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

    Outlined below are commenters' responses to the agency information
requests regarding pulp and paper sludges and a categorical non-waste
determination.
    Comment: The EPA requested information on how pulp and paper mill
sludge is used as a legitimate fuel and not discarded at pulp and paper
mills and how the material is integrated into the industrial production
process.
    In responding to the agency's request, commenters first provided a
summary of energy needs by the pulp and paper industry. The commenters
indicated that the industry is somewhat unique in its energy profile
and in how individual mills select appropriate fuels to support their
energy needs. Most pulp and paper mill boilers are specifically
designed to handle a variety of fuels; few boilers are designed to burn
just traditional fuel. Even mills with boilers specifically permitted
as pulp and paper sludge boilers also burn other fuels. Over the years,
the industry has recognized the benefits of burning secondary
materials, particularly those generated on-site. These secondary
materials are derived from and have characteristics similar to
traditional fuel, particularly the biomass used to produce pulp and
paper products.
    Mills do not usually burn just one type of fuel at any one time.
Some mills rely heavily on coal, others on natural gas or biomass.
According to the commenter, the choice of fuel depends on availability,
cost and need. Hogged fuel or coal may be the underlying fuel but it is
supplemented by other traditional and non-traditional fuels. This is
done in order to meet the energy needs of the mill but also to address
best management practices for the boiler and meet air quality
requirements. If the hogged fuel is wet, coal or resinated wood may be
added to boost heat value. If the boiler is burning too hot, the
addition of pulp and paper sludge enables the mill to regulate
temperature. Pulp and paper sludge also may be burned because it has
the best fuel value for the price. All of these decisions are based on
the boiler conditions, fuel availability, energy needs, air quality
requirements, as well as costs, and all are considered when the energy
manager determines the right mix of fuel in any given day.
    As a result, the quantities of different types of fuels burned over
the course of a year differ and the mill may not burn 100 percent of
the available fuel generated during that year. Not all pulp and paper
sludges are burned at a given mill over the course of a year nor are
all recycled process residuals (old corrugated cardboard rejects) or
all hogged fuel. The commenter emphasized that if only a percentage of
a secondary material generated by the industry is used as a fuel, that
it does not negate its value as a fuel. Rather, it reflects the
realities of running a boiler for which the economic and operating
conditions are interconnected and dynamic.
    For example in one mill, the commenter indicated that combination
boilers are designed to burn a wide variety of fuels efficiently and
cleanly. Two mills' boilers currently burn tire-derived fuel,\92\ while
one burns waste paper generated at the mill. They all are capable of
burning one or more fossil fuels: oil (including used oil), coal and
gas. The four combination boilers burn large amounts of biomass, either
generated on-site or purchased commercially. A portion of three of the
mills' biomass consists of sludge generated on-site from their
wastewater treatment processes.
---------------------------------------------------------------------------

    \92\ Tire-derived fuel used in the paper industry must be
dewired since the wires often clog the feed system. Thus, the
industry does not utilize whole tires.
---------------------------------------------------------------------------

    One state commenter also indicated that most mills operate boilers
that are specifically designed to handle a variety of fuels--few
boilers are designed to burn just traditional fuel and mills do not
usually burn just one type of fuel at any one time. Bark and biomass
fuel may be the primary fuel but it is supplemented by other
traditional or alternative fuels.
    Secondary materials have been an important alternative fuel used
safely by the mills in the commenter's state for many years. Most of
that state's mills' have multi-fuel boilers. Their fuel handling
equipment, mill wastewater treatment systems and other ancillary
equipment were designed to combust alternative fuels, including pulp
and paper sludge. Use of these fuels reduces reliance on purchased
biomass and/or fossil fuels and provides a vehicle for beneficial reuse
of the materials. In light of the greater stringency of the CISWI

regulations, the state indicated that the mills are likely to landfill
these materials instead of recovering their fuel value if these
materials are considered solid waste under the CISWI standards.
    Another industry commenter stated that four of their five U.S. pulp
mills produce wastewater treatment residuals that are burned in
biomass-fired combination fuel boilers. At one mill, the residual
solids are harvested and sold under a purchase agreement to an Electric
Utility Generating plant burning various sources of biomass because
that mill does not have a biomass boiler designed to burn the
residuals. The residuals are primary clarifier solids (mostly wood
fibers too short for product use) which are harvested by dewatering
through a screw press. The residuals are stockpiled in a specific
managed area before being trucked to the power company. At that site,
the materials are processed and conveyed with other forms of biomass
for fuel in their biomass boiler. Use of the wastewater treatment
residuals from the mill as a fuel at the purchasing site is permitted
in their air permit.
    One commenter indicates that the energy manager at a mill will
determine the approximate amount of different types of fuels needed to
obtain the most energy under the best operating conditions. As pulp and
paper sludge is generated, it is directed toward the hogged fuel pile
or towards other non-fuel uses. This decision is based on whether the
mill's boiler is designed and permitted to burn pulp and paper sludge
and the amount is determined by the energy demands on that particular
day.
    Another commenter believes that the fact that not all pulp and
paper sludge is combusted at pulp and paper mills is evidence that the
wood products industry only combusts pulp and paper sludge for
legitimate energy recovery and not for disposal. According to the
commenter, when the pulp and paper sludge is not needed as a fuel, it
is used for non-fuel purposes or is discarded. When it is combusted, it
is combusted for its energy value as a legitimate fuel.
    One mill described by a commenter has elected to divert its own-
make bark to beneficial use as mulch, rather than burning it, because
it is of poorer quality than commercially available biomass. That same
mill has recently invested in a new belt press which provides high
quality sludge as fuel for its combination boiler. Since the press was
installed in 2011, the percentage of mill sludge burned has increased
to 80 percent from under 50 percent. Currently, the mill is burning
more of the sludge from its process than the bark it also generates.
    At another plant, the commenter indicates that sludge is a by-
product of the AST process. Their mills employ primary clarifiers to
separate out solids from wastewater, of which 50 percent is wood fiber,
the primary component.\93\ These solids are staged in holding or blend
tanks prior to drying. In addition to primary clarifiers and aeration
basins, AST systems employ secondary clarifiers (large, open, circular
concrete tanks) in which biological solids exiting the aeration
basin(s) are separated by gravity from wastewater. The process is
carefully regulated to accomplish two objectives: making the water as
clean and free of solids as possible while retaining activated sludge
(active microbes) to re-inject into the biological treatment stage of
the process. As part of this continuous loop, some activated sludge
must be removed from the system to maintain the optimal population of
active microbes for effective treatment.
---------------------------------------------------------------------------

    \93\ Washington State Department of Ecology Industrial Footprint
Project Waste Stream Reduction and Re[hyphen]Use in the Pulp and
Paper Sector, June 2008.
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    After excess secondary sludge is removed from the treatment loop at
three of the mills, it is mixed with primary sludge in blend tanks
prior to being dried on belt presses to a suitable moisture level for
burning or other uses. Sludge is introduced into the mills' solid fuel
feed systems by means of conveyers where it becomes thoroughly mixed
with other fuels in the conveyer systems before being introduced into
the mills' combination boilers. At one mill, primary sludge is dried
separately by means of screw presses while secondary sludge is dried
using a belt press. The two fuels are fed separately by conveyers onto
the mill's main solid fuel conveyer which transports the bark/sludge
mixture to a surge bin. The fuel is passed through a ``waste heat
dryer,'' where it is briefly exposed to boiler flue gas before being
fed into the combination boiler. The process at all four mills is
continuous. Operators monitor and manage the sludge on a 24 hour basis.
Sludge drying takes place entirely within buildings where the tanks,
pipes, mixers, pumps, polymer feed systems, conveyers, presses,
diversion gates and valves, monitoring devices and other equipment
necessary to produce suitable sludge are housed.
    Sludge burned in the boilers is transported to the boilers on feed
systems designed to ensure sludge, biomass and other solid fuels are
homogeneous, thoroughly mixed and not exposed to the elements while
being conveyed to the boilers. After its removal from wastewater
treatment, no sludge touches the ground until it is burned,
beneficially used (e.g., recycled feedstock to make newsprint) or
landfilled.
    The commenters indicate that the moisture content of biomass is
highly variable. Operators control fuel use based on the mill's need
for steam and electricity, fuel costs, fuel quality and fuel
availability. All factors can change at a moment's notice since the
production process is constantly changing. Pulp and paper production
swings or curtailments are common. Energy demand, fuel cost or fuel
quality may make it necessary or desirable to reduce biomass and sludge
combustion, even to switch entirely to fossil fuels. Environmental
emissions occasionally can be a factor in fuel use, particularly during
boiler startup or shutdown, or when the mill is experiencing rapid
fluctuations in steam demand.
    Response: Based on the information submitted, and as discussed
further in our responses below, the EPA is listing as a categorical
non-waste fuel under section 241.4 dewatered pulp and paper sludges
that are not discarded and are generated and burned on-site by pulp and
paper mills that burn a significant portion of such materials where
such dewatered residuals are managed in a manner that preserves the
meaningful heating value of the materials.
    This determination for pulp and paper sludge as a categorical non-
waste fuel represents the agency's finding, after balancing the
legitimacy criteria with other relevant factors, that those mills that
burn a significant portion of these pulp and paper sludges are burning
them as a commodity fuel for energy recovery and not discard. The
discussion above indicates that these mills have been designed to
utilize pulp and paper sludges and use of that material as a fuel is an
integral part of facility operations. Decisions regarding use and the
right mix of fuel in any given day are based on the boiler conditions,
fuel availability, energy needs, air quality requirements and cost.
    Comment: The EPA requested information on the amount of pulp and
paper sludge burned as fuel.
---------------------------------------------------------------------------

    \94\ Docket EPA-HQ-OAR-2003-0119-2619.
---------------------------------------------------------------------------

    In 2010, members of AF&PA burned 772,034 dry tons of pulp and paper
sludge, which represents approximately 25 percent of the pulp and paper
sludge generated by members of AFPA during the year.\94\ However,
approximately 90 percent of the AF&PA member facilities that responded
to their survey (42 out of

47) that use dewatered pulp and paper sludge as fuels do so at a
significant rate (between 70-100 percent of these materials that are
generated are burned). In fact, one third of the AF&PA facilities that
responded to their survey (16) that burn pulp and paper sludges, burn
100 percent of the materials generated.\95\
---------------------------------------------------------------------------

    \95\ See April 4, 2012, letter from Timothy G. Hunt to James
Berlow. A copy of this letter has been placed in the docket for
today's rulemaking.
---------------------------------------------------------------------------

    Response: As the commenter indicates, while 25 percent of pulp and
paper sludges that are generated are used as fuels on an industry-wide
basis, the vast majority of facilities that responded to the survey
that use dewatered pulp and paper sludges as fuels do so at a
significant rate. In light of the information on use of pulp and paper
sludges, the agency finds that for those pulp and paper mills that burn
a significant portion, that their use as a legitimate fuel is integral
to the operation of the pulp and paper mill. The fact that these
sludges meet the contaminant legitimacy criterion also, in the EPA's
view, shows that these sludges when burned on-site are not being
discarded.
    As discussed above, while the agency is not defining a specific
percentage of dewatered pulp and paper sludges that would need to be
burned to qualify for the categorical listing in section 241.4, the
agency would consider the 42 mills that responded to the AF&PA survey
as meeting the listing description. Where a facility has burned or
burns in the future a significant portion of the dewatered pulp and
paper sludges that are generated, the facility is clearly dependent
upon the use of these materials as fuels in much the same way that wood
manufacturing facilities are dependent upon the stream of resinated
wood residuals to meet their energy demands. Specifically, we note that
the percentage of overall use of pulp and paper sludges as a fuel at
facilities burning a significant portion of the material (70 percent in
the AF&PA comment above) is similar to the use of resinated wood within
the wood products industry--approximately 73 percent of resinated wood
generated is either used as a fuel or is recycled back into the wood
manufacturing process.\96\ As noted above, mills that burn a
significant portion of their dewatered pulp and paper sludges on-site
as fuel in the future would also qualify for the listing
description.\97\
---------------------------------------------------------------------------

    \96\ See Materials Characterization Paper In Support of the
Final Rulemaking: Identification of Nonhazardous Secondary Materials
That Are Solid Waste--Resinated Wood Products. Docket EPA-HQ-RCRA-
2008-0329-1820.
    \97\ While the Agency is not including a specific requirement
for pulp and paper mills to document the amount of dewatered
wastewater treatment residuals they burn on-site as a fuel, we would
recommend that such pulp and paper mills include such documentation
in case there are any questions as to whether the pulp and paper
mills' dewatered wastewater treatment residuals qualifies for the
categorical listing in 241.4.
---------------------------------------------------------------------------

    On the other hand, when a pulp and paper mill burns a relatively
small percentage of their dewatered pulp and paper sludges on-site as a
fuel (e.g., the five mills that responded to the AF&PA survey that burn
less than 20 percent), the agency has determined that such sludges are
not viewed the same by the mill operator in that they do not rely on
the sludges for their energy value. As noted by one commenter, some
mills may not produce pulp and paper sludge with sufficient fiber, such
that the sludge is a viable fuel. Therefore, the agency finds that such
pulp and paper sludge should not be included in the categorical listing
in section 241.4.\98\ Those companies would need to make case-by-case
determinations regarding legitimacy to support use as a fuel.
---------------------------------------------------------------------------

    \98\ The Agency acknowledges that some portion of these pulp and
paper sludges are land applied. While the Agency considers such uses
as beneficial, such recycling is not integral to pulp and paper
operations, and therefore, the Agency would not consider this form
of recycling in determining whether a facility is recycling a
significant portion of their pulp and paper sludges.
---------------------------------------------------------------------------

    Comment: The EPA requested more data on contaminant levels--
particularly chlorine and metals.
    The NCASI undertook a thorough evaluation of data related to
contaminant levels in pulp and paper sludge.\99\ NCASI looked at the
most robust information about pulp and paper sludge which is found in
the EPA's Boiler MACT database. That database has pulp and paper sludge
data comprised of nearly 5,280 records of individual data points
corresponding to 46 AF&PA member pulp mills.
---------------------------------------------------------------------------

    \99\ Docket EPA-HQ-OAR-2003-0119-2619.
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    Table 8 of this preamble includes data from the EPA traditional
fuels table as well as the EPA Boiler MACT database for pulp and paper
sludge.
BILLING CODE 6560-50-P

[GRAPHIC] [TIFF OMITTED] TR07FE13.008

[GRAPHIC] [TIFF OMITTED] TR07FE13.009

    The commenter indicates, as shown in the table, that contaminant
levels in pulp and paper sludge are well within the ranges of metals
found in traditional fuels. For all 11 HAP metals, except Mn, the 90
percent UPL value for sludges is less than the corresponding maximum
for coal. For Mn, which is principally derived from biomass, the 90
percent UPL value for sludges is well below the maximum for biomass.
This is also reflected in the TSM comparisons with and without Mn
between coal, biomass and pulp and paper mill sludges. Chlorine and
total halogens (Cl + Fl) in sludge compare favorably with both biomass
and coal. Nitrogen and sulfur in sludge also compare favorably with
coal, although the commenter also points out that the nitrogen and
sulfur contents are generally not indicative of HAP formation potential
for any fuel, and in the case of pulp and paper mill sludges in
particular, the sulfur content of these sludges is typically in the
inorganic sulfate form that predominantly ends up in the combustion
ashes.
    NCASI found a paucity of data on organics in pulp and paper sludge.
Except for Ds/Fs, which had been evaluated extensively in the 1990s,
organics are not expected to be found in pulp and paper sludges. Due to
the changes in bleaching techniques which demonstrated significant
reductions in

the existence of Ds/Fs in sludge, testing for even dioxins has not been
undertaken recently. NCASI notes that of the data that do exist,
organics are rarely found and those that are identified are frequently
below the detection limit.
    Overall, the commenter states that contaminant levels in pulp and
paper wastewater treatment residuals compare well to those found in
traditional fuels.
    Response: Based on the information provided, the agency finds that
pulp and paper sludges, meet the comparable contaminant criterion
(241.3(d)(1)(iii)). The data confirms the conclusions in the NHSM final
rule regarding chlorine and metals are comparable to the levels found
in coal, which is a traditional fuel that may be burned in these
facilities.
    Comment: The EPA requested information on what steps the industry
has taken to ensure the quality of pulp and paper mill sludge when used
as a fuel at pulp and paper mills is consistent with that of a fuel
product.
    Commenters state that pulp and paper mills that generate pulp and
paper sludge do so as part of their compliance with the CWA
requirements, as well as part of an effort to return as much wood fiber
to use as possible, either as an input to the manufacturing process or
as a fuel. The strategies that each mill uses to meet those
requirements differ depending upon the type of product, the location of
the mill and the specific standards established by the EPA and the
respective states. However, mills clean wastewaters prior to discharge,
thus creating primary and a variety of secondary pulp and paper
sludges, all of which capture wood fibers. Furthermore, the question of
whether the quality of the pulp and paper sludge is appropriate for a
particular mill is based on the boiler design. As such, there are some
boilers well suited to burn it; others cannot burn the material.
    At one commenter's mill, for example, the company has invested over
$7 million upgrading sludge drying and management equipment. The object
of these large investments was not to remove all of the moisture in the
sludge. Rather, it was to make sludge quality consistent with that of
the wet biomass burned in its combination boilers. Either too much or
too little moisture can have a deleterious effect on the boilers'
combustion. One mill recently installed a belt press to improve the
reliability of its sludge management system and increase the average
solids content of its sludge. Since then, the sludge has occasionally
caused combustion problems in the boiler because it was too dry,
necessitating additional quality control to optimize the sludge's
moisture content.
    Another commenter stated they invested over $3 million to prevent
unwanted materials from reaching the treatment process and being
discharged in mill effluent or being incorporated into the pulp and
paper sludge. Their mills make coated paper products, the coatings
consisting largely of clay and other minerals. Improved equipment and
operating procedures have significantly lowered sewer losses of these
materials, improving the quality of wastewater and reducing the ash
content of these pulp and paper sludges. To further pollution
prevention, their mills set stringent specifications for raw materials,
such as sulfuric acid and caustic soda, which minimizes the
introduction of trace amounts of heavy metals into the process.
    From the standpoint of process control, the commenter stated that
sludge management processes are continuous, enclosed and carefully
controlled. In contrast, bark and wood chips may be exposed to the
elements for extended periods before being burned. Depending on the
season, hardwood bark can get ``stringy'' and become very difficult to
process as fuel. Frozen bark or chips can jam or disable equipment.
Purchased fuel can have excessive rocks or grit. It is difficult to
control the quality of biomass burned in the commenter's boilers.
Sludge frequently exhibits less variability in quality than other types
of biomass.
    Response: Based on the information provided, the agency finds that,
for facilities burning a significant portion of the dewatered sludge,
use of the material is integral to the facility's operations,
particularly in the value these materials provide as a critical source
of energy. At such facilities, sludge management processes are
carefully controlled and the industry has taken the necessary steps to
ensure the quality of pulp and paper mill sludge when used as a fuel at
pulp and paper mills. On the other hand, for those pulp and paper mills
that do not burn a significant portion of their dewatered wastewater
treatment sludges, the agency does not believe that the same steps have
been taken to ensure the quality of the pulp and paper mill sludge that
is used as a fuel and thus, is not an integral part of the pulp and
paper mill operations.
    Comment: The EPA requested information on what are the standard
practices used to ensure pulp and paper sludge has meaningful heating
value.
    As noted in the October 2011 pulp and paper sludge paper the AF&PA
submitted prior to the December 2011 proposal, the overwhelming
majority of pulp and paper mills remove water from pulp and paper
sludge prior to managing it in any way. Belt and screw presses are most
commonly used in the industry. Some mills use steam heated filter
presses. Some pulp and paper sludge is also further dried in steam
heated rotary driers. As indicated previously, sludge drying takes
place entirely within buildings where equipment necessary to produce
suitable sludge is housed. Sludge burned in the boilers is transported
to the boilers on feed systems designed to ensure sludge, biomass and
other solid fuels are homogeneous, thoroughly mixed and not exposed to
the elements while being conveyed to the boilers. In all instances, the
goal is to raise the solids content--and thus, Btu value.
    Response: Based on these comments and other information in the
record, the agency finds that facilities that burn a significant
portion of these materials take the steps necessary to dewater the pulp
and paper sludge and to manage such dewatered sludge to maintain its
meaningful heating value and burn the sludge for energy recovery.
    Comment: The EPA requested information on how pulp and paper mill
sludge is managed when shipped offsite.
    There are several mills within the industry that have agreements
with other facilities, primarily electric utilities that purchase pulp
and paper sludges for use as biomass-based fuel. For the most part,
these arrangements occur when there is a utility close to the pulp and
paper mill because the cost of shipping such sludges long distances may
be prohibitive. Pulp and paper sludges may be sent offsite when it is
being used by other entities to produce another product, (including
fuel pellets \100\), used for other purposes (land application, use as
landfill cover), or for final disposal. Pulp and paper sludges are
shipped by containers, truck or rail.
---------------------------------------------------------------------------

    \100\ When pulp and paper sludges are sufficiently processed,
and such processed material meets the legitimacy criteria, the
processed materials are non-waste fuels whether burned within or
outside the control of the generator.
---------------------------------------------------------------------------

    Response: The agency recognizes that, as described above, some pulp
and paper sludges are sent offsite for use as a fuel. However, the
agency has restricted the categorical listing to those pulp and paper
sludges that are burned on-site because the agency has minimal
information on offsite use of these materials. In fact, the pulp and
paper industry indicates that the great majority of these sludges, when
burned as a fuel, are burned on-site. Also, in the few instances that
the pulp and paper

industry discussed in their comments that these materials were shipped
offsite, they seem to be sent to other industries. The fact that these
sludges are sent to other industries would not necessarily disqualify
those dewatered pulp and paper sludges from being considered for
listing categorically. However, the agency does not have sufficient
information to make any determination.\101\
---------------------------------------------------------------------------

    \101\ We note that in the situation where pulp and paper sludges
are transferred beyond the control of the generator, a facility may
also petition the Agency to receive a non-waste determination, as
appropriate.
---------------------------------------------------------------------------

    Comment: For reasons stated previously in comments on the June 2010
proposed rule, one commenter argues that pulp and paper sludges are
waste when burned regardless of whether it is burned by the company
that generated it and regardless of whether it meets the EPA's
legitimacy criteria. Paper mill sludge is a waste because it is
discarded within the meaning of RCRA.
    The EPA's description of pulp and paper sludge shows that it
remains a waste even under the agency's own definition of discard.
First, the EPA acknowledges that pulp and paper mills have no use for
pulp and paper sludge; the fibers it contains are ``too short to be
suitable for papermaking and it contains microorganisms that feed on
organic material in the wastewater stream.'' \102\ Second, the fact
that paper mill sludge comes from ``the wastewater stream,'' \103\ in
itself confirms that it is a waste.
---------------------------------------------------------------------------

    \102\ See 76 FR 80485.
    \103\ Id.
---------------------------------------------------------------------------

    Third, the EPA's discussion of the contaminant levels in paper mill
sludge shows substantial variation in chlorine levels. Where the EPA
encounters such variability in the course of setting floors for CISWI
units in the very same Federal Register notice, the agency uses a 99th
percent UPL to assure that the level it chooses will not be exceeded.
Yet, where the EPA encounters variability in the chlorine levels in
pulp and paper sludge--variability that could lead to significantly
higher emissions of chlorinated pollutants, such as HCl and dioxins--
the agency simply dismisses it without further ado. The EPA's disparate
treatment of the variability of emissions for floor setting and of the
chlorine levels in pulp and paper sludge for the purposes of
considering a categorical declaration that such sludge is not a waste
is unexplained and arbitrary.
    If the agency believes that such variability exists, it should be
concerned about the possibility that some sludges may have far higher
chlorine levels than it assumes--as, indeed, the record shows some
sludge does--and should take steps to ensure that this is not the case
before it even considers an exemption. Indeed, the agency's failure to
examine this possibility renders the existing rule, which allows
generators to burn their own sludge, arbitrary and capricious.
    Fourth, the EPA admits that sludge contains extremely low heating
values, so low in some instances as to flunk the agency's legitimacy
criteria. That sources typically dewater their sludges does not make
these sludges any less a waste, even under the agency's own definition
of discard. The EPA does not say what the heating value of the sludges
is after dewatering, nor does it make any difference what the ``dry
weight'' heating value of sludges might be, as they are not at ``dry
weight'' when burned. The reality is that paper mills find it cheaper
to burn their sludges than to dispose of them safely and that because
these sludges are largely ``wastewater'' and contain high levels of
chlorine and other contaminants, burning them requires large quantities
of other fuel and generates high levels of pollution.
    Response: The agency disagrees with the commenter that all pulp and
paper sludges are waste fuels when combusted. To the extent comments
were submitted in response to the March 2011 final rule, the agency
need not respond. Below, the EPA responds to the new points raised in
the comments.
    With respect to the particular arguments on the categorical
listing, the agency disagrees that the sludge remains a waste even
under the agency's own definition of discard. The comment is incorrect
when it states that the EPA has acknowledged pulp and paper mills have
no use for pulp and paper sludge because the fibers it contains are
``too short to be suitable for papermaking and it contains
microorganisms that feed on organic material in the wastewater
stream.'' \104\ In the proposed rule, we stated that fibers that end up
being too short can be detrimental to paper quality. Although this
would not be suitable for papermaking, these sludges are a valuable
resource as energy-containing secondary materials as discussed in
detail in the comments above. As much as 50 percent of the sludge is
composed of wood fibers which are similar in content to other types of
biomass fuel combusted.
---------------------------------------------------------------------------

    \104\ See 76 FR 80485.
---------------------------------------------------------------------------

    Further, the agency disagrees that pulp and paper mill sludges are
wastes because they are contained in a ``wastewater'' stream. The D.C.
Circuit in, API v. EPA, 216 F.3d at 58, rejected the proposition that
the mere presence in a wastewater stream makes a material a waste. In
API, the D.C. Circuit criticized the EPA for not saying why it
concluded that the disposal motivation, compliance with water quality
standards, predominated over the recycling motivation, recovery of oil
from primary wastewater treatment. Plainly, the mere presence of oily
material in wastewater did not make the oil a waste. In this case, the
EPA has found in its categorical listing that the motivation for
burning the pulp and paper sludge is to use its inherent value as a
fuel and not for disposal. Comments have provided the agency with
information that facilities that burn a significant portion of these
sludges consider them to be an integral part of their production
process, particularly in the value these materials provide as a
critical source of energy. We disagree that the disposal motivation
predominates over the true value of these sludges as an important fuel,
integral to the production processes.
    The EPA also disagrees that the treatment of the variability of
emissions for floor setting and of the chlorine levels in pulp and
paper sludge for the purposes of considering a categorical declaration
that such sludge is not a waste, is unexplained and arbitrary. The
agency notes that, rather than dismissing the variability of chlorine
levels in pulp and paper sludges, it has considered all available
data--including data on variability--and reached the conclusion that
contaminant levels in pulp and paper sludges are comparable to or lower
than those in the appropriate traditional fuel(s). The EPA acknowledges
that, based on data submitted to the agency since promulgation of the
March 2011 final rule and presented in the December 2011 proposed rule,
chlorine levels in paper mill sludge show substantial variation. This
is an important factor to consider when making a categorical non-waste
determination and the agency has considered mean concentrations, the
range of concentrations, and variability when analyzing pulp and paper
sludges.
    As stated in the proposed rule and information in the rulemaking
record, data for pulp and paper sludges show mean chlorine
concentrations of 361 ppm, well below the mean of 992 ppm observed in
coal. Data for pulp and paper sludges also show maximum chlorine
concentrations of 4,800 ppm, well below the maximum of 9,080 ppm
observed in coal and below the maximum of 5,400 ppm observed in

untreated wood and biomass materials. The variability of chlorine
levels in pulp and paper sludge is demonstrated by a standard deviation
of the mean of 661 ppm.\105\ \106\ This variation in chlorine levels,
although high, does not discount the fact that both average and maximum
chlorine concentrations in pulp and paper sludge are lower than those
in coal which is defined as a traditional fuel.
---------------------------------------------------------------------------

    \105\ See 76 FR 80485.
    \106\ Contaminant Concentrations in Traditional Fuels: Tables
for Comparison, November 29, 2011, can be found at http://www.epa.gov/epawaste/nonhaz/define/index.
---------------------------------------------------------------------------

    The comment also implied that the EPA should use the 99 percent
UPL, as is used to set the CISWI floors, to ensure that these pulp and
paper sludges do not contain excessive contaminant levels. The agency
disagrees that any one statistical tool or comparison methodology will
fit every situation given the variety of NHSMs, traditional fuels,
contaminants and combustion units that exist. Nevertheless, the agency
has calculated the 99 percent UPL for chlorine levels in pulp and paper
sludge in response to the comment and come to the same conclusion. The
99 percent UPL for the same dataset of 93 samples analyzed in the
proposed rule would be 6,970 ppm, a value below chlorine concentrations
observed in coal.\107\
---------------------------------------------------------------------------

    \107\ The 99 percent Chebyshev UPL for non-normal datasets was
calculated using EPA's ProUCL 4.0 Software available at http://www.epa.gov/nerlesd1/tsc/software.htm.
---------------------------------------------------------------------------

    Finally, we disagree that pulp and paper sludge contains extremely
low heating values that would fail the agency's legitimacy criteria. In
terms of meeting the legitimacy criteria for a meaningful heating
value, the agency indicated in the NHSM final rule that pulp and paper
sludges have a heating value of between 3,300-9,500 Btu/lb, on a dry
basis--no specific information having been submitted on the ``as
fired'' heating value of these materials. The final rule concluded that
pulp and paper sludges meet the legitimacy criterion for being managed
as a valuable commodity as they are dewatered to increase their energy
value, collected on a continual or frequent basis (as produced), and
further processed and consolidated, including the removal of biosolids.
Further, as discussed in detail above, where a facility is burning a
significant portion of the dewatered pulp and paper sludges that are
generated as fuel rather than other purchased biomass or fossil fuels,
pulp and paper sludges are integral to the facility's operations and
the facility is clearly dependent upon the heating value of these
materials.\108\ Thus, we find, as discussed in the final rule, that
pulp and paper sludges are not discarded and generally meet the
meaningful heating value legitimacy criterion (46 FR 15488).
---------------------------------------------------------------------------

    \108\ The final rule notes that meaningful heating value is
derived from an NHSM with energy content lower than 5000Btu/lb if
the ERU can cost-effectively recover meaningful energy from the NHSM
used as fuel (76 FR 15541).
---------------------------------------------------------------------------

b. Coal Refuse \109\
---------------------------------------------------------------------------

    \109\ Coal refuse refers to any by-product of coal mining or
coal cleaning operations, consisting primarily of non-combustible
rock with attached coal. Due to advances in technology over the past
century, the processing of coal has evolved, such that materials
that are now generated in the coal mining process, which would have
been considered coal mining rejects in the past and discarded in
waste piles, are now handled and processed as coal.
---------------------------------------------------------------------------

    In the 2011 NHSM final rule, the EPA included currently generated
coal refuse within the definition of traditional fuel codified in 40
CFR 241.2. In discussing its determination that currently generated
coal refuse is a traditional fuel, the agency said, ``the fact that
coal refuse has been used and managed as a fuel for thirty years when
coupled with the fact that coal refuse is unique from other non-
hazardous secondary materials in that it is a byproduct of fuel
production processes and is itself a raw material that can be used as a
fuel leads us to determine that coal refuse that is currently generated
and used as a fuel should be considered a traditional `alternative
fuel.' '' \110\
---------------------------------------------------------------------------

    \110\ See 76 FR 15507.
---------------------------------------------------------------------------

    The 2011 NHSM final rule also determined that coal refuse that has
been placed in legacy piles would not meet the definition of
traditional fuels, as they clearly have been discarded in the first
instance.\111\ Since coal refuse recovered from legacy piles is
subjected to the same operations that are used to process virgin coal,
which serve to both increase energy values, as well as reduce
contaminants, the EPA determined that such processes were sufficient to
meet the definition of ``processing,'' as codified in 40 CFR 241.2, and
such recovered coal refuse would not be considered a solid waste when
used as a fuel in a combustion unit provided those materials satisfy
the legitimacy criteria.\112\
---------------------------------------------------------------------------

    \111\ Id.
    \112\ See 76 FR 15509.
---------------------------------------------------------------------------

    The 2011 NHSM final rule also stated our belief that coal refuse
recovered from legacy piles contains contaminants at levels that are
comparable to or lower than coal refuse that is currently generated, as
the recovered coal refuse is subject to the same processes as
currently-generated coal refuse in order to meet the same fuel
specifications. Since promulgation of the 2011 NHSM final rule, the
agency has further clarified that it believes that coal refuse
recovered from legacy piles that is processed and managed in the same
manner as currently generated coal refuse satisfies the legitimacy
criteria.\113\
---------------------------------------------------------------------------

    \113\ See August 15, 2011, letter to Jeff A. McNelly, ARIPPA
(cited in the proposed rule: 76 FR 80486).
---------------------------------------------------------------------------

    Having determined that coal refuse recovered from legacy piles that
is processed and managed in the same manner as currently generated coal
refuse satisfies the legitimacy criteria, the 2011 proposed rule
solicited comment on whether to categorically list post-processed coal
refuse from legacy piles as a non-waste fuel in 40 CFR 241.4(a).
However, the EPA made it clear that it was not reopening any other
issues regarding coal refuse. Other comments regarding coal refuse are
responded to in the record for the final rule. In this part of the
preamble, we are only responding to the issue of whether coal refuse
processed from legacy piles should be considered a non-waste fuel on a
categorical basis. Accordingly, the EPA is not responding in this
preamble or the Response to Comment document on issues regarding
whether coal in legacy piles are traditional fuels.
    Comment: One commenter states that not every material that is
discarded is treated as solid waste under the rule. For example, the
EPA includes numerous materials within its definition of ``traditional
fuels'' and ``clean cellulosic biomass'' that are commonly understood
as used, discarded, and abandoned, listing, for example, corn stover,
peanut shells and certain types of demolition materials. The commenter
argues that each of these materials is either discarded or has filled
its original purpose and may be collected by a different party for a
different purpose (i.e., use as a fuel).
    The commenter continues that although the agency has ample
authority to exempt certain articles from classification as solid
wastes, it did not consistently apply the term ``discarded'' in the
context of legacy coal refuse. For example, the EPA recognized that on-
specification used oil and clean C&D materials should be treated as
traditional fuels when combusted for energy generation. Thus, the
commenter urges the agency to revisit its application of the
``discard'' principle and treat all coal refuse, regardless of when
they were generated and regardless of processing to be fuels and not
wastes.
    Response: The EPA disagrees with the comment, which seems to
misunderstand the purpose of this

rulemaking action. If the agency determines in this rulemaking that a
material is a solid waste when combusted, the unit combusting that
material would be subject to emissions standards issued under CAA
section 129 even if burned as a fuel. A material is not discarded
simply because it is no longer used for its original purpose. It may be
used as a fuel product by another party, providing the conditions the
EPA has explained in the rule apply. In such a case, the reused
material is not a waste. Further, the agency is not exempting any
materials from the definition of solid waste. The EPA is only
describing the kinds of materials that are wastes when burned in
combustion units, even if they are burned for energy recovery. The EPA
consistently applies the concept of ``discard.''
    Materials listed as examples of clean cellulosic biomass cited by
the commenter have not been discarded in the first instance, as is
clearly the case for coal refuse abandoned in legacy piles. While some
materials have filled their original purpose, that fact, in and of
itself, does not equate to discard. Clean cellulosic biomass is
considered to be a type of ``alternative fuel'' within the definition
of ``traditional fuel.'' Such alternative fuels are developed from
virgin materials that can now be used as fuel products.\114\ This
applies to the examples mentioned by the commenter, including corn
stover, peanut shells and clean construction and demolition wood.
Further, coal refuse mined today that would have previously been
abandoned in piles are also alternative fuels that are now grouped in
the traditional fuel category because of new technology. This is
separate from coal in legacy piles that have been traditionally wastes.
---------------------------------------------------------------------------

    \114\ See definition of traditional fuels, as codified in 40 CFR
241.2. We note that the December 2011 proposal did not solicit
comment on the definition of traditional fuels.
---------------------------------------------------------------------------

    Further, there is a clear difference between the management of the
listed examples of clean cellulosic biomass and coal refuse abandoned
in legacy piles. For example, the commenter characterizes corn stover
as ``typically left in the field to decay'' and thus discarded. The EPA
assumes this statement is based on the historic use of leaving corn
stover in the field as a cover to reduce erosion and for nutrient
content.\115\ As noted by the agency previously, over the course of
this rulemaking, an emerging market for corn stover and other primary
and secondary agricultural residues is for use as a heat and power
source for the production of corn and cellulosic ethanol.'' \116\ When
the determination is made to use corn stover for its fuel value, the
materials are managed differently than merely ``left in the field to
decay.'' If there were legacy piles of such materials, they too would
have to be treated as wastes while in the legacy piles. We would also
note that it is not unreasonable to expect that agricultural materials,
such as corn stover, may be left on the field until there are
sufficient amounts of those materials to be collected, baled and
transported. This is clearly a different scenario from coal refuse left
in place in piles with no purpose other than abandonment and clearly
managed as a waste for decades.
---------------------------------------------------------------------------

    \115\ See Petrolia, Dr. Daniel R., ``Economics of Crop Residues:
Corn Stover.'' June 2009. A copy of this document has been placed in
the docket to today's rulemaking.
    \116\ See Materials Characterization Paper in Support of the
Final Rulemaking: Identification of Nonhazardous Secondary Materials
That are Solid Waste, Biomass--Agricultural Residues and Food
Scraps.'' February 3, 2011. A copy of this document can be found in
the docket for today's rulemaking.
---------------------------------------------------------------------------

    With respect to used oil, the agency has already explained in the
final March 2011 rule the difference between on-specification and off-
specification used oil as applied to the definition of solid waste. The
on-specification used oil is considered an alternative fuel that has
not been abandoned and, by regulation, may be burned with no more
restrictions than refined product oil. Off-specification used oil is
specifically described in the EPA's regulations as a material that may
only be burned in certain combustors because it exceeds contaminant
levels established under part 279, rendering it off-specification and,
accordingly, evaluated under part 241 to determine its waste/non-waste
status.\117\
---------------------------------------------------------------------------

    \117\ Note that Section III.D.2.c of today's preamble discusses
circumstances under which off-specification used oil may use coal
data when making contaminant comparisons.
---------------------------------------------------------------------------

    Comment: One commenter argues that off-specification tires are
analogous to legacy coal refuse to the extent they are set aside and
not used immediately by the factory. Since the agency proposes to
include off-specification tires within the definition of ``established
tire collection program'' and not consider these materials to be a
solid waste when used a fuel, the agency should treat legacy coal
refuse similarly.
    Response: We disagree with the commenter that coal refuse abandoned
in legacy piles is analogous to the handling and management of off-
specification used tires. Coal refuse that has been placed in legacy
piles decades ago has clearly been abandoned, thrown away and thus,
discarded and historically managed as a waste. On the other hand, the
agency has information that tire manufacturers that have produced off-
specification tires (including factory scrap) have contractual
agreements in place to ensure these materials are collected, managed
and transported to the combustor. In fact, it is the requirement that
scrap tires (including off-specification tires) be managed pursuant to
established tire collection programs that ensures these materials are
managed as a valuable commodity in order to meet the categorical non-
waste determination codified in 40 CFR part 241.4(a).
    Further, as we have noted elsewhere in today's preamble, to the
extent that these off-specification tires are discarded, such as in
tire piles, they would be considered solid waste in that they have been
discarded, and would not be included within the categorical listing of
``scrap tires that are not discarded and are managed under the
oversight of established tire collection programs, including tires
removed from vehicles and off-specification tires.''
    Comment: One commenter states that the EPA, consistent with the
intent of RCRA, should be encouraging the use of legacy coal refuse,
not hampering them. The commenter argues that characterizing coal
refuse in legacy piles as a solid waste could subject legacy coal
refuse piles to additional federal and state requirements and
potentially result in the piles being classified as open dumps or solid
waste management units. Further, combustors of legacy coal refuse and
their suppliers would also be more likely to be subject to citizen
suits under RCRA 40 CFR 7002. This commenter argues that the
determination that unprocessed legacy piles are different--and should
be regulated differently--than coal refuse generated from current
mining operations is illogical because the characteristics of the
materials are the same. Thus, although the EPA takes the position that
subjecting legacy coal to the types of operations that are used to
process virgin coal is sufficient to convert the legacy coal refuse
from solid waste into a non-waste fuel, the initial designation as
solid waste risks regulatory confusion regarding the status of the
numerous piles of legacy coal refuse.
    Response: This comment is clearly beyond the scope of this
rulemaking proceeding. In the first place, legacy coal piles are,
indeed, wastes. How they may be treated when they are in the piles is
clearly beyond the scope of this rule. This rule deals with how the

legacy coal is to be treated when it is taken from the piles and burned
for fuel.
    Comment: While supporting the concept of a categorical listing for
legacy coal refuse, a few commenters argued that the agency should not
require that legacy coal refuse be ``processed'' in order to be
considered a non-waste fuel. One commenter noted that the EPA does not
require traditional fuels or resinated wood to undergo processing to be
treated as a fuel, even though many of those materials would be
understood to be discarded.
    Another commenter noted that the term ``post-processing,'' which
was used in the proposal as a shorthand description of legacy coal
refuse that has undergone processing, is too vague and should be
eliminated so the use of extracted coal refuse undergoing further
processing at the generating facility is not discouraged. If applied
too literally, the commenter continued, any ``post-processing''
provision being imposed on treating legacy coal piles as fuel would not
benefit the CFB community and could hinder the usage of these piles as
fuels. The commenter argues that the term ``post-processing'' could be
interpreted as requiring processing at the coal refuse excavation site
which would not be determinative of any relevant characterization of
the coal refuse or its intended use as fuel.
    Response: In the 2011 NHSM final rule, the EPA discussed how a
NHSM, once discarded, can be processed into a non-waste fuel.\118\ The
proposed rule did not solicit comment on either the concept of
processing a discarded NHSM into a non-waste fuel or the definition of
``processing'' itself, as codified in section 241.2. Therefore, the
agency does not address the concept or definition of processing in this
final rulemaking.
---------------------------------------------------------------------------

    \118\ See 76 FR 15474-15477.
---------------------------------------------------------------------------

    Again, however, the comment suggests a need to clarify the nature
of the rulemaking exercise that the EPA is currently engaged in. First,
we disagree with the commenter's characterization that many of the
traditional fuels and resinated wood should be understood to be
discarded. Traditional fuels, by definition, are not discarded.\119\ If
clearly discarded (e.g., a barrel of fuel oil dumped), even a
traditional fuel would have to be processed per the part 241
regulations in order to be a non-waste fuel. However, it is precisely
because of their fuel value that makes it unlikely that traditional
fuels will be discarded. We also disagree that resinated wood is
discarded prior to being or when used as a fuel in a combustion unit.
For a discussion of why we believe resinated wood is a non-waste fuel,
please see section III.E.3.b of this preamble.\120\
---------------------------------------------------------------------------

    \119\ See last sentence of ``traditional fuels'' definition, as
codified in 241.2: ``[Traditional] fuels are not secondary materials
or solid wastes unless discarded'' (emphasis added).
    \120\ See also discussion included in the 2011 NHSM final rule
(76 FR 15499-15502).
---------------------------------------------------------------------------

    As noted above, coal refuse abandoned in legacy piles has clearly
been discarded in the first instance because the coal preparation
technology did not yet exist that could utilize these materials for
their fuel value. Thus, legacy coal refuse would have to be processed
into a non-waste fuel. However, the agency has previously recognized
the uniqueness of coal refuse in that it is a byproduct of fuel
production processes and is itself a raw material that can be used as a
fuel.\121\ In the 2011 NHSM final rule, the agency determined that coal
refuse that is recovered from legacy piles and used as fuel that is
subjected to the types of operations that are used to process virgin
coal or currently generated coal refuse would meet our definition of
processing as codified in 40 CFR 241.2.\122\
---------------------------------------------------------------------------

    \121\ See 76 FR 15507, which states, ``Coal refuse is unique,
however, from other non-hazardous secondary materials addressed in
this rulemaking, as it is generated in the process of producing
fuels (i.e., the mining of coal for use as fuel) and its subsequent
use and value as a secondary material is also as a fuel. Since the
primary product of a coal mining operation is itself a fuel, we
consider coal refuse to be more akin to a raw material that is
subsequently processed and utilized to produce a fuel. In other
words, coal refuse is different from other non-hazardous secondary
materials, such as used tires or resinated wood residuals, in that
it is generated in the production of fuel and can be used itself as
a fuel (and in fact has never been used for anything else).''
    \122\ See 76 FR 15509. In addition, subsequent to the 2011 NHSM
final rule, the EPA has reiterated this determination. See August
15, 2011, letter to Jeff A. McNelly, ARIPPA (cited in the proposed
rule: 76 FR 80486).
---------------------------------------------------------------------------

    As the processing that is required is no different than what
currently-generated coal refuse is subject to, we do not believe the
processing requirement would hinder the usage of coal refuse piles. The
agency believes the only additional ``processing'' step is the actual
extraction or recovery of the coal refuse from the legacy piles. To the
extent that the term ``post-processing'' could be misconstrued as
requiring an additional processing step at the extraction site or
otherwise as compared to currently generated coal refuse, this was not
the agency's intent. Rather, we have included the concept of
``processing'' in the categorical non-waste determination for legacy
coal refuse, as legacy coal refuse was clearly discarded and, prior to
processing, is a solid waste. That said, we clarify again today that
coal refuse recovered/removed from legacy piles that is processed in
the same manner as currently generated coal refuse would meet the
definition of processing as codified in section 241.2. No additional
processing is required given the uniqueness of coal refuse. For
commenters suggestions regarding the explicit wording of the
categorical listing for legacy coal refuse, see additional response to
comments below.
    Comment: In support of the agency's soliciting comment on whether
to add legacy coal refuse to the list of categorical non-waste fuels
proposed in 40 CFR part 241.4, one commenter states that once removed
from the physical mining location, legacy coal refuse and currently-
generated coal refuse are indistinguishable. Thus, coal refuse from
legacy piles will be managed in the same manner as coal refuse, will
have similar heating value as coal refuse and be used as a fuel in a
combustion unit that recovers energy and can be expected to have
similar contaminant levels as coal refuse because it is ostensibly the
same material.
    Response: We agree that coal refuse recovered/removed from legacy
piles and processed in the same manner as currently generated coal
refuse would meet both the definition of processing and the legitimacy
criteria. Thus, we have determined to list ``coal refuse that has been
recovered from legacy piles and processed in the same manner as
currently-generated coal refuse'' to the list of categorical non-waste
fuels codified in part 241.4(a) of today's rulemaking. The rationale
for adding this NHSM to the list of non-waste fuels follows the
reasoning finalized in part 241.4(b) in today's rulemaking. We agree
with the reasoning of the comment and have, in fact, arrived at the
very same reasoning in support of the categorical listing.
    Comment: One commenter argued that the EPA should treat legacy coal
refuse as fuels, since they are chemically identical, if not superior
fuels, to currently generated coal refuse that the agency considers to
be a traditional fuel, per the definition codified in 40 CFR 241.2.
    Response: Again, the EPA must explain a misunderstanding expressed
by the commenter. The comment seems to consider that material is either
a ``fuel'' or a ``waste'' and misses the point that the distinction in
this rulemaking is between a ``product'' and a ``waste'' fuel. Fuels
may be wastes. The point is that the coal that has been abandoned in
piles is a waste. However, the EPA has

determined that once processed that coal is either identical (or maybe
even superior) to currently mined materials that would have become
refuse in the past.
    The EPA agrees with, and has adopted, the same reasoning expressed
by the commenter that the processed material is a product fuel. The
disagreement between the EPA and the comment is the status of the
legacy piles and the nomenclature of the coal finally burned. The coal
is a processed fuel product, not a traditional fuel.
    Comment: One commenter stated that there are ``other relevant
factors'' that the EPA should consider when determining whether coal
refuse from legacy piles should be categorically listed as a non-waste
fuel. Specifically, the commenter believes that the EPA should consider
the ``overwhelming resultant environmental improvements'' associated
with the cleanup of abandoned coal refuse piles, including the
reduction of fire hazards and contaminant, siltation, and solids
releases into the environment, as an ``other relevant factor'' as it
considers listing legacy coal refuse as a non-waste fuel in Sec.
241.4.
    Response: The EPA's decision to include processed legacy coal
refuse to the list of non-waste fuels in Sec.  241.4(a) was based on
the fact that such materials meet the definition of processing and the
legitimacy criteria. We do not need to balance ``other relevant
factors'' in making this determination, as would be appropriate under
an analysis conducted under Sec.  241.4(b)(5)(ii).
    Comment: The EPA received a few comments regarding the specific
wording of how coal refuse recovered from legacy piles should be
identified and described in Sec.  241.4(a) should the agency determine
to categorically list this NHSM pursuant to Sec.  241.4(a). One
commenter suggested inserting the following text as a subsection within
Sec.  241.4(a): ``Coal refuse that does not constitute currently-
generated coal refuse, but that is processed in the same manner as
currently-generated coal refuse.'' As previously discussed, another
commenter stated that the term ``post-processed'' was vague and could
be interpreted to require additional processing that would hinder the
usage of legacy coal refuse piles. Still another commenter suggested
referencing the SMCRA in a categorical non-waste determination for coal
refuse, which would ensure that the coal refuse is a fuel and minimize
overlapping regulatory jurisdiction that could evolve.
    Response: As discussed above, we have determined to list ``coal
refuse that has been recovered from legacy piles and processed in the
same manner as currently-generated coal refuse'' to the list of
categorical non-waste fuels, as codified in Sec.  241.4(a) of today's
rulemaking. We believe this language accurately captures the scope of
materials at issue and what must occur for the material to be
categorically characterized as a non-waste fuel. That is, this
categorical listing only applies to coal refuse that has been discarded
in the first instance in legacy piles, subsequently recovered or
removed from the discard environment and subjected to the same
processes and operations as currently generated coal refuse.\123\
Further, this language should alleviate any concerns that the term
``post-processed'' is vague since that term is not being used within
this provision as finalized today.
---------------------------------------------------------------------------

    \123\ We note that it would not be appropriate to include
currently generated coal refuse within this categorical non-waste
determination, as we have previously determined and continue to
believe that currently generated coal refuse is a traditional fuel.
---------------------------------------------------------------------------

    We do not agree with the comments that a categorical listing for
legacy refuse should specifically reference SMCRA. As we noted in the
preamble to the 2011 NHSM final rule, while the EPA recognizes that
SMCRA is concerned with the management and removal of coal refuse piles
at mining sites, SMCRA does not address the issue of ``discard,'' which
is critical to the definition of solid waste under RCRA.\124\ Thus, a
specific reference to SMCRA would be inappropriate as well as
confusing. Further, we believe that a specific reference to SMCRA would
be in fact more burdensome than the language of the categorical listing
being codified today, which simply states that legacy coal refuse must
be processed in the same manner as currently-generated coal refuse,
regardless of whether such processing is done pursuant to SMCRA.
---------------------------------------------------------------------------

    \124\ See 76 FR 15510.
---------------------------------------------------------------------------

c. Manure
    In the 2011 NHSM final rule, the EPA stated that based on the
information provided, we could not make a blanket determination that
all manure is a traditional fuel or that it is a solid waste. However,
upon reviewing the few comments and data received, we concluded that
animal manure that is used as a fuel ``as generated'' does not satisfy
the legitimacy criteria, and thus, if combusted ``as generated,'' would
be a solid waste.\125\ However, the agency also noted that there were
circumstances where manure would not be considered a solid waste when
burned as a fuel for energy recovery, specifically: (1) When the manure
remained within the control of the generator and met the legitimacy
criteria; (2) when the manure was sufficiently processed (e.g., via
anaerobic digestion or gasification processes) and the resulting
material met the legitimacy criteria; and (3) when a facility received
a determination from the agency pursuant to 241.3(c) stating that its
manure was a non-waste when used as a fuel. For further discussion
regarding our characterization of manure, see the preamble to the 2011
NHSM final rule (76 FR 15479-15482).
---------------------------------------------------------------------------

    \125\ See 76 FR 15480.
---------------------------------------------------------------------------

    In the December 2011 proposed rule, the agency noted that some
parties have identified the potential of manure to not be considered a
solid waste. We, therefore, invited parties to present information,
including data demonstrating that manure is not discarded either
through the existing non-waste petition process or the proposed
categorical determination process.\126\ The agency received no
information or data that would allow it to consider proposing to list
manure categorically as a non-waste fuel.\127\ Therefore, we are not
taking any action in the rulemaking with respect to manure. However,
the agency did receive several comments from one commenter which we
will respond to below.
---------------------------------------------------------------------------

    \126\ See 76 FR 80472.
    \127\ In the preamble to the proposed rule, the agency indicated
the type of information and data that should be submitted to
categorically list manure as a non-waste fuel. Specifically: (1) The
extent that use of the NHSM has been integrally tied to the
industrial production process--information can include combustor
design specifications, the extent that the use of the material is
integrated across the industry and the extent that use of the NHSM
is essential to the industrial process and/or (2) the extent that
the NHSM is functionally the same as the comparable traditional fuel
and (3) other relevant factors.
---------------------------------------------------------------------------

    Comment: The commenter states that dried animal manure should be
included as a non-waste with the other fuels in 40 CFR 241.4(a). The
commenter contends that there is no evidence that any animal manure is
discarded, let alone sent to landfills. Manure is generally used as
fertilizer on fields, although an important secondary purpose is for
energy recovery/generation. In addition, the commenter states there are
several known instances of additional plans for animal manure energy
projects that are designed specifically to recover energy, including
government funded projects.
    The commenter notes that after drying, animal manure has a
meaningful Btu value equal to or above that of other

biomass that the EPA has determined to be a non-waste fuel (e.g.,
bagasse). The commenter also notes that there are contracts in place
for livestock and poultry producers to supply manure to the combustor.
    Regarding contaminants in manure, the commenter states that the
amount of contaminants is limited because the vast majority of
applicable contaminants are directly related to the contaminants
contained in the biomass consumed by the animals. The EPA has not
presented any evidence that facilities are combusting manure in order
to discard chlorine or nitrogen, the two contaminants identified by the
EPA. These concentrated contaminants are no different than what occurs
in the production of ``byproducts of ethanol natural fermentation
processes,'' which the EPA is now proposing to include in the
definition of ``clean cellulosic biomass.'' Based on a ``balancing of
the legitimacy criteria and other such relevant factors,'' the EPA`s
new standard, animal manure should be included in the 40 CFR 241.4(a)
fuels list, along with resinated woods and scrap tires.
    Response: We disagree with the commenter on several points and do
not believe that the case has been made to include animal manure as a
categorical non-waste fuel in 40 CFR 241.4(a). First, in the 2011 NHSM
final rule, we previously determined that animal manure that is used as
fuel, ``as generated,'' would not satisfy the legitimacy criteria. This
conclusion was based on the fact that such material likely would not
satisfy the meaningful heating value and contaminant legitimacy
criterion.\128\ Thus, we believe that the burning of such materials (as
generated) would not be legitimate and would be seen as burning for
discard. Further, the agency has never stated that a NHSM, including
animal manure, has to be landfilled in order to be discarded, as the
commenter implies. Regarding the use of manure as fertilizer, we have
been clear that this rulemaking does not address that secondary use.
The 2011 NHSM final rule states, ``We recognize that manure may also be
beneficially used in other end uses, such as a fertilizer * * * EPA is
not making any determination whether non-hazardous secondary materials
are or are not solid wastes for other possible beneficial end uses.
Such beneficial use determinations are generally made by the states for
these other beneficial uses, and EPA will continue to look to the
states to make such determinations.'' \129\
---------------------------------------------------------------------------

    \128\ See 76 FR 15480-15481.
    \129\ 76 FR 15482.
---------------------------------------------------------------------------

    The commenter notes additional plans for animal manure energy
projects; however the fact that there are plans for future projects
does not support a categorical non-waste determination today. As the
EPA has acknowledged, facilities may be able to demonstrate that they
satisfy the legitimacy criteria, either through a self-determination if
the manure remains within the control of the generator or through the
Sec.  241.3(c) non-waste determination petition process. Thus, any
future energy project using animal manure as fuel could utilize either
of these options for determining that the manure is a non-waste fuel,
as appropriate.
    Regarding the commenter's points related to meaningful heating
value of dried manure, the fact that dried manure may have a greater
Btu value than bagasse is not directly on point. To demonstrate that a
NHSM has meaningful heating value when used as a fuel, a facility does
not compare relative Btu/lb of the NHSM against other traditional
fuels, which themselves have a wide range of heating values. Rather,
consistent with other EPA rulemakings, we have established 5,000 Btu/lb
as a benchmark for demonstrating that a NHSM has meaningful heating
value. Thus, to meet the meaningful heating value legitimacy criterion,
the material would need to meet an ``as fired'' heating value of 5,000
Btu/lb, or if lower than 5,000 Btu/lb, as fired, a person would need to
demonstrate that the ERU can cost-effectively recover meaningful energy
from the NHSM used as a fuel.\130\ We also note that the EPA did not
reopen the meaningful heating value for fuels, as codified in 40 CFR
241.3(d)(1)(ii), in the December 23, 2011, proposed rule. Thus, in
order to meet this criterion, the dried manure would need to meet an
``as fired'' heating value of 5,000 Btu/lb, or if lower than 5,000 Btu/
lb, the facility would need to demonstrate that the ERU can cost-
effectively recover meaningful energy from use of manure as a fuel.
---------------------------------------------------------------------------

    \130\ See 76 FR 15541.
---------------------------------------------------------------------------

    Regarding the commenter's statement regarding contracts between
livestock and poultry producers and combustors, first we would note
that no information has been provided to indicate who has entered such
contracts or how many such contracts there are to consider this factor.
However, as we have stated elsewhere in this preamble, contractual
arrangements can be used as evidence that the material is managed as a
valuable commodity and that discard is not occurring when a material is
transferred beyond the control of the generator. However, the fact that
there is a contractual relationship by itself is not dispositive that a
material is not a waste, as there are contracts between parties to
remove and dispose of wastes.
    We also believe that the commenter's statements that the
concentrated levels of contaminants are no different than what occurs
in the production of ``byproducts of ethanol natural fermentation
processes'' is not supported by any information or data. That is, other
than the general statement, the commenter has not provided contaminant
data, for either animal manure or byproducts of ethanol natural
fermentation processes, for the agency to analyze and compare.
    Thus, we have determined based on the lack of any information or
data that animal manure should not be listed as a categorical non-waste
fuel in Sec.  241.4(a).
    Comment: In the event that the agency does not list animal manure
as a categorical non-waste fuel, the EPA could alternatively decide
that processing of animal manure by drying, constitutes ``sufficient
processing,'' such that previously discarded manure could be considered
recovered for energy recovery, just like scrap tires could be processed
and burned as a non-waste.
    Response: In the December 23, 2011 proposal, the agency did not
solicit comment on the definition of ``processing,'' as codified in 40
CFR 241.2. Thus, this comment is beyond the scope of the rulemaking and
will not be addressed in today's final action.
d. Other Materials for Which Additional Information Was Not Requested
    In the December 2011 proposal, the agency solicited comment on a
focused list of NHSMs and, in particular, whether these NHSMs would be
appropriately included in the categorical list of non-waste fuels that
the agency was proposing in 40 CFR 241.4(a). Specifically, the agency
proposed and/or invited comment and additional information regarding
potential categorical non-waste determinations for resinated wood,
scrap tires managed pursuant to established tire collection programs,
pulp and paper sludges, and coal refuse recovered from legacy piles.
    Although comment was requested only for these specific materials,
the agency received comments that many other NHSMs be listed as
categorical non-wastes for which it did not request additional
information as a part of this rulemaking. As we have discussed
elsewhere in today's preamble, we will not be responding to such
comments and issues that are beyond the scope of

today's narrow rulemaking. We would also note that since the agency did
not specifically solicit comments on these additional materials or
propose that these NHSMs should be categorically listed in 40 CFR
241.4(a), the Agency will be going through notice and comment
rulemaking before making a final decision. However, we would like to
note two additional NHSMs--paper recycling residuals and construction
and demolition wood processed pursuant to best practices that, based on
information provided to the agency,\131\ we now believe are good
candidates and expect to propose categorical listings in 40 CFR
241.4(a) in the near future for these two materials. With respect to a
third NHSM--creosote-treated railroad ties, the Agency has recently
received a draft petition from The American Forest & Paper Association
and the American Wood Council seeking a categorical listing for these
materials. As noted below, the Agency has requested additional
information from the petitioners with regard to their request. If the
additional information supports the representations made in the
petitioners' draft December 6, 2012 petition, the EPA expects to
propose a categorical listing for this material as well.\132\
---------------------------------------------------------------------------

    \131\ Comments on December 23, 2011 proposed rule supporting a
categorical non-waste for paper recycling residuals: American Forest
& Paper Association, et al. EPA-HQ-RCRA-2008-0329-1946-A1; Georgia-
Pacific LLC (GP) EPA-HQ-RCRA-2008-0329-1902-A1; National Alliance of
Forest Owners (NAFO) EPA-HQ-RCRA-2008-0329-1950-A2; Packaging
Corporation of America (PCA) EPA-HQ-RCRA-2008-0329-1966-A1; and
United Steelworkers (USW) EPA-HQ-RCRA-2008-0329-1910-A1. Comments
supporting a categorical non-waste for paper recycling residuals and
C&D wood: American Forest & Paper Association, et al. EPA-HQ-RCRA-
2008-0329-1946-A1; Construction Materials Recycling Association
(CMRA) EPA-HQ-RCRA-2008-0329-1928-A1; Covanta Energy Corporation
(Covanta) EPA-HQ-RCRA-2008-0329-1893-A; Energy Recovery Council
(ERC) EPA-HQ-RCRA-2008-0329-1927-A1; Georgia-Pacific LLC (GP) EPA-
HQ-RCRA-2008-0329-1902-A1; Michigan Biomass EPA-HQ-RCRA-2008-0329-
1905-A1; National Alliance of Forest Owners (NAFO) EPA-HQ-RCRA-2008-
0329-1950-A2; United Steelworkers (USW) EPA-HQ-RCRA-2008-0329-1910-
A1; Waste Management (WM) EPA-HQ-RCRA-2008-0329-1957-A2; and
Weyerhaeuser EPA-HQ-RCRA-2008-0329-1930-A1.
    \132\ See draft letter from Paul Noe to Adminstrator Lisa
Jackson, December 6, 2012, (item to be placed in the docket for
today's rule).
---------------------------------------------------------------------------

Paper Recycling Residuals
    The first of these is paper recycling residuals (including old
corrugated cardboard (OCC) rejects). In the 2011 NHSM final rule, EPA
determined that paper recycling residuals, referred to as OCC rejects,
are not discarded when used under the control of the generator, such as
at pulp and paper mills, since these non-hazardous secondary materials
are part of the industrial process.\133\ Regarding the legitimacy
criteria, the Agency found that these materials meet the criteria with
respect to management as a valuable commodity and used as a fuel when
burned on-site. In addition, the Agency found that the contaminant
levels in these materials are comparable to those in traditional fuels.
With respect to the meaningful heating value criterion, the Agency
determined that OCC rejects meet this criterion if it can be
demonstrated that the combustion unit can cost-effectively recover
energy from these materials.\134\
---------------------------------------------------------------------------

    \133\ [76 FR 15487]
    \134\ For a discussion of OCC rejects, see 76 FR 15486-7.
---------------------------------------------------------------------------

    Since publication of the March 2011 rule, the Agency has received
additional information regarding the cost effectiveness of paper
recycling residuals use as a fuel, including amounts of paper recycling
residuals replacing traditional fuels at paper mills and percentages of
residuals generated that are combusted as fuel. In general, this
information also indicates that this material is primarily combusted as
a fuel on-site or within the control of the generator.\135\ We have
asked the industry for information to confirm this.
---------------------------------------------------------------------------

    \135\ See ``Generation, Management, and Processing of Paper
Processing Residuals'' (Industrial Economics, October 26, 2012)
(these items will be placed in the docket.)
---------------------------------------------------------------------------

    EPA believes the information received to date would tend to support
a categorical determination of these residuals as non-waste fuels. For
residuals that are transferred offsite, the Agency would like
additional information about residuals that are also burned as a fuel
at facilities that are not under the control of the generator,
including information as to how and where they are burned and whether
they are managed as a valuable commodity. If the Agency receives
information confirming treatment of these materials offsite, the Agency
would expect to include these residuals in a subsequent rulemaking.
Construction and Demolition Wood Processed Pursuant to Best Practices
    The second of these NHSMs is construction and demolition (C&D) wood
processed pursuant to best practices and produced and managed under the
oversight of a comprehensive collection system or contractual
arrangement. In the March 2011 final rule, we determined that C&D wood
that is sufficiently processed can be a non-waste fuel.\136\ The Agency
has received additional information since the issuance of that rule on
specific best management practices used by suppliers/processors of C&D
wood. Such practices include processing to remove contaminants. EPA
believes the information received to date would tend to support a
listing of these materials as a categorical non-waste fuel and expects
to propose that listing in a subsequent rulemaking.
---------------------------------------------------------------------------

    \136\ See 76FR 15485
---------------------------------------------------------------------------

Other Materials Under Consideration
    The American Forest & Paper Association and the American Wood
Council submitted a draft petition to EPA on December 6, 2012 seeking a
categorical listing for creosote-treated railroad ties.\137\ This draft
petition lists their bases for the determination, with supporting
information.
---------------------------------------------------------------------------

    \137\ Letter from American Forest & Paper Association and
American Wood Council to Lisa Jackson, dated December 6, 2012 (a
copy of this letter can be found in the docket for today's rule)
---------------------------------------------------------------------------

    The information included amounts of railroad ties combusted each
year and value of the ties as fuel. Overall, the petitioners believe
the information demonstrates that these materials are non-waste fuels
and would allow EPA to categorically list this material, balancing the
legitimacy criteria with other relevant factors. The draft petition
provides information representing a determination that the material has
high Btu value, and that the material satisfies the legitimacy
criteria. The Agency is still in the process of reviewing the petition.
However, in order to inform the scope of the non-waste category, we
have also asked the petitioners to provide additional information,
including:
    1. A list of industry sectors, in addition to forest product mills,
that burn railroad ties for energy recovery
    2. The types of boilers (e.g., kilns, stoker boilers, circulating
fluidized bed, etc.) that burn railroad ties for energy recovery
    3. The traditional fuels and relative amounts (e.g., startup, 30%,
100%) of these traditional fuels that could otherwise generally be
burned in these types of boilers
    4. The extent to which non-industrial boilers (e.g., commercial or
residential boilers) burn railroad ties for energy recovery
    5. Laboratory analyses for contaminants known to be present in
creosote-treated railroad ties or known to be significant components of
creosote, specifically polycyclic aromatic hydrocarbons (i.e., PAH-16),
dioxins, dibenzofurans, hexachlorobenzene, biphenyl, quinoline,
cresols, and 2,4-dinitrotoluene.

    Assuming that the additional information supports and supplements
the representations made in the petitioner's December 6, 2012 draft
petition, the EPA also expects to propose a categorical listing for
this material. To the extent that petitioners would like to provide
additional information, the Agency will consider such information as
well.
    EPA has also received a related letter from the Treated Wood
Council asking that nonhazardous treated wood be determined as a
categorical non-waste, a broader category that would include creosote-
treated ties.\138\ EPA is in the process of reviewing this letter, and
may also propose a categorical listing for this broader set of treated
wood material. Finally, we would note that if any person provides
sufficient information to EPA regarding any other NHSM, EPA would also
consider listing such material(s) categorically, pursuant to 40 CFR
241.4(b).
---------------------------------------------------------------------------

    \138\ Letter from Jeffrey Miller, Treated Wood Council to Lisa
Feldt, December 17, 2012. (a copy of this letter can be found in the
docket to today's rule) Additional supporting information is found
in the Comments of Treated Wood Council, dated Feb. 20, 2012)( EPA-
HQ-RCRA-2008-0329-1897.
---------------------------------------------------------------------------

6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination Petition
Process
    In the proposed rule, the EPA asked for comments on streamlining or
other improvements to the existing provision for non-waste
determinations codified at 40 CFR 241.3(c).
    The agency requested comment on whether the EPA's grant of the
petition should apply as of the date that the petition was submitted to
the agency.\139\ The agency also requested additional comment on
whether any other changes could be made to the non-waste determination
petition in order to streamline the process, while at the same time
provide the EPA with the opportunity to ensure that such NHSMs are not
being discarded. For example, the EPA requested comment on whether
public comment should be sought on each individual petition.\140\
---------------------------------------------------------------------------

    \139\ See 76 FR 80473.
    \140\ See 76 FR 80474.
---------------------------------------------------------------------------

    Comment: Concerning the request for comment regarding when a
petition determination would apply, the agency received several
comments. Specifically, the agency requested comment on whether the
EPA's grant of the petition should apply as of the date that the
petition was submitted to the agency. Commenters agreed that a non-
waste determination under 40 CFR 241.3(c) should be retroactively
applied to the date the petition was submitted.
    Commenters were concerned about the timeliness of the EPA's
decision on these determinations and on the uncertainty surrounding the
usage of the NHSMs while a non-waste determination petition is pending.
The commenters argue that if a NHSM is determined to be non-waste, the
combusted NHSM in question was also non-waste prior to the
determination.
    Response: The agency understands the interests of petitioners
awaiting an agency decision on the status of materials, while a 40 CFR
241.3(c) petition is being considered. In order to lessen the
uncertainty surrounding the regulatory status of a particular material,
the agency will utilize the date the petition was submitted as the date
that the combusted materials will be considered a non-waste if the
agency grants the petition.
    Comment: Many commenters indicated concern that the petition
process could take excessive time for the agency to reach a decision.
They requested self-imposed timeframes for the EPA's granting/denying
requests and a shorter length of time for the notices to be open for
public comment (or omit it altogether). The combustors stated they need
quick decisions in order to comply with the CAA regulations and to make
efficient business decisions.
    Response: The agency considered the commenters' suggestion, but
decided not to impose a deadline on its decision because there are many
factors beyond its control, including how long it takes for the
petitioner to submit a complete petition to EPA for evaluation. We
would note, however, that even though the NHSM rule will become
effective on April 8, 2013, for all practical purposes, existing
facilities that currently burn NHSMs from off-site sources will have a
substantial amount of time to submit and have the EPA process a non-
waste determination petition before having to comply with the CAA
emission standards, as the compliance date for existing CISWI sources
subject to CAA 129 standards is 5 years after the date of publication
of the CISWI final rule or 3 years after the state plan is approved,
whichever happens earlier and February 7, 2016, to comply with the
Boiler MACT rule.141 142 Thus, we believe that there will be
more than adequate time for persons to determine whether or not a NHSM
sent to a combustion unit not under the control of the generator has
not been discarded and meets the legitimacy criteria, prepare and
submit a non-waste determination petition to the EPA, have the EPA
process the petition, including soliciting comment on the EPA's
proposed determination, and make a final decision.
---------------------------------------------------------------------------

    \141\ We recognize that new sources that are coming online that
will have to comply with these rules much sooner than do existing
sources. As such, the Agency will consider prioritizing the
processing of non-waste petitions it has received from new sources
as appropriate.
    \142\ Note that the compliance date for the Area Source Boiler
Rule is March 21, 2014.
---------------------------------------------------------------------------

    In regard to the comment on reducing the time the petition
application is open for public comment, the agency decided that the
comment period shall remain at 30 days but the regulatory text is
changed from ``at least 30 days'' to ``30 days'' in order to promote
clarity, while affording an opportunity for public comment.
    Comment: One commenter strongly encouraged the agency to develop
and deploy an on-line form to identify materials for non-waste
determinations. Commenters also noted that the EPA should provide more
detailed information about how the determinations are made
(particularly for the comparable contaminant determinations).
    Response: The agency will consider the development of a form to
identify the specific information needed to determine whether a NHSM
meets the legitimacy criteria and other provisions. If the agency
develops such a form, it would be made available on the NHSM Web site.
Please note that traditional fuel data (including tables for
traditional contaminants) are available to the public, which they may
find useful in assessing the contaminant legitimacy criteria. Refer to
those tables in ``Contaminant Concentrations in Traditional Fuels:
Tables for Comparison'' currently posted on the NHSM web site at http://www.epa.gov/osw/nonhaz/define/index.htm. That document will aid in
comparing the concentration of contaminants in their NHSMs to
concentration of contaminants in traditional fuels. In addition, rule
clarification letters and petition findings are also posted on the Web
site when finalized.
    Comment: A commenter suggested that the non-waste petition process
should allow for ``balancing'' of legitimacy criteria similar to that
included for categorical determinations in 40 CFR 241.4.
    Response: Under 40 CFR 241.4 of the proposed regulation, the EPA
can balance the legitimacy criteria with other relevant factors in
making categorical non-waste determinations. As the commenter points
out, we have not discussed the applicability for similar balancing
under 40 CFR 241.3 non-waste determination petitions. The EPA
distinguished between 40 CFR 241.3 and 40 CFR 241.4 because in the

latter, the EPA makes the determination based on its review and
analysis of industry-wide data and other factors, as opposed to a
specific site. However, the EPA recognizes the points the commenter
raises and will consider whether such modifications may be appropriate.
    Comment: Several commenters were interested in features that
streamline and add flexibility to the administrative petition process,
particularly in the situation where a petition can apply to multiple
combustors.
    One commenter noted that any interested person--including forest
owners--should be able to initiate the petition process, not just
combustors. The petitions should be allowed for entire classes of a
NHSM rather than requiring a case-by-case analysis. These
clarifications will encourage all members in the biomass supply chain
to promote their products and co-products as clean, renewable fuels and
promote the development of new markets for biomass materials. Other
commenters also stressed the need for the EPA to clarify that the
petition can apply to more than one combustor so that redundant
petitions do not need to be filed in every region.
    A commenter also stated that the benefits from petitions could be
achieved more efficiently if the regulatory language was changed to
allow for nation-wide petitions under 40 CFR 241.3(c) for classes of
combustion units rather than requiring separate petitions for each EPA
region.
    Response: The agency agrees with the commenters that the process
should accommodate for petition applications from third party producers
of a NHSM that can be used as a non-waste NHSM fuel at many combustion
units instead of just accepting petitions from individual combustors or
combustors within the control of one EPA region. This can make for a
more streamlined and efficient process. Therefore, the regulatory
provision at 40 CFR 241.3(c) has been modified to allow for the
petition to be sent to the Assistant Administrator for the OSWER
instead of each Regional Administrator if the petition covers more than
one EPA Region. This is at the option of the petitioner. The Assistant
Administrator for the OSWER would be responsible for the EPA's
administrative process in order to finalize the petition decision under
40 CFR 241.3(c) and the regulatory language has been modified
accordingly.
    Finally, as noted in the 2011 NHSM final rulemaking, states, or
private entities, can submit non-waste determination petitions to the
EPA on behalf of petitioners. They can petition for a single combustor
or a class of combustors (e.g., a specific usage of a non-hazardous
secondary material in a particular state). Therefore, in regard to the
comment on nationwide petitions for classes of combustion units, the
petition process accommodates for these classes of combustion units.
This assumes that the petition identifies all of the specific NHSMs
that the classes of combustion units use as fuel (that are applicable
to a 40 CFR 241.3(c) petition) and gives the information necessary to
meet the legitimacy criteria and other requirements.
    Note that if a petition covers multiple facilities in a single
region, the petition should be sent to the Regional Administrator for
that Region, not to the Assistant Administrator for the OSWER.
    Comment: Several commenters argued that the 40 CFR 241.3(c)
petitions should not require public comment for each individual
petition.
    One commenter stated that ``the administrative petition process
could be further streamlined by not seeking public comment on every
individual petition. By filing an administrative petition, a petitioner
is not seeking to change the EPA's regulatory program or create new
legal rights or obligations. Instead, the administrative petition
process provides an opportunity for a petitioner to obtain in advance
[A]gency concurrence, based on sound science, with respect to the
classification of a particular feedstock under existing regulations. In
this respect, the administrative petition process differs from the
categorical non-waste determination * * * where EPA makes changes to
the regulatory status of certain non-hazardous secondary materials that
are reflected in the Code of Federal Regulations. Because the public--
through this rulemaking process--has an opportunity to provide input on
EPA's regulations, there is no need to provide a second opportunity for
public comment when those regulations are applied by the EPA in
specific contexts through the administrative petition process.''
    In addition, other commenters indicated that public notice and
comment is not necessary, since the NHSM rulemaking process has already
taken comment on the methodology, in addition to other rationale. In
particular, one commenter stated, ``Streamlining could be further
facilitated by recognizing that solicitation of public comment on each
individual application would be redundant and unnecessary given the
public's ample opportunity during this rulemaking to comment on the
evaluation criteria that will govern non-waste determination
petitions.'' Another commenter stated, ``The reason for public
participation in the hazardous waste petition process is that the
materials subject to the petition are to be removed from the hazardous
waste regulatory program. In the NHSM world, the secondary materials
subject to the petition are merely obtaining clarity about regulatory
status--they are not seeking a change in regulatory status. Therefore,
the need for the full public participation process is not necessary or
warranted.''
    Response: Although industry commenters argued that public
participation is unnecessary, the EPA still believes that public
participation is an important part of a transparent decision making
process and values how it increases transparency. In the final rule, we
will retain the public participation requirement in order to promote
public awareness.
7. Revised Introductory Text for 40 CFR 241.3(a)
    As part of its discussion clarifying the non-waste determination
petition processes, the EPA noted that it had examined a number of
specific NHSMs and decided which were to be considered solid wastes
based on the record available at the time the March 2011 final rule was
issued.\143\ The rule itself had stated at 40 CFR 241.3(a) that
secondary materials were solid wastes except for those described in
section 241.3(b). Essentially, section 241.3(b) is the operative
section that states what materials are not wastes. The purpose of the
non-waste determination petition process in section 241.3(c) and the
new proposed petition process in section 241.4 is to allow various
parties the opportunity to provide information and data so that the EPA
could decide what other NHSMs are not solid wastes. The preamble stated
that the agency proposed to amend section 241.3(a) to state that such
secondary materials are ``presumed to be'' solid wastes except for
those described in section 241.3(b) in order to better reflect the
rulemaking record.
---------------------------------------------------------------------------

    \143\ See 76 FR 80473.
---------------------------------------------------------------------------

    Comment: No commenters supported inclusion of the ``presumed to
be'' language in the rule.
    Most of the commenters on the language argue that it means that the
EPA continues to improperly determine that certain NHSMs are
presumptively wastes. Commenters generally argue that the ``presumed to
be'' language shows that the EPA, in spite of statements to the
contrary, is continuing to make an inappropriate determination

that NHSMs transferred to other parties are presumptively wastes until
a combustor proves otherwise. According to comments, the use of the
``presumed to be'' language is a clear statement that the EPA is making
the presumption. The addition of these words does not change the fact
that, under the EPA's regulatory framework, NHSMs are wastes until
proven otherwise.
    Several commenters, in fact, argued that to address the legal flaws
in the proposal, the EPA should reverse the presumption and presume
that NHSMs burned for energy recovery or used as an ingredient is not
for the purpose of disposal and, therefore, is not a waste.
    Response: The EPA is not addressing in this rulemaking the comment
that the agency has inappropriately made presumptions about whether
materials are wastes. This issue has not been reopened. Instead, the
agency has only opened very specific issues on particular wastes.
    In the December 2011, proposal at 76 FR 80473, the EPA referred to
the March 2011 preamble in which the agency stated that it has not
``arbitrarily determined that secondary materials transferred between
companies are wastes. Instead, the EPA has evaluated whether certain
categories of materials are discarded or not. The Agency has not
adopted the extremes of saying that all burning of secondary material,
regardless of ultimate use, is waste treatment or that any secondary
material that is recycled for legitimate fuel value is a commodity and
not a waste. Wastes may have value, but are still wastes.'' 76 FR
15471. Further, the agency stated that it ``has examined a number of
specific materials, recycled within the control of the generator and
transferred to a third party for recycling, and determined whether they
would be appropriately placed within the waste or non-waste
categories.'' Id. The EPA went on to examine a number of different
categories of NHSMs used as fuels and ingredients that was summarized
in the Federal Register (76 FR 15477-15520). The EPA cannot ``reverse''
a presumption that it never made to declare that materials burned for
energy recovery are presumptively non-wastes. Further, it would be
entirely improper for the agency to do so. The EPA has evaluated
specific groups of materials as to their waste status, while the
comments regarding reversal of a purported presumption have only
presented arguments ``in broad abstraction, providing little detail
about the many processes throughout the industry that generate residual
material'' that could be subject to this rule. Association of Battery
Recyclers v. EPA, 208 F.3d 1047, 1056.\144\ Accordingly, the agency
stands on its March 2011 rulemaking record for the issues discussed in
these comments.
---------------------------------------------------------------------------

    \144\ Note how the April 4, 2012, letter from Timothy G. Hunt to
James Berlow (a copy of which is in the docket for today's rule),
provided specific information on pulp and paper sludge where the EPA
added a categorical determination based on specific information
provided by industry.
---------------------------------------------------------------------------

    Comment: Comments objected that the change in word choice that
materials are ``presumed to be'' solid wastes from the statement that
that materials ``are'' solid wastes (except as otherwise provided in
the regulation) still puts the burden to prove material is not a waste
on persons who use NHSMs in combustion units. One comment, in
particular, noted that there would be no practical effect of the new
language even though it is viewed by the EPA as an ``optically less
drastic stance.'' That is, there would be no real leeway for a party in
an enforcement proceeding to counter the EPA's prosecution based on the
fact that the secondary material in question is only ``presumed to be''
a waste, rather than the material ``is'' a waste.
    Response: The EPA has decided not to retain the ``presumed to be''
language, since it is unnecessary and does not actually reflect the
rulemaking record. No comment argued in favor of it. In addition, there
is no need to temper the existing language stating that a material is a
solid waste if it does not fall within the Sec.  241.3(b) categories or
the non-waste determination processes. As noted in the previous
response to comments regarding the agency's ``presumption'' of the
waste status of materials, the agency stands on its March 2011
rulemaking record.

E. Cost and Benefits of the Final Rule

    The RCRA aspects of this rule do not directly invoke any costs
(excluding minor administrative burden/cost), or benefits. Any RCRA
related costs to the regulated community, and corresponding benefits to
human health and the environment, have been considered as part of the
CISWI action, and the corresponding CISWI and Boiler MACT (area source
and major source) final rules. As such, the agency has not prepared a
separate cost-benefit assessment in support of this part of the final
rule. Consequently, any potential costs or benefits, including impacts
to small entities, indirectly associated with the RCRA aspects of this
rule are addressed in the corresponding impact assessment prepared in
support of the CISWI part of this action.

IV. Statutory and Executive Order Reviews

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

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' because it may raise
novel legal or policy issues. Accordingly, the EPA submitted this
action to OMB for review under Executive Order 12866 and 13563 (76 FR
3821, January 21, 2011). Any changes made in response to OMB
recommendations have been documented in the docket for this action.
    In addition, the EPA prepared an update to the RIA of the potential
costs and benefits associated with this action. The RIA available in
the docket describes in detail the empirical basis for the EPA's
assumptions and characterizes the various sources of uncertainties
affecting the estimates below and a memo documents the updates since
the RIA was prepared. Table 9 of this preamble shows the results of the
cost and benefits analysis for these final rules.

    Table 9--Summary of the Monetized Benefits, Social Costs and Net
            Benefits for the Final CISWI NSPS and EG in 2015
                         [Millions of 2008$] \1\
------------------------------------------------------------------------
                                  3 Percent discount  7 Percent discount
                                         rate                rate
------------------------------------------------------------------------
Total Monetized Benefits \2\....  $420 to $1,000....  $380 to $930
Total Social Costs \3\..........  $258..............  $258
Net Benefits....................  $160 to $770......  $120 to $670
                                    Health effects from exposure to HAP
                                     780 tons of HCl, 2.5 tons of lead,
                                   1.8 tons of Cd, 680 pounds of Hg, and
                                        58 grams of dioxins/furans).

Non-monetized Benefits..........      Health effects from exposure to
                                    criteria pollutants (20,000 tons of
                                    CO, 6,300 tons of SO2, 5,400 tons of
                                      NO2, and secondary formation of
                                                  ozone).
                                            Ecosystem effects.
                                          Visibility impairment.
------------------------------------------------------------------------
\1\ All estimates are for the implementation year (2015) and are rounded
  to two significant figures. These results reflect the lowest cost
  disposal assumption.
\2\ The total monetized benefits reflect the human health benefits
  associated with reducing exposure to PM2.5 through reductions of PM2.5
  precursors such as directly emitted particles, SO2, and NOX. It is
  important to note that the monetized benefits include many but not all
  health effects associated with PM2.5 exposure. Monetized benefits are
  shown as a range from Pope, et al. (2002) to Laden, et al. (2006).
  These models assume that all fine particles, regardless of their
  chemical composition, are equally potent in causing premature
  mortality because the scientific evidence is not yet sufficient to
  allow differentiation of effect estimates by particle type.
\3\ The methodology used to estimate social costs for 1 year in the
  multimarket model using surplus changes results in the same social
  costs for both discount rates.

B. Paperwork Reduction Act

    This action does not require any new information collection. This
action is believed to result in no additional impact on the aggregate
information collection estimate of project cost and hour burden made
and approved by OMB. Due to changes in the CISWI inventory and
monitoring requirements of the CISWI rule, the information collection
estimate of project cost and hour burden have been revised. Therefore,
only the CISWI ICR has been revised. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    However, OMB has previously approved the information collection
requirements contained in the existing CISWI and NHSM \145\ regulations
(40 CFR part 60, subparts CCCC and DDDD, and 40 CFR part 241) under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., and
has been assigned EPA ICR number 2384.05 for subpart CCCC, 40 CFR part
60, EPA ICR number 2385.05 for subpart DDDD, 40 CFR part 60, and EPA
ICR number 2382.03 for 40 CFR part 241.
---------------------------------------------------------------------------

    \145\ Identification of Non-Hazardous Secondary Materials That
Are Solid Waste, Final Rule. March 11, 2011.
---------------------------------------------------------------------------

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 APA or any other statute unless the
agency certifies that the rule will not have a SISNOSE. Small entities
include small businesses, small organizations and small governmental
jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the SBA's regulations at 13 CFR 121.201; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; or
(3) a small organization that is any not-for-profit enterprise that is
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a SISNOSE.
This final rule will not impose any new requirements on any entities
because it does not impose any additional regulatory requirements
relative to those specified in the March 2011 final CISWI and NHSM
rules. The March 2011 final CISWI and NHSM rules were both certified as
not having a SISNOSE. In this final action, there are four fewer small
entities in the CISWI than in the March 2011 final CISWI rule, as
discussed in the ``Regulatory Impact Results for the Reconsideration
Final for Standards of Performance for New Stationary Sources and
Emission Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration Units'' memorandum in the CISWI docket.

D. Unfunded Mandates Reform Act

    This action does not contain a federal mandate that may result in
expenditures of $100 million or more for state, local and tribal
governments, in the aggregate or the private sector in any one year.
This rule finalizes amendments to the final CISWI rule provisions and
technical clarifications to the final NHSM rule. Thus, this rule is not
subject to the requirements of sections 202 or 205 of UMRA. However,
the March 2011 final CISWI rule contains a federal mandate that may
result in expenditures of $100 million or more for state, local and
tribal governments, in the aggregate, or the private sector in any 1
year. Accordingly, we have prepared under section 202 of the UMRA a
written statement, which is summarized in the preamble to the final
CISWI rule (76 FR 15747).
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.

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
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). The EPA is not
aware of any CISWI in Indian country or owned or operated by Indian
tribal governments. The CISWI aspects of this rule may, however, invoke
minor indirect tribal implications to the extent that entities
generating solid wastes on tribal lands could be affected. However, any
indirect NHSM impacts that may occur as a result of the CISWI action
are expected to be negligible due to the very limited focus of the
CISWI part or this rule.

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 Executive 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 and technical corrections.

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

    This action is not subject to 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.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the NTTAA of 1995, Public Law 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. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures and business practices) that are developed or adopted by VCS
bodies. The 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 revisions to the technical
standards or test methods required in the final CISWI rule. Therefore,
the EPA did not reconsider 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 EJ. Its main provision directs federal
agencies, to the greatest extent practicable and permitted by law, to
make EJ 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 it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. The amendments do not relax the control measures on
sources regulated by the CISWI rule, and, therefore, will not cause
emissions increases from these sources. The March 2011 final CISWI rule
will reduce emissions of all the listed HAP emitted from this source.
Furthermore, the targeted revisions finalized in the NHSM section of
this rule are designed to improve the management of these materials,
thereby helping to further ensure against any disproportionately high
and adverse human health or environmental effects on minority or low-
income populations.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
SBREFA 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 not a ``major rule'' as defined by
5 U.S.C. 804(2). This rule will be effective February 7, 2013.

List of Subjects

40 CFR Part 60

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

40 CFR Part 241

    Environmental protection, air pollution control, waste treatment
and disposal.

    Dated: December 20, 2012.
Lisa P. Jackson,
Administrator.
    For the reasons cited in the preamble, Title 40, chapter I, parts
60 and 241 of the Code of Federal Regulations are amended as follows:

PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES

0
1. The authority for part 60 continues to read as follows:

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

0
2. Effective February 7, 2013, the May 18, 2011 (76 FR 28662), delay of
the effective date amending subparts CCCC and DDDD, at 76 FR 15703
(March 21, 2011), is lifted.

Subpart CCCC--[Amended]

0
3. Section 60.2005 is revised to read as follows:

Sec.  60.2005  When does this subpart become effective?

    This subpart takes effect on August 7, 2013. Some of the
requirements in this subpart apply to planning the CISWI unit (i.e.,
the preconstruction requirements in Sec. Sec.  60.2045 and 60.2050).
Other requirements such as the emission limitations and operating
limits apply after the CISWI unit begins operation.

0
4. Section 60.2015 is amended by revising paragraphs (a)(1) and (2) and
(b) to read as follows:

Sec.  60.2015  What is a new incineration unit?

    (a) * * *
    (1) A CISWI unit that commenced construction after June 4, 2010.
    (2) A CISWI unit that commenced reconstruction or modification
after August 7, 2013.
    (b) This subpart does not affect your CISWI unit if you make
physical or operational changes to your incineration unit primarily to
comply with subpart DDDD of this part (Emission Guidelines and
Compliance Times for Commercial and Industrial Solid Waste Incineration
Units). Such changes do not qualify as reconstruction or modification
under this subpart.

0
5. Section 60.2020 is amended by:
0
a. Revising paragraph (c).
0
b. Revising paragraph (e)(3).
0
c. Adding paragraph (e)(4).
0
d. Revising paragraph (f)(3).
0
e. Adding paragraph (f)(4).
0
f. Revising paragraph (n).
0
g. Adding paragraph (o).
    The revisions and additions read as follows:

Sec.  60.2020  What combustion units are exempt from this subpart?

* * * * *
    (c) Municipal waste combustion units. Incineration units that are
subject to

subpart Ea of this part (Standards of Performance for Municipal Waste
Combustors); subpart Eb of this part (Standards of Performance for
Large Municipal Waste Combustors); subpart Cb of this part (Emission
Guidelines and Compliance Time for Large Municipal Combustors); subpart
AAAA of this part (Standards of Performance for Small Municipal Waste
Combustion Units); or subpart BBBB of this part (Emission Guidelines
for Small Municipal Waste Combustion Units).
* * * * *
    (e) * * *
    (3) You submit documentation to the Administrator notifying the EPA
that the qualifying small power production facility is combusting
homogenous waste.
    (4) You maintain the records specified in Sec.  60.2175(w).
    (f) * * *
    (3) You submit documentation to the Administrator notifying the
Agency that the qualifying cogeneration facility is combusting
homogenous waste.
    (4) You maintain the records specified in Sec.  60.2175(x).
* * * * *
    (n) Sewage sludge incineration units. Incineration units combusting
sewage sludge for the purpose of reducing the volume of the sewage
sludge by removing combustible matter that are subject to subpart LLLL
of this part (Standards of Performance for Sewage Sludge Incineration
Units) or subpart MMMM of this part (Emission Guidelines for Sewage
Sludge Incineration Units).
    (o) Other solid waste incineration units. Incineration units that
are subject to subpart EEEE of this part (Standards of Performance for
Other Solid Waste Incineration Units) or subpart FFFF of this part
(Emission Guidelines and Compliance Times for Other Solid Waste
Incineration Units).

0
6. Section 60.2030 is amended by revising paragraph (c)(10) to read as
follows:

Sec.  60.2030  Who implements and enforces this subpart?

* * * * *
    (c) * * *
    (10) Determination of whether a qualifying small power production
facility or cogeneration facility under Sec.  60.2020(e) or (f) is
combusting homogenous waste.

0
7. Section 60.2045 is amended by revising paragraph (b) to read as
follows:

Sec.  60.2045  Who must prepare a siting analysis?

* * * * *
    (b) You must prepare a siting analysis for CISWI units that
commenced construction after June 4, 2010, or that commenced
reconstruction or modification after August 7, 2013.
* * * * *

0
8. Section 60.2105 is amended by revising paragraph (b) to read as
follows:

Sec.  60.2105  What emission limitations must I meet and by when?

* * * * *
    (b) An incinerator unit that commenced construction after November
30, 1999, but no later than June 4, 2010, or that commenced
reconstruction or modification on or after June 1, 2001 but no later
than August 7, 2013, must meet the more stringent emission limit for
the respective pollutant in table 1 of this subpart or table 6 of
subpart DDDD.
0
9. Section 60.2110 is amended by:
0
a. Revising paragraphs (a)(2), (e), and (f).
0
b. Redesignating paragraph (g) as paragraph (h) and revising newly
designated paragraph (h).
0
c. Adding paragraphs (g) and (i).
    The revisions and additions read as follows:

Sec.  60.2110  What operating limits must I meet and by when?

    (a) * * *
    (2) Minimum pressure drop across the wet particulate matter
scrubber, which is calculated as the lowest 1-hour average pressure
drop across the wet scrubber measured during the most recent
performance test demonstrating compliance with the particulate matter
emission limitations; or minimum amperage to the wet scrubber, which is
calculated as the lowest 1-hour average amperage to the wet scrubber
measured during the most recent performance test demonstrating
compliance with the particulate matter emission limitations.
* * * * *
    (e) If you use activated carbon sorbent injection to comply with
the emission limitations, you must measure the sorbent flow rate during
the performance testing. The operating limit for the carbon sorbent
injection is calculated as the lowest 1-hour average sorbent flow rate
measured during the most recent performance test demonstrating
compliance with the mercury emission limitations. For energy recovery
units, when your unit operates at lower loads, multiply your sorbent
injection rate by the load fraction, as defined in this subpart, to
determine the required injection rate (e.g., for 50 percent load,
multiply the injection rate operating limit by 0.5).