The Environmental Protection Agency recently issued four rules that create emissions standards and other work practice requirements for facilities with boilers based on criteria such as size, design, and fuels used. Among other things, the rules divide the world of combustion units into those fueled by “legitimate fuels” and those incinerating solid waste and update the definition of “solid waste.”

The rules, below, were published in the Federal Register on March 21, 2011:

Combustion units incinerating solid waste will be regulated by the relatively stringent CISWI standards. Major combustion units fueled by non-waste traditional fuels will be regulated by the new Major Source ICI Boiler NESHAP or the more relaxed Area Source ICI Boiler NESHAP for smaller units.

Existing affected sources must comply with the applicable rule no later than three years after its Federal Register publication date. New and reconstructed affected sources (i.e., those commencing construction after June 4, 2010, the date on which EPA first proposed these regulations) must comply with the applicable rule within 60 days of publication or immediately upon startup, whichever is later. As described below, EPA already has slated certain aspects of these regulations for further consideration and is soliciting comments from the public on these topics.

Major Source ICI Boiler NESHAP

Pursuant to the federal Clean Air Act (CAA) Section 112, this rule applies to major source industrial, commercial, and institutional boilers (largely captive boilers that provide power or heat to individual facilities) and to process heaters that do not combust solid waste (or that combust solid waste and qualify for a statutory exclusion from CAA Section 129(g)(1)).

Major sources are those that have the potential to emit 10 tons or more of any one hazardous air pollutant (HAP) or 25 tons or more of any combination of HAPs. A separate rule, still in the proposal stage, will cover fossil fuel-fired electric utility boilers capable of generating greater than 25 MW.

Highlights of the Rule

The Major Source ICI Boiler NESHAP creates numerical emission limits on particulate matter (PM), mercury (Hg), hydrogen chloride (HCl), carbon monoxide (CO), and dioxin/furans. The rule designates two broad groups of HAPs: fuel-based pollutants (metallic HAP, HCl, and Hg) and combustion-based pollutants (CO and dioxin/furan). This is because sources burning coal, biomass, or a combination are collapsed into a single category for emission limits of fuel-based pollutants but not for emission limits of combustion-based pollutants. Furthermore, EPA has established work practice standards, in lieu of numerical emission limits, for certain subcategories of sources.

Sources are subcategorized into 15 categories of coal, biomass, liquid fuel, and gaseous fuel burning boilers. The final rule may require the installation of additional control technology to meet numerical emission limits for some sources, including fabric filters and activated carbon injection (Hg and PM control), electrostatic precipitators (Hg control), wet scrubbers and dry injection fabric filter combinations (HCl control), and replacement burners, combustion controls, or CO oxidation catalyst for CO and organic HAP control.

Facilities with multiple existing (not new) sources affected by the ICI Boiler rule may opt to average emissions from all sources to achieve compliance. The average of emissions from facilities electing this compliance alternative may not exceed 90 percent of the applicable numerical limit.

Significant Changes since Proposal

  • For combustion-based HAPS, if a boiler burns at least 10 percent biomass on an annual average heat input basis, the unit falls into one of the biomass subcategories.
  • Certain source categories are subject to a work practice standard that requires an annual or biennial tune-up in lieu of emission limits:
    o A new “limited use” subcategory for boilers with a federally enforceable   operating limit of 10 percent of annual capacity or less
    o Boilers combusting only natural gas, refinery gas, or equivalent “clean”   fuel
    o Boilers with less than 10 MMBtu/hr capacity
  • The final rule adds an output-based compliance option expressed in terms of mass of pollutant emitted per boiler energy output (lb/MMBtu energy output), rather than per boiler energy input.
  • The rule requires qualified personnel to conduct a one-time energy assessment at existing facilities to identify any cost-effective energy conservation measures that may be implemented. EPA clarified in the final rule that “facility” incorporates the affected boiler and process heater and other systems or processes that use the energy from the boiler and process heater.
  • The final rule establishes separate work practice standards for periods of startup and shutdown, in lieu of a numerical emission limit during those operational events, by requiring all sources to follow the manufacturer’s recommended procedures for minimizing startup and shutdown time.
  • The final rule creates an affirmative defense to civil penalties for exceeding numerical emission limits due to malfunctions.
  • Testing and compliance methodology requirements have been relaxed for certain sources, particularly with respect to CO and dioxin/furans.

Area Source ICI Boiler NESHAP

Pursuant to CAA Section 112, this new rule applies to area source industrial, commercial, and institutional boilers and process heaters that do not combust solid waste (or that combust solid waste and qualify for a statutory exclusion from CAA Section 129(g)(1)).

Area sources are those that do not meet the definition of “major source.” These are typically boilers used by small entities in commercial establishments, such as stores/malls, laundries, apartments, restaurants, theaters, and hotels/motels, and boilers used in institutions such as medical centers (e.g., hospitals, clinics, nursing homes), educational and religious facilities (e.g., schools, universities, places of worship), and municipal buildings (e.g., courthouses, arts centers, prisons). Although, as a technical matter, area sources might use the same control technology as major sources to meet their respective NESHAPs, in many instances the area source NESHAPs can be met through less extensive and less expensive control measures, such as prescribed work practices.

Highlights of the Rule

The final Area Source ICI Boiler NESHAP implements maximum achievable control technology (MACT) standards for Hg and CO from all coal-fired area source boilers. It also establishes generally available control technology (GACT) standards1 consisting of numerical emission limits for PM from new coal-, biomass- and oil-fueled sources and non-numerical work and management practice standards for CO from all biomass and oil sources. If a boiler burns at least 15 percent biomass on a total fuel annual heat input basis, the unit is in the biomass subcategory. Id. at 29.

Significant Changes since Proposal

  • The final rule subcategorizes each new source category into two subcategories: those that have a heat input capacity of 30 MMBtu/hr or more and those that have a heat input capacity of 10 to 30 MMBtu/hr.
    o For new and existing coal-fired area source boilers with a heat input   capacity of less than 10 MMBtu/hr, a work practice standard has   been established, requiring the implementation of a tune-up program.
  • The rule establishes management practice standards for control of CO from new and existing area source boilers in the biomass and oil subcategories. The management practice standard requires the implementation of a biennial tune-up program.
  • The final rule defines the oil subcategory to include any boiler that burns any liquid fuel and is not in either the biomass or coal subcategory.
  • The rule requires qualified personnel to conduct a one-time energy assessment to identify any cost-effective energy conservation measures that may be implemented. This is a requirement that applies only to existing (not new) sources with a heat input capacity of 10 MMBtu/hr and greater.
  • The final rule establishes separate work practice standards for periods of startup and shutdown, in lieu of a numerical emission limit during those operational events, requiring all sources to follow the manufacturer’s recommended procedures for minimizing startup and shutdown time.
  • The final rule creates an affirmative defense to civil penalties for exceeding numerical emission limits due to malfunctions.

New Definition of Solid Waste

EPA has revised the regulatory definition of “solid waste” to help define the scope of the new CISWI rule described below. Under the Resource Conservation and Recovery Act, solid waste is defined as “…any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material … resulting from industrial, commercial, mining, and agricultural operations ….” (emphasis added). In clarifying the definition, EPA has stated that solid waste consists of all nonhazardous secondary materials burned in combustion units. “Secondary material means any material that is not the primary product of a manufacturing or commercial process, and can include post-consumer material, off-specification commercial chemical products or manufacturing chemical intermediates, post-industrial material, and scrap.”

There are six circumstances under which materials falling within the solid waste definition will not be regulated under CAA Section 129. These exceptions are:

  1. Nonhazardous secondary materials that are legitimately used2 as fuels within the control of the generator are not solid waste when combusted.
  2. Scrap tires that are legitimately used as a fuel and have been collected and managed under an established tire collection program are not solid waste when combusted.
  3. Resinated wood that is legitimately used as a fuel is not solid waste when combusted.
  4. Nonhazardous secondary materials that are legitimately used as ingredients are not solid waste when combusted.
  5. Discarded nonhazardous secondary materials that have undergone processing to produce legitimate fuel or ingredient products are not solid waste when combusted.
  6. Nonhazardous secondary materials used as a fuel for which EPA grants a Non-Waste Determination are not solid waste when combusted.


Under the new definition, traditional fuels are not considered nonhazardous secondary materials that are solid waste and are therefore regulated under Section 112 standards, including the new ICI Boiler NESHAPs described above. EPA has defined traditional fuels as the following:

  • Fuels that have been historically managed as valuable fuel products, including fossil fuels (e.g., coal, oil, and natural gas)
  • Their derivatives (e.g., petroleum coke, bituminous coke, coal tar oil, refinery gas, synthetic fuel, heavy recycle, asphalts, blast furnace gas, recovered gaseous butane, and coke oven gas)
  • Cellulosic biomass (e.g., virgin wood)
  • Alternative fuels developed from virgin materials that can now be used as fuel products, including used oil that meets certain specifications, currently mined coal refuse that previously had not been usable as coal, and clean cellulosic biomass

These traditional fuels are excluded from the solid waste definition unless they were discarded before use as fuel.

CISWI

Pursuant to CAA Section 129, this rule applies to any industrial or commercial facility combusting any amount of solid waste, defined above, typically at least in part for the purpose of disposing of that solid waste. New CISWI units must demonstrate compliance with the applicable emission limits within 60 days after the CISWI unit reaches the charge rate at which it will operate but no later than 180 days after its initial startup. Existing CISWI units must demonstrate compliance with the applicable emission guidelines as expeditiously as practicable, after approval of a required state plan for implementing and enforcing those guidelines, but no later than three years from the date of approval of this state plan or five years after promulgation of these revised guidelines, whichever is earlier.

Highlights of the Rule

The rule establishes stringent MACT-based emission limits for nine pollutants emitted from new and existing CISWI units: Hg, lead, cadmium, HCl, PM, CO, dioxins/furans, nitrogen oxides, and sulfur dioxide. These emission standards apply during all operating phases, including startup and shutdown. CISWI units are divided into five subcategories: incinerators, small remote incinerators, ERUs (solid and liquid), and waste burning kilns. The final rule may require the installation of additional control technology to meet numerical emission limits for some sources in these categories, including fabric filters (Hg, lead, cadmium and PM control) and activated carbon injection (Hg and dioxin/furan control), wet scrubbers, and dry injection fabric filter combinations (HCl and sulfur dioxide control); selective non-catalytic reduction (nitrogen oxide control) and replacement burners; combustion controls; or CO oxidation catalyst for CO and organic HAP control.

Significant Changes since Proposal

  • The final rule divided the Energy Recovery Units (ERUs) into two subcategories: solid and liquid ERUs.
  • Provisions limiting fuel-switching were added, requiring sources to wait six months after making a fuel switch between waste and non-waste combustion to prevent sources from switching between the ICI Boiler and CISWI regulations freely.
  • The final rule removed burn-off ovens and cyclonic burn barrels from the definition of an incinerator.
  • The final rule creates an affirmative defense to civil penalties for exceeding numerical emission limits due to malfunctions.

Reconsideration Notice

On the same date that EPA Administrator Lisa P. Jackson signed the final rules, she also signed a notice of reconsideration of each rule. The notice invokes her authority under CAA to convene a proceeding for reconsideration of a rule. EPA has convened this reconsideration proceeding on its own initiative. In the reconsideration proceeding, EPA will seek public comment on specific elements of the rules for which the agency believes further public comment and possible further revision is appropriate. The notice identifies several issues in the final rules that are appropriate for additional public comment. The highlights are the following:

  1. Revision of the proposed subcategories
  2. Establishment of a fuel specification through which gas-fired boilers that use a fuel other than natural gas may be considered “clean” gas units
  3. Establishment of standards for biomass and oil-fired area source boilers based on generally available control technology
  4. Revision of the proposed subcategory for energy recovery units for CISWI units
  5. Establishment of limitations on fuel-switching provisions for CISWI units
  6. Establishment of work practice standards for limited-use boilers
  7. Provision of an affirmative defense for malfunction events


EPA also identified provisions that may warrant further revision because they involve issues of central relevance that arose after the public comment period or may have been impracticable to comment upon. Those issues include the following:

  1. Revising the proposed monitoring requirements for carbon monoxide 
  2. Setting PM standards under generally available control technology for oil-fired area source boilers. 
  3. Revising the proposed dioxin emission limits and testing requirements 
  4. Establishing a full-load stack test requirement for carbon monoxide, coupled with continuous oxygen monitoring


The CAA states that a reconsideration proceeding “shall not postpone the effectiveness of the rule.” The Administrator may stay the effectiveness of the rule during reconsideration for no more than three months. However, at this time, the final rule states that it will be effective 60 days after the Federal Register publication date.

If you have questions about how these regulations might affect your operation, or about other environmental regulatory programs, call Glenn L. Unterberger, partner-in-charge of Ballard Spahr’s Environmental Group, at 215.864.8210 or unterberge@ballardspahr.com, or Michael C. Duffy at 215.864.8248 or duffym@ballardspahr.com.

1 EPA defines GACT standards as “… methods, practices and techniques which are commercially available and appropriate for application by the sources in the category considering economic impacts and the technical capabilities of the firms to operate and maintain the emissions control systems.”

2 These six exceptions must meet EPA’s “legitimacy criteria,” which generally require a demonstration that the materials are managed as a valuable commodity; have a meaningful heating, energy, or product ingredient value; and, in the case of materials used as fuels, contain “contaminants at levels comparable in concentration to or lower than those in traditional fuels” that the source was designed to burn.


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