function for more than 12
consecutive months, unless the regulatory agency approves an
extension. An extension may be granted by the regulatory agency

upon petition by the owner or operator of a unit specifying the
basis for such a request. Any temporary boiler that replaces a
temporary boiler at a location within the facility and performs the
same or similar function will be included in calculating the
consecutive time period unless there is a gap in operation of 12
months or more.
    (3) The equipment is located at a seasonal facility and operates
during the full annual operating period of the seasonal facility,
remains at the facility for at least 2 years, and operates at that
facility for at least 3 months each year.
    (4) The equipment is moved from one location to another within
the facility but continues to perform the same or similar function
and serve the same electricity, steam, and/or hot water system in an
attempt to circumvent the residence time requirements of this
definition.
4. Boilers With Section 3005 Permits
    The EPA is clarifying the language in 40 CFR 63.11195(c) to provide
an exclusion stating ``unless such units do not combust hazardous waste
and combust comparable fuels'' such that it reads: ``A boiler required
to have a permit under section 3005 of the Solid Waste Disposal Act or
covered by subpart EEE of this part (e.g., hazardous waste boilers),
unless such units do not combust hazardous waste and combust comparable
fuels.''
5. Boilers Used as Control Devices
    The EPA is amending the language in 40 CFR 63.11195(g) to clarify
that any boiler that is used as a control device to comply with a
subpart under part 60, 61, or 65 of chapter 40 is not subject to
subpart JJJJJJ provided that at least 50 percent of the heat input to
the boiler is provided by the gas stream that is regulated under
another subpart.

C. Emission Limits

1. Hg Emission Limit for Coal-Fired Boilers
    The EPA is amending the Hg emission limit for large coal-fired
boilers to 0.000022 lb per MMBtu based on a revised analysis. The
revised analysis excludes data for a utility boiler that were
erroneously used as the basis for the Hg emission limit included in the
March 2011 final rule. Further discussion of this revision to the Hg
emission limit is located in the December 23, 2011, proposal (76 FR
80541).
    A memorandum ``Beyond-the-Floor Analysis for Mercury and Carbon
Monoxide'' located in the docket for the rulemaking describes our
beyond-the-floor analysis for Hg and CO emissions from new and existing
area source coal-fired boilers with heat input capacity of 10 MMBtu/hr
or greater. In the beyond-the-floor option for Hg emissions, new and
existing coal-fired boilers would be required to comply with a Hg
emission limit more stringent than the MACT floor-based emission limit
of 2.2 X 10-\5\ lb of Hg per MMBtu. To comply with a limit
more stringent than the fabric filter-based MACT floor limit, it is
expected that an affected boiler would need to employ fabric filter
control along with ACI. In summary, we determined that the beyond-the-
floor option of installing ACI for Hg control from area source coal-
fired boilers is not economically feasible.
    As discussed in the preamble to the June 2010 proposed rule (75 FR
31896) and the preamble to the March 2011 final rule (76 FR 15554), we
also considered whether fuel switching was an appropriate control
technology for purposes of determining either the MACT floor level or
beyond-the-floor level of control. We determined that fuel switching
was not an appropriate floor or beyond-the-floor control. As also
discussed in the June 2010 and March 2011 preambles, we determined that
an energy assessment requirement was an appropriate beyond-the-floor
option for existing large boilers. These previous analyses continue to
be applicable for mercury.
2. Using the UPL for Setting the CO Emission Limit
    The EPA is amending the CO emission limit for coal-fired boilers to
reflect a revised analysis that uses the 99 percent confidence level in
determining the UPL. Based on the results of the revised analysis, we
are amending the CO emission limit for new and existing coal-fired
boilers from 400 ppm by volume on a dry basis, corrected to 3 percent
oxygen, to 420 ppm by volume on a dry basis, corrected to 3 percent
oxygen.
    As discussed in the ``Beyond-the-Floor Analysis for Mercury and
Carbon Monoxide'' memorandum, to comply with a limit more stringent
than the MACT floor based CO limit, it is expected that new and
existing area source coal-fired boilers with heat input capacity of 10
MMBtu/hr or greater may need to install an oxidation catalyst. As fully
explained in the memorandum, we determined that the beyond-the-floor
option of installing an oxidation catalyst for CO control was
technically infeasible. Other methods of reducing CO emissions, such as
upgrading new burners and overfire air systems, were also considered
and determined to be technically infeasible options. As explained
earlier in this preamble, we determined that fuel switching was not an
appropriate floor or beyond-the-floor control and that an energy
assessment requirement was an appropriate beyond-the-floor option for
existing large boilers. These previous analyses continue to be
applicable for CO.
3. Compliance Alternative for PM for Certain Oil-Fired Boilers
    The EPA is amending the applicability of PM emission limit
requirements for certain new or reconstructed oil-fired boilers. We are
amending 40 CFR 63.11210 to specify that new or reconstructed oil-fired
boilers satisfy GACT for PM when they combust only oil that contains no
more than 0.50 weight percent sulfur or a mixture of 0.50 weight
percent sulfur oil with other fuels not subject to a PM emission limit
under this subpart and do not use a post-combustion technology (except
a wet scrubber) to reduce PM or sulfur dioxide emissions.

D. Tune-Up Work Practice and Management Practice Standards

1. Requirements for Seasonally Operated Boilers
    The EPA is establishing separate requirements for a subcategory of
boilers that are seasonally operated. For seasonally operated boilers,
we are amending 40 CFR 63.11223 to specify that these boilers are
required to complete a tune-up every 5 years, instead of on a biennial
basis as is required for most non-seasonal boilers. Specifically,
existing seasonal boilers are required to complete the initial tune-up
by March 21, 2014, and a subsequent tune-up every 5 years after the
initial tune-up. New and reconstructed seasonal boilers are not
required to complete an initial tune-up, but are required to complete a
tune-up every 5 years after the initial startup of the new or
reconstructed boiler.\1\ A combined total of 15 days of periodic
testing of the seasonal boiler during the 7-month shutdown is allowed.
The definition of ``seasonal boiler'' clarifies that it only applies to
biomass- or oil-fired boilers. Seasonally operated boilers are defined
in 40 CFR 63.11237 as follows:
---------------------------------------------------------------------------

    \1\ Generally, boilers are initially installed optimized for
efficiency, i.e., ``in tune.'' Periodic tune-ups restore a boiler to
its efficient state, given its age and other parameters. We do not
require a tune-up upon startup because boilers normally would
already be efficient at that time. Emission reductions are projected
to occur by maintaining efficient combustion through periodic tune-
ups.

    Seasonal boiler means a boiler that undergoes a shutdown for a
period of at least 7 consecutive months (or 210 consecutive days)
each 12-month period due to seasonal conditions, except for periodic
testing. Periodic testing shall not exceed a combined total of 15
days during the 7-month shutdown. This definition only applies to

boilers that would otherwise be included in the biomass subcategory
or the oil subcategory.
2. Requirements for Small Oil-Fired Units
    The EPA is establishing separate requirements for a subcategory of
oil-fired boilers with a heat input capacity of equal to or less than 5
MMBtu/hr. We are amending 40 CFR 63.11223 to specify that this
subcategory of small oil-fired boilers are required to complete a tune-
up every 5 years, instead of on a biennial basis as is required for
most larger oil-fired boilers. Specifically, existing oil-fired boilers
with a heat input capacity of equal to or less than 5 MMBtu/hr are
required to complete the initial tune-up by March 21, 2014, and a
subsequent tune-up every 5 years after the initial tune-up. New and
reconstructed oil-fired boilers with a heat input capacity of equal to
or less than 5 MMBtu/hr are not required to complete an initial tune-
up, but are required to complete a tune-up every 5 years after the
initial startup of the new or reconstructed boiler.
3. Requirements for Boilers With Oxygen Trim Systems
    The EPA is establishing separate requirements for boilers with
oxygen trim systems that maintain an optimum air-to-fuel ratio that
would otherwise be subject to a biennial tune-up. We are amending 40
CFR 63.11223 to specify that this subcategory of boilers is required to
complete a tune-up every 5 years. Specifically, existing boilers with
oxygen trim systems are required to complete the initial tune-up by
March 21, 2014, and a subsequent tune-up every 5 years after the
initial tune-up. New and reconstructed boilers with oxygen trim systems
are not required to complete an initial tune-up, but are required to
complete a tune-up every 5 years after the initial startup of the new
or reconstructed boiler.
4. Requirements for Limited-Use Boilers
    The EPA is establishing separate requirements for a subcategory of
boilers that operate on a limited basis. The limited-use subcategory
includes any boiler that burns any amount of solid or liquid fuels and
has a federally enforceable average annual capacity factor of no more
than 10 percent. For limited-use boilers, we are amending 40 CFR
63.11223 of the final rule to specify that these boilers are required
to complete a tune-up every 5 years. Specifically, existing limited-use
boilers are required to complete the initial tune-up by March 21, 2014,
and a subsequent tune-up every 5 years after the initial tune-up. New
and reconstructed limited-use boilers are not required to complete an
initial tune-up, but are required to complete a tune-up every 5 years
after the initial startup of the new or reconstructed boiler. Limited-
use boilers are not subject to the emission limits in Table 1 to the
subpart, the energy assessment requirements in Table 2 to the subpart,
or the operating limits in Table 4 to the subpart.

E. Energy Assessment Work Practice and Management Practice Standards

1. Scope
    The EPA is amending the definition of ``energy assessment'' to
clarify that the scope of the energy assessment does not encompass
energy use systems located off-site or energy use systems using
electricity purchased from an off-site source. The energy assessment is
limited to only those energy use systems, located on-site, associated
with the affected boilers. We are also clarifying that the scope of the
assessment is based on energy use by discrete segments of a facility
(e.g., production area or building) and not by a total aggregation of
all individual energy using segments of a facility.
    The definition of ``boiler system'' is being revised in this final
rule to clarify that it means the boiler and associated components
directly connected to and serving the energy use systems. We are
amending the definition of ``energy use system'' to clarify that energy
use systems are only those systems using energy clearly produced by
affected boilers.
    We are clarifying that energy assessor approval and qualification
requirements are waived in instances where an energy assessment
completed on or after January 1, 2008 meets or is amended to meet the
energy assessment requirements in this final rule by March 21, 2014.
Finally, we are specifying that a source that is operating under an
energy management program established through energy management systems
compatible with ISO 50001, that includes the affected boilers, by March
21, 2014, satisfies the energy assessment requirement. We consider
these energy management programs to be equivalent to the one-time
energy assessment because facilities having these programs operate
under a set of practices and procedures designed to manage energy use
on an ongoing basis. These programs contain energy performance
measurements and tracking plans with periodic reviews.
2. Compliance Date
    As specified in 40 CFR 63.11196(a)(3), existing boilers that are
subject to the energy assessment requirement must achieve compliance
with the energy assessment requirement no later than March 21, 2014.
Thus, in order to meet the requirements of the rule, energy assessments
must, therefore, be completed by the compliance date (March 21, 2014)
for existing sources.
3. Maximum Duration Requirements
    The EPA is amending the definition of ``energy assessment'' for
facilities with affected boilers with less than 0.3 TBtu/yr heat input
capacity and for facilities with affected boilers with 0.3 to 1 TBtu/yr
heat input capacity to change the maximum time to conduct the energy
assessment from one day to 8 on-site technical hours and from three
days to 24 on-site technical hours, respectively, and to allow sources
to perform longer assessments at their discretion. We are also amending
the definition of ``energy assessment'' for facilities with affected
boilers with greater than 1 TBtu/yr heat input capacity to specify that
the maximum time to conduct the assessment is up to 24 on-site
technical hours for the first TBtu/yr plus 8 on-site technical hours
for every additional 1.0 TBtu/yr not to exceed 160 on-site technical
hours, but may be longer at the discretion of the owner or operator.

F. GACT-Based Standards

1. Establishing GACT-Based Emission Limits for Biomass- and Oil-Fired
Boilers
    The EPA is not amending the GACT-based standards, as specified in
the March 21, 2011, final rule, for biomass- and oil-fired boilers.
Specifically, the final standards for biomass- and oil-fired area
source boilers are based on GACT instead of MACT as were the proposed
standards for all pollutants except POM. Our rationale for the changes
between proposal and promulgation for the biomass- and oil-fired
boilers, including not requiring MACT for POM, can be found in the
preamble to the promulgated area source standards (76 FR 15565-15567
and 15574-15575, March 21, 2011). The final standards for area source
biomass- and oil-fired boilers require these boilers to meet the
following standards:
    New boilers with heat input capacity greater than 10 MMBtu/hr that
are biomass-fired or oil-fired must meet GACT-based numerical emission
limits for PM.
    New boilers with heat input capacity greater than 10 MMBtu/hr that
are biomass-fired or oil-fired must comply

with work practice standards to minimize the boiler's startup and
shutdown periods following the manufacturer's recommendations, or the
manufacturer's recommendations for a unit of similar design.
    Existing boilers with heat input capacity greater than 10 MMBtu/hr
that are biomass-fired or oil-fired must have a one-time energy
assessment performed by a qualified energy assessor, an energy
assessment completed on or after January 1, 2008 that meets or is
amended to meet the energy assessment requirements in this final rule
by March 21, 2014, or an energy management program established through
energy management systems compatible with ISO 50001, that includes the
affected boilers, by March 21, 2014, under which the owner or operator
currently operates.
    All new and existing units, regardless of size, that are biomass-
fired or oil-fired must have a GACT-based periodic tune-up.
2. Setting GACT-Based PM Standards for New Oil-Fired Boilers
    The EPA is not making any changes to the PM limit for new oil-fired
boilers. New oil-fired boilers with heat input capacity greater than 10
MMBtu/hr must meet a GACT-based numerical emission limit for PM (0.03
lb per MMBtu of heat input). New oil-fired units, regardless of size,
must have a GACT-based periodic tune-up. Our rationale for finalizing
GACT-based PM emissions limits can be found in the preamble to the
promulgated area source standards (76 FR 15574, March 21, 2011).

G. Initial Compliance

1. Dates
    Some commenters have argued that the 3-year compliance deadline of
March 21, 2014, for existing sources to meet the standards does not
provide sufficient time for sources to meet the standards in view of
the large number of sources subject to the rule and that these sources
will be competing for the needed resources and materials from
engineering consultants, permitting authorities, equipment vendors,
construction contractors, financial institutions, and other critical
suppliers.
    As an initial matter, we note that many sources subject to the
standards should be able to meet the standards within 3 years (i.e., by
March 21, 2014), even those that need to install pollution control
technologies to do so. In addition, many sources subject to the
standards are existing biomass- or oil-fired boilers or small coal-
fired boilers (less than 10 MMBtu/hr) and will not need to install
controls in order to demonstrate compliance, as these sources are
subject only to work practices or management practices.
    At the same time, the CAA allows title V permitting authorities to
grant sources, on a case-by-case basis, extensions to the compliance
time of up to 1 year if such time is needed for the installation of
controls. See CAA section 112(i)(3)(B)). Permitting authorities are
already familiar with, and in many cases have experience with, applying
the 1-year extension authority under section 112(i)(3)(B) since the
provision applies to all NESHAP. See 40 CFR 63.6(i)(4)(A). We believe
that should the range of circumstances that commenters have cited as
impeding sources' ability to install controls within 3 years
materialize, then permitting authorities can take those circumstances
into consideration when evaluating an existing source's request for a
1-year extension, and where such applications prove to be well-founded,
permitting authorities can make the 1-year extension available to
applicants.
    In making a determination as to whether an extension is
appropriate, we believe it is reasonable for permitting authorities to
consider the large number of pollution control retrofit projects being
undertaken for purposes of complying either with the standards in this
rule or with those of other rules such as the Major Source Boilers
Standards and the Mercury and Air Toxics Standards for the power sector
that may be competing for similar resources.
    Further, commenters have pointed out that in some cases operators
of existing sources that are subject to these standards and that
generate energy may opt to meet the standards by terminating operations
at these sources and building new sources to replace the energy
generation at the shut-down sources. While the ultimate discretion to
provide a 1-year extension lies with the permitting authority, the EPA
believes that it may be reasonable for permitting authorities to allow
the fourth year extension for the installation of replacement sources
of energy generation at the site of a facility applying for an
extension for that purpose. Specifically, the EPA believes where an
applicant demonstrates that it is building replacement sources of
energy generation for purposes of meeting the requirements of these
standards, such a replacement project could be deemed to constitute the
``installation of controls'' under section 112(i)(3)(B).
    In sum, the EPA believes that although most, if not all, units will
be able to fully comply with the standards within 3 years, the fourth
year that permitting authorities are allowed to grant for installation
of controls is an important flexibility that will address situations
where an extra year is necessary.
2. Demonstrating Initial Compliance
    The EPA is amending 40 CFR 63.11210 to clarify the dates by which
new and reconstructed boilers need to demonstrate initial compliance.
We are amending 40 CFR 63.11210(d) to clarify that only boilers that
are subject to emission limits for PM, Hg or CO in Table 1 to subpart
JJJJJJ have a 180-day period after the applicable compliance date to
demonstrate initial compliance.
    We are adding a new paragraph (i) to 40 CFR 63.11210 to clarify the
initial compliance requirements for boilers located at existing major
sources of HAP that become area sources on a timely basis. Any such
existing boiler at the existing source must demonstrate compliance with
subpart JJJJJJ within 180 days of the later of March 21, 2014 or upon
the existing major source commencing operation as an area source. Any
new or reconstructed boiler at the existing source must demonstrate
compliance with subpart JJJJJJ within 180 days of the later of March
21, 2011 or startup. Notification of such changes must be submitted
according to 40 CFR 63.11225(g).
    We are adding a new paragraph (j) to 40 CFR 63.11210 that specifies
initial compliance demonstration requirements for existing affected
boilers that have not operated between the effective date of the rule
and the source's compliance date. Owners and operators of boilers
subject to emission limits must complete the initial compliance
demonstration no later than 180 days after the re-start of the affected
boiler, sources subject to tune-up requirements must complete the
initial performance tune-up no later than 30 days after the re-start of
the affected boiler, and sources subject to the one-time energy
assessment must complete the assessment no later than the compliance
date specified in 40 CFR 63.11196.
3. Schedule for Existing Boilers Subject to Tune-Up Requirements
    The EPA is amending 40 CFR 63.11196 to specify that all existing
boilers subject to the tune-up requirement have 3 years (by March 21,
2014) in which to demonstrate initial compliance, instead of 1 year as
specified in the 2011 final rule (76 FR 15554, March 21, 2011) or 2
years as specified in the proposed reconsideration of final rule action
(76

FR 80532, December 23, 2011). In the December 23, 2011, proposal, we
specifically requested comment on whether the initial compliance period
for the tune-up requirement should be extended to March 21, 2014.
4. Conducting Initial Tune-Ups at New and Reconstructed Sources
    The EPA is removing the requirement for an initial tune-up for new
and reconstructed boilers. Thus, new and reconstructed units are
required to complete the applicable biennial or 5-year tune-up no later
than 25 months or 61 months, respectively, after the initial startup of
the new or reconstructed boiler.
5. Fuel Requirements
    The EPA is amending 40 CFR 63.11223(a) to specify that boiler tune-
ups must be conducted while burning the type of fuel that provided the
majority of the heat input to the boiler over the 12 months prior to
the tune-up.

H. Operating Limits

1. Operating Limits for Oxygen Concentration
    The EPA is clarifying that the oxygen concentration must be at or
above the minimum established during a performance stack test. These
limits have also been clarified to be applicable when the unit is
firing the fuel or fuel mixture utilized during the CO performance
test.
2. Maximum Operating Load
    The EPA is including provisions for establishing a unit-specific
limit for maximum operating load that applies to any boiler subject to
an emission limit for which compliance is demonstrated by a performance
stack test. Operating load data includes fuel feed rate data or steam
generation rate data.
3. Establishing Operating Limits for Wet Scrubbers
    The EPA is amending the operating limit provisions in 40 CFR
63.11211(b)(2) for an ESP operated with a wet scrubber to remove the
statement that the operating limits for ESP do not apply to dry ESP
systems operated without a wet scrubber.

I. Continuous Compliance

1. CO Emission Limit
    The March 2011 final rule requires sources subject to a CO emission
limit to demonstrate compliance by measuring CO emissions while also
monitoring the oxygen content of the exhaust. We are amending the
monitoring requirements in 40 CFR 63.11224(a) to allow sources subject
to a CO emission limit the option to install, operate, and maintain CO
and oxygen CEMS. The CEMS must be installed, operated and maintained
according to Performance Specifications 3 and 4, 4A, or 4B at 40 CFR
part 60, appendix B, and according to the site-specific monitoring plan
that each facility is required to develop. The CEMS will also be
required to complete a performance evaluation, also according to
Performance Specifications 3 and 4, 4A, or 4B.
    Sources have the option to demonstrate continuous compliance by
monitoring both CO and oxygen using CEMS to demonstrate compliance with
the CO emission limit, corrected to 3 percent oxygen, or monitoring and
complying with an oxygen content operating limit that is established
during the performance stack test. Sources that use CO and oxygen CEMS
are not required to perform initial CO performance testing nor are they
subject to oxygen content operating limit requirements. Sources that
choose to demonstrate continuous compliance by monitoring and complying
with an oxygen content operating limit must install, operate, and
maintain an oxygen analyzer system at or above the minimum percent
oxygen by volume that is established as the operating limit for oxygen
when firing the fuel or fuel mixture utilized during the most recent CO
performance stack test. We have removed the requirement that the oxygen
monitor be located at the outlet of the boiler, so that it can be
located either within the combustion zone or at the outlet as a flue
gas oxygen monitor.
    We are amending the oxygen monitoring requirements to allow for the
use of oxygen trim systems and have included oxygen trim systems in the
definition of ``oxygen analyzer system.'' We have clarified that
operation of oxygen trim systems to meet the oxygen monitoring
requirements shall not be done in a manner that compromises furnace
safety. The definitions of ``oxygen analyzer system'' and ``oxygen trim
system'' in 40 CFR 63.11237 read as follows:
     Oxygen analyzer system means all equipment required to
determine the oxygen content of a gas stream and used to monitor oxygen
in the boiler flue gas, boiler firebox, or other appropriate
intermediate location. This definition includes oxygen trim systems.
     Oxygen trim system means a system of monitors that is used
to maintain excess air at the desired level in a combustion device. A
typical system consists of a flue gas oxygen and/or carbon monoxide
monitor that automatically provides a feedback signal to the combustion
air controller.
2. Tune-Up Standards
    The EPA is amending the requirements for demonstrating continuous
compliance with the work practice and management practice tune-up
standards in 40 CFR 63.11223 to clarify that CO measurements that are
required before and after tune-up adjustments may be taken using a
portable CO analyzer. We are clarifying that the requirements to
inspect the burner and the system controlling the air-to-fuel ratio may
be delayed until the next scheduled shutdown. We are also clarifying
that units that produce electricity for sale may delay these
inspections until the first outage, not to exceed 36 months from the
previous inspection. In addition, we are clarifying that optimization
of CO emissions should be consistent with any NOX
requirements to which the unit is subject. Finally, we are specifying
for units that are not operating on the required date for a tune-up,
the tune-up must be conducted within 30 days of startup.
3. Performance Testing Frequency
    The EPA is amending 40 CFR 63.11220 to specify in paragraph (b)
that the owner or operator of an affected boiler does not need to
conduct further PM emissions testing if, when demonstrating initial
compliance with the PM emission limit, the performance test results
show that the PM emissions are equal to or less than half of the PM
emission limit. The owner or operator must continue to comply with all
applicable operating limits and monitoring requirements. If the initial
performance test results show that the PM emissions are greater than
half of the PM emission limit, the owner or operator must conduct
subsequent performance tests as specified in 40 CFR 63.11220(a).
    We are clarifying in 40 CFR 63.11220(d) that existing affected
boilers that have not operated since the previous compliance
demonstration must complete their subsequent compliance demonstration
no later than 180 days after the re-start of the affected boiler.
4. Fuel Analysis
    The EPA is amending 40 CFR 63.11220 to specify in paragraph (c)
that the owner or operator of an affected coal-fired boiler does not
need to conduct further fuel analysis sampling if, when demonstrating
initial compliance with the Hg emission limit, the Hg constituents in
the fuel or fuel

mixture are measured to be equal to or less than half of the Hg
emission limit. The owner or operator must continue to comply with all
applicable operating limits and monitoring requirements.
    When demonstrating initial compliance with the Hg emission limit,
if the Hg constituents in the fuel or fuel mixture are greater than
half of the Hg emission limit, the owner or operator must conduct
quarterly sampling.
5. Averaging Times
    The EPA is amending the averaging time for parameter monitoring and
compliance with operating limits to a 30-day rolling average.
    The EPA is revising the definitions of ``30-day rolling average''
and ``daily block average'' to exclude periods of startup and shutdown
and periods when the unit is not operating in the calculation of the
arithmetic mean.
6. Monitoring Data
    The EPA is clarifying in 40 CFR 63.11221 the monitoring data
collection requirements.

J. Periods of Startup and Shutdown

1. Definitions
    The EPA is revising the definitions of ``startup'' and ``shutdown''
such that they are tailored for industrial boilers and are consistent
with the definitions of ``startup'' and ``shutdown'' in the 40 CFR part
63, subpart A General Provisions. The revised definitions reflect the
fact that industrial boilers function to provide steam or, in the case
of cogeneration units, electricity. We are defining startup as the
period between either the first-ever firing of fuel in the boiler or
the firing of fuel in the boiler after a shutdown and when the boiler
first supplies steam or heat. We are defining shutdown as the period
between either when no more steam or heat is supplied by the boiler or
no fuel is being fired in the boiler and when there is no steam and no
heat being supplied and no fuel being fired in the boiler.
2. Compliance With Operating Limits
    The EPA has clarified that operating limits must be met at all
times except during periods of startup and shutdown.
3. Minimization of Startup and Shutdown Periods
    The EPA is amending 40 CFR 63.11223(g) to include biomass- and oil-
fired boilers in the requirement to minimize the time spent in startup
and shutdown periods. Specifically, the requirement is to minimize the
boiler's startup and shutdown periods and conduct startups and
shutdowns according to the manufacturer's recommended procedures. If
manufacturer's recommended procedures are not available, recommended
procedures for a unit of similar design for which manufacturer's
recommended procedures are available must be followed.

K. Affirmative Defense Language

    In this final rule, the EPA is updating the affirmative defense
provisions for malfunctions that were included in the March 21, 2011,
final rule. We have made certain changes to 40 CFR 63.11226 to clarify
the circumstances under which a source may assert an affirmative
defense. The changes clarify that a source may assert an affirmative
defense to a claim for civil penalties for violations of standards that
are caused by malfunctions. A source can avail itself of the
affirmative defense when there has been a violation of the emission
standards due to an event that meets the definition of malfunction
under 40 CFR 63.2 and qualifies for assertion of an affirmative defense
under 40 CFR 63.11226. In the March 2011 final rule, we used terms such
as ``exceedance'' or ``excess emissions'' in 40 CFR 63.11226, which
created unnecessary confusion as to when the affirmative defense could
be used. In this final rule, we have eliminated those terms and used
the word ``violation'' to make clear that the affirmative defense to
civil penalties is available only where an event that causes a
violation of the emissions standard meets the criteria for the
assertion of an affirmative defense under 40 CFR 63.11226.
    This final rule requires that to establish the affirmative defense
the owner must prove by a preponderance of evidence that repairs were
made as expeditiously as possible when a violation occurs. We have re-
evaluated the language concerning the use of off-shift and overtime
labor, to the extent practicable, to make the repairs and believe that
the language is not necessary. Thus, the language has been eliminated
from this final rule.
    We have also eliminated the 2-day notification requirement that was
included in 40 CFR 63.11226(b) of the March 2011 final rule because we
expect to receive sufficient notification of malfunction events that
result in violations in other required compliance reports as specified
under 40 CFR 63.11225. In addition, we have revised the 45-day
affirmative defense reporting requirement that was included in 40 CFR
63.11226(b) of the March 2011 final rule. This final rule requires
sources to include the report in the first compliance, deviation or
excess emission report due after the initial occurrence of the
violation, unless the compliance, deviation or excess emission report
is due less than 45 days after the violation. In that case, the
affirmative defense report may be included in the second compliance,
deviation or excess emission report due after the initial occurrence of
the violation. Because the affirmative defense report is now included
in a subsequent compliance, deviation or excess emission report, there
is no longer a need for the 30-day extension for submitting a stand-
alone affirmative defense report. Consequently, we are not including
that provision in this final rule.

L. Notification, Recordkeeping and Reporting Requirements

    The EPA is amending 40 CFR 63.11225(a)(2) to specify that existing
affected boilers have until January 20, 2014 to submit their Initial
Notification.
    The EPA is amending 40 CFR 63.11225(c)(2) to specify that records
of fuel use and type are required only for boilers that are subject to
numerical emission limits. We are also amending 40 CFR 63.11223(b) to
clarify that the type and amount of fuel needs to be included in
reports only if the boiler was physically and legally capable of using
more than one type of fuel during that time period and that the report
should include concentrations of CO and oxygen, measured at high fire
or typical operating load, before and after the tune-up of the boiler.
Finally, we are specifying that for units sharing a fuel meter, the
fuel use by each boiler may be estimated.
    The EPA is amending 40 CFR 63.11225(b) to clarify the requirements
for submitting a biennial or 5-year report for units that are only
subject to tune-up requirements and to specify the information that
must be included in the annual, biennial, or 5-year compliance report.
    We are amending 40 CFR 63.11225(c)(2) to specify, as applicable,
that a copy of the energy assessment, records documenting the days of
operation for each boiler that meets the definition of a seasonal
boiler, and a copy of the federally enforceable permit for each boiler
that meets the definition of a limited-use boiler must be maintained.
    We are revising 40 CFR 63.11225(d) to remove the requirement that
the most recent 2 years of records be maintained on site and are adding
language that allows for computer access or other means of immediate
access of records stored in a centralized location.

    We are adding a new paragraph 40 CFR 63.11225(g) to require that
boilers that switch fuels, make a physical change, or take a permit
limit that results in the applicability of a different subcategory
within subpart JJJJJJ, a switch out of subpart JJJJJJ, or the
applicability of subpart JJJJJJ must provide notification within 30
days of the fuel switch, physical change, or permit limit. 40 CFR
63.11225(g) also specifies what information the notification must
include.

M. Title V Permitting Requirements

    For the reasons stated in our March 21, 2011, final rule (76 FR
15554) as well as our reconsideration proposal (76 FR 80532, December
23, 2011), the EPA is not making any changes to the title V exemption
for area sources. Thus, no area sources subject to subpart JJJJJJ are
required to obtain a title V permit as a result of being subject to
subpart JJJJJJ.
    Facilities that are synthetic area sources for HAP under subpart
JJJJJJ may already be covered by a title V permit or may be required to
obtain a title V permit in the future for a reason other than subpart
JJJJJJ. For example, area source boilers could be major sources of non-
HAP pollutants or could be located at sources that are subject to title
V. Thus, the title V exemption in subpart JJJJJJ does not affect
whether or not these area sources under subpart JJJJJJ are otherwise
required to obtain a permit under part 70 or part 71. See 40 CFR
70.3(a) and (b) or 71.3(a) and (b).

N. Definition of Period of Gas Curtailment or Supply Interruption

    We are amending the definition of ``period of natural gas
curtailment or supply interruption'' in 40 CFR 63.11237 to clarify that
a curtailment does not include normal market fluctuations in the price
of gas that are not associated with periods of supplier delivery
restrictions. We are also amending the definition to indicate that
periods of supply interruption that are beyond control of the facility
can also include on-site natural gas system emergencies and equipment
failures, and that legitimate periods of supply interruption are not
limited to off-site circumstances. We are revising the term and the
definition so that it includes the curtailment of any gaseous fuel, and
is not limited to just natural gas. Finally, we are clarifying that the
supply of gaseous fuel is to an ``affected boiler'' rather than
``affected facility'' and that the supply of gaseous fuel is
``restricted or halted'' for reasons beyond the control of the
facility. The definition is amended to read as follows:

    Period of gas curtailment or supply interruption means a period
of time during which the supply of gaseous fuel to an affected
boiler is restricted or halted for reasons beyond the control of the
facility. The act of entering into a contractual agreement with a
supplier of natural gas established for curtailment purposes does
not constitute a reason that is under the control of a facility for
the purposes of this definition. An increase in the cost or unit
price of natural gas due to normal market fluctuations not during
periods of supplier delivery restriction does not constitute a
period of natural gas curtailment or supply interruption. On-site
gaseous fuel system emergencies or equipment failures qualify as
periods of supply interruption when the emergency or failure is
beyond the control of the facility.

O. Miscellaneous Technical Corrections

    In addition to the above summary of the EPA's final action
regarding provisions identified for reconsideration and on other
discrete matters identified in response to comments or data received
during the comment period, other definitional and regulatory text
revisions are being made. These clarifications will help affected
sources determine their applicability and better understand the rule
requirements. In some instances, definitions and regulatory text have
been revised or added to correspond with other related rules,
especially the emission standards for industrial, commercial, and
institutional boilers at major sources of HAP (40 CFR part 63, subpart
DDDDD). Section IV of this preamble includes additional details
regarding these miscellaneous technical corrections.

P. Other Issues

    40 CFR 63.11196(a)(1) of the March 21, 2011, final rule (76 FR
15554) requires that owners and operators of existing affected boilers
subject to the tune-up requirement complete the initial boiler tune-up
by March 21, 2012. In addition, 40 CFR 63.11225(a)(4) requires that
owners and operators of existing affected boilers subject to the tune-
up requirement submit their Notification of Compliance Status no later
than 120 days after the applicable compliance date specified in 40 CFR
63.11196. That means that those owners and operators were required to
submit their Notification of Compliance Status by July 19, 2012. The
Notification must include, among other information, a certification
that states ``This facility complies with the requirements in Sec.
63.11214 to conduct an initial tune-up of the boiler.''
    On March 13, 2012, the EPA issued a No Action Assurance (NAA) to
all owners and/or operators of existing industrial boilers and
commercial and institutional boilers at area sources of HAP emissions
stating that we would not enforce the requirement to conduct an initial
tune-up by March 21, 2012. The NAA was primarily based upon the EPA's
concern that sources were reporting a shortage of qualified individuals
to prepare boilers for tune-ups and then conduct those tune-ups by the
regulatory deadline, as well as upon the uncertainty in the regulated
community resulting from the pending reconsideration of the Area Source
Boiler Rule. The March 13, 2012, NAA states that it remains in effect
until either (1) 11:59 p.m. EDT, October 1, 2012, or (2) the effective
date of a final rule addressing the proposed reconsideration of the
Area Source Boiler Rule, whichever occurs earlier.
    As the July 19, 2012, Notification of Compliance Status deadline
approached, a final rule addressing the proposed reconsideration of the
Area Source Boiler Rule had not been issued, and thus the NAA continued
to remain in effect. Nothing that the EPA learned since the issuance of
the original NAA letter led us to question our original concerns about
the feasibility of all sources timely completing an initial tune-up.
Further, sources that did not complete a tune-up could not certify that
they conducted one. Thus, on July 18, 2012, the EPA extended the NAA
for sources required to complete an initial tune-up by March 21, 2012,
to also include the deadline for submitting the Notification of
Compliance Status regarding the initial tune-up. In addition, given
that no final rule addressing the proposed reconsideration of the Area
Source Boiler Rule had been issued as of July 18, 2012, the pending
reconsideration continued to create uncertainty in the regulated
community. Thus, the NAA letter also amended the expiration date of the
March 13, 2012, NAA, such that the NAA would remain in effect until
either (1) 11:59 p.m. EST, December 31, 2012, or (2) the effective date
of a final rule addressing the proposed reconsideration of the Area
Source Boiler Rule, whichever occurs earlier.
    This final rule revises the compliance date for existing affected
boilers subject to a tune-up from March 21, 2012, to March 21, 2014.
The July 19, 2012, deadline for submitting the Notification of
Compliance Status regarding the initial tune-up is reset to July 19,
2014, as a result of revising the compliance date for existing affected
boilers subject to a tune-up to March 21, 2014. Owners or operators
that had not yet conducted their boiler tune-up, but submitted a
Notification of Compliance Status by July 19, 2012, simply to notify
the EPA

that the tune-up had not been completed, will need to submit a revised
Notification of Compliance Status after their boiler tune-up is
conducted.

IV. Summary of Significant Changes Since Proposed Action on
Reconsideration

    Numerous changes are being made to the March 2011 final rule based
on the public comments received. Most of the changes are editorial to
clarify applicability and implementation issues raised by the
commenters. The public comments received on the proposed changes and
the responses to them can be viewed in the memorandum ``Summary of
Public Comments and Responses for: National Emission Standards for
Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and
Institutional Boilers'' located in the docket.

A. Applicability

    Since proposal, changes to the applicability of this final rule
have been made.
1. Dual-Fuel Fired Boilers
    The March 2011 final rule includes as a new affected source a
boiler that commences fuel switching from natural gas to solid fossil
fuel, biomass, or liquid fuel after June 4, 2010. For example, under
the March 2011 final rule, if an unaffected gas-fired boiler currently
burns oil as allowed under the definition of gas-fired boiler, but
after June 4, 2010 burns oil for reasons not allowed under the
definition of gas-fired, these boilers would become new affected oil-
fired units. The December 2011 reconsideration action did not propose
any revisions to the provisions regarding boilers that fuel switch
after June 4, 2010. However, the EPA has been made aware through public
comments that many dual-fuel fired units presently burn primarily
natural gas with limited or no amounts of oil, and that these units may
want to burn oil in the future for reasons not allowed under subpart
JJJJJJ's definition of gas-fired (e.g. cost). Under the March 2011
final rule, such an existing dual-fuel gas-fired boiler that wanted to
avoid being subject to the new source requirements would notify as an
existing oil-fired unit and be subject to the requirements for existing
oil-fired boilers.
    We received public comments regarding rule applicability and
compliance requirements for these existing dual-fuel fired boilers. One
commenter asserted that regardless of the fuel capability identified in
an initial notification, the distinction between a new source and an
existing source should only be made based upon a source's capability to
burn a particular fuel as of the effective date of the rule. The
commenter explained that many facilities have boilers that can burn
either gas or liquid and, because the price of gas is currently lower
than the price of most liquid fuels, they likely are currently firing
gas during normal operation, with liquid being fired only during
periods of curtailment. The commenter pointed out that, in the future,
the price of liquid fuel may be lower than the price of gaseous fuel,
and facilities may want to preferentially burn liquid fuel over gas
fuel. The commenter asserted that a change in the fuel from the initial
notification should not, in and of itself, reclassify a source as a new
source for purposes of subpart JJJJJJ. Further, the commenter asserted
that their interpretation is comparable to the fuel switching
provisions in the EPA's NSPS and PSD regulations. The same commenter
asserted that if a source already has oil or alternate fuel capability,
then that source would not be commencing construction or making a
change to the source. The commenter explained that many of these
facilities with boilers capable of burning fuel oil as a back-up for
natural gas may not have submitted an initial notification since
gaseous fuel-fired boilers that only burn liquid during periods of
curtailment are not covered by the Area Source Boiler Rule. The
commenter maintained the EPA's guidance, that a dual-fuel fired boiler
that fails to file an initial notification and then plans to burn oil
in the future would be considered to be a new source, appears to be
contrary to regulatory text stating that an affected source is a new
source if construction or reconstruction of the affected source is
commenced after June 4, 2010 and the applicability criteria are met at
the time construction is commenced. The commenter suggested that the
EPA clarify that to become a new source, the source must be altered to
be capable of accommodating a new fuel, so that new sources are not
created simply by failing to submit an initial notification or a notice
of fuel switching for a unit that is already capable of accommodating
that fuel. Another commenter explained that owners and operators of
dual-fuel fired boilers anticipate firing natural gas for many years to
come, or until gas supply is temporarily curtailed outside of their
control or until such a time when fuel oil becomes more cost effective
to burn than gas. The commenter asserted that, based on common sense
and increased flexibility, these dual-fuel fired boilers normally
burning gas could not be considered subject to any oil-fired
requirements as long as they continue to fire only gas, except under
the regulation's stated exemptions for burning oil.
    In addition to carefully considering the public comments received
regarding dual-fuel fired boilers, the EPA reconsidered its overall
intent with regard to existing dual-fuel fired boilers that fuel switch
after June 4, 2010. Consequently, in this final rule, we are revising
the provisions regarding existing boilers that fuel switch after June
4, 2010. This final rule amends 40 CFR 63.11194 to specify that an
existing dual-fuel fired boiler (i.e., commenced construction or
reconstruction on or before June 4, 2010) meeting the definition of
gas-fired boiler, as defined in 40 CFR 63.11237, that meets the
applicability requirements of subpart JJJJJJ after June 4, 2010 due to
a fuel switch from gaseous fuel to solid fossil fuel, biomass, or
liquid fuel is considered to be an existing source under this subpart
as long as the boiler was designed to accommodate the alternate fuel. A
new or reconstructed dual-fuel fired boiler (i.e., commenced
construction or reconstruction after June 4, 2010) meeting the
definition of gas-fired boiler, as defined in 40 CFR 63.11237, that
meets the applicability criteria of subpart JJJJJJ after June 4, 2010
due to a fuel switch from gaseous fuel to solid fossil fuel, biomass,
or liquid fuel is considered to be a new source under this subpart.
This revision maintains consistency with the rule's applicability
criteria for determining new versus existing sources, eliminates the
requirement that existing dual-fuel fired boilers notify as affected
sources although, at the time, they are not subject to subpart JJJJJJ,
and promotes flexibility in that these existing dual-fuel fired sources
that were designed to accommodate an alternate fuel may fire the
alternate fuel and move into subpart JJJJJJ without being subject to
the more stringent requirements for new boilers.
2. Residential Boilers
    One commenter suggested that the definition of ``residential
boiler,'' as proposed, be revised to acknowledge the use of combined
heat and power systems which function with heat and/or hot water
systems. The EPA agrees and is amending the proposed definition to
clarify that a boiler that operates as part of a residential combined
heat and power system (and that meets other definitional requirements)
is a residential boiler. Another commenter explained that

historical buildings may be subdivided into more than four units but
boilers serving those units should still be considered residential
boilers. We agree and, in this final rule, are amending the proposed
definition to clarify that a boiler serving a single unit residence
dwelling that has since been converted or subdivided into condominiums
or apartments may also be considered a residential boiler.
3. Temporary Boilers
    One commenter supported the EPA's 12-month threshold above which
the boiler would no longer be considered temporary but pointed out that
a boiler used on a temporary basis during construction of a commercial
building may be needed for more than 12 months due to the length of the
construction period. The commenter suggested that the definition of
temporary boiler, as proposed, be revised to allow owners or operators
to petition for an extension beyond 12 months. We agree with the
commenter and, in this final rule, are amending the proposed definition
to allow an owner or operator to submit to their regulatory agency a
petition for an extension beyond 12 months. Another commenter suggested
that the EPA expand on the intent of ``location'' in the definition of
``temporary boiler.'' We are amending the proposed definition to
clarify that ``location'' means ``location within the facility.'' This
clarification will allow a boiler to be moved from one location to
another within a facility and be considered a different temporary
boiler (i.e., a new time period begins) as long as the boiler does not
continue to perform the same or similar function and to serve the same
electricity, steam, and/or hot water system. Another commenter pointed
out that our definition, as proposed, does not specify a time period
associated with the statement ``Any temporary boiler that replaces a
temporary boiler at a location within the facility and performs the
same or similar function will be included in calculating the
consecutive time period.'' The commenter explained that it is not
unusual for a temporary boiler to be used for short periods during
turnarounds or other maintenance activities that recur several years
apart. Under the proposal, these boilers would not be considered
temporary because each boiler replaces the previous one and performs
the same function, even though there is a multi-year gap between the
occurrences. The commenter suggested that replacements that occur after
a gap of at least one year should not be considered consecutive for the
purposes of the definition. We agree with the commenter and are
amending numbered paragraph (2) in the proposed definition of
``temporary boiler'' such that it specifies that ``Any temporary boiler
that replaces a temporary boiler at a location within the facility and
performs the same or similar function will be included in calculating
the consecutive time period unless there is a gap in operation of 12
months or more.''.
4. Seasonal Boilers
    Several commenters explained that boilers subject to semi-annual
testing requirements would not meet the proposed 7 consecutive month
shutdown criteria, but otherwise would be considered seasonal boilers.
Commenters suggested that seasonal boiler be defined to allow periodic
testing during the 7-month shutdown period. We agree with the
commenters and, in this final rule, are revising the proposed
definition of seasonal boiler to allow for a combined total of 15 days
of use during the shutdown period for periodic testing.
    Another commenter pointed out that the EPA's seasonal boiler
definition, as proposed, would potentially allow more regular use. The
commenter specifically suggested that the proposed definition be
revised to clarify that there must be a 7 consecutive month shutdown
every 12 months. It was the EPA's intent that the shutdown period of at
least 7 consecutive months be on a 12-month basis. In response to this
comment, we are clarifying in the definition of seasonal boiler that
the shutdown must be for a period of at least 7 consecutive months (or
210 consecutive days) each 12-month period.
5. Limited-Use Boilers
    Several commenters asserted that the EPA should also include a
limited-use subcategory in the area source rule for the same reasons we
determined a seasonal boiler subcategory was appropriate. Commenters
suggested that we should apply the same 5-year tune-up cycle for
limited-use units such as auxiliary boilers that we proposed for
seasonally-operated units and small oil-fired units. Commenters
explained that in the electric utility industry, auxiliary boilers are
typically used to generate the steam necessary to bring a main EGU on
line during startup and, since auxiliary boilers are primarily operated
during unit startup, operation for many of these boilers is typically
very limited and sporadic. Commenters also pointed out that the Major
Source Boiler Rule includes a limited-use subcategory.
    The EPA has determined that a limited-use subcategory is
appropriate and is including a limited-use subcategory in this final
Area Source Boiler Rule. Specifically, a limited-use boiler is defined
in this final rule to mean any boiler that burns any amount of solid or
liquid fuels and has a federally enforceable average annual capacity
factor of no more than 10 percent. We are using a capacity-factor
approach for the same reasons that the approach is being used in the
Major Source Boiler Rule. A capacity-factor approach allows operational
flexibility for units that operate on standby mode or low loads for
periods longer than would be allowed under an approach that limited
hours of operation (e.g., the 876 hours per year included in the
proposed limited-use definition for major source boilers). The
operational flexibility associated with a capacity-factor approach can
be achieved without increasing emissions or harm to human health and
the environment. Units operating at 10 percent load for 8,760 hours per
year would emit the same amount of emissions as units operating at full
load for 876 hours per year. Further, it is technically infeasible to
test these limited-use boilers since these units serve as back-up
energy sources and their operating schedules can be intermittent and
unpredictable.
    This final rule specifies that limited-use boilers are required to
complete a tune-up every 5 years. Boilers that operate no more than 10
percent of the year (i.e., a limited-use boiler) would operate for no
more than 6 months in between tune-ups on a 5-year tune-up cycle. The
brief period of operations is even less than the number of operating
months that seasonal boilers and full-time boilers will operate between
tune-ups. The irregular schedule of operations also makes it difficult
to schedule more frequent tune-ups. We believe that establishing a
limited-use subcategory is reasonable.
6. Alternative PM Emission Control for Certain Oil-Fired Boilers
    The EPA received a number of comments urging that we provide an
exemption from the PM limit for units burning low-sulfur liquid fuel as
is provided in subpart Dc of 40 CFR part 60 (standards of performance
for new small industrial-commercial-institutional steam generating
units). Commenters asserted that such an exemption is justified since
the low sulfur content indicates low PM emissions and that boilers
firing low-sulfur liquid fuel should only be subject to a requirement
to maintain records documenting the liquid fuel fired. We agree burning
low-sulfur liquid fuel can be an alternative method of meeting GACT for
PM. We are amending 40 CFR

63.11210 to specify that new or reconstructed oil-fired boilers that
combust only oil that contains no more than 0.50 weight percent sulfur
or a mixture of 0.50 weight percent sulfur oil with other fuels not
subject to a PM emission limit under this subpart and that do not use a
post-combustion technology (except a wet scrubber) to reduce PM or
sulfur dioxide emissions meet GACT for PM providing the type of fuel
combusted is monitored and recorded on a monthly basis. Further, we are
specifying that if you intend to burn a new type of fuel or fuel
mixture that does not meet the requirements of this paragraph, you must
conduct a performance test within 60 days of burning the new fuel.

B. Tune-Up Requirements

1. Boilers With Oxygen Trim Systems
    In this final rule, the EPA is adding to the types of boilers that
must conduct a tune-up every 5 years boilers that have an oxygen trim
system that maintain an optimum air-to-fuel ratio that would otherwise
be subject to biennial tune-ups. These units do not need to be tuned as
frequently as other types of boilers because the trim system is
designed to maintain an optimum air-to-fuel ratio which is the purpose
of a tune-up.
2. Initial Compliance for Existing Boilers
    The EPA is revising the initial compliance date for existing
boilers subject to the work practice or management practice standard of
a tune-up. Under the proposed rule, owners and operators of existing
affected boilers would have had to comply with the final rule by March
21, 2013. We solicited comments on whether to extend the compliance
date to March 21, 2014. We received no comments objecting to either of
these dates. Support for an extension until 2014 came from a variety of
stakeholders affected by the rule. Therefore, this final rule requires
that if you own or operate an existing boiler subject to a work
practice or management practice standard of a tune-up, you must comply
with the final rule no later than March 21, 2014.
3. Compliance Demonstration
    We solicited comment on the requirements for demonstrating
compliance with the work practice and management practice tune-up
standards, with one focus on clarifying how to measure CO. Commenters
requested that we clarify that CO measurements may be taken with a
portable CO analyzer. We agree that this clarification is appropriate
and are including this clarification in this final rule.

C. Energy Assessment

    The EPA received a number of comments regarding the energy
assessment requirements and in this final rule is making a series of
changes to the energy assessment provisions and related definitions
that clarify terms used and better set the scope of the assessment.
    In this final rule, we are revising the definition of energy
assessment by providing a duration for performing the energy assessment
for numbered paragraph (3) in the definition of ``energy assessment''
in 40 CFR 63.11237 for facilities with units with greater than 1 TBtu/
yr heat input capacity to specify time duration/size ratio and are
including a cap to the maximum number of on-site technical hours that
should be used in the energy assessment. The energy assessment for
facilities with affected boilers and process heaters with greater than
1.0 TBtu/yr heat input capacity will be up to 24 on-site technical
labor hours in length for the first TBtu/yr plus 8 technical labor
hours for every additional 1.0 TBtu/yr not to exceed 160 technical
hours, but may be longer at the discretion of the owner or operator.
    The revised definition of energy assessment also clarifies our
intentions that the scope of assessment is based on energy use by
discrete segments of a facility, which could vary significantly
depending on the site and its complexity, and not by a total
aggregation of all individual energy using elements of a facility. We
are adding the following language, as paragraph (4), to the ``energy
assessment'' definition to help resolve current problems and allow for
more streamlined assessments:
    ``(4) The on-site energy use systems serving as the basis for the
percent of affected boiler(s) energy output in paragraphs (1), (2), and
(3) of this definition may be segmented by production area or energy
use area as most logical and applicable to the specific facility being
assessed (e.g., product X manufacturing area; product Y drying area;
Building Z).''
    In this final rule, we are revising 40 CFR 63.11201 and Table 2 to
subpart JJJJJJ to allow a source that is operating under an energy
management program established through energy management systems
compatible with ISO 50001, that includes the affected boilers, by March
21, 2014, to satisfy the energy assessment requirement. In addition, we
are clarifying that energy assessor approval and qualification
requirements are waived in instances where an energy assessment
completed on or after January 1, 2008 meets or is amended to meet the
energy assessment requirements in this final rule by March 21.
    The definition of ``boiler system'' is being revised in this final
rule to clarify that it means the boiler and associated components
directly connected to and serving the energy use systems.
    The definition of ``energy use system'' is also being revised in
this final rule to clarify that energy use systems are only those on-
site systems using energy clearly produced by affected boilers.

D. Clarification of Oxygen Concentration Operating Limits

    We are clarifying in this final rule that operating limits for
oxygen concentration must be at or above the minimum established during
a performance stack test. We are also clarifying that these limits are
applicable when the unit is firing the fuel or fuel mixture utilized
during the CO performance test.

E. Definitions Regarding Averaging Times

    The EPA received comments requesting that we clarify that periods
of startup and shutdown are excluded from calculation of the arithmetic
mean in the definitions of ``30-day rolling average'' and ``daily block
average.'' We agree with the commenters and, in this final rule, are
revising the definitions accordingly.

F. Fuel Sampling Frequency

    The EPA is amending the fuel sampling requirements in 40 CFR
63.11220(c) because we realized that when performance stack testing
requirements were revised in the March 2011 final rule we neglected to
revise the fuel analysis requirements. In this final rule, we are
specifying that the owner or operator does not need to conduct further
fuel analysis sampling if, when demonstrating initial compliance with
the Hg emission limit, the Hg constituents in the fuel or fuel mixture
are measured to be equal to or less than half of the Hg emission limit.
If, when demonstrating initial compliance, the Hg constituents in the
fuel or fuel mixture are greater than half of the Hg emission limit,
the owner or operator must conduct quarterly sampling.

G. Performance Testing Frequency

    The EPA is amending the PM performance testing requirements in 40
CFR 63.11220(b) to specify that the

owner or operator of an affected boiler does not need to conduct
further PM emission testing if, when demonstrating initial compliance
with the PM emission limit, the performance test results show that the
PM emissions are equal to or less than half of the PM emission limit.
The owner or operator must continue to comply with all applicable
operating limits and monitoring requirements. If the initial
performance test results show that the PM emissions are greater than
half of the PM emission limit, the owner or operator must conduct
subsequent performance tests as specified in 40 CFR 63.11220(a).
    With respect to the reconsideration issue regarding the GACT-based
PM standards for new oil-fired boilers, we received comments asserting
that the most effective control strategy for small oil-fired boilers is
the tune-up required by the standards and that establishing a PM limit
for those boilers between 10 MMBtu/hr and 30 MMBtu/hr just ensures that
those boilers will do stack testing demonstrating that the boilers are
in compliance without the need for controls; a fact already known.
Commenters also asserted that establishing a PM limit imposes a stack
test obligation on small facilities with the least resources to deal
with the testing.
    We have reviewed the comments and are not eliminating or revising
the PM limit for new oil-fired boilers with heat input capacity between
10 MMBtu/hr and 30 MMBtu/hr. We do however, believe that adjustments to
the PM performance test frequency as described above are appropriate
for boilers that demonstrate during their initial performance test that
their PM emissions are equal to or less than half of the PM limit. We
believe that the performance test adjustment should not be potentially
applicable to only new oil-fired boilers with heat input capacity
between 10 MMBtu/hr and 30 MMBtu/hr, but to all new boilers. Owners or
operators of boilers whose initial performance test results show that
their PM emissions are equal to or less than half of the PM emission
limit and, thus, do not need to conduct further PM emissions testing,
must continue to comply with all applicable operating limits and
monitoring requirements to ensure that there are no changes in
operation of the boiler or air pollution control equipment that could
increase emissions. This adjustment in PM performance test frequency
will potentially reduce the burden on small entities operating boilers
that meet the adjustment criteria.

H. Startup and Shutdown Definitions

    A number of commenters indicated that the proposed load
specifications (i.e., 25 percent load) within the definitions of
``startup'' and ``shutdown'' were inconsistent with either safe or
normal (proper) operation of the various types of boilers encountered
within the source category. As the basis for defining periods of
startup and shutdown, a number of commenters suggested alternative load
specifications based on the specific considerations of their boilers;
other commenters suggested the achievement of various steady-state
conditions.
    We have reviewed these comments and believe adjustments are
appropriate in the definitions of ``startup'' and ``shutdown.'' These
adjustments are tailored for industrial boilers and are consistent with
the definitions of ``startup'' and ``shutdown'' contained in the 40 CFR
part 63, subpart A General Provisions. We believe these revised
definitions address the comments and are rational based on the fact
that industrial boilers function to provide steam or, in the case of
cogeneration units, electricity. Therefore, industrial boilers should
be considered subject to applicable standards at all times steam of the
proper pressure, temperature and flow rate is being provided to a
common header system or energy user(s) for use as either process steam
or for the cogeneration of electricity. The definitions of ``startup''
and ``shutdown'' have been revised in this final rule as follows:

    Startup means either the first-ever firing of fuel in a boiler
for the purpose of supplying steam or heat for heating and/or
producing electricity, or for any other purpose, or the firing of
fuel in a boiler after a shutdown event for any purpose. Startup
ends when any of the steam or heat from the boiler is supplied for
heating and/or producing electricity, or for any other purpose.
    Shutdown means the cessation of operation of a boiler for any
purpose. Shutdown begins either when none of the steam or heat from
the boiler is supplied for heating and/or producing electricity, or
for any other purpose, or at the point of no fuel being fired in the
boiler, whichever is earlier. Shutdown ends when there is no steam
and no heat being supplied and no fuel being fired in the boiler.

I. Notifications

1. Initial Notification
    The EPA has been made aware that there are many affected boilers at
area sources that are just becoming aware, or are not yet aware, that
they are subject to emission standards. Thus, we are amending 40 CFR
63.11225(a)(2) to allow these sources until January 20, 2014 to submit
their Initial Notification.
2. Notification of Fuel Change, Physical Change, or Permit Limit
    The notification requirement in 40 CFR 63.11225(g) of the final
rule for instances when a change in fuel or a physical change to a
boiler results in the applicability of a different subcategory or a
change out of subpart JJJJJJ is being revised. Under the proposed
reconsideration action, a facility would have been required to provide
30 days prior notice of the date upon which the change was scheduled to
occur. Commenters explained that an advanced notification requirement
would delay such a change if the owner or operator decided to
immediately make a change (e.g., switch to 100 percent natural gas) and
could potentially restrict flexibility in manufacturing operations, and
suggested that the owner or operator be allowed to make notification
within 30 days after the change has occurred. We agree that
notification within 30 days after a change that results in
applicability of a different subcategory or a change out of subpart
JJJJJJ will provide the EPA or state/local agency with the required
information within a reasonable timeframe. Thus, in this final rule, we
are requiring facilities making these types of changes to provide
notification within 30 days following the change. The notification
requirement in 40 CFR 63.11225(g) is also being amended to clarify that
it includes affected boilers that switch fuels or make a physical
change to the boiler and the fuel switch or change results in the
applicability of a different subcategory within subpart JJJJJJ, in the
boiler becoming subject to subpart JJJJJJ, or in the boiler switching
out of subpart JJJJJJ due to a change to 100 percent natural gas, as
well as affected boilers that take a permit limit that results in the
applicability of subpart JJJJJJ. Commenters requested that we make this
clarification and we agree that it is appropriate.

J. Miscellaneous Definitions

    In this final rule, we are revising some definitions and adding
others to help affected sources determine their applicability.
Specifically, definitions have been added for the terms ``10-day
rolling average,'' ``30-day rolling average,'' ``Annual heat input,''
``Biodiesel,'' ``Calendar year,'' ``Common stack,'' ``Daily block
average,'' ``Distillate oil,'' ``Electric boiler,'' ``Electric utility
steam generating unit (EGU),'' ``Energy management program,''
``Fluidized bed boiler,'' ``Fluidized bed combustion,'' ``Hourly
average,'' ``Limited-use boiler,'' ``Load fraction,''

``Minimum scrubber pressure drop,'' ``Minimum sorbent injection rate,''
``Minimum total secondary electric power,'' ``Operating day,'' ``Oxygen
analyzer system,'' ``Oxygen trim system,'' ``Process heater,''
``Regulated gas stream,'' ``Residential boiler,'' ``Residual oil,''
``Seasonal boiler,'' ``Shutdown,'' ``Solid fuel,'' ``Startup,''
``Temporary boiler,'' ``Tune-up,'' ``Vegetable oil,'' ``Voluntary
Consensus Standards (VCS),'' and ``Wet scrubber.''
    Definitions revised to clarify the term include ``Bag leak
detection system,'' ``Biomass subcategory,'' ``Boiler,'' ``Boiler
system,'' ``Deviation,'' ``Dry scrubber,'' ``Electrostatic precipitator
(ESP),'' ``Energy assessment,'' ``Energy use system,'' ``Federally
enforceable,'' ``Gas-fired boiler,'' ``Heat input,'' ``Hot water
heater,'' ``Institutional boiler,'' ``Liquid fuel,'' ``Minimum
activated carbon injection rate,'' ``Minimum oxygen level,'' ``Minimum
scrubber liquid flow rate,'' ``Natural gas,'' ``Oil subcategory,''
``Particulate matter,'' ``Period of gas curtailment or supply
interruption,'' ``Qualified Energy Assessor,'' and ``Waste heat
boiler.''

V. Other Actions the EPA Is Taking

    Section 307(d)(7)(B) of the CAA states that ``[o]nly an objection
to a rule or procedure which was raised with reasonable specificity
during the period for public comment (including any public hearing) may
be raised during judicial review. If the person raising an objection
can demonstrate to the Administrator that it was impracticable to raise
such objection within such time or if the grounds for such objection
arose after the period for public comment (but within the time
specified for judicial review) and if such objection is of central
relevance to the outcome of the rule, the Administrator shall convene a
proceeding for reconsideration of the rule and provide the same
procedural rights as would have been afforded had the information been
available at the time the rule was proposed. If the Administrator
refuses to convene such a proceeding, such person may seek review of
such refusal in the United States court of appeals for the appropriate
circuit (as provided in subsection (b)).''
    As to the first procedural criterion for reconsideration, a
petitioner must show why the issue could not have been presented during
the comment period, either because it was impracticable to raise the
issue during that time or because the grounds for the issue arose after
the period for public comment (but within 60 days of publication of the
final action). The EPA is denying the petitions for reconsideration of
five issues because this criterion has not been met. In many cases, the
petitions reiterate comments made on the proposed June 2010 rule during
the public comment period for that rule. On those issues, the EPA
responded to those comments in the March 2011 final rule, and made
appropriate revisions to the proposed rule after consideration of
public comments received. It is well established that an agency may
refine its proposed approach without providing an additional
opportunity for public comment. See Community Nutrition Institute v.
Block, 749 F.2d 50, 58 (DC Cir. 1984) and International Fabricare
Institute v. EPA, 972 F.2d 384, 399 (DC Cir. 1992) (notice and comment
is not intended to result in ``interminable back-and-forth[,]'' nor is
agency required to provide additional opportunity to comment on its
response to comments) and Small Refiner Lead Phase-Down Task Force v.
EPA, 705 F.2d 506, 547 (DC Cir. 1983) (``notice requirement should not
force an agency endlessly to repropose a rule because of minor
changes'')
    In the EPA's view, an objection is of central relevance to the
outcome of the rule only if it provides substantial support for the
argument that the promulgated regulation should be revised. See Union
Oil v. EPA, 821 F.2d 768, 683 (DC Cir. 1987) (court declined to remand
rule because petitioners failed to show substantial likelihood that
final rule would have been changed based on information in petition).
See also the EPA's Denial of the Petitions to Reconsider the
Endangerment and Cause or Contribute Findings for Greenhouse Gases
under Section 202 of the Clean Air Act, 75 FR at 49556, 49561 (August
13, 2010). See also, 75 FR at 49556, 49560-49563 (August 13, 2010) and
76 FR at 4780, 4786--4788 (January 26, 2011) for additional discussion
of the standard for reconsideration under CAA section 307(d)(7)(B).
    We are denying reconsideration on the following five issues
contained in the petitions for reconsideration because they failed to
meet the standard described above for reconsideration under CAA section
307(d)(7)(B). Specifically, on these issues, the petitioner has failed
to show the following: That it was impracticable to raise their
objections during the comment period or that the grounds for their
objections arose after the close of the comment period; and/or that
their concern is of central relevance to the outcome of the rule.
Therefore, the EPA is denying the petitions for reconsideration on the
issues for the reasons described below.

Issue: Use of RDL Is Unlawful

    The petitioner (Sierra Club) objected to the EPA establishing a
MACT floor emission limit at a level equal to three times the RDL as
being unlawful and arbitrary. This issue is not of central relevance to
the outcome of this final rule. The final emission limits in this rule
are based on the UPL at a confidence interval of 99 percent. The RDL
analysis was not used in this final rule.

Issue: MACT Floor for Existing Sources Must Reflect Average Performance
of the Top 12 Percent of Units

    The petitioner (Sierra Club) stated that the MACT floor for
existing sources must reflect the average performance of the top 12
percent of units. The petitioner has not demonstrated that it lacked
the opportunity to comment on the EPA's MACT floor analysis. The
methods used to compute the MACT floors were subject to notice and
comment. Rationale and responses to comments on the MACT floor
methodology were provided at 75 FR 31904, June 4, 2010; 76 FR 15571,
March 21, 2011. Therefore, the EPA is denying the request for
reconsideration.

Issue: Consider a De Minimis Size Threshold

    The petitioners (American Petroleum Institute, National
Petrochemical and Refiners Association, Alaska Oil and Gas Association)
requested that the EPA consider a de minimis size threshold using
guidelines from insignificance thresholds authorized under CAA part 71.
The EPA is denying the request for reconsideration on this issue. In
the June 2010 proposed rule, it was readily apparent that we were not
establishing de minimis size thresholds in the area source rulemaking.
We received multiple comments on this issue and responded to them in
the response to comments document for the March 2011 final rule. The
issue on which petitioners seek reconsideration was one that could have
been raised during the comment period and thus does not meet the
requirements for reconsideration. Therefore, the EPA is denying this
request for reconsideration.

Issue: MACT Standards Must Be Set for All HAP

    The petitioner (Sierra Club) asserted that MACT standards must be
set for all HAP including HAP not listed in CAA section 112(c)(6). The
EPA is denying the request for reconsideration on this issue. We
disagree with the petitioner that the EPA must issue emission standards
for all HAP. MACT standards have been set for Hg and CO, as a

surrogate for POM emissions, but the EPA does not interpret CAA section
112(c)(6) to compel regulation of all HAP emitted by area sources. The
EPA's position on this issue was clear in the proposed rule (75 FR
31900, 31904, 31918). This commenter raised this issue in its comments
(76 FR 15567, March 21, 2011). Not only did the petitioner have an
opportunity to present its theory in its comments, but also it did so.

Issue: CO Is Not a Valid Surrogate for POM

    The petitioner (Sierra Club) requested that the EPA remove the CO
standard as a surrogate for POM and instead adopt a numeric limit for
POM because CO is not an appropriate surrogate. The EPA is denying the
request for reconsideration on this issue. While the EPA disagrees with
the petitioner's argument regarding the suitability of CO as a
surrogate for POM, the petitioner has not demonstrated that it lacked
the opportunity to comment on this issue. The EPA revised the final CO
emission limit to ensure a more accurate correlation between POM and CO
levels. The EPA made its position on this issue clear and explained the
agency's basis for concluding that CO was an appropriate surrogate in
the proposed rule (75 FR 31900, 31904, June 4, 2010). The petitioner
raised this issue in its comments (Document ID: EPA-HQ-OAR-2006-0790-
1982, Comments of Earthjustice, Sierra Club, Clean Air Task Force, and
Natural Resources Defense Council, p. 4). Therefore, the EPA is denying
the request for reconsideration.

VI. Impacts Associated With This Final Rule

    The amendments contained in this final action are corrections that
are intended to clarify, but not change, the coverage of the final
rule. The clarifications and corrections should make it easier for
owners and operators and for local and state authorities to understand
and implement the requirements. The final amendments will not affect
the estimated emission reductions, control costs or the benefits of the
rule in substance. The amendments do not impose any additional
regulatory requirements beyond those imposed by the previously
promulgated boiler area source rule and, in fact, will result in a
decrease in the burden on small facilities as a result of the reduction
in the frequency of conducting tune-ups for seasonal boilers, limited-
use boilers, small (equal to or less than 5 MMBtu/hr) oil-fired boilers
and boilers using an oxygen trim system that maintain an optimum air-
to-fuel ratio. Additionally, the burden will be reduced on facilities
with existing large boilers that currently operate under an energy
management program established through energy management systems
compatible with ISO 50001, that includes the affected boilers, because
a one-time energy assessment will not be required. Burden will also be
reduced on facilities with affected boilers that burn low-sulfur oil
because, in lieu of needing to meet an emission limit, we consider low-
sulfur oil combustion to be GACT for PM for those boilers. This change
should allow sources currently complying with 40 CFR 60 subpart Dc to
use the same compliance approach rather than needing to monitor limits.
Further reduction in burden will occur in instances where initial
compliance demonstrations with the Hg emission limit via fuel sampling
or with the PM emission limit via performance stack testing show that
the emissions are equal to or less than half the respective emission
limit because no further sampling or testing of those boilers will be
required.
    As discussed in section III, the Hg emission limits for new and
existing large (10 MMBtu/hr or greater) coal-fired area source boilers
were revised because of an error discovered in the analysis conducted
for the final rule. This technical correction resulted in an increase
in the emission limit for Hg. As explained in the December 2011
proposal, we also revised our impacts analysis to be consistent with
emission factor changes made to the Major Source Boiler Rule. The
baseline emissions for area sources are calculated using the emission
factors developed for the Major Source Boiler Rule because of
insufficient data for area sources. Emission factor changes resulted in
a higher baseline emission for Hg from coal-fired area source boilers.
Consequently, the result of the increase in both baseline Hg emissions
and Hg emission limits is that the overall reduction in Hg emissions
does not change significantly from the estimated reduction for the
promulgated rule.
    In summary, as compared to the control costs estimated for the
March 2011 final rule, this final rule will not result in any
meaningful change in the capital and annual cost due to the increase in
emission limits and the decrease in burden on small facilities.

VII. Statutory and Executive Order Reviews

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

    Under section 3(f)(1) of Executive Order 12866 (58 FR 51735,
October 4, 1993), this action is a ``significant regulatory action''
because it is likely to raise novel legal or policy issues.
Accordingly, the EPA submitted this action to the OMB for review under
Executive Order 12866 and Executive Order 13563 (76 FR 3821, January
21, 2011), and any changes made in response to OMB recommendations have
been documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden. This
action results in no significant changes to the information collection
requirements of the promulgated rule and will have no increased impact
on the information collection estimate of projected cost and hour
burden made and approved by OMB. In fact, the reduction in tune-up
frequency for some boilers will result in less information collection
burden. Therefore, the information collection request has not been
revised. However, the OMB has previously approved the information
collection requirements contained in the existing regulation (40 CFR
part 63, subpart JJJJJJ) under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501, et seq. and has assigned OMB control
number 2060-0668. The OMB control numbers for the EPA's regulations in
40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small
entities.\2\

The RFA also allows an agency to ``consider a series of closely related
rules as one rule for the purposes of sections'' 603 (initial
regulatory flexibility analysis) and 604 (final regulatory flexibility
analysis) in order to avoid ``duplicative action.'' 5 U.S.C. section
605(c). These amendments and notice of final action on reconsideration
are closely related to the final Area Source Boiler Rule, which the EPA
signed on February 21, 2011, and that took effect on May 20, 2011. The
EPA prepared a final regulatory flexibility analysis in connection with
the final Area Source Boiler Rule. Therefore, pursuant to section
605(c), the EPA is not required to complete a final regulatory
flexibility analysis for this rule (i.e., the amendments and final
action).
---------------------------------------------------------------------------

    \2\ Small entities include small businesses, small
organizations, and small governmental jurisdictions. For purposes of
assessing the impacts of this final rule on small entities, small
entity is defined as: (1) A small business as defined by the Small
Business Administration size standards for small businesses at 13
CFR 121.201 (less than 500, 750, or 1,000 employees, depending on
the specific NAICS Code under subcategory 325); (2) a small
governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise that is independently owned and operated and is not
dominant in its field.
---------------------------------------------------------------------------

    The EPA has been concerned with potential small entity impacts
since it began developing the Area Source Boiler Rule. The EPA
conducted outreach to small entities and, pursuant to section 609 of
RFA, convened a Small Business Advocacy Review Panel (the Panel) on
January 22, 2009, to obtain advice and recommendations from small
entity representatives. Pursuant to the RFA, the EPA used the Panel's
report and prepared both an initial regulatory flexibility analysis and
a final regulatory flexibility analysis in connection with the closely
related final Area Source Boiler Rule. Convening an additional Panel
and preparing an additional final regulatory flexibility analysis would
be procedurally duplicative and is unnecessary given that the issues
here are within the scope of those considered by the Panel. Finally, we
note that this action, which amends the Area Source Boiler Rule, will
not impose any additional regulatory requirements beyond those imposed
by the previously promulgated Area Source Boiler Rule and, in fact, the
amendments will afford relief to some boilers.

D. Unfunded Mandates Reform Act

    This action contains no new federal mandates under the provisions
of Title II of the UMRA of 1995, 2 U.S.C. 1531-1538 for state, local,
or tribal governments or the private sector. This action imposes no new
enforceable duty on any state, local, or tribal governments or the
private sector. Therefore, this action is not subject to the
requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule finalizes
amendments to aid with compliance.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This final rule will not impose new
direct compliance costs on state or local governments, and will not
preempt state law. Thus, Executive Order 13132 does not apply to this
action.

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

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have
substantial new direct effects on tribal governments, on the
relationship between the federal government and Indian tribes, or on
the distribution of power and responsibilities between the federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23,
1997) as applying to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Order has the potential to influence the regulation. This action is
not subject to Executive Order 13045 because it is based solely on
technology performance.

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

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. We estimate no significant changes for
the energy sector for price, production, or imports.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the NTTAA of 1995, Public Law No. 104-113, 12(d)
(15 U.S.C. 272 note) directs the EPA to use VCS in its regulatory
activities, unless to do so would be inconsistent with applicable law
or otherwise impractical. VCS are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by VCS bodies. NTTAA directs
the EPA to provide Congress, through OMB, explanations when the agency
decides not use available and applicable VCS.
    This action does not involve any new technical standards.
Therefore, the EPA did not consider the use of any VCS.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    The EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because the level of
protection provided to human health or the environment through the
rule's requirements does not vary. Therefore, it does not have any
disproportionately high or adverse human health or environmental
effects on any population, including any minority or low-income
population.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to

publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is a reconsideration of a previous action that
was a major rule under the CRA. However, today's action makes only
certain limited revisions to the March 2011 rule and those revisions do
not qualify as a major rule under the CRA. Therefore, this action is
not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be
effective February 1, 2013.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Incorporation by
reference.

    Dated: December 20, 2012.
Lisa P. Jackson,
Administrator.
    For the reasons stated in the preamble, title 40, chapter I, part
63 of the Code of Federal Regulations is amended as follows:

PART 63--[AMENDED]

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

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

Subpart A--[Amended]

0
2. Section 63.14 is amended by:
0
a. Revising paragraphs (b)(19), (b)(23), (b)(35), (b)(40), (b)(69), and
(b)(70).
0
b. Removing and reserving paragraph (b)(53).
0
c. Adding paragraphs (b)(46), (b)(55), and (b)(76) through (83).
0
d. Adding paragraphs (p)(12) through (20).
0
e. Adding paragraph (r).
    The revisions and additions read as follows:

Sec.  63.14  Incorporations by reference.

* * * * *
    (b) * * *
    (19) ASTM D95-05 (Reapproved 2010), Standard Test Method for Water
in Petroleum Products and Bituminous Materials by Distillation,
approved May 1, 2010, IBR approved for Sec.  63.10005(i) and table 6 to
subpart DDDDD.
* * * * *
    (23) ASTM D4006-11, Standard Test Method for Water in Crude Oil by