[Federal Register Volume 69, Number 31 (Tuesday, February 17, 2004)]
[Proposed Rules]
[Pages 7390-7397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3366]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[OAR-2003-0119; FRL-7623-6]
RIN 2060-AF91
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Commercial or Industrial Solid Waste
Incineration Units
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rule; supplemental solicitation of comments.
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SUMMARY: This document solicits public comment on definitions of
``solid waste,'' ``commercial and industrial waste,'' and ``commercial
and industrial solid waste incineration unit,'' for purposes of EPA's
new source performance standards (NSPS) and emission guidelines (EG)
for commercial and industrial solid waste incineration (CISWI) units
under section 129 of the Clean Air Act (CAA).
On December 1, 2000, EPA promulgated final rules for CISWI units.
After promulgation of the final CISWI rule, EPA accepted a voluntary
remand, without vacature, in response to a petition for review
challenging the final CISWI rule. Because the final rule was not
vacated, the requirements of the final CISWI rule remain in effect
during the remand. Also, subsequent to promulgation of the final CISWI
rule, EPA granted a petition for reconsideration related to the
definitions of ``solid waste'' and ``commercial and industrial waste''
in the CISWI final rule. This notice provides for additional
proceedings related to these definitions, consistent with EPA's grant
of the earlier petition for reconsideration.
DATES: Comments. Comments must be received on or before March 18, 2004.
ADDRESSES: Comments. By U.S. Postal Service, send comments (in
duplicate, if possible) to: Air and Radiation Docket and Information
Center (6102T), Attention, Docket ID No. OAR-2003-0119, U.S. EPA, 1200
Pennsylvania Avenue, NW., Washington, DC 20460. In person or by
courier, deliver comments (in duplicate, if possible) to: Air and
Radiation Docket and Information Center (6102T), Attention Docket ID
No. OAR-2003-0119, Room B-102, U.S. EPA, 1301 Constitution Avenue, NW.,
Washington, DC 20460. We request a separate copy of each public comment
be sent to the contact person listed below (see FOR FURTHER INFORMATION
CONTACT).
Docket. The EPA has established an official public docket for this
action under Docket ID No. OAR-2003-0119 and Docket ID No. A-94-32. The
docket is located at the U.S. EPA, 1301 Constitution Avenue, NW.,
Washington, DC 20460, Room B-102, and may be inspected from 8:30 a.m.
to 4:30 p.m., Monday through Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: For information concerning this
notice, contact Fred Porter at (919) 541-5251, Emission Standards
Division (C439-01), U.S. Environmental Protection Agency, Research
Triangle Park, NC 27711.
SUPPLEMENTARY INFORMATION: Docket. The EPA has established an official
public docket for this action under Docket ID No. OAR-2003-0119 and
Docket ID No. A-94-32. The official public docket consists of the
documents specifically referenced in this action, any public comments
received, and other information related to this action. All items may
not be listed under both docket numbers, so interested parties should
inspect both docket numbers to ensure that they have received all
materials relevant to this action. Although a part of the official
docket, the public docket does not include Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. The official public docket is the collection of materials
that is available for public viewing at the U.S. EPA, 1301 Constitution
Avenue, NW., Room B-102, Washington, DC 20460. The EPA Docket Center
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Reading
Room is (202) 566-1744. The telephone number for the Air Docket is
(202) 566-1742.
Electronic Access. An electronic version of public docket is
available through EPA's electronic public docket and comment system,
EPA Dockets. You may use EPA dockets at http://www.epa.gov/edocket/ to
submit or review public comments, access the index of the contents of
the official public docket, and to access those documents in the public
docket that are available electronically. Once in the system, select
``search,'' then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA dockets.
Information claimed as confidential business information (CBI) and
other information whose disclosure is restricted by statute, which is
not included in the official public docket, will not be available for
public viewing in EPA's electronic public docket. The EPA's policy is
that copyrighted material will not be placed in EPA's electronic public
docket but will be available only in printed paper form in the official
public docket. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified in this notice.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
You may submit comments electronically, by mail, by facsimile, or
through hand delivery/courier. To ensure proper receipt by EPA,
identify
[[Page 7391]]
the appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments submitted after
the close of the comment period will be marked ``late.'' The EPA is not
required to consider these late comments.
Electronically. If you submit an electronic comment as prescribed
below, EPA recommends that you include your name, mailing address, and
an e-mail address or other contact information in the body of your
comment. Also include this contact information on the outside of any
disk or CD ROM you submit and in any cover letter accompanying the disk
or CD ROM. This ensures that you can be identified as the submitter of
the comment and allows EPA to contact you in case EPA cannot read your
comment due to technical difficulties or needs further information on
the substance of your comment. The EPA's policy is that EPA will not
edit your comment, and any identifying or contact information provided
in the body of a comment will be included as part of the comment that
is placed in the official public docket and made available in EPA's
electronic public docket. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment.
Your use of EPA's electronic public docket to submit comments to
EPA electronically is EPA's preferred method for receiving comments. Go
directly to EPA Dockets at http://www.epa.gov/edocket and follow the
online instructions for submitting comments. Once in the system, select
``search'' and then key in Docket ID No. OAR-2003-0119. The system is
an ``anonymous access'' system, which means EPA will not know your
identity, e-mail address, or other contact information unless you
provide it in the body of your comment.
Comments may be sent by electronic mail (e-mail) to [email protected], Attention: Docket ID No. OAR-2003-0119. In contrast to
EPA's electronic public docket, EPA's e-mail system is not an
``anonymous access'' system. If you send an e-mail comment directly to
the Docket without going through EPA's electronic public docket, EPA's
e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket and made available in EPA's electronic public docket.
You may submit comments on a disk or CD ROM that you mail to the
mailing address identified in this notice. These electronic submissions
will be accepted in WordPerfect or ASCII file format. Avoid the use of
special characters and any form of encryption.
By mail. Send your comments (in duplicate, if possible) to: Air and
Radiation Docket and Information Center (6102T), Attention: Docket ID
No. OAR-2003-0119, U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington,
DC 20460.
By Hand Delivery or Courier. Deliver your comments (in duplicate,
if possible) to: Air and Radiation Docket and Information Center,
Attention: Docket ID No. OAR-2003-0119, U.S. EPA, 1301 Constitution
Avenue, NW., Room B-102, Washington, DC 20460. Such deliveries are only
accepted during the Docket Center's normal hours of operation as
identified in this notice. We request that a separate copy also be sent
to the contact person listed under FOR FURTHER INFORMATION CONTACT.
By Facsimile. Fax your comments to: (202) 566-1741, Attention:
Docket ID No. OAR-2003-0119.
CBI. Do not submit information that you consider to be CBI through
EPA's electronic public docket or by e-mail. Send or deliver
information identified as CBI only to the following address: Roberto
Morales, OAQPS Document Control Officer (C404-02), U.S. EPA, 109 T.W.
Alexander Drive, Research Triangle Park, NC 27711, Attention: Docket ID
No. OAR-2003-0119. You may claim information that you submit to EPA as
CBI by marking any part or all of that information as CBI (if you
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is CBI). Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
Outline. The information presented in this document is organized as
follows:
I. Background
A. Statutory Background
B. Regulatory Background
II. Discussion
A. What Is the Significance of EPA's Definitions?
B. What Is EPA's Rationale for Its Definitions?
III. Request for Comment
IV. Future Action
I. Background
A. Statutory Background
Section 129 of the CAA, entitled ``Solid Waste Combustion,''
requires EPA to promulgate emissions standards and other requirements
for ``each category of solid waste incineration unit.'' Section
129(a)(1) identifies five categories of solid waste incineration units:
(1) Units with a capacity of greater than 250 tons per day
combusting municipal waste,
(2) Units with a capacity equal to or less than 250 tons per day
combusting municipal waste,
(3) Units combusting hospital, medical and infectious waste,
(4) Units combusting commercial or industrial waste, and
(5) Unspecified ``other categories of solid waste incineration
units.''
For each category of incineration unit identified under Section
129, EPA must establish numerical emission limits for at least nine
specified pollutants (particulate matter, sulfur dioxide, hydrogen
chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury,
and dioxins and dibenzofurans), and for opacity as appropriate. Section
129 provides EPA with the discretion to establish emission limitations
for other pollutants as well.
Section 129 of the CAA directs EPA to set maximum achievable
control technology (MACT) type standards for incinerators. Accordingly,
EPA's standards under section 129 must ``reflect the maximum degree of
reduction in emissions of [the listed] air pollutants * * * that the
Administrator, taking into consideration the cost of achieving such
emission reductions, and any non-air quality health and environmental
impacts and energy requirements, determines is achievable for new or
existing units in each category.'' (See CAA section 129(a)(2).)
However, the standards for new units must not be less stringent than
the emissions control that is achieved in practice by the best
controlled similar unit, and the standards for existing sources must
not be less stringent than the average emissions limitation achieved by
the best performing 12 percent of units in the category.
Additionally, the statute identifies, to some degree, which units
EPA should and should not regulate. Section 129(g)(1) of the CAA
defines the term ``solid waste incineration unit'' as a unit ``which
combusts any solid waste material.'' Also, that section identifies
several types of units that are not solid waste incineration units,
including units required to have a permit under section 3005 of the
Solid Waste Disposal Act (SWDA); materials recovery facilities; certain
qualifying small power production facilities or qualifying cogeneration
facilities which burn homogeneous waste; and certain air curtain
incinerators that meet opacity limitations established by EPA. In
[[Page 7392]]
addition, section 129(g)(6) states that the term ``solid waste * * *
shall have the meanings established by the Administrator pursuant to
the Solid Waste Disposal Act (SWDA).''
Finally, Section 129(h) of the CAA states that ``no solid waste
incineration unit subject to performance standards under this section
and section 111 shall be subject to standards under section 112(d) of
this Act.''
B. Regulatory Background
One important part of EPA's rulemaking process is determining what
universe of sources will be subject to regulation. With regard to CISWI
units, the statutory provisions of sections 129(a), (g) and (h) of the
CAA make it clear that EPA must determine, as a part of the regulatory
process, where to draw the line between combustion units subject to
regulation under section 129 and combustion units subject to regulation
under other statutory authority (such as CAA section 112(d)). For
example, the reference in section 129(g)(1) to a permit issued under
section 3005 of the SWDA, refers to units burning hazardous solid
wastes. This effectively limits the scope of EPA's authority under
section 129 to the regulation of solid waste incineration units that
burn nonhazardous solid waste. Similarly, the language of CAA section
129(h) makes clear the Congressional intent for EPA to regulate
nonhazardous combustion sources under either CAA section 129 or CAA
section 112, but not both. Thus, for the CISWI category, EPA must
determine which sources to regulate as commercial and industrial solid
waste incineration units under section 129, and which to regulate as
combustion units under section 112 (e.g., boilers and process heaters).
The EPA proposed regulations for CISWI units on November 30, 1999
(64 FR 67092). The proposal included emissions limitations and a
detailed definition of ``solid waste'' that was intended to distinguish
between nonhazardous solid wastes and other materials (e.g., hazardous
solid waste and fuel) burned in combustion units at commercial and
industrial facilities. The definition served to identify those units
that would be considered commercial and industrial nonhazardous solid
waste incineration units, and, therefore, subject to the proposed
regulations. In addition, consistent with CAA section 129(h), these
definitions also helped to identify those units which would not be
subject to emission standards under section 112. In the November 1999
proposal, to distinguish between hazardous solid wastes, nonhazardous
solid wastes, fuels, and other materials not considered solid waste,
EPA defined solid waste as follows:
Solid waste means, for the purpose of this subpart only, any
solid, liquid, semisolid, or contained gaseous material, which is
combusted, including but not limited to materials listed in
paragraph (1) of this definition. Solid waste excludes fuels defined
in paragraph (2) of this definition and materials specifically
listed in paragraph (3) of this definition.
(1) The following materials are solid wastes, regardless of the
provisions in paragraph (2) of this definition:
(i) Any material which is combusted without energy recovery
(i.e., where the material displaces other fuels to produce useful
heat), except as provided in paragraph (3) of this definition.
(ii) Municipal solid waste, as defined in 40 CFR part 60,
subpart Ea, subpart Eb, subpart AAAA and subpart BBBB.
(iii) Hospital waste, as defined in 40 CFR part 60, subpart Ec.
(iv) Medical/infectious waste, as defined in 40 CFR part 60,
subpart Ec.
(v) Resource Conservation and Recovery Act hazardous wastes, as
defined in 40 CFR part 261.
(2) The following materials are fuels when combusted in a device
that incorporates energy recovery as part of its integral design
(e.g., for the production of hot water or steam). The combustion
chamber and the energy recovery system must be physically formed
into one manufactured or assembled unit. A unit in which the
combustion chamber and the energy recovery system are joined only by
ducts or connections carrying flue gas is not integrally designed.
(i) Biomass fuel, coal, natural gas, and oil, as defined
elsewhere in this section;
(ii) Materials that have a heat content of 5,000 Btu/lb or more
as fired. This criterion applies to each individual feed stream to a
combustion unit.
(3) The following materials are not solid waste when combusted
for the primary purpose of recovering chemical constituents: pulping
liquors (i.e., black liquor) that are reclaimed in a pulping liquor
recovery process and reused in the pulping process; spent sulfuric
acid used to produce virgin sulfuric acid; and wood and coal
feedstock for the production of charcoal.
The EPA explained the reasoning behind the proposed definition of
solid waste as follows:
[T]he basic structure of a definition of nonhazardous solid
waste that emerges follows this premise: Materials that are burned
are not nonhazardous solid waste if they are hazardous solid waste,
if they are fuels burned to recover energy, or if they are certain
identified materials burned to recover their chemical constituents.
All other materials, when burned, are nonhazardous solid waste.
With a definition of hazardous waste available, a definition of
those materials that are fuels (when burned to recover energy) is
the next piece necessary to develop this definition of nonhazardous
waste, for the purpose of regulations developed under section 129.
Some materials, when burned to recover energy (e.g., for the
production of hot water or steam), have a long history of being
considered fuels. These materials are coal, oil, gas, and biomass
(e.g., wood and other vegetative agricultural and silvicultural
materials). Burning coal, oil, gas, and biomass produces the
majority of the energy consumed in the United States. In addition to
these materials, other materials are often burned as fuel to recover
energy and meet the needs of consumers, as well as industrial,
manufacturing, and commercial operations.
As mentioned earlier, the prime indicator of whether materials
could be used as fuel (i.e., can be burned to recover energy) is
their heat value--the British thermal units (Btu) of energy released
from burning a pound (lb) of these materials. With continuing
advances in combustion technology, materials with lower and lower
heat value can be burned to recover energy; however, those materials
with a ``high'' heat value are the best fuels, and it is these types
of materials that are commonly and widely viewed as fuels. Thus, for
the purpose of regulations developed under section 129 of the CAA,
the Administrator proposes that materials with high heat value, when
burned to recover energy, are fuels. (When materials are burned
without heat recovery, regardless of their heat value, they are
considered wastes.)
A delineator of high heat value emerges when considering the
heat values of those materials mentioned above, which are clearly
fuels when burned to recover energy (i.e., gas, oil, coal, and
biomass). Heat values for gas are the highest and frequently above
20,000 Btu/lb; those for oil can range from about 17,000-20,000 Btu/
lb; those for coal can range from about 6,000-15,000 Btu/lb; and
those for biomass can range from about 5,000-10,000 Btu/lb. Thus, a
heat value of 5,000 Btu/lb serves to delineate between materials
with high heat value and materials with low heat value. The
Administrator proposes that materials with a heat value of 5,000
Btu/lb or more, when burned to recover energy, are fuel (subject to
regulation under section 112) and not nonhazardous solid waste
subject to regulation under section 129.
Thus, the proposal would not have identified a combustion unit with
energy recovery (i.e., heat recovery) at a commercial or industrial
facility, which burned certain identified or listed materials with a
heat content of 5000 British thermal units per pound (Btu/lb) or
greater, as a CISWI unit, because such a unit would not be burning
``solid waste.''
After receiving public comment on this approach, EPA determined
that this definition of ``solid waste'' was unworkable for purposes of
identifying CISWI units. The EPA published its final CISWI rule on
December 1, 2000 (65 FR 75338) and explained the following in the final
rule:
[W]e agree that several of today's combustion technologies,
including some
[[Page 7393]]
emerging technologies, may be capable of burning materials with a
heat value of less than 5,000 Btu/lb to recover energy. Therefore,
we have deleted the requirement from the definition of solid waste
in the final NSPS and EG.
As we indicated in the preamble to the November 1999 proposal,
the main purpose of the proposed definition of nonhazardous solid
waste was to identify which materials when burned by CISWI units
would be subject to regulations developed under section 129, and
which materials when burned would be subject to regulations to be
developed under section 112. Consideration of the above comments led
us to conclude that the proposed definitions of ``CISWI unit'' and
``solid waste'' created the potential for overlap with rules we are
developing under section 112, such as the boiler MACT.
The primary difference between incinerators and boilers is that
incinerators burn materials for the purpose of disposal, whereas
boilers burn materials for the purpose of recovering energy. Thus,
we believe the concept of energy recovery is the key to
distinguishing between CISWI units (which will be regulated under
section 129) and boilers (which will be regulated under section
112). Specifically, commercial and industrial units burning
materials without energy recovery are disposing of the materials,
that is, they are treating such materials as commercial or
industrial waste, and they should be regulated as CISWI units under
section 129. In contrast, commercial and industrial units burning
materials with energy recovery, that is, treating such materials as
fuel, should be regulated under section 112.
Instead of adopting the proposed definition of ``solid waste,'' EPA
adopted a general definition of ``solid waste'' that closely mirrors
the definition of solid waste found at section 6903(27) of the SWDA and
in several places in EPA's regulations under that statute:
Solid waste means any garbage, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air pollution
control facility and other discarded material, including solid,
liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, agricultural operations, and from
community activities, but does not include solid or dissolved
material in domestic sewage, or solid or dissolved materials in
irrigation return flows or industrial discharges which are point
sources subject to permits under section 402 of the Federal Water
Pollution Control Act, as amended (33 U.S.C. 1342), or source,
special nuclear, or byproduct material as defined by the Atomic
Energy Act of 1954, as amended (42 U.S.C. 2014). For purposes of
this subpart and subpart CCCC, only, solid waste does not include
the waste burned in the fifteen types of units described in section
60.2555.
The EPA also adopted more specific definitions of ``commercial and
industrial waste'' and ``commercial and industrial solid waste
incineration unit,'' to identify more precisely those units at
commercial and industrial facilities that EPA considered appropriate
for regulation under the final CISWI rule. These definitions are as
follows:
Commercial and industrial waste means solid waste combusted in
an enclosed device using controlled flame combustion without energy
recovery that is a distinct operating unit of any commercial or
industrial facility (including field-erected, modular, and custom
built incineration units operating with starved or excess air), or
solid waste combusted in an air curtain incinerator without energy
recovery that is a distinct operating unit of any commercial or
industrial facility.
Commercial and industrial solid waste incineration (CISWI) unit
means any combustion device that combusts commercial and industrial
waste, as defined in this subpart. The boundaries of a CISWI unit
are defined as, but not limited to, the commercial or industrial
solid waste fuel feed system, grate system, flue gas system, and
bottom ash. The CISWI unit does not include air pollution control
equipment or the stack. The CISWI unit boundary starts at the
commercial and industrial solid waste hopper (if applicable) and
extends through two areas:
(1) The combustion unit flue gas system, which ends immediately
after the last combustion chamber.
(2) The combustion unit bottom ash system, which ends at the
truck loading station or similar equipment that transfers the ash to
final disposal. It includes all ash handling systems connected to
the bottom ash handling system.
Thus, under the final CISWI rule, a material burned at a commercial
or industrial facility in a combustion unit with heat recovery is not
considered a commercial and industrial waste, nor is the combustion
unit considered a commercial and industrial solid waste incineration
unit for purposes of the CISWI rule.\1\
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\1\ In addition, EPA adopted a number of specific exemptions and
additional definitions in the final CISWI rule, to ensure that the
emission limitations did not apply to units that should not be
considered commercial and industrial solid waste incineration units.
These exemptions and definitions served to identify and exempt: (1)
Pathological solid waste incineration units; (2) agricultural solid
waste incineration units: (3) municipal solid waste incineration
units; (4) hospital, medical and infectious solid waste incineration
units; (5) qualifying small power production facilities; (6)
qualifying cogeneration facilities; (7) hazardous solid waste
incineration units; (8) material recovery units; (9) certain air
curtain incinerators; (10) cyclonic barrel burners; (11) rack, part,
and drum reclamation units; (12) cement kilns; (13) sewage sludge
incinerators; (14) chemical recovery units; and (15) laboratory
analysis units.
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After promulgation of the final CISWI rule, EPA received a petition
for reconsideration of the final rule. The petition argued that the
final rule was procedurally defective because EPA had failed to provide
adequate notice and an opportunity to comment on the definitions
adopted in the final rulemaking. Additionally, an environmental
organization filed a petition for review in the U.S. Court of Appeals
for the D.C. Circuit. Also, after promulgation of the final CISWI rule,
the D.C. Circuit issued its decision in Cement Kiln Recycling Coalition
v. EPA, 255 F.3d 855 (D.C. Cir. 2001). In this decision, the Court
rejected certain common elements of EPA's MACT methodology. As a
result, EPA requested a voluntary remand of the final CISWI rule, in
order to address concerns related to the issues that the Court had
raised in the Cement Kiln decision. Additionally, EPA decided to grant
the petition for reconsideration related to the definitional issues,
and provide further opportunity for public comment. Today's notice
solicits comment on the definitions of solid waste, commercial and
industrial waste, and commercial and industrial solid waste
incineration unit, and initiates the additional proceedings on these
issues to which EPA committed in its grant of the petition for
reconsideration. The EPA expects to take further action on these
definitions, and respond to any comments received, in conjunction with
EPA's response to the voluntary remand.
II. Discussion
A. What Is the Significance of EPA's Definitions?
The definitions of solid waste, commercial and industrial waste,
and commercial and industrial solid waste incineration unit define the
scope of applicability of the final CISWI rule. Since any unit
regulated under CAA section 129 can not be subject to any rule
developed under section 112 of the CAA, these definitions also help to
clarify the scope of applicability of certain other rules that EPA has
or will develop for other types of combustion units. In general, those
combustion units that are not covered by rules developed under section
129 will be covered by rules developed under section 112. In this case,
combustion units that are not covered by the final CISWI rule may be
subject to regulation, for example, under EPA's rule for commercial,
industrial and institutional boilers and process heaters (boilers
rule).\2\ That is, many of the combustion
[[Page 7394]]
units at commercial and industrial facilities (e.g., boilers or steam
generating units, process heaters, furnaces, and incinerators) burn
``solid'' materials. If the solid materials in question are considered
commercial and industrial waste, the units will be regulated as CISWI
units under CAA section 129. Conversely, if the materials are not
considered commercial and industrial waste (e.g., they are hazardous
solid waste, fuel, solid materials burned for chemical or material
recovery, etc.), the units will be regulated under CAA section 112 or
other statutory authority. Thus, collectively, in the process of
responding to the remand of the final CISWI rule, promulgating
emissions standards for boilers and process heaters, developing rules
for area source boilers, promulgating requirements for electric utility
steam generating units, and establishing rules applicable to other
combustion sources, EPA will map the regulatory boundaries that
identify which units are subject to which requirements.\3\
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\2\ Alternatively, such units might be subject to regulation
under any number of other EPA regulations, such as: regulations
promulgated pursuant to Section 112(k) to control emissions from
industrial, commercial and institutional boilers that are area
sources; regulations promulgated pursuant to Section 112(n) for
hazardous air pollutants from electric utility steam generating
units; and various other regulations developed under Section 112
which cover combustion units burning solid materials to recover
their chemical or other material constituents (e.g., black liquor
boilers or furnaces at kraft pulp mills covered under the national
emission standards for hazardous air pollutants for Chemical
Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone
Semichemical Pulp Mills).
\3\ We note that finalization of these definitions for purposes
of the final CISWI rule is not a prerequisite for EPA to finalize
other rules that regulate combustion sources, such as the boiler
rule. We will reasonably consider the broader implications of our
applicability decisions in each relevant rule.
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The process of determining the regulatory dividing line between
different rules is not unique to CISWI. Nor does the identification of
the scope of one rule, necessarily define the scope of another, or
preclude EPA from adjusting the regulatory division in a subsequent
rule.
B. What Is EPA's Rationale for Its Definitions?
Defining solid waste. The EPA adopted a general definition of solid
waste in the final CISWI rule. In doing so, EPA concluded that the
definition of solid waste located at 40 CFR 261.2, which defines solid
waste specifically for purposes of identifying hazardous solid waste,
could not serve as a regulatory definition for purposes of identifying
nonhazardous solid waste under CAA section 129.\4\ Rather, EPA looked
to the definition of solid waste in the SWDA (42 U.S.C. 6903), and to
other definitions of solid waste that EPA has adopted under the
authority of that statute, and that do apply to various types of
nonhazardous solid wastes (e.g., 40 CFR 240.100, 243.1010, 246.101,
257.2, and 258.2).
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\4\ In fact 40 CFR 261.1(b)(1) states that this definition of
solid waste applies only to wastes that are also hazardous for
purposes of implementing subtitle C of RCRA.
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The fact that the language of the individual regulatory definitions
of solid waste vary somewhat from definition to definition in the
provisions cited above, indicates that the Administrator has not
adopted a single authoritative definition to identify nonhazardous
solid waste under the SWDA. Rather, the Administrator has adopted a
variety of slightly different definitions of nonhazardous solid waste
depending on the particular regulatory circumstances.
Since the Administrator has not adopted a single authoritative, and
generalizable, definition of nonhazardous solid waste pursuant to the
SWDA, it is reasonable for EPA to adopt an appropriate definition of
nonhazardous solid waste, for purposes of the final CISWI rule, so long
as this definition is not inconsistent with EPA's discretion under the
SWDA. Thus, the Administrator may adopt (pursuant to the SWDA, as well
as the CAA) a definition of solid waste that serves only to identify
nonhazardous solid wastes for purposes of regulating commercial and
industrial waste incineration units under CAA section 129. The
definition of solid waste on which EPA solicits comment today is
consistent with both the SWDA definition and EPA's existing regulatory
definitions.
Defining Commercial and Industrial Waste. It is particularly
difficult to draw an appropriate distinction between commercial and
industrial waste and solid materials that should not be considered
commercial and industrial waste, as well as between CISWI units and
non-CISWI combustion units.\5\ For example, there is general agreement
that the coal burned in a coal-fired boiler or steam generating unit is
not a solid waste. This is because coal is commonly thought of as a
fuel. Coal is considered a fuel because it is customarily burned to
recover energy (i.e., heat) for some useful purpose such as to heat
water or generate steam. However, there is no such general agreement,
for example, about a solid material such as bagasse when it is burned
in a boiler at a sugar plant to produce the heat needed to refine sugar
from sugar cane.\6\ In the context of the final CISWI rule, the
question is whether the bagasse is a commercial and industrial waste,
and whether the combustion unit burning the bagasse is subject to the
emission limits of the final CISWI rule. Some consider the bagasse a
``by-product'' or ``residual material'' left over from the production
process, and therefore a solid waste. Others do not consider the
bagasse a solid waste, but a ``co-product'' or ``additional material''
resulting from the production process.
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\5\ In many cases, such as municipal solid waste incinerators,
and hospital, medical and infectious solid waste incinerators, the
identification of the relevant wastes and the relevant units is
sufficiently clear that EPA need not address the issue at length in
its rule. Indeed, CAA section 129 provides specific guidance for
EPA's definitions of municipal waste and medical waste, as well as
municipal waste incineration units. See section 129(g)(5) and (6) of
the CAA. In addition, there is broad and general agreement between
EPA, the regulated community, and other stakeholders regarding what
materials are municipal waste and hospital, medical and infectious
waste, and which combustion units belong in the respective
regulatory categories.
\6\ Bagasse is a product of sugar cane processing. Sugar cane is
harvested and crushed at the plant to extract the juice present in
the sugar cane. The crushed sugar cane is referred to as bagasse. To
produce raw sugar from the sugar cane juice, the juice is heated to
evaporate the water present and concentrate the sugar. This heating
requires energy which, in turn, is supplied by burning the bagasse.
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From EPA's point of view, the origin of a material that is burned
in a unit at a commercial or industrial facility is less important than
how that material is burned. In the example, bagasse is burned to
generate the heat necessary to evaporate the water in the sugar cane
juice. If the bagasse were not burned to generate this heat, then the
facility would instead burn another material such as coal. Like the
coal, the bagasse is burned for a useful purpose--to heat the sugar
cane juice and concentrate the sugar. Therefore, EPA feels that it is
reasonable to consider the bagasse in this second example--as the coal
in the first example--to be a solid fuel and distinct from commercial
and industrial waste. Thus, for purposes of distinguishing commercial
and industrial waste from solid fuel, its status is determined by its
use, as well as by its origin.
On the other hand, if the bagasse were burned in a combustion unit
without heat recovery, its combustion would serve no useful purpose
other than to effectuate destruction or disposal of an unwanted
material. The EPA would then consider it appropriate to identify the
bagasse as commercial or industrial waste, and regulate the combustion
unit under CAA section 129 as a CISWI unit. Similarly, if a material
(that is not hazardous waste) is burned in a combustion unit at a
commercial or industrial facility with heat recovery, for reasons that
do not include the recovery
[[Page 7395]]
of heat for useful purposes, that material would be commercial or
industrial waste and the unit would be a CISWI unit.
Thus, in general, if a solid material (which is not a hazardous
solid waste) is burned with heat recovery at a commercial or industrial
facility to generate heat for a useful purpose, EPA feels that it is
appropriate to consider that material not to be commercial or
industrial waste, and not to regulate the device as a CISWI unit under
CAA section 129.\7\
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\7\ As pointed out earlier, the regulatory dividing line does
not determine whether a combustion unit is regulated or unregulated,
but rather, whether it is regulated under section 129 or under
section 112.
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Statutory basis for EPA's definitions. The CAA requires regulation
of commercial and industrial solid waste incinerators under CAA section
129, and regulation of non-CISWI commercial and industrial combustion
units, such as boilers and process heaters, under CAA section 112. In
order to effectively implement the statute, EPA must decide how to
distinguish between these source categories. While EPA is not without
some statutory guidance in determining where to draw the regulatory
dividing line, there is considerable ambiguity regarding how to group
certain categories of sources.
The CAA broadly identifies ``solid waste incineration unit'' for
purposes of CAA section 129 as follows:
The term ``solid waste incineration unit'' means a distinct
operating unit of any facility which combusts any solid waste
material from commercial or industrial establishments or the general
public (including single and multiple residences, hotels, and
motels). Such term does not include incinerators or other units
required to have a permit under section 3005 of the SWDA [42 U.S.C.
6925]. The term ``solid waste incineration unit'' does not include:
(a) Materials recovery facilities (including primary or
secondary smelters) which combust waste for the primary purpose of
recovering metals,
(b) Qualifying small power production facilities, as defined in
section 3(17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or
qualifying cogeneration facilities, as defined in section 3(18)(B)
of the Federal Power Act (16 U.S.C. 796(18)(B)), which burn
homogeneous waste (such as units which burn tires or used oil, but
not including refuse-derived fuel) for the production of electric
energy or in the case of qualifying cogeneration facilities which
burn homogeneous waste for the production of electric energy and
steam or forms of useful energy (such as heat) which are used for
industrial, commercial, heating or cooling purposes, or
(c) Air curtain incinerators provided that such incinerators
only burn wood wastes, yard wastes and clean lumber and that such
air curtain incinerators comply with opacity limitations to be
established by the Administrator by rule.
This language suggests that EPA has considerable discretion to
regulate a variety of sources as solid waste incinerators. As outlined
earlier, however, this definition also specifically identifies several
types of combustion units that should not be treated as ``solid waste
incineration units'' under Section 129, including combustion units
burning hazardous solid waste, materials recovery facilities, certain
small power production facilities, certain cogeneration facilities, and
certain air curtain incinerators. However, as explained below, this
definition on its own does little to identify where EPA should draw the
regulatory dividing line between CISWI units and other combustion
units.
The CAA identifies the term ``solid waste'' as having the same
meaning as established by the Administrator under the SWDA. However, as
discussed earlier, EPA's only comprehensive definition of that term
under the SWDA specifically identifies only hazardous solid waste, and
is not useful for purposes of identifying nonhazardous solid waste.
Therefore, in the final CISWI rule, EPA defined ``solid waste'' in a
manner that is consistent with both the SWDA itself, and with general
definitions adopted by the Administrator under various provisions of
the SWDA. Again, this definition provides EPA with broad discretion for
identifying units that burn solid wastes, but it is not determinative
of the scope of applicability of EPA's final CISWI regulations.
While the CAA specifically addresses the definitions of solid waste
and solid waste incineration unit, CAA section 129 does not require
regulations that apply to every device that might be considered a solid
waste incineration unit.\8\ Rather, section 129(a) directs EPA to
regulate solid waste incineration units that burn several particular
categories of solid waste. These include municipal waste, hospital,
medical and infectious waste, commercial or industrial waste, and other
solid waste.\9\ The statute specifically defines ``municipal waste,''
(in section 129(g)(5)),\10\ and identifies ``medical waste'' as having
the same meaning as established by the Administrator under the
SWDA.\11\ However, the CAA does not define the other categories of
solid waste for regulation, including commercial or industrial
waste.\12\ Inherent in EPA's implementation of this section must be the
discretion to reasonably define what constitutes each un-defined type
of solid waste. Thus, the CAA does not specifically foreclose EPA's
ability to reasonably define the scope of its regulations applicable to
commercial and industrial combustion units.
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\8\ Significantly, unlike section 112(d), section 129(a) does
not direct EPA to establish a list for regulation of all solid waste
combustion sources that emit hazardous air pollutants (HAP). Rather,
the 1990 amendments identified the general categories of solid waste
incineration units that EPA is to regulate, and set schedules for
EPA to promulgate appropriate regulations for units within these
categories--municipal waste combustors (MWC) with a capacity greater
than 250 tons per day within 12 months of enactment; MWC with a
capacity equal to or less than 250 tons per day and hospital,
medical and infectious waste incinerators (HMIWI) within 24 months;
and CISWI within 48 months. Section 129(a)(1) of the CAA.
\9\ Section 129 also directs EPA to establish regulation for
``other categories of solid waste incineration units,'' although the
CAA neither sets a time frame for such regulations nor identifies
which ``other categories'' EPA should regulate. ``Not later than 18
months after the date of enactment * * * the Administrator shall
publish a schedule for the promulgation of standards * * *
applicable to other categories of solid waste incineration units.''
Section 129(a)(1)(E) of the CAA.
\10\ This definition itself includes some limitations, in that
``(A) the term does not include industrial process wastes or medical
wastes that are segregated from such other wastes; and (B) an
incineration unit shall not be considered to be combusting municipal
waste * * * if it combusts a fuel feed stream, 30 percent or less of
the weight of which is comprised, in aggregate, of municipal
waste.''
\11\ This definition of ``medical/infectious waste'' is
contained in 40 CFR 60.51c, the hospital/medical/infectious waste
rules established under section 129.
\12\ Significantly, the statute does not direct EPA to regulate
all solid waste incineration units at commercial or industrial
facilities, but rather to regulate those ``solid waste incineration
units combusting commercial or industrial waste.'' See CAS section
129(a)(1).
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Thus, EPA may define commercial or industrial waste in order to
identify which units are commercial and industrial solid waste
incineration units subject to regulation under section 129 (as opposed
to units regulated under section 112 or other authority). In doing so,
EPA must determine when to treat combustion units at commercial and
industrial facilities like incinerators, and when to treat them like
non-incineration combustion units. For reasons discussed in detail
below, EPA has determined that for purposes of CISWI units, the
critical consideration in determining whether the unit is burning
commercial or industrial waste is the primary function of the
combustion unit; and the primary indicator of function is whether or
not a unit is designed and operated to recover heat for a useful
purpose.
That is, if the unit located at a commercial or industrial facility
combusts material without heat
[[Page 7396]]
recovery (functions primarily as an incineration unit), then the
material burned in that unit is commercial or industrial waste.
Similarly, if a material is burned in a unit at a commercial or
industrial facility for reasons that do not include the recovery of
heat for useful purposes, that material is commercial or industrial
waste and the unit is a CISWI unit. However, if the unit combusts
material with heat recovery for a useful purpose, then the material
burned is not commercial and industrial waste, and the combustion unit
would not be subject to the final CISWI rule.
The EPA's decision in this regard is reflected in its definition of
commercial and industrial waste in the final CISWI rule. By
specifically defining CISWI units to include only units that behave
primarily like incinerators, EPA can appropriately identify the scope
of regulation of combustion units at commercial and industrial
facilities under section 129 of the CAA.
Conceptually, as outlined above, EPA believes that it is reasonable
to define commercial or industrial waste, for purposes of identifying
commercial and industrial solid waste incineration units subject to
regulation under section 129 of the CAA, as follows: solid materials
burned at commercial and industrial facilities are commercial or
industrial waste unless they are (1) hazardous solid wastes, (2)
subject to one of the exemptions included in section 129 of the CAA
(e.g., material recovery facility, qualifying small power production
facility), or (3) burned with heat recovery and for a useful purpose.
Fundamentally, EPA believes this definition is effective,
straightforward, and easy to implement, and that it is a reasonable
approach for distinguishing between commercial or industrial waste and
other solid materials, and between commercial and industrial solid
waste incineration units and other combustion units.
Since promulgation of the CISWI rule and proposal of the boiler
rule, however, EPA has discovered a ``gap'' in coverage of combustion
units between rules developed under section 129 and rules developed
under section 112. As a result, EPA is requesting comment on
definitions to close this gap.
Specifically, as promulgated, the final CISWI rules cover
combustion units at commercial and industrial sites that burn solid
materials without heat recovery. As proposed, the boiler rule covers
combustion units at commercial and industrial sites that burn solid
materials and recover heat in the combustion firebox. Under this
approach, combustion units at commercial and industrial sites that burn
solid materials and do not recover heat in the combustion firebox, but
do recover waste heat from the hot combustion gases following the
combustion firebox, would not to be covered by either the final CISWI
rule or the boiler rule. In addition, EPA believes it is not
appropriate to regulate such units as boilers or process heaters.\13\
This is an oversight EPA intends to correct, as follows: if a material
is burned in a unit at a commercial or industrial facility which is
followed by external waste heat recovery only (i.e., no heat recovery
in the combustion firebox), that material is commercial or industrial
waste and the unit is a CISWI unit.
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\13\ These units are often referred to as incinerators with
waste heat recovery units or incinerators with waste heat boilers.
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Incineration units are designed to discard materials by burning
them at high temperatures and leaving as little residue as possible.
Incineration units do not have heat recovery in the combustion firebox,
but they may be followed by waste heat recovery units. Unlike a boiler
(which is specifically designed to recover the maximum amount of heat
from a material's combustion), waste heat recovery units are designed
to cool the exhaust gas stream, and/or to recover, indirectly, the
useful heat remaining in the exhaust gas from a combustion unit that
has some other primary purpose (such as an incineration unit,
combustion turbine or internal combustion engine). The presence of a
waste heat recovery unit on the exhaust gas does not change the fact
that the unit combusting the material is primarily an incineration
unit. Thus, a combustion unit with no heat recovery in the combustion
firebox is still considered an incineration unit (i.e., used primarily
to dispose of solid waste), whether the incineration unit is followed
by a waste heat recovery unit or not. Such incineration units just
happen to have an external device (the waste heat recovery unit) that
is recovering some of the waste heat from the incineration unit's
exhaust gas.
To address this regulatory ``gap,'' the term ``commercial or
industrial waste'' could be expanded to include materials that are
combusted with only waste heat recovery (i.e., no heat recovery in the
combustion firebox), as well as materials that are combusted with no
heat recovery.
This approach would expand the scope of coverage of the final CISWI
rule by including combustion units located at commercial and industrial
sites burning solid materials with no heat recovery in the combustion
firebox, but with external heat recovery units (i.e., incineration
units with waste heat recovery units).
III. Request for Comment
We request public comment on the definitions described below,
including ``solid waste,'' ``commercial and industrial waste,'' and
``commercial and industrial solid waste incinerator,'' and on the
appropriateness of these definitions for identifying units that will be
regulated as CISWI units under CAA section 129. This request for public
comment is consistent with EPA's commitment to engage in further
proceedings regarding these definitions.
Solid waste means any garbage, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air pollution control
facility and other discarded material, including solid, liquid,
semisolid, or contained gaseous material resulting from industrial,
commercial, mining, agricultural operations, and from community
activities, but does not include solid or dissolved material in
domestic sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges which are point sources subject to
permits under section 402 of the Federal Water Pollution Control Act,
as amended (33 U.S.C. 1342), or source, special nuclear, or byproduct
material as defined by the Atomic Energy Act of 1954, as amended (42
U.S.C. 2014).
Commercial or industrial waste means solid waste (as defined in
this subpart) combusted for reasons that do not include the recovery of
heat for a useful purpose, or combusted without heat recovery or with
only waste heat recovery (i.e., no heat recovery in the combustion
firebox), in an enclosed unit using controlled flame combustion that is
a distinct operating unit of any commercial or industrial facility
(including field-erected, modular, and custom built incineration units
operating with starved or excess air); or solid waste combusted in an
air curtain incinerator that is a distinct operating unit of any
commercial or industrial facility.
Commercial and industrial solid waste incineration (CISWI) unit
means any combustion unit that combusts commercial or industrial waste
(as defined in this subpart), that is a distinct operating unit of any
commercial or industrial facility (including field-erected, modular,
and custom built incineration units operating with starved or excess
air), and any air curtain incinerator that is a distinct operating unit
of any commercial or industrial facility that does not comply with the
opacity limits
[[Page 7397]]
under this subpart applicable to air curtain incinerators burning
commercial or industrial waste. While not all CISWI units will include
all of the following components, a CISWI unit includes, but is not
limited to, the commercial or industrial solid waste feed system, grate
system, flue gas system, waste heat recovery equipment, if any, and
bottom ash system. The CISWI unit does not include air pollution
control equipment or the stack. The CISWI unit boundary starts at the
commercial or industrial waste hopper (if applicable) and extends
through two areas: (1) The combustion unit flue gas system, which ends
immediately after the last combustion chamber or after the waste heat
recovery equipment, if any; and (2) the combustion unit bottom ash
system, which ends at the truck loading station or similar equipment
that transfers the ash to final disposal. The CISWI unit includes all
ash handling systems connected to the bottom ash handling system. A
CISWI unit does not include any of the fifteen types of units described
in section 60.2555 of this subpart, nor does it include any combustion
turbine or reciprocating internal combustion engine.
Waste heat recovery means the process of recovering heat from the
combustion flue gases by convective heat transfer only.
IV. Future Action
Our expectation is that we will take final action on the
definitions discussed and issues addressed in today's notice when we
take final action in response to the voluntary remand of the final
CISWI rule.
Dated: February 10, 2004.
Jeffrey R. Holmstead,
Assistant Administrator, Office of Air & Radiation.
[FR Doc. 04-3366 Filed 2-13-04; 8:45 am]
BILLING CODE 6560-50-P