Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 26
Comment: The EPA's proposed limits for Hg emissions from liquid-fired boilers reveal the magnitude of the EPA's decisions respecting (1) the level of precision to be employed in conducting emission testing and fuel analysis, (2) determining variability of "best" sources with insufficient data, (3) "pooling" variance among different sources where there is no reason to believe that each of those sources has the same amount of variability, and (4) determining the UPL based on emission data where the source is not "in compliance."
Distillate oil (#2 oil) is commonly understood to contain far less Hg than coal or biomass; while residual oil (#6 oil) contains somewhat less Hg than solid fuels. The EPA's existing source MACT floor is based on a series of test results from ten sources combusting four different types of oil.[23] Six sources submitted the results of a single compliance test and four sources submitted 41 fuel analyses. The arithmetic average of these results is 3.70 x 10-7 lb/MMBtu and the standard deviation is 3.07 x 10-7 pounds per trillion Btu (lb/TBtu), suggesting that a reasonable MACT floor would be in the range of 1.0 - 1.5 x 10-6 lb/MMBtu (a variability factor of 300 to 500%).[24] The EPA's earlier UPL calculation led to the final rule MACT standard of 3.4 x 10-6 lb/MMBtu  -  a variability factor of over 900%. The EPA's newly proposed statistical procedure results in a proposed UPL of 2.49 x 10-5, using the same data. This number is more than 100 times the arithmetic average of the data and more than 100 times the standard deviation of the data set[25]. As a consequence, of the 71 sources for which the EPA has data, only four sources will have to reduce emissions.
As Table 1 demonstrates, many of the characteristics of the data for the liquid fuel-fired subcategory are similar to those in the solid fuel-fired subcategory and yet the EPA's proposed MACT floor for liquid fuel-fired boilers is nearly ten times higher than the proposed limit for solid fuel-fired units. Charts 2 and 3 demonstrate the impact of the EPA's determination of variability on the effectiveness of the rule. The average of the top 12% (lowest test value) in each case is well below 1.0 x 10-6 lb/MMBtu. If the EPA had set the limit for coal-fired units at that level, approximately 25% of the subcategory would meet the limit and the balance would be required to take some steps to reduce emissions. At the proposed level of 3.1 x 10-6 lb/MMBtu, while the gross emitters would have to take steps to comply, approximately two-thirds of the units in the subcategory would not need to reduce emissions. For the oil-fired subcategory, only four of 71 units would have to reduce emissions at all; the proposed limit is five times higher than the emission rate of the fifth highest emitting unit in the subcategory. These results do not appear to be consistent with the EPA's obligation to set MACT floors at levels that represent the average of the performance of the top 12%. NACAA attempted to discern why the EPA's procedure generated such different results when the overall distribution of the Hg emissions data for coal and oil-fired units was so similar. The largest single reason for this vast difference appears to be a simple error in importing the data  -  the EPA incorporates the emissions data for HCl instead of Hg into its UPL calculation.[26] With the correct data, the EPA's 99[th] percentile UPL calculation yields a MACT floor of 4.58 x 10-7 lb/MMBtu.
[23] MACT Floor Memo, Appendix C-4-(a)(i).
[24] A somewhat higher limit may be appropriate as many of the reported results were below detection limits, thereby constraining the variability that would have been demonstrated by more precise analyses. This effect is offset by the fact that the arithmetic average would be lower with more precise analyses, but the degree to which these factors offset is not known.
[25] Sources routinely maintain, and the EPA agrees, that fuel variability is so small that sources only have to conduct new fuel analyses when they change suppliers.
[26] The error can be found in MACT Floor Memo, Appendix C, Worksheet "C-4(a)(iv)&C-4b(iv)" which is then carried over into Worksheet "C-4(a)(ii)."
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 28
Comment: In 2004, the EPA candidly admitted that it could not develop CO work practice standards for industrial, commercial, institutional (ICI) boilers: Consequently, any uniform requirements or set of work practices that would meaningfully reflect the use of good combustion practices or that could be meaningfully implemented across any subcategory of boilers and process heaters could not be identified.[29]
The EPA has nonetheless asserted that measuring CO levels is impracticable[30] and has set out what it describes as a work-practice standard. What the EPA has adopted and continues to propose is not a set of good combustion practices that could be meaningfully implemented across a subcategory, but a requirement to follow the manufacturer's recommendation for good combustion practices. This assumes that manufacturers can do what the EPA could not  -  identify a set of good combustion practices applicable to boilers designed and built over the past 50 years. It also assumes that the manufacturers of these units are still in business and will invest the resources needed to do so voluntarily. These assumptions are patently incorrect. There is no obligation on the part of manufacturers to develop any meaningful set of broadly applicable good combustion practices or to determine the set of work practices employed by the best performers in the sector or to determine whether any particular set of work practices approximates the emission performance of the best performers in a subcategory. Conceivably, an organization like The National Board of Boiler & Pressure Vessel Inspectors might be able to provide a certification/best practices review of any legacy boiler, even if the original manufacturer is no longer in business and individual sources can retain consulting firms to study the operation of individual boilers and recommend a set of best practices for that boiler. We submit that such a program, that imposes obligations on relatively clean boilers as well as high emitters, if conducted in a technically sound manner, may prove to be more costly overall and provide far less environmental benefit than a defined numerical limit that requires significant emission reductions from gross emitters. CO CEMs are available, relatively inexpensive and used by industry for process control. These devices should be required for all combustion units covered by the Major Source Boiler and CISWI Rules. Further, the EPA's assertion that CO monitoring is infeasible is inconsistent with its proposed reliance on CO optimization for dioxins and furans control.
The EPA now proposes to adopt a similar "work practice" standard for dioxin and furan emissions, again asserting that enforcing a numerical limit is impracticable, notwithstanding the hundreds of dioxins and furans emission tests in the rulemaking record. The EPA argues that this is demonstrated by the large number of results that are "non-detect" ("ND"), detection level limited ("DLL") or BDL. First, we note that this problem is of the EPA's creation. The EPA knew, before testing was to be conducted, that many results would be at or below detection limits if it only required sample periods of one hour per run. Indeed, industry sources specifically raised this issue and inquired whether they should extend sample periods to ensure more precise results. The EPA's response was that sources need not do so and that the EPA would "address" the issue in its rulemaking. Testing for dioxins/furans and other pollutants often included detection and quantification limits that are quite high -  one source reported a detection limit for Hg that equates to 6.57 lb of Hg emissions per year,[31] while several sources reported dioxins and furans detection limits several orders of magnitude larger than the levels of regulatory interest. Further, if the standard is set at the most common detection limit, plus an appropriate variability factor, no harm is done, since a subsequent emission test that is BDL would not constitute a violation. Retaining such a limit would not require any change in performance for relatively clean units, but would at least require gross emitters to reduce emissions.
Developing a meaningful work-practice standard for controlling dioxins and furans emissions is far more difficult and resource intensive than merely reducing CO levels. According to the Industrial Combustion Coordinated Rulemaking ("ICCR") study[32], control of CO levels is not sufficient; one must also examine the interaction of several factors in a complex combustion environment. The ICCR study concludes that CO monitoring can help confirm that current operating conditions are the same as during a dioxins and furans emissions test, but are not a direct indicator of low dioxins and furans emissions; equivalent dioxin levels can be found at 1 part per million (ppm) as are found at 4,000 ppm CO levels. Other factors were found to be more important and, based on the ICCR workgroup results, meaningful work-practice standards would have to include good combustion practices (including total hydrocarbon and CO concentrations, soot formation and particle entrainment), quench rate, air pollution control device temperature and fuel and waste parameters.[33] Large ICI boilers will have far higher flow rates than medical waste incinerators and so may actually emit a substantial amount of dioxin on an hourly (or certainly annual) basis. As discussed above, such a task would require significant resources. Indeed, such an effort would likely be more expensive than testing. There is no reason to suspect that manufacturers would voluntarily do so (even if it could be done) and no authority to require that they invest in such an effort.[34] Some manufacturers may, as a courtesy to their clients, publish "nominal" good combustion practices. However, there is no way for federal, state or local enforcement authorities to require that such practices have any practical impact. The end result would be additional paperwork demands on sources and permitting authorities and no environmental benefit.
The EPA's real argument appears to be that setting dioxins and furans limits for these sources is "not worth it" because emission levels are "small." If this is the case, the EPA should make this argument clearly and support it with objective facts. It should, at least, compare daily/annual dioxins and furans emissions from medical waste incinerators (and other source categories) with dioxins and furans limits with anticipated dioxins and furans emissions from high emitters to see if those emissions are de minimis. Additionally, the EPA should explore options to reduce testing burdens for the sector. Potential areas for reduced testing costs are pooled testing for units of similar designs and reduced testing frequencies for sources whose emissions are below a certain threshold. Additionally, the EPA could attempt to review operating conditions for better performing units to determine whether there are readily discernible operating conditions (such as maximum boiler temperature, O2 levels or chlorine content of fuel and designed residence time) where parametric monitoring can be employed in lieu of reference testing. The EPA might also consider a threshold where, if sources demonstrate very low dioxins and furans emission rates, a one-time test, combined with parametric monitoring might suffice.
[29] Memorandum, Eddinger, J., USEPA to Docket No. OAR-2002-0058, February, 2004,"Revised MACT Floor Analysis for the Industrial, Commercial, and Institutional Boilers and Process Heaters National Emission Standards for Hazardous Air Pollutants Based on Public Comments" p.18.
[30] NACAA has commented that this representation is incorrect. CO emissions' testing has been conducted for several decades on thousands of different sources.
[31]: This is roughly equivalent to a quantification limit of more than 60 lb/yr. EPA refers to the quantification limit as the level at which emissions can be measured accurately.
[32]: See, Gullet, B,, USEPA, and Seeker, Randy, EER Corp "Chlorinated Dioxin and Furan Formation, Control and Monitoring"1997.
[33] Id, slide 79.
[34] It is also likely that the manufacturers of a large number of boilers are no longer in business.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 29
Comment: The EPA's proposed rules do not properly address units burning mixtures of fuels.
When a source combusts only one type of fuel at all times, determining which emission limit to apply is straightforward. However, many sources combust different types of fuels at different times and a substantial number of sources combust different mixtures of these fuels at different times. In developing its Model Permit Guidance,[35] NACAA attempted to address this issue by examining test results where only one type of fuel is employed to set the recommended range of suggested limits. It was anticipated that state and local permitting authorities would then determine the appropriate procedure for establishing permit limits on a case-by-case basis, either by applying the limit that was the most stringent at all times, by determining the weighted average of relevant limits or by requiring a compliance demonstration based on full utilization of one fuel.
The EPA has taken a different approach. It has adopted a "designed to combust" test and a hierarchical scheme for determining the fuel category of a source.
     1. If a source generates more than 10% of its heat from biomass, it is in the biomass category.
     2. If it uses less than 10% biomass and more than 10% coal it is in the coal category.
     3. If it burns oil, but less than 10% coal and less than 10% biomass it is in the liquid-fired category.
     4. If it burns any amount of gas other than natural gas (Gas 1) it is in the Gas 2 category.
The EPA has not explained the rationale for this approach, which places many sources in fuel categories other than those that dominate emissions. This approach also appears to invite "category shopping" and does not seem to address all possible combinations. For example, if a fluidized bed boiler burns 91% coal and 9% biomass, the proposed CO limits are 56 ppm. If that same boiler combusts 90% coal and 10% biomass, the proposed CO limits are 370 ppm. This change is far larger than what one would expect based on such a small difference in the fuel combusted.
In its most recent proposals, the EPA has employed a different approach to the determination of the emission limit to be applied. Whereas, in the 2011 rulemaking any test result where the source was combusting more than 10% coal was used in determining the MACT floor for the coal subcategories, in its most recent calculation of MACT floors the EPA only used data from tests where the source was burning 90% or more coal during the test for existing sources and 100% coal for new sources. We believe that a 90% threshold is appropriate for the definition of this subcategory and appropriate for establishing a limit for "coal-fired" units, but see no reason to have a higher threshold for new units. Having done so, however, the EPA needs to revise its definition of the subcategory to be consistent with its approach in setting standards. The EPA may not exclude results from testing of clean sources within the subcategory. We recommend that fuel-based subcategory limits and subcategory definitions each be based on a minimum (e.g., 85-95%) usage of the fuel type and that the EPA devise an approach for establishing emission limits for units that burn mixed fuels in lesser amounts.
[35] See http://www.4cleanair.org/Documents/RHAP.pdf.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 31
Comment: In the proposed calculations of MACT floors for CO for biomass sources the EPA significantly alters the reported data to account for what it styles as "measurement span errors." This appears to be double counting of variability, since any random errors in the measurement system will be reflected in the variability of the resulting data. Moreover, the method relies on the highest reported values of computed errors rather than an average of those errors.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 32
Comment: The EPA has provided no rationale for selecting the maximum emission factor in a group of tests in developing its fuel variability factors. Other examples of an upward bias can be found in the EPA's calculation process[37] including: (1) exclusion of test results where the result provided is "zero" or "non-detect," but the detection limit is not provided, and (2) failure to include homogeneous waste material combusted by some biomass boilers in the fuel variability analysis (EPA argued that such data should be excluded because it is not a representative material for other boilers in the biomass subcategory).
The EPA's proposed standards are also highly sensitive to the decisions to exclude clean sources without sufficient basis and to retain highly variable results that are more properly treated as outliers. This is especially true in the EPA's new source MACT floor calculations. By way of example, for one new source subcategory[38], the source had been tested twice, for a total of six runs. Results from five of the six runs were low and consistent; but the results of the sixth run were 100 times greater than any of the other five runs. Since this result is outside the 99% confidence level of the rest of the data set, under the EPA's methodology it should have been excluded. The EPA retained this value and the result is an extremely high new source MACT floor calculation.
[37] The rounding process employed by the EPA can increase MACT floor results significantly. The other biases we mention are unlikely to have a large impact on the MACT floor. The use of log-normal statistical procedures may or may not result in lower MACT limits than would otherwise be the case, but is technically justified where non-normal distributions are observed.
[38] Biomass Dutch Oven Filterable PM.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 38
Comment: NACAA agrees with the industry suggestion and the EPA proposal that sources be allowed 30 days to make the adjustments in order to allow for multiple adjustments to optimize CO emissions.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 39
Comment: NACAA agrees with the suggestion that, where burner inspection is impossible without destroying the unit, it should not occur. In such instances, however, the source should conduct CO monitoring to determine whether the burner has deteriorated to the point that it should be replaced. We do not believe that burner inspections should be waived where they are merely "difficult" as this term is unenforceable. We suggest that such sources be allowed to determine CO baseline emissions after a tune up and thereafter substitute CO testing in lieu of inspection if they prefer.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 40
Comment: NACAA notes that the EPA's rationale for the establishment of a non-continental liquid subcategory (without emission data for each pollutant) is undercut by the use of continental liquid data for missing pollutant data.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 41
Comment: The EPA has proposed reduced testing frequency for sources whose emission tests are at or below 75% of the emission limit. This suggestion is inconsistent with the EPA's determination that emissions from well-controlled sources routinely vary by more than an order of magnitude.
Response: This provision was removed from the Area Source Boiler Rule in the proposal published December 23, 2011. Thus, this comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 43
Comment: The EPA has solicited comment on an industry proposal to allow units that switch to natural gas as a compliance option to average emissions with similar units that do not switch to natural gas. NACAA does not see how this concept could be authorized under the CAA.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 44
Comment: The EPA has requested comment on a stakeholder proposal that the EPA consider creating a subcategory for units that are installed and used in place of flares that are currently used to combust process gases. The stakeholders also suggested that it would be appropriate to assume that the emissions from process gases diverted from flares to boilers have ``zero emissions'' for the purposes of classifying the boiler in which they are combusted. Since the process gases must be combusted in either event, they requested that the EPA develop an approach where it uses a concept similar to the emissions averaging provisions, for example, to simply assume that combustion of such process gases in a boiler rather than a flare should not be counted as emissions from the boiler because there is no net increase in emissions. NACAA supports the use of well-controlled closed combustion devices in lieu of open. However, it appears that such devices would be governed by Gas 2 limits. The EPA provides an exemption for combustion devices used as pollution control devices where 50% of the heat value of the device is provided by the exhaust stream that is being controlled. The stakeholder proposal would effectively remove the 50% limit. NACAA believes this is excessive and would substantially eliminate HAP emission reductions in the Gas 2 category.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 46
Comment: The EPA has proposed to delete the requirement that compliance monitors for PM limits conduct annual relative accuracy test audit (RATA) testing to demonstrate the accuracy of the results. NACAA opposes this proposal as it will diminish the protectiveness of the standards and potentially render the standard unenforceable.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 47
Comment: The EPA has solicited comment on the use of continuous Hg monitors rather than fuel testing. NACAA supports this proposal; as discussed herein fuel sampling is insufficiently precise to monitor compliance at appropriate emission levels.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 48
Comment: NACAA is supportive of the EPA efforts to afford maximum flexibility to affected sources in demonstrating compliance, in order to allow lowest cost emission reductions and the best use of limited state and local resources. We agree that properly functioning sulfur dioxide (SO2) controls will also reduce HCl emissions and so chlorine levels can be correlated with HCl emissions in such units and in such instances. Sources with existing SO2 monitors should not have to install separate HCl monitors. However, low sulfur concentration in fuels does not guarantee low chlorine levels in those fuels, especially in biomass fuels. NACAA does not support the use of continuous SO2 monitors as a surrogate for HCl monitoring in units that do not have active SO2 controls.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 49
Comment: The EPA has proposed MACT floors for CO emissions from three subcategories that are either at, or very close to, the sole test result for the subcategory, effectively providing no allowance for in-use variation in performance. No reason is offered for the EPA's decision and we assume that some correction will be made.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: S. William Becker
Commenter Affiliation: National Association of Clean Air Agencies (NACAA)
Document Control Number: EPA-HQ-OAR-2006-0790-2455-A1
Comment Excerpt Number: 50
Comment: The EPA has not proposed a TSM alternative "because of the limited emission test data for TSM and the large variability in the TSM data for these subcategories. Using the EPA's MACT floor methodology, the alternative TSM limits resulted in MACT floor values which do not appear to represent the actual performance of the best performing units." NACAA agrees with the EPA's recommendation and the rationale for not proposing such limits. While the EPA has sent follow-on inquiries to some sources for additional data, there is insufficient opportunity to meaningfully review and comment on any data that may be provided at this time.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: Heather Parent
Commenter Affiliation: State of Maine Department of Environmental Protection (Maine DEP)
Document Control Number: EPA-HQ-OAR-2006-0790-2470-A2
Comment Excerpt Number: 8
Comment: Comments on the Major Source Boiler MACT
Limited-use Subcategory
Maine DEP supports the EPA's proposed limited-use subcategory for units that operate less than 10% of the year and the reduced requirements that have been proposed for these units.
Additional Subcategories for Biomass Units
Maine DEP supports the addition of subcategories for biomass units based on the type of unit and the type of biomass combusted. We are concerned, however, that some of the emission standards are not appropriate, particularly for units in Maine that burn multiple fuels at the same time. Did the emissions data that was relied on to develop the proposed emission standards for these subcategories include testing or CEMS data from units that were combusting multiple fuels (e.g., coal, biomass, tire derived fuel, fuel oil, etc.) at the same time? If not, Maine DEP recommends that the EPA establish appropriate limits for these types of multi-fuel fired units.
Replacement of Dioxin/Furan emission standards with Work Practice Standards
Maine DEP supports the replacement of dioxin/furan emission standards with work practice standards. Maine DEP does not believe that dioxin/furan testing would be an effective regulatory approach to reduce dioxin/furan emissions from these units.
Startup/Shutdown Provisions and Definitions
While Maine DEP supports the incorporation of work practice standards in place of emission standards during startup and shutdown periods, Maine DEP disagrees with a 25% of load trigger for normal operating conditions. Startup conditions, particularly with biomass and multi-fuel units, can occur well beyond 25% of load up to more than 50% load. Maine DEP suggests that the EPA reconsider the 25% of load trigger taking into account how biomass units start up differently than liquid or gas fired units.
10-Day Rolling Average Time Period for Emission Standards
Existing units operating in Maine that currently utilize continuous emission monitoring systems to demonstrate compliance with licensed CO emission limits do so over 30-day rolling average time periods. Maine DEP recommends the EPA apply a 30-day averaging period consistent with averaging periods for nitrogen oxides (NOx) and SO2 in other EPA boiler rules.
Extended Deadline for Compliance and Performance of Initial Compliance Testing
Maine DEP supports the EPA's extension of the deadline for achieving compliance with the rule and for performing initial compliance testing to give affected sources an adequate amount of time to make any necessary changes.
110% Steam Load Operating Limit
Maine DEP strongly objects to the inclusion of a steam load limit of 110% of the average steam load attained during the last performance test. The rule requires testing using a worst case mix of fuels. However, a worst case fuel mix will not allow biomass and multi-fuel boilers to operate at high steam loads. The rule would effectively prohibit many boilers from operating at even normal steam loads.
Percent O2 Correction Factor
The proposed rule uses a 3% O2 correction factor for CO emission standards. This correction factor is appropriate for liquid fuel and gaseous fired units, but biomass and multi-fuel fired boilers typically operate with flue gas O2 levels at 6% to 8%. Maine DEP recommends applying an O2 correction factor of 7% for the CO emission standards associated with all solid fuel units as the EPA had established in the original Major Source Boiler MACT published on September 13, 2004 (69 FR 55228):
      "The final rule provides revisions to the CO work practice emission levels. For new sources in the solid fuel subcategory, the work practice standard has been written to be corrected to 7 percent oxygen rather than 3 percent. Units in the gaseous and liquid fuel subcategories still have to correct to 3 percent oxygen."
Units burning only coal may be able to operate at 3% O2, but any biomass unit will not operate close to 3% O2 even when firing auxiliary fossil fuel.
Hot Water Heater/Residential Boiler Exemptions
While Maine DEP supports exempting small units from the Major Source Boiler MACT, we recommend combining and simplifying the definitions of hot water heater and residential boiler to further clarify which units will be exempt from the rule. The EPA should apply a heat input capacity threshold and remove the ambiguous language in the definition. Maine DEP also recommends that the exemption apply to all units under a certain size regardless of the type of fuel that is fired in the unit (i.e., gaseous, liquid, and solid fuel fired under a certain capacity should be exempt).
Health Based Compliance Alternative and TSM Alternative to PM Emission Limit
Maine DEP supports the proposed alternative of a TSM emission standard to the PM emission standard, and we believe this alternative should be provided to both liquid fuels and solid fuels. However, we believe that the EPA's proposed standards for HCl exceed the levels necessary to protect public health and will create an unnecessary compliance burden for affected units. We recommend that the EPA apply the provisions of CAA §112(d)(4) to the extent possible to establish a more appropriate scheme for HC1 emission reductions.
5-Year Tune-up Requirement for Units <5 MMBtu/hr
Maine DEP supports the extended time allowed between tune-ups for gas and light liquid-fired units that are <5 MMBtu/hr.
30-Day Allowance for Required CO Adjustments
Maine DEP supports the EPA's proposed 30-day allowance for completing any required CO adjustments to a unit following completion of a tune-up in order to allow sufficient time for multiple adjustments and optimization of CO emissions to occur.
Removal of PM CPMS Requirement for Biomass Units
Maine DEP supports the EPA's removal of the requirement to install a PM continuous parameter monitoring system (CPMS) on biomass fired units.
Monitoring Location for CO and Other CEMS
The proposed rule specifies in 40 CFR 63.7525(a)(1) that if a CO CEMS is used, the CO level shall be monitored at the outlet of the boiler or process heater. CO CEMS operating in Maine do not collect flue gas samples at the outlet of a boiler, but either in the ductwork connecting the last piece of control equipment to the exhaust stack or in the exhaust stack, itself. The location where the flue gas sample is taken should not matter so long as the flue gas sample monitored by the diluent monitoring system (O2 or CO) is taken from the same place. Maine DEP recommends that the EPA revise any language in the proposed rule regarding the location where the monitoring takes place to allow for any location that meets the performance specification for the particular monitoring system.
Effects of Minimizing CO Emissions on NOx Emissions
Maine DEP is concerned that efforts to minimize CO emissions to comply with the rule will have the effect of causing increases in NOx emissions. Maine DEP has focused much attention on reducing NOx emissions from these same units, through the use of good combustion practices or add-on control technology to reduce ground level ozone levels. We do not want to see these efforts undermined due to the inverse relationship between CO and NOx emissions, particularly where no add-on control equipment is utilized to control NOx emissions from these units.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: Paul J. Allen
Commenter Affiliation: Constellation Energy
Document Control Number: EPA-HQ-OAR-2006-0790-2477-A2
Comment Excerpt Number: 1
Comment: Constellation supports the proposed PM numeric emission limits for Fluidized Bed Units designed to burn biomass/bio based solids.
Constellation appreciates that the EPA has decided not to require PM CEMS for biomass boiler units due to their lack of reliability and due to the high potential for variation in recorded values. Performance stack testing for PM is appropriate for demonstration of compliance. Furthermore, we support the EPA's alternate numerical PM limits in case a facility prefers to demonstrate compliance by conducting analyses for TSM in biomass fuels.
Constellation concurs with the CO numeric emission limits for Fluidized Bed Units designed to burn biomass/bio based solids.
A choice of either CO CEMS or stack testing for biomass boiler units to demonstrate compliance provides necessary flexibility for plants to assure compliance in the most cost-effective manner.
Constellation agrees with the EPA's decision not to impose numerical limits on HCI and Hg emissions from Fluidized Bed Units designed to burn biomass/bio based solids.
This decision allows for reasonable, practical and economical compliance for biomass fluidized bed boiler facilities. It strikes an excellent balance for industry that is protective of the environment.
Constellation supports using "Work Practice Standards" for controlling dioxin/furan emissions in lieu of numerical emission limits for Fluidized Bed Units designed to burn biomass/bio-based solids.
Constellation Energy supports the use of work practice standards in lieu of numerical emission limits. Incorporating the specific requirements stipulated in the rule as part of annual boiler outage maintenance / tune-up programs will yield positive environmental benefits.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: Samuel Denisco
Commenter Affiliation: Pennsylvania Chamber of Business and Industry
Document Control Number: EPA-HQ-OAR-2006-0790-2478-A2
Comment Excerpt Number: 1
Comment: Compliance timetables and non-enforcement of violations of the March 2011 rules should be clarified in light of the vacated stay.
The recently vacated stay of the effective date for the initial final Major Source ICI Boiler Rule and CISWI Rule has introduced much uncertainty for businesses that are now faced with compliance deadlines, some already past, which cannot be met. In the revised final rule, the EPA should clarify that compliance timetables will be based on the effective date established by the re-promulgated final rules, rather than the initial March 2011 promulgation date, meaning compliance deadlines will fall in 2015 (assuming a 2012 re-promulgation effective date) instead of 2014. Furthermore, as already indicated in the February 7, 2012 "no action" memo from Gina McCarthy at the EPA, the revised final rule should reaffirm that technical violations of the March 2011 regulations will not be subject to enforcement.

Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: William O'Sullivan
Commenter Affiliation: New Jersey Department of Environmental Protection (NJDEP)
Document Control Number: EPA-HQ-OAR-2006-0790-2479-A2
Comment Excerpt Number: 1
Comment: We support separate categories for heavy fuel oil and light fuel oil for boilers and process heaters.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: William O'Sullivan
Commenter Affiliation: New Jersey Department of Environmental Protection (NJDEP)
Document Control Number: EPA-HQ-OAR-2006-0790-2479-A2
Comment Excerpt Number: 3
Comment: The proposed rules for oil-fired boilers require annual stack tests to determine compliance with the PM, CO, HCl, and Hg emission limits. This testing schedule is appropriate for heavy oil. We recommend less frequent testing for boilers combusting light fuel oil. Where the sulfur requirement is 15 ppm, light oil can be treated the same as natural gas, which has about the same sulfur content. NJ does not require particulate stack testing for boilers less than 50 MMBtu/hr firing distillate fuel oil. For larger gas and light oil boilers, testing is required every 5 years.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: James Pew
Commenter Affiliation: Earthjustice, Clean Air Council, Partnership for Policy Integrity
Document Control Number: EPA-HQ-OAR-2006-0790-2480; 2480-A2
Comment Excerpt Number: 8
Comment: The 10% rule for classification as biomass is arbitrary.
The EPA has decided to designate any major source that burns at least 10% biomass as a biomass burner (pages 80601 and 80655 of the Major Source Boiler Rule). This means that a facility burning 90% coal and 10% biomass would be held to the less rigorous PM emission standard for biomass than for coal. This is arbitrary. At a minimum, the rule should make basic sense. This does not pass that test. [See submittal for a table comparing EPA's emission tests for coal, wet and dry biomass.]
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: James Pew
Commenter Affiliation: Earthjustice, Clean Air Council, Partnership for Policy Integrity
Document Control Number: EPA-HQ-OAR-2006-0790-2480; 2480-A2
Comment Excerpt Number: 9
Comment: Sub-classifications do not correspond to the population of burners now being permitted. The EPA has designated still more sub-classifications of biomass boiler type than it had before. Our permit database indicates that new boilers now being permitted around the country do not fall under the categories of biomass boiler that the EPA designates. Almost all are either stokers or fluidized bed boilers. We have never seen a permit for a new "dutch oven" or "biomass fuel cell". The EPA's ever-growing number of categories corresponds to a shrinking population of burners in each category, rendering the MACT floors meaningless. The floors set in sub-classifications do not reflect generally achievable rates, as illustrated above.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: James Pew
Commenter Affiliation: Earthjustice, Clean Air Council, Partnership for Policy Integrity
Document Control Number: EPA-HQ-OAR-2006-0790-2480; 2480-A2
Comment Excerpt Number: 10
Comment: Classifying boilers by fuel is arbitrary and does not correspond to real-world permitting.
In our review of biomass facility permits from around the country, we have never seen fuel moisture taken into consideration when setting emission limits at facilities. The EPA states that one reason for subcategorization is its decision to treat PM as a "combustion-based pollutant". Page 80607 states:
      Differences in PM particle size, applicability of air- pollution controls to units combusting various fuels, and the lack of demonstration of certain control technologies on certain designs of boilers (e.g., fabric filters are not used on any hybrid suspension grate boilers) suggest that PM is more appropriately classified as a combustion-based pollutant. Therefore, the EPA is now proposing separate PM limits for each ``combustion-based'' subcategory.
However, this does not correspond to real-world permitting. It should make no difference if a baghouse is demonstrated, an ESP can do about as well as a baghouse. The EPA's proposed PM limit for suspension based boilers is 0.05 lb/MMBtu, much higher than is achievable with an ESP. The limit should be lower.

Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: John V. Corra
Commenter Affiliation: Wyoming Department of Environmental Quality (Wyoming DEQ)
Document Control Number: EPA-HQ-OAR-2006-0790-2420-A1
Comment Excerpt Number: 8
Comment: The EPA should afford companies the option of using the results of a representative fuel analysis from another similar affected facility to demonstrate that the fuel qualifies as "other gas 1" fuel in accordance with §63.7521, and other applicable subparts. Similar to relying on the fuel provider to demonstrate fuel quality, if a company can demonstrate that the fuel used at a second facility is comparable to that of previously analyzed fuel at a first affected facility, then the company should not have to test the fuel at the second facility. Implementing this practice could reduce testing requirements, while maintaining the regulatory intent for companies to address fuel quality.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: Stuart A. Clark
Commenter Affiliation: State of Washington Department of Ecology
Document Control Number: EPA-HQ-OAR-2006-0790-2481-A2
Comment Excerpt Number: 1
Comment: We are pleased that the EPA segregated biomass boilers by design type under the Major Source Boiler Rule. This segregation better reflects the capabilities of the various boiler designs. The clear separation of biomass from coal units has provided particulate emission limits that better reflect the capabilities of units burning coal and biomass.
We support the EPA's decision to not establish numerical emission limits for dioxin/furan emissions from major source biomass boilers, since all emissions reports are at or below the detection limit for the test method. We also support the EPA's recognition that good combustion practices and boiler design are a reasonable way to control for PM, CO, and dioxin.
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: Stuart A. Clark
Commenter Affiliation: State of Washington Department of Ecology
Document Control Number: EPA-HQ-OAR-2006-0790-2481-A2
Comment Excerpt Number: 4
Comment: We are disappointed that the EPA did not harmonize the CISWI and Major Source Boiler MACT requirements as they apply to units that may operate periodically as part of its final rule.
Washington State appreciates the complexity involved in establishing NESHAP standards over the varied range of source types and sizes addressed by these proposed rules. The EPA's efforts to gather additional data, carefully consider that data and public comments is apparent. These efforts have resulted in a set of rules that reduce the burden on industry, clarify and streamline the rules to facilitate smoother implementation and still maintain public health protection.
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Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.

Commenter Name: Janice Nolen
Commenter Affiliation: American Lung Association
Document Control Number: EPA-HQ-OAR-2006-0790-2471-A2
Comment Excerpt Number: 5
Comment: The removal of emissions limits for dioxins and furans is especially troubling. Contrary to the EPA's claim, dioxin emissions can be measured and are being measured. But even if dioxins could not be accurately measured using the required test measurement, the EPA should set design or equipment requirements to accomplish the task, as is authorized in the same list as work practice standards in CAA §112(h). The EPA should not simply default to "an annual tune up" (EPA, 2011d).
Response: This comment pertains to the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment will be provided there.
Commenter Name: John V. Corra
Commenter Affiliation: Wyoming Department of Environmental Quality (Wyoming DEQ)
Document Control Number: EPA-HQ-OAR-2006-0790-2420-A1
Comment Excerpt Number: 3
Comment: It is stated in §63.7515(g) that performance tests shall be submitted within 90 days.
The State requests clarification on whether that submission should follow the general provision requirements for a "notification of compliance status" or whether it is considered a "report".
Response: The rule section referenced by the commenter (i.e., §63.7515(g)) regards the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment with regard to that rulemaking will be provided there. With regard to the Area Source Boiler rulemaking, §63.11225(a)(4) specifies the timing for submittal of the Notification of Compliance Status (NOCS), the information and certifications required as part of the NOCS, and the NOCS submission requirements.
Commenter Name: John V. Corra
Commenter Affiliation: Wyoming Department of Environmental Quality (Wyoming DEQ)
Document Control Number: EPA-HQ-OAR-2006-0790-2420-A1
Comment Excerpt Number: 4
Comment: Also, §63.7530(h) requires a statement that good combustion practices were used and O2 concentrations were maintained for each startup and shutdown event, as part of the NOCS.  Clarification is needed regarding whether or not this is a one- time report required under the initial NOCS, or whether the report should be submitted on a regularly scheduled basis.
Response: The rule section referenced by the commenter (i.e., §63.7530(h)) regards the Major Source Boiler rulemaking. Provided the commenter has submitted this comment to the Major Source Boiler rulemaking docket (EPA-HQ-OAR-2002-0058), the response to this comment with regard to that rulemaking will be provided there. With regard to the Area Source Boiler rulemaking, §63.11225(b) specifies the timing for submittal of the annual compliance certification report and the information and certifications required as part of the report. As part of the annual compliance certification report for boilers subject to emission limits, the Area Source Boiler Rule requires certification that the facility complies with the requirement to minimize the boiler's time spent during startup and shutdown and to conduct startups and shutdowns according to the manufacturer's recommended procedures or procedures specified for a boiler of similar design if manufacturer's recommended procedures are not available. The Area Source Boiler Rule does not require certification that good combustion practices were used and O2 concentrations were maintained for each startup and shutdown event, as part of the NOCS or the annual compliance certification report.
Legal/Applicability Issues: Exemption for temporary boilers
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 33
Comment: The CAA provisions regarding definition of source categories provides the EPA ample legal authority to exempt temporary boilers from coverage under Subpart JJJJJJ. (76 FR 80535.) For the reasons stated below, which the EPA acknowledges, it is a reasonable exercise of discretion. Because temporary boilers do not meet the CAA §112(c)(3) threshold area source listing criteria, the EPA lacks authority to regulate these sources under this rule. The EPA is otherwise justified in exempting temporary boilers because as the EPA notes, they are insignificant sources of emissions and were not included in the EPA's analysis of the source category. Given that these units are not permanent fixed units and are typically not fully integrated with site control systems, it would be impractical to require compliance under the Area Source Boiler Rule. Furthermore, temporary boilers are generally owned and operated by rental companies, not facilities regulated under the CAA, and boilers that are small tend to have lower hourly emissions rates.
Response: The EPA thanks the commenter for their support and additional justification. However, we wish to clarify that temporary boilers are not boilers that are part of the source category and exempted from coverage. Rather, the exclusion promulgated today simply clarifies that the scope of the category did not include temporary boilers and therefore such boilers should never have been considered as subject to this rule.
Commenter Name: Timothy Serie
Commenter Affiliation: American Coatings Association (ACA)
Document Control Number: EPA-HQ-OAR-2006-0790-2437-A1
Comment Excerpt Number: 1
Comment:  ACA generally supports the following proposed changes in the Area Source Boiler Rule:
1. Proposal to exempt temporary boilers
Response: Response: The EPA thanks the commenter for their support. However, we wish to clarify that temporary boilers are not boilers that are part of the source category and exempted from coverage. Rather, the exclusion promulgated today simply clarifies that the scope of the category did not include temporary boilers and therefore such boilers should never have been considered as subject to this rule.
Commenter Name: Paul Noe
Commenter Affiliation: American Forest & Paper Association (AF&PA) et al.
Document Control Number: EPA-HQ-OAR-2006-0790-2426-A1
Comment Excerpt Number: 12
Comment:  We agree that an exemption is warranted for temporary boilers, as the EPA does not need these units to satisfy the requirement to regulate emissions from at least 90% of the area source emissions of Hg and polycyclic organic matter (POM). Our members periodically use portable/transportable boilers to supply/supplement other site steam supplies. These boilers, which are typically rented and used on a temporary basis, are portable shop-fabricated package design units. They are typically used when an existing onsite boiler is out of service for a period of time for maintenance. Because temporary boilers are used on a limited time basis, portable units are typically not fully integrated with site control systems.
Response: The EPA thanks the commenter for their support. However, we wish to clarify that temporary boilers are not boilers that are part of the source category and exempted from coverage. Rather, the exclusion promulgated today simply clarifies that the scope of the category did not include temporary boilers and therefore such boilers should never have been considered as subject to this rule.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 2
Comment: ACC supports the EPA's decision to exempt temporary boilers from the requirements of this Area Source Boiler Rule. The EPA properly exempted these units from the requirements of the final Major Source Boiler Rule.[4] The EPA defines a temporary boiler as follows:
     ...any gaseous or liquid fuel boiler that is designed to, and is capable of, being carried or moved from one location to another by means of, for example, wheels, skids, carrying handles, dollies, trailers, or platforms. A boiler is not a temporary boiler if any one of the following conditions exists:
          (1) The equipment is attached to a foundation.
          (2) The boiler or a replacement remains at a location for more than 12 consecutive months. Any temporary boiler that replaces a temporary boiler at a location and performs the same or similar function will be included in calculating the consecutive time period.
          (3) The equipment is located at a seasonal facility and operates during the full annual operating period of the seasonal facility, remains at the facility for at least 2 years, and operates at that facility for at least 3 months each year.
          (4) The equipment is moved from one location to another in an attempt to circumvent the residence time requirements of this definition. (76 Fed. Reg. 80548)
ACC member companies periodically use portable/transportable boilers to supply and/or supplement existing site steam supplies. These boilers, which are typically rented and used on a temporary basis, are portable shop-fabricated package design units. They are typically used when an existing onsite boiler is out of service for a period of time for maintenance, or if needed during emergencies. Because temporary boilers are used on a limited time basis, portable units are typically not fully integrated with site control systems.
Most portable/transportable boilers are owned by a rental company, not the stationary source. Rented boilers may or may not be operated by the facility owner/operator. These temporary boilers will typically only fire gas or liquid fossil fuels (natural gas or distillate oil) and may have hourly emission rates lower than that for the boiler(s) they are temporarily replacing, based on either the boiler size or fuel fired. In addition, these units often do not have exhaust stacks that meet EPA Method 1 requirements for application of test methods.
From a technical standpoint, since portable/transportable boilers are used temporarily, ACC believes that it is not necessary or practical to apply the area source rule requirements for permanent fixed boilers to these boilers. In addition, the EPA did not consider HAP emissions data from these units in establishing the area source standards and therefore should not make the requirements applicable to these units. ACC therefore supports the EPA's proposal to exclude temporary boilers from the industrial boiler area source category.
[4] See Section 63.7491(j), 76 FR 15665, March 21, 2011.
Response: The EPA thanks the commenter for their support and additional justification. However, we wish to clarify that temporary boilers are not boilers that are part of the source category and exempted from coverage. Rather, the exclusion promulgated today simply clarifies that the scope of the category did not include temporary boilers and therefore such boilers should never have been considered as subject to this rule.
Commenter Name: Robert R. Perry
Commenter Affiliation: FirstEnergy Generation Corp. (FGCO)
Document Control Number: EPA-HQ-OAR-2006-0790-2445-A1
Comment Excerpt Number: 1
Comment: FGCO supports the EPA's proposed exemption for temporary boilers. We agree with the EPA that the emissions from these small units are insignificant and do not warrant regulation. There is no need to further burden the permitting process by including these small sources.
Response: The EPA thanks the commenter for their support. However, we wish to clarify that temporary boilers are not boilers that are part of the source category and exempted from coverage. Rather, the exclusion promulgated today simply clarifies that the scope of the category did not include temporary boilers and therefore such boilers should never have been considered as subject to this rule.
Commenter Name: Michael L. Krancer
Commenter Affiliation: Pennsylvania Department of Environmental Protection (PA DEP)
Document Control Number: EPA-HQ-OAR-2006-0790-2449-A1
Comment Excerpt Number: 3
Comment: PA DEP agrees that an exemption should be provided for "temporary boilers" and concurs with the EPA's proposed definition of the term.
Response: The EPA thanks the commenter for their support. However, we wish to clarify that temporary boilers are not boilers that are part of the source category and exempted from coverage. Rather, the exclusion promulgated today simply clarifies that the scope of the category did not include temporary boilers and therefore such boilers should never have been considered as subject to this rule.
Commenter Name: Barbara Schulze
Commenter Affiliation: Merck & Co., Inc.
Document Control Number: EPA-HQ-OAR-2006-0790-2460-A2
Comment Excerpt Number: 1
Comment: Merck supports the EPA's proposal to exempt temporary boilers from 40 CFR 63 Subpart JJJJJJ.
These boilers are generally owned by a third party and therefore the facility owner has limited ability to impact the design of the boiler; only the on-site operation of the boiler is under the control of the facility owner. In addition, these boilers are generally on-site for short periods of time and therefore any work practice requirements would be difficult, if not impossible to manage.
In addition to the reasons put forth by the EPA, subjecting these boilers to Subpart JJJJJJ could be a potential impediment to their use by facilities. This impediment could in turn lead to postponement of maintenance work that would otherwise result in improved operation of the facility's permanent boilers and therefore lower environmental impact. Therefore, we support the EPA's proposal to exempt temporary boilers from Subpart JJJJJJ.
Response: The EPA thanks the commenter for their support and additional justification. However, we wish to clarify that temporary boilers are not boilers that are part of the source category and exempted from coverage. Rather, the exclusion promulgated today simply clarifies that the scope of the category did not include temporary boilers and therefore such boilers should never have been considered as subject to this rule.
Commenter Name: Kate Williams
Commenter Affiliation: Alaska Oil and Gas Association (AOGA)
Document Control Number: EPA-HQ-OAR-2006-0790-2466-A1
Comment Excerpt Number: 1
Comment: AOGA supports the exemption for temporary boilers added under §63.11195(h) for the reasons stated in Section IV. B. of the proposed rule preamble: temporary boilers are small (i.e. less than 10 MMBtu/hr heat input); units are generally owned and operated by contractors, rather than the facility, and as a result are not included in the facility's operating permits; and compliance with the work practice requirements would be impracticable because the units are typically located on site for less than one year. Importantly, temporary boilers have historically been considered insignificant sources and are not included in the EPA's analysis of the source category.
Response: The EPA thanks the commenter for their support and additional justification. However, we wish to clarify that temporary boilers are not boilers that are part of the source category and exempted from coverage. Rather, the exclusion promulgated today simply clarifies that the scope of the category did not include temporary boilers and therefore such boilers should never have been considered as subject to this rule.
Commenter Name: Pamela Lacey
Commenter Affiliation: American Gas Association (AGA)
Document Control Number: EPA-HQ-OAR-2006-0790-2468-A2
Comment Excerpt Number: 3
Comment: On reconsideration, the EPA is proposing to add "temporary boilers" to the list of excluded boilers in §63.11195. We have no objection to this addition.
Response: The EPA thanks the commenter for their support.
Commenter Name: Russell A. Wozniak
Commenter Affiliation: Dow Chemical Company
Document Control Number: EPA-HQ-OAR-2006-0790-2423-A1
Comment Excerpt Number: 1
Comment: Dow supports the EPA's decision to add an exemption for temporary boilers in the Area Source Boiler Rule as most portable/transportable boilers are owned by a rental company, not the stationary source and certain work practice requirements likely would be complicated to execute.
Response: The EPA thanks the commenter for their support and additional justification. However, we wish to clarify that temporary boilers are not boilers that are part of the source category and exempted from coverage. Rather, the exclusion promulgated today simply clarifies that the scope of the category did not include temporary boilers and therefore such boilers should never have been considered as subject to this rule.
Commenter Name: Barry Christensen
Commenter Affiliation: Occidental Chemical Corporation (OCC)
Document Control Number: EPA-HQ-OAR-2006-0790-2435-A1
Comment Excerpt Number: 11
Comment: OCC supports the proposed exemption for temporary boilers.
If one of the primary boilers at a site becomes non-operational, it is important to be able to operate the facility while replacement equipment is ordered and permitted. Given the time required to secure some air permits, an allowance should be added to extend the 12-month period by additional 6 month increments, as needed.
Response: The EPA agrees with the commenter that there may be circumstances that would necessitate a period longer than 12 months for a temporary boiler. The revised definition of temporary boiler includes the flexibility of an extension of the 12-month period provided the regulatory agency approves the extension.
Commenter Name: Arthur Marin
Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM)
Document Control Number: EPA-HQ-OAR-2006-0790-2454-A1
Comment Excerpt Number: 11
Comment: NESCAUM agrees that temporary boilers should be exempted from both the Major and Area Source Boiler Rules. Subjecting these units to strict requirements beyond management practices is impractical. NESCAUM supports the establishment of a 12-month threshold, above which a unit may no longer be considered temporary. Many commercial buildings that use temporary boilers during construction, however, require more than 12 months to complete construction, and as such, NESCAUM recommends that the EPA amend the definition of temporary boilers to allow owners or operators of a facility to petition for an extension. NESCAUM believes this process is needed to allow proper flexibility within the rule so as not to require stringent controls on units that are temporary. NESCAUM specifically recommends that the second condition in the definition of a temporary boiler be changed as follows:
      (2) The boiler or a replacement remains at a location for more than 12 consecutive months, unless the regulating agency approves an extension. An extension may be granted by the regulating agency upon petition by the owner or operator of a unit specifying the basis for such a request. Any temporary boiler that replaces a temporary boiler at a location and performs the same or similar function will be included in calculating the consecutive time period.
Response: See the response to EPA-HQ-OAR-2006-0790-2435-A1, excerpt 11.
Commenter Name: Renee Lesjak Bashel
Commenter Affiliation: National Steering Committee, Small Business Ombudsman and Small Business Environmental Assistance Programs (SBO/SBEAP)
Document Control Number: EPA-HQ-OAR-2006-0790-2459-A2
Comment Excerpt Number: 4
Comment: We believe the definition of a temporary boiler should be changed. The current definition arbitrarily prevents boilers at many construction sites that would otherwise qualify for the exemption from utilizing it. These temporary boilers would still be considered insignificant sources and would still emit the same amount annually if the definition allowed 24 months instead of 12.
Response: See the response to EPA-HQ-OAR-2006-0790-2435-A1, excerpt 11.
Commenter Name: Kate Williams
Commenter Affiliation: Alaska Oil and Gas Association (AOGA)
Document Control Number: EPA-HQ-OAR-2006-0790-2466-A1
Comment Excerpt Number: 2
Comment: The final Major Source Rule for boilers excludes temporary boilers from the source category so including the exemption in the area source rule helps ensure consistent regulation.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Marilyn Crocket
Commenter Affiliation: Alaska Oil and Gas Association (AOGA)
Document Control Number: EPA-HQ-OAR-2006-0790-2466-A2
Comment Excerpt Number: 6
Comment: Section 63.7491(j) of the Major Source Boiler Rule excludes "temporary boilers" as defined in §63.7575. AOGA believes this exemption is appropriate for both the Major Source and Area Source Boiler Rules.
Response: The EPA thanks the commenter for their support.
Commenter Name: Neil Gormley
Commenter Affiliation: Earthjustice et al.
Document Control Number: EPA-HQ-OAR-2006-0790-2473-A2
Comment Excerpt Number: 7
Comment: The EPA proposes to create a category of "temporary boilers" exempt from standards. Regardless of whether the EPA could lawfully set separate standards for temporary boilers, the Agency lacks authority to exempt them from emission standards. Further, the temporary boilers subcategory is unlawful. Although the EPA may distinguish between different classes, types, and sizes of source in setting standards under CAA §112(d), 42 U.S.C. §7412(d)(1), the Agency may not distinguish on other bases. Further, when the Agency does set separate standards for different sources in a category, the Agency must offer a reasoned justification for the subcategories it has chosen. See, e.g., Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 947-950 (D.C. Cir. 2004) (remanding a decision to subcategorize in setting MACT standards because the Agency had not properly justified its subcategorization scheme). "Temporary boilers" differ from other boilers only in that they are moved from location to location. The EPA has not explained why this is a distinction that justifies differential treatment, let alone an exemption. Even if applying controls to these boilers would be somewhat more burdensome or costly -- which the EPA has not shown -- a small additional burden on source owners and operators cannot justify an exemption from standards. The EPA says only that mobile sources have "been considered insignificant" in the past and have not been analyzed. Neither consideration is relevant to whether the EPA has an obligation -- in this rule -- to set standards for these boilers. In addition, this exemption would violate CAA §112(c)(6), because the EPA has not adhered to the procedures of CAA §112(c)(9) in removing these boilers from the list.
Response: The EPA has not created a category or subcategory of "temporary boilers" and then exempted them from standards. Similar to residential boilers, we did not intend to regulate temporary boilers under the area source standards because they are not part of either the area source industrial boiler source category or the area source commercial/institutional boiler source category. By their nature of being temporary, these boilers operate in place of another non-temporary boiler while that boiler is being constructed, replaced or repaired, in which case we counted the non-temporary boiler as one being regulated. Accordingly, we amended 40 CFR 63.11195 by adding temporary boilers to the list of boilers not subject to Subpart JJJJJJ.
While the term "exemption" is used in the section heading of the proposal (76 FR at 80535), neither the preamble discussion which follows, nor the proposed regulatory text, says that boilers that are otherwise subject to the rule (or in the source category) are exempt by this provision. In the proposed rule, temporary boilers are consistently described as being excluded from the category and as not being part of the EPA's analysis of the source category when we contemplated regulating area source boilers. We reviewed the CAA sections 112(c)(6) and 112(k) inventories and note that neither inventory included temporary boilers as part of the source category. As such, temporary boilers were never part of the listed area source category.  The delisting provisions of section 112(c)(9) therefore do not apply to this situation.
The EPA is simply clarifying the scope of the listed source category to make it clearer that those types of boilers the agency had never intended to include in the category in fact have not been included. Given the number of affected boilers in the source category and variety of sources using combustion devices to generate steam or heat, such scope clarifications that originally non-included types of boilers remain non-included are reasonable and do not constitute delistings, as these boilers were never part of the listed source category.
Both the subcategory case law and the delisting case law cited by the commenter are inapposite for temporary boilers that were not part of the listed source category.  Specifically, as to subcategorization, the commenter asserts that EPA's discretion to establish categories or subcategories is limited. The commenter misses the mark, however, because our subcategorization decisions focus on sources that are part of the listed source category, and temporary boilers are not a part of that category. Similarly, the Agency is not delisting a source category as the comments suggest.  Rather, temporary boilers are not part of the listed source category and for that reason, the Agency has not set standards for those boilers, but rather has clarified that the units are not subject to this rule.
Finally, the Agency has determined that it has met the requirements of section 112(c)(6) and 112(c)(3).  (See memoranda "Emission Standards for Meeting the Ninety Percent Requirement Under Section 112(c)(6) of the Clean Air Act," EPA-HQ-OAR-2006-0790-2312, and "Emission Standards for Meeting the 90 Percent Requirement Under Section 112(c)(3) and Section 112(k)(3)(B) of the Clean Air Act," EPA-HQ-OAR-2006-0790-2315.) The commenter has not presented any information to suggest that adding temporary boilers to the area source boilers source category is needed to meet the requirements of CAA section 112(c)(6).
Commenter Name: Samuel Denisco
Commenter Affiliation: Pennsylvania Chamber of Business and Industry
Document Control Number: EPA-HQ-OAR-2006-0790-2478-A2
Comment Excerpt Number: 4
Comment: The EPA proposes to exempt temporary boilers, as was done in the final rule for major sources. We agree that temporary boilers should be exempted from both rules if they are to be exempted from any. However, we believe that the definition of temporary boilers should include emergency use boilers or safety related boilers. Such consideration has been provided for other MACT source categories as Internal Combustion (IC) engines.
Response: In the definition of "temporary boiler" in this final rule, the EPA is not including emergency use boilers or safety related boilers. We do not believe that emergency use boilers or safety related boilers in many instances would meet our intent with regard to excluding temporary boilers from Subpart JJJJJJ (e.g., must be a gaseous or liquid fuel boiler that is designed to, and is capable of, being carried or moved from one location to another; must not remain at a location and perform the same or similar function for more than 12 consecutive months). The final rule, however, prescribes work/management practice standards for new small (less than 10 MMBtu/hr heat input) boilers and most existing boilers. Specifically, new small coal-fired, oil-fired, and biomass-fired boilers are subject to only tune-up requirements. Existing small coal-fired boilers and all existing oil-fired and biomass-fired boilers also are subject to only tune-up requirements. We believe that these tune-up requirements would apply to most emergency use boilers or safety related boilers.
Commenter Name: Samuel Denisco
Commenter Affiliation: Pennsylvania Chamber of Business and Industry
Document Control Number: EPA-HQ-OAR-2006-0790-2478-A2
Comment Excerpt Number: 5
Comment: The EPA should clarify whether "temporary" boilers means use for start-up as well as back-up purposes.
Response: The definition of temporary boiler does not specify the intended or actual purpose of the temporary use. The exclusion for temporary boilers is included in this standard because they are typically small (less than 10 MMBtu/hr heat input), and have been historically classified as insignificant sources. Because they are typically located on site for less than a year, compliance with the work practice requirements would not be feasible.
Commenter Name: Matthew Todd
Commenter Affiliation: American Fuel & Petrochemical Manufacturers (AFPM) and the American Petroleum Institute (API)
Document Control Number: EPA-HQ-OAR-2006-0790-2482-A2
Comment Excerpt Number: 1
Comment: Paragraph (2) of the "temporary boiler" definition excludes a boiler or a replacement that "remains at a location for more than 12 consecutive months." And further specifies that "Any temporary boiler that replaces a temporary boiler at a location and performs the same or similar function will be included in calculating the consecutive time period."
The second sentence language creates a problem because there is no time period associated with the replacement. It is not unusual for a temporary boiler to be used for short periods during turnarounds or other maintenance activities that recur several years apart. Under the proposal, these boilers would not be considered temporary, because each boiler replaces the previous one and performs the same function, even though there is a multi-year gap between the occurrences. We believe that replacements that occur after a gap of at least one year should not be considered consecutive for the purposes of this definition and the language of paragraph (2) should be revised to reflect that situation.
Response: We agree with the commenter and are amending numbered paragraph (2) in the definition of "temporary boiler" such that it specifies that "Any temporary boiler that replaces a temporary boiler at a location within the facility and performs the same or similar function will be included in calculating the consecutive time period unless there is a gap in operation of 12 months or more."
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Commenter Name: Marilyn Crocket
Commenter Affiliation: Alaska Oil and Gas Association (AOGA)
Document Control Number: EPA-HQ-OAR-2006-0790-2466-A2
Comment Excerpt Number: 7
Comment: Compounding the problem, small boilers (typically temporary/portable units) are not currently included in stationary source Title V operating permits because such units have historically been classified as insignificant under Part 70/71. However, in the Area Source Boiler Rule, the EPA has not included a de minimis threshold for the applicability of work practice standards (or an exemption for temporary/portable units), and these small boilers, regardless of size, must now be included in operating permits because Title V rules do not allow emission units that are subject to a federal requirement but that are otherwise insignificant to be omitted from permits.
The work practice standards and monitoring, recordkeeping and reporting (MRR) timelines required by Subpart JJJJJJ simply do not contemplate the possibility that the affected source is temporary, raising several issues that we do not believe the EPA adequately considered during the development of the rule. How will stationary source owner/operators certify compliance with Subpart JJJJJJ requirements that apply on a unit-by-unit basis, to each individual temporary/portable boiler that is brought to, operated at, and subsequently removed from the stationary source? How will stationary source owners conduct biannual work practice requirements on portable/temporary boilers that may have been located at the source when the operating permit was issued (or the permit application filed), are therefore listed in the permit, but were subsequently removed, or replaced? How will the required records be maintained on each individual subpart JJJJJJ affected source when it is permitted at multiple stationary sources?
Based upon these complexities, AOGA does not believe that Title V operating permits are an appropriate way to address Subpart JJJJJJ compliance for small temporary/portable boilers that are not permanently located at a stationary source. We envision a very high risk of noncompliance and a burdensome paperwork exercise that provides no environmental benefit.
An exemption for such units would largely eliminate these concerns.
Response: In our final action on the reconsideration petitions, we adopt the temporary boiler exclusion called for by the commenter and maintain the exemption from Title V permitting as promulgated in the final rule.
Legal/Applicability Rationale: Standards for biomass-fired boilers
Commenter Name: Philip E. Lewis
Commenter Affiliation: Grayling Generating Station
Document Control Number: EPA-HQ-OAR-2006-0790-2484-A1
Comment Excerpt Number: 1
Comment: We strongly support the EPA's approach in using Generally Available Control Technology (GACT) for PM and CO from biomass-fired boilers in the National Emission Standards for Hazardous Air Pollutants for Area Sources: Commercial, Industrial and Institutional Boilers. This is consistent with our comments submitted previously on this rule. The rule as written will assure reduced emissions of HAP from biomass-fired boilers in a cost-efficient and enforceable manner by the use of work practice standards which ensure good combustion conditions.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Gary Melow, Director
Commenter Affiliation: Michigan Biomass
Document Control Number: EPA-HQ-OAR-2006-0790-2429-A1
Comment Excerpt Number: 1
Comment: We strongly support the EPA's approach in using GACT for PM and CO from biomass-fired boilers in the National Emission Standards for Hazardous Air Pollutants for Area Sources: Commercial, Industrial and Institutional Boilers. This is consistent with our comments submitted previously on this rule. The rule as written will assure reduced emissions of HAP from biomass fired boilers in a cost-efficient and enforceable manner by the use of work practice standards which ensure good combustion conditions.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Lorraine Gershman
Commenter Affiliation: American Chemistry Council (ACC)
Document Control Number: EPA-HQ-OAR-2006-0790-2444-A1
Comment Excerpt Number: 34
Comment: ACC supports the EPA's rationale to regulate biomass and oil-fired boilers based on GACT. CAA §112(d)(5) expressly states that the EPA is authorized to use GACT "[w]ith respect to categories and subcategories of area sources listed pursuant to [§ 112(c)]." We believe that this is an appropriate use of its authority.
The CAA provides only two ways for the EPA to list an area source category for purposes of regulating HAP emissions from that category. First, CAA §112(c)(3), entitled "Area Sources", states that EPA "shall list" area source categories "which the Administrator finds presents a threat of adverse effects to human health or the environment ... warranting regulation under this section." Second, CAA §112(c)(6) requires the EPA to "list categories and subcategories of sources", which arguably would include area sources, as needed to meet the specified not less than 90% aggregate control requirement for the seven listed HAPs.
Since all area source categories, including those listed under §112(c)(6), are listed "pursuant to §112(c)," the EPA has authority under the express terms of §112(d)(5) to use GACT in regulating area source categories listed and regulated under §112(c)(6).
Section 112(d)(5) authorizes the EPA to use the GACT method "in lieu of" the §112(d)(2) MACT procedure. The EPA itself has observed that the phrase "in lieu of" is commonly understood to mean "in place of" and, thus, has correctly concluded that, "CAA section 112(d)(5) authorizes EPA to promulgate standards under CAA §112(d)(5) that provide for the use of generally available control technologies or management practices (GACT), instead of issuing MACT standards pursuant to CAA section 112(d)(2) and (d)(3)." (73 FR 1920-1921.) In short, the statute plainly states that the requirement to set a standard under §112(d)(2) can be satisfied by using the alternative GACT procedure specified in §112(d)(5). As a result, setting GACT under §112(d)(5) meets the §112(c)(6) requirement to regulate under §112(d)(2).
In addition to the above arguments, the EPA has acknowledged that only coal-fired area source boilers are needed to account for the 90% requirement set forth in §112(c)(6) for POM and Hg (76 FR 80537), therefore, it is not necessary to regulate biomass or oil-fired boilers based on MACT.
Response: The EPA thanks the commenter for their support of our decision to regulate biomass- and oil-fired boilers under GACT. As noted in the 2011 final rule, we disagree with the analysis and the conclusion on the ability of the Agency to regulate that portion of the category needed to meet our CAA §112(c)(6) obligations (i.e., coal-fired boilers) under GACT. The commenter has repeated comments to which we replied in the final rule.
Commenter Name: Allison Watkins, Baker Botts -  -
Commenter Affiliation: Class of '85 Regulatory Response Group
Document Control Number: EPA-HQ-OAR-2006-0790-2458-A1
Comment Excerpt Number: 4
Comment: The Class of '85 agrees that the EPA should base the final standards for biomass- and oil-fired boilers on GACT standards. The requirements of CAA §112(c)(6) will be met through other applicable regulatory programs, making it appropriate for the EPA to regulate biomass- and oil-fired boilers under GACT standards established pursuant to CAA §112(c)(3).
Response: The EPA thanks the commenter for their support.
Commenter Name: Joseph Seymour
Commenter Affiliation: Biomass Thermal Energy Council (BTEC)
Document Control Number: EPA-HQ-OAR-2006-0790-2475-A2
Comment Excerpt Number: 2
Comment: States may proactively implement competing -- and varied -- emissions limits that could impede national boiler sales. Many boiler manufacturers and end users have already invested in highly efficient combustion and advanced emissions control technologies for biomass boilers, developing cutting‐edge products and advancing the industry. National PM and CO controls will serve to drive the collective industry to meet achievable standards and continue progress towards ever cleaner equipment. Ultimately, these standards will accelerate installation of best performing equipment, reducing emissions and further establish biomass thermal as an affordable, reliable, and renewable energy pathway.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Paul Noe
Commenter Affiliation: American Forest & Paper Association (AF&PA) et al.
Document Control Number: EPA-HQ-OAR-2006-0790-2426-A1
Comment Excerpt Number: 1
Comment: We support the EPA's rationale to regulate biomass and oil-fired boilers based on GACT. The CAA §112(d)(5) authorizes the EPA, in most cases, to set standards for area sources using GACT, "generally available control technologies or management practices" (i.e., GACT") rather than "MACT." The use of GACT is authorized in this case; therefore, §112(d)(5) authorizes the EPA to establish "standards or requirements .... which provide for the use of generally available control technologies or management practices."  When setting a GACT based standard, the EPA is expressly authorized to establish work practices instead of emissions limitations. In addition, the EPA has acknowledged that only coal-fired area source boilers are needed to account for the 90% requirement set forth in §112(c)(6) for POM and Hg (76 FR 80537), therefore, it is not reasonable or necessary to regulate biomass- or oil-fired boilers based on MACT. Our comments on the proposed rule (see for example AF&PA's comments at EPA-HQ-OAR-2006-0790-1939 through EPA-HQ-OAR-2006-0790-1944) provided detailed justification for setting area source standards for biomass- and oil-fired boilers based on GACT.
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Andrea Grant
Commenter Affiliation: Castle Oil Corporation
Document Control Number: EPA-HQ-OAR-2006-0790-2462-A2
Comment Excerpt Number: 10
Comment: Based on the foregoing, Castle Oil Corporation urges the EPA to adopt the following provision:
Maintain the GACT standards (including the management practice of tune-ups) for biomass- and oil-fired boilers
Response: The EPA thanks the commenter for their support and comment.
Commenter Name: Randal G. Oswald
Commenter Affiliation: Integrys Energy Group
Document Control Number: EPA-HQ-OAR-2006-0790-2472-A2
Comment Excerpt Number: 4
Comment: Integrys agrees that the EPA should base the final standards for biomass- and oil-fired boilers on GACT standards. The requirements of CAA §112(c)(6) will be met through other applicable regulatory programs, making it appropriate for the EPA to regulate biomass- and oil-fired boilers under GACT standards established pursuant to §112(c)(3).
Response: The EPA thanks the commenter for their support and additional justification.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 16
Comment: In the 2010 proposed Area Source Boiler Rule, the EPA based the standards for biomass and oil-fired sources on MACT. (75 FR 31,896 (2010 Proposed Rule).) The EPA revised the standards for these sources in the final Area Source Boiler Rule and instead imposed GACT because "MACT-based regulations" were "unnecessary to meet the requirements of CAA §112(c)(6). (76 FR 15574, 15566 (2011 Final Rule).) In the 2012 reconsidered Area Source Boiler Rule, the EPA made no changes to these standards, but is soliciting comments on whether the final standards for biomass and oil-fired boilers should be based on GACT instead of MACT standards. (76 FR 80537 (2012 Reconsidered Area Source Rule).)
As CIBO stated in its comments on the proposed rule, §112(d)(5) of the CAA provides the EPA with the authority to set standards for area sources using GACT rather than MACT.
Response: The EPA thanks the commenter for their support. Our response to the commenter's analysis of when we may use CAA §112(c)(5) is contained in the comment responses for the March 2011 final rule.
Commenter Name: Robert D. Bessette
Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)
Document Control Number: EPA-HQ-OAR-2006-0790-2443-A1
Comment Excerpt Number: 19
Comment: CIBO supports the EPA's decision to use work practice standards for biomass- and oil-fired boilers.
Numerical emission limits for PM and Hg are not necessary for existing biomass- and oil-fired area sources. Their emissions are not significant and the emission controls required for biomass- and oil-fired boilers would not be cost effective. While CIBO agrees with the EPA's approach with regard to these units, the EPA's decision to require numerical emission limits for PM for new boilers with heat input capacity greater than 10 MMBtu/hr is arbitrary. CIBO proposes that the EPA extend the work practices standard to units with a designed heat input capacity of less than 30 MMBtu/hr.
Many units with heat input capacities between 10 and 30 MMBtu/hr experience similar issues and costs that would have a "significant adverse economic impact" on facilities. The cost analysis prepared by the EPA was limited to "small units" and the EPA did not, but should have, performed a similar cost analysis for subsets of units with heat input capacities greater than 10 MMBtu/hr to determine if further application of work practice standards is justified. The EPA has imposed work practice standards for units less than 30 MMBtu/hr under the NSPS, 40 CFR Part 60, Subpart Dc. The same rationale applies equally to this subset of boilers for purposes of MACT standards, because many units less than 30 MMBtu/hr do not have the controls in place to test for emissions. Installing those controls would be prohibitively expensive and would not be justified by the benefits.
Response: The EPA thanks the commenter for their support and additional justification with regard to work practice standards for certain biomass- and oil-fired boilers. With regard to the EPA's decision to require numerical emission limits for PM for new boilers with heat input capacity greater than 10 MMBtu/hr, we point out that we previously determined that the control technologies currently used by facilities in the source category to reduce non-Hg metallic HAP and PM (multiclones, fabric filters, and ESPs) are generally available and cost effective for new area source boilers with heat input capacity greater than 10 MMBtu/hr. The standard reference method for measuring emissions of PM (as a surrogate for urban non-Hg metals) is not applicable for sampling small diameter (less than 12 inches) stacks. Boilers that have a heat input capacity below 10 MMBtu/hr generally have stacks with diameters less than 12 inches. We disagree with the commenter that the same can be said of boilers that have heat input capacities between 10 and 30 MMBtu/hr. In addition, new facilities, as opposed to existing facilities, have the added flexibility of including compliance costs into their design and planning. This would include the design and cost to provide a performance testing facility that has sampling ports adequate for the test methods and constructing the exhaust stack such that emission rates can be accurately determined.
Commenter Name: Arthur Marin
Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM)
Document Control Number: EPA-HQ-OAR-2006-0790-2454-A1
Comment Excerpt Number: 12
Comment: The EPA proposes emission limits for biomass-fired boilers with heat input capacity between 10 and 30 MMBtu/hr and over 30 MMBtu/hr (76 FR 80548, Table 1 to Subpart JJJJJJ of Part 63 -- Emission Limits). The NESCAUM states are concerned that failing to establish numeric emission limits for biomass-fired boilers between 1.6 MMBtu/hr and 10 MMBtu/hr will result in greater HAP emissions from sources in this category in the northeast region, and this may have detrimental impacts on sensitive population groups. According to a Biomass Energy Resource Center (BERC) database on small wood-fired boilers, most (95 of 150, or 63%) of the small wood boilers in the nation are installed at schools or hospitals.[1] The US Forest Service's "Fuels for Schools" program has identified schools and hospitals as prime candidates to switch to biomass fuels. According to an analysis by BERC, in Wisconsin alone there are 200 to 300 schools using natural gas boilers that could economically and feasibly switch to biomass boilers. Also according to BERC (2008), 30% of school children in Vermont attend schools heated with wood-fired boilers, yet only a handful of those boilers are required to meet an emission limit or undergo a single performance test. With the potential large increase in the use of small biomass boilers, NESCAUM anticipates significant emissions from these sources.
Response: The EPA's rationale for establishing work practice standards pursuant to CAA §112(h) for smaller coal-fired boilers and our response to comments on the use of §112(h) were provided at 75 FR 31906-07, June 4, 2010, and 76 FR 15568, March 21, 2011, respectively. The same rationale applies to our establishing management practice standards, as allowed by CAA §112(d)(5), for smaller oil-fired and biomass-fired boilers. In summary, the standard reference methods for measuring emissions of Hg, CO (as a surrogate for POM), and PM (as a surrogate for urban non-Hg metals) are not applicable for sampling small diameter (less than 12 inches) stacks. Boilers that have a heat input capacity below 10 MMBtu/hr generally have stacks with diameters less than 12 inches. We determined that the annual costs for testing and monitoring alone, assuming the facilities could do so, would have a significant adverse economic impact on these facilities. For small institutional (schools) and commercial (farms) facilities the costs would be prohibitive.
Economic impact is a relevant factor in determining GACT. The comment does not suggest a control technology that is generally available and feasible technologically and economically for the schools and hospitals mentioned in particular.
We determined a boiler tune-up to be an appropriate work/management practice for these small boilers. Mercury as well as non-Hg metallic HAP are fuel dependent HAP. That is, the amount of Hg and non-Hg metallic HAP emitted from the boiler depends on the amount of Hg and non-Hg HAP contained in the fuel. Thus, fuel usage can be reduced by improving the combustion efficiency of the boiler. On the other hand, POM is formed from incomplete combustion of the fuel. Thus, good combustion practices are expected to minimize organic HAP emissions.
Commenter Name: Arthur Marin
Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM)
Document Control Number: EPA-HQ-OAR-2006-0790-2454-A1
Comment Excerpt Number: 13
Comment: NESCAUM requests that the EPA create a new subcategory and establish emission limits for smaller biomass units. Small institutions like schools and hospitals are increasingly installing new, smaller biomass that are cleaner (e.g., those with multistage combustion) that do not need additional control technologies to avoid major source classification. A study by the New York State Energy Research and Development Authority (NYSERDA) found that high efficiency units can achieve an emissions performance level less than 0.1 lb/MMBtu without the use of any control device. Another study looking at biomass boilers installed under the Fuels for Schools program found that the range of performance varied significantly from 0.15 lb/MMBtu to 0.9 lb/MMBtu for a variety of biomass boilers. The EPA has not performed an adequate analysis to determine if a baseline performance standard should be required for all biomass boilers.
Response: We disagree with the commenter's assertion that the EPA has not performed an adequate analysis to determine if a performance standard should be required for all biomass-fired boilers. This is a GACT standard for biomass-fired boilers affecting a wide variety of sources. Given the sensitivity of cost to small sources and the likelihood that raising costs will discourage sources from adopting lower HAP emitting boilers, we have determined that it would be inappropriate to mandate these state of the art type boilers as GACT. We maintain that the determination of a tune-up as GACT for biomass-fired boilers with a heat input capacity less than 10 MMBtu/hr is appropriate.
Commenter Name: Arthur Marin
Commenter Affiliation: Northeast States for Coordinated Air Use Management (NESCAUM)
Document Control Number: EPA-HQ-OAR-2006-0790-2454-A1
Comment Excerpt Number: 14
Comment: The EPA has announced its intent to develop an emission standard for residential biomass boilers. If an emission standard is feasible for residential biomass boilers, it highlights not only the feasibility of emissions standards for small industrial, commercial, and institutional boilers, but the necessity of regulation so as not to create a void for these emission sources.
Response: As an initial matter, the announced intent to develop a standard for future installations of biomas-combusting equipment says nothing about the feasibility and availability of the technology for existing boiler installations. However, with respect to new installations, the EPA points out that a new emission standard for residential biomass boilers, as referred to by the commenter, has not yet been proposed so its specific requirements are not known. Currently, at a federal level, air emissions from wood stoves and certain pellet stoves are regulated by the EPA through NSPS aimed at manufacturers and retailers of these devices. The NSPS specify a maximum amount of air pollution that the units can generate. Testing must be performed by the manufacturers at laboratories using approved test methods for each model of stove sold in order to be certified for sale. Specifically, the EPA's certification process requires manufacturers to verify that each of their wood stove model lines meet a specific particulate emission limit by undergoing emission testing at an EPA accredited laboratory. The EPA is in the process of developing revisions to the residential wood heater NSPS. In addition to tightening the emission limits on currently regulated wood heaters to reflect improvements in best demonstrated technology, we anticipate development of new regulations for other residential devices that use solid biomass as fuel (e.g., outdoor and indoor hydronic heaters (wood "boilers") and forced air furnaces). Hydronic heaters (also called outdoor wood heaters or outdoor wood boilers) are typically located outside the buildings they heat in small sheds with short smokestacks. Typically, they burn wood to heat liquid (water or water-antifreeze) that is piped to provide heat and hot water to occupied buildings such as homes, barns and greenhouses. Hydronic heaters may also be located indoors and may use other biomass as fuel (such as corn or wood pellets).
The CAA §112 standards for area source industrial/commercial/institutional boilers being amended under this regulatory action apply directly to owners and operators of boilers versus applying to manufacturers and retailers of the boilers. The EPA's rationale for establishing management practice standards for biomass-fired boilers with heat input capacity less than 10 MMBtu/hr is presented in the response to EPA-HQ-OAR-2006-0790-2454-A1, excerpt 12, above. We maintain that the determination of a tune-up as GACT for biomass-fired boilers with a heat input capacity less than 10 MMBtu/hr is appropriate.
Commenter Name: Joseph Seymour
Commenter Affiliation: Biomass Thermal Energy Council (BTEC)
Document Control Number: EPA-HQ-OAR-2006-0790-2475-A2
Comment Excerpt Number: 1
Comment: In order to further advance the biomass thermal industry toward cleaner and increasingly efficient technologies, BTEC recommends that the EPA consider applying PM limits on small area source boilers (<10 MMBtu/hr) and CO limits towards all area source biomass combustion equipment rather than a broad application of work practice standards. Without established reasonable clean standards, there will be no incentive for owners to select higher efficiency and cleaner boiler technologies that protect our environment and health.
Response: The EPA's rationale for establishing management practice standards for biomass-fired boilers with heat input capacity less than 10 MMBtu/hr is presented in the response to EPA-HQ-OAR-2006-0790-2454-A1, excerpt 12, above. We maintain that the determination of a tune-up as GACT for biomass-fired boilers with a heat input capacity less than 10 MMBtu/hr is appropriate. We do not believe that the imposition of work practice standards rather than numerical emission limits on these small biomass-fired boilers will deter owners and operators from purchasing and operating more efficient and cleaner boiler technologies that are available. In this rulemaking, our action must determine what is generally available for existing sources. We have determined that the cost of testing and monitoring for numeric limits across the wide variety of sources using biomass-fired boilers would likely cause a significant economic impact on these sources. The commenter provides the Agency no information as to whether the new technologies would be generally available across the broad range of affected sources.
Commenter Name: Pilar Rodarte
Commenter Affiliation: Citizen
Document Control Number: EPA-HQ-OAR-2006-0790-2476-A2
Comment Excerpt Number: 1
Comment: I am interested in the regulation of area sources of HAP because they have been known to cause hot spots in pollution when aggregated in urban environments and are often overlooked in regulation in preference for regulation of major sources. I am specifically concerned about the basis of the technology standards being changed from MACT to GACT for biomass- and oil-fired boilers. There appears to be no scientific reason for this amendment and seems to come from economic concerns about implementation of the standards. As a citizen I understand and appreciate an economic concerns and hardship, however, the EPA's duty to create regulations under the CAA should only be swayed by scientific findings, technological feasibility, and public health concerns.
Economic concerns may certainly be considered, but they should not be a determinative factor in the basis of a technology standard, as they were here. There are other methods that the EPA can use to address the economic concerns of the affected facilities. The EPA may work with the boiler manufacturer industry to give discounts and other incentives to facilities to switch or upgrade their combustion technology. From a citizen perspective, technology in every aspect of our modern lives changes: from compact florescent light bulbs to smog controls in automobiles. These technology changes resulted in increased costs on the user, however, it was better for the county's environmental quality and technological viability to change. Oil‐fired and biomass boiler technology needs to change in order to reflect the higher air quality standard expected is to push the boiler manufacturer industry to meet the higher bar of MACT through consumer/ facility   from citizens. The best way to push for cleaner air and more efficient (cleaner burning) boiler technology demand. It is common sense that the facilities will not make the technology change unless forced to do so by the EPA with MACT based emissions limits, and the technology won't exist or be utilized unless the consumers/facilities demand it from the boiler manufacturer industry.
Response: Please refer to the original proposal (75 FR 31895, June 4, 2010) and final rule (76 FR 15554, March 21, 2011) for the legal justification for the selection of GACT-based controls for the biomass- and oil-fired boilers in this category. The authority to determine GACT allows for the consideration of cost. Congress provided the EPA the authority to establish GACT-based standards in part because of its concerns about the impacts MACT-based rules may have on area sources. The impact on sources is a relevant consideration.
Legal/Applicability Rationale: Standards for oil-fired boilers
Commenter Name: Andrea Grant
Commenter Affiliation: Castle Oil Corporation
Document Control Number: EPA-HQ-OAR-2006-0790-2462-A2
Comment Excerpt Number: 4
Comment: Castle has reviewed the CAA and the Agency's interpretations of its authority regarding MACT and GACT and believes that the EPA's regulatory approach for the smaller oil-fired boilers -- the establishment of a management practice (tune-up program) -- is the appropriate means of meeting the mandates and objectives of the CAA.
Response: The EPA thanks the commenter for their support.
Commenter Name: Pamela F. Faggert
Commenter Affiliation: Dominion
Document Control Number: EPA-HQ-OAR-2006-0790-2424-A1
Comment Excerpt Number: 1
Comment: Retention of Work Practice Standards for Oil-Fired Units
We strongly support the EPA's decision to retain work practice standards (boiler tune-ups) in lieu of emission limits for oil-fired units located at area sources of HAP.
Response: The EPA thanks the commenter for their support.
Commenter Name: Sheila C. Holman
Commenter Affiliation: NC Division of Air Quality (NC DAQ), North Carolina Department of Environment and Natural Resources (NCDENR)
Document Control Number: EPA-HQ-OAR-2006-0790-2474-A2
Comment Excerpt Number: 8
Comment: There are numerous area source facilities with boilers currently burning natural gas that are also equipped to burn fuel oil. Owners and operators of these facilities anticipate firing natural gas for many years to come or until gas supply is temporarily curtailed outside of their control, or until such a time when fuel oil would become more cost effective to burn than gas.  The GACT rule exempts units burning oil outside of gas supply curtailment, gas supply emergencies, or periodic testing on liquid fuel. However, the rule considers boilers new affected sources if they were to switch fuel from natural gas to solid fossil fuel, biomass, or liquid fuel after June 4, 2010. This means a facility with an existing gas-fired boiler--that wants to avoid being subject to the more burdensome new oil fired boiler requirements if or when they would ever burn oil outside of the exempted periods--should submit the Initial Notification of Applicability as an existing oil -  fired boiler. Based on common sense and increased flexibility, these dual-fuel boilers normally burning gas could not be considered subject to any oil-fired requirements as long as they continue to fire only gas, except under the stated exemptions for burning oil. If economic or other conditions change such that the facility chooses to fire oil outside of the exemption criteria, then dual-fuel boilers would need to file an initial notification as an existing source and comply with the requirements, as if the boiler were an existing source that had been shutdown. If that were not possible, then facilities could at least be allowed to file their initial notifications as oil-fired boilers but without having to follow the tune-up and energy assessment (if applicable) requirements until and unless they begin to fire oil outside the exemption criteria. Tune-ups would not need to be completed within one week after this, in keeping with the requirement for units that are not operating. Similarly, energy assessments would not need to be completed within 180 days after switching, in keeping with §63.7(a). This would essentially grandfather the boiler in as an existing source and provide the flexibility to use a fuel for which the boiler was designed to operate.
 Response: As pointed out by the commenter, the March 2011 final rule includes as a new affected source a boiler that commences fuel switching from natural gas to solid fossil fuel, biomass, or liquid fuel after June 4, 2010. For example, under the March 2011 final rule, if an unaffected gas-fired boiler currently burns oil as allowed under the definition of gas-fired boiler, but after June 4, 2010 burns oil for reasons not allowed under the definition of gas-fired, these boilers would become new affected oil-fired units. The December 2011 reconsideration action did not propose any revisions to the provisions regarding boilers that fuel switch after June 4, 2010. We have been made aware through public comments that many dual-fuel fired units presently burn primarily natural gas with limited or no amounts of oil, but these units may want to burn oil in the future for reasons not allowed under Subpart JJJJJJ's definition of gas-fired (e.g. cost). Under the March 2011 final rule, such an existing dual-fuel gas-fired boiler that wanted to avoid being subject to the new source requirements would notify as an existing oil-fired unit and be subject to the requirements for existing oil-fired boilers.

 In addition to comments from NC DAQ, we received public comments regarding rule applicability and compliance requirements for these existing dual-fuel fired boilers. One commenter asserted that regardless of the fuel capability identified in an initial notification, the distinction between a new source and an existing source should only be made based upon a source's capability to burn a particular fuel as of the effective date of the rule. The commenter explained that many facilities have boilers that can burn either gas or liquid and, because the price of gas is currently lower than the price of most liquid fuels, they likely are currently firing gas during normal operation, with liquid being fired only during periods of curtailment. The commenter pointed out that, in the future, the price of liquid fuel may be lower than the price of gaseous fuel, and facilities may want to preferentially burn liquid fuel over gas fuel. The commenter asserted that a change in the fuel from the initial notification should not, in and of itself, reclassify a source as a new source for purposes of Subpart JJJJJJ. Further, the commenter asserted that their interpretation is comparable to the fuel switching provisions in the EPA's NSPS and Prevention of Significant Deterioration (PSD) regulations. The same commenter asserted that if a source already has oil or alternate fuel capability, then that source would not be commencing construction or making a change to the source. The commenter explained that many of these facilities with boilers capable of burning fuel oil as a back-up for natural gas may not have submitted an initial notification since gaseous fuel-fired boilers that only burn liquid during periods of curtailment are not covered by the Area Source Boiler Rule. The commenter maintained the EPA's guidance, that a dual-fuel fired boiler that fails to file an initial notification and then plans to burn oil in the future would be considered to be a new source, appears to be contrary to regulatory text stating that an affected source is a new source if construction or reconstruction of the affected source is commenced after June 4, 2010 and the applicability criteria are met at the time construction is commenced. The commenter suggested that the EPA clarify that to become a new source, the source must be altered to be capable of accommodating a new fuel, so that new sources are not created simply by failing to submit an initial notification or a notice of fuel switching for a unit that is already capable of accommodating that fuel. NC DAQ explained in the above comments that owners and operators of dual-fuel fired boilers anticipate firing natural gas for many years to come, or until gas supply is temporarily curtailed outside of their control or until such a time when fuel oil becomes more cost effective to burn than gas. The NC DAQ asserted that, based on common sense and increased flexibility, these dual-fuel fired boilers normally burning gas could not be considered subject to any oil-fired requirements as long as they continue to fire only gas, except under the regulation's stated exemptions for burning oil.
In addition to carefully considering the public comments received regarding dual-fuel fired boilers, the EPA reconsidered its overall intent with regard to dual-fuel fired boilers that fuel switch after June 4, 2010. Consequently, in this final rule, we are revising the provisions regarding existing boilers that fuel switch after June 4, 2010. In this final rule, an existing dual-fuel fired boiler meeting the definition of gas-fired boiler, as defined in 40 CFR 63.11237, that meets the applicability requirements of this subpart after June 4, 2010 due to a fuel switch from gaseous fuel to solid fossil fuel, biomass, or liquid fuel is considered to be an existing source under this subpart as long as the boiler was designed to accommodate the alternate fuel. This revision maintains consistency with the rule's applicability criteria for determining new versus existing sources, eliminates the requirement that dual-fuel fired boilers notify as affected sources although, at the time, they are not subject to Subpart JJJJJJ, and promotes flexibility in that these existing dual-fuel fired sources that were designed to accommodate an alternate fuel may fire the alternate fuel and move into subpart JJJJJJ without being subject to the more stringent requirements for new boilers.
Legal/Applicability Issues: Miscellaneous
Commenter Name: Barry Christensen
Commenter Affiliation: Occidental Chemical Corporation (OCC)
Document Control Number: EPA-HQ-OAR-2006-0790-2435-A1
Comment Excerpt Number: 5
Comment: OCC supports the clarification that Electric Steam Generating Units are not included in the scope of this rule.
OCC operates one area source location with a cogeneration unit that qualifies as an electric generating unit (EGU) and appreciates this clarification.
Response: The EPA thanks the commenter for their support.
Commenter Name: Timothy Serie
Commenter Affiliation: American Coatings Association (ACA)
Document Control Number: EPA-HQ-OAR-2006-0790-2437-A1
Comment Excerpt Number: 6
Comment: ACA generally supports the following proposed changes in the Area Source Boiler Rule: Proposal to exclude electric and residential boilers from the rule
Response: The EPA thanks the commenter for their support.
Commenter Name: Barbara Patton
Commenter Affiliation: AT&T Services, Inc.
Document Control Number: EPA-HQ-OAR-2006-0790-2436-A1
Comment Excerpt Number: 7
Comment: The EPA has proposed an amendment to the definition of hot water heater in order to clarify that hot water boilers are included in the definition and are therefore not subject to Subpart JJJJJJ. The Environmental, Health & Safety Communications Panel (EHSCP) supports this clarification and would like to raise a related issue. Since this clarification has been made after area sources covered by the rule were required to submit initial notifications (by September 2011), notifications may have been submitted for sources that will not be covered by the rule if this clarification is finalized. Therefore, the EHSCP recommends that the EPA provide guidance regarding the process to follow to rescind notifications for sources that are no longer required due to the change in definition.
Response: The EPA does not typically require owners or operators to rescind notifications that no longer apply. As far as a process for those owners or operators that want to rescind, they could send a letter to the same delegated authority that they sent the notice to, but the EPA does not require or encourage them to do that. From an enforcement standpoint, they would not be out of compliance since they have been excluded by the definition. Also, it's likely the Agency would be able to tell from the information submitted in the notice that they would be excluded by the definitional change.
Legal/Applicability Issues: Out of Scope
Commenter Name: Neil Gormley
Commenter Affiliation: Earthjustice et al.
Document Control Number: EPA-HQ-OAR-2006-0790-2473-A2
Comment Excerpt Number: 6
Comment: The EPA has redefined boilers and process heaters to exclude process heaters from these standards, leaving them not subject to standards. In addition to violating CAA §112(c)(6), this action is unlawful and arbitrary. The EPA listed process heaters for regulation under CAA §112(c). (63 FR 17838, Table 1 & Table 2 (April 10, 1998).) Having done so, the Agency has a statutory duty to set standards for process heaters unless it removes them from that list under the provisions of CAA §112(c)(9), which provide the only means for the EPA to de-list any listed category. Because the EPA has not delisted process heaters, the Agency's proposal to not regulate them by simply defining them out of the boilers category is flatly unlawful. Further, because the EPA has given no rational basis for excluding process heaters from the Area Source Boilers Rule and has made no attempt to square such an exclusion with the limitations on its statutory authority imposed by §112(c)(9), its proposal to do so is arbitrary and capricious.
Response: Our June 2010 proposal did not did not include standards for process heaters. No commenter took issue with the absence of such standards and we finalized this aspect of the rule as proposed. We did not reopen this subject for comment in our December 2011 reconsideration proposal. This comment is therefore outside the scope of the current reconsideration. See the response to EPA-HQ-OAR-2006-0790-2473-A2, excerpt 2.
Commenter Name: Neil Gormley
Commenter Affiliation: Earthjustice et al.
Document Control Number: EPA-HQ-OAR-2006-0790-2473-A2
Comment Excerpt Number: 2
Comment: The EPA not only fails to propose standards for all the HAPs that area source boilers emit, but fails to propose any CAA §112(d)(2) or (d)(4) emission standards for area source boilers that combust oil and biomass. The Agency claims it can take this approach because it has recently concluded that it does not need oil- or biomass-fired units to meet the 90% requirement in CAA §112(c)(6). (76 FR 15565 - 67 (March 21, 2011).) The EPA may not simply decline to set standards for categories that it has listed under §112(c)(6). To the contrary, if the EPA wishes not to set standards for a listed category, it must remove that category from the list. CAA §112(c)(9) provides the exclusive procedure for removing categories from the §112(c) list, see New Jersey v. EPA, 517 F.3d 574, 582 (D.C. Cir. 2008), but the EPA has not availed itself of this procedure and the rules do not even mention it.
Response: At the proposed rule stage in June 2010, the EPA explained that we were not setting MACT limits for Hg from oil-fired and biomass-fired boilers at area sources. We explained that our basis for not setting section 112(d)(2) or 112(d)(4) standards was, as the comment suggests, that we did not need to set MACT standards to meet the requirements for section 112(c)(6) because we could achieve the 90% requirement simply by regulating coal-fired area source boilers from this category. In response to the June 2010 proposal, the commenter made the identical argument about the legal requirement to follow CAA §112(c)(9) and delist if the EPA does not set a MACT standard for Hg emissions from oil- and biomass-fired boilers. See exhibit 1 (2010 comments) at page 3). We responded to this specific comment and did not re-open the mercury issue in the reconsideration proposal. However, in the proposed reconsideration rule, we did solicit comment on our decision in the final 2011 rule to not set MACT for POM from oil- and biomass-fired boilers at area sources. Like Hg, we did not set MACT for POM emissions from oil- and biomass-fired boilers because we did not need the boilers to meet the 90 percent requirement in section 112(c)(6).
As we explained in the final rule, "While we are promulgating GACT based provisions at this time for mercury and POM from biomass-fired and oil-fired area source boilers, note that we have not removed or ``delisted'' oil-fired and biomass-fired area source boilers by this action. We are not promulgating MACT-based regulations at this time because they are unnecessary to meet the requirements of CAA section 112(c)(6)." 76 FR at 15566. We also noted the substantial discretion EPA has in determining how it selects which sources need to be regulated to achieve the 90% thresholds of CAA 112(c)(6). Id. ("As we noted in the proposed rule, we reexamine the inventory associated with the original listing as we learn more about the source category in the rule development process (75 FR 31904). Based on a re-examination of the emission inventory in light of comments, we have determined that we only need to address the coal-fired portion of the area source segments of these categories under CAA section 112(c)(6) in order to meet the 90 percent threshold requirement of that provision for both mercury and POM."). We regulated under CAA 112(d)(2) those boilers (i.e., coal-fired boilers) needed to meet the 90 percent threshold for Hg and POM.  Therefore, we complied with the requirements of section 112(c)(6).  Our regulation of those area source boilers needed to meet the 112(c)(6) 90 percent requirement does not constitute a delisting of a source category, and thus the procedures of CAA 112(c)(9) do not apply.
The commenter does not dispute EPA's conclusion that MACT standards for Hg or POM from these sources are not needed to meet the 90 percent requirement under section 112(c)(6) for these two HAP.  Rather, the commenter claims that if EPA does not wish to set such standards, EPA must delist oil-fired and biomass-fired area sources pursuant to section 112(c)(9). We disagree.  The Agency has determined that it has satisfied the 90 percent requirement under section 112(c)(6). As such, it was not required to issue MACT standards for the oil- and biomass boilers by the February 2011 court-ordered deadline for issuing regulations to meet the 90 percent 112(c)(6) requirement. The Agency reasonably subjected to regulation those boilers needed to meet the 90 percent 112(c)(6) requirement, and that is all that section 112(c)(6) requires.
Commenter Name: Neil Gormley
Commenter Affiliation: Earthjustice et al.
Document Control Number: EPA-HQ-OAR-2006-0790-2473-A2