National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters

AGENCY:

Environmental Protection Agency.

ACTION:

Proposed rule.

SUMMARY:

On January 31, 2013, the Environmental Protection Agency (EPA) finalized amendments to the national emission standards for the control of hazardous air pollutants (HAP) from new and existing industrial, commercial, and institutional boilers and process heaters at major sources of HAP. Subsequently, the EPA received 10 petitions for reconsideration of the final rule. The EPA is announcing reconsideration of and requesting public comment on three issues raised in the petitions for reconsideration, as detailed in the SUPPLEMENTARY INFORMATION section of this notice. The EPA is seeking comment only on these three issues. The EPA will not respond to any comments addressing any other issues or any other provisions of the final rule. Additionally, the EPA is proposing amendments and technical corrections to the final rule to clarify definitions, references, applicability and compliance issues raised by stakeholders subject to the final rule. Also, we propose to delete rule provisions for an affirmative defense for malfunction in light of a recent court decision on the issue.

DATES:

Comments. Comments must be received on or before March 9, 2015, or 30 days after date of public hearing if later.

Public Hearing. If anyone contacts us requesting to speak at a public hearing by January 26, 2015, a public hearing will be held on February 5, 2015. If you are interested in attending the public hearing, contact Ms. Pamela Garrett at (919) 541-7966 or by email at garrett.pamela@epa.gov to verify that a hearing will be held.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2002-0058, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• Email: A-and-R-Docket@epa.gov. Include docket ID No. EPA-HQ-OAR-2002-0058 in the subject line of the message.
• Fax: (202) 566-9744, Attention Docket ID No. EPA-HQ-OAR-2002-0058.
• Mail: Environmental Protection Agency, EPA Docket Center (EPA/DC), Mail Code 28221T, Attention Docket ID No. OAR-2002-0058, 1200 Pennsylvania Avenue NW., Washington, DC 20460. The EPA requests a separate copy also be sent to the contact person identified below (see FOR FURTHER INFORMATION CONTACT).
• Hand/Courier Delivery: EPA Docket Center, Room 3334, EPA WJC West Building, 1301 Constitution Avenue NW., Washington, DC 20004, Attention Docket ID No. EPA-HQ-OAR-2002-0058. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2002-0058. The EPA's policy is that all comments received will be included in the public docket without change and may be made available on-line at www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through www.regulations.gov,, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Public Hearing: If anyone contacts the EPA requesting a public hearing by January 26, 2015, the public hearing will be held on February 5, 2015 at the EPA's campus at 109 T.W. Alexander Drive, Research Triangle Park, North Carolina. The hearing will begin at 10:00 a.m. (Eastern Standard Time) and conclude at 5:00 p.m. (Eastern Standard Time). There will be a lunch break from 12:00 p.m. to 1:00 p.m. Please contact Ms. Pamela Garrett at 919-541-7966 or at garrett.pamela@epa.gov to register to speak at the hearing or to inquire as to whether or not a hearing will be held. The last day to pre-register in advance to speak at the hearing will be February 2, 2015. Additionally, requests to speak will be taken the day of the hearing at the hearing registration desk, although preferences on speaking times may not be able to be fulfilled. If you require the service of a translator or special accommodations such as audio description, please let us know at the time of registration. If you require an accommodation, we ask that you pre-register for the hearing, as we may not be able to arrange such accommodations without advance notice. The hearing will provide interested parties the opportunity to present data, views or arguments concerning the proposed action. The EPA will make every effort to accommodate all speakers who arrive and register. Because the hearing is being held at a U.S. government facility, individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff in order to gain access to the meeting room. Please note that the REAL ID Act, passed by Congress in 2005, established new requirements for entering federal facilities. If your driver's license is issued by Alaska, American Samoa, Arizona, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Montana, New York, Oklahoma or the state of Washington, you must present an additional form of identification to enter the federal building. Acceptable alternative forms of identification include: Federal employee badges, passports, enhanced driver's licenses and military identification cards. In addition, you will need to obtain a property pass for any personal belongings you bring with you. Upon leaving the building, you will be required to return this property pass to the security desk. No large signs will be allowed in the building, cameras may only be used outside of the building and demonstrations will not be allowed on federal property for security reasons. The EPA may ask clarifying questions during the oral presentations, but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing. A hearing will not be held unless requested.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the EPA Docket Center (EPA/DC), Room 3334, EPA WJC West Building, 1301 Constitution Ave., NW., Washington, DC. The 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 Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT:

Mr. Jim Eddinger, Energy Strategies Group, Sector Policies and Programs Division (D243-01), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5426; facsimile number: (919) 541-5450; email address: eddinger.jim@epa.gov.

SUPPLEMENTARY INFORMATION:

Organization of this Document. The following outline is provided to aid in locating information in the preamble.

I. General Information

A. What is the source of authority for the reconsideration action?

B. What entities are potentially affected by the reconsideration action?

C. What should I consider as I prepare my comments for the EPA?

II. Background

III. Discussion of the Issues under Reconsideration

A. Startup and Shutdown Provisions

B. CO Limits Based on a Minimum CO Level of 130 ppm

C. Use of PM CPMS Including Consequences of Exceeding the Operating Parameter

IV. Technical Corrections and Clarifications

V. Affirmative Defense for Violation of Emission Standards During Malfunction

VI. Solicitation of Public Comment and Participation

VII. Statutory and Executive Order Reviews

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

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

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

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

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

I. National Technology Transfer and Advancement Act

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

I. General Information

A. What is the source of authority for the reconsideration action?

The statutory authority for this action is provided by sections 112 and 307(d)(7)(B) of the Clean Air Act as amended (42 U.S.C. 7412 and 7607(d)(7)(B)).

B. What entities are potentially affected by the reconsideration action?

Categories and entities potentially regulated by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. To determine whether your boiler or process heater is regulated by this action, you should examine the applicability criteria in 40 CFR 63.7485. If you have any questions regarding the applicability of this action to a particular entity, consult either the air permitting authority for the entity or your EPA regional representative, as listed in 40 CFR 63.13 of subpart A (General Provisions).

C. What should I consider as I prepare my comments for the EPA?

Submitting CBI. Do not submit this information to the EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to the EPA, 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 claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. Send or deliver information identified as CBI to only the following address: Mr. Jim Eddinger, c/o OAQPS Document Control Officer (Mail Drop C404-02), U.S. EPA, Research Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-2002-0058.

Docket. The docket number for this notice is Docket ID No. EPA-HQ-OAR-2002-0058.

World Wide Web (WWW). In addition to being available in the docket, an electronic copy of this notice will be posted on the WWW through the Technology Transfer Network Web site (TTN Web). Following signature, the EPA will post a copy of this notice at http://www.epa.gov/ttn/atw/boiler/boilerpg.html. The TTN provides information and technology exchange in various areas of air pollution control.

II. Background

On March 21, 2011, the EPA promulgated national emissions standards for hazardous air pollutants (NESHAP) for the Major Source Boilers and Process Heaters source category. The EPA received a number of petitions for reconsideration on that action, and granted reconsideration on certain issues raised in the petitions. On January 31, 2013, the EPA promulgated amendments to the NESHAP for new and existing industrial, commercial, and institutional boilers and process heaters located at major sources (78 FR 7138). Following promulgation of the January 31, 2013, final rule, the EPA received 10 petitions for reconsideration pursuant to section 307(d)(7)(B) of the Clean Air Act (CAA). The EPA received petitions dated March 28, 2013, from New Hope Power Company and the Sugar Cane Growers Cooperative of Florida. The EPA received a petition dated March 29, 2013, from the Eastman Chemical Company. The EPA received petitions dated April 1, 2013, from Earthjustice, on behalf of Sierra Club, Clean Air Council, Partnership for Policy Integrity, Louisiana Environmental Action Network, and Environmental Integrity Project; American Forest and Paper Association on behalf of American Wood Council, National Association of Manufacturers, Biomass Power Association, Corn Refiners Association, National Oilseed Processors Association, Rubber Manufacturers Association, Southeastern Lumber Manufacturers Association, and U.S. Chamber of Commerce; the Florida Sugar Industry; Council of Industrial Boiler Owners, American Municipal Power, Inc., and American Chemistry Council; American Petroleum Institute; and the Utility Air Regulatory Group which also submitted a supplemental petition on July 3, 2013. Finally, the EPA received a petition dated July 2, 2013, from the Natural Environmental Development Association's Clean Air Project and the Council of Industrial Boiler Owners. The petitions are available for review in the rulemaking docket (see Docket ID No. EPA-HQ-OAR-2002-0058).

On August 5, 2013, the EPA issued letters to the petitioners granting reconsideration on three specific issues raised in the petitions for reconsideration and indicating that the agency would issue a Federal Register notice regarding the reconsideration process. This action requests comment on the three issues for which the EPA granted reconsideration and proposes certain revisions to the definitions of startup and shutdown and the work practices that apply during startup and shutdown periods. Additionally, the letters indicated that the EPA intends to make certain clarifying changes and corrections to the final rule, some of which were also raised in the petitions for reconsideration. This action proposes revisions to the regulatory text that would make those clarifications and corrections.

III. Discussion of the Issues Under Reconsideration

The EPA took final action on its proposed amendments to the March 2011 NESHAP on January 31, 2013, (78 FR 7138) to address certain issues raised in the petitions for reconsideration of the 2011 NESHAP.

The January 31, 2013, amendments revised, among other things, the definitions of “startup” and “shutdown” as well as the work practice requirements for the startup and shutdown periods. The amendments also established a carbon monoxide (CO) threshold level as an appropriate minimum maximum achievable control technology (MACT) floor level that adequately assures sources will be controlling organic HAP emissions to MACT levels. The amendments also replaced the requirement for certain units to install and operate a continuous emission monitoring system (CEMS) measuring particulate matter (PM) emissions with a requirement to install and operate a PM continuous parameter monitoring system (CPMS) which established reporting requirements for deviations and established conditions under which PM CPMS deviations would constitute a presumptive violation of the NESHAP. The EPA received petitions for reconsideration of certain aspects of these requirements, and granted reconsideration of the following three issues on August 5, 2013, to provide an additional opportunity for public comment:

• Definition of startup and shutdown periods and the work practices that apply during such periods;
• Revised CO limits based on a minimum CO level of 130 parts per million (ppm); and
• The use of PM CPMS, including the consequences of exceeding the operating parameter.

The reconsideration petitions stated that the public lacked sufficient opportunity to comment on these provisions. Although these provisions were established after consideration of public comments received on the proposed rule, the EPA is granting reconsideration on these issues in order to allow an additional opportunity for comment. These issues are discussed in more detail in the following sections.

For the startup and shutdown provisions, the EPA is proposing certain revisions to the definitions of startup and shutdown and to the work practice standard that applies during the startup and shutdown periods. The proposed revision to the definition of startup is the addition of an alternate definition of startup. The revision to the work practice standard that applies during the startup period is the addition of an alternate work practice provision regarding the engaging of control devices that applies during startup periods. The EPA is not proposing revisions to the CO limits or the use of PM CPMS, but will consider any input that we receive in this additional public comment opportunity.

Additionally, the EPA is proposing certain clarifying changes and corrections to the final rule, some of which were also raised in the petitions for reconsideration. Specifically, these are: (1) Clarify issues related to the applicability of the major source boiler rule to natural gas-fired electric utility steam generating units (EGUs); (2) clarify the compliance date for coal- or oil-fired EGUs that become subject to the major source boiler rule; (3) correct a conversion error in the MACT floor calculation for existing hybrid suspension grate boilers; (4) clarify certain recordkeeping requirements, including, for example, those related to records for periods of startup and shutdown for boilers and process heaters in the Gas 1 subcategory. The EPA also proposes to clarify and correct certain inadvertent inconsistencies in the final rule regulatory text, such as removal of unnecessary references to statistical equations, inclusion of averaging time for operating load limits in Table 8 to the final rule, and correction of the compliance date for new sources to reflect the effective date of the final rule.

A. Startup and Shutdown Provisions

The EPA received petitions asserting that the public lacked an opportunity to comment on the startup and shutdown provisions amended in the January 2013, final rule. Specifically, petitioners asserted that the definitions of “startup” and “shutdown” in the amended final rule failed to address restarts of process heaters and that the provisions for work practice standards did not adequately address fuels considered “clean” and operational limitations for certain pollution control devices.

In response to petitions for reconsideration received on the March 2011 NESHAP, the EPA proposed definitions of “startup” and “shutdown” in December 2011 that were based on load specifications. The EPA received comments on the proposed definitions stating that load specifications within the definitions were inconsistent with either safe or normal (proper) operation of the various types of boilers and process heaters encountered within the source category. As the basis for defining periods of startup and shutdown, a number of commenters suggested that the EPA instead use the achievement of various steady-state conditions. The definitions in the January 2013 final rule addressed these comments by defining startup and shutdown based on the time during which fuel is fired in a boiler or process heater for the purpose of supplying steam or heat for heating and/or producing electricity or for any other purpose. As explained in the preamble to the January 2013 final rule, the EPA believes these definitions are appropriate because boilers and process heaters function to provide steam or heat; therefore, boilers and process heaters should be considered to be operating normally at all times steam or heat of the proper pressure, temperature and flow rate is being supplied to a common header system or energy user(s) for use as either process steam or for the cogeneration of electricity.

The EPA also proposed work practices for startup and shutdown periods in the December 2011 notice, which generally required employing good combustion practices. In the January 2013 final rule, the EPA revised the proposed work practice standards after consideration of comments received. Among other things, the revised final work practice standards required sources to combust clean fuels during startup and shutdown periods and required sources to engage air pollution control devices (APCDs) when coal, biomass or heavy oil are fired in the boiler or process heater. (See 78 FR 7198-99.)

We are granting reconsideration on the definitions of startup and shutdown and the work practices that apply during these periods that are in the January 2013 final rule and are also proposing certain revisions to these aspects of the startup and shutdown provisions that are in the January 2013 final rule. We are also proposing an alternate definition of startup and an alternate work practice provision regarding the engaging of pollution control devices.

1. Definitions

We are soliciting comment on the definition of startup and shutdown that were promulgated in the January 2013 final rule, with the clarifying revisions explained below. We are proposing to revise the definitions of startup and shutdown in this reconsideration notice as set forth in 40 CFR 63.7575. Petitioners asserted that the final rule's definitions of startup and shutdown were not sufficiently clear. We are proposing to revise the definitions as explained below.

a. Definition of Startup Period. In addition to soliciting public comment on the definition of startup contained in the January 2013 final rule, the EPA is proposing to add an alternate definition to the definition of startup that is in the January 2013 final rule. We are proposing to allow sources to use either definition of startup when complying with the startup requirements. As explained in more detail below, under the alternate definition, startup would end four hours after the unit begins supplying useful thermal energy.

Specifically, the EPA is proposing the alternate definition to clarify that, in terms of the first-ever firing of fuel, startup begins when fuel is fired for the purpose of supplying useful thermal energy (such as steam or heat) for heating, process, cooling, and/or producing electricity and to clarify that startup ends 4 hours after when the boiler or process heater makes useful thermal energy. The proposed clarification regarding the end of startup would apply to first-ever startups as well as startups occurring after shutdown events. With regard to when startup begins after a shutdown event, the alternate definition is the same as the definition in the January 31, 2013, final rule. That is, startup begins with the firing of fuel in a boiler for any purpose after a shutdown event.

In this alternate definition, we are proposing the clarification regarding the first-ever firing of fuel to address implementation issues regarding “pre-startup” activities that are done as part of installing a new boiler or process heater. Under the January 2013 definition of “startup,” a new boiler or process heater would be considered to have started up, and be subject to the rule, when it first fires fuel “for any purpose.” However, a newly installed unit needs to be tested to ensure that it was properly installed and will operate as it was designed and that all associated components were also properly installed and will operate as designed. The EPA did not intend for the startup period to begin when newly installed units first fire fuel for testing or other pre-startup purposes because such firing of fuel does not represent normal operation of the unit.

The EPA is also proposing in the alternate definition to replace the term “steam and heat” in the January 2013 definition of startup with the term “useful thermal energy.” This proposed revision would apply to first-ever startups as well as startups after shutdown events and is intended to address the issue raised by petitioners that the language in the January 2013 definition regarding the end of the startup period is ambiguous since once fuel is fired some steam or heat is generated but not in useful or controllable quantities. The petitioners comment that it takes time for steam and process fluid to be heated to adequate temperatures and pressures for beneficial use and that steam or heat should not be construed to be supplied until it is of adequate temperature and pressure. The EPA agrees with petitioners that the startup period should not end until such time as fuel is fired resulting in steam or heat that is useful thermal energy because it takes time for steam and process fluids to be heated to adequate temperatures and pressures for beneficial use. We believe the appropriate criteria for ending startup in the definition should be when useful steam is supplied. This proposed change doesn't alter EPA's determination that it is not technically feasible to require stack testing, in particular, to complete the multiple required test runs during periods of startup and shutdown due to physical limitations and the short duration of startup and shutdown periods.

In order to clarify the term “useful thermal energy,” we are proposing a definition for “useful thermal energy” as follows:

Useful thermal energy means energy (i.e., steam, hot water, or process heat) that meets the minimum operating temperature and/or pressure required by any energy use system that uses energy provided by the affected boiler or process heater.

The EPA received several petitions for reconsideration of the definition of startup in the January 2013 final rule. The petitioners commented that this definition does not account for a wide range of boilers that operationally are still in startup mode even after some steam or heat is supplied to the plant. Specifically, the petitioners commented that what constitutes “startup” for all boilers varies widely. For example, petitioners claimed that some boilers begin to supply steam or heat for some purposes onsite before they have achieved necessary temperature or load to engage emission controls.

The petitioners commented that according to the final rule, a boiler supplying even a small amount of steam would no longer be in startup and would be required at that point in time to engage emission controls. However, petitioners noted that according to equipment specifications and established safe boiler operations, a boiler operator should not engage emission controls until specific parameters are met.

The petitioners expressed that, above all, the boiler/process heater operator's primary concern during startup is safety. The startup procedures must ensure that the equipment is brought up to normal operating conditions in a safe manner, and startup ends when the boiler/process heater and its controls are fully functional. The end of startup occurs when safe, stable operating conditions are reached, after emissions controls are properly operating. The startup provisions should not include requirements that could affect safe operating practices.

The EPA agrees with the petitioners that the startup period should not end until such time that all control devices have reached stable conditions. The EPA has very limited information specifically for industrial boilers on the hours needed for controls to reach stable conditions after the start of supplying useful thermal energy. However, the EPA does have information for EGUs on the hours to stable control operation after the start of electricity generation. Using hour-by-hour emissions and operation data for EGUs reported to the agency under the Acid Rain Program, we found that controls used on the best performing 12 percent EGUs reach stable operation within 4 hours after the start of electricity generation. See technical support document titled “Assessment of Startup Period at Coal-Fired Electric Generating Units—Revised” in the docket. Since the types of controls used on EGUs are similar to those used on industrial boilers and the start of electricity generation is similar to the start of supplying useful thermal energy, we believe that the controls on the best performing industrial boilers would also reach stable operation within 4 hours after the start of supplying useful thermal energy and have included this timeframe in the proposed alternate definition. This conclusion is supported by the very limited information (13 units) the EPA does have on industrial boilers and by information submitted by the Council of Industrial Boiler Owners obtained from an informal survey of its members on the time needed to reach stable conditions during startup. We welcome comment and additional information on this point during the public comment period.

b. Definition of Shutdown. In today's action, the EPA is proposing to revise the definition of shutdown in the January 2013 final rule. The EPA is proposing to clarify that shutdown begins when the boiler or process heater no longer makes useful thermal energy and ends when the boiler or process heater no longer makes useful thermal energy and no fuel is fired in the boiler or process heater. Specifically, the EPA is proposing to revise the regulatory text to replace the term “steam and heat” with the term “useful thermal energy” to address the same issue as raised by petitioners regarding the language in the definition of “startup” described above. The EPA did not intend for the shutdown period to begin until such time as fuel is no longer fired for the purpose of creating useful thermal energy.

The EPA received several petitions for reconsideration of the definition of shutdown in the January 2013 final rule. The petitioners expressed concerns that the definition is problematic for units firing solid fuels on a grate or in a fluidized bed combustor where the residual material in the unit keeps burning after fuel feed to the unit is stopped. In this case, petitioners explained that fuel is still burning (“being fired”) in the unit despite the fact that load reduction is occurring, additional fuel is not being fed, and the shutdown process has clearly begun. For this reason, petitioners recommend that the shutdown definition be revised to state that shutdown begins either when none of the steam and heat from the boiler or process heater is supplied for heating and/or producing electricity or when fuel is no longer being fed to the boiler or process heater and that shutdown ends when there is both no steam or heat being supplied and no fuel being combusted in the boiler or process heater.

The EPA agrees with the petitioners' concerns and intended that the shutdown period would begin when fuel is no longer being fired for the purpose of creating useful thermal energy. The proposed revisions would address the concern raised by the petitioner. The proposed revision is appropriate because as the petitioners commented, for certain types of boilers where the fuel is combusted on a grate or bed, fuel firing may be considered to continue even after fuel feed to the unit is stopped.

2. Work Practice Standards

In today's action, the EPA is proposing to revise the work practice standards in the January 2013 final rule that apply during periods of startup and shutdown. Specifically, the EPA is proposing revisions to the list of “clean fuel” in the January 2013 final rule and is proposing an alternate work practice requirement for periods of startup and shutdown. Sources would have the choice of complying with the work practice requirement contained in the January 2013 final rule or the alternate work practice requirement proposed in today's action. Additionally, EPA is proposing a process through which sources can seek an extension of the time period by which the alternate work practice provision requires PM controls to be engaged, based on documented safety considerations. Finally, EPA is proposing certain recordkeeping and monitoring requirements that would apply to sources that choose to comply with the alternate work practice. These proposed provisions are described in more detail below.

a. Clean Fuel Requirement. The January 2013 final rule requires sources to startup on “clean fuel.” The definition of “clean fuel” includes several fuels but does not include coal or biomass or other solid fuels that many sources use during boiler startup. In the December 2011 proposed rule, we solicited comment on “whether other work practices should be required during startup and shutdown, including requirements to operate using specific fuels to reduce emissions during such periods.”

In a petition for reconsideration, the petitioners claimed that the list of clean fuels, as written, is too narrow. They requested that the EPA expand the list to include all gaseous fuels meeting the “other gas 1” classification as well as biodiesel, as distillate oil is sometimes a biodiesel blend. They also requested that fuels that meet the total selected metals (TSM), hydrogen chloride (HCl), and mercury emission limits using fuel analysis should be added to the list of clean fuels. Dry biomass (less than 20-percent moisture content) should also be added to the list of clean fuels because they claim it will burn cleaner than other solid fuels. Specifically, they claim that it is a clean fuel for startup because it exhibits low HCl, mercury and CO emissions due to its chloride, mercury, and moisture content, and PM emissions would likely be below the dry biomass subcategory PM limit. Therefore, the petition states that it is a reasonable work practice for solid fuel boilers to burn only dry biomass as clean fuel during startup. In addition, the petition recommends that permitting authorities should have the flexibility to approve other clean fuels that EPA may not have considered (e.g., other renewable fuels).

We are proposing two changes to the list of clean fuels for starting up a boiler or process heater. We agree that the list should include all gaseous fuels meeting the “other gas 1” classification. Also, we agree that any fuels that meet the applicable TSM, HCl and mercury emission limits using fuel analysis should be added to the list of clean fuels because their mercury, HCl and metals emissions would be in compliance with the applicable emission limits without the use of control devices. Sources would demonstrate compliance either through fuel analysis for the relevant parameters or stack testing. The EPA does not believe it is necessary to revise the regulatory text of the “clean fuel” definition to specifically include biodiesel on the list since the definition of “distillate oil” in the rule includes biodiesel.

b. Engaging Pollution Control Devices. The January 2013 final rule required boilers and process heaters when they start firing coal/solid fossil fuel, biomass/bio-based solids, heavy liquid fuel or gas 2 (other) gases to engage applicable pollution control devices except for limestone injection in fluidized bed combustion (FBC) boilers, dry scrubbers, fabric filters, selective non-catalytic reduction (SNCR) and selective catalytic reduction (SCR), which must start as expeditiously as possible. The EPA received several petitions for reconsideration of this aspect of the work practice standard.

The petitioners expressed concerns that the requirement for engaging applicable control devices does not accommodate potential safety problems relative to electrostatic precipitator (ESP) operation. Comments and recommended manufacturer operating procedures provided to the EPA during the comment period for the December 2011 proposal explained the potential hazards associated with ESP energization when unburned fuel may be present with oxygen levels high enough that the mixture can be in the flammable range. The petitioners referenced these comments and requested that the EPA needs to reconsider this safety issue and revise the requirements to include ESP energization with the other controls that are to be started as expeditiously as possible rather than when solid fuel firing is first started. In addition, they claim that the ESP cannot practically be engaged until a certain flue gas temperature is reached. Specifically, they claim that premature starting of this equipment will lead to short-term stability problems that could result in unsafe actions and longer term degradation of ESP performance due to fouling, increased chances of wire damage, or increased corrosion within the chambers. They also state that vendors providing this equipment incorporate these safety and operational concerns into their standard operating procedures. For example, they claim that some ESPs have oxygen sensors and alarms that shut down the ESP at high flue gas oxygen levels to avoid a fire in the unit. The oxygen level is typically high during startup, so the ESP may not engage due to these safety controls until more stable operating conditions are reached. Therefore, the petitioners request that ESPs be included in the list of air pollution controls that must be started as expeditiously as possible.

Considering the petitioners' comments, the EPA is proposing an alternate work practice requirement for operating air pollution control devices during periods of startup as follows.

Boilers and process heaters owners and operators shall, when firing coal/solid fossil fuel, biomass/bio-based solids, heavy liquid fuel or gas 2 (other) gases, vent emissions to the main stack(s) and engage all of the applicable control devices so as to comply with the emission limits within 4 hours of start of supplying useful thermal energy. Owners and operators must effect PM control within one hour of first firing coal/solid fossil fuel, biomass/bio-based solids, heavy liquid fuel or gas 2 (other) gases. Owners and operators must start all applicable control devices as expeditiously as possible, but, in any case, when necessary to comply with other standards applicable to the source by a permit limit or a rule other than this subpart that require operation of the control devices.

The EPA believes that the control technology operation related requirements we are proposing are practicable and broadly applicable. Owners and operators of boilers and process heaters have options to minimize any potential for detrimental impacts on hardware and any safety concerns, such as using clean fuels until appropriate flue gas conditions have been reached and then switching to the primary fuel. In addition, we are proposing in the alternate work practice requirement that owners and operators of boilers and process heaters, if they have an applicable emission limit, must develop and implement a written startup and shutdown plan (SSP) according to the requirements in Table 3 to this subpart and that the SSP must be maintained onsite and available upon request for public inspection. Also in the alternate work practice requirement, we are proposing to allow a source to request a unit-specific case-by-case extension to the 1-hour period for engaging the PM controls. However, the EPA will only consider extensions for units that can provide evidence of a documented manufacturer-identified safety issue and can provide proof that the PM control device is adequately designed and sized to meet the filterable PM emission limit. In its request for the case-by-case determination, the owner/operator must provide, among other materials, documentation that: (1) The unit is using clean fuels to the maximum extent possible to alleviate or prevent the safety issue prior to the combustion of coal/solid fossil fuel, biomass/bio-based solids, heavy liquid fuel or gas 2 (other) gases in the unit, (2) the source has explicitly followed the manufacturer's procedures to alleviate or prevent the safety issue, (3) details the manufacturer's statement of concern, and (4) provides evidence that the PM control device is adequately designed and sized to meet the PM emission limit.

In order to clarify that the work practice does not supersede any other standard or requirements to which the affected source is subject, the EPA is including in the proposed alternate work practice provision a requirement that requires control devices to operate when necessary to comply with other standards (e.g., new source performance standards, state regulations) applicable to the source that require operation of the control device.

In addition, to ensure compliance with the proposed definition of startup and the work practice standard that applies during startup periods, we are proposing that certain events and parameters be monitored and recorded during the startup periods. These events include the time when firing (i.e., feeding) starts for coal/solid fossil fuel, biomass/bio-based solids, heavy liquid fuel or gas 2 (other) gases; the time when useful thermal energy is first supplied; and the time when the PM controls are engaged. The parameters to be monitored and recorded include the hourly steam temperature, hourly steam pressure, hourly flue gas temperature, and all hourly average CMS data (e.g., CEMS, PM CPMS, continuous opacity monitoring systems (COMS), ESP total secondary electric power input, scrubber pressure drop, scrubber liquid flow rate) collected during each startup period to confirm that the control devices are engaged.

We request comments on (1) the startup and shutdown provisions (definitions and work practices) in the January 2013 final rule, (2) the proposed alternate definition for “startup” and the proposed alternate work practice (item 5.c.(2) of Table 3 of proposed rule) for the startup period, and (3) the recordkeeping requirements being proposed for the startup periods.

B. CO Limits Based on a Minimum CO Level of 130 ppm

In the January 2013 final rule, EPA established a CO emission limit for certain subcategories at a level of 130 ppm, based on an analysis of CO levels and associated organic HAP emissions reductions. See 78 FR 7144. The EPA received a petition for reconsideration of these CO limits in the January 2013 final rule. The petitioner claimed that these limits do not satisfy the statutory requirement that the MACT standard for existing sources is no less stringent than the average emission limitation achieved by the best performing twelve percent of units in the subcategory and that EPA's rationale for adopting these limits is unrelated to this statutory MACT requirement.

The EPA revised these particular CO limits in the January 2013 final rule in part based on comments received during the comment period for the December 2011 proposed rule stating that a CO emission standard no lower than 100 ppm, corrected to 7-percent oxygen, is adequate to assure complete control of organic HAP.

As explained in the preamble to the January 2013 final rule, formaldehyde was selected as the basis of the organic HAP comparison because it was the most prevalent organic HAP in our emission database and a large number (over 300) of paired test runs existed for CO and formaldehyde. The linear relationship between CO and formaldehyde emissions exhibits a high correlation for CO levels above 150 ppm, supporting the selection of CO as a surrogate for organic HAP emissions. In assessing the correlation between CO and formaldehyde, a trend can be seen that formaldehyde levels are lowest when CO emissions are in the range of 150 to 300 ppm. At levels lower than 150 ppm, the mean levels of formaldehyde appear to increase. Based on this analysis, we promulgated a minimum MACT floor level for CO of 130 ppm, at 3-percent oxygen, (which is equivalent to 100 ppm corrected to 7-percent oxygen) which we believe is protective of human health and the environment.

The EPA does not believe the petitioners have provided sufficient justification that the revised CO limits in the January 2013 final rule do not satisfy the CAA's statutory floor requirements, and the EPA continues to believe that these standards do in fact satisfy the CAA's floor requirements. CAA section 112(d)(3) states that emission standards for existing sources shall not be less stringent, and may be more stringent than “the average emission limitation achieved by the best performing sources (for which the Administrator has emission information).” If “lowest emitting” is used as the measure for determining “best performing” sources, then the 130 ppm standard does satisfy the CAA's floor requirements. When the available formaldehyde emission information is ranked and the best performing 12 percent identified, the mathematical average of the best performing units' corresponding CO emission levels is 240 ppm which is in the range, previously indicated, that formaldehyde emission levels are lowest.

However, in consideration of the fact that the public lacked the opportunity to comment on the CO emission limits established at the level of 130 ppm, corrected to 3-percent oxygen, the EPA has granted reconsideration on the CO emission limits established at the level of 130 ppm, corrected to 3-percent oxygen, to provide an additional opportunity for public comment on those limits. The EPA is not soliciting comment on any other CO limits, or on other issues relating to establishment of CO limits, including the question of whether EPA should establish work practice standards for CO instead of numeric limits.

If, after evaluating all comments and data received on this issue, the EPA determines that amendments to the CO emission limits established at the level of 130 ppm, corrected to 3-percent oxygen, may be appropriate, we will propose such amendments in a future regulatory action.

C. Use of PM CPMS Including Consequences of Exceeding the Operating Parameter

The January 2013 amended final rule requires units combusting solid fossil fuel or heavy liquid with heat input capacities of 250 million British thermal units per hour (MMBtu/hr) or greater to install, maintain, and operate PM CPMS. The provisions regarding PM CPMS in the January 2013 final rule are consistent with regulations for similarly-sized commercial and industrial solid waste incinerator units, Portland cement kilns, and EGUs subject to the Mercury and Air Toxics Standards (MATS) Rule.

The March 21, 2011, final rule required boilers with a heat input rate greater than 250 MMBtu/hr from solid fuel and/or residual oil to install and operate a PM CEMS to demonstrate compliance with the applicable PM emission limit. In petitions for reconsideration to the March 2011 final rule, petitioners objected to this requirement, claiming that the EPA had failed to consider the ability of PM CEMS to meet the required Performance Specification 11 (PS 11) criteria, or to accurately measure PM, at the levels of the proposed standards. In the December 2011 Reconsideration proposal, the EPA acknowledged petitioners' concerns regarding application of PM CEMS technology to various types of boilers, and concluded that for coal- and oil-fired boilers PM CEMS would best be employed as parametric monitors (i.e., as a PM CPMS). Specifically, rather than correlate the PM CEMS to the EPA reference method using PS 11, the EPA proposed that sources establish a site-specific enforceable operating limit in terms of the PM CPMS output during the initial and periodic performance tests, and meet that operating limit on a 30-day rolling average basis. However, commenters objected to the EPA's proposal to impose an enforceable site-specific operating limit based on output during a short-term stack test which would not capture the variability in PM CPMS output that may occur during operations consistent with the PM limit.

In the January 2013 final rule, the EPA finalized the requirement for use of a PM CPMS, but added provisions allowing sources a certain number of exceedances of the operating parameter limit before an exceedance would be presumed to be a violation, and allowing certain low emitting sources to “scale” their site-specific operating limit to 75 percent of the emission standard. Specifically, under the January 2013 final rule, boilers opting to use PM CPMS will establish an operating limit as the average parameter value (in terms of raw output from a PM CEMS) obtained during the performance test and, if the boiler did not exceed 75 percent of the emission limit during the performance test, the boiler may linearly scale the average parameter value up to 75 percent of the limit to obtain a new scaled parameter. Compliance with the parameter limit is determined on a 30-boiler-operating-day rolling average basis. For any exceedance of the 30-boiler-operating-day PM CPMS value, the owner or operator must (1) inspect the control device within 48 hours and, if a cause is identified, take corrective action as soon as possible, and (2) conduct a new performance test to verify or reestablish the operating limit within 30 calendar days. Additional exceedances that occur between the original exceedance and the performance test do not trigger another test. Up to four performance tests may be triggered in a 12-month rolling period without additional consequences. However, each additional performance test that is triggered would constitute a separate presumptive violation.

The EPA received a petition for reconsideration on the use of PM CPMS. Specifically, the petitioner stated that while the option has the advantage of avoiding the testing issues associated with PS 11 correlations of PM CEMS, absent that correlation the parameter is nothing more than an indicator that PM may be increasing or decreasing. Therefore, while it is useful as a tool to identify the need for investigation and corrective action, the petitioner does not believe it is an appropriate tool to establish a violation as long as the requirement for corrective action is met.

The petitioner claimed that any affected boiler that tests at its normal operating condition to establish a PM CPMS operating limit could be testing at a level well below the applicable emission limit. For such a boiler, the petitioner does not believe there is any basis to assume that an exceedance (or even multiple exceedances) of a 30-boiler-operating-day rolling average parameter limit indicates that the emission limit was exceeded, or that controls were not operated properly. Rather, the petitioner claims, it simply means that emissions on average probably were above the level of emissions during the last successful performance test. Unless the source has collected data to determine what PM CPMS parameter level is equivalent to a violation of the emission standard, the petitioner states that there is no basis to suggest that any parameter exceedance is a violation. The petitioner also argued that if a source that has invested in a PM CPMS is conducting appropriate investigations and corrective action in response to parameter exceedances, there is no basis to label the source a violator as a result of its fourth successful performance test in a 12-month period.

In its petition for reconsideration, the petitioner also expressed concerns about the scaling procedure that the EPA added to that rule in an attempt to address the fact that “actual stack emissions of PM could still be well below the limit.” The petitioner expressed appreciation of the EPA's attempt to address that issue for industrial boilers by also allowing scaling of the as-tested parameter value. However, the petitioner claims that EPA's use of 75 percent of the emission level as the upper point is arbitrary and still puts sources that are operating with significant compliance margin at risk of a violation. For a scaled limit to justify a violation, the petitioner believes that the EPA must establish not only the consistency of the uncorrelated measurements over time, but allow scaling up to 100 percent of the emission limit. Only at that point would there be a reasonable basis to conclude that a performance test might have failed.

In sum, the petitioner claimed that for PM CPMS to be useful as an alternative to stack testing for compliance with the alternate TSM standards or PM CEMS, the EPA must (1) allow scaling up to 100 percent of the emission limit, and (2) remove its definition of a violation in favor of a pure investigation and corrective action approach.

The EPA is not proposing to revise the PM CPMS provisions in the January 31, 2013, final rule. The basis for the inclusion of the definition of a violation is that the site-specific CPMS limit could represent an emissions level higher than the proposed numerical emissions limit since the PM CPMS operating limit corresponds to the highest of the three runs collected during the Method 5 performance test. Second, the PM CPMS operating limit reflects a 30-day average that should represent an actual emissions level lower than the three test run numerical emissions limit since variability is mitigated over time. Consequently, we believe that there should be few if any deviations from the 30-day parametric limit and there is a reasonable basis for presuming that deviations that lead to multiple performance tests to represent poor control device performance and to be a violation of the standard. We continue to believe that there should be few if any deviations from the 30-day parametric limit and that there is a reasonable basis for presuming that deviations that lead to multiple performance tests represent poor control device performance and therefore constitute a presumptive violation of the standard, particularly since that presumption can be rebutted. Therefore, we continue to believe that PM CPMS deviations leading to more than four required performance tests in a 12-month process operating period should be presumed a violation of this standard, subject to the source's ability to rebut that presumption with information about process and control device operations in addition to the Method 5 performance test results. Therefore, the EPA is not proposing to revise that PM CPMS provision in the January 2013 final rule.

Based on an extensive analysis (see S. Johnson's memo “Establishing an Operating Limit for PM CPMS”, November 2012, docket ID number EPA-HQ-OAR-2011-0817-0840), we also continue to believe a scaling factor of 75 percent of the emission limit as a benchmark is appropriate and are not proposing to revise that provision of the January 2013 final rule. We recognized that non-linear instruments provide increased uncertainty in estimating PM concentrations above the performance test data point and, after considering several options, we determined that the 75-percent scaling cap was appropriate for protecting the emission standard in this regard. This option provided flexibility for low emitting and well-operated sources, and was determined to be a reasonable compromise between flexibility for the regulated source and assurance that the emission standard is met. Seventy-five percent of the emission limit is an already-established threshold in the Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Unit (76 FR 15757) to determine the frequency of subsequent compliance testing. In that rule, owners or operators of sources were able to reduce their performance test frequency when emissions were equivalent with or below 75 percent of the limits. Otherwise, performance testing was to occur at the normal frequency prescribed in the rule. We believe this threshold can be used in conjunction within a PM CPMS scaling factor, as results above 75 percent of the equivalent emissions limit would be ineligible for scaling factor use and could lead to increased performance testing and potentially to a presumptive violation, while results equivalent with or below 75 percent of the emissions limit would be eligible for scaling factor use and provide greater operational flexibility for sources demonstrating compliance at lower emission rates.

For these reasons, the EPA is not proposing to revise the requirements in 40 CFR 63.7440(a)(18) for demonstrating continuous PM emission compliance using a PM CPMS. However, the EPA is soliciting additional comment on these requirements in today's action. The EPA welcomes comments on these provisions, including whether the provisions are necessary or appropriate. If a commenter suggests revisions to the provisions, the commenter should provide detailed information supporting any such revision.

IV. Technical Corrections and Clarifications

We are proposing several technical corrections. These amendments are being proposed to correct inadvertent errors that were promulgated in the final rule and to make the rule language consistent with provisions addressed through this reconsideration. We are soliciting comment only on whether the proposed changes provide the intended accuracy, clarity and consistency. These proposed changes are described in Table 1 of this preamble. We request comment on all of these proposed changes.

V. Affirmative Defense for Violation of Emission Standards During Malfunction

In several prior CAA section 112 and CAA section 129 rules, including this rule, the EPA had included an affirmative defense to civil penalties for violations caused by malfunctions in an effort to create a system that incorporates some flexibility, recognizing that there is a tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission standards may be violated under circumstances entirely beyond the control of the source. Although the EPA recognized that its case-by-case enforcement discretion provides sufficient flexibility in these circumstances, it included the affirmative defense to provide a more formalized approach and more regulatory clarity. See Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057-58 (D.C. Cir. 1978) (holding that an informal case-by-case enforcement discretion approach is adequate); but see Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 (9th Cir. 1977) (requiring a more formalized approach to consideration of “upsets beyond the control of the permit holder.”). Under the EPA's regulatory affirmative defense provisions, if a source could demonstrate in a judicial or administrative proceeding that it had met the requirements of the affirmative defense in the regulation, civil penalties would not be assessed. Recently, the United States Court of Appeals for the District of Columbia Circuit vacated an affirmative defense in one of the EPA's CAA section 112 regulations. NRDC v. EPA, 749 F.3d 1055 (D.C. Cir., 2014) (vacating affirmative defense provisions in CAA section 112 rule establishing emission standards for Portland cement kilns). The court found that the EPA lacked authority to establish an affirmative defense for private civil suits and held that under the CAA, the authority to determine civil penalty amounts in such cases lies exclusively with the courts, not the EPA. Specifically, the court found: “As the language of the statute makes clear, the courts determine, on a case-by-case basis, whether civil penalties are `appropriate.' ” See NRDC, 2014 U.S. App. LEXIS 7281 at *21 (“[U]nder this statute, deciding whether penalties are `appropriate' . . . is a job for the courts, not EPA.”). In light of NRDC, the EPA is proposing to remove the regulatory affirmative defense provision in the current rule.

In the event that a source fails to comply with the applicable CAA section 112 standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source's failure to comply with the CAA section 112 standard was, in fact, “sudden, infrequent, not reasonably preventable” and was not instead “caused in part by poor maintenance or careless operation.” 40 CFR 63.2 (definition of malfunction).

Further, to the extent the EPA files an enforcement action against a source for violation of an emission standard, the source can raise any and all defenses in that enforcement action and the federal district court will determine what, if any, relief is appropriate. The same is true for citizen enforcement actions. Cf. NRDC at 1064 (arguments that violation was caused by unavoidable technology failure can be made to the courts in future civil cases when the issue arises). Similarly, the presiding officer in an administrative proceeding can consider any defense raised and determine whether administrative penalties are appropriate.

VI. Solicitation of Public Comment and Participation

The EPA seeks full public participation in arriving at its final decisions. At this time, the EPA is only proposing alternatives to the final rule's definitions of startup and shutdown, the work practices that apply during those periods, and recordkeeping requirements for startup periods. The EPA is not proposing any other specific revisions to the reconsideration issues. However, the EPA requests public comment on the three issues under reconsideration.

Additionally, the EPA is making certain clarifying changes and corrections to the final rule. We are soliciting comments on whether the proposed changes provide the intended accuracy, clarity and consistency. The EPA is also proposing to amend the final rule by removing the affirmative defense provision. We request comment on all of these proposed changes.

The EPA is seeking comment only on the specific three issues, the clarifying changes and corrections, and the amendments described in this notice. The EPA will not respond to any comments addressing any other issues or any other provisions of the final rule or any other rule.

VII. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders .

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

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

B. Paperwork Reduction Act (PRA)

This action does not impose any new information collection burden under PRA. With this action, the EPA is seeking additional comments on three aspects of the final amended NESHAP for industrial, commercial, and institutional boilers and process heaters located at major sources of HAP with proposing only minor changes to the rule to correct and clarify implementation issues raised by stakeholders. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0551. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action seeks comment on three aspects of the final NESHAP for industrial, commercial, and institutional boilers and process heaters located at major sources of HAP as well as proposing minor changes to the rule to correct and clarify implementation issues raised by stakeholders.

We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandates as described in UMRA, 2 U.S.C. 1531-1538. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action seeks comment on three aspects of the final NESHAP for industrial, commercial, and institutional boilers and process heaters located at major sources of HAP with proposing minor changes to the rule to correct and clarify implementation issues raised by stakeholders.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This action seeks comment on three aspects of the final NESHAP for industrial, commercial, and institutional boilers and process heaters located at major sources of HAP without proposing any changes to the rule. Thus, Executive Order 13132 does not apply to this action.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, the EPA specifically solicits comment on this proposed action from state and local officials.

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

This action does not have tribal implications, as specified in Executive Order 13175. This action will not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

The EPA specifically solicits additional comment on this proposed action from tribal officials.

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

The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

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

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113, Section 12(d), 15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by VCS bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency does not use available and applicable VCS.

This action does not involve technical standards. Therefore, the EPA did not consider the use of any VCS.

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

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action seeks comment on three aspects of the final NESHAP for industrial, commercial, and institutional boilers and process heaters located at major sources of HAP with proposing minor changes to the rule to correct and clarify implementation issues raised by stakeholders.

List of Subjects in 40 CFR Part 63

• Environmental Protect
• Administrative practice and procedure
• Air pollution control
• Hazardous substances
• Intergovernmental relations
• Reporting and recordkeeping requirements

For the reasons cited in the preamble, title 40, chapter I, part 63 of the Code of Federal Regulations is proposed to be amended as follows:

PART 63— NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES

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

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

Subpart DDDDD—[Amended]

2. Section 63.7491 is amended by:

a. Revising paragraphs (a), (j) and (l).

b. Adding paragraph (n).

The revisions and addition read as follows:

3. Section 63.7495 is amended by:

a. Revising paragraphs (a) and (e).

b. Adding paragraphs (h) and (i).

The revisions and additions read as follows:

4. Section 63.7500 is amended by revising paragraphs (a)(1) and (f) to read as follows:

5. Section 63.7501 is removed.

6. Section 63.7505 is amended by revising paragraphs (a) and (c) and adding paragraph (e) to read as follows:

7. Section 63.7510 is amended by:

a. Revising paragraphs (a) introductory text, (a)(2)(ii), (c), (e), (g), and (i) .

b. Adding paragraph (k).

The revisions and addition read as follows:

8. Section 63.7515 is amended by revising paragraphs (d) and (h) to read as follows:

9. Section 63.7521 is amended by:

a. Revising paragraph (a).

b. Revising paragraph (c)(1).

c. Revising paragraph (f) introductory text.

d. Revising paragraph (g) introductory text.

e. Revising paragraph (h).

The revisions read as follows:

10. Section 63.7522 is amended by revising paragraphs (c), (d), (i), and (j)(1) to read as follows:

11. Section 63.7525 is amended by:

a. Revising paragraphs (a) introductory text, (a)(1), (a)(2) introductory text, (a)(3), (a)(5), and (a)(7).

b. Revising paragraphs (b) introductory text and (b)(1).

c. Revising paragraph (g)(3).

d. Revising paragraphs (m) introductory text and (m)(2).

The revisions to read as follows:

12. Section 63.7530 is amended by:

a. Revising paragraphs (a).

b. Revising paragraph (b) introductory text.

c. Revising paragraphs (b)(1)(iii), (b)(2)(iii), and (b)(3)(iii).

d. Revising paragraph (b)(4)(ii)(F).

e. Redesignating paragraphs (b)(4)(iii) through (b)(4)(viii) as (b)(4)(iv) through (b)(4)(ix) and adding new paragraph (b)(4)(iii).

f. Revising paragraphs (c)(3), (c)(4), and (c)(5).

g. Revising paragraph (d).

h. Revising paragraph (e).

i. Revising paragraph (h).

j. Revising paragraph (i)(3).

The revisions and addition read as follows:

13. Section 63.7533 is amended by revising paragraph (e).

14. Section 63.7535 is amended by revising paragraphs (c) and (d).

15. Section 63.7540 is amended by:

a. Revising paragraph (a)(2) introductory text.

b. Revising paragraph (a)(3).

c. Revising paragraph (a)(5).

d. Revising paragraph (a)(8)(ii).

e. Revising paragraph (a)(10) introductory text.

f. Revising paragraph (a)(10)(vi) introductory text.

g. Revising paragraph (a)(17).

h. Revising paragraph (a)(19)(iii).

i. Revising paragraph (d).

The revisions read as follows:

16. Section 63.7545 is amended by revising paragraphs (e)(8)(i) and (h) introductory text.

17. Section 63.7550 is amended by revising paragraphs (b), (c), (d) introductory text, (d)(1), and (h) to read as follows:

18. Section 63.7555 is amended by:

a. Adding paragraph (a)(3).

b. Removing paragraph (d)(3).

c. Redesignating paragraphs (d)(4) through (d)(11) as paragraphs (d)(3) through (d)(10).

d. Revising newly designated paragraphs (d)(3), (d)(4), and (d)(8).

e. Adding new paragraphs (d)(11) and (12).

f. Removing paragraphs (i) and (j).

The revisions and additions read as follows:

19. Section 63.7575 is amended by:

a. Revising the definitions for “Coal,” “Limited-use boiler or process heater,” “Load fraction,” “Oxygen trim system,” “Shutdown,” “Startup,” “Steam output,” and “Temporary boiler.”

b. Adding in alphabetical order definitions for “Fossil fuel” and “Useful thermal energy.”

c. Removing the definition for “Affirmative defense.”

The revisions read as follows:

20. Table 1 to subpart DDDDD of part 63 is revised to read as follows:

21. Table 2 to subpart DDDDD of part 63 is revised to read as follows:

22. Table 3 to subpart DDDDD of part 63 is amended by revising the entry for “4,” “5,” and “6” to read as follows:

23. Table 4 to subpart DDDDD of part 63 is revised to read as follows:

24. Table 5 to subpart DDDDD of part 63 is amended by revising the heading to the third column and adding the footnote “a” to read as follows:

25. Table 6 to subpart DDDDD of part 63 is revised to read as follows:

26. Table 7 to subpart DDDDD of part 63 is revised to read as follows:

27. Table 8 to subpart DDDDD of part 63 is amended by revising the entry for “3,” “9,” “10,” and “11” to read as follows:

28. Table 9 to subpart DDDDD of part 63 is revised to read as follows:

29. Table 11 to subpart DDDDD of part 63 is revised to read as follows:

29. Table 12 to subpart DDDDD of part 63 is revised to read as follows: